Spence v. BNSF Ry. Co., SC 96195

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Paul C. Wilson, Judge
• Citation: 547 S.W.3d 769
• Parties: Sherry SPENCE, Respondent, v. BNSF RAILWAY COMPANY, Appellant.
• Docket Number: No. SC 96195,SC 96195
• Decision Date: 22 May 2018

547 S.W.3d 769

Sherry SPENCE, Respondent,
v.
BNSF RAILWAY COMPANY, Appellant.

No. SC 96195

Supreme Court of Missouri, en banc.

Opinion issued May 22, 2018
Modified on the Court's own motion June 12, 2018.

Booker T. Shaw, Thompson Coburn LLP, St. Louis, Randy P. Scheer, Sanders Warren Russell & Scheer LLP, Springfield, Susan Ford Robertson, The Robertson Law Group LLC, Kansas City, Laurel E. Stevenson, Haden, Cowherd & Bullock LLC, Springfield, for Appellant.

Michael W. Manners, Langdon & Emison, Lexington, Jeff Bauer, Strong–Garner–Bauer PC, Springfield, J. Michael Ponder and Kathleen A. Wolz of Cook, Barkett, Ponder & Wolz LC, Cape Girardeau, for Respondent.

Paul C. Wilson, Judge

BNSF Railway Company ("BNSF") appeals the judgment of the circuit court, entered upon a jury verdict, in favor of Sherry Spence ("Spence") on her wrongful death cause of action for the death of her husband, Scott Spence ("Decedent"). This Court has jurisdiction under article V, section 10 of the Missouri Constitution, and the judgment is affirmed.

Background

Spence sued BNSF for the wrongful death of Decedent, who was killed in 2012 after a BNSF train struck his pickup truck at a railroad crossing. Spence alleged BNSF was negligent for failing to trim the vegetation around the railroad crossing, which prevented Decedent from being able to see the approaching train. Spence also pursued a claim of respondeat superior liability against BNSF, alleging its train crew members were negligent for failing to stop or slow the train because the crew members, from their higher vantage point, should have seen Decedent's pickup truck as he was approaching the railroad crossing. In response, BNSF alleged Decedent was negligent in driving his vehicle onto the railroad crossing as the train was approaching.

547 S.W.3d 772

The case went to trial in April 2015. The jury found in Spence's favor, assessing 15 percent of the fault to BNSF for the conduct of its train crew, 80 percent of the fault to BNSF for its failure to maintain the railroad crossing, and 5 percent of the fault to Decedent. The jury awarded Spence $20 million, which the circuit court reduced to $19 million for the fault of Decedent. After the verdict was rendered, BNSF filed a motion for new trial based on juror nondisclosure as well as other grounds. The circuit court overruled BNSF's motion, and BNSF appeals.

Analysis

On appeal, BNSF asserts the circuit court erred in overruling BNSF's motion for a new trial based upon a juror's intentional nondisclosures. BNSF also claims the circuit court erred in overruling BNSF's motion for a new trial because it should not have submitted (over BNSF's objections) the verdict directors in Instruction Nos. 6 and 7 and the corresponding Verdict Form A. Finally, BNSF claims the circuit court erred in overruling BNSF's motion for a new trial because it should not have submitted (over BNSF's objection) Instruction No. 8 dealing with BNSF's duties and because it should have granted a mistrial during opening statement when Spence's counsel referred to BNSF's removal of certain sight tables from its traffic engineering instructions.

I. Juror Nondisclosure

At the center of BNSF's motion for a new trial is the conduct of Juror Kimberly Cornell ("Juror Cornell"). Before trial, each juror received a juror questionnaire with their name preprinted at the top. On Juror Cornell's questionnaire, however, her name was spelled incorrectly as "Kimberly Ann Carnell ." Juror Cornell did not correct this misspelling at the top of her questionnaire, but plainly wrote "Steven D. Cornell" in the space reserved for the name of her husband and her signature at the bottom of the questionnaire appears to be "Kim Cornell," not "Kim Carnell." On her questionnaire, Juror Cornell answered Questions 14 and 15 in the negative, indicating she had never been a party to a lawsuit and she had never made a claim against another to recover money for physical injuries or damage to property. After filling out her questionnaire, Juror Cornell returned it to the circuit court.

Twelve days before trial, the circuit clerk's office distributed the juror questionnaires, the pool selection report, and a seating chart to both sides. On each of these documents Juror Cornell's last name was misspelled "Carnell." Relying on these documents, BNSF claims it conducted a Case.net search for "Kimberly Carnell" and found no litigation in which she was listed as a party.

When Juror Cornell reported for jury selection, she informed circuit court staff that her name had been misspelled at the top of her questionnaire. Upon learning this, the court's deputy clerk informed counsel for both parties of the correct spelling of Juror Cornell's name. The deputy clerk also made a handwritten correction to Juror Cornell's name on the master list of venirepersons and provided that list to counsel on both sides. The deputy clerk took these measures prior to 8:28 a.m., when the venire was seated and voir dire began.¹

Before counsel began questioning members of the venire, the trial judge explained how important it was for prospective

547 S.W.3d 773

jurors to be truthful and forthcoming. The trial judge then asked specifically whether any member of the venire had been a party to a lawsuit (their "litigation history") and not disclosed that fact on their juror questionnaire. Juror Cornell did not answer in the affirmative even though she had been a party to several lawsuits, including—most notably—a wrongful death lawsuit in which she had been the plaintiff. Later, BNSF's counsel asked whether any member of the venire, or any of their close friends or family members, had been involved in a motor vehicle accident (their "accident history"). Juror Cornell did not answer in the affirmative even though her son had been killed in the accident that gave rise to her wrongful death lawsuit. BNSF repeated this question at various times and in various ways,² but each time Juror Cornell remained silent.

Voir dire concluded at 11:23 a.m., at which time the court took a recess. When court resumed, the trial judge took up the parties' motions to strike for cause and their peremptory challenges, as well as other matters. At 12:35 p.m., the jury—including Juror Cornell—was seated and sworn.³ Eight days later, the jury rendered a verdict in Spence's favor.

In its motion for new trial, BNSF claimed that immediately after trial a BNSF representative overheard Juror Cornell tell Spence she could relate to Spence because she had a son who was killed in a motor vehicle accident.⁴ The representative introduced himself to Juror Cornell, who replied with her full (and correct) name. A Case.net search for "Kimberly Cornell" revealed a number of lawsuits in which Juror Cornell had been a plaintiff or respondent, including her wrongful death action arising out of the death of her son in a motor vehicle accident. Based on this evidence, BNSF claimed Juror Cornell had engaged in intentional misconduct by failing to respond truthfully to questions concerning her litigation history and accident history.

Spence responded that, pursuant to Rule 69.025(e), BNSF had waived any claim for relief based upon juror nondisclosure because it failed to conduct a reasonable investigation (i.e., by searching Case.net for "Kimberly Cornell") and informing the court of Juror Cornell's undisclosed litigation history prior to the jury being seated and sworn. BNSF claimed it had done a Case.net search for "Kimberly Carnell," the name it had been given, and it had no reason to suspect her name was "Kimberly Cornell" until after the verdict was rendered. At an evidentiary hearing, the circuit court received testimony from the deputy clerk who said she advised counsel for both parties orally of the misspelling of Juror Cornell's name and provided

547 S.W.3d 774

them a master list of the venire on which she manually had corrected this misspelling.⁵ The circuit court specifically found this testimony credible and overruled BNSF's motion for new trial. On appeal, BNSF claims this was error requiring this Court to vacate the judgment and remand for a new trial.

"This Court will not disturb the circuit court's ruling on motion for a new trial based on juror nondisclosure unless the trial court abused its discretion." Johnson v. McCullough , 306 S.W.3d 551, 555 (Mo. banc 2010) (citation omitted). "A trial court abuses its discretion if its 'ruling is clearly against the logic of the circumstances then before the court and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.' " Id. (citation omitted). Moreover, any question regarding the proper construction of Rule 69.025 and its reasonable investigation requirement is reviewed de novo because "this Court interprets its rules by applying the same principles used for interpreting statutes." McGuire v. Kenoma, LLC , 447 S.W.3d 659, 662 (Mo. banc 2014) (citation omitted).

Rule 69.025 provides, in full:

(a) Proposed Questions. A party seeking to inquire as to the litigation history of potential jurors shall make a record of the proposed initial questions before voir dire. Failure to follow this

...