Gainesville Radiology Group v. Hummel

• Decision Date: 03 May 1993
• Docket Number: No. S92G1401,S92G1401
• Citation: 263 Ga. 91,428 S.E.2d 786
• Parties: GAINESVILLE RADIOLOGY GROUP et al. v. Mary Elaine HUMMEL.
• Court: Georgia Supreme Court

Page 786

428 S.E.2d 786

263 Ga. 91

GAINESVILLE RADIOLOGY GROUP et al. v. Mary Elaine HUMMEL.

No. S92G1401.

Supreme Court of Georgia.

May 3, 1993.

Weymon H. Forrester, James E. Brim, III, Forrester & Brim, Gainesville, for Gainesville Radiology Group et al.

Don C. Keenan, The Keenan Law Firm, Atlanta, Jeffrey W. Lasky, Kennan & Ashman, Savannah, Alfred L. Allgood, Gainesville, for Hummel.

David S. Bills, Atlanta.

HUNSTEIN, Justice.

We granted certiorari in this case, Hummel v. Gainesville Radiology Group, P.C., 205 Ga.App. 157, 421 S.E.2d 333 (1992), to consider: "Whether the [opinion of the] Court of Appeals undermines the discretion of trial judges in matters of juror conduct and creates conflicting precedents." We conclude that it does and reverse the Court of Appeals.

Appellee, Hummel, brought a medical malpractice action against the appellants, James C. Strittmatter, M.D. and Gainesville Radiology Group, P.C., a professional corporation by whom Dr. Strittmatter was employed (hereinafter Gainesville Radiology), alleging that Gainesville Radiology's failure to detect her breast cancer following a mammogram constituted a negligent breach of the applicable standard of care owed to her. The case was tried before a jury which returned a verdict for Gainesville Radiology. During the voir dire examination of the jurors, Hummel's counsel asked the jury panel whether any of them or any member of their immediate families had been diagnosed as having breast cancer or any other cancer. The record of the voir dire examination reveals that juror Griffin, an eighty-two-year old man, failed to respond to the inquiry. The trial court noted that prior to voir dire, the jurors completed questionnaires. The questionnaire of juror Griffin, together with his demeanor, revealed that he was very possibly inattentive. Nevertheless, Hummel did not request his individual examination. Moreover, as further noted by the trial court, Hummel did not strike from the panel a number of jurors who answered the voir dire cancer questions affirmatively. Following the jury's defense verdict, Hummel's counsel learned that juror Griffin's wife had died in 1942 of cancer of the liver and breast. Hummel subsequently moved for a new trial based on, among other grounds, the juror's violation of his oath which, she argued, violated her right to a fair and impartial jury. In opposition to her motion and as permitted by OCGA § 9-10-9, Gainesville Radiology submitted the affidavits of juror Griffin, another juror, and the jury foreman. Juror Griffin stated that he simply had not heard the questions regarding cancer. The others averred that juror Griffin had not mentioned his wife or her illness nor had he attempted to persuade the other members of the jury as to any particular position during their deliberations. The trial court denied the motion. The Court of Appeals reversed, holding that the juror's silence, which the court regarded as tantamount to giving an untruthful answer, could not be construed as harmless error, relying on Martin v. State, 168 Ga.App. 623, 309 S.E.2d 899 (1983); First of Georgia Insurance Co. v. Worthington, 165 Ga.App. 303(6), 299 S.E.2d 567 (1983); Pierce v. Altman, 147 Ga.App. 22, 248 S.E.2d 34 (1978); Glover v. Maddox, 100 Ga.App. 262, 111 S.E.2d 164 (1959).

OCGA § 15-12-133 was enacted to protect the crucial right of litigants to fair and impartial jurors and as such, it sets forth certain specific areas in which counsel shall have the right to examine members of the jury panel, including, "any matter or thing which would illustrate any interest of the juror in the case, ... the relationship or acquaintance of the juror with the parties or counsel therefor, [and] any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action or the counsel or parties thereto...." Id. To be sure, the process of voir dire would be rendered an ineffectual exercise if jurors were not required to give truthful answers to the questions asked. See Fidelity Nat. Bank v. Kneller, 194 Ga.App. 55(1), 390 S.E.2d 55 (1989). However, we do not construe OCGA § 15-12-133 to mean that any discrepancy between the response of a juror (or the lack of same) elicited on voir dire and the truth as counsel may subsequently discover it, is alone sufficient to support the grant of a motion for a new trial. Neither has the Court of Appeals consistently so construed that code section. Some of the Court of Appeals decisions cited to us reveal an effort on the part of the court to make distinctions based on the subject matter of the pertinent voir dire inquiry; those bearing on matters enumerated in OCGA § 15-12-133 being regarded as questions to which an untruthful answer or non-response necessarily raises a presumption of bias or harm. That presumption, however, coupled with the loss of the movant's opportunity to have exercised a peremptory strike with respect to the offending juror, has resulted in new trials in a number of instances, including some in which there was evidence offered to show that no actual bias existed. ¹

In the present case Hummel has failed to demonstrate any bias or prejudice resulting from juror Griffin's failure to respond in that there was no showing that a truthful response from the offending juror would have caused Hummel to strike him from the jury and because other jurors averred that juror Griffin did not seek to persuade the other members vis-a-vis his...