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Carr v. Smith6/29/2000
Marion and Thomas Carr, appellants, sued Gregory H. Smith, D.O. and Scott Allen, M.D. for medical malpractice. The only issues appellants present for review after their two-week jury trial relate to the propriety of the jury shuffle granted by the trial court on Allen's motion. We reverse.
Procedural Background
About a month before trial, one of the defendants, Scott Allen, M.D., filed a motion to use a confidential juror questionnaire form during voir dire. The proposed questionnaire contained 54 questions and included specific questions regarding juror personal information, education, employment, and beliefs. It also included inquiries into juror history or involvement with litigation and medical treatment. Appellants filed a response to Allen's motion indicating their approval of the submission of the 54 questions so long as the questionnaire included an additional nine questions they proposed. Although there is no order showing the court granted Allen's motion, the questionnaire, with all 63 questions, was submitted to the 60 panel members to fill out while they were in the central jury room.
The panel members were segregated in the central jury room, by jury numbers one through 60. Once segregated, they were sworn and all counsel had an opportunity to view the panel members in their seated order. Counsel for appellants and paralegal for appellee viewed the panel. All counsel received the standard jury information cards. The panel members filled out the questionnaires and all counsel received copies to review overnight before starting trial the next day. The next morning Allen's counsel requested a rule 223 jury shuffle. Appellants objected. They argued that the request came too late because voir dire had already begun when all counsel received and had the opportunity to review the extensive juror questionnaire. See Tex. R. Civ. P. 223. The court overruled their objection and shuffled the jury.
Sometime during the hotly contested trial, appellants non-suited Allen. The jury ultimately returned a verdict in favor of Smith, the appellee. Appellants' subsequent motion for mistrial was denied, and their motion for new trial claiming the trial court erred by granting Allen's request for a jury shuffle was overruled by operation of law.
Issues Presented
Appellants present four issues for determination by this court. First, they ask whether a party may evaluate information in a detailed questionnaire before they decide to exercise their right to a jury shuffle and whether granting a shuffle, despite a timely objection, is error. Second, they ask us to decide the proper remedy for an erroneous or untimely shuffle and whether the granting of an untimely shuffle violates a party's constitutional right to a trial by jury. In response, appellee claims appellants' objection made at the time the shuffle was requested was insufficient to preserve error, and that appellants should have done more at three other stages of the proceeding: when their objection to the shuffle was overruled; after the shuffle was completed; and after voir dire, before exercising their peremptory challenges. Third, appellee contends that voir dire had not yet commenced when Allen requested the shuffle, even though all parties had reviewed the answers to the questionnaire and, even if granting the shuffle was error, appellants have failed to show harm. Lastly, appellee contends that it would be unjust and inequitable to require a retrial due to the action of a party who was non-suited and is no longer involved in the appeal or any further proceedings. First, we will address whether error has been properly preserved.
Preservation of Error
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