Kentucky Supreme Court Reinstates Defense Verdict in Medical Malpractice Wrongful Death Trial

A few months ago we wrote about an Indiana Supreme Court decision granting a plaintiff a new trial as a result of a trial court’s refusal to strike a biased juror for cause which caused the plaintiff to lose a peremptory strike of another juror.

In Floyd v. Neal, the Kentucky Supreme Court reversed the Kentucky Court of Appeals decision to give an alleged medical malpractice wrongful death victim’s spouse and her late husband’s estate a new trial under similar circumstances albeit with a twist of facts.

The Kentucky Court of Appeals had concluded that a juror was biased and should have been struck for cause and that the plaintiff should have thus been able to use a peremptory strike on another prospective juror who was ultimately empaneled.  In other words, a peremptory strike was utilized unnecessarily, depriving the plaintiff of utilizing it later.  The Supreme Court, over a lone dissent, concluded that the plaintiff failed to preserve the error, even though the error apparently would have been preserved under the language of then-existing precedent.  The dissent took issue with the Court’s retroactive application of a clarified striking procedure and the constitutionality of allowing a juror with an admitted bias to sit on the jury. Of significance to the Supreme Court’s decision was that in identifying the peremptory strikes she would have used, the plaintiff identified not one, but two jurors, when she only had one peremptory strike remaining.

The Supreme Court first analyzed its prior holding in the 2009 criminal case of Gabbard v. Commonwealth that in order to preserve error for the loss of a peremptory strike, a litigant “must identify on his strike sheet any additional jurors he would have struck.”  The Court later held that Gabbard applied to civil cases as well.  The Court noted that it had strictly applied Gabbard’s written strike requirement in two 2013 cases.

The problem, however, as the Court noted, is that in the 2014 case of Sluss v. Commonwealth, the Court granted a new trial to Sluss when he argued he “substantially complied” with Gabbard by identifying orally on the record the names of the jurors he would have struck had he been granted additional peremptory strikes, which names included a juror who ultimately sat on the jury.  The Sluss Court specifically noted that “[w]e agree” the oral naming procedure utilized by Sluss was “enough to preserve his challenge under Shane and Gabbard.”  Later, two Kentucky Court of Appeals cases and one Supreme Court case noted it was sufficient to preserve a juror challenge to state the challenge verbally or in writing.

The Floyd Court, however, noted that in hindsight Sluss was really about different issue: “Sluss resulted in a major sea change in the Gabbard jurisprudence when at its core it was not even about Gabbard ,” but about juror rehabilitation.  Thus, it declared, the issues surrounding its own approved alteration of Gabbard’s written strike requirement had not been “sufficiently fleshed out.”  So, the Floyd Court set out to “establish a procedure structured enough to provide fairness to all parties, clear enough that litigants and courts may follow it without issue, and yet broad enough that each court can retain many of their own practices.”  The enumerated procedure to preserve error for an improperly empaneled was described by the Court as follows:

  • “First, the litigant must move to strike the problematic juror for cause and be denied the strike by the trial court.”
  • Second, “the litigant must use a peremptory strike to remove the juror from the venire and show in writing on the strike sheet that the peremptory strike was used for that juror, and exhaust all other peremptory strikes.”
  • Third, “the litigant is required to clearly write on her strike sheet the juror she would have used a peremptory strike on had she not been forced to use the strike on the juror that she believes should have been struck for cause.”
  • Fourth, and never previously addressed by the Court, “the number of jurors a litigant identifies on her strike sheet must be the same number of jurors the litigant originally moved to strike for cause.  Failure to abide by this rule will render the error unpreserved.”
  • Fifth, a litigant must “make her would-be peremptory strikes known before the jury is empaneled.  And…at least one of the jurors identified by the litigant must ultimately sit on the jury.”

The Floyd Court noted “we now overrule Sluss prospectively, only insofar as it holds that stating would-be peremptory strikes orally on the record constitutes substantial compliance with Gabbard and is therefore sufficient to preserve the error.”  The Court noted that the revision was necessary because Sluss’s modification of Gabbard in this manner had “inadvertently opened the door for blatant unfairness to arise during the peremptory strike process.”  This unfairness was opined to be:

[a]llowing a litigant to forego writing her strikes down, and instead only identify them orally after the other party has, so to speak, shown its hand by identifying peremptory strikes.  This allows a litigant to manufacture an appealable issue by choosing a juror who was not struck by the other party, thereby increasing the chances that the juror the litigant identifies ultimately sits on the jury.

The dissent found this characterization itself to be unfair under existing precedent:

Today, the majority imposes the rule Appellees advocate.  The new rule requires litigants to identify precisely the same number of jurors they would have used peremptory challenges on as the number of jurors they challenged for cause.  Nothing in our prior jurisprudence requires such a one-to-one ratio.  It is inappropriate for the majority to impose the rule it creates today upon Neal.  She properly preserved this issue for our review under our precedent as it existed at the time.

The dissent emphasized Gabbard’s language suggested litigants were appropriate to name prospective strikes on more than a one-to-one raio: “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.”  The Court of Appeals had also believed the plaintiff had complied with the plain language of existing precedent: “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.”

Finally, the dissent argued that the failure to grant the for-cause strike amounted to a structural error regardless of preservation and this deprived the plaintiff of her constitutional right to an impartial jury.

The Supreme Court found it to be significant that “we have no way of knowing which juror she would have picked if the proper procedure was followed.”  Interesting in this debate over fairness, is that nowhere in either the Supreme Court’s or Court of Appeals’ opinion is there any suggestion that defense counsel objected on the record to plaintiff’s identification of two jurors she would have struck with peremptory strikes (arguably appropriate under Gabbard as the dissent points out) on the grounds that plaintiff only had one peremptory strike remaining.  If a one-to-one ration was required and the overarching concern was one of fairness, why then was the defense not required to object to the plaintiff naming two jurors instead of one?  In other words, if the defense itself had invited the error by not complaining at the time that the plaintiff had failed to pick a horse and this was, indeed, the “proper procedure,” why then should the defense benefit from circumstances to which it did not object given the then-existing approval of verbal strikes stated in Sluss and other more recent cases?

Regardless of the ultimate outcome and questions of fairness, litigants in Kentucky now have more detailed guidance to follow in this arena.  And, it is certainly possible that the plaintiff in Floyd v. Neal will seek rehearing or pursue further review in the United States Supreme Court given the concerns over the propriety of retroactive application of a procedure affecting the substantial right to obtain a fair and impartial jury trial.  Therefore, litigants should continue to monitor the case on appeal.  The opinion can be read here.




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