specially concurring.
I concur in the result reached in the court’s opinion but not in the reasons therefor. Appellant Wardell is entitled to a new trial because he was allowed three peremptory challenges while appellees’ side of the case was allowed six and because the trial court refused him an extra peremptory challenge for the impanelling of alternate jurors, all in violation of W.R.C.P. 47(b). The court’s discussion beyond the alternate juror peremptory challenge question is advisory and unnecessary to the decision in this case. However, having undertaken discussion of these questions, two of the court’s gratuitous holdings strike me as incorrect.
PEREMPTORY CHALLENGES
The court’s analysis of the number of peremptory challenges to be awarded multiple defendants is incorrect. Thus, I refuse to accept both its dicta applicable to future cases and its resolution of the issue as applied to this case.
*1068The majority opinion concludes that War-dell received a fair trial, even though the doctors each were given three peremptory challenges, for a total of six, to Warden’s three challenges. It cites Distad v. Cubin, 633 P.2d 167 (Wyo.1981), in support of this decision. Distad was correct, insofar as it analyzes the problem of multiple defendant peremptory challenges by inquiring into whether the defendants’ interests are “antagonistic” to one another. However, Dis-tad was incorrect when it held or implied that antagonism can be presumed between multiple tort defendants because of their conflicting interests in the allocation of negligence percentages, stating: “[t]he result of Wyoming’s comparative negligence design is that very seldom will multiple defendants not have antagonistic interests.” Distad, 633 P.2d at 171. For reasons I will state, it is apparent that the presumption is wrong and that Distad should be overruled as to the presumption of adversity among defendants.
Giving each of multiple defendants the statutory maximum number of challenges allows the defendants to exert inordinate influence in, and to dominate, the jury selection process. Moore v. Jenkins, 304 S.C. 544, 405 S.E.2d 833, 835 (1991). To allow such an imbalance permits multiple defendants to effectively control jury selection. Layne v. GAF Corp., 42 Ohio Misc.2d 19, 537 N.E.2d 252, 254 (Com.Pl.1988). A disproportionate number of strikes granted the defendants prevents the plaintiff from meaningfully asserting his right to peremptory challenges, which is incident to his right to jury trial. George v. Bergen Pines County Hosp., 217 N.J.Super. 548, 526 A.2d 293, 295 (L.1987).
Distad purports to be based on Texas precedent. However, as the majority recognizes, language in the landmark case of Patterson Dental Co. v. Dunn, 592 S.W.2d 914 (Tex.1979), and subsequent decisions of the Texas courts demonstrate that even they would not sanction a rule as extreme as that suggested by Distad. The Distad court found antagonism in the mere fact that under Wyoming’s comparative negligence scheme, each defendant’s comparative negligence could be used to reduce that of the other defendants). As will be seen, this factor could not, in and of itself, justify the award of additional peremptory challenges to a defendant under current Texas law.
The Texas Supreme Court stated the following in Patterson:
Antagonism does not exist because of differing conflicts with the other side; e.g., when a plaintiff sues several defendants alleging different acts or omissions against each defendant. Antagonism would exist, however, if each of the defendants alleged that the fault of another defendant was the sole cause of plaintiff’s damage. The existence or non-existence of cross-actions or third-party actions is not determinative.
Patterson, 592 S.W.2d at 918 (citations omitted; emphasis added).
At the time Patterson was written, Texas had in place a comparative negligence/contribution among joint-tortfeasors statute. See 1973 Tex.Gen.L. ch. 28, §§ 1, 2(a). Thus, in cases with multiple defendants, each defendant had an interest in seeing his eodefendants charged with responsibility for a greater percentage of the harm suffered by the plaintiff. Nevertheless, the court held that antagonism existed only when each of the defendants pointed to the others as the sole cause of the harm.
Subsequent cases have followed the rules set out in Patterson. In American Cyanamid Co. v. Frankson, 732 S.W.2d 648 (Tex.App.1987), writ of error refused, n.r.e., the court affirmed a jury verdict against a drug manufacturer who challenged the trial court’s allocation of peremptory challenges. The court held that the trial court did not abuse its discretion in awarding nine strikes to the plaintiff and nine, cumulatively, to the defendants, even though the manufacturer and the doctor who supplied its product to the plaintiff had filed cross-actions against each other. The court noted that in these actions, neither defendant alleged that the other was the sole cause of the plaintiff’s injuries.
In Parker v. Associated Indem. Co., 715 S.W.2d 398 (Tex.App.1986), writ of error *1069refused, n.r.e., the trial court allotted ten peremptory strikes to the two defendant insurance companies, and only six to the plaintiffs. The Court of Appeals reversed judgment for the defendants. Although one of the insurance companies had filed a cross-action for indemnity and/or contribution from the other, neither defendant claimed that the other was the sole cause of plaintiffs’ damages. The court stated that “[ajntagonism does not always exist even if the parties on the same side may have different conflicts with the other side. In this case, the defendants centered their defense on the same issue: no insurance coverage * * Parker, 715 S.W.2d at 401. See also Lopez v. Foremost Paving, Inc., 709 S.W.2d 643 (Tex.1986) (holding that granting extra strikes to defendants was reversible error); and cf. Lopez v. City Towing Assoc., Inc., 754 S.W.2d 254, 258 (Tex.App.1988), writ of error denied (stating rule that antagonism exists when each defendant asserts that the other's negligence was the sole cause of the plaintiffs damage).
As the majority also recognizes, Distad cited Kentucky precedent which has since been restrictively interpreted. In a recent case, which like this case involved medical malpractice, the Kentucky Supreme Court held that interests of the defendants were not antagonistic where the defendants shared the same theory of the case. Davenport By and Through Davenport v. Ephraim McDowell Memorial Hosp., Inc., 769 S.W.2d 56, 59 (Ky.App.1988). The defendants had cited Roberts v. Taylor, 339 S.W.2d 653 (Ky.1960), which this court relied upon indirectly in Distad, for the proposition that where defendants in a personal injury case are charged with independent acts of negligence, their interests are almost always antagonistic because of the possibility of convincing the jury that the other defendant was primarily or solely at fault. However, the Kentucky Supreme Court distinguished Roberts, stating that:
The Roberts court’s actual words were that defendants charged with independent acts of negligence “in most any case of collision of two or more vehicles involving a claim by a passenger” will mean that the defendants’ interests are antagonistic. Roberts was a clear-cut, extreme case of antagonistic interests that is inapposite to our facts here.
Davenport, 769 S.W.2d at 59.
In short, recent precedent in both Texas and Kentucky does not support the claim in Distad that the ability to reduce one defendant’s liability under a comparative negligence scheme by pointing the finger at another creates a presumption of adversity between defendants. From these cases I abstract a rule that antagonism does not exist merely because percentages of negligence must be distributed among defendants. Rather, “pointing the finger” must generally rise to a level where each of the defendants claims that the other is the sole cause of the plaintiff’s injuries. Furthermore, the burden is always on the defendants to clearly demonstrate adversity. Positions taken by defendants in pretrial procedures should supply significant evidence of the relationship between defendants.
The majority proposes a multiple-factor test to replace the presumption contained in Distad. While I agree with the factors the majority proposes, I feel it is important to stress that the presence of many or most of them would not necessarily show adversity. The fact that separate acts of misconduct are alleged against the defendants, that comparative negligence principles apply, and that cross-claims or third party complaints have been filed does not necessarily mean that the defendants are adverse. Experience teaches that more often than not each defendant defends against the claim of plaintiff and is reluctant to and rarely does attack the other defendants). It is the rare and unusual case in which defendants are found to be truly antagonistic.
Furthermore, I believe the majority fails to take an effective stand as to the defendants’ burden of proof on this issue. The majority says “[i]t would be incumbent upon multi-party defendants seeking additional peremptory challenges to assist the trial judge in making this determination.” Maj. op. at 1061. I would more clearly *1070state that the defendants have the burden of clearly demonstrating that their interests are adverse. There is no presumption of adversity in favor of defendants; the burden of proof of adversity resides with defendants. Failure to carry the burden must result in an equal number of challenges being given to the plaintiffs’ side and the defendants’ side of the case.
Contrary to what is said in Distad, multiple defendants nearly always have one, overriding aim in common: to establish that plaintiff cannot recover for his or her injuries. It is rare that the defendants are so antagonistic that they constitute separate “sides” entitling them to additional peremptory challenges under W.S. 1-11-202. Therefore, I would overrule the presumption of adversity in Distad, and hold that there is a presumption that multiple defendants are not adverse, and that this presumption can only be overcome if adversity is clearly demonstrated by defendants.
I would apply this rule to the facts of this case. The defendant doctors in this action were not so adverse that extra jury strikes should have been awarded them. Their designations of expert witness testimony indicated that the experts planned to testify that it was the boy’s fall, rather than another defendant’s negligence, which caused his injuries. When Dr. Peters identified his affirmative defenses in his pretrial memorandum, none claimed any negligence by Dr. McMillan. Perhaps the best statement of the defense of both defendants is found in Dr. Peters’ pretrial memorandum:
The defendants contend * * * that Neal Wardell damaged a spinal cord artery or arteries during the fall in the school yard, either by direct damage during impact, or by vasospasm, which may result from the release of chemicals triggered by the fall. [Emphasis added]
In a pretrial deposition, Dr. McMillan was asked whether he faulted Dr. Peters in any way for what happened to Neal War-dell. He responded “[absolutely not.” Defendants’ expert witnesses took the same position, that they had either not been asked to render an opinion as to the other doctor’s conduct, or that neither doctor could be faulted for what he did or failed to do.
As he began voir dire of the jury panel, counsel for Dr. McMillan informed the jury as follows:
[T]his child fell in the school yard and as a consequence of that he suffered an injury. Now, therein lies the dispute between [counsel for plaintifffs side of the case and mine. The dispute will center upon a cause, cause of that injury. [Emphasis added]
McMillan’s counsel thus identified his case as being adverse to the plaintiff’s but not to Dr. Peters’. As for counsel for Dr. Peters, his position was revealed when he stated at voir dire:
I am going to tell you that some of the evidence in this case or the evidence that’s going to come from the defendants in this case is going to be to the effect that what happened to Neal Wardell happened without the fault of either of these two gentlemen * * *. [Emphasis added]
The attorneys for the doctors also cooperated in the voir dire process itself. For example, Doctor McMillan's counsel sought to have a juror excused for cause because of derogatory statements made to him about Dr. McMillan’s handling of the accident. It was clear the juror had heard nothing adverse about Dr. Peters. However, counsel for Dr. Peters also asked that the juror be excused for cause. Only plaintiff objected. Had Dr. Peters been truly adverse to Dr. McMillan, his counsel could have joined plaintiff in seeking to avoid a strike for cause of a potential juror who had heard adverse information about Dr. McMillan. There were numerous other examples of close cooperation between counsel for the defendants during voir dire. They cooperated in requesting challenges for cause, joined in each others’ objections to plaintiff’s voir dire questions, and even deferred to each other’s arguments in chambers. In short, the evidence presented before and during voir dire demonstrates that the doctors were aligned rather than adverse. They were not entitled to *1071extra strikes. I would apply the principles and presumptions I have outlined here, to hold that plaintiff did not receive a fair trial because of the allocation of jury strikes.
INSURANCE CRISIS
I also disagree with the majority’s disposition of the “insurance crisis” issue. The majority holds, following Borkoski v. Yost, 182 Mont. 28, 594 P.2d 688 (1979), that a plaintiff concerned over adverse publicity about the so-called “insurance crisis,” may ask one of two preliminary questions: “(1) whether the prospective jurors heard or read anything which might affect their ability to sit as impartial jurors; or (2) whether the prospective jurors regularly read any magazines or newspapers in which it had been demonstrated that the insurance advertisements or articles appeared.” Maj. op. at 1068. Only if one of these questions is answered in the affirmative may the attorney follow up with other questions.
The experienced trial advocate can testify that the first of these questions is useless. It so strongly suggests a negative response that it is unlikely any juror would answer it affirmatively. No juror wants to admit that he or she may be “prejudiced” or “not impartial.” This restriction upon voir dire is made more serious by the fact that once a negative answer is made, the majority says the inquiry is over. The lawyer is not allowed to probe further, even to allow a juror to qualify the negative answer by admitting, for example, that he or she has read insurance company propaganda but still thinks he or she can be impartial.
The question is also much too vague to lead inevitably to fruitful inquiry on the insurance crisis issue. Since it does not indicate what kind of hearing or reading is sought, a juror asked this question would probably not make the connection between insurance company advertising and his vote in this specific case. This vagueness could not be clarified by the attorney because, again, no follow-up questions would be allowed after a negative response.
The second question the majority suggests is a little more specific, but is also flawed. It assumes that only a regular reader of one of the target periodicals will have been affected by the advertising or stories on the so-called “insurance crisis.” However, the juror who does not regularly consult a primary source of insurance company advertising or articles on the “insurance crisis” may nevertheless be aware of it. The origin of his or her awareness may be so obscure that it could never be directly traced to a particular magazine or newspaper. (An ad campaign on such a controversial topic which had no such secondary effect would be weak indeed!)
To give an example of how this information influences secondary sources, consider the anecdotal or statistical information on the “tort crisis” which has become a part of American dialogue. The insurance companies, to bolster their campaign, have chosen to present inflammatory examples and misleading statistics regarding jury verdicts. See e.g., W. James Kronzer, Jury Tampering-1978 Style, 10 St. Mary’s L.J. 399, 409 (1978). Naturally, some of the more outrageous of these examples have become popular among commentators on the American scene and have achieved wide circulation outside of their original source.
Here is part of a letter, dated February 23,1986, from a private citizen to the Laramie, Wyoming Boomerang:
Many competent professionals literally are being driven out of their fields by the unpredictable liability in their work, professionals often needed badly by the general public.
What is the cause? Who is the culprit? Here are three cases detailed in July 15 ’85 “Forbes” which may help clarify the point:
* A 41-year-old bodybuilder entered a footrace with a refrigerator strapped to his back to prove his prowess. During the race, one of the straps came loose and the man was injured. He sued the maker of the strap. Jury award: $1 million.
* Two Maryland men decided to dry their hot air balloon in a commercial laundry dryer. The dryer exploded, injuring them. They won $885,000 in damages from American Laundry Machinery which manufactured the dryer.
*1072* An overweight man with a history of coronary heart disease suffered a heart attack while trying to start a Sears lawnmower charging that too much force was required to yank the mower’s pullrope. A jury in Pennsylvania awarded him $1.2 million plus $550,000 for delays in settling the claim.
Isolated cases of absurdly generous awards? Far from it.
An attorney who asked jurors if they regularly read Forbes magazine would not “pick up” readers of this letter to the editor. More ominously, a prospective juror might never have read one word about the insurance crisis, but might have a friend or spouse or employer who had shared strong feelings about it with the juror. Or he might know someone in one of the professions which has suffered insurance cancellations or premium increases and has been told by his or her insurer that it is due to the “lawsuit crisis.” As the information explosion continues, there are more and more sources of information available to the average citizen. Neither of the majority’s suggested questions would necessarily catch these potential sources of bias.
Can we really ask a plaintiff’s attorney to find every printed reference to the “insurance crisis” which a prospective juror may have read, and ask the juror about his or her regular readership of that individual source? If so, I fear we are requiring the attorney to capture the sea in a sieve.
In short, each of the questions the majority suggests hobbles plaintiff’s ability to discover the essential factor: whether the juror knows of or has attitudes, feelings, or opinions about an “insurance crisis” which may affect his or her ability to render a fair and impartial verdict. Therefore, I would allow, at a minimum, the attorney to ask the more basic questions which would disclose the knowledge, opinions, and feelings of jurors upon any subject that might affect the juror (result in bias or prejudice) in arriving at a verdict in the case. This may include knowledge of claimed need for “tort reform” or “insurance crisis” if the juror knows of it. If the juror has no knowledge of these subjects, the questioning is at an end. And of course the correct question is not: “having heard of tort reform, are you prejudiced against a plaintiff who sues to recover damage?” The answer will always be “no,” and no information of value is obtained. The correct question is: “how do you feel about tort reform?” The question is open-ended. The juror’s answer must be more than yes or no. The juror will answer that question.
The Borkoski court suggests the following which, although not the best questions designed to elicit information, are, nevertheless, acceptable:
[A]n attorney may inquire whether a prospective juror has heard or read anything to indicate that jury verdicts for plaintiffs in personal injury cases result in higher insurance premiums for everyone; if so, whether the prospective juror believes such materials; and if so, whether that belief will interfere with the juror’s ability to render a fair and impartial verdict.
Borkoski, 594 P.2d at 694 (emphasis added).
It is said‘that subjects such as the need for tort reform, excessive verdicts, the insurance crisis, and others are subjects jurors will discuss in the jury room. The question then is whether counsel would rather they be discussed openly, in court, so that each counsel may assess their impact and effect on a prospective juror’s ability to fairly decide the case, or would counsel rather not know the answers? Some counsel are afraid to hear or unable to deal with the answers. But how otherwise can attorneys and litigants effectively exercise their peremptory challenges? I would have allowed Warded to voir dire the prospective jurors on the insurance crisis issue.