Kirk v. Raymark Industries, Inc.
61 F.3d 147 (1995)
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Rule of Law:
The impairment of a party's statutory right to peremptory challenges, which occurs when a trial court's erroneous refusal to dismiss a juror for cause forces that party to use a peremptory challenge, constitutes a per se reversible error without a showing of prejudice.
Facts:
- Alfred Kirk worked as a painter at the New York Shipyard during the late 1950s and early 1960s.
- During his employment, Kirk was allegedly exposed to dust from asbestos products manufactured by Owens-Corning Fiberglas Corporation (“Owens-Corning”).
- Kirk developed malignant asbestos-induced mesothelioma, an asbestos-related cancer.
- Alfred Kirk died from the disease on July 5, 1988, at the age of 65.
Procedural Posture:
- Sarah Kirk, on behalf of herself and her deceased husband's estate, filed a diversity action against Owens-Corning and seven other defendants in the U.S. District Court for the Eastern District of Pennsylvania.
- During jury selection (voir dire), defendant Owens-Corning challenged two prospective jurors for cause, alleging bias.
- The district court denied Owens-Corning's challenges for cause.
- Owens-Corning then used two of its three peremptory challenges to remove the two jurors in question.
- The case proceeded to a bifurcated trial, where the jury first found in favor of Kirk on damages, awarding over $2 million, and then found against Owens-Corning on liability.
- Owens-Corning moved for a new trial, which the district court denied.
- The district court also granted Kirk's application for delay damages.
- Owens-Corning, as appellant, appealed both the judgment and the award of delay damages to the U.S. Court of Appeals for the Third Circuit.
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Issue:
Does a trial court's erroneous refusal to dismiss a juror for cause, which forces a party to use one of its statutorily granted peremptory challenges to remove that juror, constitute a per se reversible error without requiring a showing of prejudice?
Opinions:
Majority - Cowen, Circuit Judge.
Yes. The denial or impairment of the statutory right to exercise peremptory challenges is reversible error per se. Compelling a party to use a statutorily-mandated peremptory challenge to strike a juror who should have been removed for cause is tantamount to giving that party less than its full allotment of challenges. The court found that the district judge abused his discretion by refusing to strike two jurors for cause, as their backgrounds and statements during voir dire raised substantial questions about their ability to be impartial. One juror had extensive personal experience with asbestos, knew people with asbestos-related diseases, and believed he was at high risk himself. The other juror admitted he could not be fair to an asbestos company if it knew its product was hazardous. The district court relied too heavily on their subsequent, and sometimes reluctant, assurances of impartiality. Because Owens-Corning was forced to use two of its three statutory peremptory challenges to correct this error, its right was impaired. The court distinguished this statutory right from the constitutional right to an impartial jury at issue in Ross v. Oklahoma, holding that the long-standing common law remedy for a statutory violation is per se reversal, as established in Swain v. Alabama, without requiring a separate showing that the jury that ultimately sat was biased.
Analysis:
This decision solidifies a critical distinction between a constitutional claim for an impartial jury and a claim for the impairment of a statutory right to peremptory challenges. The court clarifies that while Ross v. Oklahoma requires a showing of prejudice for a constitutional violation, the precedent from Swain v. Alabama mandating per se reversal for the denial of a statutory right remains controlling in federal court. This holding reinforces the significance of peremptory challenges as an independent procedural entitlement, where the impairment itself is the cognizable injury, regardless of the ultimate composition of the jury. Consequently, it lowers the bar for securing a new trial based on voir dire errors, as appellants need only show the trial court erred on a for-cause challenge that forced the use of a peremptory, rather than proving the much more difficult claim that the empaneled jury was actually biased.
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