F I L E D

United States Court of Appeals

Tenth Circuit

FEB 24 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PENNY SMITH,

Plaintiff-Appellant,

v.

VICORP, INC., a Colorado

corporation, dba Village Inn

Restaurants and BRAD LE BARON,

Defendants-Appellees.

No. 96-4049

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 94-CV-170)

Submitted on the briefs:

Robert H. Wilde and Suchada P. Bazzelle of Robert H. Wilde, Attorney at Law,

P.C., Midvale, Utah, for Plaintiff-Appellant.

J. Rand Hirschi of Dunn & Dunn, Salt Lake City, Utah, for Defendant-Appellee

Vicorp, Inc. 

M. James Brady of Bradford, Brady & Rasmussen, P.C., Provo, Utah, for

Defendant-Appellee Brad LeBaron.

Edward B. Havas and Paul M. Simmons of Wilcox, Dewsnup & King, Salt Lake

City, Utah, for Amicus Curiae Utah Trial Lawyers Association.
* Honorable William F Downes, District Judge, United States District

Court for the District of Wyoming, sitting by designation. 

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Before EBEL and HENRY, Circuit Judges, and DOWNES,*

 District Judge.

HENRY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument. 

The sole issue we are required to decide in this appeal is whether the

federal district court in Utah was required to ask questions on voir dire which are

required by state law in all tort cases. Because we hold that the content of

questions on voir dire is a matter of federal law and that the district court did not

abuse its discretion in propounding the questions it did ask in this case, we

affirm.

Plaintiff Penny Smith brought her action under Title VII of the Civil Rights

Act of 1964 alleging sexual harassment and three pendent claims including one

for invasion of privacy. A six-person jury reached a verdict adverse to plaintiff. 

On appeal, plaintiff argues that it was reversible error for the district court to

refuse to ask the venirepersons several specific questions designed to reveal what
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the parties generally refer to as “tort reform bias,” that being bias against the

awarding of large recoveries in tort cases because of some perceived detrimental

effect on insurance premiums and the availability of insurance. 

Resolution of this case turns initially upon whether the content of a

question on voir dire is a matter of state or federal law. Federal Rule of Civil

Procedure 47(a) provides: 

The court may permit the parties or their attorneys to conduct the

examination of prospective jurors or may itself conduct the

examination. In the latter event, the court shall permit the parties or

their attorneys to supplement the examination by such further inquiry

as it deems proper or shall itself submit to the prospective jurors such

additional questions of the parties or their attorneys as it deems

proper.

The scope and extent of voir dire is left to the sound discretion of the district

court. See Hinkle v. Hampton, 388 F.2d 141, 144 (10th Cir. 1968);.Darbin v.

Nourse, 664 F.2d 1109, 1113 (9th Cir. 1981)(citing Rule 47(a)).

In contrast to this broad grant of discretion, state trial courts in Utah are

required to afford plaintiffs the opportunity to poll potential jurors for possible

tort reform bias. See Barrett v. Peterson, 868 P.2d 96, 99-101 (Utah Ct. App.

1993)(holding that tort plaintiffs, after making an initial showing of possible

prejudice, are entitled to ask specific first-tier questions and, depending on the

answer, then move on to more specific, second-tier questions). Thus Utah law,

requiring tort reform voir dire and specifically prescribing the contours of such,
2 The Rules Enabling Act delegated authority to the Supreme Court to

promulgate the Federal Rules of Civil Procedure. The Enabling Act provides in

pertinent part:

(a) The Supreme Court shall have the power to prescribe

general rules of practice and procedure and rules of evidence for

cases in the United States district courts . . . and courts of appeals.

(b) Such rules shall not abridge, enlarge or modify any

substantive right.

28 U.S.C. § 2072.

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conflicts with the broad discretion vested in federal judges to control the scope

and extent of voir dire.

In Hanna v. Plumer, 380 U.S. 460, 471 (1965), the Supreme Court

instructed that

[w]hen a situation is covered by one of the Federal Rules [of Civil

Procedure], . . . the court has been instructed to apply the Federal

Rule, and can refuse to do so only if the Advisory Committee, this

Court, and Congress erred in their prima facie judgment that the Rule

in question transgresses neither the terms of the Enabling Act2 nor

constitutional restrictions.

No one argues that Rule 47(a) is either unconstitutional or outside the scope of

the Enabling Act. In fact, the Federal Rules of Civil Procedure are presumptively

valid under the authority of Burlington Northern R.R. v. Woods, 480 U.S. 1, 5

(1987). We therefore hold that the content of voir dire in federal courts is

controlled by Fed. R. Civ. P. 47(a) and is not subject to the dictates of any

contrary state law. See Perry v. Allegheny Airlines, Inc., 489 F.2d 1349, 1351-52
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(2d Cir. 1974) (stating that voir dire is governed specifically by Rule 47(a)); but

see Lewis v. Holden, 821 F.2d 291, 294 (5th Cir. 1987)(noting federal court

discretion but relying on state law as grounds for affirmance).

In its brief of amicus curiae, the Utah Trial Lawyers Association agrees

with our conclusion that the content of a question on voir dire is a matter of

federal law but urges us to adopt the Utah procedure regarding tort reform voir

dire for the federal courts in Utah. We decline this invitation.

In Hinkle, 388 F.2d 141, a case involving damages from an automobile

collision in Oklahoma, the plaintiff argued that the trial court committed

prejudicial error in refusing to question prospective jurors on voir dire about

whether any of them were stockholders or engaged in the insurance business. 

After noting that the matter of the scope and extent of voir dire rests in the sound

discretion of the trial court, id. at 144, this court held that there had been no

abuse of discretion in the conduct of the voir dire, id. We specifically rejected

the Third Circuit’s requirement in Kiernan v. Van Schaik, 347 F.2d 775 (3d Cir.

1965), that questions be asked of venirepersons regarding their ties to the

insurance industry. This court viewed that stance as too intrusive on the

discretion granted the trial court in matters of voir dire and contrary to this

court’s position in Smedra v. Stanek, 187 F.2d 892 (10th Cir. 1951). See Hinkle,

388 F.2d at 144. A decision to require federal courts in Utah to adhere to the
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dictates of Barrett and similar cases regarding tort reform would similarly deprive

the federal courts of their allotted discretion. See Perry, 489 F.2d at 1352

(refusing to allow counsel to question veniremen, as required by the state

constitution, stating that Rule 47(a) “preserve[s] the trial court’s discretion as to

who should conduct [voir dire]”).

Having established that the district court was not required to comply with

Utah law in the matter of tort reform voir dire, we now must determine whether

the district court abused its discretion in the manner in which it did conduct the

voir dire. See Hinkle, 388 F.2d at 144 (discretion subject to reversal if not

conducted fairly).

Instead of asking the questions propounded by plaintiff here, the district

court asked the following questions:

Do any of you feel any prejudice against a plaintiff, such as Ms.

Smith, coming to court seeking money damages?

Do you realize that this is the only method we have under the laws of

the United States of being compensated if we believe that there has

been some sort of damage or wrong?

Do any of you have any prejudice about a plaintiff coming to court

seeking money damages?

Appellant’s App. at 81-82. This line of questions was adequate to reveal the

seeds of potential tort reform bias and to alert plaintiff’s counsel to the possible

need to exercise a preemptory challenge. The court’s refusal to ask the specific
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questions requested by plaintiff was not an abuse of discretion. See United States

v. Polk, 550 F.2d 1265, 1267 (10th Cir. 1977); United States v. $94,000.00 in

U.S. Currency, 2 F.3d 778, 788 (7th Cir. 1993).

Alternatively, because the court did not completely deny plaintiff the

opportunity to ferret out possible tort reform bias but merely restricted the amount

and scope of the questions asked, plaintiff is required to show that she was

prejudiced by the court’s actions. See Smedra, 187 F.2d at 895 (requiring that

there be a showing in the record that any juror knew of the involvement of an

insurance company in the tort suit). Plaintiff’s speculation that the jury’s refusal

to award damages after finding a reckless and wanton invasion of privacy was the

result of tort reform bias falls too wide of the mark to demonstrate the required

prejudice as a result of inadequate voir dire.

The motion of Amicus Curiae Utah Trial Lawyers Association for leave to

file an appendix is DENIED. The judgment of the United States District Court

for the District of Utah is AFFIRMED.