FIRST DIVISION PHIPPS , C. J., ELLINGTON, P. J., and MCMILLIA N, J.
N O TICE: Motions for reconsideration must be p hy sically received

in our cl erk’s offi ce within ten days of the date of decision to be deemed timely filed.

http:/ /www .gaappeal s.us/rul es/ July 16, 2014


## In the Court of Appeals of Georgia
A14A0505 . SCARPACI et al. v. KAUFMAN et al
. P HIPPS , Chief Judge. Kait lyn Scarpaci and Sean Garre tt(collect

ively, “theGarre tts”), a s next friends and parents of Aubrey Garr

ett, a minor, su ed Paul L. Kaufman, M. D., Jeffrey A. Carlisle, M. D., and Thom as Eye Group, P. C., among others, f or medical malpractice after Aubrey Garre tt lo st vision in both eyes within three months of her prem ature birth. The jury found in favor of the physicians an d Th omas Eye Gr oup, and the Garretts appeal. They

contend that the trial court erred by failing to strike for

cause three jur ors who had indicat ed on voir dire that they we re biased in favor of

the defendants. For the reasons that follow, we reverse.1 See Stolte v. Fagan , 291 Ga. 477, 4 78-479 (1 ) (731 SE2d 6 53) (2012 ).
2 Guoth v. Hamilton , 273 Ga. App. 435, 438 (1) (615 SE2d 239) (2005).
3 Elliott v. Ho me Depot U. S. A., 275 Ga. App. 8 65, 867 (2) ( 622 SE2d 77) (2005) (footnote omitted).

4 Guoth , supra (citation omitted). 2 Civil litigants ha

ve the righ

t to strike a jury

from a full pane l of qualif

ied and compe tent

jurors. 1 Juro rs “must be free fro m bias an d preju dice r egard ing t he tri al’s outcome.” 2 “A potential juror must be excu sed for caus e based on partialit y . . . if he
or she holds an opinion so fix ed and def inite that he or she will be unable to se t it aside and decide

the case based on the

evidence and the cour

t’s cha rge on the evidence.” 3 To rehabilitate a biased juror, a trial court “ must conduct an

in qui ry, either through i ts own questi oning or all owance of questions by

counsel, sufficie nt to evaluate

the potenti al juror ’s fair ness and im

partialit y. A trial cour

t has broa d discretio n in making this evaluation, and we will not reverse its ruling ab sen t a manifest abuse of discreti on.” 4 [T]he broad general principle

intended to be applied in every case is that each ju ror shall b e so free from either prejudice or bias as to guarantee the inviola bility of an i mpartial trial. . . . In t he intere st of fair

trial, i f5 Cambron v. State , 164 Ga. 111, 113-114 (137 SE 780) (1927); see Kim v

.

Walls , 275 Ga. 177, 178 (563 SE2d 847) (2002).

6 During ge neral que stioning, Juror No. 5 had raised her hand when the panel was asked if there was anyone who was p redisposed

to render ing a verdict

in favor of the chil d based on sympathy. 3 error is to be comm

itted, le t it be in fa

vor of the a

bsolute im

partialit y and purity

of the j urors. 5
1. During ge neral que stioning o f the whole jury panel, J uror No. 5 acknowledgedthat she w as a patient of a doctor with T homas Eye

Group. S he indicated that she had medical training, that she had “ concerns about medical malpractice lawsuits and jury verdicts in general,” and that she wa s a potential juror who was “already leanin g to one s ide or the o ther.” 6 During individual quest

ioning of the

whole panel, when the trial court asked “who thinks that t

hey ca nnot be fair and

impar tial in this case[?] ,” Juror

No. 5 raised her hand. Soon

thereaf ter, the trial cour

t asked Jur

or No. 5 t

o “te ll meabou t yo ur difficulties with

being fair

and im partial in this case .” Juror No. 5 responded, “I am
a health pro fessional and I’m afraid – I’m a little bi ased towa

rds the hea lth pro fessionals in this case.” The trial court asked Juror No. 5 whether there was anything else she w anted to “ bring up about

that,” a nd Ju ror No. 5 re

plied, “ I just -4

I don’t know

the ins and o uts, so I r

eally can’t s ay for

sure, but (unintelli gi ble ).” Defense counsel then posed the f

ollowing, “Gr

ant it y ou’re a

health pro fessional.
. .

. The bottom

line is: D o you be lieve that you wo uld be ableto listen to the evidence in the case fairly a

nd object ively a nd follow t

he law a s the judge

gives it to y

ou on the burde n of proof (unintelligible) malpractice? Would y ou be able to do that?” Juro r No. 5 replied , “Probably.” After the court h ad excused

some jurors, further individua l ques tioning
comm enced, and Juror N o. 5 was questioned. Juror No. 5 stated tha t she was a physical rehabilit ation nurse , and that she ha d never se rved on a j ury be fore. T he following then ensued
. [PLAINTIFF S’ ATTOR

NEY ]: Ea rli er i n t he d ay we ask ed yo u s ome questions, and I think

you said something about – that you wo uld have a bias towa

rd the def ense; that it weighed on your conscience the idea of having to rule, if

you were a jur

or, against doctors or hospitals
. JUROR NO. 5: This is the

field that I work wit

h, so – y eah, I w ould – you’d have to pro ve to methat som ething was act ually done wrong f

or me to vote against them. I know this is a preponderance and I have a problem with beca use I don’ t know how

much – preponderance is really

– every body uses that word differen tly. I don’t know, I mean, how m uch of – how much of a percentage or w hatever the w hole that has to be proved or – [PL AIN TIF FS’ ATT ORN EY] : You’ re a n urse, by t raini ng?5

JUROR NO. 5: Uh-huh (af firmative). [PL AINTIFFS’ ATTO RNEY] : And how l ong have you been doin g nursing? JUROR NO. 5: Almost 30 years. [PLAI NTIFF S’ AT TORNE

Y]: A nd has it all

been in clinical nurs ing? JUROR NO. 5: Yes. [PL AIN TIF FS’ ATT ORN EY] : And where is it that y ou’v e wor

ked? JUROR NO. 5: I wor

ked in various ho spitals ac ross the co untry. I’ve worked in Chicago – a suburb of Chicago; A labam a, Flor

ida, and here. [PLAINTIFF S’ ATTO RNEY] : And other than yo ur job as a nurse, have you ever work ed in a

ny o ther capa city

in thelast 3 0 ye ars? JUROR NO. 5: No. [PLAINTIFF S’ ATTORNEY]: You m entioned a preponderance of the evidence. Isn’t it true, m a’am, that if you were pi cked as a

juror th at you would have stron g feelings in favor of the defense, no mat

ter what the jury instr uctio ns we re, beca

use of you r lif e’s exper ience ?

. . . . JUROR NO. 5: Like I said, my

– my bias is going to lean towards them until I’m shown o therwise. [PLAINTIFF S’ ATTORNEY]: We’ re not star ting off eq

ually i n this case; isn’ t that corr

ect? JUROR NO. 5: Probab ly. An excha nge next occurred bet

ween the trial court and Juror No . 5 about the “pre ponderanc e of the e vidence” standard.6

THE COURT : [Y] ou had some issues about whether preponderance of the e viden ce is the r

ight s tanda

rd? JUROR NO. 5: I just don ’t know how m uch the preponderance of – there’s got to be an overwhelming am ount of the evidence.

. . . . THE COURT : [I]n general, preponderance m eans more likely than not. That’s all it means. D o you ha ve an issuewith

applying that

in a medical ma lprac tice case ? JUROR NO. 5: No. . . . But I w ould still have to say – I need to see proof to show me that ther

e was ac tually

somet hing that could have been done diff erently for me to go th e other dir ection. There af ter, a defense attorney questioned Juror No. 5. He asked her, “re gardless of what

you r leanings were w

hen you came

into this cou

rtroom , if y ou
were instructe d that – y our job in this case is to set yo ur leanings aside, e valuate th e facts and the evidence objectively, and then listen to the law th e Court giv es you. . .

. Do you think yo u would be able to do th a t?” Juror N o. 5 repli ed, “ I have an i ssue with damages.” Upon further

questioning, Juror No. 5 indicate d that she c ould follow instruction s from

the court o n “wh at is awarda ble” and on what stan dard to usein the event of a deci sion to m ake an aw ard. The following exchange then occurredbetween a different defen se attorney and Ju ror No. 5.7

[DEFENSE

ATTORNEY ]: [S]o the only burden [of pro o f] y ou’re g oing to hold the plaintiff

’s to is t hat the leg al burden i s they have to prove by what ever the la w thejudg e cha

rges you , wha

t the n eglig encewas? JUROR N O. 5: If

there w as or – [DEFENSE

ATTORNEY]: If there wasn’ t. And if there was negligence and you bel ieved it

caused da

mage s and yo u were instructed to find for the plaintiff under that circum stance aw ard damages, co uld you do th at? JUROR N O. 5: Y eah. [DEFENSE

ATTO RNEY] : And if th ere wa sn’t negl igence and you found the defendant s were n egligent, you couldfind for t he defenda

nts? JUROR NO. 5. Correct. The plaintiff

s’ attorney

then asked Juror No. 5 whether “in y our heart of hearts,
even if you were to find for [the child] and against these doct ors, . . . you wou ldn’t be able to r eally award an am ount of money above the am ount of the cost of her medical care?” Ju

ror No. 5 responded , “I

would be r

eluctant t o.” One

of the defen se att orn eys then asked Juror No. 5 whether she would follo w the ju dge’s charge on the lawof damages , and Juro r No. 5 r eplied, “I don’t t

hink I have a cho ice in

the matter, do I?” The trial courtdenied theGarre tts’ m otion to strike Ju ror No. 5 for cau se. On
a ppeal, the Gar

retts ar gue that the

trial cour t erred in denying its m ot ion to excus e Juror No. 5 for cause bec ause, am

ong other things, she “ came into the ca se biased;7 See Cohen v. Baxter , 267 Ga. 422, 423 (1) (479 SE2d 746) (1997) (“The f act that the doctor-patient relationship exists between a juror and a defendan t does not justify rem oving . . . discretio n from the trial courts” to retain or

to dismis s ajuror). 8 was a patient of

one of the D efendants ; dema nded that the

Garre tts pr oduce a n ‘overw helming’ amoun

t of eviden ce to over

come those pree xisting lea

nings; professedan inability to weigh and value the evidence fa irly; . . . and expre ssed a

‘ reluc tance’ to award [the child] what the law w ould allow.” The Garretts further claim that, “ [n]ot onc e did [JurorNo. 5] directly answer a single que stion about settingaside bias [.]”

The appe llees maintain tha t, notw ithstanding any initial leanings, the follow -up questions by the trial cour t and the pa

rties show ed that Jur

or No. 5 could set aside any leanings and fairly j udge the case. (a) A lth ough Juror N o. 5 was a patient of

a doctor e mployed by on e of the defendant s, she was no t require d to be excused f or causefor that r

eason. 7 Moreover, the ground for the motion to remove the j uror for cause was not that she was a pa

tient of one of the d e fendants, but rather , that she had “ indicated that she ha d a bias in favor of the defendants due to her being in the medical pro fession.” An d Juror No
. 5 testifie d that she w as biased b ecause sh e was a h ealth prof essional, not because

she
was a patient of a doctor

emplo yed by

one of the defen dants. Consequently, whether Juror No. 5 was biased because she was a patient of adoctor em ployed by one o f the8 See g ene rall y Poole v. State , 291 Ga. 848, 854 (3) (734 SE2d 1) (2012)

(reiter ating that the burden of proving pa rtiality rests wi th the part

y seeking to h ave the juror disqualified).

9 Wood v. B&S Enterprises, 314 Ga. A pp. 128, 135 (4) (723 SE2d 443) (2012) (punctua tion and footnot e omitted; emphasi s suppli ed).

10 Foster v. State , 258 Ga. App. 601, 608 (3) (57 4 SE2d 843) (2002) (footnotes omitted). 9 defendant s is specula

tion, and ba sed on

the transcript of voir dire, the Gar retts have failed to c arry

their burd en of show ing disqualif ication on t

hat basis. 8 (b) Nor doe s it a

ppear tha t Juror No . 5’s responses re garding the issue of damages in the case

manda ted he r disqualifi cation. “ A juror who indica

tes a willingnes s to try

to be objective and whose reserva tions rela te to an issue in the case rather than to a party may be eligible for service.” 9 (c) We find, however, that as it c oncerned J uror No. 5’s abil ity to be

fair and impartial to the part

ies in the c ase, the

trial cour t mani festly

abused its d

iscretion in failing to strike Juror No. 5 for cause.

Before voir dire, jurors are req uired to ta

ke an oath to “ give true answers to all quest

ions as ma

y be asked by the co urt or its authorit y.” Where a prospec tive juror, who has been asked whether he or she can be fair and i mpar

tial in the case, answers under oath a plain, “ No,” an d provides an explanation of her inability to be fair and i mpar tial, the court should limit further questions to clarification of the answer. 1011 Elliott , supra (footnote omitted).
12 Poole , supra. 10 And a court cannot “rehabilitate a biased juror simply

by asking a talism

anic questi on, such as whether the jur

or can set aside his personal feelings and decide the case based solely on the evidence and the

law.” 11 Although the properprocedure was followed in this case, the trial

court’ s denial of

the m otion to strike Juror N o. 5 for c ause was not supported by an y “e vidence brought out by questioning b y the t

rial cour t or
coun sel th at re-e stab lish e[d] th e juror ’s impart ialit y[.]” 12 When the trial court asked whether there were any pot ential j urors who could not be fair and impartial in the case, Juror No. 5 ra ised her ha

nd, indica ting that she could not do so. U

pon request

from the trial court, J uror No. 5 provided an explanatio n of her ina

bility to be fair

and impartial – she stated

that she w as a healt

h professional who would be biased toward the health professionals in the case. Later in voir dire, further questions to clarify her prior expl anation

were put to Juror No. 5. The juror discussed her work experien ce of alm

ost 30 ye ars as a

nurse, and she stated

that she w as biased t oward the defense because o f

her fiel d of work. She f urther stated th at she woul d lean toward the defend ants unt il she was sh own otherwise, and that, in all likelihood, the parties were not starting of

f equally . By

the13 Zwiren v. Thompson , 276 Ga. 498, 4 99 (578 SE2d 862) (2003) (“Medical

malpractice being a

civil caus e of acti on, a plaintiff m ust prove lia bil ity[ ,] i.e ., du ty, negligence, proxim ate cause [,] by a preponderance of

the eviden ce.”) (citation omitted).

14 See Haughton v. Canning , 287 Ga. App. 28 ( 2) (650 SE 2d 718) (2007) (“Threeelements are essential to establish a medical malpract ice cl aim: the doct or’s duty to his patient; the doctor’s breach of that duty through the failure to exercise the requisitedegree of

skill and ca

re; and an i n jury pro ximatel y caused by the d octo r’s failure.”) (citatio n omitt ed); Zwiren , supra (preponderance of the evidence standard “re quires only

that the finder

of fact b e inclined

by the evidence toward one side or the other”) (citation and punctuation omitted). 11 end of her que stioning, althoughs he had indi cated an abi lity to follo w the ju dge’s charges as to the issue of damages, she never retr acted her earlier professe d inability to be fair and im partial t o the parti es, she ne ver retr acted the “lea ning” she said she hadtoward the defendants, she never retracted her state ment t

hat the par

ties were not starting of

f equally in her m ind, and a lthough she affirm ed that she

could apply

the appropria te prepond era nce of the evidence 13 burden of proof, she demonstrated an inability to be fair when sheaffirmatively

statedthat in orde

r for her to com e to the Garret t s’ sid e, she would require proof not mandated by the law – that there was “actually something t hat could have been d one differe ntly.” 14 Durin g i ndividual questioning, when the talismanic question was put to her whether she could follow the

jury ’s char

ge to set as ide her leani

ngs, evalu ate the f

acts15 Brown v. ColumbusDoctors H osp ., 277 G a. App. 891-892, 89 4 (627 SE2d 805) (2006) (rambli

ng answer

could not be read as indicating th at juror would be fair and impartial); see Foster , supra at 607-609 (3) (where juror had not withd rawn her statem ent that she be lieved tha

t she could n ot be a fair a nd impa rtial j uror in

case to be tried, and that

even after hearing

the eviden ce and inst

ructions f rom the judge, her preconceivedfeelings a

bout the ca se mi ght influenc e her though ts, subsequent interroga tionby the court and t

he prosec utor proce eded in a m anner calculated t o elicit a response

contrary to the one or

iginally given and was nothing more than an effort to justify

finding a bi ased jur

or qualifi ed; juro r

should have b een excuse d for cause); Ivey v. State , 258 Ga. A pp. 587, 59 2 (2) (574 S E2d 663) (2002) (“A trial court may not rely solely on a prospective juror’ s extracted statement of im partial ity, whe re, as here, c onsiderati on of the entirety of the voir

dire rev eals a prospec tive jur or with a fixed and definite bias that sh e was unable to set aside in deciding the case.”) 12 and the eviden ce obje ctively , and listen to the

law the court would giv e, Juror No. 5 did not answer the question. Instead, she stated that she had a problem with the i ssue of damages, whi ch issue dom inated therem aining que st ions put to her , with the exception of one question which yielded an arguably im partial response from

the juror. A defense attor ney asked Juror No. 5 a c ompound (and confu sing) questi on about the “ only” b urden of pr oof as to “

negligence ” to which

she would h old the plaintiff s, and about f

inding for a party if she foun d that “

negligence ” did or

did not
cause “ damag es.” Ho wever, cons ideri ng th e enti rety of t he vo ir dir e, the ju ror’s responses in that incom

prehensibl e exchange

with a de fense attorney , “d id nothing to assure that [she] could be so free from either prejudice or

bias as to gu arantee

the inviola bility of an i mpartial trial.” 15(footnote omitted).
16 Poole , supra. 17 Brown , supra at 895 (citations omitted); see g enera lly Foster , supra; Ivey , supra (where

juror re peatedly informed tr

ial court that she had already form ed an opinion about the de fendant’ s guilt or inn ocence a nd that her

personal e xp eri ence would not permit her to be im partial in the case, juror reiterated the s a me to the prosecutor

during his e fforts to rehabilit ate her, and after being confronte d repeate dly wi th variation s of the “

rehabilit ation” ques tion, jur or abandone d her own a

nswers a nd adopted the court’ s words, trial cour t mani festly

abused its d

iscretion in failing to strike juror f

or cause; record a s awhole failed to suppor t the court ’s finding that the juror c ould

put aside her bias to render an impartial verdict); Meintzer v. We inberg , 212 Ga. A

pp. 307 (1) (441 SE2d

774) (1994 ); Pa risie v. State , 178 Ga. App. 857, 858-859 (2) (344 S E2d 727) ( 1986) (tri al court ma nifestly abused its d

iscretion in failing to excuse a j uror for cause, where juror stated that he w as not impartial betw een the state and the accused, he could not judge the case fairly, he w ould b e influencedby previous events in his life, and there was no indi cation tha t juror equivocated about his impartiality). 13 In thi s cas e, Ju ror N o. 5 ’s imp arti ali ty was nev er re -est abl ish ed b y evi dence brought out by qu estioning

by the trial court

or counsel
. 16 “Be cause thetrial cour t did not ferret o ut bias, an abuse of di scretion r esulted, an d a new trial i s required .” 17 2. In view of

our ruli ng in Divis ion 1, we need not address the G arretts’ contentions regardin g the other two jur ors. Judgment reversed . Ellingt on, P. J., con curs. Mc

Millia n, J. , concurs in the judgment on ly
.