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