Missouri Court of Appeals Reverses Trial Court’s Denial of Party Asking an Insurance Question in Jury Selection; Verdict for Defendants Reversed and Remanded for New Trial

This was a case involving claims of birth injury and medical negligence-wrongful death. Plaintiffs Abraham J. Eoff and Crystal M. Eoff, on behalf of Sophee R. Eoff, deceased, appealed the trial court’s judgment entered in favor of the defendant, Jennifer K. McDonald, D.O. and Seasons Healthcare for Women, P.C., following a jury trial. The Eoffs claimed that the trial court erred by denying them the right to ask “the insurance question.”

The Circuit Court of Appeals reversed and remanded for a new trial.

“Appellants brought claims for medical negligence against Respondent based on allegations that Respondent Dr. McDonald caused the decedent’s death in which he used a vacuum extractor improperly during labor and delivery of Crystal Eoff. Appellants learned that Respondents maintained a medical malpractice liability policy with Missouri Doctors Mutual Insurance Company (MDMIC) . . .”

Prior to jury selection, the Eoffs’ lawyer asked the trial court for permission to ask a question of the venire panel regarding the defendants’ insurance carrier, a question colloquially known as the “insuranceMissouri Doctors Mutual Insurance Company question.”

The proposed question was as follows: “Is anyone here employed by or have financial interest in Missouri Doctors Mutual Insurance Company?” The defendants did not object to the question, and the court ruled that the Eoffs would be permitted to ask it.

When the defendants finished the voir dire question, “Appellants’ counsel approached the bench, informed the court that he had additional questions and that since in his haste he had failed to ask the approved insurance question, he proposed to the court that he would ask in between two other questions he still had for the panel.”

The court refused to allow plaintiffs’ counsel to ask the insurance question. Defendants’ counsel argued that no one under the venire panel had any relation to MDMIC, and he told the court that he had met all the employees of MDMIC . . . and could assure the court that none of them was on the venire panel.

Following defendants’ assertions in that regard, the court reasoned that greater prejudice was risked by allowing plaintiffs’ counsel to ask the insurance question between two other questions, than by forbidding it to be asked at all.

After a six-day trial and a day of deliberation, the jury returned a verdict in favor of the defendants. “The Missouri Supreme Court has held that because a party has a right to ask a proper insurance question, the denial of that right is an issue of law that we review de novo. Ivy v. Hawk, 878 S.W. 2d 442, 445 (Mo. Banc 1994) . . .”

The Missouri Supreme Court has held that the trial court’s denial of the right to ask a proper insurance question is prejudicial as a matter of law. Ivy, 878 S.W. 2d at 446 (citing Crothers, 745 S.W. 2d at 172).

Plaintiffs have a constitutional right to a fair and impartial jury and should not be required after the trial to establish whether they were denied this right because the trial court failed to allow them to properly voir dire the panel.

Allowing plaintiffs to ask this question (insurance question) has been the accepted practice in Missouri for many years and procedures for asking them are simple, straightforward and easy to apply. Allowing one such question preserves the balance of permitting the plaintiff to know if any members of the jury panel have an interest in the insurance company while avoiding the prejudice of emphasizing the issue of insurance.

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 a question is weighed against the relative likelihood of any affirmative answers to the questions.

For these reasons, the Missouri Court of Appeals reversed the jury verdict and remanded the case for a new trial.

Eoff v. McDonald, No. E.D. 106265 (Nov. 20, 2018).

Kreisman Law Offices has been handling birth trauma injury lawsuits, birth injury cases, traumatic brain injury lawsuits, cerebral palsy lawsuits and wrongful death cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Winfield, Gurnee, Crystal Lake, Cary, Palos Heights, Palatine, Forest Park, Crestwood, Midlothian, Mundelein, Arlington Heights, Chicago (Bronzeville, Chinatown, Greek Town, Wrigleyville, Hyde Park, DePaul University Area, Loyola Park), Antioch, Richton Park, Flossmoor, Olympia Fields and Deerfield, Ill.

Robert D. Kreisman has been an active member of both the Illinois and Missouri bars since 1976.