In a medical malpractice lawsuit, the Missouri Supreme Court affirmed the judgment against the plaintiffs following a jury verdict in favor of the defendants. The state’s high court held that the circuit court did not commit reversible error when it refused to allow the plaintiffs’ attorney additional voir dire time so he could ask “the insurance question.” The lawyer had forgotten to ask it during his initial voir dire. The court referred to another Missouri case for support of its decision, Ivy v. Hawk, 878 S.W. 2d 442 (Mo. Banc 1994).
The Missouri Supreme Court has held that a party has the right to ask the insurance question during voir dire if the proper procedure is followed to avoid unduly highlighting the question. The Missouri Supreme Court noted, however, that Ivy did not divest the circuit court of its discretion to control the proper form and timing of voir dire questioning, including discretion as to whether counsel’s proposed procedure would unduly highlight the question.
The court then affirmed, holding that because plaintiff’s counsel forgot to ask the insurance question during multiple hours of voir dire, the court acted within its discretion. The lower court’s finding is that it would unduly highlight the question to allow counsel to recommence his questioning to ask the insurance question after voir dire had otherwise concluded.
This lawsuit was brought by Abraham and Crystal Eoff. It was a claim for medical negligence brought in the St. Louis County Circuit Court against Jennifer K. McDonald, D.O. and Susan’s Healthcare for Women, P.C. for the wrongful death of their daughter during labor and delivery.
Before the beginning of the jury trial, the Eoffs learned that Missouri Doctors Mutual Insurance Co. (MDMIC) provided medical malpractice liability insurance to Dr. McDonald and Susan’s Healthcare. MDMIC is a small insurance company with approximately 20 employees, located 50 miles north of Kansas City in St. Joseph, Mo.
In Ivy, the Supreme Court of Missouri held that, when one party has insurance, it is reversible error not to permit the other counsel to ask the venire members whether they work for or have a financial interest in the insurer, so long as counsel asks a proper question in a manner that does not unduly highlight what is genuinely referred to as “the insurance question.”
In setting out an acceptable method for asking the insurance question, Ivy required the plaintiff’s counsel first to submit and obtain the circuit court’s approval of the form of its proposed question outside of the venire panel’s hearing and then to avoid unduly highlighting the question by not asking it first or last in a series of questions. In accordance with Ivy, before the jury selection began, the Eoffs’ attorney requested permission to ask the following question: “Is anyone here employed by or have a financial interest in Missouri Doctors Mutual Insurance Company?” Opposing counsel had no objection to the question’s form and the circuit court ruled the Eoffs’ counsel could ask it during the plaintiffs’ voir dire. Thereafter, however, the procedure utilized diverged from that envisioned in Ivy.
The Eoffs’ counsel voir dire questioning was lengthy, covering 173 pages of the transcript. Of those, 138 pages covered the period from mid-morning through the noon lunch break and up to an afternoon break, when the circuit court told the Eoffs’ counsel he needed to “wrap it up” so the defendants would have time to complete their voir dire that day and that a jury could be seated and sworn the next morning. The Eoffs’ counsel, nonetheless, took another 35 pages of transcript to complete his voir dire questioning.
At the end of the defendants’ voir dire, the plaintiffs’ counsel came forward then and asked the court outside the jury’s hearing that it would like to ask the approved insurance question. Because of the highlighting of such a question was the issue, the court was right in its discretion in preventing the plaintiffs’ lawyer to then be given additional time in which to ask that question and perhaps several others. For these and other reasons stated, the Missouri Supreme Court affirmed the decision of the trial court; thus the judgment for defendants was affirmed.
Eoff v. McDonald, SC 97640 (Supreme Court of Missouri, August 13, 2019).
Kreisman Law Offices has been handling medical malpractice lawsuits, traumatic brain injury cases, birth injury lawsuits, wrongful death cases and labor and delivery negligence 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 Harvey, Blue Island, Countryside, Aurora, Batavia, Geneva, St. Charles, Elgin, West Dundee, Hoffman Estates, Des Plaines, Vernon Hills, Buffalo Grove, Palatine, Prospect Heights, Glencoe, Morton Grove, Lincolnwood, Chicago (Logan Square, Lakeview, Near North Side, Edgewater, Uptown, Wicker Park, Belmont Cragin, East Garfield Park, McKinley Park, West Lawn, Marquette Park, Auburn, Gresham, Beverly, Calumet Heights, South Shore, South Chicago), Evergreen Park, Burbank, Bridgeview, Willow Springs, LaGrange Highlands, Hinsdale, Downers Grove, Glen Ellyn, Villa Park, Wheaton, Glendale Heights, Carol Stream, Bloomingdale, Lake Zurich, Elk Grove Village, Bensenville, Rosemont and Norridge, Ill.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.
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