Turner v. University of Utah Hospitals & Clinics , 741 Utah Adv. Rep. 51 ( 2013 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2013 UT 52IN THE
SUPREME COURT OF THE STATE OF UTAH
ELLA TURNER,
Petitioner,
v.
UNIVERSITY OF UTAH HOSPITALS & CLINICS,
UNIVERSITY OF UTAH, and STATE OF UTAH,
Respondents.
No. 20120120
Filed August 16, 2013
Third District, Salt Lake Dep’t
The Honorable Tyrone E. Medley
No. 20091073
On Certiorari to the Utah Court of Appeals
Attorneys:
Matthew H. Raty, Sandy, for petitioner
David G. Williams and Bradley R. Blackham, Salt Lake City,
for respondent University of Utah Hospitals & Clinics
David G. Williams, Rodney R. Parker and Bradley R. Blackham,
Salt Lake City, for respondent University of Utah
David G. Williams, Terrence L. Rooney, and Bradley R. Blackham,
Salt Lake City, for respondent State of Utah
Ryan M. Springer and Michael D. Karras, Holladay,
for amicus curiae Utah Association for Justice
CHIEF JUSTICE DURRANT, authored the opinion of the Court,
in which ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, JUSTICE PARRISH, and JUSTICE LEE joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
TURNER v. U OF U HOSPITALS
Opinion of the Court
INTRODUCTION
¶1 In 2002, Ella Turner was severely injured in an automobile
accident. She received treatment for her injuries at the University
Hospital (Hospital), where she claims she was rendered a paraplegic
due to the Hospital’s negligence. At trial, the jury found unanimous-
ly that the Hospital was not negligent. Ms. Turner appealed to the
court of appeals, which upheld the jury’s verdict. Ms. Turner then
petitioned for certiorari, which we granted.
¶2 On certiorari, Ms. Turner argues that she is entitled to a new
trial for two reasons. First, she argues that the court of appeals’ ap-
plication of the ―cure-or-waive rule,‖ which requires litigants to use
their peremptory challenges on jurors who were unsuccessfully chal-
lenged for cause in order to preserve the issue of jury bias for appeal,
yielded an unfair result in this case. Specifically, she argues that de-
spite her efforts to remove potentially biased jurors by challenging
them for cause and then by exhausting all of her peremptory chal-
lenges, the jury remained biased, and that the court of appeals’ ap-
plication of the cure-or-waive rule resulted in the affirmance of a bi-
ased jury’s verdict. Accordingly, she asks us to ―modify or clarify‖
the cure-or-waive rule and grant her a new trial. Ms. Turner’s second
argument is that the court of appeals incorrectly determined that it
was harmless error for the district court to include one of the jury
instructions.
¶3 We agree with Ms. Turner on both counts. The cure-or-
waive rule did yield an unfair result in this case, and the inclusion of
the jury instruction was error. Accordingly, we grant Ms. Turner’s
request for a new trial due to the erroneous jury instruction and,
even though we need not reach the issue of jury bias, we neverthe-
less take this opportunity to guide the litigants and the district court
with respect to the question of how to properly preserve that issue
for appeal. In so doing, we reject the cure-or-waive rule entirely and
adopt the standard set forth below in its stead.
BACKGROUND
¶4 On August 11, 2002, Ms. Turner was admitted to the Hos-
pital after suffering a single-car rollover accident. Upon her arrival,
doctors diagnosed her with multiple injuries, including a closed
head injury accompanied by significant brain swelling, fractured
vertebrae in all three parts of her spine, multiple rib fractures, lung
contusions, a liver laceration, and extensive scalp laceration. But de-
spite these injuries, doctors noted that Ms. Turner’s legs and arms
were still fully functional. Doctors also performed a CT scan of Ms.
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Turner’s spine, which showed that her spine was in a ―relatively
normal‖ alignment.
¶5 Due to the severity of her injuries, Ms. Turner’s doctors de-
termined that neither a back brace nor surgery could be used to treat
Ms. Turner’s fractured spine. Instead, they transferred her to the
Neuro Critical Care Unit (NCC) with instructions that she remain
there on bed rest under spinal precautions until she was healthy
enough for a brace or surgery. The parties do not dispute the stan-
dard of care for a patient on spinal precautions. While spinal precau-
tions are in place, the patient can be moved only by using a ―log roll-
ing‖ technique, which requires a minimum of three people so that
each part of the patient’s body can be rolled in unison, thereby main-
taining proper alignment of the patient’s spine.
¶6 Ten days later, on August 21, 2002, Ms. Turner received an
MRI scan that showed dramatic changes in the alignment of her tho-
racic spine. Her attending orthopedic physician discussed the differ-
ences between the MRI and the August 11th CT scan with Ms. Turn-
er’s mother and sister a day later and stated, ―I don’t know how or
when this was done, but it was done here at the hospital.‖ As a result
of the spinal injury revealed by the MRI, Ms. Turner was subse-
quently diagnosed with irreversible paraplegia.
¶7 Ms. Turner sued the Hospital for negligence. During jury se-
lection, she challenged a number of jurors for cause, the majority of
which the district court granted. Four of these challenges were de-
nied, however. Ms. Turner also suspected that a fifth juror had con-
cealed his true feelings during voir dire and, in her view, posed the
greatest threat to a fair trial. Ms. Turner therefore had three peremp-
tory challenges to deal with five potentially biased jurors. She de-
cided to spend two of them on jurors who had been challenged for
cause previously, but then she used her final challenge on the juror
whom she suspected of harboring hidden biases. The other two ju-
rors ended up serving on the jury.
¶8 At trial, Ms. Turner presented evidence showing that the
Hospital had failed to post a sign at the head of her bed that would
notify all care providers to follow spinal precaution guidelines. She
also introduced eyewitness testimony that, prior to August 22, 2002,
her attending nurses had failed to observe the spinal precautions and
that they had instead moved her, sometimes ―aggressively,‖ without
utilizing the required log rolling procedure. Ms. Turner argued that
her injuries were caused by the nurses’ failure to follow the spinal
precautions and that this failure was in part due to the Hospital’s
failure to post the sign at the head of her bed.
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TURNER v. U OF U HOSPITALS
Opinion of the Court
¶9 The Hospital countered Ms. Turner’s arguments by present-
ing evidence that the practice of posting a sign for spinal precautions
at the head of the patient’s bed was not uniform, but varied depend-
ing on the admitting nurse. The Hospital also presented evidence
that the nurses caring for Ms. Turner were aware of the spinal pre-
cautions, and that they did not move her without utilizing the log
rolling technique. In fact, the Hospital’s nursing expert testified that
spinal precautions are ―always communicated during nurse-to-nurse
shift reports‖ and that the Hospital’s records reflected that the
nurses were making these communications in their shift reports.
¶10 The Hospital also presented evidence about the differences
between a CT scan and an MRI, arguing that soft tissues, including
the spinal cord, are not effectively imaged by CT scanning technolo-
gy. Thus, the Hospital argued that Ms. Turner could not rely on the
CT scan to eliminate the possibility that her spinal cord had already
been injured at the time of her arrival at the Hospital. Additionally,
the Hospital argued that even if an MRI had been performed as soon
as Ms. Turner was admitted, it would not have changed the doctors’
decision to treat Ms. Turner with bed rest under spinal precautions.
¶11 Prior to the jury’s deliberations, the trial judge issued the
following jury instruction, Instruction No. 30, over Ms. Turner’s ob-
jection:
When there is more than one method of treatment that
is approved by a respectable portion of the medical
community, and no particular method is used exclu-
sively by all providers, it is not medical malpractice for
a provider to select one of the approved methods, even
if it later turns out to be a wrong selection, or one not
favored by some other providers. The provider has the
burden to prove that the method used is approved by a
respectable portion of the medical community.
The jury returned a verdict of no negligence, and Ms. Turner ap-
pealed.
¶12 At the court of appeals Ms. Turner argued, among other
things, that the district court erred by giving the jury instruction and
that the jury was biased.1 The court of appeals, relying on our deci-
1 Turner v. Univ. of Utah Hosps., 2011 UT App 431, ¶¶ 8–13, 40, 271
P.3d 156.
4
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sion in Butler v. Naylor,2 determined that even if the district court
erred in giving the jury instruction, ―the error would be harmless as
the jury could have reached the no-cause verdict on [an] alternative
theor[y],‖ such as the theory that ―the NCC nurses always log rolled
Turner.‖3 And with respect to the biased jury question, the court of
appeals applied the cure-or-waive rule, ―which means that in order
to raise the issue of juror bias on appeal, the appealing party must
[have] exercise[d] a peremptory challenge, if one is available, against
the juror unsuccessfully challenged for cause, and the challenged ju-
ror must have actually served on the jury.‖4 Because Ms. Turner
failed to comply with this rule, the court of appeals reasoned that
if we determine that one of the four jurors she chal-
lenged for cause was not biased, her argument is not
preserved. This is so because if one of the four jurors
was not biased, Turner would have had enough pe-
remptory challenges to dismiss the remaining three
prospective jurors and the trial court’s error, if any, in
not removing those jurors for cause would be harm-
less.5
The court of appeals then determined that one of the jurors was not
biased and that therefore Ms. Turner’s argument for juror bias was
not preserved.6 Ms. Turner petitioned this court for certiorari, which
we granted. We have jurisdiction over this matter pursuant to sec-
tion 78A-3-102(3)(a) of the Utah Code.
STANDARD OF REVIEW
¶13 ―On certiorari, we review for correctness the decision of the
court of appeals, not the decision of the district court.‖7
2 1999 UT 85, 987 P.2d 41.
3 Turner, 2011 UT App 431, ¶ 40 (second alteration in original) (in-
ternal quotation marks omitted).
4 Id. ¶ 8 (alterations in original) (internal quotation marks omit-
ted).
5 Id. ¶ 9.
6 Id. ¶ 13.
7 Wasatch Cnty. v. Okelberry, 2008 UT 10, ¶ 8, 179 P.3d 768 (inter-
nal quotation marks omitted).
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TURNER v. U OF U HOSPITALS
Opinion of the Court
ANALYSIS
¶14 We first address Ms. Turner’s argument that she is entitled
to a new trial because the district court erroneously issued Instruc-
tion No. 30. Specifically, Ms. Turner argues that this instruction was
unwarranted and prejudicial because there was no evidence pre-
sented at trial of an ―alternative treatment method.‖ She also argues
that the court of appeals misapplied our decision in Butler v. Naylor8
to the facts of this case. For the reasons stated below, we agree and
remand this case to the district court for a new trial.
¶15 Because Ms. Turner is entitled to a new trial due to the pre-
judicial jury instruction, we take this opportunity to provide guid-
ance to both the litigants and the district court with respect to the
proper method of preserving the issue of jury bias for appeal.9 As the
court of appeals noted, we appear to have adopted the cure-or-waive
rule in the case of State v. Baker.10 We are, however, dissatisfied with
the result yielded by this rule in the present case and are skeptical
about its prospective usefulness. Accordingly, we overrule Baker and
adopt a new standard for determining whether the issue of jury bias
is preserved for appeal.
I. ISSUING JURY INSTRUCTION NO. 30 WAS ERROR
BECAUSE IT WAS UNSUPPORTED BY THE EVIDENCE AND
UNDERMINES OUR CONFIDENCE IN THE VERDICT
¶16 Ms. Turner argues that her case was prejudiced by the dis-
trict court’s inclusion of Instruction No. 30 because ―there was no
evidence of any approved, alternate treatment method in the case.‖
Ms. Turner does not dispute the fact that there was conflicting evi-
dence about whether the standard of care included posting a sign on
her bed, but argues that this evidence ―could not create an alterna-
8 1999 UT 85, 987 P.2d 41.
9 See, e.g., State v. White, 2011 UT 21, ¶ 34, 251 P.3d 820 (address-
ing an issue ―outside the scope of the narrow certiorari question pre-
sented . . . in order to provide guidance to the trial court on re-
mand‖); State v. Jeffs, 2010 UT 49, ¶ 39, 243 P.3d 250 (examining a
nondispositive claim ―in order to guide the trial court on remand‖);
IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2003 UT 5, ¶ 10, 73 P.3d
320 (addressing a nondispositive issue because ―it may again arise
on remand‖).
10 935 P.2d 503 (Utah 1997).
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tive treatment method to defeat [Ms. Turner’s] liability claim . . . that
[the Hospital] improperly moved and injured [Ms. Turner].‖ Instead,
Ms. Turner argues that the evidence regarding the absence of the
sign was offered ―only [as an] explanation for the improper move-
ment, not proof that would allow [Ms. Turner] a recovery.‖ Conse-
quently, Ms. Turner argues that the court of appeals misapplied our
decision in Butler v. Naylor11 when it disposed of this claim and asks
us to reverse and grant a new trial. Because we conclude that the is-
suance of Instruction No. 30 was both erroneous and prejudicial, we
reverse and grant a new trial.
¶17 ―Claims of erroneous jury instructions present questions of
law that we review for correctness. We therefore review the instruc-
tions given to the jury without deference to the trial court‖ or, in this
case, the court of appeals.12 Additionally, ―[e]rrors with regard to
jury instructions require reversal only if confidence in the jury’s ver-
dict is undermined.‖13
¶18 In its decision, the court of appeals relied on the following
language from Butler:
When a civil case is submitted to a jury on several al-
ternative theories and the jury does not identify which
theory or theories it relied on in reaching its verdict, we
may affirm the verdict if the jury could have properly
found for the prevailing party on any one of the theo-
ries presented.14
¶19 The court of appeals noted that the jury did not explain the
grounds for its finding of no negligence. The court then interpreted
Butler’s use of the term ―theory‖ quite broadly, determining that ―the
jury could have based the no-cause verdict upon a finding that the
NCC nurses always log rolled Turner . . . regardless of whether they
were supposed to post a sign.‖15 In other words, the court of appeals
determined that the verdict of no negligence could be attributed to
11 1999 UT 85, 987 P.2d 41.
12 State v. Jeffs, 2010 UT 49, ¶ 16, 243 P.3d 1250 (citation omitted).
13 Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 38, 254 P.3d 161 (inter-
nal quotation marks omitted).
14 Turner v. Univ. of Utah Hosps., 2011 UT App 431, ¶ 40, 271 P.3d
156 (quoting Butler, 1999 UT 85, ¶ 21).
15 Id.7
TURNER v. U OF U HOSPITALS
Opinion of the Court
the ―theory‖ that the NCC nurses always log rolled Ms. Turner, as
opposed to the ―theory‖ that they were not required to post a sign.
¶20 Ms. Turner argues that this is a misapplication of Butler.
Specifically, she notes that the language relied upon by the court of
appeals flows from a line of cases beginning with Leigh Furniture &
Carpet Co. v. Isom16 and that, in each of these cases, the plaintiffs had
advanced several different causes of action as grounds for recovery.
For instance, in Leigh, we affirmed a jury’s verdict for a counter-
claimant based on the viability of his claim for interference with
prospective economic relations.17 This counter-claimant, however,
had also advanced a claim for interference with contract, but failed
to prove that cause of action.18 In affirming the verdict, we observed
that
where more than one cause of action has been submit-
ted to a jury and where one of those causes of action
was error-free, supported by substantial evidence, and
an appropriate basis for the general verdict, the judg-
ment on that verdict will be affirmed, even though the
evidence was insufficient to sustain the verdict on one
of the other causes of action submitted.19
Ms. Turner then demonstrates that in subsequent cases where we
applied this standard, we changed the language from ―causes of ac-
tion‖20 to ―alternative grounds‖21 and then, finally, to ―alternative
theories.‖22
¶21 But in this case, Ms. Turner argues, there was only one
―cause of action,‖ ―ground,‖ or ―theory‖ advanced for recovery: neg-
16 657 P.2d 293 (Utah 1982). The other cases in this line are Barson
ex rel. Barson v. E.R. Squibb & Sons, Inc., 682 P.2d 832 (Utah 1984);
Cambelt Int’l Corp. v. Dalton, 745 P.2d 1239 (Utah 1987); and Billings v.
Union Bankers Ins. Co., 918 P.2d 461 (Utah 1996).
17 657 P.2d at 313.
18 Id. at 301.
19 Id. at 301–02.
20 Barson, 682 P.2d at 835.
21 Campbelt, 745 P.2d at 1241–42.
22 Billings, 918 P.2d at 467.
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ligence. Thus, she asserts that ―there was no error-free alternative for
the jury to choose and upon which the court of appeals could disre-
gard the prejudicial jury instruction.‖ Hence, she concludes, Butler is
inapplicable here, and the court of appeals erred by relying upon it.
We agree.
¶22 Butler is distinguishable from the facts of this case because,
unlike Butler and the subsequent cases applying it, here there was
only one claim asserted, a claim for medical malpractice, and In-
struction No. 30 expressly stated that ―it is not medical malpractice
for a provider to select one of the approved methods . . . [w]hen
there is more than one method of treatment.‖ (Emphasis added.) Be-
cause we believe that jurors take jury instructions seriously, we are
troubled by the fact that this Instruction explicitly directs the jury to
return a ―no negligence‖ verdict if it finds that there was ―more than
one method of treatment.‖ Given the way this Instruction is worded,
therefore, it is reasonable to assume that the jury would have ad-
dressed the issue of alternative treatment plans first, rather than
going straight to the issue articulated by Instruction No. 27,23 as the
court of appeals assumed.24 And because Ms. Turner advanced only
one theory for recovery, namely medical malpractice, our confidence
23 Instruction No. 27 stated:
A nurse is required to use the same degree of learning,
care, and skill ordinarily used by other qualified nurses
in good standing providing similar care. This is known
as the ―standard of care.‖ The failure to follow the
standard of care is a form of fault known as ―nursing
negligence.‖ In order to establish nursing negligence,
plaintiff has the burden of proving three things: (1)
what the standard of care is; (2) that the nurse failed to
follow this standard of care; and, (3) that this failure to
follow the standard was a cause of plaintiff’s harm.
In this action, plaintiff alleges that nurses employed by
defendants failed to follow the standard of care by im-
properly moving plaintiff while she was a patient at
University Hospital in August 2002.
If you find that defendants’ nurses breached the stan-
dard of care in any of these respects, then you must de-
termine whether that failure was a cause of plaintiff’s
harm.
24 Turner, 2011 UT App 431, ¶ 40.
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TURNER v. U OF U HOSPITALS
Opinion of the Court
in the jury’s verdict is undermined because Instruction No. 30 ex-
pressly forecloses the avenue of recovery set forth in Instruction No.
27 if the jury found that there were alternative, approved methods of
treatment. Thus, we agree with Ms. Turner that the court of appeals’
reliance on Butler in this case is misplaced.
¶23 We also note that even if the court of appeals was correct in
assuming that the jury could have relied on the theory presented in
Instruction No. 27 to support its verdict, Instruction No. 30 was still
erroneous because there was no evidence supporting the existence of
an alternative, approved treatment method. The Hospital argues that
the evidence regarding the placing of a sign was sufficient to support
this instruction, asserting that ―the trial testimony established two
potential treatment methods. The first method is to post a sign . . .
[while] [t]he second method is not to post a sign and rely on shift re-
ports and the patient’s medical records to pass information regard-
ing spine precautions.‖
¶24 We are not persuaded by this argument. While it is true that
the evidence regarding the procedure of posting a sign on the pa-
tient’s bed was conflicting, in our view this is not sufficient to sup-
port the conclusion that posting a sign is a ―method of treatment.‖
As the Hospital admits, when Ms. Turner was admitted her doctors
had to choose between three ―treatment options‖: surgery, a back
brace, or bed rest under spinal precautions. These sorts of options
are what is contemplated by the term ―method of treatment,‖ as
would the procedures involved for a patient under spinal precau-
tions (e.g., the log rolling procedure). Signs and shift reports, howev-
er, are not ―methods of treatment,‖ but means of carrying out the
method selected by the doctor, which, in this case, was bed rest un-
der spinal precautions. We conclude that the decision of whether or
not to post a sign does not qualify as a ―method of treatment‖ and
that, therefore, there was no evidence that supported the inclusion of
Instruction No. 30. The potential confusion created by this mislabe-
ling is significant in that this instruction could have led the jury to
erroneously conclude that if it was acceptable to either post or not
post a sign, they should find no medical negligence. Accordingly, we
hold that the district court erred in giving Instruction No. 30 and that
Ms. Turner is entitled to a new trial due to its prejudicial nature.
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II. BECAUSE OF ITS TENUOUS FOUNDATION AND LIMITED
UTILITY, WE ABANDON THE CURE-OR-WAIVE RULE AND
ADOPT A NEW STANDARD FOR PRESERVING THE ISSUE OF
JURY BIAS
¶25 Because Ms. Turner is entitled to a new trial due to the erro-
neous inclusion of Instruction No. 30, we take this opportunity to
clarify for the litigants and the district court the applicable standard
for preserving an argument based on jury bias for appeal. In this
case, the court of appeals applied the cure-or-waive rule and con-
cluded that Ms. Turner had failed to preserve the issue of jury bias
for appeal.25 Ms. Turner argues that the application of the cure-or-
waive rule to the facts of this case yielded an unfair result. We agree.
Accordingly, we abandon the cure-or-waive rule in favor of the
standard articulated below and remand this case to the district court
for further proceedings consistent with this opinion.
¶26 As the court of appeals noted, we adopted the cure-or-waive
rule in State v. Baker.26 That case’s adoption of this rule, however,
was far from straightforward. First, Baker was a criminal case, and
there was no discussion about the rule’s applicability within a civil
context. In fact, the rule was not applied in a civil context until the
court of appeals did so in 2007.27 Second, the rule itself only garnered
a plurality of votes: Justices Howe and Russon voted to adopt the
rule, but Associate Chief Justice Stewart authored a separate concur-
rence, wherein he expressed doubts about the rule’s effectiveness in
assuring fair trials but nevertheless expressed satisfaction ―that the
cure-or-waive rule is properly applied in this case.‖28 Justice Zim-
merman dissented, and Justice Durham concurred with his dissent.
Thus, the rule itself was supported by just two justices, while a third
arguably voted to adopt it only for that particular case. Finally, the
rule has not been widely applied in Utah cases.29
25 Turner v. Univ. of Utah Hosps., 2011 UT App 431, ¶¶ 8–13, 271
P.3d 156.
26 935 P.2d 503, 510 (Utah 1997).
27 See Clatterbuck v. Call, 2007 UT App 76U, 2007 WL 701039.
28 Baker, 935 P.2d at 510 (emphasis added).
29 By our count, the rule has been applied in just a handful of cas-
es, and discussed in only a few others. See Baker, 935 P.2d at 510
(adopting the cure-or-waive rule); Turner, 2011 UT App 431, ¶¶ 8–13
(applying the cure-or-waive rule in a civil context); Clatterbuck, 2007
(continued)
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TURNER v. U OF U HOSPITALS
Opinion of the Court
¶27 In addition to the shaky foundations of this rule, we are also
concerned about the results its application yielded in this case. While
we agree with the observation made in Baker that the right to pe-
remptory challenges is not constitutional,30 we disagree with the rea-
soning in Baker that places the burden on the defendant to utilize
these challenges in order to correct what could be perceived as judi-
cial error.31 While it is true that ―[b]oth parties and the court share a
duty to help ensure a fair trial—a trial in which a jury impartially
weighs the evidence,‖32 it is nevertheless a reality that both parties
view their peremptory challenges as a tactical tool and desire to use
them accordingly. This reality is illustrated clearly in this case, where
Ms. Turner had to determine whether to expend her peremptory
challenges on jurors whom she had already challenged for cause, or
on a juror whom she suspected of harboring hidden biases. She
chose the latter option, and consequently the previously challenged
jurors were seated on the jury. Thus, under the cure-or-waive rule,
Ms. Turner was prevented from raising the issue of jury bias on ap-
peal because the rule required her to expend that final peremptory
challenge on one of the other two jurors who had been challenged
for cause.
¶28 This result strikes us as unduly harsh to the appellant. Fur-
thermore, it seems to us that, in the end, this issue boils down to a
pure policy determination. On the one hand, there is the constitu-
tional right to a fair trial, while on the other is the fact that perempto-
ry challenges are merely a means to ensure that end. The question,
therefore, is whether attorneys should be allowed to use peremptory
challenges on jurors whom they would otherwise be unable to chal-
lenge for cause without thereby losing the ability to raise the issue of
jury bias on appeal. In Baker, we expressed the concern that ―if a de-
fendant needs to show only that he used all of his peremptories and
UT App 76U (same); see also State v. Wach, 2001 UT 35, ¶ 36 n.3, 24
P.3d 948 (discussing the cure-or-waive rule, but not applying it);
State v. Robertson, 2005 UT App 419, ¶ 7 n.1, 122 P.3d 895 (same).
30 Baker, 935 P.2d at 506 (observing that ―the peremptory is not
constitutionally guaranteed‖).
31 Id. at 507 (―To preserve the issue on appeal, a defendant whose
for-cause challenge has been denied must exercise a peremptory
challenge, if one is available, to achieve a legally impartial jury.‖).
32 Id. (emphasis omitted).
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that a biased juror sat . . . there is a great temptation to sow error.‖33
That is, ―[a] defendant whose for-cause challenge is erroneously de-
nied by the trial court could always generate reversible error merely
by expending all of his peremptories on other jurors, adverse or
not.‖34
¶29 We find this reasoning unpersuasive and insufficient to jus-
tify continued adherence to the cure-or-waive rule for several rea-
sons. First, it is simply not the case under the rule articulated below
that a party could ―create reversible error‖ merely by expending all
of their peremptory challenges on jurors other than those who were
previously challenged for cause. Under the rule we adopt today,
such a course of action would merely preserve the issue of jury bias
for appeal. It would not automatically create reversible error, how-
ever, since the party would still have to demonstrate that (a) a juror
who was previously challenged for cause sat on the jury, and (b) that
juror was, in fact, biased.35 Only then would an appellate court be
justified in reversing based on jury bias.
¶30 Second, the concerns expressed in Baker ignore the fact that
there are cases where attorneys have good reason to suspect bias, but
lack sufficient grounds to challenge those jurors for cause. In such a
situation, the attorney should be allowed to use a peremptory chal-
lenge on that juror without losing the ability to raise the issue of jury
bias on appeal. And this case is a perfect illustration of such a situa-
tion. Here, Ms. Turner had three peremptory challenges at her dis-
posal, but suspected that five jurors were biased against her. Four of
these jurors had previously been challenged for cause, but she sus-
pected that the fifth posed the greatest threat to a verdict in her fa-
vor. Thus, in this situation, Ms. Turner should have been allowed to
use one of her peremptory challenges on the juror whom she sus-
pected of bias (but lacked grounds to challenge for cause) without
thereby losing the ability to raise the issue of jury bias on appeal.
¶31 Accordingly, we reject the cure-or-waive rule and adopt the
rule stated in People v. Hopt36 in its stead. In that case, a defendant
had peremptory challenges available but failed to use them to dis-
miss a previously challenged juror. When the defendant then at-
33 Id. at 507.
34 Id.
35 See infra ¶¶ 31–32.
36 9 P. 407, 408 (Utah Terr. 1886), aff’d, 120 U.S. 430 (1887).
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TURNER v. U OF U HOSPITALS
Opinion of the Court
tempted to argue jury bias on appeal, we held that ―[u]ntil [the de-
fendant] had exhausted his peremptory challenges, he could not
complain‖ about possible jury bias.37
¶32 We conclude that this rule strikes the right balance between
the competing interests mentioned above. On the one hand, it re-
quires that the parties utilize all available peremptory challenges be-
fore the issue of jury bias can be raised on appeal, thereby encourag-
ing them to use their challenges in order to achieve the goal of a fair
trial. But as opposed to the cure-or-waive rule, it does not require the
parties to use those challenges in a particular way, thus leaving the
door open to their tactical use. That is, parties need not use all of
their challenges on jurors who were previously challenged for cause
in order to preserve the issue of jury bias for appeal. Rather, as long
as (a) all of the party’s peremptory challenges were used and (b) a
juror who was previously challenged for cause ends up being seated
on the jury, the issue of jury bias has been preserved, which is pre-
cisely what has occurred in this case. Ms. Turner used all of her pe-
remptory challenges in the way that she thought afforded her the
best chance at prevailing. But despite her efforts, jurors whom she
thought should have been removed for cause ended up being seated
on the jury, and hence she should be allowed to raise this issue of
jury bias on appeal where, if she is successful in demonstrating that a
challenged juror was biased, she would be entitled to a new trial.38
We therefore expressly reject the cure-or-waive rule and in its stead
adopt the rule articulated above as the proper standard for determin-
ing when the issue of jury bias has been properly preserved for ap-
peal. We also overrule Baker to the extent that it is inconsistent with
this opinion and remand this case to the district court for further
proceedings consistent with this opinion.
CONCLUSION
¶33 The district court erred when it included Instruction No. 30
because no evidence was before the jury that supported that instruc-
tion. And because its presence undermines our confidence in the
jury’s verdict, we conclude that Ms. Turner is entitled to a new trial.
37 Id.38 Since we have already concluded that Ms. Turner is entitled to
a new trial due to the erroneous jury instruction, we need not reach
the issue of whether the previously challenged jurors in this case
were, in fact, biased.
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On remand, we instruct the litigants and the district court that the
cure-or-waive rule is no longer the standard governing preservation
of jury bias. Instead, appellate courts will apply the Hopt rule, as
stated above, in order to determine whether the issue of jury bias has
been adequately preserved.
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