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Holly v. Huntsville Hospital9/16/2005
he trial court's decision on this matter will not be disturbed on appeal unless the appellant establishes that the decision was arbitrarily entered into or was clearly erroneous."
Carter v. Henderson, 598 So. 2d 1350, 1354 (Ala. 1992).
"The proper inquiry on a motion for a new trial based on improper or nonexistent responses to voir dire questions is whether the response, or the lack of response, resulted in probable prejudice to the movant. Freeman v. Hall, 286 Ala. 161, 238 So. 2d 330 (1970). Not every failure of a prospective juror to respond correctly to a voir dire question will entitle the losing party to a new trial. Wallace v. Campbell, 475 So. 2d 521 (Ala. 1985).
"The determination of whether the complaining party was prejudiced by a juror's failure to answer voir dire questions is a matter within the discretion of the trial court and will not be reversed unless the court has abused its discretion. Freeman, supra."
Union Mortgage Co. v. Barlow, 595 So. 2d 1335, 1342 (Ala. 1992). Questions of law and the application of the law to the facts presented are to be reviewed de novo. Allstate Ins. Co. v. Skelton, 675 So. 2d 377, 379 (Ala. 1996).
III. Analysis
A.
Initially, the Hollys argue that Huntsville Hospital waived its right to move for a new trial based on the juror's failure to answer the voir dire question regarding whether any prospective jurors had any disputes with Huntsville Hospital. They argue that agents of Huntsville Hospital had notice of the dispute between the hospital and the juror, and, therefore, through principles of agency law, Huntsville Hospital itself had notice of the dispute. They further contend that " here a party has knowledge of facts which could justify the discharge of a juror, but fails to inform the court in a timely fashion, the party waives the issues." 50A C.J.S. Juries ยง 507 at 556 (1997).
The defendants, on the other hand, point out that regardless of whether knowledge of the dispute between Huntsville Hospital and the juror can be imputed to the hospital, Dr. Markushewski, who was a defendant below, had no knowledge of that dispute. According to the defendants, because the liability of Huntsville Hospital is based on Dr. Markushewski's actions, if the doctor is entitled to a new trial based on the juror's failure to answer the question posed during voir dire, then so is Huntsville Hospital, a point the Hollys concede.
The Hollys do not make any argument in their initial brief on appeal regarding any waiver by Dr. Markushewski of his right to assert the juror's failure to disclose the dispute between him and Huntsville Hospital as a basis for a new trial. In their reply brief, the Hollys argue that Dr. Markushewski did not have "standing" to assert the failure of the juror to respond to the voir dire question. In reality, this "standing" argument is simply an attempt to show that Dr. Markushewski was not prejudiced by the juror's failure to respond; it has no relevance to a possible waiver by Dr. Markushewski based on knowledge he may have had of the dispute between the juror and Huntsville Hospital. We address below the Hollys' argument that the failure of the juror to respond to the question did not prejudice the defendants.
The Hollys also argue in their reply brief that, because both Huntsville Hospital and Dr. Markushewski were represented by the same trial counsel, Dr. Markushewski is bound by counsel's alleged waiver of the right to assert the issue regarding the juror's failure to disclose his dispute with Huntsville Hospital. The general rule is that "this Court does not address issues raised for the first time in a reply brief." B
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