Joy v. Morrison

• Decision Date: 10 June 2008
• Docket Number: No. SC 88690.,SC 88690.
• Citation: 254 S.W.3d 885
• Parties: Linda JOY, Individually and as Personal Representative of the Estate of Wesley Leon Joy, Appellant, v. Stephen K. MORRISON, M.D., and John Wordy Buckner III, M.D., Respondents.
• Court: Missouri Supreme Court

254 S.W.3d 885

Linda JOY, Individually and as Personal Representative of the Estate of Wesley Leon Joy, Appellant, v. Stephen K. MORRISON, M.D., and John Wordy Buckner III, M.D., Respondents.

No. SC 88690.

Supreme Court of Missouri, En Banc.

June 10, 2008.

David W. Ransin, Springfield, for Appellant.

Kent O. Hyde, Shannon A. Vahle, Bruce E. Hunt, Springfield, for Respondents.

PER CURIAM.¹

Introduction

Linda Joy appeals the trial court's judgment entered in favor of Drs. Stephen K. Morrison and John Wordy Buckner III following a jury trial on Joy's medical malpractice claim.² Joy contends the trial court should have excused a potential juror, Clarence Shirkey, for cause. The trial court did not abuse its discretion in failing to do so. The judgment is affirmed.

Joy's argument

Joy asserts that Shirkey, based on his examination, was not a properly qualified juror to serve in this case. She maintains that during voir dire he did not recant his "strong feelings" and "strong bias" regarding lawsuits in general nor was he rehabilitated by counsel on those issues. She contends that the trial court erred in failing to conduct its own inquiry of Shirkey and in overruling the challenge for cause.

The voir dire and court ruling

During voir dire Shirkey informed the trial court that he worked as director of supply and development for Tracker Marine Group; his wife was a homemaker; he has grown children; and he lived in Greene County for five years. When another juror stated that doctors sometimes make mistakes and "you should just live with the result," Shirkey indicated he agreed with that statement. Shirkey was further examined by counsel.³

Following voir dire, the parties presented their challenges for cause to the trial court. The following exchange regarding Shirkey took place at that time:

The Court: Yeah, he was one of those that expressed a bias for the doctors but then recanted, and — I think, under [Counsel for Buckner's] re-examination. How bad was he?

[Counsel for Joy]: I've got — I've got a number of things with [Counsel for Buckner]. He said he was a firm believer that verdicts are way out of line.

The Court: Get a lot of that.

[Counsel for Joy]: Wants to go on the record, and he was troubled about the fact that the lawsuit is against the doctor. That bothers him. I asked if it was a car wreck or health care — that was early this morning. He was — he was pretty vocal about that.

[Counsel for Morrison]: Well, being bothered by a proposition, I don't think, is fair, Judge. We, again, flat put the question to him, and he had no hesitation whatsoever, and that included a finding for [Joy].

The Court: You know, I understand [Counsel for Joy's] concern that jumping back in and just making somebody— shaming them into saying they would be fair doesn't clear the boards, but in Mr. Shirkey's case, I felt pretty good about the response. I'm going to decline to strike Clarence Shirkey, No. 19, for cause.

Because Joy did not use a peremptory strike to remove him, Shirkey served on the jury.

The standard of review — A real probability of injury need not be shown

In this case, Joy contends the trial court erred in failing to excuse Shirkey from jury service. As noted in State v. Christeson, 50 S.W.3d 251, 264 (Mo. banc 2001):

A trial court's ruling on a challenge for cause will be upheld on appeal unless it is clearly against the evidence and is a clear abuse of discretion. State v. Smith, 32 S.W.3d 532, 544 (Mo. banc 2000). "The relevant question is whether a venireperson's beliefs preclude following the court's instructions so as to `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" State v. Johnson, 22 S.W.3d 183, 187 (Mo. banc 2000).... A venireperson's qualifications as a prospective juror are not determined by an answer to a single question, but by the entire examination. Id. at 188. The trial court is in the best position to evaluate a venireperson's qualifications to serve as a juror and has broad discretion in making the evaluation. Id.

As noted in State v. Olinghouse, 605 S.W.2d 58, 68 (Mo. banc 1980), a trial court necessarily and properly has considerable discretion in control and conduct of voir dire examination, and an appellate court will differ or interfere with the exercise of that discretion only when the record shows a manifest abuse of discretion and a real probability of injury to the complaining party. However, the determination of the juror's qualifications is a matter for the trial court in the exercise of sound judicial discretion, and an appellate court will reject the trial court's determination only upon a clear showing of abuse of discretion. Olinghouse at 69.

State v. Betts, 646 S.W.2d 94, 98-99 (Mo. banc 1983), failed to note this distinction. Betts involved the qualifications of a juror, but applied the standard applicable to the conduct and control of voir dire. In support of this standard, Betts cited two cases stating the correct standard for the conduct and control of voir dire⁴ and one case involving the qualifications of a juror that did not contain the additional requirement of a showing of a real probability of injury to the complaining party.⁵ None of the citations supports Betts' holding, and Betts does not discuss or otherwise comment that it intends to change the correct standard for juror qualification cases.

State v. Smith, 649 S.W.2d 417, 422 (Mo. banc 1983), citing Betts without discussion,⁶ continued to conflate the two standards of review stated in Olinghouse. Since Smith was decided, many cases cite the Smith standard to establish that a showing of a real probability of injury is required in juror qualification cases.⁷ At the same time, cases such as Christeson apply the correct standard, which does not require such a showing.⁸

To the extent Betts, Smith and their progeny require a showing of a real probability of injury with respect to the trial court's ruling on the qualification of a potential juror, they are overruled. The general rule in Missouri is that a juror's testimony about jury misconduct allegedly affecting deliberations may not be used to impeach the jury's verdict. Travis v. Stone, 66 S.W.3d 1, 4 (Mo. banc 2002). In light of this rule, the available evidence to demonstrate a real probability of injury with respect to the qualifications of a juror is extremely limited. This is not so with the manner and conduct of voir dire; hence, the different standards of review.

The effect and application of section 494.470⁹

Section 494.470 states in pertinent part:

1. No witness or person summoned as a witness in any cause, no person who has formed or expressed an opinion concerning the matter or any material fact in controversy in any case that may influence the judgment of such person, and no person who is kin to either party in a civil case or to the injured party, accused, or prosecuting or circuit attorney in a criminal case within the fourth degree of consanguinity or affinity shall be sworn as a juror in the same cause.

2. Persons whose opinions or beliefs preclude them from following the law as declared by the court in its instructions are ineligible to serve as jurors on that case.

The difference between subsections 1 and 2 is that under subsection 1 such persons having "formed or expressed an opinion concerning the matter or any material fact in controversy" shall not be sworn as a juror in the same cause. Subsection 2, on the other hand, precludes potential jurors who are unable to follow the court's instructions due to their "opinions or beliefs."

Joy asserts that subsection 1 should have guided the trial court in determining whether to disqualify Shirkey. Nothing in the record, however, suggests Shirkey had any knowledge concerning the matter or any material fact in controversy. At the time of voir dire, Shirkey only had basic information, such as the fact that the litigation involved a medical malpractice action. The opinions and beliefs expressed by Shirkey related to his opinions about lawsuits and doctors in general and had no relation to anything specific to the facts of the case.

Similarly, Shirkey's opinions and beliefs were not such that would have precluded him from following the directions of the trial court and required disqualification under subsection 2.

Upon questioning by Joy's counsel, Shirkey initially expressed his concern regarding lawsuits that resulted in the award of excessive damages. He stated "things are way out of hand in the country as far as lawsuits against doctors or whoever" in which people are receiving awards of "millions of dollars for this or that...." Shirkey noted that he had a "strong bias" against "lawsuits in general" and that his concern was related to the amount of money awarded as opposed to the fact that people were being compensated for their injuries. He stated he would have a problem awarding a "substantial amount of money," but there was no specific amount of money that he thought was per se excessive. When asked how he felt about lawsuits against doctors specifically, he stated he "probably would be biased for the doctors," but could be "persuad[ed]" in the other direction. Shirkey admitted he was "substantially" troubled by lawsuits and his opinions "could" affect his "ability to listen to the experts and give them fair credence."

Upon questioning by Morrison's counsel, Shirkey responded that if he found negligence, he would be able to award damages in favor of Joy, and if he did not find negligence, he would be able to find in favor of the doctors.

Similarly, he was asked by counsel for Buckner if he could be "fair and unbiased if [he] were selected on this jury," and he responded that he "could be fair." He stated that neither side had "a real advantage" in his opinion and that he could be equally fair to all parties. He reiterated that he is a "firm believer that the awards by the Court and...