In Grubb v. Norton Hospitals, Inc., http://opinions.kycourts.net/sc/2010-SC-000532-DG.pdf (issued 5/23/13), the Kentucky Supreme Court reversed a decision of the Court of Appeals that had upheld a defense jury verdict entered by the trial court in a medical negligence case based on plaintiff’s allegation of error during jury selection. In particular, the Supreme Court held that the trial court should have excused for cause on the plaintiff’s motion two jurors: (1) the parent of a long-term employee of the defendant hospital who indicated he would have difficulty being impartial; and (2) a female juror for whom a medical expert witness for one of the defendants had done two obstetrical deliveries.
In reversing the trial court, the Supreme Court held that principles adopted in a series of criminal cases (starting with Shane v. Com., 243 S.W.3d 336 (Ky. 2007), followed by King v. Com., 276 S.W.3d 270 (Ky. 2009), culminating in Gabbard v. Com., 297 S.W.3d 844 (Ky. 2009)) to determine whether a trial court’s denial of a challenge for cause was erroneous or harmless should apply equally in civil cases. The Court’s analysis as it evolved in those criminal cases has placed an additional procedural burden over and above moving to strike a juror for cause on the moving party in order to preserve the matter for appellate review and to avoid a finding of harmless error. Specifically, one seeking reversal based on the trial court’s denial of a challenge for cause must have used a peremptory challenge on the challenged juror, and then listed on the jury strike sheet an alternate juror on whom the moving party would have used a peremptory challenge if the motion to strike had been granted. If the juror designated in the alternative peremptory challenge by the complaining party ends up sitting on the jury, the trial court’s error will not be deemed harmless.
In Grubb v. Norton, the plaintiff’s lawyers partially followed the procedure set forth in those criminal cases, and named two other jurors on whom they would have used peremptory challenges if they had not had to use one on the parent of the hospital employee and if their for-cause challenge had been granted as to the former patient of the expert (on whom they did not use a peremptory, but who was excused as an alternate before deliberations began). Though the opinion did not say so, one must presume that the juror who was designated as an alternate peremptory challenge for the hospital employee’s parent ended up sitting on the jury. Thus, the Court found that substantial error had occurred, requiring reversal and retrial. However, the decision appears to have been a close call as both the majority opinion and the concurring opinion commented on the limited follow-up questioning the complaining party’s counsel did of the jurors who were challenged for cause.
Had the plaintiff used peremptory challenges on neither of the jurors who were challenged for cause (as opposed to one), or if the juror named in the alternate peremptory challenge for the hospital employee’s father had not ended up sitting on the jury, the error likely would not have been deemed preserved for review or would have been presumed harmless under the line of criminal cases that the Court relied on. Also, the Grubb case does not discuss how the juror who sat on the case but who would have been excused by the next peremptory challenge if the complaining party’s challenge for cause had been sustained actually voted. If that juror voted in favor of the complaining party, one could make a decent argument that the trial court’s error in declining to excuse for cause the challenged juror on whom the complaining party had to use a peremptory challenge was still harmless. (That inquiry would be unnecessary in an appeal by a defendant in a criminal case since a unanimous verdict is required for a criminal conviction.)
Finally, the application of these jury selection principles to civil cases is consistent with a prior unpublished opinion of the Court of Appeals on remand from the Supreme Court in O’Hair v. Wells, 2008 WL 2610164 (Ky. App. 2008), and with commentary in 7 Philipps & Kramer, Kentucky Practice, “Rules of Civil Procedure Annotated,” CR 47.03 Comment 6 at pp. 26-28 (2012 supplement).
Grubb v. Norton Hospitals is not final as of the date of this blog post. Decisions that are not final should not be cited as authority in Kentucky.
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