Arianna Thomas, as Parent of Kyler Thomas v. Tanya M. Meziere ( 2020 )

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
September 3, 2020
In the Court of Appeals of Georgia
A20A0968. THOMAS v. MEZIERE et al. DO-034
DOYLE, Presiding Judge.
In this medical malpractice case, plaintiff Arianna Thomas, as mother of
deceased infant Kyler Thomas, brought a wrongful death action against defendants
Dr. Tanya Meziere, Dr. Letitia Royster, and MYOBGYN, P.C. Thomas now appeals
from a jury verdict in favor of the defendants , contending that the trial court erred by
(1) refusing to strike for cause a married couple from the jury, and (2) excluding from
evidence an illustration Thomas attempted to use during cross-examination of an
expert witness for the defense. Finding no error, we affirm.
The relevant record is undisputed. In June 2014, Thomas was admitted to the
hospital to induce delivery of her baby. Meziere ordered fetal monitoring, and the
next day a certain pattern alleged to be sinusoidal was observed on the heart rate
monitor. Ultimately, doctors delivered the baby by cesarean section, but the baby
exhibited poor health at delivery and died one day later.
Thomas brought a wrongful death action against the defendants alleging that
they breached the standard of care by failing to respond appropriately to signs of fetal
distress, including the readout from a fetal heart rate monitor. The case went to trial,
and during voir dire of the jury panel, it became clear that two members of the panel
were a married couple. Additional voir dire was conducted, and both parties and the
court asked questions of the two married jurors about their independence and
impartiality. Thomas moved to strike the married couple for cause, arguing that their
independence was compromised by the fact that they were married. Based on their
answers during voir dire, the trial court denied Thomas’s motion to strike for cause.
Thomas ultimately used one of her peremptory strikes to strike the wife, and the
husband was seated on the jury.1
The trial ensued and during trial, Thomas attempted to introduce a diagram
(“Figure 18-13” found on Plaintiff’s Exhibits 8 and 9 ) from a medical treatise to
1
During voir dire, the wife indicated a generalized disapproval of large jury
verdicts.
2
cross-examine an expert witness called by the defense. The defendants objected, and
the trial court sustained the objection and excluded the exhibit.
Thomas now appeals, challenging the trial court’s failure to strike the married
jurors for cause and failure to admit the diagram from the treatise.
1. Thomas contends that the trial court erred by denying her motion to strike
both the husband and wife from the jury, forcing her to use one of her peremptory
strikes to strike the wife in order to avoid having a husband and wife “team.” We
discern no abuse of discretion.
Georgia law presumes that potential jurors are impartial, and the
burden of proving partiality lies with the party seeking to have the juror
disqualified. . . [A] potential juror must be excused for cause if he or she
holds an opinion so fixed and definite that he or she will be unable to set
it aside and decide the case based on the evidence and the court’s charge
on the evidence. Furthermore, trial courts have broad discretion to
evaluate and rule upon a potential juror’s impartiality, based upon the
ordinary general rules of human experience. In fact, a trial court may
only be reversed upon a finding of manifest abuse of that discretion.2
2
(Footnotes and punctuation omitted.) Wood v. B&S Enterprises, 314 Ga. App.
128, 133 (4) (723 SE2d 443) (2012).
3
Pretermitting whether Thomas has shown sufficient harm under the facts of this
case,3 the record shows that counsel for both parties as well as the trial court engaged
in a thorough colloquy with both prospective jurors during voir dire, specifically
addressing the process for resolving disputes between them. The examination was not
a mere “rehabilitation of the jurors through ‘talismanic’ questions,”4 and was instead
focused on determining any lack of independence based on their marital dynamic.
When questioned, both the husband and the wife stated that they could be fair and
evaluate the case based on the evidence presented. Neither demonstrated a fixed
opinion regarding the parties or the issues in the case stemming from their marital
status (notwithstanding the wife’s comments about excessive jury verdicts). At one
3
See Willis v. State, 304 Ga. 686, 708 (12) (820 SE2d 640) (2018) (“[T]he trial
court’s erroneous failure to excuse a prospective juror for cause, as shown by that
juror’s voir dire responses, cannot serve as the basis for reversal on appeal unless that
juror served on the defendant’s twelve-person jury.”), overruling Stolte v. Fagan, 291
Ga. 477, 478-479 (1) (731 SE2d 653) (2012) (“[L]itigants — criminal and civil — are
entitled to the removal of unqualified jurors before they begin exercising their
peremptory strikes.”) (emphasis omitted). See also Golden Isles Cruise Lines, Inc. v.
Lowie, 350 Ga. App. 1, 11 n. 7 (827 SE2d 703) (2019) (“‘a defendant is not
presumptively harmed by a trial court’s erroneous failure to excuse a prospective
juror for cause simply because the defendant subsequently elected to remove that
juror through the use of a peremptory strike’”).
4
Harper v. Barge Air Conditioning, Inc., 313 Ga. App. 474, 478 (1) (722 SE2d
84) (2011).
4
point, one of the prospective jurors5 explained, “I think we will both, you know, make
our adult decision in the room based on what’s presented. And if it means we’re in
opposite positions, we just are.” Following up on this, defense counsel asked if either
prospective juror would change his or her mind “because your spouse felt differently
about it,” and each one replied that he or she would not.
There is no evidence, nor any assertion by Thomas, that either of the
prospective jurors was unqualified due to their relationship to the parties6 or an
interest in the outcome.7 The record developed during voir dire shows that each juror
was questioned alone and together as to whether he or she could decide the case on
the merits of the evidence presented. Neither juror revealed an inability to decide the
case on that basis or come to his or her own decision. Based on this, we discern no
5
The transcript does not make it clear whether it was the husband or the wife.
6
OCGA § 15-12-135 (a) governs the relationship between a potential juror and
a party: “All trial jurors in the courts of this state shall be disqualified to act or serve
in any case or matter when such jurors are related by consanguinity or affinity to any
party interested in the result of the case or matter within the third degree as computed
according to the civil law. Relationship more remote shall not be a disqualification.”
7
Compare Harper, 313 Ga. App. at 475 (1) (“[I]t shall be good cause of
challenge that a juror has expressed an opinion as to which party ought to prevail or
that he has a wish or desire as to which shall succeed.”).
5
abuse of discretion by the trial court in denying Thomas’s motion to strike the jurors
for cause.8
2. Thomas also challenges the trial court’s refusal to admit a diagram from a
medical treatise for the purpose of cross-examining a defense expert. We review the
admission of evidence for an abuse of discretion,9 and we discern no such abuse here.
During Thomas’s cross-examination of Dr. Richard Zane, an expert witness
called by the defense, Thomas tendered Plaintiff’s Exhibits 8 and 9, each of which
included Figure 18-13 from the medical treatise Williams on Obstetrics. On Exhibit
8, Figure 18-13 is labeled “Sinusoidal fetal heart rate pattern.” It had been established
by expert testimony that a sinusoidal pattern was a rare incident indicating the need
for immediate intervention and/or delivery of the baby. Thomas intended to use the
diagram to strengthen her argument that medical staff failed to meet the standard of
care based on the fetal heart rate monitoring.
8
See Wood, 314 Ga. App. at 135 (4) (holding that the trial court did not abuse
its discretion by denying a motion to strike because the juror stated that he could
follow the law despite his personal dislike of the legal principle at issue).
9
See Rivers v. K-Mart Corp., 329 Ga. App. 495, 496 (1) (765 SE2d 671)
(2014).
6
As Thomas laid the foundation for the exhibits, Dr. Zane explained that the
exhibit containing Figure 18-13 was inaccurate and misleading, in his view, because
the label shown in the exhibit, “sinusoidal pattern,” was incomplete without further
context provided in the Williams treatise. Dr. Zane pointed out that, as described in
Williams, Figure 18-13 was not a true sinusoidal pattern, but instead was a pseudo-
sinusoidal pattern reflecting an “insignificant pattern related to medications” taken
by or administered to the mother. Dr. Zane identified a different figure in the treatise,
Figure 18-10, as depicting a true sinusoidal pattern; that figure was not in the exhibits
proffered by Thomas. Thus, Dr. Zane disputed that Figure 18-13 as depicted in the
exhibits was labeled accurately. The trial court ruled that Exhibits 8 and 9 (containing
Figure 18-13) were inadmissible due to a lack of proper foundation.
Thomas intended to use Figure 18-13 as an example of a sinusoidal fetal heart
rate pattern to cross-examine Dr. Zane and sought admission of the exhibits under
OCGA § 24-8-803 (18) (“Rule 803”), which states:
The following shall not be excluded by the hearsay rule, even though the
declarant is available as a witness: . . . To the extent called to the
attention of an expert witness upon cross-examination, statements
contained in published treatises, periodicals, or pamphlets . . . on a
subject of history, medicine, or other science or art, established as a
reliable authority by the testimony or admission of the witness, by other
7
expert testimony, or by judicial notice. If admitted, the statements may
be used for cross-examination of an expert witness and read into
evidence but shall not be received as exhibits. . . .
Based on this, Thomas argues that the exhibits met all of the above elements and that
the trial court erred by refusing to admit the exhibits for purpose of cross-examining
Dr. Zane.
Assuming without deciding that Thomas’s intended use of the exhibits fell
within the procedure outlined in Rule 803, that rule applies to “statements contained
in published treatises . . . on a subject of history, medicine, or other science or art,
established as a reliable authority.”10 Here, Dr. Zane disputed that the exhibits at issue
accurately represented a statement in a treatise established as reliable. Even assuming
that the Williams treatise is a reliable medical authority, according to Dr. Zane, the
exhibits proffered by Thomas did not accurately reflect the statements in the treatise
regarding the shape of a clinically significant sinusoidal fetal heart rate pattern. As
discussed above, Dr. Zane pointed out that the Williams treatise explained that the
pattern depicted in Figure 18-13 was actually not a pure sinusoidal pattern, as the
label in the exhibits implied; rather, the figure in the exhibits was an example of a
10
OCGA § 24-8-803 (18).
8
pseudo-sinusoidal pattern which was offered as a distinction in the treatise to more
fully illustrate the medical point. According to Dr. Zane’s testimony, the exhibits
lacked sufficient context and mischaracterized Figure 18-13.
Based on this record, Dr. Zane’s testimony authorized the trial court to find that
the exhibits as labeled were misleading without the additional context found in
Williams. In light of this unique scenario, the trial court was authorized to exercise
its discretion to exclude the exhibits.11 Accordingly, this enumeration presents no
basis for reversal.
Judgment affirmed. McFadden, C. J., and Hodges, J., concur.
11
Cf. Moore v. WellStar Health System, Inc., 349 Ga. App. 834, 845 (5) (824
SE2d 787) (2019) (admission of evidence that did not meet the scope of Rule 803
(18) was harmful).
9