* Pursuant to Local Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-30360

Summary Calendar

__________________

Reggie Ann Wyatt

Plaintiff - Appellant

versus

Wal-Mart Stores, Inc.

Defendant - Appellee

______________________________________________

Appeal from the United States District Court for the

Western District of Louisiana

Shreveport Division

(95-CV-0422)

______________________________________________

September 13, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge: *

This case brings before us a claim that the district court

abused its discretion in refusing to hold an evidentiary hearing to

investigate allegations of juror misconduct.

I.1 Wal-Mart removed the case from state court pursuant to 28 U.S.C.

§ 1332 and §§ 1441(A) and (B).

2 W yatt also claims that a s a result of this friendship, Murphree

had personal knowledge about events oc curring during Wyatt’s

lifetime that could have dramatically affected her ability to

imp artially judge the evidence presented in the case.

Specifically, Wyatt was involved in the death of her third husband

and the event received considerable publicity in the area. No

charges were filed.

2 On March 8, 1995, Reggi e Anne Wyatt (“Wyatt”) filed this

personal injury lawsuit in federal district court against Wal-Mart

Stores, Inc. (“Wal-Mart”). 1 After trial, a jury returned a verdict

in Wyatt’s favor. The jury awarded Wyatt $10,000 in damages for

bodily injury, including physical and m ental pain and suffering,

disability, and loss of enjoyment of life. The jury also awarded

Wyatt $8,072 in damages for medical expenses in the past, present,

and future. Based on this verdict, the district court entered

judgment in Wyatt’s favor.

After judgment was entered, Wyatt discovered that one of the

jurors in the case, Mary Elizabeth Murphree (“Murphree”), had been

a childhood friend of Wyatt’s daughter Lydia Anne Wyatt (“Lydia”).

Lydia signed an affidavit declaring that she and Murphree were

friends in junior high and high school. Lydia claimed that during

the course of this friendship Murphree attended a party at the

Wyatt house, spent a night at the house, and met her mother on

several occasions. According to Lydia, her friendship with

Murphree ended on bad terms. 2

During voir dire, the court asked prospective jurors whether3

or not they knew the plaintiff. Murphree said that she did not.

Murphree also stated that she did not kno w of any reason why she

could not be a fair and just juror in the case.

Wyatt filed a motion for a ne w trial in the district court

claiming that Murphree’s failure to disclose her alleged

relationship with Wyatt and Lydia compromised the integrity of the

jury selection process and the principle of a fair and impartial

jury. In the alternative, Wyatt requested that an evidentiary

hearing be cond ucted in order to question Murphree and otherwise

explore this issue. In a Memorandum Ruling, the district court

denied Wyatt’s motion and refused her request to hold an

evidentiary hearing. This appeal followed.

II.

In McDonough Power Equipment, Inc. v. Greenwood

, 464 U.S. 548,

549, 104 S.Ct. 845, 78 L.Ed.2d (1984), the United States Supreme

Court held that a party is not entitled to a new trial unless a

juror’s failure to disclose denied that party its right to an

impartial jury. The Court noted that a mistaken response to a

question by a juror was not sufficient to invalidate the result of

a trial. I d. at 555. S ee also United States v. Ortiz , 942 F.2d

903, 909 (5th Cir. 1991), c ert. denied

, 504 U.S. 985, 112 S .Ct.

2966, 119 L.Ed.2d 587 (1992). Instead, the Court adopted the

following standard:

We hold that to obtain a new trial in such a situation,

a part y must first demonstrate that a juror failed to3 W hile McDonough Power Equipment was decided by a badly fragmented

Court, the justices wer e in substantial agreement on this point.

See id. at 556- 57 (Blackmun, Stevens, and O’Connor J.J.,

concurring) (“[I]t remains within a trial court’s option, in

determining whether a jury was biased, to order a post-trial

hearing at which the movant has the opportunity to demonstrate

actual bias or, in exceptional circ umstances, that the facts are

such that bias is to be inferred”); i d. at 557 (Brennan and

Marshall, J.J., concurring) (“[T]he Court of Appeals compounded

[its] error by failing to remand the case to the District Court for

a hearing and decision on the motion for new trial in the first

instance”).

4 answer honestly a material question on voir dir e, and

then furth er show that a correct response would have

provided a va lid basis for a challenge for cause.

McDonough Power Equipment

, supra , 464 U.S. at 556.

The Supreme Court noted that in the p roceedings below, the

court of appeals had addressed the merits of the appellant’s jury

bias claim rather than send the case back to the district court for

a hearing. I d. at 551 n.3. The Court suggested, however, that

“the proper re solution of the legal issue should be made by the

District Court.” I d. The Court went on to say that “[w]hile

considerations of judicial economy might have motivated the Court

of Appeals in this case to proceed directly to the issue of the

effect of [the juror’s] non-disclosure, in cases in which a party

is asserting a ground for new trial, the norma l procedure is to

remand such issues to the district court for resolution.

. . .

Appellate tribunals are poor substitutes for trial courts for

developing a record or resolving factual controversies.” 3 Id.

In Vezina v. Theriot Marine Service, Inc. , 554 F.2d 654, 655

(5th Cir. 1977), the appellant sought a new trial and a hearing4 O n remand and after a full evidentiary hearing, the district court

denied the plaintiff’s motion for a new trial and determined that

“the jury verdict was fair and free from prejudice.” Vezina v.

Theriot Marine Service, Inc.

, 610 F.2d 251, 251 (5th Cir. 1980).

We affirmed the district court’s decision concluding that the

5 concerning the alleged misconduct of a juror. The appellant

alleged that a juror failed to disclose at voir dire that she and

her husband had a $500,000 perso nal injury suit pending against

them. The appellant also claimed that the juror, who was selected

foreperson of the jury, told other jurors of this pending suit and

expressed distaste for personal injury claims. The district court

denied the appellant’s motion for a new trial and refused to hold

an evidentiary hearing.

This court pointed out that the evidence was clear that the

juror was involved in pending lit igation against her and her

husband. Id. at 656. We noted that the juror failed to disclose

this information despite general questioning regarding potential

bias and despite the disclosures by several other jurors of

involvement in accident cases in the past. We acknowledged,

however, that there was no proof that the juror made the comments

attributed to her by the appellant or that other jurors were

prejudiced thereby because no evident iary hearing on the subject

was held. We remanded the case to the district court concluding

that “[t]he issues of alleged jur or misconduct and the possible

prejudicial effect thereof could have been resolved by an

evidentiary hear ing in the District Court.” 4 S ee also Coburn v.district court did not abuse its discretion. Id.

6 Browning Arms Company

, 565 F.Supp. 742, 753 (W.D. La. 1983);

Sandford v. Kostmayer Construction Company

, 891 F.Supp. 1201, 1206

(E.D.La. 1995).

III.

At this stage of the proceedings, this court simply does not

know if Murphree answered the voir dire questions posed to her

correctly, mistakenly but honestly, or whet her she lied.

Therefore, we are not in a position to determine whether Murphree

failed to answer honestly a material question on voir dire.

McDonough Power Equipment

, supra

, 464 U.S. at 556. Furthermore,

the district court has not addressed whether it would have

dismissed Murphree for cause if she had given a response

corresponding to Wyatt’s allegations. I d. We decline to speculate

as to how the district court would resolve this issue.

This appeal presents factual controversies that we are in a

poor position to resolve absent an evidentiary hearing. I d. at 551

n.3. Wyatt has established a prima facie case under M cDonough

because she has presented evidence allegi ng that Murphree knew

Wyatt and was biased against her. Wyatt should have been given an

oppor tunity to prove her allegations in an evidentiary hearing

before the district court. V ezina

, supra

, 554 F.2d at 656. We

therefore remand this case for that purpose.7

Because of our resolution of this issue, we do not address

whether the district court abused its discretion in denying Wyatt’s

motion for a new trial or whether the jury’s award of general

damages was sufficient to compensate Wyatt for her injuries.

The judgment of the district court is VACATED. The matter is

REMANDED to the district court for further proceedings consistent

with this opinion.