648 S.E2d 610
Mr. Lafferre: Do you think that what you think about
sound science as being the basis for
decision-making - I don't want to put
words in your mouth, but that's my
understanding of what you said just a
moment ago- are you say that that would
be your guide in this case, as opposed to
the judge's instructions of law?
Dr. Polack: My guide must be the judge's instructions in law.
(Emphasis added). This exchange was in follow-up to the initial questioning by Appellant's counsel set forth on pages 2-3 of the Majority slip opinion. The Majority also neglected to include Judge's Recht's stated reasons for denying the Appellant's motion to strike Dr. Polack for cause, the reasoning implicitly rejected by the Majority herein. After the initial voir dire of Dr. Polack in chambers, Judge Recht explained his reasons for denying Appellant's motion stating:
The Court: Dr. Polack probably is a poster child for the reason we have voir dire and still accommodate the teachings of O'Dell. He has been rather forthright, exactly how he feels.
But in the ultimate question, he will be able to be a fair juror; but you certainly have enough information in order to - if you feel so inclined, to exercise your peremptory challenge; that's why we have voir dire. But I don't think any of his answers would disqualify him for cause.
I thought they might. And if you just look
at the questionnaire itself, it came
perilously close, but I just don't think it's
enough. So your objection will be
overruled, and your objection saved.
Later in the voir dire process, Appellant renewed her motion to strike Dr. Polack for cause. Prior to the questioning cited by the Majority on pages 4-5 of its opinion, the trial court made the following significant statements, which, like the above passage, were not acknowledged by the Majority:
The Court: Certainly, the first response that he has a bias against personal injury lawyers is a strong statement, extremely strong statement. The question is: What would it take to overcome that bias?
Mr. Lafferre: I'll observe, he didn't say he was biased against plaintiffs themselves-
The Court: - appreciate that. But that's my point, is what it would take to overcome the bias as against plaintiffs' lawyers? We don't know that. And I don't think that question was asked.
Mr. Daley: I don't believe, under O'Dell, it needs to be. It's quite clear; it's a clear statement, and that further questioning is not going to help.
The Court: If it stopped there, I'd definitely agree with you, definitely agree with you. He then went on to modify it, where basically he's saying that he is a man of science and
will not be swayed by emotion. It's that Jeffersonian argument of head versus heart that we all learned while we were in grade school.
Dr. Polack is more head than heart, but I'm going to ask him that question. I really need to know it. It wasn't asked. I think its because of it's - potential impact, I think its only fair, so . . .
Thereafter, in responding to Judge Recht's questioning, Dr. Polack testified that credibility on the part of the lawyer would overcome this perceived bias and that he would decide the case upon the law and evidence. After considering Dr. Polack's response, Judge Recht denied Appellant's renewed motion to strike Dr. Polack stating I still think he's not excusable for cause, notwithstanding the responses he gave in the questionnaire, because I think his verbal responses transcend that.
The record before this Court simply does not support the Majority's conclusion that Judge Recht abused his considered discretion in refusing to strike Dr. Polack for cause. Of even more concern, I fear that the Majority's opinion in this matter may be viewed in the future as establishing a standard in West Virginia that a juror who states he or she will rely upon the facts and the law to decide a case - and not upon emotion - should be, or even may be, subject to being excused for cause.
Finally, I must additionally take issue with the Majority's finding of prejudice
arising from Judge Recht's failure to strike Dr. Polack for cause. As recognized by the
Majority, actual prejudice must be demonstrated before a trial court's ruling on a motion to
strike a juror for cause may be reversed. State v. Miller, 197 W. Va. 588, 605, 476 S.E.2d
535, 669 (1996). What then did the Majority deem sufficient to demonstrate the prejudice
necessary to reverse Judge Recht's decision not to strike Dr. Polack for cause? The jury's
adverse verdict? What the Majority fails to admit is that Dr. Polack ultimately did not sit on
the jury as Appellant utilized a preemptory strike to remove him. Thus, he could not have
influence the jury's deliberations. Notwithstanding his absence, the jury that heard the
evidence still found no causation whatsoever to support Appellant's claim. It is pure
speculation by the majority that the juror who would have replaced Dr. Polack in the jury
pool had he been struck for cause may have impacted the ultimate verdict. By simply
presuming prejudice and equating that prejudice to an adverse jury verdict, the majority has
effectively removed from our jurisprudence the appealing party's burden to show prejudice.
Judge Recht did not abuse his discretion in refusing to strike Dr. Polack for cause. I furthermore disagree with the Majority that the mere fact of an adverse jury verdict is sufficient evidence of prejudice to reverse a trial court's discretionary ruling upon a juror's qualification where there is no objective evidence of conflict, such as a significant relationship to a party or a party's employee or relative, but only speculation as to that
juror's beliefs. Accordingly, I dissent.