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Atwell v. Imseis

March 23, 2007

MERRITT ATWELL, APPELLANT,
v.
MIKHAIL IMSEIS, M.D., APPELLEE.



Appeal from Ness District Court; BRUCE T. GATTERMAN, judge.

SYLLABUS BY THE COURT

1. When most of the questions on a proposed questionnaire for prospective jurors are asked during voir dire, and no time limit is placed on voir dire, the failure to use the questionnaire does not negatively impact the composition of the jury.

2. Where a doctor-patient relationship exists between one of the parties to litigation and a prospective juror, such prospective juror is not disqualified per se, but special care should be taken by the trial judge to ascertain that the prospective juror is free from bias or prejudice.

3. The extent of the examination of prospective jurors during voir dire is within the sound discretion of the trial court. Appellate courts will not interfere with this process unless a clear abuse of discretion is established.

4. The trial court is allowed to ask questions of potential jurors during voir dire, and these questions may be used to further clarify on a panel member's initial reluctance to remain impartial. The trial court may question jurors who initially expressed bias towards either party so long as the questioning is not coercive or improper.

The opinion of the court was delivered by: Marquardt, J.

Affirmed.

Before MARQUARDT, P.J., PIERRON, J., and KNUDSON, S.J.

Merritt Atwell appeals various decisions of the trial court relating to jury selection. We affirm.

In April 2001, Dr. Mikhail Imseis, a physician in Ness City, treated Atwell. As part of his treatment, Dr. Imseis prescribed the antibiotic Gentamycin. There were problems with the antibiotic and Atwell was allegedly left with severe bilateral vestibular weakness. When Atwell was treated, he was in his 80s.

In April 2003, Atwell filed a petition alleging that Dr. Imseis was negligent for prescribing Gentamycin and for not closely monitoring him. The case was set for trial in Ness County, which has a population of approximately 3,400 people. Ness County has three physicians. Dr. Imseis is the only physician in Ness City.

From the beginning, Atwell was concerned that it would be difficult to get a jury panel with no individuals who were patients of Dr. Imseis. Atwell filed a motion requesting that all of Dr. Imseis' current patients be dismissed from the jury pool. The motion was denied.

Atwell also filed a motion to use a voir dire juror questionnaire which included questions about employment, history with the legal or medical professions, and attitudes towards the medical profession. Atwell and Dr. Imseis agreed on a questionnaire and it was submitted to the trial court. The trial court denied the use of the juror questionnaire.

No current patient and only one former patient of Dr. Imseis were seated on the jury. The jury found for ...


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