Present: All the Justices
TIMOTHY L. CANTRELL, ET AL.
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 990224 January 14, 2000
DEBORAH W. CREWS
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Jr., Judge
This is the appeal of a judgment in a tort action for
damages arising from a motor vehicle accident. The dispositive
issue is whether the trial court erred in refusing to strike for
cause a prospective juror.
In January 1995, appellee Deborah W. Crews was operating an
automobile that was stopped on a street in the City of
Lynchburg. Her vehicle was struck from the rear and she was
injured as a result of the negligence of appellant Timothy L.
Cantrell, who was operating a truck owned by his employer,
appellant Winn-Dixie Raleigh, Inc. The plaintiff sustained a
"soft tissue" injury that was diagnosed as a cervical sprain,
for which she brought this action against defendants seeking
recovery in damages.
In an October 1998 trial, the defendants admitted liability
and the case was tried on the issue of damages only. A jury
found in favor of the plaintiff and fixed her damages at
$108,812.87. The trial court overruled the defendants' motion
to set the verdict aside and entered judgment on the verdict.
We awarded defendants an appeal limited to consideration of four
assignments of error.
An issue raised by a portion of one of those assignments of
error is dispositive of this appeal. The issue is whether the
trial court erred in refusing to strike for cause a prospective
juror who, at the time of trial, was a client of the law firm
representing the plaintiff.
There is no dispute in the facts relevant to the issue we
decide. The motion for judgment was on stationery of "Law
Office / Overbey, Hawkins & Selz / Rustburg, Virginia." The
pleading was signed by Mr. Hawkins as "Of Counsel" for "Overbey,
Hawkins & Selz." Hawkins appeared at trial as attorney for the
plaintiff.
During jury voir dire, after asking whether "anybody" knew
the plaintiff's trial attorney, the trial court specified the
name of Hawkins' law firm and identified by name each member of
the firm, including "Bryan Selz." The court then asked, "Does
anybody know any of those individuals or been represented by
them or this firm or have any contact with them?"
Responding, prospective juror Holly Clingempeel stated that
she knew Selz and said, "He's representing me." When the court
asked, "How long ago?", the juror responded, "It's still going
on."
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Later during voir dire, while being questioned by
defendants' attorney, Clingempeel revealed that her
representation by Selz arose from "a car accident" and stated
that she sustained "[n]eck and back" injuries. She said that
she had filed a "lawsuit"; that the suit "is continuing right
now"; and that Selz is representing her "in that."
Upon being asked by the court whether the fact that Hawkins
or a member of his law firm was "currently" representing her
would have "any bearing" on her judgment, Clingempeel responded,
"No." She further stated that she could "assure" the court
"under oath" that she could "ignore" her representation by the
plaintiff's law firm "and be totally fair to both sides."
The trial court denied defendants' motion to strike for
cause Clingempeel, as well as two other prospective jurors. In
ruling on the motion, the court stated it believed the three
jurors "can ignore any personal sort of contact or relationship
or association they have with Mr. Hawkins, his firm, . . . and
the like and be fair and that's the only test."
Elaborating, the trial court stated: "Campbell County is
of such a nature that in this community people are going to know
each other and have some kind of association and the association
as described to me by the three folks to whom you objected to
was not such that in and of itself prejudiced them or made an
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obvious bias or would lend itself to an obvious bias on their
behalf."
Concluding, the trial court said: "I was impressed with
their answers and I believe them to be truthful and I found
nothing wrong with them sitting as jurors . . . ."
The plaintiff contends the trial court correctly refused to
strike Clingempeel for cause. We disagree.
Parties to litigation are entitled to a fair and impartial
trial by a jury of persons who "stand indifferent in the cause."
Code § 8.01-358. "[T]he right to a fair and impartial trial in
a civil case is as fundamental as it is in a criminal case. The
civil courts constantly strive to protect this right. It lies
at the very basis of organized society and confidence in our
judicial system." Temple v. Moses, 175 Va. 320, 336, 8 S.E.2d
262, 268 (1940).
Upon review, the appellate court gives deference to the
trial court's decision whether to retain or exclude prospective
jurors. Vinson v. Commonwealth, 258 Va. 459, ___, ___ S.E.2d
___, ___ (1999). And, a trial court's decision on this issue
will be affirmed unless there has been manifest error amounting
to an abuse of discretion. Id. at ___, ___ S.E.2d at ___.
Recently, we considered in a condemnation case an issue
almost identical to the present one. In City of Virginia Beach
v. Giant Square Shopping Center Co., 255 Va. 467, 498 S.E.2d 917
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(1998), one ground of a condemnor's objection to the seating of
a prospective commissioner was that the commissioner, at the
time of trial, was a client of the landowners' counsel.
There, we noted that, by statute, the issue of just
compensation is to be determined by a commission of
"disinterested freeholders," and that, regarding the
disqualification of commissioners for cause, the eminent domain
statutes must be administered in a manner that promotes
confidence in the integrity of the judicial process. Id. at
470, 498 S.E.2d at 919.
Thus, we held the trial court abused its discretion in
refusing to dismiss the commissioner for cause, stating that "it
is extremely unlikely the public would have confidence in the
integrity of the process when a commissioner has the identity of
interests demonstrated by this prospective commissioner." Id.
at 471, 498 S.E.2d at 919. We said, "This is true even though,
as the record shows, the commissioner is a 'respected member of
the community' and 'known to be a man of integrity,' who may be
determined to discharge his duties in a forthright and unbiased
manner." Id.
The same reasoning will be applied to this case. There is
no meaningful difference regarding the interest factor under
these circumstances between the statutory requirements for a
trial by jury of persons who "stand indifferent in the cause"
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and for just compensation to be determined by a commission of
"disinterested freeholders." Public confidence in the integrity
of the process is at stake. It cannot be promoted when a
sitting juror is, at the time of trial, a client of the law firm
representing one of the parties to the litigation as a result of
a similar occurrence.
This is true even though, as the record shows, the juror
states that the circumstances of her representation would have
no "bearing" on her judgment as a juror and that she could "be
totally fair to both sides." We have no doubt that Clingempeel
was sincere in her beliefs and that she was determined to
discharge her duties in a forthright and unbiased manner.
And, the fact that the venue is a community where "people
are going to know each other and have some kind of association,"
as the trial judge noted, does not diminish the court's
obligation to assure that a litigant's case will be heard and
decided by a fair and impartial jury.
Therefore, we hold that the trial court abused its
discretion in refusing to dismiss the juror for cause and that
this constitutes reversible error.
Because the case will be remanded and the evidence may be
different upon a new trial, we shall address only one of the
remaining issues presented on appeal. The defendants contend
that the trial court erred in limiting their cross-examination
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of the plaintiff's treating orthopedic physician, who testified
by deposition.
Upon direct examination, the physician, after concluding
that the plaintiff sustained a soft tissue injury amounting to a
cervical sprain, opined she had a ten percent permanent
disability and would require future medical treatment. On
cross-examination, defendants elicited from the physician that
he had written in his notes that, in his experience, many
patients involved in litigation stemming from soft-tissue
injuries frequently cease medical treatments "when the
litigation is resolved." The physician stated he "certainly
considered that" in his evaluation of the plaintiff's
complaints.
The trial court excluded this portion of the deposition
testimony, over defendants' objection. The court reasoned the
physician "was too equivocal"; "[h]e merely said I certainly
considered that"; and, the testimony "was too speculative."
Based on the state of this record, we cannot say that the
trial court abused its discretion and thus erred in refusing to
permit the defendants to offer this evidence to discredit the
physician's opinion on permanency and on the plaintiff's need of
future medical treatment.
Thus, if the state of the record does not change upon a new
trial, this equivocal and speculative testimony should not be
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allowed. But see Mastin v. Theirjung, 238 Va. 434, 437-38, 384
S.E.2d 86, 88 (1989) (medical testimony admitted that in people
with personalities like the plaintiff's "there is a definite
potential for motives of secondary gain, arising out of the
possibility of recovery of money damages in a lawsuit").
Therefore, the judgment below will be affirmed in part,
reversed in part, and the case will be remanded for a new trial,
limited to the issue of damages only.
Affirmed in part,
reversed in part,
and remanded.
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