CHERYL BYNUM V THE ESAB GROUP INC
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED SEPTEMBER 24, 2002
SHERYL BYNUM,
Plaintiff-Appellee,
v
No. 119005
THE ESAB GROUP, INC.,
Defendant-Appellant.
________________________________
PER CURIAM
This
history.
product
It
is
liability
now
litigation
before
this
application for leave to appeal.
has
Court
on
an
extensive
defendant’s
We reverse the judgment of
the Court of Appeals and the order of the circuit court that
granted plaintiff’s motion for new trial.
The judgment of no
cause of action is reinstated.
I
Plaintiff was injured in 1988 while operating a robotic
welding system that was manufactured by defendant.
has been tried three times.
The case
In the first trial, the jury
awarded plaintiff $50,000 for economic and noneconomic damages
and reduced the award by finding that plaintiff had been
partially at fault for her injuries.
The trial court granted
plaintiff’s motion for a judgment notwithstanding the verdict
regarding her negligence, and additur of $849,750 or a new
trial.
The
trial
court
agreed
with
plaintiff
that
the
comparative negligence verdict was contrary to the evidence.
It ordered a new trial, limited to the issue of damages.
At
the conclusion of the second jury trial, a verdict in excess
of $2 million was returned.
The defendant appealed both the
decision granting a second trial and the verdict of the second
trial.
The Court of Appeals held that the trial court did not
err in granting a judgment notwithstanding the verdict, but
said
the
second
trial
determination of damages.
trial on all issues.1
application
for
should
not
have
been
limited
to
The Court of Appeals ordered a new
This Court denied the defendant’s
leave
to
appeal
and
the
plaintiff’s
application for leave to appeal as cross-appellant.2
The matter was returned to the circuit court where a
third trial was held.
of
action.
The
The jury returned a verdict of no cause
plaintiff
filed
1
a
motion
for
judgment
Unpublished opinion per curiam, issued June 4, 1996
(Docket No. 173473).
2
455 Mich 865 (1997).
2
notwithstanding the verdict or, alternatively, for a new
trial.
The trial court granted the motion for a new trial
following an evidentiary hearing on plaintiff’s claim that
several jurors failed to disclose racial biases.3
The trial
court reasoned that under MCR 2.611 a new trial was required
because of juror misconduct even though the court could not
and did not conclude that the jury verdict was tainted by the
alleged undisclosed prejudice.
The defendant sought leave to appeal.
The Court of
Appeals granted defendant’s application and stayed trial court
proceedings pending resolution of the appeal.4
Following
submission of the case, the Court of Appeals affirmed the
trial court’s order granting a new trial.5
The Court found no
abuse of discretion in the trial court’s ruling. No error was
perceived in the trial court’s crediting the testimony that
jurors were biased, but failed to reveal that bias in voir
dire.
The Court said the bias would have provided a valid
basis for a challenge for cause.
We review the trial judge’s factual findings for clear
3
The plaintiff and her trial attorney were African-
Americans. There were no African-American jurors.
4
218309).
Unpublished order, entered May 3, 1999 (Docket No.
One judge dissented.
5
Unpublished opinion per curiam, issued March 23, 2001
(Docket No. 218309).
3
error.
(2001).
People v Attebury, 463 Mich 662, 668; 624 NW2d 912
The decision to grant a new trial is reviewed for
abuse of discretion.
29,
34;
632
NW2d
Kelly v Builders Square, Inc, 465 Mich
912
(2001).
Where
the
trial
court
misapprehends the law to be applied, an abuse of discretion
occurs.
Miller v Varilek, 117 Mich App 165, 170; 323 NW2d 637
(1982).
We reverse and remand for reinstatement of the
judgment on the jury verdict in the last trial.
II
Jurors are presumed to be qualified.
The burden of
proving the existence of a disqualification is on the party
alleging it.
People v Collins, 166 Mich 4, 9; 131 NW 78
(1911).
Voir dire is the process by which litigants may
question
prospective
jurors
so
that
challenges
prospective jurors can be intelligently exercised.
Harrell, 398 Mich 384, 388; 247 NW2d 829 (1976).
to
the
People v
Prospective
jurors are subject to challenge for cause under MCR 2.511(D).6
6
Presumably, had the matter been explored on voir dire
in this trial, plaintiff would have relied on MCR 2.511(D)(3),
(4), or (5), to challenge the jurors. The rules states:
(D) Challenges for Cause.
The parties may
challenge jurors for cause, and the court shall
rule on each challenge.
A juror challenged for
cause may be directed to answer questions pertinent
to the inquiry. It is grounds for a challenge for
cause that the person . . . :
* * *
4
The voir dire in this case was of a general nature.
The
plaintiff’s inquiries to the jury panel did not raise the
question of racial prejudice, except for a passing mention by
counsel about the desire not to have racial issues injected
into the case.
It was the duty of counsel to ferret out
potential bases for excusing jurors.
Mich 154; 22 NW 274 (1885).
See People v Scott, 56
No challenges for cause were made
to the three jurors who became the subject of plaintiff’s
motion for new trial.
However, on the basis of a posttrial
evidentiary hearing, the trial court determined that the three
jurors lied during voir dire and found that misconduct to be
flagrant.
Without determining the effect on the verdict or
whether counsel would have exercised challenges to the jurors
if different answers had been given, the trial court concluded
plaintiff was entitled to a new trial.
We disagree.
III
The jurors who were questioned at the evidentiary hearing
averred that racial prejudice did “not in any way” affect the
(3) is
attorney;
biased
for
or
against
a
party
or
(4) shows a state of mind that will prevent
the person from rendering a just verdict, or has
formed a positive opinion on the facts of the case
or on what the outcome should be;
(5) has opinions or conscientious scruples
that would improperly influence the person's
verdict . . . .
5
verdict.
Contrary to plaintiff’s claims of bias against her,
the record reveals that jurors commented sympathetically among
themselves about the plight of the plaintiff.
Plaintiff
relied on the testimony of one juror who said she inferred
from various comments that others on the jury panel possessed
racial animus.7
The trial court accepted, on the sole basis
of this juror’s testimony, plaintiff’s claim that the three
jurors concealed their racial animus during voir dire and that
the animus had been palpable.8
Findings of fact are reviewed for clear error. A finding
is clearly erroneous when, although there is evidence to
support it, the reviewing court, on the whole record, is left
with a definite and firm conviction that a mistake has been
made.
Tuttle v Dep’t of State Hwys, 397 Mich 44, 46; 243 NW2d
244 (1976).
The sole testimony presented in support of plaintiff’s
7
Such comments consisted of the following: (a) One juror
allegedly talked about being on the freeway in Los Angeles at
the same time O. J. Simpson was being pursued. (b) One juror
testified that defense counsel, an African-American, insulted
another juror’s intelligence by explaining the phrase “in lieu
of.” (c) One juror allegedly asked whether defense counsel,
an African-American, thought he was Johnny Cochran. (d) One
juror allegedly declined to discuss a John Grisham book, “A
Time to Kill,” characterizing it as a “racial book.” (e) One
juror allegedly observed that the mother of the plaintiff, who
was an African-American, was white or “light complected.”
8
The complaining juror was one of two dissenting jurors
in a six to two jury verdict.
6
claim of juror misconduct during voir dire came from a juror
who was not able to point to specific comments of other jurors
that evidenced racial animus. Rather, the juror relied on her
subjective impressions of the motivations and meanings of the
comments
of
the
other
jurors.
In
this
regard,
it
is
significant that the plaintiff’s claim for a new trial is
based on hearsay statements of jurors that are said to be
indicative of possible bias.
The challenged jurors, when
questioned posttrial, denied such bias.
The testimony of the
single juror who said she perceived racial overtones in the
comments of her fellow jurors comes perilously close to being
the type of impeachment of a verdict found impermissible in
Shiner v Detroit, 150 Mich App 420; 387 NW2d 872 (1986).
We also are concerned with the adequacy of the facts
supporting the findings of the trial court.
The categorical
denial of bias by the challenged jurors was entitled to some
weight,
particularly
when
balanced
against
the
tentative
impression of the sole juror who alleged the presence of
racial animus.
The juror making the bias allegations was
repeatedly asked for specific examples of the racial animus
she attributed to her fellow jurors. She was unable to recall
more than a few innocuous comments that do not demonstrate the
level of racial animus that would have led to disqualification
of the juror making the comment.
7
Our review on the whole
record leaves us with a definite and firm conviction that a
mistake has been made.
The jurors were not asked during voir
dire about their racial attitudes or if such attitudes would
affect their ability to judge the case impartially.
Further,
absent proof of actual prejudicial effect on the verdict or
proof that a challenge for cause would have been successful,
it was an abuse of discretion to grant a new trial.
Citizens
Commercial & Sav Bk v Engberg, 15 Mich App 438; 166 NW2d 661
(1968), McDonough Power Equipment, Inc v Greenwood, 464 US
548; 104 S Ct 845; 78 L Ed 2d 663 (1984).
As we have recently
stated, a grant of a new trial is governed by MCR 2.611(A)(1).
The rule clearly requires that a party seeking a new trial
establish that substantial rights were materially affected.
Kelly, supra at 38.
No such determination or claim was made
in this case.
There was no finding by the trial court that any juror
lied
during
determination
voir
that
dire
about
juror
racial
bias.
misconduct
Absent
occurred,
a
MCR
2.611(A)(1)(b), the plaintiff cannot establish either actual
prejudice under Engberg or that her substantial rights were
materially affected as set forth in Kelly.9
The grant of a
new trial was contrary to the facts and the court rule and
9
The trial court incorrectly relied on People v Kage,
193 Mich App 49; 483 NW2d 424 (1992), which was reversed by
this Court, 439 Mich 1022 (1992).
8
thus an abuse of discretion.
IV
The
order
granting
a
new
trial
is
reversed.
The
plaintiff’s application for leave to appeal as cross-appellant
is denied.
We remand the case to the trial court for
reinstatement of the judgment on the jury verdict.
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred.
CAVANAGH , J., concurred in the result only.
KELLY , J., would not decide this case by opinion per
curiam, but would grant or deny leave to appeal.
9
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