### 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 def endant. The plaintiff argues on appeal that the tri al c our t co mmi tte d rev ers ibl e err or b y fai lin g to e xcl ude fro m th e ju ry a woma n who revealed that sh

e knew some membe

rs of the defense

att orn ey’s fam ily. We affirm the tria l court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded
B EN H. C ANTRELL , P.J., M.S., del ivered the opinion of the court, in which W ILLI AM B. C AIN and P ATRICIA J. C OTTRELL , JJ., joined.
David W. Piper, Woodbury, Tennessee, for the appellants Robert A. Mallard, Dece

ased, and My

rtle Mallard Oldham.
Thomas A. Wise

man, I II a nd Marg aret J. Moore, Nashville, Tennessee, for the appellees, Thomas E. Tompkins, M.D.; Nashville Ort h opaedic Associa tes, P.A., d/b/a Te

nnessee Orthopa

edic Associates, P.A.; and a/k/a Tennessee Orthopaedic Alliance, P.A.
OPINION
I. T RIAL AND V ERDICT
In1995, 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 ne gligenceby the defendant surgeon during the replac ement of Mr. Mallard’s artificial kne e join t caused him to suffer circulatory problems that ultimately resulted in the amputation of his leg. The plaintiffs took avoluntary 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.-2-

The trial of the case began on Oct ober 4, 199 9. After the jury returned a verdict for the defendants,

the plaintiff filed a Motion for New Trial. In her motion, she claimed that the ju

ry in this case was constitutional

ly 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 N ew Trial. He also

sua sponte direct

ed a verdict for

the defendant, o

n a finding that n

o reasonable

jury could find in favor of the plaintiff, and that the evidence preponderated

infavor of the defendant. This appeal followed.
II. V OIR D IRE 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 th

e challenged j urors. The fourth n ame was unde cipherable , but the tr ial judge thought he could make it out, and printed the name that he mistakenly bel ieved it to be . After returning the challenge

slips to the attorne

ys, 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 at torney did not bring the error to the attention of the court until the end of the first day’s proceeding s, 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 plaintiff

s. Another twenty

prospective juro

rs were seated

in the back of

the courtroom. Th

e trial judge ins

tructed the attor

neys to addr

ess their questions to those inthe 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 attorney s asked whether

the prospective jurors knew any of

the parties or the

ir attorney

s. Jennifer Murphy had been seated in the back of the courtroom duringthe first day. She was called to the jury box the following day, and another attorne y 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 phy sicians. 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 a

tto rney com

pleted his opening argument, Ms. Murphy sent a note up to the judge, revealing that she knew some family members of one of the attorney s involved in the case. The judge cal led a jury-out h earing, in which he and the attorneys for both sides questioned Ms. Murphy. She stated that she knew the parents of Thomas Wiseman II I, the def endant’s lead att orn ey. She als o rev ealed 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 notcome forward earlier with this information because she was not asked, and she was not sure that it was releva nt. She said that she did not know Mr. Wiseman himself, and he said that he did not know her personally.-3-

Mr. Wiseman asked Ms. Murphy whether, despite her connections with h

is family, she

could listen to the evidence a

nd 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 dismisse

d for cause. The

judge said that her answer was not sufficient, and he questioned her further about whether she could judge the ca se impartially. She unequivocally answered that she could, and the judge denied the plaintiff’s motion. Ms. Murphy was ultimately elected forepe rson of the jury that returned the verdict for the defendant.
III. A PPEAL a. Peremptory Challenge
The appellant argues that t he trial cou rt erred by stri king the wro ng juror, and th en by refusingto grant an additional peremptory challenge to re place the one that w as 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 app ellant’ 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 a

ttorney cou

ld not react quickly enough to prevent the trial court from striking the wrong juror, he could have informed the judge of his err or as soon as he be

came aware of

it. A party is not entitled to reli

ef for an error

for which the par

ty is responsible. Rule

36(a), Tenn. R.

App. P.. b. An Unbiased Jury
The constitutional right

to a jury trial

nece ssa ril y imp lie s th e em pan eli ng of an u nbi ased jur y, and bias may result from a juror’s association with a party or a party’s attorney.
“The courts have . . . e

xcluded from servi

ce, as subject to b

ias, those whose intimate associations, experiences, and contingent interests, financial or social, were such as to warp or sway

, in prejudice or p

assion, the judgme

nt in the case on tr

ial, 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 , 43 0 S.W.2d 129 (Tenn. 1967) involved a prosecution for bootlegging. During jury deliberations, one juror discovered that one of the defendants was t he same womanagainst whom he h ad once procure

d a search warr

ant. The juror’s s

on-in-la w had b een hauling white whisky for

her, and he w ish ed t o pu t a s top to i t. T he d efen dan t ha d be en go ing b y a different name when the jur

or swore out the warrant, and he did not recognize her at trial. The Supreme Court reversed the jury verdict because the recor d supported

a finding that the juror

was hostile to at least th

e one defendant

.-4-

Even without a showing of actual bias, a juror’s failure to truthfully answer questions about the juror’s association wi th a party, a witness, or one of the attorneys may raise a presumption of bias. In Tennessee Farme rs 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 awitness because

her son worked wi

th him, but the chanc

ellor did not let the att orn eys know about this fact. On

appeal, this

court noted that de

liberate withhold

ing of informatio

n amounts to false swearing, and raises a presumption of bias and partiality. We found tha tthe trial court committed

reversible err

or by not info

rming the attorn

eys about the

juror’s r elationship to the witness, and by failing to take whatever action was nece ssary to insure a fair and impartial jury

. In Lewis v. Pendergras s , No. 03A 01-9510-CV-00369 (Tenn. Ct. App. at Knoxville, filed April3, 1996), potential jurors were asked if t hey had ever been r epresented by

the plaintiffs’ attorn e y. 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 sub poenaed the juror, who denied any partiality , and testified that he did not remember

the defen dants’ attorney askin g whether plaintiffs’ attorney had ever re presented him. The trial court denied the Motion for New Trial, but was reversed by this court, wh

ich state d 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 proper

ty 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 notentitled

to a new trial, bec

ause the juror wa

s not asked during

voir dire if he wa

s related to

any of the parties in the l

i tigation. 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 notgive both sides a

fair trial, the juror’s silence about the relationship raised a presumption that he had an ult erio r motive for remaining silent, which stemmed from a partiality in favor of the prosecution.
Like the juror in the Toombs case , Ms. Murphy wa s asked if she cou

ld be fair to both sid

es, butwas 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 fromwhich the presump

tion of partiality

arose was not disc losed until after t he jury rea

ched its verdict. Thus there was no opportunity f

or the defense a

ttorney to challenge the juror

for cause, or to ask questions tha

t might confirm or

refute the pres

umption of bias.-5-

Inthe present case, Ms. Murphy voluntarily re vealed 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 consider

ed the motion to dismis s her for cause, but overruled it,

because he was satisfied that she would be able to render an impartial verdict.
The present

case more close

ly resemble

s Carney v. Coca-Co

la Bottling Works of Tullahoma , 856 S.W.2d 147 (Tenn. Ct. App. 1993), than it does an y of the cases cited by the a ppell ant. In Carney , this court review ed a trial court’ s refusal to excuse a juror for caus

e . The defen dant had used all its peremptory

challenges be

fore the juror r

evealed that her

husb and had work ed for the plaintiff’s family

for t wenty years. The def endant’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 par ties results in disqualification depends on the fa cts of each case, a

nd that the ultimate

determination is

within the discretionof the trial court . 856 S.W.2d at 149. We have reviewe d the original voi

r 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 con

vinced that the tr

ial court did not ab

use its d iscretion i n overruling the plaintiff’s challenge for cause.
c. Other Issues
Mrs. M alla

rd’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 tha t 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 Motio

n 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,

Inall cases tried by a jury, no issue pre sented for review shall be predicated upon error in the admission or exclu sion of evidence, jury instructions granted or refused, misconduct of juro rs, parti es or c ounsel, or other action committed or occurring during the tr

ial of the case, o

r other ground u

pon which a new tr

ial is sought, unless the same was specifically stated in a motion for new trial; oth erwise such issues will be treated as waived.
But even if Mrs. Mallard had raised the issue of the continuance in her Motion for New Tri

al, 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-6-

showing of abuse of that discretion. Russell v. Crutchfie ld , 988 S.W.2d 168 (Tenn. Ct. App. 1998). Inview of the interest of our court system in resolving cases as quickly and expeditiously as possible, and of the fact that the app ell ant did not even requ est cop ies of t he m ore t han fou r-yea r-o ld x -rays until a few weeks prior to trial, we do not think that thetrial court abused its discretion in refusing the continuance. Appellant also argues tha

t i t 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 anattempt 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 irrele vant, and we need not rule on it.
IV.
The judgment of the trial court i s 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, My

rtle Mallard Oldh

am.

_________________________________________

BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.