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Jack v. Booth

Court of Appeals of Iowa

January 23, 2014

MARY E. JACK, Individually and as Parent and Next Friend of ELLA JACK and OWEN JACK, and LAWRENCE LAIRD JACK III, Individually, Plaintiffs-Appellants,
v.
JENNIFER R. BOOTH, M.D., and JOHN GERRAD SWEETMAN, M.D., Defendants-Appellees

Editorial Note:

This decision has been referenced in a "Decisions Without Published Opinions" table in the North Western Reporter.

Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge. The plaintiffs appeal denial of their motions for mistrial and new trial after one of the defendant doctors in a medical malpractice suit rendered aid to a juror who fainted during trial.

Eric M. Updegraff of Stolze & Updegraff, P.C., Des Moines, for appellants.

Robert C. Rouwenhorst of Rouwenhorst & Rouwenhorst, P.C., West Des Moines, for appellee Sweetman.

Thomas J. Shomaker and Mary M. Schott of Sodoro Daly Shomaker & Selde, PC, LLO, Omaha, Nebraska, for appellee Booth.

Heard by Doyle, P.J., and Tabor and Bower, JJ.

OPINION

DOYLE, P.J.

The plaintiffs appeal the district court's denial of their motions for mistrial and new trial after one of the defendant doctors in this medical malpractice suit rendered aid to a juror who fainted during trial, and the jury ultimately rendered a defense verdict. We reverse and remand for retrial.

I. Background Facts and Proceedings .

Mary Jack, individually and as parent and next friend of her minor children, Ella and Owen, and Mary's husband, Lawrence, brought a medical malpractice action against Drs. Booth and Sweetman.[1] The case went to trial before a Polk County jury in November 2012. Two days into the trial a juror fainted. The district court described the incident as follows:

I just want to make the record clear as to exactly what happened . . . . What occurred was one of the jurors fainted while she was sitting in her chair in the jury box, and it wasn't noticed immediately by the court when it [happened]. The juror next to her was trying to, you know, revive her, wake her up, so to speak.
At that point everyone in the courtroom noticed what was going on. Dr. Sweetman got up from where he's sitting in the gallery and went over into the jury box and began treating, so to speak, the juror. And he was talking to her . . . .
. . . .
And, you know, [Dr. Sweetman] was assessing [the juror's] condition, and she clearly had fainted and was ill. And she eventually laid down on one of the pews in the courtroom, and within the next [fifteen] or [twenty] minutes, she was okay, and we took our lunch break. When this happened, the rest of the jurors were obviously all present . . . standing and sitting in the jury box, obviously observing what was going on. But within two or three minutes of this beginning, the court directed the rest of the jurors to go to their lounge and they did. So they did not observe the entire--or were not in the courtroom during the entire episode.

Thereafter, Jack moved for a mistrial, stating in part:

Personally I'm not trying to criticize Dr. Sweetman. He did exactly what I would hope he would do in that circumstance. Obviously, the juror's health and well-being is much more important than this jury trial, and we're glad that he did that. But it does create a problem for our case where we don't think that jurors who have witnessed him in action, for lack of a better term, are going to be able to be unbiased or unprejudiced by that when considering a medical malpractice action against him.

The doctors resisted the motion, citing the considerable time and effort put into the case up to that point, as well as the doctors' desire for timely closure of the matter. They suggested the court instead give a cautionary instruction or some kind of admonition to the jury. Noting mistrial is an extreme remedy, the district court concluded that a fair remedy would be to excuse the juror that fainted and then proceed with the trial with the remaining jurors. The court ...


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