Poet v. Traverse City Osteopathic Hospital

Riley, C.J.

I respectfully dissent. While I agree with the four-part test adopted by the majority, I disagree with the majority’s application of the test in the instant case. Rather, I would hold that under the first prong, the trial court did not abuse its discretion in refusing to excuse juror Primo for cause. Therefore, I would reverse the decision of the Court of Appeals and reinstate the decision of the trial court.

The majority correctly recognizes that the ulti *260 mate decision whether to grant or deny a party’s challenge on voir dire falls within the trial court’s discretion. Consequently, we must determine whether the trial court abused its discretion in refusing to grant plaintiffs’ challenge for cause. As such, the trial court’s action must oppose any exercise of reason and be " 'so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will.’ ” Ante, p 252; Spalding v Spalding, 355 Mich 382, 385 ; 94 NW2d 810 (1959).

As applied in the instant case, the majority concludes that the trial court abused its discretion in refusing to excuse juror Primo for cause upon the basis of the following reasoning: "the totality of Primo’s profession as a registered nurse, her special skill in reviewing quality-of-care issues in neonatal intensive care cases, her close working relationship with the wife of the hospital vice-president, her acquaintance with the vice-president himself, a witness in this case, and her conceded fairly’ 'strong personal feelings about’ damages, render the risk of uncompromising bias clear.” Ante, pp 253-254 (emphasis added). It is only by combining juror Primo’s statement regarding damages with the first four factors that the majority can reach the conclusion that the trial court abused its discretion in refusing to grant plaintiffs’ challenge for cause. 1 However, plaintiffs never raised these factors as a basis for dismissing juror Primo for cause. 2 Rather, plaintiffs relied *261 entirely upon Primo’s statements pertaining to damages as the basis for the trial court’s failure to dismiss juror Primo for cause. In my opinion, the majority errs in considering these other factors.

More importantly, even assuming that the majority only relied upon juror Primo’s statements regarding the size of a potential damages recovery, I disagree that the trial court abused its discretion in refusing to grant plaintiffs’ challenge for cause. The trial court began voir dire examination with a few introductory statements and questions concerning the instant case, a medical malpractice action. Before the introduction of any evidence, plaintiffs’ attorney asked the question:

The Plaintiffs intend to offer evidence which will indicate that young Matthew is a quadrapalegic [sic] child who is blind, suffers from cerebral palsy, and is essentially unable to do anything for himself; that he is going to require twenty-four-hour care for the rest of his life, and that he will be unable to be gainfully employed for the rest of his life, hence the Plaintiffs will further claim that therefore Matthew and his parents, Jeffrey and Barbara, have suffered very, very extensive damages. We intend to establish and offer evidence that would indicate that damages by all the parties are in the approximate amount of in excess of eight million dollars. It’s a very, very large figure, one that is — could be shocking to hear. Would any of you, if you find that the Plaintiffs have, in fact, by the burden of proof that’s required of us, established negligence, proximate cause and damages in such an extensive amount — if you are able to find that, that we’ve met our burden, would there be any of you who would not be able to award such damages just because of the nature that they are in such a large amount?

The majority believes that juror Primo’s responses to this and similar questions warrant reversal *262 of the decision of the trial court. However, in my opinion, juror Primo’s statements did not constitute error requiring reversal when considered in their proper context. As one United States District Court summarized:

A review of the applicable authorities discloses that the trial court may, in the exercise of its discretion, permit juror interrogation designed to identify pre-existing bias or prejudice against large damage awards which may not readily yield to the evidence presented. ... It is imperative, however, that any such inquiry be framed in a general and entirely nonsuggestive manner, so as to eliminate any possibility that the question will serve to commit or pledge any member of the jury panel to a specific verdict amount. [City of Cleveland v Cleveland Electric Co, 538 F Supp 1240, 1250 (ND Ohio, 1980). Citations omitted.]

The instant case presents a perfect example of this; plaintiffs’ inquiry is improperly suggestive and inflammatory. On the one hand, plaintiffs, through their attorney, state that the amount "is —could be shocking to hear,” and on the other hand, want to dismiss for cause someone like juror Primo who agrees. Not only does this seem rather anomalous, but it illustrates that the underlying error in the instant case may not be in juror Primo’s responses to plaintiffs’ questions but, rather, in the overly suggestive nature of plaintiffs’ questions. The voir dire transcript indicates juror Primo’s genuine concern was over returning an $8 million verdict without hearing any evidence. Even the trial court recognized juror Primo’s difficulty in comprehending the tenor of plaintiffs’ question and appropriately conducted further questioning to help clarify the situation. In response, juror Primo unequivocally stated her *263 willingness and ability to base her decision upon the evidence, but she steadfastly refused to commit herself to return a verdict for any specific amount. Although plaintiffs may not have liked juror Primo’s answer, that, in and of itself, does not mandate dismissing her for cause.

The purpose of challenges for cause are to impanel an impartial jury. However, questions which require potential jurors to "pledge” their willingness to return a verdict for a specific and exorbitant sum of money does not aid in impaneling an impartial jury because neither party has produced any evidence. If plaintiffs only wanted to ferret out potential jurors that might not return a large verdict if plaintiffs proved all the essential elements of their case, then they did not have to list the severity and intricacies of Matthew Poet’s injuries and the specific amount they thought he should recover. They only had to ask whether any juror had trouble returning a "very large or multimillion dollar jury verdict which would appropriately compensate plaintiffs for their injuries.”

In Bunda v Hardwick, 376 Mich 640 ; 138 NW2d 305 (1965), this Court addressed this issue in dicta; specifically whether plaintiff’s counsel may inquire into the exact size of a potential jury verdict during voir dire examination. In Bunda , the Court approved the plaintiff’s asking potential jurors whether they could return a verdict for $300,000, the amount requested in plaintiff’s complaint. However, several factors persuade me that such questions no longer help the parties in selecting an impartial jury.

First and foremost, when the Bunda Court addressed the issue, GCR 1963, 111.1(3) required a plaintiff to plead the specific amount of damages requested as relief in any particular cause of action. Thus, it made some sense to permit a *264 plaintiff on voir dire examination to inquire into whether a potential juror would not return a verdict for a specific amount, the sum the plaintiff requested in the complaint. In fact, the Bunda Court authorized only this narrow scope of voir dire inquiry:

Such an argument begs the question, in that it assumes that counsel will be permitted to question jurors in such a manner as to exact an express or implied pledge on their part. Of course, counsel can, and should, be barred from doing so. It would not, however, be an abuse of judicial discretion to permit counsel to question jurors to determine whether they would be willing to return a verdict for plaintiff in the amount requested if they find upon all evidence adduced at trial that he is entitled to such amount. [Id. at 663. Emphasis added.]

However, since then, this Court adopted MCR 2.111(B)(2), which superseded GCR 1963, 111.1(3) and now prohibits a plaintiff seeking damages over $10,000 from requesting relief for a specific amount. That issue must be left for the jury after they evaluate all of the evidence at trial. Consequently, plaintiff should not be permitted to ask potential jurors whether they would return a specific verdict over $10,000 just because plaintiff deems that figure appropriate. That question does not affect a potential juror’s ability to return a verdict in the amount requested.

In the instant case, the controversy arose because juror Primo stated that she could base her decision upon the evidence presented, but she steadfastly refused to commit herself into returning a verdict of $8 million without hearing any evidence. Juror Primo’s hesitancy in pledging her *265 self to return a verdict of $8 million without hearing any evidence should not be condemned. 3

*266 Accordingly, the trial court did not abuse its discretion in refusing to dismiss juror Primo for cause in the instant case. I would reverse the *267 decision of the Court of Appeals and reinstate that of the trial court.

Griffin, J., concurred with Riley, C.J.

Boyle, J., concurred only in the result reached by Riley, C.J.

Conversely, the Court of Appeals reversed the decision of the trial court solely upon the basis of juror Primo’s statements regarding damages. However, the Court of Appeals ignored any standard of appellate review and merely substituted its judgment for that of the trial court.

The trial court inquired into these areas and found juror Primo’s answers satisfactory. Plaintiffs never questioned juror Primo further and never raised these issues on appeal.

The trial court reached the same conclusion with almost identical reasoning at the motion for a new trial:

The Court: The challenge as to Juror Primo was made under MCR 2.511(D)(4) and (5). The juror’s response to matters with respect to amount of damage need be examined in terms of the entire context of the jury voir dire. In that regard it is the Court’s observation that one of the tactical decisions that Counsel will make in the course of a personal-injury action of this type is that it is an effective bit of advocacy to condition the Jury to the nature of damage request that will be made, recognizing that the Jury may not have anticipated the magnitude of what the proofs might support or disclose. It is, however, quite reasonable to suggest that it may present prospective jurors with some difficulty, before they’ve heard any of them, to commit themselves to a suggestion that they would, without reluctance give consideration to figures in the range of multi-million dollars.

In this instance in the course of Counsel’s voir dire, at page twenty-two of the transcript it was disclosed to prospective jurors that there was an intent to offer evidence indicating damages in the range of eight million dollars, acknowledging that this could be a shockingly-large figure. This was an inquiry addressed to the panel before Juror Primo was seated or Juror Bennett, but they were present and a part of the jury array and did hear the inquiries. At page twenty-three Plaintiffs’ Counsel continues that it’s necessary that the jurors be able to consider and live with possible damages that will fairly compensate, whether it is one dollar, zero dollars, or ten million dollars. Likewise, Defense Counsel responded then — page twenty-seven — asking the Jury panel if they would be capable, in a finding of no liability or fault, no negligence or fault, of returning a verdict of no recovery, notwithstanding the substantial damages that might be heard.

This context is important, because the first response of Juror Primo suggests she was concerned about the specific figure of eight million dollars. She first, in response to the Court’s general questions at page forty-eight, indicates that she might have responded somewhat differently than other persons seated around her because of different feelings about the elements of compensation. On page forty-nine she makes it clear that this would not affect her judgment of fault, but simply the amount of damage, and, again on page forty-nine, her misunderstanding and need for some explanation of what the responsibility of jurors would be is clear, indicating that if this means that the judgment was guilty, then it’s automatically eight million dollars, and she raises the question, "Or is it possible for someone to be guilty and the amount be lesser.” She required and the Court attempted to explain the fact that the amount of *266 damages, as well as cause and negligence issues, would be left to the Jury. She then responded, after that explanation, at page fifty that knowing those possibilities, that she did not feel that she had preconceived notions that would interfere with fairly assessing and judging the issues to be presented. Then, as indicated by Counsel, when Plaintiffs’ Counsel initiated questioning of this prospective juror, she did, at page fifty-two, fairly strong personal feelings that there should be some ceiling to damage. The question was raised to her then in terms of "would it be difficult then for you to come back with an extensive award for those elements of damage?” Her answer was, "I think I would have to be presented with everything first, to really say that for sure. I might have a problem,” and in response on page fifty-three to Mr. Hayes’ question, it’s true that she might not have a problem. When the Court, at pages fifty-five and fifty-six, asked further questions of the juror, she again was equivocal in saying she would have problems with specific figures like eight million dollars. She correctly at this point indicated that it would not be her sole decision, and the last question on that page, page fifty-six, we explored the difficulty and she said it was not a difficulty with her having a preconceived limitation or absolute amount; it was the size of the figure that was bothering her.

I would conclude, in that context and reviewing what the prospective juror had to say, that it is not clearly a matter which falls within the areas delineated by MCR 2.511(D)(4) and (5). To the contrary, she had indicated a hesitation, a problem in dealing with high figures, but not an absolute limitation. Her difficulty, to me, was indicative that she properly recognized this was a serious undertaking, not a simple one, not one easily resolved. As she repeatedly said, "I would have to hear the evidence, hear it all,” clearly is an appropriate position. She should not commit herself to any figure in advance of hearing the evidence. I can empathize with the juror who comes without knowledge of our proceedings and not having a precise grasp of what would be the task at the end of the trial in deliberation, but it appears to the Court in this circumstance that we have a juror who has shown the proper type of reluctance to make quick judgments, to recognize the seriousness of the task she is about to undertake.

There not being a clear indication of an inappropriate state of mind or of a fixed opinion which would improperly influence the verdict, I would not conclude this to be within the sub-rules cited, but a matter within the discretion of the Court, as was set forth in Brownell [v Brown, 114 Mich App 760 ; 319 NW2d 664 (1981)].