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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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