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Prospective juror’s criticism of lawyer OK in verdict for hospital

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When a prospective juror in a wrongful death lawsuit against a hospital said he believed a lawyer was suing to make money, that attorney’s failure to ask the judge for an admonishment of the jury pool waived her later argument for a mistrial, the Court of Appeals ruled Monday.

Wilbur Upham went to the emergency room of Morgan County Hospital on April 16, 1997, complaining of vomiting, abdominal pain, diarrhea and chills and was dismissed with a diagnosis of acute gastroenteritis. He went to a doctor elsewhere later that day, and was found dead in a chair that night due to a ruptured abdominal aortic aneurism.

After a medical review board ruled the evidence supported a conclusion that the hospital met the applicable standard of care, Upham’s family sued the hospital, and a jury in 2011 ruled for the hospital in Maria Upham, as Surviving Spouse and Personal Rep. of the Estate of Wilbur A. Upham, Deceased v. Morgan County Hospital, Richard J. Eisenhut, M.D., Unity Physicians, Kendrick Family Practice, et al., 55A01-1202-CT-53.

On appeal, the estate argued the trial court should have declared a mistrial after a prospective juror identified as a former attorney retired from Eli Lilly opined that malpractice suits were “the goose that laid the golden egg for trial attorneys and specifically plaintiff attorneys.” The plaintiff’s attorney continued, asking the would-be juror if he believed she was “taking this case just because I want an attorney’s figure that I apparently don’t believe in the justice of that.”

Juror 35 replied, “I suspect you’re getting one-third of any … any judgment, so yes.”

“Only then did Counsel turn her attention to other prospective jurors. Upham’s counsel did not ask the trial court to admonish the prospective jurors regarding the statements. After Upham’s counsel spoke with some other prospective jurors, Juror 35 was excused and Upham moved for a mistrial based on his statements,” Judge Melissa May wrote for the panel. “The trial court denied the motion, saying Upham’s ‘counsel invited much of that.’

“We hold Upham has waived her allegation of error for appeal because she did not ask the trial court to admonish the venire,” May wrote.

The court also found no abuse of discretion regarding jury instructions or the trial court’s limitation on discovery of interrogatories of Dr. Richard Eisenhut on whether he had been counseled for substance abuse, whether he had emotional, personal, psychiatric or family problems or a criminal record. That information had been considered by the trial court in camera, which the COA previously upheld.

“We decline to revisit our decision that release of the information could compromise the Appellees’ legitimate interests in non-disclosure of privileged or confidential information and that the information would be unlikely to support the issues Upham asserted in her motion to release the information,” May wrote.


 

 

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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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