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    This document is a court ruling on an appeal from the United States District Court for the District of Utah. The appellate court ruled that: 1) The content of voir dire questions in federal court is determined by the Federal Rules of Civil Procedure, not state law, and is at the discretion of the trial court judge. 2) The trial court judge in this case did not abuse their discretion in their questioning of potential jurors, as their questions were adequate to identify potential bias. 3) The appellant failed to demonstrate that they were prejudiced by the trial court's conduct of voir dire. Therefore, the appellate court affirmed the lower court's ruling.

    Original Description:

    Filed: 1997-02-24 Precedential Status: Precedential Citations: 107 F.3d 816 Docket: 96-4049

    Original Title

    Smith v. Vicorp, Inc., 107 F.3d 816, 10th Cir. (1997)

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    This document is a court ruling on an appeal from the United States District Court for the District of Utah. The appellate court ruled that: 1) The content of voir dire questions in federal court is determined by the Federal Rules of Civil Procedure, not state law, and is at the discretion of the trial court judge. 2) The trial court judge in this case did not abuse their discretion in their questioning of potential jurors, as their questions were adequate to identify potential bias. 3) The appellant failed to demonstrate that they were prejudiced by the trial court's conduct of voir dire. Therefore, the appellate court affirmed the lower court's ruling.

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    Public Domain
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    17 views7 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    This document is a court ruling on an appeal from the United States District Court for the District of Utah. The appellate court ruled that: 1) The content of voir dire questions in federal court is determined by the Federal Rules of Civil Procedure, not state law, and is at the discretion of the trial court judge. 2) The trial court judge in this case did not abuse their discretion in their questioning of potential jurors, as their questions were adequate to identify potential bias. 3) The appellant failed to demonstrate that they were prejudiced by the trial court's conduct of voir dire. Therefore, the appellate court affirmed the lower court's ruling.

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    of 7

    F I L E D

    United States Court of Appeals


    Tenth Circuit

    PUBLISH

    FEB 24 1997

    UNITED STATES COURT OF APPEALS

    PATRICK FISHER

    TENTH CIRCUIT

    Clerk

    PENNY SMITH,
    Plaintiff-Appellant,
    No. 96-4049

    v.
    VICORP, INC., a Colorado
    corporation, dba Village Inn
    Restaurants and BRAD LE BARON,
    Defendants-Appellees.

    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.

    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
    Honorable William F Downes, District Judge, United States District
    Court for the District of Wyoming, sitting by designation.
    *

    -2-

    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,
    -3-

    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 Act 2 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
    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:
    2

    (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.
    -4-

    (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 Circuits 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
    courts 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
    -5-

    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 courts 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?
    Appellants App. at 81-82. This line of questions was adequate to reveal the
    seeds of potential tort reform bias and to alert plaintiffs counsel to the possible
    need to exercise a preemptory challenge. The courts refusal to ask the specific
    -6-

    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 courts 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). Plaintiffs speculation that the jurys 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.

    -7-

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