Here’s a tough court decision for me to get a handle on.
How is it that a personal injury plaintiff could get a new trial merely because his lawyer was forced to use a peremptory challenge after the trial judge mistakenly refused to boot a juror for cause?
I mean, shouldn’t the plaintiff have been required to show more in terms of how the judge’s gaff actually hurt his case?
Here’s the deal.
Scott Roberts was injured while working for CSX Transportation. He sued the railroad in a Virginia state court, bringing a claim under the Federal Employers Liability Act.
During voir dire, Donald Kemp, a potential juror, disclosed that he was a 30-year stockholder in CSX.
However, the trial judge was impressed by the Kemp’s assurances that he could be fair and impartial, so the judge refused to strike the juror for cause.
This forced Roberts to later use one of his peremptory strikes to remove Kemp from the jury panel.
Following a two-day trial, the jury found that although Roberts sustained $280,000 in damages, he was 95 percent at fault for the accident. Accordingly, the trial court entered a judgment against CSX in the amount of a measly $14,000.
Naturally, Roberts wanted a new trial. And earlier this month the Virginia Supreme Court granted him his wish.
The main bone of contention on appeal was the trial judge’s failure to remove prospective juror Kemp for cause.
Now, it’s hard not to agree that Kemp should have been stricken for cause in the first instance.
The Virginia Supreme Court gave this aspect of the appeal short shrift.
“Prospective juror Kemp directly owned stock in defendant CSX, thus rendering him not ‘indifferent in the cause’ as a matter of law,” the court said. “That he sincerely maintained he could faithfully and impartially perform his duties as a juror is without import.”
So the error was made. And for CSX, this spelled doom because the court deemed it to be per se reversible error.
“Roberts’ use of a peremptory strike to remove Kemp from the jury panel did not render that error harmless because Roberts was entitled, as a matter of law, to have a panel free from exception upon which to exercise his peremptory strikes,” the court said.
This is the part I have a problem with.
The state supreme court doesn’t even mention whether the trial judge’s error caused Roberts to exhaust his peremptory challenges, thereby affecting the ultimate composition of the jury.
Why should such a trial error be exempt from harmless error analysis?
Given everything invested by the parties and the lower court in one trial, shouldn’t Roberts have been put to the test and required to demonstrate some quantum of prejudice before he could get a second bite at the apple?
CSX had the same qualms, and it expended its last bullet in the chamber to avoid a new trial.
The railroad tried to argue that, because this was a FELA case, federal law supplanted the Virginia rule that it is reversible error to force a party to use a peremptory strike to remove a prospective juror who should have been stricken for cause.
But the Virginia Supreme Court would have none of it.
“Contrary to CSX’s suggestion, whether CSX is ‘at hazard’ for another trial is not the appropriate inquiry,” the court said. “Nor will applying the Virginia rule affect the ‘rights and obligations of the parties’ under the procedural/substantive rubric. Instead, it will extend to a litigant presenting a FELA claim in a Virginia court the statutory rights the General Assembly has afforded to all parties in jury trials, whether civil or criminal, i.e., a jury panel free from exception to which a party may then direct its full complement of peremptory strikes.” (Roberts v. CSX)
— Pat Murphy
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