Zakour v. Ut Medical Group, Inc.

• Citation: 215 S.W.3d 763
• Parties: Patti ZAKOUR v. UT MEDICAL GROUP, INC., & Scott Craig, M.D.
• Decision Date: 22 January 2007
• Court: Supreme Court of Tennessee

215 S.W.3d 763

Patti ZAKOUR v. UT MEDICAL GROUP, INC., & Scott Craig, M.D.

Supreme Court of Tennessee, at Jackson.

November 14, 2006 Session Heard at Memphis.¹

January 22, 2007.

Daniel A. Seward, Memphis, Tennessee, for the appellants, Jacob Shores, Eric Nelson, Leif Nelson, and Misty Nelson.

John H. Dotson, Memphis, Tennessee, for the appellees, UT Medical Group, Inc., and Scott Craig, M.D.

OPINION

SHARON G. LEE, Sp.J., delivered the opinion of the Court, in which WILLIAM M. BARKER, C.J., and JANICE M. HOLDER, CORNELIA A. CLARK, and GARY R. WADE, JJ., joined.

The issue we review in this case is whether the Defendants exercised peremptory challenges during jury selection based on race and/or gender in a discriminatory manner contrary to the United States Supreme Court's holding in Batson v. Kentucky. The Defendants used six of their seven peremptory challenges to strike women from the jury panel, including the only African-Americans who were seated in the jury box. In response to the Plaintiff's race-based Batson challenge, the Defendants responded that one of the African-American women was dismissed because she had difficulty remembering the verdict in a previous civil jury case in which she had served as a juror and because she had a family history of cancer. As to the Plaintiff's gender-based Batson objection, the Defendants responded that the women were excused based on "experience and body mechanics." The trial court overruled the Plaintiff's objections and the trial proceeded. Following a defense verdict, the Plaintiff appealed, and the Court of Appeals affirmed the judgment. After careful review of the record and applicable authorities, we hold that the Defendants' stated reasons for exercising peremptory challenges to strike the African-Americans and women from the jury panel were insufficient to satisfy the requirements of Batson v. Kentucky. Because the trial court erred in overruling the Plaintiff's Batson objections, we reverse and remand this case to the trial court for a new trial.

I. Background

On June 2, 1998, Patti Zakour visited the Family Practice Center ("the clinic") operated by the University of Tennessee Medical Group in Covington, Tennessee. While examining Ms. Zakour, resident Dr. Nancy Rockstroh discovered a mass, about 1.5 centimeters in diameter, in Ms. Zakour's right breast. Dr. Rockstroh consulted with her supervisor, Dr. John Kelly, and they referred Ms. Zakour for a mammogram. When the mammogram was performed two days later, Dr. Soheil Hanna, the examining radiologist, interpreted the mass in Ms. Zakour's breast as "probably benign" and recommended a follow-up mammogram in six months. Ms. Zakour returned to the clinic for a follow-up appointment on July 6, 1998. Testimony presented at trial differed as to the course of conduct recommended by Dr. Rockstroh and her supervising physician, Dr. Scott Craig, on that day. Dr. Rockstroh and Dr. Craig testified that they offered Ms. Zakour the options of a surgical referral to biopsy the mass in her breast or a close clinical follow-up to see if the mass changed over time. According to the Defendants, Ms. Zakour chose the second option but then failed to return to the clinic in three months as directed. Ms. Zakour denied being told this and returned to the clinic eight months later, complaining that the mass in her breast had become larger. Following a biopsy Ms. Zakour was diagnosed with metastatic breast cancer.

On March 8, 2000, Ms. Zakour filed suit against Dr. Rockstroh, Dr. Craig, Dr. Kelly, UTMG a/k/a Family Practice Center ("UTMG"), Baptist Memorial Hospital-Covington, and Dr. Hanna. Ms. Zakour alleged that the defendants failed to timely diagnose and properly treat her breast cancer. At the time of the trial, only UTMG and Dr. Craig (collectively "the Defendants") remained as defendants in this case. Ms. Zakour died of cancer while this appeal was pending, and her four children were substituted as parties in this case. To simplify our discussion and avoid unnecessary confusion, we will refer to both Ms. Zakour and her children as "the Plaintiff."

The trial began on March 31, 2003. During jury selection, the Plaintiff made two objections pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), claiming that the Defendants were using their peremptory strikes in a discriminatory fashion. The Plaintiff first alleged that the Defendants improperly removed African-Americans from the venire. The trial court requested that the Defendants provide a race-neutral explanation for the stricken jurors; after hearing from the Defendants, the trial court overruled the Plaintiff's first Batson objection. The Plaintiff later made a second Batson objection, this time based on the Defendants' use of peremptory challenges to remove women from the venire. The Defendants again denied any discriminatory intent, stating that the strikes were based upon "experience and body mechanics." The trial court overruled the Plaintiff's second Batson objection and empaneled the jury.

The jury returned a defense verdict on April 2, 2003. The Plaintiff appealed, contending that the trial court erred in overruling the Plaintiff's Batson challenges; allowing a witness to testify who had not been identified before trial and limiting the Plaintiff's cross examination of that witness; incorrectly drafting the jury verdict form; and improperly instructing the jury regarding the standard of care. The Plaintiff also challenged the sufficiency of the Defendants' proof. After considering all of these issues, the Court of Appeals affirmed the decision of the trial court. We find the issues raised by the Plaintiff regarding jury selection to be dispositive of this appeal.

II. Analysis

The issue we review in this case is whether the Defendants exercised peremptory challenges during jury selection based on race and/or gender in a discriminatory manner contrary to the United States Supreme Court's holding in Batson.

A. Standard of Review

A trial court's determination of whether a peremptory strike is impermissibly based on gender or race is a factual conclusion which is entitled to great deference on appeal. Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion); State v. Hugueley, 185 S.W.3d 356, 369 (Tenn.2006). As we have stated, "determination of the prosecutor's discriminatory intent or lack thereof turns largely on the evaluation of the prosecutor's credibility, of which the attorney's demeanor is often the best evidence." State v. Smith, 893 S.W.2d 908, 914 (Tenn.1994); Hugueley, 185 S.W.3d at 369 (quoting Smith, 893 S.W.2d at 914); see also State v. Jordan, No. M1999-00813-CCA-R3-CD, 2001 WL 1218314, at *5 (Tenn.Crim.App. Oct.11, 2001) (citing Smith, 893 S.W.2d at 914). Therefore, we will not set aside a trial court's findings regarding discriminatory intent unless such findings are clearly erroneous. Hernandez, 500 U.S. at 364, 111 S.Ct. 1859; Hugueley, 185 S.W.3d at 369; Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 906 (Tenn.1996).

B. Jury Selection Issues

Race-based Batson Claim

In Batson, the U.S. Supreme Court reaffirmed its prior holding that a defendant's Equal Protection rights are violated when a prosecutor exercises a peremptory challenge to exclude a potential juror solely because of the juror's race. 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); see also Strauder v. West Virginia, 100 U.S. 303, 312, 25 L.Ed. 664 (1880). Marking a change from its earlier decisions, the Court also concluded that a prima facie case of purposeful discrimination in selection of the petit jury can be established under the facts of a defendant's case without showing a pattern of discrimination from previous trials. Batson, 476 U.S. at 96, 106 S.Ct. 1712. The Supreme Court later ruled that the defendant and the stricken juror do not have to share the same race in order to establish a Batson violation. Powers v. Ohio, 499 U.S. 400, 402, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). The Court's holding in Powers was based upon the fact that the juror's rights under the Equal Protection Clause are violated by being stricken from a jury because of his or her race, id. at 409, 111 S.Ct. 1364 and that a defendant has standing to assert the juror's equal protection claim, id. at 415, 111 S.Ct. 1364.

A few months later, the Court extended its holdings in Batson and Powers to civil cases. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). In doing so, the nation's highest court emphasized that "[r]acial discrimination has no place in the courtroom, whether the proceeding is civil or criminal. . . . The Constitution demands nothing less." Id. at 630, 111 S.Ct. 2077 (internal citations omitted).

The U.S. Supreme Court in Batson outlined a three-part analysis to assist trial courts in determining whether a peremptory challenge was exercised improperly based upon the race of a potential juror. 476 U.S. at 93-98, 106 S.Ct. 1712. First, the party raising the equal protection challenge must establish a prima facie case of purposeful discrimination. Id. at 93-94, 106 S.Ct. 1712. This can be done by relying solely on the facts in the particular case at issue without showing a pattern of discrimination. Id. at 95, 106 S.Ct. 1712. Trial courts were instructed to "consider all relevant circumstances" in deciding whether a party has presented a prima facie case of discrimination. Id. at 96, 106 S.Ct. 1712. The Batson court noted that:

For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative.

Id. at 97, 106 S.Ct. 1712. After the complaining party makes a prima...