State Appeals Court Reverses Verdict After Jury Selection Bias in Anesthesiology Malpractice Case That Resulted in Paralysis

Zulma Unzueta appealed from a judgment entered after a jury trial in favor of the defendant Asmik Akopyan, M.D., on Unzueta’s action for medical malpractice.

Dr. Akopyan served as the anesthesiologist during the birth of Unzueta’s child, after which Unzueta’s right leg was permanently paralyzed.

The jury found Dr. Akopyan breached the duty of care she owed Unzueta, but the breach did not cause the plaintiff’s paralysis.

On appeal, Unzueta argued that the trial court erred in denying the Batson/Wheeler [Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler, (1978) 22 Cal. 3d 258)] motion the court made on its own, sua sponte, after Dr. Akopyan’s attorney exercised peremptory challenges to six Hispanic prospective jurors out of his seven total challenges.

Unzueta argued that the trial court erred in not requiring defense counsel to offer nondiscriminatory reasons for his first four challenges that formed the basis of the trial court’s prima facie finding of racial bias.

The California State Court of Appeals agreed conditionally reversing for the limited purpose of conducting the second and third steps of the Batson/Wheeler inquiry as to all six challenged Hispanic jurors. The prohibition against the exercise of peremptory challenges to exclude prospective jurors based on race or other group bias applies to civil as well as criminal cases. The court stated that it credited the trial court for raising the Batson/Wheeler challenge on its own motion. But once the court found a prima facie showing of a racial bias as to all six Hispanic prospective jurors, it was required to elicit from Dr. Akopyan’s attorney justifications for each of the six prospective jurors, including the four prospective jurors excused the prior day and the two excusals that immediately precipitated the court’s sua sponte motion.

On remand, the appellate court stated that the trial court should require defense counsel to state reasons for challenging the first set of prospective jurors, and the court must decide in light of the record as to all six jurors whether Unzueta has proved purposeful racial discrimination. If the court finds it cannot adequately perform the second or third stages of the Batson/Wheeler analysis on remand because of the passage of time or other reason, or if it determines Dr. Akopyan’s attorney exercised the peremptory challenges based on racial bias, it should set the case for a new trial. On the other hand, if the court finds Dr. Akopyan’s attorney exercised peremptory challenges in a permissible fashion, it should reinstate the judgment.

In addition, Unzueta also argued that the trial court erred in excluding evidence of Dr. Akopyan’s dishonesty in representations she made to obtain her medical license and in denying Unzueta’s motion to exclude testimony from Dr. Akopyan’s expert for failure to designate the witness as an expert. Further, Unzueta asserted that the defense counsel’s closing argument was improper. As to these contentions, the appeals panel affirmed, but reversed on the Batson/Wheeler doctrine discussed in the opinion.

Unzueta v. Akopyan, B284305 (California Courts of Appeal, 2nd Appellate District, Nov. 18, 2019).

Kreisman Law Offices has been handling medical malpractice lawsuits, jury trials, birth trauma injury cases, cerebral palsy birth injury lawsuits and labor and delivery negligence cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Winthrop Harbor, North Chicago, Round Lake Beach, Grayslake, McHenry, Woodstock, Crystal Lake, Elgin, Schaumburg, Hoffman Estates, Naperville, Tinley Park, Chicago Heights, South Holland, Lansing, Romeoville, Plainfield, Lockport, Orland Hills, Burbank, Willowbrook, Western Springs, Westchester, Oakbrook Terrace, Chicago (Garfield Ridge, Westlawn, Brighton Park, Archer Heights, Little Village, North Lawndale, East Garfield Park, Wicker Park, Hermosa, Lakeview, Ravenswood, Albany Park, Bronzeville, South Loop, Douglas, Kenwood, Woodlawn, Greater Grand Crossing, Calumet Heights), Bedford Park, Burr Ridge, Mundelein, Downers Grove and Des Plaines, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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