Opinion
No. 10-06-00162-CV.
February 28, 2007.
Appeal From the 170th District Court McLennan County, Texas, Trial Court No. 2002-548-4.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
This is a limited appeal ( see TEX. R. APP. P. 34.6(c)) of a defense verdict and take-nothing judgment in a health care liability action. Appellant Wanda Pass raises two voir-dire issues. We will reverse and remand.
Pass claims that the trial court erred during voir dire by overruling five challenges for cause and that, as a result, (1) one allegedly disqualified venireperson (No. 10) served on the jury, (2) she had to use four of her peremptory challenges on the other four allegedly disqualified venirepersons (Nos. 5, 6, 29, and 31), and (3) she had to take four objectionable venirepersons as jurors (Nos. 1, 4, 10, and 22).
Pass's preservation of her complaints for appellate review is not disputed by appellees. We agree that they are preserved. See Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 90-91 (Tex. 2005); Hallett v. Houston Northwest Med. Ctr., 689 S.W.2d 888, 890 (Tex. 1985).
A person who has a bias or prejudice in favor of or against a party in the case is disqualified to serve as a juror TEX. GOV'T CODE ANN. § 62.105(4) (Vernon 2005). So is a juror who will not or cannot follow the trial court's instructions. See Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 751 (Tex. 2006); TEX. R. CIV. P. 226a(III).
Bias is an inclination toward one side of an issue rather than to the other; disqualifying bias exists when it appears that the state of mind of the juror leads to the natural inference that he will not act with impartiality. Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 750-51 (Tex. 2006). Prejudice means prejudgment and exists when a juror has made a prejudgment about the case. See id. "[A] juror may be statutorily disqualified because of a bias or prejudice against a type of claim or a general inability to follow the court's instructions regarding the law." Id. at 751.
A trial court has broad discretion in conducting voir dire. Vasquez, 189 S.W.3d at 753. If a juror's bias or prejudice is established as a matter of law, the trial court must disqualify the juror. Goode v. Shoukfeh, 943 S.W.2d 441, 452-53 (Tex. 1997); Buls v. Fuselier, 55 S.W.3d 204, 209 (Tex.App.-Texarkana 2001, no pet.). If bias or prejudice is not established as a matter of law, the trial court exercises discretion and makes a factual determination whether the juror is disqualified. Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 93 (Tex. 2005); Malone v. Foster, 977 S.W.2d 562, 564 (Tex. 1998). The trial court is obligated to disqualify a juror only if it finds that the juror's state of mind leads to the natural inference that the juror will not act impartially. See Vasquez, 189 S.W.3d at 750-51; Goode, 943 S.W.2d at 453.
"Voir dire examination protects the right to an impartial jury by exposing possible improper juror biases that form the basis for statutory disqualification. Thus, the primary purpose of voir dire is to inquire about specific views that would prevent or substantially impair jurors from performing their duty in accordance with their instructions and oath." Vasquez, 189 S.W.3d at 749 (footnotes and citations omitted). Bias or prejudice is not shown by responses to general questions because such questions are usually insufficient to show the diligence required to probe the mind of a prospective juror. Buls, 55 S.W.3d at 210. "[T]he relevant inquiry is not where jurors start but where they are likely to end." Cortez, 159 S.W.3d at 94. Thus, further questioning on the apparent initial bias is required. Id. at 93. The entire examination of the prospective juror must conclusively establish disqualification. Id. at 93; Buls, 55 S.W.3d at 210.
Pass first contends that venirepersons 6, 10, and 31 were disqualified because they indicated that they would require Pass to show that Dr. Murff was "the" proximate cause, and not "a" proximate cause. In voir dire, Pass's counsel read the definition of proximate cause and, after a somewhat rambling discussion about how there may be more than one proximate cause of an event as related to the facts of the case, asked:
In other words — and it's okay if you feel this way. You feel like, you know, a lot of things go on in hospitals; a lot of things go on during the birthing process; and before I could find a physician negligent, I would want you to prove, [. . .], you need to prove to me, I need you to prove to me that that was the case. Does anybody feel that way?
Around twenty venirepersons, including 6, 10, and 31, raised their hands, and yet another asked that it be repeated. After the question was repeated using different terminology, Dr. Murff's counsel objected, and no further specific questions were asked of the venirepersons who had raised their hands.
Pass has not shown that venirepersons 6, 10, and 31 were disqualified. The one general question on proximate cause was insufficient to establish their disqualification. See Buls, 55 S.W.3d at 210. Further questioning on the apparent initial bias was required. Cortez, 159 S.W.3d at 93. The trial court did not abuse its discretion in overruling Pass's challenges for cause as to venirepersons 6, 10, and 31 based on their response on the issue of proximate cause.
The question by Pass's counsel also lacked the necessary clarity for the trial court to have found bias or prejudice as a matter of law. "Statements of partiality may be the result of inappropriate leading questions, confusion, misunderstanding, ignorance of the law, or merely `loose words spoken in warm debate.'" Cortez, 159 S.W.3d at 92 (quoting Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963)).
The next issue addressed in voir dire was the burden of proof and the different measures of it in the law: beyond a reasonable doubt, clear-and-convincing evidence, and preponderance of the evidence. Pass's counsel emphasized that the burden for proving medical negligence was preponderance of the evidence and was seeking to find out if any venirepersons would hold Pass to a higher burden. After venireperson Heggie told Pass's counsel that Heggie would make Pass prove her case by more than a preponderance of the evidence, Pass's counsel asked if any others would require proof by a higher standard. Venireperson 5, Mr. Ruth, spoke up:
VENIREPERSON RUTH: Is the question more likely than not the preponderance of the evidence? Because if it is, then I disagree.
MR. DODD [Pass's counsel]: I'm sorry. The preponderance of the evidence is what would be on greater weight and degree of credible testimony. Mr. Ruth, do you see a big difference in more likely than not and greater weight?
VENIREPERSON RUTH: Yes.
MR. DODD: Okay. Could you please tell me what that difference is in your opinion?
VENIREPERSON RUTH: The greater the weight, I would expect it to be clear and convincing.
MR. DODD: Clear and convincing, okay.
VENIREPERSON RUTH: I have doubts then.
MR. DODD: Well, you would hold me to a clear and convincing?
VENIREPERSON RUTH: Yes.
MR. DODD: Okay. And I appreciate that because, you know, a lot of people — okay.
(Clarification by the reporter.)
MR. DODD: The Court Reporter would like you to repeat that, sir.
VENIREPERSON RUTH: I just said that for me the clear and convincing would be that closer to the greater weight measure that he mentioned before.
MR. DODD: Okay. And the question then was whether or not you would hold me to a clear and convincing degree in this case:
VENIREPERSON RUTH: Yes, I would.
[Emphases added].
Over thirty other venirepersons, including Nos. 6, 10 (who served on the jury), 29, and 31, then agreed with Mr. Ruth that they would hold Pass to a clear and convincing burden of proof. The trial court denied Pass's challenge for cause as to venirepersons 5 (Mr. Ruth), 6, 10, 29, and 31.
We agree with Pass that Mr. Ruth was disqualified because he unequivocally had "a general inability to follow the court's instructions regarding the law" — the plaintiff's preponderance-of-the-evidence burden for proving medical negligence. See Vasquez, 189 S.W.3d at 751. We disagree with Dr. Murff that Mr. Ruth and the others were rehabilitated by the trial court's statement that the burden of proof was preponderance of evidence and by another defense counsel's general question later in voir dire on whether any venireperson would not follow the trial court's instruction that the plaintiff's burden was a preponderance of the evidence.
Rehabilitation means "further questioning of a veniremember who expressed an apparent bias." Cortez, 159 S.W.3d at 92. An acceptable rehabilitation technique would be further specific questioning of the venireperson to clarify the apparently disqualifying statement or further questioning of the venireperson to clear up confusion or prevent a mistake. Id. at 92-93. Also, an explanation by the venireperson might demonstrate a lack of bias. Id. at 93. Thus, when a venireperson has expressed an unequivocal bias or prejudice, specific questions must be asked of that venireperson that elicit answers that will give the trial court a reasonable basis to conclude that the apparent bias was a mistake or was the result of a confused or inarticulate response or, for some other reason, was not disqualifying. See id. at 92.
An answer to a general question cannot disqualify a venireperson. Gant v. Dumas Glass Mirror, Inc., 935 S.W.2d 202, 208 (Tex.App. — Amarillo 1996, no writ). Likewise, an answer to a general question should not be able to rehabilitate a venireperson. See id.; see also Cortez, 159 S.W.3d at 92-93. The trial court's general statement that the burden of proof was preponderance of the evidence and defense counsel's general question later in voir dire were insufficient to rehabilitate the venirepersons.
We thus hold that the trial court had no discretion to refuse to grant Pass's challenges for cause to venirepersons 5, 6, 10, 29, and 31 because they unequivocally stated they would hold Pass to a clear-and-convincing evidence burden of proof and they were not rehabilitated. See Silsbee Hosp., Inc. v. George, 163 S.W.3d 284, 295-96 (Tex.App.-Beaumont 2005, no pet.) (trial court erred by not striking for cause prospective jurors who said they would award plaintiff money even if plaintiff failed to meet burden of proof); see also Shepherd v. Ledford, 962 S.W.2d 28, 34 (Tex. 1998) (trial court erred in failing to strike prospective juror who stated she could not be fair to defendant because of results of medical treatment to her father). Harm is presumed when an objectionable juror is seated because a strike was used on a disqualified venireperson. Cortez, 159 S.W.3d at 91; Hallett v. Houston Northwest Med. Ctr., 689 S.W.2d 888, 890 (Tex. 1985).
Pass's two issues are sustained. We reverse the trial court's judgment and remand the cause to the trial court for a new trial.
(Chief Justice Gray dissents from the Court's judgment without a separate opinion.)
Reversed and remanded