Voir Dire Yielded Clear and Convincing Confusion

Texas Supreme Court sees no reason to overturn jury verdict favorable to defendant in medical malpractice suit based on juror confusion over proper standard of proof.

Murff, MD v. Pass, No. 07-0294 (Tex. Mar. 28, 2008) (jury selection, juror confusion, disqualification, strike for cause)

[...] Here, although Ruth stated that he would hold Pass to a clear and convincing standard of proof, it is apparent Ruth was confused as to the definition of “preponderance of the evidence,” as were many of the other panel members. This confusion is not only demonstrated by the venirepersons’ statements but was also noted by the trial judge who witnessed the exchange. Stating “the jury sounds like they’re getting confused,” the trial judge stopped the line of questioning and clarified the applicable standard of proof. Nothing in the examination indicates that Ruth harbored bias or prejudice in favor of or against a party or claim, or that he would be unable or unwilling to follow the court’s instructions once the definitions were properly stated. In response to a general question, Ruth even indicated his agreement that he would follow the instructions given by the trial court.Ruth’s responses exhibit the type of “confusion, misunderstanding, [and] ignorance of the law” we discussed in Cortez. Id. at 92. There, we emphasized that the trial judge was in the best position to determine whether the allegedly impartial statement was the result of bias or merely of confusion. Id. at 92–93. In this case, the trial judge observed the exchange and considered it confusing, a characterization the record supports.Citing Cortez, Pass contends rehabilitation is necessary once a member of the venire makes a statement indicating an inability to follow the court’s instructions and argues that Ruth was disqualified because he was never rehabilitated. However, in Cortez we did not require rehabilitation in order to prevent disqualification; rather, we held that rehabilitation is permissible to clarify whether a venireperson’s response results from confusion or misunderstanding, and that the extent and use of rehabilitation is within the trial court’s discretion. Id. at 92. Here, the trial court was satisfied that Ruth was sufficiently impartial without having to conduct additional individual questioning, and review of the entire examination fails to indicate that the trial court’s assessment constituted an abuse of discretion.The court of appeals also concluded that venirepersons 10, 29, and 31 were disqualified based on their affirmation of Ruth’s statement regarding the standard of proof. See ___ S.W.3d at ___ . However, as the trial court did not abuse its discretion in refusing to disqualify Ruth, it cannot have abused its discretion in refusing to disqualify venirepersons 10, 29, and 31, who merely agreed with Ruth’s statement in response to general questioning.* * *We reverse the court of appeals’ judgment and render judgment in favor of Murff.

W. GENE MURFF, M.D. AND MURFF-WANG-MOORE ASSOCIATES, P.A. v. WANDA KAYE PASS, AS NEXT FRIEND OF LESLIE LEANN PASS, A MINOR; from McLennan County; 10th district (10-06-00162-CV, ___ SW3d ___, 02-28-07)Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment. Per Curiam Opinion

Opiniong below: Pass v. Murff, No. 10-06-00162-CV (Tex.App. - Waco, Feb. 28, 2007, pet. filed)(Mem. op. by Bill Vance)