Must a court strike a juror whose background implies bias, but asserts they can be impartial?

Biased Juror

Sanders v. Sears-Page (Nev. Ct. App. – July 16, 2015)

When a juror is biased against a party, that juror must be struck from the jury. The issue is whether the district court erred in declining to strike an empaneled juror whose background experience implied bias, but who asserted he could be impartial.

This case arises from a jury trial on a personal injury claim for damages following a 2009 car accident. Sears-Page made a right turn from a left-hand lane and hit Toni Sanders’ car. Initially, the accident appeared minor as neither party claimed injuries at the scene. A few days later, Sanders purportedly began experiencing neck pain that worsened over time. Sanders and her husband, Robert, sued Sears-Page for negligence to recover damages, including medical expenses. Sears-Page admitted liability but denied causation and damages.

Sanders’ injuries

The central issues at trial involved whether the accident had caused or contributed to Sanders’ injury and, if so, whether Sanders’ claimed medical expenses were reasonable. Sanders, who had chronic back pain, had previously experienced neck pain in 2004 from a bone spur. But, she denied having neck pain in the years immediately preceding the accident, and two of her treating physicians testified the accident with Sears-Page caused Sanders’ 2009 neck pain. Both doctors also testified Sanders’ medical procedures and surgeries following the accident to alleviate pain were reasonably necessary.

To support her claimed damages, Sanders presented medical records and bills from Nevada Spine Clinic. Those records were generated primarily by treatment from Doctors Grover, Ghuman, and Rosler, but many records were generated by other doctors and medical professionals at Nevada Spine Clinic. Of the people who treated Sanders at Nevada Spine Clinic, only Dr. Grover testified at trial. Dr. Grover was one of several doctors at that clinic who treated Sanders for chronic back pain before the 2009 accident and also treated her for neck pain after the accident, and testified all of Sanders’ medical bills from Nevada Spine Clinic were reasonable.

Sears-Page denied Sanders’ injuries occurred as a result of the automobile accident. Instead, Sears-Page asserted Sanders’ symptoms arose from a preexisting degenerative medical condition. In opening statements, Sears-Page emphasized that Dr. Grover sold Sanders spine surgery and the doctors at Nevada Spine Clinic encouraged unnecessary surgery and medical procedures for their own financial gain. Sears-Page argued she should not have to pay for Sanders’ unnecessary medical expenses, which were purposely inflated by Nevada Spine Clinic.

During trial, Sears-Page’s retained medical experts, Dr. Schifini and Dr. Duke, both testified Sanders’ medical records showed a preexisting degenerative condition that developed over the course of several years, and her post-accident medical records were devoid of trauma to her neck. Both experts opined the accident did not cause Sanders’ medical condition or contribute to her current neck pain. Dr. Duke further noted Sanders’ medical history prior to the accident included treatment for neck pain in 2004 and 2009, which supported his opinion that Sanders’ degenerative condition alone caused her current neck pain.

Both experts testified Sanders’ surgery and medical procedures performed by Nevada Spine Clinic doctors were unnecessary and unreasonable. Further, they emphasized the clinic doctors’ fees were significantly higher than average doctor’s fees. Sears-Page argued Nevada Spine Clinic’s physicians’ practice of referring patients like Sanders to medical facilities owned by the physicians not only benefited the physicians financially, but also inflated Sanders’ medical bills.

Juror 9

After opening statements and the testimony of Robert, Juror 9 notified the district court he previously had been a patient of Dr. Ghuman’s at Nevada Spine Clinic. Because neither party mentioned Nevada Spine Clinic or Dr. Ghuman by name during voir dire, and the attorneys did not question Juror 9 regarding the names of his treating physicians for the back pain he disclosed during voir dire, Juror 9 was unaware of the connection until after opening statements.

Outside the presence of the other jurors, the district court and the attorneys questioned Juror 9. Juror 9 acknowledged several doctors at Nevada Spine Clinic treated him for a herniated disc. After an initial consultation with Dr. Ghuman, he was ultimately treated by other doctors at Nevada Spine Clinic who did not treat Sanders. When one of those doctors advised Juror 9 back surgery was inevitable and encouraged him to schedule surgery, Juror 9 sought a second opinion from a doctor at a different facility regarding back surgery. Juror 9 followed the advice of the second doctor and opted for nonsurgical treatments.

Juror 9 stated he could be impartial without a doubt, would base his decision on facts, and would not be inclined to give more credibility to the conclusions of the doctors at Nevada Spine Clinic. When specifically questioned whether his experience might bias him against the doctors at Nevada Spine Clinic, however, Juror 9 told the court, “I don’t—I don’t think so” and “I think I can keep an open mind.” When Juror 9 was questioned regarding his ability to be impartial when viewing Nevada Spine Clinic’s billing records, Juror 9 stated he had no problem with the billing from the clinic because he “didn’t pay the bills anyway,” referring to his insurance. Juror 9 advised the court he viewed surgery as a last resort and had “never been real enamored with having surgery.” Additionally, Juror 9 stated he conducted “some research on fusion versus disc replacement” when deciding whether to have back surgery, and stated, “I kind of know which way I’m personally going to be leaning . . . [a]s far as my case.” Neither the judge nor the attorneys asked Juror 9 about the nature or extent of his independent research.

With Juror 9 still present, the district court asked the parties if either wished to challenge Juror 9 for cause. Sears-Page stated she did not, but Sanders challenged Juror 9 for cause. The district court then asked Juror 9 to leave the courtroom, and Sanders argued for striking Juror 9. Although Sears-Page told the court the juror appeared to be impartial, Sears-Page also acknowledged there was an issue of bias. Additionally, Sears-Page characterized Sanders’ arguments for striking Juror 9 as “good,” and suggested the district court make Juror 9 an alternate instead of removing him for cause. The court denied Sanders’ motion to strike Juror 9 for cause, stating Juror 9’s answers demonstrated his ability to be impartial. Juror 9 later became the foreman of the jury.

Sanders’ challenge to Juror 9 for cause

Sanders argued the district court erred in failing to remove Juror 9 for cause because Juror 9’s statements suggested bias and he did not unequivocally state he could be impartial.

The Nevada Court of Appeals noted that the Nevada Supreme Court had never addressed a situation where a juror asserts impartiality despite having an experience so similar to the case being tried that the juror’s impartiality is improbable. Other jurisdictions considering this question have determined that a juror’s experience may directly impact the juror’s ability to fairly judge the case, leading to bias.

In Kirk v. Raymark Indus., Inc., 61 F.3d 147 (3d Cir. 1995), the United States Court of Appeals for the Third Circuit held that a juror who had inhaled asbestos, knew people who were suffering from asbestos poisoning, and feared succumbing to an asbestos-induced disease, should not have been empaneled in an asbestos damages case. The Kirk court held the juror’s background gave rise to an inference of impermissible bias in favor of the plaintiffs, and the juror would be more likely to return a large award of damages because of his own experiences. Accordingly, the juror’s statement of impartiality was insufficient to support the district court’s denial of the challenge for cause.

Likewise, in Wolfe v. Brigano, 232 F.3d 499 (6th Cir. 2000), the Sixth Circuit determined a district court erred by accepting a juror’s assertion of impartiality where the juror had a close relationship with the victim’s family and had spoken to them about the crime. The Second Circuit in United States v. Torres, 128 F.3d 38 (2d Cir. 1997), upheld a district court’s finding of bias where a prospective juror in a criminal trial engaged in similar conduct as the conduct with which the defendant was criminally charged. And in Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998), the Ninth Circuit held a trial judge erred in accepting a juror could be impartial in a murder trial where the juror’s brother died under circumstances similar to those suffered by the victims.

The Nevada Court of Appeals agreed with these jurisdictions and held that if a juror’s background is replete with circumstances which would call into question his ability to be fair, the district court should remove the juror for cause, even if the juror has stated he or she can be impartial. In determining whether to strike a juror for cause, the trial court should assess the actual facts of the juror’s experience rather than rely solely upon the juror’s assertion of impartiality.

In opening statements, Sears-Page told the jury “Nevada Spine Clinic sold Sanders surgery” and further suggested Sanders wanted to make Sears-Page pay hundreds of thousands of dollars for this unnecessary surgery. After opening statements, Juror 9 admitted to the district court and parties he, too, was a patient at Nevada Spine Clinic. The district court questioned Juror 9 and elicited Juror 9’s promise he would try to be impartial. The trial judge accepted those assurances as reliable.

Under the particular facts of this case, the Court concluded that the district court abused its discretion in failing to strike Juror 9 for cause. Despite Juror 9’s assertion of impartiality, his experience was replete with circumstances which would call into question his ability to be fair, and the record, read as a whole, suggests bias against the clinic’s doctors and, by extension, Sanders’ case.

The Court explained that Juror 9’s recent experiences with Nevada Spine Clinic bore striking similarity to Sanders’, with the critical difference being Juror 9 chose not to follow the clinic’s advice. Juror 9 also expressly admitted he already determined “I kind of know which way I’m personally going to be leaning” under his own, and very similar, circumstances. Although Juror 9 stated he would not discredit the opinions of the clinic’s doctors, his decision to discredit the clinic’s advice in his own case creates a strong inference Juror 9 would be unable to set aside bias in judging the facts of Sanders’ case. This inference was critical because the crux of this case turned on competing expert opinions. The credibility of Sanders’ case rested almost entirely on the evidence provided by the clinic. Neither the district court nor the parties asked any probing questions about Juror 9’s opinions regarding the doctors or the clinic. The district court simply denied Sanders’ challenge based on Juror 9’s superficial statement that he would try to be impartial.

Moreover, the Court explained that Sears-Page’s arguments during opening and closing statements emphasized the theory that the clinic’s doctors “sold” Sanders unnecessary and overpriced surgery, along with other medical procedures. Because Juror 9 remained empaneled, Sears-Page benefited from making this argument to a juror who had been to the same clinic, seen one of the same doctors, and been given the same advice to have surgery, but who instead researched alternatives to surgery and chose to disregard the clinic’s opinion in favor of alternative, and inferably less expensive, nonsurgical treatments. In other words, this clinic failed to sell surgery to Juror 9. Juror 9’s experience with this clinic significantly advantaged Sears-Page’s ability to undermine the credibility of Sanders’ experts and contest causation and damages.

The Court also noted that although Juror 9 did not state he doubted his ability to be impartial or he harbored bias, when directly questioned by the parties about whether his experience with the clinic would interfere with his ability to equally credit the evidence proffered by the clinic doctors, he qualified his statements regarding his ability to be impartial by responding, “I don’t think so,” and “I think I can keep an open mind.” Further, Juror 9’s statements that he did not have a problem with the clinic’s billing practices because he did not have to pay the clinic’s bills became particularly troublesome in light of defense counsel’s continued arguments throughout trial that Sanders wanted Sears-Page to “pay for her surgery.”

Despite these facts, the district court refused to strike Juror 9 for cause. The Court believed that this refusal was more disconcerting because the court later struck a juror who had dozed off for one to four minutes during the fifth day of trial. There, the juror was questioned separately and the juror assured the court she had been paying close attention and dozed for only a minute or two. Although neither party moved to strike that juror, the court sua sponte dismissed her. While the Court did not disparage the district court’s determination to ensure the parties presented the case to an alert jury, it questioned why the district court would remove a drowsy juror and not remove a juror whose background experiences unquestionably raised an inference of bias, to which both parties conceded. The district court’s sua sponte action of removing a drowsy juror while refusing to strike a juror whose background evinces bias was puzzling to the Court, particularly since there were sufficient alternates to replace both jurors.

The Court noted that its review of the record as a whole cast serious doubt on Juror 9’s ability to be fair and impartial. Thus, the Court held the district court abused its discretion by failing to strike Juror 9 for cause.

The Court determined this error to be reversible because Juror 9’s presence on the jury resulted in an unfair empaneled jury. The biased juror was empaneled, and Sanders had no ability to exercise a peremptory strike to remove him from the jury. Under these particular facts, the Court could not state with certainty that Juror 9’s preconceptions did not infect the jury panel or affect the jury’s verdict in addition to biasing the juror’s views.

A party’s challenge for cause while an empaneled juror is present

In conjunction with the district court’s error in failing to strike Juror 9, the Court also considered the ramifications of the district court’s conduct in asking the parties, in front of Juror 9, whether either wished to challenge Juror 9 for cause. On appeal, Sanders argued these actions constituted error.

The Court explained that while jurisdictions differ regarding whether a district court abuses its discretion by refusing to conduct challenges for cause outside the presence of the prospective jurors during voir dire, several have noted this refusal may amount to error if it results in the seating of a prejudiced juror. The American Bar Association Standards for Criminal Justice: Discovery and Trial by 15-2.1(a) recommends trial courts entertain challenges for cause outside the juror’s presence, in part so the juror is not prejudiced against the party making the challenge.

After questioning Juror 9, and with Juror 9 still seated in the courtroom, the trial judge asked whether either party wished to challenge Juror 9 for cause. Sears-Page stated she had no challenge, but Sanders stated she wished to challenge Juror 9 for cause. The trial judge then asked Juror 9 to leave the courtroom.

The Court noted that although Nevada law does not mandate judges entertain challenges for cause outside of the prospective juror’s presence, a critical difference exists between the challenge of a prospective juror during voir dire and a challenge for cause in front of an empaneled juror, particularly where the challenge occurs immediately after the empaneled juror admits facts establishing an inference of bias against the party making the challenge, as occurred here. Had this exchange occurred during voir dire, the trial judge’s conduct may not have prejudiced Sanders, as she would have had the ability to use a peremptory strike if she feared Juror 9 would be biased by the failed challenge.

The Court believed that the district court’s actions here placed Sanders in the difficult position of arguing before a juror that he should be removed, and that juror knew Sanders did not want him on the jury. Under these facts, the Court determined the district court’s process of requiring the parties to issue their challenges for cause in front of Juror 9 amounted to plain error and that the error was reversible.


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