Cantrell v. Crews

Present:   All the Justices


TIMOTHY L. CANTRELL, ET AL.
                          OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 990224                   January 14, 2000

DEBORAH W. CREWS


               FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                     J. Samuel Johnston, Jr., Judge

     This is the appeal of a judgment in a tort action for

damages arising from a motor vehicle accident.    The dispositive

issue is whether the trial court erred in refusing to strike for

cause a prospective juror.

     In January 1995, appellee Deborah W. Crews was operating an

automobile that was stopped on a street in the City of

Lynchburg.   Her vehicle was struck from the rear and she was

injured as a result of the negligence of appellant Timothy L.

Cantrell, who was operating a truck owned by his employer,

appellant Winn-Dixie Raleigh, Inc.    The plaintiff sustained a

"soft tissue" injury that was diagnosed as a cervical sprain,

for which she brought this action against defendants seeking

recovery in damages.

     In an October 1998 trial, the defendants admitted liability

and the case was tried on the issue of damages only.       A jury

found in favor of the plaintiff and fixed her damages at

$108,812.87.    The trial court overruled the defendants' motion
to set the verdict aside and entered judgment on the verdict.

We awarded defendants an appeal limited to consideration of four

assignments of error.

       An issue raised by a portion of one of those assignments of

error is dispositive of this appeal.    The issue is whether the

trial court erred in refusing to strike for cause a prospective

juror who, at the time of trial, was a client of the law firm

representing the plaintiff.

       There is no dispute in the facts relevant to the issue we

decide.   The motion for judgment was on stationery of "Law

Office / Overbey, Hawkins & Selz / Rustburg, Virginia."    The

pleading was signed by Mr. Hawkins as "Of Counsel" for "Overbey,

Hawkins & Selz."   Hawkins appeared at trial as attorney for the

plaintiff.

       During jury voir dire, after asking whether "anybody" knew

the plaintiff's trial attorney, the trial court specified the

name of Hawkins' law firm and identified by name each member of

the firm, including "Bryan Selz."     The court then asked, "Does

anybody know any of those individuals or been represented by

them or this firm or have any contact with them?"

       Responding, prospective juror Holly Clingempeel stated that

she knew Selz and said, "He's representing me."    When the court

asked, "How long ago?", the juror responded, "It's still going

on."


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        Later during voir dire, while being questioned by

defendants' attorney, Clingempeel revealed that her

representation by Selz arose from "a car accident" and stated

that she sustained "[n]eck and back" injuries.     She said that

she had filed a "lawsuit"; that the suit "is continuing right

now"; and that Selz is representing her "in that."

        Upon being asked by the court whether the fact that Hawkins

or a member of his law firm was "currently" representing her

would have "any bearing" on her judgment, Clingempeel responded,

"No."    She further stated that she could "assure" the court

"under oath" that she could "ignore" her representation by the

plaintiff's law firm "and be totally fair to both sides."

        The trial court denied defendants' motion to strike for

cause Clingempeel, as well as two other prospective jurors.       In

ruling on the motion, the court stated it believed the three

jurors "can ignore any personal sort of contact or relationship

or association they have with Mr. Hawkins, his firm, . . . and

the like and be fair and that's the only test."

        Elaborating, the trial court stated:   "Campbell County is

of such a nature that in this community people are going to know

each other and have some kind of association and the association

as described to me by the three folks to whom you objected to

was not such that in and of itself prejudiced them or made an




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obvious bias or would lend itself to an obvious bias on their

behalf."

     Concluding, the trial court said:    "I was impressed with

their answers and I believe them to be truthful and I found

nothing wrong with them sitting as jurors . . . ."

     The plaintiff contends the trial court correctly refused to

strike Clingempeel for cause.   We disagree.

     Parties to litigation are entitled to a fair and impartial

trial by a jury of persons who "stand indifferent in the cause."

Code § 8.01-358.    "[T]he right to a fair and impartial trial in

a civil case is as fundamental as it is in a criminal case.    The

civil courts constantly strive to protect this right.   It lies

at the very basis of organized society and confidence in our

judicial system."    Temple v. Moses, 175 Va. 320, 336, 8 S.E.2d

262, 268 (1940).

     Upon review, the appellate court gives deference to the

trial court's decision whether to retain or exclude prospective

jurors.    Vinson v. Commonwealth, 258 Va. 459, ___, ___ S.E.2d

___, ___ (1999).    And, a trial court's decision on this issue

will be affirmed unless there has been manifest error amounting

to an abuse of discretion.    Id. at ___, ___ S.E.2d at ___.

     Recently, we considered in a condemnation case an issue

almost identical to the present one.   In City of Virginia Beach

v. Giant Square Shopping Center Co., 255 Va. 467, 498 S.E.2d 917


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(1998), one ground of a condemnor's objection to the seating of

a prospective commissioner was that the commissioner, at the

time of trial, was a client of the landowners' counsel.

     There, we noted that, by statute, the issue of just

compensation is to be determined by a commission of

"disinterested freeholders," and that, regarding the

disqualification of commissioners for cause, the eminent domain

statutes must be administered in a manner that promotes

confidence in the integrity of the judicial process.    Id. at

470, 498 S.E.2d at 919.

     Thus, we held the trial court abused its discretion in

refusing to dismiss the commissioner for cause, stating that "it

is extremely unlikely the public would have confidence in the

integrity of the process when a commissioner has the identity of

interests demonstrated by this prospective commissioner."     Id.

at 471, 498 S.E.2d at 919.   We said, "This is true even though,

as the record shows, the commissioner is a 'respected member of

the community' and 'known to be a man of integrity,' who may be

determined to discharge his duties in a forthright and unbiased

manner."   Id.

     The same reasoning will be applied to this case.     There is

no meaningful difference regarding the interest factor under

these circumstances between the statutory requirements for a

trial by jury of persons who "stand indifferent in the cause"


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and for just compensation to be determined by a commission of

"disinterested freeholders."   Public confidence in the integrity

of the process is at stake.    It cannot be promoted when a

sitting juror is, at the time of trial, a client of the law firm

representing one of the parties to the litigation as a result of

a similar occurrence.

     This is true even though, as the record shows, the juror

states that the circumstances of her representation would have

no "bearing" on her judgment as a juror and that she could "be

totally fair to both sides."   We have no doubt that Clingempeel

was sincere in her beliefs and that she was determined to

discharge her duties in a forthright and unbiased manner.

     And, the fact that the venue is a community where "people

are going to know each other and have some kind of association,"

as the trial judge noted, does not diminish the court's

obligation to assure that a litigant's case will be heard and

decided by a fair and impartial jury.

     Therefore, we hold that the trial court abused its

discretion in refusing to dismiss the juror for cause and that

this constitutes reversible error.

     Because the case will be remanded and the evidence may be

different upon a new trial, we shall address only one of the

remaining issues presented on appeal.   The defendants contend

that the trial court erred in limiting their cross-examination


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of the plaintiff's treating orthopedic physician, who testified

by deposition.

     Upon direct examination, the physician, after concluding

that the plaintiff sustained a soft tissue injury amounting to a

cervical sprain, opined she had a ten percent permanent

disability and would require future medical treatment.    On

cross-examination, defendants elicited from the physician that

he had written in his notes that, in his experience, many

patients involved in litigation stemming from soft-tissue

injuries frequently cease medical treatments "when the

litigation is resolved."    The physician stated he "certainly

considered that" in his evaluation of the plaintiff's

complaints.

     The trial court excluded this portion of the deposition

testimony, over defendants' objection.   The court reasoned the

physician "was too equivocal"; "[h]e merely said I certainly

considered that"; and, the testimony "was too speculative."

     Based on the state of this record, we cannot say that the

trial court abused its discretion and thus erred in refusing to

permit the defendants to offer this evidence to discredit the

physician's opinion on permanency and on the plaintiff's need of

future medical treatment.

     Thus, if the state of the record does not change upon a new

trial, this equivocal and speculative testimony should not be


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allowed.   But see Mastin v. Theirjung, 238 Va. 434, 437-38, 384

S.E.2d 86, 88 (1989) (medical testimony admitted that in people

with personalities like the plaintiff's "there is a definite

potential for motives of secondary gain, arising out of the

possibility of recovery of money damages in a lawsuit").

     Therefore, the judgment below will be affirmed in part,

reversed in part, and the case will be remanded for a new trial,

limited to the issue of damages only.


                                                 Affirmed in part,
                                                 reversed in part,
                                                 and remanded.




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