Why Sorry is the Badest Word…
An expression of regret or an apology by a Defendant is nothing new when a case doesn’t settle and finally makes it to trial. However, should this be allowed? Why no!
Defendants should be prohibited from expressing any apologies or statements of regret to the jury in connection with a civil case not seeking punitive damages. Whether one is sorry or not for injuring a person constitutes neither a defense, nor is it relevant to any issue concerning whether or not to grant compensatory damages. The sole purpose of making such a statement to a jury is to encourage them to return a reduced verdict because the Defendant is sorry about what happened and is really a good guy. General appeals to sympathy or prejudice on the part of a jury are inappropriate and should be prohibited by a trial court. The jury’s obligation is to render a verdict for just compensation, not to hear confessions or grant absolution. Their function is not to forgive, it is to fairly compensate one for their injuries. Only God can forgive.
Any references made to this effect should not be permitted as they are calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue involving either liability or damages. See Rules of Evidence 402 and 403. See generally, King’s Indiana Billiard Co. v. Winters, 123 Ind. App. 110, 127, 106 N.E.2d 713, 721 (1952). So cut this tactic off with a pretrial motion in limine. Otherwise you may be sorry you didn’t.
Does an Oath Inoculate a Medical Witness from Being Biased in Favor of Other Healthcare Providers?
“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” – John Henry Wigmore
The existence of financial bias is a well established area of cross-examination when dealing with the credibility of witnesses and experts alike. Indiana law is clear that the income of an expert derives from his/her work as an expert is highly relevant and goes directly to bias and prejudice. See Ind.R.Evid. 411, 616; Ind. Pattern Jury Instruction No. 1.09; Brown-Day v. Allstate Ins. Co., 915 N.E.2d 548, 551-52 (Ind. App. 2009), trans. denied; Pickett v. Kolb, 237 N.E.2d 105 (Ind. 1968); Yates v. Grider, (1969) Ind. App. 251 N.E. 2d 846; Kleinrichert v. State, 530 N.E.2d 321 (Ind. App. 1980). As the Indiana Supreme Court stated in Pickett, supra:
It has long been the law in all jurisdictions of which we are aware that a witness may be properly cross-examined with respect to his interest in the litigation in question. He may be cross-examined with reference to his motives, his feelings, friendly or unfriendly towards the parties or other witnesses involved, his employment by either of the parties or some third party, and a contractual relationship with reference to his interest in the litigation and any financial considerations that might have influenced him.
[P]roof of liability insurance in and of itself is not admissible, but such a principle may not be expanded to the extent that it serves as a means of excluding otherwise competent evidence which is relevant to the issues involved in the trial. We do not think that a trial court may arbitrarily exclude otherwise competent and relevant evidence merely on the ground that it will reveal an insurance carrier is involved.
In this case, as previously stated, if a party sees fit to present a witness on his behalf, the opposing party has a right to cross-examine that witness with reference to all his interests in the litigation, including who is compensating him or giving him anything of value which resulted in his being a witness or participating actively in the litigation.
237 N.E.2d at 107-08. The Indiana Supreme Court’s rules trump any statute when the provisions conflict. In re Termination of the Parent-Child Relationship of B.H., 2013 Ind. App. LEXIS 256 (Ind. Ct. App. May 30, 2013). The principle that this rule of law survived the adoption of the Indiana Rules of Evidence was confirmed in Brown-Day, 915 N.E.2d at 551-52. Indiana Rule of Evidence 411 explicitly excepts evidence of bias from the restriction on presenting evidence of insurance. This Rule provides:
Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control. [Emphasis Added].
Indiana Rule of Evidence 616 recognizes that witnesses are subject to cross examination on topics addressing bias. This Rule provides:
Rule 616. Witness’s Bias
Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness. [Emphasis Added].
Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness. The fact that embraces the topic of the Patient Compensation Fund should not prevent such inquiries. By analogy inquiries regarding a juror’s interest in an insurance company is a valid line of inquiry. In the matter of Beyer v. Safron, 84 Ind. App. 512, 151 N.E. 620 (1926), the court stated:
[L]itigants are entitled to a trial by a thoroughly impartial jury, and to that end have a right to make such preliminary inquiries of the jurors as may seem reasonably necessary to show them to be impartial and disinterested. It is a matter of common knowledge that there are numerous companies engaged in such insurance, and that many of the citizens of the state are stockholders in one or more of them. Such citizens may be called as jurors, and if at such time they are such stockholders, or otherwise interested in any of such companies, their pecuniary interest might disqualify them to sit as jurors.
Id. at 621.
Panel members should be able to be questioned regarding their financial interest in the outcome of a medical malpractice case since each of them our participants in the patient compensation fund and are financially impacted by any monies awarded from the fund. The collective impact of favorable plaintiff’s verdicts is not trivial and has a financial impact on panel members. The prohibition on mentioning insurance is not absolute. Under Rule of Evidence 411, evidence that a witness was insured against liability is admissible to prove their “bias” or “prejudice”. While recognizing all of these arguments exist, the Court of Appeals here in Indiana has refused to overturn a trial court’s discretionary decision to exclude such evidence pursuant to Indiana Rule of Evidence 403. This rule leans in favor of admitting such evidence (unlike Rule 608 which deals with evidence of criminal convictions). The attendant prejudice must substantially outweigh the probative value. A trial court’s decision on this issue may only be reversed for an abuse of that discretion to n deciding this issue. In Tucker v. Harrison, 973 N.E.2d 46 (Ind. App. 2012) upheld the trial court’s decision to exclude such evidence noting:
Any specific bias on the part of the three members of the medical review panel in this case would certainly be relevant. See Ind. Evidence Rule 616 (“For the purpose of attacking the credibility of a witness, evidence of bias … of the witness for or against any party to the case is admissible.”). Each member of the review panel signed the required oath. Dr. Michelle Murphy, one of the review panel members, testified at trial that she signed the oath, that she took the oath seriously, and that she had no bias for either Tucker or Dr. Harrison when she considered the evidence and gave her opinion. (citations omitted). Dr. Margaret Miser, also a member of the review panel, also testified that she took the oath, honored it, and complied with it in her work on the review panel. [Emphasis Added].
Id. at 55. Alas, if an oath guaranteed truth there would be no need for cross-examination or even a trial for that matter. Bias can occur on an unconscious level and is not cured by being placed under oath. If not, why is it so difficult to get local doctors to assist and go on the record in medical malpractice case against another doctor? The Court of Appeals went on to observe:
[The Plaintiff’s] proffered evidence merely speculates through Dr. McLaughlin’s expected testimony that every doctor in Indiana—all of whom are required by law to participate in the Patient’s Compensation Fund and to serve as review panel members-have such an interest in limiting their financial exposure by limiting payouts from the Patient’s Compensation Fund that they would render opinions based on such interest. However, [the Plaintiff] has not shown that Dr. McLaughlin is qualified to testify about system-wide bias, if any exists, and she offers no evidence of the amount of the financial exposure doctors allegedly face from which the likelihood of such skewed opinions could be assessed. By statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e). (Emphasis Added).
Id. at 55. The Court of Appeals then held that:
When balanced against the prejudicial effect of allowing evidence of professional liability insurance, the potential for bias in this case is so remote as to warrant exclusion. ***The trial court did not clearly err in excluding the proffered bias testimony.
Id. Ultimately the issue remains one for the trial court to resolve in its discretion. In order to succeed in present such evidence of bias, quantifying the amount of this contribution to the patient compensation fund by each doctor may be necessary to overcome a claim of unfair prejudice by the defense. The size of this contribution by a panel member may well vary depending upon the area of practice, the doctor’s risk history and the true number of practitioner’s that participate in the Fund. See the Schedule below and the dollar amounts of the Compensation Fund surcharge by classification of specialties found in Indiana’s Administrative Code:
These classes breakdown as follows in terms of areas of practice per 760 IAC 1-60-3 (Rule 60):
760 IAC 1-60-3 List of physician specialty classes
Authority: IC 34-18-5-2
Affected: IC 34-18-5-2
Sec. 3. The list of physician specialty classes required by IC 34-18-5-2 is as follows:
Indiana Department of Insurance
Patient’s Compensation Fund
Physician Class Plan
ISO Code Specialty
80001 Resident Nonmoonlighting
80221 Resident Moonlighting (No ER)
80230 Aerospace Medicine
80231 General Preventive Medicine – No Surgery
80234 Pharmacology – Clinical
80236 Public Health
80240 Legal Medicine and Forensic Medicine
80249 Psychiatry (Including Child)
80251 Psychosomatic Medicine
80256 Dermatology – No Surgery
80263 Ophthalmology – No Surgery
80266 Pathology – No Surgery
ISO Code Specialty
80233 Occupational Medicine
80235 Physical Medicine and Rehabilitation
80237 Diabetes – No Surgery
80238 Endocrinology – No Surgery
80239 Family Practice – No Surgery
80241 Gastroenterology – No Surgery
80242 General Practice – No Surgery
80243 Geriatrics – No Surgery
80244 Gynecology – No Surgery
80245 Hematology – No Surgery
80246 Infectious Disease – No Surgery
80247 Rhinology – No Surgery
80252 Rheumatology – No Surgery
80255 Cardiovascular Disease – No Surgery
80257 Internal Medicine – No Surgery
80258 Laryngology – No Surgery
80259 Neoplastic Disease – No Surgery
80260 Nephrology – No Surgery
80261 Neurology (Including Child) – No Surgery
80262 Nuclear Medicine
80264 Otology – No Surgery
80265 Otorhinolaryngology – No Surgery
80267 Pediatrics – No Surgery
80268 Physicians (Not Otherwise Classified) – No Surgery
80269 Pulmonary Disease – No Surgery
80420 Family Physicians – No Surgery
ISO Code Specialty
80223 Resident Moonlighting (with ER)
80253 Radiology – No Surgery
80280 Radiology – Minor Surgery
80282 Dermatology – Minor Surgery
80289 Ophthalmology – Minor Surgery
80292 Pathology – Minor Surgery
80425 Radiation Therapy – Not Otherwise Classified
80431 Shock Therapy
ISO Code Specialty
80109 Physicians – No Major Surgery
80114 Surgery – Ophthalmology
80132 Physicians (Not Otherwise Classified) – Minor Surgery
80172 Physician (Not Otherwise Classified) – No Major Surgery
80270 Rhinology – Minor Surgery
80271 Diabetes – Minor Surgery
80272 Endocrinology – Minor Surgery
80273 Family Practice – Minor Surgery
80274 Gastroenterology – Minor Surgery
80275 General Practice – Minor Surgery
80276 Geriatrics – Minor Surgery
80277 Gynecology – Minor Surgery
80278 Hematology – Minor Surgery
80279 Infectious Diseases – Minor Surgery
80281 Cardiovascular Disease – Minor Surgery
80283 Intensive Care Medicine – Minor Surgery
80284 Internal Medicine – Minor Surgery
80285 Laryngology – Minor Surgery
80286 Neoplastic Diseases – Minor Surgery
80287 Nephrology – Minor Surgery
80288 Neurology (Including Child) – Minor Surgery
80290 Otology – Minor Surgery
80291 Otorhinolaryngology – Minor Surgery
80293 Pediatrics – Minor Surgery
80294 Physicians (Not Otherwise Classified) – Minor Surgery
80421 Family Physicians (GP) – Minor Surgery – No OB
80422 Catheterization, Not Otherwise Classified
80424 Emergency Medicine – No Surgery
ISO Code Specialty
80000 Family Practice – with OB
80115 Surgery – Colon and Rectal
80117 Surgery – GP (Not Primarily Engaged in Surgery)
80145 Surgery – Urological
80151 Surgery – Anesthesiology
80163 Radiation Therapy – Employed Physicians or Surgeons with Major Surgery
80428 Physicians – Minor Invasive Procedures – Myelography
80434 Physicians – Minor Invasive Procedures – Lymphangiography
80437 Physicians – Minor Invasive Procedures – Acupuncture
80440 Physicians – Minor Invasive Procedures – Laparoscopy
80443 Physicians – Minor Invasive Procedures – Colonoscopy
80446 Physicians – Minor Invasive Procedures – Needle Biopsy
80449 Radiopaque Dye Injection
ISO Code Specialty
80102 Emergency Medicine – No Major Surgery
80103 Physicians – Surgery – Endocrinology
80104 Physicians – Surgery – Gastroenterology
80105 Physicians – Surgery – Geriatrics
80106 Surgery – Laryngology
80107 Physicians – Surgery – Neoplastic
80108 Physicians – Surgery – Nephrology
80158 Surgery – Otology
80159 Surgery – Otorhinolaryngology
80160 Physicians – Surgery – Rhinology
80419 Family or General Practice – Major Surgery
ISO Code Specialty
80141 Surgery – Cardiac
80143 Surgery – General Not Otherwise Classified
80155 Surgery – Plastic – Otorhinolaryngology
80156 Surgery – Plastic Not Otherwise Classified
80157 Surgery – Emergency Medicine
80166 Surgery – Abdominal
80167 Surgery – Gynecology
80169 Surgery – Hand
80170 Surgery – Head and Neck
ISO Code Specialty
80144 Surgery – Thoracic
80146 Surgery – Vascular
80150 Surgery – Cardiovascular Disease
80154 Surgery – Orthopedic
80171 Surgery – Traumatic
ISO Code Specialty
80152 Surgery – Neurology (Including Child)
80153 Surgery – Obstetrics/Gynecology
80168 Surgery – Obstetrics
The facts the Indiana Court of Appeals had to assume given the underdeveloped record before the trial court, substantially underestimated the amount of money contributed by doctors and other healthcare providers on a yearly basis. While by statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e). This is not the reality. Depending on the area of practice, the actual dollar amounts contributed by healthcare providers are from 2,222% to 25,186% higher than the $100 annual fee assumed by the Court of Appeals! The actual potential for bias when viewing the real numbers is neither remote nor trivial. Such evidence of financial bias on the part of Panel Members should be admissible and evaluated by the finder of fact. The probative value of such evidence is high and is not substantially outweighed by the risk of unfair prejudice.
FAST AND DIRTY JURY SELECTION
The time allowed for jury selection now is typically very brief compared to the time allotted to attorneys years ago when I first started practicing. I used an approach similar to the one suggested here in picking criminal juries where I had much more time to explore the qualifications of jurors and their potential biases. However, I usually saved the line of questioning for use later in my examination of potential jurors. Now, I usually start off with this line of questioning and say something along the following lines:
I started off my career, as a law clerk for a federal judge and was privileged to listen in when the judge would talk to jurors after a verdict. I realize that for most people this is their first and maybe only involvement with the legal system. They all take their responsibility very seriously and want to do their very best to render a fair and just verdict. However, when I got out there and started questioning jurors myself, I made a mistake in how I approached the whole process. I forgot that potential jurors don’t have enough experience with the law and our system to fully appreciate what is really required of them to take the oath to” truly” and “fairly” decide a case.
As a state prosecutor I learned after the fact that potential and actual jurors sometimes had very strong feelings about a particular type of case that through no fault of their own prevented them from being able to fully and fairly without reservation take the oath as a juror. This was not their fault… It was the fault of the attorneys. We did not let them know what was expected.
For example, I had a case with a school teacher who was picked as a juror on my client’s case. My client was very seriously injured. The jury eventually returned a defense verdict after telling the judge that they were hung and could not reach a verdict. This juror who ended up being the foreperson called me three days later and confessed to me that she did not believe in people obtaining money for “pain and suffering” even though it was required by the law in the Court’s instructions. She also confessed that she really did not believe in people suing for money. I asked her why she never mentioned this when questioned and she said that my questions were not specific enough to make her realize that this was important.
I have to humbly admit that I may not be smart enough to ask the right questions. I need your help. So if I am talking about a topic and you think there is anything in your background that you would want me to know if you were in my client’s position, please let me know about that topic.
I know there are certain types of cases that I could not sit on as a juror. I would be unable to take the oath without reservation to act as a fair and impartial juror. There is nothing to be ashamed of in admitting that… In fact, that sort of honesty and candor should be applauded. If it is something that you do not want to publically discuss, just let me know and we can discuss the topic in private with just the attorneys and the court.
Will each of you agree to do that for my client? Thanks.
I will then move through the various topics on my voir dire such as:
1. The type of claim.
2. Burden of proof requiring a relatively low threshold, proving that the greater weight of the evidence means showing that your position is ever so slightly greater to have occurred that a flip of a coin of heads over tails.
3. Vicarious liability or strict liability.
4. Preexisting condition standard.
5. Various types of damages, wages, medical bills, future damages, pain and suffering, loss of enjoyment of life, loss of function, scarring, etc.
6. Outside expertise such as attorneys, doctors, nurses, engineers, etc.
7. Outside knowledge of the parties or case.
8. Loss of consortium.
9. Civil litigation and frivolous claims or defenses.
10. Only chance to recover – future damages.
11. Prior jury service
12. Legal experiences or education.
13. Medical experiences or education.
14. Scientific or engineering training.
When someone is honest enough to admit they cannot truly and fairly act as a juror, I first thank them for having the courage to admit that this is not the type of case for them to serve on as a juror. This is very important, especially with the first juror who admits their limitations.
Admitting that you cannot be fair is not an easy thing to do. If they admit bias, then I lock them in on their bias. I explain that based upon what they are telling me, that they could not swear to God and the Court that they could, without reservation, swear an oath to truly and fairly act as a juror on this case.
I follow up and obtain their agreement that no amount of questioning or cajoling by the Court or opposing counsel would change their answers to my questions.
I then ask the other jurors on the panel if anyone has feelings similar to the last juror? I then work through sealing the deal with the other panel members as outlined above. Finally, I conclude with my initial point:
Is there anything else any of you can think of that I wasn’t smart enough to ask that you would want me to know about if you were in my client’s position?
I then thank them for their help and candor and pass the jury panel.
Empowering the panel members like this encourages candor and makes them feel good about admitting their bias. Judges appreciate this type of voir dire as opposed to a bunch of conditioning questions that are primarily designed to try your case in voir dire. This form of questioning will dramatically increase the number of jurors you are able to eliminate for cause.
My last civil jury trial, I was able to eliminate five jurors for cause. This frees upon your preemptory challenges for use with person you suspect are not being candid and are bias.
Because you are focusing primarily of eliminating jurors for cause or bias, most judges will even give you additional time to conduct voir dire if you start eliminating a large number of panelists and still have persons who have not been questioned.