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Eoff v. McDonald

Supreme Court of Missouri, En Banc

August 13, 2019

ABRAHAM J. EOFF and CRYSTAL M. EOFF, Individually and as Plaintiffs Ad Litem for SOPHEE R. EOFF, Appellants,
v.
JENNIFER K. McDONALD, D.O., and SEASONS HEALTHCARE FOR WOMEN, P.C., Respondents.

          Appeal from the Circuit Court of St. Louis County The Honorable Kristine Kerr, Judge

          LAURA DENVIR STITH, JUDGE.

         Abraham 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Abraham 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.

         In 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.

         The 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.

         Defense 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 sped up.

         Defense 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.

         Although 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.

         After 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.

         The 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 ...


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