Bradford, J.
Case Summary
In January of 2016, Tammi Clark, a personal representative of the deceased Kandace Pyles’s estate, filed a wrongful death suit against Dr. Samer Mattar, M.D. During voir dire, one of the veniremen indicated that he would be unable to sit on a jury asked to determine damages for non-economic loss, which, inter alia, Clark was seeking. When the trial court denied Clark’s motion to strike the venireman for cause, she used one of her peremptory challenges to remove him, a challenge she later could not use to remove another objectionable juror. The jury returned a verdict for Dr. Mattar, and the trial court entered judgment in his favor. Clark contends that the trial court abused its discretion in denying her for-cause challenge to Miller. Because we agree, we reverse the judgment of the trial court and remand for a new trial
…
We have little trouble concluding that a stated refusal to participate in a determination of non-economic damages amounts to bias or prejudice against a plaintiff seeking such damages. Although Miller certainly expressed no bias or prejudice against Clark in particular, his statements would apply to any plaintiff seeking damages for non-economic loss in a lawsuit, a class to which Clark clearly belonged. Put another way, even though Miller’s bias or prejudice seems to be against the award of a particular type of damages in a lawsuit, his refusal to consider such damages harms a party seeking them, like Clark. Even though there is no indication that Miller had any particular issue with Clark personally, we conclude that Miller’s unequivocal statement that he could not render a verdict on damages in this lawsuit nonetheless amounts to bias or prejudice against her as a party.
Dr. Mattar argues that Miller’s responses during voir dire do not amount to a refusal to follow the law, indicating nothing more than discomfort at determining damages. Although it is true that “mere discomfort is not one of the enumerated grounds for removal for cause[,]” Oswalt v. State, 19 N.E.3d 241, 250 (Ind. 2014), Miller’s responses, as mentioned, went beyond stating mere discomfort, clearly expressing an inability or refusal to follow the law. Moreover, Miller’s responses stand uncontradicted, as no attempt (much less a successful one) was made by Dr. Mattar’s trial counsel to rehabilitate Miller.
Dr. Mattar also contends that, as a whole, the record indicates that Miller was, in fact, ready and willing to apply the law impartially. To support this contention, Dr. Mattar notes that, when asked if the “scales [are] level right now[,]” Miller responded, “[t]hey are level now” and stated, “I try to be as fair as I can to everybody.” Tr. Vol. II p. 7. Dr. Mattar also notes that when Clark’s counsel initially asked the venire, “Is there anybody here that would have difficulty with returning a verdict assuming that we prove both liability and we establish the damages by the greater weight of the evidence[?]”, Miller did not respond in the negative. Tr. Vol. II p. 16. All of this, however, occurred before Clark’s counsel broached the subject of non-economic damages, at which time Miller’s viewpoint changed considerably. To the extent that Miller expressed a willingness to follow the law, he did so only until he found out what the law actually was, which caused him to unequivocally withdraw that willingness, a position from which he did not waver. Considering the timing of Miller’s expressions of willingness to be impartial and follow the law, they do not help Dr. Mattar.
….
While acknowledging the general rule as laid out in Oswalt and Whiting, Dr. Mattar contends that Clark has failed to show prejudice in this case because the jury never reached the question of damages. Put another way, Dr. Mattar seems to be arguing that Clark was not prejudiced by any error that might have occurred because she would have lost anyway. Dr. Mattar, however, does not explain how Miller’s feelings about damages played any part in the jury’s verdict, as Miller was not on the jury, and would not have been in any event. As it happened, the objectionable Juror #3 was on the jury as a result of the trial court’s erroneous denial. It may be that the result would have been the same without Juror #3 on the jury, but this is just speculation. Dr. Mattar seemingly would have us create an exception to the prejudice rule in Oswalt for parties that lost at trial, which is something we decline to do. Because Clark has established that the trial court abused its discretion in denying her motion to strike Miller for cause and she has demonstrated prejudice pursuant to Oswalt, we reverse the judgment of the trial court and remand for a new trial.
The judgment of the trial court is reversed, and we remand with instructions.
Mathias, J., and Pyle, J., concur