McBurney v. Cameron
| Decision Date | 22 January 2008 |
| Docket Number | No. WD 65679.,WD 65679. |
| Citation | 248 S.W.3d 36 |
| Parties | William L. McBURNEY, et al., Appellants, v. Jeffrey C. CAMERON, et al., Respondents. |
| Court | Missouri Court of Appeals |
David H. Dunlap, Kansas City, MO, for Appellant.
Norman Irwin Reichel, Jr., Overland Park, KS, and David Thurman Greis, Kansas City, MO, for Respondent.
Before VICTOR C. HOWARD, P.J., HAROLD L. LOWENSTEIN, PAUL M. SPINDEN, JAMES M. SMART, JR., JOSEPH M. ELLIS, THOMAS H. NEWTON, and LISA WHITE HARDWICK, JJ.
The husband and children of Doris McBurney (deceased) appeal the judgment of the Circuit Court of Jackson County in favor of the defendants, Dr. Jeffrey Cameron, Karen Gage, and Kansas City General and Vascular Surgery, P.C., on the appellants' wrongful death medical malpractice claim filed pursuant to section 537.080.1 The judgment is affirmed.
On July 30, 2001, Mrs. McBurney, then age 77, entered Research Hospital in Kansas City, Missouri, for surgery to repair a small ventral hernia near her navel. Dr. Cameron, assisted by Gage, performed the laparoscopic surgery, which lasted approximately one hour. Mrs. McBurney was kept overnight in the hospital for observation and was scheduled to be released the following day, July 31, 2001. However, due to postoperative complications, she was not released.
By August 2, 2001, the third day following the surgery, Mrs. McBurney's abdomen was swollen, and she had developed adult respiratory distress syndrome, which is a serious reaction of the lung to some form of injury. Due to her deteriorating condition, Dr. Cameron, on August 7, eight days after the surgery, reopened the surgical site to inspect for any infection. He found an abscess in a subphrenic cavity, indicating the presence of an infectious process, and a one-centimeter perforation of the small bowel. Dr. Cameron repaired the perforation and cleansed the abdomen. The next day Mrs. McBurney passed away.
Thereafter, the appellants filed a petition against the respondents for the wrongful death of Mrs. McBurney, naming Cameron, Gage, and Kansas City General & Vascular Surgery, P.C., as defendants. Kansas City General & Vascular Surgery, P.C., was named as a defendant based on a theory of vicarious liability. In their petition, the appellants alleged medical negligence as the cause of Mrs. McBurney's death. They alleged that during the first surgery, Cameron perforated Mrs. McBurney's small bowel, allowing postoperative leakage into her abdomen, resulting in conditions that led to her death. They also alleged that the respondents were negligent in that they failed to inspect and repair the perforation in a timely and reasonable fashion that would have saved her life.
In February 2005, the appellants' case proceeded to a jury trial. During voir dire, the appellants' counsel asked, among other things, about prior involvement in personal injury litigation by any venire member (or any family member). A venireperson named Marchant disclosed that his brothers had been involved in personal injury litigation. With regard to a later question about whether anyone had "been a defendant in a claim or lawsuit," Marchant did not respond. Marchant sat on the jury and served as the foreperson.
After a jury verdict for the defendants, the appellants checked the civil litigation records and found that Merchant, along with his parents, had been sued by three different business suppliers. Appellants filed a motion for new trial alleging, inter alia, intentional nondisclosure by Mr. Marchant, for failing to disclose, when asked during voir dire about previous litigation experience, that he had been sued in connection with these debts.
At a hearing on the motion for new trial, Mr. Marchant, under questioning by appellants' trial counsel, stated that Marchant's Decorating Services, which was owned by his parents and in which he also apparently had some ownership interest, had been sued because the business was financially unable to pay its suppliers. He acknowledged that he also was personally named as a defendant and served with process. Marchant testified that he did not mention this matter during voir dire because he did not think of it in connection with the questions asked by counsel. Marchant did not indicate that the suits were unjustified.
The trial court, after stating on the record several times that it believed there was no intentional nondisclosure because it could reasonably be understood that the questions were asking only about personal injury claims and lawsuits, denied the appellants' motion for new trial.
In their first point, the appellants claim that the trial court erred in denying their motion for new trial, because the record of the motion hearing established intentional nondisclosure of prior litigation experience by Mr. Marchant. They point out that counsel's question during voir dire solicited information about whether or not any of the venire members had ever been "a defendant in a claim or lawsuit." Appellants contend that Marchant was guilty of misconduct for nondisclosure of a material matter.
The parties to a lawsuit have a right to a fair and impartial jury composed of twelve qualified jurors. Nadolski v. Ahmed, 142 S.W.3d 755, 764 (Mo.App. 2004). During voir dire, each prospective juror is under a duty to "fully, fairly and truthfully answer each question asked so that determinations may be made about each juror's qualifications and counsel may make informed challenges." Id. If there is an intentional nondisclosure of a material matter, prejudice will be presumed, resulting in the necessity of a new trial. Id.
Initially, we comment on the issue of the timeliness of the appellants' efforts in researching the litigation history of those chosen to serve on the jury. Because conducting a civil jury trial is extremely demanding, we do not wish to add another burden to counsel's checklist; but timeliness in a juror challenge is important in view of the expense and burden to parties and taxpayers of conducting another jury trial. If the issue is raised before submission of the case, there remains time to remove a challenged juror and to replace that juror with an alternate.
The common delay in checking records generally seems to be based on counsel's assumptions 1) that the voir dire questions were all clear in context; and 2) that all the jurors tend to be very open and forthright, happy to inform counsel of every matter remotely related to a question, even if the matter is personally embarrassing to the juror. Experience continues to confirm that such assumptions are unrealistic.
It would be realistic for an attorney to send a member of his or her clerical staff to any computer, at any time of day or night, to research the civil litigation records before submission of the case, rather than waiting until after an adverse verdict to do so. The appellants in this case had more than a week after the selection of the jury and before submission of the case to raise this issue, but did not do so.
Another result of the delay, besides sometimes having to conduct a new trial, can be collateral damage to innocent jurors who have already donated a significant amount of time to the matter. In this case, another juror (besides Marchant) was subpoenaed to appear at the motion hearing — an unnecessary disruption for her, as it turned out, because that juror was merely a victim of name confusion. She had not been sued; her name was identical to that of someone who had been sued. A timely raising of the issue of prior litigation would have timely resolved the issue not only as to Marchant, but would also have saved her from a compelled appearance at a post-trial hearing.
The issue of timeliness was raised in Brines v. Cibis, 882 S.W.2d 138 (Mo. banc 1994). In that case, plaintiffs appealed an adverse verdict on the basis of one juror's failure to disclose on voir dire that he had been sued several times in collection cases. Id. at 139. The defendants there argued that the claim was untimely, amounting to waiver, because the plaintiff could have researched the jurors' experience, through the use of "due diligence," well before the jury began its deliberations. Id. at 140. This was the first time that the issue of timeliness had been raised with regard to a search of juror litigation histories. The Court, at that time, declined to adopt defendant's argument that an issue about litigation history must be raised before submission. Id. However, the issue may not necessarily be settled forever in view of the technological advances in the thirteen years since Brines.
The Missouri court system now has an automated case record service, CaseNet, by which civil litigation history can be readily accessed by any computer at any time. This was not true at the time the Court considered the issue in Brines. At some point, counsel (or perhaps a court) will again raise the issue of timeliness and waiver, at least with regard to cases that extend beyond a short time. We encourage counsel to make such challenges before submission of the case whenever practicable.
The issue of timeliness has not been raised in this case. We will move to the merits of the appeal, but we commend consideration of this matter to the attention of counsel trying future cases.
While a juror has a duty to respond truthfully, the lawyers have a duty to frame their questions in a way that makes clear what information is being sought. Ambiguity in the phrasing of questions cannot create a unilateral option to demand a new trial based on nondisclosure. Thus, intentional nondisclosure can be found only if a clear question is asked on voir dire. Wingate By Carlisle v. Lester E. Cox Med. Ctr., 853 S.W.2d 912, 916 (Mo. banc 1993); Bell v. Sabates,...
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