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Taylor v. Magana10/5/2005
responding affirmatively, plaintiff's counsel asked follow-up questions to ascertain the particulars. Juror Parejo remained silent and did not indicate that he had been a defendant in any lawsuit. As to the third prong, i.e., the failure to discover the concealed facts must not be due to the want or diligence of the complaining party, the district court observed that "plaintiffs' counsel made careful and diligent inquiry of each of the jurors regarding any prior experience in litigation, whether as a party or otherwise." Id. at 317. Unlike the instant case where the trial judge specifically elicited Hill's response concerning prior litigation, the juror in the Bernal case simply remained silent in response to the collective questions posed by plaintiffs' counsel as to whether any of the jurors had been either a plaintiff or a defendant in a lawsuit.
In reviewing the trial court's failure to grant a new trial, the district court observed that the information concerning the prior litigation was concealed from plaintiffs' counsel, and as a result, plaintiffs' counsel lost the right to make an intelligent judgment as to whether a juror should be challenged. Id. at 316. The district court further noted that the information had been squarely asked for and was not provided and " lthough the juror did not intend to mislead plaintiffs' counsel, the omission nonetheless prevented [plaintiffs'] counsel from making an informed judgment which would in all likelihood have resulted in a peremptory challenge." Id. at 316-17.
Taylor established that the information concerning the prior litigation was relevant and material to Hill's jury service in the case, juror Hill concealed the information during the questioning, and the failure to disclose the information was not attributable to Taylor's lack of diligence. We therefore conclude that the trial judge abused her discretion in failing to grant Taylor's motion for a new trial based upon juror misconduct. We reverse and remand for a new trial.
Reversed For New Trial.
Warner, J., concurs.
Gunther, J., dissents with opinion.
Gunther, J., dissenting.
I respectfully dissent.
I recognize that the trial court applied an incorrect legal standard regarding the second part of the test where it concluded that Hill had not purposely concealed the pending lawsuit. However, despite applying the incorrect legal standard, the trial court properly concluded that the Taylors did not carry their burden of demonstrating concealment, especially where it applied the proper legal standard for the second part of the test in its discussion of the third part of the test. The trial court's question to Hill was ambiguous, particularly where voir dire questioning became increasingly abbreviated as it ran its course, and Hill's response to the question was ambiguous, particularly where it is evident from the record that Hill had a difficult time comprehending the proceedings. It was unclear in both instances what questionnaire item (or items) was being discussed. Additionally, the Taylors' counsel failed to clarify these ambiguities by further inquiry. Under this scenario, it cannot be said that information regarding the pending lawsuit was "squarely asked for" and not provided by Hill. As such, the Taylors failed to satisfy the three-part test necessary to obtain a new trial based on juror concealment.
Furthermore, I disagree with the majority that it is any unduly harsh burden to expect the trial court and counsel to insure that prospective jurors specifically answer each question included in a voir dire questionnaire. Presumably each question is included in the questionnaire because it is p
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