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Murff v. Pass
Posted 5/20/08 Sean Michael Reagan, Leyh & Payne L.L.P.The Texas Supreme Court continues to shape the law of voir dire with regard to striking a veniremember for cause by holding that a veniremember’s statement that he would hold the plaintiff to a clear and convincing standard of proof in a health care liability case, rather the proper preponderance of the evidence standard, was not grounds for disqualifying the veniremember for cause. Murff v. Pass, 51 Tex. Sup. Ct. J. 688, 2008 WL 820577 (Tex. March 28, 2008).
Murff v. Pass was a health care liability case brought against a physician and his professional association for their alleged failure to act in accordance with the requisite standard of care during the labor and delivery of Plaintiff・s daughter, which caused the daughter to sustain extensive and permanent physical and mental disabilities. During voir dire, Plaintiff’s counsel engaged the panel in a discussion about the appropriate burden of proof, attempting to define and compare the terms “preponderance of the evidence,” “clear and convincing evidence,” and “beyond a reasonable doubt.” Plaintiff’s counsel defined “preponderance of the evidence” as “the greater weight and degree of credible testimony,” and this lead to an exchange with one of veniremembers over the precise standard of proof to be applied in the case. One of the veniremembers stated that he would hold the Plaintiff to the clear and convincing standard of proof because the clear and convincing standard was “closer to the greater weight measure” mentioned previously by counsel than the “more likely than not” measure also mentioned by counsel. Plaintiff・s counsel then asked the panel who agreed with veniremember’s statement and three other veniremembers responded affirmatively.
Further questioning concerning the precise definition of “the ponderance of the evidence” ensued, which lead to additional comments from the panel indicating that they were confused. Even the trial judge noted the confusion on the record by stating, “the jury sounds like they・re getting confused.” None of the veniremembers, however, answered affirmatively when asked by defense counsel whether they would apply a standard of proof other than the one outlined by the judge in the jury charge.
Plaintiff’s counsel subsequently objected to four veniremembers who stated that they would hold the Plaintiff to the clear and convincing standard of proof, arguing that these veniremembers should have been stricken for cause. The trial court overruled the challenges for cause, and Plaintiff then used her three peremptory challenges to eliminate three of the veniremembers, which left one of the objectionable veniremembers to serve on the jury. The case proceeded to trial and the jury found for the Defendants. The trial court subsequently entered a take-nothing verdict.
Plaintiff appealed, and the court of appeals reversed, holding that the veniremembers should have been disqualified because their responses demonstrated prejudice and an “inability to follow the court"s instructions regarding the law.”
The Texas Supreme Court subsequently reversed the court of appeals, holding that the trial court did not abuse its discretion in refusing to strike these veniremembers for cause even though the veniremembers stated that they would hold the Plaintiff to the incorrect clear and convincing standard of proof. The Court reiterated its position that “bias, prejudice, or inability to follow the court’s instructions may not be discernible from a single statement or response to a general question,” and that “statements of partiality may be the result of inappropriate leading questions, confusion, misunderstanding, ignorance of the law, or merely loose words spoken in warm debate, and do not necessarily establish disqualification.”
Additionally, the Court stated that when a veniremember expresses bias or confusion, the trial court has the discretion to stop the line of questioning to clarify the veniremember・s response, and because the trial judges are present in the courtroom and are in the best position to evaluate the sincerity and attitude of individual panel members, they are given wide latitude in both conducting voir dire proceedings and in determining whether a veniremember is impermissibly partial.
In this case, the trial judge observed the exchange at issue and considered it confusing, as evident by the judge stating on the record “the jury sounds like they’re getting confused.” Consequently, the trial court did not abuse its discretion in refusing to disqualify the veniremembers for cause as the veniremembers’ responses exhibited the type of “confusion, misunderstanding, and ignorance of the law” as discussed in the Court’s decision in Cortez.
Plaintiff also argued that the trial court abused its discretion in refusing to strike these veniremembers for cause by asserting that rehabilitation is necessary once a veniremember makes a statement indicating an inability to follow the court"s instructions, citing the Court’s decision in Cortez. Therefore, Plaintiff argued that the first veniremember to state that he would hold the Plaintiff to the incorrect clear and convincing standard of proof and the three veniremembers who agreed with him should have been disqualified because they were never rehabilitated.
The Court quickly dismissed this argument by stating that its holding in Cortez does not require rehabilitation in order to prevent disqualification. Conversely, the Court stated that in Cortez, it held that rehabilitation is permissible to clarify whether a veniremember’s response results from confusion or misunderstanding, and that the extent and use of rehabilitation is within the trial court・s discretion. Consequently, in this case, the Court stated that the trial court was satisfied that the veniremember was sufficiently impartial without having to conduct additional individual questioning and therefore, the trial court did not abuse its discretion.