Can You Get an Impartial Jury in the Age of Tort Reform?

The Impact of Presidential Remarks

During the 2004 presidential campaign, the issue of medical malpractice reform was raised almost daily and at nearly every campaign stop. The political rhetoric received considerable media attention, in newspapers and magazines, on local and national news telecasts, and on the Internet. The potential influence of the President's remarks led at least two courts to permit attorneys to question jurors specifically about their attitudes on medical malpractice cases and tort reform and whether they were influenced by those remarks.

In one of those cases, Phillips v. Hanna, 67 Pa. D. & C. 4th 449 (2004), attorneys for the infant plaintiff alleged that her physician and nurses failed to diagnose her dislocated hip soon after she was born. She was not diagnosed until 4 years later. Had she been diagnosed sooner, the lawyers contended, her treatment would have been less invasive and her outcome would have been better. The case was scheduled to go to trial Sept. 7, 2004. On Sept. 3, President Bush spoke at a local campaign rally during which he made several remarks about “junk lawsuits,” the unfairness of the civil justice system in medical malpractice cases, and the “need [for] medical liability reform now.” Id. at 452-453. The text of the President's remarks was published the next day in a local newspaper.

In light of the President's remarks and the local media attention they received, the plaintiffs' lawyers sought a continuance of the trial, arguing that she would “be unable to obtain a fair and equitable trial … in light of President Bush's visit … the contents of this speech, and how the contents of this speech will be disseminated across [the] county.” Id. at 453.

Before ruling on the motion for a continuance, the court directed the plaintiff to question prospective jurors during voir dire regarding their knowledge of the President's remarks and the effect those comments may have had on them. In permitting the plaintiffs to question the jury on those specific issues, the court cited a line of cases over the last 15 years from numerous jurisdictions. See, eg, Irish v. Gimbel, 1997 ME 50, 691 A.2d 664 (medical malpractice jurors were questioned during jury selection concerning their feelings on “issues such as tort reform and problems with the court system.”); Tighe v. Crosthwait, 665 So.2d 1337 (Miss. 1995) (the trial court erred by refusing to allow the medical malpractice plaintiff to conduct voir dire to determine if prospective jurors had been exposed to and affected by a media campaign on “medical malpractice crisis” and “tort reform,” since that line of questioning “may have exposed juror biases affecting their ability to render a fair and impartial verdict”).

The plaintiff's lawyers then questioned the prospective jurors about their attitudes toward medical malpractice cases and tort reform, whether they were exposed to media coverage of the President's campaign speech, and what impact, if any, the speech had had on them. That voir dire revealed that fewer than half the jurors had seen, heard, or read about the President's remarks, and none of them said that the President's remarks would affect their ability to decide the case based on the evidence and the law. Some of the jurors, however, revealed their opposition to medical malpractice claims, generally, and admitted that they could not sit as fair and impartial jurors in such a case. Those jurors were removed for cause.

Lopez-Stayer v. Pitts

Another case in which voir dire on the subject of the President's stance on tort reform was allowed was Lopez-Stayer v. Pitts, 93 P.3d 904 (Wash. App. 2004). In Lopez-Stayer, plaintiff alleged that her physician negligently managed her baby's delivery, resulting in permanent injury to the baby's nerves. Due to publicity over the so-called medical malpractice crisis and its effect on the health care industry, including remarks by President Bush in his State of the Union Address, plaintiff's counsel sought to ask prospective jurors about their opinions regarding medical malpractice cases and their exposure to publicity regarding tort reform efforts. The court permitted wide-ranging voir dire on the topics of claims, frivolous lawsuits and the medical malpractice crisis generally. The court noted that “the jury panel (as part of the general public) had been inundated with publicity about the medical malpractice crisis and its effect on the health care industry, including recent comments by the President of the United States in his State of the Union Address.” Id. at 908. However, the court did not allow plaintiff's counsel to refer to a malpractice insurance crisis because of a prohibition against raising insurance issues before the jury.

The Impact of Legislation

Not only was tort reform popular on the presidential campaign trail in 2004, but medical malpractice reform initiatives were on the ballot in some states and considered by legislatures in others during the year. Those election initiatives and proposed legislation also received considerable media attention and were the subject of well-financed advertising campaigns.

The impact of one of those legislative initiatives served as the basis for a plaintiff's request for specific voir dire in the federal district court case of Anderson v. Dixon, 334 F. Supp. 2d 928 (S.D. Miss. 2004). In Anderson, the plaintiff sought permission to ask jurors about their attitudes toward tort reform, frivolous lawsuits and whether there was an “insurance crisis.” The plaintiff made this request because the state legislature was considering various tort reform measures, including limits on economic damages and punitive damages in certain cases. Those measures received considerable media attention and ultimately were enacted into law. Because of the widespread attention those issues had received, the court allowed the plaintiff to question prospective jurors on those issues to determine any bias. Nonetheless, the court asserted its role in limiting and controlling the voir dire.

Physician Strikes and Other Media Reports

In some states in which the President's remarks or proposed legislation may not have served as a reminder of tort reform efforts, actions by physicians achieved that objective. In New Jersey, for example, physicians went out on strike to protest rising malpractice insurance premiums caused, they claimed, by frivolous lawsuits and rising malpractice verdicts. The doctors insisted on numerous reforms, including a cap on pain and suffering damages. Their protest activities were widely covered by the local and national media.

Because of the potential influence such publicity could have on prospective jurors, plaintiffs' attorneys requested that courts ask jurors about their attitudes toward tort reform and the alleged medical malpractice crisis. A recent unpublished opinion in New Jersey, while acknowledging that plaintiffs may question prospective jurors on those issues, indicated, however, the extent of court-imposed limitations on voir dire on that topic.

In New Jersey, the court, not the attorneys, questions jurors during voir dire. Courts may, but need not, consider questions submitted by counsel. In Cipriani v. Gagliardi, BER-L-363-01 (2004), the infant plaintiff allegedly sustained a nerve injury during delivery. The parties submitted questions that they wanted the trial judge to ask the jurors during voir dire. A number of questions addressed the medical malpractice crisis specifically. For instance, the plaintiff sought inclusion of the following the questions: 1) Are you aware there have been physicians' strikes that took place in New Jersey this year? 2) Were you affected in any way by the physicians' strikes? and 3) What did you think about the physicians' strikes? Instead of allowing those three questions, the court permitted the following, more general question: Have you, members of your family or close friends experienced a situation where medical care was unavailable or was threatened to be unavailable?

In addition, the plaintiff sought specific questions about jurors' experience with newspaper and magazine articles, advertisements, radio programs and television news programs dealing with medical malpractice, frivolous lawsuits, tort reform or a medical malpractice crisis. Again, rather than allowing those specific questions, the court permitted only the following: “Have you read anything or seen anything on television which suggests that the present way we deal with allegations of medical negligence should be changed? If “yes,” then: What was the subject of the media presentation, and when and where did it appear? Did it influence you in any way? (Explain).”

Conclusion

To ensure a fair and impartial jury in a medical malpractice case, a plaintiff's attorney should be permitted to determine whether a potential juror will be biased against his or her client. Admittedly, jury voir dire is, at best, an inexact science: No line of questioning is guaranteed to keep every biased juror off a jury. However, more specific questions will enhance the likelihood of selecting an unbiased jury. If counsel can ask specific questions about a juror's view of medical malpractice cases, tort reform initiatives and the media coverage of the medical malpractice crisis, it is more likely that jurors' true feelings will be revealed. That is the benchmark for selecting a fair and impartial jury.

Parties to a medical malpractice trial seek fair and impartial jurors to render a verdict. Jurors must decide a case based on the evidence presented and the court's instructions. A juror's impartiality serves as the bedrock of our civil justice system. Should a biased juror sit in judgment, the process becomes tainted and the verdict is not credible.

To ensure a fair and impartial jury, most jurisdictions permit voir dire of prospective jurors. During voir dire, jurors are asked questions that allow the court and parties to determine whether a juror may be biased. In many states, attorneys ask jurors questions during voir dire. In some states, however, the court asks jurors questions, frequently with the parties' input. During the process, the questions are often general and benign. In a typical malpractice case, for example, jurors are asked about their education and employment, their experience with the health-care professions, and their knowledge of and experience with the medical condition involved in the particular case. Those questions rarely meet with opposition.

In recent years, however, plaintiffs in medical malpractice cases have sought to ask jurors about their attitudes regarding “tort reform” and the so-called “medical malpractice crisis.” These efforts have increased as those issues have moved to the political front burner, receiving considerable media coverage. Only a few courts have considered the validity of such questions, but of those that have, plaintiffs generally have been permitted to inquire as to a potential juror's views on those issues, though some courts have limited the line of questioning.

The Impact of Presidential Remarks

During the 2004 presidential campaign, the issue of medical malpractice reform was raised almost daily and at nearly every campaign stop. The political rhetoric received considerable media attention, in newspapers and magazines, on local and national news telecasts, and on the Internet. The potential influence of the President's remarks led at least two courts to permit attorneys to question jurors specifically about their attitudes on medical malpractice cases and tort reform and whether they were influenced by those remarks.

In one of those cases, Phillips v. Hanna, 67 Pa. D. & C. 4th 449 (2004), attorneys for the infant plaintiff alleged that her physician and nurses failed to diagnose her dislocated hip soon after she was born. She was not diagnosed until 4 years later. Had she been diagnosed sooner, the lawyers contended, her treatment would have been less invasive and her outcome would have been better. The case was scheduled to go to trial Sept. 7, 2004. On Sept. 3, President Bush spoke at a local campaign rally during which he made several remarks about “junk lawsuits,” the unfairness of the civil justice system in medical malpractice cases, and the “need [for] medical liability reform now.” Id. at 452-453. The text of the President's remarks was published the next day in a local newspaper.

In light of the President's remarks and the local media attention they received, the plaintiffs' lawyers sought a continuance of the trial, arguing that she would “be unable to obtain a fair and equitable trial … in light of President Bush's visit … the contents of this speech, and how the contents of this speech will be disseminated across [the] county.” Id. at 453.

Before ruling on the motion for a continuance, the court directed the plaintiff to question prospective jurors during voir dire regarding their knowledge of the President's remarks and the effect those comments may have had on them. In permitting the plaintiffs to question the jury on those specific issues, the court cited a line of cases over the last 15 years from numerous jurisdictions. See, eg, Irish v. Gimbel , 1997 ME 50, 691 A.2d 664 (medical malpractice jurors were questioned during jury selection concerning their feelings on “issues such as tort reform and problems with the court system.”); Tighe v. Crosthwait , 665 So.2d 1337 (Miss. 1995) (the trial court erred by refusing to allow the medical malpractice plaintiff to conduct voir dire to determine if prospective jurors had been exposed to and affected by a media campaign on “medical malpractice crisis” and “tort reform,” since that line of questioning “may have exposed juror biases affecting their ability to render a fair and impartial verdict”).

The plaintiff's lawyers then questioned the prospective jurors about their attitudes toward medical malpractice cases and tort reform, whether they were exposed to media coverage of the President's campaign speech, and what impact, if any, the speech had had on them. That voir dire revealed that fewer than half the jurors had seen, heard, or read about the President's remarks, and none of them said that the President's remarks would affect their ability to decide the case based on the evidence and the law. Some of the jurors, however, revealed their opposition to medical malpractice claims, generally, and admitted that they could not sit as fair and impartial jurors in such a case. Those jurors were removed for cause.

Lopez-Stayer v. Pitts

Another case in which voir dire on the subject of the President's stance on tort reform was allowed was Lopez-Stayer v. Pitts , 93 P.3d 904 (Wash. App. 2004). In Lopez-Stayer, plaintiff alleged that her physician negligently managed her baby's delivery, resulting in permanent injury to the baby's nerves. Due to publicity over the so-called medical malpractice crisis and its effect on the health care industry, including remarks by President Bush in his State of the Union Address, plaintiff's counsel sought to ask prospective jurors about their opinions regarding medical malpractice cases and their exposure to publicity regarding tort reform efforts. The court permitted wide-ranging voir dire on the topics of claims, frivolous lawsuits and the medical malpractice crisis generally. The court noted that “the jury panel (as part of the general public) had been inundated with publicity about the medical malpractice crisis and its effect on the health care industry, including recent comments by the President of the United States in his State of the Union Address.” Id. at 908. However, the court did not allow plaintiff's counsel to refer to a malpractice insurance crisis because of a prohibition against raising insurance issues before the jury.

The Impact of Legislation

Not only was tort reform popular on the presidential campaign trail in 2004, but medical malpractice reform initiatives were on the ballot in some states and considered by legislatures in others during the year. Those election initiatives and proposed legislation also received considerable media attention and were the subject of well-financed advertising campaigns.

The impact of one of those legislative initiatives served as the basis for a plaintiff's request for specific voir dire in the federal district court case of Anderson v. Dixon , 334 F. Supp. 2d 928 (S.D. Miss. 2004). In Anderson, the plaintiff sought permission to ask jurors about their attitudes toward tort reform, frivolous lawsuits and whether there was an “insurance crisis.” The plaintiff made this request because the state legislature was considering various tort reform measures, including limits on economic damages and punitive damages in certain cases. Those measures received considerable media attention and ultimately were enacted into law. Because of the widespread attention those issues had received, the court allowed the plaintiff to question prospective jurors on those issues to determine any bias. Nonetheless, the court asserted its role in limiting and controlling the voir dire.

Physician Strikes and Other Media Reports

In some states in which the President's remarks or proposed legislation may not have served as a reminder of tort reform efforts, actions by physicians achieved that objective. In New Jersey, for example, physicians went out on strike to protest rising malpractice insurance premiums caused, they claimed, by frivolous lawsuits and rising malpractice verdicts. The doctors insisted on numerous reforms, including a cap on pain and suffering damages. Their protest activities were widely covered by the local and national media.

Because of the potential influence such publicity could have on prospective jurors, plaintiffs' attorneys requested that courts ask jurors about their attitudes toward tort reform and the alleged medical malpractice crisis. A recent unpublished opinion in New Jersey, while acknowledging that plaintiffs may question prospective jurors on those issues, indicated, however, the extent of court-imposed limitations on voir dire on that topic.

In New Jersey, the court, not the attorneys, questions jurors during voir dire. Courts may, but need not, consider questions submitted by counsel. In Cipriani v. Gagliardi, BER-L-363-01 (2004), the infant plaintiff allegedly sustained a nerve injury during delivery. The parties submitted questions that they wanted the trial judge to ask the jurors during voir dire. A number of questions addressed the medical malpractice crisis specifically. For instance, the plaintiff sought inclusion of the following the questions: 1) Are you aware there have been physicians' strikes that took place in New Jersey this year? 2) Were you affected in any way by the physicians' strikes? and 3) What did you think about the physicians' strikes? Instead of allowing those three questions, the court permitted the following, more general question: Have you, members of your family or close friends experienced a situation where medical care was unavailable or was threatened to be unavailable?

In addition, the plaintiff sought specific questions about jurors' experience with newspaper and magazine articles, advertisements, radio programs and television news programs dealing with medical malpractice, frivolous lawsuits, tort reform or a medical malpractice crisis. Again, rather than allowing those specific questions, the court permitted only the following: “Have you read anything or seen anything on television which suggests that the present way we deal with allegations of medical negligence should be changed? If “yes,” then: What was the subject of the media presentation, and when and where did it appear? Did it influence you in any way? (Explain).”

Conclusion

To ensure a fair and impartial jury in a medical malpractice case, a plaintiff's attorney should be permitted to determine whether a potential juror will be biased against his or her client. Admittedly, jury voir dire is, at best, an inexact science: No line of questioning is guaranteed to keep every biased juror off a jury. However, more specific questions will enhance the likelihood of selecting an unbiased jury. If counsel can ask specific questions about a juror's view of medical malpractice cases, tort reform initiatives and the media coverage of the medical malpractice crisis, it is more likely that jurors' true feelings will be revealed. That is the benchmark for selecting a fair and impartial jury.