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It Is Error Not to Strike a Biased, Unrehabilitated Juror; Clark v. Mattar

On Behalf of | Jan 10, 2023 | Blog

If a judge thinks a juror is just giving excuses to get off of a jury, is that a reason not to strike the juror for cause? At least in this case, it was not.

Plyes died following complications from a bariatric surgery. Her estate (Clark) brought a claim against Dr. Mattar. The medical review panel unanimously found that Dr. Mattar failed to comply with the appropriate standard of care and that this conduct was a factor of the resultant damages.

The matter proceeded to a jury trial, at which an issue arose when picking the jury. One prospective juror, Mr. Miller, indicated repeatedly that he did not want to serve as a juror and further, that he didn’t think he should have to or would be able to put a dollar amount to non-economic damages. Clark moved to strike Miller for cause, but the trial court denied the motion, finding that Miller was not biased against any particular party, but rather that Miller was looking for a reason not to serve on the jury. Clark preserved his objection, and the trial resulted in a defense verdict. The Court of Appeals reversed, and the Court accepted transfer.

On transfer, the Court dealt with the issue of the “reluctant juror” in the context of a bias challenge for the first time. The Court noted that this was not a case where a juror had a specific reason to be biased. Nevertheless, the Court found that there was bias because the fact

that he did not want to serve and during voir dire, he said he would have trouble putting a dollar amount to non-economic damages mean[s] that there’s a bias against the party seeking those damages—here, Clark. …This is not to say that every unwilling or reluctant juror is biased as there are times these unwilling or reluctant jurors can be rehabilitated, but under these circumstances, Miller stated repeatedly and emphatically that he could not render a decision about noneconomic damages.

Importantly, Miller was not rehabilitated by the trial court or Mattar’s counsel. “Perhaps with further questions by counsel or the court, Miller could have been rehabilitated, but he wasn’t.” The Court then discussed the obligation of both the court and counsel to try to rehabilitate a juror:

Because of the importance of a fair and impartial jury, we note that it is the joint responsibility of both counsel and the trial court to undertake some rehabilitation effort when an issue arises regarding whether a juror is fit to serve. Here, Miller indicated several times that he could not and would not be able to assess noneconomic damages but instead of counsel or the court asking further questions, the voir dire process continued with no rehabilitation effort. We think counsel and/or the court could have and should have done more. If counsel or the court choose not to make a rehabilitation attempt, that is their choice. However, if that occurs, we will only have the statements of the prospective juror to rely on for appellate review and we will not speculate about what the results of a rehabilitation attempt might have been.

The question then turned to whether Clark was prejudiced by having his for-cause strike denied. And the Court found that there was prejudice because “Clark was forced to exhaust her peremptory challenges and accept an objectionable juror.” It noted that this is a bright-line rule.

The fact that the jury didn’t find Dr. Mattar negligent is beside the point because had she not had to use her peremptory on Miller and gotten to strike Juror 3 as she wished, that one juror certainly could have caused the entire jury to come to a different outcome. We agree with Clark that there is no way to speculate what impact a single different juror may have had here and there is no reason to do so.

Justices Massa and Slaughter each separately disagreed with the Court’s opinion. Justice Massa agreed that Miller should have been stricken, but believes that granting a new trial is a disproportionate remedy.

My concern then and now is that error by a trial court in failing to dismiss a juror for cause will always result in a new trial, so long as the moving lawyer subsequently uses all her peremptory strikes, then objects to the last juror seated without even giving a reason, saying (even disingenuously), “I would have used a peremptory on this juror but I’m all out.”

Justice Massa would adopt the federal test, which would not give a new trial if a juror who should have been excused for cause is excused via a peremptory challenge.

Justice Slaughter would go further. He disagreed with the conclusion that the trial court erred because

The standard of review here is key. Had the trial judge ruled the other way, finding that the prospective juror was biased and that Tammi Clark was entitled to a for-cause strike, I likewise would have deferred to that finding and held that the judge did not abuse his discretion. The fact is, the record contains evidence supporting either finding…. I cannot agree with the Court’s conclusion today that it was “illogical” for the trial judge, who saw counsel’s colloquy with the prospective juror first-hand, to rule as he did. Indeed, the juror’s own questionnaire recited what the trial judge found, which is that he did not want to serve as a juror.

He felt that this lack of deference “threatens to upend the careful balance … between, on the one hand, the generous (some say “disproportionate”) remedy of a new trial for a jury-selection error and, on the other, a reviewing court’s overwhelming deference to the trial court’s ‘great discretion’ when ruling on motions to strike prospective jurors for cause.”

Without a deliberately high bar for finding reversible error, we face the real prospect of ordering new trials in myriad situations where the likely prejudice to the wronged party is doubtful—a prospect that would undermine Oswalt’s expressed interest in “judicial economy.” Granting a new trial in such circumstances because of a jury-selection finding with which we disagree, despite our duty to afford “substantial deference” to such findings, with no showing of resulting prejudice, strikes me as highly uneconomic.

1. If a juror expresses bias and is not rehabilitated, the court should strike him for cause even if the expression of bias is obviously motivated by a desire to avoid jury service.
2. When you lose a proper challenge for cause at trial, you preserve a bright-line issue for appeal by: (1) striking that juror with a peremptory challenge, (2) exhausting your peremptories, and (3) identifying on the record another juror as objectionable and for whom you would have used a peremptory if one had been available.
3. As opposing counsel, rehabilitate if possible.