Trial News

The Nebraska Supreme Court has upheld a plaintiff verdict in a medical negligence case and rejected defense arguments that plaintiff counsel had engaged in “golden rule” questioning during voir dire. The court found that it is not improper to ask jurors about their personal circumstances and how that may affect their view of a case, and that plaintiff counsel never asked the jurors to place themselves in the plaintiffs’ shoes. (Anderson v. Babbe, 2019 WL 4892349 (Neb. Oct. 4, 2019).)

Rickey Anderson was treated for redness and swelling in his right foot. The doctors X-rayed his foot, diagnosed cellulitis, and discharged him. They treated him further based on that diagnosis. Several months later, Anderson consulted a podiatrist, who informed him that he actually had “Charcot foot,” which should have shown up on the X-rays the doctors took and could have been treated if it had been properly diagnosed. Anderson and his wife sued the doctors and the medical center for negligence and loss of consortium. A jury found for the plaintiffs, and the defendants appealed based on alleged errors during jury selection. They argued that plaintiff counsel had improperly questioned jurors about “putting themselves in the jurors’ shoes”—amounting to “golden rule” questioning, which is considered improper argument during jury selection.

During voir dire, plaintiff counsel stated that he wanted to talk to the potential jurors “about how important your physical health is to you, your ability to walk, your ability to climb stairs, your ability to do things of that nature.” Defense counsel objected that plaintiff counsel was “trying to put the [prospective] jurors in the position of a party.” The judge overruled the objection, and several jurors spoke about how important their mobility is to their quality of life. After a lunch break, the judge reconsidered the objection, explaining that he thought the jurors would simply affirm the importance of their physical health to them but that the answers had started to veer into “golden rule” territory and he would not allow the remaining prospective jurors to answer the question. Defense counsel then moved for a mistrial, which the judge denied. Instead, the judge said he would consider a limiting instruction at the end of trial but ultimately did not. The defense later moved for a new trial after the jury awarded the plaintiffs $800,000 in damages.

On appeal, the Nebraska Supreme Court considered three errors alleged by the defense, and it rejected that the trial court committed any error. “Although an invitation to jurors to put themselves in the place of a party is improper argument, it is not a ground for reversal unless the jurors were prejudicially affected by the remark,” the court explained. It also disagreed with the defense that plaintiff counsel engaged in golden rule questioning of the prospective jurors. The court highlighted a ruling from a Florida appellate court in which a prospective juror was asked if she would be able to run her family business without her spouse. The defense objected, and the trial court granted a new trial. But the appellate court disagreed, finding that the question did not ask the juror to identify with the plaintiff’s circumstances or to speak about how much compensation the juror would expect if in the plaintiff’s position. The jurors didn’t know anything more about the plaintiff at the time than that the lawsuit was the result of a family member being killed. In its ruling, the Florida court explained that the question “asked what the juror’s own personal circumstances were, which is the very reason for voir dire—to know whether something in the juror’s personal experience is relevant to the issues to be tried in the case.”

The Nebraska Supreme Court analogized this to the case at hand, noting that the jurors knew only that the case involved medical negligence, no facts from the case were shared with the jurors, and the jurors were not asked to place themselves in the plaintiffs’ position or about how much compensation they would expect in that position. The court also found that no curative instruction was required and that it was sufficient that the jury instructions reminded jurors not to rely on sympathy when making their decision or to allow it to influence their damages calculation.