Nissan North America, Inc., and Nissan Motor Co., Ltd. v. Alise Henderson-Brundidge

[[COURTLISTENER_SUBOPINION {"id":"11181992","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
Rel: October 31, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2025-2026

_________________________

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_________________________

Nissan North America, Inc., and Nissan Motor Co., Ltd.

Alise Henderson-Brundidge

Appeal from Mobile Circuit Court
(CV-20-901869)

COOK, Justice.

Alise Henderson-Brundidge ("Alise") sued Nissan North America,

Inc., and Nissan Motor Co., Ltd. (referred to collectively as "Nissan"),
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asserting, among others, a claim under the Alabama Extended

Manufacturer's Liability Doctrine ("the AEMLD"). Specifically, she

alleged that Nissan had manufactured a defective airbag system and that

she was seriously injured as a result of that defective airbag system. The

jury returned a $8.5 million verdict in favor of Alise on her AEMLD claim.

After the verdict, Nissan discovered that two members of the jury panel

had failed to disclose, when asked to do so during voir dire, that they had

each been named as defendants in multiple civil lawsuits. Nissan

subsequently filed a renewed motion for a judgment as a matter of law

or, in the alternative, motions for a new trial or for a remittitur.

The Mobile Circuit Court denied those motions. First, it concluded

that, because Alise had presented substantial evidence in support of her

AEMLD claim, Nissan was not entitled to a judgment as a matter of law.

As to the motion for a new trial, the trial court explained that, "[i]f

given a free hand, [it] would grant the motion for new trial upon a finding

that the failure of the two jurors to truthfully respond resulted in

probable prejudice," but it stated that this Court's decisions in Jimmy

Day Plumbing & Heating, Inc. v. Smith,
964 So. 2d 1
(Ala. 2007), and

Hood v. McElroy,
127 So. 3d 325
(Ala. 2011), left it with no choice but to
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deny Nissan's motion for a new trial. The trial court also denied Nissan's

alternative request for a remittitur.

Nissan now appeals to this Court. After carefully considering the

briefs and the record on appeal, we affirm the trial court's denial of

Nissan's motion for a judgment as a matter of law. However, because we

conclude that the trial court declined to exercise its discretion based on

an erroneous belief that our decisions in Jimmy Day Plumbing and Hood

deprived it of any discretionary power, we reverse the denial of Nissan's

motion for a new trial and remand the case to allow the trial court to

exercise its discretion, guided by the principles enunciated below.

Facts and Procedural History

On October 5, 2018, Alise was riding to her mom's workplace with

Lola Rodriques, a school friend, and Lola's younger sister Nyla. Lola was

driving Alise and Nyla in a 1998 Infiniti QX4. Alise was in the front

passenger seat, wearing a seat belt, and Nyla was in the back seat. Lola

was traveling in the left-hand turning lane on McVay Drive in Mobile

when a 2015 Ford Fusion, exiting the parking lot of a Shell gas station

and attempting to proceed north on McVay Drive, crossed traffic and

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collided with her vehicle. 1 Although the collision was relatively minor,

Alise suffered serious injuries to her eyes when the Infiniti's front

passenger airbag deployed and struck her in the face. Although Alise

slowly regained vision in her right eye, she suffered irreparable and

permanent vision loss in her left eye, rendering her blind in that eye.

In October 2020, Kelley Morgan, as mother and next friend of Alise,

commenced an action against Nissan in the Mobile Circuit Court.2 Her

complaint asserted a product-liability claim under the AEMLD, claims of

negligent and wanton design, and claims of negligent and wanton failure

to warn.3 More specifically, the complaint alleged that Alise suffered

1When the vehicles collided, the Fusion was traveling about seven

miles per hour and the Infiniti was traveling about 14 miles per hour.
2At the time of the accident, Alise was 15 years old and a sophomore

in high school. Alise was still a minor when the case was commenced.
However, she reached the age of majority while the case was pending,
and the trial court substituted Alise as the named plaintiff before opening
statements on the second day of trial.

3In the complaint, Alise, Lola, and Nyla, through their respective

mothers and next friends, also asserted claims against Cassie Marie
Sowa, the driver of the Fusion. Lola and Nyla separately asserted a claim
against State Farm Mutual Automobile Insurance for uninsured-
motorist or underinsured-motorist benefits. The claims against Sowa
were subsequently dismissed, and Lola and Nyla later settled their claim

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severe injuries as a result of the Infiniti's defective airbag system and

sought damages for permanent injury, disfigurement, pain and suffering,

mental anguish, and loss of enjoyment of life.

I. Voir Dire

On June 6, 2023, the case proceeded to trial on Alise's AEMLD and

negligence claims against Nissan. 4 A venire of 36 persons was sworn and

empaneled. J.B. and F.W. were among the prospective jurors. The trial

court questioned the venire first, followed by counsel for Alise. Alise's

counsel asked the venire if "anyone ever filed a lawsuit before where you

were a Plaintiff in a lawsuit." Several prospective jurors responded

affirmatively. Among them was J.B., who stated that she had been a

plaintiff in a class-action suit against a financing company and that her

son had been a plaintiff in a suit against the Boy Scouts.

Counsel for Alise then asked:

against State Farm. Thus, all the claims but those asserted by Alise
against Nissan were disposed of in the course of proceedings.

4Shortly before trial commenced on June 6, 2023, the trial court

entered a summary judgment in favor of Nissan on Alise's wanton-design
and negligent- and wanton-failure-to-warn claims -- leaving only Alise's
AEMLD and negligent-design claims against Nissan for the jury to
decide.
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"Let's switch it around. Has anyone ever been sued before?
Anyone ever been sued before?"

(Emphasis added.) Only prospective juror C.J. responded affirmatively to

that question, stating that she had been sued following an accident that

took place when her brother was driving her car.

After that response from C.J., counsel for Alise again asked the

venire: "Anybody else been sued?" No one else responded. When counsel

for Alise subsequently asked if any of the prospective jurors had ever

experienced an airbag deploying while in a vehicle, C.J. disclosed that

she had suffered eye injuries because of the chemicals released from a

deployed airbag in her vehicle. Counsel for Alise later asked the venire if

any of them had a close relative or friend who had lost their eyesight due

to an accident. In response, J.B. disclosed that her older sister had

suffered total vision loss in her left eye after a bottle rocket landed in that

eye.

Counsel for Nissan questioned the venire next. Nissan's counsel did

not ask the prospective jurors about their litigation histories, noting that

counsel for Alise had "asked a lot of my questions so [his] list got shorter."

Counsel for Nissan, however, did ask J.B. to confirm that she was a

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"former legal secretary," and J.B. responded that she had previously

worked as a legal secretary.

Following voir dire, the parties selected the jury. Nissan exercised

strikes against eight members of the venire. Nissan struck C.J., the

prospective juror whose eyes had been injured when an airbag deployed

during a car accident and the only prospective juror who had answered

the question about having previously been sued. Both J.B. and F.W. were

chosen to sit on the jury.

II. The Evidence at Trial on Alternative Design

At trial, Alise introduced evidence in support of her AEMLD claim.

As relevant here, to prevail on her AEMLD claim, Alise was required to

present evidence "establishing the existence of a safer, practical,

alternative design for the allegedly defective product …." Hosford v. BRK

Brands, Inc.,
223 So. 3d 199, 208
(Ala. 2016).

On the stand, William Broadhead, Alise's airbag expert, 5 testified

5On appeal, Nissan does not dispute Broadhead's qualifications.
Nissan also does not argue that his opinions should have been excluded
pursuant to Rule 702(b), Ala. R. Evid., § 12-21-160, Ala. Code 1975, and
the Daubert standard. See Daubert v. Merrell Dow Pharms., Inc.,
509
U.S. 579
(1993). Nissan did make such a motion before the trial court,
but it did not argue this point on appeal.
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that the Infiniti's airbag deployed unnecessarily, too late, and too

forcefully. Specifically, Broadhead offered the following observations and

opinions:

1. The Infiniti's threshold for airbag deployment was far too low,
firing unnecessarily in low-speed collisions.

2. The Infiniti had a 9.1 mph barrier equivalent velocity when it
collided with the Fusion.

3. A 9.1 mph barrier equivalent velocity did not warrant airbag
deployment, especially for a belted occupant like Alise.

4. Nissan could have used dual-threshold sensors that would
have raised the initial deployment threshold when a
passenger wears a seatbelt, and this alternative was available
at the time Nissan manufactured the Infiniti.

5. In addition to deploying unnecessarily, the airbag fired too
late, as evidenced by Alise's facial injuries as well as the
pattern of her makeup on the airbag.

6. To be timely, and to ensure that an airbag fully inflates before
coming into contact with an occupant's face, airbags should
fire at least 30 milliseconds before an occupant's head moves
forward five inches in a collision.

7. Because an occupant's head will move five inches within 49
milliseconds, an airbag should fire within 19 milliseconds at
the latest so that the airbag is inflated by the time the
occupant's head moves into the deployment zone.

8. Nissan admitted that the Infiniti's airbag was firing (as
opposed to fully inflating) from 63 to 101 milliseconds after

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the crash took place.

9. The delayed deployment was the result of inadequate crash
sensors on the car.

10. The Infiniti had only one sensor located in the compartment
between the driver and the passenger.

11. The safer alternative design was to place multiple sensors on
the car, including a front-end sensor to avoid a situation (like
Alise's) where the collision was already in progress before the
compartment sensor alerted.

12. In 1997, the majority of vehicles on the road had multiple
sensors, so the alternative was available to Nissan.

13. The Infiniti's airbag was also too powerful.

14. In March 1997, months before the Infiniti was manufactured,
the National Highway Traffic Safety Administration
("NHTSA") amended Federal Motor Vehicle Safety Standard
208 to require automakers to depower bags because of the
high potential for injuries.

15. Nissan could have depowered the Infiniti's airbag but did not
do so.

16. Alise would not have been injured as severely if a depowered
airbag had been installed in the Infiniti.

17. Nissan could have used tethers to restrict the reach and force
of the airbag.

In sum, Broadhead identified four purportedly safer alternative

designs for the airbag system that caused Alise's injuries: (1) a dual-

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threshold system with a higher deployment threshold for belted

occupants, (2) additional sensors in the front of the Infiniti to allow for

timely deployment of the airbag, (3) a less powerful airbag, and (4)

tethers designed to control the inflation and shape of the deploying

airbag.

III. Nissan's Postjudgment Motions

The jury, after considering the above-mentioned evidence, found for

Alise on her AEMLD claim against Nissan6 and awarded her $8.5 million

in compensatory damages. On June 19, 2023, the trial court entered a

judgment on the $8.5 million jury verdict for Alise. Following the entry

of that judgment, Nissan discovered that two jurors, J.B. and F.W., did

not disclose their litigation histories in response to direct questioning

during voir dire. 7 Specifically, although J.B. and F.W. did not respond in

any way when asked at voir dire if they had "ever been sued before,"

counsel for Nissan

6The jury returned a verdict in favor of Nissan as to Alise's
negligent-design claim.

7There is no evidence before this Court indicating that the
information regarding J.B.'s and F.W.'s litigation histories was known to
Nissan before or during trial.
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"discovered that Juror J.B. had been sued three times in small
claims court on debts of $1,584.00, $2,853.00, and $2,338.00
in 2017, 2019, and 2020. Two of these suits resulted in consent
judgments and one was dismissed."

Nissan's counsel also learned that

"Juror F.W. was sued in small claims court in 2000 and 2021
for $1,383.00 and $1,565.00, both of which resulted in default
judgments. [Juror F.W.] was also sued [for] unlawful detainer
in 2005 and again in 2008. One of these suits resulted in a
default judgment and the other was dismissed."

On July 19, 2023, Nissan filed a renewed motion for a judgment as

a matter of law or, in the alternative, a motion for a new trial or for a

remittitur. In support of its motion for a new trial, Nissan submitted an

affidavit indicating that Nissan's attorney would have chosen to strike

J.B. and F.W. had he known of J.B.'s and F.W.'s litigation histories, and

Nissan argued that J.B.'s and F.W.'s failure to disclose on voir dire that

they had each been named as defendants in civil lawsuits warranted a

new trial. Nissan's renewed motion for a judgment as a matter of law

further argued that Alise had failed to present substantial evidence of

the necessary elements of her AEMLD claim. Finally, Nissan's motion for

a remittitur urged that the jury's $8.5 million verdict was excessive and

due to be reduced.

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On August 3, 2023, the parties filed a "Joint Stipulation to Extend

[the] A.R.C.P. 59.1 Deadline" by 30 days. On October 11, 2023, the parties

filed an "Amended Joint Stipulation to Extend [the] A.R.C.P. 59.1

Deadline" by an additional 30 days. Then, on December 15, 2023, Alise

filed a "Joint Motion for Thirty-Day Extension for Ruling on Post-Trial

Motions." That joint motion sought to extend the deadline for ruling on

Nissan's postjudgment motions until January 17, 2024.

IV. The Trial Court's Order

On January 16, 2024, the trial court entered a lengthy, and rather

unconventional, order denying Nissan's postjudgment motions. In that

order, the trial court noted that, of all the arguments raised by Nissan, it

considered the challenge based on J.B.'s and F.W.'s failure to respond to

"a very clear question regarding prior litigation" to "have the most merit."

Significantly, the trial court made a number of factual findings in

favor of Nissan's claim that it was prejudiced by J.B.'s and F.W.'s failure

to respond to the voir dire question and indicated that, if it were up to

the trial court, it would grant Nissan's motion for a new trial. In its order,

the trial court first noted that, in determining whether a juror's failure

to answer a voir dire question warrants a new trial, courts consider the
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ambiguity of the question posed, the temporal remoteness of the matter

inquired about, the prospective juror's inadvertence or willfulness in

falsifying his or her answer or in failing to answer, and the materiality of

the matter asked about. Applying those factors, the trial court found as

follows:

"Temporal Remoteness

"Juror J.B.'s suits were filed against her in 2017, 2019,
and 2020. They are not remote. Juror F.W.'s suits were
brought in 2001, 2005, 2008, and 2021. The first three are
remote. The last is not.

"The Ambiguity of the Question Asked

"The question was not ambiguous and the Court cannot
and will not assume any juror was confused by such a simple
question, asked three times without contradiction.

"The Potential Juror's Inadvertence or Willfulness in
Not Responding

"The Court has no way of knowing if the failure of either
juror was intentional or accidental because there is no
testimony from either juror. However, there is evidence Juror
J.B. worked as a legal secretary, making it somewhat hard to
believe she didn't understand or that her failure to respond
was inadvertent.

"The Failure of the Juror to Recollect

"Much discussion was given to this element at oral
argument. It is possible Juror F.W. was not aware she was
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sued for debt in 2000 and again in 2021, or that she was sued
for unlawful detainer in 2005 because these suits resulted in
default judgments. However, for a default judgment to [be]
entered, the court had to first determine that service, and
thus notice, was perfected. As such, it is much more likely that
she was aware of these suits. As to the 2008 unlawful detainer
[action], it was dismissed without a judgment, and as such no
assumption can be made. For Juror J.B., two of her suits for
debt actually resulted in consent judgments and the third was
dismissed. There is also evidence she worked as a legal
secretary, which makes it hard to believe she didn't
understand the question. Certainly, for the two judgments
that required her consent, there is a definite presumption that
she was aware she had been sued. The third was dismissed so
no presumption can be made.

"Materiality

"Finally, and perhaps most importantly, the Court must
weight [sic] the materiality of the question and topic at issue.
In and of itself, prior litigation of a juror is certainly material.
The question is asked in every civil action and in most
criminal prosecutions. The fact that the question was asked
by Plaintiff shows it is material, and it is entirely
understandable that both sides always want to know if a juror
has ever been sued."

Despite those findings, the trial court reluctantly denied Nissan's

motion based on its belief that our prior decisions in Jimmy Day

Plumbing & Heating, Inc. v. Smith,
964 So. 2d 1
(Ala. 2007), and Hood v.

McElroy,
127 So. 3d 325
(Ala. 2011), precluded it from concluding that

J.B.'s and F.W.'s failure to disclose their litigation histories was

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objectively material. After asserting that the "prior litigation of a juror is

certainly material," the trial court stated as follows:

"The subjects of the prior suits [against J.B. and F.W.],
however[,] are not the same as the subject of this suit, and the
fact that they are simple collections matters and unlawful
detainers, as opposed to personal injury suits or complex
products cases bears major consideration. In Hood[,] the
Alabama Supreme Court reversed the trial court's order
granting new trial upon a finding that a juror did not disclose
two prior collections suits totaling $2,700.00:

" 'The difference between the circumstances
in [Colbert County-Northwest Alabama
Healthcare Authority v. Nix,
678 So. 2d 719
(Ala.
1995),] and the circumstances in this case only
widens when one considers the element of
"materiality." The present action involves a
wrongful death in which the damages claim was
substantial. Similarly, in Nix, the action in which
Juror Curtis's brother had been a defendant was a
claim involving wrongful death; that case was
settled for an amount in excess of $1,000,000. In
contrast, in the present case, Juror J.S.'s failure to
respond to the question at issue concerned the fact
that she had been named as a defendant in two
debt-collection actions in small-claims court that
apparently had resulted in uncontested judgments
against her totaling less than $2,700.'

Hood v. McElroy,
127 So. 2d 325, 334
(Ala. 2001). Nor does it
seem to matter if the undisclosed action also involved a
personal injury. See Jimmy Day Plumbing & Heating, Inc. v.
Smith,
964 So.2d 1, 5-6
(Ala. 2007), wherein the Court
determined that an undisclosed prior personal injury suit by
a juror who was hit by a car while riding a bike, in a case
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involving a motorcycle driver hit by a truck, was significantly
factually different and thus not material. The question of
objective materiality seems to be governed by a very tight and
narrow comparison.

"Based on all of the above, the Court finds that the two
jurors absolutely should have disclosed their prior suits in
response to Plaintiff's questions and that Defendants had
every right to rely on their responses, or lack thereof. Despite
this, and despite Defendants' subjective statement by the
affidavit of their attorney (which the Court believes) that had
they known of these suits these jurors would have been
struck, the Court is bound by the precedent in Hood v.
McElroy and Jimmy Day Plumbing & Heating, Inc. v. Smith,
regarding materiality, even though it disagrees with the
narrow view it must take."

(Footnote omitted; emphasis added.)

The trial court explained that, were it were not "bound" by the

"narrow view" of materiality in Jimmy Day Plumbing and Hood, it would

have reached a different result:

"If given a free hand, the [trial court] would grant the motion
for new trial upon a finding that the failure of the two jurors
to truthfully respond resulted in probable prejudice (both
subjectively and objectively), that the prior undisclosed suits
are material when taken in total, that enough of the prior
suits are temporal, and that both jurors were aware of enough
of them."

(Emphasis added.)

Finally, the trial court concluded that, given this precedent, it was

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"bound" to conclude that it lacked the discretion to grant a new trial:

"However, given the precedent on materiality, the [trial court]
feels that it can reach no conclusion other than it would be an
abuse of discretion under the current law to find that the prior
undisclosed suits are material, and that therefore it cannot
find that there was probable prejudice from an objective
standpoint. As such this basis for relief is DENIED and
Defendants' motion for new trial is DENIED."

(Capitalization in original; emphasis added.)

In addition to denying the motion for a new trial, the trial court also

denied Nissan's motions for a judgment as a matter of law and for a

remittitur. Nissan filed its notice of appeal to this Court on February 26,

2024.

Discussion

On appeal, Nissan argues that the trial court erred when it (1)

refused to grant it a new trial based on J.B.'s and F.W.'s failure to disclose

their litigation histories during voir dire, (2) concluded that the evidence

presented at trial as to the existence of a defect was legally sufficient to

support the jury's verdict, and (3) declined to remit the jury's damages

award. Before we address the merits of Nissan's appeal, we must first

determine whether we have appellate jurisdiction.

I. Whether This Court Has Appellate Jurisdiction
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This Court has repeatedly held that "[t]he filing of a timely notice

of appeal is a jurisdictional act." Painter v. McWane Cast Iron Pipe Co.,
987 So. 2d 522, 529
(Ala. 2007). As noted above, the trial court entered a

judgment on the jury's verdict in this case on June 19, 2023. On July 19,

2023, Nissan filed its renewed motion for a judgment as a matter of law

and alternative motions for a new trial or for a remittitur. On August 3,

2023, the parties filed a joint stipulation to extend the time for ruling on

the postjudgment motions to November 16, 2023. On October 11, 2023,

the parties filed another joint stipulation to extend the time for ruling on

the postjudgment motions by an additional 30 days -- until December 16,

2023. Then, on December 15, 2023, counsel for Alise filed a joint motion

seeking to extend the deadline for ruling on Nissan's postjudgment

motions until January 17, 2024. On January 16, 2024, the trial court

entered its order denying Nissan's postjudgment motions. Nissan

appealed 41 days later.

In her brief on appeal, Alise argues that Nissan's notice of appeal

to this Court was not timely filed and that we consequently lack appellate

jurisdiction over this case. Specifically, she contends that the joint motion

filed on December 15, 2023, was ineffective in extending the time for
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ruling on the postjudgment motions because (1) it was a joint "motion"

rather than a "stipulation" and (2) it was filed after the original 90-day

period for ruling on the postjudgment motions had expired. According to

her, because the trial court failed to rule within the time permitted by

the second extension agreement, the postjudgment motions were denied

by operation of law on December 16, 2023. Thus, she says that Nissan's

February 26, 2024, appeal -- filed more than 42 days after December 16,

2023 -- was untimely and that we lack jurisdiction to consider it.

Alise's challenge to our appellate jurisdiction is without merit. Rule

59.1, Ala. R. Civ. P., provides, in pertinent part, that

"[n]o postjudgment motion filed pursuant to Rules 50,
52, 55, or 59[, Ala. R. Civ. P,] shall remain pending in the trial
court for more than ninety (90) days, unless with the express
consent of all the parties, which consent shall appear of
record, or unless extended by the appellate court to which an
appeal of the judgment would lie, and such time may be
further extended for good cause shown. … A failure by the
trial court to render an order disposing of any pending
postjudgment motion within the time permitted hereunder, or
any extension thereof, shall constitute a denial of such motion
as of the date of the expiration of the period."

(Emphasis added.)

Nothing in Rule 59.1 requires that the "express consent" be

memorialized in a "stipulation" or that it take any particular form. All
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that the rule requires is that such express consent "shall appear of

record." The joint motion in this case appears "of record," and the filing

of the joint motion was a "positive step[] to express [an agreement to

extend the 90-day period] in a direct and unequivocal manner." Personnel

Bd. for Mobile Cnty. v. Bronstein,
354 So. 2d 8, 11
(Ala. Civ. App. 1977).

Moreover, it was Alise who filed the joint motion. If there were any doubt,

our recent opinion in Williams v. Dodd, [Ms. SC-2024-0704, Sept. 26,

2025] ___ So. 3d ___ (Ala. 2025), settled the matter. There, we explicitly

concluded that a motion reflecting both parties' consent to extending the

time for ruling on the postjudgment motion constituted "express consent"

under Rule 59.1. Williams, ___ So. 3d at ___.Thus, the joint motion in this

case reflected the parties' express consent to extending the deadline for

ruling on the postjudgment motions and qualified as "express consent"

for Rule 59.1 purposes.

As noted above, Alise additionally argues that, even assuming that

the joint motion qualified as express consent, the December 15, 2023,

joint motion was ineffective because it was not filed within the original

90-day period set forth in Rule 59.1. In other words, Alise contends that

successive extension agreements must also be filed within the original 90
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days to be effective. Alise's argument is entirely unmoored from the text

of Rule 59.1, which provides -- without qualification -- that postjudgment

motions may "remain pending" for longer than 90 days as long as the

parties' "express consent" appears on the record. See Gregory C. Cook,

Alabama Rules of Civil Procedure Annotated § 59.1.3 (5th ed. 2018)

(explaining that Rule 59.1's language reflects that parties can "consent

to extensions without limitation").

Further, although Alise cites Scheilz v. Scheilz,
579 So. 2d 674, 675
(Ala. Civ. App. 1991), for the proposition that successive extension

agreements must all fall within the original 90-day period, that case says

no such thing. Instead, Scheilz recognizes that, if an initial extension

agreement is not filed within the original 90-day deadline, the trial court

loses jurisdiction and the parties cannot extend the deadline for the first

time after that 90-day period has run. Here, it is undisputed that the

parties recorded their initial extension agreement before the 90-day

deadline expired and that -- pursuant to the second extension agreement

-- the trial court had jurisdiction over the case when the third extension

agreement was filed on December 15, 2023. Thus, the December 15, 2023,

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joint motion reflecting the parties' extension agreement was effective,

and this Court has appellate jurisdiction over this case.

II. Whether the Trial Court Was Mistaken When It Concluded That
It Had No Discretion To Grant Nissan's Motion for a New Trial

Having determined that we have appellate jurisdiction, we now

turn to the merits. On appeal, Nissan argues that the trial court's denial

of its motion for a new trial was predicated on a misunderstanding of this

Court's controlling precedent. Specifically, it contends that Jimmy Day

Plumbing and Hood did not bind the trial court or deprive it of the

discretion to determine whether the failure of the two jurors to disclose

their litigation histories resulted in probable prejudice to Nissan. For the

reasons explained below, we agree.

A. The Trial Court's Discretionary Power

We begin our analysis with the well-established principle that

granting or denying a motion for a new trial based on a juror's silence

during voir dire rests within the sound discretion of the trial court. See

Carter v. Henderson,
598 So. 2d 1350, 1354
(Ala. 1992). "[T]he core of

'discretion' as a jurisprudential concept is the absence of a hard and fast

rule that fixes the results produced under varying sets of facts." Johnson

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v. United States,
398 A.2d 354, 361
(D.C. 1979) (citing Langnes v. Green,
282 U.S. 531, 541
(1931)). Thus, "[w]hen a decision is within the trial

court's discretionary powers, the trial court 'has the power to choose

between two or more courses of action and is therefore not bound in all

cases to select one over another.' " Swindle v. Swindle,
157 So. 3d 983,

992
(Ala. Civ. App. 2014) (quoting In re 2010 Denver Cnty. Grand Jury,
296 P.3d 168, 176
(Colo. App. 2012)).

While discretion implies that no particular outcome is mandated,

that is not to say that a trial court's exercise of discretion is unbounded.

The exercise of discretion must be " ' " 'based on facts and guided by

law.' " ' " Ex parte Dolgencorp, Inc.,
13 So. 3d 888, 896
(Ala. 2008)

(citations omitted). However, although legal principles guide a court's

exercise of discretion, "the decision-maker, and not the law, decides."

Johnson,
398 A.2d at 361
(citing Maurice Rosenberg, Judicial Discretion

of the Trial Court, Viewed from Above,
22 Syracuse L. Rev. 635
, 636-37

(1971)).

B. The Freeman Factors

As noted above, discretion should be exercised within the

framework of established legal principles. In exercising its discretion to
23
SC-2024-0121

grant or deny a motion for a new trial that is based on a juror's failure to

respond to a voir dire question, a trial court considers the relevant facts

and asks whether the juror's nondisclosure resulted in probable prejudice

to the movant. Freeman v. Hall,
286 Ala. 161, 166
,
238 So. 2d 330, 335
(1970). "The form of prejudice that would entitle a party to relief for a

juror's nondisclosure or falsification in voir dire would be its effect, if any,

to cause the party to forgo challenging the juror for cause or exercising a

peremptory challenge to strike the juror." Ex parte Dobyne,
805 So. 2d

763, 772
(Ala. 2001).

In Freeman v. Hall, our Court articulated certain criteria to aid

trial courts in their determination of whether probable prejudice exists.

We explained that,

"[a]lthough the factors upon which the trial court's
determination of prejudice is made must necessarily vary
from case to case, some of the factors which other courts have
considered pertinent are: temporal remoteness of the matter
inquired about, the ambiguity of the question propounded, the
prospective juror's inadvertence or willfulness in falsifying or
failing to answer, the failure of the juror to recollect, and the
materiality of the matter inquired about."
286 Ala. at 167
, 230 So. 2d at 336 (emphasis added). With respect to the

"materiality" factor, we have defined a material fact as " ' " 'one which an

24
SC-2024-0121

attorney[,] acting as a reasonably competent attorney, would consider

important in making the decision whether or not to excuse a prospective

juror.' " ' " Jimmy Day Plumbing,
964 So. 2d at 5
(citations omitted).

While the Freeman factors guide a trial court's discretionary

determination of whether "probable prejudice" exists, a trial court is

entitled to exercise its discretion in weighing the relevant legal criteria

and facts to determine whether the totality of the circumstances merits

a finding of probable prejudice and, thus, a new trial.

C. Appellate Review of a Ruling on a Motion for a New Trial

Our Court reviews a trial court's ruling on a motion for a new trial

for abuse of discretion. Freeman,
286 Ala. at 167
,
238 So. 2d at 336
. In

Steele v. Gill,
283 Ala. 364, 369
,
217 So. 2d 75, 80
(1968), we explained

"that there is no hard and fast rule by which to determine
whether a court has abused its discretion, that the reviewing
court is never justified in substituting its discretion for that
of the trial court, and that discretion is abused whenever, in
its exercise, the court has acted arbitrarily without the
employment of its conscientious judgment, or has exceeded
the bounds of reason in view of all the circumstances, or has
so far ignored recognized rules or principles of law or practice
as to result in substantial injustice."

Thus, a trial court abuses its discretion when its exercise of discretion is

arbitrary, unreasonable, or unsupported by legal principles.
25
SC-2024-0121

Importantly, and as relevant here, a trial court also abuses its

discretion when it fails to exercise discretion in a situation that calls for

it. See 5 C.J.S. Appeal and Error § 826 (2019). "If a particular

determination has been liberated from the stricture of a hard and fast

rule and committed to the trial court's discretion, the essence of the

decision-making is the trial court's judgment in exercising that

discretion. An outright failure or refusal to exercise that judgment is

wholly defeating." Johnson,
398 A.2d at 363
. In other words, unless a

single outcome is mandated by the controlling law, a trial court may not

abdicate its duty to exercise discretion by purporting that its hands are

tied by a rule of law. See Rosenberg, supra, at 666. Thus,

"where a party has called upon the court for a discretionary
ruling, it is improper for the court to refuse to utilize its right
to decide the question as a matter of discretion. Purporting to
be bound to rule as a matter of law will not satisfy the moving
party's claim on the court's discretion."

Grow v. Wolcott,
123 Vt. 490, 492
,
194 A.2d 403, 404
(1963). Significantly,

"if the record clearly shows that the trial court failed to exercise its

discretion, the appellate court can neither defer to an exercise of

discretion that never occurred nor substitute its discretion for that of the

trial court." 5 C.J.S. Appeal and Error § 826 (2019).
26
SC-2024-0121

D. This Court's Decisions in Jimmy Day Plumbing and Hood
Did Not Divest the Trial Court of Its Discretionary Power
or Bind the Trial Court to Any Particular Result as to
Materiality or Probable Prejudice

As discussed above, in its order denying Nissan's motion for a new

trial, the trial court considered the Freeman factors and expressed its

personal view that those factors weighed in favor of granting a new trial

based on a finding that the failure of the two jurors to disclose their

litigation histories resulted in probable prejudice to Nissan.

Despite this, the trial court concluded that this Court's decisions in

Jimmy Day Plumbing and Hood mandated only one outcome: the denial

of Nissan's motion for a new trial. See trial court's order (stating that the

trial court is "bound by the precedent in Hood v. McElroy and Jimmy

Day" and that, "given the precedent on materiality, [the trial court could]

reach no conclusion other than it would be an abuse of discretion under

the current law to find that the prior undisclosed suits are material").

The question presented by this appeal is whether the trial court

correctly concluded that our decisions in Jimmy Day Plumbing and Hood

divested it of discretion by mandating only one legally permissible

decision in this case.

27
SC-2024-0121

1
. Jimmy Day Plumbing

In Jimmy Day Plumbing, a motorcyclist suffered serious and

permanent injuries after colliding with a truck.
964 So. 2d at 3
. The

motorcyclist filed suit, and a jury awarded him $1.5 million in

compensatory damages.
Id.
A juror sitting in the action indicated that he

had never sued anyone on a juror questionnaire and failed to respond

when asked during voir dire whether he had ever filed a lawsuit.
Id. at 4
.

After the defendant discovered that the juror had previously filed a

lawsuit seeking damages for injuries sustained in a car accident, it filed

a motion for a new trial.
Id.
The trial court denied that motion.
Id.
On appeal, the defendant argued that similarities between the

motorcyclist's accident and the accident involving the juror clearly

established the materiality of the juror's undisclosed personal-injury

lawsuit and that the juror's lawsuit was not temporally remote from his

jury service in the case.
Id. at 5
. This Court, however, noted that there

were "[s]ignificant factual differences" between the two accidents and

held that "[t]he trial court, acting within its discretion, could have

concluded that [the defendant's arguments were] rankly speculative and

overlook[ed] substantial differences between [the juror's] accident and
28
SC-2024-0121

[the motorcyclist's] accident."
Id. at 6
(emphasis added). We further

concluded that the "trial court, in the exercise of its discretion, was

entitled to consider the length of time between the trial of th[e] case in

March 2006 and [the juror's] accident in July 1997, in addition to the

length of time between the trial of th[e] case and the conclusion of [the

juror's] lawsuit in July 2001."
Id.
(emphasis added). We, thus, affirmed

the trial court's exercise of its discretion in denying the motion for a new

trial.
Id.
In this case, the trial court misread our decision in Jimmy Day

Plumbing as standing for the proposition that a juror's prior litigation

history is always immaterial whenever that history involves a case that

is factually distinguishable from the case being tried. Instead, the Jimmy

Day Plumbing Court concluded only that the trial court acted within its

discretion when it denied a motion for a new trial.

Crucially, affirming a trial court's exercise of discretion does not

equate to declaring its decision as the only legally permissible outcome.

Rather, it merely confirms that the trial court's decision falls within a

range of permissible outcomes. Thus, the trial court in this case was

mistaken in concluding that the precedent "regarding materiality" in
29
SC-2024-0121

Jimmy Day Plumbing "bound" it to conclude that J.B.'s and F.W.'s failure

to respond to the voir dire question did not result in probable prejudice

to Nissan.

2. Hood v. McElroy

In its order, the trial court additionally stated that, because the

lawsuits against J.B. and F.W. were of a different type than the lawsuit

against Nissan, it was bound -- pursuant to our decision in Hood -- to

deny the motion for a new trial. In Hood, the estate of a 14-month-old

child who died from brain injuries inflicted by his mother's boyfriend

brought a wrongful-death action against the boyfriend and a county

social worker who had determined that it was safe to leave the child in

his mother's care.
127 So. 3d at 327
. During voir dire, counsel for the

estate asked the venire the following question:

" 'How many of you have ever been defendants in a
lawsuit? Had somebody sue you for personal injuries? And I'm
not talking about a case like this. It could have been a car
wreck.' "
Id. at 328
(emphasis omitted). A juror who had been a defendant in two

small-claims collection actions in which a consent or a default judgment

had been entered failed to respond to that question.
Id. at 330
.

30
SC-2024-0121

The jury found for the estate, but only returned a $25,000 verdict.

The estate (that is, the plaintiff) moved for a new trial based on the juror's

failure to answer.
Id. at 327
. The trial court granted the motion for a new

trial, finding that the temporal, ambiguity, inadvertence, and materiality

factors set forth in Freeman all weighed in favor of finding that the

nondisclosure resulted in probable prejudice to the estate.
Id. at 331-32
.

On appeal, this Court reversed the trial court's order granting a

new trial.
Id. at 336
. Four Justices, in a plurality decision, asserted that

they could not conclude,

"even under the exceeds-its-discretion standard by which we
evaluate the trial court's decision to grant a new trial, [that
the juror's] failure to reveal, in response to the particular
questions asked, that she had been sued for approximately
$2,650 in two apparently uncontested small-claims-court
collection actions provides adequate support for a finding of
'probable prejudice' so as to warrant retrying this case."
Id. at 333
.

The plurality further explained that its "disagreement with the

trial court's decision [to grant the motion for a new trial] focuse[d]

primarily on the factors of 'ambiguity of the question propounded' and

the 'materiality of the matter inquired about.' "
Id.
More specifically, the

plurality took issue with the trial court's determination that the voir dire
31
SC-2024-0121

question was unambiguous, explaining that "the inquiry as to having

been a 'defendant[] in a lawsuit' was followed directly by the apparently

explanatory companion question of whether the juror had '[h]ad

somebody sue you for personal injuries?' "
Id.
After "[c]onsidering the

query in its entirety, [the plurality] conclude[d] that in fact it was

ambiguous as to whether the questioner was seeking information on any

lawsuit of any nature or only lawsuits where a juror had been sued 'for

personal injuries.' "
Id.
Thus, the plurality said, the juror's failure to

respond to the voir dire question was understandable in light of the fact

that "the only time she had ever been a defendant in a lawsuit was in two

small-claims-court actions that did not involve personal injuries but

merely the collection of debt that was not contested."
Id.
Relatedly, and with respect to the "inadvertence or willfulness"

factor set forth in Freeman, the plurality noted that "the difference in the

wording of the questions at issue and the nature of the judicial proceeding

with which [the juror] had been involved [was] such that [the plurality

saw] little or no basis for inferring that [the juror] knowingly and willfully

violated her oath when she failed to disclose the collection action[s]

against her."
Id. at 336
.
32
SC-2024-0121

The plurality also took issue with the trial court's analysis of the

materiality factor. In particular, the plurality explained that, to warrant

a new trial, a nondisclosure by a juror must be material in "both an

objective sense and in the sense that the attorney for the moving party

represents that it would have made a difference in the manner in which

he or she would have exercised peremptory strikes."
Id. at 335
. The

plurality underscored that the juror's undisclosed litigation history as a

defendant involved two debt-collection actions in small-claims court --

actions that were very different from the wrongful-death action that the

juror was being asked to decide -- and asserted that the materiality factor

did not support the trial court's decision to grant a new trial.
Id. at 334
.

Thus, based on "the specific facts of [Hood]," the plurality concluded that

the estate had not made "a sufficient showing of 'probable prejudice' …

to justify a decision to put all concerned to the time, effort, and expense

of retrying [that] case."
Id. at 336
.

Concurring in the result, Justice Shaw identified only "[t]he

ambiguous nature of the voir dire questions" and "the award in the

estate's favor" as the reasons for his conclusion "that the trial court

33
SC-2024-0121

exceeded its discretion in finding probable prejudice and in granting a

new trial."
Id. at 337
.

The trial court in the present case misinterpreted the effect of our

decision in Hood. Appellate review under the abuse-of-discretion

standard is inherently fact-specific and context-dependent, especially

when the trial court's exercise of discretion involves the application and

weighing of many factors. See Valley Heating, Cooling & Elec. Co. v.

Alabama Gas Corp.,
286 Ala. 79, 82
,
237 So. 2d 470, 472
(1970) ("An

abuse of this discretion has been defined, in a legal sense, as exceeding

the bounds of reason, all the circumstances before the lower court being

considered." (emphasis added)). Indeed, the Hood plurality reversed the

trial court's order granting a new trial based on a "review of the specific

facts of th[at] case."
127 So. 3d at 336
(emphasis added).

The facts in Hood -- including those relevant to materiality -- are

readily distinguishable from the facts in the present case. For instance,

in Hood, only one juror failed to disclose the fact of two collection actions

against her. Here, two jurors failed to disclose that corporations had

brought seven lawsuits against them collectively, and one of those jurors

had worked as a legal secretary.
34
SC-2024-0121

The court in Hood also relied heavily upon the ambiguity of the voir

dire question propounded to the jury in that case. Here, in contrast, the

trial court expressly concluded that "[t]he question was not ambiguous

and [that] the [it could not and would] not assume any juror was confused

by such a simple question, asked three times without contradiction."

Moreover, the jury in Hood had ruled in favor of the party asking

for a new trial. In contrast, the jury in this case rendered a verdict against

the moving party.

And, to state the obvious, the main opinion in Hood was a plurality

-- not a majority -- opinion. Ordinarily, a plurality opinion is not binding

precedent. See State v. The Boys & Girls Clubs of S. Alabama, Inc.,
163

So. 3d 1007, 1012
(Ala. 2014) (recognizing that a plurality opinion "does

not represent binding precedent"). Further, although Alise contends that

the trial court properly treated the plurality opinion as binding because,

she says, Justice Shaw agreed "with the plurality that nondisclosure[s]

of small[-]claims court proceedings do not tend to indicate probable

prejudice," Alise's brief at 31, Justice Shaw's special writing does not

support that characterization. As previously noted, in his special writing,

Justice Shaw explained that he would reverse the trial court's order
35
SC-2024-0121

granting a new trial based solely on the ambiguity of the voir dire

questions and the plaintiff's favorable verdict, and he explicitly declined

to address any other issues. See Hood,
127 So. 3d at 337
(Shaw, J.,

concurring in the result) ("Because I would reverse the trial court's order

granting a new trial solely for the reasons stated herein, I see no need to

address other issues."). Justice Shaw's special writing neither mentioned

the plurality opinion's materiality analysis nor adopted any general

proposition that the nondisclosure of small-claims actions does not tend

to indicate probable prejudice. 8 Thus, even assuming that the plurality's

materiality reasoning was not limited to the facts in Hood, it cannot be

regarded as binding precedent, and the trial court in this case was

mistaken when it wrote that it was "bound by the precedent in Hood …

regarding materiality…." (Emphasis added.)

8While the trial court is not bound by a plurality opinion of our

Court, it is free to consider that opinion in exercising its discretion.
Indeed, a plurality opinion "can still be cited for its persuasive value,"
and it is possible that the rationale set forth in a plurality opinion "will
later become the rationale of the court in a majority opinion." Justice Jay
Mitchell & Lars A. Longnecker, How to Read A Vote Line of the Alabama
Supreme Court, 84 Ala. Law. 146, 151 (2023)
36
SC-2024-0121

Because the trial court denied Nissan's motion for a new trial based

on its erroneous belief that this Court's decisions in Jimmy Day Plumbing

and Hood required it to rule in a particular way as a matter of law, it

failed to exercise its discretion regarding a discretionary matter. We note

that " '[t]he trial court is in the best position to determine whether there

was probable prejudice as a result of a juror's failure to respond to

questions during voir dire.' " Jimmy Day Plumbing,
964 So. 2d at 4
-5

(quoting Land & Assocs., Inc. v. Simmons,
562 So. 2d 140, 149
(Ala.1989)). Accordingly, we reverse the trial court's order denying

Nissan's motion for a new trial and remand the case for the trial court to

exercise its discretion in considering Nissan's motion for a new trial. 9

III. Whether the Trial Court Erred in Denying Nissan's Renewed
Motion for a Judgment as a Matter of Law

Nissan separately challenges the trial court's denial of its renewed

motion for a judgment as a matter of law. This Court has explained that,

to prevail on an AEMLD claim, a plaintiff must establish that the product

9As previously noted, on appeal Nissan alternatively argues that

the trial court erred in declining to remit the $8.5 million damages award.
In view of our holding regarding Nissan's motion for a new trial, we
pretermit discussion of whether Nissan was entitled to a remittitur.
37
SC-2024-0121

at issue was sold in "a defective condition that made the product

unreasonably dangerous to the ultimate user or consumer," Bell v. T.R.

Miller Mill Co.,
768 So.2d 953, 957
(Ala. 2000), and that "this is done by

proving that a safer, practical, alternative design was available to the

manufacturer at the time it manufactured the allegedly defective

product." McMahon v. Yamaha Motor Corp., U.S.A.,
95 So. 3d 769, 772
(Ala. 2012). The existence of a safer, practical, alternative design may, in

turn, be established by presenting evidence indicating "(1) that the

injuries inflicted by the product would have been less severe or

eliminated by the use of the alternative design and (2) that the utility of

the alternative design outweighed the utility of the design actually used."

Hosford,
223 So. 3d at 203
.

On appeal, Nissan argues that it is entitled to a judgment as a

matter of law because, it says, Alise failed to meet her burden of

presenting substantial evidence to prove liability under the AEMLD.

Specifically, Nissan challenges the sufficiency of Broadhead's testimony

regarding alternative design. Although Nissan does not dispute that

Broadhead was qualified to provide expert opinions on the issue of

alternative design, it argues that his testimony was based on speculation
38
SC-2024-0121

and conjecture and did not rise to the level of substantial evidence.

As previously discussed, at trial Broadhead identified four

purportedly safer alternative designs for the airbag system that caused

Alise's injuries. By denying Nissan's renewed motion for a judgment as a

matter of law, the trial court clearly concluded that there was a jury

question on at least one of the alternative-design theories presented at

trial. Based on our review of the record, we agree with the trial court.

We note that, in reviewing a ruling on a motion for a judgment as a

matter of law, this Court "views the evidence in the light most favorable

to the nonmovant and entertains such reasonable inferences as the jury

would have been free to draw." Waddell & Reed, Inc. v. United Invs. Life

Ins. Co.,
875 So. 2d 1143, 1152
(Ala. 2003). The record in this case reflects

that Broadhead testified that airbag deployment at a 9.1 barrier

equivalent velocity was inappropriate for a seated occupant and that a

dual-threshold airbag system would have had a higher firing threshold

for belted occupants like Alise. As Broadhead explained,

"[i]f you have your seatbelt on, you don't need an airbag in low
speed collisions. Your seatbelt's gonna protect you up to 15, 20
miles an hour, maybe. But in low speed collisions, if you've got
your seatbelt on, you're -- you're good to go. You don't need the
danger of the airbag in these low speed collisions. So why not
39
SC-2024-0121

-- You know how your car tells you you don't have your buckle
-- your belt buckled, there's -- easy to put a switch in there.
And that signal, yes or no the belt is buckled, can go to the
sensor. The single point sensor that they had in their
computer program and it can have a line of code in the
computer program, is -- is the belt buckled; is it not buckled.
If it's buckled, make the threshold higher. If it's not buckled,
maybe you need an airbag down at 10 miles an hour."

Broadhead further testified that, had the Infiniti's airbag not deployed,

Alise would not have been injured and that dual-threshold airbag

systems were used in the industry at the time the subject Infiniti was

manufactured. Although Nissan contends that Broadhead's testimony

did not establish that the Infiniti's deployment threshold was

unreasonably dangerous or that a dual-threshold system could have

avoided Alise's injuries, we believe that a reasonable jury could infer from

the testimony admitted into evidence in this case (1) that the Infiniti's

deployment threshold was too low for belted occupants, (2) that a dual-

threshold airbag system would have shifted the deployment threshold

upward for belted occupants, (3) that a dual-threshold airbag would not

have deployed in this accident, and (4) that Alise, in turn, would not have

been injured.

The record also reflects that Broadhead testified (1) that, to prevent

40
SC-2024-0121

Alise's head and face from being in the path of the deploying airbag, the

latest allowable airbag-deployment time should have been 19

milliseconds; (2) that Nissan's own internal-testing documents and

testimony from Nissan's person most knowledgeable established that the

subject airbag was designed to fire as late as between 63 milliseconds and

101 milliseconds after impact; (3) that the pattern of makeup transfer on

the airbag was forensic evidence showing that the subject airbag hit Alise

while it was still unfolding; (4) that crush-zone sensors in the front of a

vehicle could have sensed the collision and fired the airbag more quickly

than the subject Infiniti's single compartment sensor; and (5) that

NHTSA data reflected that the majority of cars manufactured in 1998

had crush-zone sensors. Based on the arguments and testimony admitted

into evidence in this case, we believe that a jury could reasonably

conclude that (1) the Infiniti's airbag deployed too late, (2) that the

delayed deployment was the result of inadequate crash sensors on the

Infiniti, (3) that implementing crush-zone sensors in the front of the

Infiniti would have sped up deployment, and (4) that additional crush-

zone sensors were an economically and technologically feasible

alternative design that would have mitigated Alise's injuries.
41
SC-2024-0121

Viewing the foregoing evidence in the light most favorable to Alise,

we conclude that Broadhead's testimony sufficiently established the

existence of at least one safer, practical, alternative design that would

have mitigated or prevented Alise's injuries and that Alise met her

burden of presenting substantial evidence in support of her AEMLD

claim. We, thus, affirm the trial court's order denying Nissan's renewed

motion for a judgment as a matter of law.

Conclusion

In sum, we affirm the trial court's denial of Nissan's renewed

motion for a judgment as a matter of law, but we conclude that the trial

court failed to exercise its discretion in ruling on Nissan's motion for a

new trial. For that reason, we reverse the denial of Nissan's motion for a

new trial and remand the case for proceedings consistent with this

opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Stewart, C.J., and Wise, Bryan, and Lewis, JJ., concur.

Cook and McCool, JJ., concur specially, with opinions.

Shaw, J., concurs in the result, with opinion.

42
SC-2024-0121

Sellers and Mendheim, JJ., concur in the result.

43
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COOK, Justice (concurring specially).

Given existing Alabama precedent and the findings of fact and

statements made by the trial court in its order on Nissan's motion for

new trial, I believe that the main opinion is a straightforward application

of well-settled principles of Alabama law. Thus, I concur fully with the

main opinion's analysis. However, I write specially to raise the question

of whether our Court should revisit the standard for granting a new trial

based on a juror's failure to disclose information during voir dire --

something not raised by either party in this appeal.

As explained in the main opinion, under existing Alabama law,

"[w]hen the trial court is presented with a new trial motion based upon

either an improper or a nonexistent response to a voir dire question, 'the

court must determine whether the response or lack of response has

resulted in probable prejudice to the movant.' " Continental Eagle Corp.

v. Mokrzycki,
611 So. 2d 313, 318
(Ala. 1992) (quoting Eaton v. Horton,
565 So. 2d 183, 185
(Ala. 1990)) (emphasis added).

Moreover, "[t]he form of prejudice that would entitle a party to relief

for a juror's nondisclosure or falsification in voir dire would be its effect,

if any, to cause the party to forgo challenging the juror for cause or
44
SC-2024-0121

exercising a peremptory challenge to strike the juror." Ex parte Dobyne,
805 So. 2d 763, 772
(Ala. 2001) (emphasis added). In other words, to

establish that probable prejudice exists, a movant need demonstrate only

that the outcome of jury selection would have been different -- not that

the outcome of the trial would have been different.
Id.
I think it is legitimate to ask whether the existing probable-

prejudice standard makes it too easy to obtain a new trial -- something

that could ultimately hurt plaintiffs or defendants. See, e.g., Hood v.

McElroy,
127 So. 3d 325
(Ala. 2011) (plurality opinion) (plaintiff moved

for new trial); Noble Trucking Co. v. Payne,
664 So. 2d 202
(Ala. 1995)

(plaintiff moved for new trial); Jimmy Day Plumbing & Heating, Inc. v.

Smith,
964 So. 2d 1
(Ala. 2007) (defendant moved for new trial); Holly v.

Huntsville Hosp.,
925 So. 2d 160
(Ala. 2005) (defendants moved for a new

trial).

Trials are exceptionally expensive for the parties. Trials are a

substantial investment of time and energy by the court system and by

members of the public who must serve as jurors. In short, it is a really

big thing to require an entirely new trial. Of course, there will be

important reasons that justify requiring a new trial in some
45
SC-2024-0121

cases. However, I believe it is time that we reconsider exactly what must

be demonstrated before granting a new trial based on a juror's failure to

disclose information during voir dire.

In contrast to Alabama precedent, federal precedent states that a

party seeking a new trial must demonstrate two elements: (1) that a juror

failed to answer honestly a material question during voir dire and (2) that

a correct response would have provided a valid basis for a challenge for

cause. See McDonough Power Equip., Inc. v. Greenwood,
464 U.S. 548,

556
(1984). In McDonough, the United States Supreme Court further

explained that "[t]he motives for concealing information may vary, but

only those reasons that affect a juror's impartiality can truly be said to

affect the fairness of a trial."
Id.
In other words, that court recognized

that, if the undisclosed information would not have justified removing

the juror for cause, then the nondisclosure was unlikely to have affected

the trial's fairness or outcome.

Our prior caselaw has not embraced the above-mentioned principle,

and, under Alabama law, probable prejudice may be established if the

nondisclosure affected either the party's ability to challenge the juror for

cause or to exercise a peremptory strike. Thus, the federal standard
46
SC-2024-0121

imposes a higher burden of proof on the movant, requiring a showing of

both dishonesty and a valid basis for a challenge for cause.

I have no present opinion about whether Alabama should adopt this

federal standard or some modified version of it. Or perhaps there is a

suitable standard from another state that we may want to consider

adopting. But, I do believe that our Court should have this discussion,

and I urge the bar to raise this issue in a future appropriate case.

47
SC-2024-0121

McCOOL, Justice (concurring specially).

I concur fully with the main opinion. I write specially to emphasize

the fundamental importance of truth and candor in the jury-selection

process of our civil- and criminal-justice system.

Our jury-based system of achieving justice is indeed rare in the

world today. In very few countries are regular citizens called upon to

make decisions of the most fundamental importance. In most of Europe,

verdicts such as the one before us are rendered primarily by civil

magistrates or judges. In Muslim countries, sharia law dictates that

qadis (judges) hand out justice. In this country, however, juries composed

of laypeople decide legal disputes of great importance, often involving

significant sums of money or the deprivation of an individual's freedom

or even life. I am convinced that it is the jury system, more than any

other aspect of our constitutional republic, that keeps our citizens free

and ensures our basic freedoms.

However, this system only works if a jury is impartial, and it is

therefore axiomatic that the process of "selecting" a jury be free from

taint. As this Court explained in Western Railway of Alabama v. Mutch,
97 Ala. 194, 200
,
11 So. 894
, 896-97 (1892):
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"Trial by jury is a bulwark of American, as it has long
been of English, freedom. It wisely divides the responsibility
of determinative adjudication, of punitive administration,
between the judge, trained in the wisdom and intricacies of
the law, and 12 men chosen from the common walks of
nonprofessional life; chosen for their sound judgment and
stern impartiality."

(Emphasis added.) And the method by which we ensure an impartial,

untainted jury is through the jury-selection process, whereby the

attorneys for each party question the prospective jurors during voir dire

and rely on their answers to ultimately select which veniremembers will

serve on the jury. See Vivion v. Brittain,
510 P.2d 21, 24
(Wyo. 1973)

("The method of determining if a juror is qualified and can reasonably be

expected to be fair and impartial is through voir dire examination."); and

Azucena v. State,
135 Nev. 269
, 273,
448 P.3d 534
, 538 (2019) (noting

that " 'a truly impartial jury, whether the action is criminal or civil, is so

basic to our notion of jurisprudence that its necessity has never really

been questioned in this country' " and that "[t]he voir dire process is a

crucial means of ensuring … an impartial jury" (citation omitted)).

To be precise, attorneys in Alabama do not "select" a jury; they

"strike" it by removing those members of the venire that they do not

believe would be fair and impartial to their clients. There are two
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methods of striking a prospective juror under Alabama law: challenges

for cause and peremptory strikes. Challenges for cause are primarily

defined by statute, see § 12-16-150 through § 12-16-152, Ala. Code 1975,

though a trial judge " 'may remove a potential juror if probable prejudice

exists, even if none of the statutory grounds apply.' " Peraita v. State,
897 So. 2d 1161, 1218
(Ala. Crim. App. 2003) (citation

omitted). Peremptory strikes, on the other hand, are exercised at the

discretion of the attorneys and may be used for any reason or even no

reason, subject to constitutional limitations. See, e.g., Batson v.

Kentucky,
476 U.S. 79
(1986) (holding that it is unconstitutional to base

peremptory strike on race); and J.E.B. v. Alabama,
511 U.S. 127
(1994)

(holding that it unconstitutional to base peremptory strike on gender).

This type of strike allows an attorney to remove those prospective jurors

whom he or she does not want on the jury, perhaps because the attorney

picks up on a bias that, while not favorable to his or her client, does not

rise to the level of a challenge for cause.

In my estimation, peremptory strikes are just as important as

challenges for cause. Indeed, "a principal reason for [peremptory strikes]

[is] to help secure the constitutional guarantee of trial by an impartial
50
SC-2024-0121

jury." United States v. Martinez-Salazar,
528 U.S. 304, 306
(2000). As a

matter of fact, in my experience, a jury is struck primarily through the

attorneys' use of peremptory strikes rather than through successful

challenges for cause, which might not even be used at all in some cases.

And, significantly, one of the most important bases for both peremptory

strikes and challenges for cause are the answers that each side receives

(or does not receive) from the prospective jurors during voir dire. Thus,

when prospective jurors do not answer the questions they are asked, or

do not answer truthfully, this entire process can be confounded, even if

the nondisclosure does not concern an issue that would have risen to the

level of a challenge for cause.

In my experience, one of the most significant moments in a jury

trial in Alabama occurs at the end of the jury-striking process, when the

jury is seated in the box and the trial judge looks at each attorney and

asks, "Is this the jury you struck?" When the attorney rises and answers,

"Yes, Your Honor," implicit in that answer is the attorney's belief that he

or she has struck the best possible jury for his or her client. That belief

is based in large part on the purportedly true and complete answers that

the jurors provided during voir dire. In this case, however, two jurors
51
SC-2024-0121

should have responded affirmatively, but did not, when asked a certain

question by the plaintiff's attorney during voir dire, and the trial court

was understandably concerned that the defendants might not have been

able to strike a fair and impartial jury as a result of those jurors'

nondisclosure.

To be clear, the mere fact that two jurors were not forthcoming

during voir dire does not in and of itself mean that the defendants are

entitled to a new trial, and I express no opinion on that issue. See Holly

v. Huntsville Hosp.,
925 So. 2d 160, 162
(Ala. 2005) (" 'Not every failure

of a juror to respond properly to a question propounded during voir dire

automatically entitles a party to a new trial.' " (citation omitted)). Rather,

that is a question for the trial court to decide on remand. However, the

fact that those two jurors did not disclose specific information that they

were clearly and unequivocally asked to disclose certainly raises the

possibility that the jury that decided this case was not fair and impartial.

Thus, I concur in this Court's decision to reverse the order denying the

defendants' motion for a new trial and to remand the case for the trial

court to reconsider that motion in light of this Court's explanation that

52
SC-2024-0121

the trial court has the discretion to grant the defendants a new trial

should it determine one is warranted.

53
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SHAW, Justice (concurring in the result).

I respectfully concur in the result. Further, as to Part II. of the

"Discussion" portion of the main opinion, I am not convinced that we

should characterize the trial court's denial of the motion for a new trial

as failing to exercise its discretion. It made a decision, but that decision

was based on an erroneous legal premise, that is, what prior caselaw

required.

"The proper exercise of judicial discretion ... ' " 'is the exercise of

judicial judgment, based on facts and guided by law.' " ' " Ex parte

Dolgencorp, Inc.,
13 So. 3d 888, 896
(Ala. 2008) (emphasis added; internal

citations omitted). "A court exceeds its discretion when its ruling is

based," among other things, "on an erroneous conclusion of law."

Edwards v. Allied Home Mortg. Cap. Corp.,
962 So. 2d 194, 213
(Ala.

2007). Here, as the main opinion explains, the trial court misunderstood

the impact of prior caselaw on its decision.

Nissan North America, Inc., and Nissan Motor Co., Ltd. v. Alise Henderson-Brundidge

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