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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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