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COA: Juror bias should have been examined

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The Indiana Court of Appeals has ordered a new trial for a surgeon accused of medical malpractice during a stem cell collection procedure in which the patient died, finding that the trial court didn’t follow protocol in examining a potential juror’s impartiality and deciding whether to strike that person from the jury pool.

In its decision today in James M. Thompson, D.O. v. Amy Gerowitz, et al., No. 49A05-1005-CT-296, the appellate panel affirmed in part and reversed in part a decision by Marion Superior Judge David Dreyer. The case involved a 2008 procedure when Martin Gerowitz died while Dr. James Thompson was collecting stem cells. After the death, Gerowitz’s spouse sued for wrongful death and the matter went to trial in April 2010.

During the voir dire process, attorneys questioned the panel of prospective jurors collectively about whether anyone had any life experiences that might hinder them from being fair and impartial. The one juror in question, juror Odam, didn’t respond to any of those collective questions, but after the trial judge selected the juror pool and alternates, she raised a concern about how her husband had died and she’d tried to pursue a negligence action against the doctor. The trial court judge referenced the 250 jury trials he’s presided over during the years when examining the jury, and declined a motion to strike that juror in question after the doctor’s attorney argued an individual questioning of that person should have been done to further examine the issue.

Judge Dreyer also declined other motions relating to causation and the evidence, and the jury returned a verdict of $420,000 in the widow’s favor.

The Court of Appeals affirmed the denial on the motion for judgment on the evidence and causation, but remanded and ordered a new trial because of the juror misconduct and bias allegations that had been raised.

Analyzing the transcript, the appellate panel wasn’t convinced that the juror’s silence could be equated with “concealment” and rise to the level of juror misconduct, but it went further to look at the bias evidence and how Judge Dreyer handled the issue and ultimate jury lineup. The trial judge should have followed the practice of allowing the doctor to challenge that juror for cause and then excuse her and declare a mistrial as caselaw dictates.

“The trial court did not follow this protocol; instead, it denied Dr. Thompson’s motions to strike, for a hearing, and for a mistrial based on its previous, albeit extensive, experience conducting jury trials,” Judge Michael Barnes wrote for the unanimous panel. “Although the trial court’s rulings on these motions was a matter of discretion, the trial court was not permitted to disregard the established procedure or the distinct possibility of juror bias based on Juror Odam’s own belated statement. The trial court erred by not conducting a hearing to address Juror Odam’s alleged bias.”

The judges rejected arguments by Gerowitz’s attorneys that the point about potential bias was waived because counsel didn’t expose it during the collective voir dire examination, or that the doctor’s counsel should have used a peremptory challenge to strike that juror. The panel determined evidence didn't show a more detailed examination should have been done during jury selection, and the argument about exhausting peremptory challenges is misplaced.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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