In Eoff v. McDonald, the Supreme Court of Missouri upheld a St. Louis County circuit judge’s refusal to allow plaintiffs’ counsel additional time during jury selection to ask the “insurance question”, after counsel forgot to do so earlier when it was his turn to question potential jurors. The decision hinged on the determination that the right to ask the question is not absolute and must follow a procedure designed to balance the plaintiff’s right to ask the question to ensure a fair and impartial jury with potential prejudice to the defense by unduly highlighting the insurance issue.

It is common practice for Missouri plaintiff counsel, consistent with the holding in Ivy v. Hawk, 878 S.W.2d 442 (Mo. banc 1994) (reversing and ordering new trial where trial court failed to allow plaintiffs’ counsel to ask prospective jurors the preliminary insurance question), to question potential jurors whether they have a financial interest in the defendant’s malpractice insurer. Ivy is one in a long line of Missouri cases holding a trial court must permit this even though evidence of a defendant’s liability insurance is inadmissible under the collateral source rule. The Ivy opinion explains the proper procedure: (1) obtain the court’s approval outside the jury panel’s presence; (2) ask only one "insurance question;" and, (3) do not ask it first or last in a series of questions so as to avoid unduly highlighting it. The form of the question is at the trial court's discretion – it generally encompasses whether any members of the panel or their families work for or have a financial interest in the named insurance company.

The Eoff plaintiffs sued a physician and her employer for the alleged wrongful death of their daughter during delivery at birth. During discovery, the physician disclosed the identity of her medical malpractice insurer, a small insurance company located nearly 300 miles from St. Louis County. At trial, Plaintiffs’ counsel submitted to the court in writing his proposed insurance question for jury selection. Defense counsel did not object, and counsel proceeded with lengthy jury selection, covering 173 pages of trial transcript. Plaintiffs’ counsel concluded his questioning without asking the insurance question, apparently forgetting to do so. After realizing his mistake, Plaintiffs’ counsel sought the court’s permission for additional time to ask the question after defense counsel’s final question. Plaintiffs’ counsel indicated he would ask the question as the second of three additional questions. The trial judge denied the request because she believed the risk of prejudice to the defense by unduly highlighting the insurance issue outweighed any prejudice to plaintiffs, especially considering the insurance company was small and located across the state.

After a six-day jury trial resulting in a defense verdict, the trial judge denied the plaintiffs’ motion for new trial. The plaintiffs appealed, and the Missouri Court of Appeals, Eastern District, reversed and remanded for a new trial based on the trial judge’s refusal to allow Plaintiffs’ counsel to ask the insurance question. The Supreme Court of Missouri accepted the case for review.

The Supreme Court of Missouri disagreed with the Court of Appeals, and affirmed the trial court’s decision and jury verdict. The Supreme Court held that Ivy neither affords plaintiff counsel the unqualified right to ask the insurance question nor divests a trial court’s discretion to control the timing and sequence of jury selection. The Eoffs’ counsel failed to follow the procedure set forth in Ivy, and therefore waived the right to ask the insurance question. Under Ivy, a new trial is warranted only if a trial court denies the right to ask a proper insurance question. Here, it was not incumbent on the trial court to permit the Eoffs’ counsel a second chance.

The Eoff opinion breathes new life into a mainstay of the jury selection process for many Missouri medical negligence jury trials. The holding confirms the right to ask the insurance question. But it also emphasizes both the importance of following proper procedure, and the trial court’s discretion in conducting jury selection and balancing the right to ask the question with the risk of potential prejudice. Eoff serves as a stark warning to trial counsel to remember to ask the insurance question, and to do so at the appropriate time.