The Missouri Court of Appeals Eastern District Division Three (“Missouri Appellate Court”) held in its opinion filed on November 20, 2018: “Because of the fundamental nature of the right to a fair and impartial jury, the trial court has no discretion to deny a party the right to ask the insurance question if the proper foundation is laid … we find that the trial court erred as a matter of law by denying Appellants the right to ask the insurance question because the proper foundation had been laid, the question had been approved by the court, voir dire was still proceeding with the panel in the courtroom, the court solicited Appellants’ counsel if he had further inquiry, and counsel’s intention to imbed the insurance question between other questions is the legally-sanctioned method to avoid unduly highlighting the question.”
The Underlying Facts
The Missouri medical malpractice lawsuit alleged medical negligence in causing the death of a baby during delivery when the defendant doctor improperly used a vacuum extractor to deliver the baby. The defendant doctor was insured by Missouri Doctors Mutual Insurance Company. The plaintiffs proposed to ask the “insurance question” of the venire panel during voir dire: “Is anyone here employed by or have a financial interest in Missouri Doctors Mutual Insurance Company?” The defendant did not object to the insurance question and the court ruled that the plaintiffs would be allowed to ask the question during voir dire.
The plaintiffs’ Missouri medical malpractice attorney proposed to ask the insurance question between two other questions that he still had for the venire panel but the trial judge refused to allow the insurance question, stating, in part: “I am going to say no given that I don’t perceive … how he could be prejudiced, there’s only 20 employees, it’s on the other side of the state, the answer [to the question is not likely to be yes] … So really the prejudice is more to the other side by unduly highlighting it.” The Missouri medical malpractce jury subsequently returned a defense verdict, and the plaintiffs appealed.
The Missouri Appellate Court stated that the Missouri Supreme Court had held in 1994 that because a party has the right to ask a proper insurance question, the denial of that right is an issue of law that is reviewed de novo. The Missouri Appellate Court stated that while the trial court retains some discretion with regard to how the insurance question is asked, such discretion “has in large part been limited to the trial court’s pre-voir dire determination whether the question is proper in form and foundation and therefore approved to be asked.”
The Missouri Supreme Court has set forth the acceptable procedure for asking the insurance question: (1) obtain the judge’s approval of the proposed question out of the hearing of the jury panel, (2) ask only one insurance question, and (3) do not ask it first or last in a series of questions so as to avoid unduly highlighting the question to the jury panel.
The Missouri Appellate Court held: “in cases like this one where a proper and approved insurance question was to be asked, the trial court has no discretion to deny the right to ask the insurance question based on a prejudice-weighing analysis such as occurred here in which the potential prejudice in asking the question is weighed against the relative likelihood of any affirmative answers to the question … Plaintiffs have a constitutional right to a fair and impartial jury and shoud not be required after trial to establish whether they were denied this right because the trial court failed to allow them to properly voir dire the panel.” The Missouri Appellate Court therefore reversed the defense verdict and remanded the Missouri medical malpractice case for a new trial.
Source Eoff v. McDonald, D.O., No. ED106265.
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