Friday, October 5, 2012
We The Jury: Court Of Appeals Of Arkansas Refuses To Grant New Trial Based On Jury Deceit During Voir Dire
In order to warrant the granting of a new trial on the grounds of juror misconduct, a party must first demonstrate that a juror failed to honestly answer a question or deliberately concealed a matter during voir dire, and must then further show that a correct response would have provided a valid basis for a challenge for cause....Additionally, the complaining party has the burden of establishing that (1) diligence was used to ascertain the desired information and that (2) he made known to the juror the specific information desired....We will affirm where there is substantial evidence to support a circuit court's finding as to whether a party has met its burden. Houchins v. Home Care Professionals of Arkansas, Inc., 2012 WL 4664481 (Ark.App. 2012).
In Houchins, the Court of Appeals of Arkansas refused to grant a new trial based upon the above test, but I am quite confused by this conclusion.In Houchins,
In May 2006, HCPA was hired to care for both [Joyce] Estes and her husband in their home. Estes was eighty-five years old and suffered from Alzheimer's disease. In April 2007, Estes fell in her bathroom while [HCPA employees Lisa] Scott and [Juanita] Bradley slept. She later died of her injuries in May 2007.
On February 15, 2008, [administratrix Kay] Houchins sued HCPA, Scott, and Bradley for wrongfully causing Estes's death. The complaint asserted claims for negligence, breach of contract, and wrongful death.
At the close of trial, the jury found for the defendants, prompting Houchins to bring a motion for a new trial.
In support of Houchins's motion for new trial, Connie Grace, one of her attorneys, submitted an affidavit stating that during voir dire, Henrick Larsen did not respond when the potential jurors were asked if any of them had experience caring for the elderly, including a parent or other family member, or when asked if any of them had been around someone who fell or had witnessed a fall. Grace also stated that, after the trial, she learned from Denise Graham, another member of the jury, that Larsen had told her...that he cared for his invalid wife, that she had fallen, and that he could be found liable.
In rejecting Houcins' motion, the Court of Appeals of Arkansas used the language that led this post and then found that
We cannot say that Houchins has met her burden of establishing juror misconduct on this point. The abstract shows that Houchins's attorney asked the members of the venire if any of them had tried to personally care for an aging parent by living with them. A number of hands were raised. However, counsel for Houchins failed to ask appropriate follow-up questions. It was left to HCPA's attorney to ask more specific questions of juror Larsen, including the question if Larsen had a loved one who needed home care. Larsen responded that his parents needed home care, but that he was working in Denmark and unable to provide that care. Neither party specifically asked and Larsen did not mention his wife. If the parties fail to ask a pertinent question and no false answer was made, the verdict is not void or voidable.
Am I missing something? According to the affidavit, two questions were asked of prospective jurors: (1) whether any of them had experience caring for the elderly, including a parent or other family member; and (2) whether any of them had been around someone who fell or had witnessed a fall? And, according to the affidavit, Larsen did not respond affirmatively to either question. Now, I'm not sure whether Larsen's wife was elderly, so I'm not sure whether he needed to respond affirmatively to the first question. But he sure needed to respond affirmatively to the second question, assuming that the affidavit was accurate.
So, assuming that Larsen should have responded affirmatively to the first and/or second question, I'm completely baffled by the logic of the Court of Appeals of Arkansas. According to the court, "counsel for Houchins failed to ask appropriate follow-up questions." But why in the world would counsel for Houchins ask follow-up questions if Houchins did not respond affirmatively to either of the above questions?
But maybe, as noted above, I'm missing something. If Larsen did not answer affirmatively to question #1, why did "HCPA's attorney...ask more specific questions of juror Larsen, including the question if Larsen had a loved one who needed home care." I don't get it.