Ian Baker, Ind. & Representative of Estate of Jean Baker v. Dr. Salah El Hafi & Cardiology Clinic, P.A.

  NUMBER 13-03-397-CV

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG  

KEITH BAKER, INDIVIDUALLY, IAN

BAKER, INDIVIDUALLY AND AS

REPRESENTATIVE OF THE ESTATE

OF JEAN BAKER,                                                        Appellants,

v.

DR. SALAH EL HAFI, AND

CARDIOLOGY CLINIC, P.A.,                                                      Appellees.

On appeal from the Probate Court No. 1 of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Yañez, and Garza

Memorandum Opinion by Justice Garza

      Appellants, Keith Baker, individually, and Ian Baker, individually and as independent executor of the estate of Jean Baker, deceased, brought a medical malpractice suit against appellees, Dr. Salah El Hafi and Cardiology Clinic P.A., for the death of their mother. The case was tried before a jury, and a take-nothing judgment in favor of appellees was returned. Appellants now appeal the trial court’s judgment and the subsequent denial of their motion for a new trial. They contend that the trial court erred in refusing to dismiss for cause three jurors who, appellants allege, openly admitted bias in favor of appellees during the voir dire process. Because we conclude that one of these jurors expressed bias during the voir dire examination, we reverse and remand.

I. Standard of Review

We use the abuse-of-discretion standard to review a trial court’s ruling on a challenge for cause. Kiefer v. Continental Airlines, Inc., 10 S.W.3d 34, 39 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). A party may raise a challenge for cause during jury selection in order to eliminate unfit jurors. See Tex. R. Civ. P. 228, 229. Bias and prejudice are statutory grounds for disqualification of a juror. See Tex. Gov’t Code Ann. § 62.105(4) (Vernon 1998). In order to be disqualified for bias, a juror’s state of mind must appear to create a natural inference that he or she will not act with impartiality. See Gum v. Schaefer, 683 S.W.2d 803, 807 (Tex. App.—Corpus Christi 1984, no writ) (per curiam) (citing Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963)). Whether a juror is biased is a factual determination for the court, see id.; however, if evidence conclusively establishes that a jury panelist would not act with impartiality, an appellate court must hold that the panelist was disqualified as a matter of law. Garza v. Tan, 849 S.W.2d 430, 432 (Tex. App.—Corpus Christi 1993, no writ). The trial court has no discretion to overrule a challenge for cause when the challenged juror is disqualified as a matter of law. See Gum, 683 S.W.2d at 808.       

II. Discussion

          During the voir dire examination, appellants’ counsel elicited testimony from venire members 25, 31, and 34. Appellants claim that the testimony of these venire members demonstrates that they were each biased in favor of the defendants. The trial court overruled appellants’ motion to strike these venire members for cause, and appellants were ultimately forced to use peremptory strikes to remove the venire members. Consequently, appellants were unable to challenge four objectionable venire members who became jurors.

          We begin with venire member 25, who appellants claim was biased as a matter of law based on the following testimony:

Juror 25:       I’m not saying I want to be impartial. If I were in your shoes, I would want to know that I have spent most of my professional career on the defense side.

Counsel:       Are you a lawyer?

Juror 25:       Yes.

Counsel:       Who are you with?

Juror 25:       Preston and Calvert.

Counsel:       Okay. And you actually defend health care operations.

Juror 25:       Correct.

Counsel:       Let me ask you: in all fairness, do you think that if this were a horse race so to speak, the plaintiff’s [sic] are starting a little bit behind in your eyes?

Juror 25:       I mean—I’m not saying that—I would do my best to be objective. I’m just saying that if I were in your shoes I might consider you towards as the attorney who spend [sic] most of his career defending malpractice lawsuits.

Counsel:       You feel like you can relate very much to the defendant’s [sic] lawyers in this case? Is that fair?

Juror 25:       That’s correct.

Counsel:       You feel like you would tend to look at it from their perspective as more of the plaintiff’s [sic] perspective?

Juror 25:       I think it would be natural.

            This testimony disqualified venire member 25 as a matter of law. The trial court committed reversible error by failing to grant appellants’ motion to strike. See Dempsey v. Beaumont Hosp., Inc., 38 S.W.3d 287, 289–90 (Tex. App.—Beaumont 2001, pet. dism’d by agr.) (explaining that in cases involving juror disqualification, appellant need not establish that probable injury resulted therefrom before a new trial may be granted).

          Venire member 25 stated that he has spent “most of his career” defending medical malpractice claims. He stated that he could “relate very much to the defendant’s lawyers in this case” and that “it would be natural” for him “to look [at the case] from their perspective.” These statements demonstrate bias because they show venire member 25 would not act with impartiality: he tended to favor defense counsel in this medical malpractice case because he has spent most of his career defending against such claims. Although he assured the court that he would do his best to be objective, venire member 25 continued to maintain that it would be natural for him to look at the case from the perspective of defense counsel. Juror 25 was not summoned to the bench to be further evaluated by the trial judge, nor did he ever say he could be “fair and impartial.”

          We find the words of our sister court particularly insightful on this issue:

In this country, where fair and impartial jurors can be had so readily, there is really no reason why questions of this character should arise, and in all cases where there is a possibility for serious doubt as to the impartiality of a juror, from whatever cause, the trial court, in the exercise of the discretion conferred upon it, should properly discharge the juror.

Lumbermen’s Ins. Corp. v. Goodman, 304 S.W.2d 139,144–45 (Tex. Civ. App.—Beaumont 1957, writ ref’d n.r.e.).

          Given this Court’s disposition of appellants’ first issue, it is unnecessary to address whether venire members 31 and 34 should have been struck for cause. See Tex. R. App. P. 47.1.

III. Conclusion

          We reverse the judgment of the trial court and remand the cause for a new trial.  

                                                                                      _______________________  

                                                                                      DORI CONTRERAS GARZA,

                                                                                      Justice

Memorandum Opinion delivered

and filed this the 30^th day of August, 2004.