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Mobile Infirmary Mudical Center v. Hodgen10/31/2003
e Court: You know you can be fair and impartial?
"Prospective Juror: Yes, sir.
"The Court: All right .... Now, I can't remember -- it's all sort of running together. It must be April Fool's Day. Did I tell you if any of these questions embarrass you, you can come forward? Okay, good. Are any of you a witness in this case?
"Mr. MacKenzie [counsel for Mobile Infirmary]: Judge, I respectfully move for a mistrial because of this: there's been a question raised by your Honor to [a prospective juror] who does business with Mobile Infirmary ... there's a direct statement, much more than an inference, if he was to rule a verdict in favor of the Defendant that there would be some consequences and his business would be lost. And he said no but the clear message to the jury is there may be some consequences, whether it be with their business or friends, and it's the wrong message to send at this point in the time.
"We're faced with the conspiracy theory and now they're being told if you don't go with the Infirmary, something's going to happen. I know it wasn't intentional but, at the same time, I'm --
"The Court: No, I don't mind --
"....
"Mr. McGlothren [counsel for Hodgen]: I think giving a curative instruction -- at this point, tell the jury that you don't mean to imply anything by that but it's important that we get jurors who are not biased.
"I will make this easy. We're going to strike [the prospective juror] anyway. He's not going to be on the jury, and if Mr. MacKenzie wants a curative --
"....
"The Court [speaking to the jury]: The lawyers have a right and a duty -- it's their responsibility to call my attention to things that I might say that are improper. I don't think it was improper but let me say this as a curative instruction. I told [the prospective juror] that there might be some sort of consequence to his business on how he ruled one way or the other. I want you to disregard that. That was improper, shouldn't have been said.
"We want a jury that will be fair and impartial regardless of their feelings or emotions, and so I want you to disregard any comment I made to [the prospective juror] about consequences of the outcome of this case."
Mobile Infirmary did not object to the curative instruction and did not move for a mistrial after the instruction was given. In fact, at no point after the trial court gave the curative instruction did Mobile Infirmary voice any dissatisfaction with the trial court's action. Additionally, Mobile Infirmary made no mention of this issue in its motion for a partial summary judgment, in its motion for a JML, or in its renewed motion for a JML.
"'"' t is a necessary corollary of our adversary system in which issues are framed by the litigants and presented to a court; ... fairness to all parties requires a litigant to advance his contentions at a time when there is an opportunity to respond to them factually, if his opponent chooses to; ... the rule promotes efficient trial proceedings; ... reversing for error not preserved permits the losing side to second-guess its tactical decisions after they do not produce the desired result; and ... there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right. The principal rationale, however, is judicial economy. There are two components to judicial economy: (1) if the losing side can obtain an appellate reversal because of error not objected to, the parties and public are put to the expense of retrial that could have been avoided had an objection been made; and (2) if an issue had been raised i
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