Williams By and Through Wilford v. Barnes Hosp., 68957

• Citation: 736 S.W.2d 33
• Decision Date: 14 July 1987
• Docket Number: No. 68957,68957
• Parties: Keith WILLIAMS, By and Through his next friend, Cheryl WILFORD, and Cheryl Wilford, individually, Plaintiffs-Respondents, v. BARNES HOSPITAL, Defendant-Appellant.
• Court: United States State Supreme Court of Missouri

Page 33

736 S.W.2d 33

Keith WILLIAMS, By and Through his next friend, Cheryl

WILFORD, and Cheryl Wilford, individually, Plaintiffs-Respondents, v. BARNES HOSPITAL, Defendant-Appellant.

No. 68957.

Supreme Court of Missouri,

En Banc.

July 14, 1987.

Rehearing Denied Sept. 15, 1987.

John C. Shepherd, Kenneth W. Bean, St. Louis, for defendant-appellant.

Stephen H. Ringkamp, James E. Hullverson, St. Louis, for plaintiffs-respondents.

ROBERTSON, Judge.

Appellant Barnes Hospital appeals from a $3,000,000 jury verdict in favor of respondent Keith Williams in an action arising from alleged obstetrical medical malpractice. Keith's claim, and the separate claim of his mother, Cheryl Wilford, was brought on the theory that appellant failed to perform a timely caesarean section to deliver Keith. As a result, Keith suffers disabilities allegedly caused by the asphyxia he sustained prior to vaginal delivery when the umbilical cord wrapped around his neck.

Following the jury's verdict, appellant filed a lengthy, alternative motion for judgment notwithstanding the verdict, a new trial, or remittitur. Among its many points, appellant alleged that it was denied its constitutional right to an impartial panel of twelve jurors because one or more of the veniremen failed to respond truthfully to voir dire questions concerning prior claims and litigation. After a hearing, at which appellant offered the testimony of five jurors to support its contention, the trial court denied appellant's motion for a new trial.

On appeal, appellant assigned nine points of error. The Eastern District Court of Appeals, en banc, affirmed the judgment. We granted transfer to address appellant's second point which alleges that the trial court abused its discretion in denying appellant's motion for a new trial because four members ¹ of the jury panel intentionally concealed their involvement in prior litigation. We reverse the judgment of the trial court and remand for a new trial. ²

I.

The voir dire examination of the prospective jurors in this case was comprehensive. The members of the panel were subjected individually and collectively to several hundred questions. In particular, the voir dire focused on whether any of the panel had ever been involved in prior litigation.

Respondent's counsel began the inquiry into prior claims and litigation with the following question:

Do--let me ask this. Is there any member of this panel who has--had a lawsuit or a claim brought against him or her? Have any of you folks ever been sued? I'm not talking about domestic relations.

Other than that. I'm talking about something which would involve an injury to you. Have any of you folks ever had a lawsuit or claim brought against you?

Venirewoman Holloman responded that she had filed suit in a personal injury action. Mrs. Holloman also recalled her attorney's name.

Respondent's counsel continued:

Is there anybody else here who has been sued or had a claim brought against him or her, or as Mrs. Holloway [sic] has indicated, have any of you folks ever brought a suit against anyone?

Venireman Bobo then answered that he was involved in a suit.

Following his questioning of Mr. Bobo, respondent's counsel emphasized to the jury panel the importance of answering questions regarding their prior involvement with lawsuits or claims:

Is there anyone else who has ever had a lawsuit or claim brought against him or her or have any of you folks ever brought a lawsuit or a claim against anyone else? And let me enlarge that--the reason we asked this is because there is nothing worse for either side than getting a verdict and having it set aside because somebody forgot to tell us that they had an automobile accident in Austin, Texas, eight years ago and it can be that silly.

Venireman Boaz responded that he had made a claim which was settled without a lawsuit after his wife had been hit by a car that ran a red light. Venirewoman Price also responded that she had settled an auto accident claim. Another juror disclosed that she had filed two personal injury claims.

Later, during his voir dire examination, appellant's counsel asked a series of questions pertaining to prior litigation and claims:

Now, when he asked the question on claims he sort of put it all together and I'd like to separate it if I can. First let me ask about claims made. That is where you had a claim against another party, whether it be an automobile wreck or whether it be a lawsuit that you fell somewhere, something like that. Now, some of you have already told us about your claims; Workmen's Compensation would be a claim also.

* * *

* * *

Do any of the rest of you have claims that you have asserted on your own behalf that have not been told to us so far today?

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Are there any of you that have other personal injuries that you've made claims against some else for either--either through Workmen's Compensation or automobiles, that kind of thing?

In response, several prospective jurors recounted their answers given to respondent's counsel. In addition, Venireman Boaz repeated that his wife was hit by someone and that his claim was settled without a lawsuit.

Finally, appellant's counsel asked whether any of the prospective jurors had claims brought against them:

Let me ask the other side of the coin. How many of you have been in the position that Barnes Hospital is now in, that someone has asserted a claim against you? Are there any of you that have been defendants in an actual lawsuit? I take it by your silence no one has.

The jury returned its verdict in favor of respondent on a 9-3 vote. After the trial, appellant discovered that five members of the jury potentially failed to disclose their involvement with previous claims and lawsuits. At the hearing on appellant's motion for new trial, appellant established that four jurors failed to apprise the court of their earlier experience as parties to litigation. We are concerned with three of those jurors, Brownridge, Holloman and Marshall, ³ all of whom voted in favor of respondent's verdict.

II.

A.

Initially, respondent argues that appellant failed to preserve the issue of juror misconduct by failing to state with specificity the allegations of misconduct on the part of the jurors in its motion for new trial.

Rule 78.07 provides that "[a]llegations of error occurring or becoming known after final submission to the court or jury shall be specifically set out [in the motion for new trial]." General allegations of error not based upon specific objection or requests made during trial are insufficient to preserve the allegations for review; nor may deficiencies in the motion be supplied from the movant's brief on appeal. Hartley v. Matejka, 585 S.W.2d 240, 242 (Mo.App.1979).

In its motion for new trial, appellant alleged that "Defendant was denied its Constitutional rights to an impartial panel of twelve jurors because one or more of the jurors failed to truthfully respond to questions asked during voir dire concerning prior claims, litigation and involvement with Barnes Hospital." At the hearing on the motion, appellant offered the testimony of four jurors. Although these individuals were not specifically identified in the motion, we find, as did the Court of Appeals, that the allegation of error was sufficiently stated to preserve the matter of juror misconduct for review.

B.

At the cornerstone of our judicial system lies the constitutional right to a fair and impartial jury, composed of twelve qualified jurors. Mo. Const. art. I, sec. 22(a); Beggs v. Universal C.I.T. Credit Corp., 387 S.W.2d 499, 503 (Mo. banc 1965). To this end, "it is the duty of a juror on voir dire examination to fully, fairly and truthfully answer all questions directed to him (and to the panel generally) so that his qualifications may be determined and challenges may be intelligently exercised." Rickenbaugh v. Chicago, Rock Island & Pacific Railroad Co., 446 S.W.2d 623, 626 (Mo.1969).

We recognize both intentional and unintentional nondisclosure of information requested of a potential juror on voir dire. Intentional nondisclosure occurs: 1) where there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and 2) where it develops that the prospective juror actually remembers the experience or that it was of such significance that his purported forgetfulness is unreasonable. Anderson v. Burlington Northern Railroad Co., 651 S.W.2d 176, 178 (Mo.App.1983).

Unintentional nondisclosure exists where, for example, the experience forgotten was insignificant or remote in time, Id. at 180, or where the venireman reasonably misunderstands the question posed, Mantz v. Southwest Freight Lines, 377 S.W.2d 414, 418 (Mo.1964); Begley v. Adaber Realty & Investment Co., 358 S.W.2d 785, 792-93 (Mo.1962); Hornberger v. St. Louis Public Service Co., 353 S.W.2d 635, 642 (Mo.1962); Barb v. Farmers Ins. Exchange, 281 S.W.2d 297, 302 (Mo.1955); Blond v. Overesch, 527 S.W.2d 663, 669 (Mo.App.1975); Lindsey v. P.J. Hamill Transfer Co., 404 S.W.2d 397, 399 (Mo.App.1966).

The determination of whether concealment is intentional or unintentional is left to the sound discretion of the trial court. Its ruling is disturbed on appeal only upon a showing of abuse of that discretion. Triplett v. St. Louis Public Service Co., 343 S.W.2d 670, 673 (Mo.App.1961).

Whether intentional or unintentional, the concealment of material information on voir dire by a prospective juror deprives both litigants of the opportunity to exercise peremptive challenges or challenges for cause in an intelligent and meaningful manner. Both parties are entitled to unbiased jurors whose experiences, even innocently and reasonably undisclosed, will not prejudice the resolution of the cause.

In some contexts, the opportunity for error is so great that a party's right to a fair and impartial jury must be presumed compromised. If a juror intentionally withholds...