 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Harding v. Bell11/5/2002
iled to show that the trial court's errors resulted in a biased juror actually sitting on the jury. See id. at 36 (stating that to prevail on a claim of error based on the trial court's failure to remove a prospective juror, the party had to "show that as a result of the loss of his peremptory challenge he was not able to remove another subsequently summoned juror who ultimately sat on the jury, and who was partial or incompetent" (internal quotations and citation omitted)). In fact, she even concedes that all the jurors that ended up sitting were impartial by admitting in her briefs, on at least three occasions, that if she had retained her peremptory challenges, she would have merely been able to make the jury "more fair." Her claim that she was prejudiced therefore lacks merit because she received an impartial jury, and that is all she is entitled to under the law.
III. INSUFFICIENCY OF THE EVIDENCE
We next examine Harding's claim that there was insufficient evidence to support the jury's conclusion that she was negligent. She alleges that the only evidence on which the jury could have legitimately based its finding is her decision to wait two days before seeking medical treatment after she experienced mild chest pain on January 24, 1997. She further claims that this evidence is insufficient to support the jury's finding because Dr. Bell diagnosed her as "normal" and she relied on his professional opinion. Dr. Bell responds that Harding's insufficiency argument fails because she did not marshal all of the evidence supporting the jury's conclusion. Specifically, he asserts that she failed to marshal the favorable testimony of four expert witnesses: Dr. Ganellen, Dr. Bateman, Dr. Icenogle, and Dr. Rosenthal. Harding counters that she did not have to marshal the testimony of these experts because it related to Dr. Bell's negligence, not hers. We disagree.
When challenging a jury's verdict, a party must "marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict." State v. Boyd, 2001 UT 30, 13, 25 P.3d 985 (internal quotations and citation omitted). Put differently, a party incurs an obligation to marshal all of the evidence that arguably supports the jury's conclusion. This means that it must marshal "every scrap" of evidence that supports the jury's finding. Neely v. Bennett, 2002 UT App 189, 11, __ P.3d __. It also requires that the party contesting the verdict assume the role of "devil's advocate." Id. The party challenging the jury's verdict must therefore temporarily remove its own prejudices and fully embrace "the adversary's position." Id.
Harding nevertheless asserts that she had no obligation to marshal the testimony of the four expert witnesses referenced by Dr. Bell because the testimony of those witnesses is unrelated to whether she was negligent. If we adopt her position, however, we would turn the marshaling requirement inside out. Indeed, under Harding's view, the party on whom the burden of marshaling rests would merely have to make a unilateral assertion that the evidence was irrelevant to the finding under attack to meet its marshaling obligation. The burden would then shift to the party that prevailed below to demonstrate the relevance of the evidence. Whether evidence actually supports the jury's verdict, however, is a question that the party contesting the verdict has an obligation to disprove because it lost below, and we will not remove that burden simply because the challenging party claims that the evidence is irrelevant.
Accordingly, where a party alleges a failure to marshal certain evidence and the party challenging the
Page 1 2 3 4 Utah Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|