American Cyanamid Co. v. Frankson

OPINION ON MOTION FOR REHEARING

NYE, Chief Justice.

Appellant asks us to reconsider our original holding that the trial court did not err in the alignment or allocation of peremptory challenges.

Our review of a trial court’s action in allocating peremptory challenges is limited to the information available to the trial court at the time it makes its decision. Allocation of challenges is to be made in accordance with the ends of justice, so that no party is given an unfair advantage. *661Tex.R.Civ.P. 233. The purpose of peremptory challenges is to allow a party to reject certain jurors. Patterson Dental Co. v. Dunn, 592 S.W.2d 914 (Tex.1979). If one side of a lawsuit is allowed a grossly disproportionate number of challenges, it allows that party to actually construct the jury. Id. at 919. The trial judge may proportion strikes by increasing the number allotted a sole party on one side or by decreasing the number allowed on the other side or both. The Supreme Court has held that while alignment of parties is a question of law, a trial court has discretion in matters of allocation, though it is not unlimited. We perceive this to mean that if the trial court’s decision is based upon a reasonable assessment of the situation before it at the time the challenges are made, the decision should remain intact. However, if the trial court has ignored the posture of the parties or has misconstrued or overlooked a vital factor, its decision should be reversed as an abuse of discretion.

In this case, the trial court allocated nine challenges to the plaintiff and three each to defendants Lederle, Levinthal and the nursing home. The trial court had before it the pleadings of the parties which reflect that the appellee was suing the named defendants for negligence. Appellee sued all of the physician defendants for failure to warn him of the risks of using the drug which were set forth in the Physicians Desk Reference. Appellee also alleged design defects, marketing defects and breach of warranty claims against Lederle. The defendants filed various cross-actions. During pretrial hearings, the trial court learned that two defendant doctors were nearing a settlement agreement. They were allowed no peremptory challenges, and were essentially aligned with appellee. The court was also informed that Levinthal had made a Mary Carter settlement offer of $500,000.00 that was never accepted by appellee. Levinthal was aligned with the defendants. We believe that the alignment was proper.

Antagonism among parties and between sides varies by degree from case to case. Here, we have a situation in which Lederle vigorously contested its liability. It claimed that appellee’s injuries were caused by his initial fall from the horse. The other defendants also contested their own liability. The record before the trial court showed little antagonism among the three defendants. Each denied that they were liable to appellee, but none sought to fix sole blame upon another at the time the trial court made its decision.

During pretrial hearings, Levinthal and the nursing home told the trial court that they were going to exercise strikes separately. It was clear from the voir dire examination that appellee was focusing his case upon Lederle rather than the other two defendants. However, the other defendants remained in the case and jury issues were submitted concerning their negligence.

This is unlike Diamond Shamrock Corp. v. Wendt, 718 S.W.2d 766 (Tex.App.—Corpus Christi 1986, writ ref’d n.r.e.) which appellant claims conflicts with this case. In Wendt, the trial judge knew that neither defendant was really antagonistic to the plaintiff. Each defendant argued that the other defendant was solely responsible for plaintiff’s loss, but neither seriously contended that plaintiff should not recover. The trial judge knew, before he allocated strikes, that defendant Medina’s Insurance Company had refused to pay. He knew that plaintiff and Medina had discussed proceeding jointly against the insurance company. The judge also knew that plaintiff and Medina had discussed profiles of the type of juror that would be good for both of them. The voir dire bore out a commonality of interest between plaintiff and Medina. We correctly held in that opinion that the alignment of the parties was proper, but the allocation of strikes resulted in an unfair disadvantage to Diamond Shamrock.

In this case, the antagonism exists primarily among sides, not parties on the same side. Lederle and Dr. Levinthal would later become antagonistic on the issue of whether Lederle’s warnings were adequate, but this antagonism was not apparent when the trial court made its alloca*662tion. We do not believe that the test should be how this Court would have allocated strikes, knowing what the full record reveals. We believe that the trial court’s decision was a reasonable assessment of the situation at the time of its decision.

Appellant’s motion for rehearing is overruled.