Bruner v. Cawthon

• Decision Date: 20 October 1995
• Citation: 681 So.2d 161
• Parties: Anne BRUNER and James Bruner, individually, and as the administratrix and administrator of the Estate of James Holland Bruner, deceased v. Thomas H. CAWTHON, M.D., F.A.C.S., P.C., et al. 2940678.
• Court: Alabama Court of Civil Appeals

Page 161

681 So.2d 161

Anne BRUNER and James Bruner, individually, and as the administratrix and administrator of the Estate of James Holland Bruner, deceased v. Thomas H. CAWTHON, M.D., F.A.C.S., P.C., et al.

2940678.

Court of Civil Appeals of Alabama.

Oct. 20, 1995.

Rehearing Denied Dec. 1, 1995.

James H. Tipler of Tipler Law Offices, Andalusia, for Appellant.

Thomas H. Keene, Fred W. Tyson and N. Wayne Simms, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for Appellee.

CRAWLEY, Judge.

The Bruners appeal from a judgment based on a jury verdict in favor of Dr. Thomas H. Cawthon and his professional corporation [hereinafter, "Dr. Cawthon"], in an action alleging medical malpractice and the wrongful death of the Bruners' son. The Supreme Court transferred the cause to this court pursuant to Ala.Code 1975, § 12-2-7(6).

On appeal, the Bruners raise two issues relating to jury selection. First, they claim that the trial judge erred by denying their challenges for cause as to six jurors who were patients of Dr. Cawthon or one of his partners, had relatives who were patients of Dr. Cawthon or one of his partners, or had dealt with Dr. Cawthon in a professional capacity.

Next the Bruners argue that Dr. Cawthon exercised his peremptory challenges in a racially discriminatory manner and violated the principles announced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala.1987).

Challenges for Cause

A total of 18 prospective jurors answered that they were or had been patients of Dr. Cawthon or one of his partners or had a family member who was or had been a patient of Dr. Cawthon or one of his partners. The trial court granted the Bruners' challenge for cause as to 12 of those veniremembers, most of whom were current patients of Dr. Cawthon. The court denied the challenges for cause as to the following six jurors: Juror Number 16A, whose daughter was currently a patient of Dr. Stronach, Dr. Cawthon's partner; Juror Number 41, whose niece had been Dr. Cawthon's patient three years earlier; Juror Number 98, who was the director of pharmacy at Jackson Hospital, a hospital at which Dr. Cawthon practices; Juror Number 37B, a former patient of Dr. Cawthon; Juror Number 40, a former patient of Dr. Carroll, Dr. Cawthon's partner; and Juror Number 301, a former patient of Dr. Cawthon.

In Knop v. McCain, 561 So.2d 229, 232 (Ala.1989), our supreme court summarized the law on challenges for cause as follows:

"In challenging a juror for cause, the test to be applied is that of probable prejudice. Alabama Power Co. v. Henderson, 342 So.2d 323, 327 (Ala.1976). While probable prejudice for any reason will serve to disqualify a prospective juror, qualification of a juror is a matter within the discretion of the trial court. Id.; Black Belt Wood Co. v. Sessions, 514 So.2d 1249, 1255-56 (Ala.1986); Village Toyota Co. v. Stewart, 433 So.2d 1150, 1156 (Ala.1983). This Court must look to the questions propounded to, and the answers given by, the prospective juror to see if this discretion was properly exercised. Id. A reversal is not appropriate absent abuse of this discretion. Alabama Power Co. v. Henderson, 342 So.2d at 327; Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961); Mutual Building & Loan Ass'n v. Watson, 226 Ala. 526, 147 So. 817 (1933); Brown v. Woolverton, 219 Ala. 112, 115, 121 So. 404 (1928); see Clark v. State, 443 So.2d 1287 (Ala.Crim.App.1983).

"Ultimately, the test to be applied is whether the juror can set aside her opinions and try the case fairly and impartially, according to the law and the evidence. Tidmore v. City of Birmingham, 356 So.2d 231 (Ala.Crim.App.1977), cert. denied, 356 So.2d 234 (Ala.), cert. denied, 439 U.S. 836, 99 S.Ct. 120, 58 L.Ed.2d 132 (1978); see Willingham v. State, 262 Ala. 550, 552, 80 So.2d 280 (1955); Mahan v. State, 508 So.2d 1180 (Ala.Crim.App.1986). This determination, again, is to be based on the juror's answers and demeanor and is within the sound discretion of the trial judge. Thus, a prospective juror should not be disqualified for prejudices or biases if it appears from his or her answers and demeanor that the influence of those prejudices and biases can be eliminated and a verdict rendered according to the evidence. See Fordham v. State, 513 So.2d 31, 34-35 (Ala.Crim.App.1986); Jarrell v. State, 355 So.2d 747, 749 (Ala.Crim.App.1978)."

Although "a doctor-patient relationship between a potential juror and a party to a lawsuit is prima facie evidence of probable prejudice on the part of the potential juror," Bell v. Vanlandingham, 633 So.2d 454, 455 (Ala.1994); Roberts v. Hutchins, 613 So.2d 348 (Ala.1993), there is no absolute rule excluding a patient as a juror in a case against his or her personal physician. Dixon v. Hardey, 591 So.2d 3, 7 (Ala.1991). "It continues to be the trial court's responsibility to determine whether that presumption can be overcome." Bell v. Vanlandingham, 633 So.2d at 455.

"[T]he simple extraction of an affirmative response from a potential juror does not necessarily absolve that juror of probable prejudice." Wood v. Woodham, 561 So.2d 224, 228 (Ala.1989). "Where a juror vacillates in her response to voir dire, her answers must be 'taken as a whole,' [and] when the aggregate effect of her response tends to verify the existence of 'deep-seated impressions,' she must be excluded for cause." Dixon v. Hardey, 591 So.2d at 7 (quoting Knop v. McCain, 561 So.2d at 233). Because a juror's responses must be "taken as a whole," and the "aggregate effect" of those responses is determinative, we set forth in their entirety the answers of the challenged jurors.

Upon the trial court's questioning of Juror Number 16A, whose daughter was currently a patient of Dr. Stronach, Dr. Cawthon's partner, the following occurred:

"Q. .... [B]oth sides want twelve folks that will fairly and impartially hear this matter and tell them who is at fault, or not at fault. Do you feel that because you were treated by Dr. Cawthon['s partner] and he has treated your daughter, do you feel that you can do that without leaning towards him?

"A. I believe I could be fair.

"Q. Without leaning towards him?

"A. I wouldn't lean towards him, no, sir."

"Q. Okay, you feel that he treated your daughter well, but if he treated,--if the work was not,--was negligent or not up to par, could you still say that you treated my daughter, gave her good medical care, but you didn't do it in this case?

"A. Yes, sir, I believe so.

"BY MR. TIPLER [Counsel for the Bruners]:

"Q. Is your daughter going back to see Dr. Cawthon after--?

"A. Well, she saw Doctor Stronach, and Doctor Stronach was the one that originally--five or six years ago detected a hearing loss. And when she saw him back in August, all he did was write a letter to the school so they could be advised of her hearing impairment so it would be on her acceptance into her college. I don't think she took any medicine or testing at that time, but as her physician, he had to write a letter to that effect.

"Q. You feel kindly towards Doctor Stronach for helping you out because of that?

"A. I wouldn't say that, but I feel like he did what was correct. I mean, from that standpoint, he didn't do anything improper by signing the letter. I don't feel that way, no, sir.

"Q. Do you feel like if you have to take your daughter back to Doctor Stronach, if you render a verdict against his partner, that you might feel a little uneasy about taking your daughter back there for treatment[?]

"A. No, sir."

Juror Number 16A expressed no uncertainty about his ability either to render a fair verdict according to the evidence or to return his daughter to Dr. Cawthon's partner for treatment. Compare Boykin v. Keebler, 648 So.2d 550, 551-52 (Ala.1994); Wright v. Holy Name of Jesus Medical Center, 628 So.2d 510 (Ala.1993). Here, as in Haisten v. Kubota Corp., 648 So.2d 561, 564 (Ala.1994),

"the trial judge questioned the potential juror. The trial judge observed [his] demeanor and weighed [his] answers accordingly. [He] was asked whether [he] could render a fair and impartial verdict, and [he] answered affirmatively. The record shows no abuse of discretion."

The trial court questioned Juror Number 41, whose niece had been Dr. Cawthon's patient three years earlier, as follows:

"Q. Do you feel if you are selected to serve on this jury, that would cause [you] to say, wait, you have to do a little bit more, plaintiff, than what the law requires you to do before I say that Doctor Cawthon is negligent. At the same time--did you have a good result with your niece?

"A. Yeah.

"Q. At the same time, of course you are not going to be against Doctor Cawthon, in favor of the plaintiff, and you feel you can do that and take your niece back to the doctor, you can say you were at fault in this case, Doctor Cawthon?

"A. Yeah, I think I can be honest with the problem. If the evidence is there, that's what it's weighed on.

"Q. Okay. And you could tell Doctor Cawthon you were negligent in this case, although you treated my niece, but you were negligent in this case?

"A. Well, if the evidence is there--."

In Boykin v. Keebler, our supreme court held that a veniremember whose daughter was a patient of the defendant physician was presumed to be "probably prejudiced" in favor of the physician. The court explained:

"[I]t is clear that the association between a mother and the doctor who treats her child is inherently a close, personal relationship built upon trust and confidence. That relationship requires that the mother and her child's doctor be in close consultation regarding the child's health and well-being. It follows that the same 'probable prejudice' that arises where a patient sits in judgment of his physician's case also arose under the facts of this case."

Boykin, 648 So.2d at 552. Here, the fact that the niece of Juror Number 41 had been Dr. Cawthon's patient did not give rise...