|September 16, 2013|
Previously published on September 11, 2013
In Turner v. University of Utah Hospitals and Clinics, 2013 UT 52 (Aug. 16, 2013), the Utah Supreme Court ruled that Ms. Turner was entitled to a new trial because the improper inclusion of jury instruction undermined the Court’s confidence in the jury’s verdict. The Court also took the opportunity to rule that the cure-or-waive rule is no longer the standard governing preservation of jury bias.
Ms. Turner argued that her medical malpractice case was prejudiced by the district court’s inclusion of Instruction No. 30, which stated that “it is not medical malpractice for a provider to select one of the approved methods . . . [w]hen there is more than one method of treatment.” The Court sided with Turner and ruled that Instruction No. 30 was erroneous and prejudicial. In siding with Turner, the Court ruled that the court of appeals had misapplied language from Butler v. Naylor, 1999 UT 85, which stated: “When a civil case is submitted to a jury on several alternative theories and the jury does not identify which theory or theories it relied on in reaching its verdict, we may affirm the verdict if the jury could have properly found for the prevailing party on any one of the theories presented.” The Court held Butler was distinguishable from the case at hand because there was only one claim asserted by the plaintiff in the case at hand, a claim for medical malpractice. Since Turner advanced only one theory for recovery, the Court’s confidence in the jury verdict was undermined because Instruction No. 30 expressly foreclosed the avenue of recovery set forth in Instruction No. 27 if the jury found that there were alternative, approved methods of treatment. The Court also noted that even if the court of appeals was correct in assuming that the jury could have relied on the theory presented in Instruction No. 27 to support its verdict, Instruction No. 30 was still erroneous because there was no evidence supporting the existence of an alternative, approved treatment method.
Having already found that Ms. Turner was entitled to a new trial because of the erroneous inclusion of Instruction No. 30, the Court took the opportunity to clarify the applicable standard for preserving an argument based on jury bias for appeal and ruled that the cure-or-waive rule is no longer the standard governing preservation of jury bias. In place of cure-or-waive, the court adopted the rule stated in People v. Hopt, 9 P. 407, 408 (Utah Terr. 1886), aff'd, 120 U.S. 430 (1887), in its stead. The new rule requires that a party utilize all available peremptory challenges before the issue of jury bias can be raised on appeal, but it does not require that a party use those challenges in a particular way. In other words, under the new rule, parties need not use all of their challenges on jurors who were previously challenged for cause in order to preserve the issue of jury bias for appeal. Rather, as long as (a) all of the party’s peremptory challenges are used; and (b) a juror who was previously challenged for cause ends up being seated on the jury, the issue of jury bias will be preserved.