                                                                                      FILED
                                                                                  Aug 07 2019, 8:09 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Michael J. Woody                                           Michael E. O’Neill
      Indianapolis, Indiana                                      Michelle P. Burchett
                                                                 Schererville, Indiana

                                                                 Karl L. Mulvaney
                                                                 Nana Quay-Smith
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Harold D. Wallick,                                         August 7, 2019
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 18A-CT-2519
              v.                                                 Appeal from the
                                                                 Marion Superior Court
      Eric B. Inman, M.D.,                                       The Honorable
      Appellee-Defendant.                                        Patrick J. Dietrick, Judge
                                                                 Trial Court Cause No.
                                                                 49D12-1601-CT-847



      Altice, Judge.


[1]   Harold Wallick brought a medical malpractice action against his

      anesthesiologist, Eric B. Inman, M.D., and a jury rendered a verdict in favor of

      Inman. On appeal, Wallick challenges the jury selection process, arguing that

      the trial court should not have denied six of his for-cause challenges to

      Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019                              Page 1 of 20
      prospective jurors. He raises two issues that we consolidate and restate as:

      Was the trial court’s decision to deny one or more of the for-cause challenges

      illogical and arbitrary?


[2]   We affirm.


                                    Facts & Procedural History
[3]   In April 2013, Wallick filed a Proposed Complaint with the Indiana

      Department of Insurance alleging that Inman negligently administered general

      anesthesia during a cardiac ablation procedure and that, as a result, Wallick

      suffered a stroke and vision loss. A Medical Review Panel reviewed the

      submissions and decided that Inman met the standard of care in treating

      Wallick. Thereafter, in January 2016, Wallick filed a medical malpractice

      complaint in state court, and the case proceeded to a nine-day jury trial before

      the Honorable Patrick Dietrick in September 2018.


[4]   After the court’s opening remarks and party introductions, the potential jurors

      took an oath, as required by Ind. Jury Rule 13, to honestly answer each

      question asked by the court or counsel during jury selection. The trial court

      collectively asked the potential jurors a series of questions. For instance, the

      court asked whether any of them was related to or had relationships with any of

      the parties, attorneys, or witnesses, had heard about the case or the claims of

      the parties, had “any bias for or prejudice against any of the parties to this

      case,” or had any preconceived opinions concerning the parties, the case, or its

      outcome. Transcript at 11-12. No one responded in the affirmative. The trial

      Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019         Page 2 of 20
      court also advised the juror pool that each chosen juror would be required to

      take an oath to “decide this case fairly and impartially without bias or prejudice

      on the evidence received during the trial and in accordance with the instructions

      of the court” and asked if any person felt that he or she could not abide by such

      an oath. Id. at 15. None of the potential jurors at issue in this appeal responded

      to the court.


[5]   Pursuant to J.R. 14(a), requiring the trial court to introduce the case, Judge

      Dietrick informed the jury panel about the nature of the case and issues to be

      decided, stating:


              In this case, Plaintiff Harold Wallick has sued Defendant Eric B.
              Inman, M.D. Mr. Wallick claims that Dr. Iman committed
              malpractice by failing to use the degree of care and skill that a
              reasonably careful, skillful, and prudent anesthesiologist would
              use under the same or similar circumstances. Mr. Wallick
              further claims that Dr. Inman’s conduct was more likely than not
              a responsible cause of Mr. Wallick’s permanent brain injury,
              profound decrease in field of vision, compromised ability to get
              around due to vision loss, and other harms and losses of the
              nature requiring reasonable compensation. Mr. Wallick has the
              burden to prove his claims by a greater weight of the evidence.
              Defendant Eric B. Iman, M.D. denies the Plaintiff’s allegations
              of malpractice. Dr. Inman has no burden to disprove the Plaintiff’s
              claims. In this case, specifically, Dr. Inman contends that he
              acted in accordance with the applicable standard of care in
              providing anesthesia to Mr. Wallick on June 28, 2011. Dr.
              Inman further contends that no action or omission on his part
              was the responsible cause of any of the injuries o[r] damages
              claimed by the Plaintiff. Dr. Inman further disputes the extent
              and severity of the injuries and damages as claimed by the
              Plaintiff. That, ladies and gentlemen, are the issues in this cause.

      Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019         Page 3 of 20
              The jury in this case will consist of six jurors and two alternates.
              At this time, the attorneys will be allowed to ask questions of
              those persons seated in the jury box as potential jurors. After
              both attorneys have had an opportunity to question the
              prospective jurors, they are permitted to strike or otherwise
              excuse persons from the jury.


      Transcript at 22-23 (emphases added).


[6]   Wallick’s counsel began questioning of the first panel, which consisted of the

      following fourteen potential jurors: Alcorn, Wynne, Dick, Walters, Harris,

      Mannon, Curtis, Ridner, McCalep, Knox, Bright, Wright, Biddle, and Thrash.

      Among other things, Wallick’s counsel asked whether anyone had feelings

      about medical malpractice cases and whether suing a doctor for money “leaves

      a bad taste[.]” Id. at 26-27. He also asked the fourteen seated prospective jurors

      if any of them were leaning toward the doctor’s side before evidence was

      presented. Wallick’s counsel reminded the prospective jurors that this was not

      a criminal case, where the burden of proof was beyond a reasonable doubt, and

      explained that this was a civil case, where the burden of proof is “more likely

      true than untrue; the greater weight of the evidence.” Id. at 58. He discussed

      the burden of proof as follows:


              [L]et me ask you about the burden of proof, in the criminal case
              and the judge told you this isn’t a criminal case. In a criminal
              case, the case has to be proven beyond a reasonable doubt.
              Basically, you have to be sure as a juror that the person
              committed the offense or you should find them not guilty. In a
              civil case like this, the burden of proof is more likely true than
              untrue; the greater weight of the evidence, which is 51-49. So I
              competed in powerlifting so I use analogies of the greater weight
      Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019             Page 4 of 20
              of the evidence, so if you’ve got 1,000 pounds of evidence, then if
              501 pounds is in the patient’s favor then the patient is going to
              win, or 100 pounds 51 to 49. Let’s say, you know, some folks
              think that’s okay if you’re talking about minor injuries, a little
              money, but if the damages are several million dollars or a very
              significant injury, a lot of folks think it’s too easy for a patient to
              come in and only have to prove the case just by the greater
              weight of the evidence. Who feels like the patient – the greater
              weight of the evidence is a little unfair from the doctor’s side?
              The patient should have to prove it by more than 51-49? . . .
              What would you want to see me prove in this case in order to satisfy you
              to find in favor of the patient? Should it be 90-10 or 80-20 or where
              would you start? Or do you think the criminal standard would
              be better, that it would be appropriate for malpractice cases?


      Id. at 58-59 (emphasis added).


[7]   Wallick’s counsel then began to ask the jurors individually about the burden of

      proof. Juror Wright liked the criminal standard of beyond a reasonable doubt.

      Id. at 59. Juror Walters did not think 51-49 “is very fair” and felt the case

      needed to be “very strong.” Id. She would want the winner to be just under

      beyond a reasonable doubt or around 90%. Juror McCalep also felt that the

      evidence needed to be strong and agreed with Wallick’s counsel when he asked

      if she would require plaintiff to prove his case by 90-95% instead of “51 to 49.”

      Id. at 61. Juror Biddle felt that the greater weight needed to be more than 51%

      and that the percentage should be 75%. Juror Bright felt 60% was reasonable.

      Juror Curtis felt the “51-49” characterization was arbitrary and that he could

      not award damages for a case that is more likely true than untrue. Id. at 66.

      Wallick’s counsel asked Juror Alcorn if he would want the plaintiff to prove his


      Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019             Page 5 of 20
      case by more than “the greater weight of the evidence,” and Alcorn said that he

      would want the plaintiff to prove his case by “90-95,” as the greater weight of

      the evidence would not be enough proof to satisfy him. Id. at 71. Juror Wynne

      did not feel that “51-49” would be enough for her to find in favor of Wallick

      and felt she would need “[p]robably 75 or over.” Id. at 72. Juror Ridner said

      he would want “80-90% at least.” Id. Juror Dick said he would need plaintiff

      to prove his case “100%.” Id. at 73. Throughout this line of questioning to the

      various potential jurors, Wallick’s counsel would sometimes ask if it was the

      juror’s “final answer.” Id. at 61, 66-67, 71, 72, 74.


[8]   Dr. Inman’s counsel asked for and received a sidebar conference, during which

      he stated his intent to ask for a mistrial, arguing:


              What I’ve seen happen over the course over one, two, three, four,
              five, six, seven, eight, nine, ten, out of the fourteen people, this is
              pure and simple jury nullification. This whole percentage, there
              is no law. You’re going to instruct them.


      Id. at 74. After stating that it had been “waiting for the objection[,]” the trial

      court stated that it would be asking questions and following up with each of the

      potential jurors. Id. The court then engaged in the following exchange with

      Wallick’s counsel:


              COURT: [Y]ou make a challenge for cause right now, I’m not
              granting it. I’m going to ask those questions. You don’t instruct
              these jurors. I do.


              COUNSEL: Oh I understand that.

      Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019           Page 6 of 20
              COURT: . . . You’ve planted it in their minds something that
              you think is going to be an instruction and it’s not going to be an
              instruction. I will instruct them on the burden of proof and if
              they tell me under oath that they can follow my instructions, they
              are not being kicked. Do you understand that?


              COUNSEL: Yes.


      Id. at 76.


[9]   After Wallick’s counsel completed his questioning, the trial court asked

      questions as follow-up to Wallick’s voir dire, including the following:


              [T]he court has a few questions. The first one is to all of you.
              Can you listen attentively to the evidence; can you apply the law
              in obedience to the instructions given to the facts which you find
              may exist and can you reach a verdict which is fair and impartial
              as to each part of this controversy? Does everyone understand
              that? Does everyone understand that question? You’re going to
              get instructions from the court, okay? So [Wallick’s counsel] was
              asking you questions regarding burden of proof and your personal feelings
              on burden of proof and there were percentages thrown out. Does everyone
              remember that line of questioning? The court’s question is this: I’m
              going to instruct you as to what the burden of proof is. So it is the judge
              instructing you on the law. Can you all follow my instructions? Will
              you put aside your personal beliefs as to burden of proof and follow the
              law as I instruct? Can everyone do that? Can anyone not do that?


      Id. at 82-83. After engaging in dialogue with Juror McCalep, the court again

      asked the seated prospective jurors if they could “put aside personal beliefs to

      certain issues with respect to burden of proof and standard of care and follow




      Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019               Page 7 of 20
       the instructions I give you[,]” affirmatively asking “is there anyone that can’t do

       that?” Id. at 83. The response was silence.


[10]   Based on the answers each had given regarding burden of proof, and what they

       felt they would need to find in order to find in plaintiff’s favor, Wallick’s

       counsel challenged for cause the following nine of the initial fourteen

       prospective jurors: Alcorn, Wynne, Dick, Curtis, Ridner, McCalep, Wright,

       Biddle, Walters. In a sidebar, the trial court engaged in the following exchange

       with Wallick’s counsel:


               COURT: Without having had instruction from the court, you
               asked them their belief.


               COUNSEL: Right.


               COURT: They stated their beliefs.


               COUNSEL: They told me I would have to prove the case, some
               of them said beyond a reasonable doubt and some of them said
               100%. I mean the burden of – I can’t try the whole case and give
               them all the instructions but the burden of proof in this case is the
               greater weight of the evidence so it’s just 51 to 49. That’s not an
               arbitrary number. That’s the instructions the court is going to
               give.


               COURT: And we’re going to see if these panelists can under
               oath state to the court that they will follow the instructions that I
               give them. Once again-


               COUNSEL: I’m not disputing that they can say that they can
               follow the instructions of the court, but I think the court needs to

       Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019          Page 8 of 20
        explain to them, you know, you were asked if you could decide
        this case based on the greater weight of the evidence which is-


        COURT: Which has not been defined or put into instructions
        yet.


                                                 ***


        COURT: So if I ask them if- will they follow the instructions
        that I give them when I give them the instructions, not questions
        from counsel during voir dire and they say “Yes,” that’s the
        answer I’m going for.


        COUNSEL: Your Honor, I defined burden of proof-


                                                 ***


        COURT: It’s not your place to define anything to them during
        voir dire, especially not an instruction of the court. The rule of
        law that the court is going to give on the burden of proof in this
        case, it’s not your burden to prove The Indiana Supreme Court
        or jury instructions say –


                                                 ***


        COUNSEL: Your Honor, I am [sic] instructed them
        appropriately on what the burden of proof is.


        COURT: You don’t instruct them. I do.


Id. at 88-90. The court then individually asked each one of the nine challenged

jurors whether they would be able to put aside their personal beliefs and follow

Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019           Page 9 of 20
       the instructions as given by the trial court, including but not limited to those

       with respect to the burden of proof. Six answered in the affirmative – Alcorn,

       Walters, Curtis, Ridner, Wright, and Biddle – and the trial court denied

       Wallick’s for-cause challenges to those prospective jurors. Based on answers

       given by Jurors Wynne, Dick, and McCalep, the trial court granted Wallick’s

       request and struck those three for cause, replacing them with Jurors Newton,

       Liput, and Hunter.


[11]   The trial court gave Wallick’s counsel time to question the new prospective

       jurors, and thereafter, he made for-cause challenges of Jurors Newton and

       Hunter because Juror Newton stated that she would feel more comfortable with

       a beyond-a-reasonable-doubt burden and “would need to know that there was a

       lot of proof[,]” and Juror Hunter said he would need a higher burden of proof

       than the greater weight of the evidence. Id. at 106, 111-12. The trial court

       conducted follow-up questions, asking each if he or she, upon being instructed

       by the court on the applicable burden of proof, could put aside a personal

       opinion or feeling regarding burden of proof and follow the court’s instruction

       as to the applicable burden of proof. Juror Hunter said he would follow the

       court’s instructions, and Wallick’s for-cause challenge of Hunter was denied.

       Juror Newton did not agree that she could follow the court’s instructions, and

       the trial court granted Wallick’s challenge and struck Newton. With regard to

       the denied challenges, Wallick’s counsel argued to the court in a sidebar that

       “how can they know if they can follow the court’s instruction [when] they don’t

       know what that burden of proof instruction is[,]” to which the trial court


       Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019        Page 10 of 20
       responded, “They never know until they’re instructed and you’ve given what I

       think is probably an impermissible burden of proof by interjecting percentages

       and yard lines[.]” Id. at 119-20.


[12]   The court replaced Juror Newton with Gregory and allowed Wallick’s counsel

       to question Gregory, who said he was not fond of attorneys or doctors, suspects

       lawsuits in general are frivolous, and did not want to be there. Wallick made a

       for-cause challenge to Juror Gregory, which the trial court denied. 1


[13]   Inman’s counsel began his voir dire examination, reminding the potential

       jurors:


                 Judge Dietrick is going to read you the legal instructions and tell
                 you what the law is. You’re going to take an oath to follow that
                 law. That’s kind of a lot of the debate we’ve had today about
                 what is the burden of proof and what does that mean. Judge
                 Dietrick will tell you that. The facts, you are the judges of the
                 facts.


       Id. at 126. Among other things, Inman’s counsel asked the potential jurors

       whether they thought it was fair to hear all the evidence, i.e., all sides of the

       story, before making a decision and whether they had or knew someone with

       high blood pressure or who had suffered a stroke. He also individually asked

       the prospective jurors – Ridner, Hunter, Knox, Bright, Wright, Biddle, Thrash,




       1
         In a sidebar with counsel, the trial court observed, and we agree, that if “not wanting to be here” constituted
       for cause, “then we would never seat a jury.” Transcript at 124.

       Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019                                 Page 11 of 20
       Curtis, Mannon, Harris, Walters, Liput, Gregory, and Alcorn – whether each

       could leave sympathy outside the jury room and base the case on the law that

       the judge would give them and the evidence and witness testimony. All replied

       in the affirmative, except for Juror Gregory, who said he did not know if he

       could. Counsel for Inman made no for-cause challenges.


[14]   Counsel for Wallick renewed his challenge to Juror Gregory for cause, arguing

       that Gregory expressly stated that he did not think he could pay attention to all

       the evidence because he was in an environment that he did not want to be in.

       The trial court asked Juror Gregory if he suffered from any physical or mental

       disability that would prevent him from rendering satisfactory jury service, and

       he replied that he did not. The trial court denied Wallick’s for-cause challenge

       as to Juror Gregory.


[15]   Thereafter, the parties each made three peremptory strikes. Wallick struck:

       Gregory, Wright, and Ridner; Inman struck: Bright, Curtis, and Knox. The

       jury was comprised of: Alcorn, Liput, Walters, Harris, Mannon, and Hunter.

       Biddle and Thrash were accepted as alternates by Inman, but Wallick renewed

       a motion to strike Biddle for cause, which the court denied. Wallick now

       appeals.


                                         Discussion & Decision
[16]   Wallick made twelve for-cause challenges, of which the trial court granted four

       and denied eight. Six of those eight denials are at issue in this appeal. The

       right to a fair trial before an impartial jury is a cornerstone of our criminal

       Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019         Page 12 of 20
       justice system. Whiting v. State, 969 N.E.2d 24, 28 (Ind. 2012). A

       constitutionally impartial juror is one who is able and willing to lay aside his or

       her prior knowledge and opinions, follow the law as instructed by the trial

       judge, and render a verdict based solely on the evidence presented in court. Id.

       “Removing prospective jurors – whether peremptorily or for cause – who

       cannot perform these tasks is the mechanism parties and trial courts use to

       achieve an impartial jury.” Oswalt v. State, 19 N.E.3d 241, 245-46 (Ind. 2014).


[17]   The trial court has broad discretionary power in regulating the form and

       substance of voir dire examination. Hadley v. State, 496 N.E.2d 67, 72 (Ind.

       1986). Ind. Trial Rule 47(D) governs the examination of jurors and provides:


               The court shall permit the parties or their attorneys to conduct
               the examination of prospective jurors, and may conduct
               examination itself. The court’s examination may include
               questions, if any, submitted in writing by any party or attorney.
               If the court conducts the examination, it shall permit the parties
               or their attorneys to supplement the examination by further
               inquiry. The court may impose an advance time limitation upon
               such examination by the parties or their attorneys. At the
               expiration of said limitation, the court shall liberally grant
               additional reasonable time upon a showing of good cause related
               to the nature of the case, the quantity of prospective jurors
               examined and juror vacancies remaining, and the manner and
               content of the inquiries and responses given by the prospective
               jurors. The court may prohibit the parties and their attorneys
               from examination which is repetitive, argumentative, or
               otherwise improper but shall permit reasonable inquiry of the
               panel and individual prospective jurors.




       Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019       Page 13 of 20
[18]   Peremptory challenges give parties the nearly unqualified right to remove any

       prospective juror they wish, restricted only by the parties’ finite allotment of

       challenges and the constitutional ban on racial, gender, and religious

       discrimination. Oswalt, 19 N.E.3d at 246. A peremptory challenge is often

       exercised on “hunches and impressions” and parties generally are not required

       to explain their reasons for exercising a peremptory challenge. Id. For-cause

       challenges, by contrast, are available to exclude any prospective juror whose

       “views would ‘prevent or substantially impair the performance of his duties as a

       juror in accordance with his instructions and his oath.’” Id. (quoting

       Wainwright v. Witt, 469 U.S. 412, 423 (1985)); see also Gibson v. State, 43 N.E.3d

       231, 239 (Ind. 2015). There are no limits on the number of for-cause

       challenges, but each must be supported by specified reasons that demonstrate

       that, as a matter of law, the venire member is not qualified to serve. Oswalt, 19

       N.E.3d at 246.


[19]   Indiana Jury Rule 17 identifies a number of circumstances in which the trial

       court in a civil or criminal case “shall sustain” a challenge for cause, including

       if the prospective juror:


               (3) will be unable to comprehend the evidence and the
               instructions of the court due to any reason including defective
               sight or hearing, or inadequate English language communication
               skills;


               (4) has formed or expressed an opinion about the outcome of the
               case, and is unable to set that opinion aside and render an
               impartial verdict based upon the law and the evidence;

       Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019        Page 14 of 20
                                                        ***


               (8) is biased or prejudiced for or against a party to the case[.]


[20]   We afford substantial deference to trial judges regarding the decision to grant or

       deny a challenge for cause, as the trial court has the unique opportunity to

       observe and assess the demeanor of prospective jurors as they answer the

       questions posed by counsel. Oswalt, 19 N.E.3d at 245; Gibson, 43 N.E.3d at

       239. We will reverse the trial court’s decision on a for-cause challenge “only

       when it is ‘illogical or arbitrary.’” Oswalt, 19 N.E.3d at 245 (quoting Whiting,

       969 N.E.2d at 29); see also Merritt v. Evansville-Vanderburgh School Corp., 765

       N.E.2d 1232, 1235 (Ind. 2002).


[21]   Here, Wallick asserts that the trial court erred when it denied his for-cause

       challenges to the following six individuals: Alcorn, Gregory, Walters, Ridner,

       Hunter, and Wright. 2 He explains that five of those six “would require Wallick

       to prove his case by more evidence than the law required[,]” and two of the five

       “indicated they were leaning in favor of Inman before hearing any evidence.”

       Appellant’s Brief at 5. The remaining for-cause challenge, as to Juror Gregory,

       was based on Gregory’s voir dire responses – stating that he was not fond of

       attorneys or doctors, hates court, and did not think he could listen to all the

       evidence – which Wallick claims reflects a “stated inability to discharge his




       2
        For clarification, we note that Gregory, Ridner, and Wright were stricken through Wallick’s peremptory
       challenges and did not serve on the jury.

       Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019                           Page 15 of 20
       duties as a civil juror.” Id. Wallick claims that the trial court’s denial of his

       requests to strike those six prospective jurors for cause was illogical and

       arbitrary and denied him a fair trial.


[22]   We first address the five potential jurors who Wallick claims took the position

       that they would require him to prove his case by more than the law requires,

       that is, more than the greater weight of the evidence. As an initial matter, we

       observe that the questions that Wallick’s counsel posed regarding burden of

       proof were asked in terms of what the person would require/prefer/be

       comfortable with/want to see in order to find for plaintiff, sometimes using

       quantified percentages such as whether the person would be satisfied with a 51-

       to-49 scenario. Because the individuals gave answers indicating that, to find in

       Wallick’s favor, they would prefer or want to see a higher amount of proof,

       some saying something akin to beyond a reasonable doubt, Wallick’s counsel

       asked the court to strike the five for cause. The trial court reminded Wallick’s

       counsel that the individuals had not yet been instructed on the burden of proof

       or what constitutes a “greater weight of the evidence” and that what counsel

       was doing “by interjecting percentages and yard lines” during jury selection was

       not permissible. Id. at 119-20. The trial court thereafter individually asked each

       of those five (as well as others) whether he or she could set aside personal

       feelings or beliefs and follow the instructions and law that the court would give,

       including with regard to burden of proof. Each of the five jurors at issue here

       responded in the affirmative.




       Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019         Page 16 of 20
[23]   Wallick recognizes on appeal that a trial court has broad discretion to

       rehabilitate jurors and deny for-cause challenges, but asserts that the trial court’s

       attempted “rehabilitation” of the jurors in this case was ineffective and only

       resulted in the individuals giving meaningless, empty promises. Appellant’s Brief

       at 5. Specifically, Wallick claims that the trial court’s inquiry – asking the

       person if he or she could set aside personal biases, beliefs, and prejudices and

       follow instructions as given – simply posed a “magic question” that, if answered

       with a yes, “made the . . . veniremen’s biases and prejudices disappear into thin

       air like they never even existed” and rendered an “otherwise incompetent”

       prospective juror able to serve. Id. at 5, 7. He claims that “[t]he court’s

       decisions to deny Wallick’s cause challenges . . . based solely on the biased

       jurors’ affirmative responses to the court’s ‘magic question’ were arbitrary and

       illogical” because “the magic question” fails to remove individuals who cannot

       perform the task of impartial deliberations and, instead, merely keeps people on

       the jury who have admitted they are partial and biased. Id. at 15-16.


[24]   In support, Wallick refers us to various out-of-state cases which either did not

       allow juror rehabilitation “through these types of ‘magical’ questions” or took a

       critical view of it. Id. at 22. Wallick urges that “Indiana should establish a rule

       that (1) bars trial courts from engaging in juror rehabilitation by using the

       “magic questions” and (2) requires trial courts’ rehabilitation to focus on

       eliciting reliable testimony for determining the competence of a juror.” Id. at

       23-24. Assuming without deciding that other jurisdictions do not allow, or take

       a critical view of, such manner of rehabilitation, as Wallick claims, we find that


       Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019        Page 17 of 20
       Indiana does not preclude it, and we decline his invitation to impose such a

       limitation on a trial court’s substantial deference in jury selection matters.


[25]   Here, the trial court individually asked each of the five jurors at issue if he or

       she could set aside personal beliefs or opinions and follow the court’s

       instructions that would be given, including with regard to the burden of proof.

       Each answered affirmatively. The trial court observed these jurors, and “we

       will not second guess its determination that they were sincere” in indicating

       they would follow the court’s instructions. See Gibson, 43 N.E.3d at 240

       (affirming trial court’s denial of for-cause challenges to two jurors, one with

       regard to his answers concerning appropriate penalty for murder and another

       regarding her sympathy for elderly or young victims, noting “trial court

       observed these jurors’ assurances of impartiality”). Based on the record before

       us, we find that the trial court did not act illogically or arbitrarily when it denied

       Wallick’s for-cause challenges to the five individuals who initially indicated

       they would want or prefer to see a higher burden of proof than the required

       “greater weight of the evidence” standard applicable in medical malpractice

       cases. See e.g., Timberlake v. State, 690 N.E.2d 243, 262 (Ind. 2003) (holding no

       error in denying for-cause challenge to prospective juror who initially stated she

       would prefer to hear defendant testify, might have difficulty considering

       mitigation, and might be biased against someone who committed murder, but

       also stated that, though she might not like the law, she would follow the law as

       instructed), cert. denied 525 U.S. 1072 (1999).




       Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019         Page 18 of 20
[26]   The sixth and final for-cause challenge that Wallick appeals is that of Juror

       Gregory, who testified that he hated court and was not fond of doctors and

       lawyers. We appreciate the grain of truth in the lighthearted comment that

       Wallick’s counsel made to Gregory: “You dislike both sides equally? You’re

       the perfect juror.” Transcript at 122. Because Juror Gregory also stated that he

       would find it hard to pay attention to all the evidence, counsel for Wallick

       renewed his motion to strike Gregory for cause. The trial court asked Juror

       Gregory if he suffered from any physical or mental disability that would prevent

       him from rendering satisfactory jury service, and he replied that he did not.

       The trial court was within its discretion to deny Wallick’s for-cause challenge to

       Gregory.


[27]   It cannot be disputed that the trial court in this case gave considerable leeway to

       Wallick’s counsel, allowing over ninety minutes of questioning and then posing

       its own follow-up inquiries to Wallick’s twelve for-cause challenges (nine of the

       fourteen in the initial panel and three of the four replacements). Notably, the

       court struck four potential jurors whose answers reflected that he or she could

       not follow the instructions as given. The trial court devoted a generous amount

       of time to jury selection in order to make sure each person, including those

       challenged for cause, was competent to sit on the jury. We find no abuse of the

       court’s substantial discretion and conclude that the trial court did not act

       illogically or arbitrarily when it denied the six for-cause challenges at issue.


[28]   Judgment affirmed.



       Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019         Page 19 of 20
Kirsch, J. and Vaidik, C.J., concur.




Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019   Page 20 of 20
