Rogers v. Bond

880 S.W.2d 607, 1994 Mo. App. LEXIS 1182, 1994 WL 371662
CourtMissouri Court of Appeals
DecidedJuly 19, 1994
DocketNo. 64677
StatusPublished
Cited by7 cases

This text of 880 S.W.2d 607 (Rogers v. Bond) 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
Rogers v. Bond, 880 S.W.2d 607, 1994 Mo. App. LEXIS 1182, 1994 WL 371662 (Mo. Ct. App. 1994).

Opinion

CRANE, Presiding Judge.

In this medical malpractice action, plaintiff Winston Rogers appeals the trial court’s entry of judgment notwithstanding the verdict in favor of defendants. We find the trial court erred in concluding that plaintiffs claim for injuries was collaterally estopped by defendants’ verdict in plaintiffs wife’s separate action for loss of consortium. We also find the trial court did not abuse its discretion in denying defendants’ motion for new trial on the grounds of juror nondisclosure during voir dire. Accordingly, we reverse the trial court’s entry of judgment notwithstanding the verdict, and remand for entry of judgment in accordance with the verdict.

The underlying medical facts of this case have been set out in Rogers v. Bond, 839 S.W.2d 292 (Mo. banc 1992) and will not be restated here. In 1983 plaintiff brought an action against defendants Dr. Leslie F. Bond and Metropolitan Medical & Health Services, Inc. for damages for medical malpractice. Plaintiffs wife, Bobbie Rogers, sought damages for loss of consortium in the same action. The jury returned a $300,000.00 verdict for plaintiff and a $7,250.00 verdict for wife. Defendants filed a Motion for JNOV or in the Alternative a Motion for New Trial. The trial court overruled both motions as to plaintiff, but sustained defendants’ new trial motion as to wife’s consortium claim on grounds unrelated to this appeal.

On retrial of the consortium claim, the jury returned a verdict in favor of defendants. After that judgment was entered, wife appealed the trial court’s order granting defendants’ motion for new trial which had resulted in the retrial of her consortium claim. Defendants appealed the original judgment in favor of plaintiff.

These appeals were ultimately decided by the supreme court in Rogers v. Bond, 839 S.W.2d 292 (Mo. banc 1992). The court dismissed wife’s appeal as untimely. It reversed the judgment for plaintiff due to instructional error, and remanded the case to the trial court for a retrial of plaintiff’s medical malpractice claim against defendants.

Upon retrial, the jury returned a $425,-000.00 verdict in favor of plaintiff. The trial court overruled defendants’ motion for new trial, sustained defendants’ motion for judgment notwithstanding the verdict, and entered judgment in favor of defendants. The trial court found that the issue of defendants’ liability was determined in the retrial of wife’s consortium claim, and the verdict in favor of defendants collaterally estopped plaintiff’s recovery in his malpractice action. [609]*609Plaintiff now appeals the trial court’s entry of judgment notwithstanding the verdict.

Plaintiff asserts that the judgment in wife’s loss of consortium claim did not collaterally estop his claim. Collateral estoppel precludes the same parties, or those in privity, from relitigating issues which have been previously litigated. Missouri Ins. Guar. Ass’n v. Wal-Mart, 811 S.W.2d 28, 32 (Mo.App.1991). When determining whether to apply collateral estoppel, the court considers four factors: (1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit. Id.; Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979) (emphasis in original).

Loss of consortium is a separate and distinct cause of action. Lear v. Norfolk & Western Ry. Co., 815 S.W.2d 12, 14 (Mo.App.1991). The spouse who seeks damages for loss of consortium must not only show that the injured spouse had a valid claim for personal injuries, but also that he or she suffered damages arising out of the injured spouse’s injuries. Id. at 14-15.

When wife’s consortium claim was submitted to the jury, the jury was instructed that the essential elements were that defendant Bond was negligent, that Bond’s negligence caused [plaintiffs] injuries, and that wife thereby sustained damage. The jury found for defendants and made no damage award.

Although the jury may have found that Bond was not negligent or that Bond’s negligence did not cause plaintiffs injuries, the jury could also have found that defendants acted negligently and that plaintiff was injured, but that wife did not thereby sustain damage. Either finding could have supported the jury’s verdict in wife’s action. Collateral estoppel may be applied only to those issues which were necessarily and unambiguously decided. King Gen. Contr. v. Reorganized Church, 821 S.W.2d 495, 501 (Mo. banc 1991). The only issue necessarily decided in wife’s ease was whether wife sustained damages. This finding did not preclude a finding that plaintiff was injured or that plaintiff sustained damages. Accordingly, the trial court erred in applying collateral estoppel to bar plaintiffs claim.

MOTION FOR NEW TRIAL

Because we have found that the judgment notwithstanding the verdict was erroneous, we reach defendants’ argument that the trial court erred in denying their motion for new trial. Rule 72.01(c). Defendants assert that the trial court erred because one juror intentionally failed to disclose she was previously a defendant in a lawsuit.

Plaintiffs attorney directed the following questions to the venire panel on the issue of prior claims and lawsuits:

“Any persons on the jury who have filed a claim for medical malpractice before?” (One venireperson responded.)
“Anyone ever involved with filing a claim for any personal injuries that you sustained, of any kind, accident or nonmedical malpractice, just any kind?” (Several ven-irepersons responded about car accidents, and another juror responded about a slip and fall accident.)
“Now, in addition to accidents, sometime [sic] people are injured on their jobs and have worker’s comp claims. Anyone had any of those types of claims?” (One veni-reperson responded.)
“Any persons on the jury have been defendants against any claims, where you had to defend a claim, either personally or by use of a lawyer?” (One venireperson responded about an auto accident.)
“Anyone else that were involved in any cases where you were defendants?” (No one responded.)

On the same topic defense counsel asked the panel: “Previously you were asked whether any of you were ever a defendant in a lawsuit. I would like to ask now ... have any of you, or any of your immediate family ever been a plaintiff in a lawsuit for personal [610]*610injuries?” Seven venirepersons responded.

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Bluebook (online)
880 S.W.2d 607, 1994 Mo. App. LEXIS 1182, 1994 WL 371662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-bond-moctapp-1994.