Davila Cortes v. Ramos Barroso

Opinion

USCA1 Opinion

February 8, 1994      [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 93-1532

                             IRMA VIOLETA DAVILA CORTES,

                                Plaintiff, Appellant,

                                          v.

                          DR. ANTONIO RAMOS BARROSO, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jaime Pieras, Jr., U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
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                            Coffin, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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                                 ____________________

            A. Santiago Villalonga with whom Law Offices of Harvey B.  Nachman
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        was on brief for appellant.
            Angel R. De Corral-Julia  with whom Ruy V. Diaz-Diaz, De Corral  &
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        De Mier and Jose M. Ramos-Barroso were on brief for appellees.
        _______     _____________________

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Per  Curiam.    Irma  Violeta  Davila  Cortes  sued  her
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            gynecologist,  Dr.   Antonio  Ramos   Barroso,  for   medical

            malpractice,  alleging that  she was  injured  by Dr.  Ramos 

            negligence in performing a hysterectomy upon her on March 21,

            1989.  The case was tried to a jury in January  1993, and the

            jury returned  a verdict for  the defendant.  On  February 2,

            1993, Davila moved for a new trial on the ground that  one of

            the jurors, Ana  Teresa Gonzalez, had improperly  concealed a

            business relationship with the defendant.

                 Davila's  claim is that  Gonzalez incorrectly answered a

            question by the trial judge  at voir dire, thereby precluding
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            plaintiff  from exercising her peremptory challenges in light

            of all  the relevant  facts.   Specifically, the  trial judge

            asked all of the prospective  jurors whether any of them were

            "personally acquainted with this defendant, related to him by

            blood or marriage,  or [if any juror] or any  member of [her]

            immediate family [had] any  connection of any kind with  this

            defendant."   All  the  jurors  responded  in  the  negative.

                 Individual  questioning of  the jurors selected  for the

            trial  panel  revealed  that  Gonzalez  was  employed  as  an

            assistant manager in the credit department of Medics Hospital

            Supply, a  business engaged  in selling  medical supplies  to

            doctors,  patients,  and hospitals.    Although  Gonzalez has

            never indicated that she had any direct relationship with the

            defendant  Ramos, Davila learned  after trial that  Ramos had

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been a client of either Medics or one of its sister companies

            for at least ten years.1   On this basis Davila sought a  new

            trial.

                 The  district court  denied Davila's  motion  for a  new

            trial  on  the  grounds  that  "[p]laintiff  has  offered  no

            evidence that the  defendant and the  juror in question  knew

            each  other or  that the  juror was  biased  in favor  of the

            defendant.   In addition, the plaintiff had ample opportunity

            to question the juror during voir dire concerning whether she

            or   her  employer  had   any  business  dealings   with  the

            defendant."   Davila moved for  reconsideration, pointing out

            that   her  attorneys  were  precluded  by  local  rule  from

            interviewing Gonzalez after trial and that voir dire had been
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            conducted  by the court  without questioning by  the parties'

            attorneys.   The district  court denied  reconsideration, and

            this appeal followed.

                 In McDonough  Power  Equipment, Inc.  v. Greenwood,  464
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            U.S. 548, 556 (1984), the  Supreme Court held that "to obtain

            a  new trial  [based  on  a juror's  inaccurate  answer to  a

            question on voir dire], a party must first demonstrate that a
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            juror failed  to answer honestly a material  question on voir
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            dire, and  then further  show that  a correct  response would
            ____

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                 1Davila also  asserts that  Ramos' office  is two  doors
            down the  block from  one of Medics'  branch offices  in Hato
            Rey;  there is no evidence, however, that this was the office
            at which Gonzalez was employed.

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have provided a valid basis for a challenge for cause."   The

            reason for this requirement is  that "[a] trial represents an

            important  investment of private and social resources, and it

            ill serves  the important end  of finality to wipe  the slate

            clean simply  to recreate  the  peremptory challenge  process

            because  counsel   lacked  an   item  of  information   which

            objectively he should have obtained from a juror on voir dire
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            examination." Id. at 555.     Our  circuit  has  held further
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            that "[w]hen a non-frivolous  suggestion is made that  a jury

            may be biased or tainted by some incident, the district court

            must undertake an  adequate inquiry to determine  whether the

            alleged  incident  occurred   and  if  so,  whether   it  was

            prejudicial."   United States  v. Ortiz-Arrigoitia, 996  F.2d
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            436, 442  (1st Cir.), petition  for cert. filed,  62 U.S.L.W.
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            3496 (November 26,  1993).  Nonetheless, "[a]  district court

            has  broad, though not unlimited, discretion to determine the

            extent and  nature of its  inquiry into allegations  of juror

            bias."  Id.  at 443.  Where the  allegations are unpersuasive
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            on their face,  the district court s discretion  includes the

            discretion to undertake no investigation at all.

                 With  these  principles in  mind,  we find  no  abuse of

            discretion  in the district  court s refusal to  undertake an

            investigation of Davila's allegations.  As the district court

            pointed out, there was no  evidence of any kind that Gonzalez

            knew Ramos.   Even if  we assume arguendo that  Gonzalez knew
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that Ramos did  business with her employer, the  court's voir
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            dire question  about "any  connection of  any kind"  was very
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            general; and nothing in Davila's allegations  is inconsistent

            with the view  that Gonzalez's answer was at  worst an honest

            mistake.  Cf. McDonough, 464  U.S. at 555 ("To invalidate the
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            result  of  a 3-week  trial  because of  a  juror s mistaken,

            though  honest,  response  to  a question,  is  to  insist on

            something closer to  perfection than our judicial  system can

            be expected to give.").  What Davila sought was permission to

            embark upon a fishing expedition, and on this record we think

            that the district court was not obligated to go along.2

                 Any doubt in our minds is eliminated by Davila's failure

            at  voir dire  to inquire  into the  possibility of  business
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            dealings  between   Ramos  and  Gonzalez  after   the  latter

            disclosed  that  she  worked for  a  medical  supply company.

            Although voir  dire  was conducted  by the  trial judge,  the
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            parties had the opportunity to request that certain questions

            be  put  to prospective  jurors.   Given Davila's  failure to

            pursue a  possible  business  connection  between  Ramos  and

            Gonzalez even  after it  was disclosed  that her  company was

            engaged in selling  medical supplies to  doctors, we are  not

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                 2The Second Circuit reached an identical conclusion in a
            remarkably similar case,  holding that no inquiry  into juror
            bias was  required where a  juror failed to disclose  on voir
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            dire that she was an officer at a bank that had dealings with
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            the defendants.   See Clarkson Co. v. Shaheen,  660 F.2d 506,
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            514 (2d Cir. 1981).

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surprised that  the district  court viewed  plaintiff s later

            attempt to revive the issue with a jaundiced eye.

                 Affirmed.
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