United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1924
___________
Marilyn Cravens; Walter Cravens, *
*
Plaintiffs, *
*
The Kneibert Clinic, LLC, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Richard Smith, M.D.; Weatherby *
Locums Tenens, Inc., *
*
Defendants - Appellees, *
*
American Continental Ins. Co., *
*
Defendant. *
___________
Submitted: January 13, 2010
Filed: July 6, 2010
___________
Before SMITH and COLLOTON, Circuit Judges, and KORNMANN,1 District Judge.
___________
SMITH, Circuit Judge.
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota, sitting by designation.
The Kneibert Clinic, LLC ("Kneibert") filed suit against Dr. Richard Smith and
Weatherby Locums Tenens, Inc. ("Weatherby"), alleging a claim of indemnification
from Dr. Smith and Weatherby for a judgment incurred by Kneibert in a separate
lawsuit brought by a patient allegedly harmed by the negligence of Kneibert and Dr.
Smith. A jury rendered a verdict in favor of Dr. Smith and Weatherby. Kneibert
appeals, asserting five reversible errors on the part of the district court.2 We affirm.
I. Background
Kneibert is a physicians group that provides multiple medical services,
including radiology. In 2000, Kneibert contracted with Weatherby to obtain an interim
radiologist for its group. The contract obligated Weatherby to (1) present qualified
physician candidates for Kneibert's approval; (2) pay all fees to the physician directly;
(3) provide occurrence-based malpractice insurance with limits of one million to three
million dollars for each physician placed with Kneibert; (4) allow Kneibert to retain
any and all revenue that the physician generated; and (5) provide administrative
assistance to obtain hospital privileges for the physician, if required. Pursuant to the
contract, Dr. Smith was chosen as the new radiologist.
In July 2002, Marilyn and Walter Cravens filed a medical malpractice action
in Butler County, Missouri, against Kneibert and Dr. Robert Young, a partner in the
Kneibert Clinic ("Butler County action"). The Cravens alleged that Kneibert, through
its agent, Dr. Young, was negligent in failing to diagnose Mrs. Cravens's breast
cancer, ascertain the significance of the lump found in her breast, and remove the
lump. The petition did not mention Dr. Smith—the radiologist—or Weatherby.
The Cravens filed an amended petition in August 2003; in that petition, they
referenced Dr. Smith but did not name him or Weatherby as defendants. The amended
2
The Honorable Frederick R. Buckles, United States Magistrate Judge for the
Eastern District of Missouri, sitting by consent of the parties pursuant to 28 U.S.C. §
636(c).
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petition alleged that Dr. Smith, as Kneibert's agent, performed radiological services
in August 2000 by reading mammogram and ultrasound films.
To assist in prosecuting their claim, the Cravens retained Dr. Howard Ozer, an
oncologist, as an expert witness. Dr. Ozer criticized Dr. Young's treatment, testifying
that Dr. Young should have performed a biopsy despite receiving negative ultrasound
and mammogram test results. He opined that a biopsy of a clinically suspicious
palpable mass, like that detected by Dr. Young in Mrs. Cravens, should not have been
delayed on the basis of a normal mammogram and ultrasound. Initially, Dr. Ozer was
not asked to offer any opinions concerning the radiologist's standard of care. However,
Dr. Ozer expressed his view that Dr. Smith's ultrasound report should not have been
relied upon to forego a biopsy.
Kneibert tendered the defense of the claims related to Dr. Smith's medical
service to Weatherby's insurance carrier, St. Paul Fire and Marine Insurance Company
("St. Paul").3 St. Paul declined to provide a defense for Kneibert because Kneibert had
exposure to liability based on the acts of Dr. Young and the radiology technician, who
St. Paul did not insure. St. Paul did agree to defend any claims brought against
Weatherby or Dr. Smith via a third-party petition.
During the course of the litigation, Kneibert lost its insurance coverage for the
claim because its insurance carrier went into receivership. Following the loss of
coverage, Kneibert's counsel suggested a proposed settlement to the Cravens' counsel
under § 537.065 of the Missouri Revised Statutes. The December 16, 2003 letter
addressed to the Cravens' counsel stated:
You have amended your Petition in this matter to include a claim that the
mammogram and MRI w[ere] misinterpreted.
3
St. Paul is the successor-in-interest to American Continental Insurance
Company.
-3-
At the time the mammographer, Dr. Richard Smith, was furnished by
Weatherby Locums, Inc., under contract to the Kneibert Clinic.
Under these circumstances we would like to suggest to our client,
Kneibert Clinic, L.L.C., that it enter into an agreement with you whereby
you would: A) dismiss your claim for respondeat superior liability
against the Clinic as relates to Dr. Young; and B) enter into an agreement
under Section 537.065 to limit your recovery against Kneibert to the
insurance provided to Dr. Smith and Weatherby Locums by St. Paul Fire
and Marine.
The Weatherby contract is attached; you will note that they are required
to provide malpractice insurance for Dr. Smith, which they did through
St. Paul. We have requested that St. Paul provide a defense and
indemnification; they have refused.
To my knowledge they have no policy defenses whatsoever and the
apparent reason for refusal is the statement, "it would be unclear as to
what portion of the verdict was apportioned to the alleged acts of Dr.
Smith[."]
I propose to, by the above method, make that clear and give you free
access to summary judgment against Weatherby and Richard Smith such
sum as you would care to "prove up to the Judge[."] You might look at
my disaster in the Southern District, a copy of which opinion is
attached[,] to see how easy it is when somebody is not paying attention
as is the case with St. Paul's subsidiary (American Continental Insurance
Company).
Based on the proposed settlement, Kneibert agreed not to defend the claims
against it due to the alleged negligence of Dr. Smith and Weatherby. Kneibert further
agreed not to contest any evidence that the Cravens chose to submit to the court on the
issue of damages.
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On January 27, 2005, Kneibert's counsel wrote a letter to confirm Kneibert's
oral agreement with the Cravens' counsel, stating:
This will confirm our oral agreement.
You will:
(a) dismiss the case as against Robert Young, M.D.;
(b) we will enter into an agreement under § 537.065 in the form
as delivered by me to you;
(c) we will at the first available opportunity put on evidence in
front of Judge Richardson which will through the testimony of [Dr.] Yuri
Parisky[4] establish that Richard Smith was solely at fault in that he (i)
misinterpreted the mammogram; (ii) misinterpreted the ultrasound[;] (iii)
improperly either conducted the ultrasound or failed to cause the
ultrasound to be repeated[;] (iv) that such failure was the direct and
proximate cause of Dr. Young's failure to follow up in that Dr. Young
called Dr. Smith, assuming that to be true (Young's deposition)[.] Dr.
Young having been orally assured that the finding was indeed BiRad 2
and therefore benign was justified in not further following up with a
biopsy.
We will further establish through [Dr.] Parisky and [Dr.] Ozer that given
the cystic and heterogeneously dense nature of Mrs. Cravens['s] breast,
it would not have been negligent for either Dr. Young or Mrs. Cravens
not to detect from their respective perspectives any change in condition,
i.e., she would have thought that her condition was the same and not
called him and he would have thought [that] her condition was the same
not having been called.
4
After the proposed settlement, the Cravens obtained a second deposition from
Dr. Parisky, an expert witness. He had originally criticized Dr. Young and Kneibert's
radiology technician during his first deposition. But his second deposition was limited
to Dr. Smith's actions.
-5-
That no matter what occurred when she had the hysterectomy, diagnosis
at that time would not have matter[ed], that the only diagnosis that
mattered was the missed opportunity of August 10, 2000. That the
August 10, 2000 missed opportunity is the responsibility of Richard
Smith.
The next thing that needs to be established is a reasonable agency or
apparent agency. We would offer the deposition of Bob Christian and the
Locums' agreement and Mrs. Cravens will need to testify that she
allowed the mammography to be done at Kneibert Clinic, relying on the
fact that a Kneibert Clinic employee or partner would be the one to
interpret it (we need to have both Scott elements and some element of
apparent authority to be really safe).
We then offer those portions of the deposition of [Dr.] Howard Ozer that
establish the lost chance (John [(the Cravens' attorney)] it will be
important [to] leave out of evidence the deposition portions that relate to
his criticisms of Dr. Young, we don't want to get caught up in an
allocation battle with St. Paul, I mean we don't want them coming back
and saying that i[t] was all Young's fault, so we need to leave out Ozer's
criticism of Dr. Young).
Next we will give you a supplemental agreement supported by resolution
of Kneibert Clinic, LLC.
This agreement will provide: that Kneibert Clinic LLC will pay, at your
option, in the event that there is no recovery possible against Richard
Smith[ ][,] St. Paul[ ][,] or Weatherby Locum[s], $50,000.00 or the
lawsuit as it exists on this date (prior to the dismissal) can be reinstated
at the status quo and which will also provide that the Kneibert Clinic will
pay me to do the legal work in the direct action against Smith and St.
Paul on indemnity. We do have to decide whether we are going to sue
Smith and Weatherby or St. Paul or both—we need to discuss this. St.
Paul would probably get Ted Osburn[,] and Jeff probably can figure out
what the defenses are, whereas if we don't do that and we stick with
suing Smith and Weatherby we will get Spain, who has already advised
St. Paul and at least in part put them in the position they find themselves.
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I trust this fully sets forth our agreement and understanding. Please
concur.
On February 8, 2005, the Cravens and Kneibert entered into a settlement
agreement. In the agreement, the Cravens agreed to "dismiss all portions of their claim
against [Kneibert] except those directly related to the negligence of Dr. Richard
Smith." In return, Kneibert agreed to "waive a jury and the [Cravens] may present
such evidence as is necessary to make [their] case against [Kneibert] through the
negligent acts of Dr. Richard Smith . . . ." The parties determined that the Cravens
would collect any judgment only against Dr. Smith, Weatherby, or St. Paul and would
release Kneibert of all liability.
Kneibert represented in the agreement that it had made a demand upon
Weatherby to undertake Kneibert's defense for Dr. Smith's negligent acts and that it
had "directly tendered the defense of the action against it as it pertains to the negligent
actions of Richard Smith directly to the St. Paul and St. Paul's attorney . . . and that
St. Paul has declined and refused to undertake the defense . . . ." Kneibert
acknowledged the likelihood that "if this case were tried to the jury the Cravens would
prevail and a verdict would be entered against [Kneibert] as a result of the negligent
acts of Richard Smith."
Also on February 8, 2005, the Cravens and Kneibert supplemented their
settlement and agreed that following the trial court's entry of judgment against
Kneibert, the Cravens and Kneibert "will cooperate and file a suit against Weatherby
Locums Tenens, Inc., Dr. Richard Smith and the St. Paul Insurance Company (or
subsidiary) as provides professional liability coverage through Weatherby Locums
Tenens . . . ."
-7-
On February 9, 2005, the Cravens and Kneibert appeared before the Butler
County Circuit Court for a bench trial. At that time, the Cravens dismissed Dr. Young
from the case and proceeded to trial on their claims against Kneibert based on Dr.
Smith's conduct. As they agreed, Kneibert offered no expert testimony to defend Dr.
Smith or Weatherby. The trial court entered judgment in favor of the Cravens and
against Kneibert in the aggregate amount of $804,000 for the negligence of Dr.
Smith—Kneibert's agent at the time of the negligence ("Butler County judgment"). To
date, Kneibert has paid no money to the Cravens.
On April 29, 2005, the Cravens and Kneibert filed the instant action for
indemnification in the Circuit Court of Cape Girardeau County, Missouri, against
Weatherby, Dr. Smith, and St. Paul. Weatherby removed the action to federal district
court with St. Paul's and Dr. Smith's consent. Following removal, the district court
dismissed all claims against St. Paul for failure to state a claim. The court also
eliminated the Cravens as parties because their sole claim for relief was against St.
Paul. As a result, only Kneibert's indemnification claim remained before the court.
Dr. Smith and Weatherby moved for summary judgment, raising the affirmative
defense that Kneibert's settlement agreement with the Cravens increased their risk or
prejudiced their rights to such an extent that Kneibert's entitlement to indemnity for
the Cravens' judgment had been discharged. The district court denied the motion,
finding that genuine issues of material fact remained as to whether Kneibert's
settlement conduct with the Cravens increased the risk to, or prejudiced the rights of,
Dr. Smith and Weatherby.
Kneibert later moved for summary judgment, arguing that no genuine issues of
material fact existed and that it was entitled to judgment as a matter of law on its
claims that Dr. Smith and Weatherby owed a duty to indemnify it on the underlying
judgment. The district court denied the motion, concluding that Kneibert "presented
nothing to the Court . . . to dissuade [it] from the previous finding that genuine issues
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of material fact exist as to the extent of the duty owed by the defendants to indemnify
plaintiff on the Butler County Judgment." In its order, the district court rejected the
argument that the Butler County judgment collaterally estopped Smith and Weatherby
from relitigating the underlying claims relating to Dr. Smith's negligence, finding that
Kneibert could not offensively use collateral estoppel to prevent relitigation of the
negligence issue because neither Dr. Smith nor Weatherby were parties in the Butler
County action and thus did not have a full and fair opportunity to litigate the issue of
negligence in the prior action.
After a pretrial conference, the court bifurcated the trial. The initial issue to be
tried was Dr. Smith's and Weatherby's affirmative defense—"whether Kneibert's
conduct in securing the Settlement Agreement and in obtaining Judgment against itself
materially increased the risk to, or prejudiced the rights of, defendants Smith and
Weatherby as indemnitors such that defendants were relieved of any duty to
indemnify Kneibert." According to the court, a verdict in favor of Dr. Smith and
Weatherby would end the case. But if the jury found that Kneibert's conduct was not
sufficiently prejudicial, "the trial would then proceed to the second phase: that is, to
determine the underlying medical malpractice action against Dr. Smith and
Weatherby." The court explained that a trial on the merits of the underlying action was
necessary because "Missouri law prohibited plaintiff from offensively using the Butler
County Judgment to collaterally estop the 'relitigation' . . . of the underlying
negligence action."
At the conclusion of the first phase of the bifurcated trial, the jury returned a
verdict in favor of Dr. Smith and Weatherby, specifically finding that Kneibert's
conduct in entering into the settlement agreement with the Cravens materially
increased the risk to, and prejudiced the rights of, Dr. Smith and Weatherby as
indemnitors. Thereafter, the district court entered judgment on the jury's verdict in
favor of Dr. Smith and Weatherby and dismissed Kneibert's complaint with prejudice.
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Kneibert filed a motion for new trial, which the district court denied.
II. Discussion
On appeal, Kneibert argues that the district court (1) erroneously denied its
motion for summary judgment based on the court's improper conclusion that Kneibert
owed a duty not to materially increase the risk to, or prejudice the rights of, Dr. Smith
and Weatherby in settling the Butler County action; (2) improperly instructed the jury
that Kneibert owed a duty not to materially increase the risk to, or prejudice the rights
of, Dr. Smith and Weatherby in settling the Butler County action; (3) erroneously
denied Kneibert's motion for summary judgment because Dr. Smith and Weatherby
are bound by the Butler County judgment, as they were given notice of and an
opportunity to control the underlying litigation regarding Dr. Smith's negligence; (4)
erroneously declined to take judicial notice of its prior order denying Kneibert's
motion for summary judgment that Dr. Smith and Weatherby were not bound by the
Butler County judgment and in not permitting Kneibert to argue this fact to the jury;
and (5) erred in striking two venirepersons for cause.
As a threshold matter, "[t]his court . . . 'will not review a district court's denial
of a motion for summary judgment after a trial on the merits.'" Hertz v. Woodbury
County, Iowa, 566 F.3d 775, 779 (8th Cir. 2009) (quoting EEOC v. Sw. Bell Tel., L.P.,
550 F.3d 704, 708 (8th Cir. 2008)); see also Eaddy v. Yancey, 317 F.3d 914, 916 (8th
Cir. 2003) ("Even a cursory review of precedent in this Circuit reveals that we do not
review a denial of a summary-judgment motion after a full trial on the merits."); White
Consol. Indus., Inc. v. McGill Mfg. Co., 165 F.3d 1185, 1189 (8th Cir. 1999) ("A
denial of summary judgment is interlocutory in nature and is ordinarily not appealable
after trial and judgment."). "Instead . . . the 'proper redress' for a denial of summary
judgment following final judgment is 'through subsequent motions for judgment as a
matter of law . . . and appellate review of those motions' if the district court denies
them." Hertz, 566 F.3d at 779 (quoting White Consol. Indus., 165 F.3d at 1189).
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Accordingly, we decline to review Kneibert's first and third arguments on
appeal that the district court erroneously denied its motion for summary judgment.
Instead, we limit our review to issues two, four, and five listed above—issues that
Kneibert raised in its motion for new trial.
"We review a district court's denial of a motion for a new trial for abuse of
discretion." Cook v. City of Bella Villa, 582 F.3d 840, 855 (8th Cir. 2009).
A. Jury Instruction
First, Kneibert argues that the district court erred in instructing the jury that
Kneibert owed a duty to Dr. Smith and Weatherby not to materially increase the risk
to, or prejudice the rights of, Dr. Smith and Weatherby, the indemnitors, in settling the
Butler County action. Additionally, Kneibert asserts that the district court also erred
in refusing to give Rejected Jury Instruction No. 15, which read:
Once a demand is made on the indemnitor to defend the litigation against
the indemnitee and the demand is refused, the indemnitee may settle the
claim in good faith and proceed against the indemnitor. The indemnitee
must show that its settlement was reasonable and made in good faith.
This court reviews for an abuse of discretion a district court's jury instructions.
Cook, 582 F.3d at 856. "We afford the district court broad discretion in choosing the
form and language of the instructions and will reverse a jury verdict only if the
erroneous instruction affected a party's substantial rights." Id. (internal quotations,
alteration, and citations omitted). This court's review of the jury instructions "is
limited to whether the instructions, taken as a whole and viewed in the light of the
evidence and applicable law, fairly and adequately submitted the issues in the case to
the jury." Id. (internal quotations, alterations, and citations omitted). "When sitting in
diversity, a district court's jury instructions must fairly and adequately represent the
law of the forum state." McCoy v. Augusta Fiberglass Coatings, Inc., 593 F.3d 737,
744 (8th Cir. 2010) (internal quotations and citation omitted).
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"As a general rule, indemnification is allowed in favor of one who is held
responsible solely by imputation of law because of his relation to the actual
wrongdoer." SSM Health Care St. Louis v. Radiologic Imaging Consultants, LLP, 128
S.W.3d 534, 539 (Mo. Ct. App. 2003). When a person who is without fault "is
exposed to liability and compelled to pay damages on account of the negligence of
another, that person has a right of action against the active tortfeasor on the theory of
an implied contract of indemnity." Id. at 540. But the duty to defend "is independent
of" the duty to indemnify. Burns & McDonnell Eng'g Co. v. Torson Constr. Co., 834
S.W.2d 755, 758 (Mo. Ct. App. 1992). "The duty to defend is determined by
comparing the policy language with the allegations in the complaint." Sawyer v. Bi-
State Dev. Agency, 237 S.W.3d 617, 621 (Mo. Ct. App. 2007) (internal quotations and
citation omitted); see also Crown Ctr. Redevelopment Corp. v. Occidental Fire & Cas.
Co., 716 S.W.2d 348, 357 (Mo. Ct. App. 1986) ("The duty of an insurer to defend is
contractual, and if there is no contract to defend there is no duty to defend."). By
contrast, "[t]he duty to indemnify . . . is determined by the facts as they are established
at trial or as they are finally determined by some other means, for example through
summary judgment or settlement." Id. (internal quotations and citation omitted). "The
trial court cannot know what the facts will be or whether those facts will fall within
the policy coverage until those facts are established at trial." Id. (internal quotations
and citation omitted). "In Missouri, the duty to defend is broader than the duty to
indemnify." Shelter Mut. Ins. Co. v. Ballew, 203 S.W.3d 789, 792 (Mo. Ct. App.
2006) (internal quotations and citation omitted).
Kneibert contends that it suffered prejudice because the district court failed to
properly instruct the jury. Kneibert believed that it was free to settle the Butler County
action in its own best interests without regard to Dr. Smith and Weatherby because of
their refusal to defend Kneibert for Dr. Smith's alleged negligence. Kneibert, however,
conflates the duty to defend and the duty to indemnify. The two duties are not
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coextensive. The former is broader than the latter but nonetheless must arise from a
contractual obligation discernible in the parties' agreement.
Kneibert has failed to identify any contractual language between itself and Dr.
Smith or Weatherby specifying that either Dr. Smith or Weatherby have a duty to
defend Kneibert in a lawsuit arising out of Dr. Smith's alleged negligence.5 See
Crown Ctr., 716 S.W.2d at 357. Therefore, Rejected Jury Instruction No. 15 would
have been erroneous, as it assumed that Dr. Smith and Weatherby did have a
contractual obligation to defend Kneibert.
Furthermore, assuming—without deciding—that Dr. Smith and Weatherby did
have a duty to indemnify Kneibert, Missouri courts have recognized and applied a
"'general rule of law that any act[s] on the part of any indemnitee which materially
increases the risk, or prejudices the rights, of the indemnitor, will discharge the
indemnitor under the contract of indemnity.'" Holiday Inns, Inc. v. Thirteen-Fifty Inv.
Co., 714 S.W.2d 597, 603 (Mo. Ct. App. 1986) (quoting Hiern v. St. Paul-Mercury
Indemnity Co., 262 F.2d 526, 529 (5th Cir. 1959)).
Accordingly, we hold that the district court did not abuse its discretion in
instructing the jury, in accordance with Holiday Inns, that Kneibert owed a duty not
to materially increase the risk to, or prejudice the rights of, Dr. Smith and Weatherby.
B. Judicial Notice
Second, Kneibert asserts that the district court erred in refusing to take judicial
notice of its prior ruling that Dr. Smith and Weatherby were not bound by the Butler
County judgment and in not permitting Kneibert to argue this fact to the jury.
According to Kneibert, it could not have increased any risk to Dr. Smith and
5
We also note that Kneibert has not identified any contractual language in the
policy between St. Paul and Weatherby that St. Paul would have a duty to defend
Kneibert against any alleged negligence on Dr. Smith's or Weatherby's part.
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Weatherby or prejudiced their rights if they were not bound by the Butler County
judgment.
"We review a district court's decision [not] to take judicial notice for abuse of
discretion." Am. Prairie Constr. Co. v. Hoich, 560 F.3d 780, 796 (8th Cir. 2009).
According to Federal Rule of Evidence 201(b), "[a] judicially noticed fact must be
one not subject to reasonable dispute in that it is either (1) generally known within
the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned."
"Error in failing to take judicial notice of a fact is not ground for reversal unless it is
shown that the appellant is prejudiced by the error." Blas v. Talabera, 318 F.2d 617,
619 (9th Cir. 1963).
A "district court is authorized to take judicial notice of prior orders entered in
the case . . . ." United States v. Atalig, 241 F. App'x 452, 453 (9th Cir. 2007)
(unpublished per curiam); see also In re Papatones, 143 F.3d 623, 624 n.3 (1st Cir.
1998) ("The court may take judicial notice of its own orders and of records in a case
before the court . . . .") (internal quotations and citation omitted).
But a court may properly decline to take judicial notice of documents that are
irrelevant to the resolution of a case. See, e.g., Am. Prairie Constr. Co., 560 F.3d at
797 ("Caution must also be taken to avoid admitting evidence, through the use of
judicial notice, in contravention of the relevancy, foundation, and hearsay rules.");
United States v. Peck, 161 F.3d 1171, 1174 (8th Cir. 1998) ("The court also correctly
declined to take judicial notice of other irrelevant materials.").
Here, the district court informed the parties during the pretrial conference that,
if the first phase of the trial resulted in a favorable verdict for Kneibert, the case
would proceed to the second phase of the trial on the merits of the underlying medical
malpractice action. On the first day of trial, Kneibert asked the district court to take
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judicial notice of its prior determination that Dr. Smith and Weatherby were not
bound by the Butler County judgment. Kneibert also requested that the court permit
it to present this evidence to the jury—"that there is going to be a trial to determine
whether they are bound by the judgment[.]" The district court denied Kneibert's
request, stating:
No, we're not going to get into that about what's going to happen,
because I think we might as well have tried those cases together then,
okay. That was the reason that I chose to do it this way. And I
didn't—believe me, I gave a lot of thought to this.
In its motion for a new trial, Kneibert argued that any increased risk or
prejudice to Dr. Smith and Weatherby caused by Kneibert would be affected by their
not being bound by the underlying Butler County judgment. Kneibert asserted that
any purported risk or prejudice to Dr. Smith and Weatherby effectively evaporated
with the district court's pretrial ruling that Kneibert could not offensively use
collateral estoppel in the circumstances of the case. In response to that argument, the
district court amply explained that it prohibited the introduction of such evidence
"[b]ecause of the increased danger of jury confusion and speculation had such
evidence been introduced at the first phase of the trial . . . ."
We hold that the district court did not abuse its discretion in declining to take
judicial notice. In addition to potential jury confusion, the district court's ruling is
supported by two other considerations. First, any decision not to admit evidence of
whether Dr. Smith and Weatherby were bound by the judgment was harmless, as the
record contains other evidence of prejudice. For instance, the record reflects that
Kneibert, through its agents, was contributorily negligent, meaning that Kneibert
would be jointly liable for the alleged misdiagnosis. For example, Dr. Ozer was
extremely critical of Dr. Young, Kneibert's agent, stating that Dr. Young should have
performed a biopsy regardless of whether the results of the ultrasound and
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mammogram were negative. And, Dr. Parisky originally criticized Dr. Young and
Kneibert's radiology technician during his first deposition.
Second, the district court's ruling was in accord with Holiday Inns. The
question, as set forth in Holiday Inns, was whether the indemnitee breached a duty
to its indemnitor through its conduct. 714 S.W.2d at 602. The indemnitee has a "duty
of acting reasonably under all circumstances so as to protect the indemnitor against
liability and of refraining from compromising any of its rights, particularly in
settlement negotiations." Id. (internal quotations and internal citation omitted). In
Holiday Inns, the issue of whether Holiday Inns was "bound" by the agreement that
the owner of the motel entered into with the injured party was not discussed, as the
owner's abrogation of its duty to Holiday Inn resulted in application of the rule that
"any acts on the part of any indemnitee which materially increases the risk, or
prejudices the rights of the indemnitor, will discharge the indemnitor under the
contract of indemnity." Id. at 603 (internal quotations, alteration, and citation
omitted).6
C. Striking Venirepersons
Kneibert argues that, during jury selection, the district court erroneously struck
Juror No. 16 and Juror No. 6 for cause. According to Kneibert, Juror No. 16 is a
small business owner who stated that he has had disputes with insurance companies,
but he did not indicate any dealings with St. Paul, Weatherby's insurer. Kneibert
6
We acknowledge that the court in Holiday Inns most likely did not discuss
whether Holiday Inns was "bound" by the agreement because the court decided, as a
matter of law, that indemnitor's rights were prejudiced.
We also note that the district court never conclusively determined that Dr.
Smith and Weatherby were not bound by the Butler County judgment, as it
specifically stated that "the inquiry in the case remains open as to the circumstances
underlying the Judgment entered in the Butler County action and whether, as
indemnitors, defendants are bound by that Judgment."
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maintains that, upon pointed questioning regarding potential bias, Juror No. 16
candidly stated that he could fairly and impartially weigh the evidence. With regard
to Juror No. 6, Kneibert contends that he is a long-time Poplar Bluff, Missouri
resident who stated that, simply by virtue of Poplar Bluff being a small town, he
"knew of," but was not "friends with," several persons involved in the Butler County
action. He also stated that he was treated at Kneibert in the past. Kneibert asserts that
Juror No. 6 never suggested that his familiarity with prominent Butler County
residents would make him partial to one side or the other, nor was he ever asked;
additionally, because he knew parties on all sides of the underlying action, he could
not have been biased for or against any party. Therefore, Kneibert maintains that
neither Juror No. 16 nor Juror No. 6 demonstrated actual partiality and that the
district court erroneously struck them.
In response, Dr. Smith and Weatherby assert that the district court did not
abuse its discretion in striking the jurors for cause, as either their answers justified
questioning their objectivity or they were too closely connected to the parties in the
lawsuit.
During voir dire, Juror No. 16 told the district court that he owns several
automobile dealerships and has been in dispute with insurance companies over the
years. At the time of trial, he even had some litigation pending against insurance
companies. When asked whether anything about the claims would cause him to favor
one side or the other, his response was "very much so" and that he would be
"anti-insurance company." He further stated that it was his sense and gut feeling that
he would go against the insurance company even after hearing the evidence, although
he stated that he would "like to think" that he would not act in such a manner. Even
when Kneibert's counsel attempted to rehabilitate him, he continued to insist that "I
don't think I can help but be skewed somewhat." Noting that the role of insurance
companies would be a litigated issue in the trial, and recognizing Juror No. 16's
strong statements regarding his self-described "anti-insurance company" bias, the
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district court granted Dr. Smith and Weatherby's request to strike Juror No. 16 for
cause.
Also during voir dire, Juror No. 6, a resident of Poplar Bluff, where Kneibert
is located, testified that he had received medical treatment at Kneibert and had been
a patient at Kneibert for "a long time." He also testified that he was currently a patient
at Kneibert, members of his family likewise were current patients at Kneibert, and he
considered Kneibert to be his family doctor. Finally, he testified that with his
longstanding relationship with Kneibert, he knew Kneibert's designated
representative at trial, Robert Christian. Given the ongoing close relationship that
Juror No. 6 and his family had with Kneibert and that the matters at trial would
directly affect Kneibert, the court granted Dr. Smith and Weatherby's request to strike
Juror No. 6 for cause.
"A trial court's decision to disqualify prospective jurors is reviewed for abuse
of discretion." Allen v. Brown Clinic, P.L.L.P., 531 F.3d 568, 572 (8th Cir. 2008).
"Our standard of review mandates that a trial court's decision to strike a juror for
cause be reversed only where a defendant can show actual prejudice." United States
v. Ortiz, 315 F.3d 873, 888 (8th Cir. 2002). A party challenging a juror for cause
"must show actual partiality growing out of the nature and circumstances of the case."
Allen, 531 F.3d at 572. "A district court is required to strike for cause any juror who
is shown to lack impartiality or the appearance of impartiality, and, absent abuse of
discretion, we will not interfere with the District Court's determination of juror
qualifications." Id. (internal quotations, alteration, and citations omitted). A district
court possesses "broad discretion in determining whether to strike jurors for cause
because it is in the best position to assess the demeanor and credibility of the
prospective jurors." Id. (internal quotations and citations omitted).
"Appellants must clear a high hurdle to obtain reversal of a district
court's decision regarding the dismissal of a juror for cause. The courts
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presume that a prospective juror is impartial, and a party seeking to
strike a venire member for cause must show that the prospective juror
is unable to lay aside his or her impressions or opinions and render a
verdict based on the evidence presented in court. Essentially, to fail this
standard, a juror must profess his inability to be impartial and resist any
attempt to rehabilitate his position."
Id. (quoting Moran v. Clarke, 443 F.3d 646, 650 (8th Cir. 2006)). We have
previously recognized that venirepersons' "strong responses . . . in the jury
questionnaires in combination with their equivocal responses given during voir dire
provide fair support for the district court's decision [to strike the venirepersons]."
United States v. Nelson, 347 F.3d 701, 712 (8th Cir. 2003).
Here, with regard to Juror No. 16, his "strong responses" regarding his disfavor
of insurance companies and his admission that, although he would "like to be fair,"
his sense and gut feeling was that he would go against the insurance company even
after hearing the evidence demonstrate that the district court did not abuse its
discretion in striking Juror No. 16. Furthermore, Kneibert has failed to show how it
was actually prejudiced by the decision.
With regard to Juror No. 6, the present case is distinguishable from Allen
where the venireperson had a "long-past professional relationship" with the clinic in
question. Here, as was the case with the other venirepersons in Allen that the district
court properly struck, Juror No. 6 had an ongoing doctor/patient relationship with
Kneibert. Therefore, the district court did not abuse its discretion in striking Juror No.
6. And, again, Kneibert has failed to show actual prejudice by the decision.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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