Black v. CSX Transportation (concurring)
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No. 33218 Sally Black, Executrix of Estate of Charles A. Black, et al., v. CSX Transportation, Inc. FILED August 8, 2007 Starcher, J., concurring: released at 10:00 a.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA From the very beginning of the jury selection process, the potential juror at issue in this case, Dr. Polack, demonstrated clear bias and prejudice in his statements. In O Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002), this Court made a firm rule about prospective jurors who exhibit prejudice or bias about a case: the juror is, as a matter of law, disqualified. As we said in Syllabus Point 5 of O Dell: Once a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair. This is not a discretionary test which requires subtle balancing by a trial judge, as the dissenting opinion might suggest. It is an absolute, mandatory, black-letter, and therefore easy-to-apply rule. The dissenting opinion opens with a question asking plaintively, where did the trial judge go wrong? The answer is that the trial judge with some help from counsel for the defendant forgot that Syllabus Point 5 of O Dell is a mandatory rule. Dr. Polack gave statements evidencing a clear, but general, dislike of litigating plaintiffs and their attorneys, and a clear distrust of information about the dangers of exposure to asbestos. In other words, Dr. Polack indicated a prejudice against one of the litigants, and a bias to reject that side s 1
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