Clark v. Mattar, No. 20S-CT-109, __ N.E.3d __ (Ind., July 9, 2020).

David, J.

At issue in this case is whether a juror should have been struck for cause based on bias, necessitating a new trial where the juror stated he did not want to serve as a juror, had a favorable impression of doctors, stated repeatedly that he could not and would not be able to assess non-economic damages and absolutely no rehabilitation with regard to the damages issue occurred. Under the facts and circumstances of this case, we find that the juror should have been struck for cause and that there was prejudice because the party objecting to the juror was forced to exhaust her last peremptory challenge and accept an objectionable juror. Therefore, a new trial is appropriate.

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Jury Rule 17 and the “reluctant” juror Indiana’s appellate courts have not specifically addressed the issue of the “reluctant juror” in the context of a challenge for bias under Jury Rule 17(a)(8). However, our Court of Appeals has previously upheld the use of peremptory strikes (not for-cause ones) to strike these types of jurors. See, e.g., Wallick v. Inman, 130 N.E.3d 643, 652-53 (Ind. Ct. App. 2019), trans. not sought (affirming denial of for-cause challenges to juror who testified that he “hated court,” was not fond of doctors and lawyers, and would find it difficult to pay attention); Barnett v. State, 637 N.E.2d 826, 830-31 (Ind. Ct. App. 1994), trans. not sought (affirming the peremptory strike of a juror who stated that she did not want to serve on the jury and was uncomfortable judging other people).

The Court of Appeals has developed additional case law upholding for-cause challenges when there is actual and specific bias that bears on the case. See, e.g., Thompson v. Gerowitz, 944 N.E.2d 1 (Ind. Ct. App. 2011), trans. denied, and Fratter v. Rice, 954 N.E.2d 497 (Ind. Ct. App. 2012), trans. denied. In Thompson, the Court of Appeals reversed and remanded for a new trial when a juror failed to disclose that she was “trying to go after a doctor for negligence” after her husband’s recent death. 944 N.E.2d at 8-9. In Fratter, the Court of Appeals held that the trial court acted within its discretion by dismissing a seated juror who expressed that his experience with a missed diagnosis would make it difficult for him to be impartial in a malpractice case involving a similar set of circumstances. 954 N.E.2d at 503.

This particular case seems to fall somewhere outside of case law upholding use of peremptory strikes for reluctant jurors and cases where for-cause challenges were appropriate to strike those jurors with a specific bias. On the one hand, Miller did not state he had some specific reason to be biased against Clark or for Dr. Mattar, and there’s no evidence that he concealed any information about his feelings that would bear on the case. On the other, he stated on his juror questionnaire that he did not want to serve and during voir dire, he said he would have trouble putting a dollar amount to noneconomic damages meaning that there’s a bias against the party seeking those damages—here, Clark. Accordingly, we agree with our Court of Appeals that there is bias here. 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.

Further, rehabilitation of the juror did not occur here. That is, Miller stated “I want no part of it” when asked about assigning an amount to noneconomic damages and further, “no, I can’t” when asked if he could sit on a jury tasked with rendering a verdict as to noneconomic damages. Tr. Vol. II at 17–18. Counsel then moved on, asking if any of the other jurors felt that way too. The trial court did not intervene. Perhaps with further questions by counsel or the court, Miller could have been rehabilitated, but he wasn’t.

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.

Further, Miller made other statements during voir dire that indicate he may be biased against Clark and for Dr. Mattar. That is, Miller expressed that he had generally positive feelings about doctors, given his experience with his wife…

Here counsel did make efforts to rehabilitate Miller with regard to his potential bias because of his positive feelings about doctors. Miller’s statements about these feelings standing alone may not be enough to give rise to a valid for-cause challenge in light of Miller’s assertion that he would try to be fair and that the scales were even. However, his responses were equivocal. When asked if he couldn’t put his positive feeling aside, he responded: “I don’t know. I guess not.” Id. at 7.

Miller stated on the juror questionnaire that he did not want to serve. He made repeated, emphatic statements during voir dire about his inability and unwillingness to assess and award noneconomic damages for Clark. There was no rehabilitation effort about damages. He expressed uncertainty about whether his positive feelings for doctors would make him biased. All these things together demonstrate a potential bias against Clark necessitating Miller be struck for cause. The trial court’s failure to do so was illogical under these particular circumstances.

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Here, because we find that the trial court’s decision to deny Clark’s for-cause challenge was illogical under the circumstances and that Clark was forced to exhaust her last peremptory on Miller instead of objectionable Juror 3, a new trial is appropriate.

Conclusion

For the foregoing reasons, we reverse and remand for a new trial.

Rush, C.J. and Goff, J., concur.

Massa, J., concurs in part and dissents in part with separate opinion.

Slaughter, J., dissents with separate opinion.

Massa, J., concurring in part and dissenting in part.

I concur in the Court’s holding that the juror should have been stricken for cause. Where I part company is with the disproportionate remedy of a new trial where the biased juror never served.

I concurred only in result in Oswalt v. State because it did not order a new trial. 19 N.E.3d 241 (Ind. 2014). 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.”….

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Slaughter, J., dissenting.

I respectfully dissent from the Court’s opinion that the trial judge erred in denying the plaintiff’s motion to strike a prospective juror for cause. The Court holds that denial of the motion was “illogical” because the juror’s stated “inability and unwillingness to assess and award noneconomic damages for [the plaintiff] … demonstrate a potential bias against [the plaintiff] necessitating [that the juror] be struck for cause.”

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. There is, to be sure, evidence supporting what the Court concludes today—that the disputed juror was biased against Clark because of his unwillingness to consider an element of damages Clark was seeking. But that is not the only permissible inference from this record. An alternative inference is what the trial judge found, which is that the juror’s statements that he could not render a verdict on noneconomic damages were pretextual because his true sentiment was that he did not want to be there. 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.

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… 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.

I respectfully dissent.

 

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