Wingate by Carlisle v. Lester E. Cox Medical Center

• Decision Date: 25 May 1993
• Docket Number: No. 75376,75376
• Parties: Amy Jo WINGATE, by her Guardian and Conservator, Margaret CARLISLE, Appellant, v. LESTER E. COX MEDICAL CENTER, Respondent.
• Court: Missouri Supreme Court

Page 912

853 S.W.2d 912

Amy Jo WINGATE, by her Guardian and Conservator, Margaret CARLISLE, Appellant, v. LESTER E. COX MEDICAL CENTER, Respondent.

No. 75376.

Supreme Court of Missouri En Banc.

May 25, 1993.

John Woodell, Robert L. Bruer, Springfield, for appellant.

Michael J. Patton, Donald R. Duncan, Springfield, for respondent.

BENTON, Judge.

Amy Jo Wingate sued Lester E. Cox Medical Center for negligently treating her after an automobile accident. The jury--after less than two hours of deliberation--returned a defendant's verdict by a 9-3 vote. Wingate appealed to the Court of Appeals, Southern District, and this Court granted transfer. Affirmed.

Wingate asserts as trial errors: (1) not granting a new trial because a juror failed to disclose two previous lawsuits against him; (2) not granting a new trial because the juror also failed to disclose longstanding bias against lawsuits and the people who bring them; (3) refusing to admit evidence on hospital procedure; and (4) failing to admit expert testimony.

I.

On October 6, 1987, Wingate was injured in an automobile accident near Springfield, Missouri. The driver, two other passengers and Wingate were riding in a car that left the road, went down an embankment, overturned, and hit a telephone pole.

When an ambulance arrived, a paramedic observed the other three people on the ground, and Wingate still in the car. Approaching Wingate, he heard "gargling respirations" indicating labored breathing. Determining that Wingate was the most severely injured of the four, he treated her first. An emergency medical technician assisted.

Fearing a cervical spinal injury, the paramedic secured her head. While assessing her breathing, the paramedic slid a board into the overturned car and under her body. While on the board, she was pulled out of the auto. The paramedic continued to hear the gargling noise indicating that fluid still obstructed her airway. He suctioned Wingate's throat to remove built-up fluid and intubated her (inserted a tube into the mouth to ease breathing). He again suctioned the fluid. Upon hearing the rescue helicopter, he left Wingate with the emergency medical technician and went to treat the other victims.

When the helicopter arrived, a flight nurse--a Cox Medical Center employee--took charge of Wingate's care. The nurse, in order to determine if the breathing tube were properly placed, listened to Wingate's "lung sounds" with a stethoscope and wrote on a chart "breath sounds equal." She then listened to the "belly or the epigastrium" with the stethoscope, observing Wingate's chest rising and falling. The ambulance took Wingate to the helicopter which had landed about one-half mile away. Wingate was loaded on the helicopter and flown to Cox South Hospital. The nurse continued to monitor Wingate's airway throughout the flight until she entered the emergency room.

A respiratory therapist and a physician then discovered that the breathing tube was improperly positioned. The tube was in her esophagus (food passageway) rather than her trachea (air passageway). The physician re-intubated Wingate and began supplying her with 100% oxygen. Based on tests to determine the amount of oxygen in the blood, the physician concluded that Wingate was hypotoxic (oxygen deficient).

Wingate was in a coma for about three months before she slowly began to awaken. She is severely brain damaged, and cannot speak, swallow, nor initiate any movement.

II.

Wingate claims she should receive a new trial because a juror failed to disclose that he had been sued on two previous occasions. During the sworn voir dire examination of the venire, no party asked any question about previous lawsuits. Traditionally, failing to ask a question on voir dire waives the right to challenge the juror on any grounds not asked. State v. Walton, 796 S.W.2d 374, 379 (Mo. banc 1990).

Before trial, Wingate's attorney prepared a questionnaire for all prospective jurors, and had it approved by the trial judge and Cox's attorney. One question was:

Have you ever been sued by anyone? ( ) Yes ( ) No If so, please explain:

The juror checked the "No" box and returned the questionnaire to the court. In fact, he had been sued twice in 1971. Both attorneys and the judge received a copy of the questionnaire. During the day-and-a-half voir dire, both attorneys obliquely referred to the questionnaire about twelve times. The venire was not asked to affirm its answers to the questionnaire. Unlike State v. Lumsden, 589 S.W.2d 226, 229 (Mo. banc 1979), the judge did not bar questions on issues in the questionnaire.

The issue is whether Wingate's attorney justifiably relied on the answer in the questionnaire, and was thus excused from asking voir dire questions about previous lawsuits. This Court has long held that an attorney may not rely on unauthorized court customs during jury selection. Allen v. Chicago, R.I. & P. Ry. Co., 327 Mo. 526, 37 S.W.2d 607, 609 (1931); see also Lyman Field, Voir Dire Examination--A Neglected Art, 33 UMKC L.Rev. 171, 175 (1965) (interpreting Allen ). In Allen, by court custom, a judge checked the statutory qualifications of all potential jurors before seating them for voir dire. Two unqualified jurors (they could not write English) voted to return a verdict for the plaintiff. The defense attorney requested a new trial because the jurors were unqualified, and the attorney relied on court custom to weed out statutorily unqualified jurors. Following Knight v. Kansas City, 119 S.W. 990 (Mo.App.1909), this Court concluded that attorneys were obligated to examine the qualifications of the jurors and could not rely on court custom:

As defendants saw fit to rely on this unauthorized custom and refrain from examining the jurors as to their qualifications and challenging disqualified persons for cause, it is too late after verdict to complain of disqualification of jurors, in face of the positive mandate of the statute that no exception to a juror shall be allowed after the jury is sworn. ¹

Allen, 37 S.W.2d at 609.

Wingate, however, argues that the questionnaire was not an unauthorized custom but rather legislatively mandated under § 494.415 ². The issue then becomes whether Wingate's questionnaire qualifies as a § 494.415 questionnaire. The standard is whether the questionnaire "substantially complied" with the statute.

The legislature has seen fit to prescribe the manner of selecting juries. The officers charged with this duty must at least substantially comply with the procedure prescribed.

State v. McGoldrick, 361 Mo. 737, 236 S.W.2d 306, 308 (1951); see also Sullivan v. Kansas City Public Service Co., 363 Mo. 68, 248 S.W.2d 605, 607 (1952); State v. Gresham, 637 S.W.2d 20, 25 (Mo. banc 1982); State v. Sumowski, 794 S.W.2d 643, 647 (Mo. banc 1990).

In this case, the questionnaire sent to the jurors fails to comply substantially with § 494.415. It was not approved by the circuit court en banc for use in all cases, but by a single judge for use in a single case. It did not contain instructions that it be returned within ten days. It did not require the juror to declare that the responses are true to the best of his knowledge; it only requested the juror to answer "as completely and honestly as possible". It did not inquire into automatic disqualifications. § 494.415.1(3). A proper juror qualification form shall elicit information about automatic disqualifications. ³ In this case, of the 14 questions posed to the jurors, three (at most) even concern juror qualification.

The trial court committed no error in denying Wingate a new trial based on a questionnaire that fails to comply substantially with the statutory requirements of § 494.415. ⁴

III.

After the trial, Wingate's attorney visited the juror's home to inquire about the trial. Three days later, Wingate's trial consultant interviewed the juror. Two days after that, the juror answered more questions and gave a sworn statement at the attorney's office. The juror voluntarily participated in all these interviews. The attorney also deposed the three jurors not joining the verdict, and the three alternate jurors. Based on this information, the attorney filed a new trial motion on the basis that the juror did not disclose, during voir dire, a longstanding bias against lawsuits and the people who bring them. The trial court held a post-trial hearing and denied the motion. Wingate claims this ruling was erroneous.

The first issue is the scope of evidence that may be used to prove the juror's bias. At the post-trial hearing, the court admitted: 1) depositions of the three alternate jurors and the three jurors not joining the verdict; 2) testimony from the trial consultant; and 3) testimony from the allegedly biased juror.

It is a "well-founded and long-established rule, based on sound public policy, ... that the affidavit or testimony of a juror is inadmissible and is not to be received in evidence for the purpose of impeaching the verdict of a jury." Smugala v. Campana, 404 S.W.2d 713, 717 (Mo.1966). Alternate jurors are likewise precluded from testifying in a manner that impeaches a verdict. See State v. Ferguson, 353 Mo. 46, 182 S.W.2d 38, 45 (1944). The rule extends to juror conduct either inside or outside the jury room. McDaniel v. Lovelace, 439 S.W.2d 906, 909 (Mo.1969). The depositions included comments made by the allegedly biased juror during the trial's recesses and deliberations.

Wingate argues that the depositions fall within the narrow exception provided by Flat River v. Edgar, 412 S.W.2d 537 (Mo.App.1967), which admitted a juror's deposition that other jurors refused to participate in deliberations on religious grounds, and were thus ineligible to serve. No court has approvingly cited Flat River. State v. Campbell, 433 S.W.2d 606, 618 (Mo.App.1968); Roach v. Consolidated Forwarding Co., 665 S.W.2d 675, 679 (Mo.App.1984). Five years after Flat River, this Court summarily refused juror testimony that two...