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Wallick v. Inman

Court of Appeals of Indiana

August 7, 2019

Harold D. Wallick, Appellant-Plaintiff,
Eric B. Inman, M.D., Appellee-Defendant.

          Appeal 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, Indiana.

          Attorneys for Appellee Michael E. O'Neill Michelle P. Burchett Schererville, Indiana Karl L. Mulvaney Nana Quay-Smith Indianapolis, Indiana.

          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 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 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.
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 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 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 ...

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