Juror's Admission of Bias Is Not Enough to Strike for Cause

• Pages: 25-26
• Date: 01 January 2024
• Author: Leslie R. Snider
• Subject Matter: Civil Law

disclosed. The trial court granted the

manufacturer’s summary judgment

motion, reasoning that the plaintis

could not prove the company’s inad-

equate warning caused the woman’s

injury and that the prescribing physi-

cian’ testimony established “that no

dierent warning would have changed

the prescribing decision and avoided

the injury.”

The U.S. Court of Appeals for the

Eleventh Circuit armed, explaining

that the learned intermediary doctrine

“imposes on prescription drug manu-

facturers a duty to adequately warn

physicians, rather than patients, of the

risks their products pose.” A plainti

claiming that a manufacturer’s warn-

ing was inadequate bears the burden of

establishing that an improved warning

would have caused his or her doctor

not to prescribe his or her the drug in

question.

The Eleventh Circuit held that under

the doctrine, the drug company did not

have a duty to warn the woman about

product risks; its sole duty was to warn

her prescribing physician. Since the

woman’s prescribing physician knew

about the associated risks with the

drug and would have prescribed it even

if he knew about the additional risks,

the woman was unable to meet her

burden.

Litigation Section leaders disagree

as to whether the learned intermedi-

ary doctrine is benef‌icial. “In the initial

decisions, courts created the doctrine

as a means to avoid the argument

that there was no privity of contract

between patients and drug manufactur-

ers,” notes Janet G. Abaray, Cincinnati,

OH, Section member. “By creating the

construct of the ‘learned intermediary,’

courts were able to protect plaintis in

cases where manufacturers gave inad-

equate warnings to physicians who pre-

scribed drugs to the patients. Over the

decades, the concept developed into

a defense against claims by patients

who claimed injury due to prescription

drugs,” she continues.

Other Section leaders believe

that the doctrine serves its purpose.

“The learned intermediary doctrine

does a good job of allocating risk to

all parties involved (e.g.,manufac-

turer, physician,patient,pharmacy),”

explains Tonya G. Newman, Chicago,

IL, cochair of the Section’s Products

Liability Litigation Committee. “The

FDA approval process is complicated

and thorough; so as long as the manu-

facturer is not hiding any known risks,

itshould be able to rely on the safe

harbor created by the approval of the

label,” says Newman.

Juror’s Admission of

Bias Is Not Enough

to Strike for Cause

By Leslie R. Sn ider, Litigation News

Contributing Editor

In a criminal trial where the defendant

gambled away stolen funds, a potential

juror opposed to gambling was nev-

ertheless seated on the jury. A federal

appellate court armed a ruling refus-

ing to strike the juror for cause, even

though her views raised questions of

impartiality. ABA Litigation Section

leaders believe the ruling is an impor-

tant reminder for litigators to exten-

sively question potential jurors about

their biases to adequately preserve

grounds for appeal.

In United States v. Dejean, a justice

of the peace was indicted for stealing

court funds and falsely obtaining bank

loans, which he then spent gambling

in casinos. During voir dire, defense

counsel asked Juror 31 about her views

on gambling, to which she responded,

“I don’t agree with it. I just think it’s

silly, a way to throw your money away,

personally.” When asked whether her

anti-gambling views might impact her

sitting in judgment over an avid gam-

bler, Juror 31 responded, “Possibly.”

Defense counsel also asked Juror 31

whether she believed she should sit on

the case, and Juror 31 responded, “No.”

After exhausting all peremptory

challenges, defense counsel moved

to strike Juror 31 for cause. The U.S.

District Court for the Eastern District of

Louisiana denied the motion. Following

the defendant’s conviction, defense

counsel moved for a new trial based on

the bias of Juror 31. The district court

again rejected the motion, holding that

“it was the court’s impression that Juror

31’s ultimate acquiescence was made in

response to leading questions, and out of

a desire to simply end the questioning.”

On appeal, the U.S. Court of Appeals

for the Fifth Circuit armed the dis-

trict court’s decision. Though Juror

31’s comments “raise[d] questions

about the juror’s impartiality,” the

court noted that “[t]he district court

properly assessed Juror 31’s testimony

holistically, including her statement

at the beginning of voir dire that she

could put aside her personal views and

decide the case on the evidence . . .”

The court of appeals reached its con-

clusion by relying on United States v.

Hinojosa, Celestine v. Blackburn, and

United States v. Apodaca, a triad of

Fifth Circuit decisions allowing jurors

with even greater bias to remain on the

jury.

The appellate court also rejected

defense counsel’s argument that

the U.S. Supreme Court’s holding in

United States v. Martinez-Salazar con-

trolled the case. In Martinez-Salazar, a

potential juror stated he “would prob-

ably tend to favor the prosecution”

because he “assume[d] that people are

on trial because they did something

wrong.” The Fifth Circuit distinguished

Martinez-Salazar, stating there was

“undisputed bias” expressed against

all criminal defendants in that case. By

contrast, in Dejean, “the district court

armatively found that Juror 31’s views

on gambling . . . would not prevent her

from being impartial.”

Nor did the Fifth Circuit believe that

the brevity of the line of questioning

amounted to an abuse of discretion,

though it noted that “a follow-up ques-

tion may have been warranted given

Juror 31’s unqualif‌ied response and the

relatively short voir dire.”

Litigation Section leaders believe

that it is vital to keep digging deep into

the responses of a juror when potential

bias issues appear. “First, jurors must

articulate why they should not be on

the jury. Many jurors view jury duty as

disruptive and inconvenient. The attor-

neys, or the court, must inquire as to

the reason jurors believe they should

not be on the jury,” explains John S.

Austin, Raleigh, NC, cochair of the

Section’s Trial Practice Committee.

“Generally, courts in their gatekeep-

ing role should disqualify jurors who

admit that they carry a bias which

causes them to believe they should

not sit on the jury,” states Tiany J.

deGruy, Birmingham, AL, cochair of

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