The state Supreme Court is considering a case from southeast Missouri’s Stoddard County on whether a juror properly disclosed her previous involvement in litigation.

The Missouri Supreme Court Building in Jefferson City

In a $19 million wrongful death lawsuit against it, Fort Worth, Texas based BNSF Railway contends juror Kimberly Cornell intentionally failed to disclose that her son was killed in an auto accident, and that she was also involved in his wrongful death lawsuit.

BNSF attorneys were interested in the disposition of potential jurors in order to protect the company against possible bias.

Before trial, the court mailed a questionnaire to prospective jurors.  The form sent to Cornell misspelled her last name as Carnell.

She filled it out, claiming she’d never been a party to a lawsuit or made a claim against anyone, but didn’t correct the misspelled name.

Her name continued to be incorrect on subsequent documents, including on one used by BNSF attorneys to corroborate statements of potential jurors.

A deputy county clerk, Cindy Wheeler, became aware of the misspelling on the first morning of the trial when the jury was being selected, and says she informed an attorney on both sides of the case about the discrepancy.

BNSF says it wasn’t informed about the misspelling of Cornell’s last name until after the trial.  It contends it otherwise conducted a reasonable search to check the accuracy of potential juror statements.

The company claims there is no mention in any court records of the misspelling of Juror Cornell’s name before or during jury selection, or during the trial.

Attorney Booker Shaw argued on behalf of BNSF before the high court.  “It’s unreasonable to believe that there is no mention anywhere in this record, contemporaneous with such an unusual event, by the court or by the clerk that there was notification given to counsel, that counsel was given an opportunity or time to conduct this search,” said Shaw.

Attorney Michael Manners argued for Sherry Spence, the plaintiff in the wrongful death case.  Manners referenced post trial transcripts in noting that deputy county clerk Wheeler stated she informed attorneys on both sides prior to jury selection of the misspelling of Cornell’s last name.

“Clearly, unequivocally they (BNSF) knew about it before the commencement of voir dire (jury selection),” said Manners.  “And we know from the record that it was four-and-a-half hours from the time voir dire (jury selection) until the jury was seated.”

Manners argued that attorneys for BNSF had ample time to corroborate the accuracy of potential juror statements through a web search, but acknowledged there was no verbal announcement recorded by a court reporter of the name discrepancy.

Spence brought the wrongful death lawsuit after her husband, Scott Spence, was struck and killed by a BNSF train on a railroad crossing on a county road in southeast Missouri’s Pemiscot County.

Spence filed a wrongful death case against BNSF and two employees – the engineer and conductor of the train.  The employees were later dropped from the suit.

The case went to trial in late April 2015.  In May of 2015, the trial court entered a judgement against BNSF, calling on the rail company to pay Spence $19 million plus court costs and interest at the rate of 5.25% per annum.

In December 2016, the Missouri Court of Appeals for the Southern District in Springfield reversed the trial court’s judgment.

The state Supreme Court is considering the trial court’s decision and will issue a decision at a later date.  BNSF is seeking a new trial in the case.