                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 September 7, 2000 Session

                   ROBERT A. MALLARD, DECEASED, ET AL.
                    v. THOMAS E. TOMPKINS, M.D., ET AL.

                     Appeal from the Circuit Court for Davidson County
                        No. 98C-870    Thomas W. Brothers, Judge



                    No. M2000-00162-COA-R3-CV - Filed October 5, 2000


The trial court entered judgment on a jury verdict for the defendant. The plaintiff argues on appeal
that the trial court committed reversible error by failing to exclude from the jury a woman who
revealed that she knew some members of the defense attorney’s family. We affirm the trial court.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                Affirmed and Remanded

BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL , JJ., joined.

David W. Piper, Woodbury, Tennessee, for the appellants Robert A. Mallard, Deceased, and Myrtle
Mallard Oldham.

Thomas A. Wiseman, III and Margaret J. Moore, Nashville, Tennessee, for the appellees, Thomas
E. Tompkins, M.D.; Nashville Orthopaedic Associates, P.A., d/b/a Tennessee Orthopaedic
Associates, P.A.; and a/k/a Tennessee Orthopaedic Alliance, P.A.

                                            OPINION

                                     I. TRIAL AND VERDICT

        In 1995, Robert Mallard and his wife Myrtle brought a medical malpractice suit against Mr.
Mallard’s orthopedic surgeon, the surgeon’s practice group, and Baptist Hospital. They claimed that
negligence by the defendant surgeon during the replacement of Mr. Mallard’s artificial knee joint
caused him to suffer circulatory problems that ultimately resulted in the amputation of his leg. The
plaintiffs took a voluntary non-suit on March 27, 1997. Robert Mallard died the following year from
unrelated causes. His widow refiled the malpractice complaint on March 27, 1998. Baptist Hospital
was dismissed by an agreed order on May 28, 1999.
        The trial of the case began on October 4, 1999. After the jury returned a verdict for the
defendants, the plaintiff filed a Motion for New Trial. In her motion, she claimed that the jury in this
case was constitutionally defective, because it was tainted by the likelihood of bias or prejudice on
the part of one of the jurors. The trial judge heard argument on the motion, but he denied the Motion
for New Trial. He also sua sponte directed a verdict for the defendant, on a finding that no
reasonable jury could find in favor of the plaintiff, and that the evidence preponderated in favor of
the defendant. This appeal followed.

                                            II. VOIR DIRE

          The plaintiff’s problems began on the first day of voir dire, when her attorney handed up a
list of four peremptory challenges to jurors he wished to exclude. The list was hand-written and used
only the last names of the challenged jurors. The fourth name was undecipherable, but the trial judge
thought he could make it out, and printed the name that he mistakenly believed it to be. After
returning the challenge slips to the attorneys, he announced the names of the four jurors to be struck.
As a result, one juror that the plaintiff wanted on the panel was excluded, and one that she wished
to exclude was allowed to remain. However the plaintiff’s attorney did not bring the error to the
attention of the court until the end of the first day’s proceedings, and the trial judge declined to grant
him an additional peremptory challenge.

         Voir dire had begun with thirteen prospective jurors in the jury box, and seven others on a
bench behind the counsel table for the plaintiffs. Another twenty prospective jurors were seated in
the back of the courtroom. The trial judge instructed the attorneys to address their questions to those
in the jury box and behind the counsel table. Those in the back of the courtroom were not required
to answer the questions posed by the attorneys. The attorneys asked whether the prospective jurors
knew any of the parties or their attorneys.

        Jennifer Murphy had been seated in the back of the courtroom during the first day. She was
called to the jury box the following day, and another attorney resumed questioning on behalf of the
plaintiff. He asked her whether she could be fair to both sides, and she answered that she could. He
also asked whether she had friends or family members who were physicians. Ms. Murphy was not
asked if she knew the parties or their attorneys. She was eventually chosen for the jury and sworn
in.

        After the plaintiff’s attorney completed his opening argument, Ms. Murphy sent a note up
to the judge, revealing that she knew some family members of one of the attorneys involved in the
case. The judge called a jury-out hearing, in which he and the attorneys for both sides questioned
Ms. Murphy. She stated that she knew the parents of Thomas Wiseman III, the defendant’s lead
attorney. She also revealed that she and his wife belonged to the same church, and that she had
played tennis with his sister a few days earlier. She explained that she did not come forward earlier
with this information because she was not asked, and she was not sure that it was relevant. She said
that she did not know Mr. Wiseman himself, and he said that he did not know her personally.



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         Mr. Wiseman asked Ms. Murphy whether, despite her connections with his family, she could
listen to the evidence and be a fair and impartial juror. She responded “I’d like to think that I could,
yes.” At this point, the plaintiff’s attorney moved that she be dismissed for cause. The judge said
that her answer was not sufficient, and he questioned her further about whether she could judge the
case impartially. She unequivocally answered that she could, and the judge denied the plaintiff’s
motion. Ms. Murphy was ultimately elected foreperson of the jury that returned the verdict for the
defendant.

                                            III. APPEAL

                                     a. Peremptory Challenge

        The appellant argues that the trial court erred by striking the wrong juror, and then by
refusing to grant an additional peremptory challenge to replace the one that was erroneously
exercised. We believe, however, that the attorney waived this objection by failing to bring it to the
court’s attention in a timely fashion.

         The appellant’s brief recites that only twelve seconds elapsed between the time the Court
officer returned the challenge slips and the time the last challenged juror was dismissed. But even
if the plaintiff’s attorney could not react quickly enough to prevent the trial court from striking the
wrong juror, he could have informed the judge of his error as soon as he became aware of it. A party
is not entitled to relief for an error for which the party is responsible. Rule 36(a), Tenn. R. App. P..

                                       b. An Unbiased Jury

       The constitutional right to a jury trial necessarily implies the empaneling of an unbiased jury,
and bias may result from a juror’s association with a party or a party’s attorney.

                “The courts have . . . excluded from service, as subject to bias, those whose
        intimate associations, experiences, and contingent interests, financial or social, were
        such as to warp or sway, in prejudice or passion, the judgment in the case on trial, in
        response to those natural and human instincts common to mankind.”

Durham v. State, 188 S.W.2d 555, 559 (Tenn. 1945).

        The case of Hyatt v. State, 430 S.W.2d 129 (Tenn. 1967) involved a prosecution for
bootlegging. During jury deliberations, one juror discovered that one of the defendants was the same
woman against whom he had once procured a search warrant. The juror’s son-in-law had been
hauling white whisky for her, and he wished to put a stop to it. The defendant had been going by a
different name when the juror swore out the warrant, and he did not recognize her at trial. The
Supreme Court reversed the jury verdict because the record supported a finding that the juror was
hostile to at least the one defendant.



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        Even without a showing of actual bias, a juror’s failure to truthfully answer questions about
the juror’s association with a party, a witness, or one of the attorneys may raise a presumption of
bias. In Tennessee Farmers Mutual Insurance v. Greer, 682 S.W.2d 920 (Tenn. Ct. App. 1984)
the potential jurors were asked on voir dire if they or any members of their families might know or
might be related to any of six named witnesses. No potential juror gave an audible answer to the
question. During the course of the trial, the chancellor became aware that one of the jurors was
familiar with a witness because her son worked with him, but the chancellor did not let the attorneys
know about this fact. On appeal, this court noted that deliberate withholding of information amounts
to false swearing, and raises a presumption of bias and partiality. We found that the trial court
committed reversible error by not informing the attorneys about the juror’s relationship to the
witness, and by failing to take whatever action was necessary to insure a fair and impartial jury.

        In Lewis v. Pendergrass, No. 03A01-9510-CV-00369 (Tenn. Ct. App. at Knoxville, filed
April 3, 1996), potential jurors were asked if they had ever been represented by the plaintiffs’
attorney. One juror had in fact been recently involved in a client/attorney relationship with the
plaintiffs’ attorney, but after the question was asked he remained silent. The plaintiffs prevailed, and
the defendants raised the issue of the juror’s relationship with the attorney on Motion for New Trial.
The trial court subpoenaed the juror, who denied any partiality, and testified that he did not
remember the defendants’ attorney asking whether plaintiffs’ attorney had ever represented him. The
trial court denied the Motion for New Trial, but was reversed by this court, which stated that “[w]e
do not believe that the presumption created by the false swearing of the juror was overcome.”

        In Toombs v. State, 270 S.W.2d 649 (Tenn. 1954), two defendants were convicted of theft
of personal property that was owned by a Mr. Hartman. On appeal, they argued that the jury was
biased because one of the jurors was the first cousin of Mr. Hartman’s wife, and the two families had
close and friendly relations, facts that did not come to light until after the trial was over.

         The Supreme Court initially determined that as a matter of public policy, the defendants were
not entitled to a new trial, because the juror was not asked during voir dire if he was related to any
of the parties in the litigation. After the defendants filed a Petition to Rehear, the Court reversed
itself, reasoning that since the potential jurors were asked if there were any reason that they could
not give both sides a fair trial, the juror’s silence about the relationship raised a presumption that he
had an ulterior motive for remaining silent, which stemmed from a partiality in favor of the
prosecution.

         Like the juror in the Toombs case, Ms. Murphy was asked if she could be fair to both sides,
but was not asked about any relationship she might have to any of the parties involved in the
litigation. In the Toombs case, however, as in the other cases we discussed above, the information
from which the presumption of partiality arose was not disclosed until after the jury reached its
verdict. Thus there was no opportunity for the defense attorney to challenge the juror for cause, or
to ask questions that might confirm or refute the presumption of bias.




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         In the present case, Ms. Murphy voluntarily revealed her connections with Mr. Wiseman’s
family after the jury was sworn, but before trial and deliberations, because she “felt guilty” about her
earlier silence. The attorneys and the court had the opportunity to ask her questions about the nature
and depth of the relationship, and explore her reasons for not volunteering the information earlier.
The judge considered the motion to dismiss her for cause, but overruled it, because he was satisfied
that she would be able to render an impartial verdict.

        The present case more closely resembles Carney v. Coca-Cola Bottling Works of Tullahoma,
856 S.W.2d 147 (Tenn. Ct. App. 1993), than it does any of the cases cited by the appellant. In
Carney, this court reviewed a trial court’s refusal to excuse a juror for cause. The defendant had
used all its peremptory challenges before the juror revealed that her husband had worked for the
plaintiff’s family for twenty years. The defendant’s attorney was allowed to question the juror at
length, after which the judge overruled the motion.

        We ruled that whether friendship or personal acquaintance with one of the parties results in
disqualification depends on the facts of each case, and that the ultimate determination is within the
discretion of the trial court. 856 S.W.2d at 149. We have reviewed the original voir dire of Ms.
Murphy as well as the questioning that occurred after she revealed her relationship with members
of Mr. Wiseman’s family, and we are convinced that the trial court did not abuse its discretion in
overruling the plaintiff’s challenge for cause.

                                           c. Other Issues

        Mrs. Mallard’s attorney filed a Motion for a Continuance two weeks before the trial was
scheduled to begin. He argued that he needed additional time to either find a particular x-ray of Mr.
Mallard’s leg that he claimed would support his theory of negligence, or to explore the reason that
Baptist Hospital said the x-ray had been destroyed. The trial court denied the motion. Appellant
argues here that the trial court’s denial of the Motion for Continuance constitutes reversible error.

        The appellant failed to raise this issue in the Motion for New Trial, however, and it therefore
must be deemed to have been waived, under Rule 3(e) of the Rules of Appellate Procedure, which
reads in pertinent part,

                In all cases tried by a jury, no issue presented for review shall be predicated
        upon error in the admission or exclusion of evidence, jury instructions granted or
        refused, misconduct of jurors, parties or counsel, or other action committed or
        occurring during the trial of the case, or other ground upon which a new trial is
        sought, unless the same was specifically stated in a motion for new trial; otherwise
        such issues will be treated as waived.

       But even if Mrs. Mallard had raised the issue of the continuance in her Motion for New Trial,
we do not believe she would be entitled to prevail on appeal. The decision of a trial court to grant
or deny a continuance is within the court’s discretion, and will not be reversed absent a clear


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showing of abuse of that discretion. Russell v. Crutchfield, 988 S.W.2d 168 (Tenn. Ct. App. 1998).
In view of the interest of our court system in resolving cases as quickly and expeditiously as possible,
and of the fact that the appellant did not even request copies of the more than four-year-old x-rays
until a few weeks prior to trial, we do not think that the trial court abused its discretion in refusing
the continuance.

        Appellant also argues that it was error for the trial court to grant a directed verdict to the
defendants, without a renewed motion for directed verdict having been filed in accordance with the
Tennessee Rules of Civil Procedure. See Rule 50.01. She contends that the trial court’s action was
an attempt to prevent her from obtaining a new trial, in the event that this court or the Supreme Court
determined that the jury that was empaneled was constitutionally defective. Since we have not found
the jury to be defective, this argument has become irrelevant, and we need not rule on it.

                                                  IV.

       The judgment of the trial court is affirmed. Remand this cause to the Circuit Court of
Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal to
the appellant, Myrtle Mallard Oldham.




                                                _________________________________________
                                                BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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