(dissenting) — I begin by acknowledging the obvious. The beating death of this four-year-old at the hands of his temporary foster father was a horrific tragedy. But the principles I apply here — deference to jury verdicts — and the result I would reach would be the same whether the verdict was a $4 million verdict against these defendants or, as here, a rejection of the plaintiffs’ damages claim. The question before us is not the brutality of the crime. Rather, we are asked to review the mechanics of a jury trial to determine the collateral liability of the emergency health care providers. The jury found the doctors were not negligent in failing to investigate and report the child’s suspicious injuries. It found the foster mother was negligent, but limited the amount of damages to out-of-pocket expenses.
The trial lasted about five weeks. Daltons (the child’s mother, Casey Dalton, his father, James Hines, and the *718child’s estate) were represented by able counsel. A properly instructed jury listened to all the evidence. The jury rejected Daltons’ theory of the case and decided in favor of the doctors. An experienced trial judge, the Honorable Donald W. Schacht, considered extensive argument when Daltons filed a posttrial motion to set aside the verdict for juror misconduct. The focus of Daltons’ challenge is the voir dire examination of juror Donald Polumsky and statements attributed to him by a stranger to the lawsuit, Starla Rae Beckley. Judge Schacht did not act hastily, but handed down two carefully considered letter opinions rejecting the hearsay assertions by Ms. Beckley, a nonjuror. And the judge concluded that there was no prejudice in any event. He then exercised the discretion vested in him by law and refused to invalidate the jury’s verdict.
Standard of Review. Whether an allegation of juror bias requires a new trial is left to the discretion of the trial court. Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 155, 776 P.2d 676 (1989); State v. Cho, 108 Wn. App. 315, 320, 30 P.3d 496 (2001); Allyn v. Boe, 87 Wn. App. 722, 729, 943 P.2d 364 (1997). We review, therefore, for abuse of that discretion. Robinson, 113 Wn.2d at 158. Discretion is abused if the court’s decision does not rest on tenable grounds or tenable reasons. Micro Enhancement Int'l, Inc. v. Coopers & Lybrand, L.L.P, 110 Wn. App. 412, 430, 40 P.3d 1206 (2002); Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 271, 796 P.2d 737 (1990).
The standard of review is more than just a ritual formula to be recited by a reviewing court. The abuse of discretion standard accepts that the trial judge is better suited, for many reasons, to make these discretionary decisions. This is particularly so with a question such as juror bias. Again, juror bias is not something that can be calculated with precision approaching mathematical certainty. The trial judge here had before him the witnesses, lawyers, jurors, and the parties. He heard what they said and observed the manner in which they said it. We are limited to a cold record. Thus, the trial judge, not this court, was in the best position to pass upon this motion.
*719It is the trial court that is best able to determine if the juror can set aside any preconceived opinion. The trial court is able to observe the juror’s demeanor and, in light of the observation, interpret and evaluate the juror’s answers to determine whether the juror will be fair and impartial.
State v. Rempel, 53 Wn. App. 799, 801-02, 770 P.2d 1058 (1989) , rev’d on other grounds , 114 Wn.2d 77, 785 P.2d 1134 (1990) . Daltons concede, and this record reflects, that the trial judge here was evenhanded, diligent, and experienced. Appellant’s Br. at 41.
I dissent because I find the standard of review dispositive in this case. I may or may not have made the same decision. But I cannot say that the judge abused his broad discretion on these facts.
Voir Dire. Mr. Polumsky made no secret of his misgivings about his ability to render a verdict unstained by his emotions, prejudices, and preconceptions. During voir dire, Mr. Polumsky said the following when asked about his feelings toward the case:
I always thought if you had children, it’s your responsibility to take care of them. . .. But I do have a problem with child abuse and I have already kind of got an opinion. Whether I could override that and give a judgment, I don’t know. I have some mixed feelings about it.
. . . And when this kid has parents, I don’t know what the problem is, where they were or anything else.
Supplemental Report of Proceedings (SRP) (Feb. 2-4, 2000) at 174, 176.
Now, to the uninitiated this may seem innocuous. But to an experienced jury trial lawyer these comments, in the context of this case, are huge red flags. They speak volumes about this juror’s attitude toward the lawsuit in general and these plaintiffs in particular. The message was these parents should have been responsible for this child. And where were they? So to conclude that Mr. Polumsky was not candid is to misread this record.
*720There is no suggestion here that Mr. Polumsky was shading his answers because he wanted to serve on this jury, as in Cho, 108 Wn. App. at 317. See also United States v. Colombo, 909 F.2d 711, 713 (2d Cir. 1990); United States v. Scott, 854 F.2d 697, 699 (5th Cir. 1988). Mr. Polumsky also said: “I don’t know the whole situation, so I can’t judge anybody.” SRP (Feb. 2-4, 2000) at 174.
Beckley’s Accusation. Starla Rae Beckley, an employee of the hearing aid company Mr. Polumsky visited during the pretrial phase, filed a posttrial affidavit that Mr. Polumsky said he thought that Casey Dalton was “an opportunist trying to profit from her child’s death.” Clerk’s Papers (CP) at 2187. Ms. Beckley also alleged Mr. Polumsky was acquainted with Casey Dalton and was biased against her due to a prior problem between Ms. Dalton and a member of Mr. Polumsky’s family.
When the trial court inquired, Mr. Polumsky denied that he knew Ms. Dalton or had an axe to grind with the Dalton family. The court evidently believed him. That being so, the court did not necessarily believe everything Ms. Beckley said. An appellate court should not try to parse either an accusing third party affidavit or a juror’s response to it with mathematical precision. First, as discussed below, because that is the trial judge’s job and, second, because it cannot be done.
What Mr. Polumsky said to Ms. Beckley, what he meant by it, and what the context was, should not be decided on the basis of affidavits without benefit of cross-examination. Were these offhand comments? Did Ms. Beckley have a reason to dislike Mr. Polumsky or the defendants? Was she an attention seeker? Why did she later ask that her affidavit be destroyed? All this and probably much more goes to the weight that should be attached to the statement. Many of the potential jurors in this case expressed reservations about the propriety of damages here.
Comparative Washington Cases. The Robinson court upheld on appeal the trial court’s exercise of its discretion in granting a new trial. Robinson, 113 Wn.2d at 155. The trial *721court properly ruled that the plaintiff did not receive a fair trial because a juror was in fact prejudiced and failed to disclose this on voir dire. Id. at 158. The trial judge in that case also determined that the juror had injected his bias into the deliberations.
Dean v. Group Health Cooperative of Puget Sound presented a much more compelling case of bias than that before this court. Dean v. Group Health Coop. of Puget Sound, 62 Wn. App. 829, 816 P.2d 757 (1991). Six members of the venire were members of Group Health Cooperative, the defendant. One actually voted in that capacity. During deliberations one expressed concern that a plaintiff’s verdict would affect the cost of her health care premiums. Id. at 833. The reviewing court nevertheless deferred to the trial judge: “Although the evidence presented to the trial court in support of the motion for new trial was in the form of declarations, the trial judge also had the advantage of observing the demeanor of the jurors during voir dire and throughout the trial, an advantage not available to this appellate court.” Id. at 838.
Again, the question of whether a juror is guilty of misconduct is a factual question for the trial court, whose determination will not be disturbed absent a showing of an abuse of discretion. Id. at 837.
Weighing the Evidence. Assuming Mr. Polumsky in fact made the out-of-court statements attributed to him, they are at best opinions and expressions of uninformed feelings on the nonmaterial issue of the motives of the plaintiff parents in bringing this action, argued by both sides during the trial. For me, it is important to distinguish between an attitude or mere expression of opinion and a verifiable fact misrepresented by a juror in response to a direct question. See, e.g., Cho, 108 Wn. App. 315 (juror in a criminal case concealed the fact that he was a former police officer); State v. Briggs10 (juror denied being a stutterer, when stuttering *722was an issue in the case); Smith v. Kent11 (juror denied relevant fact that he was a trucker).
Here, the misconduct evidence was not compelling.
First, what we have here is a reported expression of Mr. Polumsky’s opinion — his opinion, in a nutshell, was “this ain’t right.” Mr. Polumsky swore an oath to set aside his pretrial opinions and to decide the case on the evidence. The judge was confident that Mr. Polumsky and the rest of the jurors did just that.
Second, Mr. Polumsky’s alleged opinion was communicated to the court by way of the hearsay declaration of a third party. Third, there was no suggestion that he injected his opinions into the jury deliberations, unlike the offending jurors in Robinson, Cho, Briggs, and Kent. In those cases, the jurors’ deception played a critical role in the deliberations and the ultimate outcome of the trial, because the jurors failed to disclose an irrefutable fact and then went on to use that information to influence the jury verdict. In each of these cases, this was an important factor in the court’s decision whether a new trial was necessary. The record here, by contrast, is that the jurors decided the case based on the evidence and the court’s instructions.
Prejudice. The prejudicial effect of the juror’s statements must be considered “even where such statements indicate the juror testified falsely on voir dire.” Tate v. Rommel, 3 Wn. App. 933, 936, 478 P.2d 242 (1970). The ultimate question is whether his remarks affected the verdict. Richards, 59 Wn. App. at 271. As the court in Briggs noted, a juror’s failure to disclose a material fact is not, standing alone, a prejudicial error affecting the essential fairness of a trial. It does not entitle a party to a new trial, unless “a truthful response by the juror would have provided the basis for a challenge for cause” or the failure to disclose otherwise deprived a party of a fair trial. Briggs, 55 Wn. App. at 52 (citing McDonough Power Equip., Inc. v. Green*723wood, 464 U.S. 548, 556, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984)).
The thoughts of Judge Dale Green, a former distinguished member of this court, on the significance of a juror’s opinions during the course of a jury trial are instructive here. In fact, so much so that I set them out in fall:
However, absent a showing that such violation prejudicially affected the outcome of the trial, the verdict should not be disturbed. Common experience indicates a juror, or a judge, may form impressions or opinions as to the outcome of a case as he hears each bit of evidence. These impressions or opinions may change from time to time throughout the case. Such opinions or impressions normally are not revealed, and they should not be revealed, until the case is ready for decision. Here, juror Cyrus revealed his private opinion after the first day of trial. It is not unreasonable to expect that many of the other jurors, had they been questioned during the trial, would have formed some like opinion as to the outcome as did juror Cyrus. If we were to adopt the trial court’s conclusion that the mere revealing of his private opinion or impression constitutes such misconduct as to justify a new trial without a further showing that such misconduct prejudiced the outcome of the trial, it would open the door to interrogation of jurors after trial for the purpose of discovering such unrevealed opinions as a basis for the filing of a motion for new trial.
Tate, 3 Wn. App. at 937. Those words might have been written to describe the facts here.
In those decisions affirming the trial court’s exercise of discretion in granting a new trial, the element of prejudice was invariably present. In Allyn v. Boe, a juror admitted knowing a key expert witness but then said nothing when asked if she could be fair to both sides. Allyn, 87 Wn. App. at 728. During deliberations, she told the other jurors, “he would testify to anything.” Id. The reviewing court affirmed the trial court’s decision to grant a new trial. “The [trial] court must make an objective inquiry into whether the extraneous evidence could have affected the jury’s verdict, not a subjective inquiry into the actual effect.” Id. at 729. “Whether such misconduct occurred and whether it was *724prejudicial are matters within the sound discretion of the trial court, who saw both the witnesses and the trial proceedings, and had in mind the evidence.” Id. at 729-30 (emphasis added).
Richards v. Overlake Hospital Medical Center was a damage action arising out of a badly damaged child, allegedly as the result of medical negligence during labor and delivery. One of the jurors had medical training, was an occupational therapist by profession, and worked with retarded children. Richards, 59 Wn. App. at 269. She offered opinions during deliberations based on all her personal experience — opinions which ran counter to the plaintiff’s theory of liability. Id. at 273-74. The Court of Appeals affirmed the trial judge’s denial of a motion for a new trial by means of a two-step inquiry: One, was it misconduct? And two, did it prejudice a party? Id. at 270. The Richards court explained: “A strong, affirmative showing of juror misconduct is required to impeach a verdict,” because the law favors stable and certain verdicts. Id. at 271-72.
In State v. Briggs, a juror failed to disclose a stuttering problem, although a specific inquiry was made during voir dire. The question of a speech impediment was central to the defendant Briggs’ defense. The juror then offered his personal experience as a stutterer during deliberations which substantially undercut Mr. Briggs’ defense — Mr. Briggs was a stutterer and the assaulter was not. The Court of Appeals reversed, but only after noting that two requirements had been met: nondisclosure (which the court noted would not, by itself, have been enough to require reversal) and actual prejudice by use of the information during deliberations to influence the outcome of the trial. Briggs, 55 Wn. App. at 52.
In State v. Cho, a juror failed to disclose under appropriate questioning that he had been a police officer. Cho, 108 Wn. App. at 318-19. The juror then “ ‘really argued the point with the jurors that were hesitant to convict Mr. Cho. In the end, he managed to change their minds.’ ” Id. at 320 *725(quoting juror’s affidavit). The judge denied a motion for a new trial. Even on such egregious facts, the Court of Appeals did not order a new trial, but remanded for an evidentiary hearing, “in which the parties may, if they choose, present additional testimony to illuminate juror number eight’s answers on voir dire as well as statements he allegedly made to defense counsel after the verdict.” Id. at 329. The court was reluctant to declare the trial court’s order an abuse of discretion until the trial court had “the opportunity to consider the issue of implied bias, an issue not raised or briefed below.” Id. Review of the question of implied bias “is best done on the basis of findings made after the parties have an opportunity to develop a record with that issue in mind.” Id.
At a minimum, the trial judge here should be afforded the chance to hold an evidentiary hearing — a solution suggested by Daltons as an acceptable one. Instead, the results of a long, hard fought and expensive trial are being set aside on the strength of a single uncross-examined statement by a third party which, for all we know, the judge may have rejected completely, as was his prerogative.
Here, even if we accept that Mr. Polumsky expressed the alleged opinion, it is undisputed that the jury’s verdict was based on the evidence and the court’s instructions. The sole question is whether Mr. Polumsky could set aside his emotional response to the enormity of the crime and his distaste for the facts leading up to it and decide the case on the merits. This he was instructed to do, swore to do, and assured the court that he did do. Judge Schacht did exactly what the Briggs court instructed him to do.
Conclusion. Every juror brings to the courtroom prejudices, biases, opinions, and inclinations. Indeed, good trial lawyers try to seat a jury that is disposed to view the evidence favorably to their clients. The test for whether the trial was fair is whether the juror can set aside any preconceived notions, opinions, and biases, and decide the case based on the evidence and the judge’s instructions. Mr. *726Polumsky said he could do that. And Judge Schacht, who listened to the whole trial, was convinced that he could.
The assumption implicit in the majority opinion is that, despite affidavits to the contrary, and despite the court’s unchallenged instructions to the contrary, Mr. Polumsky’s feelings (they are not empirically verifiable facts) influenced the verdict. That is an assumption which is unsupported by this record.
I would affirm Judge Schacht’s exercise of discretion. At the very least, I would permit him the opportunity to develop a record by remanding for a fact-finding hearing.
The perfect case was not tried here. But the perfect case has not been and never will be tried. The parties here are not entitled to a perfect trial. Freeman v. Intalco Aluminum Corp., 15 Wn. App. 677, 686, 552 P.2d 214 (1976). The ultimate question of law is who should make the decision as to whether the process here was so flawed that it should be invalidated. And the answer is the trial judge should.
The integrity of every jury verdict is important, not just those verdicts of which we approve.
Motions for reconsideration denied March 21, 2003.
State v. Briggs, 55 Wn. App. 44, 776 P.2d 1347 (1989).
Smith v. Kent, 11 Wn. App. 439, 523 P.2d 446 (1974).