Rupard v. Prica
2013 Mo. App. LEXIS 932
| Mo. Ct. App. | 2013Background
- Plaintiffs Betty J. Rupard and her minor child sued Dr. George Prica, Jr. and Columbia Family Medical Group for medical negligence after John Rupard’s death; a jury trial resulted in a defense verdict.
- During voir dire several venirepersons were struck; jurors (including Juror 40) were sworn and preemptory challenges were exercised; plaintiffs did not use a peremptory strike on Juror 40 nor move to strike her at that time.
- Plaintiffs conducted internet research over the weekend after empanelment and before opening statements and presented the trial court with a Facebook item (an allegedly anti-judicial song comment) and an Accurint report (alleged address inconsistencies) as evidence of nondisclosure/bias.
- Plaintiffs moved to remove Juror 40 before opening statements; the trial court held a hearing, declined to admit the internet materials into evidence, found the motion untimely and unsupported, and denied removal.
- Plaintiffs declined to question Juror 40 when offered the opportunity; trial proceeded, jury returned verdict for defendants, and plaintiffs raised the juror-issue in a post-trial motion and on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by failing to strike Juror 40 for alleged nondisclosure/bias discovered after jurors were sworn | Jurors’ internet material (Facebook comment and Accurint report) showed intentional nondisclosure and probable bias, requiring removal | Evidence was hearsay/unsupported, plaintiffs seek another preemptory strike, and plaintiffs declined to question the juror | Trial court did not abuse discretion; denial affirmed because plaintiffs failed to present admissible evidence and did not preserve foundation for removal |
| Whether plaintiffs’ post-empanelment challenge was timely or waived | Research after empanelment was timely brought before opening statements and should be considered | Trial court found motion untimely; defendants argue plaintiffs waived by not investigating earlier | Appellate court rejected timeliness ruling as incorrect but held no reversible error because plaintiffs had opportunity to present proof and record lacked supporting evidence |
| Whether trial court was required to sua sponte examine Juror 40 after plaintiffs raised concerns | Court had an "incumbent duty" to question juror or replace her | Trial court has discretion; plaintiffs must request questioning or offer proof; plaintiffs refused to question juror | Court held plaintiffs bore responsibility to request examination or offer proof; no duty to act sua sponte; denying relief affirmed |
Key Cases Cited
- Khoury v. ConAgra Foods, Inc., 368 S.W.3d 189 (Mo. App. W.D. 2012) (trial court may remove juror based on internet evidence suggesting nondisclosure; court must assess juror fairness)
- In re B.M.O., 310 S.W.3d 281 (Mo. App. S.D. 2010) (exhibits excluded by trial court are part of the appellate record)
- In re D.D.C., 351 S.W.3d 722 (Mo. App. W.D. 2011) (where record lacks evidence to establish appellant’s claim, no trial error found)
- Pollard v. Whitener, 965 S.W.2d 281 (Mo. App. W.D. 1998) (party seeking action by court must specify desired relief)
- State v. Dixon, 717 S.W.2d 847 (Mo. banc 1986) (trial court not required to frame voir dire questions for counsel)
- Johnson v. McCullough, 306 S.W.3d 551 (Mo. banc 2010) (parties should investigate juror litigation history pretrial; distinguished on facts)