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Is a Juror Automatically Disqualified if they have Suffered a Similar Injury as the Plaintiff

By Dan Minc, Minc, Falkoff & Wolff, LLP posted in Medical Malpractice on Sunday, February 01, 2015.

During a jury selection in a medical malpractice case one of the jurors asks to speak outside and tells us that they have some familiarity with the type of injury of the case we are bringing now. Does this automatically disqualify that particular juror?

During a jury selection in a medical malpractice case one of the jurors asks to speak outside and tells us that they have some familiarity with the type of injury of the case we are bringing now. Does this automatically disqualify that particular juror?

The Juror has Experienced something Similar

This medical malpractice case is based on failure to diagnose breast cancer, and the lawyers are questioning potential jurors. During the course of jury selection process, the jurors quickly learn that this is a case involving failure to diagnose breast cancer. One of the jurors now tells the plaintiff's lawyer that she was diagnosed with breast cancer and she would like to speak to the lawyer outside. The plaintiff's lawyer along with the defense lawyer meets this woman juror outside, and tries to explore what her issues or concerns are.

Typically, in such situation the juror is going to say that she went through the same process, she was diagnosed with breast cancer, and she knows the different types of treatment needed including surgery and chemotherapy. She may claim that she is the right type of juror for this case, since she has experienced the problem first-hand or she may claim that she could relate too much with what the plaintiff is going through and therefore she may lean in favor of the plaintiff.

The Lawyers will Question the Juror Further

Once a juror has raised this kind of issue, the plaintiff's lawyer will have to ask her more questions like:

v What exactly happened in your case

v In your situation did you feel that your doctor had misdiagnosed your condition

v Did you feel that your condition was not diagnosed in a timely manner

v Did you receive appropriate treatment for your condition

v Did the treatment suit you

v What was the outcome of the treatment

The defense attorney will also have an opportunity to question such a juror. The objective of the defense lawyer will be to find out if the juror is going to align more with the plaintiff because there is an affinity. The juror and plaintiff both have breast cancer; although the plaintiff is claiming that, her condition was not timely diagnosed, whereas the juror's condition was diagnosed in a timely manner.

Deep Seated Sympathy

In such a situation, is the juror likely to form a connection with the plaintiff? If the defense lawyer thinks that the juror is likely to form a bond, likeness, or connection with the plaintiff, then he will ask the judge to excuse this juror. Excluding the juror is based on what is termed as challenge for cause. The defense attorney will most likely try to persuade such jurors to excuse themselves, on the basis that they have an affinity with the plaintiff, and they are likely to lean in favor of the plaintiff.

Based on the responses given by the juror the lawyers will have to go to the judge and resolve whether they will have to use their preemptory challenges to excuse this juror or the judge will excuse the juror based on challenge for cause.

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