Motions for a New Trial Based on Non-Disclosure by Prospective Jurors During Voir Dire

by Judge James L. Kimbler

The Ohio Supreme Court in Grundy v. Dhillon (2006), 120 Ohio St 3d 415, set forth the test to be used by Ohio courts if a party seeks to have a new trial because a juror didn't fully answer questions during the voir dire examination.

Grundy involved a lawsuit for malpractice by an emergency room doctor at a hospital in Trumbull County. The allegations were that the doctor did not properly treat a young woman who came to the emergency room for treatment because of nausea, chills, and jaw pain.

During the voir dire examination, the jury was asked about any prior admissions at Trumbull Memorial Hospital. One juror didn't disclose that his son had been treated at that hospital and that he had a low opinion of its care.

After a defense verdict was announced, one of the plaintiff's attorneys was talking to the jury panel when the non-disclosing juror made some statements regarding the hospital. His comments led to the filing of a motion for a new trial.

The test is found in the first paragraph of the opinion syllabus:

1. To obtain a new trial in a case in which a juror has not disclosed information during voir dire, the moving party must first demonstrate that a juror failed to answer honestly a material question on voir dire and that the moving party was prejudiced by the presence on the trial jury of a juror who failed to disclose material information. To demonstrate prejudice, the moving party must show that an accurate response from the juror would have provided a valid basis for a for-cause challenge. (Pearson v. Gardner Cartage Co., Inc. (1947), 148 Ohio St. 425, 36 O.O. 77, 76 N.E.2d 67, paragraph two of the syllabus, and McDonough Power Equip., Inc. v. Greenwood (1984), 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663, followed.)

Further, in the second paragraph of the syllabus, the Court adopted an abuse of discretion standard for appellate courts when reviewing the actions of a trial court in conducting a hearing regarding a motion for a new trial:

2. In determining whether a juror failed to answer honestly a material question on voir dire and whether that nondisclosure provided a basis for a for-cause challenge, an appellate court may not substitute its judgment for the trial court's judgment unless it appears that the trial court's attitude was unreasonable, arbitrary, or unconscionable. (Pearson v. Gardner Cartage Co., Inc. (1947), 148 Ohio St. 425, 36 O.O. 77, 76 N.E.2d 67, paragraph two of the syllabus, followed.)

When the trial court denied the motion for a new trial, it commented that while the juror may not have answered all the questions fully, the trial court didn't believe that the juror gave false information in the questions he did answer. The trial court looked at the answers as being incomplete as opposed to false.

Plaintiff's counsel focused on the fact that had he known the total information, he would have used a preemptory challenge to remove the juror. The Ohio Supreme Court, however, decided that it is not enough to claim that the juror wouldn't have been seated because of a preemptory challenge. Rather, the moving party must show that a "for cause" challenge would have been granted.

The Grundy case has been followed by the Court of Appeals for the First Appellate District in Effective Shareholder Solutions, Inc. v. National City Bank, 2009 Ohio 6200. In the Shareholders case, the juror was an attorney who worked for a large law firm that at one time represented one of the parties in the litigation.

In affirming the trial court's decision not to grant a new trial, the appellate court wrote the following:

"In Grundy v. Dhillon, the Ohio Supreme Court addressed the question of when a party is entitled to a new trial on the basis of a juror's failure to disclose information during voir dire. The court held that the moving party must show that a juror failed to answer honestly a material question on voir dire and that the moving party was prejudiced by the presence on the trial jury of a juror who failed to disclose material information."

"ESS failed to satisfy the first part of the Grundy test--that [the attorney] failed to answer a material question honestly. At no point in its argument below or before this court has ESS pointed to a question that [the attorney] answered incorrectly. ESS argues that "while ESS does not contend that [the attorney] deliberately failed to disclose his two conflicts of interest, he nevertheless failed to inform the Court that his law firm represented one of the parties at the time of the trial and that his wife's firm represented the predecessor bank, Provident." ESS contends that this is "sufficient to satisfy the first prong of the Grundy test." It is not."

In both the Grundy case and also the ESS case, the appellate courts focused on the determination by the trial court that the juror had not been dishonest, i.e., had not deliberately left out the missing information. Once that is shown, then the next question is, whether the trial court would have sustained a challenge for cause if the missing information had been known.

In Grundy, the trial court had determined that the juror had not intentionally left out the information and that if known the information would not have resulted in a successful challenge for cause. In the ESS case, the Court of Appeals did not address the issue of whether the trial court would have sustained a challenge for cause because it found that the attorney had not intentionally omitted the information regarding his firm's involvement with one of the parties.

So, if a motion for a new trial is filed because of a juror not completely answering questions on voir dire, the trial court must first determine whether the information was intentionally omitted and if it was, whether the omitted information would have led to a successful challenge for cause. Unless both parts of the test are satisfied, the motion must be denied.