Day on Torts
It is not uncommon for defendants in severe brain injury, spinal cord or burn injury cases to ask that the plaintiff not be present in the courtroom. The argument goes that the injured person cannot contribute to the prosecution of the case and therefore the only purpose that they are brought into the courtroom is to gain sympathy.
The Georgia Supreme Court faced this issue in the recent case of Kesterson v. Jarrett, S11G0590 (Ga. S. Ct. June 18, 2012). A trial judge excluded the minor plaintiff, Kyla Kesterson, a young child with severe cerebral palsy, from the courtroom during the liability phase of a bifurcated medical malpractice trial. Plaintiffs argued that they did not intend for the minor plaintiff to be present in court for an extended period of time during any phase of the trial, but argued that she had the constitutional right to be present.
The Georgia The Court of Appeals affirmed, saying that the trial court has discretion to exclude a civil party when the party’s physical and mental condition may generate jury sympathy and her mental condition precludes her from meaningfully participating in and understanding the proceedings. The support for that position was a decision from our own 6th Circuit Court of Appeals, Helminski v. Ayerst Labs., 766 F2d 208, 218 (6th Cir. 1985)).
The Georgia Supreme Court reversed, holding that that :
a party may not be excluded from her own trial simply because her physical and mental condition may evoke sympathy, even under these circumstances. Instead, trial courts can and should address the risk of undue sympathy using jury instructions and other common and time-tested means of ensuring that both parties receive a fair trial, without infringing on the parties’ right to be present.
The decision cites to the law of several other jurisdictions that support this position. The decision also discusses at length the right of a natural person to be present at trial.
I believe that this opinion is correct. I simply do not believe, in this day and age, that jurors will disregard their oath and decide cases based on sympathy. Indeed, it seems to me that jurors bend over backwards not to be motivated by sympathy for the plaintiff and appear to have more sympathy for the defendant, particularly nurses (and some doctors) in medical malpractice cases.