Beeks v. Hierholzer

831 S.W.2d 261, 1992 Mo. App. LEXIS 777, 1992 WL 88263
CourtMissouri Court of Appeals
DecidedMay 5, 1992
DocketNo. WD 44604
StatusPublished
Cited by4 cases

This text of 831 S.W.2d 261 (Beeks v. Hierholzer) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beeks v. Hierholzer, 831 S.W.2d 261, 1992 Mo. App. LEXIS 777, 1992 WL 88263 (Mo. Ct. App. 1992).

Opinion

HANNA, Judge.

This is an action for monetary damages brought by the widow and children of Raymond Beeks, deceased, for his wrongful death due to the alleged medical negligence of respondents. The error claimed concerns the denial of appellants’ motion for a new trial on the grounds of juror intentional non-disclosure of material facts during voir dire.1

[263]*263The underlying facts surrounding the medical negligence claim are adequately stated in the parties’ respective briefs. Basically, the deceased was examined and released from the emergency room at Research Medical Center, after complaining of severe stomach pain and nausea. Eight hours later he began vomiting blood and died.

As a preliminary matter, respondents’ brief contains a Point I, where they claim appellants failed to comply with Rule 81.12(a), by not filing the entire trial transcript and request us to dismiss the appeal accordingly. Respondents’ brief expounds on the voir dire examination and the post-trial hearing, with reference to specific page numbers contained in the limited transcript provided by appellants. Respondents found it unnecessary to supplement the Legal File to include the entire trial transcript, and no part of the trial proceeding was used to support either parties’ position.

Rule 81.12(a) requires the record on appeal to contain the proceedings and evidence necessary for determination of the questions presented to the appellate court for decision. The rule explicitly states the record is divided into two components (the legal file and the transcript) “[i]n order to reduce expense and expedite the preparation of the record on appeal”. It would seem contrary to the essential purpose of the rule to require' an appellant to file extraneous portions of the transcript, or a transcript at all, where the error raised on appeal is limited to unrelated pre or post-trial matters. In those situations, the trial portion of the transcript is irrelevant to determination of any question presented to the appellate court.

Finally, we are aware certain facts describing the underlying claim must be provided to clarify the record and assist the appellate court in better understanding the flavor of the appeal. However, the Statement of Facts in an appellant’s brief is the appropriate place to include a fair and concise recitation of the case. Rule 84.04(c). Where the error on appeal does not concern the trial itself, this may be done without specific reference to the entire trial transcript. If a respondent is not satisfied with the appellant’s statement of the facts, he may correct any alleged errors with a concise statement of his own. Rule 84.04(f).2

The appellant filed the portions of the transcript containing the voir dire examination and the hearing on their motion for new trial. This was sufficient. Respondents’ misguided effort to have the appeal dismissed in its Point I (without filing a motion requesting that relief), is denied.

Appellants allege four of the jurors intentionally failed to disclose material facts "concerning their involvement in prior litigation during the voir dire examination. It is the duty of potential jurors on voir dire to fully, fairly and truthfully answer all questions directed to them so that their qualifications may be determined and challenges may be intelligently exercised. Williams v. Barnes Hosp., 736 S.W.2d 33, 36 (Mo. banc 1987) (citing Rinkenbaugh v. Chicago, Rock Island & Pacific R.R. Co., 446 S.W.2d 623, 626 (Mo.1969)).

There are two types of non-disclosure, intentional and unintentional. Intentional non-disclosure occurs where there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and where it develops that the prospective juror actually remembers the experience or that it was of such significance the juror’s purported forgetfulness is unreasonable. Id. If a juror intentionally withholds material information requested on voir dire, the factfinder may infer bias and prejudice from such concealment, but it is not required to do so. Moore v. Jackson, 812 S.W.2d 240, 244 (Mo.App.1991). Uninten[264]*264tional non-disclosure exists where the experience forgotten was insignificant or remote in time or where the venireperson reasonably misunderstands the question posed. Williams, 736 S.W.2d at 36. Unintentional failure to disclose information does not necessarily show prejudice on the part of the juror. Id.

The trial court, and the appellate court on review for abuse of discretion, must look to the totality of the circumstances in order to determine whether a non-disclosure may have had a prejudicial impact on a litigant’s right to trial by twelve impartial and qualified jurors or upon the verdict. Alexander v. F. W Woolworth Co., 788 S.W.2d 763, 766 (Mo.App.1990). If there is no prejudicial impact, the non-disclosure will not warrant a new trial. Id. The most prominent factor to be considered is the materiality or relevance of the undisclosed experience. Id. The greater the similarity between the undisclosed experience and the case at hand, the stronger the inference of bias, the greater the impairment of counsel’s ability to make informed peremptory challenges, and the lesser the credibility of the juror’s purported forgetfulness. Id.

The trial court found the non-disclosures had no prejudicial impact on the case. The question then raised is whether the trial court abused its discretion in finding that the alleged non-disclosures had no prejudicial impact on appellants’ right to a fair trial, the verdict, or counsels’ ability to make an informed peremptory challenge.

Both the trial court and the respective counsel conducted voir dire of the panel. The relevant questions posed by the court included:

1. Is there anyone on the jury panel who has been involved in a similar type of lawsuit as this one, either as a plaintiff or somehow involved perhaps as a witness for the defendant?
2. Is there anyone else that’s ever been a plaintiff in a lawsuit of any type? ... I will include work comp claims in this question.
3. All right ... do we have anyone who has been a plaintiff in a lawsuit or claim in workers comp case?
4. [I]s there anyone that’s been a plaintiff or a claimant in a lawsuit or workers comp claim? ... [AJside from those who have already answered,is there anyone who was involved in a matter? Is there anyone that was involved in a claim and made a claim without having a lawsuit?
5. [T]he question is whether you’ve had a claim that did not result in a lawsuit? ... [I]s there anyone that has filed a claim but may not have resulted in a lawsuit?
6. Now [sic] question now is whether anyone on the panel has previously been a defendant in a lawsuit or whether someone has made a claim against you that did not result in a lawsuit?

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Bluebook (online)
831 S.W.2d 261, 1992 Mo. App. LEXIS 777, 1992 WL 88263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beeks-v-hierholzer-moctapp-1992.