Kelly on Malpractice

Some lawyers argue that the case is won or lost in voir dire. Hostile jurors who are prejudiced against patients can destroy your case no matter how meritorious it is. The same fate can befall a healthcare provider, but it is far more rare in my opinion. Plaintiff’s questions during voir dire in a medical malpractice case are designed to reveal the life experiences, interests, and potential prejudices or biases to assess their mental attitudes toward the issues in this case. The questions also assist counsel in exercising peremptory challenges or challenges for cause. In medical malpractice actions, the trial court should afford you “wide latitude” to question jurors about their experiences, prejudices, interests, and biases in order to get a fair jury. I always file a pre-trial memorandum of law in advance of voir dire in my medical malpractice cases. The memo provides me cover when I need to probe deep into areas where hostile jurors may reveal themselves. The purpose of this newsletter is to offer you some legal ammunition when exploring the depth of jury bias in your next trial, whether it be a medical malpractice action or a personal injury action.

A party is entitled by law to inquire about potential bias held by jurors. The essential function of voir dire is to allow for the impaneling of a fair and impartial jury through questions which permit the intelligent exercise of challenges by counsel. 47 AM.JUR.2d, Jury § 195 (1969). Traditionally, Tennessee has shown great respect and deference to the voir dire process. Our legislature had given parties in criminal and civil cases “an absolute right to examine prospective jurors” TENN.CODE ANN. § 22-3-101 (1980). State v. Akins, 867 S.W.2d 350, 353-55 (Tenn.Crim.App.1993). Our courts, both civil and criminal, have long recognized the importance of the voir dire process and have zealously guarded its integrity. Owen v. Arcata Graphics/Kingsport Press, 813 S.W.2d 442 (Tenn.App.1990); Tennessee Farmers Mut. Ins. Co., v. Greer, 682 S.W.2d 920, 924 (Tenn.App.). Full knowledge of the facts which might bear upon a juror’s qualifications is essential to a party’s intelligent exercise of peremptory and for cause challenges. State v. Akins, 867 S.W.2d at 350.

Bias in a juror is defined as a “leaning of the mind,” a propensity or pre-possession towards an object or view that does not leave the mind indifferent; [a] bent; [for] inclination.” Durham v. State, 182 Tenn. 577, 188 S.W.2d 555, 559 (1945). The jury selection process must be carefully guarded to ensure that each party has a fair trial and that the verdict is determined by an impartial jury. Jurors who have prejudged certain issues or who have had life experiences or associations which have swayed them “in response to those natural and human instincts common to mankind,” id. 188 S.W.2d at 559, interfere with the underpinnings of our justice system. State v. Akins, 867 S.W.2d at 350. Questions about tort reform or other subjects that reveal the interests or prejudices of jurors are proper because jurors do not live in a vacuum. There has been tremendous criticism of lawyers and medical malpractice cases on television, in political campaigns, and in even in medical office brochures. Prospective jurors are inundated with it so the topic is relevant for voir dire.

In Friar v. Kroger, 1998 WL 170140 (Tenn.Ct.App.), counsel for the plaintiff during the voir dire asked prospective jurors whether they felt that a jury could be “trusted” to properly assess compensatory damages. He asked the jurors if they were aware of the widely-reported case wherein McDonald’s was ordered by a jury to pay substantial damages to a plaintiff who had been burned when overheated coffee fell in the plaintiff’s lap. As a part of this inquiry, counsel asked the prospective jurors, over Kroger’s objection, if they were aware of certain facts, which according to counsel were not widely reported, that tended to support the jury’s verdict.

The plaintiff wanted to impress upon the jury his view that the McDonald’s case had been misreported. He repeatedly asked prospective jurors if they felt that a jury could fairly assess damages in spite of the McDonald’s verdict. He brought up the following facts about the McDonald’s case: that the plaintiff in that case had suffered third degree burns and had incurred over $200,000 in medical bills; that the company had reported that over 3,000 people annually were burned as a result of overheated coffee; that McDonald’s had overheated its coffee to increase coffee sales; that McDonald’s earned $2.1 million in profits from coffee sales each day; and that the trial judge in that case had reduced the jury’s award. Id.

While the Court of Appeals believed that counsel’s suggestion of these facts was improper, it found no abuse of discretion in permitting counsel to discuss aspects of the McDonald’s case in an attempt to determine whether the impartiality of any of the prospective jurors had been “infected” by the reporting of this celebrated case. “Potential jurors do not live in a vacuum.” Their attitudes are affected by that to which they are exposed. “It is important to ensure that a jury’s impartiality has not been adversely affected by the media blitzes—from the defendant’s side as well as from the plaintiff’s side—that are all too common in the world in which we live.” Id. Counsel deserves “wide latitude” in examining jurors to ferret out individuals who would be less inclined to award adequate damages. It was clear beyond any doubt that the questions were designed to ferret out individuals who would be less inclined to award adequate damages. Id. A party, through counsel, has the right to inquire into a potential juror’s “biases.” Painter v. Toyo Kogyo of Japan, 682 S.W.2d 944, 947 (Tenn.App.1984).

Our courts have explained that “[t]he purpose of voir dire examination of prospective jurors is to enable counsel to become acquainted with their qualifications, interests, or biases, as a matter of fact, … and to enable counsel to exercise peremptory challenges.” Wallis v. State, 546 S.W.2d 244, 248-249, 251 (Tenn.Crim.App.1976). Id. See generally 47 AM.JUR.2d Jury § 195 (1969), where the treatise states the following:

Full knowledge of all relevant and material matters that might bear on possible disqualifications of a juror is essential to a fair and intelligent exercise of the right of counsel to challenge either for cause or peremptorily…wide latitude is allowed counsel in examining jurors on their voir dire. The scope of inquiry is best governed by a wise and liberal discretion of the court, but the adverse litigants should be given the right to inquire freely about the interest, direct or indirect, of the proposed juror, that may affect his final decision. Thus, reasonable latitude should be given parties in the examination of jurors to gain knowledge as to their mental attitudes toward the issues to be tried, for the purpose of aiding them in striking jurors if they are not successful in challenging them for cause.” 47 AM.JUR.2d, supra, § 201.

The Court of Appeals found no fault in allowing counsel to question the prospective jurors regarding the McDonald’s case and other matters that affected a potential award of damages. Friar v. Kroger, 1998 WL 170140 (Tenn.Ct.App.).

I think these cases put into a memorandum of law will assist you during voir dire to get real answers