Walls v. Kim , 250 Ga. App. 259 ( 2001 )

Johnson, Presiding Judge.

In our judicial system, the only purpose for voir dire is to assure that jurors are impartial — that they are able to consider the case solely on its merits without any bias or prior inclination.¹ A party in a civil case therefore has good cause to challenge a juror who has expressed either an opinion that the opposing party ought to prevail or a desire that the other party will succeed.² Upon such a challenge, the trial court must consider the evidence and then exercise its significant discretion to retain or dismiss the juror.³

In too many cases, trial courts confronted with clearly biased and partial jurors use their significant discretion to “rehabilitate” these jurors by asking a version of this loaded question: After you hear the evidence and my charge on the law, and considering the oath you take as jurors, can you set aside your preconceptions and decide this case solely on the evidence and the law? Not so remarkably, jurors confronted with this question from the bench almost inevitably say, “yes.” Such biased jurors likely even believe that they can set aside their preconceptions and inclinations — certainly every reasonable person wants to believe he or she is capable of doing so. Once jurors affirmatively answer the “rehabilitation” question, judges usually decide to retain these purportedly rehabilitated jurors, and on appeal such decisions are often found not to be abuses of discretion.⁴

Many judges on this court have served as trial judges and wholeheartedly agree with the principle that trial judges must have significant discretion in deciding whether to excuse jurors for cause. Just as wholeheartedly, we disagree with the way that the “rehabilitation” question has become something of a talisman relied upon by trial and appellate judges to justify retaining biased jurors. Especially when the better practice is for judges simply to use their discretion to remove such partial jurors, even when the question of a particular juror’s impartiality is a very close call.

A trial judge should err on the side of caution by dismissing, rather than trying to rehabilitate, biased jurors because, in reality, the judge is the only person in a courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury. While the parties to litigation operate under the guise of selecting an impartial jury, the truth is that having a jury which is truly fair and impartial is not their primary desire. Instead, their goal is to select a jury which, because of background or experience or whatever other reason, is inclined to favor their particular side of the case. The trial judge, in seeking to balance the parties’ competing interests, must be guided not only by the need for an impartial jury, but also by the principle that no party to any case has a right to have any particular person on their jury.⁵

The case before us is an example of how a trial court, however unintentionally, abuses its discretion in refusing to dismiss a juror who is biased in favor of one party. Patricia Walls, who was 45 years old, went to the emergency room of Phoebe Putney Memorial Hospital in Albany because of a cramp in her left calf and shortness of breath. She was seen by Dr. Tae Won Kim, who ordered that she undergo a chest x-ray, a doppler of the left leg, and blood work. After undergoing those examinations, she returned home. A week later, Walls died of a pulmonary thromboembolism.

Her husband, Ed Walls, brought the instant wrongful death action against Dr. Kim. The doctor answered the complaint, and the case proceeded to trial. During voir dire, one of the jurors stated that she is a nurse who works in emergency rooms, that she knows Dr. Kim, and that she has worked with him. Because of that relationship, she said that she probably hoped that the case would come out in favor of Dr. Kim, and she acknowledged that Ed Walls did not start the case on an even footing with the doctor.

The judge then asked the “rehabilitation” question, to which the juror replied that she would set aside her preconceived notions and decide the case on the law and evidence. Upon further questioning by Walls’ counsel, the juror reiterated that Walls did not start the case on an even footing with Dr. Kim because she knows and has worked with the doctor, but she does not know Walls. However, she then contradicted herself by claiming that she did not favor one side over the other. When Walls’ counsel tried to ask her to explain the contradiction, the judge cut him off and ordered him to move on to another question. Thereafter, the judge refused to disqualify the juror for cause.

A juror is objectionable when it is shown that her finding in the case may be affected by personal interest in the result; and the probability as to whether that interest will produce bias is determined by ordinary and general human experience.⁶ In the current case, the juror had a personal interest in the result due to her professional relationship with Dr. Kim; and based on ordinary and general human experience, it is more than probable that her interest produced bias.

If this nurse served on the jury, she would have only two choices — either a verdict for Dr. Kim or a verdict against him. After that verdict, she would have to go back to the emergency room in the hospital where she and Dr. Kim both have worked, face the doctor, work with other physicians and nurses on that hospital staff, many of whom undoubtedly know Dr. Kim, and deal with hospital administrators who had employed them both. She may even work again with Dr. Kim in circumstances where emergency treatment is performed on another patient. Common sense and human experience tell us that anyone in this nurse’s position would be reluctant to return a verdict against the doctor, no matter how great her belief that she could set aside her personal feelings. And she admitted as much to the court, saying that she hoped the case would work out in favor of the doctor and that to her Walls did not start the case on equal footing with the doctor.

The mere fact that she also told the court that she could decide the case on the law and facts does not eliminate the reality of her circumstances. She still hoped the case would work out for Dr. Kim, and she still had to go back to work after the case. She was, understandably, a biased juror who should not have remained in the jury pool. Neither the juror nor the parties should be put into such a situation. In refusing to dismiss her for cause, the trial judge abused his discretion. Therefore, the judgment must be reversed and the case remanded for a new trial.

Judgment reversed.

Pope, P. J., Smith, P. J., Barnes, Ellington and Phipps, JJ, concur. Ruffin, J., dissents.

1 Daniel v. Bi-Lo, 178 Ga. App. 849, 851 (1) (344 SE2d 707) (1986).

2 OCGA § 15-12-134.

3 Cohen v. Baxter, 267 Ga. 422, 423 (1) (479 SE2d 746) (1997).

4 See id.; Switzer v. Gorman, 235 Ga. App. 794, 795 (1) (510 SE2d 581) (1998).

5 See Hill v. Hosp. Auth. of Clarke County, 137 Ga. App. 633, 636 (224 SE2d 739) (1976).

6 Daniel, supra at 850 (1).