LOS ANGELES (Legal Newsline) - A woman who lost a malpractice lawsuit against her anesthesiologist will get a second chance after a California appeals court ruled a defense lawyer improperly challenged two potential jurors because they had disabled family members.
Ruling for the second time on questions about biased jury challenges in the 2017 trial, California’s Second Appellate District, Division Seven said disability, along with race and gender, is a characteristic that can’t be used to deny people a seat on a civil jury. In an earlier decision, the appeals court ordered the case back before the trial judge to determine if the defense had properly challenged several Latino juror candidates.
Zulma Unzueta sued Dr. Asmik Akopyan after she claimed an improperly administered epidural during childbirth left her with a paralyzed leg. A jury found for the doctor but Unzueta appealed, saying defense attorney Robert Packer used preemptory challenges to remove six Latinos from the jury. The Second Appellate District sent the case back to the trial judge with an order to require Packer to justify each of his challenges on non-discriminatory grounds.
Packer did so, and the judge upheld the defense verdict. Unzueta then appealed again, saying two more jurors were struck because they had family members who were disabled. The question came up during trial, when one of the prospective jurors said she had a disabled child. Packer told the judge Unzeuta was claiming permanent disability and he “felt that this particular juror may be too sympathetic to this particular plaintiff to make reasonable decision on the evidence.”
“Is this truly a protected class?” the judge asked. Packer said disability wasn’t included in the plaintiff’s so-called Batson/Wheeler motion, named after landmark California and U.S. Supreme Court decisions prohibiting discriminatory preemptory challenges.
The judge agreed with the defense, but the appeals court disagreed in its Nov. 7 ruling. California legislators effectively added disability to the list of factors that can’t be used for preemptory challenges in 2015, the court said. And the plaintiff didn’t forfeit her right to seek a new trial on that basis merely because she hadn’t raised disability in her initial motion, the court went on, since she didn’t know disability was a factor until the defense lawyer used it to justify his challenge.
“The trial court was correct that the justifications were race-neutral, but the challenges were still discriminatory because they were based on the disabilities of the prospective jurors’ family members,” the court concluded.