Tammi Clark, as personal representative of the estate of Kandace Pyles v. Samer Mattar, M.D. ( 2019 )

FILED
Oct 04 2019, 5:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Richard A. Cook Bryan H. Babb
Yosha Cook & Tisch Mary M. Ruth Feldhake
Indianapolis, Indiana Sarah T. Parks
Bose McKinney & Evans LLP
Stephen B. Caplin
Indianapolis, Indiana
Stephen B. Caplin Professional
Corporation
Indianapolis, Indiana
Richard L. Schultheis
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tammi Clark, as personal October 4, 2019
representative of the estate of Court of Appeals Case No.
Kandace Pyles, deceased, 19A-CT-380
Appellant-Plaintiff, Appeal from the Marion Superior
Court
v. The Hon. John Hanley, Judge
Trial Court Cause No.
Samer Mattar, M.D., 49D11-1601-CT-3080
Appellee-Defendant.
Bradford, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-380 | October 4, 2019 Page 1 of 10
Case Summary
[1] In January of 2016, Tammi Clark, a personal representative of the deceased
Kandace Pyles’s estate, filed a wrongful death suit against Dr. Samer Mattar,
M.D. During voir dire, one of the veniremen indicated that he would be unable
to sit on a jury asked to determine damages for non-economic loss, which, inter
alia, Clark was seeking. When the trial court denied Clark’s motion to strike
the venireman for cause, she used one of her peremptory challenges to remove
him, a challenge she later could not use to remove another objectionable juror.
The jury returned a verdict for Dr. Mattar, and the trial court entered judgment
in his favor. Clark contends that the trial court abused its discretion in denying
her for-cause challenge to Miller. Because we agree, we reverse the judgment of
the trial court and remand for a new trial.
Facts and Procedural History
[2] On January 21, 2016, Clark, as personal representative of the deceased Pyles’s
estate, filed a wrongful death/medical malpractice suit against Dr. Mattar and
other healthcare providers. Clark sought, inter alia, non-economic damages for
lost “services and love and affection[.]” Appellant’s App. p. 28. On January
14, 2019, jury selection for Dr. Mattar’s trial was conducted. During
questioning of the venire by Clark’s trial counsel, the following exchange took
place with venireman Miller about his ability and/or willingness to return a
verdict that took non-economic damages into account:
[Miller]: So, we have to determine the dollar amount?
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[Clark’s Trial Counsel]: Yes, sir. Assuming there is
liability, you would have to determine the dollar amount.
[Miller]: I don’t know if I want any part of that.
[Clark’s Trial Counsel]: Okay. I’m going to explain. I
appreciate your candor. Tell me why you are feeling that way.
[Miller]: I’m just not sure. I just—I don’t think it’s my
responsibility to determine the dollar amount.
[Clark’s Trial Counsel]: Okay. So, let me ask this. The
Judge is going to give you instructions, and assuming that you
found liability, and you were satisfied by the preponderance of
the evidence that there was liability for this, you are also going to
have to decide damages. Are you telling me that you don’t feel
that you could fulfill your duty on that second part of this?
[Miller]: I want no part of it.
[Clark’s Trial Counsel]: Okay, and why?
[Miller]: I just don’t feel it is right. I don’t think I should
have to do that.
[Clark’s Trial Counsel]: Okay. Would you be able to take
your oath as a juror on that?
[Miller]: Well, I’m telling you the truth now.
[Clark’s Trial Counsel]: Okay. No, I understand that.
The reason I’m asking you is, as the Judge said, you know,
getting rid of somebody as a juror for cause requires a very heavy
burden. So, I’m asking you, if the Judge asked or the other
attorney asked you, are you telling me that you can’t sit on a case
where you are going to be asked to render a verdict—
[Miller]: —Based on that question I have to say, no, I
can’t.
Tr. Vol. II pp. 17–18.
[3] The following exchange with Miller occurred shortly after the first:
[Miller]: Are you asking the same question again?
[Clark’s Trial Counsel]: Well, kind of. I mean, I know, I
got your view. I take it that you just don’t want to have anything
to do with—
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[Miller]: —As far as whether he performed malpractice or
not, I can do that. But the money part—no.
Tr. Vol. II. p. 22.
[4] Clark moved to strike Miller for cause, and the trial court denied the motion:
THE COURT: First of all, you don’t ask me that question
but I will tell you. If you want to make a record, you can make a
record but under Rule 17 of the Indiana Supreme Court[’]s Jury
Rules it is not cause. He doesn’t meet the qualifications for a
challenge for cause. He is not disqualified under Rule 5. He
hasn’t served as a juror in the same county within the previous
365 days. He is not unable to comprehend the evidence and
instructions. He hasn’t formed or expressed an opinion about the
outcome of the case. He is not a member of a jury previously
considered this. He is not related to any of the parties,
attorney[]s or witnesses. He doesn’t have a personal interest in
the result of the trial. He isn’t biased or prejudiced against a
party and he has not be[en] subpoenaed as a witness. So, it is not
cause. It is not cause.
Tr. Vol. II pp. 36–37.
[5] Following the trial court’s denial of Clark’s motion to strike Miller for cause,
the following exchange occurred:
[Clark’s Trial Counsel]: I was just going to make a very
brief record, Your Honor.
THE COURT: That’s fine.
[Clark’s Trial Counsel]: I appreciate the opportunity.
THE COURT: I’m sorry. You are going to have to speak
up.
[Clark’s Trial Counsel]: Excuse me. My voice is—
THE COURT: —I understand.
[Clark’s Trial Counsel]: I appreciate the opportunity,
Your Honor. I believe that the juror did meet the grounds for
cause under Juror Rules 17(A)(8)[…. M]y position [is] that if
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you have a juror that tells you that they cannot render a verdict
as to any dollar amount that that in fact constitutes prejudice and
they can’t properly take an oath. As a result of that, I didn’t get
to use one of my peremptories and I appreciate very much the
chance to make a record on it.
[….]
THE COURT: The Supreme Court [of] Indiana Jury
Rules on challenge for cause, you are challenging based on
17(A)(8), is that correct?
[Clark’s Trial Counsel]: Yes, Your Honor.
THE COURT: It says—
[Clark’s Trial Counsel]: —That would be the main one.
Yes, Your Honor.
THE COURT: In both civil and criminal cases, parties
shall make all challenges for cause before the jury is sworn to try
the case whereupon a showing of good cause for the delay before
the jury retires. The court shall sustain a challenge for cause if
the prospective juror is—and #8 says: is biased or prejudice for
or against a party to the case. Mr. Miller, juror #13, did not
express bias for or against either party. Mr. Miller stated that he
had a problem with assessing damages in the case and I don’t
believe that meets the standard of bias or prejudice against the
parties of the case. So, if you are making an[] objection,
Counsel, the objection is overruled.
[Clark’s Trial Counsel]: Thank you for the chance to
make a record.
THE COURT: Certainly. And if you had the opportunity
to exercise another strike?
[Clark’s Trial Counsel]: Pardon me?
THE COURT: And if you had the opportunity to exercise
another strike?
[Clark’s Trial Counsel]: I used all my peremptories.
THE COURT: I understand that.
[Dr. Mattar’s Trial Counsel]: But if you hadn’t, who
would you have struck?
THE COURT: That’s the question.
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[Clark’s Trial Counsel]: Who would I have struck? I
probably—I probably would have struck juror #3.
Tr. Vol. II pp. 39–41. On January 18, 2019, the jury returned a verdict in favor
of Dr. Mattar, and judgment in his favor was entered thereon.
Discussion and Decision
[6] Clark contends that the trial court abused its discretion in refusing to strike
Miller for cause because the record establishes that Miller was impermissibly
biased or prejudiced against her. Clark also contends that she was prejudiced
because she could not use of her peremptory challenges on Juror #3, having
used it on Miller. Dr. Mattar contends that the trial court did not abuse its
discretion in refusing to strike Miller for cause and that Clark cannot show
prejudice in any event.
I. Abuse of Discretion
[7] A trial court has discretion to grant or deny challenges for cause.
Merritt v. Evansville-Vanderburgh School Corp., 765 N.E.2d 1232,
1235 (Ind. 2002). A trial court’s decision is sustained on appeal
unless it is illogical or arbitrary. Id. […] “In both civil and
criminal cases the parties shall make all challenges for cause
before the jury is sworn to try the case, or upon a showing of
good cause for the delay, before the jury retires to deliberate.”
Ind. Jury Rule 17(a). The trial court shall sustain a challenge for
cause if the prospective juror is biased or prejudiced for or against
a party to the case. J.R. 17(a)(8).
Thompson v. Gerowitz, 944 N.E.2d 1, 7 (Ind. Ct. App. 2011), trans. denied. Here,
when pressed about whether he could render a verdict on the question of
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damages, Miller unequivocally replied that he could not, not that he did not
want to or that it would be difficult:
[Clark’s Trial Counsel]: So, I’m asking you, if the Judge
asked or the other attorney asked you, are you telling me that
you can’t sit on a case where you are going to be asked to render
a verdict—
[Miller]: —Based on that question I have to say, no, I
can’t.
[….]
[Miller]: Are you asking the same question again?
[Clark’s Trial Counsel]: Well, kind of. I mean, I know, I
got your view. I take it that you just don’t want to have anything
to do with—
[Miller]: —As far as whether he performed malpractice or
not, I can do that. But the money part—no.
Tr. Vol. II. pp. 17–18, 22.
[8] We have little trouble concluding that a stated refusal to participate in a
determination of non-economic damages amounts to bias or prejudice against a
plaintiff seeking such damages. Although Miller certainly expressed no bias or
prejudice against Clark in particular, his statements would apply to any plaintiff
seeking damages for non-economic loss in a lawsuit, a class to which Clark
clearly belonged. Put another way, even though Miller’s bias or prejudice
seems to be against the award of a particular type of damages in a lawsuit, his
refusal to consider such damages harms a party seeking them, like Clark. Even
though there is no indication that Miller had any particular issue with Clark
personally, we conclude that Miller’s unequivocal statement that he could not
render a verdict on damages in this lawsuit nonetheless amounts to bias or
prejudice against her as a party.
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[9] Dr. Mattar argues that Miller’s responses during voir dire do not amount to a
refusal to follow the law, indicating nothing more than discomfort at
determining damages. Although it is true that “mere discomfort is not one of
the enumerated grounds for removal for cause[,]” Oswalt v. State, 19 N.E.3d
241, 250 (Ind. 2014), Miller’s responses, as mentioned, went beyond stating
mere discomfort, clearly expressing an inability or refusal to follow the law.
Moreover, Miller’s responses stand uncontradicted, as no attempt (much less a
successful one) was made by Dr. Mattar’s trial counsel to rehabilitate Miller.
[10] Dr. Mattar also contends that, as a whole, the record indicates that Miller was,
in fact, ready and willing to apply the law impartially. To support this
contention, Dr. Mattar notes that, when asked if the “scales [are] level right
now[,]” Miller responded, “[t]hey are level now” and stated, “I try to be as fair
as I can to everybody.” Tr. Vol. II p. 7. Dr. Mattar also notes that when
Clark’s counsel initially asked the venire, “Is there anybody here that would
have difficulty with returning a verdict assuming that we prove both liability
and we establish the damages by the greater weight of the evidence[?]”, Miller
did not respond in the negative. Tr. Vol. II p. 16. All of this, however,
occurred before Clark’s counsel broached the subject of non-economic damages,
at which time Miller’s viewpoint changed considerably. To the extent that
Miller expressed a willingness to follow the law, he did so only until he found
out what the law actually was, which caused him to unequivocally withdraw
that willingness, a position from which he did not waver. Considering the
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timing of Miller’s expressions of willingness to be impartial and follow the law,
they do not help Dr. Mattar.
II. Prejudice
[11] After using one of her peremptory challenges to strike Miller, Clark indicated
that she would have used that challenge, probably to remove Juror #3, had it
been available to her. “[W]hen a party exhausts all peremptories and is forced
to accept an objectionable or incompetent juror, any erroneous for-cause
motion is prejudicial because it deprives the party of a peremptory that could
have been used for its time-honored purpose.” Oswalt, 19 N.E.3d at 249; see also
Whiting v. State, 969 N.E.2d 24, 30 (Ind. 2012) (“[R]eversible error occurs only
where the defendant eventually exhausts all peremptories and is forced to
accept either an incompetent or an objectionable juror.”). Because Clark was
forced to accept the objectionable Juror #3, she has established that the trial
court’s erroneous denial of her motion to strike Miller for cause was reversible
error.
[12] While acknowledging the general rule as laid out in Oswalt and Whiting, Dr.
Mattar contends that Clark has failed to show prejudice in this case because the
jury never reached the question of damages. Put another way, Dr. Mattar
seems to be arguing that Clark was not prejudiced by any error that might have
occurred because she would have lost anyway. Dr. Mattar, however, does not
explain how Miller’s feelings about damages played any part in the jury’s
verdict, as Miller was not on the jury, and would not have been in any event.
As it happened, the objectionable Juror #3 was on the jury as a result of the trial
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court’s erroneous denial. It may be that the result would have been the same
without Juror #3 on the jury, but this is just speculation. Dr. Mattar seemingly
would have us create an exception to the prejudice rule in Oswalt for parties that
lost at trial, which is something we decline to do. Because Clark has established
that the trial court abused its discretion in denying her motion to strike Miller
for cause and she has demonstrated prejudice pursuant to Oswalt, we reverse the
judgment of the trial court and remand for a new trial.
[13] The judgment of the trial court is reversed, and we remand with instructions.
Mathias, J., and Pyle, J., concur.
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