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Scarpaci v. Kaufman

Court of Appeals of Georgia

July 16, 2014

SCARPACI et al.
v.
KAUFMAN et al

Cert. applied for.

Challenge for cause. DeKalb State Court. Before Judge Purdom.

O. Mark Zamora, Summerville Moore, Darren Summerville, for appellants.

Peters & Monyak, Robert P. Monyak, Melissa B. Johnson, Carlock, Copeland & Stair, Wayne D. McGrew, Rebecca C. Wall, for appellees.

PHIPPS, Chief Judge. Ellington, P. J., concurs. McMillian, J., concurs in the judgment only.

OPINION

Page 173

Phipps, Chief Judge.

Kaitlyn Scarpaci and Sean Garrett (collectively, " the Garretts" ), as next friends and parents of Aubrey Garrett, a minor, sued Paul L. Kaufman, M.D., Jeffrey A. Carlisle, M.D., and Thomas Eye Group, P.C., among others, for medical malpractice after Aubrey Garrett lost vision in both eyes within three months of her premature birth. The jury found in favor of the physicians and Thomas Eye Group, and the Garretts appeal. They contend that the trial court erred by failing to strike for cause three jurors who had indicated on voir dire that they were biased in favor of the defendants. For the reasons that follow, we reverse.

Civil litigants have the right to strike a jury from a full panel of qualified and competent jurors.[1] Jurors " must be free from bias and prejudice regarding the trial's outcome." [2] " A potential juror must be excused for cause based on partiality ... if he or she holds an opinion so fixed and definite that he or she will be unable to set it aside and decide the case based on the evidence and the court's charge on the evidence." [3] To rehabilitate a biased juror, a trial court " must conduct [328 Ga.App. 447] an inquiry, either through its own questioning or allowance of questions by counsel, sufficient to evaluate the potential juror's fairness and impartiality. A trial court has broad discretion in making this evaluation, and we will not reverse its ruling absent a manifest abuse of discretion." [4]

[T]he broad general principle intended to be applied in every case is that each juror shall be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial. ... In the interest of fair trial, if error is to be committed, let it be in

Page 174

favor of the absolute impartiality and purity of the jurors.[5]

1. During general questioning of the whole jury panel, Juror No. 5 acknowledged that she was a patient of a doctor with Thomas Eye Group. She indicated that she had medical training, that she had " concerns about medical malpractice lawsuits and jury verdicts in general," and that she was a potential juror who was " already leaning to one side or the other." [6]

During individual questioning of the whole panel, when the trial court asked " who thinks that they cannot be fair and impartial in this case[?]," Juror No. 5 raised her hand. Soon thereafter, the trial court asked Juror No. 5 to " tell me about your difficulties with being fair and impartial in this case." Juror No. 5 responded, " I am a health professional and I'm afraid -- I'm a little biased towards the health professionals in this case." The trial court asked Juror No. 5 whether there was anything else she wanted to " bring up about that," and Juror No. 5 replied, " I just -- I don't know the ins and outs, so I really can't say for sure, but (unintelligible)." Defense counsel then posed the following, " Grant it you're a health professional. ... The bottom line is: Do you believe that you would be able to listen to the evidence in the case fairly and objectively and follow the law as the judge gives it to you on the burden of proof (unintelligible) malpractice? Would you be able to do that?" Juror No. 5 replied, " Probably."

After the court had excused some jurors, further individual questioning commenced, and Juror No. 5 was questioned. Juror No. 5 [328 Ga.App. 448] stated that she was a physical rehabilitation nurse, and that she had never served on a jury before. The following then ensued.

[PLAINTIFFS' ATTORNEY]: Earlier in the day we asked you some questions, and I think you said something about -- that you would have a bias toward the defense; that it weighed on your conscience the idea of having to rule, if you were a juror, against doctors or hospitals.
JUROR NO. 5: This is the field that I work with, so -- yeah, I would -- you'd have to prove to me that something was actually done wrong for me to vote against them. I know this is a preponderance and I have a problem with because I don't know how much -- preponderance is really -- everybody uses that word differently. I don't know, I mean, how much of -- how much of a percentage or whatever the whole that has to be proved or --
[PLAINTIFFS' ATTORNEY]: You're a nurse, by training?
JUROR NO. 5: Uh-huh (affirmative).
[PLAINTIFFS' ATTORNEY]: And how long have you been ...

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