Pollard v. Whitener, WD

Decision Date10 February 1998
Docket NumberNo. WD,WD
PartiesLarry POLLARD, surviving husband of Judy Pollard, deceased and James Kissner, surviving child of Judy Pollard, Appellants, v. Don R. WHITENER, M.D., Respondent. 52644.
CourtMissouri Court of Appeals

Lynn R. Johnson, Overland Park, KS., for Appellants.

Raymond C. Lewis, Jr., Columbia, for Respondent.

HANNA, Judge.

The decedent's husband, Larry Pollard, and her son, James Kissner, brought this action against defendants, Drs. Don R. Whitener and Curt Vogel, alleging that their negligent medical treatment caused Mrs. Judy Pollard's death. Mrs. Pollard underwent hernia repair surgery at Boone Hospital Center in Columbia under Dr. Vogel's care. Pulmonary complications caused Dr. Vogel to call in Dr. Whitener, a pulmonologist. Mrs. Pollard developed respiratory failure and died within a few days. Plaintiffs charged that the defendant's medical care fell below the standard required. Before submission, the plaintiffs dismissed their claim with prejudice against Dr. Vogel.

The jury returned a $70,000 verdict in favor of the plaintiffs. Judgment was entered accordingly, and the plaintiffs' post-judgment motion was overruled. On appeal, plaintiffs' single issue is whether the trial court abused its discretion by curtailing the length of the plaintiffs' voir dire examination.

The facts relating to the voir dire examination commence with the pre-trial conference, held three weeks before the trial date, when the trial court advised the attorneys, among other matters discussed, that jury information forms would be available the day before trial. During the discussion about the length of the trial, the judge told the parties that she expected to commence the evidence on the afternoon of the first day of trial. The court's written pre-trial order confirmed that "plaintiffs indicate that they will be ready to proceed with the presentation of evidence on the opening day of trial when the jury selection is completed."

On the morning of trial, the jury panel was sworn at approximately 9:30 A.M. The voir dire examination commenced with questioning by the trial court about the panel members' relationship with the parties, the lawyers and their associates, their knowledge of the facts of the case, hardships created by jury service, and other questions of a general nature. The court's examination continued for approximately one hour. Following a recess, when strikes for cause were made, the plaintiffs' attorney took over the examination which continued for a little over one hour. The court recessed for lunch at 12:10 P.M., when the judge told the attorneys that she wanted voir dire to be finished "as close as possible" to 2:30 P.M. She remarked that there were "25 jurors left over from [another] case," which were returning at that time. She noted that defense counsel had not asked any questions and that the "plaintiffs' counsel has had about a little over an hour at this point." Plaintiffs' counsel replied: "I've got quite a bit more, your Honor." The court responded:

THE COURT: Well, you need to expedite it and move along so that we'll--I'm not sure that we have a jury out of this panel yet. And I mean they haven't--all the questions haven't been asked obviously. And I do not want people hanging around the courthouse waiting for voir dire. So, I would ask that you expedite the matter.

Counsel said he would go as rapidly as he could. When court reconvened after the noon recess, the following dialogue took place:

THE COURT: Just so that we will know, ground rules, Plaintiffs will conclude their voir dire in about a half an hour. And then Defense will each be given an opportunity to do the voir dire.

MR. JOHNSON [Plaintiffs' Attorney]: Your Honor, I wouldn't be able to finish my voir dire in half an hour.

THE COURT: Well, you will need to because we're going to conclude that and allow the Defendants to proceed at that time.

MR. JOHNSON: Your Honor, I would like to submit the questions that I would want to ask at some point that I'm not going to be allowed to ask because I think I am going to be deprived of a fair trial if I am not allowed to do complete and full voir dire for my client. So at some point, if you cut me off, I would like to have the opportunity to present to you all of the questions which I'm going to be able to ask so they can be in the record.

THE COURT: You can make a record.

Plaintiffs' counsel continued his questioning of the jury. He stopped questioning sua sponte and stated MR. JOHNSON: Your Honor, as you know, I do have other questions, but I'll just submit those to you later. I'm not really concluded, but I am concluding because of the time constraint.

The trial court then turned the voir dire questioning over to defense counsel who continued for approximately forty-five minutes. The trial court concluded voir dire with the question as to whether any prospective juror, after reflection, wished to modify or change any answer previously given. Two members of the venire responded.

The court recessed and the jury panel left the courtroom. The judge asked the plaintiffs if they had any challenges for cause. Plaintiffs' attorney answered:

MR. JOHNSON: Yes. Before we do that, I'd like to make our record, please.

THE COURT: You may mark whatever questions you have and I will show those as those are the questions you would have asked, had you been given more time.

MR. JOHNSON: What we would like to do would be to prepare a pleading and have those attached as an exhibit and provide it to the Court tomorrow.

THE COURT: You may do that. Are there challenges for cause then?

MR. JOHNSON: Yes, your Honor. May I have a few moments to consult with my co-counsel?

THE COURT: Sure ... Do you have your strikes for cause? And if you do them in numerical order, it would be helpful.

MR. JOHNSON: First, for the record, Plaintiff has not been given an opportunity to full--full opportunity to voir dire this panel, and as such the Plaintiffs are not in a position to appropriately exercise their challenges for cause and have been hampered in their ability to determine which of these people should be challenged for cause.

We will challenge for cause, but we do not want that to be seen as any waiver of what we believe to be a very serious infringement on the right of these Plaintiffs to full and fair voir dire, which Missouri courts have held on a number of occasions must be done in order to fully develop information to select a qualified panel. We don't believe that that has been done, and don't believe that there is going to be a fair trial because of that.

Ten of the plaintiffs' thirteen challenges for cause, were sustained. Plaintiffs' counsel then made the following comments.

MR. JOHNSON: Finally, your Honor, we have not had the opportunity to develop the information necessary to challenge all of those who raised their hands with regard to the question concerning their opinions about medical malpractice litigation, personal injury, and product and other types of litigation in general; those who felt there were too many frivolous suits, those who felt there should be a cap on recoveries. We did not have the opportunity to make inquiry of all of those folks, and as a result, I'm sure there are some of them that should be stricken or that I should have good cause to strike that I simply do not have the information before me to do so.

Although no useful purpose is served by filing the unasked questions the next day, as plaintiffs' counsel told the court he would do, they were not filed as announced. It was not until the plaintiffs filed their motion for new trial that the questions were supplied to the court. Attached to the motion for new trial were 42 pages of mostly single-spaced, typewritten and handwritten notes covering the jury selection process. This unabridged listing has been shortened, on appeal, to 10 questions on damages which plaintiffs tell us are to be found in the 42 pages that were attached to the motion for new trial.


The primary issue presented by the parties is whether the trial court abused its discretion by limiting the plaintiffs' voir dire examination. The plaintiffs claim, on appeal, that the limitation prevented them from making an adequate inquiry on the subject of damages, which, in turn, denied them a meaningful exercise of their challenges. The plaintiffs' complaint focuses on the 30-minute warning given after the noon recess, arguing that the court's action was not prompted by a motion from the defendant, nor resulted from improper conduct by plaintiffs' counsel. The defendant argues that the court did not abuse its discretion and further maintains that the record below was insufficient to inform the trial court of the claimed error.

The initial question presented by the plaintiffs is whether the trial court may limit voir dire examination at the outset of the trial or while voir dire is taking place. Although we do not regard the record as having been adequately preserved, we have addressed this issue because of its importance. We find that there was no per se abuse of the court's discretion in limiting the plaintiffs' overall examination to approximately 1 3/4 hours, or to "about a half an hour" following the noon recess.

Purpose of voir dire

The essential purpose of voir dire is to provide for the selection of a fair and impartial jury through questions which permit the intelligent development of facts which may form the basis of challenges for cause, and to learn such facts as might be useful in intelligently executing peremptory challenges. See State v. Skelton, 851 S.W.2d 33, 35 (Mo.App.1993). It is designed to insure that the parties have fair and impartial individuals serving as jurors. See State ex rel. Missouri Highway & Transp. Comm'n v. Buys, 909 S.W.2d 735, 737 (Mo.App.1995).

Control of voir dire

The ...

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