February 19, 2002
Filed: May 23, 2002
Richard A. Monahan, Esq.
D. Hoffman, Esq.
Masters & Taylor, L. C. Mark A. Robinson, Esq.
Charleston, West Virginia Flaherty, Sensabaugh & Bonasso
Attorney for Appellants Charleston, West Virginia
Attorneys for Appellees
JUSTICE STARCHER delivered the Opinion of the Court.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
2. Jurors who on voir dire of the panel indicate possible prejudice should be excused, or should be questioned individually either by the court or by counsel to precisely determine whether they entertain bias or prejudice for or against either party, requiring their excuse. Syllabus Point 3, State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978).
3. When considering whether to excuse a prospective juror for cause, a trial court is required to consider the totality of the circumstances and grounds relating to a potential request to excuse a prospective juror, to make a full inquiry to examine those circumstances and to resolve any doubts in favor of excusing the juror.
4. If a prospective juror makes an inconclusive or vague statement during voir dire reflecting or indicating the possibility of a disqualifying bias or prejudice, further probing into the facts and background related to such bias or prejudice is required.
5. Once a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair.
The appellants, Samuel
O'Dell and Eva O'Dell, have appealed a verdict rendered by a Wood County jury
on August 25, 2000, in a medical malpractice case. The appellants argue that
they were denied their right to empanel a fair and unbiased jury. We agree
and reverse the trial court's ruling.
Unsatisfied with Dr. Miller's recommendations, on April 7, 1997, Mr. O'Dell sought additional opinions and was diagnosed as having completely torn some of his knee ligaments, as opposed to merely straining his knee ligaments. The physicians who provided Mr. O'Dell with a second opinion testified that if they had seen Mr. O'Dell within the two weeks immediately following his accident, they would have most likely recommended the option of early operative repair, and that early operative repair would have given Mr. O'Dell the best opportunity to regain full function of his knee. These physicians also testified that because of the lapse of time, an early operative repair option was no longer available.
During voir dire, a
prospective juror revealed that he: (1) was currently and
had for several years been represented by the law firm representing the appellee
Dr. Miller; (2) had been a patient of Dr. Miller concerning a knee problem;
and (3) understood that the results of this malpractice action could affect
Dr. Miller's ability to continue to practice medicine. Nevertheless, the trial
court refused to strike the prospective juror for cause and Mr. O'Dell was
forced to use a preemptory strike to remove the challenged juror.
At trial, the jury found
in favor of Dr. Miller and First Settlement Orthopaedics, Inc., finding that
while Dr. Miller breached the standard of care, his breach was not the proximate
cause of Mr. O'Dell's injuries.
Mr. O'Dell raises three
assignments of error. But, because we are reversing the verdict on the issue
of jury selection, we will not address the remaining two issues.
determination of whether a prospective juror should be excused to avoid bias
or prejudice in the jury panel is a matter within the sound discretion of
the trial judge. See West Virginia Department of Highways v. Fisher,
170 W.Va. 7, 289 S.E.2d 213 (1982) certiorari
denied, Fisher v. West Virginia Department of Highways, 459 U.S. 944,
103 S.Ct. 257, 74 L.Ed.2d 201 (1982).
Either party in any action or
suit may, and the court shall on motion of such party, examine on oath any person
who is called as a juror therein, to know whether he is a qualified juror, or
is related to either party, or has any interest in the cause, or is sensible
of any bias or prejudice therein; and the party objecting to the juror may introduce
any other competent evidence in support of the objection; and if it shall appear
to the court that such person is not a qualified juror or does not stand indifferent
in the cause, another shall be called and placed in his stead for the trial
of that cause.
W.Va. Code, 56-6-12 .
The object of jury selection
is to secure jurors who are not only free from improper prejudice and bias,
but who are also free from the suspicion of improper prejudice or bias. Voir
dire ferrets out biases and prejudices to create a jury panel, before the
exercise of preemptory strikes, free of the taint of reasonably suspected prejudice
or bias. Trial courts have
an obligation to strike biased or prejudiced jurors for cause.
West Virginia case law has long held that trial courts must resolve any doubt of possible bias or prejudice in favor of the party seeking to strike for cause. Any doubt the court might have regarding the impartiality of a juror must be resolved in favor of the party seeking to strike the potential juror. State v. West, 157 W.Va. 209, 200 S.E.2d 859, 866 (1973). Davis v. Wang, 184 W.Va. 222, 226, 400 S.E.2d 230, 234 (1990) overruled on other grounds by Pleasants v. Alliance Corp., 209 W.Va. 39, 543 S.E.2d 320 (2000). In
State v. Nett, 207 W.Va. 410,
533 S.E.2d 43 (2000) (per curiam), a prospective juror was unable to
say whether he could separate himself on the issue of whether
Nett's prior convictions for DUI would influence his decision on the current
charge of DUI. In Nett, this Court stated that where there is any doubt
about a juror's ability to be fair and impartial, the trial court must resolve
the doubt in favor of the moving party and strike the challenged juror for
cause. 207 W.Va. at 414, 533 S.E.2d at 47.
State's practice of resolving any doubt about a prospective juror in favor
of the party moving to strike the prospective juror is supported by sound
reasoning. A fair and impartial trial by jury can only be ensured by
removing, for cause, prospective jurors who have experiences or attitudes
that indicate a significant potential for prejudice in the matter at trial.
Accepting such jurors' statements, that they can set aside their biases and
be fair, creates the great risk of seating biased jurors, and a clear appearance
of prejudice to a party. Patterson, Arthur H. and Nancy L. Neufer, Removing
Juror Bias By Applying Psychology To Challenges For Cause, 7 Cornell J.L.
& Pub. Pol'y 97, 106 (1997); See also,Daniel
J. Sheehan, Jr. and Jill C. Adler,
Voir Dire: Knowledge Is Power,
61 Tex. B.J. 630 (1998).
It is not for the juror to decide
whether he can render a verdict solely on the evidence. The discretion to decide
whether a prospective juror can render a verdict solely on the evidence is an
issue for the trial judge to resolve. It is not enough if a juror believes
that he can be impartial and fair. The court in exercising [its] discretion
must find from all of the facts that the juror will be impartial and fair and
not be biased consciously orsubconsciously. A mere statement by the juror that he will be fair and afford
the parties a fair trial becomes less meaningful in light of other testimony
and facts which at least suggest the probability of bias. The court in exercising
discretion must be convinced that a probability of bias of the juror does
not exist. The test of a juror's disqualification is the probability of bias
or prejudice as determined by the court. West Virginia Department
of Highways v. Fisher, 170 W.Va. 7, 12-13, 289 S.E.2d 213, 219 (1982)
(quoting Lambert v. Sisters of St. Joseph of Peace, 277 Or.
223, 560 P.2d 262 (1977)). In W.Va. Dept. of Highways v. Fisher, this
Court, quoting State v. Pendry, 159 W.Va. 738, 227 S.E.2d 210, 217
(1976), overruled in part on other grounds, Jones v. Warden,
161 W.Va. 168, 241 S.E.2d 914 (1978), said:
It may not always be sufficient
merely to ask a juror whether he is sensible of any bias or prejudice and
to accept either his denial or claim of bias or prejudice merely because he
says it. The existence of bias or prejudice or other lack of qualification
is addressed in the first instance to the trial court. Although the juror's
opinion is entitled to consideration, it need not always be taken to be conclusive.
It may frequently become necessary for the trial court or counsel to go into
particular matters which may be the subject of biased or prejudiced views
in order to determine whether the juror in fact, even without his own knowledge,
may have a demonstrable bias or prejudice which would operate to the disadvantage
of one of the litigating parties.
Id., 170 W.Va. at 11, 289 S.E.2d at 218.
trial judges are faced with the task of deciding whether to keep a juror who
may have biases or prejudices. [T]he
process of identifying bias or prejudice, except in clear cases, can be a
delicate one where the conclusion is finally drawn from the totality of the responses. See
J. Sheehan, Jr. and Jill C. Adler, supra,
at 634. Therefore,
when considering whether to excuse a prospective juror for cause, a trial
court is required to consider the totality of the circumstances and grounds
relating to a potential request to excuse a prospective juror, to make a full
inquiry to examine those circumstances and to resolve any doubts in favor
of excusing the juror. When considering whether a prospective juror is prejudiced
or biased, the trial court must consider all the circumstances surrounding
the juror. The trial court must not only consider the prospective juror's
promise to be fair but all of the circumstances at issue.
However, as far as is practicable
in the selection of jurors, trial courts should endeavor to secure those jurors
who are not only free from but who are not even subject to any well-grounded
suspicion of any bias or prejudice. State v. Dephenbaugh, 106 W.Va.
289, 145 S.E. 634 (1928); State v. Siers, 103 W.Va. 30, 136 S.E. 503
(1927). When in doubt, a trial
court should exclude a prospective juror.
Trial courts are often tempted
to seek to rehabilitate a juror who has given a potentially damaging
answer reflecting a disqualifying bias or prejudice.
Rehabilitation is [the] commonly
accepted terminology to describe the questioning of a juror who has made a
statement indicating bias or prejudice. It is an inaccurate term, suggesting
a goal of getting a juror to change the biased attitude. The questioning should
actually be for the purpose of clarification or elaboration. Daniel
J. Sheehan, Jr. and Jill C. Adler, supra,
at 633, fn. 11. The better view,
therefore, is that if a prospective
juror makes an inconclusive or vague statement
voir dire reflecting or
indicating the possibility of a disqualifying bias or prejudice, further probing
into the facts and background related to such bias or prejudice is required.
Jurors who on voir
dire of the panel indicate possible prejudice should be excused, or should
be questioned individually either by the court or by counsel to precisely
determine whether they entertain bias or prejudice for or against either party,
requiring their excuse. Syllabus Point 3, State v. Pratt, 161
W.Va. 530, 244 S.E.2d 227
State v. Simmons, 171 W.Va. 722, 301 S.E.2d 812 (1983); State v.
Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981); State v. Peacher, 167
W.Va. 540, 280 S.E.2d 559 (1981).
Trial judges must resist the
temptation to rehabilitate prospective jurors simply by asking
the magic question
(See footnote 1) to which jurors respond by
promising to be fair when all the facts and circumstances show that the fairness
of that juror could be reasonably questioned. A trial judge should err
on the side of caution by dismissing, rather than trying to rehabilitate,
biased jurors because, in reality, the judge is the only person in the courtroom
whose primary concern, indeed primary duty, is to ensure the selection of
a fair and impartial jury. Walls v. Kim, 250 Ga.App. 259,
260, 549 S.E.2d 797, 799 (2001).
a prospective juror has made a clear statement during voir dire reflecting
or indicating the presence of a disqualifying prejudice or bias, the prospective
juror is disqualified as a matter of law and
cannot be rehabilitated by subsequent questioning, later retractions, or promises
to be fair.
In the instant case, one source
of prejudice or bias is the fact that the challenged juror was a former
patient of Dr. Miller's. Another source of prejudice or bias is the fact
that the challenged juror was a current client of the appellees' law
appellees in the instant case argue that the fact that there was a physician-patient
relationship between a party to the litigation and the challenged juror did
not disqualify a challenged juror per se, citing West Virginia Department
of Highways v. Fisher, 170 W.Va. 7, 289 S.E.2d 213 (1982). In
Fisher, this Court awarded
the West Virginia Department of Highways a new trial in an eminent domain
action because several prospective jurors had been, or were at the time of
trial, patients of the landowner physician. Reasoning that the physician-patient
relationship is a special relationship in which there is a respect for the
reliability of statements communicated by the physician to the patient, this
Court said special care should be taken by the trial judge to ascertain,
pursuant to W.Va. Code, 56-6-12 ,
that such [a] prospective juror is free from bias or prejudice. Syllabus
Point 2, West Virginia Department of Highways v. Fisher,
170 W.Va. 7, 289 S.E.2d
While no per se rule
bars the sitting of prospective jurors who are patients of a doctor who is
a party to the litigation, strong reasons exist for disfavoring the practice
of trial courts allowing jurors to remain when the physician-patient relationship
exists between a party of the litigation and a prospective juror. While no
West Virginia case squarely
addresses the issue of attorney-client
relationships between attorneys and prospective jurors, the Supreme Court
of Virginia has reversed and remanded a personal injury lawsuit for a new
trial on the ground that the trial court should have removed a prospective
juror for cause who was at the time of trial a client of the law firm representing
the plaintiff. Cantrell v. Crews, 259 Va. 47,
523 S.E.2d 502 (Va. 2000). In Cantrell
v. Crews, the Virginia Supreme Court commented that [p]ublic confidence
in the integrity of the process is at stake.
It cannot be promoted when a sitting
juror is, at the time of trial, a client of the law firm representing one
of the parties[.] Id., 259 Va. at
51, 523 S.E.2d at
A similar situation exists
in this case. The challenged juror was not only a former client of Dr. Miller's,
but was also a current client of the law firm representing the appellees.
In many West Virginia communities,
prospective jurors will often know the parties and their attorneys. Nevertheless,
this familiarity does not remove the trial court's obligation to empanel a
fair and impartial jury as required by West Virginia's Constitution,
Article 3, § 10. This obligation includes striking prospective jurors
who have a significant past or current relationship with a party or a law
this Court reminds trial courts that it cannot be overemphasized that
no error is committed even when a qualified juror is struck as long as the
remaining panel members are qualified. Rather, our cases
demonstrate that a trial court risks error only when it refuses to strike
jurors whose impartiality is questionable. State v. Phillips, 194 W.Va. 569,
589, 461 S.E.2d 75, 95 (1995).
In the instant case, the trial
court abused its discretion by not striking the challenged juror for cause;
therefore, Mr. O'Dell was denied his constitutional right not only to a fair
and unbiased jury, but to a jury free from the suspicion of prejudice. This
Court reverses the jury's verdict and remands this case for a new trial.
Reversed and Remanded.