547 S.W.3d 769
Mo.2018Background
- In 2012 a BNSF train struck and killed Scott Spence. His widow, Sherry Spence, sued BNSF for wrongful death asserting (a) BNSF’s failure to trim vegetation at the crossing (inadequate sight lines) and (b) respondeat superior for the train crew’s failure to slow or stop. BNSF alleged comparative fault by Decedent.
- Jury awarded $20 million, apportioned fault 80% to BNSF for crossing maintenance, 15% to BNSF for crew conduct, and 5% to Decedent; judgment reduced to $19 million for Decedent’s fault. BNSF moved for a new trial on multiple grounds; the trial court denied the motion.
- Central dispute: Juror Kimberly Cornell failed to disclose (on questionnaire and during voir dire) prior litigation and that her son had been killed in an automobile accident; her name was initially misspelled in juror materials as “Carnell.” BNSF later discovered her litigation history after verdict and sought a new trial for juror nondisclosure.
- The trial court found the deputy clerk credibly testified she orally informed counsel of the correct spelling and provided a corrected venire list more than four hours before the jury was sworn; the court concluded BNSF waived its objection by not conducting a Case.net search using the correct name before the jury was sworn under Rule 69.025(e).
- Other contested trial rulings on appeal: (1) submission of two verdict directors (sight-distance claim and respondeat-superior crew claim) and a verdict form allocating separate percentages for each theory; (2) submission of Instruction No. 8 (duty to slow/stop for an imminent collision); and (3) denial of a mistrial after plaintiff’s counsel referred in opening to BNSF’s removal of AASHTO sight tables from its engineering instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror nondisclosure (Rule 69.025) | BNSF waived by failing to search Case.net after being told the correct name and failing to alert court before jury sworn; nondisclosure would have been discovered by prompt search | Juror’s failure to disclose accident history is outside Rule 69.025 (which governs litigation-history nondisclosures); BNSF had no reasonable opportunity to learn correct name before verdict | Court: BNSF waived post-trial relief under Rule 69.025(e) because it had opportunity (corrected name given >4 hours before swearing) to conduct Case.net search; thus no new trial for juror nondisclosure. |
| Verdict directors & verdict form (MAI procedure) | Single MAI 20.02 disjunctive verdict director should have been used for two negligence theories | Two separate verdict directors and separate lines on verdict form were proper where plaintiff submitted both direct (employer) negligence and respondeat superior theories; MAI Comment B supports separate allocation | Court: Affirmed use of separate verdict directors and separate allocation lines per MAI Comment B; no reversible instructional error. |
| Instruction No. 8 (duty to slow/stop) | Instruction was erroneous/abstract and redundant with other instructions | Instruction was proper; alternately, BNSF cannot complain because similar language appeared in its own tendered instructions | Court: Did not reach Rule 70.02(b) error because any alleged defect was common to BNSF's own requested instructions; no reversible error. |
| Opening statement reference to AASHTO sight tables; mistrial request | Reference warranted mistrial because claim about sight tables had been withdrawn and BNSF was denied leave for an extra expert | Plaintiff had good-faith basis to reference sight tables; plaintiff’s experts later testified on these topics without objection; opening statement was within latitude | Court: Denial of mistrial was not an abuse of discretion; counsel’s opening was a good-faith statement and evidence later admitted supported it. |
Key Cases Cited
- Johnson v. McCullough, 306 S.W.3d 551 (Mo. banc 2010) (supports reasonable-investigation standard and caution against sandbagging juror investigations)
- McGuire v. Kenoma, LLC, 447 S.W.3d 659 (Mo. banc 2014) (rules of court interpreted like statutes; de novo review of rule construction)
- McHaffie v. Bunch, 891 S.W.2d 822 (Mo. banc 1995) (limits on submitting imputed liability theories once employer admits respondeat superior)
- Edgerton v. Morrison, 280 S.W.3d 62 (Mo. banc 2009) (standards for reviewing jury instructions)