korlynn-v-obey-and-barbara-henderson-individually-and-on-behalf-of-the ( 2013 )

Opinion issued April 30, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00825-CV
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KORLYNN V. OBEY AND BARBARA HENDERSON, INDIVIDUALLY
AND ON BEHALF OF THE ESTATE OF TREAVOR M. OBEY,
DECEASED; AND ON BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF TREAVOR M. OBEY, DECEASED, INCLUDING,
BUT NOT LIMITED TO, KORLYNN V. OBEY AND BARBARA
HENDERSON, Appellants
V.
EAST HOUSTON SURGICAL ASSOCIATES, P.A. AND AUDENCIO
ALANIS, M.D., Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2009-38368
MEMORANDUM OPINION
In this appeal from a defense verdict in a medical malpractice case,
appellants Korlynn V. Obey and Barbara Henderson, individually and on behalf of
the Estate of Treavor M. Obey and all wrongful death beneficiaries, including
themselves, argue that the trial court erred in denying their motion to strike a juror
for bias, who appellees failed to rehabilitate, and thus, deprived them of their right
to a fair trial. We affirm.
Background
Treavor M. Obey died nineteen days after undergoing a gastric-bypass
procedure performed by appellee, Audencio Alanis, M.D. 1 Treavor Obey’s son,
Korlynn V. Obey, and Treavor’s mother, Barbara Henderson, subsequently sued
Dr. Alanis and his professional association, appellee, East Houston Surgical
Associates, P.A., alleging that both appellees were negligent and grossly negligent
in the care and treatment of Treavor in connection with her post-procedure follow-
up care.
Appellants’ counsel began voir dire by asking each prospective juror to
identify themselves and state if they, or any of their close family or friends, worked
in a medical profession. Several prospective jurors indicated that they did—
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Trial testimony regarding the specific medical facts of this case, including the care
and treatment provided, are not pertinent to this appeal which only challenges the
trial court’s refusal to strike a juror for cause during voir dire.
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including the fourteenth prospective juror to answer. Counsel then discussed with
the prospective jurors the burden of proof, mistakes that physicians may or may
not make, possible errors in judgment, degrees of such errors, and whether or not
the jurors could hold a physician responsible for an error in judgment. One such
exchange with a venire member identified by appellants as Prospective Juror
number 14, went as follows:
MS. VAUGHAN: Would you be able to apply the law regarding
burden of proof, that the plaintiff has to prove just more likely
than not, just over 50 percent that –
PROSPECTIVE JUROR: That makes it a lot harder. Yeah.
MS. VAUGHAN: Okay. Would you require the plaintiff to prove
their case more than just over the 50 - yard line or just more
than 50 percent?
PROSPECTIVE JUROR: Yeah. I mean it would - - I would think so.
Yeah.
MS. VAUGHAN: Okay.
PROSPECTIVE JUROR: I mean, if it’s that close, yeah.
Appeellees’ counsel also questioned this same prospective juror as to whether he
would require greater proof than a preponderance of the evidence.
MR. FEEHAN: If you don’t think about 50.1 percent, if you think
about the greater weight of credible evidence and then it’s more
true than not - - is that something - - is that an instruction that
you could follow?
PROSPECTIVE JUROR: I would have to see - - yeah. - - a pretty
clear difference. Yeah.
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MR. FEEHAN: Well, you’d have to make a decision that it was more
true than not, right?
PROSPECTIVE JUROR: Yeah.
At the end of voir dire, the trial court, acting sua sponte, struck seven
prospective jurors for cause—numbers 2, 12, 13, 29, 39, 44, and 45. When the
trial court asked if there were any additional challenges, appellants’ counsel asked
the court to strike prospective jurors numbers 14, 25, 27, 28, 35 because all five
stated that they would require more than a preponderance of the evidence to find
appellees liable. The discussion of Prospective Juror number 14 was as follows:
MS. VAUGHAN: Yes, Your Honor. Juror Number 14 said that he
would require more evidence than a preponderance, said that he
could not make a decision based upon just a 50.1 percent or
more-likely-than-not threshold, and we would challenge him
for cause.
THE COURT: Actually, your learned opposing counsel over here had
a conversation with him, and I think he pretty much cured it
because, if memory serves, he did say, “Well, I can follow what
the judge says” and all that good stuff. Is my memory correct –
MR. FEEHAN: Yes.
THE COURT: -- on that, Mr. Feehan? That’s what I thought.
MS. VAUGHAN: He actually -- and – and my notes reflect from that
that he still said he would have to have more evidence.
THE COURT: That was --
MS. VAUGHAN: He understood that – that – more truthful, not more
truthful – could make a decision on whether or not somebody is
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being truthful, but candidly said to Mr. Feehan that he would
still require more evidence than the preponderance. So
THE COURT: That was his first answer, and then as they kept on
talking he changed his story, so –— I was listening pretty hard
core to him, too, because I had the same note, that he needed
more. And he started to say it again, and then by the end of
their conversation he changed his mind. So, not giving you that
one. Next up?
Appellants’ motions to strike prospective jurors numbers 25, 27, 28, and 35
proceeded in a similar fashion. The trial court granted appellants’ motion to strike
with respect to prospective jurors numbers 25 and 35, but declined to strike
prospective jurors numbers 14, 27, and 28 for cause.
Contemporaneous with the submission of their peremptory strike list,
appellants advised the trial court that they were having to exercise a peremptory
challenge on Prospective Juror number 14, that they were out of peremptory
strikes, and that they would have exercised a peremptory strike on Prospective
Juror number 27 if they had not had to exercise one on Prospective Juror number
14. Prospective Juror number 27 was seated as a juror in this case. After a jury
trial, the trial court entered a take-nothing judgment in favor of appellees.
Discussion
In their sole issue on appeal, appellants contend that the trial court
erred in denying their motion to strike Prospective Juror number 14 because
said juror was disqualified from serving on the jury as a matter of law.
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As appellees correctly point out, the portions of the record that appellants
contend pertain to Prospective Juror number 14 do not specifically identify him by
name or number. Nevertheless, having reviewed the record in its entirety, we are
satisfied that appellants have preserved this issue for our review. Although
counsels’ exchanges with Prospective Juror number 14 do not identify him by
name or number, the record sufficiently identifies the testimony of each of the
other prospective jurors who were either challenged or struck for cause (2, 12, 13,
25, 27, 28, 29, 39, 44, and 45). This, plus the detail with which his testimony was
discussed, is enough for us to be able to attribute the statements at issue to
Prospective Juror number 14, and thus, enable us to decide this case on the merits.
a. Standard of Review
A person is disqualified to serve as a juror on a particular case if he or she
has a bias or prejudice in favor of or against one of the parties, TEX. GOV’T CODE
ANN. § 62.105(4) (West 2013), or demonstrates “a general inability to follow the
court’s instructions regarding the law.” Hyundai Motor Co. v. Vasquez, 189
S.W.3d 743, 751 (Tex. 2006); see TEX. R. CIV. P. 226a. If a prospective juror’s
bias, prejudice, or inability to follow the trial court’s instructions is established as a
matter of law, the trial court must disqualify that person from service. Malone v.
Foster, 977 S.W.2d 562, 564 (Tex. 1998).
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To disqualify a potential juror for bias or prejudice as a matter of law, the
record must conclusively show that the potential juror’s state of mind led to the
natural inference that he could not act with impartiality. See Vasquez, 189 S.W.3d
at 751. Thus, a prospective juror who unequivocally admits bias or prejudice is
disqualified to serve as a juror as a matter of law. Shepherd v. Ledford, 962
S.W.2d 28, 34 (Tex. 1998); Sullemon v. U.S. Fid. & Guar. Co., 734 S.W.2d 10, 14
(Tex. App.—Dallas 1987, no writ). Whether a prospective juror is biased or
prejudiced is determined from the record as a whole. See Cortez v. HCCI-San
Antonio, 159 S.W.3d 87, 92–93 (Tex. 2005). When a prospective juror’s
disqualification is not established as a matter of law, the trial court must make a
factual determination as to whether the prospective juror is nevertheless
sufficiently biased or prejudiced to merit disqualification. See Sullemon, 734
S.W.2d at 15 (citing Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex. 1963)). A
trial court’s decision overruling a challenge for cause carries with it an implied
finding that bias or prejudice does not exist to the degree necessary to warrant
disqualification. Buls v. Fuselier, 55 S.W.3d 204, 209–10 (Tex. App.—Texarkana
2001, no pet.).
We review such rulings on a challenge for cause for abuse of discretion.
Vasquez, 189 S.W.3d at 753–54. This is because trial judges are in a better
position to evaluate the prospective juror’s sincerity in their response and capacity
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for fairness and impartiality. Cortez, 159 S.W.3d at 93. A trial court abuses its
discretion in refusing to disqualify a prospective juror for cause only if the record,
viewed in the light most favorable to the trial court’s ruling, shows that the venire
member was not able or willing to set aside personal beliefs to act impartially.
Buls, 55 S.W.3d at 210. A trial court does not abuse its discretion, however, by
refusing to strike a juror who expresses bias or prejudice when the juror
“equivocates” or is subsequently “rehabilitated.” See Cortez, 159 S.W.3d at 93.
b. Analysis
Here, appellants contend that Prospective Juror number 14 unequivocally
stated that he would require appellants to prove their case beyond a preponderance
of the evidence, and therefore, he was disqualified as a matter of law. We
disagree. Prospective Juror number 14’s testimony on this point is far from
unequivocal. For example, when appellants’ counsel asked him if he would be
able to apply the law regarding the burden of proof “that the plaintiff has to prove
just more likely than not, just over 50 percent,” Prospective Juror number 14
answered, “That makes it a lot harder. Yeah.” This could mean, as appellants
suggest, that he would not be able to follow the court’s instruction, or, it could
mean, as appellees suggest, that he acknowledges that it would be hard to apply the
correct burden, but he could do it nevertheless. Appellants’ counsel then asked
him, “Would you require the plaintiff to prove their case more than just over the
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50-yard line or just more than 50 percent?” Prospective Juror number 14
answered, “Yeah. I mean it would - - I would think so. Yeah.” Again, this answer
is subject to two or more reasonable interpretations. Either the prospective juror is
saying that he thinks he would “require the plaintiff to prove their case more than
just over the 50-yard line” or that he thinks he would require the plaintiff to prove
their case “just more than 50 percent.” These are two different standards and it is
not clear which standard Prospective Juror number 14 thinks he would require.
Even if we interpreted Prospective Juror number 14’s responses to express
an initial inclination to require proof beyond a preponderance of the evidence,
further questioning suggests he could follow the trial court’s instructions and apply
the appropriate burden of proof. In particular, appellees’ counsel asked him, “if
you think about the greater weight of credible evidence and then it’s more true than
not . . . is that an instruction that you could follow?” Prospective Juror number 14
answered, “I would have to see - - yeah. - - a pretty clear difference. Yeah.”
In light of these exchanges, Prospective Juror number 14’s testimony is
neither “unequivocal,” nor does it conclusively establish that he would not follow
the law as instructed by the trial court, and would, instead, require appellants to
demonstrate a heightened degree of proof in order to prevail on their negligence
claims against appellees. Viewed as a whole, the record fails to show that
Prospective Juror number 14 was disqualified as a matter of law, and the trial court
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did not err in denying appellants’ challenge for cause with respect to this
prospective juror. Moreover, because the record, taken as a whole and viewed in
the light most favorable to the trial court’s ruling, shows that Prospective Juror
number 14 equivocated with respect to the degree of proof he required, and he
testified that he could follow the trial court’s instructions, we cannot say that the
trial court abused its discretion when it denied appellants’ motion to strike
Prospective Juror number 14.
We overrule appellants’ sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.
Jim Sharp
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
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