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.
-2-

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. 
-3-

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.
-4-

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’attorneyasking 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.

 
-5-

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
-6-

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.