| Harley O. Staggers, Esq.
Staggers & Staggers
Keyser, West Virginia
Attorneys for Appellant
| Michele L. Dearing, Esq.
E. Kay Fuller, Esq.
Kenneth J. Ford, Esq.
Martin & Seibert, L.C.
Martinsburg, West Virginia
Attorneys for Appellees
an allegation before a trial court that a juror falsely answered a material
question on voir dire, and where a request is made for a hearing to
determine the truth or falsity of such allegation it is reversible error for
the trial court to refuse such hearing. Syllabus Point 2, West Virginia
Human Rights Commission v. Tenpin Lounge, Inc., 158 W. Va. 349, 211
S.E.2d 349 (1975).
In this personal injury
action, the appellant, Christine B. Phares, claims, among other things, that
a member of the jury panel failed to respond properly to a voir dire
question and that, as a consequence, the verdict which the jury ultimately
rendered was tainted. After reviewing the facts of this case, this Court believes
that the trial court should have conducted a hearing on the appellant's claim,
and because no such hearing was conducted, the Court believes the case should
be remanded for an appropriate inquiry into what occurred.
Following the accident,
the appellant sued Mr. Brooks and his father for damages for the personal
injuries which she sustained in the accident.
During the development of the
case, depositions were taken and various motions were made, including a motion
by the appellant for summary judgment. The court, however, denied that motion
and set the case down for a jury trial.
Prior to the commencement
of the actual trial of the case, voir dire was conducted. During voir
dire, the appellant was allowed to ask if any potential juror was familiar
with the scene of the collision. Specifically, appellant's voir dire
question six was: Is there anyone familiar with Painter Hollow Road?
One member of the panel, Ms. Judith Dolechek, did not answer in the affirmative.
During the further questioning of the panel, Ms. Dolechek indicated that she
worked for an insurance company. She, however, also indicated that her job
would, in no way, influence her verdict.
In the course of the actual
trial of the case, the court made various evidentiary rulings which the appellant
claims were erroneous, and ultimately the case was submitted to the jury.
The jury, during its deliberations,
asked the trial court four questions involving whether an insurance company
had paid the appellant's bills, whether there were any unpaid bills, whether
a traffic citation had been issued, and whether the parties had been wearing
seat belts at the time of the accident. The court informed the jury that the
questions could not be answered, and, subsequently, the jury returned a verdict which found
both parties 50 percent negligent. As a consequence, the appellant received
no actual damage award as a result of the trial.
The appellant later moved
to set aside the jury's verdict. The trial court, however, overruled the motion
and entered judgment upon the verdict.
The appellant's attorney,
as allowed by Rule 4.09 of the West Virginia Trial Court Rules, contacted
three jury persons involved in the case, including Ms. Judith Dolechek.
(See footnote 1)
Ms. Dolechek informed the appellant's attorney that she had friends who
lived near the scene of the accident, and that she believed that the curve
where the accident occurred was so dangerous that no one could be at fault
for any accident which occurred there. Ms. Dolechek also expressed the opinion
that everyone sued and that lawsuits caused insurance rates to rise.
After learning that Ms. Dolechek
was, and apparently had been prior to trial, familiar with the scene of the
accident and might have had an opinion as to who could be at fault for an accident
which had occurred there, the appellant requested that the trial court conduct
a hearing on the failure of Ms. Dolechek to respond to the voir dire
question designed to determine if any member of the jury panel was familiar
with the scene of the accident. Further, the appellant asked the court to determine
if Ms. Dolechek had responded falsely when she stated on voir dire that
the fact that she worked for an insurance company would not influence her verdict
in light of the fact that she later stated that everyone sued and that lawsuits
drove up insurance rates.
The trial court denied the
appellant's motion for an inquiry into Ms. Dolechek's conduct, and it is from
the denial of that motion, as well as the denial of the appellant's motion
for a new trial, that the appellant now appeals.
In Syllabus Point 2 of West
Virginia Human Rights Commission v. Tenpin Lounge, Inc., 158 W. Va.
349, 211 S.E.2d 349 (1975), this Court stated: Upon an allegation before
a trial court that a juror falsely answered a material question on
voir dire, and where a request is made for a hearing to determine the
truth or falsity of such allegation it is reversible error for the trial court
to refuse such hearing. See also, Pleasants v. Alliance Corporation,
209 W. Va. 39, 543 S.E.2d 320 (2000).
The appellant in the present
case claims that potential juror Dolechek, in effect, falsely answered questions
on voir dire. Specifically, appellant claims that appellant's voir
dire question number six was: Is there anyone familiar with Painter
Hollow Road? It does not appear that Ms. Dolechek, a member of the jury
panel, positively responded to this question. According to the appellant,
Ms. Dolechek after trial asserted that she was familiar with Painter Hollow
Road and believed the turn where the collision occurred was so dangerous that
neither party could have been at fault.
It also appears that during
voir dire, information surfaced that Ms. Dolechek worked at an insurance
company. The court specifically asked whether her work with an insurance company
would influence her in any way. Ms. Dolechek's response was: No because
I just do claims. I type them in, that's it. In the subsequent interview
with the appellant's attorney, according to the appellant, Ms. Dolechek, expressed
the view that everyone sues and that is why insurance rates are high. Apparently,
she also advised the appellant's attorney that she was aware that insurance
had paid the appellant's medical bills because she could read through the
In this Court's view, the
question posed by the appellant's attorney to the jury panel as to their knowledge
of the scene of the accident was material in that it went to the question
of whether the jurors could rule in the case solely on the evidence presented,
rather than on personal knowledge. Additionally, the fact that Ms. Dolechek
worked for an insurance company was material in that it raised the possibility
of bias resulting from employment.
After a review of the facts
of the case, this Court believes that the appellant plausibly showed that
juror Dolechek failed to respond, or falsely responded to material voir
dire questions, and that under the rule set forth in Syllabus Point 2
of West Virginia Human Rights Commission v. Tenpin Lounge, Inc., supra,
the appellant is entitled to the hearing which was requested. Further, this
Court believes that because of the failure of the circuit court to provide
such a hearing, the judgment in this case should be reversed and this case
should be remanded for a hearing to determine whether, in fact, Ms. Dolechek
falsely answered the questions posed to her on voir dire. If, in fact,
the questions were falsely answered, this Court believes that the appellant should receive a new trial.
If, on the other hand, the court determines that Ms. Dolechek did not, in
fact, falsely answer the questions posed on voir dire, the Court believes
that the original judgment should be reinstated.
(See footnote 2)
For the reasons set forth
herein, the judgment of the Circuit Court of Mineral County is reversed, and
this case is remanded for proceedings consistent with what has been set forth