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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.