Pearson v. Philip Morris USA Inc.
Pearson v. Philip Morris USA Inc.
Opinion of the Court
*443Judith Pearson, as personal representative of the Estate of Donald Pearson, appeals the judgment entered in favor of Philip Morris USA Inc. in this Engle
During voir dire, counsel for both the Estate and Philip Morris questioned the venire in an effort to reveal any biases or prejudices. One of the initial questions posed by the Estate was, "When you heard this is a man who smoked cigarettes, smoked them till [sic] he got sick and ultimately he died from cigarette smoke and now his family is suing the tobacco company that sold those cigarettes, how many of you said, What? What? Why?" A number of prospective jurors responded affirmatively to the question, one of whom was Juror Ray. And when individually questioned about his response, Juror Ray expressed his opinion that the Estate would begin "in the red" and many questions would need to be answered for the Estate "to move." Juror Ray stated that he believed smoking to be a choice, "more something they just decide to do on their own rather than really being pushed into it one way or another." He also stated that while he believed he could keep an open mind and hear the evidence, the Estate "would have an uphill argument to make."
After further questioning of the venire, the Estate's counsel returned to Juror Ray and asked him to remind counsel what his thoughts were with regard to the Estate's lawsuit. Juror Ray responded that he felt the Estate would start "a little behind" because smoking is "a matter of personal choice" and "that's a large barrier on a situation like this." He also stated that his opinion would be measured against the evidence but would be difficult to set aside.
The court granted a number of cause challenges to prospective jurors, a few based on the their opinions with regard to smoking being a conscious choice and the Estate starting at a disadvantage or with a strike against it. The Estate sought to excuse Juror Ray for cause based on his statements that the Estate would begin "in the red" and that smoking was a personal choice. After hearing argument from both parties, the court denied the cause challenge.
The court then turned to peremptory challenges, allowing three per side which could only be used on the six jurors then on the panel. The court would not permit peremptory challenges on alternate jurors:
So if we get to alternates and you've got a peremptory, you've got to come back and use it against someone who will be in the six. And then you don't - can't use alternate picks back in the six. And then you have an alternate for - you have a strike for the first alternate and the second alternate.
*444Once we have the first alternate, if you didn't use a strike, you don't get to save it and use it on the second. So you don't end up with two on the second.
The Estate used one peremptory challenge initially; the panel was then agreed upon, subject to backstrikes. The record is somewhat confusing as to what exactly happened next, but what emerges is that although the Estate's counsel clearly exercised the first alternate challenge, he also sought to clarify the identity of the first alternate juror. Juror Padgett was the first alternate; however, counsel for the Estate appears to have mistakenly believed that someone other than Juror Padgett was the first alternate. While the Estate's counsel was attempting to resolve the identity of the first alternate, Philip Morris's attorney was permitted to backstrike a panel member, out of turn, which resulted in Juror Padgett being seated on the jury and negating the Estate's first alternate strike. The following exchange occurred between the Estate's counsel and the trial court:
Estate's counsel: All right. So just so I understand what happened. I was counting to see if I was on the correct alternate, and then I heard, "I'll exercise a peremptory."
The court: That's right.
Estate's counsel: You allowed him to interrupt the alternate challenge to use a peremptory.
The court: I did.
Estate's counsel: Okay. I guess I have to object to the interruption in my exercise of the alternate.
The court: All right. You can object.
Philip Morris used its three peremptory challenges on backstrikes, and the Estate used its final two peremptory challenges on backstrikes, including striking Juror Ray. Counsel for the Estate argued: "In light of your denial for cause, plaintiff renews for cause and/or requests an additional peremptory challenge.... We would have - we would have exercised on Padgett if cause for Ray had not been denied." The court denied the cause challenge and the request for an additional peremptory challenge. Juror Padgett ultimately served as the foreperson of the jury.
"We apply the abuse of discretion standard to a trial court's decision to deny a challenge for cause to a potential juror." Pelham v. Walker,
A trial court's determination of whether a juror can render a verdict based on the evidence presented involves an evaluation of "all of the questions and answers posed to or received from the juror." Although a juror's assurances of impartiality may suggest to a court that the denial of a challenge for cause may be appropriate, such assurances are neither determinative nor definitive. Assurances of impartiality after a proposed juror has announced prejudice [are] questionable at best.
*445Matarranz v. State,
"[E]xpenditure of a peremptory challenge to cure the trial court's improper denial of a cause challenge constitutes reversible error if a [party] exhausts all remaining peremptory challenges and can show that an objectionable juror has served on the jury." Busby v. State,
*446The trial court abused its discretion in failing to excuse Juror Ray for cause, wrongfully forcing the Estate to exhaust its peremptory challenges. Accordingly, we reverse and remand for a new trial.
Reversed and remanded.
VILLANTI and MORRIS, JJ., Concur.
Engle v. Liggett Grp., Inc.,
The Estate moved for a mistrial based on the court's decision to negate its use of the alternate strike and to allow Philip Morris's backstrike to stand. Interestingly, the motion was denied despite the fact that Philip Morris did not oppose granting a mistrial, albeit for different reasons.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.