Kristine Smotherman and Brian Smotherman v. Cass Regional Medical Center

SUPREME COURT OF MISSOURI
en banc
KRISTINE SMOTHERMAN and
BRIAN SMOTHERMAN, ) Opinion issued September 20, 2016
)
Appellants, )
)
v. ) No. SC95464
)
CASS REGIONAL MEDICAL )
CENTER, )
)
Respondent. )

APPEAL FROM THE CIRCUIT COURT OF CASS COUNTY
The Honorable William B. Collins, Judge

Introduction

Kristine Smotherman (Plaintiff) filed a petition for damages against Cass

Regional Medical Center (Defendant) after she slipped and fell in a bathroom on

Defendant’s premises. The case was tried to a jury, which returned a verdict for

Defendant. Plaintiff’s counsel later discovered that one of the jurors during the trial had

Googled the weather forecast for the day of the slip and fall. Plaintiff’s motion for a new

trial based on the juror’s alleged misconduct was overruled. She now argues on appeal

that the trial court erred in overruling her motion for a new trial. This Court disagrees.
 “While every party is entitled to a fair trial, as a practical matter, our jury system

cannot guarantee every party a perfect trial.” Fleshner v. Pepose Vision Inst., P.C., 304

S.W.3d 81, 87 (Mo. banc 2010) (emphasis in original). Although Plaintiff’s trial was not

perfect due to the misconduct of one juror, the trial court did not abuse its discretion in

finding that Plaintiff suffered no prejudice from the juror’s misconduct in this case.

As the trial court presides over the entirety of a trial, it is familiar with the

circumstances surrounding a juror’s misconduct. Accordingly, it is in the best position to

determine what effect, if any, juror misconduct may have had on a jury’s verdict. The

trial court’s determination that the extraneous evidence obtained by the offending juror

was not material to the central issue in the case and was not prejudicial to Plaintiff is

entitled to deference under the abuse of discretion standard of review. Id. at 87.

In its judgment overruling Plaintiff’s motion for a new trial, the trial court found

the testimony of the offending juror not credible and ascribed to it no weight. The

testimony of eight other jurors, who followed their oaths and the trial court’s instructions,

revealed that the isolated statement of one juror colleague did not affect their

deliberations or verdict in the case. The trial court explicitly found the testimony of the

eight non-offending jurors credible and relied on their statements in concluding that the

presumption of prejudice had been rebutted. The credibility of witnesses and the weight

to be given to their testimony is a matter for the trial court, which is free to believe none,

part, or all of their testimony. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988).

The trial court is in a superior position to determine the credibility of witnesses, and this

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Court defers to those determinations. State v. Johnson, 207 S.W.3d 24, 44 (Mo. banc

2006).

The trial court acted well within its discretion in concluding that Plaintiff was not

prejudiced by the juror’s misconduct based on the credible testimony of the non-

offending jurors and the record as a whole. The judgment is affirmed.

Factual Background

While visiting the medical center for an appointment after knee surgery, Plaintiff

fell in the bathroom. She testified that while she was getting up from using the toilet, the

lights in the bathroom went out, her feet went out from underneath her, and she fell,

hitting her head, back, and arm. A nurse found Plaintiff and took her to the emergency

room. During her fall, Plaintiff sustained a cut, which became infected and required

several surgical procedures to treat.

At trial, Plaintiff argued that the position of the soap dispenser in the bathroom

allowed it to leak soap onto the floor, creating a dangerous condition that caused her to

fall and subjected Defendant to liability. As evidence that the dispenser leaked, she

offered photographs of a rusted strip on the heating element below the soap dispenser.

Plaintiff noted that the soap dispenser was positioned relatively close to the bathroom

door, which would allow those using the bathroom to track the leaked soap around the

bathroom. As further evidence that she slipped on soap, Plaintiff testified that while she

was in the emergency room, she overheard a nurse say that Plaintiff slipped and fell on

soap on the bathroom floor. On cross-examination, Plaintiff conceded that the nurse had

no opportunity to know whether there was soap on the floor when the nurse allegedly

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made that statement. Plaintiff also testified that she did not see what had caused her to

slip, did not recall seeing anything on the bathroom floor, and saw nothing on her

clothing to suggest why she had fallen.

Throughout the trial, Defendant called into question Plaintiff’s credibility,

emphasizing Plaintiff’s multiple criminal convictions and that Plaintiff had changed her

account of why she had fallen numerous times over the course of the lawsuit. Defendant

argued that the rusted strip on the heating element was more likely caused from water

dripping from people’s hands as they reached from the bathroom sink to the soap

dispenser and that, in any event, the soap dispenser was recessed toward the back of the

sink, so any dripping fluid would land where no one was likely to tread. In its closing

argument, Defendant argued that Plaintiff failed to present sufficient credible evidence

that soap on the bathroom floor caused her to fall. Defendant concluded that it was more

likely that Plaintiff fell due to her knee problems or water on the floor.

The jury was instructed to find Defendant liable if it found that “there was soap on

the bathroom floor, and as a result [Defendant’s] bathroom was not reasonably safe.”

The jury was also instructed, pursuant to MAI 2.01(8), not to communicate with non-

jurors during deliberations or conduct any independent investigation or research. The

jury returned a verdict for Defendant.

After trial, Plaintiff’s attorney asked two jurors about their verdict. One of the

jurors mentioned that he had Googled the weather for the day of the fall and found that

significant snowfall was in the forecast for that day. Plaintiff subsequently filed a motion

for a new trial based on alleged juror misconduct. The trial court held a hearing on the

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motion, at which nine jurors testified. The juror who conducted the investigation

admitted that he had Googled the weather forecast for the date in question. Most of the

jurors who testified, however, did not recall ever hearing anything about the weather

during deliberations. The jurors who remembered a comment about the weather on the

day of the fall testified that the weather was immaterial to their deliberations.

The trial court overruled Plaintiff’s motion for a new trial. Plaintiff appeals. 1

Analysis

Plaintiff argues that the trial court abused its discretion by overruling her motion

for a new trial for alleged juror misconduct. This Court will not disturb a trial court’s

ruling on such a motion unless the trial court abused its discretion. Fleshner, 304 S.W.3d

at 86-87. A trial court abuses its discretion when its ruling is clearly against the logic of

the circumstances then before the court and is so arbitrary and unreasonable as to shock

the sense of justice and indicate a lack of careful consideration. Id. at 87.

Missouri follows the Mansfield Rule, which provides that a juror’s testimony

about juror misconduct is generally not admissible to impeach the jury’s verdict. Id.

Nonetheless, juror testimony is admissible to establish that a juror committed misconduct

by improperly gathering evidence outside of trial. Travis v. Stone, 66 S.W.3d 1, 4 (Mo.

banc 2002).

Although the trial court found that the juror’s research constituted misconduct,

merely proving that a juror obtained extraneous evidence against the court’s instructions

1
This Court has jurisdiction pursuant to article V, section 10 of the Missouri
Constitution.
5
does not automatically entitle a moving party to a new trial. State v. Stephens, 88 S.W.3d

876, 883 (Mo. App. 2002). Instead, such misconduct raises a presumption of prejudice,

and the burden shifts to the opposing party to rebut that presumption. Travis, 66 S.W.3d

at 4. Plaintiff argues that Defendant failed to present sufficient evidence to rebut the

presumption that she was prejudiced by the extraneous evidence. To be prejudicial, the

extraneous evidence obtained from the juror misconduct must be material to the

consequential facts of the case. Stephens, 88 S.W.3d at 883-84.

Plaintiff claims that the weather forecast was material evidence because the

implication that it may have been snowing on the day of her fall supported Defendant’s

argument that something other than soap caused Plaintiff to slip and fall. The trial court

disagreed and held that the weather forecast for the day of Plaintiff’s fall was immaterial

to the critical issue in the case, which was “whether there was soap on the bathroom

floor” that caused Plaintiff to fall. In so holding, the trial court considered: (1) Plaintiff’s

verdict director, which required the jury to affirmatively find that there was soap on the

bathroom floor to find for Plaintiff; (2) the presentation of other possible causes of

Plaintiff’s fall during the trial, including her preexisting knee problems; and (3) the

weight of the evidence presented at trial, which supported the defense verdict rendered by

the jury. In addition, the trial court considered the credible, live testimony of eight non-

offending jurors that “established that the interjection of the extraneous evidence

consisted of an isolated remark which was either not heard by the other jurors or was

appropriately disregarded by them.” As a result, the trial court found that Plaintiff was

not prejudiced.

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 Plaintiff further argues that, based on precedent from this Court, the trial court

could not rely on the testimony of the non-offending jurors to find that the presumption

of prejudice had been rebutted. To support her argument, Plaintiff relies heavily on

Travis, in which a juror improperly visited the site of the parties’ accident. 66 S.W.3d at

3. After the jury rendered its verdict in the case, the trial court conducted a hearing on

the defendant’s motion for a new trial due to the juror’s misconduct. Id. At the hearing,

only the juror who committed the misconduct testified. Id. She stated that she did not

use the information she obtained on her site visit to make decisions in the case and that

she did not mention her visit to any of the other jurors. Id. The trial court acknowledged

that the juror’s visit to the accident scene constituted misconduct but overruled the

defendant’s motion for a new trial “without explanation.” Id.

In Travis, this Court reversed the trial court’s judgment because the only evidence

offered to rebut the presumption of prejudice was the testimony of the offending juror

and such testimony was insufficient to rebut the presumption of prejudice. Id. at 2. The

Court reasoned that the juror’s visit to the accident site might have had an impact on her

decision making, which in turn could have influenced her participation in the jury

deliberations. Id. at 5. Travis expressed concern that the potentially altered participation

of this juror could have subtly affected the outcome of the case and that it could be

“virtually impossible” to show the effect of that juror’s interactions on the jury

deliberations. Id. There was no evidence from any non-offending jurors as to what

impact this action had on them. Id. at 2.

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 The Court, consequently, held that the lone testimony of the offending juror, who

denied the potential effect of her actions, was not sufficient to overcome the presumed

prejudice. Id. at 6. The facts in Travis substantially differ from the facts here, as the trial

court not only heard testimony from the offending juror, but also heard from eight non-

offending jurors. These non-offending jurors testified either that they had not heard the

isolated comment regarding the extraneous evidence, or that they remembered hearing

such a comment, but they believed it irrelevant. They all stated under oath that the

statement by the offending juror did not affect their deliberations. The trial court

properly placed no weight on the testimony of the offending juror, explicitly finding it

not credible. It also determined that the testimony of the eight other jurors was credible

and relied on their testimony in finding the presumption of prejudice rebutted.

Travis is further distinguishable from this case because, unlike the trial court in

Travis, which denied the motion for a new trial without explaining its reasoning, the trial

court here wrote a detailed and well-reasoned judgment denying Plaintiff’s motion. 2 The

judgment reflects that after the trial court carefully considered the evidence as a whole, it

logically and reasonably concluded that the offending juror’s misconduct and isolated

comment regarding potential snowfall on the date of Plaintiff’s fall was not material to

the consequential facts in the case and did not prejudice Plaintiff.

2
The written order shows that the trial court properly presumed prejudice from the
misconduct and then analyzed the content of the extraneous evidence, the manner in
which it was brought to the jury’s attention, and the weight of the evidence supporting the
verdict to decide whether the extraneous evidence improperly influenced the jury. See
United States v. Davis, 393 F.3d 540, 549 (5th Cir. 2004).
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 Plaintiff also relies on Middleton v. Kansas City Public Service Co., 152 S.W.2d

154, 159-60 (Mo. 1941), because in that case the Court concluded that nine nearly

identical “form” affidavits of jurors were not sufficient evidence to rebut the presumption

of prejudice created by a juror’s misconduct. Middleton is easily distinguishable from the

facts of this case. In Middleton, the trial court misapplied the law by improperly placing

the burden on the moving party to show how the juror’s misconduct in obtaining material

extraneous evidence was prejudicial. Id. at 156, 159. Such is not the case here, as the

trial court properly presumed prejudice from the misconduct before considering whether

the non-moving party presented sufficient evidence to rebut the presumption. Further,

the trial court here heard live testimony from eight non-offending jurors during the

hearing on Plaintiff’s motion for a new trial, which is substantially different from the

“form” affidavits offered in Middleton. In Middleton, each juror signed an identical

statement denying any potential effect of the misconduct. Id. at 160. In this case, each of

the jurors appeared before the trial court and testified in their own words that they were

not aware of, or disregarded, the offending juror’s comment, and that the misconduct had

no influence on their deliberations.

Neither Travis nor Middleton addressed the weight that should be given to the

testimony of non-offending jurors when the trial court correctly applies the presumption

of prejudice. In fact, Middleton expressly distinguished cases in which there was

“nothing to show that the trial court, in ruling the motions, did not exercise a sound

judicial discretion” and in which no “error of law appears on the face of the record,”

which is the case here. 152 S.W.2d at 159-60. The presence of credible, non-offending

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juror testimony in support of the verdict and the trial court’s detailed, carefully reasoned

judgment demonstrating that it correctly applied the law set this case apart from Travis

and Middleton. Because of these material differences, Travis and Middleton do not

control the outcome in this case.

Here, the trial court properly applied the law presuming prejudice from

misconduct but found the prejudice rebutted by the credible testimony of eight jurors who

complied with the court’s instructions. The trial court’s decision is entitled to deference

under the abuse of discretion standard of review, and it is not the proper role of this Court

to reweigh the evidence on appeal or override the trial court’s credibility determinations.

The question before the Court is whether the trial court’s decision not to grant a new trial

is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of

careful consideration. Fleshner, 304 S.W.3d at 87. Because no such showing has been

made, the judgment of the trial court must be affirmed.

In arguing that the testimony of the non-offending jurors was insufficient to

overcome the presumption of prejudice in this case, Plaintiff, in effect, asks this Court to

adopt a new rule that non-offending jurors’ testimony in support of their verdict should

never be accorded any weight. Such a rule is not in accordance with the jurisprudence of

this state. The trial court is “familiar with the surrounding circumstances” of a juror’s

misconduct during a trial and is “in a better position than we to determine what, if any,

effect such conduct may have had upon the verdict.” Turnbow v. Kan. City Rys. Co., 211

S.W. 41, 44 (Mo. 1919). As the fact-finder, it is in the trial court’s province to determine

the credibility of witnesses, and there is no logical reason to treat non-offending jurors as

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categorically less credible than all other witnesses, such that trial courts cannot be trusted

to weigh the veracity of their testimony:

[T]he trial court is presumably acquainted with [the jurors], and, if they are
influenced by bias or prejudice, knows that fact. The jurymen are under his
eye during the progress of the trial, and their demeanor is observed by him;
hence he is in a much better position to arrive at a correct conclusion in
regard to their alleged misconduct than we are . . . .

Hoffman v. Dunham, 202 S.W. 429, 431 (Mo. App. 1918).

To hold summarily on appeal that the live testimony of jurors who did not

participate in any misconduct should be given little or no weight would displace the trial

court as the proper arbiter of credibility and, further, would imply that the statements of

individuals who properly fulfilled their civic duty in serving on the jury are inherently

suspect. While Travis requires courts to assume that misconduct might have a subtle

effect on the verdict and, consequently, to presume prejudice from the misconduct, that

presumption may be overridden by weighing the credible testimony of jurors who testify

that they were not improperly influenced during their deliberations.

Numerous decisions by this Court and the court of appeals affirm the trial court’s

broad discretion to grant or deny a new trial based on juror misconduct. See, e.g., Consol.

Sch. Dist. No. 3 of Grain Valley v. W. Mo. Power Co., 46 S.W.2d 174, 180 (Mo. 1931)

(although a juror improperly gathered evidence extraneous to trial, this Court found no

abuse of discretion in overruling a motion for a new trial because the juror did not gain

evidence contrary to what was presented at trial and an affidavit of a different juror stated

that the offending juror never shared the information with other jurors); State v. Herndon,

224 S.W.3d 97, 100-03 (Mo. App. 2007) (the trial court did not abuse its discretion in

11
finding that the presumption of prejudice, which arose after jurors conversed with non-

jurors on their cellular phones during jury deliberations, was rebutted when all of the

jurors testified that these communications did not influence the jury’s verdict); State v.

Hayes, 637 S.W.2d 33, 38-39 (Mo. App. 1982) (the trial court did not abuse its discretion

in failing to grant a new trial when the alternate juror was present during the beginning of

the jury’s deliberations, but affidavits of the alternate and all twelve jurors stated that the

alternate did not participate in or influence the deliberations); State v. Suschank, 595

S.W.2d 295, 297-98 (Mo. App. 1979) (no abuse of discretion in overruling a motion for a

new trial after jurors looked up the definition of “reasonable” in a dictionary when the

jurors testified that the dictionary search did not influence the jury’s verdict); Hoffman,

202 S.W. at 431 (finding that four or five jurors committed misconduct by going to the

scene of the accident during deliberations but holding that the trial court did not abuse its

discretion in overruling a motion for a new trial based on the affidavits of eight jurors,

which stated that the verdict was not influenced by the unauthorized visit). A rule

preventing the trial court from weighing the testimony of non-offending jurors would be

inconsistent with this jurisprudence.

Finally, it should be noted that creating a new rule assigning little or no weight to

the testimony of non-offending jurors, as Plaintiff asks this Court to do here, would have

the practical effect of making the presumption of prejudice irrebuttable whenever a juror

obtains material extraneous evidence. If the trial court is not allowed to believe the

testimony of such jurors, then it has no choice but to grant a new trial every time a single

juror fails to comply with the court’s instructions, even if the juror did not learn any

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information contrary to what was presented at trial, and even if the information is never

shared with the other jurors. If this were the law in Missouri, there would be no need for

the trial court to conduct a hearing and receive evidence regarding the effect of juror

misconduct because such evidence could never overcome the presumption that it

prejudiced the losing party. This outcome is not mandated by Travis or Middleton, and it

contradicts settled precedent of this Court holding that the decision to grant a new trial as

a result of juror misconduct is within the sound discretion of the trial court. Fleshner,

304 S.W.3d at 86-87.

Conclusion

The trial court’s judgment is affirmed.

______________________________
Mary R. Russell, Judge

Breckenridge, C.J., Fischer and Wilson, JJ., concur; Teitelman, J., dissents in separate
opinion filed; Stith and Draper, JJ., concur in opinion of Teitelman, J.

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 SUPREME COURT OF MISSOURI
en banc

KRISTINE SMOTHERMAN and, )
BRIAN SMOTHERMAN, )
)
Appellants, )
)
v. ) No. SC95464
)
CASS REGIONAL MEDICAL )
CENTER, )
)
Respondent. )

Dissenting Opinion

I respectfully dissent. The principal opinion holds that Plaintiff is not entitled to a

new trial even though a juror engaged in independent factual research that disputed

Plaintiff’s theory of liability, admitted his deliberations were influenced by his research

and then communicated his findings to his fellow jurors. While Plaintiff is not entitled to

a perfect trial, Plaintiff is entitled to a fair trial based on the evidence presented at trial

rather than on extra-judicial information gathered through juror misconduct. Therefore, I

would reverse the judgment and remand the case for a new trial.

The bar on independent juror research is an integral part of the resolution of

disputes in an adversarial system because “[t]he legal limit of a jury’s information upon

which to base their action is the evidence adduced at the trial.” Evans v. Klusmeyer, 256

S.W. 1036, 1039 (Mo. 1923). For this reason, a juror’s independent factual research “has
been termed reprehensible conduct” creating a presumption of prejudice that must be

rebutted by the non-moving party. Middleton v. Kansas City Pub. Serv. Co, 152 S.W.2d

154, 158 (Mo. 1941) (citing Klusmeyer, 256 S.W. at 1039.). Therefore, as the principal

opinion notes, the presumption of prejudice applies once it is established that a juror has

gathered information extraneous to evidence at trial. Id. The presumption of prejudice

relieves the moving party of the burden of proving prejudice and, instead, shifts the

burden of demonstrating “that no prejudice resulted from it.” Travis v. Stone, 66 S.W.3d

1, 4 (Mo. banc 2002).

To determine whether prejudice resulted from a juror’s improper independent

investigation, courts first must determine whether the information discovered is material

to the case. Travis, 66 S.W.3d at 6. Evidence is material if it has “some logical

connection with the consequential facts.” State v. Stephens, 88 S.W.3d 876, 883-84 (Mo.

App. 2002) (quoting BLACK’S LAW DICTIONARY 991 (7th ed. 1999)).

The trial court’s analysis of Plaintiff’s juror misconduct claim began with the

clearly erroneous determination that the juror’s independent investigation into the

weather forecast and the attendant possibility that Plaintiff slipped on water rather than

soap is immaterial to the cause of Plaintiff’s slip and fall. The extra-judicial information

regarding the weather forecast is material to the case because the possible existence of

water on the floor has an obvious logical connection to the central disputed issue of what

caused Plaintiff to slip and fall. This initial error in finding that the information was

immaterial necessarily led to the further erroneous conclusion that there was no prejudice

because immaterial evidence, by definition, cannot be prejudicial. Stephens, 88 S.W.3d

2
at 883. The trial court’s decision to overrule Plaintiff’s motion for a new trial was

erroneous from outset.

Although the determination that the evidence was immaterial should have ended

the matter, the trial court also determined that there could be no prejudice because eight

non-offending jurors testified credibly that “the interjection of the extraneous evidence”

was an “isolated remark” that had no impact on the jury’s deliberations. Even though

the trial court found that the eight non-offending jurors testified credibly that the

offending juror’s independent research had no effect on their deliberations, the fact

remains that the offending juror admitted that his extra-judicial research influenced his

decision. When asked by Plaintiff’s counsel what factors led to the jury’s verdict in favor

of the Defendant, the offending juror stated that he had “checked the weather forecast for

th[e] day [of the accident] and the forecast was for eight to ten inches of snow.”

Although each juror independently considers the evidence, the jury’s decision-making

process involves collective deliberation with the goal of reaching a consensus. In this

case, the offending juror’s admission that his independent research influenced his

deliberations establishes that the jury deliberations were compromised even though other

jurors testified that there was no impact.

The principal opinion’s reliance on the fact that eight non-offending jurors

testified that the juror misconduct had no impact on their decision is also inconsistent

with this Court’s previous recognition that a juror’s independent factual research is

uniquely prejudicial. In Travis, a juror visited the scene of the accident at issue to help

her “understand the testimony presented at trial.” 66 S.W.3d at 3. This Court reversed

3
the denial of a motion for new trial based on alleged juror misconduct because “it must be

assumed” that the juror’s investigation had an impact on the jury’s decision, “which in

turn influenced [the juror’s] participation in the jury deliberations.” 66 S.W.3d at 5. The

influence of the extra-judicial information may have “subtly affected the outcome of the

case,” warranting a new trial even though there was no indication that the offending juror

had communicated the findings to the other jurors. Id. This Court further noted that in

cases of juror misconduct involving improper gathering of extra-judicial information, it is

“virtually impossible for anyone to demonstrate the effect of [the offending juror’s]

interactions on the deliberations, especially given the fact that there is no

contemporaneous record of jury deliberations.” Id.

The principal opinion attempts to distinguish this case from Travis by noting that,

in Travis, only the juror who committed the misconduct testified, while, in this case, all

nine jurors either testified or submitted affidavits stating that the extra-judicial

information did not influence their deliberations. Travis, however, relied on Middleton,

in which nine jurors submitted affidavits stating that the extra-judicial information had no

influence on their verdict. Yet, in Middleton, this Court held “[W]e think these affidavits

had little probative value because of the common tendency of jurors to minimize the

effect of misconduct.” 152 S.W.2d at 160.

In addition to the unequivocal denouncement of independent factual research by

jurors, Travis is particularly instructive for two additional reasons. First, unlike this case,

the juror in Travis did not share the information with the other jurors. If the existence of

extra-judicial information can prejudice jury deliberations when it was not presented to

4
the remaining jurors, it follows that the prejudicial impact is amplified when, as in this

case, the offending juror shared the improper information with other jurors. Second, the

offending juror in Travis visited the scene of the accident to generally better understand

the testimony in the case. In contrast, in this case, the offending juror researched the

weather to investigate the very specific fact of whether there was a possibility that

Plaintiff slipped and fell on water rather than soap. If the improper general investigation

in Travis was prejudicial, then the focused research in this case to test a specific theory of

alternate causation should be deemed prejudicial as well.

Given the high standard to overcome the presumption of prejudice caused by juror

misconduct and the modest weight given to jurors’ claims that they were not affected by

extrinsic evidence, I would hold that the jurors’ testimony does not overcome the

presumption of prejudice by showing “that no prejudice resulted from it.” Travis, 66

S.W.3d at 4. The judgment should be reversed, and the case should be remanded for a

new trial.

___________________________
Richard B. Teitelman, Judge

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