¶1concurring in part; dissenting in part.
¶2I concur in the majority’s resolution of the allocation of the settlement issue. As to the order granting a new trial, however, I believe that the majority has simply substituted its own judgment for that of the trial court. Because I cannot agree that the trial court abused its discretion in reaching a conclusion different from that of the majority, I respectfully dissent from that portion of the decision.
¶3The jurors were aware from the opening remarks of counsel that the purpose of voir dire was to uncover any possible bias on the part of individual jurors in order that an impartial jury might be selected and a fair trial obtained. The challenged juror disclosed one possible source of bias — her own limited treatment by Allen — and reassured the court that that experience would have no effect on her deliberations. However, the juror concealed another, more troubling source of bias by failing to reveal that Allen had successfully treated her niece (or possibly her daughter) for a potentially fatal disease. The juror concealed that information from counsel, even though he asked her whether there was anything else that he should know about her before passing on her as a juror.
¶4The specific question asked by counsel (“Anything you think I should know or [Allen’s attorney] should know before we pass on you as a juror?”) is susceptible of varying interpretations, depending upon the context in which it is asked. One purpose might have been to elicit other experience or knowledge of Allen’s skills as a physician. The trial judge, who, unlike the judges of this court, had an opportunity to observe the voir dire and to assess the tenor of those proceedings, was entitled to find that the challenged juror had misrepresented her lack of bias on voir dire and that her misrepresentations were not materially different from those in State v. Salas, 68 Or App 68, 71 n 2, 680 P2d 706, rev den 297 *480Or 601 (1984). I would defer to the trial judge’s considered opinion on this issue and would affirm.