648 S.E.2d 610
4. 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. Syllabus point 3, O'Dell v. Miller, 211 W. Va. 285, 565 S.E.2d 407 (2002).
The appellant herein and plaintiff below, Sally Black, as Executrix of the Estate of Charles A. Black [hereinafter Mrs. Black], appeals from an order entered April 7, 2006, by the Circuit Court of Kanawha County. (See footnote 1) In that order, the circuit court denied Mrs. Black's motion for a new trial and entered judgment for the appellee herein and defendant below, CSX Transportation, Inc. [hereinafter CSX], following the return of a jury verdict in favor of CSX. On appeal to this Court, Mrs. Black argues that the circuit court erred by refusing to excuse a potential juror for cause. Upon a review of the parties' arguments, the record designated for consideration on appeal, and the pertinent authorities, we reverse the circuit court's ruling and remand this case for a new trial.
Mr. Daley: What do you mean by personal bias against personal injury lawyers?
Dr. Polack: Physicians tend not to like trial lawyers.
Mr. Daley: I understand that, but is there anything aside from the general physicians tend not to like plaintiffs' trial lawyers that underlies your personal bias?
Dr. Polack: My personal bias is about asbestos, because a lot of the issues about asbestos are not science, and I'm perfectly willing to listen to the data, but I will have to be convinced predicated on scientific information, not emotional information.
Mr. Daley: Okay. You think a lot of information on asbestos is not based on pure, objective science?
Dr. Polack: Partially.
Mr. Daley: You couldn't award damages on anything other than pure, objective science based on your answer to number 46 [in the questionnaire]?
Dr. Polack: That's correct.
Thereafter, the trial court asked Dr. Polack,
The Court: The ultimate question, of course, Doctor, is simply this_you know as much about the case right now as I know. Based upon what I told you, do you believe that you'll be able to sit as a juror in this case, listen to the evidence from the witness stand, the law that will be given to you at the close of the case, and you're going to be asked to marry the facts as you determine them to the law as I give them.
Dr. Polack: Yes.
Following this line of questioning by counsel and the trial court, counsel for Mrs. Black
moved to strike prospective juror Dr. Polack for cause. (See footnote 2) While the trial court acknowledged
that Dr. Polack's answers in his juror questionnaire came perilously close to disqualifying
him, the court ultimately denied Mrs. Black's motion to strike.
Later in the voir dire process, Mrs. Black renewed her motion to strike Dr. Polack for cause. The trial court again acknowledged that Dr. Polack's expressed bias against personal injury lawyers was a strong statement, extremely strong statement, and re-called Dr. Polack for further questioning:
The Court: Doctor, we asked most of the questions. I just
have one question. And that is the response that
you gave, and we appreciate your candor, is that
you do have a bias against personal injury
Dr. Polack: That's correct.
The Court: Question I have, What would it take to overcome that bias, if at all?
Dr. Polack: Credibility_
The Court: Is it possible to do that, No. 1; if so, what would be [sic] take?
Dr. Polack: Credibility on the part of the source, in other words, the trial lawyer.
The Court: And the evidence?
Dr. Polack: That's correct.
The Court: So we get back really to, any verdict that you would reach would be based upon the evidence from the witness stand and the law given you by the Court?
Dr. Polack: That's correct.
After this exchange, the trial court determined that potential juror Dr. Polack should not be excused for cause. Accordingly, Mrs. Black removed Dr. Polack from the jury panel by using one of her peremptory challenges.
Upon the conclusion of the trial in this case, the jury determined that while CSX had been negligent, its actions had not caused or contributed to Mr. Black's colon cancer or his death therefrom, thus returning a verdict for CSX. Mrs. Black then filed a post-trial motion for a new trial, which motion was denied by the trial court's order of April 7, 2006. From this adverse ruling, Mrs. Black now appeals to this Court.
[w]here the questions propounded by the trial court are sufficient to test a juror's ability to completely disregard anything he may have heard and read about the case, and to give the defendant a fair and impartial trial, and his answers are so unequivocal and satisfactory as to convince the trial judge of the juror's fairness and impartiality, it is the settled practice not to interfere with the court's finding, unless clearly against the evidence.
Syl. pt. 1, State v. Toney, 98 W. Va. 236, 127 S.E. 35 (1925). In other words, [a] trial
judge is entitled to rely upon his/her self-evaluation of allegedly biased jurors when
determining actual juror bias. The trial judge is in the best position to determine the
sincerity of a juror's pledge to abide by the court's instructions. Therefore, his/her
assessment is entitled to great deference. Syl. pt. 12, State v. Salmons, 203 W. Va. 561,
509 S.E.2d 842 (1998). Accord Syl. pt. 6, in part, State v. Miller, 197 W. Va. 588, 476
S.E.2d 535 (1996) (An appellate court should interfere with a trial court's discretionary
ruling on a juror's qualification to serve because of bias only when it is left with a clear and
definite impression that a prospective juror would be unable faithfully and impartially to
apply the law.). Mindful of this standard, we proceed to consider the parties' arguments.
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. And in every case, unless it be otherwise specially provided by law, the plaintiff and defendant may each challenge four jurors peremptorily.
W. Va. Code § 56-6-12 (1923) (Repl. Vol. 2005).
When assessing whether a prospective juror is impartial, [t]he true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence under the instructions of the court. Syl. pt. 1, State v. Wilson, 157 W. Va. 1036, 207 S.E.2d 174 (1974). Accord Syl. pt. 1, Wheeler v. Murphy, 192 W. Va. 325, 452 S.E.2d 416 (1994) ('The true test to be applied with regard to qualifications of a juror is whether a juror can, without bias or prejudice, return a verdict based on the evidence and the court's instructions and disregard any prior opinions he may have had. State v. Charlot, 157 W. Va. 994, 1000, 206 S.E.2d 908, 912 (1974).' Syl. pt. 1, State v. Harshbarger, 170 W. Va. 401, 294 S.E.2d 254 (1982).). Even if a juror professes to be impartial, however, a trial court must still tread cautiously and ascertain whether, in fact, it believes the juror is capable of fairly rendering a verdict based upon the evidence presented at trial.
The relevant test for determining whether a juror is biased is whether the juror had such a fixed opinion that he or she could not judge impartially the guilt of the defendant. Even though a juror swears that he or she could set aside any opinion he or she might hold and decide the case on the evidence, a juror's protestation of impartiality should not be credited if the other facts in the record indicate to the contrary.
Syl. pt. 4, State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996). Therefore, [i]f 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. Syl pt. 4, O'Dell v. Miller, 211 W. Va. 285, 565 S.E.2d 407 (2002). See also Syl. pt. 3, State v. Pratt, 161 W. Va. 530, 244 S.E.2d 227 (1978) (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.).
Where a juror's bias is evident, he/she should be excused for cause. 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. Syl. pt. 5, O'Dell v. Miller, 211 W. Va. 285, 565 S.E.2d 407. Accord Syl. pt. 1, in part, State v. Bennett, 181 W. Va. 269, 382 S.E.2d 322 (1989) (When individual voir dire reveals that a prospective juror feels prejudice against [a party] which the juror admits would make it difficult for him to be fair, . . . the [party's] motion to strike the juror from the panel for cause should ordinarily be granted.). Furthermore, if any doubts remain as to the juror's neutrality, the trial court should err on the side of caution and excuse the prospective juror for cause.
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.
Syl. pt. 3, O'Dell v. Miller, 211 W. Va. 285, 565 S.E.2d 407 (emphasis added).
In the case sub judice, Dr. Polack clearly expressed a bias against Mrs. Black. Despite his statements that he would render a decision based upon the scientific evidence presented and the trial court's instructions of law, Dr. Polack continued to convey a bias against parties claiming to have been injured by exposure to asbestos and against personal injury attorneys. For example, Dr. Polack stated in his written questionnaire that he would find it difficult to be a juror and to award money damages because he has [a] personal bias against personal injury lawyers and awarding of damages predicated on anything other than pure objective science_I would be willing to listen to the data presented but any decision on my part would be based on medical fact not emotion. (Emphasis added).
He further responded to counsel's questions by saying that his personal bias
is about asbestos, because a lot of the issues about asbestos are not science, and I'm
perfectly willing to listen to the data, but I will have to be convinced predicated on scientific
information, not emotional information. In response to these comments, Mrs. Black timely
and repeatedly moved to strike juror Polack for cause. See Syl. pt. 5, McGlone v. Superior
Trucking, Inc., 178 W. Va. 659, 363 S.E.2d 736 (1987) (Where a new trial is requested on
account of alleged disqualification or misconduct of a juror, it must appear that the party
requesting the new trial called the attention of the court to the disqualification or
misconduct as soon as it was first discovered or as soon thereafter as the course of the
proceedings would permit; and if the party fails to do so, he or she will be held to have
waived all objections to such juror disqualification or misconduct, unless it is a matter
which could not have been remedied by calling attention to it at the time it was first
discovered. Flesher v. Hale, 22 W. Va. 44 (1883)[, overruled on other grounds by Proudfoot v. Dan's Marine Service, Inc., 210 W. Va. 498, 558 S.E.2d 298 (2001)].).
Although the trial court also expressed its doubts as to Dr. Polack's impartiality, it nevertheless attempted to rehabilitate Dr. Polack by questioning him further:
The Court: The ultimate question, of course, Doctor, is
simply this_you know as much about the case
right now as I know. Based upon what I told
you, do you believe that you'll be able to sit as a
juror in this case, listen to the evidence from the
witness stand, the law that will be given to you at
the close of the case, and you're going to be
asked to marry the facts as you determine them
to the law as I give them.
Dr. Polack: Yes.
After Mrs. Black renewed her motion to strike Dr. Polack for cause, the trial court again inquired of him, as follows:
The Court: So we get back really to, any verdict that you
would reach would be based upon the evidence
from the witness stand and the law given you by
Dr. Polack: That's correct.
We previously have cautioned against the use of such magic questions, though, when it is clear that a potential juror is partial.
Trial judges must resist the temptation to rehabilitate
prospective jurors simply by asking the magic question (See footnote 3) 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)[, aff'd, 275
Ga. 177, 563 S.E.2d 847 (2002)].
O'Dell, 211 W. Va. at 290, 565 S.E.2d at 412.
In view of the totality of the circumstances surrounding Dr. Polack's voir dire, it is apparent that he was not an impartial juror and that the trial court should have excused him for cause. Syl. pt. 3, O'Dell v. Miller, 211 W. Va. 285, 565 S.E.2d 407. Because the trial court denied Mrs. Black's repeated motions to so strike Dr. Polack and, instead, required her to use one of her peremptory strikes to remove him from the jury panel, we find that the trial court abused its discretion. We further find that Mrs. Black was prejudiced by this erroneous ruling insofar as the jury who ultimately heard and decided her case returned an adverse verdict. See Doe v. Wal-Mart Stores, Inc., 210 W. Va. 664, 670, 558 S.E.2d 663, 669 (2001) (A trial court's determination as to whether to strike a juror for cause will be 'reverse[d] only where actual prejudice is demonstrated.' (quoting State v. Miller, 197 W. Va. at 605, 476 S.E.2d at 552 (additional citation omitted)). Accordingly, we reverse the trial court's ruling denying Mrs. Black's motion for a new trial and remand this matter for a new trial.