Barrett v. Peterson

• Decision Date: 30 December 1993
• Docket Number: No. 910048-CA,910048-CA
• Citation: 868 P.2d 96
• Parties: William E. BARRETT, Plaintiff and Appellant, v. Dennis R. PETERSON, M.D., Defendant and Appellee.
• Court: Utah Court of Appeals

Page 96

868 P.2d 96

William E. BARRETT, Plaintiff and Appellant, v. Dennis R. PETERSON, M.D., Defendant and Appellee.

No. 910048-CA.

Court of Appeals of Utah.

Dec. 30, 1993.

Jackson Howard, Leslie W. Slaugh, and Linda J. Barclay, Provo, for plaintiff and appellant.

Gary D. Stott, Curtis J. Drake, and Michael Peterson, Salt Lake City, for defendant and appellee.

Before BENCH, GREENWOOD and ORME, JJ.

OPINION

ORME, Judge:

Appellant challenges the trial court's denial of his motion for a new trial, in which he claimed the trial court erred by improperly limiting voir dire of the jury panel. We agree, and reverse and remand for a new trial.

FACTS

Appellant, William Barrett, brought a medical malpractice action against appellee, Dr. Dennis R. Peterson, claiming appellee failed to properly diagnose appellant's acoustic neuroma or take other action that allegedly would have resulted in diagnosis of his condition.

On the first day of the two-week trial, appellant's counsel submitted to the trial court a set of eighty-two voir dire questions accompanied by a supporting memorandum. Of these eighty-two questions, eleven were designed to probe the potential jurors' exposure to tort-reform material. ¹ Submitted with the proposed questions were then-current, widely distributed advertisements and articles setting forth insurance industry viewpoints on tort-reform issues. ² Appellant also requested to personally conduct limited voir dire examination.

During jury selection, the trial judge first asked a number of general voir dire questions, and then asked counsel if there were any questions they wished him to ask the panel. After an off-the-record discussion with appellant's counsel, the trial judge asked the prospective jurors several specific questions not relevant to the issue of tort-reform exposure. Over appellant's objection, the trial judge refused to ask the jurors any of appellant's submitted questions specifically directed at the issue of tort reform.

The jury returned a no-cause-of-action verdict in favor of appellee. Appellant subsequently moved for a new trial arguing, in part, that the trial court improperly limited the jury voir dire examination by refusing to ask potential jurors the tort-reform bias questions he submitted. The trial court denied the motion, and this appeal followed.

Appellant claims on appeal that the trial court failed to ask appropriate preliminary questions of the jury, which would have allowed him to discover which jurors had been exposed to tort-reform material. He argues that his inability to detect such jurors denied him an opportunity to discover whether jurors who had been exposed were biased by such exposure. He claims the court committed reversible error by refusing to allow his counsel to personally conduct voir dire examination and in excluding appellant's proffered voir dire questions.

STANDARD OF REVIEW

We review challenges to the trial court's management of jury voir dire under an abuse of discretion standard. Evans v. Doty, 824 P.2d 460, 462 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992); Doe v. Hafen, 772 P.2d 456, 457-58 (Utah App.1989). Generally, the trial court is afforded broad discretion in conducting voir dire, "but that discretion must be exercised in favor of allowing discovery of biases or prejudice in prospective jurors." State v. Hall, 797 P.2d 470, 472 (Utah App.), cert. denied, 804 P.2d 1232 (Utah 1990). See also State v. James, 819 P.2d 781, 797-98 (Utah 1991) (noting importance of voir dire process in eliminating bias and prejudice from trial proceedings). This court will overturn a trial court's discretionary rejection of voir dire questions only upon a showing that "the abuse of discretion rose to the level of reversible error." Hall, 797 P.2d at 472. A trial court commits reversible error when, " 'considering the totality of the questioning, counsel [is not] afforded an adequate opportunity to gain the information necessary to evaluate jurors.' " Evans, 824 P.2d at 462 (quoting State v. Bishop, 753 P.2d 439, 448 (Utah 1988)).

TORT-REFORM INQUIRY DURING JURY VOIR DIRE

Voir dire serves two distinct purposes: 1) to allow counsel to uncover biases of individual jurors sufficient to support a for-cause challenge and 2) to gather information enabling counsel to intelligently use peremptory challenges. State v. Sherard, 818 P.2d 554, 558 (Utah App.1991), cert. denied, 843 P.2d 516 (Utah 1992); Doe v. Hafen, 772 P.2d 456, 457 (Utah App.1989). In light of "the important role that jury voir dire has in ensuring that all litigants in a case receive a fair and impartial jury," State v. James, 819 P.2d 781, 797 (Utah 1991), courts must liberally exercise voir dire beyond minimal constitutional requirements in order "to eliminate bias and prejudice from the trial proceedings." Id. at 798. In fact, the Utah Supreme Court has emphasized that

the fairness of a trial may depend on the right of counsel to ask voir dire questions designed to discover attitudes and biases, both conscious and subconscious, even though they "would not have supported a challenge for cause." .... Juror attitudes revealed during voir dire may indicate dimly perceived, yet deeply rooted, psychological biases or prejudices that may not rise to the level of a for-cause challenge but nevertheless support a peremptory challenge.

State v. Worthen, 765 P.2d 839, 845 (Utah 1988) (emphasis added) (quoting State v. Ball, 685 P.2d 1055, 1060 (Utah 1984)).

Such admonitions can be at odds with the traditional reluctance of trial courts to allow questions during voir dire that might suggest defendant possesses insurance coverage for the damages claimed by plaintiff. Thus, courts have been concerned that allowing plaintiffs to question jurors during voir dire about tort-reform issues would infuse the issue of insurance coverage into jury deliberations, thereby prejudicing the defendant's interests. See Evans v. Doty, 824 P.2d 460, 463 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992); Borkoski v. Yost, 182 Mont. 28, 594 P.2d 688, 692-93 (1979). ³ Yet, more recently, courts have been willing to balance the competing interest of selecting an impartial jury, given the jurors' possible exposure to tort-reform material and the prejudice injected into the proceedings by the questioning itself. Of course, these inquiries into insurance-related issues cannot be used merely to inform the jury that defendant is covered by insurance, but rather must be conducted as good faith efforts to uncover bias. Evans, 824 P.2d at 464; Borkoski, 594 P.2d at 695.

Plaintiffs may address the issue of insurance via voir dire questioning in three situations: (1) to obtain information regarding prospective jurors' employment, investment, and similar relationships with insurance companies; (2) to determine whether potential jurors have been exposed to specific, identifiable media campaigns funded by insurance companies and designed to convince the public of the impact of large damage awards on insurance premiums; and (3) to probe jurors' knowledge of and attitudes toward medical negligence and tort reform in general. Evans, 824 P.2d at 463. We need not discuss the first situation because the trial court in this case asked questions that adequately probed the jurors' relationships with insurance companies. To evaluate the permissible limits for inquiries pertaining to the latter two categories, we employ the analytical framework which has been developed in Utah. See id. at 464; Hafen, 772 P.2d at 458-59. See also Borkoski, 594 P.2d at 695.

A. Inquiries Concerning Specific Tort-reform Campaigns

The case of Borkoski v. Yost, 182 Mont. 28, 594 P.2d 688 (1979), set out a procedure for determining when a plaintiff can ask jurors about their exposure to specific tort-reform campaigns and set limits on the extent of such inquiries. In Borkoski, a plaintiff in a wrongful death action requested the trial court to permit voir dire of prospective jurors "as to the influence of a national campaign by leading insurance companies with regard to jury awards." Id. 594 P.2d at 689. The defendant's insurance company had been an active participant in that campaign. Id. The plaintiff presented copies of magazines, such as Time, Newsweek, and Sports Illustrated, which carried the insurance-sponsored ads. Id. at 689-90. At trial, the plaintiff sought permission to determine whether any prospective jurors had been exposed to the national campaigns. Id. at 690. The trial court refused his request. Id. On appeal, plaintiff claimed that the trial court's refusal to allow his voir dire inquiry prevented him from receiving a fair and impartial jury by denying him an opportunity to ascertain whether the jurors were biased as a result of exposure to tort-reform material. Id.

After reviewing the purposes for jury voir dire and the policy behind concealing information from jurors concerning insurance, the court developed a two-tier approach for voir dire inquiries that balances the conflicting interests of selecting an impartial jury and the prejudice infused into the proceedings by the questioning about exposure to tort-reform information. Id. at 695. According to the Borkoski court, a plaintiff who wishes to determine whether jurors have been biased by specific tort-reform campaigns must make an initial showing of possible prejudice. Id. at 694. That is, the plaintiff must demonstrate that potential jurors are likely to have recently been exposed to such material. See id. at 694-95. One method for making such a showing is by demonstrating that articles concerning tort reform were recently published in widely-read media. See id. After this initial showing, the plaintiff, in order to determine which jurors have been exposed to the material, is entitled to either or both forms of the following preliminary, first-tier questions:

(1) whether the prospective juror has heard of or read anything (not necessarily related to insurance)...