April, 2021

Gerry Toner and Winfield Frankel recently prevailed at the Kentucky Supreme Court, affirming a defense verdict returned in 2017. The appellate issue concerned jury selection.

Plaintiff’s suit alleged negligence against a hospital and its employed physician. At trial, two potential jurors acknowledged a patient relationship with other employed physicians but indicated they had no knowledge of, previous relationship with, or common tie to the defendant doctor. The trial court denied plaintiff’s motions to strike these jurors for cause. After the peremptory strikes were exercised, plaintiff’s counsel made an oral statement that she would have used her peremptory strikes on others, whom she identified but neglected to note on her strike sheet.  Those others were ultimately empaneled.  The jury returned a defense verdict.

Plaintiff appealed the trial court’s decision to not strike them for cause. The Court of Appeals found that this objection was not properly preserved under Gabbard v. Commonwealth 297 S.W.3d 844 (Ky. 2009) as plaintiff failed to note her objection on the strike sheet.  In the interim, the Supreme Court issued its opinion in Floyd v. Neal, 590 S.W. 3d 245, (Ky. 2019) which required a litigant to write on her strike sheet the juror she would have struck. Plaintiff argued that Floyd did not affect her case because it was rendered after the trial.

The Supreme Court granted her motion for discretionary review, and remanded the matter back to the Court of Appeals for consideration in light of Floyd.  The Court of Appeals affirmed the trial court’s ruling. In a published opinion the Court of Appeals ruled that the relationship between a potential juror and a healthcare system was distinguishable from other patient-physician relationships. Plaintiff again moved the Supreme Court for discretionary review.  This second motion was denied, but the Supreme Court de-published the Court of Appeals opinion.

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