## In the



# Missouri Court of Appeals Western District

MARK LARSEN ,

Appellant
- Respondent , v. UNION PACIFIC RAILROAD COMPANY ,

Respondent
- Appellant .            WD 78609 Consolidated with WD78622 OPINION: AUGUST 23, 2016

Appeal from the Circuit Court of Buchanan County, Missouri

The Honorable Randall R. Jackson , Judge Before Division One: Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ. Mark Larsen appeals the circuit court’s grant of Union Pacific Railroad Company’s
Motion for New Trial and/or Review for Plain Error Based on the Discovery of Juror Nondisclosure. Larsen asserts four points on appeal. First he contends that the circuit c ourt erred in granting Union Pacific’s motio n for new trial because there is no competent evidence that Juror LS intentionally failed to disclose his union membership in that it is unclear what Union Pacific was seeking in its voir dire question, wa s not e stablished that Juror LS did not attempt to respond, and Larsen was prevent ed from adducing testimony of Juror LS regarding his understanding of the question. Second, Larsen contends that the circuit court erred in granting Union Pacific’s motion for new trial because Union Pacific’s claim of juror nondisclosure was untimely in that it was made well after the deadline for raising a claim of error and encourages2

post

- trial witch hunts. Third, Larsen contends that the circuit court erred in granting Union
P acific’s motion for new trial because the testimony of David A. Giles, Ph.D. is demonstrably not credible in that it is internally inconsistent and self

- contradictory. Finally, Larsen claims that the court erred in granting Union Pacific’s motion for new trial because the alleged nondisclosure by Juror LS was not prejudicial in that his union membership had little connection to the case and no bearing on his qualifications to act as a juror. Union Pacific cross

- a ppeals contending that the circuit court er red in denying its motions for directed verdict and judgment not withstanding the verdict arguing that Larsen failed to make a submissible case for negligence under the Federal Employers’ Liability Act (FELA) because Larsen failed to present substantial evi dence that Union Pacific had actual or constructive notice of any supposed dangerous characteristics of the crane that Larsen claims caused his injury, and that evidence was a critical element of a claim under the FELA. We affirm the circuit court’s jud gment granting Union Pacific’s motion for new trial, and affirm the circuit court’s judgment denying Union Pacific’ s motion s for directed verdict and judgment notwithstanding the verdict. Larsen’ s Appeal Factual Background We first address Larsen’s points on appeal. The facts, in the light most favorable to the circuit court’s judgment and as relevant to Larsen’s points on appeal , are as follows. On May 6, 2013, Larsen , an employee of Union Pacific and member of a l abor union, filed his original
p etition alleging that he was injured when he fell from a ladder while working for Union Pacific

. The case went to trial on December 15, 2014. On that date, a jury panel was called and voir dire3

was conducted. Juror LS was a me mber of that jury panel, and eventually became a member of the jury in the case. During voir dire, LS was seated in Row 2, Seat 16. The court instructed the panel at some length regarding the panel member’s rights and responsibilities as potential members of a jury. Specifically, the c ourt told the panel of the importance of honest and complete answers; that if any member of the panel did not understand a question during voir dire, he or she needed to raise a hand and it would be clarified; that if they d id not have an affirmative answer to any question asked, the failure to raise their hand would be the same as affirming under oath that the question did not apply to them; and that if many hands were raised at once, the panel members could lower their hand s, and examination would be conducted row by row. The c ourt added: “ But be sure we don’ t pass your row and pass you without getting your hand up and getting your response on the record.”
The c ourt further instruct ed the panel that , if anyone was experiencing any hardships that would make them unable to participate in the proceedings, they should bring that to the c ourt’ s attention. During voir dire, counsel for Union Pacific inquired : As you understand this is a claim by Mr. Larsen against Union Pacific for some injuries. This is not a labor dispute. But it is a dispute between an individual who happens to be the member of a labor union and a railroad company. Is there anyone else out here who is a member of a labor union? Okay, I see a few ha nds. Anybody in the front row? I don’t see any hands in the front row or the second row. Third row, okay? Let’s go ahead and stick with the third row. Is it [Venireman D]? Two panel members raised their hands. Counsel for Union Pacific proceeded to questio n the two panel members regarding the details of their affiliation with labor unions and how it would impact their ability to serve fairly and impartially on a jury in a case involving an on

- the

- job injury to a union member. Venireman D responde d that he was a member of United Food and4

Commerce Workers, UFCW , and responded to questions regarding that membership. Venireman M expressed an affiliatio n with the Sheet Metal Workers U nion. After questioning these veniremen , counsel for Union Pacific inquired , “I think we’ve covered all the rows, but I just wanted to make sure. I see no further hands as far as labor unions. How about let’s broaden the search to husbands or wives, anyone who has a husband or wife who is a member of a labor union?” Co unsel for Union Paci fic proceeded to question potential jurors who raise d their hand in response to that question. The record reflects that, at no time during this process did Juror LS raise his hand or otherwise indicate that he was a member of a labor u nion. Throughout the remainder of the voir dire process, counsel for both parties questioned the panel regarding any biases or prejudices that would lead any member of the panel to favor one side or the other. While several venire members did respond, Juror LS provided no response. Both the c ourt and counsel for each party questioned the panel regarding any personal hardships that they might be experiencing that would impact their ability to effectively serve on the jury. Juror LS provided no response to any of these questions nor any other question s posed throughout voir dire

. At the conclusion of voir dire, both Larsen and Union Pacific requested strikes for cause and made peremptory strikes. Neither side struck Juror LS and he became one of the twel ve person jury that considered and ultimately decided the case. The jury panel was sworn, and the trial proceeded for the next 5 days, from December 15, 2014 to December 19, 2014. On December 19, 2014, the jury began its deliberations, and later returned a verdict in favor of Larsen, assessing Larsen’s damages to be $3,200,000. Juror LS participated in the deliberations and signed the verdict form awarding damages to Larsen

. On December 29, 2014, the circuit

court entered i ts Judgment based on the jury’ s verdict.5

On January 28, 2015, Union Pacific filed a timely “ Motion for New Trial or, Alternatively, for Remittitur, together with Suggestions in S upport

. ” On that same date, Union Pacific also timely filed a “ Motion for Judgment Notwithstanding the Verdict, and Suggestions in S up port. ” On January 29, 2015, counsel for Union Pacific requested that those m otions be scheduled for hearing. The motion h earing was scheduled for March 3, 2015. On February 26, 2015, Union Pacific filed a “ Motion for New Trial and/or Review for Plain Error Based on the Discovery of Juror Nondisclosure, and Suggestions in S up port. ” In that

m otion, Union Pacific alleged that a manifest injustice or miscarriage of justice had occurred because Juror LS had intentionally c oncealed that he was a member of a labor union and , even if the nondisclosure was unintentional, Union Pacific was prejudiced because the information withheld had a bearing on the juror’s ability to fairly evaluate the evidence. Union Pacific alleged that it had retained Dr. David Giles, a jury researcher and consultant, to assist Union Pacific in learning from the jurors what influenced their decision in the case. The motion alleged that Dr. Giles spoke with Juror LS on January 31, 2015, and during that conversation Juror LS characterized himself to Dr. Giles as the informal leader of the jury who had taken an active role in leading deliberations. The motion alleged that , when asked what facto rs were most significant to him, Juror LS volunteered, “Look, I am a union guy” and identified himself as a member of a labor union at his place of employment. The motion alleged that Juror LS told Dr. Giles that Larsen “had my vote right off.” The motion alleged that Juror LS emphasized to Dr. Giles the point that Larsen was hurt at work and that Union Pacific was trying to find a way not to pay him. Union Pacific sought “plain error” review pursuant to Missouri S up reme Court Rule 78.08 and informed the c ourt of its intention to raise the juror nondisclosure issue at the March 3, 2015 hearing on Union Pacific ’s Motion for New T rial

.6

On March 3, 2015, the c ourt conducted a hearing on Union Pacific’s Motion for New Trial or in the Alternative Remittitur and Union Pacific’s Motion for JNOV. At this hearing, Union Pacific raised the issue of juror non

- disclosure and re iterated Union Pacific’s earlier request for plain error review. Union Pacific specifically requested that the c ourt conduct an evidentiary hearing into Juror LS’ s alleged non - disclosure of his union membership, and in support of this request, Union Pacific submitted relevant portions of the voir dire transcript as well as the a ffidavit of Dr. Giles

. After review, the court determined that the question regarding labor union membership was a clear question and that an evidentiary hearing was warranted to determine whether a nondisclosure by Juror LS had occurred. On March 9, 2015, Larsen filed a “ Supplemental Brief on the Timeliness of Union Pacific’s Motion for New Trial or Review for Plain Error Based on Juror Nondisclosure. ” Therein, Larsen argued that plain error review of the juror nondiscl osure issue was unwarranted because Union Pacific failed to e xplain why it did not obtain the nondisclosure information prior

to the Rule 78.04 thirty

- day deadline for moving for a new trial , and delayed filing a motion for plain error review for more than three weeks after Dr. Giles had spoken with Juror LS an d had discovered the purported nondisclosure

. Union Pacific replie d to that brief indicating, among other things, that Union Pacific raised the issue of the nondisclosure as soon as it reasonably could. On March 13, 2015, the court issued an order granting Union Pacific leave to subpoena and make inquiry of Juror LS rega rding the alleged nondisclosure. An evidentiary hearing was scheduled for April 1, 2015 , to address Juror LS’s recollection and understanding of the labor union voir dire question and his reason or intent for failing to respond to the question. At that
h earing, Juror LS testified and admitted that he is and was a t the time of trial a member of United7

Food and Commercial Workers, UFCW. Juror LS testified that , during the jury selection process he had not for gotten that he was a member of a union. He test ified , however, that he had unexpectedly lost his mother thirteen days prior to trial so he had a lot of things on his mind at that time . He testified that he did not bring his mother’s recent death to the court ’s attention

. He testified that during the jury selection process he was hoping that he would not get selected for the jury. He stated that he did not understand how the jury selection process worked and was hoping that if he did n ot answer questions it would be less likely that he w ould be select ed as a juror. Juror LS testified that he did not specifically recall the union membership questions during voir dire , but did recall answering no questions during voir dire

. When asked by the court if he was paying attention to anything that was going on during the questioning process, Juror LS stated: “Like I said, I was going through a lot at that time and, honestly, I was here but I wasn’t.” When Juror LS was reminded tha t he had not brought his personal difficulties to anyone’s attention, Juror LS stated that he “did not expect to get picked out of 39 people .” When the court asked Juror LS if it was possible that he did not intentionally answer some questions that pertai ned to him so that he would not be selected for service, Juror LS responded, “I suppose it’s possible.” Juror LS denied ever stating to Dr. Giles that he was a “union guy” or tha t Larsen “had my vote right off,” and denied ever suggesting that he was the informal leader of the jury. Juror LS denied intentionally concealing information. He testified that he could not recall any specific questions that were asked during voir dire , but recalls being able to hear everything that was stated in the form of the questions and comments of the court at the time of voir dire

. Dr. Giles also testified at the evidentiary hearing. He testified that he had been hired by Union Pacific because Union Pacific did not completely understand how the jury arrived at its deci sion in the Larsen case. It was his task to speak with the jurors about things that were pivotal8

in their jury decision

- making. He testified that he had no idea of the questions that had been asked of jurors during the voir dire process and was not direc ted or influenced in any way with regard to the types of questions that he asked the jurors when he interviewed them. Dr. Giles testified that he did not specifically ask Juror LS whether he was a member of a labor union. He testified that he asked Juror LS if there was a pivotal time in the trial in which he began to form some sort of idea about what the dispute was about. Dr. Giles testified that, in response to that question, Juror LS stated, “Look, I’m a union man. He had my vote right off.” Dr. Gi les also testified that Juror LS had voluntarily characterized himself as the informal leader of the jury. On April 22, 2015, the circuit court entered a “Judgment Granting Defendant’s Motion for New Trial” due to “intentional, material, and prejudicial” juror nondisclosure. Larsen appeals. Larsen’s Point I In Larsen’s first point on appeal 1 he contends that the circuit court erred in granting Union Pacific’s motion for new trial because there is no competent evidence that Juror LS intentionally failed to disclose his union membership in that it is unclear what Union Pacific was seeking in its question, w as not established that Juror LS did not attempt to respond, and Larsen was prevented from adducing testimony of Juror LS regarding his understanding of t he question.

A trial court has great discretion in determining whether to grant a new trial. Its decision is presumed to be correct and will be reversed on appeal only for an abuse of discretion. An abuse of discretion occurs where the trial court’s ruli ng is so arbitrary and unreasonable as to shock one’s sense of justice and indicate a lack of careful consideration. It cannot be said that the trial court

1 Union Pacific argues that Larsen’s appeal should be dismissed due to various briefing deficiencies in violation of Rule 84.04(d). In Larsen’s reply brief Larsen admits to “some procedural deficiencies with his brief, including typographical and formatting errors,” but disputes other alleged briefing deficiencies

. As we prefer to resolve an appeal on the merits of the case and can ascertain Larsen’s arguments despite any alleged deficiencies , we proceed with review of Larsen’s claims. See Payne v. Markeso n , 414 S.W.3d 530, 545 (Mo. App. 2013).9

abused its discretion where reasonable persons could differ over the propriety of its ruling. Appe llate courts should be more liberal in upholding a grant of a new trial than in awarding a new trial when the trial court denies the motion. However, the granting of a motion for a new trial can be an abuse of discretion where it is based on findings that are not substantially supported by the record. Precision Elec., Inc. v. Ex

- Amish Specialties, Inc. , 400 S.W.3d 802, 808 (Mo. App. 2013) (internal citations and quotation marks omitted). Evaluation of a juror nondisclosure claim involves two steps. J .T. ex rel. Taylor v. Anbari , 442 S.W.3d 49, 56 (Mo. App. 2014). First, we review de novo whether the question posed was sufficiently clear. Id. If the question was insufficiently clear, then there has been no nondisclosure. Id. If clear, we then cons ider whether the nondisclosure was intentional. Id.

‘ “Intentional nondisclosure occurs if: 1) there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and 2) the prospective juror actually remembers the experience or that it was of such significance that his purported forgetfulness is unreasonable.” ’ Id. at 56

- 57 ( quoting Smith v. Brown & Williamson Tobacco Corp. , 410 S.W.3d 623, 644 (Mo. banc 2013). “The determination of whether the nondisclosure was intentional is reviewed for abuse of discretion.” Id. at 56. “If the nondisclosure was intentional, prejudice is presumed; if the nondisclosure was unintentional, the party seeking a new trial must prove prejudice.” Id. We weigh t he evidence in the light most favorable to the trial court’s order. Precision Elec., Inc. , 400 S.W.3d at 808. Here, we find that the voir dire question posed to potential jurors regarding membership in a labor union was sufficiently clear. The question was prefaced with identifying Larsen , the plaintiff, as being in a labor union and then asked, “Is there anyone else out here who is a member of a labor union?” Given its clarity and directness, there exists no reasonable inability to comprehend the info rmation solicited by this question. We find unpersuasive Larsen’s10

argument that Union Pacific somehow changed the nature of the question by asking additional questions after prospective jurors identified themselves as union members. The initial question was clear and, had Juror LS responded, he would have been the first to receive follow

- up questions. Juror LS was located in the second row and the transcript indicates that no raised hands were noted in the front row or the second row ; t he first raised ha nd was noted in the third

row. Beyond this, the colloquy th at ensued with the first called

- upon prospective juror with union affiliation should have highlighted to Juror LS his own connection to the question. When Venireman D was called upon in response to his raised hand he was asked, “Are you a member of a labor union?” He responded, “Yes, the UFCW.” When asked what that stood for he responded, “United Food and Commerce Workers.” This union is the same union that Juror LS
testified at the evidentiary hearing that he was fully aware that he was a member of at the time of trial. While Juror LS testified that he did not specifically recall any voir dire questions that were asked, he does recall answering no questions during voir dire , believing that he w ould be less likely to be selected for service if he answered fewer questions , and testified that it was possible that he intentionally did not answer some questions that pertained to him so he would not be selected for service. In lig ht of this, we find no abuse of discretion in the circuit court’s determination that the nondisclosure of Juror LS’s labor union affiliation was intentional. “Venirepersons have a duty to answer all questions fully, fairly, and truthfully during voir dire

. Failure to respond fully, fairly, and truthfully can deprive the parties of information needed to exercise peremptory challenges or challenges for cause to ensure an impartial jury is empaneled.” State v. Ess , 453 S.W.3d 196, 203 (Mo. banc 2015). “An unequivocal question triggers a venireperson’s duty to disclose information. A venireperson’s silence to an11

unequivocal question establishes juror nondisclosure, if the information is known to the juror.”
Id. at 203

- 204. “[A] claimant seeking to prove i ntentional nondisclosure must establish that the venireperson is consciously aware of an objective fact and then fails to disclose that fact despite an unequivocal request to do so from the court or counsel.” Id. at 210. Here, the record establishes that , at the time of voir dire , Juror LS was consciously aware that he was a member of a labor union, C ounsel made an unequivocal request for disclosure of union membership, and Juror LS failed to disclose that fact. Consequently, we presume that Uni on Pacific was prejudiced by Juror LS’s intentional nondisclosure and find that Larsen has failed to rebut this presumption. Larsen’s arguments against prejudice ignore the credibility determinations made by the
trial court and to which we must defer. “Appellate courts defer on credibility determinations
because the circuit court i s in a better position to weigh the contested a nd conflicting evidence[.] ” Frazier v. City of Kansas , 467 S.W.3d 327, 346 (Mo. App. 2015). “‘ The circuit court is able to jud ge directly not only the demeanor of witnesses, but also their sincerity and character and oth er [ ] intangibles that the record may not completely reveal.” ’ Id. (quoting Ivie v. Smith , 439 S.W.3d 189, 206 (Mo. banc 2014)). The determination of whether nondisclosure was intentional or unintentional is within the sound discretion of the trial court. State v. Fuller , 837 S.W.2d 304, 308 (Mo. App. 1992). Here, t he circuit court found “that Juror LS’s testimony at the hearing of April 1, 2015 lacked credib ility” and “the testimony of Dr. David Giles , Ph.D., to be fully credible i n all respects[.]” Based, in part, on the court’s credibility determinations, t he court concluded that Juror LS intentionally failed to disclose that he was a union member and that the intentional nondisclosure was material and prejudicial to the outcome of the case. These12

findings are supported by the record . T he circuit court did not abuse its discretion in granting Union Pacific’s motion for new trial. Point one is denied. 2
La rsen’s Point II In Larsen’s second point on appeal he contends that the circuit court erred in granting Union Pacific’s motion for new trial because Union Pacific’s claim of juror nondisclosure was untimely in that it was made well after the deadline for r aising a claim of error without demonstrating that Union Pacific was not aware of it earlier, ambushed Larsen and encourages post

- trial witch hunts

. Larsen argues that Union Pacific failed to establish that its failure to raise the issue of jury nondisclosure prior to the deadline for a motion for new trial had elapsed was not due to its own negligence and, therefore, plain error review was unwarranted

. We find no abuse of discretion. Rule 78.08 authorizes the trial court, in its discretion, to consider plain error s affecting substantial rights at a hearing on a motion for new trial, though not raised in the motion or defectively raised, when the trial court finds that manifest injustice or miscarriage of j ustice has resulted therefrom. Here, the circuit court expressly found plain error review under Rule 78.08 “necessary to prevent manifest injustice or a miscarriage of justice.” With regard to the

t imeliness of Union Pacific’s request for plain error review t he court stated: This Court finds [Union Pacific’s] contention that it did not become aware of [Juror LS’s] nondisclosure until after it had filed its original Motion for New Trial, and thus afte r the 30

- day deadline for filing such motions, to be credible, and consistent with the testimony of Dr. Giles, who testified he first spoke with Juror LS and learned of his union affiliation on January 31, 2015. [Union

2 Larsen’ s additional allegation that he was prevented from adducing testimony of Juror LS regarding his understanding of the labor union question is without support and without merit. Larsen asked the court at the evidentiary hearing if the court would “consider it relevant to hear [Juror LS] a nswer questions as to if he were asked those questions today what his understanding would be?” The court noted that it had already sustained an objection to that line of questioning as it called for speculation. Larsen argues on appeal that the court err ed in preventing the questioning but fails to articulate how the court erred or provide support for this allegation.13

Pacific’s] raising this issue at the new trial hearing was entirely appropriate, and is in fact allowed and mandated by Rule 78.08. Larsen does not contest the court’s findings with regard to review being necessary to prevent a miscarriage of justice; Larsen’s contention is solely that Uni on Pacific failed to prove that it could not have made its claim sooner. Yet, Larsen does not articulate how the circuit court abused its discretion in coming to the op pos ite conclusion which was sup ported by hearing testimony indicating that the juror no ndisclosure information was not discovered until after the motion for new trial deadline. Dr. Giles first spoke with Juror LS about his union affiliation on January 31, 2015, and testified that he was not aware at that time of the si gnificance of that dis cussion. Counsel for Union Pacific informed the court at the March 3, 2015, hearing on Union Pacific’s timely motion for new trial that Counsel first learned of Juror LS’s potential nondisclosure during a conversation with Dr. Giles roughly ten days to tw o weeks after Dr. Giles’ January 31, 2015 conversation with Juror LS. Thereafter, counsel for Union Pacific ordered a copy of the voir dire transcript from the court reporter which was received on February 24, 2015. The Rule 78.08 motion for plain error review was filed on February 26, 2015. This was approximately one month after the Rule 78.04 motion for new trial deadline. The circuit court found that Union Pacific did not unreasonably delay in bringing the nondisclosure to the attention of the court and we defer to the credibility determinations the court made in reaching that conclusion. Larsen has failed to prove that the circuit court abused its discretion in granting plain error review of the juror nondisclosure claims . Point two is denied.
Lar sen’s Point III In his third point on appeal Larsen contends that the circuit court erred in granting Union Pacific’s motion for new trial because the te stimony of Dr. Giles is demonstrably not credible in14

that it is internally inconsistent and self

- contr adictory , and the trial court erred in finding it credible. 3 “We give deference to the trial court’s greater opportunity to judge the credibility of witnesses[.] ” Hopkins v. Hopkins , 449 S.W.3d 793, 797 (Mo. App. 2014) (internal citations and quotation marks omitted). The court may choose to believe all, part, or none of the testimony of any witness. Id. We do not reweigh the evidence when a party appeals the motion court’s grant of a motion for new trial; we focus only on whether the court’ s decision constitutes an abuse of discretion. Norfolk Southern Ry. Co. v. Crown Power and Equipment, L.L.C. , 385 S.W.3d 445, 452 (Mo. App. 2012) (o verruled on other grounds by Badahman v. Catering St. Louis , 395 S.W.3d 29 (Mo. banc 2013) )

. We find no abuse of disc retion here. Larsen attacks the court’s finding “that Juror LS’s testimony at the hearing of April 1, 2015 lacked credibility and that the testimony of David A. Giles, Ph.D. was credible in all respects” by focusing on pieces of Dr. Giles’ testimony that
Larsen b elieves is inconsistent with Larsen’s cross - examination of Dr. Giles at the evidentiary hearing. These arguments as to Dr. Giles’ alleged inconsistencies and lack of credibility involve matters all within the purview of the motion court and determ inations that we will not second
guess. Upon r eview of the record, we find no internal inconsistencies in Dr. Giles’ testimony such as would suggest that the court abused its discretion in crediting his testimony , particularly with regard to the material issue of whether or not Juror LS was a union member. Beyond that, it was ultimately Juror LS’s own testimony regarding his union membership and his conscious

3 We note that Larsen makes several assertions in the argument portion of this point , including that Union Pacific improperly presented Dr . Giles’ affidavit to impeach the jury’s verdict, improperly introduced other evidence at the hearing, that Dr. Giles’ testimony at the hearing was improper, and that Union Pacific turned the issue “into a kind of beauty contest between Mr. Giles and [Juro r LS].” We address only the issue set forth in the point relied on. Cordes v. Williams , 201 S.W.3d 122, 131 (Mo. App. 2006).15

decision to avoid answering voir dire questions in hopes of not being selected for the jury that led to the court’s determination that purposeful nondisclosure had occurred. Point three is
denied. Larsen’s Point IV In his fourth and final point on appeal, Larsen contends that the circuit court erred in granting Union Pacific’s motion for new trial b ecause the alleged nondisclosure by Juror LS was not prejudicial in that his union membership had little connection to the case and no bearing on his qualifications to act as a juror . We disagree. As discussed above in our analysis of Larsen’s
first point on appeal, Juror LS’s nondisclosure was deemed intentional, and therefore prejudicial, and Larsen has not rebutted that presumption nor could he on the facts of this case . Dr. Giles’ testimony and affidavit indicated that, in response to Dr. Giles a sking Juror LS what significant factors affected his decision, Juror LS volunteered that he was “a union guy” at his place of employment and that Larsen “had my vote right off.” Although Juror LS minimized his union membership at the evidentiary hearing, the court found Dr. Giles’ testimony credible and Juror LS’s testimony to lack credibility. Statements of jurors minimi zing the effect of misconduct are entitled to very little weight. Travis v. Stone , 66 S.W.3d 1, 6 (Mo. banc 2002). Hence, not only is there a presumpt ion of prejudice in this case based on Juror LS’s intentional nondisclosure, but
the record , viewed in the light most favorable to the court’s order with accompanying credibility determinations, reflects that Juror LS’s union membership did , in fact, influence his decision

making as a juror. Point four is denied. We conclude, therefore, that the circuit court did not abuse its discretion in granting Union Pacific’s motion for new trial in that the record supports (1) the court’s conclusion that Juror LS intentionally failed to disclose his union membership , (2) the court’s determination that16

plain error review was appropriate under R ule 78.0 8 , (3) the court’s credibility determinations, and (4) the court’s finding that prejudice resulted fr om Juror LS’s intentional nondisclosure. Union Pacific’s Cross
- Appeal Union Pacific cross

- appeals. I n its sole point on appeal , Union Pacific contends that the ci rcuit court erred in denying Union Pacific’s motions for directed verdict and judgment notwithstanding the verdict because Larsen failed to make a submissibl e case for negligence under FELA . Union Pacific argues that Larsen failed to present substantial evidence that Union Pacific had actual or con structive notice of any supposed dangerous characteristics of the crane that Larsen claims caused his injury, and that evidence was a critical element of a claim under the
FELA. We find no error. “The standard of review for the denial of a judgment notwi thstanding the verdict (JNOV) is essentially the same as review of the denial of a motion for directed verdict.” Spalding v. Steward Title Guaranty Company , 463 S.W.3d 770, 778 (Mo. banc 2015) (internal citation and quotation marks omitted)

. When reviewi ng a circuit court’s denial of a judgment notwithstanding the verdict, this Court must determine whether the plaintiff presented a submissible case by offering evidence to support every element necessary for liability. Evidence is viewed in the light mos t favorable to the jury’s verdict, giving the plaintiff all reasonable inferences and disregarding all conflic ting evidence and inferences. T his Court will reverse the jury’ s verdict for insufficient evidence only where there is a complete absence of prob ative fact to support the jury’s conclusion. Id. (internal citations and quotation marks omitted). We review this issue de novo

. Advantage Bldgs. & Exteriors, Inc. v. Mid

- Continent Cas. Co. , 449 S.W.3d 16, 22 (Mo. App. 2014). Larsen’s action was filed and submitted to the jury under the FELA. The Act provides in pertinent part that:17

Every ... railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence , in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or o ther equipment. 45 U.S.C. § 51

. “In passing on the submissibility of plaintiff’s case, it must be remembered that, to the maximum extent proper, ques tions arising under the FELA shall be left to the jury. Further, little evidence is necessary to create a jury question on the issue of negligence. ” Hertzler v. Burlington Northern R. Co. , 720 S.W.2d 762, 766 (Mo. App. 1986). While FELA negligence exists if the employer knew or should have known that its standard of conduct was inadequate to protect it s em ployee from injury, whether or not an employer should ordinarily anticipate or foresee danger in a given circumstance is for the jury to decide

. Id. Larsen alleged in his petition that, on December 15, 2010, and for many years prior thereto, he was emplo yed by Union Pacific as a Machine Operator and Track Laborer. He further alleged th at, on December 15, 2010, he was performing his required duties of installing Union Pacific’s Safety Vision recording system on a track crane. While performing the
install ation and climbing down an attached ladder on the back of the track crane, Larsen lost his footing reaching for the lower rung and fell twelve feet to the ground, severely injuring his neck, back and internal organs. Larsen alleged that his injuries were directly caused by Union Pacific’s negligence because Union Pacific failed to furnish and provide Larsen with a reasonably safe place to work, reasonably safe conditions for work, reasonably safe methods of work, and reasonably safe appliances for work. L arsen asked the jury to find that Union Pacific failed to provide reasonably consistent spacing between the steps on the back of the track crane, and that Union Pacific knew , or by using ordinary care could have known , of such condition and that it

was not reasonably safe.18

At trial, Larsen presented the testimony of Keith Vidal , a consulting safety engineer. He testified that he represented the American Society of Safety Engineers in the American Ladder Institute that developed standards on ladders. He testified that “standards essentially set the rules that set a minimum guideline of sometimes safety and sometimes construction.” He testified that the American Society of S afety Engineers develop standards for the American National Standards Institute w hich promulgates safety requirements for workplace floor and wall openings, stairs and railing systems. He testified that when the American National Standards Institute approves standards, they then become known as an American National Standard and are

us ed throughout the United States and the world. He testified that, with regard to ladder safety , particular standards of importance include the width of the ladder, something on the l adder that a person can hold on to, evenly spaced rungs, and securely aff ixed rungs. Vidal testified that he was asked to assess the safety of the ladder system in this case. He reviewed pictures of the alleged faulty ladder during his testimony and pointed out inconsistent distances between steps in the ladder that ranged from thirteen inches apart to approximately twenty

- one inches apart. He testified that ladders are gene rally required to have equal distance between successive rungs , and the inconsistent distances made the ladder in this case very dangerous

. He testified that the ladder was approximately forty years old. Pictures of the ladde r

were entered into evidence. We find, b ased on this evidence , tha t a reasonable juror could draw a reasonabl e inference that Union Pacific failed to provide reasonably consistent spacing between the steps o n the back of the track crane that had been in Union Pacific ’s possession fo r forty years , and that Union Pacific knew , or by using ordinary care could have known , of such condition and that it was not reasonably safe. Union Pacific’s point on its cross

- appeal is denied.19 Conclusion We conclude that the circuit court did not abuse its discretion in granting Union Pacific’s motion for new trial in that the record supports (1) the court’s conclusion that Juror LS intentionally failed to disclose his union membership, (2) the court’s determination that plain error review was appropria te under Rule 78.08, (3) the court’s credibility determinations, and (4) the court’s finding that prejudice resulted from Juror LS’s intentional nondisclosure. Further, the circuit court did not err in denying Union Pacific’s motions for directed verdict and judgment notwithstanding the verdict as Larsen made a submissible case for negligence under FELA

. We aff irm the circuit court’s ruling grant ing Union Pacific’s motion for new trial

.

Anthony Rex Gabbert, Judge

All concur.