Poet v. Traverse City Osteopathic Hospital

CITY OSTEOPATHIC HOSPITAL v TRAVERSE POET 4). (Calendar 7, Argued March No. Decided Docket 82941. No. August 1989. Poet, Poet, and for and as next friend of Matthew Barbara herself malpractice brought Jeffrey in the R. Poet a medical action City against Traverse Osteo- Traverse Circuit Grand others, negligence prenatal pathic Hospital alleging in the and delivery and in the of Matthew which of Barbara treatment being significant, permanent Matthew born resulted court, J., Brown, damage. judg- R. entered The William brain defendants, finding jury no cause of a for the ment on verdict Beasley Wahls, P.J., Appeals, and action. The Court of JJ., unpublished opinion per Burress, D. A. reversed in an curiam, holding refusing to excuse that the trial court erred cause, plaintiffs thereby requiring particular the a for peremptory challenge juror and a to excuse the subse- exercise quently precluding juror by way a the dismissal of another challenge peremp- peremptory because of exhaustion of their 92453). (Docket challenges hospital appeals. tory No. The opinion by joined by Levin, Archer, Justice Justices In an Supreme Brickley, Cavanagh, the Court held: requiring reversal when the A trial court commits error (1) improperly a reveals that the court denied record (2) cause, aggrieved party peremptory exhausted all for the (3) challenges, party a an- the demonstrated desire excuse (4) juror, subsequently the whom other summoned objectionable. later to wished excuse litigant process requires a full and 1. Due that a civil cases, litigant may In fair trial on the merits. certain impartial by panel request legal a matters be heard jurors. part process impaneling impartial jury, As cause, i.e., party may challenge prospective juror request not be allowed to become member of the exercising challenge, general specific In reasons. References 2d, 216, 218, 267-269,294, Jury 298. Am Jur §§ Challenges Jury; Peremp- See Index Annotations under tory Challenges. Poet v Traverse specific disposition prospective juror subject toward the by litigant matter of the case must be ascertained so as to judgment juror’s enable a to be formed the court as to the competency. challenging party showing has the burden of preconceived opinions prejudice, that the has or such limitations, 2.511(D)(4)- other interest enumerated in MCR (13), impair capacity that would the to render a fair and impartial demonstration, Upon verdict. such a the trial court must excuse the for cause. 2. ruling challenges A trial court’s exercise of discretion in on regard parties for cause should be made with for both the respective balancing their discretionary power claims. When litigant’s right trial, apprehen- with a to a fair in cases where reasonable, sion is the trial court should err on the side of the moving party. Apprehension prospective is reasonable when a juror affirmatively particularly opinion articulates a biased may ability which have a direct effect the to render an challenge granted unbiased decision. A for cause should be if apprehension may reasonable be alleviated from the mind of rights the movant and prejudiced. a nonmovant’s will not be A juror must be dismissed for 'cause where there is a sufficient beginning to prospec- reason believe that at the of the trial the indifferent, tive litigants is not but favors one of the over may unconsciously by the other or be influenced considerations presented in addition to the evidence at trial and the instruc- tions of ruling law. In order to seek relief from a trial court’s cause, challenge on a there must be some clear and inde- pendent showing improperly on the record that the court challenge cause, aggrieved party denied a the exhausted all peremptory challenges, party demonstrated the desire to subsequently juror, excuse another summoned and the objectionable. whom the wished later to excuse was properly In3. order to determine whether the trial court has discretion, reading appeal abused its a on of the entire voir dire is separately may essential. While individual factors considered require challenge granted, not that a for cause be a combina- may compel prospective juror. tion of factors dismissal óf a The determining standard for abuse of discretion is a result so palpably grossly logic violative of fact and evidences will, will; perversity not the exercise of but not the exercise judgment, defiance; reason, but its not the exercise of but passion rather of or bias. In this case there was such abuse. totality background prospective juror The of the and her strong personal feelings damages conceded about combined to clearly uncompromising great create the risk of bias too to be impartiality. away Her admis- with bare assertions reasoned objection- jury presence on the dire rendered her sions on voir plaintiffs’ per the court’s denial of able se. Thus Further, improper. plaintiffs had exhausted for cause was challenges they peremptory indicated a desire their objectionable. subsequent prospective juror was a who excuse practice concurring, agreed Brickley, also Justice damage not testing specific awards is on dollar amount good practice avoid. and within court’s discretion for new trial. Affirmed and remanded dissenting, joined by Justice Griffin, Riley, Chief Justice discretion court did not abuse its stated that the trial refusing in their for cause. When considered excuse context, juror’s proper not reversal. answers do warrant Rather, suggestive inquiry improperly plaintiff’s pledging juror’s hesitancy inflammatory. herself hearing evidence $8 of million without return verdict condemned. should Boyle only Chief in the result reached Justice concurred Riley. Justice Jury Challenges — — — of Discre- 1. Voir Dire for Cause Abuse tion. requiring the record

A trial court commits error reversal when (1) challenge improperly for the court denied a reveals that (2) cause, aggrieved peremptory party chal- all the exhausted (3) lenges, party a excuse another the demonstrated desire to juror, juror subsequently the whom the summoned and (4) objectionable. party later excuse wished to was Jury Challenges — — 2. for Voir Dire Cause. cause, exercising challenge prospective juror the In of a for a juror general specific disposition prospective toward and the subject by the matter of the case must be ascertained the litigant judgment the as so to enable a be formed court as competency; challenging party juror’s the has the burden the showing preju- preconceived opinions or that the has limitations, dice, the as enumerated in or such other interest or rules, impair capacity and the to render fair court that would (MCR 2.511[D][4]-[13j). impartial verdict Jury Challenges — — — 3. Voir Dire for Cause Abuse Discre- — of Review. tion Standard failing determining discretion in The standard for abuse of palpably discharge prospective juror is a result so for cause logic grossly of fact evidences not violative City Osteopathic 1989] Court will, will; perversity exercise of but not the exercise of judgment, defiance; reason, but its the exercise of but passion rather of or bias. Mackinder) (by Douglas Olds & Mackinder J. for plaintiffs. Wagner Kenney, Kitch, Saurbier, Drutchas, & Zitterman), (by Healy P.C. Susan for the defen- dant. granted J. We leave to consider

Archer, plaintiffs whether were entitled to a new trial as a consequence judge’s plaintiffs’ of the trial denial of challenge cause, of a where the subsequently peremptorily. dismissed requir-

We hold that a trial court commits error ing (1) reversal when the record reveals that: (2) improperly court denied cause, aggrieved party peremptory the challenges, had exhausted all

(3) party demonstrated a desire to subsequently juror, excuse another (4) summoned whom the wished later objectionable. Accordingly, excuse was because the plaintiffs factors, satisfied all of these we affirm holding Appeals of the Court of and remand to the case trial court for a new trial.

FACTS July appellees 18, Jeffrey, On Barbara, brought malpractice and Matthew Poet a medical against suit in Grand Traverse Circuit de- fendant-appellant Traverse Hos- pital Houghton, Jr., D.O., defendants M. A. Empire and the Clinic.1_ settlement, approving record reveals that an order an of order dismissal, stipulation and a Houghton, for dismissal of A. Matthew Jr., D.O., Empire Clinic, January and were executed on 1986. 433 Mich the charge

Specifically, the the was based on action Empire Houghton, employee Dr. prenatal negligent Clinic, treatment of was in the delivery Further, the Matthew. hospital Barbara and in negli- charged complaint that the was the pro- supervise, gent monitor, in its failure to relating procedures appropriate hospital vide argument delivery. was The Poets’ chief birth that negligent in Matthew these acts resulted permanent being significant, brain dam- born with age. January 6, dire 1986. Voir

The trial commenced explaining routinely opened the with the court Initially six the to the venire. nature of persons case venire, each from the were chosen by questioned by court, then first questioning, attorneys. Early Ward, Mr. Poets, the notion counsel for the damages addressed negligence. Likewise, as an element hospital, Hayes, for the addressed Mr. counsel feelings on the substantial dam- as to their venire during ages might presented the course which responses by significant the trial. were no There during exchange. venire Eventually, Primo was called Kathleen regis- array. that she was a She revealed from the tered Center,2 who nurse at Munson Medical management reviewing "neo- in utilization worked quality-of-care is- unit care natal intensive responded negatively when asked Ms. Primo sues.” particular profession her the court whether hospital her to be biased. cause work However, if there were the court asked when respond inquiries posed she would earlier to which jurors, stated, differently "I she than other hospitals major providing City, service there are two In Traverse Hospital Medi public: and Munson Traverse Center. cal 233 Opinion the Court might feelings have different about the elements about compensation.” involving

What followed was a discourse Primo, court, and both in which Ms. attorneys, feelings Primo revealed her there should be a ceiling damages However, on civil sought cases. concerned, questioning after further all she impartial. resolved that she could be requested Mr. Ward juror Primo be chal 2.511(D)(5) cause, lenged for MCR for citing sup port. Hayes Mr. Ms. opposed, stating that Primo’s assertion of rendered impartiality appropri her ately fair-minded The court juror. denied the chal lenge for cause and Mr. Ward excused Ms. Primo peremptorily.

Mr. Ward had his peremptory exhausted chal- lenges,4 when was James Bennett called. Juror Bennett’s occupation that of medical- surgical supply During questioning, salesman. he appellant hospital revealed that was one of his clients and several of the witnesses were personal either acquaintances. business Mr. challenged Ward juror Bennett cause for under 2.511(D)(10) (12),5 MCR again and was denied. provides, part: pertinent This court rule (D) Challenges parties challenge may jurors for Cause. The cause, challenge. for court shall rule on each A challenged may questions for cause be directed to answer pertinent inquiry. grounds challenge It for for cause person: that the (5) opinions scruples improp- has or conscientious that would erly person’s influence verdict. 2.511(E)(2) provides, pertinent part: MCR may peremptorily challenge jurors.

Each three 2.51KDX10) (12) provide: MCR (D) grounds person: It is cause that the 433 Mich 228 op the Court jury Bennett on result, remained As a verdict returned a The the foreman. became of action. of no cause 1986, filed a motion Poets January

On trial, They appealed, new was denied. for a which refusing trial court erred arguing that for cause. Bennett Primo and jurors excuse reversed, Kathleen holding of Appeals and, cause, excused for have been Primo should from thereby precluded were the Poets because from the James Bennett dismissing subsequently the trial challenge, by way peremptory jury error Primo constituted ruling regarding court’s .6 granted leave subsequently requiring reversal We to appeal.7

i procedure is trial court guidepost every The of the Fourteenth Amend- the Due Process Clause It is well the United States Constitution. ment of concerned process primarily is settled that due on the merits. a full and fair trial providing Co, 240; v 225, 114 Bay See Ridenour 366 Mich Ordean, v Grannis 234 US (1962), citing 172 NW2d (1914). 385, 779; L 394; 34 Ct 58 Ed 1363 S of fairness Encompassed within mandate litigant right of a civil process and due is the cases,8 legal matters request, in certain (10) conservator, ward, landlord, tenant, guardian, is the party attorney; employee, partner, employer, client of a or (12) taxpayer of a in has financial interest other than that the outcome action. 6 opinion per City Osteopathic Hosp, unpublished v Poet Traverse (Docket 6, Appeals, January 1988 No. decided curiam of Court 92453). 7 (1988). Osteopathic Hosp, City 431 Mich 870 v Traverse Poet 8 preserved right by cases where existed trial all panel impartial jurors. Michigan heard Hence, 1, 14. Const art § parties litigant to the demands that the [fairness prejudice in jury should be free from bias and all cases, cases with the they and that enter the trial of the single purpose doing desire and justice parties, equal and exact between the according given to the law and the that them in Mich evidence Johns, open court .... v [Theisen 285, 292; (1888),citing Monaghan NW Co, 238, 246; Agricultural Fire Ins (1884).] NW 797 mind, principles With these fundamental we turn litigator to the difficult task of the trial accomplishing the selection of a jury. Specifically, issue is the link between the trial lawyer judge procuring impartial trial group of jurors; for cause.

A challenge for cause is defined as request judge from a to a that a certain [a] prospective juror not be allowed to be a member of specified because of causes or reasons. (5th ed), Law Dictionary p [Black’s 209.] In exercising challenge, litigator must ascertain general perhaps specific disposi- tion of the venire person toward the subject mat- ter of the case. The success of a challenge depends upon eliciting information from the juror, as well as from sources, other as to the juror’s state or mind, condition of as will enable a discretionary judgment to be formed the court as to the juror’s competency. Monaghan, supra at 246.

Michigan common provided law that a juror was prior adoption Dozowc, to the of the constitution. Friedman v 412 1, 60; (1981), citing Brown, Dep’t Mich 312 NW2d 585 Conservation v (1952). 343; 335 Mich 55 NW2d 859 228 433 Mich 236 op Coukt Collins, 166 Mich 4, v People qualified. presumed (1911). had challenging party 78 9; 131 NW challenged juror showing the burden such opinions prejudice, or or preconceived ha[d] impair his as would or limitations other interests impartial fair verdict. to render a capacity Mich Law & [15 64, Practice, 68, citing 2 p Jury, § Hawkins, Michigan Rules Court Honigman & (2d ed), p Anno 466.] implicitly Rules Michigan Currently by counsel a demonstration provide categories enu- fits one prospective 2.511(D)(4)-(13), a trial court is in MCR merated This show- excuse such cause. required to or prejudicial a biased ing equivalent proving is Real v Green McNabb See, e.g., of mind. state Co, 500, 811 507; 233 NW2d Estate App 62 Mich Brown, 760, App 766; 114 Brownell v (1975); Mich Interlake, Inc, v Bishop (1982); 121 664 319 NW2d (1982); Wil- 397, 401; 328 643 NW2d App Mich Lehrbass, 150 Mich 319, 331; 388 loughby v App Lamar, 153 Mich (1986); People v App NW2d 688 v Gen- Cocora (1986); 127, 134-135; 395 262 NW2d 92, 95-96; Corp, eral Motors App 161 Mich 409 Walker, (1987); People v App Mich NW2d (1987). 60, 63-64; 412 NW2d however, grant decision Ultimately, is the sound for cause within deny Monaghan, supra the trial court. discretion Johnston, Mining Atlas v Co 23 Mich citing Carrier, People (1871); 36; 2 Browns (1881). Nevertheless, exercising 442; 9 NW discretion, without con- the trial judge straint. guide judi- invoked as a When is] [discretion discretion, is to a sound

cial action means 237 arbitrarily exercised not or wil- say, a discretion regard right equita- what is fully, with but law, the circumstances and the ble under judge conscience of the Green, to a directed reason and 531, 541; 51 just [Langnes v US result. (1931).] 243; 75 L S Ct Ed circumstance, present In where a addressing expressed strong opinion, has person yet venire impartial, that she can be we believe has resolved discretionary the trial court’s function should be fulfill liti- against obligation balanced its each trial. gant’s right By achieving to a fair this bal- case, ance in each the act of a trial judge granting denying request poten- remove represent tial should a decision ever mindful of the constitutional seriousness involved.

ii instance, In this charged we are with analyzing the exercise of discretion within the specifically challenges context of In addressing cause. issue, in Glasgow v Metropolitan narrow the Court Co, Street R (1905), 356; Mo SW offered the following: authority of the court [T]he [in cause is not limited to a decision of the context] legal question

strict qualifications juror; of a it has a discretion to be exercised in the adminis- justice tration of may which it excuse a although who legally disqualified yet whose sitting reasonably liable to fill either apprehension A unfairness. court in the exercise of that discretion an unreasonable attempt will not to allay suspicion, but when it can re- move a cause of apprehension reasonable on the injuring one side without of the other or any degree rights giving the other cause for similar Mich 228 433 238 Opinion op the Court right duty it is the apprehension, reasonable of the court court so, respect in that to do and when rul- its judicial discretion exercises a sound Misfeldt, also Lee v ing disturbed. will not be [See (1965), citing 675, 679; 753 137 NW2d App Hawkins, Michigan Rules Honigman Court 2 Anno & (2d ed), p 466.] judge’s agree of discre- that a trial exercise We challenges ruling for cause should be tion in on parties regard and their with for both the made balancing discretionary respective claims. When power litigant’s right trial, a a fair trial to a apprehension judge is should, in where rea- cases moving party.9 sonable, For err on the side purposes, apprehension a is when our "reasonable” question posed person, to a either in answer venire upon initiative, his own affirma- on voir dire or tively opinion particularly a biased articulates person’s may effect which direct ability to render unaffected decision. Supreme expressed by Court in the Missouri

As Glasgow, supra, opine we, likewise, if that reason- apprehension may from the able be alleviated rights movant, mind of the not and a nonmovant’s challenge will prejudiced, for cause should be be granted. simply many There are too unbiased eligible qualified to sit otherwise individuals on quibble persons any given jury over who have 9 Supreme Reynolds United States United (1878), States, 145, 155; following 98 US L Ed offered the oft- quoted guide: ''[L]ight may fairly presumed yield impressions, which be offered, testimony may may to the mind be which leave the open testimony, to a fair constitute consideration strong objection juror; . . . no sufficient to a but those testimony deep impressions, against which close the mind them, may opposition be offered which will combat force, testimony its constitute a sufficient and resist do objection to him.” Opinion of the Court grave potential for bias. articulated voluntarily for cause suggest challenges This but, granted freely liberally should be there is a sufficient reason to believe that [w]here beginning prospective juror of the trial at the indifferent, litigants but favors one of the is not may unconsciously influenced over the other or pre- by considerations addition to the evidence law, trial and the instructions of sented dismissed for cause. v Da- must be [Blades 1985). (Colo, Foe, Emphasis P2d added.] challenge

In to the for cause addition initial at quagmire, presents the case bar the additional problem arising when a trial court’s exercise of challenge discretion in a creates denying cause a peremptory challenge the situation where is necessarily forfeited without choice. The Court of Bishop supra Interlake, v 403, Appeals in es- poused following in addressing predica- ment: In challenge situations where a for cause is denied,

improperly party "prejudiced,” a has been all, simply by being improperly compelled if at to challenge. peremptory use a He is thus denied an opportunity to act on his intuitions at a later time during by having voir dire prematurely exhausted peremptory his challenges.[10]_ 1975). Manning, (Utah, See v Crawford 542 P2d The court stated: By exercising challenges upon peremptory one of their this

prospective juror, plaintiffs only remaining. had two party peremptory A is entitled to exercise his three chal- lenges upon impartial prospective jurors, and he should not be compelled accomplish to waste one order to that which the judge trial should have done. op the Court can degree of agree prejudice a We to compelled improperly a is presumed party when challenge. very purpose peremptory use a oppor to an unrestricted provide assigning without a to excuse tunity peremptory chal concur reason. We also alternate designed to function as an lenge was improperly de mode of dismissal the event Nonetheless, challenges presumed for cause. nied view, not, necessarily does in our rise prejudice As prejudice. previously level actionable noted, here is duty the nature of trial court’s Therefore, due def discretionary. give in order to context, in this we made be erence decisions req should be proof prejudice lieve additional determine Thus, uniformly in order uired.1 when overruling a trial court’s error chal reversal, requires for cause we will hence lenge relationship forth focus on the causal between denial, its availability erroneous effect how each of peremptory challenges, allotted prejudicial opinion error We are there granted. complained trial should be matter of and a new (1977)(en Frankel, 288, 290; 116 Ariz 569 P2d 230 See Wasko also banc) ("forcing challenges peremptory to use his strike jurors litigant for cause who should have been stricken denies (the right”); DaFoe, supra right v to substantial peremptory challenges a 633-634; challenge Blades exercise right is a substantial was intended as errors); McDowell, 628, App remedy for trial v 133 Ind court Veach ("denial (1962) right peremptory 184 149 of a of NE2d prejudicial impanel jury per ... se a is and harmful law, way deprive party right a a of his violation of such as to Ceretti, error”); peremptory challenge, 210 v constitutes reversible Wilson 1973). (Iowa, 643 NW2d 11 here, tackling problem presented several In there are other See, jurisdictions. e.g., v other Miles FERM solutions offered in (1981) (exhaustion 61; Enterprises, App 29 627 P2d 564 Wash relief); challenges peremptory to be to seek is all it needed shown (1955)(exhaustion Curtis, 222; App 2d 291 P2d 542 Liebman v 138 Cal supported by stating an affidavit a desire have exercised forfeited 690, peremptory challenges); v Union 107 2d Caruso Local No Wash (1987)(actual 524; prejudice necessary). showing 1299 730 P2d 241 Opinion op the Court these factors influenced the ultimate composition of the question. in the

Accordingly, requiring interest an inde- pendent objective manifestation of actionable prejudice,12 we hold order for a party to instance, seek relief in this there must be some clear and independent showing on the record that: (1) the court denied improperly challenge a (2) cause,13 aggrieved party per- exhausted all (3) emptory challenges,14 the party demonstrated the desire to excuse another subsequently sum- (4) moned juror, juror whom the party wished later to excuse was objectionable.15_ 12 Longshore Chevrolet, 922, (Fla See v Fronrath 527 So 2d 924-925 1988). App, The court reasoned that a trial court’s erroneous denial of challenge requiring will cause not be deemed to constitute error party making challenge reversal unless prejudiced by being required accept objectionable juror party which the —one peremptorily challenged; otherwise Hwy would have Arkansas State (1972) Dalrymple, 771, 772; Comm v (Appel 252 Ark SW2d showing lant other such any "made no that he would have struck the name of peremptory challenge if [Ujntil he had had a . left. . . party objectionable time as a is forced to take an without privilege exercising peremptory challenge, the prejudice. he has shown no appellant . . . Here . . . does not contend that of the jurors disqualified.”); Physicians Surgeons who served were & Gen Hosp Koblizek, (Tex 1988) App, (complaining party SW2d 657 must advise peremptory challenges trial court he will exhaust specific objectionable jurors remain); will Colbert v Journal Publish Co, ing 156, (1914). 160-161; 19 NM 142 P 146 13The improperly determination of whether a trial court has denied challenge for cause will be made in accordance with whether a per 2.511(D). is excusable se under MCR 14 Mellinger Co, See 609; v Prudential Ins 34 NW2d (1948).("The party complain rule in this State is that a cannot overruling error in the of a for cause if it does not force peremptory challenges.”) him to exhaust his In potential juror order for a objec to establish that a is tionable, must, first, indication, specific record, there abe on the party seeking Second, the the objectionable. removal finds the individual objector expressly particular must articulate or list the reasons why objectionable. Furthermore, "objectionable,” as the term defined in The Random Dictionary English Language: House Unabridged Edition as "causing tending objection, disapproval or protest” to cause an concededly imprecise lends itself to the "know it when one sees it” 433 Mich Opinion of the Court

III A appellees Barbara contention primary the trial court’s that but for Poet is Jeffrey cause, Primo for refusing juror error to excuse perempto- been excused Bennett would have maintains hospital Conversely, appellant rily. im- that she could be that Ms. Primo’s assertion the trial support court’s was sufficient partial for cause. deny dismissal discretionary decision trial whether properly In order to determine discretion, reading of the has his abused judge "[a] v Andrews . .” . . voir dire is essential entire (La Service, Well App, 514 So Mosley 2d 1987). sepa- individual factors considered "[WJhile may not that a cause rately require compel granted, may of factors be combination Blades, 324. supra jurors.” dismissal judge’s exchange the trial with Accordingly, following: Primo revealed the Primo, Fifty-Five. Bailiff: Kathleen Number Primo, you ever The Court: Kathleen have been a juror before? No, Primo: I have not.

Juror any acquaintances you The Court: Do among persons that we have introduced expect part this trial? to see as Yes, Hospi- I I Juror Primo: do. work at Munson so familiar tal. I’m an r.n. some of the there and I’m personally, but I’m physicians, acquaintance acquainted with them. I am also representative is of Osteo who here. with [sic] standard, objectionableness we does submit determination require proof potential excusable for cause. See not Longshore, that a However, supra n 12 at 924. articulated reasons triviality, to more than mere should include factors which amount i.e., juror wearing bright objectionable Doe is because the orange jewelry punk or a rock hair cut. Poet Traverse Opinion op the Court I inquire

The unit Court: must further what of hospital you the do work. management, I

Juror Primo: work in utilization I very and work with of closely the wife the representative responsible of I also am Osteo. reviewing cases in the neo-natal intensive care quality-of-care unit for issues. The I it you Court: would take then that would independent have standards knowledge procedures, some of proce- of conduct in both the obstetric dures and the —as as in well the neo-natal unit. Juror Primo: Yes. Perhaps The Court: we should with first deal the personal acquaintance.

matters of any youDo feel that acquaintances of you the have identified would be of such that you nature have a would preconceived notion of how receive or how to accept testimony their would identify or in such a you fashion weight give greater would lesser any of testimony your of because past relationship with them? No,

Juror Primo: I do not. The Court: And general question, then the more your because of employment, your association with a hospital and hospital, the particularly type of do you feel it impart you would any [tendency] of way bias one or the other terms of evalua- the tion of the this case? part standards which will become of No, Juror Primo: I don’t. The your Court: Has brought work Munson

you into contact with the the Plaintiffs or care infant, and treatment of the Matthew? Juror Primo: No. I in a completely different department at doing so I time and wasn’t type of then work that I am now. not, you prior today, Court: So had heard anything of the name or treatment of Matthew Poet? No,

Juror Primo: I hadn’t. The Court: We have covered a number sub- jects, including considerations, those of op the Court case, goes type into the philosophy that lia- upon which and basis liability considerations any of might exist. Are there bility might or you your response inquiries feel that those to where of the Court or Counsel questions persons signifícantly than have been seated around different persons you, the other seated jury box? feelings might Primo: I have different Juror compensation. about

about the elements may difficulty some The Court: You compensation predicated as concept the fault? my Primo: I don’t think would affect Juror feelings just fault. It’s regarding judgment might compensation I have different the amount feelings about. see, regard proofs The I and if in that Court: that it to the satisfaction were such established liability jurors that there was you your fellow certain dollar and that a certain number —a damages appropriate, you would amount of you not be your feel hesitation is such that would type able award that of verdict? might. guess if it that Juror Primo: It I meant guilty, it’s it’s

you judgment that then make dollars, somebody guilty eight or can be million lesser amount —I’m not familiar with and be a how cases like this— guess Allright I are a The there Court: [sic].

couple terminology might trou- of areas of be daily us deal on a basis. blesome to who with fault, being at we speak of someone When we guilty, use the term generally would not because a criminal think of that in terms of case. we Jury determining responsibility have the will causation, if well as then the issues of fault and they as causation, point fault and arrive determining damages, and so is conceiva- then of could, upon those Jury based ble that [sic] findings, upon to make an award be called finds damages Jury in whatever amount be, rea- on that appropriate, Jury or the could Poet Traverse Opinion op the Coukt sorting, upon finding nothing called to award on a then, no fault or cause. Those choices based presented the evidence as and the the decision of the [sic] instruction, Court’s will Now, Jury. ties, knowing possibili- those are you preconceived do feel that you have no- your fairly tions ing would interfere assess- judging those facts? No,

Juror Primo: I do not. then, The Court: Generally any from inquiries Counsel, made anything the that you are your aware of to impair ability fairly sit as this case? No, [Emphasis Juror Primo: I don’t. added.] At the conclusion inquiries, of the court’s Mr. Ward, Poets, posed counsel the following: Primo, Mr. you you Ward: Mrs. said are in- reviewing

volved in hospital cases in neo- natal? in-patient.

Juror Primo: Currently Mr. you Ward: Does any that cause to review obstetrical matters? have,

Juror Infrequently Primo: I but not on a routine basis.

Mr. you Ward: Have ever worked as an obstetri- cal nurse?

Juror Primo: No. Mr. you Ward: Have training ever had obstetrics?

Juror nursing Primo: Just school.

Mr. you Ward: Do a working relationship at all with anybody City from Traverse Osteo- pathic Hospital?

Juror Primo: No. you Mr. Ward: Do discuss medical matters with anybody City from Osteopathic Hospital? Traverse Juror Primo: No. Mr. you you Ward: How is it that said know —

you City knew someone from Traverse Osteo- pathic? 433 Mich 228 op the Court depart- in the closely same I work Juror Primo: Osteopathic representative from with the ment Hospital, wife, met Mr. I have Hooper’s Mr. very briefly. Hooper on occasion difficulty in you any it cause Mr. Ward: Would the close of you if after relationship decided that the was warranted with? Would these Plaintiffs in favor of the a verdict proofs you came back what and that’s dealing with difficulty have you people? No, I would not.

Juror Primo: opinion somehow you have an Mr. Ward: Do ceil- damages be limited to a certain should ing? Yes, I do. Juror Primo: Allright do. Some Ward: Mr. [sic]. You by the damage that will be claimed elements suffering. that an pain Is include Plaintiffs area might feel there should you in which ceiling? certain Yes, I do. Juror Primo: strong personal feelings have you Mr. Ward: Do feelings? professional about that or Fairly, yes. Juror Primo: you be difficult then Mr. Ward: Would award for those an extensive come back with damage? elements pre- I think I have to be Primo: Juror really say that for everything first sented sure. problem in you might have a

Mr. Ward: But that area? might problem. I have a Juror Primo: now, difficulty you might have Mr. Ward: And going you knowing what evidence be— being objec- know, tive in that area? might difficulty you have now amount, think I yes. In the I don’t Juror Primo: objective very I’ll be

would be—I think there fault. of whether decision you if make that But we—when Mr. Ward: amount, may get you fínding and if we may not being objective? problems Opinion of the Court Juror Primo: Yes. Mr. Ward: And it’s right difficult to tell now

until you’ve everything? heard

Juror Primo: Yes. Mr. you might Ward: But know you have that problem? might,

Juror Primo: I yes. further, Mr. Nothing Ward: Your Honor. [Em- phasis added.] Mr. Hayes, counsel for the hospital, countered: Mr. Hayes: I just possible, take that it’s as knowing without you what are asked to make a on, judgment you might that problem not have a too, is that correct?

Juror Primo: That’s true. Mr. Hayes: you Do any feeling have to the effect something that if go wrong, does that somebody must be at fault? No,

Juror Primo: I don’t. Mr. Hayes: you Do any feeling have to the effect things happen sometimes without fault nobody reasons that really anything knows about and can’t anything do about? Juror Primo: I can see that happen does sometimes. Mr. Hayes: you, Thank I nothing ma’am. further, Your Honor. At the close of questioning Primo, court entertained Mr. Ward’s challenge for cause. Mr. challenges Ward: Plaintiff Mrs. Primo for 2.511(D)(5)

cause based on indicated she has MCR in that she’s [sic] opinions or conscientious scru- ples improperly influence her verdict and that she’s might indicated she be unable to be objective when it damages, comes to the issue of and, therefore, concern, having I think it encumbant might she be excused in that she [sic] Mich Opinion of the Court impartial verdict to render a fair and not be able all the in this matter. on elements stating: Hayes opposed, Mr. that, I Hayes:,! oppose

Mr. Your Honor. on her on compliment Mrs. Primo candor would freely that acknowledging might she have to all that might she not. problem, she also said that but going exactly supposed she’s to She’s to do what do, see, enough us and she’s honest to tell wait and might might she not. She won’t know she until gets anybody she there. I don’t think can ask more that. She’s not said she have a for definite might might than does problem. acknowledges only She that she some; to not have she would have got point. until to that wait she Mr. rebuttal: Ward’s Honor, I think she

Mr. Ward: Your do what I’ve stated falls within that she has cited opinions improperly influ- that would unobjective. her her She ence verdict and make regarding opinions stated has she has awards damages, selecting purpose and that’s the out, time, things ahead to find these rather deliberations, than when time for to have it’s minute; objective. say I can’t be We wait a until we that out don’t think we want wait find time. point at that time, final engaged

At the court in one Primo: colloquy intending pick on guess, The Court: I without prompted inquiry, I’m further you, to make some may. difficulty your if I consideration You’ve indicated some damage you if arrive at a amount damage. predicated upon Is that consideration of your mind that there is an prior position some op the Court absolute limit or that there should abe fíxed limit damages might be awarded in such a case? I feelings Juror Primo: there should ceiling damages. abe on Knowing The Court: that does not exist within our frame-work of law and if the case were proved you one which damages of an amount you that exceeded what have a belief should be a limitation, fixed would you fairly able ad- subject, dress the damages, consider the and make award, though might even be above or below figure you believe should be a fixed limita- tion? Juror It Primo: would not feelings affect my as fault,

far as the decision of who is at and once that made, then, understand, decision is from what I it’s the members of the Jury who decide on the amount. Right.

The Court: Juror Primo: I think I would have to listen to everything presented that was before I say could that, yes, eight I could say million dollars. I don’t that. just know It would depend on all of the evidence. The Court: But if the evidence were such that it persuasive enough were you and your fellow

jurors that there was liability both and an amount which you exceeded what feel should be a limita- tion, but evidence, was established by the you could award that amount? Juror Primo: This is not a decision I would make by myself, anyway. Right.

The Court: You would do so collectively. Juror Primo: I probably would strong have feel- ings awarding eight dollars, about yes, million liability even if everything. were established and The I Court: think it would be fair to state that anyone reluctance, would have certain go but your prior indication, back to difficult, would it be because figure size of that or because it— you would be limited you what believe should absolute limitation? 433 Mich op the Court figure. [Emphasis Juror Primo: The size added.] cause, of this

Following the denial his peremptorily, Mrs. Primo removed counsel Another potential peremptory challenge. second following ques- Primo replaced Ms. excused Rob- tioning, peremptorily Mr. Ward Keller, challenge. third and final ert his Bennett, James Replacing Mr. Keller was his supply During salesman. medical-surgical appellant hospi- he revealed that questioning, clients; acquainted he was one of his tal was J. with witness Walter through his business hospital; finally president Hooper, vice with witnesses Drs. personal that he was friends as other Sprunk, testifying well as Houghton and whether these witnesses.16 When asked physician relationships impair personal business and give special cause him to consid- his or objectivity exchange following pertinent occurred between the court 16 The juror Bennett: any relationships you acquaintances, The Court: Do have you parties or Counsel witnesses that would involve to this case? Yes, sir. Juror Bennett: that? The Court: Who is Osteopathic acquainted Hospital. I I’m with Juror Bennett: medical-surgical medical-supply salesman. sell to them. I’m a you so with Munson. Court: I I take likewise do see. Juror Bennett: Yes. hospitals probably other The Court: And area? correct, Bennett: That’s sir. Juror you acquain- you have —with whom do The Court: Do tance, today represen- persons here as either of the introduced hospital? tatives Yes, sir. Juror Bennett: do know them? The Court: You Hooper, yes. Juror Bennett: Mr. relationship you have as well as Court: Do social involving Hooper? relationship Mr. business sir, No, purely Bennett: business. Juror eration to certain testimony, Mr. Bennett replied, sir, "No I don’t believe so.”

B Our is duty here to determine whether the trial court abuse, abused its discretion and whether such present,

if warranted a new trial. Conse- our quently, analysis turns standard set forth in Spalding Spalding, 384- (1959): 385; 94 NW2d ., In order to have an . . "abuse” the result palpably must be so and grossly violative fact logic that it evidences not the exercise will will, but perversity of judgment exercise of thereof, but defiance not the exercise of reason but passion rather of or bias. We find that the line separating abuse from was, properly exercised discretion in this particu- instance, lar crossed. We singular, stress our most important concern in cases where there is an objection to the exercise discretion by trial courts in the for cause context is could, whether the resulting jury signifi- without question,17 cant provide parties with a fair trial.18 anything The Court: Is there that we have in to covered our you especially applicable

discussion and you feel you question your ability would cause reason to to be fair objective juror? as a personal Sprunk Juror Bennett: I’m friends with Doctor well, Houghton quite also know Matthew some of the other physicians. opinion to, any way, We do not strive with raise the juror qualification. Admittedly, thing standard of there is no such as a However, "perfect” jury. parties litigant,” "fairness must paramount continue to be the States and we concern selection. The United Michigan historically pace, Constitutions set this must, all, barring steadfastly adhere to it. ("Unless Longshore, supra See n 923. the error infects the litigant thereby deprived ultimate fairness of the trial so that op Opinion the Court case, required Primo juror present

In the 2.511(D)(5). The failure of MCR excused under of a the Poets the use the court to do so denied Ben- to excuse challenge peremptory later six-person of this nett, the foreman who became in this verdict jury’s the fact that Despite jury. course, zero, is, way no there of was six case how courts to know this Court or the lower knowledge, or personal general presence, Bennett’s trial, affected explored at expertise in the area during their deliberations.19 We jurors other however, of influence was maintain, the risk not high, if imminent. unacceptably to excuse refusing court’s error The principally of its Primo was an abuse discretion admissions on voir dire rendered her own because se.20 objectionable per presence jury her on action Thus, the trial court’s we indeed find palpa- of reason and was "so opposed any exercise logic bly and violative of fact grossly but perversity not the exercise of will evidences peers, his her the error will be considered of trial harmless.”) plaintiffs had no The which remained because challenge may a hawk amid seven to remove him have been imposed [Crawford, supra n 10 his will them. doves and 1093.] 2.511(D)(5). required to under MCR Juror Primo was be excused her, herself At conclusion the voir dire discussion she with, probably feelings "I the nature of her would characterized dollars, feelings awarding eight yes, strong if about million even p simply liability everything.” 249. See She were established and Thus, our decision that the trial court committed bend. refusing to her for cause is without reservation. error in excuse 1989] Spalding, supra

will.”21 at 385.22

IV A totality following factors further supports finding satisfying our of abuse here. In requirement, improperly the first that for the court totality denied cause, profession registered spe- Primo’s cial skill as nurse, a her reviewing quality-of-care in issues in working cases, neonatal relationship intensive care her close hospital with the wife of the vice- 21Despite presence Michigan its jurisprudence, steadfast in the applicability Spalding continued of standard review to civil general questioned. in cases has been See Southfield Police Officers Southfield, 168; (1989) (Boyle, J., Ass’n v 445 NW2d 98 However, dissenting.) topic we leave the full discussion of this for a day. later 22 cases, findings In civil the courts are divided toas of abuse in this context, depending specific on the facts of each case. Tacke v Vermeer Co, (1986) Mfg 1; (trial 220 Mont 713 P2d 527 court abused discretion refusing juror a to a cause whose husband sold a particular type allegedly injured plaintiff); of baler which the West Dep’t (W 1982) Virginia Hwys Fisher, Va, (physi of v 289 SE2d 213 cian-patient privilege although prospective juror; existed between a a se, disqualification per prejudice not of or likelihood bias require aside); was sufficient to the verdict to set be Alabama Power 1976) Henderson, (not (Ala, vCo court to fail to exclude a 342 So 2d 323 abuse for trial juror drinking who he said had been morning selection); Co, Penney (Alas, of Malvo v J C 512 P2d 575 1973) (action against department imprisonment; a store for false grant plaintiff’s challenge jurors outstanding failure to charge prejudicial plaintiff balances on their accounts to the who peremptory challenges); had used all v Rauscher St Col Benedict’s (1973) (where lege, 20; judge 212 Kan 509 P2d 1137 the trial senses prospective juror may casting that a answers on voir dire a designed excused, manner to secure that he be there was no abuse juror); Exchange, the court’s failure to excuse the Barb v Farmers Ins 1955) (in (Mo, personal injury 281 SW2d 297 a action where matters might disqualification gone which have established were into on voir trial). deceptive, dire selected venireman is there can be fair no recognize, however, cases, We in criminal courts in other jurisdictions uphold unanimously grant almost trial court decisions to deny See, e.g., a defendant’s motion to dismiss for cause. United (CA Jones, 8, 1989); Indiana, States v 865 F2d 188 Andrews v 529 (Ind Drake, App, 1988);People (Colo,1988); NE2d 360 v 748 P2d 1237 (CA 2, Murray, 1980); Alaska, United v States 618 892 F2d v McGee (Alas, 1980); Earnest, People 734; 614 Cal (1964). App P2d 800 v 53 Cal 3d 126 (1975); Rptr Sorrell, 220; 107 Arizona v 95 Ariz P2d 433 Mich 228 of vice-presi- president, acquaintance with the her case, con- himself, and her witness in this "strong personal dent feelings "fairly” about” ceded uncompromising damages,23 bias render the risk Bernard, 386 Mich Fisher clear. As we stated (1971), scruples of "[t]he 186; 191 NW2d debilitating jurors as as can be conscientious other characteristics impartiality.” impediment Further, these great produced taint of bias too impar- away assertions reasoned with bare be tiality.24 whether there was an abuse Court to determine In order for this case, personal characteristics we considered of which were overall resolution strong cause, in this discretion inextricably necessarily bound with the to and collateral i.e., appealed, whether Primo’s of the issues damages, justified removing personal feelings her about refusal to do so was an abuse of the trial court’s whether necessary to sever do not consider it discretion. We did Thus, we of a in order to reach decision. characteristics underscore that juror qualification appellate issues consideration Blades, supra requires of a of factors.” the review "combination 324. that our consideration While dissent makes observation inappropriate, "totality” we Primo’s characteristics respectfully disagree. Primo it no coincidence We believe negative feelings voluntarily only juror about who offered her was the Indeed, damages specifically sought that the we surmise the here. perhaps directly very and total effected nature of her characteristics of prompted to distaste for the size the her decision articulate even Thus, proposed the again, of maintain that our consideration verdict. we juror’s appellate in "totality” on review this of characteristics context, justified and essential. 24 agree jurisdictions spoken in a number of There are example, Supreme premise. of the Court Missouri ment with this reasoned, For prejudice juror . . he a a admits . had "Where gave prejudice up being his . to the time he first . . that that existed and dire, yet, and cross-exam his voir after examined answer court, say by he divest his the ... to could ined counsel and case, try prejudice prejudice fairly a and that the of such a and mind had minutes, scarcely dissipated it can be within the last five become system reasonably juror requirements fills of our that such a the said Inc, Freightways, jurisprudence.” 266 SW2d of Moore v Middlewest 1954). noted, juror 578, may (Mo, Further, Virginia, the court "The 586 in bias, yet honestly he is free from all and and believe that state both, evidence, may appear or from his own or from extraneous Smith, may Chesapeake 103 & O R Co v Va not be the fact.” such (1905). Oregon, "[ijnitial 328; Finally, reactions or SE 487 in 1989] Poet v Traverse the of

B Turning question whether error failing juror requires reversal, to excuse Primo we plain- conclude it The does. record reveals that the requirement tiffs met the second they of the test in that peremptory challenges.25 had exhausted their juror venire, When Bennett was summoned peremptory challenge plaintiffs which were compelled use on Primo would have been improper available for use but for the denial of challenge cause. questioning juror Bennett,

After the voir dire plaintiffs’ motion to him remove for cause 2.511(D)(10) (12), under MCR was denied. The plaintiffs, require- therefore, satisfied the third Lastly, ment.26 because Bennett admitted having personal relationships multiple with de- case, fense witnesses this in addition to his relationships appellant hospital business as a supply requirement salesman, medical the fourth was satisfied. injuries

We here, believe there were two one primary secondary. primary injury, one The given answers issues in voir dire without undue debate confinement of greater determining weight should be afforded much [a juror’s] Early truly true of mind. frame answers or reactions more juror’s opposed generalized indicate the statements that Joseph frame of mind as to later fair.” v of St Lambert Sisters (1977). Peace, 223; 277 Or 560 P2d 262 25 addressing subsequent peremptory In Mr. Ward’s use of his third challenge our juror Keller, again to excuse we that it is stress not within power pass challenge peremptory on whether the use of this imprudent. importance wise or was peremptory challenges Court. The use of the unencumbered long recognized has been affirmed Miller, (1981). People 321; NW2d only We a stress that need on the a demonstrate record subsequently juror. desire to excuse another summoned manifes cause, may request tation of this desire be a motion to peremptory challenges exhaustion, for additional simple the case expression of dissatisfaction with who cannot be compelled improperly excused because of exhaustion. 433 Mich 228 256 Opinion op the Court juror Primo for course, to excuse the failure was peremptory of a cause, the later use denied which challenge. however, believe, that the We further secondary clearly the illustrate this case facts of injury danger inherently such an exists when that challenge party, i.e., the the fact that befalls juror forced the Poets’ counsel denied Primo was challenge peremptory her, and, to excuse to use a right aifront, Poets’ an that the as a result of impartial jury immediately placed jeopardy. in was right Although to a is no constitutional there challenges,27 peremptory the of certain number resulting jury practical is that the matter here relationship impartial of because be- was not tween the trial court’s denial of challenge for juror presence objectionable of later cause and the Bennett.28 hospital Finally, appellant asserts be- by venire Primo excused from the cause challenge, way peremptory any error committed of overruling trial her court position, support of this cause was harmless.29 In Oklahoma, 2273; 81; 108 101 L Ed Ross v 487 US S Ct 2d See (1988). ("A litigant’s Enterprises, supra n See Miles v FERM 64. rights required exhaust constitutional are invaded when he is his challenges peremptory on a who should have been dismissed prejudicial failure cause is in itself without cause. The regard to dismiss for peremptory might final to whether have been used panel.”) another who sat on the dismiss Again general Bishop, position espoused in Craw- we note that ford, Wasko, Ceretti, establishing supra, Veach and is sound degree ample prejudice in the an additional exists even absence independent showing prejudice. also Carter v of such See (1969); 55; 9; Singletary, Beasley, 80 NJ 285 Ala 228 So 2d 770 State v (1979). 402 A2d 203 argument regard gist appellant’s in this action, no because the returned verdict of cause issue damages failing any error committed in was never reached and therefore reasoning flaw this to excuse Primo was harmless. The is twofold: First, elementary personal injury there are two it is cases

1989] 257 Opinion of the Court Mining Quincy Co, 112; Pearce (1907) is NW cited. party’s

Pearce involved a trial court’s denial challenge question for cause where the in addressing peremptorily. was later excused In how peremptory challenge the exercise the later case, effected the we held: impartial An all jury party that a is entitled to, and when he has he obtained that has no valid ground complaint.[30] for agree general theory operating We do with the litigants constitutionally Pearce, in that all are impartial jury. specific However, entitled to an the rationale in Pearce is flawed in that the court did recognize degree preju- not, time, at that that a presumed impartial jury can dice be even when an light viability logic Thus, in results. of the Bishop cross-jurisdictional in found and its coun- terparts, find we that Pearce neither the reflects subsequent involving evolution of the law major matter, equally liability damages. practical issues: As a cap Primo’s adamant should assertion there be a on damages necessarily reasoning have affected her as to the Second, complete resolution of the case. our assessment of error juror "selection,” i.e., occurring addresses at the error time selection place. Thus, involving juror took because the selection error Primo remaining jury, resulted harmless. Bennett on such was not error 30Principally, premise attempted the Pearce Court to overrule a Theisen, (" supra say introduced in 'It will not do to that this error by challenged cured fact that counsel afterwards 116-117, peremptorily citing Theisen), ....”’ Pearce at and later developed supra, Bishop, prejudice effect to the cannot inher presumed simply ently peremptory the denial of the use of a view, challenge however, impartial jury if an In results. our the Court only placing litigants in Pearce succeeded on limitation when reversal, i.e., may peremptory challenge requiring party establish error if a utilizes a person previously to excuse a venire who has cause, unsuccessfully challenged ground been there is no complaint peremptory impartial jury. if the later excusal in an results Mich Opinion of the Court right,31 challenge peremptory nor as a substantial aggrieved factually whether indicates could another wished not, later reasons, we For these in the instant case. as dispositive completely find that Pearce is presented questions here. personal Indeed, of Mr. Bennett’s the sum total testifying relationships with several and business jeopardized hospital including itself, witnesses, Consequently, integrity entire trial.32 fulfilling duty our to insure the interest opportunity litigants given to are the in this state impartial disputes their heard a fair and have jury, as erred so that the trial court we conclude juror require failing Primo to in to excuse reversal supports the the for cause because record deny of a to the later use effect of the failure was challenge, peremptory case,33 which, in forced this juror. objectionable an the endurance of

CONCLUSION light above, hold that In of our consideration we requiring a commits error reversal trial court (1) improp- court when the record reveals that: the (2) aggrieved erly party cause, for the denied a (3) challenges, peremptory the all exhausted Miller, supra. People See n juror emphasize appellant appeal the did not as We Nevertheless, qualification is Bennett. our review of Bennett’s essential, instance, solely purpose properly and the of this completely analyzing the effect the trial court’s error had on the not, jury. impliedly subsequent is of this assessment construction Our otherwise, ruling attempt lower court’s or an to affirm or reverse the the contained Mr. did not meet criterion for dismissal that within Bennett 2.511(D)(10) (12). focus, rather, is on causal MCR Our the relationship the refusal to dismiss Primo between court’s objectionable presence the of Bennett. cause and later legal application principles the contained stress that the of We totality the the must be made with due consideration to herein of each individual case. circumstances Opinions by Brickley, J., Riley, and C.J.

party demonstrated desire to excuse another (4) subsequently summoned juror, whom wished party objec- later excuse was tionable.

Accordingly, because the in the case bar factors, satisfied all these we affirm the result of of Appeals order new trial. Levin, Brickley, JJ., Cavanagh, concurred Archer, J. J. Brickley, signed I concur opinion express Justice wish Archer, but agreement with aspect one of the dissent Chief Riley. Justice While do not think it was the I gravamen juror’s case, bias this practice testing on specific dollar jury damage amount good awards is not a practice and is within certainly court’s discretion avoid. out, points As the Chief Justice not only might "pledge” the to a verdict to the unfair detri- defendant, ment but in situations where the case, juror bias is less evident it might than well create an appearance against of bias a high dollar verdict is only high a reaction to figure dollar prior heard to the introduction of any evidence or on instruction the law. IC.J.

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

The recognizes the ulti- majority correctly Mich Dissenting Opinion Riley, C.J. deny party’s grant or whether decision mate challenge court’s the trial falls within on voir dire Consequently, must determine we discretion. in discretion court its trial abused whether grant plaintiffs’ As refusing for cause. any oppose must such, court’s action the trial " grossly palpably and 'so and be exercise reason logic that it evidences of fact and violative ” p perversity Ante, of will.’ of will but exercise Spalding, Spalding 385; 94 252; (1959). NW2d majority case, applied in the instant

As its discretion court abused that the trial concludes upon refusing juror Primo for cause excuse totality following reasoning: "the the basis of registered profession nurse, her as a of Primo’s special reviewing quality-of-care issues skill working cases, her close intensive care neonatal hospital relationship vice- wife of the with the vice-presi- president, acquaintance with her case, her con- himself, in this a witness dent fairly’ 'strong personal feelings about’ dam- ceded uncompromising ages, bias render the risk added). (emphasis pp It is Ante, 253-254 clear.” regard- combining juror only by statement Primo’s damages ing the first four factors majority the trial the conclusion can reach refusing grant its discretion court abused plaintiffs plaintiffs’ challenge However, for cause.1 dismissing raised these factors as basis never plaintiffs Rather, relied for cause.2 Primo 1Conversely, Appeals trial Court of reversed the decision regarding solely Primo’s statements court the basis However, Appeals ignored damages. standard of the Court merely judgment appellate for that of the review and substituted its trial court. inquired and found Primo’s court into these areas trial questioned satisfactory. juror Primo further Plaintiffs never answers and never appeal. raised these issues on Dissenting by Opinion Riley, C.J.

entirely Primo’s statements pertaining to damages as the basis for the trial court’s failure to dismiss Primo for opinion, cause. In my in majority considering errs these other factors. More importantly, assuming even the ma- jority only upon juror relied Primo’s statements of regarding size a potential damages recovery, I disagree that the trial court abused its discretion refusing grant plaintiffs’ in to challenge for cause. began The trial court voir dire examination with a few statements introductory questions con- case, cerning the instant malpractice medical evidence, action. Before the introduction any plaintiffs’ attorney the question: asked

The Plaintiffs intend to offer evidence which will that young indicate [sic] Matthew a quadrapalegic blind, child who is from suffers cerebral palsy, essentially and is anything unable do for him- self; care for the going require that he is twenty-four-hour life, rest his and that he will be unable to be gainfully employed for the rest of his life, hence the will Plaintiffs further claim that therefore Matthew Barbara, parents, Jeffrey and his very, very have suffered extensive dam- ages. We intend establish and offer evidence damages by par- would indicate that all the ties approximate are amount of in excess of eight one of large million a very, very figure, dollars. It’s shocking that is—could be any to hear. Would you, have, you fact, if find that the Plaintiffs by proof us, the burden of required that’s estab- negligence, proximate lished damages cause and such an extensive amount —if you are able find that, burden, met we’ve our would there be you who would not be able to award such damages just because they nature that are large such a amount? The majority believes Primo’s respon- ses to this and questions similar warrant reversal 433 Mich Dissenting Riley, C.J. my However, in trial court. of the the decision of opinion, juror did not consti- statements Primo’s requiring when considered reversal error tute their proper District As one United States context. summarized: discloses applicable authorities A review of its may, in the exercise the trial court that discretion, designed interrogation to permit juror large against pre-existing prejudice bias or identify damage readily yield not to the may which awards however, imperative, presented. ... It evidence general inquiry framed in any be that entirely such manner, to nonsuggestive so as eliminate question will serve to any possibility panel to pledge any member of the commit or [City of specific amount. Cleveland verdict (ND Co, Supp 538 F Electric Cleveland Ohio, 1980). Citations omitted.] perfect example presents The instant case suggestive improperly plaintiffs’ inquiry is this; plaintiffs, inflammatory. hand, the one On and through attorney, the amount "is state their shocking hear,” other and on the —could be to juror hand, like want to dismiss cause someone agrees. only seem rather Not does this Primo who anomalous, underlying

but it illustrates that may in the instant case error Primo’s rather, plaintiffs’ questions responses but, plain- overly suggestive in the nature transcript questions. dire indicates tiffs’ The voir returning genuine concern was over Primo’s hearing any without evi- million verdict an $8 recognized juror Pri- Even the trial court dence. difficulty comprehending the tenor of mo’s plaintiffs’ appropriately

question conducted questioning help clarify In the situation. further response, unequivocally her stated Primo Dissenting Opinion Riley, C.J. willingness ability her base decision steadfastly evidence, but she refused to commit any specific herself to return a verdict for amount. Although plaintiffs may not have Pri- liked answer, that, itself, mo’s in and of does not man- dismissing date her for cause. purpose challenges to im- cause are

panel impartial jury. questions However, an which require potential jurors "pledge” willing- their specific ness to return a verdict for a exorbi- money impaneling tant sum of does not aid impartial jury produced because neither has plaintiffs only evidence. If wanted to out ferret potential jurors might large not return a plaintiffs proved if verdict all the essential ele- they case, of their ments then did not have to list severity the injuries and intricacies of Matthew Poet’s specific thought they

and the amount he They only any should recover. to had ask whether returning "very large had trouble a multi- or jury appropri- million dollar verdict which would ately compensate plaintiffs injuries.” for their Hardwick,

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

First and when the Bunda Court ad- required issue, dressed the GCR 111.1(3) a 1963, plaintiff plead specific damages to amount of requested particular as relief cause of permit Thus, action. it made some sense to a Dissenting Opinion Riley, C.J. inquire into on voir dire examination plaintiff return potential whether amount, plaintiff the sum the specific for a verdict fact, the Bunda complaint. In requested scope of voir only Court authorized this narrow inquiry: dire argument begs question, in that

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

However, then, adopted MCR since 111.1(3) 2.111(B)(2), superseded which GCR damages over prohibits seeking a plaintiff and now $10,000 specific relief requesting from after must left for amount. That issue trial. Conse- all of the evidence they evaluate permitted to ask plaintiff should not be quently, spe- return a they would potential jurors whether $10,000 just plaintiff because over cific verdict question That does figure appropriate. that deems return ability to potential juror’s not affect a amount requested. in the verdict case, controversy arose be- instant the In the could base her stated that she Primo cause but she presented, the evidence decision into return- commit herself refused to steadfastly hearing any of million without a verdict ing $8 her- pledging hesitancy Juror Primo’s evidence. Dissenting Opinion by Riley, C.J. self return a verdict of million without $8 hearing any evidence should not be condemned.3 3The court trial reached the same with conclusion almost identical reasoning the at motion a new trial: The Court: The as to Juror Primo was made under 2.511(D)(4) (5). juror’s response MCR respect entire context of the Court’s observation to matters with damage to amount of need of be examined terms regard voir it dire. In that is the one that of the tactical that decisions personal-injury will Counsel this the recognizing tude of what the make in the course of a action of type advocacy is that it is an effective of bit to condition Jury damage made, request to the of be nature that will Jury may anticipated or disclose. It magni- that the not have proofs might is, support how- ever, quite suggest may present prospec- reasonable to that jurors difficulty, they’ve

tive them, some before heard of would, suggestion they to commit themselves to a that give figures range without reluctance multi-million dollars. consideration to in the of dire, page In this instance the course of voir Counsel’s at twenty-two transcript prospective of the it was disclosed to jurors indicating there was an intent to offer evidence damages dollars, range eight acknowledging in the of million shockingly-large figure. could inquiry be a This was an panel addressed Bennett, before Juror Primo was seated or Juror they present part jury array but were and a inquiries. page twenty-three hear and did Counsel continues that it’s consider and live with At Plaintiffs’ necessary jurors that the able to be possible damages fairly that will com- pensate, dollar, dollars, whether it one is zero or ten million Likewise, responded page dollars. Defense Counsel then — twenty-seven asking Jury panel they capable, if would be — finding liability fault, fault, negligence in a of no or no returning recovery, notwithstanding a verdict of no the sub- damages might stantial be heard. important, response This context is because the first of Juror suggests specific figure Primo she was concerned about the eight first, response million dollars. She to the Court’s general questions page forty-eight, might indicates that she responded differently persons somewhat than other seated feelings around her because of different compensation. about the elements of page forty-nine On she makes it clear that this fault, judgment simply would not affect her but the amount and, damage, again page forty-nine, on her misunderstand- ing explanation responsibility and need for some of what the clear, jurors indicating that if this means judgment guilty, automatically eight then it’s million dollars, question, possible and she raises "Or is it guilty required to be someone and the amount be lesser.” She attempted explain and the fact that the amount of 433 Mich by Dissenting Riley, C.J. its did not abuse the trial court Accordingly, Primo to dismiss refusing discretion the I reverse case. cause in the instant issues, negligence damages, would be left as cause and as well explanation, Jury. responded, at after that to the She then knowing possibilities, page fifty did not feel those that she that preconceived interfere with notions that would that she had Then, presented. fairly assessing judging be as and the issues to ques- Counsel, Counsel initiated when Plaintiffs’ indicated did, fifty-two, prospective juror, page tioning fairly to at she of this ceiling strong personal feelings some that there should be question damage. to her then terms was raised you to with an it be difficult then for come back "would extensive damage?” Her answer award for elements of those presented everything was, "I I would to be with think have first, might problem,” really say I have a and to that for sure. Hayes’ question, response page fifty-three it’s true on to Mr. Court, pages might problem. at she not have a When that fifty-five again specific figures juror, fifty-six, questions further of the she and asked equivocal saying problems with have was she would correctly eight like million dollars. She decision, point be her and indicated that it would not sole explored page fifty-six, question page, we last on that difficulty difficulty having a it a with her and she said was not amount; preconceived it size of or absolute was the limitation figure bothering that was her. conclude, reviewing what the I would in that context say, clearly prospective which falls within the areas delineated matter it is not a had 2.511(D)(4) by MCR hesitation, (5). contrary, problem a To the she had indicated figures, dealing high not an absolute limitation. in Her nized this was a serious easily the She hearing but me, recog- difficulty, properly was indicative she simple one, undertaking, not not a one said, repeatedly "I to hear As she would have resolved. evidence, all,” clearly appropriate position. is an hear any figure in advance of should not commit herself empathize I with the who the evidence. can having knowledge proceedings not of our comes without precise grasp in at the of the trial would be the task end of what deliberation, appears the Court in this circumstance but it proper type we who has shown the recognize quick judgments, to the serious- to make reluctance ness about to undertake. of the task she is inappropriate being state of an a clear indication There opinion improperly influence which would of mind or of a fixed verdict, I this to within sub-rules would not conclude Court, cited, as a matter within discretion but Brown, 760; App 319 NW2d in Brownell [v set forth 664 (1981)]. Opinion by Dissenting Riley, C.J. Appeals reinstate decision of the trial court. J., Riley,

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

Case Details

Case Name: Poet v. Traverse City Osteopathic Hospital

Court Name: Michigan Supreme Court

Date Published: Aug 22, 1989

Citation: 445 N.W.2d 115

Docket Number: 82941, (Calendar No. 4)

Court Abbreviation: Mich.