FLESHNER v. PEPOSE VISION INSTITUTE, PC

• Decision Date: 09 February 2010
• Docket Number: No. SC 90032.,SC 90032.
• Citation: Fleshner v. Pepose Vision Institute, P.C., 304 S.W.3d 81 (Mo. 2010)
• Parties: Michelle FLESHNER, Respondent, v. PEPOSE VISION INSTITUTE, P.C., Appellant.
• Court: Missouri Supreme Court

304 S.W.3d 81

Michelle FLESHNER, Respondent, v.PEPOSE VISION INSTITUTE, P.C., Appellant.

No. SC 90032.

Supreme Court of Missouri, En Banc.

February 9, 2010.

Robert A. Kaiser, Thomas B. Weaver, Jeffery T. McPherson, Armstrong Teasdale LLP, St. Louis, for Appellant.

Jerome J. Dobson, Michelle Dye Neumann, Jonathan C. Burns, Gregory A. Rich, Dobson, Goldberg, Berns & Rich, LLP, St. Louis, for Respondent.

J. Bennett Clark, Emma Harty, James M. Weiss, St. Louis, for Amicus Curiae Anti-Defamation League.

John D. Lynn, Sedey Harper, P.C., St. Louis, Marie L. Gockel, Bratcher Gockel & Kingston, L.C., Kansas City, for Amicus Curiae St. Louis and Kansas City Chapters of the National Employment Lawyers Association.

MARY R. RUSSELL, Judge.

Michelle Fleshner sued her former employer, Pepose Vision Institute, P.C.("PVI"), for damages resulting from its wrongful termination of her.A jury found PVI liable on Fleshner's claim and awarded her $30,000 in actual damages and $95,000 in punitive damages.This Court granted transfer after disposition by the court of appeals.Jurisdiction is vested in this Court pursuant to article V, section 10 of the Missouri Constitution.

Among its allegations of error, PVI claims that the trial court erred in failing to hold a hearing on its motion for a new trial based on juror misconduct.PVI contends that one juror's anti-Semitic comments about a defense witness deprived it of a jury of 12 fair and impartial jurors.This Court finds that if a juror makes statements evincing ethnic or religious bias or prejudice during jury deliberations, the parties are deprived of their right to a fair and impartial jury and equal protection of the law.Accordingly, the trial court should have held a hearing to determine whether the alleged anti-Semitic comments were made.The overruling of the motion for a new trial was error.The judgment is reversed, and the case is remanded.

PVI also claims that the trial court erred in rejecting its proposed verdict director that would have instructed the jury that the proper causal standard in a wrongful discharge action based on the public-policy exception was "exclusive causation."Instead, the trial court directed the jury that it should find for Fleshner if it believed she was fired "because"she spoke with a government investigator.This Court finds that the proper instruction for the causal standard is "contributing factor."In the future, trial courts should use a modified MAI 31.24, applying the "contributing factor" analysis, until a specific instruction for the public-policy exception is adopted.PVI, however, cannot show prejudice resulted from the instruction given.

I.Background

Fleshner worked for PVI, a refractive surgery practice.During the course of her employment, the U.S. Department of Labor investigated PVI to determine whether it failed to pay its employees overtime compensation when they worked more than 40 hours a week.Fleshner received a telephone call at home from a Department of Labor investigator seeking background information about PVI.Fleshner told the investigator about the hours worked by PVI's employees.The next morning she reported her telephone conversation to her supervisor.

Fleshner's employment with PVI was terminated the day after she reported the telephone conversation.Fleshner filed an action against PVI, asserting wrongful termination of employment in violation of public policy and failure to pay overtime compensation in violation of section 290.505, RSMoSupp.2003.¹As noted, the jury found in favor of Fleshner and awarded her $125,000.

PVI filed motions for a new trial on several bases, including juror misconduct.After the jury was dismissed, a juror approached PVI's attorneys and reported that another juror made anti-Semitic statements during jury deliberations.According to the juror's affidavit, another juror made the following comments directed at a witness for PVI:²"She is a Jewish witch.""She is a Jewish bitch.""She is a penny-pinching Jew.""She was such a cheap Jew that she did not want to pay Plaintiff unemployment compensation."

According to an affidavit by one of PVI's attorneys, another juror approached PVI's attorneys and indicated that several anti-Semitic comments were made during deliberations but did not specify what was said.In overruling PVI's motions, the trial court concluded that jury deliberations are sacrosanct and that the juror's alleged comments did not constitute the kind of jury misconduct that would allow the trial court to set aside the verdict and order a new trial.

II.Analysis

A.Jury Misconduct in the Form of Anti-Semitic Remarks

PVI alleges that its right to a fair and impartial jury trial was denied when the trial court overruled its motions for a new trial because a juror allegedly made anti-Semitic comments about a witness during jury deliberations.PVI contended in its motions for new trial that, as a result of the anti-Semitic comments, it was deprived of its due process rights and did not receive a fair trial.

Standard of Review

This Court will not disturb a trial court's ruling on a motion for a new trial based on juror misconduct unless the trial court abused its discretion.Alcorn v. Union Pac. R.R. Co.,50 S.W.3d 226, 246(Mo. banc 2001).A trial court abuses its discretion if its ruling "is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration."Wingate by Carlisle v. Lester E. CoxMed. Ctr.,853 S.W.2d 912, 917(Mo. banc 1993).

Analysis

Both the United States ConstitutionandMissouri Constitution provide that "no person shall be deprived of life, liberty or property without due process of law."U.S. CONST. amend. V;MO. CONST. art. I, sec. 10."It is axiomatic that `a fair trial in a fair tribunal is a basic requirement of due process.'"Caperton v. A.T. Massey Coal Co.,___ U.S. ___, ___, 129 S.Ct. 2252, 2259, 173 L.Ed.2d 1208(2009)(quotingIn re Murchison,349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942(1955)).Moreover, the Missouri Constitution provides for the right to a trial by jury for civil cases.MO. CONST. art. I, sec. 22(a).As this Court has recognized, the right to a trial by jury does not simply provide that 12 jurors will decide the case.If the right to trial by jury is to mean anything, all 12 jurors must be "fair and impartial."SeeCatlett v. Ill. Cent. Gulf R.R. Co.,793 S.W.2d 351, 353(Mo. banc 1990);Lee v. Balt. Hotel Co.,345 Mo. 458, 136 S.W.2d 695, 698(1939).Each juror must "enter the jury box disinterested and with an open mind, free from bias or prejudice."³Catlett,793 S.W.2d at 353(internal quotation marks omitted).While every party is entitled to a fair trial, as a practical matter, our jury system cannot guarantee every party a perfect trial.

The general rule in Missouri, referred to as the Mansfield Rule, is that a juror's testimony about jury misconduct allegedly affecting deliberations may not be used to impeach the jury's verdict.Joy v. Morrison,254 S.W.3d 885, 889(Mo. banc 2008)."A juror who has reached his conclusions on the basis of evidence presented for his consideration may not have his mental processes and innermost thoughts put on a slide for examination under the judicial microscope."Baumle v. Smith,420 S.W.2d 341, 348(Mo.1967).In other words, juror testimony is improper if it merely alleges that jurors acted on improper motives, reasoning, beliefs, or mental operations, also known as "matters inherent in the verdict."⁴Neighbors v. Wolfson,926 S.W.2d 35, 37(Mo.App.1996).There are two major policy considerations for this rule.First, there would be no end to litigation if verdicts could be set aside because one juror reportedly did not correctly understand the law or accurately weigh the evidence.Baumle,420 S.W.2d at 348.Second, there is no legitimate way to corroborate or refute the mental process of a particular juror.Id.

Over the years, an exception to the rule prohibiting juror testimony has been adopted.Jurors may testify about juror misconduct occurring outside the courtroom.Travis v. Stone,66 S.W.3d 1, 4(Mo. banc 2002).This exception has been used to allow jurors to testify as to whether they gathered evidence independent to that presented at trial.Seeid. at 3(where juror visited accident scene during a trial recess);Middleton v. Kansas City Pub. Serv. Co.,348 Mo. 107, 152 S.W.2d 154, 156(1941)(where juror visited several used car dealerships measuring the type car involved in the accident).When a juror obtains extrinsic evidence, the trial court conducts a hearing to determine whether the extrinsic evidence prejudiced the verdict.SeeTravis,66 S.W.3d at 4.

Here, PVI did not allege juror misconduct occurring outside the courtroom.Instead, PVI asked for a new trial on the basis of juror misconduct occurring inside the jury room.PVI alleges that comments made by a juror revealing religious and ethnic bias or prejudice during deliberations prevented it from receiving its constitutional right to a trial by a fair and impartial jury.

Specifically, PVI alleges that, during jury deliberations, a juror made the following statements about the defense witness, who is also the wife of the president of PVI: "She is a Jewish witch.""She is a Jewish bitch.""She is a penny-pinching Jew.""She was such a cheap Jew that she did not want to pay Plaintiff unemployment compensation."Those alleged comments, PVI claims, demonstrate it did not receive a trial by a fair and impartial jury.

While jurors' mental processes and innermost thoughts or beliefs may not be examined, seeBaumle,420 S.W.2d at 348, this Court has never considered whether the trial court may hear testimony about juror statements during deliberations evincing ethnic or religious bias or prejudice.

Other jurisdictions that have analyzed similar situations have...