SHERRY SPENCE, Plaintiff-Respondent v. BNSF RAILWAY COMPANY
SD34100
| Mo. Ct. App. | Dec 27, 2016Background
- Plaintiff Sherry Spence sued BNSF for wrongful death after a train struck and killed her husband, Scott Spence; jury returned a $19 million verdict for Plaintiff.
- During voir dire, defense counsel asked whether any panelist or close family member had been in a motor vehicle accident; several jurors answered but juror Cornell (Kimberly) remained silent despite her son having died in an auto accident and her having been a plaintiff in wrongful-death litigation.
- After trial, BNSF discovered via Case.net that Juror Cornell had been involved in post-accident litigation and raised juror-nondisclosure claims; the trial court denied all such claims without detailed findings.
- On appeal, BNSF argued (among multiple points) that the trial court erred in denying a new trial based on Juror Cornell’s nondisclosure to the auto-accident question; the appellate court reversed and remanded on that point alone.
- The majority held the auto-accident questions were sufficiently clear, Cornell’s silence was intentional, and intentional nondisclosure presumes prejudice; Plaintiff did not rebut the presumption, so a new trial was required.
- The court rejected the argument that Missouri Court Rule 69.025 (Case.net searches / waiver) cured Defendant’s failure to discover the litigation pretrial because the auto-accident question did not concern litigation history and Rule 69.025 is limited to litigation-history nondisclosures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether voir dire auto-accident question was sufficiently clear to require disclosure | Question ambiguous in context of many railroad/truck-specific questions; juror could have misunderstood or not heard it | Question plainly asked whether anyone or close family had been in a motor vehicle accident; juror had duty to answer truthfully | Question was sufficiently clear; juror had duty to answer and silence was nondisclosure |
| Whether Juror Cornell’s nondisclosure was intentional or inadvertent | No clear argument that nondisclosure was intentional; trial court implicitly found no prejudice | Silence about a son’s fatal auto accident and prior sworn questionnaire denials show intentional nondisclosure | Appellate court concluded nondisclosure was intentional (presumption of prejudice) |
| Whether prejudice must be shown and who bears burden | Plaintiff: presumption of prejudice can be rebutted or no prejudice shown | Defendant: intentional nondisclosure raises a presumption of prejudice that Plaintiff must overcome | Intentional nondisclosure presumes prejudice; Plaintiff did not overcome presumption; reversal required |
| Whether Rule 69.025 (Case.net pretrial search / waiver) bars Defendant’s claim for nondisclosure | Plaintiff: Rule 69.025 waives complaints if parties failed to search Case.net; Case.net search would have shown litigation | Defendant: Issue here is non-litigation topic (auto accidents); Rule 69.025 addresses only litigation-history nondisclosure and does not excuse failure to disclose an accident | Court held Rule 69.025 applies to litigation-history nondisclosure only and does not bar this nondisclosure claim |
Key Cases Cited
- J.T. ex rel. Taylor v. Anbari, 442 S.W.3d 49 (Mo. Ct. App. 2014) (two-step test: threshold clarity of question, then intentionality; intentional nondisclosure presumes prejudice)
- Groves v. Ketcherside, 939 S.W.2d 393 (Mo. Ct. App. 1996) (clear voir dire questions render juror forgetfulness implausible; nondisclosure unreasonable)
- Williams by Wilford v. Barnes Hosp., 736 S.W.2d 33 (Mo. banc 1987) (new trial may be required to preserve right to fair and impartial jury when juror disregards voir dire duties)
- Johnson v. McCullough, 306 S.W.3d 551 (Mo. banc 2010) (discusses reasonable pre-empanelment Case.net searches and admonishes parties to investigate jurors’ litigation history)
- Khoury v. ConAgra Foods, Inc., 368 S.W.3d 189 (Mo. Ct. App. 2012) (Rule 69.025 and Johnson are limited to litigation-history nondisclosure; not a license to rely on post-trial Case.net searches)
- Smotherman v. Cass Regional Medical Center, 499 S.W.3d 709 (Mo. banc 2016) (trial court is in best position to assess juror misconduct impact; findings reviewed for abuse of discretion)