Possibility of Bias Will Not Disqualify Juror; Twenty-One Million Dollar Verdict in Wrongful Death Case Did Not Shock the Conscience

W. Dudley McCarter
Behr, McCarter & Potter
St. Louis

George Lopez and Kenney Jones were killed when the helicopter they were in struck power lines across the Osage River that did not have marker balls on them. The power lines were maintained by Three Rivers Electric Cooperative. Their families filed wrongful death suits against Three Rivers. The jury found Three Rivers 100% at fault and returned a verdict for Lopez in the amount of $11,000,000 and for Jones in the amount of $10,000,000. Three Rivers appealed on several grounds, including the failure of the trial court to strike a venire person who indicated that she had sympathy for the plaintiffs. The motion to strike her was denied and she became foreperson of the jury. The Court of Appeals found no error and affirmed in Lopez v. Three Rivers Electric Cooperative, No. ED 80228 (Mo. App. E.D. 2002).

The trial court is given broad discretion to determine whether prospective jurors are qualified, and rulings on that issue will not be disturbed on appeal unless they constitute a clear abuse of discretion and a real probability of injury to the complaining party. The trial court is in a better position to determine the qualifications of prospective jurors and doubts as to the trial court's findings will be resolved in its favor. The critical question in reviewing the exercise of discretion is whether the challenged venire person indicated unequivocally her ability to evaluate the evidence fairly and impartially. Where a venire person appears uncertain about his or her ability to be fair and impartial, the trial court has a duty to make an independent inquiry. When an answer to a question suggests the possibility of bias and, upon further questioning, the venire person gives unequivocal assurances of impartiality, the bare possibility of bias will not disqualify the venire person or deprive the trial court of discretion to seat the venire person. Here, the venire person expressed sympathy toward the plaintiff and her family. On further questioning, however, she also stated that she thought she would be fair. The fact that she used imprecise language does not make her response equivocal. The trial court did not abuse its discretion in refusing to strike the venire person for cause.

Also, the trial court did not abuse its discretion in refusing to remit the jury's verdict or grant a new trial. The trial court has broad discretion in ordering remittitur and its decision whether or not to reduce damages will not be disturbed on appeal absent an abuse of discretion so grossly excessive that it shocks the conscience and convinces the court that both the trial judge and the jury have abused their discretion. In reviewing whether a verdict is excessive, we are limited to a consideration of the evidence that supports the verdict, excluding that which disaffirms it. There is no precise formula for determining whether a verdict is excessive and each case must be considered on its own facts, with the ultimate test being what fairly and reasonably compensates plaintiffs for the injuries sustained. A new trial is only available upon showing that trial court error indicated prejudice in the jury; the amount of the verdict, by itself, is not enough to establish that the verdict was a result of bias, passion or prejudice. Given the loss of income, and the loss of companionship, comfort, instruction, guidance, counsel and training suffered by the plaintiffs, as well as the superior opportunity for the jury and the trial court to evaluate plaintiffs' damages, the verdicts of $11,000,000 and $10,000,000 were not so grossly excessive as to shock the conscience.

Attempted Suicide Not Covered by Workers' Compensation

William Thomas was a 38-year veteran of the Springfield Police Department. In 1993, he joined the Major Case Response Team, which was responsible for investigating violent crimes. He was also named Sergeant of Detectives, assigned to investigate crimes against persons. On a number of occasions, he asked to be relieved from these duties to spend more time with his family and reduce what he described as an unbearably stressful workload. His requests were denied for several reasons. He was the lead investigator in several brutal homicides and crimes that attracted much media attention. During March of 1999, he came home from work, went to the bedroom and shot himself in the heart with his service revolver. He survived, but is permanently disabled and confined to a wheelchair. He filed a claim for workers' compensation benefits, claiming that the extraordinary stress of his job created mental injuries that resulted in his physical disability. The administrative law judge denied him compensation, which was upheld by the Labor & Industrial Relations Commission. The Court of Appeals affirmed in Thomas v. City of Springfield, No. 24849 (Mo. App. S.D. 2002).

Under § 287.120, RSMo, no compensation shall be allowed for injury or death due to an employee's intentional self-inflicted injury. Missouri follows the Sponatski Test, under which a suicide or attempted suicide is compensable only if: (1) as the result of a physical injury, (2) the worker was possessed of an uncontrollable impulse to commit suicide, or was in a delirium of frenzy, (3) did not consciously intend to kill himself, and (4) did not realize the consequences of his act of self-destruction. Here, Thomas intentionally pointed the gun at his chest and shot himself hoping to end his life; it was an intentional, self-inflicted injury. While Thomas suffered from clinical depression and his act of shooting himself was not rational, the law is clear that an intentional act is not compensable under the workers' compensation law.

When Factual Issues Exist, Statute of Limitations Is Not A Question of Law

Helen Allen contracted with Mike Kuehnle for him to construct a new home for her. The lot on which her new home was to be built contained an older residence, which was demolished. Kuehnle completed construction of the Allen home in May of 1993. After moving in, Allen gave Kuehnle a punchlist of items to be corrected; the list included cracks in the drywall. In 1998, Allen noticed numerous large cracks in the foundation, exterior brick walls and drywall. Also, doors and windows in the home became out of plumb and the driveway had sunk. Allen filed suit against Kuehnle in November 1999. Kuehnle filed a Motion for Summary Judgment contending that the five-year statute of limitations had run. The trial court granted summary judgment to Kuehnle, but the Court of Appeals reversed in Allen v. Kuehnle, No. ED 80727 (Mo. App.E.D. 2002).

Under § 516.120, RSMo, Allen's suit for construction contract-related claims must be filed within five years of the date upon which her damages were sustained and capable of ascertainment. The phrase "capable of ascertainment" has never been given a precise definition. Capable of ascertainment refers to the fact of damage, rather than to the exact amount of damage. When the fact of damage becomes capable of ascertainment, the statute of limitations is put in motion. Normally, the running of the statute of limitations is a question of law for the court to decide. When, however, contradictory or different conclusions can be drawn from the evidence as to whether the statute has run, it is a question of fact for the jury to decide.

Here, the problems listed in Allen's 1993 punchlist were not of the sort that would indicate to a reasonable person that the home's foundation was faulty, but rather were typical problems commonly experienced in a newly constructed residence. Allen's expert testified that the home suffered from severe movement due to the fact that the property was erected upon insufficiently compacted soil. The problems Allen experienced before 1998 were not problems related to faulty soil compaction. The damages alleged in Allen's suit were not capable of ascertainment at the time she prepared her "punchlist" in 1993. The trial court erred in granting summary judgment to Kuehnle.

Expert Medical Testimony Was Improperly Excluded Under Frye Test

Dixie McReynolds filed a medical negligence action against her former dentist, Jerome Mindrup. She alleged that he failed to properly remove an old amalgam filling and replace it, as she had requested, with a filling that did not contain mercury. Dr. Mindrup filed a motion, under the Frye test, to exclude the expert testimony to be offered by McReynolds. After conducting an evidentiary hearing on the motion, the trial court entered an order excluding the expert testimony presented by McReynolds and then granted summary judgment to Mindrup. The Court of Appeals reversed, however, in McReynolds v. Mindrup, No. W.D. 60747 (Mo. App.W.D. 2002).

The admissibility of expert testimony is governed by § 490.065, RSMo. Missouri has generally followed the Frye test for the admissibility of new scientific techniques. Under Frye, the results of scientific procedures may be admitted only if the procedure is sufficiently established to have gained general acceptance in the particular field to which it belongs. The Frye doctrine has been applied to preclude expert testimony related to scientific techniques for principles that do not have wide scientific approval and in the opinions formed by the expert on the basis of such principles or techniques. Frye requires that expert testimony be based on scientific principles generally accepted in the relevant scientific community. Where an expert's methodology is not generally accepted in the relevant scientific field, a trial court is within its discretion to limit the expert's testimony by excluding testimony related to that methodology and any opinions arising therefrom. While there has been some confusion on the issue, Frye generally is not considered to be applicable when the testimony sought to be admitted does not involve scientific techniques.

Here, the trial court abused its discretion by excluding entirely all testimony from the proffered experts. Any testimony that these witnesses had to offer as fact regarding their treatment of McReynolds could not be properly excluded under Frye. Frye is simply not applicable to prevent a treating medical professional from testifying about the treatment he or she provided to the plaintiff. Under Frye, the trial court could only preclude testimony from treating medical professionals that related to scientific studies, methodologies, principles, tests or technology that are not generally accepted in the relevant field and any medical opinions or conclusions drawn by those individuals. The testimony offered by plaintiff's experts that does not have anything to do with scientific methodologies or techniques cannot properly be excluded under Frye. The trial court could only preclude testimony from treating medical professionals that related to scientific studies, methodologies, principles, tests or technology that are not generally accepted in the relevant field and any medical opinions or conclusions drawn by those individuals. The testimony offered by plaintiff's experts that does not have anything to do with scientific methodologies or techniques cannot properly be excluded under Frye.

Violation of Missouri Real Estate Commission Rules Barred Broker From Receiving Commission

In 1987, Vivian Kurchner became the listing agent for approximately 10 acres of property in St. Louis County that was owned by Robert Sheppard. The listing agreement was renewed annually and entitled Kurchner to a 10% sales commission upon the sale of the property. Between 1987 and 1996, 13 offers were made for the property, but none of the contracts closed. During this time, Kurchner had never sold a parcel of 10 acres or more, nor had she received a commission of more than 7%. In 1996, Sheppard entered into a sale contract for the property. Kurchner was not involved in the negotiations and was not present when the contract was signed. The sale price was for $1,700,000. At closing, Kurchner received payment of a 6% commission. When Sheppard refused to pay her another 4% commission, as she alleged he had agreed to, she filed suit to recover the balance due on her claimed commission. The jury awarded her $85,850, but the Court of Appeals reversed in Kurchner v. Sheppard, No. ED 79540 (Mo. App. E.D. 2002).

The rules of the Missouri Real Estate Commission are promulgated under the authority of Chapter 339 RSMo. Those rules require listing agreements to be in writing and contain all the terms and conditions agreed upon by the parties. They also require that the broker review the closing statement to verify its accuracy. Here, the closing statement, which the broker was responsible for reviewing, reflected only a 6% commission. There was nothing to confirm that any portion of the broker's commission was to be deferred.

The court found that the broker's claims were barred due to violations of the Missouri Real Estate Commission Rules. Given the facts of this case, and in balancing the loss to the broker against the purpose and public policy of the statutes and rules, protecting the public against fraud and incompetence in real estate transactions is far more important than any loss the broker might suffer. Here, the broker received a 6% commission and there was no written agreement representing that the commission was to be 10%, rather than 6%. A real estate closing should not only conclude a transaction between a seller and buyer, but should also conclude a transaction between a seller and his broker. There must be, after all, a reason that it is called a closing.

Statements Made During Judicial Proceedings Are Privileged

After Gary Wunsch died, his wife, Barbara Wunsch, filed a claim on his life insurance policy issued by Sun Life Assurance Co. In her claim, she did not identify a cause of death. Her attorney advised Sun Life that Mr. Wunsch had died from a tic bite. The Jackson County Medical Examiner issued a death certificate identifying the cause of death as cadmium poisoning, but stated that the manner of Mr. Wunsch's death could not be determined. Because the medical examiner could not determine a cause of death and could not rule out homicide, a police investigation ensued. When Sun Life refused to pay on the life insurance policy, Ms. Wunsch filed suit against it for vexatious refusal to pay. She later amended it to include a claim of defamation. The police department investigation came to no conclusion. Sun Life paid the policy proceeds into the court for a determination concerning the proper beneficiary. Sun Life then filed a motion for summary judgment, which the trial court granted. The Court of Appeals affirmed in Wunsch v. Sun Life Assurance Company of Canada, No. WD 60392 (Mo. App. W.D. 2002).

A defamation cause of action requires the plaintiff to show: (1) publication (2) of a defamatory statement (3) that identifies the plaintiff (4) that is false, (5) that is published with the requisite degree of fault, and (6) damage to the plaintiff's reputation. Missouri law provides that statements made during proceedings of a judicial or quasi-judicial body are absolutely privileged if they are relevant to the issues before the body. Here, the allegedly defamatory statements made by Sun Life were made in connection with the probate proceeding to require the administration of Mr. Wunsch's estate. These statements were certainly relevant to the issues involving Mr. Wunsch's estate and were made in connection with a judicial proceeding. Thus, they were absolutely privileged.

When Condemnor Pays Jury Verdict, It Waives Its Right to Appeal

St. Charles County condemned approximately two acres of property owned by the Wegmans. During the jury trial on the exceptions, the county's expert testified that the Wegmans' damages were approximately $139,000. The Wegmans' expert stated that the damages were approximately $1,500,000. The jury awarded the Wegmans $1,105,730 in damages. After the trial court entered judgment on the jury verdict, St. Charles County paid the judgment in full and then appealed. The Court of Appeals dismissed the appeal for mootness in St. Charles County v. Wegman, No. ED80319 (Mo. App. E.D. 2002).

When a party voluntarily pays a judgment rendered against it, it may not appeal from that judgment. When a judgment has been paid, the issue is settled and the question is moot. A cause of action is considered moot when the question presented for decision seeks a judgment upon some matter which, if judgment was rendered, would not have any practical effect upon the then existing controversy. When there is no existing controversy, an appellate court lacks jurisdiction and should dismiss the appeal. When, as here, a condemnor voluntarily pays the amount assessed after a jury verdict, the condemnor waives its right to appeal. Moreover, the county is ordered to pay $2,500 to the Wegmans' attorneys for filing a frivolous appeal.

Sewer Tap-In and Inspection Fee Charged by Municipality Did Not Violate Hancock Amendment

Voters in the City of Sullivan passed a sewage and water revenue bond in the amount of $3,305,000 for the purpose of extending and improving the city's water works and sewer system. After voters passed the revenue bond, the city enacted an ordinance that required residents to pay a connection fee if they wanted to tap into the new system. The residents were charged $3,750 for a gravity connection or $4,250 for a grinder pump connection to the new system. Residents who were using the old sewer system were required to pay only a connection fee of $60 or $70, which was the same as for the old system. Merrill Larson and other Sullivan residents filed suit against the city, contending that the new connection fee violated the Hancock Amendment since it was not approved by the voters. At trial, the city presented evidence that the pumps, which were installed by the city to make the connection to the new system, cost approximately $5,000. In addition to that expense, the city incurred other expenses related to the lateral line, which averaged $1,500 per home. Also, the city covered the expense of inspecting the installation of the new line. The trial court found that the fees were lawful and the Court of Appeals affirmed in Larson v. City of Sullivan, No. ED80469 (Mo. App. E.D. 2002).

Under the Keller v. Marion County Ambulance District case, the court must consider five factors in determining whether the charge is a tax requiring voter approval. First, the fees in question here were not paid on a periodic basis but were assessed only once. This factor supports Sullivan. Second, the fee was paid only by those homeowners who tapped into the new system. This factor favors Sullivan. Third, as shown by the city's evidence, the amount of the fee was consistent with and dependent upon the level of goods and services being provided by the city to the residents who connected to the main line. This factor favored Sullivan. Fourth, Sullivan was providing a good or service to its residents who received the benefit of the new sewer system in return for payment of the fee. Thus, this factor also favors Sullivan. Fifth, sewer service was historically provided by the city and this factor favored the residents. Since four of the five Keller factors favored Sullivan, the connection fee imposed by the city was not subject to the Hancock Amendment.

JOURNAL OF THE MISSOURI BAR
Volume 58 - No. 6 - November-December 2002