Friday, October 11, 2013

Bair v. Faust[1]

Opinion handed down July 16, 2013
Link to Mo. Sup. Ct. Opinion

Shannon Bair brought suit against William Faust following an automobile accident in which Bair sustained moderate injuries.  During voir dire, Bair’s attorney informed the court and the defendant that Bair would not be attending trial.  When the defense counsel requested that Bair be banned for the entirety of the trial, the court allowed Bair ten minutes to arrive in the courtroom before she would be banned.  Bair was thirty-five minutes away.  The court decided to ban Bair from the trial and also allowed defense counsel to argue an adverse inference against Bair.  After the jury found Bair to be 85% at fault for the accident, Bair appealed, arguing the court’s banning of Bair and grant of adverse inference argument to defendant was an abuse of discretion.  The Supreme Court of Missouri agreed, holding that both the banning of Bair and the allowance of an adverse inference argument was an abuse of discretion, resulting in an unfair disadvantage to Bair.

I.       Facts & Holding

After an automobile accident between Shannon Bair and William Faust in which Shannon Bair was moderately injured, Bair brought suit to recover damages related to those injuries.[2]  While the Plaintiff’s attorney was performing voir dire, he asked, “If I give you the reasons in the evidence in the case and she’s [Plaintiff] not here at trial, but she’s asking you to take in the evidence even though she’s not here, would you be able to do that?”[3]  This question was the first notice to both the court and the defendant that Plaintiff would not be at trial.[4] 

On the following day of trial, but before opening statements, both attorneys conversed with the court about the Plaintiff’s absence from trial.[5]  Defendant’s attorney had two worries:  first, that the Plaintiff would create the impression that she could come and go from trial as she pleased and did not need to be in the courtroom to pursue her cause of action, and secondly that the Plaintiff would attempt to make a “grand entrance” into the courtroom during the trial.[6]  Defendant’s counsel argued that this would be unfairly prejudicial to the Defendant and requested that he be allowed to argue an adverse inference to the jury based on the Plaintiff’s absence.[7]

The court decided that Plaintiff would not be allowed to make a “grand entrance” due to her failure to attend voir dire or to be present in the courtroom the following day for trial.[8]  The court allowed the Plaintiff to attend trial if she arrived in the ten minutes before the jury arrived.[9]  However, if the Plaintiff was not present by the beginning of the opening statements, she would be barred from the trial in its entirety.[10]  Plaintiff’s attorney informed the court that the Plaintiff was on her way, but would not arrive for at least another thirty-five minutes.[11]  The court refused to make the jury continue to wait.[12] 

Further, the court allowed the Defendant’s counsel to argue an adverse inference to the jury based on the Plaintiff’s failure to appear at trial.[13]  Defendant’s counsel took advantage of this allowance, addressing Plaintiff’s absence fifteen times during his opening statement and again numerous times during the trial and his closing statement.[14]  The Defendant’s counsel concluded his opening statement by stating the “non-present plaintiff was at fault for this accident[, and] [s]he’s not here for a reason.”[15] Plaintiff’s counsel moved for a new trial twice, but both motions were denied.[16] 

The jury returned a verdict for the Plaintiff, but assigned her 85% of fault, thus substantially reducing the award.[17]  On appeal, the Plaintiff’s counsel alleged that the trial court abused its discretion in failing to grant a new trial after excluding the Plaintiff from the trial and for allowing the Defendant’s counsel to argue an adverse inference.[18]  The Supreme Court of Missouri agreed, and held that the trial court abused its discretion in denying the motion for a new trial.[19]

II.    Legal Background

When a party is represented by counsel, they have a right to personally appear or not appear at their trial.[20]  However, it is the court’s inherent authority and broad discretion to control the courtroom.[21]  “It is the responsibility of the trial judge to maintain dignity, order and decorum in the courtroom.”[22] The adverse inference rule allows for “an unfavorable inference to be drawn against a party, knowledgeable of the facts of the controversy, who fails to testify” and such failure may be used by an opponent in its argument.[23]  However, an opponent cannot draw an adverse inference when the only reason a party failed to testify was the opponent’s motion to exclude the testimony.[24]

In a similar Missouri case, Calvin v. Jewish Hospital of St. Louis, the trial court granted the plaintiff’s motion for exclusion of the defendant’s only medical witness.[25]  Subsequently, during plaintiff’s closing argument, the plaintiff’s attorney made an adverse inference, suggesting that the defendant had no expert medical witness willing to testify.[26]  The trial court denied defendant’s motion to instruct the jury to disregard the statement, despite the knowledge that the plaintiff’s motion to exclude was the only reason the defendant had not presented medical expert testimony.[27]  On appeal, the Court of Appeal for the Eastern District noted that “[t]he exercise of judicial discretion should be directed toward the accomplishment of fundamental fairness and the avoidance of unfair disadvantage.”[28] The Calvin court held that the trial court abused its discretion by granting the plaintiff’s motion to exclude the defendant’s medical expert and then allowing the plaintiff to make an adverse inference argument to the jury regarding the defendant’s lack of a medical expert.[29]

Similarly, in Barnes v. Kissell, the Western District overturned a trial court on an abuse of discretion appeal.[30]  In Barnes, the defendant’s medical expert testimony was excluded and the plaintiff was allowed to make an adverse inference argument to the jury based on the expert’s failure to testify.[31]  The Western District highlighted the plaintiff attorney’s knowledge of the fact that his actions were the only reason the defendant’s expert was not able to testify in overturning the trial court.[32]

III. Instant Decision

The court determined that fundamental fairness had been lost due to the trial court’s refusal to allow the Plaintiff to be present and allowing the defense counsel to argue an adverse inference pertaining to the Plaintiff’s absence.[33]  The Supreme Court did note the trial court’s “understandable frustration” with the Plaintiff and the trial court’s authority to ensure the trial is conducted in an orderly manner.[34]  However, the Supreme Court did not need to consider whether the trial court’s decision to bar the Plaintiff from the courtroom was an abuse of discretion because the Supreme Court found “[i]t was fundamentally unfair for the trial court both to exclude Plaintiff from the courtroom and also allow an adverse inference about her absence.”[35]

The Supreme Court followed Calvin and Barnes’s persuasive precedent by finding it was  reversible error for the trial court to allow a party to take advantage of an exclusion, brought about by that party, by arguing an adverse inference.[36]  The Supreme Court also noted that the error was “more egregious” in this instance because the Defendant’s counsel made repetitive adverse inferences during the entirety of the trial, not just during closing arguments.[37]  The Supreme Court was careful to only hold that both the exclusion of the Plaintiff from the courtroom and the allowance of the adverse inference argument was an abuse of discretion.[38]  The Supreme Court did not consider whether the exclusion of the Plaintiff alone was an abuse of discretion.[39]

IV. Comment

The Supreme Court of Missouri made a sound holding in Bair.  The framework developed by the Calvin and Barnes courts allowed the Supreme Court to make an effortless and uncontroversial ruling.  However, the Supreme Court would not consider the more uncertain question: whether a trial court, in its discretion, can ban a party not only from testifying, but also from appearing at her own trial.  While the Plaintiff did make this argument, the Supreme Court chose not to consider it.[40]  The Supreme Court’s ruling might have been significantly more informative to trial courts if it had considered this issue.  Thus, it is unclear whether a trial court does not abuse its discretion by banning a party from the courtroom due to circumstances similar to these.

- Kaci Peterson
[2] Id. at 1.
[3] Id.
[4] Id. Plaintiff’s attorney clarified that there was no medical reason for the Plaintiff’s absence. Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at 2.
[12] Id.  The jury had already been waiting for approximately one hour.  Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at 3.
[18] Id.
[19] Id.
[20] Id. (citing Spirtas Co. v. Div. of Design and Constr., 131 S.W.3d 411, 415-16 (Mo. Ct. App. W.D. 2004)).
[21] Id. (citing Blessing v. Blessing, 539 S.W.2d 699, 702 (Mo. Ct. App. E.D. 1976)).
[22] State v. Borman, 529 S.W.2d 192, 194 (Mo. Ct. App. S.D. 1975)).
[23] Pasternak v. Mashak, 428 S.W.2d 565, 568 (Mo. 1967).
[24] See Barnes v. Kissell, 861 S.W.2d 614, 620 (Mo. Ct. App. W.D. 1993); Calvin v. Jewish Hosp. of St. Louis, 746 S.W.2d 602, 605 (Mo. Ct. App. E.D. 1988).
[25] Calvin, 746 S.W.2d at 604.
[26] Id. at 605.
[27] Id.
[28] Id. (quoting Ellis v. Union Elec. Co., 729 S.W.2d 71, 76 (Mo. Ct. App. E.D. 1987).
[29] Id.
[30] Barnes v. Kissell, 861 S.W.2d 614 (Mo. Ct. App. W.D. 1993).
[31] Id. at 619-20.
[32] Id. at 620.
[33] Bair v. Faust, 2013 WL 3716435 (Mo. 2013) (en banc).
[34] Id. at 3.
[35] Id. at 4.
[36] Id. at 5.
[37] Id.
[38] Id.
[39] Id.

[40] Id.