Evans By and Through Evans v. Doty

• Decision Date: 12 December 1991
• Docket Number: No. 900132-CA,900132-CA
• Citation: 824 P.2d 460
• Parties: Corinne EVANS, By and Through her guardians ad litem J. Blake EVANS and Donalee J. Evans, Plaintiffs and Appellants, v. Donald B. DOTY, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 460

824 P.2d 460

Corinne EVANS, By and Through her guardians ad litem J Blake EVANS and Donalee J. Evans, Plaintiffs and Appellants, v. Donald B. DOTY, Defendant and Appellee.

No. 900132-CA.

Court of Appeals of Utah.

Dec. 12, 1991.

Certiorari Denied July 16, 1992.

Jackson Howard, Kevin J. Sutterfield, and Leslie W. Slaugh, Provo, for plaintiffs and appellants.

David H. Epperson and Jaryl L. Rencher, Salt Lake City, for defendant and appellee.

Before BILLINGS, GREENWOOD and JACKSON, JJ.

AMENDED OPINION ¹

BILLINGS, Associate Presiding Judge:

This is an appeal in a medical malpractice action following a jury verdict in favor of the defendant doctor. On appeal, plaintiff asserts that: (1) during voir dire, the trial judge refused to ask prospective jurors questions sufficient to allow the plaintiff to exercise her peremptory challenges; and (2) there is insufficient evidence to support the jury verdict and, therefore, plaintiff is entitled to a new trial. We affirm.

FACTS

Plaintiff, Corinne Evans, was born in January 1982, six weeks premature and suffering from Downs Syndrome. In October 1983, Corinne was hospitalized for severe pneumonia. During her hospital stay, doctors discovered Corinne also suffered from extreme pulmonary hypertension. Tests revealed the hypertension was caused by a patent ductus arteriosus. The ductus arteriosus is a blood vessel which bypasses the non-functioning lungs of an infant prior to birth. At birth, the ductus normally closes spontaneously. In Corinne's case, however, the ductus failed to completely close, resulting in the defect.

Corinne's parents selected the defendant, Doctor Donald J. Doty, to operate on Corinne to correct the condition. Dr. Doty is a certified cardio-thoracic surgeon. Dr. Doty had performed more than one hundred patent ductus repairs, and has written extensively about the procedure.

Dr. Doty successfully repaired the ductus. However, during surgery, Corinne's recurrent laryngeal nerve, which runs near the ductus, was permanently damaged. As a result, Corinne's left vocal cord was paralyzed. Following surgery, Corinne, through her parents, commenced this law suit, claiming Dr. Doty negligently injured the nerve during surgery.

During voir dire Corinne's attorney submitted many questions; in fact, the voir dire lasted two hours. However, over Corinne's attorney's objections, the trial judge refused to ask several questions designed to probe the jurors' exposure to tort reform propaganda. After a four-day trial the jury returned a verdict finding Dr. Doty was not negligent.

VOIR DIRE

First, Corinne claims the trial judge improperly refused to ask potential jurors certain questions during voir dire and, as a result, the voir dire was insufficient to allow her counsel to intelligently exercise her peremptory challenges. Corinne does not claim the trial judge failed to remove certain jurors for cause. ²

This court reviews challenges to a trial judge's voir dire under an "abuse of discretion" standard. Doe v. Hafen, 772 P.2d 456, 457-58 (Utah App.1989), cert. denied, 800 P.2d 1105 (Utah 1990). A trial court abuses its discretion and thus 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." State v. Bishop, 753 P.2d 439, 448 (Utah 1988).

Voir dire has two distinct and equally important purposes: the first is to detect actual juror bias--the basis of a "for-cause" challenge; and the second is to allow parties to collect sufficient information to intelligently exercise peremptory challenges. See Ostler v. Albina Transfer Co., Inc., 781 P.2d 445, 447 (Utah App.1989), cert. denied, 795 P.2d 1138 (Utah 1990); Hafen, 772 P.2d at 457. In this case we are concerned with the second category. As we recently stated, a "trial judge should liberally allow questions 'designed to discover attitudes and biases, both conscious and subconscious,' even though such questions go beyond that needed for challenges for cause." Hafen, 772 P.2d at 457 (quoting State v. Worthen, 765 P.2d 839, 845 (Utah 1988)). The Utah Supreme Court has elaborated on the purpose of peremptory challenges:

Although a trial judge has some discretion in limiting voir dire examinations, ... that discretion should be liberally exercised in favor of allowing counsel to elicit information from prospective jurors.... Indeed, 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).

Accordingly, it is not enough for a trial judge to ask questions merely to discover a potential juror's overt biases. The judge must also allow counsel the opportunity to hear responses to questions that may indicate hidden or subconscious attitudes. Without such an opportunity, the prospect of impaneling a fair and impartial jury is diminished.

At trial, Corinne's counsel submitted a list of proposed voir dire questions including several general questions probing the prospective jurors' exposure to tort reform information. Additionally, Corinne's counsel identified and offered a specific example of such propaganda, a cover article in the March 24, 1986 issue of Time magazine entitled "Sorry, Your Policy Is Cancelled." Corinne asked the court to question the potential jurors about any exposure to this magazine article. Some of the specific questions Corinne proposed included Have you read magazine or newspaper articles or other literature about medical negligence?

Did any of you read Time magazine in March, 1986?

Have you ever signed any petition on the issue of negligence?

Have you seen anything in your doctor's office about negligence?

Have you discussed [medical negligence] with your family doctor or friends?

Rather than asking the prospective jurors Corinne's requested questions in the area of exposure to "tort reform" material, the trial judge asked:

Now, many of you have heard and read articles, and there have been television programs, with regard to negligence on the part of doctors. Do any of you have any strong feelings as a result of seeing or reading anything about medical negligence that would make it so that you couldn't be fair and impartial here today?

Now, do any of you have any strong feelings about anyone bringing a lawsuit against a doctor?

Following the first question, two jurors indicated their inability to be fair and impartial, and the trial judge dismissed them for cause. There was no response to the other question. At the conclusion of the two-hour voir dire, the judge impaneled the jury over plaintiff's objections.

Dr. Doty claims the trial judge properly refused to ask the questions posed by Corinne's attorney as these questions would have improperly introduced the issue of insurance. Though Corinne's requested questions did not directly refer to insurance, Dr. Doty claims that because they focused on potential "tort-reform" bias, the questions indirectly suggested that Dr. Doty carried liability insurance and thus were properly excluded on that basis.

Recently, many jurisdictions have been faced with the issue of when a plaintiff may infuse insurance into voir dire questioning. The issue of insurance-related voir dire questioning has arisen in three distinct situations. First, plaintiffs have sought to inquire into prospective jurors' relationships with insurance companies. See, e.g., Broberg v. Hess, 782 P.2d 198, 200 (Utah App.1989); Hafen, 772 P.2d at 458; Saltas v. Affleck, 99 Utah 381, 105 P.2d 176, 179 (1940); Balle v. Smith, 81 Utah 179, 17 P.2d 224, 227-32 (1932). Second, plaintiffs have requested permission to determine whether jurors have been exposed to a specific, identifiable media report or advertising campaign; often where insurance companies have funded such a campaign to convince the public of the "evils" of modern tort law and the impact of large jury awards on insurance premiums. See, e.g., Ostler, 781 P.2d at 447; Borkoski v. Yost, 182 Mont. 28, 594 P.2d 688, 689-90 (1979). Finally, plaintiffs have sought to inquire of jurors as to their general knowledge about and attitudes toward medical negligence and tort reform without regard to a specific advertising campaign or news media report. See, e.g., Hafen, 772 P.2d at 458-59; Barton v. Owen, 71 Cal.App.3d 484, 139 Cal.Rptr. 494, 508-09 (1977). In this case, both the second and third categories described above are at issue.

The underlying concern in each of these situations is whether discussing insurance in front of jurors may lead the jurors to infer that the defendant carries liability insurance. ³ Utah courts have never adopted a rule that discussion of insurance is per se improper, but instead have recognized that whether a plaintiff may discuss insurance with the jury must be evaluated from the particular facts of the individual case.

[P]laintiff in a personal injury or death case, if acting in good faith for the purpose of ascertaining the qualifications of jurors, and not merely for the purpose of informing them that defendant is insured, may in one form or another inquire of prospective jurors on voir dire examination with reference to their interest in or connection with insurance companies.

Balle, 17 P.2d at 229. More recently, this court has recognized that the issue of insurance voir dire questioning involves a delicate balancing of the respective interests of the parties, and that plaintiffs must conduct any insurance-related inquiry in good faith. Broberg, 782 P.2d at 200-01.

Both Corinne and Dr. Doty...