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CANTRELL, et al.



January 14, 2000

Record No. 990224






Present: All the Justices

J. Samuel Johnston, Jr., Judge

This is the appeal of a judgment in a tort
action for damages arising from a motor vehicle accident. The
dispositive issue is whether the trial court erred in refusing to
strike for cause a prospective juror.

In January 1995, appellee Deborah W. Crews was
operating an automobile that was stopped on a street in the City
of Lynchburg. Her vehicle was struck from the rear and she was
injured as a result of the negligence of appellant Timothy L.
Cantrell, who was operating a truck owned by his employer,
appellant Winn-Dixie Raleigh, Inc. The plaintiff sustained a
"soft tissue" injury that was diagnosed as a cervical
sprain, for which she brought this action against defendants
seeking recovery in damages.

In an October 1998 trial, the defendants
admitted liability and the case was tried on the issue of damages
only. A jury found in favor of the plaintiff and fixed her
damages at $108,812.87. The trial court overruled the defendants’
motion to set the verdict aside and entered judgment on the
verdict. We awarded defendants an appeal limited to consideration
of four assignments of error.

An issue raised by a portion of one of those
assignments of error is dispositive of this appeal. The issue is
whether the trial court erred in refusing to strike for cause a
prospective juror who, at the time of trial, was a client of the
law firm representing the plaintiff.

There is no dispute in the facts relevant to
the issue we decide. The motion for judgment was on stationery of
"Law Office / Overbey, Hawkins & Selz / Rustburg,
Virginia." The pleading was signed by Mr. Hawkins as
"Of Counsel" for "Overbey, Hawkins &
Selz." Hawkins appeared at trial as attorney for the

During jury voir dire, after asking whether
"anybody" knew the plaintiff’s trial attorney, the
trial court specified the name of Hawkins’ law firm and
identified by name each member of the firm, including "Bryan
Selz." The court then asked, "Does anybody know any of
those individuals or been represented by them or this firm or
have any contact with them?"

Responding, prospective juror Holly Clingempeel
stated that she knew Selz and said, "He’s representing
me." When the court asked, "How long ago?", the
juror responded, "It’s still going on."

Later during voir dire, while being questioned
by defendants’ attorney, Clingempeel revealed that her
representation by Selz arose from "a car accident" and
stated that she sustained "[n]eck and back" injuries.
She said that she had filed a "lawsuit"; that the suit
"is continuing right now"; and that Selz is
representing her "in that."

Upon being asked by the court whether the fact
that Hawkins or a member of his law firm was
"currently" representing her would have "any
bearing" on her judgment, Clingempeel responded,
"No." She further stated that she could
"assure" the court "under oath" that she
could "ignore" her representation by the plaintiff’s
law firm "and be totally fair to both sides."

The trial court denied defendants’ motion to
strike for cause Clingempeel, as well as two other prospective
jurors. In ruling on the motion, the court stated it believed the
three jurors "can ignore any personal sort of contact or
relationship or association they have with Mr. Hawkins, his firm,
. . . and the like and be fair and that’s the only

Elaborating, the trial court stated:
"Campbell County is of such a nature that in this community
people are going to know each other and have some kind of
association and the association as described to me by the three
folks to whom you objected to was not such that in and of itself
prejudiced them or made an obvious bias or would lend itself to
an obvious bias on their behalf."

Concluding, the trial court said: "I was
impressed with their answers and I believe them to be truthful
and I found nothing wrong with them sitting as jurors
. . . ."

The plaintiff contends the trial court
correctly refused to strike Clingempeel for cause. We disagree.

Parties to litigation are entitled to a fair
and impartial trial by a jury of persons who "stand
indifferent in the cause." Code ? 8.01-358.
"[T]he right to a fair and impartial trial in a civil case
is as fundamental as it is in a criminal case. The civil courts
constantly strive to protect this right. It lies at the very
basis of organized society and confidence in our judicial
system." Temple v. Moses, 175 Va. 320, 336, 8 S.E.2d
262, 268 (1940).

Upon review, the appellate court gives
deference to the trial court’s decision whether to retain or
exclude prospective jurors. Vinson v. Commonwealth, 258
Va. 459, ___, ___ S.E.2d ___, ___ (1999). And, a trial court’s
decision on this issue will be affirmed unless there has been
manifest error amounting to an abuse of discretion. Id. at
___, ___ S.E.2d at ___.

Recently, we considered in a condemnation case
an issue almost identical to the present one. In City of
Virginia Beach v. Giant Square Shopping Center Co.
, 255 Va.
467, 498 S.E.2d 917 (1998), one ground of a condemnor’s objection
to the seating of a prospective commissioner was that the
commissioner, at the time of trial, was a client of the
landowners’ counsel.

There, we noted that, by statute, the issue of
just compensation is to be determined by a commission of
"disinterested freeholders," and that, regarding the
disqualification of commissioners for cause, the eminent domain
statutes must be administered in a manner that promotes
confidence in the integrity of the judicial process. Id.
at 470, 498 S.E.2d at 919.

Thus, we held the trial court abused its
discretion in refusing to dismiss the commissioner for cause,
stating that "it is extremely unlikely the public would have
confidence in the integrity of the process when a commissioner
has the identity of interests demonstrated by this prospective
commissioner." Id. at 471, 498 S.E.2d at 919. We
said, "This is true even though, as the record shows, the
commissioner is a ‘respected member of the community’ and ‘known
to be a man of integrity,’ who may be determined to discharge his
duties in a forthright and unbiased manner." Id.

The same reasoning will be applied to this
case. There is no meaningful difference regarding the interest
factor under these circumstances between the statutory
requirements for a trial by jury of persons who "stand
indifferent in the cause" and for just compensation to be
determined by a commission of "disinterested
freeholders." Public confidence in the integrity of the
process is at stake. It cannot be promoted when a sitting juror
is, at the time of trial, a client of the law firm representing
one of the parties to the litigation as a result of a similar

This is true even though, as the record shows,
the juror states that the circumstances of her representation
would have no "bearing" on her judgment as a juror and
that she could "be totally fair to both sides." We have
no doubt that Clingempeel was sincere in her beliefs and that she
was determined to discharge her duties in a forthright and
unbiased manner.

And, the fact that the venue is a community
where "people are going to know each other and have some
kind of association," as the trial judge noted, does not
diminish the court’s obligation to assure that a litigant’s case
will be heard and decided by a fair and impartial jury.

Therefore, we hold that the trial court abused
its discretion in refusing to dismiss the juror for cause and
that this constitutes reversible error.

Because the case will be remanded and the
evidence may be different upon a new trial, we shall address only
one of the remaining issues presented on appeal. The defendants
contend that the trial court erred in limiting their
cross-examination of the plaintiff’s treating orthopedic
physician, who testified by deposition.

Upon direct examination, the physician, after
concluding that the plaintiff sustained a soft tissue injury
amounting to a cervical sprain, opined she had a ten percent
permanent disability and would require future medical treatment.
On cross-examination, defendants elicited from the physician that
he had written in his notes that, in his experience, many
patients involved in litigation stemming from soft-tissue
injuries frequently cease medical treatments "when the
litigation is resolved." The physician stated he
"certainly considered that" in his evaluation of the
plaintiff’s complaints.

The trial court excluded this portion of the
deposition testimony, over defendants’ objection. The court
reasoned the physician "was too equivocal"; "[h]e
merely said I certainly considered that"; and, the testimony
"was too speculative."

Based on the state of this record, we cannot
say that the trial court abused its discretion and thus erred in
refusing to permit the defendants to offer this evidence to
discredit the physician’s opinion on permanency and on the
plaintiff’s need of future medical treatment.

Thus, if the state of the record does not
change upon a new trial, this equivocal and speculative testimony
should not be allowed. But see Mastin v.
, 238 Va. 434, 437-38, 384 S.E.2d 86, 88 (1989)
(medical testimony admitted that in people with personalities
like the plaintiff’s "there is a definite potential for
motives of secondary gain, arising out of the possibility of
recovery of money damages in a lawsuit").

Therefore, the judgment below will be affirmed
in part, reversed in part, and the case will be remanded for a
new trial, limited to the issue of damages only.

Affirmed in part, reversed in part, and