O'DELL v. Miller, No. 29776.

CourtSupreme Court of West Virginia
Writing for the CourtSTARCHER, Justice.
Citation565 S.E.2d 407,211 W.Va. 285
PartiesSamuel R. O'DELL and Eva O'Dell, Plaintiffs Below, Appellants, v. Gary W. MILLER, M.D., and First Settlement Orthopaedics, Inc., an Ohio corporation, Defendants Below, Appellees.
Decision Date23 May 2002
Docket NumberNo. 29776.

565 S.E.2d 407
211 W.Va.
285

Samuel R. O'DELL and Eva O'Dell, Plaintiffs Below, Appellants,
v.
Gary W. MILLER, M.D., and First Settlement Orthopaedics, Inc., an Ohio corporation, Defendants Below, Appellees

No. 29776.

Supreme Court of Appeals of West Virginia.

Submitted February 19, 2002.

Decided May 23, 2002.

Dissenting Opinion of Justice Maynard June 26, 2002.


565 S.E.2d 409
Richard A. Monahan, Esq., Masters & Taylor, L.C., Charleston, for Appellants

John D. Hoffman, Esq., Mark A. Robinson, Esq., Flaherty, Sensabaugh & Bonasso, Charleston, for Appellees.

565 S.E.2d 408
STARCHER, Justice

The appellants, Samuel O'Dell and Eva O'Dell, have appealed a verdict rendered by a Wood County jury on August 25, 2000, in a medical malpractice case. The appellants argue that they were denied their right to empanel a fair and unbiased jury. We agree and reverse the trial court's ruling.

I.

Facts & Background

On March 17, 1997, Mr. O'Dell sustained a knee injury when he fell from the bed of his truck. On March 18, 1997, he sought medical assistance from Dr. Gary W. Miller, an orthopedic specialist, who diagnosed the injury as a simple strain to the medial collateral ligament. Dr. Miller's recommended treatment was for Mr. O'Dell to use a knee immobilizer and splint, and to use crutches for support until Mr. O'Dell returned in approximately two weeks for reevaluation. Dr. Miller next saw Mr. O'Dell on April 4, 1997, and recommended that Mr. O'Dell continue to use the knee immobilizer, splint, and crutches and to return for a follow-up visit in three weeks.

Unsatisfied with Dr. Miller's recommendations, on April 7, 1997, Mr. O'Dell sought additional opinions and was diagnosed as having completely torn some of his knee ligaments, as opposed to merely straining his knee ligaments. The physicians who provided Mr. O'Dell with a second opinion testified that if they had seen Mr. O'Dell within the two weeks immediately following his accident, they would have most likely recommended the option of early operative repair, and that early operative repair would have given Mr. O'Dell the best opportunity to regain full function of his knee. These physicians also testified that because of the lapse of time, an early operative repair option was no longer available.

During voir dire, a prospective juror revealed that he: (1) was currently and had for several years been represented by the law firm representing the appellee Dr. Miller; (2) had been a patient of Dr. Miller concerning a knee problem; and (3) understood that the results of this malpractice action could affect Dr. Miller's ability to continue to practice medicine. Nevertheless, the trial court refused to strike the prospective juror for cause and Mr. O'Dell was forced to use a preemptory strike to remove the challenged juror.

At trial, the jury found in favor of Dr. Miller and First Settlement Orthopaedics, Inc., finding that while Dr. Miller breached the standard of care, his breach was not the proximate cause of Mr. O'Dell's injuries.

Mr. O'Dell raises three assignments of error. But, because we are reversing the verdict on the issue of jury selection, we will not address the remaining two issues.

II.

Standard of Review

When reviewing a trial court's rulings, this Court applies a two-prong deferential

565 S.E.2d 410
standard of review to the trial court's findings and conclusions. See Doe v. Wal-Mart Stores, Inc., 210 W.Va. 664, 558 S.E.2d 663 (2001). "We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syllabus Point 2, in part, Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997)

The determination of whether a prospective juror should be excused to avoid bias or prejudice in the jury panel is a matter within the sound discretion of the trial judge. See West Virginia Department of Highways v. Fisher, 170 W.Va. 7, 289 S.E.2d 213 (1982) certiorari denied, Fisher v. West Virginia Department of Highways, 459 U.S. 944, 103 S.Ct. 257, 74 L.Ed.2d 201 (1982).

III.

Discussion

In West Virginia, parties to a lawsuit are entitled to impartial jurors.

Either party in any action or suit may, and the court shall on motion of such party, examine on oath any person who is called as a juror therein, to know whether he is a qualified juror, or is related to either party, or has any interest in the cause, or is sensible of any bias or prejudice therein; and the party objecting to the juror may introduce any other competent evidence in support of the objection; and if it shall appear to the court that such person is not a qualified juror or does not stand indifferent in the cause, another shall be called and placed in his stead for the trial of that cause.

W.Va.Code, 56-6-12 [1931].

Our Court has stated that "[a]ctual bias can be shown either by a juror's own admission of bias or by proof of specific facts which show the juror has such prejudice or connection with the parties at trial that bias is presumed." Syllabus Point 5, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996). "Bias, in its usual meaning, is an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality. Prejudice is more easily defined, for it means prejudgment and consequently embraces bias; the converse is not true." Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.1963).

The object of jury selection is to secure jurors who are not only free from improper prejudice and bias, but who are also free from the suspicion of improper prejudice or bias. Voir dire ferrets out biases and prejudices to create a jury panel, before the exercise of preemptory strikes, free of the taint of reasonably suspected prejudice or bias. Trial courts have an obligation to strike biased or prejudiced jurors for cause.

West Virginia case law has long held that trial courts must resolve any doubt of possible bias or prejudice in favor of the party seeking to strike for cause. "Any doubt the court might have regarding the impartiality of a juror must be resolved in favor of the party seeking to strike the potential juror. State v. West, 157 W.Va. 209, 200 S.E.2d 859, 866 (1973)." Davis v. Wang, 184 W.Va. 222, 226, 400 S.E.2d 230, 234 (1990) overruled on other grounds by Pleasants v. Alliance Corp., 209 W.Va. 39, 543 S.E.2d 320 (2000). In State v. Nett, 207 W.Va. 410, 533 S.E.2d 43 (2000) (per curiam), a prospective juror was unable to say whether he could "separate" himself on the issue of whether Nett's prior convictions for DUI would influence his decision on the current charge of DUI. In Nett, this Court stated that where there is any doubt about a juror's ability to be fair and impartial, the trial court must resolve the doubt in favor of the moving party and strike the challenged juror for cause. 207 W.Va. at 414, 533 S.E.2d at 47.

This State's practice of resolving any doubt about a prospective juror in favor of the party moving to strike the prospective juror is supported by sound reasoning. "A fair and impartial trial by jury can only be ensured by removing, for cause, prospective jurors who have experiences or attitudes that indicate a significant potential for prejudice

565 S.E.2d 411
in the matter at trial. Accepting such jurors' statements, that they can set aside their biases and be fair, creates the great risk of seating biased jurors, and a clear appearance of prejudice to a party." Patterson, Arthur H. and Nancy L. Neufer, Removing Juror Bias By Applying Psychology To Challenges For Cause, 7 Cornell J.L. & Pub. Pol'y 97, 106 (1997); See also, Daniel J. Sheehan, Jr. and Jill C. Adler, Voir Dire: Knowledge Is Power, 61 Tex. B.J. 630 (1998).

It is not for the juror to decide whether he can render a verdict solely on the evidence. The discretion to decide whether a prospective juror can render a verdict solely on the evidence is an issue for the trial judge to resolve. "It is not enough if a juror believes that he can be impartial and fair. The court in exercising [its] discretion must find from all of the facts that the juror will be impartial and fair and not be biased consciously or subconsciously. A mere statement by the juror that he will be fair and afford the parties a fair trial becomes less meaningful in light of other testimony and facts which at least suggest the probability of bias. The court in exercising discretion must be convinced that a probability of bias of the juror does not exist. The test of a juror's disqualification is the probability of bias or prejudice as determined by the court." West Virginia Department of Highways v. Fisher, 170 W.Va. 7, 12-13, 289 S.E.2d 213, 219 (1982) (quoting Lambert v. Sisters of St. Joseph of Peace, 277 Or. 223, 560 P.2d 262 (1977)). In W.Va. Dept. of Highways v. Fisher, 170 W.Va. 7, 289 S.E.2d 213 (1982), this Court, quoting State v. Pendry, 159 W.Va. 738, 227 S.E.2d 210, 217 (1976), overruled in part on other grounds, Jones v. Warden, 161 W.Va. 168, 241 S.E.2d 914 (1978), said:

It may not always be sufficient merely to ask a juror whether he is sensible of any bias or prejudice and to accept either his denial or claim of bias or
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44 practice notes
  • Smith v. Clark, No. 17-1086
    • United States
    • Supreme Court of West Virginia
    • June 10, 2019
    ...be excused to avoid bias or prejudice in the jury panel is a matter within the sound discretion of the trial judge." O’Dell v. Miller , 211 W. Va. 285, 288, 565 S.E.2d 407, 410 (2002) (internal citation omitted).Often, trial judges are faced with the task of deciding whether to keep a juror......
  • State v. Sutherland, No. 11–0799.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2013
    ...be automatically disqualified for making a biased statement if the statement is inconclusive or vague. See Syl. pt. 4, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002). It is this exception in Newcomb that has modified any general application of Greer on the issue of bias. In the inst......
  • State v. Newcomb, No. 34142.
    • United States
    • Supreme Court of West Virginia
    • June 23, 2009
    ...and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair." Syllabus Point 5, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002). 2. "The language of W.Va.Code, 62-3-3 (1949), grants a defendant the specific right to reserve his or her peremptory c......
  • State Va. v. White, No. 35529.
    • United States
    • Supreme Court of West Virginia
    • February 10, 2011
    ...be excused to avoid bias or prejudice in the jury panel is a matter within the sound discretion of the trial judge.” O'Dell v. Miller, 211 W.Va. 285, 288, 565 S.E.2d 407, 410 (2002). See also State v. Miller, 197 W.Va. 588, 605, 476 S.E.2d 535, 552 (1996) (“The trial court has broad discret......
  • Request a trial to view additional results
44 cases
  • Smith v. Clark, No. 17-1086
    • United States
    • Supreme Court of West Virginia
    • June 10, 2019
    ...be excused to avoid bias or prejudice in the jury panel is a matter within the sound discretion of the trial judge." O’Dell v. Miller , 211 W. Va. 285, 288, 565 S.E.2d 407, 410 (2002) (internal citation omitted).Often, trial judges are faced with the task of deciding whether to keep a juror......
  • State v. Sutherland, No. 11–0799.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2013
    ...be automatically disqualified for making a biased statement if the statement is inconclusive or vague. See Syl. pt. 4, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002). It is this exception in Newcomb that has modified any general application of Greer on the issue of bias. In the inst......
  • State v. Newcomb, No. 34142.
    • United States
    • Supreme Court of West Virginia
    • June 23, 2009
    ...and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair." Syllabus Point 5, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002). 2. "The language of W.Va.Code, 62-3-3 (1949), grants a defendant the specific right to reserve his or her peremptory c......
  • State Va. v. White, No. 35529.
    • United States
    • Supreme Court of West Virginia
    • February 10, 2011
    ...be excused to avoid bias or prejudice in the jury panel is a matter within the sound discretion of the trial judge.” O'Dell v. Miller, 211 W.Va. 285, 288, 565 S.E.2d 407, 410 (2002). See also State v. Miller, 197 W.Va. 588, 605, 476 S.E.2d 535, 552 (1996) (“The trial court has broad discret......
  • Request a trial to view additional results

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