ABRAHAM J. EOFF and CRYSTAL M. EOFF, Individually and as Plaintiffs Ad Litem for SOPHEE R. EOFF, Appellants,
JENNIFER K. McDONALD, D.O., and SEASONS HEALTHCARE FOR WOMEN, P.C., Respondents.
from the Circuit Court of St. Louis County The Honorable
Kristine Kerr, Judge
DENVIR STITH, JUDGE.
and Crystal Eoff appeal the judgment against them following a
jury verdict in favor of defendants Jennifer K. McDonald,
D.O., and Seasons Healthcare for Women P.C. The Eoffs allege
the circuit court committed reversible error when it refused
to allow their counsel additional voir dire time so he could
ask the "insurance question" after counsel forgot
to ask it during his initial voir dire. This Court affirms.
The parties do not challenge the holding in Ivy v.
Hawk, 878 S.W.2d 442 (Mo. banc 1994), that a party has
the right to ask the insurance question during voir dire if
the proper procedure is used so as to avoid unduly
highlighting the question. But, in so holding, Ivy
did not divest the circuit court of its discretion to control
the proper timing and form of voir dire questioning,
including discretion as to whether counsel's proposed
procedure would unduly highlight the question. Here, once the
Eoffs' counsel forgot to ask the insurance question
during multiple hours of voir dire, the circuit court acted
within its discretion in finding it would unduly highlight
the question to allow counsel to recommence his questioning
to ask it as one of a small number of extra questions after
voir dire otherwise had concluded.
FACTUAL AND PROCEDURAL BACKGROUND
and Crystal Eoff brought a medical negligence claim in St.
Louis County against Jennifer K. McDonald, D.O., and Seasons
Healthcare for Women P.C. for the wrongful death of their
daughter during delivery. Before trial, the Eoffs learned
that Missouri Doctors Mutual Insurance Company (MDMIC)
provided medical malpractice liability insurance to Dr.
McDonald and Seasons Healthcare. MDMIC is a small insurance
company with approximately 20 employees, located 50 miles
north of Kansas City in St. Joseph, Missouri.
Ivy, this Court held that, when one party has
insurance, it is reversible error not to permit the
other's counsel to ask the venire members whether they
work for or have a financial interest in the insurer, so long
as counsel asks a proper question in a manner that does not
unduly highlight what is generally referred to as "the
insurance question." Id. at 445. In setting out
an acceptable method for asking the insurance question,
Ivy required the plaintiff's counsel first to
submit and obtain the circuit court's approval of the
form of the proposed question outside of the venire
panel's hearing and then to avoid unduly highlighting the
question by not asking it first or last in a series of
questions. Id. In accordance with Ivy,
before jury selection began, the Eoffs' counsel requested
permission to ask the following question: "Is anyone
here employed by or have a financial interest in Missouri
Doctors Mutual Insurance Company?" Opposing counsel had
no objection to the question's form, and the circuit
court ruled the Eoffs' counsel could ask it during the
plaintiffs' voir dire. Thereafter, however, the procedure
utilized diverged from that envisioned in Ivy.
Eoffs' counsel's voir dire questioning was lengthy,
covering 173 pages of the transcript. Of those, 138 pages
covered the period from mid-morning through the noon lunch
break and up to an afternoon break, when the circuit court
told the Eoffs' counsel he needed to "wrap it
up" so the defendants would have time to complete their
voir dire that day and the jury could be seated the next
morning. The Eoffs' counsel, nonetheless, took another 35
pages of transcript to complete his voir dire questioning.
counsel completed his voir dire after approximately an hour.
The circuit court then turned to the Eoffs' counsel and
said, "Plaintiff's side, you're done as
well?" Counsel for both sides approached the bench, and
the Eoffs' counsel said:
Your Honor, I in my haste to move in [sic], and looking at my
buried and entrenched question, I forgot to ask the insurance
question. So now I'm in the problem of I can't ask it
by itself in -- standing alone, I have three questions I can
ask at this juncture. But I apologize, it's partly my
negligence. My effort was try [sic] to resolve getting my end
counsel objected, stating:
Yeah, well, no, the one thing I'd say is obviously even
if he has three question[s] now the insurance question
becomes highlighted. I mean, the one thing we've said
many times in all these cases is, there's not a single
person in this room who's related to Missouri Doctors
Mutual Insurance Company because the insurance company's
out of St. Joe, all the employees are in St. Joe. And the
only insurers are doctors, and there's no doctors on this
jury. So there's nobody that has any rational, reasonable
basis to answer that question yes.
the statement by Eoffs' counsel suggested his failure to
ask the insurance question was due to "haste" in
complying with the circuit court's request to move along,
the record shows the circuit court did not otherwise curtail
the Eoffs' voir dire period after asking counsel to move
along. Rather, the Eoffs' counsel engaged in extensive
questioning following the circuit court's request until
he turned voir dire over to defense counsel.
considering both sides' arguments, the circuit court
rejected the Eoffs' counsel's request. In doing so,
she noted were she to allow him to continue with his voir
dire, "the prejudice is more to the other side by unduly
highlighting" the defendants' insurance,
particularly when the circuit court noted there was almost no
likelihood of an affirmative answer given that MDMIC was a
small, specialized insurance company from across the state.
following morning, the circuit court swore in a jury. After
six days of trial the jury found in favor of Dr. McDonald and
Seasons Healthcare. The circuit court overruled the
Eoffs' motion for new trial. Following an opinion by ...