Brown By and Through Webb v. Blackwood

• Decision Date: 08 May 1997
• Docket Number: Nos. 91-CA-00721-SC,92-CA-01106-SCT,s. 91-CA-00721-SC
• Parties: Tryvale Levene BROWN, a Minor, By and Through His Mother and Next Friend, Bobbie Jean Brown WEBB, and Bobbie Jean Brown Webb, Individually v. Don J. BLACKWOOD, M.D. (Two Cases).
• Court: Mississippi Supreme Court

Page 763

697 So.2d 763

Tryvale Levene BROWN, a Minor, By and Through His Mother and Next Friend, Bobbie Jean Brown WEBB, and Bobbie Jean Brown Webb, Individually v. Don J. BLACKWOOD, M.D. (Two Cases).

Nos. 91-CA-00721-SCT, 92-CA-01106-SCT.

Supreme Court of Mississippi.

May 8, 1997.

Levi Boone, Cleveland; Isaac K. Byrd, Jr., Byrd & Associates, Jackson, for Appellants.

L. Carl Hagwood, Roy D. Campbell, III, Campbell Delong Hagwood & Wade, Greenville, for Appellee.

Before DAN LEE, C.J., and PITTMAN and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

I.

INTRODUCTION

Tryvale Brown was born at the Bolivar County Hospital with injuries arising from

"birth-related trauma." His mother sued the delivering physician for medical malpractice. A first trial ended in mistrial when it became apparent that a number of the jurors had some connection with the doctor and/or his clinic. Before the second trial, questionnaires were sent to prospective jurors to identify those persons with connections to the doctor or Clinic. The judge permitted both parties to strike for cause any such person under Hudson v. Taleff, 546 So.2d 359 (Miss.1989). The second trial ended in a verdict for the defendant. Some time after filing their appeal, the plaintiffs obtained a hearing on a motion to supplement the record. At the hearing, they were permitted to put on proof of the race of jurors peremptorily struck by the doctor. The doctor was permitted to proffer race-neutral reasons for his strikes. The plaintiffs seek a new trial, alleging the following errors:

I. WHETHER THE COURT ERRED IN APPLYING HUDSON V. TALEFF TO THIS CASE?

II. WHETHER THE PLAINTIFFS ARE ENTITLED TO A NEW TRIAL UNDER THE MANDATES OF EDMONSON V. LEESVILLE CONCRETE CO. INC.

III. WHETHER THE PLAINTIFFS ARE ENTITLED TO A NEW TRIAL BASED UPON THE IMPROPER SUBMISSION TO THE JURY OF THE MANSLAUGHTER CONVICTION AND UPON MISCONDUCT OF COUNSEL?

IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE DEFENDANT/APPELLEE TO ADDUCE EVIDENCE AT THE HEARING ON THE PLAINTIFF/APPELLANT'S MOTION FOR LEAVE TO CORRECT OMISSION AND SUPPLEMENT APPEAL RECORD REGARDING THE RACE OF THE PROSPECTIVE JURORS PEREMPTORILY CHALLENGED BY THE PLAINTIFF/APPELLANT.

V. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE DEFENDANT/APPELLEE TO MAKE AN OFFER OF PROOF REGARDING ALLEGED RACE NEUTRAL BASIS FOR DEFENDANT/APPELLEE EXERCISE OF PEREMPTORY CHALLENGES TO PROSPECTIVE JURORS IN THE TRIAL OF THIS CASE.

Finding that the trial took proper steps to insure the selection of an impartial jury, and finding no reversible error, we affirm.

II.

FACTS AND PROCEDURAL HISTORY

Bobbie Jean Brown Webb ("Brown"), arrived at the Bolivar County hospital at 8:50 p.m. on November 1, 1986, complaining of "leaking water." Then seven months pregnant, Bobbie Jean was examined by the emergency room physician on duty, Dr. Don Blackwood ("Blackwood"), who admitted her to the hospital for observation. ¹ Blackwood states that he was informed at 9:25 p.m. that Brown had gone into labor. Tryvale Levene Brown was delivered breach by Blackwood, by 9:55 p.m. Tryvale was born with "birth-related trauma," specifically, cervical spinal cord injury resulting in total and permanent paralysis. Tryvale has remained hospitalized at the Pediatric Intensive Care Unit at the University Hospital almost his entire life.

On June 11, 1987, Brown plead guilty to a manslaughter charge arising from an automobile accident which had occurred on February 11, 1987.

On October 30, 1987, Brown filed a negligence action against Blackwood on behalf of Tryvale, and on her own behalf in the Bolivar County Circuit Court. She alleged that Blackwood had been negligent in failing to deliver Tryvale by Caesarian section, and his negligence had caused Tryvale's injuries. Blackwood's answer asserted there had been Trial was set for September 17, 1990. ²

insufficient time to assemble an operating room crew to perform a Caesarian.

On August 31, 1990, Blackwood filed a motion for a change of venue, on the grounds that either he or members of his Clinic had "seen, examined and treated virtually every man, woman and child in Bolivar County, or an immediate family member thereof," that all such persons would be excused from service, and that as a result, it would be impossible to select a fair jury.

A jury panel was qualified and sworn on September 17, 1990. The panel was asked if anyone had been treated by Blackwood or other doctors at the Clinic. It was determined (by counting a show of hands) that about half of the 90 prospective jurors had been treated at the Clinic. Blackwood's motion for change of venue was denied, and voir dire was conducted beginning on September 18, 1990. Further voir dire was conducted in chambers. The judge read Hudson v. Taleff, during lunch, and upon return to chambers, determined that he would strike all persons on the jury list who revealed a connection with the Family Clinic or Blackwood. This left 43 prospective jurors. Challenges for cause were made, as well as several peremptory challenges. At this point, Blackwood's attorney, Hagwood, stated that of the jurors tendered to him, ten were patients of the Clinic, but had failed to reveal this during questioning. The judge stated there had already been sufficient opportunity to question such persons, and took no action. The jury was sworn, and trial began.

Before trial the following day, September 19, 1990, Blackwood's attorneys again brought to the court's attention that a number of the jury members had been patients at the Clinic. Blackwood was questioned in chambers concerning his treatment of seven of the jurors. The jurors were then questioned by the judge individually, revealing that a number of them had been patients or were closely related to a patient of the Clinic. The defense again moved for a mistrial. The judge denied the motion, dismissed four jurors, and instructed the Clerk to issue summons for 50 more jurors.

The following day, September 20, 1990, the judge determined that he was required to declare a mistrial, rather than replace the dismissed jurors and proceeding.

In a motion for change of venue filed September 26, 1990, Blackwood stated that the Clinic had examined a total of 51,913 patients; that according to the 1990 census, there were 42,000 residents of Bolivar County; that of the first jury venire of 200, 76.6% of those available had been patients of the Clinic within the past four years; that of the second jury venire of 50, 87.5% of those available had been patients within the past four years. Blackwood noted the first mistrial, and again asserted that it would be impossible to have a jury venire which would fairly represent the residents of Bolivar County.

A hearing was held on the motion for change of venue on February 12, 1991, before Judge John Hatcher. Patsy Ferretti, a Clinic employee testified that the Clinic had treated 52,910 patients since opening in 1974; that of the first 200 names drawn for the jury for the first trial, 131 had been patients at the Clinic; of the 90 available, 72 had been patients of the Clinic; that of a second list of 50 possible jurors, forty had been patients of the Clinic; that of the 32 available, 28 had been patients within the past four years. Judge Hatcher denied the motion for change of venue, and directed the Clerk to draw a panel of 250 jurors. ³ He also stated that he "expect(ed) the attorneys for the defendant to report and identify those jurors that fit in the category of patients as defined in the Taleff decision." He directed that a "pre-voir dire" questionaire be submitted to prospective jurors "to determine whether or not they fit within the definition of a patient as set forth in the Taleff decision."

On February 13, 1991, Judge Hatcher granted Brown's motion in limine to exclude her manslaughter conviction from evidence. The judge also granted Brown's motion to amend her complaint to include only claims for her own mental anguish.

Voir dire for the second trial was conducted starting the afternoon of April 22, 1991. ⁴ All potential jurors were first questioned together (that is, both those who had indicated a relationship with the Clinic, and those who had not). Consulting the questionnaires and patient lists, the judge and lawyers then identified those persons having some connection with the Clinic, either as a patient, or as the close relative of a patient. ⁵ The judge then requested challenges for cause "other than the Taleff challenges." A number of jurors were dismissed for cause. The judge called on the plaintiffs "to exercise their Taleff challenges." The judge stated that he would sustain a challenge by either side to any individual who had been identified as a patient. Both sides then went through the list, with the judge sustaining all challenges to the numerous individuals who had been patients.

Brown's attorney then stated to the court that Blackwood had "excused each and every black juror and ha(d) not excused a single white juror," in violation of Batson. ⁶ Blackwood's attorney responded that Brown's challenges had all been against white individuals, with two exceptions, ⁷ and that he (Blackwood's attorney) had merely struck all remaining patients from the Clinic. The judge noted that both parties "were doing the same thing." The judge denied the Batson challenge, on the grounds that Batson did not apply to civil cases, and also on the grounds that all the challenges were valid under Taleff. The judge then requested peremptory challenges on the remaining 41 jurors. Brown's attorney made his four peremptory challenges, followed by Blackwood's attorney. Three alternates were also chosen, with each attorney exercising two peremptory strikes. ⁸

Before trial on April 23, 1991, the judge addressed a motion by Brown to strike claims in her amended complaint pertaining to physical damages or other expenses for care and treatment of Tryvale, as well as the value of her...