Juror Challenge in Wrongful Death Suit re Ruptured Appendix Required Reversal

A woman in her thirty-seventh week of pregnancy presented to the emergency room suffering from abdominal pain. She was assessed and sent home twice before being admitted on her third visit. Her doctor induced labor and she gave birth to a healthy daughter. The woman continued to suffer from severe abdominal pain. Exploratory surgery revealed a ruptured appendix and abscess. The woman developed acute respiratory distress syndrome and died.


The woman’s parents filed a medical malpractice claim individually and as next-friends of the woman’s daughter. They sued the doctors and hospital for wrongful death and loss of parental consortium.


During general voir dire, the trial court asked whether any member of the panel had a relationship with any of the parties. One prospective juror responded that his son was a purchasing manager at the hospital and, “if it was a close call. . . I'd probably have problems with it.” No follow-up questions were posed by counsel. Later, when the entire panel was asked whether they could remain fair and impartial, this prospective juror did not indicate otherwise. After a motion to strike for cause was denied, the grandparents exercised a peremptory strike to remove this juror from the panel.


An expert witness on behalf of the defendants had delivered two children of a second prospective juror. Upon further questioning she indicated that this might influence her objectivity. The grandparents moved the trial court to strike her for cause, which was denied. They did not exercise a peremptory strike to remove her from the panel and she ultimately sat on the jury during trial. However, prior to the jury retiring, she was randomly selected as an alternate to be excused and did not participate in the deliberations or verdict.


The jury found in favor of the defendants and the grandparents appealed arguing that the trial court erred in failing to strike the jurors for cause. The Court of Appeals affirmed the judgment.


The Supreme Court of Kentucky reversed the decision of the Court of Appeals and set aside the judgment of the trial court. The court found that the trial court twice erred in refusing to strike the jurors for cause and one of those errors required reversal. The court held that the trial court enjoys broad discretion in deciding whether a juror should be stricken for cause and such decisions are reviewed for abuse of discretion. In determining whether a juror should be stricken for cause the trial court considers whether a prospective juror can conform his or her views to the requirements of the law, and render a fair and impartial verdict based solely on the evidence.


The minimal information indicated in the record about the voir dire responses of the first juror at issue indicated an inability to be impartial. His son's employment relationship with the parent corporation of a defendant, coupled with his expression of doubt about his ability to be impartial, was sufficient to warrant his removal for cause. The court held that the trial court erred in refusing to strike this juror.


While there is no basis for an automatic presumption of bias on the part of jurors towards a former physician, the statements of second juror at issue unequivocally and understandably indicate her reservations and reluctance. The court held that the trial court erred in failing to strike this juror for cause.


The court held that the peremptory challenge is a substantial right of the civil litigant. The court held there is no substantive distinction between the litigant who was allotted fewer peremptory strikes than his opposing party and the litigant who was forced to exercise a peremptory strike on a juror who was unqualified as a matter of law. The party must indicate on their strike sheet the additional juror whom the party would have removed had the motion to strike been granted. If that designated juror actually sat on the jury, then the trial court's error resulted in prejudice and reversal is required.


Applying these principles the court determined that the judgment in this case must be reversed. The grandparents used a peremptory strike to remove the first prospective juror at issue who should have been removed for cause. The grandparents also exhausted their compliment of peremptory strikes and identified two sitting jurors whom they would have removed had any peremptory strikes remained.


See: Grubb v. Norton Hospitals, Inc., 2013 WL 2285066 (Ky., May 23, 2013) (not designated for publication).