Opinion
No. 28084
June 26, 2007
Appeal from Circuit Court of Greene County, Hon. J. Miles Sweeney.
David S. Ransin, Counsel for Appellant.
Kent O. Hyde and Shannon A. Vahle, Counsel for Respondent.
Wesley Leon Joy ("Mr. Joy") and Linda Joy ("Mrs. Joy") (collectively "Appellants") appeal the trial court's judgment entered in favor of Dr. Stephen K. Morrison ("Dr. Morrison") and Dr. John Wordy Buckner, III ("Dr. Buckner") (collectively "Respondents") following a jury trial on Appellants' medical malpractice claim against Respondents.
An extensive recitation of Appellants' claims against Respondents is not necessary in our review. It is sufficient to note Mr. Joy was treated by Respondents in conjunction with a cardiac catherization and a coronary artery bypass which necessitated the removal of a vein from Mr. Joy's leg. Complications arose following the removal of the vein from Mr. Joy's leg and Mr. Joy eventually had to have his leg amputated above the knee. At trial, the jury found no liability on the part of Respondents and the trial court assessed costs against Appellants.
In their sole point on appeal, Appellants assert the trial court erred in sustaining Respondents' objection to their challenge for cause of venireperson Clarence Shirkey ("Mr. Shirkey"). Specifically, Appellants assert Mr. Shirkey "was not a properly qualified juror to serve in this case. . ." based on his testimony. Appellants maintain that during voir dire Mr. Shirkey did not recant his "strong feelings" and "strong bias" regarding lawsuits in general nor was he rehabilitated by counsel on those issues during voir dire. Accordingly, Appellants maintain the trial court erred in failing to conduct its own inquiry of Mr. Shirkey and in denying their challenge for cause. We affirm the judgment of the trial court.
The record reveals voir dire in the present matter began on June 19, 2006. Mr. Shirkey, a member of the jury venire, informed the trial court he worked as "[d]irector of supply and development for Tracker Marine Group;" his wife is a homemaker; he has grown children; and he has lived in Greene County for five years. When another juror stated that doctors sometimes make mistakes and "you should just live with the result," Appellants' counsel asked the venire if anyone else felt that way. Mr. Shirkey indicated he agreed with that statement and the following exchange took place between counsel for Appellants and Mr. Shirkey:
Mr. Shirkey: I wasn't going to say anything, but I think that things are way out of hand in the country as far as lawsuits against doctors or whoever. Some of the judgments that you read about, you know, millions of dollars for this or that, and it —
Counsel for Appellants: They sound crazy, don't they?
Mr. Shirkey: Yeah, they sound crazy, so I just want to go on record.
Counsel for Appellants: And, please — and I'll use you as an example, if I may, please — don't be shy about telling us. The Judge already told you, we don't want to have to try this case again because of a mistrial or something else. We have to know these things from you, and that's why it's going to take all day to pick this jury, because there are a lot of strong feelings on both sides of these issues. And we need to know about it. So don't apologize about telling us.
But you raise a slightly different topic about all other lawsuits, and I'm going to talk about that in a minute, or amounts of dollars the juries have signed verdicts for.
Let me just focus on this doctor lawsuit type of issue like we've been talking about. How do you feel about that issue?
Mr. Shirkey: I don't know. I — I probably would be biased for the doctors.
Counsel for Appellants: You would be?
Mr. Shirkey: Probably, unless you could persuade me.
Counsel for Appellants: And that's kind of a subset of the bigger issue of just lawsuits in general, right?
Mr. Shirkey: Yes.
Counsel for Appellants: And you have strong feelings about lawsuits in general that you have a strong bias against?
Mr. Shirkey: Yes.
Counsel for Appellants: And I'll just tell you that the jury will be asked to award a substantial amount of money. We can't — we can't go back in time. We can talk about future time, but we can't go back in time and change anything, and the civil law only allows compensation and to make up for and help fix things with money. And we're going to talk about that in the future, later this morning or this afternoon.
But that whole concept bothers you.
Mr. Shirkey: I would say it probably does, yes.
Counsel for Appellants: And I'm not talking amounts of money, just giving the money for injuries.
Mr. Shirkey: Oh, no, that doesn't.
Counsel for Appellants: Okay. But it's the amounts of money?
Mr. Shirkey: Right.
Counsel for Appellants: What kinds of amounts bother you?
Mr. Shirkey: Well, you hear McDonald's, somebody that spills coffee, they get $3 million. You wonder what in the world is going on?
Counsel for Appellants: Uh-huh.
Mr. Shirkey: Just use that as an example.
Counsel for Appellants: Well, and I feel the same way, and I'm sure other people here do, too. But you realize this isn't a McDonald's coffee case?
Mr. Shirkey: That's right.
Counsel for Appellants: There's no allegation of spilling coffee. McDonald's isn't here. Can you put that completely out of your mind?
Mr. Shirkey: Yes.
Counsel for Appellants: Okay. You kind of hesitated.
Mr. Shirkey: No, no, I can put that out of my mind.
Counsel for Appellants: We'll come back to this in a little bit, but while you're standing, let me cover it with you while you have it in your mind.
In the context of signing a verdict for a large amount of money, would — and you haven't heard the evidence, you don't know anything about the claims — the mere fact that it's a large amount of money, is there a number at which you'd say I won't sign that verdict regardless of the evidence?
Mr. Shirkey: No.
Counsel for Appellants: Okay. We'll come back and talk about that a little bit more, Mr. Shirkey, but just so that I'm — I've got my notes clear, on the issue of lawsuits against doctors, that does trouble you substantially, that in and of — by itself?
Mr. Shirkey: Yes.
Counsel for Appellants: And that might very well affect your ability to listen to the experts and give them fair credence?
Mr. Shirkey: It could.
Counsel for Appellants: Okay. Thank you, sir.
Following questioning by Appellants' counsel, Dr. Morrison's counsel inquired of Mr. Shirkey:
Counsel for Dr. Morrison: If — if you're — if you believe there's negligence and there's damages and you get to decide what they are and how much, you can do that?
Mr. Shirkey: Yes.
Counsel for Dr. Morrison: And if you believe there's no negligence, you also can find in favor of the doctors?
Mr. Shirkey: Yes.
Thereafter, Dr. Buckner's counsel asked the following of Mr. Shirkey:
Counsel for Dr. Buckner: I had written down that at one point in time you made a comment to the effect that you had a concern that you might be biased in favor of the doctor, and you would not say there was any particular dollar amounts that you really could commit to without knowing anything further, and that those things could cause problems.
Now, after having said that, you've heard my line of questions about not only can you be fair and unbiased, but would you be fair and unbiased if you were selected on this jury?
We all are a compendium of our experiences, our background. If you are selected to serve on this jury, would you be — starting out, would you be equally fair to both the doctors and Mr. and Mrs. Joy? Or do one side or the other start out with a real advantage.
Mr. Shirkey: No, I don't believe they do. I think I could be fair.
Counsel for Dr. Buckner: Okay.
Mr. Shirkey: You know, I'm a firm believer that the awards by the Court and the jury is way out of line. I think it's — you know.
Counsel for Dr. Buckner: I want to cut to the chase. I want to know if you folks will tell the Court and jury that if you're selected you will be fair, and your answer is you would be?
Mr. Shirkey: Yes.
Counsel for Dr. Buckner: Okay. And then as far as talking about dollar amounts for — if you were to find in favor of [Appellants], trying to commit anybody to a dollar amount in the future without having heard any evidence, is that the problem that you had with those lines of questions?
Mr. Shirkey: No.
Counsel for Dr. Buckner: Okay. So as far as — as far as dollar amounts, would you be fair and reasonable and would you listen to the other jurors if you, in fact, did find for [Appellants] — which I don't think you will — but if you did, would you take into account everything they said and mix in with the group?
Mr. Shirkey: Well, you said two key words, fair and reasonable.
Counsel for Dr. Buckner: Sure.
Mr. Shirkey: Yes.
Following voir dire, the parties presented their challenges for cause to the trial court. The following exchange regarding Mr. Shirkey took place at that time:
The Court: Yeah, he was one of those that expressed a bias for the doctors but then recanted, and — I think, under [Counsel for Dr. Buckner's] re-examination. How bad was he? Counsel for Appellants: I've got — I've got a number of things with [Counsel for Dr. Buckner]. He said he was a firm believer that verdicts are way out of line.
The Court: Get a lot of that.
Counsel for Appellants: Wants to go on the record, and he was troubled about the fact that the lawsuit is against the doctor. That bothers him. I asked if it was a car wreck or health care — that was early this morning. He was — he was pretty vocal about that.
Counsel for Dr. Morrison: Well, being bothered by a proposition, I don't think, is fair, Judge. We, again, flat put the question to him, and he had no hesitation whatsoever, and that included a finding for [Appellants].
The Court: You know, I understand [Counsel for Appellants'] concern that jumping back in and just making somebody — shaming them into saying they would be fair doesn't clear the boards, but in Mr. Shirkey's case, I felt pretty good about the response. I'm going to decline to strike [Mr.] Shirkey, No. 19, for cause.
As a result of the trial court's ruling, Mr. Shirkey was seated on the jury in this matter.
Appellants exercised their three peremptory strikes. Mr. Shirkey remained on the petit jury panel.
At the close of all of the evidence, the jury returned a verdict in favor of Respondents and against Appellants. The trial court entered judgment in favor of Respondents and assessed costs against Appellants. This appeal followed. It is axiomatic that civil litigants are entitled to a fair and impartial trial before a jury of twelve qualified jurors. Williams v. Barnes Hosp. , 736 S.W.2d 33, 36 (Mo. banc 1987). Litigants "are entitled to unbiased jurors whose experiences. . . will not prejudice the resolution of the case." Id . It is essential that a "competent juror 'must be in a position to enter the jury box disinterested and with an open mind, free from bias or prejudice.'" Catlett v. Illinois Cent. Gulf R.R. Co. , 793 S.W.2d 351, 353 (Mo. banc 1990) (quoting State v. Ealy , 624 S.W.2d 490, 493 (Mo.App. 1981)). "'[V]oir dire provides an opportunity to expose prejudices or biases that would prevent prospective jurors from serving as fair and impartial jurors.'" Smith v. Assoc. Nat. Gas Co. , 7 S.W.3d 530, 533 (Mo.App. 1999) (quoting State ex rel. Missouri Hwy. and Transp. Comm'n v. Buys , 909 S.W.2d 735, 737 (Mo.App. 1995)). "[T]he voir dire process 'is also one of the highest duties of courts, in the administration of the law concerning selection of jurors and juries, to seek to accomplish that purpose of an impartial jury.'" Pollard v. Whitener , 965 S.W.2d 281, 286 (Mo.App. 1998) (quoting Littell v. Bi-State Transit Dev. Agency , 423 S.W.2d 34, 38 (Mo.App. 1967)).
On appellate review, this Court affords the trial court broad discretion in its voir dire inquiry and related decisions. Smith , 7 S.W.3d at 533. "'Mindful that the trial court is in a better position to determine the qualifications of prospective jurors, doubts as to the trial court's findings will be resolved in its favor.'" Edley v. O'Brien , 918 S.W.2d 898, 903 (Mo.App. 1996) (quoting Ray v. Gream , 860 S.W.2d 325, 331-332 (Mo. banc 1993)). "'Appellate courts do not reverse trial courts rulings made during voir dire 'unless they clearly and manifestly indicate an abuse of such discretion.'" Smith , 7 S.W.3d at 533 (quoting Buys , 909 S.W.2d at 737).
"'An abuse of discretion is found when a ruling clearly violates the logic of the circumstances or is arbitrary or unreasonable.'" Id . at n. 2 (quoting Rust v. Hammons , 929 S.W.2d 834, 837 (Mo.App. 1996)). We grant the trial court broad discretion in determining the qualifications of prospective jurors "[b]ecause a large part of the voir dire process depends upon the demeanor and credibility of prospective jurors and other intangibles that were observed by the trial court but cannot be observed by this [C]ourt. . . ." Brown v. Collins , 46 S.W.3d 650, 652 (Mo.App. 2001).
"While the Supreme Court of Missouri has observed that 'the trial court's discretion in controlling the manner and extent of questioning on voir dire will be upheld absent abuse,' it is also clear that 'the party asserting abuse has the burden of demonstrating a real probability that he was thereby prejudiced.'" Smith , 7 S.W.3d at 534 (quoting State v. Gray , 887 S.W.2d 369, 382 (Mo. banc 1994)) (internal citation omitted).
In making its decision about the qualifications of a juror, a trial court must "consider the responses of the prospective jurors on voir dire in their entirety and make an independent evaluation of their ability to serve impartially." Catlett , 793 S.W.2d at 353. In this connection, section 494.470 states in pertinent part:
1. No witness or person summoned as a witness in any cause, no person who has formed or expressed an opinion concerning the matter or any material fact in controversy in any case that may influence the judgment of such person, and no person who is kin to either party in a civil case or to the injured party, accused, or prosecuting or circuit attorney in a criminal case within the fourth degree of consanguinity or affinity shall be sworn as a juror in the same cause.
2. Persons whose opinions or beliefs preclude them from following the law as declared by the court in its instructions are ineligible to serve as jurors on that case.
All statutory references are to RSMo 2000.
Appellants assert in their brief and at oral argument that section 494.470.1 should have guided the trial court in its determination as to whether Mr. Shirkey should have been disqualified for cause. The difference in sections 494.470.1 and 494.470.2 is that under section 494.470.1 such persons having "formed or expressed an opinion concerning the matter or any material fact in controversy. . . shall [not] be sworn as a juror in the same cause." (Emphasis added.) Section 494.470.2, on the other hand, precludes potential jurors who are unable to follow the court's instructions due to their "opinions or beliefs." Ray , 860 S.W.2d at 333 n. 1 (quoting State v. Debler , 856 S.W.2d 641, 645 (Mo. banc 1993)), explains that there is a difference
'between the disqualifying bias of those who have formed an opinion on the material facts of the case, see [section] 494.470.1, and other types of bias that are merely 'opinions about larger issues' — opinions that all prospective jurors will have to some extent. Under [section] 494.470.2, that type of bias is disqualifying 'only if the prospective jurors' views would preclude following the instructions given by the court.'
Here, there is nothing in the record to suggest Mr. Shirkey had any knowledge "concerning the matter or any material fact in controversy. . . ." Section 494.470.1. The only information known to Mr. Shirkey at the time of voir dire appeared to be basic information, such as the fact that the litigation involved a medical malpractice action. The opinions and beliefs expressed by Mr. Shirkey related to his opinions about lawsuits and doctors in general and had no relation to anything specific to the facts of the case. Accordingly, the issue here is whether Mr. Shirkey's opinions and beliefs were such that they would have precluded him from following the directions of the trial court and, thereby, excluding him as a juror pursuant to section 494.470.2.
As previously related, upon questioning by Appellants' counsel, Mr. Shirkey initially expressed his concern regarding lawsuits which resulted in the award of excessive damages. He stated "things are way out of hand in the country as far as lawsuits against doctors or whoever" in which people are receiving awards of "millions of dollars for this or that. . . ." Mr. Shirkey stated he had a "strong bias" against "lawsuits in general" and his concern was related to the amount of money awarded as opposed to the fact that people were being compensated for their injuries. He stated he would have a problem awarding a "substantial amount of money," but there was no specific amount of money which he thought was per se excessive. When asked how he felt about lawsuits against doctors specifically, he stated he "probably would be biased for the doctors," but could be "persuad[ed]" in the other direction. Mr. Shirkey admitted he was "substantially" troubled by lawsuits and his opinions "could" affect his "ability to listen to the experts and give them fair credence."
Upon questioning by Dr. Morrison's counsel, Mr. Shirkey responded that if he found negligence, he would be able to award damages in favor of Appellants and if he did not find negligence, he would be able to find in favor of Respondents. Similarly, he was asked by counsel for Dr. Buckner if he could be "fair and unbiased if [he] were selected on this jury?" and he responded that he "could be fair." He stated that neither side had "a real advantage" in his opinion and that he could be equally fair to all parties. He reiterated that he is a "firm believer that the awards by the Court and the jury [are] way out of line. . .," but he could be a fair juror. He insisted he would be "fair and reasonable" in evaluating the evidence and the opinions of the other jurors.
Additionally, there were numerous questions posed to the entire venire to which Mr. Shirkey did not feel compelled to respond. For instance, the venire was asked to raise their hands if any of them had a problem "about the mere fact that this is a lawsuit against doctors;" if they felt that they could not follow the trial court's instructions; or they could not"keep an open mind until [they had] heard all of the evidence."
Likewise, Mr. Shirkey made no response when the venire panel was asked if anyone felt"that a doctor not hurting anybody by intention, but failing to use the same standard of care that a reasonably prudent and skilled physician would. . . should not be held accountable. . . for the injuries that caused this." Also, Mr. Shirkey did not respond when asked if any members of the panel could not follow the standard of care which had been read to them aloud during voir dire; if any veniremen could not apply the burden of proof as explained to them by counsel and the trial court; or if any of the venire panel members could not find liability, apportion fault or award damages based on the instructions and evidence presented.
"[W]hile [Mr. Shirkey] may have expressed a general feeling against excessive lawsuits, it was not clear that that translated into a bias against Appellants." Rogers v. B.G. Transit Corp. , 949 S.W.2d 151, 156 (Mo.App. 1997)." Mere equivocation is not enough to disqualify a juror." McClain v. Petkovich , 848 S.W.2d 33, 35 (Mo.App. 1993)."If the challenged venireperson subsequently reassures the court that he can be impartial, the bare possibility of prejudice will not deprive the judge of discretion to seat the venireperson." Id ."Initial reservations expressed by venirepersons do not determine their qualifications; consideration of the entire voir dire examination of the venireperson is determinative." State v. Feltrop , 803 S.W.2d 1, 8 (Mo. banc 1991). Here, although Mr. Shirkey did give some equivocal answers during voir dire which hinted at the possibility of prejudice, it is our view, much like that of the trial court, that the tenor of his testimony overall was that he would be fair and impartial. McClain , 848 S.W.2d at 35. Additionally, Mr. Shirkey expressed no reservations by raising his hand when asked if any of the venire could not follow the trial court's instructions. See Ray , 860 S.W.2d at 333 n. 1; Debler , 856 S.W.2d at 645.
While we note that"[a] failure by a trial judge to question independently a potential juror to explore possible prejudice may undercut any basis for a trial judge's exercise of discretion and constitute reversible error. . .," Acetylene Gas Co. v. Oliver , 939 S.W.2d 404, 411 (Mo.App. 1996), such an inquiry was not necessary in the present matter, because any potential equivocation or possible prejudice in Mr. Shirkey's initial responses was cleared up by the voir dire questioning.
The critical question in these situations is always"whether the challenged venirepersons indicated unequivocally their ability to fairly and impartially evaluate the evidence." Id . In this connection, it is"proper for the trial court to consider the juror's testimony concerning his or her ability to act impartially." Ray , 860 S.W.2d at 334. The trial court is not"prohibited from basing its determination on the opinions or conclusions of the jurors, but. . . the trial court must make an independent determination of the jurors' qualifications." Id ."That task is accomplished when the trial court reviews and evaluates the jurors' conclusions and weighs them against the earlier admissions of prejudice." Id .
The trial court in the present matter declined to strike Mr. Shirkey because it felt"pretty good about" Mr. Shirkey's responses to questioning regarding his ability to be fair and impartial."The trial court, being in a better position than this [C]ourt to evaluate the responses [of the venire],. . . found [Mr. Shirkey's testimony] to be an unequivocal indication that [Mr. Shirkey] could evaluate the evidence fairly and impartially," Edley , 918 S.W.2d at 904, such that it was unnecessary for the trial court to independently voir dire Mr. Shirkey. The record supports the trial court's determination in this respect.
The trial court did not abuse its discretion in failing to strike Mr. Shirkey for cause. Appellants have failed to prove they were prejudiced by the trial court's denial of their request to strike Mr. Shirkey from the jury venire. Smith , 7 S.W.3d at 534. The judgment of the trial court is affirmed.