Day v. Johnson, 08CA1443.

• Decision Date: 03 September 2009
• Docket Number: No. 08CA1443.,08CA1443.
• Citation: 232 P.3d 175
• Parties: Loretta Jean DAY and Richard C. Day, Plaintiffs-Appellants,v.Bruce JOHNSON, M.D., Defendant-Appellee.
• Court: Colorado Court of Appeals

232 P.3d 175

Loretta Jean DAY and Richard C. Day, Plaintiffs-Appellants,v.Bruce JOHNSON, M.D., Defendant-Appellee.

No. 08CA1443.

Colorado Court of Appeals, Div. II.

Sept. 3, 2009.

COPYRIGHT MATERIAL OMITTED

Law Office of Michael Goodman, PC, Michael Goodman, Englewood, Colorado, for Plaintiffs-Appellants.

Kennedy Childs & Fogg, P.C., Barbara H. Glogiewicz, Christopher K. Miller, Denver, Colorado; Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge ROMÁN.

In this medical malpractice action, plaintiffs, Loretta Jean Day and Richard C. Day, appeal the judgment entered against them on a jury verdict in favor of defendant, Bruce Johnson, M.D. On appeal, plaintiffs contend that the trial court abused its discretion by (1) refusing to dismiss two jurors for cause; and (2) instructing the jury that an unsuccessful medical procedure is not necessarily the result of a physician's negligence. We conclude that the trial court did not abuse its discretion in either manner, and affirm the judgment against plaintiffs.

I. Factual Background

Defendant treated Ms. Day for a nodule growing on her thyroid. He recommended surgical removal of the nodule as well as part of Ms. Day's thyroid to alleviate the problem, and later carried out the procedure. Shortly thereafter, Ms. Day suffered complications from the surgery that caused injury to her larynx, affecting her ability to speak. Plaintiffs alleged that defendant's surgery recommendation was not the appropriate course of treatment for Ms. Day's condition, and further claimed that defendant negligently performed the surgery. However, the jury concluded that defendant was not negligent, and judgment was then entered for defendant. Plaintiffs now appeal that judgment.

II. Challenges for Cause

Plaintiffs first contend that the trial court abused its discretion by denying their challenges for cause against two jurors. They argue that the jurors respectively exhibited an interest in the outcome of the case and a bias in favor of defendant that required their dismissal for cause. They contend that the trial court's failure to dismiss these jurors warrants a new trial of this matter. However, because both of the trial court's rulings on plaintiffs' challenges for cause were supported by the record, we may not disturb either ruling. See People v. O'Neal, 32 P.3d 533, 535 (Colo.App.2000) (“We will overturn a court's ruling on a challenge for cause only if the record presents no basis to support it.”).

A. Standard of Review

Challenges for cause “involve essentially a factual determination and are entrusted to the sound discretion of the trial court.” Blades v. DaFoe, 704 P.2d 317, 323 (Colo.1985). “Deference is given to the trial court's assessment of the prospective juror because of its perspective in evaluating the demeanor and body language of the juror.” O'Neal, 32 P.3d at 535. Consequently, a trial court's decision to deny a challenge for cause “will not be disturbed on review, absent a manifest abuse of that discretion.” Freedman v. Kaiser Found. Health Plan, 849 P.2d 811, 814 (Colo.App.1992).

Challenges for cause are governed by C.R.C.P. 47(e). If a potential juror falls within any of the categories identified in C.R.C.P. 47(e)(1) through (5), “the bias of the juror is implied and the trial court must dismiss the juror.” Dupont v. Preston, 9 P.3d 1193, 1195 (Colo.App.2000) aff'd, 35 P.3d 433 (Colo.2001); see Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 428, 532 P.2d 337, 339 (1975) (trial court committed reversible error by denying challenge for cause of potential juror who was employed by defendant and was within the class of persons excluded from jury service by C.R.C.P. 47(e)(3)).

A trial court also commits reversible error if it dismisses a juror for a cause other than those enumerated in C.R.C.P. 47. See Faucett v. Hamill, 815 P.2d 989, 990 (Colo.App.1991) (“Jury selection in a civil action is governed by C.R.C.P. 47, which sets forth specific grounds upon which a prospective juror may be challenged for cause.... Sustaining a challenge of a prospective juror for cause on grounds other than those provided by C.R.C.P. 47 has the effect of giving the challenging party an additional peremptory challenge which affects or could affect the substantial rights of the other party.”).

B. Challenge to Juror M

Plaintiffs contend that Juror M should have been dismissed for cause under C.R.C.P. 47(e)(5), which mandates the dismissal of a potential juror who has an interest “in the event of the action, or in the main question involved in the action.” C.R.C.P. 47(e)(5). Plaintiffs maintain that Juror M, an operating room nurse in Pueblo, had an interest in the litigation because she expressed “a little bit of a concern” that the size of the medical community in which she and defendant both practice may lead her to work “with [defendant] at some point in time, which may or may not have repercussions on [her].” They argue that because Juror M never specifically stated that she could set aside this concern before rendering a verdict, Juror M should have been dismissed for cause under C.R.C.P. 47(e)(5).

However, Juror M's interest in the event of the action was uncertain and speculative. Although she expressed concern about the potential for a relationship with defendant, Juror M acknowledged that she neither knew him nor had any plans to work with him in the future. In our view, the possibility of future contact with a litigant is insufficient to create a current “interest in the event of the action” on the part of the potential juror.

We know of no cases in which the mere possibility that a potential juror could have interactions with a litigant in the future disqualified the juror under C.R.C.P. 47(e)(5), and plaintiffs have not cited to any. Rather, plaintiffs rely upon a case in which the potential juror (a) had some business dealings with the defendant company which earned the juror special savings from the defendant company, (b) expected the business relationship with the defendant company to continue, and (c) conceded the relationship could affect his impartiality in rendering a verdict. Denver, S.P. & P.R. Co. v. Driscoll, 12 Colo. 520, 521, 21 P. 708, 708 (1889). The supreme court affirmed the trial court's dismissal of the juror for cause. Unlike Juror M, the potential juror in Driscoll had an ongoing relationship with a party to the lawsuit, and thus had a current interest in “the event of the action.” In contrast, Juror M had neither worked with nor met defendant; she was concerned only with the possibility that they could encounter one another in the future. Consequently, Juror's M's situation is factually distinguishable from that of the juror described in Driscoll.

Other Colorado decisions have held that certain existing relationships between a potential juror and a party or witness were too remote to justify exclusion of the juror. See Kaltenbach v. Julesburg School Dist. RE-1, 43 Colo.App. 150, 154, 603 P.2d 955, 958 (1979) (“[A] juror's standing in a debtor-creditor relation with a party, without more, is insufficient grounds for a challenge for cause.”); Oglesby v. Conger, 31 Colo.App. 504, 507, 507 P.2d 883, 885 (1972) (mere fact that potential jurors were policyholders of defendant's insurance company “in and of itself would not necessarily affect their judgment in the case”); cf. State Dep't of Highways v. Copper Mountain, Inc., 624 P.2d 936, 937 (Colo.App.1981) (in condemnation action, trial court did not abuse its discretion in refusing to disqualify as chairman of commission an attorney who had received referrals from the attorney representing defendant).

Our review of decisions reached in other jurisdictions also uncovered no instances in which the possibility of future contact or relationship was sufficient to warrant excluding a potential juror from the jury pool. On the contrary, as in Colorado, an attenuated, existing relationship did not give rise to sufficient “interest” in the proceedings on the part of the juror to support a challenge for cause. See Atwell v. Imseis, 37 Kan.App.2d 435, 154 P.3d 511, 514 (2007) (refusing to adopt “absolute rule” barring patients of defendant-physicians from serving as jurors in medical malpractice actions); Harris v. Hanson, 349 Mont. 29, 201 P.3d 151, 157 (2009) (trial court did not abuse its discretion by denying challenge for cause to potential juror in medical malpractice action whose employer, a medical clinic, had been represented by defense counsel's law firm); Larson v. Williams Elec. Coop., 534 N.W.2d 1, 3 (N.D.1995) (membership in defendant electric cooperative was not significant enough interest in litigation to warrant exclusion for cause of potential jurors).

These cases make clear that even when a current, attenuated relationship exists between a potential juror and a party or witness, the potential juror may not have sufficient interest in the action to warrant exclusion for cause. If the existence of such a relationship does not necessitate the potential juror's exclusion, the mere possibility of a future relationship between Juror M and defendant should not result in Juror M's dismissal under C.R.C.P. 47(e)(5).

Moreover, Juror M expressly stated that she believed she could “set aside [her] own personal understandings of thyroids and how they're managed and listen to experts and follow the judge's instruction at the end of the case.” The “trial court was entitled to accept” Juror M's assurances that she could and would follow its instructions. Freedman, 849 P.2d at 814.

Further, the trial court had the ability and the authority to weigh Juror M's demeanor and equivocation over the depth of her concern about the possibility of a future employment relationship with defendant. See People v. Sandoval, 733 P.2d 319, 321 (Colo.1987) (recognizing that trial court's are afforded broad discretion in determining challenges for cause because trial judge has...