               SUPREME COURT OF MISSOURI
                                          en banc
ABRAHAM J. EOFF and                      )             Opinion issued August 13, 2019
CRYSTAL M. EOFF, Individually            )
and as Plaintiffs Ad Litem for           )
SOPHEE R. EOFF,                          )
                                         )
      Appellants,                        )
                                         )
v.                                       )             No. SC97640
                                         )
JENNIFER K. McDONALD, D.O.,              )
and SEASONS HEALTHCARE                   )
FOR WOMEN, P.C.,                         )
                                         )
      Respondents.                       )

                     Appeal from the Circuit Court of St. Louis County
                           The Honorable Kristine Kerr, Judge

      Abraham and Crystal Eoff appeal the judgment against them following a jury

verdict in favor of defendants Jennifer K. McDonald, D.O., and Seasons Healthcare for

Women P.C. The Eoffs allege the circuit court committed reversible error when it

refused to allow their counsel additional voir dire time so he could ask the “insurance

question” after counsel forgot to ask it during his initial voir dire. This Court affirms.

The parties do not challenge the holding in Ivy v. Hawk, 878 S.W.2d 442 (Mo. banc

1994), that a party has the right to ask the insurance question during voir dire if the

proper procedure is used so as to avoid unduly highlighting the question. But, in so
holding, Ivy did not divest the circuit court of its discretion to control the proper timing

and form of voir dire questioning, including discretion as to whether counsel’s proposed

procedure would unduly highlight the question. Here, once the Eoffs’ counsel forgot to

ask the insurance question during multiple hours of voir dire, the circuit court acted

within its discretion in finding it would unduly highlight the question to allow counsel to

recommence his questioning to ask it as one of a small number of extra questions after

voir dire otherwise had concluded.

I.     FACTUAL AND PROCEDURAL BACKGROUND

       Abraham and Crystal Eoff brought a medical negligence claim in St. Louis County

against Jennifer K. McDonald, D.O., and Seasons Healthcare for Women P.C. for the

wrongful death of their daughter during delivery. Before trial, the Eoffs learned that

Missouri Doctors Mutual Insurance Company (MDMIC) provided medical malpractice

liability insurance to Dr. McDonald and Seasons Healthcare.            MDMIC is a small

insurance company with approximately 20 employees, located 50 miles north of Kansas

City in St. Joseph, Missouri.

       In Ivy, this Court held that, when one party has insurance, it is reversible error not

to permit the other’s 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 generally referred to as “the insurance question.” Id. at

445. 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

the proposed question outside of the venire panel’s hearing and then to avoid unduly

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highlighting the question by not asking it first or last in a series of questions. Id. In

accordance with Ivy, before jury selection began, the Eoffs’ counsel 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’s 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 the jury could be seated the next morning. The Eoffs’ counsel, nonetheless,

took another 35 pages of transcript to complete his voir dire questioning.

       Defense counsel completed his voir dire after approximately an hour. The circuit

court then turned to the Eoffs’ counsel and said, “Plaintiff’s side, you’re done as well?”

Counsel for both sides approached the bench, and the Eoffs’ counsel said:

       Your Honor, I in my haste to move in [sic], and looking at my buried and
       entrenched question, I forgot to ask the insurance question. So now I’m in
       the problem of I can’t ask it by itself in -- standing alone, I have three
       questions I can ask at this juncture. But I apologize, it’s partly my
       negligence. My effort was try [sic] to resolve getting my end sped up.

Defense counsel objected, stating:

       Yeah, well, no, the one thing I’d say is obviously even if he has three
       question[s] now the insurance question becomes highlighted. I mean, the
       one thing we’ve said many times in all these cases is, there’s not a single

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       person in this room who’s related to Missouri Doctors Mutual Insurance
       Company because the insurance company’s out of St. Joe, all the
       employees are in St. Joe. And the only insurers are doctors, and there’s no
       doctors on this jury. So there’s nobody that has any rational, reasonable
       basis to answer that question yes.

       Although the statement by Eoffs’ counsel suggested his failure to ask the

insurance question was due to “haste” in complying with the circuit court’s request to

move along, the record shows the circuit court did not otherwise curtail the Eoffs’ voir

dire period after asking counsel to move along. Rather, the Eoffs’ counsel engaged in

extensive questioning following the circuit court’s request until he turned voir dire over

to defense counsel.

       After considering both sides’ arguments, the circuit court rejected the Eoffs’

counsel’s request. In doing so, she noted were she to allow him to continue with his voir

dire, “the prejudice is more to the other side by unduly highlighting” the defendants’

insurance, particularly when the circuit court noted there was almost no likelihood of an

affirmative answer given that MDMIC was a small, specialized insurance company from

across the state.

       The following morning, the circuit court swore in a jury. After six days of trial the

jury found in favor of Dr. McDonald and Seasons Healthcare. The circuit court overruled

the Eoffs’ motion for new trial. Following an opinion by the court of appeals, this Court

granted transfer. Rule 83.04.

II.    STANDARD OF REVIEW

       The sole issue raised on appeal is whether the circuit court erred in refusing to

allow the Eoffs’ counsel to ask the insurance question outside of their original portion of

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voir dire. “The denial of the right to ask a proper ‘insurance question’ is an issue of law.”

Ivy, 878 S.W.2d at 445. If the procedure for asking the insurance question is properly

followed so as to avoid unduly highlighting the insurance question, and the circuit court

incorrectly denies the request, Ivy held prejudice is presumed. Id. at 446. But if Ivy is

not violated, “the trial judge is vested with the discretion to judge the appropriateness of

specific questions, and is generally vested with wide discretion in the conduct of voir

dire.” State v. Oates, 12 S.W.3d 307, 310 (Mo. banc 2000). This generally includes

“[t]he nature and extent of questioning.” State v. Nicklasson, 967 S.W.2d 596, 608 (Mo.

banc 1998). When prejudice is not presumed under Ivy, “[a]n appellate court will find

reversible error only where an abuse of discretion is found and the defendant can

demonstrate prejudice.” Oates, 12 S.W.3d at 311.

III.   IVY DOES NOT PRECLUDE CIRCUIT COURT CONTROL OF THE
       TIMING AND FORM OF THE INSURANCE QUESTION

       The Eoffs claim that Ivy gives plaintiff’s counsel a right to ask the “insurance

question” whenever counsel does so in the manner set out in Ivy; therefore, the circuit

court was without discretion to deny their counsel the right to continue his questioning,

regardless of the other circumstances in voir dire, because he offered to ask it between

two other questions to avoid highlighting it. The Eoffs misconstrue Ivy.

       Ivy is one in a long line of Missouri cases, going back at least as early as 1929,

holding the circuit court has no discretion to refuse to permit the plaintiff’s counsel to

inquire into a juror’s potential relationship with the defendant’s insurer even though

evidence of a defendant’s liability insurance is inadmissible under the collateral source


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rule. See Smith v. Star Cab Co., 19 S.W.2d 467, 469 (Mo. 1929). Defense counsel did

not challenge the correctness of the Ivy rule below or in this Court, so Ivy governs, and

this Court will not question its holding here.

       But neither Ivy nor similar decisions give counsel the unqualified right to ask the

insurance question whenever or however counsel wishes. Rather, as noted in Taylor v.

Republic Automotive Parts, Inc., 950 S.W.2d 318, 321 (Mo. App. 1997), the procedure of

allowing counsel to ask a single insurance question in a manner that does not highlight it:

       has developed as a balance between two competing concerns, both based on
       the premise that parties to a lawsuit have the right to a fair and impartial
       jury. On the one hand is the right of the parties to know if any of the
       potential jurors or their families have an interest in the outcome of the
       lawsuit. On the other hand is the desire to avoid prejudicing the jury by
       emphasizing the existence of liability insurance coverage.

(citations omitted). It was in furtherance of this goal to avoid highlighting the presence

of insurance that Ivy approved a procedure also approved by prior Missouri cases:

       1) first getting the judge’s approval of the proposed question out of the
       hearing of the jury panel, 2) asking only one “insurance question,” and 3)
       not asking it first or last in a series of questions so as to avoid unduly
       highlighting the question to the jury panel. Callahan v. Cardinal Glennon
       Hosp., 863 S.W.2d 852, 871 (Mo. banc 1993).

878 S.W.2d at 445. If this procedure is followed, the circuit court must allow the

insurance question to be asked. Id. at 444. But the circuit court does have discretion in

approving the form of the question. Id. at 445.

       The problem for the Eoffs is that the circuit court gave their counsel permission to

ask the insurance question. The court having done its part, it then was up to the Eoffs’

counsel to do his by asking the question, but he failed to do so during his lengthy voir


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dire. It was only after the Eoffs’ counsel had asked all of his other questions, and defense

counsel had finished his voir dire, that the Eoffs’ counsel recalled he had failed to ask the

insurance question – and only the insurance question – and asked for permission to do so.

Counsel’s contention that Ivy still controlled the circuit court’s discretion at that point,

and required the circuit court allow his question, is simply incorrect. Ivy did not address

this situation.

       In Ivy, the circuit court refused to allow counsel to ask any insurance question. Id.

at 444. Ivy held this was wrong and provided guidance as to how a proper question could

be asked. Id. at 445. It did not otherwise divest the circuit court of its discretion to

control the sequence and timing of voir dire.         “While a necessary component of a

guarantee for an impartial jury is an adequate voir dire that identifies unqualified jurors ...

the trial judge is vested with the discretion to judge the appropriateness of specific

questions, and is generally vested with wide discretion in the conduct of voir dire.” State

v. Baumruk, 280 S.W.3d 600, 614 (Mo. banc 2009) (alterations in original) (quotations

omitted). This includes “wide discretion” as to “[t]he nature and extent of questioning.”

Nicklasson, 967 S.W.2d at 608. 1

        While neither Ivy nor any other decision of this Court has had occasion to apply

these principles to a situation in which counsel forgot to ask the insurance question until

after the planned portion of voir dire was complete, the court of appeals did address a


1
  Further, despite the stress the Eoffs put on the circuit court’s directive to “wrap it up,” it
is evident from the record that the only question counsel forgot due to haste was the
insurance question. Most of the morning and a good part of the afternoon of the first day
of trial was devoted to the Eoffs’ voir dire, and the Eoffs do not, and could not, claim on
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very similar situation in Buckallew v. McGoldrick, 908 S.W.2d 704 (Mo. App. 1995).

There, as here, counsel forgot to ask his planned and approved insurance question during

his portion of voir dire. Id. at 706. Once voir dire was concluded, he requested more

time with the venire panel to ask the “insurance question.” Id. The circuit court rejected

his request due to concern about highlighting the insurance question. Id. The appellate

court affirmed, stating:

       Ivy reveals that the court has no discretion to refuse one’s right to ask a
       proper “insurance question.” [This] case is distinguishable from Ivy,
       however, because the court initially granted counsel the right to ask the
       proffered question. It was only after counsel “forgot” to ask the question
       during voir dire that the court made the denial which is now contested.

Id. at 708. 2 Buckallew held the circuit court did have discretion to deny counsel’s request

to reopen voir dire for the sole purpose of asking the “insurance question” because to do

so would unduly highlight the question, in contravention of Ivy:

       The trial court offered counsel reasonable opportunity to inquire as to the
       panel’s insurance connections. Counsel failed to seize that opportunity and
       therefore waived the right to ask the “insurance question.” A new trial is
       only required upon the denial of “the right to ask a proper ‘insurance
       question.’” See Ivy, 878 S.W.2d at 445 (emphasis added). The proposed
       question in [this] case was not proper, due to its untimeliness.

Id. The same holds true here. By failing to take advantage during their voir dire of the



appeal that the circuit court unduly or unfairly limited their time for questioning the jury.
2
  In Buckallew, and at the trial level in the present case, the circuit court erroneously also
suggested that no prejudice could have resulted from not allowing the insurance question
to be asked because the insurer was a small company from a different area and so was
unlikely to have a connection to any venireperson. 908 S.W.2d at 708. Ivy made it clear
this is an insufficient basis to preclude the plaintiff’s counsel from asking the insurance
question, however, as the plaintiff has the right to discover whether there is any such
connection. 878 S.W.2d at 446.

                                                 8
opportunity to ask the question in a manner that would not unduly highlight the question,

the Eoffs took themselves outside the procedure approved in Ivy. It was then up to the

circuit court to consider the circumstances and determine whether allowing their counsel

to ask the question at the very end of voir dire would contravene the principle underlying

Ivy that counsel must present the question in a manner that does not unduly highlight it.

The circuit court did not abuse its discretion in finding the asking of the insurance

question at this late point would unduly highlight it.

       The Eoffs attempt to distinguish Buckallew by arguing in that case, the jury had

actually been told voir dire was complete, while here, that was not the case. 908 S.W.2d

at 706. This was not the basis of the ruling in Buckallew, however. As just quoted, the

decision was based on the fact counsel had been offered the opportunity to ask the

insurance question but had failed to do so, making the question untimely. Id. at 708.

That aspect of Buckallew’s rationale fully applies here.

       The Eoffs further note that in Buckallew, counsel asked to reopen voir dire to ask

only the insurance question, id., whereas, in this case, the Eoffs’ counsel offered to add in

two unrelated questions and place the insurance question between them. But this ignores

Buckallew’s statement that, even had counsel offered to surround the insurance question

with a few other questions, “it is not unreasonable to conclude that [counsel’s] strategy of

asking several questions would still place undue emphasis on the issue of insurance.” Id.

This reasoning also applies here.

       Having offered the Eoffs’ counsel the opportunity to ask the insurance question in

a timely manner that did not highlight it, as approved in Ivy, and counsel effectively

                                                 9
having waived that right, it was not incumbent on the circuit court to give him a second

chance to ask the question after the circuit court concluded the timing would unduly

highlight the insurance question by isolating it at the very end of voir dire. “[I]t is well-

settled that the trial court is better suited than an appellate court to judge the effect that

‘insurance questions’ have on a jury panel.” Banks v. Vill. Enters., Inc., 32 S.W.3d 780,

794 (Mo. App. 2000). Unduly highlighting the fact that the defendants carried insurance

is the very ill that Ivy sought to cure by setting out its three-step procedure. 878 S.W.2d

at 445 (“Allowing one question preserves the balance of permitting the plaintiffs 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”).

IV.    CONCLUSION

        The judgment is affirmed.



                                                  _________________________________
                                                     LAURA DENVIR STITH, JUDGE

Wilson, Russell, Powell, Breckenridge, and
Fischer, JJ., concur; Draper, C.J., dissents.




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