Johnson v. New Britain General Hosp.

• Decision Date: 26 May 1987
• Docket Number: No. 12961,12961
• Court: Connecticut Supreme Court
• Parties: Carl E. JOHNSON, Administrator (ESTATE OF Donna M. JOHNSON), et al. v. NEW BRITAIN GENERAL HOSPITAL, et al.

Page 1319

525 A.2d 1319

203 Conn. 570

Carl E. JOHNSON, Administrator (ESTATE OF Donna M. JOHNSON), et al. v. NEW BRITAIN GENERAL HOSPITAL, et al.

No. 12961.

Supreme Court of Connecticut.

Argued Feb. 6, 1987.

Decided May 26, 1987.

George E. Tillinghast, Jr., Glastonbury, for appellant (plaintiff).

Karen P. Blado, Hartford, for appellees (defendant George H. Bray et al.).

John R. FitzGerald, Hartford, with whom, on the brief, were Roland F. Young III and Jack C. Steigelfest, Hartford, for appellees (named defendant et al.).

Before ARTHUR H. HEALEY, SHEA, SANTANIELLO, KULAWIZ and FRANCIS X. HENNESSY, JJ.

ARTHUR H. HEALEY, Associate Justice.

The sole issue on this appeal is whether the trial court erred in denying the plaintiff's challenge for cause of a juror who allegedly had expressed actual bias, prejudice and partiality in his voir dire testimony.

In January, 1986, the plaintiff, Carl E. Johnson, individually and in his capacity as administrator of his wife's estate, brought this action for medical malpractice against the following defendants: New Britain General Hospital; Dr. David Mucci, a resident intern; Dr. George H. Bray; and the New Britain Surgical Group, Inc., Bray's professional corporation. The plaintiff's amended complaint alleged negligence on the part of the defendants in the postoperative care given to the plaintiff's deceased spouse, Donna Johnson. The first three counts alleged an action for wrongful death, and counts four, five and six sought recovery for medical expenses incurred by the plaintiff.

At trial, numerous expert witnesses testified for both parties and presented their views as to both the cause of the decedent's death and the quality of the postoperative care which had been given to her. After hearing the testimony and the judge's instructions on the applicable law, the jury returned a verdict in favor of the defendants.

In this appeal, the plaintiff claims that the trial court erred in overruling and denying his challenge for cause of a juror who, according to the plaintiff, had expressed actual bias, prejudice and partiality in his voir dire testimony. ¹

The record reveals the following underlying facts: On January 17, 1986, after five jurors had already been selected and after the plaintiff had exhausted all of his peremptory challenges juror number 3707 was questioned by counsel. ² The juror was first questioned by the defendants' attorneys. After establishing that the juror was a retired dentist who had practiced for thirty years, the defendants' counsel asked the juror what his general feelings were with respect to malpractice litigation. ³ The juror answered: "I think I would have to say that after thirty years of practice, I probably as most of my cohorts, would have an antagonism against malpractice suits and awards." The juror stated that his "antagonism" is based on the fact that unjustified claims have been made. The juror went on to acknowledge, however, that some claims are justified and that he could make a fair and impartial judgment of the issues presented by the evidence in this particular case. ⁴ The juror said that he never had been involved in any litigation involving malpractice.

The juror was next questioned by the plaintiff's counsel. In response to the attorney's questions, the juror again indicated that he was antagonistic toward malpractice suits and awards. He told the plaintiff's counsel, however, that his attitude was general and not specific. ⁵ He also said that he believed that in certain situations hospitals or doctors render care that is less than the accepted standard and that "despite [his] general view," he recognized that "some of these suits can be meritorious." ⁶ When asked if he would be able to be fair and impartial in making an assessment of damages, he stated: "I think I would be fair. You might not think so." Upon further examination, he stated: "My general opinion is that many cases are frivolous.... Many awards are exorbitant." When asked by the plaintiff's counsel whether his general feeling about malpractice cases would affect him in this particular case, the juror stated: "I think in specific cases, I could accept any testimony and come out with a conclusion about it." When asked whether, if he found one of the doctors at fault, he could render a verdict on behalf of the plaintiff, he stated: "I believe I would not hestitate." When asked if he "would in any way favor the defendants with respect to the award or damages that might be awarded, if [the jury] found for the plaintiff," he stated: "I do not think so."

The court also questioned the juror. In response to the court's question as to whether he would approve of himself sitting on the jury if he were the plaintiff, he initially indicated to the court, "[p]robably not." In response to further questioning, however, the juror indicated that he misunderstood the court's question and stated that he would consider himself to be a "fair and impartial juror." ⁷ After the court permitted each party the opportunity for further questioning, the plaintiff's counsel requested that the juror be excused for cause. The court denied the request. In denying the request, the court emphasized that the plaintiff's position lacked legal support. ⁸ In addition, the court found that the juror was unbiased and that he was capable of rendering a fair and impartial verdict. ⁹ After explaining its reasons for denying the plaintiff's challenge, the court cautioned the juror not to be influenced by evidence originating from outside the courtroom and to decide the case "solely upon the basis of the law which I am going to instruct you on at the conclusion of this case." ¹⁰ Additionally, the court, in its opening remarks to the jury, explained that the jury was not to discuss the case and that it was not to "try to find out anything about the case from any other source except from what you hear in court." ¹¹

I

Initially, we must determine whether the claim of the plaintiff was adequately raised in the trial court. Practice Book § 4185 provides in part that "[t]he supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial...." The defendants, New Britain General Hospital and David Mucci, argue that the claim raised on appeal was not "distinctly" raised below and, therefore, does not warrant appellate review. We disagree.

At the time the plaintiff moved to excuse this juror for cause, he specifically mentioned that one of the bases for removal was that the juror was biased. The plaintiff's counsel stated, inter alia, "I think that his answers have indicated that this is a bias, which would prejudice the plaintiff in the case.... I am arguing, that this juror would be a biased juror ... [t]his juror said he is antagonistic towards malpractice cases and awards. It is more than that. This is prejudice, this is a bias, this is a partiality. This is more prejudice, partiality or bias, than I have seen in any of the prospective jurors. This is the real thing. This is why I am asking the court to entertain the discretion it has to keep the jury pure and without bias." On the basis of the foregoing, we conclude that the plaintiff adequately has preserved this claim for review by this court.

II

The plaintiff claims that the voir dire testimony of the juror indicates actual bias on his part and that because actual bias had been established, the plaintiff's challenge for cause should have been granted. Specifically, the plaintiff relies in his brief on the following characterization of the juror's voir dire testimony as establishing actual bias or prejudice: "[H]is opinion after thirty years of practice as a D.D.S. is that he has an antagonism against malpractice suits and awards ... that [the] antagonism is based upon unjustified claims having been made ... he is generally against malpractice cases and awards too because he thinks they are becoming a social burden because of [the dollar] amounts ... he has formed the opinion that he is generally against such claims and actually has a distaste for them ... his general opinion that many cases are frivolous and many awards exorbitant ... his antagonism is based upon his view that malpractice cases are frivolous, brought frivolously and awards--exorbitant awards ... that he did not know whether his views would spill over into this case if he were chosen to sit as a juror ... and his scale of justice is tipped in favor of the defendants at the outset." The plaintiff argues that "[i]t makes no difference that [the juror] during his voir dire testimony with much equivocation indicated that he could be fair and impartial." The plaintiff maintains that "[s]uch equivocation coupled with his admissions of actual bias or prejudice ... called for the trial court ... to sustain the plaintiff's challenge for cause." We disagree.

In Connecticut, the disqualification of a juror may be based upon the General Statutes or upon the rules of the common law. General Statutes §§ 51-217(a), 51-240; McCarten v. Connecticut Co., 103 Conn. 537, 542, 131 A. 505 (1925). ¹² In this appeal, the plaintiff does not claim that the juror is disqualified by the General Statutes but does claim that the juror should be disqualified under the common law. ¹³

At common law, a challenge to an individual juror for bias or prejudice can be either a principal challenge or a challenge to the favor. McCarten v. Connecticut Co., supra. A principal challenge may arise when the connection between the prospective juror and either party is of so close a nature that, when the facts concerning the relationship or interest are proven or when the prospective juror "has formed or expressed an opinion on the question at issue," the disqualification is conclusively presumed. Id.; see, e.g., State v. Kokoszka, 123 Conn. 161, 164, 193 A. 210 (1937). A challenge to the favor, on the other hand, is one where the connection, being more remote, tends to...