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Clark v. Mattar

Court of Appeals of Indiana

October 4, 2019

Tammi Clark, as personal representative of the estate of Kandace Pyles, deceased, Appellant-Plaintiff,
v.
Samer Mattar, M.D., Appellee-Defendant.

          Appeal from the Marion Superior Court The Hon. John Hanley, Judge Trial Court Cause No. 49D11-1601-CT-3080

          ATTORNEYS FOR APPELLANT Richard A. Cook Yosha Cook & Tisch Indianapolis, Indiana Stephen B. Caplin Stephen B. Caplin Professional Corporation Indianapolis, Indiana Richard L. Schultheis Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Bryan H. Babb Mary M. Ruth Feldhake Sarah T. Parks Bose McKinney & Evans LLP Indianapolis, Indiana

          BRADFORD, JUDGE.

         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?
[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 ...

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