COA upholds denial of challenge to 6 med-mal jurors

A judge sitting on a medical malpractice case who denied for-cause challenges to six jurors did not abuse his discretion in denying the challenges, the Indiana Court of Appeals has ruled, pointing to the “substantial discretion” trial court judges have over voir dire.

The case of Harold D. Wallick v. Eric B. Inman, M.D., 18A-CT-2519, began with Harold Wallick’s medical malpractice action against anesthesiologist Dr. Eric Inman. Wallick claimed Inman administered general anesthesia during a cardiac procedure that resulted in Wallick suffering a stroke and vision loss.

During jury voir dire, Wallick’s counsel discussed the burden of proof in civil cases, likening the “greater weight of the evidence” standard to a 51-49 vote. During individual questioning, 10 of the 14 seated prospective jurors told Wallick’s counsel they did not believe the 51-49 was a sufficient standard to rule in favor of the plaintiff.

Inman’s counsel then told the court he intended to ask for a mistrial, calling Wallick’s questioning “jury nullification.” In response, the trial judge said he had been “waiting for the objection” and promised to follow up with each potential juror.

“I’m going to ask those questions,” the Marion Superior Court told Wallick’s attorney. “You don’t instruct these jurors. I do.”

Wallick’s attorney then challenged for cause nine of the potential jurors based on what they had said regarding the burden of proof. Of those jurors, six told the court they could put aside their personal beliefs and follow the court’s instructions, so Wallick’s challenge was denied as to those six jurors. The plaintiff’s challenges to two other jurors were also later denied.

In total, Wallick’s counsel made 12 for-cause challenges, eight of which were denied. Wallick challenged six of those denials on appeal, arguing first that five potential jurors said they would have required Wallick to prove his case by more than the greater weight of the evidence.

In upholding the trial court’s rulings, Indiana Court of Appeals Judge Robert Altice noted Wednesday that those five jurors responded affirmatively when asked if they could put aside their personal beliefs and follow the court’s instructions on the burden of proof. Wallick argued that such a “magic question” should be barred as a method of juror rehabilitation, but the Court of Appeals declined to impose such a ban.

As to the sixth juror Wallick challenged, who said he hated court and did not like doctors or lawyers, Altice noted that particular juror also told the court he did not suffer from any physical or mental disability that would prevent him from satisfactorily serving on the jury.

“It cannot be disputed that the trial court in this case gave considerable leeway to Wallick’s counsel, allowing over ninety minutes of questioning and then posing its own follow-up inquiries to Wallick’s twelve for-cause challenges …,” Altice wrote. “Notably, the court struck four potential jurors whose answers reflected that he or she could not follow the instructions given.

“The trial court devoted a generous amount of time to jury selection in order to make sure each person, including those challenged for cause, was competent to sit on the jury,” the judge continued. “We find no abuse of the court’s substantial discretion and conclude that the trial court did not act illogically or arbitrarily when it denied the six for-cause challenges at issue.”

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