Keltner v. K-Mart Corp.

Decision Date30 January 2001
Docket NumberK-M
Citation42 S.W.3d 716
Parties(Mo.App. E.D. 2001) Sherree Keltner, Appellant, v.art Corporation, Respondent. ED76613 0
CourtMissouri Court of Appeals

Appeal From: Circuit Court of the City of St. Louis, Hon. Anna C. Forder

Counsel for Appellant: Michael A. Gross

Counsel for Respondent: Larry Hale, Gloria Reno and Andrew Pickens

Opinion Summary: Sherree Keltner filed a claim against K-mart Corporation alleging personal injuries caused by a falling light fixture in a K-mart dressing room. The jury returned a verdict for Keltner and the trial court granted K-Mart's motion for a new trial finding that a juror intentionally failed to disclose that he had been a defendant in four collection suits between 1980 and 1990. Keltner appeals claiming the juror was never clearly asked about the collection suits.

Division Two holds: The trial court must find that a clear question unequivocally triggered the duty of the venirepersons to disclose information before there can be a finding of juror non-disclosure. Because the questions asked at voir dire consistently and repeatedly focused on personal injuries, and the subject of debts or collection suits was never raised, plaintiff's attorney's question was insufficiently clear to trigger the jurors' duty to disclose collection suits.

James R. Dowd, Judge

Sherree Keltner filed a negligence action against K-Mart Corporation alleging personal injuries caused by a falling light fixture in a K-Mart dressing room. After a jury returned a verdict for Keltner, K-Mart moved for judgment notwithstanding the verdict, new trial or remittitur. The trial court denied K-Mart's motions for judgment notwithstanding the verdict and remittitur, but granted its motion for a new trial after finding that a juror intentionally failed to disclose that he had been a defendant in four collection suits between 1980 and 1990. We reverse.

This appeal centers on what occurred during voir dire. Trial began on June 14, 1999. During voir dire Keltner's attorney began by introducing the attorneys, parties and witnesses, and asked whether any members of the panel had heard of or knew any of these people. After asking a number of standard questions, he focused the panels' attention on principles of negligence and asked whether any of them believed that there ought to be a limit on the amount of compensation persons may receive for injuries caused by others.

Plaintiff's attorney then focused the panel's attention on the issue of personal injury suits. He asked the panel whether they or close family members had any medical training, if any person would have a problem returning a verdict for Keltner that included amounts for her medical bills, and if any panel members or their family members had ever been hurt or injured at a business. After a number of jurors described instances where they or a family member had been injured at work and filed suit against the business, plaintiff's attorney asked if any one on the panel had owned or had a family member who had owned or operated a business. The following exchange then occurred between plaintiff's attorney and juror # 650, the juror K-Mart claims intentionally failed to disclose prior collection suits:

JUROR NO. 650: My wife operates a day care.

[PLAINTIFF'S ATTORNEY]: Anyone filed a claim against her?

JUROR NO. 650: No.

[PLAINTIFF'S ATTORNEY]: Do you think the fact that this case is against a business would influence you here?

JUROR NO. 650: No.

[PLAINTIFF'S ATTORNEY]: You would be able to be fair and decide the case?

JUROR NO. 650: Yes, I can decide.

After juror # 1254 indicated that she and her brother had businesses and no injury suits had been filed against them, plaintiff's attorney then asked:

I have asked you about claims any of you have brought. Let me ask next if there are any instances where claims have been brought against you. Has anyone claimed you did something wrong that you are responsible for, an injury or something else, and filed a claim or a suit against you?

It is this question that K-Mart maintains triggered the jurors' duty to provide information about prior collection suits. Juror # 646 responded by describing an instance where he was sued for personal injuries when someone fell on the sidewalk in front of his home. No other juror responded. Plaintiff's attorney then returned to the issue of claims for a second time:

Anybody had a claim filed against them? How many of you have heard, read, or seen anything about the so-called lawsuit crisis? There's too many lawsuits, frivolous claims filed and injuries and awards, too much money? I don't want to ask your personal experience. Just raise your hand if you have ever heard, read, or seen anything about that. Has anyone on the panel had an orthoscopic or other shoulder surgery, orthoscopic or otherwise? Anybody?

No one responded.

The trial court found that the record was unclear "whether the jurors were given adequate opportunity to respond to the question about claims against them before the attorney went on to another subject."1 After this, the questioning moved on, again focused on personal injuries. Plaintiff's attorney asked the panel members if they or anyone close to them had ever suffered or been hospitalized for a shoulder injury.

The attorney for K-Mart began her voir dire by introducing herself and her law firm. She asked if anyone on the panel would have a problem with the fact that, because K-Mart is a corporation, no one would be sitting in the chair beside her at the defense table. She asked if the panel understood that the plaintiff has the burden of proof. The questioning then shifted to personal injuries. After mentioning a juror who had described an injury during plaintiff's voir dire, she asked: "Is there anything or anybody else who had any injuries?" No one answered. She went on: "And I don't recall [plaintiff's attorney] asking this, but any injuries of any other self-service type stores?"

The defense attorney then asked whether anyone thought that because K-Mart is a corporation, Keltner's burden should be less. She asked whether anyone was unhappy with K-Mart in any respect; whether any of the panel members knew one another; and whether anyone on the panel had something going on in their life that might interfere with their duties as jurors. She then reminded the jurors that they could not substitute their feelings for evidence. After this she asked: "has anyone thought of any responses to [plaintiff attorney's] questions that you would like to make at this time?" She closed her voir dire by asking again if the panel understood the burden of proof, and whether any one thought that "simply because Mrs. Keltner brought a claim that she is automatically entitled to some money?"

On June 16, 1999, after a three-day trial, the jury returned a verdict for Keltner. On July 12, 1999, K-Mart filed a motion for judgment notwithstanding the verdict, for a new trial or remittitur. Among the reasons K-Mart gave as grounds for its motion was that a juror had failed to disclose during voir dire that four collection suits had been filed against him and his wife between 1980 and 1990,2 and that in 1989 they filed for bankruptcy. K-Mart argued that the following question "unequivocally triggered" the juror's duty to tell the court about his prior collection suits and justifies the trial court's finding of intentional non-disclosure:

Let me ask next if there are any instances where claims have been brought against you. Has anyone claimed you did something wrong that you are responsible for, an injury or something else, and filed a claim or a suit against you?

Juror 650 was issued a subpoena to appear before the court for a hearing on July 23, 1999. At that hearing the juror was questioned extensively about his prior debts, collection suits and bankruptcy. Counsel for K-Mart began her interrogation:

Do you recall being asked the question as to whether or not any lawsuits have ever been filed against you or had ever been filed?

(emphasis added). Plaintiff's attorney objected to the defense attorney paraphrasing the question asked at voir dire. The defense attorney then asked juror # 650 "do you recall the question" and read the question to him. (emphasis added). The juror responded: "I didn't remember at the time there was some claims for debts back in the '80s that I took care of most of them. And when I got later on, then I paid them off and I had to file bankruptcy . . ." The juror was then required to testify about the circumstances surrounding his bankruptcy and each of his collection suits, one by one. After this, counsel for K-Mart attempted to establish that the juror had deliberately sought to conceal this information from the court during voir dire.

Q. . . . you did say you did hear the question; is that correct?

A. Yes, I heard the question, but I didn't -- I don't remember. I don't know if it was current or back many years or what.

Q. And you didn't raise your hand to ask whether or not they were talking about recently or back so many years; is that correct?

A. No, I didn't.

Q. So you were aware of these claims at the time the voir dire was going on?

A. I don't remember them. I just thought you was talking about the last couple of years or something. I didn't know it would be going back 10 years or 5 years or what or more.

Q. But you didn't ask, though?

A. No.

Q. . . . you were aware all the questions that were asked was asked of each and every juror and you were supposed to respond?

A. Yes.

Q. And you did not respond to that question?

A. I didn't remember the lawsuits because after that long a period, I more or less didn't. I did the best I could do to answer.

(emphasis added).

On cross-examination by plaintiff's attorney, the juror said that he did not specifically recall any of the collection suits when asked about claims during voir dire. He also testified that none of the collection suits resulted in a trial. On...

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