The Commonwealth of Kentucky Court of Appeals (“Kentucky Appellate Court”) held in its decision rendered on May 4, 2018 that the Kentucky medical malpractice plaintiff was entitled to a new trial, stating: “We find that the trial court abused its discretion by not striking Juror 4243 for cause … This Court is concerned with Juror 4243’s response to the questions about non-economic damages and the potential bias created due to the advertising of Morgan & Morgan [the Kentucky medical malpractice law firm representing the plaintff]. Juror 4243 affirmatively declared her potential bias when attempting to rationalize a cash award due to ‘noneconomic damages’ and she agreed that Morgan & Morgan’s advertising could have a negative impact on her impartiality in judging the case.”
The Kentucky Appellate Court explained: “Specifically, when Juror 4243 was asked about ‘noneconomic damages’ she stated, ‘I think it’s just a slight bias for me because no amount of money can bring them back,’ and, when asked whether her bias could have an impact on her decision despite her best efforts to put those feelings aside, answered, ‘I guess so.'”
“Next, when asked whether the attorney advertising could have an unintentional impact on her, she answered, ‘It’s possible it could.’ At these points in the inquiry, it was possible for follow-up questioning to discern how real these possibilities of bias were. However, there was no follow-up questioning and we are left with the possibility that Juror 4243’s decision was tainted by ‘noneconomic damage’ considerations and/or Dr. Floyd and Clinic’s attorneys’ [sic] advertising practices.”
“Without follow-up questioning, the trial court should have erred on the side of caution regarding Juror 4243 and removed her from the jury pool for cause, based on her own admission of her possible inability to be an unbiased juror. Based on Juror 4243’s replies to the questioning about ‘noneconomic damages’ and Morgan and Morgan’s attorney advertising, we find that, at best, this juror fell into the ‘gray area’ described by the Kentucky Supreme Court as necessitating removal from the jury pool.”
As the Kentucky Supreme Court had previously explained: “When a juror is not properly struck for cause, without peremptory strikes, a defendant would find himself forced into an unfair trial. The substantial nature of a peremptory strike is thus obvious in this context.”
“Thus, the correct inquiry is not whether using a peremptory strike for a juror who should have been excused for cause had a reasonable probability of affecting the verdict (harmless error), but whether the trial court who abused its discretion by not striking that juror for reasonable cause deprived the defendant of a substantial right. Harmless error analysis is simply not appropriate where a substantial right is involved . . . . Here, the defendant did not get the trial he was entitled to get.”
Neal v. Floyd, No. 2017-CA-000120-MR.
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