Wardell v. McMillan

II. Did the trial court err in instruct- MACY, C.J., Before THOMAS, ing the defendants were * CARDINE, GOLDEN, URBIGKIT and presumed care, to have acted with due JJ. though even A. prima presented Plaintiff a 'fa- MACY, Chief Justice. cie case of negligence; Wardell, Mack as the conservator of B. preponderance Plaintiffs bur- Wardell, minor, Neal filed medical mal- proof den of properly was set forth in practice against McMillan, suits Jon M. other instructions? Peters, M.D. and Stan M.D. Wardell al- III. Did the trial denying court err in leged negligently that the doctors treated plaintiffs motion in limine to exclude son, Neal, proximately caused his plaintiffs prior references to settlements quadriplegia. Following trial, lengthy non-party with a and a party, former jury returned a verdict favorable to.the where defendants did not contend that doctors, and the court judgment. entered a either of those entities had propor appeal, On Wardell asserts that the trial respect tionate fault with plaintiffs (1) court him by: denied a fair trial unduly injuries? [1] selection; (2) restricting jury erroneously The doctors restated the sepa- issues in instructing jury profes- that medical rate briefs. rephrased The issues as presumed sionals are to have acted with McMillan are illustrative: care; due improvidently denying Wardell’s motion limine to exclude refer- A. Was the selection fair? prior ences at trial to settlements. 1. Was the failure grant an ex- peremptory challenge tra for the alter- We reverse and remand. juror and, so, nate error if was harm- it Wardell raises the following issues on less error? appeal: 2. Did the trial properly give court I.Did the trial court erroneously re- each defendant three peremptory chal- plaintiffs strict Specifi- selection? lenges? cally: 3. Did the trial court properly re- when, A. Did the trial court err al- fuse to excuse Wasmuth and though jurors, it called two alternate it Brown for cause? failed to afford each side an additional 4. Did the peremptory challenge, properly trial court required by as re- 47(b), strict voir dire concerning alleged Rule W.R.C.P.? “lawsuit crisis”? B. Did the trial court err in giving the two defendants twice the number B. Did the trial court properly in- peremptory challenges afforded struct that the defendant doc- plaintiff when defendants were allied tors presumption were entitled to a and, fact, presented a coordinated reasonable care which could be overcome mutually supportive by expert defense? testimony? * argument. Chief Justice at time of oral alleged sues voir dire on the "lawsuit Wyo- crisis” and disclosure of settlements under Wyoming Lawyers 1. The Trial Association filed ming's comparative negligence law. an amicus curiae brief which addressed the is- Hospital qua- erroneously released from Children’s as a court Did the

(cid:127)C. request driplegic. to inform the grant Plaintiffs others, or did jury of settlements negligence action Wardell filed a error? Plaintiff invite Hospital May on McMillan and West Park cross-appeal, McMillanrais- separate In a alleged McMillan was 1989. He following issue:

es negligent failing to immobilize Neal’s issuing err in its court 1. Did the trial neck, test, range-of-motion performing deny- Order 1990 Protective October permitting and in Neal to move about when Defendant/Appellant Jon M. McMil- ing that Neal he knew or should have known expert ability fully discover the lan the spinal injury. suffered a cord On No- had treating phy- testimony of a opinions and 13, 1989, separate vember Wardell filed a sician? alleged against Peters. He that Pe- action substantially negligent for following in an- ters was issue Peters raises complaint as he cited in the cross-appeal: same reasons separate other hospital. These against McMillan and the issuing its the trial court err 1. Did consolidated for trial a court cases were deny- Protective Order October January order filed on Peters the ing Defendant/Appellant Stan expert opin- ability fully discover actions, filing civil Wardell addition treating physi- testimony of a ions and County Big filed a claim with Horn School cian, Larry McCleary? E.Dr. pursuant Wyoming District No. alleged Governmental Claims Act. Wardell Background negligent the school district was 13, 1987, Neal fell on a May Wardell On playground. The failing to maintain a safe playing at school. After while he was rock hospital school district and the settled recess, complained pain between Neal respective alleged against pri- claims them experienced and diffi- his shoulder blades or to trial. authorities culty holding pencil. School Jury began on selection November The ambulance summoned an ambulance. began and the trial on November Hos- transported Cody’s Neal to West Park presented expert testimony 1990. Wardell Peters, hospital, emergen- pital. At the an theory support injuries to his that Neal’s McMillan, physician, and an ortho- cy room proximately by negligent caused med- were he pedic surgeon, examined Neal. While doctors, turn, pre- ical treatment. The Peters, under the care of McMillan was expert testimony support to their sented radiographic underwent numerous Neal theory that “the die was cast” when Neal x-rays failed to demonstrate studies. i.e., fall, playground; fell on the fractures, dislocations, or oth- any apparent care, subsequent not the medical caused spine. De- of the cervical er abnormalities 7, 1990, paralysis. Neal’s On December radiographic spite the lack of evidence verdict, special finding returned a neurolog- injury, progressively Neal lost an McMillan, Peters, negligence by no to functioning. The doctors decided ical district, hospital, or Dr. Johnson. school by helicopter to Vin- transport Neal St. appeals. Wardell Hospital Billings, Montana. Neal cent’s evening during the arrived at St. Vincent’s 13, 1987, May placed and was into

hours of Jury Selection Johnson, M.D. Neal’s care of James 4?(b)2 W.R.C.P. at St. continued to deteriorate condition judge claims that the trial com- Vincent’s, Wardell transported to and Neal was by denying error him his Colorado, mitted reversible Hospital Denver, on Children’s challenge right peremptory an additional 14,1987. to Hospital, At Neal May Children’s Hendee, Jr., against jurors alternate as was M.D. to be used by Robert was treated 47(b). Specifically, required by W.R.C.P. McCleary, M.D. Neal was E.L. 2. Revised effective March Daniels, a fair right contends that his to strike Mr.

Wardell who has been treated implicated when he was was forced the doctors. I would strike Mrs. Mil- per- statutory ler, his of three use allotment has been reported who to us to have against emptory challenges panel Mormons, of four- a bias and the War- prospective agree. jurors. teen We obviously dells are family, Morm[o]n Klentz, expressed and Mr. who concern judge The record discloses that the trial about whether he fair to can be our side. prior jury selec- informed trial counsel prospective jurors tion that fourteen would judge The trial erred as a matter of seated in the box. Trial counsel overruling objection law in Wardell's and in proceed were to with voir dire as if denying request per for an additional qualifying jurors. Trial were fourteen emptory challenge. judge Once the trial counsel, jurors, but not the knew ad- exercised his discretion invoke W.R.C.P. posi- that those individuals seated in vance 47(b) purpose seating alternate three and alter- tions thirteen be the jurors, parties were to an entitled extra being jurors. Upon nate advised of the peremptory challenge a matter as of law. process, objected selection Wardell as The trial was afforded no discretion. follows: plain language 47(b) of W.R.C.P. bore Well, I FOR [COUNSEL WARDELL]: this out: doing. the Court’s Let understand what (b) juror. Immediately pri- Alternate — say objection I I me insofar as have jury, to the selection of the the court may required per- use my both of (1) (2) may jurors direct one two emptory challenges people on who are panel to the regular addition be called alternates, going to be and all more impanelled as ju- sit alternate I need reason more. (1) If rors .... either one or two THE possibly COURT: That can be party alternate are called each any for to the party true case. to one peremptory challenge entitled I see FOR [COUNSEL to those by WARDELL]: addition otherwise allowed that, knowing Your But in ad- Honor. peremptory law. The additional chal- that three and thirteen will be may vance[] lenge only against be used an alter- alternates, prefer I much to would juror, nate and the peremptory other challenge to exercise an extra to the able challenges allowed law shall not be is, because[,] being as it I alternate am used the alternates. my to three chal- permitted statutory use added.) 47(b), (Emphasis W.R.C.P. af- lenges panel ]rteen, on when fou[ an fording peremptory challenge, extra likely try most the fact twelve will designed part was protect to from dilu- case. litigants’ statutory right tion the to have granted that, THE I COURT: If I then challenges peremptory three in the event grant have each other judge the trial decided to seat alternate parties opportunity to do same jurors. thing. 47(b) purpose of W.R.C.P. was frus- objection So the is noted on record litigants trated in this instance. The were overruled. and forced to make a “Hobson’s Choice” not again objected procedure Wardell 47(b): contemplated They W.R.C.P. process: near the end of the selection disregard 47(b) could W.R.C.P. and exercise statutory I am peremp- FOR their of three allotment [COUNSEL WARDELL]: going my peremp- tory challenges against regular now to exercise third and both tory challenge. being jurors, I am forced to use could use their they alternate therefore, alternate, on the getting statutory challenges against only regu- it not challenges. go- peremptory jurors objec- three I am lar and take the risk that an ing on I upon to exercise it Mrs. Kaelberer. tionable alternate would not be called time, equal I at this if were chose also afforded deliberate case. Wardell challenges, objection- an number defense would former alternative and struck challenge. objected again just prior to statutorily allot- He with a juror able alternate circumstances, exercising statutory peremptory third challenge. Under ted challenge juror. an alternate Warded him for that choice. on do not fault we abundantly objected it clear that he made dispute the fact do not The doctors statutory per- using one or more of his an extra not afforded parties were emptory challenges on alternate and Rather, they ar 47(b) challenge. W.R.C.P. an thought that he he was entitled to have objec things, that gue, among other challenge. peremptory additional the trial were made to tions Wardell objec- suggest The doctors that Warden’s appeal preserve the issue insufficient to event, tions insufficient in that W.R.C.P. that, a technical violation were 47(b) 47(b) specifically not cited to the trial was harmless error ab was of W.R.C.P. prejudice. disagree. Although we encour- showing of court. We specific sent a specific possible age counsel to be as as that, often held absent This has Court making objections, we find it when error, alleged not consider an plain it will apply 46 in a ritual- ill-advised to W.R.C.P. trial. objected not to at error which was exalting form istic fashion. We would be State, See, P.2d 1004 Monn v. e.g., over substance if we were to hold that (rule applied in criminal con- (Wyo.1991) objections in this case were insuf- Wardell’s text); Company, Inc. v. and Triton Coal preserve alternate-perempto- ficient to Inc., P.2d 505 Producing, Mobil Coal appeal. ry-challenge issue for See 9 (rule re- applied in civil context (Wyo.1990) Wright R. Miller, Charles A. & Arthur instructions). garding jury W.R.C.P. Federal Practice Procedure required litigant to make known to the fashion, timely in a the action judge, objection to the court’s requested he or his Having decided that the trial court grounds pur- therefor. The action and his objections erred and that Wardell’s were to inform the trial pose of this rule was sufficient, must decide we now whether possible so that he could judge of errors perempto court’s failure to afford an extra rulings consider his opportunity have ry challenge required by as was W.R.C.P. them, necessary. if 5A to correct 47(b) warrants reversal under the circum al„ James W. MooRE et MooRe’s Federal According stances of case. 1989). (2d ed. 1146.02 Practice 7.04, Wyoming W.R.A.P. W.R.C.P. law,4 only trial error objections made to the case is reversible when Wardell’s underlying rights purpose fulfilled the substantial to a fair trial have been court objected prejudiced. immediate- Kennedy, W.R.C.P. 46. Warded See Smith v. upon learning judge (Wyo.1990). appellant that the trial was P.2d 832 is ly 47(b) going pur- charged demonstrating W.R.C.P. for the with the burden of to invoke jurors pose seating prejudice. alternate without the existence of Id. He can that, litigants peremptory prejudice by demonstrating affording the an extra show ab- any ruling anything provided: or order or in done or 3. W.R.C.P. by by any parties omitted the court or of the exceptions rulings to or orders of Formal unnecessary; pur- ground granting are but for all is for a new trial or for the court poses exception vacating, an has heretofore setting modify- for which aside a verdict or for necessary party, it is sufficient that a at been ing disturbing judgment or otherwise a ruling the or order of the court is the time order, ap- unless refusal to take such action sought, makes known to the court made or pears to the court inconsistent with substan- he the court to take the which desires action justice. every stage at tial The court objection and or his to the action court disregard any proceeding must error or defect therefor; and, grounds party his if a has no proceeding which in the does not affect the object ruling opportunity to a or order at rights parties. of the substantial made, objec- it the absence of an the time provides: W.R.A.P. 7.04 prejudice him. tion does not thereafter error, defect, Any irregularity or variance 24, 1992.) (Revised effective March rights which does not affect substantial shall provides: 4. W.R.C.P. 61 disregarded. be in either the admission or the No error no or defect exclusion of evidence and error error, possibility sent the a ex- of challenges reasonable for peremptory cause and might ists challenges. verdict have been more Wyo.Stat. 1-11-202 §§ to him. favorable Id. (1988) 47(b). -203 and W.R.C.P. A trial court’s juror refusal to excuse a for cause case, argues instant Wardell upon a proper showing of bias or denial of right right a fair substantial and —the a peremptory challenge by afforded law impartial jury adversely affected —was implicates litigant’s substantial interest the error below. He contends that the trial in, to, right impanel impartial jury. an judge’s failure perempto- to allow an extra State, v. (Wyo.1984), Patterson 691 P.2d 253 challenge ry composition affected the of Cf. denied, rt. 471 U.S. 105 S.Ct. jury. he Wardell claims that would ce (1985) (dilution 85 L.Ed.2d 311 have used his statutory peremptory third statutory defendant’s peremp allotment of challenge on one regular of three identified tory challenges by jurors, allegedly who were trial court’s failure to biased case, properly juror had he been afforded an excuse extra for cause held 47(b) challenge error). Third, W.R.C.P. to use on an alter- reversible requiring the com argues nate. Wardell that he should not plaining party to show the existence of required improperly show how the prejudice actual would ask him “to discover composed jury actually prejudiced his case the unknowable and to reconstruct what require conjecture to do so because might i.e.,] have been never was[; speculation. agree We and hold that jury properly after running constituted the trial court’s failure to afford the liti- gauntlet performed of challenge[s] in ac gants with an peremptory challenge extra prescribed cordance rule[s] 47(b) for alternate under W.R.C.P. game.” Kentucky Farm Bureau Mutual constitutes error reversible when error Cook, Company Insurance v. 590 S.W.2d preserved is properly at trial when 875, 877 (Ky.1979). Finally, gener the law composition denial affects the the jury ally any attempt disfavors to invade the actually upon called to deliberate the case.5 processes internal of a decision maker purpose impeaching a persuade Several verdict. See ap considerations us to W.R.E. ply First, reversible-error rule. 47(b)

W.R.C.P. afforded no discretion to the granting an peremptory extra Wyo.Stat. (1988) 1-11-202 challenge litigants once he made the Wardell claims that the trial com- court jurors. decision to seat alternate State Cf. mitted reversible error granting the al- Jones, Wyo. 191 P. 1075 legedly nonantagonistic co-defendants, the (reversible prosecution error to allow doctors, three statutory peremptory chal- peremptory challenge extra beyond those lenges each, affording while Wardell statute). Second, mandated it is axio challenges. three urges Wardell that the litigants all matic that to a entitled fair error allowed the doctors an undue advan- trial. The of touchstone a fair trial is the tage constructing in the and denied right impartial to have an decision maker. him right to a fair trial. While find McDonough Equipment, we Power Inc. v. Greenwood, no 548, application error in the trial 464 court’s of U.S. 104 S.Ct. 78 Wyoming 663 as L.Ed.2d When law it stood at of the decision the time its ruling, jury, maker is be a we feel a impartiality inquiry is more substantive in through into, of, Wyoming achieved the exercise antagonism demonstration will Mitchell, 5. challenges. The doctors cite Beard v. 604 F.2d Circuit Seventh Court found (7th Cir.1979), proposition 485 that the that the was error harmless because of the none peremptory challenge an upon denial of extra does alternates were called to deliberate the Beard, not constitute distinguishable reversible error. In verdict. Beard the in- from parties only district federal court allowed the stant case in there the court’s failure that peremptory challenge litigants one additional to exercise afford the a full allotment of F.R.C.P. 47(b) 47(b) jurors. challenges four alternate composition F.R.C.P. re- did not affect quired litigants deciding that the be two of afforded extra the case. comparative principles of practice and that subsequent cases.6 in required be this state negligence apply. would Given “In the provides: 1-11-202 Section effect, facts, Distad, in dictated the trial this courts of district in the of civil cases of the matter. judge’s determination (3) peremp- three state, allowed side is each Cubin, 633 v. challenges.” In Distad tory in identified Although the factors factually simi- case (Wyo.1981),a P.2d 167 determin are to be considered when Distad one, was confronted the Court lar to this context, antagonism multi-party ing meaning of the word deciding the neces they that should we do not believe allocating perempto- purposes of “side” for acts dispositive. because the sarily be Just upon relied au- The Court ry challenges. multi-party alleged against negligence Kentucky to hold: thority Texas from distinct and some manner defendants multiple defen- determining whether “[I]n negligence principles comparative because side, consideration one constitute dants antag create apply ipso does not will facto the claim the nature of given must be parties jus sufficient onism between the defendants’ whether against them and peremptory chal of extra tify the allotment may antagonistic.” 633 interests are developed in Texas and lenges. Case law that found 171. The Distad Court P.2d at decisions re Kentucky subsequent to the that distinct acts very significant it was inis accord. upon by lied the Distad Court alleged against the defen- negligence were See, Davenport Ephraim v. McDowell e.g., each reduce their could dants and Inc., 769 Hospital, S.W.2d Memorial the fault liability by emphasizing respective construing (narrowly (Ky.Ct.App.1988) went on other. Id. Court (Ky. 339 S.W.2d 653 Taylor, Roberts v. that, Wyoming’s by virtue in dicta state 1960)); Company Dental v. Patterson scheme, it negligence comparative Dunn, (Tex.1979) (expand 592 S.W.2d would not multiple defendants rare that required under scope inquiry ing the interests. Id. antagonistic have Welch, (Tex. 392 S.W.2d Tamburello Distad, say cannot light of we 1965)). affording three stat- court erred the trial question of Anticipating that the challenges to each doc- peremptory utory future, we take antagonism will arise complaint filed separate A was tor. further define what con opportunity which, although very doctor against each 1-11-202 suf antagonism under other, stitutes alleged acts of distinct similar the allotment of extra ficient to warrant The trial against each doctor.7 negligence challenges among multi-party case, peremptory like aware that this judge was also 1-11-202 starts from mal- defendants.8 Section Distad, allegations of medical involved issue, manipulated "negligently Neal’s ple- examined and previous contrast to the In stark propriety neck." exists thora of case law allowing peremptory extra chal- effect of generally approved lenges multi-party Wyoming Supreme in the context. Court 8.The Harris, Annotation, March F. Distribution to W.R.C.P. effective Deborah amendment 1-11-202, 1992, which, Challenges Peremptory Federal address- in addition to § Exercise of challenges peremptory §USCS 50 A.L.R.Fed. es allocation of Civil Cases Under 28 47(c) Evins, Annotation, Jury: multi-party W.R.C.P. now (1980); context. Donald E. Challenges reads as follows: Peremptory Allowable in Number of Are More Than Two Where There Civil Case (c) party entitled to three shall be Each (1970); Involved, 32 A.L.R.3d Parties Annotation, challenges. defendants peremptory Several Allowing Excessive Num- may plaintiffs as a Effect be considered or several Challenges, Peremptory 95 A.L.R.2d 957 ber making challenges single party or for the of of (1964). may peremptory allow additional the court challenges permit them to be exercised and negligence alleged against jointly. the doc- separately acts of 7. The or exception applicable adopts the that identical with rule the law tors were The new (1988). by negligent alleged § See 28 U.S.C. to have been federal courts. McMillan was position range that through not alter our a of The new rule does “putting Neal Wardell’s neck multi-party among antagonism pressure must be shown applying to his and in vertical motion plaintiff/multi- cord," single-party alleged in the defendants spinal Peters was to have whereas

106I importance that each to a controver stantial fair premise constructing the “side” a impartial and equal per jury. Theoretically, of sy peremp- entitled to an number is “Side,” tory challenges. challenges may arbitrary be used in an emptory as that term capricious practice, and In litigation, manner. in the context of howev- is understood er, challenges a party peremptory exercises “litigant group litigants hav means a reject jurors to perceived unsympath- to be essentially common interests.” Patter ing etic nonantagonistic, to his case. To allow S.W.2d at 917. Company, Dental son two-, multi-party a defendants three- Multi-party constituting only defendants advantage four-to-one in the exercise of controversy thereby “side” to are one peremptory challenges affords them undue peremptory to three chal entitled composition influence over jury the of the law, under unless lenges Wyoming their implicates and single-party plaintiff’s the Distad, antagonistic. are interests right to a fair trial. 167; Rivermeadows, Inc. v. Zwaan P.2d B.V., Holding Financiering, shoek In light foregoing, we hold (Wyo.1988).9 Multi-party de 761 P.2d that, prior allotting peremptory chal antagonistic fendants’ interests are when a lenges 1-11-202, under the judge § exists, good-faith controversy vis-a-vis each should consider all relevant circumstances other, over an issue of fact which the good-faith determine whether contro Compa decide. Dental will See Patterson versy among multi-party exists defendants S.W.2d at When such a ny, 592 918. con an issue fact which exists, troversy the defendants constitute will upon decide. It incumbent separate meaning “sides” within the of multi-party seeking defendants additional 1-11-202 and are entitled to have addi § peremptory challenges to assist the trial peremptory challenges. tional This result judge in making this An determination. justified the rationale that certain of illustrative, exhaustive, fac but not list of challenges will be used to select extra (1) tors to considered would include: against for the case the other defen separate whether acts misconduct were dant, plaintiff. rather than See alleged against defendants; (2) wheth Sheehan, Cynthia Daniel J. Jr. & C. Holl- comparative negligence ap er principles ingsworth, Peremptory Allocation case; (3) plied to type of relation Parties, Multiple Challenges Among 10 ship defendants; (4) among the whether Mary’s L.J. St. party complaints cross-claims or third had therein; When, hand, positions been filed and the taken good-faith on the no other (5) by pretrial information disclosed discov controversy multi-party exists between de- ery; (6) representations made they yet awarded fendants are extra parties. 56; Davenport, 769 S.W.2d challenges, peremptory single-party Co., 914; Patterson Dental S.W.2d placed plaintiff is in a distinct tactical dis- Rivermeadows, Inc., 662; 761 P.2d defendants, advantage. multi-party Distad, 633 P.2d 167. having no motive their to exercise addition- challenges co-defendant, against a are al Wyo.Stat. 1-11-203 pool challenges against their able As plaintiff. previously recog- we have Wardell contends the trial court nized, challenges peremptory failing are of sub- erred in excuse Wasmuth party prior defendant context to the allotment firmed the trial determination Al- court’s challenges. peremptory additional The new Wyoming corporation, brecht and his Rivermea- however, may, afford the trial more dows, Inc., rule antagonistic sepa- were not and not many peremptory over how extra discretion challenges rately statutory per- entitled to a allotment of appropriate under the circum- emptory challenges. pre- The Court examined and over how should be stances exercised. positions trial dows, taken Albrecht and Rivermea- through parties, Inc. to determine that the Rivermeadows, Inc., involving a case not counterclaims, cross-claims, common tions, and mo- expand negligence, began scope Court de- inquiry chose to assert an allied or tandem the trial court’s under Distad for the antagonism determining among purpose of co- fense. Rivermeadows, Inc. af- defendants. Court

1062 1-11-203. manner which is under the for cause under unreasonable and Brown § legally State, jurors claims that the were 773 circumstances. Smith v. P.2d Wardell argues against and that his case prejudiced (Wyo.1989). 139 them court’s refusal to excuse the trial This has never addressed the issue Court right his fair trial forc- implicated to a question appropriate of whether it is to expend peremptory chal- him to two ing prospective jurors regarding prejudicial jury panel. from the lenges to remove them alleged crisis” effects of the “insurance perceive need to address We little have, however, campaign. We addressed a appeal light of our decision to on issue analogous Eagan somewhat v. issue. grounds and the this case on other reverse (1933), Wyo. O’Malley, 45 21 P.2d 821 and Brown unlikely event that Wasmuth plaintiff the Court held that a was entitled potential upon ju- as again be called will good jurors prospective faith to voir dire recently addressed the rors. We have also regarding their connection interest assessing challenges for role in trial court’s might with insurance carriers which be- (1987), Wyo.Stat. under 7-11-105 cause judgment secondarily come liable for adopts 1-11-203. which reference § The against entered the defendant. Court State, See, 768 P.2d 1031 e.g., Schwenke v. recognized ordinarily a trial State, v. 725 (Wyo.1989); and Summers attempts guard should counsel’s (1986). P.2d 1033 inject the notion into the selection process carry liability that defendants in- “Insurance Crisis” Wyo. at 21 P.2d surance. 45 821. The regard contention Wardell’s final knowledge Court reasoned that such was process is that the ing the selection and generally irrelevant that it could taint by denying discretion trial court abused its jury’s consideration of the merits of the question pretrial potential “to his motion case, negligence both as to and as to the advertising, newspaper jurors concerning Court, damage. Id. The how- amount of articles, editorials, respect like with and the ever, justified holding by acknowledging its crisis’, alleged alleged to the ‘insurance that litigants given should be a reasonable crisis’, malpractice alleged and ‘medical ” 10 opportunity explore legitimate sources abuse.’ claims that ‘lawsuit Warded juror selecting of judge’s purpose bias for trial undue restriction on adversely impartial jury. Wyo. his fair scope of voir dire affected and at 21 impartial jury. select and right to a fair P.2d 821. The “The Court concluded: rule disagree. be, think, We should we as that when counsel’s questions case conduct and are charged Trial with judges fairly accomplishment conducive duty seeing competent, that a if, legitimate proceedings, end in the inci- fair, impartial impaneled. persons dentally, prejudice results therefrom to the Wyo. 407, v. Fitzhugh, Redwine party, may it adverse not be avoided.” 45 end, scope P.2d To this Wyo. 21 P.2d at 821. The Court went generally of voir within the extent dire are scope inquiry on note that the should judge. discretion of See Barnette narrowly protect drawn to the defen- (Wyo.1981). Doyle, 622 P.2d having dant’s not interest the existence litigants an object of voir dire is to afford unduly Wyo. emphasized. of insurance explore prospective whether opportunity 509-13, 21 at P.2d 821. The Court indicat- prejudices have such as biases ed when the inquiry sanctioned responsibility interfere their Schwenke, was answered the affirmative could fur- fairly decide case. 768 P.2d questions ju- asked prospective A trial its ther at 1033. court abuses discretion scope it limits of voir in a rors their in or when dire interest connec- motion, supporting 10. record. with the brief exhibits, an entire volume of the constitutes

1063 liability Wyo. juror’s ability with a carrier. 45 at with the tion to render a fair and impartial 21 P.2d 821. verdict. P.2d at 594 694. We feel that prerequisites the foundation Sister states which have considered the outlined in strike an appropriate Borkoski propriety allowing inquiry a voir dire balance plaintiff between counsel’s desire regarding propaganda “insurance crisis” legitimate discover sources of juror bias varying have come to conclusions.11 Of and defense counsel’s interest in keeping them, approach adopted we find the in Bor topic of insurance out of the courtroom. Yost, v. 182 594 koski Mont. P.2d 688 Applying case, Borkoski to the instant we (1979), persuasive to be and most in line pretrial conclude that Warden’s motion and Borkoski, Eagan. the Montana exhibits, supporting although comprehen- that, Supreme upon proper Court held sive, failed to alleged demonstrate that the showing possible prejudice, good- limited campaign “insurance crisis” had been exe- questioning regarding prejudicial faith pervasive such a and contempora- cuted propaganda effect of crisis” “insurance neous fashion as create significant should be allowed.12 594 P.2d at 694. The source prejudice County jurors. in Park plaintiffs court that Borkoski found We hold that the trial did not abuse attorney proper showing poten made a denying his discretion Wardell’s motion prejudice by demonstrating tial that to voir prospective jurors dire very company insurance involved in the “insurance propaganda. crisis” engaged had actively, case been a nation advertising al which campaign was both Due Care Instruction designed prejudice potential jurors Warded contends that the trial personal plaintiffs injury and con court committed reversible error in giving temporaneous in the drawing time to the following objection: instruction over his panel. Id. those Under circum stances, Supreme the Montana Court rendered held defendants medical ser- either vices to preliminary questions plaintiff, that of two Neal Warded. Each (1) defendant entitled to the appropriate: pro would be whether benefit presumptions, certain and in this con- spective or read anything heard you nection are instructed as follows: might ability which affect their to sit as impartial jurors; pro whether or 1. presumes The law that each de- spective jurors regularly read maga possessed fendant reasonable knowl- newspapers zines or which it had edge according been and skid to medical demonstrated that insurance advertise standards in the and that service un- him, or appeared. ments articles 594 dertaken and P.2d at rendered he dis- Supreme charged legal duty his full pa- 695. Montana Court cau care, tient and exercised only that reasonable tioned the event affirmative prudence foresight in applying and response pre were to one of received learning. skid and liminary questions would counsel be enti follow-up questions tled ask limited However, 2. this presumption is juror determine whether the believed the disputable may and be overcome advertising which, it would by expert testimony whether interfere taken to- approaches adopting For an various overview of the 12. For recent cases identical or similar taken, Galbreath, see Joanne Rhoton positions, Annota- see, e.g., Fenenga, Sutherlin v. tion, Propriety Prejudicial Trial (App.1991); N.M. 810 P.2d 353 Babcock v. Effect of Suggestion in Counsel’s Medical Hospital, Reference 767 S.W.2d 705 Northwest Memorial Insured, Malpractice Case Is (Tex.1989); Defendant Hafen, and Doe 772 P.2d 456 (1989); at §§ A.L.R.4th 7 & Annota- (Utah (Utah Ct.App.), 789 P.2d 33 granted, cert. tion, Evidence, Admissibility Propriety 1989). Statements, Questions, Comments, and Effect of Etc., Tending to Show Person- Defendant Injury Liability Carries al Death Action Insur- ance, 4 A.L.R.2d evidence, physicians upon which reasonably tion of due care for

gether other Harris, instructed. 625 jury a should be contrary conclusion. justifies a 375, 747; Smith, Wyo. 56 110 P.2d P.2d continues presumption This Rosson, 540, 22 260; Wyo. P.2d 195. 45 unless and until throughout the trial presumption is overcome. the instruction, Ari- Addressing similar a literally captured irony the of things, zona court among other argues, Wardell interpreting language similar to that found court, instructing jury as to the the trial in proof and the Harris: of both Wardell’s burden care, misled presumption of due

physicians’ quoted language is intended to If the believing Wardell had a jury into a defen- presumption in favor of create a We proving of his case. double burden strange species a of physician, dant it is giving erred in the trial court agree that indeed. It does not fit the presumption not, how- We do the due-care instruction. description in a typical presumption of a ever, further issue of whether is, reach the civil case—that a rule that shifts because of our the error warrants reversal par- producing of evidence to the burden this case on other decision to reverse presumption oper- ty against whom the grounds. Rather, ap- presumption” “this ates. merely pears to do no more than restate rely primarily upon a state- The doctors plaintiff rule that the has the the familiar Grizzle, v. 625 ment extracted from Harris negli- proving of the defendant burden (Wyo.1981), support their con- P.2d 747 gent. accu- tention that the due-care instruction Harris, Wyoming law. rately reflects Hunter, 33, 121 Ariz. 588 P.2d v. Gaston surgeon physician stated: “A omitted). the Court 326, (citations (Ct.App.1978) 348 carefully skillfully presumed to have alleged due-care Accordingly, we view this operated upon patient.” a 625 treated or being merely flip side presumption as context, Taken out of this P.2d at 753. plaintiff’s proof of in a medi- of the burden statement, along statements with similar malpractice cal case. As stated McMil- cases, appear sup- prior made proving “The of ‘that the non- lan: burden given in this case. port the instruction See presumed [i.e., fact due existence of the 375, Beard, 110 P.2d 260 Wyo. v. 56 existence,’ Smith probable is more than its care] (1941); Wyo. 45 Hylton, and Rosson v. proving is the same as burden of defen- 22 P.2d 195 negligence ‘by preponderance dants’ a ” Consequently, the evidence.’ once the Harris, Smith, all med- and Rosson were adequately instructed on the jury has been plaintiffs malpractice ical cases wherein case, plaintiff’s proof burden of a it is of summary appealing either an adverse were instruct as no avail to further or a directed verdict. Court judgment alleged presumption of due care. To court’s in each case affirmed the lower jury. serve to confuse the do so would plaintiff’s failure ruling on the basis of the id.; Richmond v. A.F. L. Medical prima by competent evidence a to establish Phil., 421 Pa. Service Plan A professional negligence. facie case of (1966); Piper, A.2d 303 Peacock v. that, reading of the cases discloses careful (1973); 504 P.2d 1124 but see Wash.2d alleged presump- in each instance when the Crumbley Wyant, Ga.App. mentioned, the Court tion of due care was (Ct.App.1988). S.E.2d 497 attempting emphasize merely was given A instructions proof placed upon plaintiff a review burden of point case discloses that the was ade- malpractice action. The real medical plaintiff’s making quately in each instance was instructed the Court was case, proof. being That we presumption negligence does not burden that a why perceive physicians, results no reason merely unfavorable exist because else, everyone are entitled to a The Court did exclusion follow medical treatment. negligence case. it due-care instruction of the cases that not intimate State, (Wyo.1988) P.2d 780 evidentiary presump- Hoem v. intended to create an Cf. (Wyoming Medical Review Panel Act held We have previously recognized equal protection that, unconstitutional on error, under the doctrine of invited grounds). The trial court erred in- so party may complain not of action which he structing jury. induced the trial court to take. Thatcher Sons, & Inc. v. Norwest Casper, Bank of Settlements

Disclosure N.A., 750 (Wyo.1988). P.2d 1324 key determining to whether this rule of finally contends that the law Wardell applies is identifying party the ruling who “in by Wyoming’s trial court erred that duced” the allegedly comparative negligence required erroneous action. law the The record pretrial requested discloses that hospital settlements with the Peters that the the school district to be disclosed to settlements be disclosed to the jury. jury. pretrial The doctors counter that Wardell’s posture Wardell was that complain should not heard no to because he mention should be made of the settle error; i.e., alleged invited the in ments. only Wardell It was after the trial court jury sisted that the be informed of either ruled to allow disclosure of the settlements nothing or everything about that, settle that prevent Wardell insisted juror to agree ments. We speculation, with Wardell and dis jury also be informed re agree with the doctors. garding the settlement amounts. The doc trine of invited error apply does not to doWe not believe that the disclosure of Wardell under these circumstances. required Wyoming’s settlements is under comparative negligence law. The relevant Discovery statutory provides pertinent section part: The

(b) doctors claim on cross-appeals may, The court request- and when that the trial court abused its by by discretion any party ed shall: (i) (cid:127) n (cid:127) issuing protective a prevented order which (cid:127) them deposing from one of Neal’s treating (B) jury Inform the of the conse- physicians, McCleary, Dr. ex his quences of its per- determination of the pert opinion on the issues of standard of centage of fault. care and protective causation. The order Wyo.Stat. l-l-109(b)(i)(B) (1988). This § scope limited the inquiry to the factual language interpreted practice has been relating circumstances to Neal’s condition require (1) that the be informed that and treatment at Hospital. Children’s The plaintiff will not damages recover if assert, however, doctors that had rea he is found fifty percent to be more than at son McCleary’s to believe Dr. expert opin fault, that each defendant is liable ions would be favorable to their cases. only portion that damage the total They argue that his opinions should be award which corresponds percentage discoverable because Wardell waived the of fault. Wyoming Jury Civil Pattern patient-client privilege by filing suit. The Instructions 10.01Aand 10.03A We trial court did not abuse its discretion un l-l-1.09(b)(i)(B) that believe is satisfied § der the circumstances of this case. once a receives instruction on the points outlined above. The should provides pertinent W.R.E. 501 consequences then' understand the part: of at- “Except as required by otherwise tributing Wyoming’s fault under compara- constitution or statute or these or other negligence tive law. The admission of set- rules promulgated by Supreme Court tlement evidence is not necessary to this of Wyoming, privilege of a witness ... Therefore, understanding. whether or governed by not shall be principles of the settlement evidence is to be admitted common physician-patient privi law.” The particular case must be lege recognized determined under not the common law Wyoming Rules of Evidence. Wyoming. We hold of County See CP v. Laramie ruling the trial court erred in Department Public Assistance and So required disclosure of (Parental settlements is Rights PP), cial Services Wyoming’s comparative negligence Rather, (Wyo.1982). privilege law. P.2d 512 relating by Wyo.Stat. ed to factual information and defined

is established provides in and treatment. Warded (Supp.1992), which Neal’s condition 1-12-101 interprets statutory lan- part: apparently pertinent may testify by physician guage, ... shall not tes- (a) following persons “[t]he patient,” to consent of the ... express respects: tify certain any- physician may that a not offer mean concerning a (i) physician ... [A] testimony factual the ex- thing but absent to him his ... made communication We do not relation, press patient. consent or his advice in that patient physician may broadly. language, so The ... read the statute patient. his ... statute, of the ... express consent testify by read with the rest of the when patient volun- if ... patient, and only to the circumstances under refers physician may the ... tarily testifies physician may patient disclose con- which testify on the same compelled privilege has a waiver of fidences when subject. by implied plain law. The lan- not been pro- prohibit does not a by express guage its terms of the statute 1-12-101 Section expressing communications his ex- only treating physician tects confidential from patient physician to his and by placed made a into pert opinion issues patient. by physician a to his given advice by patient. his contest in- generally privilege statutes Similar argues alternatively that privilege to all Warded

terpreted extending as the through public policy a doctor this Court information secured as a matter examination, observation, or conversation relationship” protect “special should relevant. patient, so far as it is with the patient phy a and his which exists between EdwaRd W. Cleary, physician from by prohibiting the sician Evi- McCormick on (3d 1984). un- policy The ed. § expressing expert opinion adverse to the dence statutory privilege is to derlying such a claims that a patient’s interests. Warded full and frank disclosure be- encourage fiduciary duty act physician has a not to his doctor for the patient tween a and contrary patient’s his interests. best diagnosis and treat- of effective purpose 26(b)13 scope governed the W.R.C.P. Physicians, ment. 61 Am.Jur.2d Sur- See discovery litigation provided: in civil and and Other Healers geons, § “Unless otherwise limited order places physical or men- patient his When rules, in accordance with these ... court contest, physician- into tal condition discovery regarding [pjarties may obtain to the extent patient privilege is waived matter, rele any privileged, not which is controversy. relevant to the See that it is appears reasonably cal vant ... [or which] State, (Wyo.1986). 722 P.2d 135 Frias v. culated to lead to ... admissible evidence.” circumstances, patient can such Under evident, placed few restrictions are As is physician longer expect to silence his no discovery. Only upon scope of civil litiga- subject matter of the relating to the completely informa privileged or irrelevant supra tion. See Evidence, McCormick on limits, unless the court orders waiver, however, tion is off is not at 103. case, In the instant we have physician may otherwise. without boundaries. already McCleary’s condition and that Dr. ex patient’s determined not discuss large, at but he is opinions privileged, with the world not and it pert treatment were circum- to disclose relevant potentially bound were was conceded the confines of the ad- stances within question then relevant. Our becomes su- process. versarial See Am.Jur.2d, issued protective whether the order pra. constituted an abuse of discre trial court governing discovery. tion under the rules phy- he waived the concedes that

Warded Cubin, (Wyo. 685 P.2d 680 filing He Cubin v. privilege by suit. sician-patient 1984). contends, however, extend- that the waiver 24,- March

13. Revised effective that, by issuing 26(c)14 upon protective a his discretion or- provided W.R.C.P. shown, good a trial motion for cause der. by justice required order

could issue annoy- protect party person from “to Conclusion embarrassment, ance, oppression, or undue court committed The trial reversible er- expense,” The record reveals burden by failing parties ror to afford the an extra moved the trial court to issue that Wardell peremptory challenge required by as was forbidding order the doctors protective 47(b). W.R.C.P. deposing McCleary regarding, Dr. from things, expert opinions on among other Reversed and remanded for a retrial con- (cid:127) and the applicable standard of care opinion. sistent of causation. The trial court issued issue requested grounds on the that it order CARDINE, J., specially files a justice that the furthered the ends of concurring opinion. sought privileged. information was URBIGKIT, J., opinion files an McCleary’s Although Dr. testimo concurring part dissenting part,

ny privileged, was not we do believe that GOLDEN, J., generally concurs in the inter protective order was issued joins portion Urbigkit’s in that of Justice justice. est of Our reasons are several. opinion dealing discovery with the issue on First, designated McCleary Dr. was not as cross-appeal. time the expert by a trial Wardell at the and, sought, protective order was there CARDINE, Justice, specially concurring. fore, unnecessary depose him it was I in the result reached in the concur expert opinions purposes opinion court’s not in the reasons there- but See W.R.C.P. cross-examination. Appellant for. Wardell is entitled to a new 26(b)(4)(A). Second, McCleary Dr. was nev peremp- he trial because was allowed three specially employed” by er “retained or tory challenges appellees’ while side of the trial, anticipation so his ex Wardell six and the trial case was allowed because pursu pert opinions were not discoverable peremptory court refused him an extra 26(b)(4)(B). Third, as a ant to W.R.C.P. challenge impanelling for the of alternate proposition, do not that general we believe 47(b). jurors, all violation of W.R.C.P. treating may feel that it is physician, a who testify beyond The court’s discussion the alternate ethically inappropriate to as an ex against patient, juror peremptory challenge question a should be is ad- pert witness A unnecessarily visory unnecessary forced to do so.15 con to the decision in However, needlessly pit physi having trary position would this undertaken case. against patient, potentially destroying questions, cian these discussion of two mutually relationship. Finally, gratuitous holdings beneficial strike me as court’s expert had numerous witnesses the doctors incorrect. support theory their of the case. The sought primary they reason

apparent PEREMPTORY CHALLENGES testimony hopes in the McCleary’s Dr. was analysis of the number of The court’s argue could before the that that mul- peremptory challenges to be awarded physician said no one was at Wardell’s own Thus, I re- tiple defendants is incorrect. prejudicial effect of such testi fault. accept applicable its dicta outweigh fuse to both mony argument may well its that, issue future cases and its resolution We hold under the need this case. circumstances, applied did not as to this case. the trial abuse facts of the instant case do not raise supra trial. The 14. See note 13. interesting It is this issue for our review. note, issue, briefing parties relied 15. When however, decisively the courts primarily upon cases which addressed whether split. treating voluntarily physician becomes a who testify expert at should be allowed to defense majority opinion defendants). concludes that War- that of the other As will be trial, though seen, received a fair even not, itself, dell this factor could in and of given peremptory each were three doctors justify peremptory the award of additional six, challenges, for a total of to Warden’s challenges to a defendant under current Cubin, challenges. three It cites Distad v. Texas law. (Wyo.1981), support 633 P.2d 167 of this Supreme The Texas Court stated the fol- correct, decision. Distad was insofar as it lowing in Patterson: multiple analyzes problem defendant Antagonism does not exist because of challenges inquiring peremptory into differing side; conflicts with the other whether the defendants’ interests are “an- e.g., plaintiff when a sues several defen- However, tagonistic” to one another. Dis- alleging dants different acts omissions implied it held or tad was incorrect when Antagonism each defendant. antagonism presumed can be between exist, however, if each of the de- multiple of their tort defendants because alleged fendants that the fault of anoth- conflicting in the interests allocation of plain- er defendant was the sole cause of negligence percentages, stating: re- “[t]he damage. tiff’s The existence or non-exis- Wyoming’s comparative negligence sult of tence of third-party cross-actions or ac- design very multiple is that seldom will tions is not determinative. antagonistic defendants not have inter- Distad, ests.” 633 P.2d 171. For rea- at Patterson, (citations 592 S.W.2d at 918 state, apparent sons I will it is that the omitted; added). emphasis presumption wrong and that Distad written, At the time Patterson was Tex- presumption should overruled as to the place as had in comparative negli- adversity among defendants. gence/contribution among joint-tortfeasors Giving multiple each of defendants the statute. See 1973 Tex.Gen.L. ch. §§ statutory challenges maximum number of 2(a). Thus, in multiple cases with defen- allows the defendants to exert inordinate dants, each defendant had an interest in, dominate, influence and to the se seeing charged his eodefendants with re- Jenkins, process. lection v. Moore 304 S.C. sponsibility greater for a percentage of the 544, 833, 405 S.E.2d 835 To allow harm plaintiff. suffered the Neverthe- permits multiple such an imbalance defen less, antagonism the court held that existed effectively dants to control selection. only pointed when each of the defendants 19, Layne Corp., v. GAF 42 Ohio Misc.2d to the others as the sole cause of the harm. (Com.Pl.1988). 537 N.E.2d 254 A dis Subsequent cases have followed the proportionate granted number of strikes set rules out In Patterson. American prevents plaintiff the defendants the from Cyanamid Frankson, Co. v. 732 S.W.2d meaningfully asserting right peremp (Tex.App.1987), 648 writ refused, error of tory challenges, which is incident to his n.r.e., the court affirmed a verdict right jury trial. George Bergen Pines against drug manufacturer who chal- County Hosp., 217 N.J.Super. 526 lenged the trial court’s per- allocation of (L.1987). A.2d 295 emptory challenges. The court held that purports Distad to be based on Texas the trial court did not abuse its discretion However, precedent. majority as the rec- awarding plaintiff nine strikes to the ognizes, language in the landmark case of nine, cumulatively, defendants, to the even Dunn, Patterson Dental Co. v. 592 S.W.2d though the manufacturer and the doctor (Tex.1979), subsequent decisions of supplied product who its plaintiff the Texas courts demonstrate that even had filed cross-actions each other. they would not sanction rule as extreme actions, The court noted that these nei- suggested by as that Distad. The Distad ther alleged defendant that the other was antagonism court found in the fact mere plaintiff’s sole cause of the injuries. Wyoming’s comparative negli- that under scheme, gence compara- Co., each defendant’s In Parker v. Associated Indem. negligence tive could be used to (Tex.App.1986), reduce S.W.2d 398 writ error of are mean that the defendants’ interests n.r.e., allotted ten the trial court refused, clear-cut, was a antagonistic. defendant Roberts to the two peremptory strikes antagonistic interests only six to the extreme case of companies, and insurance Appeals inapposite reversed to our facts here. of that is plaintiffs. The Court Although defendants. for the judgment at 59. Davenport, 769 S.W.2d filed a companies had of the insurance one short, precedent in both Texas recent indemnity and/or contribu- cross-action support claim in Kentucky does not other, neither defendant from the tion ability to reduce one defen- Distad that the other the sole cause that the was claimed comparative negli- liability under a dant’s damages. The court stated plaintiffs’ by pointing finger at gence scheme always does not exist “[ajntagonism that presumption adversity creates a another may on the same side parties if the even From these cases I defendants. between with the other side. different conflicts have antagonism a rule that does not abstract case, defendants centered their In this merely percentages negli- exist because issue: no insurance on the same defense among gence must be distributed defen- * * Parker, 715 S.W.2d at coverage Rather, “pointing finger” must dants. Paving, Lopez also v. Foremost 401. See each of the generally rise to a level where (Tex.1986) Inc., (holding S.W.2d claims that the other is the sole defendants to defendants granting extra strikes that plaintiff’s injuries. Further- cause of the error); Lopez v. was reversible cf. more, always on the defen- the burden Assoc., Inc., 754 S.W.2d City Towing adversity. clearly dants to demonstrate (Tex.App.1988), writ error denied pretrial Positions taken defendants antagonism exists when (stating rule supply significant procedures should evi- the other's each defendant asserts relationship defen- dence of the between plain- negligence the sole cause of was dants. damage). tiffs proposes multiple-factor majority recognizes, majority also Distad As replace presumption contained test to Kentucky precedent which has since cited agree While I with the factors Distad. restrictively interpreted. In a recent been proposes, important I feel it is majority case, medical like this case involved which presence many or most to stress that the Kentucky Supreme Court malpractice, necessarily adver- of them would not show interests of the defendants were held that separate sity. The fact that acts miscon- antagonistic where the defendants not defendants, alleged against duct theory of the case. Dav- shared the same negligence principles ap- comparative that Davenport v. By Through enport party or third ply, and that cross-claims Inc., Hosp., Memorial Ephraim McDowell filed does not neces- complaints have been (Ky.App.1988). The de- 769 S.W.2d that the defendants are ad- sarily mean Taylor, had cited Roberts v. fendants Experience teaches that more often verse. this court re- (Ky.1960), which S.W.2d defendant defends not each than Distad, prop- in upon indirectly for lied plaintiff and is reluctant to and the claim of personal in a that where defendants osition defendants). rarely the other does attack independent charged are injury case unusual case in which It is the rare and al- negligence, their interests are acts of truly antagonis- are found to be defendants always antagonistic because most tic. convincing the that the possibility of Furthermore, primarily solely majority at I fails defendant was believe other However, Kentucky Supreme effective stand as to the defen- fault. to take an Roberts, stating that: distinguished proof of on this issue. Court dants’ burden majority says would be incumbent “[i]t court’s actual words were The Roberts seeking addi- upon multi-party defendants indepen- charged with that defendants peremptory challenges to assist tional “in most case negligence acts of dent determination.” judge making in this in- trial of two or more vehicles of collision clearly op. I would more passenger” Maj. will at 1061. volving a claim a conduct, doc- other doctor’s or that neither have the burden state that the defendants faulted for what he did or their inter- tor could be demonstrating that clearly of do. presumption no failed to There is ests are adverse. defendants; adversity in favor of of began jury panel, dire of the As he voir adversity resides with proof of

burden counsel for Dr. McMillaninformed carry burden defendants. Failure as follows: of chal- equal result in an number must yard and as child fell in the school [T]his being given plaintiffs’ to the side lenges consequence a he suffered an of that the case. the defendants’ side of Now, dispute injury. therein lies the be- Distad, multi- Contrary to what is said plaintifffs side tween [counsel for one, nearly always ple have defendants dispute the case and mine. The will overriding aim in common: to establish cause, upon injury. center cause of that her cannot recover for his or plaintiff that [Emphasis added] injuries. is rare that the defendants It McMillan’s counsel thus identified his case sepa- antagonistic that constitute so being plaintiff’s but not as adverse entitling them to additional rate “sides” Dr. Peters’. As for counsel for Dr. 1-11- peremptory challenges under W.S. Peters, position his when he was revealed Therefore, pre- I would overrule the stated at voir dire: Distad, adversity in and hold sumption of going you I am to tell that some of the presumption multiple that there is a case or the evidence this evidence adverse, are not and that this defendants going that’s to come from the defendants if adver- presumption can be overcome going is to the effect this case sity clearly demonstrated defendants. happened hap- that what to Neal Wardell apply I this rule to the facts of pened without either fault of * * case. The defendant doctors this [Emphasis gentlemen these two *. were not so adverse that extra action added] them. strikes should have been awarded attorneys coop- doctors also designations expert witness testi- Their process erated in the voir dire itself. For experts planned to mony indicated that the example, sought Doctor McMillan's counsel testify boy’s fall, it was the rather juror excused for cause have because negligence, another defendant’s which than derogatory statements made to him injuries. Dr. Peters iden- caused his When handling Dr. McMillan’s the acci- about pre- his affirmative defenses tified juror dent. It was clear the had heard memorandum, any negli- claimed none nothing adverse about Dr. Peters. Howev- Perhaps Dr. gence McMillan. best er, counsel for Dr. Peters also asked that defense statement of the of both defen- juror Only plain- be excused for cause. pretrial in Dr. Peters’ memo- dants is found objected. truly Dr. tiff Had Peters been randum: McMillan, adverse to Dr. his counsel could * * * contend that Neal The defendants joined plaintiff seeking have to avoid a damaged spinal artery cord Wardell potential juror strike for cause aof who during fall in the school arteries the Dr. had heard adverse information about yard, by damage during either direct im- McMillan. There were numerous other ex- pact, by vasospasm, may or which result amples cooperation of close between coun- triggered from the release of chemicals during sel for the defendants voir dire. by [Emphasis the fall. added] They cooperated requesting challenges cause, joined pretrial deposition, objections In Dr. McMillan for in each others’ a plaintiff’s questions, was asked whether he faulted Dr. Peters voir dire and even way happened arguments deferred to each other’s for what Neal War- short, responded “[absolutely present- He not.” chambers. the evidence dell. during expert took the ed before and voir dire demon- Defendants’ witnesses aligned position, that had either not strates that the doctors were rath- same They opinion er than adverse. were not entitled to been asked to render an as regular It a principles flawed. assumes apply I the strikes. would extra here, periodicals target reader of one of the will I have outlined presumptions advertising the or fair have been affected not receive a plaintiff did hold on the so-called “insurance crisis.” stories of the allocation because However, regularly juror the who does not strikes. primary consult a source of insurance CRISIS INSURANCE advertising the “in- company or articles on may crisis” nevertheless aware surance dispo- disagree majority’s I also origin The of his or her of it. awareness The “insurance crisis” issue. sition of the so obscure that it could never be may be Yost, holds, following Borkoski v. majority directly particular magazine traced to a (1979), that a P.2d 688 182 Mont. (An newspaper. campaign ad on such a publicity over adverse plaintiff concerned topic which had no such sec- controversial crisis,” may “insurance the so-called about indeed!) would be weak ondary effect “(1) questions: preliminary ask one of two jurors heard or prospective whether example of how this informa- give To might affect their anything which read sources, secondary consider tion influences impartial jurors; or ability to sit as or statistical information on the anecdotal regularly prospective jurors whether the part a crisis” which has become the “tort newspapers any magazines or read dialogue. The insurance com- of American that the it had been demonstrated which campaign, have cho- panies, to bolster their ap- or articles advertisements insurance inflammatory examples and present sen to Only if one of peared.” Maj. op. at 1068. regarding jury ver- misleading statistics in the affirma- questions is answered these Kronzer, Jury e.g., dicts. W. James attorney up with other may the follow tive Mary’s L.J. Tampering-1978 Style, 10 St. questions. (1978). Naturally, some of the examples outrageous of these have more trial advocate can testi- experienced The among commentators on popular become use- questions first of these is fy that the and have achieved wide the American scene strongly suggests negative a It so less. original outside of their source. circulation unlikely any juror it response that is juror affirmatively. it No wants answer letter, February part Here is of a dated may “prejudiced” admit that he or she 23,1986, private citizen to the Lara- from a upon This restriction impartial.” or “not mie, Boomerang: Wyoming fact made more serious voir dire is literally competent professionals Many made, the negative answer is that once fields being driven out of their inquiry says the is over. majority work, pro- unpredictable liability their further, probe lawyer is not allowed to badly by gen- often needed fessionals qualify nega- juror even to allow public. eral example, that by admitting, for tive answer cause? Who is the cul- What is the pro- company he or she has read insurance detailed in prit? Here are three cases still thinks he or she can be paganda but may help July ’85 “Forbes” which impartial. clarify point: * vague to question also much too is bodybuilder entered a 41-year-old A inevitably inquiry to fruitful on lead refrigerator strapped to with a footrace it does not insurance crisis issue. Since prowess. During prove his his back to hearing reading kind of indicate what race, loose straps came one question would sought, juror asked this injured. man was He sued and the connection between probably not make the strap. Jury $1 award: maker of advertising company and his vote insurance million. * vagueness This could specific case. dry to Maryland men decided Two because, attorney by the not be clarified in a commercial their hot air balloon follow-up questions would be al- again, no in- dryer exploded, laundry dryer. The response. negative after a lowed $885,000in dam- They them. won juring Machinery Laundry American sug- ages from majority question the The second dryer. which manufactured specific, but is also gests is a little more * overweight history question An man “having is not: heard of tort re- form, you prejudiced coronary against plaintiff heart disease suffered a heart who sues to trying damage?” start a recover The an- attack while to Sears lawn- “no,” always swer will and no informa- charging mower that too much force was tion of ques- value is obtained. The correct required yank pullrope. the mower’s you tion is: “how do feel about tort re- A jury Pennsylvania in awarded him $1.2 form?” question open-ended. The $550,000 plus delays million for in set- juror’s yes answer must be more than tling the claim. juror question. no. The will answer that absurdly generous Isolated cases of awards? Far from it. suggests Borkoski court the follow- ing which, although questions not the best attorney they An who asked if designed information, are, to elicit never- regularly magazine read Forbes would not theless, acceptable: “pick up” readers of this letter to the edi- attorney may inquire pro- whether a [A]n ominously, prospective juror tor. More spective juror any- has heard or read might have read one never word about the thing to indicate that verdicts for crisis, might insurance but have a friend or plaintiffs personal in injury cases result spouse employer strong who had shared higher in premiums insurance every- feelings juror. about it with the heOr one; so, if prospective juror whether the might profes- know someone in one of the materials; so, believes such if wheth- sions which has suffered insurance cancel- er that ju- belief will interfere with the premium lations or increases and has been ability ror’s to render a impartial fair and told his or her insurer that it is due to verdict. the “lawsuit crisis.” As the information Borkoski, (emphasis 594 P.2d at 694 add- continues, explosion there are more and ed). more sources of information available to subjects It is said‘that such as the average need majori- citizen. Neither of the reform, verdicts, for tort excessive the in- ty’s suggested questions necessarily would crisis, surance subjects and others are ju- potential catch these sources of bias. rors will discuss in the room. The really plaintiff’s Can ask a attorney we question then is whether counsel would every printed to find reference to the “in- court, rather openly, discussed prospective juror surance crisis” which a so that each may counsel assess their im- read, may juror have and ask the about his pact prospective and effect on a juror’s regular readership or her of that individu- ability fairly case, decide the or would so, If I requiring al source? fear we are counsel rather not know the answers? attorney capture the sea in a sieve. Some counsel are afraid to hear or unable short, questions each of the major- to deal with the answers. But how other- ity suggests plaintiff’s ability hobbles attorneys wise can litigants effectively discover the essential factor: whether the exercise their peremptory challenges? I juror attitudes, feelings, knows of or has or would have allowed Warded to voir dire opinions about an “insurance crisis” which prospective jurors on cri- insurance may ability affect his or her to render a sis issue. impartial Therefore, fair and verdict. I URBIGKIT, Justice, concurring part allow, minimum, at a attorney GOLDEN, and dissenting part, in which questions ask the more basic which would Justice, joins the issue on knowledge, opinions, disclose the and feel- discovery trial court’s control as a third ings jurors upon any subject might concern. (result juror prejudice) affect the in bias or arriving at a verdict in the case. This I dispos- concur the decision and in the may knowledge include of claimed need for opinion except ancillary regard itive in- “tort reform” or “insurance if crisis” volving distinguishable four areas. Those

juror juror knows of it. If the has no not, however, differences which do fore- knowledge subjects, question- of these result, close concurrence in the include: ing is at an end. And of course the prejudicial-partial ju- correct use of individual

1073 rors; (2) gence expansion majority. seg voir dire to establish for me from the preju- general juror foreclose existence of ment is entitled “Insurance Crisis.” Insti advertising campaigns; dice institutional advertising just tutional does not come out (3) pri- discovery privilege litigant’s for the of the woodwork or exist for insurance advise- physician; vate instructional companies expenses to incur prof to offset jury them to informed ment to the for be See, purposes, its. for informational New verdict, consequence of their about York Public Group, Interest Research (1988).1 Wyo.Stat. 1-1-109 § Inc. Wathen v. Insurance Information 920, Institute by Moore, 140 Misc.2d 531 A. UNEXCUSED JURORS WHO WERE (1988), 204, N.Y.S.2d 1002 161 A.D.2d aff'd FAIR IMPARTIAL NOT AND (1990). 554 N.Y.S.2d compa Insurance segment designat- consideration of the ny institutional advertising has at least a (1988),” “Wyo.Stat. ap- ed 1-11-203 it is § First, objective. dual there is a desire to parent that the two unexcused were legislators. Secondly, influence per regard in no fair impartial. Our soci- haps pervasive, even more is the desire to ety potential jurors has sufficient that no atmosphere juror create an of predisposi grind one with an obvious ax to need be tion in order jury to affect the result of making included within decision verdicts. Id. at 1012. group constitutionally required impar- —the Const, 1, jury. Wyo. tial art. 10. This § recognize I guaranteed the freedoms provides compelling record evidence of the press advertising by and in the First grind- existence of both the ox and the Amendment to the United States Constitu- stone. preclusive tion guarantees provided and the power prejudice We know full well the Const, Wyoming 1, by Wyo. citizens art. predisposition making. in decision Our recognition 20. rights Within that of the § goal majority’s must remain as the decision industry attempt pre- insurance states: “The touchstone a fair trial is conditioning through advertising, crisis I right impartial to have an decision mak- am not foreclosed from continued interest Maj. op. (citing er.” at 1059 McDonough in requiring impartial fair and decision Greenwood, Equipment, Power Inc. v. juries. makers to serve on 845, U.S. 104 S.Ct. 78 L.Ed.2d 663 (1984)). State, also Amin v. P.2d applica- trouble with the discretion C.J., (Wyo.1991),Urbigkit, dissent- majority tion in the is to first authenticate State, ing; (Wyo.1987); Lee v. 743 P.2d 296 presiding judge trial accom- Fitzhugh, Wyo. and Redwine v. 329 plished mind reader to divine what the (1958). example P.2d 257 For a vivid have, thinking and whether individ- partiality, juror Cady, see State ually, preconditioning achieved from the Kan. 811 P.2d 1130 dire, advertising. mass media voir Without factually cannot knowl- B. DIRE EF- VOIR TO DETERMINE edgeable about effects of this cam- FECT DISFAVORING TORT PLAIN- paign industry derived from insurance ad- TIFFS FROM AD- INSTITUTIONAL We, course, VERTISING vertising. CAMPAIGNS CON- know there is a BY THE IN- DUCTED INSURANCE general specificity effect. The unknown is DUSTRY might panel, of what that effect be on this area, importantly, and more on the individuals reality A second which in reaches concern, requires panel the same also a diver- will within who be chosen Wyo.Stat. any party shall: (b) The court 1-1-109 states in may, and when part: requested by its determination of the (B) (i) If a Inform the ^[******] trial: percentage consequences of fault. 1074 State, v. proper questioning.” of Jahnke Informed knowl- decision.

render the trial 991, partici- (Wyo.1984). 682 P.2d 1000 about edge by the required pro- jury panel is pants in the make Recognition of the relevant facts to exercise of any proper a basis vide required. Matter judgment is an informed State, 720 P.2d v. Martin discretion. See F.E.H., Guardianship 154 Wis.2d of of 576, (Wyo.1986). 894 (1990). Similarly, the 882 453 N.W.2d requires ap- discretion Properly exercised court, following early opin- in its Nebraska “ knowledge of the attained plied reason and in added: Tingley, ion ‘[Discretion] In Mar- facts and circumstances. relevant legal application of statutes and means the ” Washington tin, case law reiterated we of the facts of a case.’ principles to all stated was first regarding discretion which 81, 172 108 County, v. Holt Neb. Goebel Junker, v. 79 in rel. Carroll State ex 406, (1961)(quoting Greenberg N.W.2d 410 775, (1971): 12, P.2d 784 482 Wash.2d Fran- v. Fireman’s Fund Ins. Co. San of composite many 772, discretion is a 695, Judicial cisco, 35 N.W.2d 776 150 Neb. are conclusions things, among which (1949)). recognized Justice Heffernan criteria; it means a objective from 263, drawn State, 182 49 Wis.2d McCleary v. regard to exercised with judgment sound 512, (1971): N.W.2d 519 the circumstances right is under what place, there must be evi- In the first capri- doing arbitrarily so and without discretion was fact exer- dence that ciously. synonymous not cised. Discretion is added: court Junker Rather, decision-making. the term reasoning. or order of the trial contemplates process Where the decision discretion, it will not process depend court is a matter on facts that This must except on a clear reasonably on review be disturbed record or that are de- are of discretion, is, showing of abuse and a by rived inference from the record unreasonable, manifestly discretion logical rationale conclusion based on grounds, or for exercised on untenable upon proper legal standards. founded reasons. untenable State, 286, D.H. v. 76 Wis.2d 251 See also Id. (1977). 196, depen 208 With such N.W.2d discretion, 2539, Wilkes, dency on the facts for exercised 4 Burr. Lord In Rex v. “ ‘Discretion, Dept. ago Rickaby v. Health & long said: Wisconsin Mansfield 456, Services, justice, 98 Wis.2d 297 N.W.2d applied a court of means Social when (1980), by any real decision made guided by law. It must be 36 sound discretion humor; rule, in this case went so far as by not it must trial court governed existed, facts, fanciful, actually vague, but to leave the which arbitrary, not be ” undisclosed and unknown. This reaches regular.’ Tingley Dolby, v. 13 legal and 371, 146, (1882). my adjudicating concern about 14 147-48 In continued N.W. Neb. rule, 820 ignorance, Engberg Meyer, from see v. meet the Lord Mansfield trinsic to 70, C.J., (Wyo.1991),Urbigkit, 142 dis Washington P.2d essentially restated part; senting part concurring applied by this Sto and then court Junker 228, State, (Wyo.1988), Martin, 755 P.2d 232 ry is access to the facts from v. court in 836, 106, 111 constituting 498 U.S. S.Ct. judgment, informed cert. denied which an (1990), J., discretion, Urbigkit, special 112 L.Ed.2d 76 can be made. See In exercised State, 500, concurring; v. 751 P.2d Schuoler, ly 723 P.2d Cutbirth 106 Wash.2d re J., 1257, Junker, (Wyo.1988),Urbigkit, dissent 1103, 1110(1986)(quoting 1267 P.2d State, (Wyo. ing; v. 722 P.2d 135 784), that discretion and Frias where the court held at “ 1986), recognized approaches the result it is ‘exercised on untena is abused when ” McKay, Judge Monroe by Chief Circuit grounds, or for untenable reasons.’ ble into a license.” converts a rule Marriage Tang, 57 Wash. also In re “[which] Davis, F.2d impar “The United States App. 789 P.2d 118 Cir.), (10th 498 U.S. cert. denied question of fact to tiality of the (1990), 112 L.Ed.2d upon the basis S.Ct. decided the trial court case, concurring part tables were turned in this and the Judge, McKay, Circuit plaintiffs bar had launched a media cam- dissenting part. in and paign in to increase awards Bannock any absolu- problem with bland Another showing graphic in County by detail vari- involving effect tion of denied voir dire long personal injuries ous and the term societally divisive sub- materially and of a victims, effect of same on the we crisis” “insurance ject such as the so-called in convinced that the defendants this actually is determined is that the result opportunity case would demand the to attitude of the application of the imbedded potential determine whether of the application of his individual judge, jurors had defen- been biased and his indi- scope exposure, of academic general by exposure. dants in ef- the communicative attitude about vidual mass me- institutionally created fect of the at Id. 862. advertising. Without voir dia subliminal court, Kozlowski, This like Idaho in and dire, judge only personifies the trial adopt should a rule “which balances the how he thinks oth-

individualizes to himself possibility inherent prejudice from evi- effectively be- people are informed and er recognition dence of insurance with the Furthermore, result, any come reactive. that such evidence is relevant to show peremptory knowledgeable exercise of bias.” Id. by litigant’s counsel on all sides challenges My disagreement generally is not with when the true unnecessarily constrained is majority. problem pre- text mind” of the cannot be “bent of facts, is the trial sented that without Westlake, 264 factually King assessed. v. really cannot exercise discretion if discre- 555, (1978); Babcock Ark. 572 S.W.2d knowledgeable tion defined as a is to be Hosp., Memorial S.W.2d v. Northwest on facts and information. decision based Yost, (Tex.1989). See also Borkoski Martin, 894. Unless the trial 720 P.2d (1979). P.2d 688 182 Mont. knowledge, exercised discre- judge has that thought- provides which A current case ignorant if he is of what tion does not exist recognition of modern ad- ful discussion jury panel has ac- exposure particular my vertising techniques supports persua- persuasion, any, if tually received and what sion: or local institutional advertis- the national [Ijnsurance companies should not able actually achieved. With- ing campaign has prohibiting hide behind the rule com- dire, making decision about out voir companies, insurance while ments about essentially totally conjec- either attitude is actively time and substantial- at the same judicial reflection of an existent tural or a advertising ly engaging with the mo- The issue is not involve- predisposition. influencing potential jurors in tive of companies, prejudice of insurance it is ment their favor. preordination jurors, of the favorable Rush, 121 Idaho 828 P.2d Kozlowski v. unfavorable, to the American tort dam- (1992). recovery system. guiding age and requirement recognize light is the constitutional now that realism We should guaran- impartial jury cogency provide the fair logic of Justice follow Const, Wyo. art. writing by analysis in that case teed Bistline’s that: THE PRIVILEGE OF LITIGANT’S C. injected companies have The insurance BE- PHYSICIAN TO NOT PRIVATE the effect of lawsuits on the issue of AN EXPERT WITNESS FOR COME public consciousness. insurance into the OPPOSING LITIGANT by opening purpose served Their debate, results from the broad A third concern the “insurance crisis”

door to the trial court’s scope appeal of this expect to slam it shut in they cannot now discovery. It should not be con- hope control of plaintiffs who to discov- the face of statutory privi- on ceded that waiver the effect of the advertisements er ex- relationship lege physician/patient jurors in their case. If the potential Obviously, N.C.L.Rev. 1381 if beyond tends factual information (or injury defendant) in suits for plaintiff designates condition and treatment his own filing I find that a suit recovery. do not physician give expert opinion, then bodily injury making authenticates for discovery justified opinion as to what treating expert doctor an witness the might Lacking I designation, be. to- opposing litigant. Again, agree I do not tally justification fail to find for this statu- justify with this discretional resolution torily precluded fishing expedition in dis- bypassing statutory right created for a covery and add this as another reason privilege en- physician/patient justification adopted by for in this court voluntary discovery justifying forced or regard present decision. permission pa- from testimony without court, specifically agree I the trial l-12-101(a) provides: Wyo.Stat. tient. § result, majority and the of this court (a) following persons not tes- shall of discovery the denial directed tify respects: in certain asking treating physician to for an ex- (i) attorney physician An or a con- pert opinion. agree I do not that the denial cerning a communication made to him appropriately of realistic and directed voir relation, patient his client or in that discretionally justified. dire was This patient. or his advice to his client or would leave the undisclosed insurance com- attorney physician may testify or pany’s advertising campaign totally uncon- by express consent of the client or trolled in its intended affect for edu- patient, patient and if the client or Consequently, jury panel cation. mem- attorney voluntarily testifies the or bership unplumbed regarding would be physician may compelled testify be right injured person of an to recover when subject. on the same negligently he has In been harmed. as- here, although The rule that we write pects of this decision not otherwise dis- physician/patient directed to the relation cussed, I would concur in the result and the ship, equally apply will attor logical majority’s resolution made in this ney/client. decisively I would more control opinion, except subject for a final which I discovery litigant’s lawyer or doctor. requires thought. find additional statutory preclusion enforce the We should privilege may by holding where be involved D. PEREMPTORY CHALLENGES

that a waiver institution of a lawsuit is WITH MULTIPLE LITIGANTS testimony. limited to factual The waiver expanded permit making should be Some additional consideration is due the professional during into a witness either special concurrence Justice Cardine re- pretrial discovery or at trial which would garding peremptory challenges. gener- In require any opinion possi statement of an al, agree criticism, I analysis with his contrary in bly text to the interest of the fear, however, prospec- conclusion. I 501; patient. client or See W.R.E. Piller analysis development tive Wyo- 392, By Kovarsky, N.J.Super. Piller v. 194 law, ming may running that we very be (1984); A.2d 1279 Syntex 476 Petrillo v. cf. hard to catch the horse to find that the Laboratories, Inc., 581, Ill.App.3d 148 102 longer straying saddle horse is no from our 172, (1986), Ill.Dec. 499 N.E.2d 952 cert. immediate control. 483 107 denied U.S. S.Ct. As in the majority opinion, noted (1987); Philip Corboy, H. L.Ed.2d 738 Ex Wyoming peremptory challenges law on Physi Parte Contacts Between Plaintiffs effectively has been re-defined court Attorneys: Protecting cian and Defense rule Wyo.Stat. effective March Patient-Litigant’s Right to a Fair Trial, (1990); superseded 1-11-202 has been Loy.U.Chi.L.J. 1001 § by adoption Eggleston Drigotas, language result of the identical Restricting Elizabeth provided from federal Nonparty Ex Parte Interviews obtained law With (Law.Co-op.1989),applica- Treating Physicians: Crist v. U.S.C.S. [326 § Moffatt (1990)], N.C. 389 S.E.2d 69 ble to civil cases: ence, challenges. party Peremptory question peremptory chal- —Each peremptory lenges [by to three litigant] by shall be entitled should be raised challenges. appropriate defendants or sever- Several written motion filed before selection, plaintiffs may considered as a sin- al commencement making gle party challenges for the or it facts should set forth all and referenc- may perempto- tending support the court additional es party’s] allow claim [that challenges case, ry permit hostility. them ex- opposing separately jointly. party parties ercised given should be ade- quate respond to time to the claims of 47(c). W.R.C.P. hostility. charge Wyo.Stat. The definable from Id. 588 P.2d at 501. augment 1-11-202 is to trial court discre- concept tion and direction to the advanced ADEQUATE E. THE INSTRUCTION OF special by Justice Cardine in his concur- THEIR JURY ABOUT VERDICT- rence—essential fairness and numerical DUE PROCESS AND WYO.STAT. adversity equality unless is demon- real 1-1-109 § by party parties requesting strated the Following by Wyoming enactment the unequal the number. Legislature in 1973 comparative State of fairly application This has worked consis 28, negligence, Wyo.Sess.Laws 1973 ch. system tently for the federal court for an two followed amendments to insert fair- Wright extended time. 9 Alan Charles procedure. ness into trial Each was direct- Miller, Arthur R. Federal Practice and require jury considering ed to instructions (1971 Procedure, Supp. at 474 2483 & the their effect of verdict and are now discretion, 1992). The criteria is exercised language restated in the of 1- Wyo.Stat. § Greear, Long Trucking, Inc. v. 421 John l-109(b)(i)(B). jury This is the “inform the (10th Cir.1970); the test F.2d 125 is sound requirement. of their verdict” That lan- application by reasonable court. guage intentionally not by was limited Industries, Inc. v. Standard Mobil Oil Wyoming legislature fifty-fifty to no Cir.), (10th Corp., 475 F.2d 220 cert. denied recovery remaining result from the state 829, 56, 414 94 38 U.S. S.Ct. L.Ed.2d 63 law of origin, Wisconsin. Works, (1973); Engine Albina & Mach. I consistently emphatically believe and Abel, (10th Cir.1962); v. F.2d 77 Inc. 305 knowledge improves jury contend re Stringer, Indem. Co. v. 190 F.2d Globe ignorance unjustified sults and increases (5th Cir.1951). Finally, 1017 the trial accidents in or mischance result. See Cor procedure, court’s discretion under statute Pinedale, v. yell Town 745 P.2d 883 considerable, rule is but it is not unlimit of J., (Wyo.1987), Urbigkit, specially concur Kelleher, (1st 728 F.2d ed. Goldstein v. 32 ring, and Afton, Harmon v. Town 745 Cir.), 469 U.S. cert. denied 105 S.Ct. Urbigkit, J., (Wyo.1987), P.2d 889 dissent (1984). 107 It is 83 L.Ed.2d further Furthermore, ing. plain I believe responsiveness the augmented noted that meaning statutory language of the that the pretrial provid rule now of the conference jury adequately Al should be informed. explicitly early ed in W.R.C.P. 16 invites lied-Signal, Inc. v. Bd. Wyoming State multi-party peremptory on decision chal Equalization, (Wyo.1991). 813 P.2d lenge alignment. Hunsaker v. Boze Foundation, 179 Mont. man Deaconess exposed difficulty appeal is P.2d that the issue now in anoth- identical exists appeal er in this seriously present The District Courts should court. Haderlie Court, Wyoming pretrial Sondgeroth, Supreme the use of the confer- v. consider This procedure ence as the best to be used in Docket No. 91-114. court will have resolving questions pre- first such as number address Haderlie credit for challenges given verdict If credit peremptory be allowed settlements. is be law, significance side. rare some rule of each If for some reason minimized, pretrial jury no not neces- District Court holds confer- instruction but given, proceed justice If is not sarily eliminated. credit able to reasoned instead adequate jury misassumption igno then instructions become of accident and from importance for the paramount concern of rance. Theobold v. 40 N.J. Angelos, properly (1963); reflected its intent A.2d Greenemeier Red n adequate verdict. true to assure (Colo. This is ington Spencer, 719 P.2d 710 or, compensation conversely, to avoid dou- 1986). payment.

ble Consequently, I concur the decision simple I denial do not concur with with the differences from the text of the requirement majority opinion of a decision as enumerated. adequate instructions to inform the consequences percentage fault as it results actual dollars included payable

in the verdict to be to a successful

plaintiff. given, my perspective

If the credit if not adequate

of an instruction would advise the made,

jury that if has cred- settlement been

it, given in any, if the final verdict will as matter of law so that the should ELMORE, Michael as an J. individual determine, considering settle- without and Michael J. Elmore as next friend ments, adequate total verdict and a fair Elmore, and on behalf of Michael John percentage resolution of of fault. child, Appellants (Plaintiffs), minor If Haderlie should determine that credit given in judgment will not be the final for HORN, individual, VAN Gailene as an settlements, pre-verdict then the amount of Associates, Fleming private asso- the settlement should be included (Defendants). ciation, Appellees jury jury’s knowledge instructions for the recovery.” to determine “full This is nec- No. 92-12. essary underpay- in order to avoid either payment ment or of more than the total Supreme Wyoming. Court of damages. this instructional Without assis- tance, Dec. jury requirement 1992. we leave with a speculate about the absence of some Rehearing Denied Feb. litigative process. actors from the active be, assumptions might e.g., those Whatever

settlement, bankruptcy insolvency, since chance, by guess

driven the delibera- process provided required

tive not knowl-

edge consequent the result to reflect validity

fairness the entered verdict. developed

The difference between a as-

sumption by of a last chance or chance, itself, produce

another can given.

monumental difference the award

Consequently, as we await the decision

Haderlie, strong disagree- I will continue any prejudgment

ment with here as to ade-

quate instructions order for the consequence its “inform[ed] percentage

determination of the of fault.” in-

Only adequate instructions for an litigative system

formed will the

Case Details

Case Name: Wardell v. McMillan

Court Name: Wyoming Supreme Court

Date Published: Dec 31, 1992

Citation: 844 P.2d 1052

Docket Number: 91-66, 91-67 and 91-68

Court Abbreviation: Wyo.