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Jury--selection--challenge for cause denied--no abuse of discretion
The trial court did not abuse its discretion by denying plaintiff's challenge for cause, as
well as other related motions, to a potential juror in a medical malpractice action where the
challenged juror had three minor children who were patients of defendant's practice.
Keel O'Malley Tunstall, L.L.P., by Jimmie R. Keel and Susan M.
O'Malley, for plaintiffs-appellants.
Jerry A. Allen, Jr., and O. Drew Grice, Jr., for defendants-
appellees.
TYSON, Judge.
Chad Edmunson (“plaintiff”), through his Guardian ad litem,
appeals the trial court's orders entered denying his: (1)
challenge for cause; (2) motion for change of venue; (3) motion for
a mistrial; and (4) motion to set aside the verdict. We hold there
is no error in these orders.
On 12 December 2002, plaintiff commenced a medical malpractice
suit against Dr. Leesa Lawrence (“defendant”). The only background
facts needed to understand the issues on appeal occurred during the
selection of the jury. The voir dire of the potential andempaneled jurors was not recorded. Plaintiff's counsel exhausted
his peremptory challenges and subsequently made a challenge for
cause to juror one, Mr. Martin. The trial court denied plaintiff's
challenge for cause.
The only information contained in the record on appeal
concerning Mr. Martin, is a portion of the recorded transcript
narrating the exchange between the trial court and plaintiff's
counsel:
The Court: The Court inquired of [defendant's
counsel] as to his position. He indicated to
the Court that he objected to the plaintiff's
challenge for cause. The Court having paid
close attention to the answers of Mr. Martin
during the course of his examination by
[plaintiff's counsel] and by the Court
respectfully denied the challenge for cause.
[Plaintiff's counsel] is there anything you'd
like to put on the record to your challenge
for cause?
[Plaintiff's counsel]: Only this, it was my
understanding at the bench, your honor, that
[sic] that objection would be preserved as
such, since I had used all of my peremptory
challenges including those extra ones that had
been given by the consent of the parties and
agreement of the court. And that we were just
unable to find a jury in this case, despite
the court's assistance, that did not have
children that were seen by Dr. Lawrence's
practice.
. . . .
The Court: All right. Thank you. I think the
record should clearly reflect in response to
the Court's questions and questions by
[plaintiff's counsel] that the juror indicated
that he had no - himself had no direct contact
with the practice of the defendant, individual
defendant. And that he further stated that
even though his wife was the one who took the
children to the practice that he had no direct
knowledge of what happened when she took him. And that that [sic] would not play any part in
how he decided the case. That is the
treatment by the practice of his children and
any physicians who testified _ who were
members of the practice who testified he would
be able to fairly, scrutinize their testimony
just like he would anyone else, any other
physician who had not _ who was not a member
of the practice and who had not treated his
children.
Subsequently, plaintiff's counsel moved for a change of venue
and a mistrial based on the denial of his challenge for cause to
Mr. Martin being seated as a juror. The trial court denied both
motions and the matter proceeded to trial. The jury returned a
verdict finding plaintiff was not injured by defendant's
negligence. On 7 February 2007, the trial court entered judgment
in accordance with the verdict. Plaintiff appeals.
Plaintiff argues the trial court erred by denying his: (1)
challenge for cause; (2) motion to change venue; (3) motion for a
mistrial; and (4) motion to set aside the verdict.
The standard of review for each of plaintiff's assignments of
error is abuse of discretion. See State v. Locklear, 331 N.C. 239,
248, 415 S.E.2d 726, 732 (1992) (The standard of review for a
denial of a challenge for cause is abuse of discretion); Farmers
Cooperative Exchange, Inc. v. Trull, 255 N.C. 202, 204, 120 S.E.2d
438, 439 (1961) (“[Q]uestion[s] of venue . . . [rest] within the
sound discretion of the trial judge, and [are] not subject to
review except for manifest abuse of such discretion.”); State v.
Hinton, 155 N.C. App. 561, 564, 573 S.E.2d 609, 612 (2002) (“Thetrial court's ruling on a motion for mistrial generally lies within
the sound discretion of the trial court and will be reversed only
upon a showing of a manifest abuse of discretion.”); Davis v.
Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (stating that
an appellate court's review of a trial court's ruling granting or
denying a motion to set aside the verdict is limited to an abuse of
discretion standard). A trial court may be reversed for abuse of
discretion only upon a showing that its actions are “manifestly
unsupported by reason.” Clark v. Clark, 301 N.C. 123, 129, 271
S.E.2d 58, 63 (1980).
Our review of the trial court's ruling is limited to that
portion of the transcript contained in the record on appeal.
Plaintiff argues the trial court abused its discretion by denying
his challenge for cause when Mr. Martin had three minor children
who were patients of defendant's practice. We disagree.
Our Supreme Court has held, “mere acquaintance with witnesses
alone [is] not a sufficient basis for a challenge for cause.”
State v. Hartman, 344 N.C. 445, 460, 476 S.E.2d 328, 336 (1996)
(citing State v. Benson, 323 N.C. 318, 324, 372 S.E.2d 517, 520
(1988)), cert. denied, 520 U.S. 1201, 137 L. Ed. 2d 708 (1997).
The issue is whether the challenged juror could remain fair and
impartial. Hartman, 344 N.C. at 461, 476 S.E.2d at 337.
Here, the trial court found: (1) Mr. Martin had no direct
contact with defendant's practice; (2) Mr. Martin's wife took their
children to defendant's practice; (3) Mr. Martin had no directknowledge of what happened at defendant's practice; (4) this
information would play no part in Mr. Martin's decision regarding
this case; and (5) Mr. Martin would be able to fairly, scrutinize
testimony from physicians, who were members of defendant's
practice.
“If the record supports the trial court's decision that the
juror could follow the law, then the trial court's ruling should be
upheld on appeal.” State v. Cummings, 361 N.C. 438, 449, 648 S.E.2d
788, 795 (2007). Based upon our review of the limited transcript
presented to this Court, we hold that plaintiff failed to show the
trial court abused its discretion in denying plaintiff's challenge
for cause. This assignment of error is overruled.
Plaintiff argues the trial court erred by denying plaintiff's
motion for change of venue, motion for a mistrial, and motion to
set aside verdict on the grounds that “plaintiff's counsel was
unable to find twelve jurors that did not have children that were
seen by [defendant's] practice.” Based upon the analysis above and
our holding, we conclude the trial court did not abuse its
discretion in denying plaintiff's motions. These assignments of
error are overruled.
The trial court found that the juror challenged by plaintiff
for cause could be fair and impartial in his decision regarding
this case. Plaintiff has failed to show the trial court abused its
discretion by denying defendant's challenge for cause. Plaintiff's other assignments of error were based on the same
theory: the denial of plaintiffs' challenge for cause to Mr.
Martin being seated as a juror. The trial court properly denied
plaintiff's motion for change of venue, motion for a mistrial, and
motion to set aside the verdict. We hold there is no error in the
verdict or the judgment entered thereon.
No error.
Judges JACKSON and ARROWOOD concur.
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