 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Pennell v. Dewan4/11/2005
sue of challenge for cause:
{ } "THE COURT: So, we just excuse these two for cause?
{ } "MR. DELAHUNTY: I'd like to inquire as to the woman who had the experiences with misdiagnosis, but the, whose family are all doctors, um, I think she's pretty well locked into a position.
{ } "THE COURT: You think she might be in favor of the doctors?
{ } "MR. DELAHUNTY: Doctor.
{ } "THE COURT: Or against them?
{ } "MR. DELAHUNTY: She'll be in favor of the doctors. But, if you want us to inquire - -
{ } "MR. POLING: I think it's a goose/gander rule, Judge. I don't see any need to try the case with these two jurors. If you want to excuse them now, I have no objection to that.
{ } "THE COURT: I think we should excuse them both. They both indicated they can't be fair to the parties.
{ } "Any problem with that, gentlemen?
{ } "MR. POLING: That's fine, Judge.
{ } "MR. DELAHUNTY: Okay." Tr. at 16-17.
{ } The court thus dismissed Juror No. 4 and Juror No. 18 without conducting additional examination or allowing the attorneys to engage in further inquiry. Id. Subsequently, another juror, No. 16, indicated her husband may have been represented in the past by appellants' firm. She remained on the jury. Tr. at 38-39. Later, Juror 35, a businessperson, expressed concern about "frivolous lawsuits." He was removed via a peremptory challenge. Tr. at 92-96.
{ } Appellants herein concede that the dismissal, standing alone, of the first two jurors (No. 4 and No. 18) may not constitute error, but appellants further maintain that "* * * after dismissing at least one juror who may have been shown to be impartial, the trial court then abandoned its apparent 'no tolerance' stance, and actually argued with jurors who later expressed bias against the Plaintiffs." Appellants' Brief at 7-8. In other words, appellants essentially contend, by dismissing Jurors 4 and 18 after a brief inquiry from the bench, and thereafter allowing greater colloquy with other jurors who initially expressed a potential bias against appellants (especially Jurors 16 and 35), the entire jury selection process was conducted in an arbitrary fashion which warrants reversal, particularly in light of just six members signing the defense verdict.
{ } Upon review of the record, we find a number of shortfalls to appellants' position. First, while a reading of Civ.R. 47(A) indicates that attorney inquiry is required during voir dire from the bench, a failure to object to remaining jurors after the completion of voir dire results in a waiver on appeal of all but plain error. See State v. Ivory, Cuyahoga App. No. 79722,2002-Ohio-1275, citing State v. Keith (1997), 79 Ohio St.3d 514, 684 N.E.2d 47; State v. Williams (1997), 79 Ohio St.3d 1, 679 N.E.2d 646. See, also, Lengyel v. Brandmiller (1942), 139 Ohio St. 478, 480, 40 N.E.2d 909. In the civil realm, the doctrine of plain error is limited to exceptionally rare cases in which the error, left unobjected to at the trial court, "rises to the level of challenging the legitimacy of the underlying judicial process itself." See Goldfuss v Davidson, 79 Ohio St.3d 116, 122, 1997-Ohio-401. In the case sub judice, just after another juror replaced Juror No. 35, appellants did not take advantage of their opportunity to challenge the juror selection process:
{ } "THE COURT: Any objection from counsel on how, the mechanics of this at this point, regarding the challenges of the jurors?
{ } "MR. POLING: Your Honor, I think we've gone in order. I've lost, honestly, track of where we are in terms of numbers, but as long as we've gone in
Page 1 2 3 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|