MICHAEL JONES v. B. N. LAKSHMIKANTH, M.D.--Appeal from 103rd District Court of Cameron County

   NUMBER 13-03-662-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

 MICHAEL JONES, Appellant,

v.

 B. N. LAKSHMIKANTH, M.D., Appellee.

___________________________________________________________________

On appeal from the 103rd District Court

of Cameron County, Texas.

___________________________________________________ _______________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Michael Jones, appeals a take-nothing judgment entered against him in his medical malpractice suit against appellee, B.N. Lakshmikanth, M.D. By four issues, appellant contends that the trial court erred when it denied his challenges for cause as to veniremembers 2, 8, 20, 23, 25, 27. We affirm.

I. Background

As this is a memorandum opinion and the parties are familiar with the facts and all issues of law presented by this case are well settled, we will not recite the facts or the law here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Applicable Law

A party may raise a challenge for cause during jury selection in order to eliminate unfit jurors. See Tex. R. Civ. P. 228, 229. Bias and prejudice are statutory grounds for disqualification of a juror. See Tex. Gov't Code Ann. ' 62.105(4) (Vernon 2005) (providing that a trial court must disqualify a prospective juror who shows "bias or prejudice in favor of or against a party in the case" or against the specific subject matter of the case).[1] To establish that a juror is biased or prejudiced as a matter of law, the evidence must show that "the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality." Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963). If the trial court finds that a juror is not biased or prejudiced as a matter of law, it has discretion to ascertain whether the juror's bias or prejudice is extreme enough to preclude the juror's fair assessment of the evidence, therefore necessitating the juror's dismissal. Malone v. Foster, 977 S.W.2d 546, 564 (Tex. 1998) (citing Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex. 1963)). Since the trial court observes voir dire, it is naturally in a better position to judge whether a prospective juror is biased or prejudiced. Cortez v. HCCIBSan Antonio, Inc., 159 S.W.3d 87, 93 (Tex. 2005); Swap Shop, 365 S.W.2d at 154.

A prospective juror's responses to general questions alone are usually insufficient to establish bias or prejudice. Buls v. Fuselier, 55 S.W.3d 204, 209 (Tex. App.BTexarkana 1991, no pet.) (citing Gant v. Dumas Glass & Mirror, Inc., 935 S.W.2d 202, 208 (Tex. App.BAmarillo 1996, no writ)). For example, even an admission that one party would be "starting out ahead" merely represents skepticism, not an "unshakable conviction" that would merit the juror's disqualification. See Cortez, 159 S.W.3d at 93. " A statement that is more a preview of a veniremember's likely vote than an expression of an actual bias is no basis for disqualification." Id. at 94. If a veniremember expresses what appears to be a bias, counsel may further question the juror to ascertain whether the apparent bias is in fact an actual bias. See id. at 92. The relevant inquiry is not where a veniremember starts but where he is likely to end. El Hafi v. Baker, 164 S.W.3d 383, 385 (Tex. 2005) (per curiam) (citing Cortez, 159 S.W.3d at 94).

III. Standard of Review

We use the abuse of discretion standard to review a trial court's ruling on a challenge for cause. Kiefer v. Cont'l Airlines, Inc., 10 S.W.3d 34, 39 (Tex. App.BHouston [14th Dist.] 1999, pet. denied). When determining whether the trial court abused its discretion, all the evidence must be viewed in the light most favorable to the trial court's ruling. Styers v. Schindler Elevator Corp., 115 S.W.3d 321, 325 (Tex. App.BTexarkana 2003, pet. denied).

An appellant who seeks to challenge the trial court's overruling of his challenge for cause must show (1) that a prospective juror established his or her bias or prejudice as a matter of law, which would automatically disqualify the juror, or (2) that the trial court abused its discretion when determining that the prospective juror was not biased or prejudiced enough to merit disqualification. Tex. Gov't Code Ann. _ 62.105(4) (Vernon 2005); Malone, 977 S.W.2d at 564. Whether a juror is biased is a factual determination for the court. See Kiefer, 10 S.W.3d at 39. However, if evidence conclusively establishes that a jury panelist would not act with impartiality, an appellate court must hold that the panelist was disqualified as a matter of law. Garza v. Tan, 849 S.W.2d 430, 432 (Tex. App.BCorpus Christi 1993, no writ).

IV. Analysis

By four issues, appellant generally contends that six jurors established their bias or prejudice as a matter of law and therefore should have been excused, or, alternatively, the trial court abused its discretion when it denied appellant's challenge to dismiss these jurors for cause.

A. Veniremembers 2, 8, and 27

Answered They Could Not Be Fair

By his first issue, appellant contends that veniremembers 2, 8, and 27 established their bias or prejudice as a matter of law when they admitted that they could not be fair to appellant or, alternatively, the trial court abused its discretion when it denied appellant's challenge because such an acknowledgment leads to the natural inference that the juror could not act impartially.

1. Veniremember 2

Although veniremember 2 did not raise her hand when asked if she thought that "medical malpractice lawsuits hurt patient care," she did raise her hand in response to counsel's general question regarding whether the prospective jurors thought they could not be fair in this case because of what they had already heard and she agreed with counsel that this case "would not be a good case for [her]." Veniremember 2 also expressed sympathy for doctors and nurses because she worked as a nurse's aide. The trial court stated that counsel "just didn't get enough out of [veniremember 2]," and denied appellant's challenge for cause concluding that veniremember 2 did not communicate a bias or prejudice that would keep her from fairly judging the evidence.

While veniremember 2 expressed an apparent bias in response to general, vague questions, she did not state that she could not be fair. See Buls, 55 S.W.3d at 209. Furthermore, counsel's specific question asking whether she thought "this is not the case for her" was vague. See Cortez, 159 S.W.3d at 93. It was not enough to lead to the natural inference that she could not act with impartiality. See Compton, 362 S.W.2d at 182. Thus, contrary to appellant's claim, veniremember 2's responses did not establish her bias or prejudice as a matter of law. See id. Her sympathy for doctors and nurses similarly did not compel the conclusion that she could not fairly assess the evidence. See El Hafi, 164 S.W.3d at 385 ("having a perspective based on 'knowledge and experience' does not make a veniremember biased as a matter of law.") Therefore, viewing the evidence in the light most favorable to the trial court's ruling, see Styers, 115 S.W.3d at 325, we conclude the trial court did not abuse its discretion in refusing to disqualify veniremember 2. See Tex. Gov't Code Ann. ' 62.105(4) (Vernon 2005); Malone, 977 S.W.2d at 564.

2. Veniremember 8

Appellant asserts that veniremember 8 established her bias or prejudice when she raised her hand in response to counsel's inquiry asking whether jurors would have trouble acting fairly in this case because of their belief that medical malpractice lawsuits hurt patient care and when she agreed that this case is "probably not the right case for [her]." Veniremember 8 also raised her hand in response to counsel's question inquiring whether the jurors could be fair in this case. Finally, veniremember 8 stated that working as a medical technologist at the medical center where appellee practices would not make it difficult for her to be fair and impartial. The trial court denied appellant's challenge for cause because he only heard veniremember 8 express "some sort of general discontent with malpractice," not that she was unable to fairly judge the evidence.

Although veniremember 8 raised her hand in response to counsel's questioning inquiring whether this was the case for her and whether the jurors could be fair in this case, this was not enough to establish actual bias, especially in combination with her statement that she could be fair. Without further and more specific questioning by counsel, her responses do not "lead to the natural inference" that she could not act with impartiality. See Compton, 362 S.W.2d at 182. Thus we conclude veniremember 8's responses did not establish her bias or prejudice as a matter of law. Id. We also conclude the trial court did not abuse its discretion when it overruled appellant's challenge for cause. See Tex. Gov't Code Ann. ' 62.105(4) (Vernon 2005); Malone, 977 S.W.2d at 564.

3. Veniremember 27

Appellant contends that veniremember 27 established her bias because she worked as a nurse practitioner, raised her hand in response to counsel's general questions asking jurors whether they could be fair in this case, agreed with counsel that "this is not the case for [her]," was once sued in a medical malpractice case that was dismissed, and works for a member of Citizens Against Lawsuit Abuse (CALA). The trial court denied appellant's challenge for cause because he thought that veniremember 27 did not say anything to establish her bias; rather, she only generally affirmed that this was not the case for her, and there was no evidence that she agrees with her employer's views on lawsuit abuse.

Like veniremembers 2 and 8, veniremember 27's response to counsel's general questions regarding whether the jurors could be fair in this case does not establish her prejudice or bias as a matter of law. See Buls, 55 S.W.3d at 209. Furthermore, similar to the situation with veniremembers 2 and 8, veniremember 27's general opinion that this was not the right case for her is not specific enough to establish her bias. See id. Nor does the fact that her employer is a member of CALA merit her disqualification, for the record does not indicate any support of her employer's beliefs. Finally, although veniremember 27's career in a healthcare field and the dismissed lawsuit against her appeared to result in sympathy for the defendant, it does not compel the conclusion that she could not fairly assess the evidence. See El Hafi, 164 S.W.3d at 385; Swap Shop, 365 S.W.2d at 154; see also Cortez, 159 S.W.3d at 93. Without more questioning to reveal an actual bias, veniremember 27's responses are not enough to compel the conclusion that she was biased or prejudiced as a matter of law. See Compton, 362 S.W.2d at 182. Furthermore, we cannot conclude that the trial court abused its discretion when it overruled appellant's challenge for cause because veniremember 27's state of mind did not lead to the natural inference that she would judge the evidence unfairly or favor one party over the other.[2] See Tex. Gov't Code Ann. ' 62.105(4) (Vernon 2005); Malone, 977 S.W.2d at 564.

Appellant's first issue is overruled.

B. Veniremembers 23 and 27

Worked in Medical Field

By his second issue, appellant asserts that veniremembers 23 and 27 should have been dismissed because they worked in a medical or healthcare field and believed that medical malpractice lawsuits hurt patient care, or, alternatively, their responses lead to the natural inference that the jurors would be unfair toward appellant.

1. Veniremember 23

Appellant contends that veniremember 23 established her bias or prejudice when she admitted she believed medical malpractice lawsuits hurt patient care. Although veniremember 23 raised her hand in response to counsel's general question asking the jurors whether they disapproved of medical malpractice cases, she twice responded that she could be fair. Similarly, her career in a MHMR facility alone did not establish veniremember 23's bias or prejudice. She said she would not give one side an advantage over the other and that she could be fair to both sides and judge the evidence fairly. The trial court denied appellant's challenge for cause because it only heard veniremember 23's expression of generic discontent with malpractice cases, not that she would judge the evidence unfairly.

Given her admission that she could judge the evidence fairly and the fact that no other evidence in the record showed any bias, we also conclude veniremember 23 did not establish her bias or prejudice as a matter of law. See Compton, 362 S.W.2d at 182. Moreover, the trial court did not abuse its discretion in denying appellant's challenge for cause as to veniremember 23. See Tex. Gov't Code Ann. ' 62.105(4) (Vernon 2005); Malone, 977 S.W.2d at 564.

2. Veniremember 27

In his second issue, appellant also challenges the trial court's denial of his challenge for cause as to veniremember 27 because of her career in the medical field and because she believed medical malpractice lawsuits hurt patient care. However, as set out above,veniremember 27's career as a nurse practitioner and the dismissed lawsuit against her were not enough to compel the conclusion that veniremember 27 was biased or prejudiced as a matter of law, or that the trial court abused its discretion in determining that she was not biased or prejudiced. See El Hafi, 164 S.W.3d at 385; Compton, 362 S.W.2d at 182; see also Tex. Gov't Code Ann. ' 62.105(4) (Vernon 2005); Malone, 977 S.W.2d at 564.

Accordingly, we overrule appellant's second issue.

C. Veniremembers 20 and 25

Physician-patient Relationships

By his third and fourth issues, appellant contends previous physician-patient relationships between appellee and veniremembers 20 and 25 established their bias or prejudice.

1. Veniremember 20

Appellant contends that veniremember 20 established her bias or prejudice because appellee had previously acted as her physician. The trial court denied appellant's challenge for cause because veniremember 20 stated that she could be fair and because no other evidence established her bias or prejudice.

Veniremember 20 stated that she was appellee's former patient. Yet she twice responded that she could judge the evidence fairly and impartially, and the record contains no responses rebutting her statement that she could act fairly and impartially. Finally, veniremember 20 did not raise her hand in response to counsel's question asking if any juror had a bias or prejudice that would render her unfit to hear the case.

The mere existence of a past physician-patient relationship, without a more definitive expression of a resulting bias on her part, does not establish that the state of mind of veniremember 20 lead to the natural inference that she would not act with impartiality. See Compton, 362 S.W.2d at 182; see also Buls, 55 S.W.3d at 209. Thus, we cannot conclude that veniremember 20 was biased as a matter of law. See Compton, 362 S.W.2d at 182. Furthermore, we conclude the trial court did not abuse its discretion in determining veniremember 20 could fairly assess the evidence and, thus, was not biased or prejudiced. See Tex. Gov't Code Ann. ' 62.105(4) (Vernon 2005); Malone, 977 S.W.2d at 564.

2. Veniremember 25

Appellant contends that veniremember 25 established her bias or prejudice because her nephew had been appellee's patient. However, because veniremember 25 said she could be fair to both sides and no other evidence established any bias or prejudice, the trial court denied appellant's challenge for cause.

Although veniremember 25 previously accompanied her nephew on visits to see appellee, she never stated or implied that her nephew's past physician-patient relationship with appellee would in any way affect her ability to fairly judge appellee. Furthermore, veniremember 25 twice stipulated that she could be fair and that she would not favor appellee over appellant. The record contains no additional evidence that veniremember 25 might have been biased. Thus, contrary to appellant's claim, veniremember 25's nephew's past physician-patient relationship with appellee by itself does not establish her bias or prejudice as a matter of law. See Compton, 362 S.W.2d at 182. Furthermore, the trial court did not abuse its discretion when it denied appellant's challenge to dismiss veniremember 25. See Tex. Gov't Code Ann. ' 62.105(4) (Vernon 2005); Malone, 977 S.W.2d at 564.

We overrule appellant's third and fourth issues.

V. Conclusion

We affirm the trial court's judgment.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 25th day of August, 2005.

[1]Bias is a tendency to favor one side over the other. Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963). Prejudice is defined as prejudgment and includes bias. Id.

[2]Appellant relies on Shepherd v. Ledford, 962 S.W.2d 28, 34 (Tex. 1998) for his argument that challenged veniremembers, 2, 8, and 27 were prejudiced as a matter of law. In Shepherd, the Texas Supreme Court held that the trial court correctly disqualified three jurors as a matter of law because they openly expressed bias as a result of medical treatment experienced by family members and thus, were prejudiced as a matter of law. Id. In this case, however, unlike the disqualified jurors in Shepherd, we have determined that no actual bias was established as to veniremembers 2, 8, and 27. We cannot conclude that they openly expressed a bias and were therefore prejudiced as a matter of law.