                                                                         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?

      Court of Appeals of Indiana | Opinion 19A-CT-380 | October 4, 2019       Page 2 of 10
                      [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—


      Court of Appeals of Indiana | Opinion 19A-CT-380 | October 4, 2019            Page 3 of 10
                     [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

      Court of Appeals of Indiana | Opinion 19A-CT-380 | October 4, 2019        Page 4 of 10
        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.


Court of Appeals of Indiana | Opinion 19A-CT-380 | October 4, 2019        Page 5 of 10
                    [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



      Court of Appeals of Indiana | Opinion 19A-CT-380 | October 4, 2019          Page 6 of 10
      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.

      Court of Appeals of Indiana | Opinion 19A-CT-380 | October 4, 2019        Page 7 of 10
[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




       Court of Appeals of Indiana | Opinion 19A-CT-380 | October 4, 2019          Page 8 of 10
       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
       Court of Appeals of Indiana | Opinion 19A-CT-380 | October 4, 2019        Page 9 of 10
       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.




       Court of Appeals of Indiana | Opinion 19A-CT-380 | October 4, 2019       Page 10 of 10
