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2. “Once a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair.” Syllabus Point 5, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).
3. “Where a physician-patient relationship exists between a party to litigation and a prospective juror, although such prospective juror is not disqualified per se, special care should be taken by the trial judge to ascertain, pursuant to W.Va.Code, 56-6-12 [1931], that such prospective juror is free from bias or prejudice.” Syllabus Point 2, West Virginia Dep't of Highways v. Fisher, 170 W.Va. 7, 289 S.E.2d 213 (1982).
4. “If a prospective juror makes an inconclusive or vague statement during voir dire reflecting or indicating the possibility of a disqualifying bias or prejudice, further probing into the facts and background related to such bias or prejudice is required.” Syllabus Point 4, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).
5. “When considering whether to excuse a prospective juror for cause, a trial court is required to consider the totality of the circumstances and grounds relating to a potential request to excuse a prospective juror, to make a full inquiry to examine those circumstances and to resolve any doubts in favor of excusing the juror.” Syllabus Point 3, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).
6. “A trial judge is entitled to rely upon his/her self-evaluation of allegedly biased jurors when determining actual juror bias. The trial judge is in the best position to determine the sincerity of a juror's pledge to abide by the court's instructions. Therefore, his/her assessment is entitled to great deference.” Syllabus Point 12, State v. Salmons, 203 W.Va. 561, 509 S.E.2d 842 (1998).
Per Curiam:
This
case is before this Court upon appeal of a final order of the Circuit Court of
Grant County entered on October 29, 2004. In that order, the circuit court refused
to set aside a defense verdict in this medical malpractice action filed by the
appellant and plaintiff below, Jennifer Thomas, against the appellees and defendants
below, Anil K. Makani, M.D., and South Branch Surgical Associates, Inc. The jury
determined that Dr. Makani was not negligent in his care and treatment of Ms.
Thomas.
In this
appeal, Ms. Thomas contends that three jurors were biased in favor of Dr. Makani
and that the circuit court abused its discretion by not removing those jurors
for cause from the jury panel. Ms. Thomas requests a new trial. (See
footnote 1)
This
Court has before it the petition for appeal, the designated record, and the briefs
and argument of counsel. For the reasons set forth below, the final order is
affirmed.
Once
a prospective juror has made a clear statement during voir dire reflecting
or indicating the presence of a disqualifying prejudice or bias, the prospective
juror is disqualified as a matter of law and cannot be rehabilitated by subsequent
questioning, later retractions, or promises to be fair.
Dr. Makani
and South Branch Surgical Associates, Inc., (hereinafter collectively referred
to as “Dr. Makani”) contend, however, that Juror Evans did not make
a clear statement of prejudice or bias in favor of Dr. Makani. Dr. Makani points
out that upon further questioning by the court, Juror Evans indicated that he
would be swayed by the evidence itself and the manner in which it was presented.
Dr. Makani further notes that Juror Evans expressly stated that, “as far
as picking him [Dr. Makani] over another doctor, I mean, I wouldn't.”
This
Court has previously observed that, “It is a fact of life that in many rural
jurisdictions in this State, a limited number of physicians may practice within
any given community.” Dupuy v. Allara, 193 W.Va. 557, 562, 457 S.E.2d
494, 499 (1995), overruled on other grounds, Pleasants v. Alliance Corp.,
209 W.Va. 39, 543 S.E.2d 320 (2000). As a result, “[w]hen one of these doctors
is a party or a witness in a medical malpractice action, it is unlikely the court
can seat a panel of jurors with absolutely no contacts with the doctor.” Id. Accordingly,
this Court has held that,
Where
a physician-patient relationship exists between a party to litigation and a prospective
juror, although such prospective juror is not disqualified per se, special
care should be taken by the trial judge to ascertain, pursuant to W.Va.Code,
56-6-12 [1931], that such prospective juror is free from bias or prejudice.
Syllabus Point 2, West Virginia Dep't of Highways v. Fisher, 170 W.Va.
7, 289 S.E.2d 213 (1982).
In this
case, Ms. Thomas does not argue that Dr. Makani's prior treatment of Juror Evans
by itself rendered him disqualified from serving on the jury. Rather, she maintains
that Jurors Evans' answers to questions posed to him during individual voir
dire clearly showed that he was biased in favor of Dr. Makani. While it is
a close question, we nevertheless disagree.
Having carefully reviewed the transcript of the voir dire in this case, we are unable to conclude that Juror Evans made a clear statement of disqualifying bias toward Dr. Makani sufficient to disqualify him from serving on the jury. Certainly, Juror Evans' initial comments required further inquiry by the court. In Syllabus Point 4 of O'Dell, we explained that,
If
a prospective juror makes an inconclusive or vague statement during voir dire reflecting
or indicating the possibility of a disqualifying bias or prejudice, further probing
into the facts and background related to such bias or prejudice is required.
This Court also advised in Syllabus Point 3 of O'Dell that:
When
considering whether to excuse a prospective juror for cause, a trial court is
required to consider the totality of the circumstances and grounds relating to
a potential request to excuse a prospective juror, to make a full inquiry to
examine those circumstances and to resolve any doubts in favor of excusing the
juror.
In this
case, the trial court, in accordance with O'Dell, did, in fact, question
Juror Evans further to determine whether he was capable of rendering a fair verdict.
At that point, Juror Evans clarified his earlier statement that he might possibly “lean
toward” Dr. Makani. He explained that since he had no medical knowledge,
he would more likely believe the doctor who presented the most credible and convincing
evidence. He clearly stated that he would not find in favor of Dr. Makani simply
because he had treated him fourteen years ago.
After reviewing the record in this case, we conclude that the trial court took “special care” to determine that Juror Evans was free from bias and prejudice. The trial court clearly considered the totality of the circumstances and conducted a full inquiry before determining that there was no basis to disqualify Juror Evans from serving on the jury. In Syllabus Point 12 of State v. Salmons, 203 W.Va. 561, 509 S.E.2d 842 (1998), this Court held that,
A
trial judge is entitled to rely upon his/her self-evaluation of allegedly biased
jurors when determining actual juror bias. The trial judge is in the best position
to determine the sincerity of a juror's pledge to abide by the court's instructions.
Therefore, his/her assessment is entitled to great deference.
Upon careful review of the record, we are unable to find that the circuit court
abused its discretion by not striking Juror Evans for cause from the jury panel.
Ms. Thomas
also contends that the circuit court erred by not removing Jurors Gretchen Bruce
and Linda Porter from the jury panel. However, the record shows that Ms. Thomas
did not make a motion to strike these particular jurors for cause. Jurors Bruce
and Porter were individually questioned after they indicated that they had been
previously treated by Dr. Makani. Following their individual voir dire,
counsel for Ms. Thomas did not move to strike either of these jurors for cause.
Consequently, we find that Ms. Thomas has waived her right to allege error in
this appeal with respect to these two jurors. See Hanlon v. Logan County Bd.
of Educ., 201 W.Va. 305, 315, 496 S.E.2d 447, 457 (1997) (“Long standing
case
law and procedural requirements in this State mandate that a party must alert
a tribunal as to perceived defects at the time such defects occur in order
to preserve the alleged error for appeal.”); State ex rel. Cooper v.
Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996) (“The rule
in West Virginia is that parties must speak clearly in the circuit court, on
pain that, if they forget their lines, they will likely be bound forever to
hold their peace.”); State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d
613, 635 (1996) (“When a litigant deems himself or herself aggrieved by
what he or she considers to be an important occurrence in the course of a trial
or an erroneous ruling by a trial court, he or she ordinarily must object then
and there or forfeit any right to complain at a later time.”).