Rodgers v. Jackson County Orthopedics, Inc.

904 S.W.2d 385, 1995 Mo. App. LEXIS 1167, 1995 WL 363803
CourtMissouri Court of Appeals
DecidedJune 20, 1995
DocketNo. WD 49662
StatusPublished
Cited by13 cases

This text of 904 S.W.2d 385 (Rodgers v. Jackson County Orthopedics, Inc.) 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
Rodgers v. Jackson County Orthopedics, Inc., 904 S.W.2d 385, 1995 Mo. App. LEXIS 1167, 1995 WL 363803 (Mo. Ct. App. 1995).

Opinion

LAURA DENVER STITH, Judge.

Plaintiffs-appellants Richard 0. Rodgers, Ethel J. Stephens, Virginia S. Johnson, Ruth M. Parker, and Richard A. Rodgers (“plaintiffs”) appeal a jury verdict for defendants. Plaintiffs contend that the trial court prejudi-cially erred in denying their motion to strike venireperson Nancy Roberts for cause in light of her admission that she would be reluctant to award damages out of a concern over rising medical care costs. The key issue before this Court is whether plaintiffs can raise this issue on appeal despite the fact that they struck Ms. Roberts from the jury by use of one of their three peremptory challenges, and all 12 jurors who actually sat on the jury were in fact qualified. The answer to this question depends on whether civil litigants have the right to a qualified panel from which to make peremptory strikes.

We hold that such a right, where it exists, is statutory in nature, and that the Missouri statutes do not now afford such a right to civil litigants. The judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, the surviving spouse and children of decedent Esther Rodgers, brought a wrongful death action against defendants Truett Swain, M.D., and Jackson County Orthopedics, Inc.1 Plaintiffs alleged that while acting in the course of his agency for Jackson County Orthopedics, Inc., Dr. Swain negligently performed a lumbar laminectomy which resulted in the death of Esther Rodgers. Defendants denied any negligence.

Jury selection for the trial began on May 23,1994. Plaintiffs’ counsel asked the following question during voir dire:

Q: My question is. Do any of you feel that since this is a medical negligence claim, if you felt the evidence justified a verdict in favor of the Plaintiff, that you would be reluctant or hesitant to so award the Plaintiffs’ damages or that you might mitigate the Plaintiffs’ damages because you feel this might influence or affect medical costs ultimately in the future and would affect you? Does anybody have that preconceived opinion or claim?

Venireperson Nancy Roberts responded as follows:

Q: [Plaintiffs’ Counsel] Yes, Ma’am. Your name?
A: Nancy Roberts.
Q: So, you feel you might have a reservation about being a truly unbiased or impar[387]*387tial juror because of the feeling that you have?
A: Uh-huh. (Witness nods head).
Q: [Defendant’s Counsel] What was the answer?
Q: [The Court] Yes? No?
A: Yes.

Plaintiffs moved to strike Ms. Roberts for cause on the ground that she would be reluctant or hesitant to award damages because of her preconceived belief that an award of damages would adversely affect her own medical insurance. The trial judge did not conduct any additional voir dire of Ms. Roberts. He simply denied the motion to strike Ms. Roberts for cause. On two other occasions defendant again requested the trial court to strike Ms. Roberts for cause, and on both occasions the trial judge refused to strike her from the jury.

Plaintiffs thereafter exercised their first peremptory challenge to strike Ms. Roberts from the panel, and she did not sit on the jury. After the jury was seated, a bench conference was held at which plaintiffs’ counsel attempted to demonstrate that prejudice resulted from the failure to strike Ms. Roberts. He informed the trial court that, had he not had to use one of their peremptory strikes against Ms. Roberts, he would have used that strike to remove venireperson Levi Snow from the jury. Counsel indicated he would have stricken Mr. Snow because he was a corporate manager, he had experience in the juvenile justice and prison systems, his wife was a nurse, and he had vast working experience with medical insurance claims. Counsel believed that, in light of this background, Mr. Snow was likely not to be sympathetic to plaintiffs, and would be reluctant to return a verdict against a medical care provider.

Plaintiffs admitted that Mr. Snow’s answers and background did not provide them with a basis for striking Mr. Snow for cause, and they do not contend that Mr. Snow was unable to follow the trial court’s instructions or evaluate the evidence fairly and impartially in rendering a verdict. In fact, Mr. Snow specifically denied that his background would interfere with his ability to be a fair and impartial juror. Rather, plaintiffs claim that they had a right to remove Mr. Snow through use of their final peremptory challenge which, instead, was used to remove Ms. Roberts.

After a three-day trial, the jury below returned a verdict for defendants. Only nine of the 12 jurors agreed to this verdict. Mr. Snow was one of these nine jurors. Had one less juror found for defendant, the trial court would have had to declare a mistrial.2 Plaintiffs allege that the failure to allow them to strike Mr. Snow prejudiced them, and entitles them to remand for a new trial.

II. THE BIGHT TO A QUALIFIED PANEL FROM WHICH TO EXERCISE PEREMPTORY CHALLENGES

A. Denial of the Right to 12 Impartial Jurors Requires A New Trial, But In this Case All 12 Jurors Were Qualified.

Plaintiffs argue that the trial court erred in failing to strike Ms. Roberts for cause. They state that the answers she gave during voir dire raised legitimate concerns about her ability to fairly and impartially consider the evidence and follow the trial court’s instructions. Yet, the trial judge failed to conduct any independent examination of Ms. Roberts to clarify her views and her ability to serve as a fair and impartial juror prior to denying the motion to strike her for cause.3

Plaintiffs correctly note that, where a venireperson’s answers are equivocal as to his or her qualifications to be a juror, it is incumbent upon the trial judge to question the juror further to either confirm the lack of qualifications to serve, or to rehabilitate the [388]*388venireperson. See § 494.470, RSMo 1994;4 Ray v. Gream, 860 S.W.2d 326, 332 (Mo. banc 1993); State v. Ealy, 624 S.W.2d 490, 493-94 (Mo.App.1981). A failure to do so makes it difficult or impossible for a reviewing court to judge whether the trial court abused its discretion in refusing to strike the venireperson. Ealy, 624 S.W.2d at 493-94.

For that reason, Catlett v. Illinois C.G.R. Co., 793 S.W.2d 351 (Mo. banc 1990), said that, “[i]n the absence of an independent examination [by the court] after equivocal responses, the appellate court is justified in conducting a more thorough review of the challenged juror’s qualifications.” Id. at 353. In Catlett, the challenged juror went on to sit on the panel, and voted against Mr. Catlett. Catlett determined that the juror should have been excused for cause, and that failure to either strike her or to examine her and rehabilitate her required reversal for a new trial. In so holding, Catlett stated:

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Bluebook (online)
904 S.W.2d 385, 1995 Mo. App. LEXIS 1167, 1995 WL 363803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodgers-v-jackson-county-orthopedics-inc-moctapp-1995.