Moore v. Jackson

812 S.W.2d 240, 1991 Mo. App. LEXIS 999, 1991 WL 113996
CourtMissouri Court of Appeals
DecidedJune 28, 1991
DocketNo. 58922
StatusPublished
Cited by4 cases

This text of 812 S.W.2d 240 (Moore v. Jackson) 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
Moore v. Jackson, 812 S.W.2d 240, 1991 Mo. App. LEXIS 999, 1991 WL 113996 (Mo. Ct. App. 1991).

Opinion

GARY M. GAERTNER, Presiding Judge.

Appellants appeal from an order of the Circuit Court of the City of St. Louis which granted respondents’ motion for new trial. Christopher J. Moore, a minor, brought suit to recover damages from respondents, Dr. Darwin C. Jackson and Jonathan R. Reed OB-GYN Services, Inc., for injuries received during his birth. Jolanda Moore, appellant and next friend for Christopher, sought monetary damages from respondents for medical expenses she incurred on behalf of Christopher, her son, and for loss of consortium.

A jury trial was held beginning on May 14, 1990. On May 21, 1990, the jury returned a verdict awarding Christopher $1,250,000 (one million two hundred fifty thousand dollars) and awarding Jolanda $50,000 (fifty thousand dollars). A hearing on respondents’ motion for new trial was held on July 20, 1990, and on August 10, 1990, the court granted respondents’ motion. The court based its judgment on improperly submitted verdict directors, im[242]*242proper damage instructions and upon a juror’s failure to disclose her involvement in prior lawsuits when questioned during voir dire. A brief recitation of the facts follows.

In June of 1983, appellant, Jolanda Moore, was diagnosed by respondent, Dr. Jackson, as being pregnant. Jolanda was seventeen years old, was five feet seven and one-half inches tall and weighed approximately 140 pounds. Dr. Jackson continued to monitor her pregnancy. By Jo-landa’s projected birthing date, she weighed 212 pounds. Jolanda did not give birth by January 29, 1984, her due date, and Dr. Jackson decided to begin to induce labor on Monday, February 13, 1984. Jo-landa did not give birth on February 13, however, and her labor was again induced on February 14. By 2:30 p.m. on the 14th, Jolanda was fully dilated and Dr. Jackson began to deliver Christopher around 3:30 p.m. Even though Jolanda was experiencing labor contractions, Christopher’s delivery was not progressing as it should. Dr. Jackson decided to perform a mid-pelvic delivery which consisted of his using a vacuum extractor1 and forceps to pull the baby through the delivery.

Christopher’s right shoulder got stuck on Jolanda’s pelvic bone during the delivery and, as a result, Christopher’s nerves were permanently damaged. Christopher suffered the permanent loss of a great deal of use out of his entire right arm, hand and fingers. Christopher weighed nine pounds, thirteen ounces at birth. Appellants’ theory of liability was that Dr. Jackson should not have utilized the mid-pelvic delivery or, alternatively, should have performed a Cesarean section delivery. Respondent, Jonathan R. Reed OB-GYN Services, Inc., was Dr. Jackson’s employer on February 14, 1984.

During voir dire, appellants’ attorney asked the venire whether any of them had ever been a defendant or a plaintiff in a civil law suit. By our count, eleven jurors answered in the affirmative. Among these responses, six venirepersons responded with personal injury lawsuits regarding automobiles, two venirepersons related that they had been involved in suits involving contracts, one member of the venire disclosed a claim for workers’ compensation and another venireperson indicated that he had been a defendant in a small claims lawsuit some ten years ago. In addition, a venireperson stated that she was involved in an automobile claim for her injuries that did not result in a lawsuit.

It was later learned that two jurors failed to disclose during voir dire their pri- or litigation history.2 During a hearing held regarding respondents’ motion for new trial, Juror Katherine Sipes stated that she failed to disclose that she had been sued by Deaconess Hospital in October of 1988 for unpaid medical bills which arose from the birth of her child by Cesarean section. Juror Sipes also did not state during voir dire that she filed for protection under Chapter 13 of the bankruptcy code prior to the Deaconess suit proceeding to trial and she did not disclose she went to court to inform the attorney representing Deaconess she was entering Chapter 13.

In addition to the above, in July of 1989, Kohner Properties filed a rent and possession suit against Ms. Sipes for failure to pay rent. Ms. Sipes indicated during the post-trial hearing she went to court in August of 1989 and signed a consent judgment for the rent amount and for court costs and attorney’s fees. Again, in November of 1989, Ms. Sipes was sued for rent and possession by Kohner and she entered another consent judgment in December.

[243]*243Ms. Sipes’ explanation for not disclosing her rent and possession suits or the claim by Deaconess for medical expenses was that she, quite simply, did not consider them to be lawsuits, but merely bills. She also claimed at one point to be unsure of the distinction between a civil and criminal lawsuit. The trial court found Juror Sipes’ nondisclosure was intentional, that Ms. Sipes possessed no reasonable inability to comprehend the questions asked during voir dire and her assertion that she considered the suits to be bills was unreasonable. The court found Ms. Sipes’ intentional nondisclosure deprived both litigants of the opportunity to exercise their peremptory challenges or challenges for cause in an intelligent and meaningful manner. Appellants appeal asserting that Ms. Sipes’ non-disclosures were unintended and assert the court should not have inferred bias and prejudice even if her nondisclosures could be classified as intentional.

Intentional nondisclosure occurs where there is 1) no reasonable inability of the juror to comprehend the information sought by the attorneys’ questions and 2) where it is shown that the juror actually remembers the experience or her forgetfulness is unreasonable. Washburn v. Medical Care Group, 803 S.W.2d 77, 80 (Mo.App., E.D.1990). Conversely, unintentional nondisclosure occurs where the undisclosed matter was insignificant or remote in time or where the venireperson reasonably misunderstands the question. Id. The determination that a venireperson intentionally or unintentionally failed to disclose matters asked during voir dire is left to the sound discretion of the trial court, only to be disturbed on appeal upon a showing of an abuse of discretion. Id.; Williams by Wilford v. Barnes Hospital, 736 S.W.2d 33, 36 (Mo. banc 1987).

In our case, appellants’ counsel, during voir dire, asked the venire whether they had been involved in criminal or civil lawsuits as plaintiff or defendant. As already noted, several of the venire disclosed their participation in civil lawsuits, including cases in small claims court and actions on contracts. Appellants claim that Ms. Sipes did not clearly understand the distinction between a criminal and civil lawsuit, as she claimed at the post trial hearing.

However, the record clearly supports the court’s determination that Ms. Sipes possessed no reasonable inability to comprehend the attorneys’ questions. Earlier during voir dire, Ms. Sipes, in response to appellants’ attorney’s queries, disclosed that she had been a member of a jury in a criminal trial. Moreover, Ms. Sipes is a corrections officer at the city workhouse and has three years of college course work behind her. Ms. Sipes possesses an Associate’s Degree in criminal justice.

After Ms.

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Bluebook (online)
812 S.W.2d 240, 1991 Mo. App. LEXIS 999, 1991 WL 113996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-jackson-moctapp-1991.