Bair v. Faust
2013 Mo. LEXIS 41
Mo.2013Background
- Plaintiff Shannon Bair was absent during voir dire and at the start of trial; her attorney had indicated she would not attend but could attend with more time.
- The trial court excluded Plaintiff from the courtroom and allowed Defendant to argue an adverse inference based on her absence.
- Defense argued Plaintiff’s absence would unfairly prejudice them; the court allowed an adverse inference and instructed on an empty chair.
- Plaintiff’s husband testified to reasons for her absence; hearsay concerns were raised and some proposed testimony was excluded.
- During trial, defense repeatedly referenced the absence in opening and closing arguments, asserting the jury could draw an adverse inference.
- Verdict awarded Plaintiff $60,000 with 85% fault attributed to Plaintiff; post-trial motions for new trial were denied and Plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the trial court’s exclusion combined with an adverse inference error? | Exclusion plus adverse inference violated fairness. | Court may control courtroom and allow adverse inference. | Yes; combination was an abuse of discretion. |
| Does Pasternak govern adverse inferences by a party who does not testify? | Pasternak controls; party availability not needed for adverse inference against a testifying party. | Calvin and Barnes apply; exclusion taints fairness and allows adverse inference. | Pasternak governs; Calvin/Barnes do not control here. |
| Can a trial court’s inherent authority justify excluding a party from trial when later allowing adverse inference? | Even with inherent authority, exclusion plus adverse inference is unfair. | Inherent authority to maintain order justifies control and adverse inference. | Court’s inherent authority does not validate the combined exclusion and inference. |
| Did the trial court preserve fundamental fairness given Plaintiff’s voluntary choices about attendance and testimony? | Plaintiff chose not to attend or testify; arguments still must be fair. | Adverse inference is proper given Plaintiff’s choices and defense was prejudiced. | Fairness was not preserved; error to allow adverse inference. |
| Should a new trial be granted based on the court’s rulings concerning absence and adverse inference? | New trial warranted due to improper exclusion and reasoning for inference. | No abuse of discretion; conclusions were reasonable under circumstances. | New trial was warranted; judgment reversed and remanded. |
Key Cases Cited
- Pasternak v. Mashak, 428 S.W.2d 565 (Mo. 1967) (adverse inference permissible when party testifies or fails to testify)
- Calvin v. Jewish Hosp. of St. Louis, 746 S.W.2d 602 (Mo.App.E.D.1988) (abuse when exclusion and adverse inference used against defendant)
- Barnes v. Kissell, 861 S.W.2d 614 (Mo.App.W.D.1993) (exclusion with adverse inference reversed for unfair advantage)
- Hill v. Boles, 58 S.W.2d 141 (Mo. banc 1979) (availability of witness governs adverse inference rule in some contexts)
- Blessing v. Blessing, 539 S.W.2d 699 (Mo.App.1975) (court's control of courtroom to maintain dignity and order)
- Spirtas Co. v. Div. of Design and Constr., 131 S.W.3d 411 (Mo.App.2004) (trial court broad discretion over admission and exclusions)