Bynum v. ESAB Group, Inc.

                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________
                                                                C hief Justice                       Justices
                                                                Maura D. Cor rigan	                  Michael F. Cavanagh




Opinion
                                                                                                     Elizabeth A. Weaver
                                                                                                     Marilyn Kelly
                                                                                                     Clifford W. Taylor
                                                                                                     Robert P. Young, Jr.
                                                                                                     Stephen J. Markman

____________________________________________________________________________________________________________________________

                                                                                 FILED SEPTEMBER 24, 2002





                SHERYL BYNUM,


                        Plaintiff-Appellee,


                v	                                                                                   No. 119005


                THE ESAB GROUP, INC.,


                     Defendant-Appellant.

                ________________________________

                PER CURIAM


                        This     product        liability        litigation            has      an     extensive


                history.           It    is    now     before         this         Court   on    defendant’s


                application for leave to appeal.                           We reverse the judgment of


                the Court of Appeals and the order of the circuit court that


                granted plaintiff’s motion for new trial.                              The judgment of no


                cause of action is reinstated.


                                                                I


                        Plaintiff was injured in 1988 while operating a robotic


                welding system that was manufactured by defendant.                                        The case


                has been tried three times.                      In the first trial, the jury

awarded plaintiff $50,000 for economic and noneconomic damages


and reduced the award by finding that plaintiff had been


partially at fault for her injuries.                 The trial court granted


plaintiff’s motion for a judgment notwithstanding the verdict


regarding her negligence, and additur of $849,750 or a new


trial.        The   trial    court    agreed      with     plaintiff        that   the


comparative negligence verdict was contrary to the evidence.


It ordered a new trial, limited to the issue of damages.                            At


the conclusion of the second jury trial, a verdict in excess


of $2 million was returned.               The defendant appealed both the


decision granting a second trial and the verdict of the second


trial.      The Court of Appeals held that the trial court did not


err in granting a judgment notwithstanding the verdict, but


said    the    second      trial   should      not       have   been   limited      to


determination of damages.            The Court of Appeals ordered a new


trial on all issues.1              This Court denied the defendant’s


application         for    leave     to    appeal        and    the    plaintiff’s


application for leave to appeal as cross-appellant.2


       The matter was returned to the circuit court where a


third trial was held.          The jury returned a verdict of no cause


of   action.         The    plaintiff     filed      a    motion      for   judgment




       1

        Unpublished opinion per curiam, issued June 4, 1996

(Docket No. 173473). 

       2

            455 Mich 865 (1997).


                                          2

notwithstanding the verdict or, alternatively, for a new


trial.     The trial court granted the motion for a new trial


following an evidentiary hearing on plaintiff’s claim that


several jurors failed to disclose racial biases.3    The trial


court reasoned that under MCR 2.611 a new trial was required


because of juror misconduct even though the court could not


and did not conclude that the jury verdict was tainted by the


alleged undisclosed prejudice. 


     The defendant sought leave to appeal.       The Court of


Appeals granted defendant’s application and stayed trial court


proceedings pending resolution of the appeal.4       Following


submission of the case, the Court of Appeals affirmed the


trial court’s order granting a new trial.5   The Court found no


abuse of discretion in the trial court’s ruling. No error was


perceived in the trial court’s crediting the testimony that


jurors were biased, but failed to reveal that bias in voir


dire.     The Court said the bias would have provided a valid


basis for a challenge for cause.


        We review the trial judge’s factual findings for clear




     3

       The plaintiff and her trial attorney were African-

Americans. There were no African-American jurors. 

     4

           Unpublished order, entered May 3, 1999 (Docket No.

218309).     One judge dissented. 

     5
       Unpublished opinion per curiam, issued March 23, 2001

(Docket No. 218309).


                                3

error.      People v Attebury, 463 Mich 662, 668; 624 NW2d 912


(2001).      The decision to grant a new trial is reviewed for


abuse of discretion.       Kelly v Builders Square, Inc, 465 Mich


29,   34;    632   NW2d   912   (2001).     Where   the   trial   court


misapprehends the law to be applied, an abuse of discretion


occurs.     Miller v Varilek, 117 Mich App 165, 170; 323 NW2d 637


(1982).      We reverse and remand for reinstatement of the


judgment on the jury verdict in the last trial. 


                                   II


      Jurors are presumed to be qualified.             The burden of


proving the existence of a disqualification is on the party


alleging it.       People v Collins, 166 Mich 4, 9; 131 NW 78


(1911).      Voir dire is the process by which litigants may


question     prospective    jurors    so   that   challenges   to   the


prospective jurors can be intelligently exercised.             People v


Harrell, 398 Mich 384, 388; 247 NW2d 829 (1976).          Prospective


jurors are subject to challenge for cause under MCR 2.511(D).6



      6
       Presumably, had the matter been explored on voir dire

in this trial, plaintiff would have relied on MCR 2.511(D)(3),

(4), or (5), to challenge the jurors. The rules states: 


           (D) Challenges for Cause.     The parties may

      challenge jurors for cause, and the court shall

      rule on each challenge.     A juror challenged for

      cause may be directed to answer questions pertinent

      to the inquiry. It is grounds for a challenge for

      cause that the person . . . :


                                 * * *



                                     4

The voir dire in this case was of a general nature.                   The


plaintiff’s inquiries to the jury panel did not raise the


question of racial prejudice, except for a passing mention by


counsel about the desire not to have racial issues injected


into the case.     It was the duty of counsel to ferret out


potential bases for excusing jurors.         See People v Scott, 56


Mich 154; 22 NW 274 (1885).    No challenges for cause were made


to the three jurors who became the subject of plaintiff’s


motion for new trial.   However, on the basis of a posttrial


evidentiary hearing, the trial court determined that the three


jurors lied during voir dire and found that misconduct to be


flagrant.   Without determining the effect on the verdict or


whether counsel would have exercised challenges to the jurors


if different answers had been given, the trial court concluded


plaintiff was entitled to a new trial.         We disagree.


                                III


     The jurors who were questioned at the evidentiary hearing


averred that racial prejudice did “not in any way” affect the



          (3) is    biased    for    or   against   a   party   or

     attorney;


          (4) shows a state of mind that will prevent

     the person from rendering a just verdict, or has

     formed a positive opinion on the facts of the case

     or on what the outcome should be;


          (5) has opinions or conscientious scruples

     that would improperly influence the person's

     verdict . . . .


                                    5

verdict.    Contrary to plaintiff’s claims of bias against her,


the record reveals that jurors commented sympathetically among


themselves about the plight of the plaintiff.         Plaintiff


relied on the testimony of one juror who said she inferred


from various comments that others on the jury panel possessed


racial animus.7    The trial court accepted, on the sole basis


of this juror’s testimony, plaintiff’s claim that the three


jurors concealed their racial animus during voir dire and that


the animus had been palpable.8


        Findings of fact are reviewed for clear error. A finding


is clearly erroneous when, although there is evidence to


support it, the reviewing court, on the whole record, is left


with a definite and firm conviction that a mistake has been


made.    Tuttle v Dep’t of State Hwys, 397 Mich 44, 46; 243 NW2d


244 (1976). 


        The sole testimony presented in support of plaintiff’s




     7
       Such comments consisted of the following: (a) One juror

allegedly talked about being on the freeway in Los Angeles at

the same time O. J. Simpson was being pursued. (b) One juror

testified that defense counsel, an African-American, insulted

another juror’s intelligence by explaining the phrase “in lieu

of.” (c) One juror allegedly asked whether defense counsel,

an African-American, thought he was Johnny Cochran. (d) One

juror allegedly declined to discuss a John Grisham book, “A

Time to Kill,” characterizing it as a “racial book.” (e) One

juror allegedly observed that the mother of the plaintiff, who

was an African-American, was white or “light complected.”

     8
       The complaining juror was one of two dissenting jurors

in a six to two jury verdict.


                                6

claim of juror misconduct during voir dire came from a juror


who was not able to point to specific comments of other jurors


that evidenced racial animus. Rather, the juror relied on her


subjective impressions of the motivations and meanings of the


comments    of   the    other   jurors.     In   this   regard,   it   is


significant that the plaintiff’s claim for a new trial is


based on hearsay statements of jurors that are said to be


indicative of possible bias.             The challenged jurors, when


questioned posttrial, denied such bias.          The testimony of the


single juror who said she perceived racial overtones in the


comments of her fellow jurors comes perilously close to being


the type of impeachment of a verdict found impermissible in


Shiner v Detroit, 150 Mich App 420; 387 NW2d 872 (1986).


     We also are concerned with the adequacy of the facts


supporting the findings of the trial court.             The categorical


denial of bias by the challenged jurors was entitled to some


weight,    particularly     when   balanced   against    the   tentative


impression of the sole juror who alleged the presence of


racial animus.         The juror making the bias allegations was


repeatedly asked for specific examples of the racial animus


she attributed to her fellow jurors. She was unable to recall


more than a few innocuous comments that do not demonstrate the


level of racial animus that would have led to disqualification


of the juror making the comment.            Our review on the whole



                                    7

record leaves us with a definite and firm conviction that a


mistake has been made.         The jurors were not asked during voir


dire about their racial attitudes or if such attitudes would


affect their ability to judge the case impartially.                Further,


absent proof of actual prejudicial effect on the verdict or


proof that a challenge for cause would have been successful,


it was an abuse of discretion to grant a new trial.                Citizens


Commercial & Sav Bk v Engberg, 15 Mich App 438; 166 NW2d 661


(1968), McDonough Power Equipment, Inc v Greenwood, 464 US


548; 104 S Ct 845; 78 L Ed 2d 663 (1984).             As we have recently


stated, a grant of a new trial is governed by MCR 2.611(A)(1).


The rule clearly requires that a party seeking a new trial


establish that substantial rights were materially affected.


Kelly, supra at 38.         No such determination or claim was made


in this case. 


       There was no finding by the trial court that any juror


lied       during   voir    dire   about     racial      bias.    Absent     a


determination        that      juror        misconduct      occurred,      MCR


2.611(A)(1)(b), the plaintiff cannot establish either actual


prejudice under Engberg or that her substantial rights were


materially affected as set forth in Kelly.9                 The grant of a


new trial was contrary to the facts and the court rule and



       9
       The trial court incorrectly relied on People v Kage,

193 Mich App 49; 483 NW2d 424 (1992), which was reversed by

this Court, 439 Mich 1022 (1992). 


                                       8

thus an abuse of discretion. 


                                  IV


     The   order   granting   a   new   trial   is   reversed.    The


plaintiff’s application for leave to appeal as cross-appellant


is denied.     We remand the case to the trial court for


reinstatement of the judgment on the jury verdict.


     CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,


concurred.


     CAVANAGH , J., concurred in the result only.


     KELLY , J., would not decide this case by opinion per


curiam, but would grant or deny leave to appeal.





                                  9