Jordan Ex Rel. Jordan v. Deery

778 N.E.2d 1264, 2002 Ind. LEXIS 903, 2002 WL 31655850

• Court: Indiana Supreme Court
• Decided: November 22, 2002
• Docket: 75S05-0106-CV-310
• Status: Published

Opinions

CIVIL TRANSFER

RUCKER, Justice.

This medical malpractice action involving a disabled child has generated three appellate court opinions, an emergency stay and hearing in the Court of Appeals, and an original action in this Court. In this ongoing litigation we hold today that Article I, Section 20 of the Indiana Constitution, which provides that “[i]n all civil cases, the right of trial by jury shall remain inviolate,” Ind. Const, art. I, § 20, includes the ancillary right to be present in the courtroom during both the liability and damage phase of trial.

I. Facts and Procedural History

Geneva Jordan (“Mother”) was a prenatal patient of Michael Deery, M.D., and Warren Reiss, M.D., both of whom practiced family medicine at Lakeshore Clinic in Culver, Indiana. On December 8, 1986, one week before her due date, Mother began experiencing uterine contractions. In the early morning hours of December 9, 1986, she went to Holy Cross Hospital in Plymouth, Indiana, where she was examined by emergency room staff and advised to go home. Mother returned to the hospital at 7:00 a.m. that same day and was again examined and advised to go home. This time, however, she decided to wait at the hospital and was examined twice more throughout the course of the day. Finally, at 6:10 p.m., Mother was admitted into the hospital as a patient in active labor. Approximately twenty minutes after attaching electronic fetal monitors, the nurses noted signs of fetal distress. Dr. Reiss then transferred Mother to South Bend Memorial Hospital in case a Caesarian delivery was necessary. Keim Houser, M.D., the obstetrician on call at South Bend Memorial, examined Mother and determined that a Caesarian delivery was unnecessary. Following a delivery complicated by shoulder dystocia¹ and the umbilical cord wrapped around the infant’s neck.² Shela-miah Jordan was born at 2:17 a.m. on December 10, 1986. Shortly thereafter, she was diagnosed with fetal distress, asphyxia, cerebral palsy, and Erb’s palsy of the left arm.

On December 3, 1988, Geneva Jordan and Lynn Jordan, the parents of Shelami-ah, filed a proposed medical malpractice complaint with the Indiana Department of Insurance. The Jordans alleged that the negligence of Dr. Deery, Dr. Reiss, Lake Shore Clinic, Holy Cross Hospital, and Dr. Houser (referred to collectively as “Healthcare Providers”) occurring during labor and delivery resulted in personal injuries to both Mother and Shelamiah. On May 4, 1990, the Medical Review Panel issued a unanimous opinion in favor of Healthcare Providers.

Thereafter, on their own behalf and acting as Shelamiah’s next friends, the Jor-dans filed a complaint for medical malpractice in the trial court. In response, Healthcare Providers moved for summary judgment, which the trial court granted. Shelamiah and the Jordans appealed, and the Court of Appeals affirmed the trial court. Jordan v. Deery, 590 N.E.2d 669 (Ind.Ct.App.1992). On transfer, this Court concluded that although the summary judgment motion was properly granted on the Jordans’ claims because of the statute of limitations, the motion was improperly granted on Shelamiah’s claims. Jordan v. Deery, 609 N.E.2d 1104, 1108 (Ind.1993). We remanded the cause for trial.

Prior to trial, Healthcare Providers filed a motion to bifurcate the liability and damages phases. The trial court granted the motion. Healthcare Providers then filed a motion in limine requesting that Shelamiah be excluded from the courtroom during the liability phase of trial. According to Healthcare Providers, Shelamiah was unable to consult with counsel, and her presence would prejudice the jury.³

In support of their motion, Healthcare Providers cited Gage v. Bozarth, 505 N.E.2d 64 (Ind.Ct.App.1987), trans. denied. In that case the trial court excluded the seven-year-old plaintiff from the courtroom during the liability phase of trial. The record showed that the child was a quadriplegic who was able to breathe only with the help of a ventilator. Id. at 65. Citing Helminski v. Ayerst Laboratories, 766 F.2d 208, 218 (6th Cir.1985), the Court of Appeals adopted a two-pronged test which must be satisfied before a trial court may exclude a plaintiff from the courtroom during the liability phase of trial: (1) the party seeking the exclusion must show that the plaintiffs presence has a potentially prejudicial effect on the jury; and (2) the trial court must determine whether the plaintiff can understand the proceedings and assist counsel in any meaningful way. Gage, 505 N.E.2d at 67. However, if the trial court finds that the plaintiff can understand the proceedings and assist counsel in any meaningful way, then the plaintiff cannot be excluded regardless of the prejudicial impact. Id.

In response to Healthcare Providers’ motion, Shelamiah argued before the trial court that Gage did not survive enactment of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. The ADA is intended “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Id. § 12101(b)(1). Title II of the ADA, which is the public services portion of the Act, provides in pertinent part: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Id. § 12132. A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable modifications meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Id. § 12131(2).

The trial court determined that Gage was still good law and after conducting a hearing found that the two-part test set forth in that case had been satisfied. Accordingly, the trial court granted Healthcare Providers’ motion in limine. Shelamiah then moved the trial court for certification of its order and a stay pending appeal. The motion was denied. On July 7, 1998, the first day of trial, Shela-miah filed an emergency petition with the Court of Appeals. The court granted the motion, entered an order staying the’trial court proceedings, and scheduled the matter for oral argument on July 10, 1998. Following oral argument, the Court of Appeals dissolved the stay and remanded the cause for trial. Before trial resumed on July 13, 1998, Shelamiah filed an original action with this Court, which we dismissed the same day. State ex rel. Jordan v. Starke Cir. Ct., No. 75S00-9807-OR-391 (Ind.July 13, 1998).

The liability phase of trial concluded on July 21, 1998, and the jury returned a verdict in favor of Healthcare Providers. On appeal, Shelamiah renewed her argument that the Gage test did not survive enactment of the ADA. In an unpublished memorandum decision, the Court of Appeals affirmed the trial court. Jordan v. Deery, No. 75A05-9807-CV-342, 742 N.E.2d 45 (Ind.Ct.App. Dec. 29, 2000). In so doing the Court noted, “The ADA prohibits the forced exclusion from activities of those who could partake with reasonable modifications, but promulgates neither a per se rule of inclusion nor a per se rule of exclusion.” Slip op. at 8. The Court of Appeals also concluded that the Gage test survived the enactment of the ADA and that the test was satisfied in this case. Having previously granted transfer, we now reverse the judgment of the trial court.

II. Discussion

We first observe that a number of jurisdictions still employ the two-pronged Hel-minski test, which the Court of Appeals adopted in Gage, even in the face of the ADA. See, e.g., Preferred Props., Inc. v. Indian River Estates, Inc., 276 F.3d 790, 797 (6th Cir.2002), cert. denied, — U.S. -, 122 S.Ct. 2663, 153 L.Ed.2d 838 (2002); Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d 472, 478 (1st Cir.2000); Green v. North Arundel Hosp., 126 Md. App. 394, 730 A.2d 221, 234 (1999) (listing courts that have adopted Helminski). Further, although the ADA has been in effect for more than a decade, our re-' search shows that no court, state or federal, has decided whether the Helminski test is viable in light of the ADA. See, e.g., Thompson v. Colorado, 278 F.3d 1020, 1032 (10th Cir.2001), - cert. denied, — U.S. -, 122 S.Ct. 1960, 152 L.Ed.2d 1021 (2002) (recognizing that Helminski protects a category of rights required to be given some degree of accommodation under the Fourteenth Amendment’s due process clause while also recognizing that the due process clause does not contain the

general mandate of Title II of the ADA); Green, 730 A.2d at 233 n. 14 (assuming without deciding that the Helminski test survived the enactment of the ADA); Matthew A. Sokol, Cary v. Oneok, Inc.: Oklahoma Supreme Court Upholds Plaintiffs Right to Attend Trial, 19 Pace L.Rev. 195, 214 (1998) (“The issue of whether the [ADA] gives rise to a cognizable cause of action for a plaintiff who is excluded from trial is yet to be litigated.”). In fact, the weight of authority suggests that the Hel-minski test has survived enactment of the ADA. Nonetheless, after considerable deliberation, we agree with Shelamiah that Gage is no longer good law, but for an entirely different reason, namely: Article I, Section 20 of the Indiana Constitution.

A. Buies of Constitutional Construction

Generally, questions arising under the Indiana Constitution are to be resolved by examining the intent of the framers, the language of the text in the context of the history surrounding its drafting and ratification, and case law interpreting the specific provisions. McIntosh v. Melroe, 729 N.E.2d 972, 974 (Ind.2000). However, these “constitutional talismans” or guideposts are not always instructive. Id. Under such circumstances, it becomes appropriate to look elsewhere, including case law from other states interpreting similar provisions in their constitutions. Id.; see also Ajabu v. State, 693 N.E.2d 921, 934 (Ind.1998).

B. Historical Development of Right to Trial by Jury

When the right to trial by jury was incorporated into the 1816 and 1851 Indiana Constitutions, it was hardly a novel concept. Some scholars trace this right as far back as ancient Greece and the Athenian statesman Solon. Richard S. Arnold, Trial by Jury: The Constitutional Right to a Jw“y of Twelve in Civil Trials, 22 Hofstra L.Rev. 1, 6 (1993). Other scholars trace this right only to the Middle Ages and the reign of William the Conqueror. Id. Regardless of its origins, at least by the eleventh century, the right to trial by jury was firmly established in England. The Magna Carta, signed by King John on June 15, 1215 at Runnymede, guaranteed the right to a jury trial. And during the next one hundred years, the English kings reaffirmed the Magna Carta thirty-eight times. By the 1600s, when the thirteen colonies were founded, the right to trial by jury “had become one of the great palladiums of English liberty.” Id. at 13. The English regarded this right “ ‘as a bulwark of liberty, and as a means of preventing oppression by the Crown.’ ” Stephan Landsman, The Civil Jury in America: Scenes from An Unappreciated Histo'i’y, 44 Hastings L.J. 579, 591 (1993) (quoting Austin W. Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv. L.Rev. 669, 676 (1918)).

The colonists brought the right to trial by jury with them from England. The 1606 charter given by James I to the Virginia Company incorporated the right to a jury trial, and by 1624 all trials in Virginia, both civil and criminal, were by jury. In 1628, the Massachusetts Bay Colony introduced jury trials, and the right to a jury trial was later codified in the Massachusetts Body of Liberties in 1641. The Colony of West New Jersey implemented trial by jury in 1677, as did New Hampshire in 1680 and Pennsylvania, under William Penn’s proprietorship, in 1682. Arnold, supra, at 13; Landsman, supra, at 592. Eventually, all colonies embraced trial by jury.

Nevertheless, through various measures, the King of England tried to dilute the right to a jury trial. Beginning in the mid-1770s, the colonists held a series of congresses to address the King’s oppressive behavior.⁴ The work of the congresses culminated in the Declaration of Independence signed on July 4, 1776. Indeed, The Declaration of Independence lists the denial of “ ‘the benefits of trial by jury’ ” as one of the grievances that led to the creation of a new nation. Arnold, supra, at 14; Landsman, supra, at 596 (both quoting The Declaration of Independence para. 19 (U.S. 1776)).

Considering the actions the colonists took to safeguard and preserve the right to trial by jury, it is no surprise that this right was exceedingly popular with the drafters of the first constitutions of the newly independent states. Virginia set precedent in 1776 by specifically including the right to both civil and criminal jury trials in its bill of rights. The majority of other states quickly followed suit.⁵ Landsman, supra, at 596.

C. History Surrounding Adoption of Article I, Section 20

The first constitutional reference to jury trials in this State appeared in Article I, Section 5 of the 1816 Constitution, which provided:

That in all civil cases, where the value in controversy shall exceed the sum of twenty dollars, and in all criminal cases, except in petit misdemeanors which shall be punished by fine only, not exceeding three dollars, in such manner as the legislature may prescribe by law, the right of trial by jury shall remain inviolate.

Ind. Const, of 1816, art. I, § 5. When delegates met again in late 1850 and early 1851 to draft a new constitution, a committee on rights and privileges was formed. This committee was charged with, among other things, deciding whether to extend the right of trial by jury as it existed in the 1816 Constitution. 1 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana 226 (A.H. Brown ed., 1850). The committee focused primarily on whether there should be a minimum amount in controversy before the right to trial by jury was implicated and whether the civil and criminal right to trial by jury should be contained within the same section. Id. at 352-53; Journal of the Convention of the People of the State of Indiana to Amend the Constitution 80, 90, 204 (Austin H. Brown ed., 1851) (reprint 1936). In the end, the following version prevailed: “In all civil cases, the right of trial by jury shall remain inviolate.”⁶ Ind. Const, art. I, § 20.

D. Case Law Interpreting Article I, Section 20

Despite the lack of debate concerning the enactment of Article I, Section 20, appellate courts of this State have examined this provision on numerous occasions. With very few exceptions, the courts have addressed it in the context of the meaning of “shall remain inviolate.” Since 1877, when the Indiana Supreme Court declared that “shall remain inviolate” means “continue as it was” at common law, Allen v. Anderson, 57 Ind. 388, 389, 1877 WL 6470 (1877), the courts have explained that the right to trial by jury is preserved only in those cases that were triable by jury at common law. See, e.g., State ex rel. Van Orden v. Floyd Cir. Ct., 274 Ind. 597, 412 N.E.2d 1216, 1218 (1980); Hayworth v. Bromwell, 239 Ind. 430, 158 N.E.2d 285, 287 (1959); Coca Cola Bottling Works v. Harvey, 209 Ind. 262, 198 N.E. 782, 782 (1935); Reynolds v. State, 698 N.E.2d 390, 394 (Ind.Ct.App.1998), trans. denied. Otherwise, this provision has not been the subject of much litigation.

E. Case Law from Other Jurisdictions

The question of whether a plaintiff can be excluded from the courtroom during the liability phase of trial has been litigated in several jurisdictions across the country. Some of the jurisdictions answering this question in the negative have relied on provisions in their state constitutions guaranteeing a right to trial by jury. For example, in Carlisle v. Nassau County, 64 A.D.2d 15, 408 N.Y.S.2d 114 (1978), the trial court excluded from the courtroom during jury selection a paraplegic plaintiff who was confined to a wheelchair. According to the trial court, the plaintiffs presence would prejudice the jury. On appeal, the plaintiff challenged his exclusion. In its analysis, the court looked to the historical development of the right to trial by jury and Article I, Section 2 of the New York Constitution, which provides: “Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever. ...” Id. at 116 (quoting N.Y. Const, art. I, § 2). The court concluded thafr“the fundamental constitutional right of a person to have a jury trial in certain civil cases includes therein the ancillary right to be present at all stages of such a trial.” Id. The court went on to observe that a judicial determination that the physical appearance of a party “may be the basis for precluding such party from any stage of a trial[ ] is fraught with danger in its implications.” Id. at 118. The court concluded that the plaintiff was entitled to a new trial.

In Florida Greyhound Lines, Inc. v. Jones, 60 So.2d 396 (Fla.1952), the plaintiff was injured in an automobile collision and at trial was brought into the courtroom on a stretcher, accompanied by a nurse and hospital attendant. The defendant objected, arguing that the plaintiffs presence would prejudice the jury. The trial court overruled the objection and ultimately the jury returned a verdict for the plaintiff. Responding to the defendant’s claim on appeal that the plaintiff should have been excluded from the courtroom during trial, the Florida Supreme Court concluded:

One who institutes an action is entitled to be present when it is tried. That, we think, is a right that should not be tempered by the physical condition of the litigant. It would be strange, indeed, to promulgate a rule that a plaintiffs right to appear at his own trial would depend on his personal attractiveness, or that he could be excluded from the court room if he happened to be unsightly from injuries'which he was trying to prove the defendant negligently caused.

Id. at 397. The court ultimately determined that the plaintiffs presence at trial was proper, absent any proof of “deceit” or “subterfuge.” Finding neither, the judgment of the trial court was affirmed.

Though factually different from the case at bar, in Rozbicki v. Huybrechts, 218 Conn. 386, 589 A.2d 363 (1991), the Connecticut Supreme Court examined the nature of a party’s right to be present in the courtroom during the jury selection phase of trial. Like the Carlisle court, the Connecticut Supreme Court looked to Article I, Section 19 of its constitution, which provides: “The right of trial by jury shall remain inviolate.... ” Id. at 365 (quoting Conn. Const, art. I, § 19). The court then observed that it “has long recognized that a party’s constitutional right to a civil jury trial encompasses the right to be present in the court during all phases of the trial, including proceedings prior to the trial on the merits of the case.” Id.

In Cary v. Oneok, Inc., 940 P.2d 201 (Okla.1997), the Oklahoma Supreme Court reached the same conclusion as the Roz-bicki court relying on a different provision in its constitution. In that case, the trial court excluded from the courtroom during the liability phase of trial, a six-year-old plaintiff who was severely burned by an exploding water heater. According to the trial court, the jury might be sympathetic to the child’s disfigurement. On appeal, the plaintiff challenged his exclusion. Relying on the “open courts”⁷ provision in its constitution, the Oklahoma Supreme Court concluded that “[ajbsent a voluntary waiver we hold that only in the case of extreme circumstances may a party be excluded from the proceedings.” Id. at 204. Finding neither waiver nor extreme circumstances, the court remanded the cause for a new trial. Id. at 204, 206. Other courts, have reached similar conclusions without a great deal of elaboration. For example, in Mason v. Moore, 226 A.D.2d 993, 641 N.Y.S.2d 195 (1996), the infant plaintiff sustained severe brain damage during delivery as a result of asphyxia. The defendant unsuccessfully moved to exclude the infant plaintiff from the courtroom during trial. On a challenge to the ruling on appeal, the court simply stated “[i]t is axiomatic that, absent an express wavier or unusual circumstances, a party to a civil action is entitled to be present during all stages of the trial.” Id. at 197. Finding neither, the court affirmed the trial court. See also Chicago Great W. Ry. Co. v. Beecher, 150 F.2d 394, 399 (8th Cir.1945) (holding that the plaintiff, a child under three years of age who was struck by a train, properly remained in the courtroom during trial despite the defendant’s objection); Bryant v. Kansas City Rys. Co., 286 Mo. 342, 228 S.W. 472, 475 (1921) (holding that the plaintiff, a four-year-old child with an amputated leg, should be allowed to remain in the courtroom during trial so long as he was not paraded in front of the jury to gain sympathy); Sherwood v. City of Sioux Falls, 10 S.D. 405, 73 N.W. 913, 914 (1898) (allowing the plaintiff to be brought into the courtroom on a cot despite the defendant’s objection that the plaintiffs appearance would prejudice the jury).

E. Scope of Article I, Section 20

After examining the historical development of the right to trial by jury and, in particular, its importance to the founders of this country, we agree with those jurisdictions that have held that the state constitutional right of trial by jury includes the ancillary right to be present in the courtroom during both the liability and damage phase of trial. This is so because without the right to be present, the right to trial by jury becomes meaningless. We also note, this view is consistent with case law from our Court of Appeals. See Freimann v. Gallmeier, 116 Ind.App. 170, 63 N.E.2d 150, 153 (1945) (“Citation of authority is not required to sustain the proposition that a party to an action is entitled to be personally present in court when a trial is held in which he, or she, is a party of record.”); Ziegler v. Funkhouser, 42 Ind.App. 428, 85 N.E. 984, 986 (1908) (“It is the right of every party litigant to be present in person in court upon the trial of his own case.... ”). In our view, the right to be present in the courtroom during both the liability and damage phase of trial is so basic and fundamental that it is, by implication, guaranteed by Article I, Section 20. Accordingly, we conclude that the test announced in Gage is not sufficient to overcome Shelamiah’s constitutional right to be present at her own trial. Rather, absent waiver or extreme circumstances, a party may not be so excluded.

III. Conclusion

Article I, Section 20 of the Indiana Constitution provides: “In all civil cases, the right of trial by jury shall remain inviolate.” Ind. Const, art. I, § 20. We hold that this right includes also the ancillary right to be present in the courtroom during the liability and damage phase of trial. Absent waiver or extraordinary circumstances, a party may not be so excluded. Because neither waiver nor extraordinary circumstances exist here, the judgment of the trial court is reversed and this cause remanded for a new trial.⁸

SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur. BOEHM, J., dissents with separate opinion.

1 . Shoulder dystocia occurs when an infant's shoulder becomes lodged behind the mother's pubic bone and impedes its progress through the birth canal. The Merck Manual 1906 (Robert Berkow, M.D., ed., 16th ed. 1992).

2 . See R. at 1149.

3 . The record shows: Shelamiah suffers from cerebral palsy in all four extremities and Erb’s palsy in the left arm, cannot talk, makes involuntary movements and sounds, is sight impaired, and walks with the use of braces and a walker. R. at 42-43, 1149. There is a dispute as to whether Shelamiah can understand the proceedings and communicate with counsel with the use of a laptop computer. R. at 73, 76, 118.

4 . Meeting in 1774, The First Continental Congress resolved among other things " 'the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.’ ” Landsman, supra, at 596 (quotation omitted). The colonists’ concern about jury trials was reiterated in the Second Continental Congress’ Declaration of the Causes and Necessity of Taking Up Arms, issued in July 1775, which specifically challenged Parliament’s passage of statutes " 'depriving ... [the colonies] of the accustomed and inestimable privilege of trial by jury, in cases affecting both life and property.' ” Id. (quotation omitted).

5 . By 1788, eight of the eleven states had incorporated the right to trial by jury in civil cases into their constitutions: Pennsylvania, New Jersey, Georgia, Massachusetts, Maryland, New Hampshire, Virginia, and New York. Rachael E. Schwartz, "Everything Depends on How You Draw the Lines”: An Alternative Interpretation of the Seventh Amendment, 6 Seton Hall Const. L.J. 599, 617-18 (1996). Today, the vast majority of slates guarantee the right to trial by jury in civil cases in their constitutions. See Ora Fred Harris, Jr., Complex Product Design Litigation: A Need for More Capable Fact-Finders, 79 Ky. L.J. 477, 482 (1991).

6 . Article I, Section 13(a) of the Indiana Constitution guarantees the right to trial by jury in "criminal cases. See Ind. Const, art. I, § 13(a).

7 . Article II, Section 6 of the Oklahoma Constitution provides in part, "The courts of justice of the State shall be open to every person....” Okla. Const, art. II, § 6. Similarly, Article I, Section 12 of the Indiana Constitution provides: “All courts shall he open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily and without delay.” Ind. Const, art. I, § 12 (emphasis added).

8 . We decline to articulate a bright-line rule to determine what are and what are not “extraordinary circumstances.” Such determinations must be made on a case-by-case basis. We merely observe that on this record extraordinary circumstances have not been shown.