Khoury v. Seastrand
| Decision Date | 28 July 2016 |
| Docket Number | 65007,Nos. 64702,65172.,s. 64702 |
| Citation | 132 Nev. Adv. Op. 52,377 P.3d 81 |
| Parties | Raymond Riad KHOURY, Appellant, v. Margaret SEASTRAND, Respondent. Raymond Riad Khoury, Appellant, v. Margaret Seastrand, Respondent. Raymond Riad Khoury, Appellant, v. Margaret Seastrand, Respondent. |
| Court | Nevada Supreme Court |
Hall Jaffe & Clayton, LLP, and Steven T. Jaffe, Las Vegas; Harper Law Group and James E. Harper, Las Vegas; Houser & Allison, APC, and Jacob S. Smith, Las Vegas; and Lewis Roca Rothgerber Christie LLP and Daniel F. Polsenberg, Joel D. Henriod, and Abraham G. Smith, Las Vegas, for Appellant.
Richard Harris Law Firm and Alison M. Brasier, Benjamin P. Cloward, and Richard A. Harris, Las Vegas, for Respondent.
Before the Court En Banc.1
, J.:
As any trial attorney is aware, the jury voir dire process can be as important to the resolution of their claim as the trial itself. In this case we are asked to consider whether an attorney may ask prospective jurors questions concerning a specific verdict amount to determine potential bias or prejudice against returning large verdicts and whether repeatedly asking questions about that specific verdict amount results in jury indoctrination warranting a mistrial. We also consider the question of when a district court abuses its discretion in dismissing jurors for cause under Jitnan v. Oliver, 127 Nev. 424, 254 P.3d 623 (2011)
.
We hold that while it is permissible for a party to use a specific award amount in questioning jurors regarding their biases towards large verdicts, it is the duty of the district court to keep the questioning within reasonable limits. When the district court fails to do so, this can result in reversible error due to jury indoctrination. We also distinguish our holding in Jitnan to emphasize that a juror's statements must be taken as a whole when deciding whether to dismiss for cause due to bias. Just as detached language considered alone is insufficient to establish that a juror is unbiased, it is also insufficient to establish that a juror is biased.
In the current case, we hold that, while troubling, the plaintiff's questioning of the jurors during voir dire did not reach the level of indoctrination. Furthermore, we hold that the district court abused its discretion by dismissing for cause five jurors because their statements, when taken as a whole, did not indicate that they were biased against large verdict amounts. However, the district court's error was harmless. Next, the district court did not abuse its discretion by admitting opinion and causation testimony by respondent's treating physician, by admitting testimony by respondent's expert witness, or by excluding evidence of the amount that respondent's medical providers received for the sale of her medical liens. However, the district court did abuse its discretion by excluding evidence of the medical lien's existence to prove bias in Seastrand's medical providers, but the error was harmless. Lastly, we hold that the district court abused its discretion by awarding respondent expert witness fees in excess of $1,500 per expert because it did not state a basis for its award. Therefore, we reverse the district court's decision as to the award of expert witness fees and remand to the district court with instructions to redetermine the amount of expert witness fees and, if greater than $1,500 per witness, to state the basis for its decision.
Respondent Margaret Seastrand and appellant Raymond Riad Khoury were in an automobile accident where Khoury's car rear-ended Seastrand's car. Following the accident, Seastrand received extensive treatment to both her neck and back, including surgeries. Seastrand brought the underlying personal injury action against Khoury to recover damages.
Khoury stipulated to liability for the accident, and the only issues contested at trial were medical causation, proximate cause, and damages. Khoury argued that Seastrand's injuries leading to the surgeries were preexisting and were not caused by the accident. During voir dire, Seastrand stated that she was seeking $2 million in damages and was permitted to question the jurors regarding whether they had hesitations about potentially awarding that specific verdict amount. After this questioning, the district court granted Seastrand's motion to dismiss several jurors for cause but denied Seastrand's motion to dismiss five other jurors for cause.
However, the next day, the district court reconsidered its previous ruling and dismissed those five jurors for cause.
During trial, multiple expert witnesses testified, including Dr. Jeffrey Gross, a neurological expert, and Dr. William S. Muir, one of Seastrand's treating physicians. After a ten-day trial, the jury returned a verdict in the amount of $719,776. Seastrand then filed a memorandum of costs in the amount of $125,238.01 and a motion for attorney fees. Khoury opposed the motion and moved to retax costs. The district court granted in part Seastrand's motion for costs, awarding her $75,015.61, denied Seastrand's motion for attorney fees, and denied Khoury's countermotion to retax costs. Khoury then made a motion for a new trial, alleging various errors. The district court denied Khoury's motion. Khoury appeals from the judgment, the costs award, and the order denying his new trial motion.
Khoury raises the following issues on appeal: whether the district court abused its discretion by (1) denying Khoury's motion for a mistrial due to jury indoctrination, (2) dismissing jurors for cause that displayed concerns about their ability to award large verdicts and/or damages for pain and suffering, (3) admitting causation and opinion testimony by one of Seastrand's treating physicians, (4) admitting testimony by one of Seastrand's expert witnesses that was outside the scope of his specialized knowledge and/or undisclosed in a timely expert report, (5) excluding evidence of the amount Seastrand's medical providers received for the sale of her medical liens, (6) excluding evidence of her medical liens, (7) refusing to grant a new trial following Seastrand's use of the word “claim” during opening arguments, and (8) awarding costs to Seastrand.
The voir dire process
Khoury argues that the district court abused its discretion by allowing Seastrand to voir dire the jury panel about their biases regarding large verdicts. Khoury contends that Seastrand's questioning indoctrinated the jury to have a disposition towards a large verdict. Khoury argues that by asking jurors if they were uncomfortable with a verdict in excess of $2 million, Seastrand's attorney “improperly implanted a numerical value in the minds of the jury as representative of plaintiff's damages before the jurors heard or considered any admitted evidence.” Therefore, Khoury urges this court to “rule that such questions are per se improper.”
The decision whether to grant or deny a motion for mistrial is within the trial court's discretion. Owens v. State, 96 Nev. 880, 883, 620 P.2d 1236, 1238 (1980)
.
Questioning jurors during voir dire about specific verdict amounts is not per se indoctrination
“The purpose of jury voir dire is to discover whether a juror will consider and decide the facts impartially and conscientiously apply the law as charged by the court.” Lamb v. State, 127 Nev. 26, 37, 251 P.3d 700, 707 (2011)
(internal quotation marks omitted). “While counsel may inquire to determine prejudice, he cannot indoctrinate or persuade the jurors.” Scully v. Otis Elevator Co., 2 Ill.App.3d 185, 275 N.E.2d 905, 914 (1971).
Although we have not yet considered the issue of jury indoctrination in the civil context, we have considered it, albeit briefly, in criminal proceedings. See Hogan v. State, 103 Nev. 21, 23, 732 P.2d 422, 423 (1987)
; see also
Johnson v. State, 122 Nev. 1344, 1354–55, 148 P.3d 767, 774 (2006). In Hogan, the court indicated that it was not an abuse of discretion for the district court to refuse to allow voir dire questions that were “aimed more at indoctrination than acquisition of information.” 103 Nev. at 23, 732 P.2d at 423. In Johnson, the court indicated that allowing the State to ask “prospective jurors about their ability to carry out their responsibilities [,]” by sentencing the defendant to death, was within the district court's discretion. 122 Nev. at 1354–55, 148 P.3d at 774.
Other jurisdictions have considered the indoctrination issue in the civil context and have addressed the particular issue raised here—whether asking jurors if they have any hesitations about awarding a specific amount of damages results in indoctrination per se. In Kinsey v. Kolber, the Appellate Court of Illinois held that questioning jurors about specific verdict amounts was not indoctrination because it “tended to uncover jurors who might have bias or prejudice against large verdicts.” 103 Ill.App.3d 933, 59 Ill.Dec. 559, 431 N.E.2d 1316, 1325 (1982)
; see also
Alternatively, some jurisdictions have found that it is within the discretion of the district court to refuse to allow the plaintiff to ask questions about specific dollar amounts. This is because “they may tend to influence the jury as to the size of the verdict, and may lead to the impaneling of a jury which is predisposed to finding a higher verdict by its tacit promise to return a verdict for the amount specified in the question during the voir dire examination.” Trautman v. New Rockford–Fessenden Co–op Transp. Ass'n, 181 N.W.2d 754, 759 (N.D.1970)
; see also
Henthorn v. Long, 146 W.Va. 636, 122 S.E.2d 186, 196 (1961). However, these courts did not state that questions about specific...
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