Crescencio Alcazar and Monica Alcazar v. United of Utah Hospitals & Clinics, et al.

1 Plaintiffs Crescencio and Monica Alcazar appeal the verdict
from their jury trial, arguing that the trial court abused its
discretion in refusing to ask their requested voir dire questions
concerning the prospective jurors' exposure to information about
medical malpractice and tort reform issues. We reverse and
remand for a new trial.

BACKGROUND

2 Early in the morning on May 4, 2002, Mr. Alcazar went to the
University of Utah Emergency Department (the Emergency
Department) complaining of intermittent chest pain that had
occurred over the prior three days, but stated that his pain was
low at the time the Emergency Department physicians examined him.
Upon examination, the Emergency Department physicians considered
myocardial infarction, or heart attack, as a possible cause of
Mr. Alcazar's symptoms but thought it was not likely given Mr.
Alcazar's reported symptoms, normal EKG results, and the
physicians' physical examination findings. Instead, Mr. Alcazar
was diagnosed with atypical chest pain and was monitored until
being discharged at 4:00 a.m. in stable condition. Mr. Alcazar
was instructed to return to the Emergency Department if his
symptoms worsened.

3 Mr. Alcazar returned to the Emergency Department at 12:40
p.m. that same day, again complaining of continuing intermittent
chest pain. However, this time he reported high pain levels, as
well as symptoms of nausea, vomiting, and shortness of breath.
Given these symptoms and the fact that it was Mr. Alcazar's
second visit to the Emergency Department, the attending physician
ordered blood testing. The blood testing showed elevated cardiac
enzyme levels consistent with acute coronary syndrome. Mr.
Alcazar was admitted to the University of Utah Hospital where
angiography revealed coronary artery disease, which was
successfully treated with the placement of a stent.

4 On December 23, 2003, Plaintiffs filed a medical malpractice
action against Defendants University of Utah Hospitals and
Clinics, the Emergency Department, John Middleton, M.D., and the
State of Utah (collectively, Defendants). After discovery was
completed, the case was set for trial beginning November 13,
2006. At a November 7, 2006 pretrial conference, the trial court
reviewed and ruled on the parties' proposed jury voir dire
questions. At the pretrial conference, Plaintiffs' counsel
presented Plaintiffs' First Amended Requested Voir Dire of
Potential Jurors, which contained nineteen proposed voir dire
questions designed to elicit a potential juror's knowledge of and
bias toward medical malpractice cases. These questions included
the following:

1. Do you believe a lawsuit is a proper
method of resolving disputes concerning
compensation for negligent medical care?

. . .
2. Have any of you watched, read, or heard

anything that suggest a "lawsuit crisis" or
the need for "tort reform?" . . .

a. Do you think the article, program,
etc. made some good points?

b. Did you agree with the points made?

. . .

c. Would you be inclined to reduce the
damage award, if any, in this case,
because of what you have watched, read,
or heard? . . .

3. Have any of you watched, read[,] or heard
anything which suggests that jury verdicts
are too high or unreasonable? What have you
seen, heard[,] or read? . . .

a. Do you personally believe that jury
verdicts are unreasonable?

b. Do you believe that monetary limits
should be placed upon the amounts which
a jury can award to an individual who
sues for personal injuries?

. . . .

5. Have any of you watched, read, or heard
anything to indicate that jury verdicts for
plaintiffs in personal injury or medical
malpractice cases result in higher insurance
premiums, [a]ffect the availability of
insurance, or result in higher medical costs
for consumers? Please explain.

a. What do you remember about it?
Please explain.

b. Do you think the article, program,
etc. made some good points? Please
explain.

c. Do you personally believe that jury
verdicts for plaintiffs in personal
injury cases result in higher insurance
premiums or [a]ffect the availability of
insurance? . . .

. . . .

8. Do any of you have any negative feelings
about lawyers who seek compensation for those
who have suffered medical malpractice? . . .

. . . .

11. Have you or any of your close relatives
or friends worked or do you or they now work
in any aspect of the insurance industry
(insurance salesman, employee of an insurance
company, adjuster, underwriter, or anything
similar)? Please explain. If yes, would
that [a]ffect the way you might view this
case?

. . . .

15. Have you or a close friend or relative
ever been sued in a medical malpractice
lawsuit? Please explain.
(Citations omitted.)

5 At the pretrial conference, the trial court reviewed
Plaintiffs' requested voir dire and ruled that it would not ask
questions 1, 2, 3, 5, 8, 11, and 15, and their subparts.
Instead, the court stated that it would ask questions similar in
substance to some of Plaintiffs' voir dire questions. For
example, Plaintiffs requested jury voir dire question 11 on the
issue of work experience in the insurance industry. The trial
court ruled that it would not ask that particular question but
would instead ask potential jurors whether they had any
experience working in health care. Plaintiffs also requested
jury voir dire question 15 on the issue of whether prospective
jurors or their close friends or relatives had ever been sued in
a medical malpractice case. The trial court again ruled that it
did not need to ask that question because it would cover more
than just malpractice cases by asking prospective jurors whether
they or a close relative or friend had ever been a party or
witness in any kind of lawsuit. When Plaintiffs' counsel
repeatedly attempted to persuade the trial court to give the
requested voir dire questions, including briefing the rather
direct authority from this court on the issue, the court declined
and offered its own unique philosophical approach to voir dire in
medical malpractice cases.

6 Before the trial began, voir dire of the thirty-five member
panel was conducted by both the trial court and counsel for the
parties. Jury voir dire lasted approximately three hours and
included private interviews with eighteen members of the venire
panel. After the trial court brought a number of panel members
in for private interviews, counsel for both parties were given
the opportunity to identify any other panel members they wanted
to interview privately. In response to the trial court's
invitation, Plaintiffs' counsel identified one panel member who
was brought in for a private interview. This panel member's wife
worked for a pediatrician. Ignoring the trial court's direct
instruction not to ask certain questions, Plaintiffs' counsel
asked him if his wife had ever expressed negative feelings about
medical malpractice cases or if he had any feelings one way or
the other about medical malpractice cases.

7 While the trial court did not ask any of the specific tort
reform/medical malpractice questions that Plaintiffs proposed and
did not allow Plaintiffs' counsel to do so, it did ask the venire
panel the following question: "Has any of you or a close friend
or relative personally formed an opinion either in favor or
opposed to tort reform or been a member of any organization that
has?" In response to this question, one panel member asked,
"What's tort reform?" The trial court responded as follows: "I
thought we'd get questions. If you don't know what it is, you
don't need to worry about it, okay? Thank you."

8 The jury was empaneled and the four-day trial began on
November 13, 2006. The jury returned a unanimous verdict finding
that Defendants were not negligent. Plaintiffs now appeal.

ISSUE AND STANDARD OF REVIEW

9 On appeal, Plaintiffs argue that the trial court erred in
failing to ask their requested voir dire questions. Challenges
to the trial court's management of jury voir dire are reviewed
under an abuse of discretion standard. See Barrett v. Peterson,
868 P.2d 96, 98 (Utah Ct. App. 1993).

ANALYSIS

10 Voir dire serves two distinct and important purposes:
first, "to allow counsel to uncover biases of individual jurors
sufficient to support a for-cause challenge" and second, "to
gather information enabling counsel to intelligently use
peremptory challenges." Id. Under Utah law, "a trial judge
should liberally allow questions designed to discover attitudes
and biases, both conscious and subconscious, even though such
questions go beyond that needed for challenges for cause." Evans
v. Doty, 824 P.2d 460, 462 (Utah Ct. App. 1991), cert. denied,
836 P.2d 1383 (Utah 1992) (internal quotation marks omitted).
This court has held that the questions a trial court asks to
uncover such attitudes and biases can include questions "about [a
potential juror's] exposure to tort-reform and medical negligence
propaganda." Id. at 467.

11 In Evans v. Doty, 824 P.2d 460 (Utah Ct. App. 1991), cert.
denied, 836 P.2d 1383 (Utah 1992), this court determined that the
trial court abused its discretion in failing to ask jurors
questions about their exposure to tort reform information. See
id. at 462. In Evans, the plaintiff's counsel requested that the
trial court ask jurors both specific questions about a Time
magazine article entitled, "Sorry, Your Policy Is Cancelled," and
general questions about medical negligence and tort reform. See
id. These questions included:

Have you read magazine or newspaper articles
or other literature about medical negligence?
Did any of you read Time magazine in March,
1986?

Have you ever signed any petition on the
issue of negligence?

Have you seen anything in your doctor's
office about negligence?

Have you discussed [medical negligence] with
your family doctor or friends?

Id. at 462-63 (alteration in original). Instead of asking the
plaintiff's proposed questions, the trial court asked the
following two questions:

Now, many of you have heard and read
articles, and there have been television
programs, with regard to negligence on the
part of doctors. Do any of you have any
strong feelings as a result of seeing or
reading anything about medical negligence
that would make it so that you couldn't be
fair and impartial here today?

Now, do any of you have any strong feelings
about anyone bringing a lawsuit against a
doctor?

Id. at 463.

12 We concluded that although the trial court did ask whether a
potential juror's exposure to medical negligence information
would prevent that juror's ability to be fair and impartial, this
question was only effective in identifying proper for-cause
challenges. See id. at 467. The trial court's "questions did
not allow the plaintiff an opportunity to know which of the
prospective jurors had been exposed to tort reform propaganda,
totally aside from whether the prospective jurors would
themselves admit such exposure had changed their attitudes or
biased them." Barrett, 868 P.2d at 101 (explaining our holding
in Evans); see also Evans, 824 P.2d at 467. Essentially, we
concluded that "the trial judge's line of questions ignored [the
plaintiff's] need to gather information to assist in exercising
her peremptory challenges." Evans, 824 P.2d at 467.

13 Our decision in Evans was reiterated in Barrett. In that
case, the trial court again failed to ask potential jurors
specific tort reform/medical malpractice questions similar to the
questions at issue in Evans. See Barrett, 868 P.2d at 97. The
plaintiff's counsel attempted to ask during voir dire, "(1)
whether [the potential jurors] had 'read magazine or newspaper
articles or other literature about medical negligence,' and (2)
whether they had 'heard anything on television or radio about the


medical negligence issue.'" Id. at 102. As we noted in Barrett,
these questions, as well as several other tort reform questions
requested by the plaintiff, were "identical to those submitted by
the plaintiff in Evans." Id. at 102 n.7. We concluded that "the
trial court should have asked the prospective jurors appropriate
preliminary questions . . . designed to detect, initially,
whether any of the prospective jurors had been exposed to tort
reform and medical negligence propaganda." Id. Ultimately, we
decided that "the trial court's line of questioning ignored [the
plaintiff's] need to garner information necessary both to detect
actual bias and to intelligently exercise his peremptory
challenges." Id.

14 Under Evans and Barrett, we conclude that Plaintiffs were
not given an opportunity to "determine which, if any, prospective
jurors had been exposed to tort reform propaganda, much less
whether that exposure produced hidden or subconscious biases
affecting the jurors' ability to render a fair and impartial
verdict." See id. The requested voir dire questioning in this
case was "no less neutral or general than the preliminary
questions required under the voir dire framework outlined in
Evans." See id. After Plaintiffs' counsel made repeated
attempts to introduce the requested voir dire questions, the
trial court refused to follow precedent, citing an ideological
difference with our prior case law. We acknowledge that the
trial court did ask one question: "Has any of you or a close
friend or relative personally formed an opinion either in favor
or opposed to tort reform or been a member of any organization
that has?" However, this question does not rise to the level of
questioning necessary under Evans and Barrett, especially given
the panel's response. Specifically, one panel member asked,
"What's tort reform?" This does not necessarily indicate that
the panel was not exposed to tort reform material, but instead
that the panel was unfamiliar with the terminology. The trial
court's response did not offer any aid to the panel's
understanding or to Plaintiffs' need to uncover the panel's
exposure to tort reform/medical malpractice material. The trial
court simply stated, "I thought we'd get questions. If you don't
know what it is, you don't need to worry about it, okay?" Thus,
we conclude that the trial court abused its discretion in
refusing to ask Plaintiffs' requested voir dire questions or
questions similar in content regarding tort reform/medical
malpractice.1

2. Furthermore, we note that in Evans we adopted a new rule
concerning voir dire. It is unsurprising that we determined any
error in that case was harmless. However, in this case, the
trial court was clearly made aware of the long-standing,
controlling law of Evans and Barrett and was given written voir
dire questions to implement their directives.

15 Under Evans and Barrett, our inquiry does not end once we
have established that the trial court abused its discretion in
failing to ask any meaningful tort reform or medical malpractice
questions during voir dire. See Barrett v. Peterson, 868 P.2d
96, 102 (Utah Ct. App. 1993). We must next determine if such
error is reversible. "[S]ubstantial impairment of the right to
informed exercise of peremptory challenges is reversible error."
Id. (internal quotation marks omitted). We will "reverse if
considering the totality of the questioning, counsel [was not]
afforded an adequate opportunity to gain the information
necessary to evaluate the jurors." Id. at 102-03 (alteration in
original) (internal quotation marks omitted). We conclude that
the trial court's error is reversible.

16 In Evans, we decided that the trial court's error in
refusing to ask certain tort reform voir dire questions was
harmless. See Evans v. Doty, 824 P.2d 460, 467 (Utah Ct. App.
1991). During a voir dire that lasted over two hours, the trial
court asked questions regarding whether the potential jurors had
seen anything or heard anything about medical negligence and
whether what they saw or heard would affect their ability to be
impartial. See id. The trial court also asked whether potential
jurors had strong feelings about lawsuits against doctors. See
id.2

17 Conversely, in Barrett we concluded that the trial court's
error in failing to ask the plaintiff's requested voir dire
questions about tort reform was reversible error because the voir
dire was "much less extensive." 868 P.2d at 103. In Barrett,
"the trial court did not so much as mention the subject of
articles and programs on medical negligence, nor did it verbalize
the concept of lawsuits against doctors prompting discernible
emotions." Id. We determined that the trial court's failure to
ask the appropriate tort reform questions during voir dire made
the plaintiff unable to "identify exposed jurors" and,
accordingly, the plaintiff "was denied information helpful in the
intelligent use of his peremptory challenges." Id. at 104. Thus
we concluded that the error in Barrett was prejudicial.

18 In this case, we acknowledge that the overall voir dire was
quite extensive, lasting over three hours. The trial court also
interviewed many potential jurors independently and gave
Plaintiffs' counsel an opportunity to individually interview the

potential jurors. However, Plaintiffs' counsel was not allowed
to ask any of the questions he had submitted about attitudes
toward medical malpractice cases, insurance rates, or tort
reform. The only question the trial court asked regarding tort
reform is: "Has any of you or a close friend or relative
personally formed an opinion either in favor or opposed to tort
reform or been a member of any organization that has?" But as we
stated earlier, this question is completely inadequate to
recognize a potential juror's exposure to tort reform information
as evidenced by one panel member's responding question and the
fact that the trial court never answered that question. Every
other question the trial court asked was directed at uncovering a
potential juror's general bias and prejudice, not a potential
juror's exposure to tort reform or medical malpractice
information, or any specific bias they had in the area. The
trial court, on the other hand, allowed the potential jurors to
be questioned as to both their experience with doctors and
hospitals and any negative aspects of this experience. The trial
court simply left Plaintiffs' counsel without the necessary
information needed to ferret out a potential juror's actual bias
or to intelligently exercise peremptory challenges, thus
prejudicing Plaintiffs.

* * *

http://www.utcourts.gov/opinions/appopin/alcazar060508.pdf
(Key Words: Medical Malpractice)

¶19 Under our prior, clear precedents, we hold that the trial
court erred in refusing to ask Plaintiffs' requested voir dire
questions regarding tort reform and medical malpractice. We
further hold that the trial court's error was prejudicial because
the trial court's refusal to ask Plaintiffs' counsel's voir dire
questions or questions similar in nature substantially impaired
his ability to challenge jurors for cause or to exercise his
peremptory challenges. Accordingly, we reverse and remand for a
new trial.

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