Sherry
Spence sued BNSF Railway (“BNSF”) for wrongful death in 2013 after her husband,
Scott Spence, was struck and killed in his pickup truck by a BNSF train at a
railway crossing.[1] The case went to trial in 2015, and the jury
returned a multi-million dollar verdict for Sherry Spence.[2] After the verdict, BNSF filed a motion for a
new trial based chiefly on the intentional nondisclosure of a jury member.[3]
The circuit court overruled the motion,
and BNSF appealed.[4] The Supreme Court of Missouri affirmed the
circuit court’s ruling, holding that BNSF had waived its right to seek relief based
on juror nondisclosure.[5]
I. Facts
and Holding
Scott
Spence was killed in 2012 when his pickup truck was struck by a BNSF train at a
railroad crossing.[6] Sherry Spence (“Spence”), Scott’s wife, filed
a wrongful death action against BNSF alleging BNSF was negligent for failing to
trim vegetation at the railroad crossing that allegedly blocked Scott Spence’s
view of the approaching train.[7] Spence also asserted negligence on the part
of BNSF under a respondeat superior theory, arguing BNSF train crewmembers
should have seen Scott Spence and slowed the train to avoid collision with his
pickup truck.[8]
BNSF alleged Scott Spence was negligent
for driving onto the railroad track as the train was approaching.[9]
The
jury returned a large verdict for Spence.[10]
Following the verdict, BNSF discovered
intentional nondisclosures by a jury member, Kimberly Cornell (“Cornell”), and
motioned for a new trial.[11] Cornell failed to disclose (on the juror
questionnaire distributed to potential jurors prior to the trial), that she had
previously been a party to a lawsuit.[12]
She also failed to disclose that she
previously made a claim to recover money for physical injuries or damage to
property.[13]
BNSF
could not immediately discover Cornell’s nondisclosures because Cornell’s name
was preprinted incorrectly at the top of the juror questionnaire, reading “Carnell” instead of “Cornell.”[14] Cornell did not correct this misspelling on
the form and returned the questionnaire to the circuit court after filling it
out.[15] Before trial, each side received the juror
questionnaires, a pool selection report, and a seating chart; on each of these
distributed documents Cornell’s last name was misspelled “Carnell.”[16]
When
Cornell reported for jury selection, she informed the circuit court staff that
her name had been misspelled.[17] The court’s clerk then informed counsel for
each side of the correct spelling.[18]
The clerk also made a handwritten
correction to the venirepersons list and provided it to both sides.[19]
At
the outset of juror questioning, the trial judge explained the importance of
honesty and forthrightness.[20] Nonetheless, when the trial judge
specifically asked venirepersons about any litigation history they had not
disclosed on their juror questionnaire, Cornell stayed silent even though she
had been a party to several lawsuits, including a wrongful death action in
which she was the plaintiff.[21] BNSF’s counsel later inquired to the
venirepersons whether they, or any of their close friends or family members,
had ever been involved in a motor vehicle accident.[22]
Cornell did not answer in the affirmative even though her son was killed in a
car accident – an accident that gave rise to her wrongful death action.[23]
In fact, “BNSF repeated this question at
various times and in various ways, but each time Juror Cornell remained
silent.”[24]
Approximately
four hours after the court’s clerk informed each side of the misspelling of
Cornell’s name, the jury – including Cornell – was sworn and seated.[25] Eight days later the jury rendered its
verdict.[26]
After
the trial, a BNSF representative overheard Cornell introduce herself (correctly
as Kimberly Cornell) to Spence and
tell Spence she could sympathize with her because her son was killed in a car
accident.[27] At this time, BNSF searched Case.net for
“Kimberly Cornell,” and Cornell’s litigation and accident history were
discovered.[28] BNSF then moved for a new trial based on
Cornell’s intentional nondisclosures.[29]
Spence
asserted that, pursuant to Supreme Court of Missouri Rule 69.025(e) – which
requires a party have searched Case.net before seeking relief – BNSF waived any
relief based on juror nondisclosure.[30] BNSF countered that they had no reason to
suspect Cornell’s name was incorrect before the verdict was rendered (and
therefore they should not be faulted for failing to search Case.net for
Kimberly Cornell).[31]
However, the court found credible the
testimony of the clerk who stated that she provided the correction of Cornell’s
name four hours before the jury was sworn in – testimony directly contradicting
BNSF’s alleged lack of knowledge.[32]
BNSF’s motion for a new trial was subsequently
denied.[33] BNSF claimed this was error requiring the
Supreme Court of Missouri to vacate the judgment of the trial court and remand
for a new trial.[34] In particular, BNSF claimed that even if
under Rule 69.025 it waived the right to a new trial based on the nondisclosure
of Cornell’s litigation history, it
did not waive the right to a new trial based on the nondisclosure of her accident history because Rule 69.025
does not govern such nondisclosures.[35]
II. Legal
Background
Rule
69.025 is a Supreme Court of Missouri Rule that was adopted in response to Johnson v. McCullough.[36] In Johnson,
a prospective juror failed to disclose her litigation history even after being
specifically asked if she had ever been a plaintiff or defendant in a lawsuit.[37]
Rule 69.025 was adopted four months after
Johnson[38]
and provides, in full:
(a) Proposed Questions. A party seeking to inquire as to the
litigation history of potential jurors shall make a record of the proposed
initial questions before voir dire. Failure
to follow this procedure shall result in waiver of the right to inquire as to
litigation history.
(b) Reasonable Investigation. For purposes of this Rule 69.025, a
“reasonable investigation” means review of Case.net before the jury is sworn.
(c) Opportunity to Investigate. The court shall give all parties an
opportunity to conduct a reasonable investigation as to whether a prospective
juror has been a party to litigation.
(d) Procedure When Nondisclosure Is Suspected.
A party who has reasonable grounds to
believe that a prospective juror has failed to disclose that he or she has been
a party to litigation must so inform the court before the jury is sworn. The court shall then question
the prospective juror or jurors outside the presence of the other
prospective jurors.
(e) Waiver. A party waives the right to seek relief based
on juror nondisclosure if the party fails to do either of the following before
the jury is sworn:
(1)
Conduct a reasonable investigation; or
(2)
If the party has reasonable grounds to believe a prospective juror has failed to disclose that he or she has been a
party to litigation, inform the court of
the basis for the reasonable grounds.
(f) Post–Trial Proceedings. A party seeking post-trial relief based on
juror nondisclosure has the burden of demonstrating compliance with Rule
69.025(d) and Rule 69.025(e) and may satisfy that burden by affidavit. The court shall then conduct an evidentiary
hearing to determine if relief should be granted.[39]
As
Rule 69.025 makes clear, a party must take certain steps before seeking relief
based on juror nondisclosure. The party
must “conduct a reasonable investigation,” defined as a “review of Case.net
before the jury is sworn.”[40]
In addition, the party must inform the
court when and why it suspects a juror has not disclosed their litigation
history.[41] Failure to satisfy both of these requirements
prior to the swearing of the jury will
result in a party’s waiver of its right to seek relief.[42]
However,
Rule 69.025 is ambiguous as to what exact rights to relief are waived in such
an event. Rule 69.025 specifically
mentions only one type of juror nondisclosure – “litigation history.”[43] One might assume, then, that the waiver provision
speaks only to relief based on nondisclosure of litigation history. However, the waiver language in 69.025(e) addresses
claims for “relief based on juror nondisclosure” and does not use specific
language referencing litigation history.[44] In Spence,
the Supreme Court of Missouri was tasked with determining whether Rule
69.025(e) waives a party’s right to relief based on all juror nondisclosure or based on juror nondisclosure concerning only
litigation history.
III. Instant Decision
A. Majority Opinion
The
Supreme Court of Missouri upheld the circuit court’s overruling of BNSF’s
motion for a new trial, holding that Rule 69.025(e) waived BNSF’s right to
relief based on all juror
nondisclosure.[45] The majority stated that, “notwithstanding a
number of references to ‘litigation history’ throughout Rule 69.025 (including
in Rule 69.025(e)(2)), the waiver language in Rule 69.025(e) speaks to claims
for ‘relief based on juror nondisclosure’ and is not limited only to
nondisclosures of a juror's litigation history.”[46]
The
majority declared that it need not decide whether a standalone claim of
nondisclosure of accident history would be waived under Rule 69.025(e) because,
under the particular factual circumstance, Cornell’s accident and litigation
history were “inseparably linked.”[47] In a footnote, the majority stated that it
was “fair” in this instance to hold BNSF accountable for knowledge of “pertinent
facts” that were “readily apparent” from the documents on Case.net.[48]
B. Dissent
The
dissent argued the majority’s opinion ran afoul of principles of
interpretation, expanding Rule 69.025 beyond the meaning of its plain language.[49]
Citing its obligation to interpret Supreme
Court Rules using the same principles used to interpret statutes, the dissent
explained that the “primary principle” of interpreting a Supreme Court Rule is
to give effect to the Court’s intent as shown by the plain language of the Rule.[50]
In
discerning “plain language,” the dissent explained, context of the Rule matters. The “Court does not look at any one portion
of a rule in isolation when interpreting the meaning of the rule.”[51] Context reveals that “not all claims of juror
nondisclosure are governed by Rule 69.025 because the text of the rule limits
its applicability to [litigation history].”[52] The dissent maintained that the majority
opinion’s ruling finds no textual support in Rule 69.025.[53] In support of this argument, the dissent
noted that “[Rule 69.025] does not mention or refer to any other juror nondisclosure
claim [except litigation history].”[54]
Further,
the dissent took umbrage with the majority opinion’s reasoning that it is fair
to hold a party to knowledge of pertinent facts that are readily apparent from
Case.net documents.[55]
Such a conclusion, the dissent argued, found no support in the Rule itself and “reflect[ed]
a policy preference rather than principles of interpretation.”[56] The dissent noted that the Supreme Court of
Missouri remains free to amend the Rule and align it with the court’s policy
preferences, but the court may not find a meaning within the Rule that is not
supported by the Rule’s language.[57]
III. Comment
Voir
dire is intended to be a process through which each party can discern whether
any jurors have a bias that may impede their ability to be fair and impartial.[58] When jurors are dishonest during voir dire,
parties lose the chance to ensure that a dispassionate panel hears their
case. It is no small matter to rule that
a party has waived its right to a new trial based on juror nondisclosure. Therefore, any such ruling should be in strict
conformance with the law.
There
can be no doubt that Rule 69.025 sets out procedures that must be followed in
order for a party to seek relief based on juror nondisclosure related to
litigation history. However, the majority opinion’s ruling that BNSF waived its
right to relief based on all juror
nondisclosure seems to disregard basic principles of interpretation. If plain language as discerned by context is
to be the guiding hand of interpretation, it seems almost obvious that Rule
69.025 does not govern any kind of nondisclosure except litigation history. As the dissent so aptly noted:
Subdivision (c) of the rule does not
require a court to provide an opportunity for the parties to investigate
anything other than juror litigation history. Subdivision (d) of the rule
does not require a party to inform the court of anything other than juror
nondisclosure of litigation history. And subdivision (e) of the rule does not provide
for the waiver of a juror nondisclosure claim for anything other than the
failure to disclose litigation history.[59]
Though
the majority may feel it is fair to hold a party to knowledge of facts that
become obvious after a Case.net search, the dissent’s legal analysis should
have carried the day. Rule 69.025 speaks
only to waiver based on nondisclosure of a juror’s litigation history. The plain language of the Rule mandates such a
conclusion. If the Supreme Court of
Missouri wanted to expand the meaning of the Rule to encompass waiver of all juror nondisclosure, it could have
and should have amended the Rule properly.
- Taylor A. Payne
[1]
Spence v. BNSF Ry. Co., 547 S.W.3d 769, 771 (Mo. 2018) (en banc).
[2]
Id. at 772.
[3]
Id.
Though BNSF motioned for a new trial based on grounds in addition to
juror nondisclosure, this note addresses only the rulings on juror
nondisclosure.
[4]
Id.
[5]
Id. at 771.
[6]
Id.
[7]
Id.
[8]
Id.
[9]
Id.
[10]
The jury awarded Sherry Spence twenty million dollars, which the circuit court
reduced to nineteen million after adjusting the verdict for the jury’s finding
that Scott Spence was 5% at fault. Id. at
772.
[11]
See id. (“At the center of BNSF’s
motion for a new trial is the conduct of Juror Kimberly Cornell.”).
[12]
Id.
[13]
Id.
[14]
Id.
[15]
Id.
[16]
Id.
[17]
Id.
[18]
Id.
[19]
Id.
[20]
Id. at 772–73.
[21]
Id. at 773.
[22]
Id.
[23]
Id.
[24]
Id. (footnote omitted)
[25]
Id.
[26]
Id.
[27]
Id.
[28]
Id.
[29]
Id.
[30]
Id.
[31]
Id.
[32]
Id. at 773–74.
[33]
Id. at 774.
[34]
Id.
[35]
Id. at 775.
[36]
Id. at 781 n.1 (Powell, J.,
dissenting) (citing Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010) (per
curiam) (en banc)).
[37]
Id.
[38]
Rule 69.025 was adopted June 25, 2010 and became effective January 1, 2011. 69.025. Juror Nondisclosure, available
at https://www.courts.mo.gov/courts/ClerkHandbooksP2RulesOnly.nsf/C0C6FFA99DF4993F86256BA50057DCB8/C01A106B47AF0685862578090067BFDC?OpenDocument.
[39]
Rule 69.025 (2011).
[40]
Id.
[41]
Id.
[42]
Id. (emphasis added).
[43]
Id.
[44]
See id.
[45]
Spence v. BNSF Ry. Co., 547 S.W.3d 769, 776 (Mo. 2018) (en banc).
[46]
Id. at 775.
[47]
Id.
[48]
Id. at 776 n.7.
[49]
Id. at 781 (Powell, J., dissenting).
[50]
Id.
[51]
Id.
[52]
Id.
[53]
Id.
[54]
Id.
[55]
Id. at 782.
[56]
Id.
[57]
Id. (citing Buemi v. Kerckhoff, 359
S.W.3d 16, 20 (Mo. 2011) (en banc)).
[58]
W. Dudley McCarter, Juror Nondisclosure, 55 J. Mo. B. 214 (1999).
[59]
Spence, 547 S.W.3d at 781.
