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Great new Court of Appeals decision
HOWARD SELLERS ADMINISTRATOR OF THE ESTATE OF
MARTHA SELLERS ET AL.
v.
BURROWES ET AL.
Georgia
Smith, Presiding
Judge.
In this medical
malpractice action, the jury found in favor of the defendants, Celio Burrowes and his professional corporation. The plaintiff, Howard Sellers,
the surviving spouse of Martha Sellers and the
administrator of her estate, appeals. In three enumerations, Sellers contends that the trial court erred by
failing to dismiss two jurors for cause. We agree that the trial court erred in
failing to dismiss the first juror for cause and must therefore reverse this
case for a new trial.
In both civil
and criminal cases,
the trial
judge is the only person in a courtroom whose primary concern, indeed primary
duty, is to ensure the selection of a fair and impartial jury. Because of this,
trial courts have broad discretion to evaluate and rule upon a potential
juror's impartiality, based upon the ordinary general rules of human experience,
and a trial court may only be reversed upon a finding of “manifest abuse” of
that discretion.
(Citations and
punctuation omitted.) Kim v. Walls, 275 Ga. 177, 178 (563 S.E.2d 847) (2002). Viewed in this light, the record shows that the trial court
conducted voir dire in the three phases: first, the trial court asked questions
with regard to whether the jurors might be legally disqualified from serving
based on a relationship with the parties or their attorneys or a financial
interest in the outcome; second, the attorneys asked questions of the jurors as
a group; third, the attorneys asked follow-up questions of individual jurors
with the opportunity to do so in private at either the attorney's or the
juror's request.
1. The first
juror at issue in this case was juror number 14. When the jury pool was
questioned as a whole, juror number 14 responded affirmatively to plaintiff's
counsel's question as to whether “doctors should be given special protections
and should be treated differently than other people who are treated in the same
civil setting, tort type of a case, negligence type of a case.” When she was
questioned individually, she explained why she thought doctors should get
“special protections:”
I have three
uncles who are doctors. My sister just graduated from medical school. And just
like, given the number of people that they see, you know, in the medical
profession in itself, I mean, if you are dealing with people, you are, you
know, there's-no one answer solves all people. We are not machines. So, I mean,
I just see that there might be a likelihood that people may make mistakes. And
I don't see how they could be judged very harshly for those. So I'm a little
partial to doctors.
When asked
whether she could put her “beliefs and backgrounds aside and be fair and impartial
based on what the evidence is and what the court charges,” she replied, “[t]he
evidence would have to be very strong and very clear for me to decide against,
I mean, for me to go against what I have told you.” Plaintiff's counsel then
asked if she would have this belief “regardless of what the court tells you
that the standard is?” The juror answered:
I guess, I
guess I could try to keep in mind what the court says. It's just that, you
know, I come already with a frame of mind that it might require additional work
on one part to convince me otherwise. You know, like I just, I come with this
understanding that just from seeing my uncles and, you know, they've been parts
of lawsuits. And, I mean, things happen, you know.
At this point,
plaintiff's counsel ended his questioning and defense counsel asked if the
juror could set aside her personal feelings and “be governed by what the judge
tells you is the standard····” The juror stated “It would require effort and,
you know, and policy [sic] on my part not to let my feelings override.” Defense
counsel asked again if she “could do that for us” and the juror responded “I
would have to keep policy [sic] myself in the course of five days. I don't
know. You know, I'm not sure if I can be. I mean, I'm just being candid.” The
juror added, “I hate to say, I have a stereotype in my head. But just, you
know, from personal experiences.”
Defense
counsel then attempted to rehabilitate the juror as follows:
We are just
looking to try and get fair and impartial folks. And that's the object of this.
But, also, all of us come in here ··· with some ideas and opinions that we have
formulated from our life experience, from our families and other things. And
this forum here is really where you sort of lay all that aside. And the court
tells you and we hope that people are sophisticated enough and are able to
understand that enough to put those aside. Otherwise all of us would be unable
to ever look and analyze and make a decision in this context.
The juror then
agreed that she “follow[ed]” what defense counsel was saying and stated that
“maybe” she would be able to do it.
After a break
in which other jurors were questioned, plaintiff's counsel resumed questioning
the juror. She once again explained her bias in favor of doctors in general:
Just my
overall view is that, you know, doctors deal with people. And each individual
is different. And, you know, the chemical composition and everything is
different. It's unlikely that they can predict with 100 percent certainty how a
procedure is going to go for every single person.
The other
thing, also is, given like the, you know, new practices of the insurance
companies and how they pay doctors and how the insurance companies, the way
they pay doctors, they pay them through-the legal results as soon as possible.
I mean, you can't really expect, you know, a human being, you know, people
aren't perfect, to work on a consistently fast pace and not make any mistakes.
When asked if
she could set these feelings aside after being instructed about the law, the
juror acknowledged that she would not favor the doctor's position before
she heard any evidence. However, she also stated, “the evidence will have to be
very, very strong in order for me to change my mind.”
When defense
counsel asked her again if she could be fair and impartial, she replied that
while she wanted an opportunity to serve as juror, in “this particular case, I
don't think I'm the best person ··· I think that doctors should be given-I hate
to use the word slack, but, I mean, they should be given a little bit of
lenience and understanding just because of the speed in which they have to do
things and the uniqueness of the human body.”
At this point,
the trial court stepped in and explained to the juror that
the standard
of care takes into account the speed at which doctors, the unpredictability of
patients. There are national standards. Doctors are going to come in this case
and tell the jury what their opinion is of national standards, which should
account for the very things that you're concerned about. If you knew the case
was about applying national standards to this doctor's treatment of this
gentleman's wife, does that make you feel that you could fairly assess the
evidence and apply the law?
The juror
replied, “It's hard to say. But I understand now the concept.” Even after the
judge's explanation, the juror persisted in her belief that she would require
“clear and convincing proof” in a case against a doctor and that if she “had
doubts about the evidence, [she] would find in favor of the doctor.”
At the
conclusion of the voir dire, plaintiff's counsel moved to strike the juror for
cause and the trial court denied it. Sellers
exhausted his peremptory strikes and used one of them to strike juror number
14.
Sellers contends that the trial court abused its discretion by failing to
dismiss juror number 14, and we agree.
Running
through the entire fabric of our
(Citation and
punctuation omitted.) Guoth v. Hamilton, 273 Ga.App. 435, 437(1) (615 S.E.2d 239) (2005). While there is a presumption “that potential jurors are
impartial,” Sellers rebutted that presumption in
this case. Brown v. Columbus Doctors
Hospital, 277
Ga.App. 891, 893 (627 S.E.2d 805) (2006). Despite the best efforts of the trial court and defense counsel
to rehabilitate this juror, she did not budge from her belief that she would
find in favor of the doctor absent “clear and convincing proof” and that she
would resolve any doubts in the evidence in favor of the doctor. As the juror
aptly stated, in “this particular case, I don't think I'm the best person” to
serve as a juror.
Because the
trial court abused its discretion by failing to dismiss juror number 14 for
cause and Sellers exhausted his peremptory
strikes, Sellers is entitled to a new trial. See Guoth, supra, 273 Ga.App. at 440(1).
2. Our holding
in Division 1 renders Sellers' remaining
enumerations of error moot.
Judgment
reversed. Ruffin and Phipps, JJ., concur.
Ga.App.,2007.
HOWARD SELLERS ADMINISTRATOR OF THE ESTATE OF
MARTHA SELLERS ET AL. v. BURROWES ET AL.
--- S.E.2d ----, 2007 WL 416297 (Ga.App.)
February 9, 2007 | Permalink
