But plaintiffs lawyers are having a harder time finding jurors who aren’t scarred by the carnage.
As doctors stage walkouts, protest at courthouses and lobby legislators and patients, lawyers are trying to expand voir dire to measure the effect of the publicity on venire members’ objectivity.
In a Bergen County, N.J., medical malpractice case, for example, a judge this month granted, in large part, plaintiffs lawyer John Blume’s motion to use a questionnaire to probe juror attitudes about tort reform. Blume says a motivating factor for his request was a recent focus group in another case, which found that some people believe caps on damages exist.
“We have all this business with doctors striking and the people being concerned about whether their doctor is going to be able to treat them or whether their insurance rates are going to go up,” says Blume, of Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte in Chatham.
Judge Charles Walsh, who posted his opinion in Cipriani v. Gagliardi on the judiciary’s Web site, is only the most visible example that judges are weighing the pros and cons of broadened voir dire to test the effects of public attention to the tort reform issue.
Plaintiffs attorney Kenneth Andres Jr. says a Burlington County judge asked prospective jurors their views on tort reform and allowed lawyers to ask limited follow-up questions outside the presence of other prospective jurors in a case he tried last spring, Gillece v. O’Connor.
The expanded questioning showed that “a good chunk of the jury pool is polluted,” notes Andres, of Haddonfield’s Andres & Berger. Several prospective jurors were removed because they said they were not willing to award more than $250,000 or so, in effect imposing their own caps. It was not even a medical malpractice case but one for auto accident injuries, he says.
The bias went both ways. Prospective jurors also were stricken for the view that “there was not enough money in the world to compensate injured people,” says Andres, who declines to name the judge.
The impaneled jury awarded $1.88 million on May 2 to Andres’ client, John Gillece, for a leg fracture and traumatic brain injury. The verdict was $1.38 million for pain and suffering and $500,000 for future lost wages.
“[T]he insurance industry and the medical society have been able to influence prospective jurors and the only way to have a fair trial is to have real voir dire,” says Andres.
His adversary, Thomas Masick, a partner with Parker McCay & Criscuolo in Marlton, did not return calls for comment.
Another plaintiffs lawyer, Brian Drazin, president of the Association of Trial Lawyers of America-New Jersey, says that trying an Ocean County medical malpractice case during a doctors’ strike led to a no-cause verdict last February, despite some expanded voir dire.
Drazin says he notified Presiding Civil Part Judge Frank Buczynski ahead of time that it might not be a good time to try medical malpractice cases and moved to adjourn his own trial.
Judge Edward Oles denied the motion and Drazin then tried to get him to quiz prospective jurors on their attitudes about doctors’ strikes and tort reform. Oles boiled Drazin’s questions down to two or three asking whether prospective jurors had heard about the impending strike and whether they could be fair to both sides, says Drazin, a partner with Drazin & Warshaw in Red Bank.