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Conway v. Blackburn6/13/2005
ed that the juror's response in voir dire was misrepresentation requiring a new trial. Carlson, 61 Wn. App. at 877-78. The court disagreed, noting that the juror 'did not fail to disclose material information, since her knowledge about dysfunctional families is not tantamount to particular knowledge about child abuse.' Carlson, 61 Wn. App. at 878.
Likewise, in State v. Gilmore, 59 Wn.2d 514, 515, 368 P.2d 722 (1962), the prospective juror was asked whether she had heard of the incident at hand before, or knew any of the defendants, attorneys, or witnesses. She answered no. Gilmore, 59 Wn.2d at 515. She was also asked whether there was any reason she could not be fair and impartial, and she answered no. Gilmore, 59 Wn.2d at 515. On appeal, the defendant argued that the juror had a duty to: '(a) disclose that her son was a cell mate of the defendant; and (b) disclose that her son was a convicted felon presently serving time.' By post-trial affidavit, the juror admitted seeing the defendant in jail when she visited her son, but denied knowing anything about him or his case prior to trial. Gilmore, 59 Wn.2d at 515. The Gilmore court held that the juror was not required to volunteer the information, and the question posed did not elicit the information. Gilmore, 59 Wn.2d at 516.
Here, the question posed in voir dire was whether anybody disagreed with the view that doctors 'must be held accountable for their job just like I should be held accountable for my job.' Conway argues that in response to this question, the three jurors who held the view that a patient has a duty to do adequate research prior to choosing a doctor should have disclosed that view. Conway argues that by failing to do so, they concealed a bias and prevented Conway from selecting an unbiased, impartial jury. Conway's argument fails. As in Carlson and Gilmore, the question asked did not elicit the information now argued to show bias. The question did not address exceptions to doctor's liability, or any related issue. It was not specific enough to elicit the allegedly undisclosed information. We hold that the jurors did not commit misconduct during voir dire.
Conway argues that three jurors committed misconduct by trying to sway the other jurors prior to deliberations. According to three juror affidavits (one from an alternate), prior to deliberations two jurors made disparaging remarks about a pamphlet Conway's attorney was trying to get into evidence (one juror said it 'was nonsense' and another said 'leave the pamphlet out of it, it's hogwash') and one pointed to something she wrote in her juror notepad and said to another juror, 'boring, boring.'
Conway cites Tate v. Rommel, 3 Wn. App. 933, 936-37, 478 P.2d 242 (1970), for the proposition that a juror who prematurely reveals an opinion about the case to other jurors commits misconduct. Tate did not so hold; rather, Tate held that merely revealing an opinion about the ultimate outcome of the case would not be misconduct justifying a new trial unless there is a showing that the conduct prejudiced the outcome of the trial. Tate, 3 Wn. App. at 937-38. Although Conway cited Tate in her opening brief, in her reply brief she urges that Tate is distinguishable because the juror there revealed the opinion to nonjurors, not to other jurors.
Blackburn argues that statements that disparage one of the parties or are otherwise inappropriate do not constitute misconduct warranting a new trial. In Nelson v. Placanica, 33 Wn.2d 523, 206 P.2d 296 (1949), one juror remarked to another than he could not figure out where the accident happened. The other said that it did not matter, because the defendant was wrong. Nelson, 33 Wn.2d at 527. Another juror commented
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