In a Massachusetts medical malpractice case on appeal in which the sole issue was whether the trial judge abused his discretion in setting limitations on attorney-conducted voir dire of the prospective jurors where the plaintiffs alleged that the defendant doctor should have directed the decedent to be seen immediately in person, and that this would have resulted in the discovery of the decedent’s undiagnosed diabetes in time to save her life, the trial judge told the parties’ attorneys that he would be asking the juror six questions and allow the attorneys appropriate follow-up questions. The plaintiffs’ attorney requested that the prospective jurors be asked if “they have any feelings against medical malpractice lawsuits.” The trial judge declined to ask that and told the plaintiffs’ attorney that he could not ask it either. The trial judge explained that the prospective jurors “know it’s a medical malpractice case. I’m going to ask them generally if they have any biases or opinions. I’m just going to cover it that way. I’m not going to let you get into any questions that get on the line in prejudging the case.” The trial judge further explained that his “general questions are questions about bias or is there any reason why they couldn’t be a fair and impartial juror in this case based solely on the evidence . . . that’s presented to [them]. If they have a bias, I think it’s going to be flushed out that way.” The jury returned a defense verdict, and the plaintiffs appealed.
Massachusetts Jury Voir Dire
In the Massachusetts Superior Court, trial judges must permit attorney-conducted voir dire upon request. Rule 6(3)(b) of the Rules of the Superior Court (2017) states “The trial judge shall allow attorney or party voir dire if properly [and timely] requested.” Nonetheless, the scope of a voir dire is in the sound discretion of the trial judge and will be upheld absent a clear showing of abuse of discretion.
Among other restrictions, counsel is forbidden from asking questions framed in terms of how the juror would decide this case, questions about what evidence would cause the juror(s) to find for the attorney’s client, and questions that argue an attorney’s or party’s case or indoctrinate any juror(s). There is no categorical bar against questions that are specific to the case, nor is a party forbidden from trying to discern a prospective juror’s sympathies, such as, for example, asking whether a prospective juror would have sympathy with either an injured patient or a doctor who has been sued that might affect the prospective juror’s ability to be fair or impartial.
The Massachusetts Appeals Court stated in its July 19, 2024 decision: “Here, the trial judge acted within his discretion in rejecting the plaintiffs’ questions, at least as they were phrased, as confusing and phrased in a manner that appeared designed to persuade the jury before the evidence began. The judge, although not asking the questions proposed by the plaintiffs’ attorney, did explore potential juror bias against persons seeking money in a medical malpractice lawsuit, by “ask[ing the prospective jurors] generally if they have any biases or opinions” after telling them that the case was a medical malpractice lawsuit. Additionally, the judge asked several more pointed questions about prospective jurors’ experience with health care providers and medical issues, including asking one question that was nearly identical to a question proposed by the plaintiffs’ attorney.”
“We hold merely that excluding the particular questions here while inquiring into the same topic area with other questions was within the judge’s broad discretion to manage the jury selection process while accommodating attorney-conducted voir dire.”
Source Ross v. Dietrich, No. 22-P-1227.
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