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Butterfield v Sevier Valley Hospital

Case No. 20090122-CA (UT Ct. App., Dec. 16, 2010)

Clint and Heidi Butterfield, individually and on behalf of their daughter Kylie Butterfield (collectively, Plaintiffs), appeal from a jury verdict in favor of Sevier Valley Hospital(the Hospital) and IHC Health Services, Inc. (collectively, Defendants). Plaintiffs appeal the trial court's denial of their motion to change venue. We affirm.

BACKGROUND

Heidi Butterfield gave birth to Kylie Butterfield in July 2000 at the Hospital. Upon delivery, Kylie was not breathing on her own and her pulse was low. The doctors and nurses present attempted to revive her. She was eventually flown to Primary Children's Medical Center. She suffered significant, permanent impairment. In November 2002, Plaintiffs sued Defendants in Sevier County. They alleged that Kylie's condition was caused by negligent resuscitation efforts at the Hospital. Defendants countered that Kylie's condition was the result of a stroke or some other cause.

In October 2006, Plaintiffs filed a Motion for Change of Venue. The motion was based on the ground that a fair and impartial jury could not be impaneled in Sevier County due to the county's small population and the Hospital's prominence in the community. The Hospital is the only one in the county and is one of fourteen major employers there. The Hospital is owned and operated by IHC Health Services, Inc. of Salt Lake City. The trial court recognized Plaintiffs' concern about impaneling an impartial jury but, expressing confidence that an impartial jury could be impaneled, denied the motion.

In March 2008, weeks before trial, a pool of 100 potential jurors was drawn. Each potential juror was given a questionnaire eliciting information, such as whether the potential juror knew or had a relationship with any witness or party. Based on these questionnaires, the trial court asked Plaintiffs and Defendants to "identify those potential jurors which [they] . . . fe[lt] like [they'd] like to exclude," adding, "I'll take a closer look at those." Plaintiffs identified numerous potential jurors, including four who eventually decided the case. The trial court took the matter under advisement. The court excused forty of the jurors for cause based on the parties' suggestions and its own review of the questionnaires and reserved the balance of jury selection for trial.
 

 

Judge(s): J. Frederic Voros, Jr.
Jurisdiction: Utah Court of Appeals
Related Categories: Civil Procedure , Malpractice , Torts
 
Trial Court Judge(s)
Wallace Lee

 
Court of Appeals Judge(s)
Gregory Orme
William Thorne, Jr.
Frederic Voros, Jr.

 
Appellant Lawyer(s) Appellant Law Firm(s)
Allen Young

 
Appellee Lawyer(s) Appellee Law Firm(s)
Steven Bednar
Joann Bott
David Castleberry

 

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Click the maroon box above for a formatted PDF of the decision.
different sort, but no less amenable to the voir dire process. shall be considered the county in which the corporation jurors'] considerations the effect of a $15 million judgment gary beck and i wonder maybe if he knows his son or someone. actual voir dire answers." lafferty, 2007 ut 73, 42. at that and challenged jurors for cause. the trial court ruled on those base an appellate claim of jury bias on jurors 10 or 13. 114 p.3d 551; state v. geukgeuzian, 2004 ut 16, 9, 86 p.3d 742. passed the jury for cause. in view of the foregoing, we conclude utah r. crim. p. 29(d)(1). these provisions make clear that the 2000 at the hospital. upon delivery, kylie was not breathing on total residents of tooele county" and that because the case expand on the point touched upon in the lead opinion's concluding she "would be somewhat partial to the" defendant in the case, 2 . . . when i saw [juror 1], i thought i was gonna see a fellow alternative theory or ground is apparent to the appellate court, i am confident it would have provided a much simpler basis on jurors for cause based on the parties' suggestions and its own difficulties in picking an impartial jury, and would nonetheless party's witness as a "very good friend" cannot be impartial and jury. their own convenience, or to avoid a change-of-venue battle at "affirmatively represented to the trial court that he had no were impartial, the parties' right to a fair trial--the ultimate venue motion under utah code section 78b-3-309(2), the question appellant can demonstrate no prejudice. 20090122-ca 8 ) stated that "nothing" would prevent him from being impartial. he their impartiality. see state v. king, 2006 ut 3, 14-20, 131 ut 1, 101, 63 p.3d 731 (stating that a trial court abuses its conducted a thorough voir dire. and most importantly, plaintiffs 20090122-ca 13 family. see stubbs, 2005 ut 65, 18. here, juror 1 is merely a witness. see state v. cobb, 774 p.2d 1123, 1126 (utah 1989) 38 affirmed. ) to those interposed during voir dire. because all panelists to failure to grant a change of venue. the trial court denied that the corporation has its principal office or a place of business counsel table throughout trial. plaintiffs did not request to be helpful to a trial court assessing the overall fairness of the financial impact of any such judgment on the [h]ospital, as well that potential jurors "knew," "knew of," or were "acquainted potential jurors: jurors 5, 12, 13, and 15. the trial court specifically, the court is to consider "(1) the standing of the rejected a similar argument in state v. shipp, 2005 ut 35, 116 1278, and state v. stubbs, 2005 ut 65, 123 p.3d 407. in alleged error that was invited by the party challenging it on to the hospital for treatment in the future if they rendered a addition, although plaintiffs originally challenged juror 13 place of trial for the purpose of achieving "an impartial trial": plaintiffs choose to expend any of their peremptory challenges to omitted). community; (3) the nature and gravity of the offense; and (4) the jurors was drawn. each potential juror was given a questionnaire trial . . . when there is reason to believe ground. asking the potential jurors general questions regarding their eight jurors and three alternates who sat. ______________________________ v. redevelopment agency of tooele city, 2010 ut 38, 233 p.3d 461, again, this fact would preclude a direct hamilton, 2003 ut 22, 54, 70 p.3d 111 (quoting anderson, 929 at the [h]ospital should they need to use its facilities." in jurors for cause weeks before trial. at trial, the court applied the doctrine to a claim of error during voir dire in remaining impartial due to being "close personal friends" with a trial is a function of "a tainted jury." see lafferty v. state, invited any error in the selection of that jury. see winfield, like non-incidental contact between a witness and a juror impairment. in november 2002, plaintiffs sued defendants in resides at the commencement of the action." utah code ann. far with a point that has not been briefed. see bailey v. well as residents from the surrounding id. the supreme court's analysis focused on the jurors who cause in order to preserve an appeal on a denial of a motion to exercised four peremptory challenges to reduce the panel to the 7 plaintiffs challenged for cause four of the final nineteen their concerns on appeal about juror 10, at trial plaintiffs the litigants with the opportunity to weed 20090122-ca 11 ability to be impartial and any relationships they might have had that he knew gary beck. . . . [h]e looks way too young to know moreover, we review the trial court's ruling for an abuse of when a party challenges the denial of a motion to change venue in a trio of criminal change-of-venue cases, state v. james, 767 utah rules of civil procedure inferentially supports its holding. that an impartial trial cannot be had in the whether her relationship to the chappells would affect her 18 the supreme court rejected grantsville's claim with little no objection to the [proceedings]." state v. hamilton, 2003 ut were biased. that has been exposed to publicity about a criminal case. doctrine to a change of venue challenge, the supreme court prevent." stubbs, 2005 ut 65, 17. but when the trial court's demonstrates that, in any event, plaintiffs have not shown that for cause to preserve the issue for appeal); clatterbuck v. call, butterfield, individually and perhaps they realized they had a choice, but for purposes of accordingly, by the conclusion of jury selection, none of the this fact alone would preclude a direct appellate challenge to victim and the accused in the community; (2) the size of the p.2d 317. there, the defendant argued that non-incidental marks omitted)). we cannot conclude that any reasonable person nevertheless, as stated above, where the jurors who actually sat or impartial.'" state v. cox, 826 p.2d 656, 660 (utah ct. app. castleberry, salt lake city, for appellees bias arose from juror's statement that he would have difficulty "'fortifies our long-established policy that the trial court rationale only because i share my colleagues' view that it is ihc health services, inc., these connections are too attenuated to demonstrate a error committed at trial when that party led the trial court into conclusion 8 following a two-week trial, the jury returned a verdict in response is essentially two-fold. first, relying on stubbs and like [they'd] like to exclude," adding, "i'll take a closer look review of the questionnaires and reserved the balance of jury affirmatively represented to the [trial] court that he or she had raises a change-of-venue challenge after the completion of a a. invited error j. frederic voros jr., judge impartial trial": other grounds by state v. baker, 884 p.2d 1280 (utah 1994). 38, 28 p.3d 1278)). expressly withdrew that challenge. we regard these acts as heard the case. background ) the venue where ihc has its principal office. if any others were to be challenged for cause, stood mute." id.; here, the parties were each granted four peremptory she was a plaintiff apparently. i better not challenge her." in issue and standard of review where ihc has its "principal office," see utah code ann. 78b-3- whole, including the entire jury pool, and not just one juror. that plaintiffs could have filed suit in a county other than that the trial court did not abuse its discretion in denying either may, by motion, supported by an individually voir dire juror 1, nor did plaintiffs challenge him joann e. bott, steven c. bednar, and david c. impaneled in sevier county for the reason that "[v]irtually all peremptory challenge. id. the supreme court concluded its voros, judge: because of her "familiar[ity]" with a defense witness, they community-wide sources of bias are so unique that the ordinary 307(2) (2008); and (4) plaintiffs chose sevier county as their selection for trial. must be disqualified, see brooks, 563 p.2d at 801, unless the because they "passed the jury for cause and chose not to trial. in this context, lack of fairness and impartiality at gregory k. orme, judge case on interlocutory appeal, a fortiori they do not apply where, before us is whether the case was tried by a fair and impartial bias or partiality give rise to a presumption that a potential the jury pool and "over half the jurors that decided the case had 44 i refrain from premising my affirmance vote strictly on this the case "had personal connections with defendant[s] and [their] notice and [the] opportunity to be heard in a meaningful way"). county's small population and the hospital's prominence in the bayles, 2002 ut 58, 13 n.3, 52 p.3d 1158 (recognizing that sua defendants and appellees. utah 2d 342, 344 p.2d 980, 981 (utah 1959) (holding that the fact the context of a pre-trial venue challenge heard on interlocutory 1978) ("trial procedure affords an opportunity to question jurors 1 ----- difficulty entering a large monetary judgment against the nineteen potential jurors--eight to be struck with peremptory ) contact between a witness and a juror occurring pre-trial should, way into court, [or in] the courtroom before or during a recess," or had a relationship with any witness or party. based on these 22, 54, 70 p.3d 111; accord state v. pinder, 2005 ut 15, 62, potentially biased jurors." id. for example, in chamblee v. of grantsville v. redevelopment agency of tooele city, 2010 ut p.2d 549 (utah 1989), state v. widdison, 2001 ut 60, 28 p.3d therefore, like the supreme court in winfield, "we find no reason committing the error.'" geukgeuzian, 2004 ut 16, 9 (quoting community. additionally, voir dire provides the court asked whether counsel passed the jury for cause. impartiality of a juror, plaintiffs may not premise an appellate defendants assail this approach both because it derives from a 41 it is always problematic for an appellate court to go too the tooele army depot. see id. 1-3, 5. grantsville argued tooele city coffers to other local communities, it [was] unlikely as how any individual juror would be viewed by doctors and staff 22 defendants argue that plaintiffs' appeal must be rejected which to premise our affirmance than the more elaborate analysis some other cause. inviting any possible error in the seating of these jurors. see id. the supreme court rejected the defendant's comparison. 20090122-ca 9 31 that leaves jurors 1, 2, and 11. while plaintiffs point to of jurors with whom plaintiffs expressed little or no ----- 3-307(2) ("if the defendant is a corporation, any county in which challenge any of the jurors who decided this case." plaintiffs' one juror for cause and on being asked twice by the trial court to be sensitive to latent bias "of the types . . . james aims to relevant factual context, we decline to resolve the issue on this challenges. this process was repeated until the panel was appeal. see id. at 550. it thus examines the characteristics of this doctrine ensures that "'a party cannot take advantage of an particular, they urge us to look to the four-part test set forth ----- the court did not analyze or even mention the james clearly was established when the jurors were questioned for cause okay." juror 1's connection to gary beck is weaker than the f i l e d sponte consideration of alternate legal theories or grounds by an impaneled in sevier county "because jurors may think that the objections made weeks before trial based on the jury case no. 20090122-ca juror 1 knew beck's son and not beck himself, as originally purpose of a change of venue is to achieve a fair and impartial denied plaintiffs' challenges to jurors 5, 12, and 15, but 28 accordingly, we affirm on the ground that, by passing the plaintiffs are challenging the impartiality of the jury as a actually sat: "the wisdom of the court's denial here quite 20090122-ca 5 occurring during trial, be subject to a rebuttable presumption of that this jury was so biased that no reasonable person would have [its] view" (first alteration in original)(internal quotation 23 generally, utah appellate courts will decline to review an evinced any disposition to try the case other than fairly," a peremptory challenge against a juror unsuccessfully challenged the jurors knew many of the local hospital's employees and county, . . . it would be impossible to have an impartial trial." these; they were either granted or deferred until trial. in 33 juror 11's connection is no stronger. juror 11 had been be uniquely exempted from the normal rules of jury selection, county, city, or precinct designated in the plaintiffs, see id., and where the prospective juror stated that denial of a motion to change venue on interlocutory appeal, city entity, but a building owned by defendant ihc; (2) ihc is a ordinarily best to resolve a case on the issues raised and (continued...) on the part of the juror in the result of the action, or in the jury questionnaires two and a half weeks before trial. whether the case was in fact "tried by a fair and impartial 20090122-ca 15 the trial court never ruled on it.1 a for-cause challenge to a prospective juror). nor did "ultimately tried by a fair and impartial jury," widdison, 2001 plaintiffs simply missed the fact that they had a choice. ) 935 p.2d 503, 509 (utah 1997) (holding that a defendant must use west v. holley, 2004 ut 97, 14, 103 p.3d 708. however, the possibly be a patient at the hospital was dismissed for cause. dissatisfaction. preferred to keep juror 10 on the jury. during voir dire, we find it significant that plaintiffs challenged none of them. because most will need to use sevier valley hospital" for medical biased juror, plaintiffs chose to remove him with a peremptory juror 11's questionnaire, plaintiffs said, "[juror 11] is one of 443 (s.d.n.y. 1988). and it does appear possible, if not likely, challenge a juror constitutes waiver). two of the jurors p.2d at 1109). countered that kylie's condition was the result of a stroke or sixth district, richfield department, 020600390 satisfied with her answers during the trial court's subsequent plaintiffs motion to change venue. moreover, in any event, and tellingly, even after filing suit, plaintiffs themselves 20090122-ca 14 appeared for voir dire. the trial court conducted voir dire by to remove potential jurors on which they had lost challenges for 38, 233 p.3d 461. that appeal arose from a dispute between the except two prospective jurors who were removed for cause or by a would have ruled that plaintiffs could not enjoy a fair trial by appeal, that is, when "counsel, either by statement or act, objection to the jury panel." id. 13. and as noted above, county which would essentially ensure it an untainted jury pool, state v. winfield, 2006 ut 4, 128 p.3d 1171. see id. 13-21. questionnaires, the trial court asked plaintiffs and defendants juror 11 nor challenged her for cause. cause (jurors 5, 12, and 15). however, plaintiffs used their 36 we conclude that the plaintiffs received a fair trial. the determinative question is '"whether [the] defendant was 16 the james factors retain some relevance at trial; they "'can 14. after trial, the reviewing court can examine "the juror's the "many connections between the chosen jurors and the victim's 20090122-ca 7 beck, who was an employee of one of the defendants and who sat at verdict in plaintiffs' favor, and whether they would have the court may, on motion, change the place of ______________________________ 43 in my view, it would be an absolutely extraordinary case in including the rule that a party who passes the jury for cause has ----ooooo---- waive" rule applies in civil cases). we recognize that 30 we begin by noting that, as in a direct challenge to the a witness or party has developed a relationship of affection, unless the court clearly abused its discretion. see city of thought following the questionnaire. during voir dire, questionnaires. however, the court did not "overrule" any of not challenge juror 2 for cause. william a. thorne jr., judge alternate legal theory or ground in supplemental briefs to the the court may change the place of trial to achieve a "fair and corporate entity whose principal office is in salt lake city; (3) family." id. 19. "voir dire responses revealing evidence of 4 in march 2008, weeks before trial, a pool of 100 potential prospective analysis evaluating "demographic, geographic, and 17 in the civil realm, our supreme court has not applied the member or citizen of a municipal corporation." utah r. civ. p. in her words, "not that well." the trial court asked juror 2 relationship, plaintiffs withdrew their challenge to her. although not cited by the supreme court, rule 47 of the in the course of post-argument deliberation or research. see jurors, juror 9 did not know anyone involved in the case and v. calliham, 2002 ut 86, 50, 55 p.3d 573 (finding inference of the context of a post-trial appeal, the analysis is essentially 9 plaintiffs contend that the trial court erred by denying attempted to revive her. she was eventually flown to primary chosen the venue by filing suit in sevier county, plaintiffs had plaintiffs assert that "[j]urors could well worry both about the quotation marks omitted). those that maybe we could voir dire and find out how close that state v. anderson, 929 p.2d 1107, 1109 (utah 1996)); accord noted that a change-of-venue motion should be granted because of ) families in moab and grand county, [and] had many friends in the to create a special exemption for such challenges." id. 17. 3 in october 2006, plaintiffs filed a motion for change of 14 in a criminal case, if a change-of-venue motion is filed record convinces us that plaintiffs did indeed pass the jury for limited our review under the james test to interlocutory appeals forfeited the right to challenge venue there. other "the objections [they] already made . . . which [the court] favor of defendants. plaintiffs filed a motion for new trial the difference between pretrial contacts and mid-trial contacts v. "failed to challenge any of the seated jurors for cause during see also estate of thorley v. thorley, 579 p.2d 927, 930 (utah controls. plaintiffs argue that our analysis should be guided by child, kylie butterfield, the same as a challenge to the impartiality of the jury. extraordinary case. civil cases when a prospective juror indicated that her ut 73, 42 (emphasis added) (alteration in original) (quoting exists as a means to unearth and assess any possible bias and action shall be tried in the county in which: . . . (b) any defendant's instance, or in hopes of drawing on local sympathy, forum in the first place." grosman v. schwarz, 678 f. supp. 440, not overturn a trial court's ruling on a change-of-venue motion jurors on the panel either knew, or knew of, the defendant, "none for cause. on the contrary, plaintiffs appeared relieved that operated by ihc health services, inc. of salt lake city. the criminal case and because, they argue, once the jury has been affirmed the denial of a pretrial motion for change of venue in a hospital did not raise an inference of bias. cf. state v. 20 in sum, because the purpose of a change of venue is to winnowed to nineteen potential jurors. the parties then each cause. at the point at which the jury pool had been narrowed to at oral argument or--worse yet--that is seized upon by the court protect the parties' right to a fair trial by an impartial jury, ______________________________ 20090122-ca 3 addition, plaintiffs argue that "[n]o matter how honest a juror eight jurors who actually heard the case were challenged for outcome of the case would affect their personal health care." peremptory strikes, plaintiffs passed for cause the jury that and impartial trial cannot be had," james, 767 p.2d at 552, but civil trial, the determinative question is whether the case was eliciting information, such as whether the potential juror knew plaintiffs' counsel stated, "[juror 1], on his form he indicated ) this opinion is subject to revision before 2 heidi butterfield gave birth to kylie butterfield in july conjecture," id. 53 (internal quotation marks omitted), and do jury pool,'" id. 42 n.3 (emphasis added) (quoting stubbs, 2005 1992) (quoting state v. brooks, 563 p.2d 799, 802 (utah 1977)). an earlier for-cause challenge to that juror. see state v. wach, footnote. prejudice in potential jurors." id. 14 (citations omitted). motions that it did not have time to rule on. instead, it witnesses--would have been wholly avoided had plaintiffs instead voir dire, plaintiffs neither requested to individually voir dire view adopted by the trial court." id. (alteration in original) ultimately tried by a fair and impartial jury."'" lafferty, 2007 bias of an actual jury venire." stubbs, 2005 ut 65, 14. 20090122-ca 6 plaintiffs removed them with peremptory strikes. plaintiffs 13 by statute, civil cases are to be "tried in the county in with a party's grandparents); state v. wach, 2001 ut 35, 29, 24 juror in the pool who stated in her questionnaire that she may but it was recognized at oral argument that (1) the hospital, p.3d 202 (requiring an objection to preserve for appellate review focusing on the jurors actually selected. see id. at 551. sevier county. they alleged that kylie's condition was caused by ----- which: (a) the cause of action arises; or (b) any defendant reasserted their change of venue motion orally. ordinarily granted at the request of the party who chose the contact before voir dire may implicate the concerns . . . including four who eventually decided the case. the trial court and determine bias or prejudice for any reason; and the trial court used a questionnaire and, based on that questionnaire and 12 we agree with defendants and hold that where an appellant cause by plaintiffs at trial. defendants). plaintiffs appeal the trial court's denial of their also indicated that he was "indifferent" about being a juror. change-of-venue procedure was achieved and, in any event, the 4 thus "there is no requirement that a party challenge[] jurors for not demonstrate that the trial court abused its discretion in juror is biased, and the juror must be dismissed unless that trial court "adequately probe[s] [the] juror's potential bias," experience of being sued in the past gave her a negative view of analysis as follows: "plaintiff at the trial challenged only the 10 plaintiffs contend that an impartial jury could not be court"). had the parties raised and briefed this issue, however, stubbs, 2005 ut 65, 10 (quoting state v. widdison, 2001 ut 60, "voir dire is intended to provide a tool for counsel and the before judges orme, thorne, and voros. defendants did not file a written response to this motion, and reference to "objections" is most reasonably read to refer only took the matter under advisement. the court excused forty of the directed the parties to make oral motions as trial continued to overruled." plaintiffs now contend that they were referring to expressly declined to challenge that juror for cause or withdrew in the utah court of appeals plaintiffs and appellants, relating to the appearance of impropriety and the possibility of biases and prejudices, latent as well as acknowledged, will respect, or esteem, cannot be deemed disinterested, indifferent, 3 personal connections between jurors 1, 2, and 11 on the one hand 47(f)(5) (emphasis added). ) seven of the eight jurors on the ground that the defendant clint butterfield and heidi jury," lafferty, 2007 ut 73, 42 (internal quotation marks analysis attempts to be, it would be difficult to exclude from [the (december 16, 2010) "decision [is] beyond the limits of reasonability," state v. that was about gary beck's age and so it must be a son. so interlocutory appeal, the appellate court will examine the same impartially," see cox, 826 p.2d at 660 (second alteration in community. the hospital is the only one in the county and is one discretion. accordingly, plaintiffs' burden is to demonstrate b. the jury county, where their cause of action arose, or salt lake county, claim of jury bias on a juror where plaintiffs themselves either played themselves out. this is not such an absolutely attorneys: allen k. young, provo, for appellants sevier. see utah code ann. 78b-3-307(1)(b) (2008) ("[a]n with parties or witnesses. counsel questioned individual jurors fourth peremptory challenge on juror 9. unlike many potential contrast, objections made by plaintiffs during voir dire were 42 as a practical matter, the problems of which plaintiffs now ) with" the plaintiff was insufficient to exhibit bias); cf. state negligent resuscitation efforts at the hospital. defendants ut 65, 17). for example, they might encourage the trial court trial court conducted an extensive jury selection process. the change venue." second, while seeming to concede that they the one to the crime charged). see id. 1. the dispute concerned the distribution of $15 conjecture. the jury in this case will presumption is rebutted." west v. holley, 2004 ut 97, 14, 103 to avoid surprise to the parties, "sound and prudent appellate on behalf of their minor 6 on the first day of trial, fifty-five potential jurors bailey, 2002 ut 58, 13 n.3 (cautioning that the "affirm on any impartial jury cannot be impaneled is mere although listed as a defendant in the caption, is not a legal gary beck's daughter's first grade teacher. after receiving the oral voir dire," plaintiffs rely on their earlier objections be entitled to judicial rescue when the predictable difficulties complain--namely that in a smaller, close-knit community many of motion to change venue. we affirm. 233 p.3d 461. a trial court abuses its discretion when its trial court recognized plaintiffs' concern about impaneling an against the county's only hospital." as in city of grantsville plaintiffs identify on appeal fall into this category. despite could not remain impartial. see state v. cox, 826 p.2d 656, 660 ground" rule is limited and explaining that even though an orme, judge (concurring): and receives "sufficient evidence that the juror will act 29 moreover, the record of jury voir dire in this case factors, even though it was reviewing an interlocutory order. purpose of a motion to change venue--has been preserved. impartial trial cannot be had in the whom plaintiffs had objected during voir dire were removed with ii. this case was tried by an impartial jury. plaintiffs have not shown us that the jurors who sat in this case ) interfere with a fair trial if a particular juror serves in it." despite a lack of objective indicia that juror 9 would make a as here, the court may review the voir dire responses of the that an impartial jury could be impaneled." id. 52 (internal state v. saunders, 1999 ut 59, 34, 992 p.2d 951. accordingly, ruling "is challenged on appeal following a jury verdict, the marks omitted), such that "no reasonable [person] would take the appellate court raises "concerns regarding timely and adequate court to carefully and skillfully determine, by inquiry, whether 20090122-ca 2 either granted, denied, or withdrawn. consequently, the state v. stubbs, 2005 ut 65, 123 p.3d 407, the supreme court stocks, 9 utah 2d 342, 344 p.2d 980 (1959), the supreme court the trial court noted that there were many pending written the characteristics of the community in which the trial is to ut 60, 38. 39 i concur: at this point, grantsville's argument that an explore any such concerns. in fact, the trial judge specifically impaneled, the dispositive question is whether the case was (internal quotation marks omitted). see id. 51-53. if the james factors do not apply to a civil plaintiffs had the option of bringing their lawsuit in sevier 19 in appeals after civil jury trials, our court has directed forum. reported utah decision in which an appellate court reviewed the to "identify those potential jurors which [they] . . . fe[lt] five of the jurors who sat on the case as having personal 2006 ut 4, 13-21. receive rulings on particular motions. plaintiffs never million dollars from the sale of property formerly belonging to tried by a fair and impartial jury. if so, the purpose of the impartial jury. children's medical center. she suffered significant, permanent of the potential jurors have a personal stake in the outcome, if the prosecution or a defendant in a jenkins v. parrish, 627 p.2d 533, 535 (utah 1981), overruled on impartial jury but, expressing confidence that an impartial jury voir dire gave the parties and the court an opportunity to plaintiffs filed a renewed motion for change of venue. once a jury has been impaneled, the determinative question is hospital. all jurors who eventually sat answered no.4 impartial jury could not be impaneled in sevier county. we will grantsville v. redevelopment agency of tooele, 2010 ut 38, 53, party's grandparents). perhaps most importantly, plaintiffs did friend of the son of an employee of one of the defendants. city of grantsville and the town of stockton, on the one hand, and defendants and their witnesses on the other, we conclude that which a plaintiff, with the option of filing its action in a id. 78b-3-309(2). a similar rule applies in criminal cases. 40 i concur in the court's opinion. i write separately only to prejudice; "whether the contact occurs in the parking lot, on the relationship of affection, respect, or esteem such that they her own and her pulse was low. the doctors and nurses present whether a fair and impartial jury can be selected in a community connections resulting in bias: jurors 1, 2, 10, 11, and 13. defendant resides at the commencement of the action"); id. 78b- ) . . . ."). the purpose of the james factors is to predict calliham, 2002 ut 86, 50, 55 p.3d 573 (finding inference of opted instead to file in a county where there obviously would be "[t]he appellate record is not limited to descriptive data about 2010 ut app 357 challenges. plaintiffs used three of the peremptory challenges involved "the possible redistribution of millions of dollars from mere fact that these panelists resided in the area served by the asked the panel members whether they would have difficulty going consist of residents from tooele city, as thus, the supreme court has held that a juror who describes a prosecutor insufficient to exhibit bias); chamblee v. stocks, 9 20090122-ca 12 jurisdiction. knowingly opted for the venue where their claim arose rather than criminal action believes that a fair and denial of their motion for change of venue. 1 clint and heidi butterfield, individually and on behalf of sought treatment at the hospital for kylie. could be impaneled, denied the motion. venue. the motion was based on the ground that a fair and whether the impaneled jurors were in fact impartial. out potentially biased jurors. there, the court declined to review the defendant's challenges to juror's disclosure that she had been the victim of crime similar (for official publication) james factors even in the pretrial context. we are aware of one before a jury is impaneled, the trial court must undertake a have difficulty being impartial because she or her husband could challenged juror 13 for cause and requested individual voir dire motion and plaintiffs now appeal. 5 and the city of tooele and certain of its agencies on the other. challenge rather than striking any of the five jurors plaintiffs 2007 ut app 76u, para. 4 n.1 (mem.) (noting that baker's "cure or failed to order a change of venue. see state v. arguelles, 2003 arguelles, 2003 ut 1, 101, 63 p.3d 731 (internal quotation in oral argument the question arose as to whether, having original) (internal quotation marks omitted). similarly, in impartiality, and she said that it would not. jurors are not witnesses." "'[a] juror, who through a personal association with care, as it is the only hospital in the county. in addition, appeal from a jury verdict in favor of sevier valley hospital should have the first opportunity to address a claim of error.'" p.3d 708. for instance, a presumption of bias has been raised in prospective juror's prejudice or bias." id. 17. "although 25 moreover, we are not persuaded by plaintiffs' argument that bias arose from prospective juror's statement that he believed he of fourteen major employers there. the hospital is owned and 20090122-ca 16 its inquiry largely to whether the trial court had "weed[ed] out alleging various grounds of error, including the trial court's that "tooele city residents make up more than one-half of the some personal connection to the facility or its trial witnesses." publication in the pacific reporter. 24 although no utah case has yet applied the invited error i. when a party challenges venue on appeal after trial, the at those." plaintiffs identified numerous potential jurors, id. 53.2 see winfield, 2006 ut 4, 21. accordingly, plaintiffs may not jurisdiction where the action is pending, (the hospital) and ihc health services, inc. (collectively, does not proceed until an impartial jury is obtained."). strikes, eight to sit as jurors, and three to sit as alternates-- p.3d 948 (finding inference of bias arose from prospective (...continued) main question involved in the action, except his interest as a post-verdict appeal. see id. at 980. the plaintiff sued the cultural evidence unrelated to the identity and potential for (utah ct. app. 1992). juror 1 was a friend of the son of gary "[a] juror's bare assurance of her own impartiality" is 27 with respect to plaintiffs' second point, our reading of the 15 in contrast, after trial, no prediction is necessary. denying the motion to change venue. moreover, as noted above, could not be impartial because he was "close personal friends" 32 juror 2 knew dr. chappell and nurse michelle chappell but, pool that individual for-cause challenges do not address" and briefed by the parties rather than something that is raised only and impartial jury, because five of the eight jurors who sat on practice and procedure might dictate that the appellate court elected to bring their lawsuit in salt lake county. perhaps determinative question is whether the case was tried to an their motion for change of venue, which asserted that an 34 in determining whether these jurors were fair and impartial, jurors who sat on this case and, ultimately, passed the jury for discretion "if we conclude that no reasonable [person] would take to discuss juror 13's relationship with a defense witness. accordingly, we hold that when reviewing a post-trial change of remove these jurors.3 under that rule, a juror may be removed for "[p]ecuniary interest 78b-3-307(1) (2008). however, the trial court may change the potential for at least an appearance of impropriety is the same, so ably set forth in the lead opinion. impartial jury could not be impaneled in sevier county due to the 2007 ut 73, 42, 175 p.3d 530. 21 plaintiffs contend that their case was not tried by a fair their daughter kylie butterfield (collectively, plaintiffs), 26 the pretrial contact alleged in the case at bar is of a in response to the trial court's preliminary inquiry based on the 20090122-ca 10 jurors who actually tried the case. resides."). however, without the benefit of briefing and biased merely because they are acquainted with a party or pinder, 2005 ut 15, 62; hamilton, 2003 ut 22, 54. it also analysis, dismissing grantsville's concerns as "mere conjecture": plaintiffs' motion for change of venue.5 affidavit setting forth facts, ask to have we see no reason why the sort of bias alleged in this case should connections that required reversal in stubbs. in stubbs, the complaint. jurors were friends of prosecution witnesses or knew the victim's shortly before they were sworn." id. at 981. although all the in james. see james, 767 p.2d at 552. that test was devised in stage, the determinative question is no longer whether "a fair plaintiffs' counsel "pass[ed] the panel for cause" subject to james, they argue that "there can be a bias built into the jury ) appellate challenge to their impartiality. see state v. baker, 20090122-ca 4 11 at the outset, the parties disagree on the what law the community from which the jury will be drawn rather than apparently satisfied with juror 13's description of the afford the parties an opportunity to address and argue an the jurors who decided the case were biased. plaintiffs identify ) plaintiffs' counsel stated, "well, i won't challenge [juror 10]. cause. we therefore affirm the trial court's denial of county sheriff. see id. the plaintiff argued that because the plaintiffs argue that, due to the hospital's "very prominent id. 13 (alteration in original), the defendant argued, the suggestions from both parties' counsel, removed some potential these allegations constitute "general apprehensions based upon rules of jury selection do not apply. our supreme court recently 35 plaintiffs also contend that an impartial jury could not be the trial of the case transferred to another now complain were biased. presence in a county of less than 20,000 people," two-thirds of sevier valley hospital; and 5 factors. see, e.g., stubbs, 2005 ut 65, 13 ("we have expressly opinion sheriff was an elected official, "a member of one of the oldest an impartial jury in sevier county based on the characteristics (considering potential juror's "brief acquaintance" with nature and extent of publicity." james, 767 p.2d at 552. on jurisdictions have held that a motion for change of venue "is not take place and from whose citizens the jury will be culled." id. insufficient to rebut an inference of bias if one has arisen. is "the district court's ability in voir dire to ferret out a the honorable wallace a. lee 37 at trial plaintiffs did not challenge for cause any of the influence over the juror, the voir dire process . . . already 5 the case was tried in april 2008. days before trial, 2001 ut 35, 38-40, 24 p.3d 948 (stating that failure to relationship was and whether that would affect her." apparently jury for cause, plaintiffs invited any error in the court's


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