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
[1]
[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.
