Prospective juror’s criticism of lawyer OK in verdict for hospital

When a prospective juror in a wrongful death lawsuit against a hospital said he believed a lawyer was suing to make money, that attorney’s failure to ask the judge for an admonishment of the jury pool waived her later argument for a mistrial, the Court of Appeals ruled Monday.

Wilbur Upham went to the emergency room of Morgan County Hospital on April 16, 1997, complaining of vomiting, abdominal pain, diarrhea and chills and was dismissed with a diagnosis of acute gastroenteritis. He went to a doctor elsewhere later that day, and was found dead in a chair that night due to a ruptured abdominal aortic aneurism.

After a medical review board ruled the evidence supported a conclusion that the hospital met the applicable standard of care, Upham’s family sued the hospital, and a jury in 2011 ruled for the hospital in Maria Upham, as Surviving Spouse and Personal Rep. of the Estate of Wilbur A. Upham, Deceased v. Morgan County Hospital, Richard J. Eisenhut, M.D., Unity Physicians, Kendrick Family Practice, et al., 55A01-1202-CT-53.

On appeal, the estate argued the trial court should have declared a mistrial after a prospective juror identified as a former attorney retired from Eli Lilly opined that malpractice suits were “the goose that laid the golden egg for trial attorneys and specifically plaintiff attorneys.” The plaintiff’s attorney continued, asking the would-be juror if he believed she was “taking this case just because I want an attorney’s figure that I apparently don’t believe in the justice of that.”

Juror 35 replied, “I suspect you’re getting one-third of any … any judgment, so yes.”

“Only then did Counsel turn her attention to other prospective jurors. Upham’s counsel did not ask the trial court to admonish the prospective jurors regarding the statements. After Upham’s counsel spoke with some other prospective jurors, Juror 35 was excused and Upham moved for a mistrial based on his statements,” Judge Melissa May wrote for the panel. “The trial court denied the motion, saying Upham’s ‘counsel invited much of that.’

“We hold Upham has waived her allegation of error for appeal because she did not ask the trial court to admonish the venire,” May wrote.

The court also found no abuse of discretion regarding jury instructions or the trial court’s limitation on discovery of interrogatories of Dr. Richard Eisenhut on whether he had been counseled for substance abuse, whether he had emotional, personal, psychiatric or family problems or a criminal record. That information had been considered by the trial court in camera, which the COA previously upheld.

“We decline to revisit our decision that release of the information could compromise the Appellees’ legitimate interests in non-disclosure of privileged or confidential information and that the information would be unlikely to support the issues Upham asserted in her motion to release the information,” May wrote.