“Generally speaking, the trial court enjoys ‘broad discretion’ in deciding whether a juror should be stricken for cause.” Grubb v. Norton Hospitals, Inc., 401 S.W.3d 483, 485 (Ky. 2013) (citations omitted). The Kentucky Supreme Court has, however, cautioned courts to err on the side of striking a juror when uncertainty exists, specifically to avoid the exact type of situation we are now faced with. The Kentucky Supreme Court said in Basham v. Commonwealth, 455 S.W.3d 415, 421 (Ky. 2015) (internal citations and quotations omitted):
We have repeatedly encouraged trial courts to strike a juror when a reasonable person would question whether the juror would be fair, because a fair juror is at the heart of a fair and impartial trial. We have made it clear that when there is uncertainty about whether a prospective juror should be stricken for cause, the prospective juror should be stricken. That is, if a juror falls in a gray area, he should be stricken. Further driving home the point, we reiterated that trial courts should tend toward exclusion of a conflicted juror rather than inclusion, and where questions about the impartiality of a juror cannot be resolved with certainty, or in marginal cases, the questionable juror should be excused.
By erring on the side of caution and striking Juror 846016, the trial court preserved the integrity of the trial.
In Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009) (internal citations and quotations omitted), the Kentucky Supreme Court stated:
[T]his Court concludes that in order to complain on appeal that he was denied a peremptory challenge by a trial judge’s erroneous failure to grant a for-cause strike, the defendant must identify on his strike sheet any additional jurors he would have struck. Appellant did just that here by identifying two additional jurors he would have struck.
The question then is whether the trial court’s erroneous failure to grant the for-cause strike is reversible error. This Court has ruled that ordinarily, such an error affects a
substantial right of a defendant and is presumed to be prejudicial. However, such an error can be shown to be non-prejudicial if the other jurors the defendant would
have used his peremptory strikes on do not actually sit on the jury.
We find that informing the court on the record of jurors the party would have peremptorily struck had they strikes remaining to be functionally identical to the instructions of the Kentucky Supreme Court outlined above and refusing to consider the issue on that basis would be a miscarriage of justice and against the spirit of established precedent. A juror that the Neals identified as one they would have used a peremptory strike on did in fact sit on the jury.
We find that the trial court abused its discretion by not striking Juror 4243 for cause. This Court is not concerned about Juror 4243’s response to the question about Juror 4243’s husband’s occupation. There is no indication of prejudice in that matter. 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. 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.
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’ 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 that court has also held:
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.
Shane v. Com., 243 S.W.3d 336, 341 (Ky. 2007).
We extensively reviewed the video record of the voir dire proceedings in this case and are obviously confined to that record in our analysis. The outcome in this case is dictated by Gabbard, which held that this type of error affects a substantial right.Supra. Therefore, we must reverse on this issue.
For some of the actual questioning see below:
Mr. Mitnik, trial counsel for the Neals, stated the following to the prospective jurors:
There’s this standard of proof and I need to ask you this question about it. I mentioned it earlier, this isn’t a criminal case, no one is going to jail. So no one did anything on purpose, so you’re not proving beyond a reasonable doubt like you hear on t.v. In a civil case like this it’s this “preponderance of evidence” – more likely the things that we’re to prove, we gotta prove that we’re more likely right.
Here’s my question to you: In a medical case, particularly like this, sometimes people feel that that’s not enough. Simply saying, “If we’ve gotta prove that the Doctor didn’t do his job right and the level of proof is we gotta prove that’s more likely right than wrong.” When these experts I talked about, you’re gonna have experts that come in and say, I’m gonna tell you, they won’t be agreeing in this case. This is not acceptable and the other will say that it is. The jury’s gotta decide that. The burden of proof in deciding that is you gotta say what is more likely right, what makes more sense to me. Not beyond a reasonable doubt.
Some people feel in a medical case that’s simply not enough. It may be the law and I wouldn’t intentionally ignore the law, but I gotta tell you, that doesn’t square with my own internal fairness meter. Everybody with me? How many of you feel like that, that more likely right in sorting out the conflicting evidence, is simply not enough in your mind, it oughta be higher than that.
We can talk about what impact that will have but I first need to know if you feel that way.
A single juror raised her hand. As Mr. Mitnik engaged this juror in further discussion, Dr. Floyd and Clinic’s trial counsel objected. Mr. Mitnik stated during the sidebar, “No one [else] has raised their hand to it, just one lady who is already gone for cause. So I’m done with it anyhow.” After this sidebar was completed, Mr. Mitnik went on to state to the jury:
Here’s a question that I’ve got. You heard about these, uh, the standard of care and the judge talked about being like in a car crash and the standard is you don’t run a red light. And with a doctor, the judge will give you, and I think he kind of did tell you it’s exercising the degree of care ordinarily expected of a reasonably competent doctor in similar circumstances. Same specialty – same circumstances. So it has to do with what the ordinary expectations under these circumstances for somebody with the same kind of training.
