Harold D. Wallick, Appellant-Plaintiff,
Eric B. Inman, M.D., Appellee-Defendant.
from the Marion Superior Court The Honorable Patrick J.
Dietrick, Judge Trial Court Cause No. 49D12-1601-CT-847
Attorney for Appellant Michael J. Woody Indianapolis,
Attorneys for Appellee Michael E. O'Neill Michelle P.
Burchett Schererville, Indiana Karl L. Mulvaney Nana
Quay-Smith Indianapolis, Indiana.
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 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?
& Procedural History
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.
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 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.
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,
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
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
Transcript at 22-23 (emphases added).
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
[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 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).
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 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.
Dr. Inman's counsel asked for and received a sidebar
conference, during which he stated his intent to ask for a
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
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
COURT: [Y]ou make a challenge for cause right now, I'm
not granting it. I'm going to ask those questions. You