Juror’s Unequivocal Refusal to Participate in Determination of Non-Economic Damages Constitutes Bias or Prejudice Against Plaintiff Seeking Such Damages

The right to a trial by a jury is considered one of our sacred rights under the Constitution. However, this guarantee means little if the impaneled jurors profess to having an unalterable belief as to the propriety of awarding money damages even when instructed by a judge that it is their duty to do so. Indiana’s guidance to trial judges is quite general when it comes to whether a juror should be stricken, as the trial court’s literal reading of the rule in Estate of Pyle v. Mattar, M.D. illustrates.

In Estate of Pyle, the personal representative of the deceased Pyle’s estate, filed a wrongful death/medical malpractice suit against Dr. Mattar and other healthcare providers seeking money damages. During jury selection (also known as voir dire), the following exchange took place between plaintiff’s counsel and a prospective juror, Miller:

[Miller]: So, we have to determine the dollar amount? [Clark’s Trial Counsel]: Yes, sir. Assuming there is liability, you would have to determine the dollar amount. [Miller]: I don’t know if I want any part of that. [Clark’s Trial Counsel]: Okay. I’m going to explain. I appreciate your candor. Tell me why you are feeling that way. [Miller]: I’m just not sure. I just—I don’t think it’s my responsibility to determine the dollar amount. [Clark’s Trial Counsel]: Okay. So, let me ask this. The Judge is going to give you instructions, and assuming that you found liability, and you were satisfied by the preponderance of the evidence that there was liability for this, you are also going to have to decide damages. Are you telling me that you don’t feel that you could fulfill your duty on that second part of this? [Miller]: I want no part of it. [Clark’s Trial Counsel]: Okay, and why? [Miller]: I just don’t feel it is right. I don’t think I should have to do that. [Clark’s Trial Counsel]: Okay. Would you be able to take your oath as a juror on that? [Miller]: Well, I’m telling you the truth now. [Clark’s Trial Counsel]: Okay. No, I understand that. The reason I’m asking you is, as the Judge said, you know, getting rid of somebody as a juror for cause requires a very heavy burden. So, I’m asking you, if the Judge asked or the other attorney asked you, are you telling me that you can’t sit on a case where you are going to be asked to render a verdict— [Miller]: —Based on that question I have to say, no, I can’t. … [Miller]: Are you asking the same question again? [Clark’s Trial Counsel]: Well, kind of. I mean, I know, I got your view. I take it that you just don’t want to have anything to do with— [Miller]: —As far as whether he performed malpractice or not, I can do that. But the money part—no.

Plaintiff’s counsel then moved to strike Miller for cause and the trial court judge denied the motion reasoning:

under Rule 17 of the Indiana Supreme Court[’]s Jury Rules it is not cause. He doesn’t meet the qualifications for a challenge for cause. He is not disqualified under Rule 5. He hasn’t served as a juror in the same county within the previous 365 days. He is not unable to comprehend the evidence and instructions. He hasn’t formed or expressed an opinion about the outcome of the case. He is not a member of a jury previously considered this. He is not related to any of the parties, attorney[]s or witnesses. He doesn’t have a personal interest in the result of the trial. He isn’t biased or prejudiced against a party and he has not be[en] subpoenaed as a witness. So, it is not cause. It is not cause. … The court shall sustain a challenge for cause if the prospective juror is—and #8 says: is biased or prejudice for or against a party to the case. Mr. Miller, juror #13, did not express bias for or against either party. Mr. Miller stated that he had a problem with assessing damages in the case and I don’t believe that meets the standard of bias or prejudice against the parties of the case. So, if you are making an[] objection, Counsel, the objection is overruled.

Plaintiff’s counsel then appropriately advised the Court that he would have to use a peremptory challenge to strike Miller and, had a strike for cause been allowed, he would have used his peremptory challenge to strike another who he now was unable to strike.

In agreeing with the Estate that Miller was prejudiced against it, the Court of Appeals noted: “Miller’s responses, as mentioned, went beyond stating mere discomfort, clearly expressing an inability to follow the law…no attempt (much less a successful one) was made by Dr. Mattar’s trial counsel to rehabilitate Miller.” The Court rejected Dr. Mattar’s argument that Miller’s earlier agreement to the scales being level at the time of jury selection and to “be fair” were sufficient to show he was not biased. Rather, the Court found Miller “unequivocally withdr[e]w that willingness, a position from which he did not waiver.”

Dr. Mattar also argued that the biased juror’s feelings could not have played any role in the jury’s verdict, as the jury did not reach the issue of damages. The Court also rejected this argument noting, “Dr. Mattar seemingly would have us create an exception to the prejudice rule…for parties that lost at trial, which is something we decline to do.” The Court reversed the judgment of the trial court and remanded for a new trial.

Indiana medical malpractice lawyers know that obtaining a plaintiff’s verdict in an Indiana medical malpractice case is no small accomplishment. Obtaining a verdict in a case where an impaneled juror has stated under oath that he does not agree with awarding money damages under any circumstances would be seemingly impossible. Fortunately for victims of medical malpractice, the Indiana Court of Appeals has provided additional guidance to trial courts as to what it means for a prospective juror to have bias or prejudice against a party. Presumably, now if a juror unequivocally states he or she cannot follow an instruction on the law in such a way that would, by that very fact, result in a finding in favor one party over the other, there is ipso facto an inherent bias or prejudice against the party. However, attorneys are cautioned that showing bias or prejudice will not be enough. They must also identify an impaneled juror who they would have struck had they retained the peremptory strike they were required to use against the juror prejudiced against their client.