concurring in part and dissenting in part, in which GOLDEN, Justice, joins on the issue regarding the trial court’s control of discovery as a third concern.
I concur in the decision and in the dispos-itive opinion except in ancillary regard involving four distinguishable areas. Those differences which do not, however, foreclose concurrence in the result, include: (1) use of prejudicial-partial individual trial ju*1073rors; (2) voir dire expansion to establish or foreclose existence of general juror prejudice by institutional advertising campaigns; (3) discovery privilege for the litigant’s private physician; and (4) instructional advisement to the jury for them to be informed about the consequence of their verdict, Wyo.Stat. § 1-1-109 (1988).1
A. UNEXCUSED JURORS WHO WERE NOT FAIR AND IMPARTIAL
In consideration of the segment designated “Wyo.Stat. § 1-11-203 (1988),” it is apparent that the two unexcused jurors were in no regard fair and impartial. Our society has sufficient potential jurors that no one with an obvious ax to grind need be included within the decision making group — the constitutionally required impartial jury. Wyo. Const, art. 1, § 10. This record provides compelling evidence of the existence of both the ox and the grindstone.
We know full well the power of prejudice and predisposition in decision making. Our goal must remain as the majority’s decision states: “The touchstone of a fair trial is the right to have an impartial decision maker.” Maj. op. at 1059 (citing McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984)). See also Amin v. State, 811 P.2d 255, 262 (Wyo.1991), Urbigkit, C.J., dissenting; Lee v. State, 743 P.2d 296 (Wyo.1987); and Redwine v. Fitzhugh, 78 Wyo. 407, 329 P.2d 257 (1958). For a vivid example of juror partiality, see State v. Cady, 248 Kan. 743, 811 P.2d 1130 (1991).
B. VOIR DIRE TO DETERMINE EFFECT DISFAVORING TORT PLAINTIFFS FROM INSTITUTIONAL ADVERTISING CAMPAIGNS CONDUCTED BY THE INSURANCE INDUSTRY
A second area, which in reality reaches the same concern, also requires a divergence for me from the majority. The segment is entitled “Insurance Crisis.” Institutional advertising does not just come out of the woodwork or exist for insurance companies to incur expenses to offset profits. See, for informational purposes, New York Public Interest Research Group, Inc. by Wathen v. Insurance Information Institute by Moore, 140 Misc.2d 920, 531 N.Y.S.2d 1002 (1988), aff'd 161 A.D.2d 204, 554 N.Y.S.2d 590 (1990). Insurance company institutional advertising has at least a dual objective. First, there is a desire to influence legislators. Secondly, and perhaps even more pervasive, is the desire to create an atmosphere of juror predisposition in order to affect the result of jury verdicts. Id. at 1012.
I recognize the freedoms guaranteed for press and in advertising by the First Amendment to the United States Constitution and the preclusive guarantees provided to Wyoming citizens by Wyo. Const, art. 1, § 20. Within that recognition of the rights of the insurance industry to attempt preconditioning through crisis advertising, I am not foreclosed from continued interest in requiring fair and impartial decision makers to serve on juries.
The trouble with the discretion application in the majority is to first authenticate the presiding trial judge to be an accomplished mind reader to divine what the jury is thinking and whether they have, individually, achieved preconditioning from the mass media advertising. Without voir dire, the trial judge cannot be factually knowledgeable about the effects of this campaign derived from insurance industry advertising. We, of course, know there is a general effect. The unknown is specificity of what that effect might be on this panel, and more importantly, on the individuals within the panel who will be chosen to *1074render the trial decision. Informed knowledge by the trial judge about the participants in the jury panel is required to provide a basis for any proper exercise of discretion. See Martin v. State, 720 P.2d 894 (Wyo.1986).
Properly exercised discretion requires applied reason and attained knowledge of the relevant facts and circumstances. In Martin, we reiterated Washington case law regarding discretion which was first stated in State ex rel. Carroll v. Junker, 79 Wash.2d 12, 482 P.2d 775, 784 (1971):
Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.
The Junker court added:
Where the decision or order of the trial court is a matter of discretion, it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.
Id.
In Rex v. Wilkes, 4 Burr. 2539, Lord Mansfield long ago said: “ ‘Discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague, and fanciful, but legal and regular.’ ” Tingley v. Dolby, 13 Neb. 371, 14 N.W. 146, 147-48 (1882). Intrinsic to meet the Lord Mansfield rule, essentially restated by the Washington court in Junker and then applied by this court in Martin, is access to the facts from which an informed judgment, constituting exercised discretion, can be made. See In re Schuoler, 106 Wash.2d 500, 723 P.2d 1103, 1110 (1986) (quoting Junker, 482 P.2d at 784), where the court held that discretion is abused when it is “ ‘exercised on untenable grounds, or for untenable reasons.’ ” See also In re Marriage of Tang, 57 Wash.App. 648, 789 P.2d 118 (1990). “The impartiality of the jurors is a question of fact to be decided by the trial court upon the basis of proper questioning.” Jahnke v. State, 682 P.2d 991, 1000 (Wyo.1984).
Recognition of the relevant facts to make an informed judgment is required. Matter of Guardianship of F.E.H., 154 Wis.2d 576, 453 N.W.2d 882 (1990). Similarly, the Nebraska court, in following its early opinion in Tingley, added: “ ‘[Discretion] means the application of statutes and legal principles to all of the facts of a case.’ ” Goebel v. Holt County, 172 Neb. 81, 108 N.W.2d 406, 410 (1961) (quoting Greenberg v. Fireman’s Fund Ins. Co. of San Francisco, 150 Neb. 695, 35 N.W.2d 772, 776 (1949)). Justice Heffernan recognized in McCleary v. State, 49 Wis.2d 263, 182 N.W.2d 512, 519 (1971):
In the first place, there must be evidence that discretion was in fact exercised. Discretion is not synonymous with decision-making. Rather, the term contemplates a process of reasoning. This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standards.
See also D.H. v. State, 76 Wis.2d 286, 251 N.W.2d 196, 208 (1977). With such dependency on the facts for exercised discretion, Rickaby v. Wisconsin Dept. of Health & Social Services, 98 Wis.2d 456, 297 N.W.2d 36 (1980), any real decision made by the trial court in this case only went so far as to leave the facts, which actually existed, undisclosed and unknown. This reaches my continued concern about adjudicating from ignorance, see Engberg v. Meyer, 820 P.2d 70, 142 (Wyo.1991), Urbigkit, C.J., dissenting in part and concurring in part; Story v. State, 755 P.2d 228, 232 (Wyo.1988), cert. denied 498 U.S. 836, 111 S.Ct. 106, 112 L.Ed.2d 76 (1990), Urbigkit, J., specially concurring; Cutbirth v. State, 751 P.2d 1257, 1267 (Wyo.1988), Urbigkit, J., dissenting; and Frias v. State, 722 P.2d 135 (Wyo.1986), and approaches the result recognized by Chief Circuit Judge Monroe McKay, “[which] converts a rule into a license.” United States v. Davis, 900 F.2d 1524, 1530 (10th Cir.), cert. denied 498 U.S. 856, 111 S.Ct. 155, 112 L.Ed.2d 121 (1990), *1075McKay, Circuit Judge, concurring in part and dissenting in part.
Another problem with any bland absolution of denied voir dire involving the effect of a materially and societally divisive subject such as the so-called “insurance crisis” is that the result is actually determined in application of the imbedded attitude of the trial judge, in application of his individual scope of academic exposure, and his individual attitude about the communicative effect of the institutionally created mass media subliminal advertising. Without voir dire, the trial judge only personifies and individualizes to himself how he thinks other people are informed and effectively become reactive. Furthermore, in result, any knowledgeable exercise of peremptory challenges by litigant’s counsel on all sides is unnecessarily constrained when the true “bent of mind” of the jurors cannot be factually assessed. King v. Westlake, 264 Ark. 555, 572 S.W.2d 841 (1978); Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705 (Tex.1989). See also Borkoski v. Yost, 182 Mont. 28, 594 P.2d 688 (1979).
A current case which provides thoughtful discussion in recognition of modern advertising techniques supports my persuasion:
[Ijnsurance companies should not be able to hide behind the rule prohibiting comments about insurance companies, while at the same time actively and substantially engaging in advertising with the motive of influencing potential jurors in their favor.
Kozlowski v. Rush, 121 Idaho 825, 828 P.2d 854, 860 (1992).
We should now recognize that realism to follow the logic and cogency of Justice Bistline’s writing in that case by analysis that:
The insurance companies have injected the issue of the effect of lawsuits on insurance into the public consciousness. Their purpose served by opening the door to the “insurance crisis” debate, they cannot now expect to slam it shut in the face of plaintiffs who hope to discover the effect of the advertisements on the potential jurors in their case. If the tables were turned in this case, and the plaintiffs bar had launched a media campaign to increase jury awards in Bannock County by showing in graphic detail various personal injuries and the long term effect of same on the victims, we are convinced that the defendants in this case would demand the opportunity to determine whether any of the potential jurors had been biased against defendants in general by the exposure.
Id. at 862.
This court, like Idaho in Kozlowski, should adopt a rule “which balances the inherent possibility of prejudice from evidence of insurance with the recognition that such evidence is relevant to show bias.” Id.
My disagreement is generally not with the text of the majority. The problem presented is that without facts, the trial judge cannot really exercise discretion if discretion is to be defined as a knowledgeable decision based on facts and information. Martin, 720 P.2d 894. Unless the trial judge has that knowledge, exercised discretion does not exist if he is ignorant of what exposure this particular jury panel has actually received and what persuasion, if any, the national or local institutional advertising campaign has actually achieved. Without voir dire, decision making about jury attitude is essentially either totally conjectural or a judicial reflection of an existent predisposition. The issue is not involvement of insurance companies, it is prejudice and preordination of the jurors, favorable or unfavorable, to the American tort damage and recovery system. The guiding light is the constitutional requirement to provide the fair and impartial jury guaranteed in Wyo. Const, art. 1, § 10.
C. PRIVILEGE OF THE LITIGANT’S PRIVATE PHYSICIAN TO NOT BECOME AN EXPERT WITNESS FOR OPPOSING LITIGANT
A third concern results from the broad scope of this appeal and the trial court’s control of discovery. It should not be conceded that a waiver of the statutory privilege of a physician/patient relationship ex*1076tends beyond factual information regarding condition and treatment in suits for injury recovery. I do not find that filing a suit for bodily injury authenticates making the treating doctor an expert witness for the opposing litigant. Again, I do not agree with this discretional resolution to justify bypassing the statutory right created for a physician/patient privilege against enforced discovery or justifying voluntary testimony without permission from his patient. Wyo.Stat. § l-12-101(a) provides:
(a) The following persons shall not testify in certain respects:
(i) An attorney or a physician concerning a communication made to him by his client or patient in that relation, or his advice to his client or patient. The attorney or physician may testify by express consent of the client or patient, and if the client or patient voluntarily testifies the attorney or physician may be compelled to testify on the same subject.
The rule that we write here, although directed to the physician/patient relationship, will equally apply to the attorney/client. I would more decisively control discovery of a litigant’s lawyer or doctor. We should enforce the statutory preclusion where privilege may be involved by holding that a waiver by institution of a lawsuit is limited to factual testimony. The waiver should be expanded to permit making a professional into a witness during either pretrial discovery or at trial which would require any statement of an opinion possibly contrary in text to the interest of the client or patient. See W.R.E. 501; Piller By Piller v. Kovarsky, 194 N.J.Super. 392, 476 A.2d 1279 (1984); cf. Petrillo v. Syntex Laboratories, Inc., 148 Ill.App.3d 581, 102 Ill.Dec. 172, 499 N.E.2d 952 (1986), cert. denied 483 U.S. 1007, 107 S.Ct. 3232, 97 L.Ed.2d 738 (1987); Philip H. Corboy, Ex Parte Contacts Between Plaintiffs Physician and Defense Attorneys: Protecting the Patient-Litigant’s Right to a Fair Trial, 21 Loy.U.Chi.L.J. 1001 (1990); and Elizabeth Eggleston Drigotas, Restricting Ex Parte Interviews With Nonparty Treating Physicians: Crist v. Moffatt [326 N.C. 326, 389 S.E.2d 41 (1990)], 69 N.C.L.Rev. 1381 (1991). Obviously, if plaintiff (or defendant) designates his own physician to give an expert opinion, then discovery is justified as to what the opinion might be. Lacking that designation, I totally fail to find justification for this statutorily precluded fishing expedition in discovery and add this only as another reason for justification adopted by the court in this regard in present decision.
I specifically agree with the trial court, and the majority of this court in result, regarding the denial of discovery directed to asking the treating physician for an expert opinion. I do not agree that the denial of realistic and appropriately directed voir dire was discretionally justified. This would leave the undisclosed insurance company’s advertising campaign totally uncontrolled in its intended affect for jury education. Consequently, the jury panel membership would be unplumbed regarding the right of an injured person to recover when he has been negligently harmed. In aspects of this decision not otherwise discussed, I would concur in the result and the logical resolution made in this majority’s opinion, except for a final subject which I find requires additional thought.
D. PEREMPTORY CHALLENGES WITH MULTIPLE LITIGANTS
Some additional consideration is due the special concurrence of Justice Cardine regarding peremptory challenges. In general, I agree with his criticism, analysis and conclusion. I fear, however, for prospective analysis in development of the Wyoming law, that we may be running very hard to catch the horse to only find that the saddle horse is no longer straying from our immediate control.
As noted in the majority opinion, the Wyoming law on peremptory challenges has been effectively re-defined by court rule effective March 24, 1992. Wyo.Stat. § 1-11-202 (1988) has been superseded in result by adoption of the identical language obtained from federal law provided in 28 U.S.C.S. § 1870 (Law.Co-op.1989), applicable to civil cases:
*1077Peremptory challenges. — Each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the making of challenges or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.
W.R.C.P. 47(c).
The definable charge from Wyo.Stat. § 1-11-202 is to augment trial court discretion and direction to the concept advanced by Justice Cardine in his special concurrence — essential fairness and numerical equality unless real adversity is demonstrated by the party or parties requesting the unequal number.
This application has worked fairly consistently for the federal court system for an extended time. 9 Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure, § 2483 at 474 (1971 & Supp. 1992). The criteria is exercised discretion, John Long Trucking, Inc. v. Greear, 421 F.2d 125 (10th Cir.1970); the test is sound and reasonable application by the court. Standard Industries, Inc. v. Mobil Oil Corp., 475 F.2d 220 (10th Cir.), cert. denied 414 U.S. 829, 94 S.Ct. 56, 38 L.Ed.2d 63 (1973); Albina Engine & Mach. Works, Inc. v. Abel, 305 F.2d 77 (10th Cir.1962); Globe Indem. Co. v. Stringer, 190 F.2d 1017 (5th Cir.1951). Finally, the trial court’s discretion under procedure, statute or rule is considerable, but it is not unlimited. Goldstein v. Kelleher, 728 F.2d 32 (1st Cir.), cert. denied 469 U.S. 852, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). It is further noted that the augmented responsiveness of the pretrial conference rule now provided in W.R.C.P. 16 explicitly invites early decision on multi-party peremptory challenge alignment. See Hunsaker v. Bozeman Deaconess Foundation, 179 Mont. 305, 588 P.2d 493 (1978).
The District Courts should seriously consider the use of the pretrial conference as the best procedure to be used in resolving questions such as the number of peremptory challenges to be allowed each side. If for some rare reason the District Court holds no pretrial conference, the question of peremptory challenges should be raised [by a litigant] by appropriate written motion filed before the commencement of jury selection, and it should set forth all facts and references tending to support [that party’s] claim of hostility. In any case, the opposing party or parties should be given adequate time to respond to the claims of hostility.
Id. 588 P.2d at 501.
E. ADEQUATE INSTRUCTION OF THE JURY ABOUT THEIR VERDICT-DUE PROCESS AND WYO.STAT. § 1-1-109
Following enactment by the Wyoming State Legislature in 1973 of comparative negligence, 1973 Wyo.Sess.Laws ch. 28, two amendments followed to insert fairness into trial procedure. Each was directed to require jury instructions considering the effect of their verdict and are now restated in the language of Wyo.Stat. § 1-l-109(b)(i)(B). This is the “inform the jury of their verdict” requirement. That language was intentionally not limited by the Wyoming legislature to the fifty-fifty no recovery result remaining from the state law of origin, Wisconsin.
I consistently believe and emphatically contend that knowledge improves jury results and ignorance increases unjustified accidents or mischance in result. See Coryell v. Town of Pinedale, 745 P.2d 883 (Wyo.1987), Urbigkit, J., specially concurring, and Harmon v. Town of Afton, 745 P.2d 889 (Wyo.1987), Urbigkit, J., dissenting. Furthermore, I believe in the plain meaning of the statutory language that the jury should be adequately informed. Allied-Signal, Inc. v. Wyoming State Bd. of Equalization, 813 P.2d 214 (Wyo.1991).
The difficulty exposed in this appeal is that the identical issue now exists in another appeal present in this court. Haderlie v. Sondgeroth, Wyoming Supreme Court, Docket No. 91-114. This court will have to first address in Haderlie credit for pre-verdict settlements. If credit is to be given by some rule of law, the significance of the jury instruction is minimized, but not neces*1078sarily eliminated. If credit is not given, then adequate jury instructions become a concern of paramount importance for the jury intent to be reflected properly in its verdict. This is true to ■ assure adequate compensation or, conversely, to avoid double payment.
I do not concur with the simple denial by the majority opinion of a requirement for adequate instructions to inform the jury of the consequences of the percentage of fault as it results in actual dollars included in the verdict to be payable to a successful plaintiff.
If the credit if not given, my perspective of an adequate instruction would advise the jury that if settlement has been made, credit, if any, will be given in the final verdict as a matter of law so that the jury should determine, without considering settlements, an adequate total verdict and a fair resolution of percentage of fault.
If Haderlie should determine that credit will not be given in the final judgment for pre-verdict settlements, then the amount of the settlement should be included in the jury instructions for the jury’s knowledge to determine “full recovery.” This is necessary in order to avoid either underpayment or payment of more than the total damages. Without this instructional assistance, we leave the jury with a requirement to speculate about the absence of some actors from the active litigative process. Whatever those assumptions might be, e.g., settlement, bankruptcy or insolvency, since driven by guess and chance, the deliberative process is not provided required knowledge for the result to reflect consequent fairness and validity in the entered verdict. The difference between a developed assumption by the jury of a last chance or another chance, in itself, can produce a monumental difference in the award given.
Consequently, as we await the decision in Haderlie, I will continue strong disagreement with any prejudgment here as to adequate instructions in order for the jury to be “inform[ed] of the consequence of its determination of the percentage of fault.” Only with adequate instructions for an informed jury will the litigative system be able to proceed to reasoned justice instead of accident and misassumption from ignorance. Theobold v. Angelos, 40 N.J. 295, 191 A.2d 465 (1963); Greenemeier by Redington v. Spencer, 719 P.2d 710 (Colo.1986).
Consequently, I concur in the decision with the differences from the text of the decision as enumerated.
. Wyo.Stat. § 1-1-109 states in part:
(b) The court may, and when requested by any party shall:
(i) If a jury trial:
******
(B) Inform the jury of the consequences of its determination of the percentage of fault.