ATTORNEYS FOR APPELLANTS
: ATTORNEYS FOR APPELLEES:
BESSIE M. TAYLOR MARK A. LIENHOOP
Taylor and Green Newby, Lewis, Kaminski & Jones
Gary, Indiana LaPorte, Indiana
DOUGLAS GRIMES EDWARD A. CHAPLEAU
Gary, Indiana Chapleau & Kuehl
South Bend, Indiana
May, Oberfell & Lorber
South Bend, Indiana
Bingham Summers Welsh & Spilman LLP
SUPREME COURT OF INDIANA
SHELAMIAH D. JORDAN bnf GENEVA )
JORDAN AND LYNN JORDAN, )
) Supreme Court Cause Number
Appellants (Plaintiffs ), ) 75S05-0106-CV-310
MICHAEL DEERY, M.D., WARREN ) Court of Appeals Cause Number
REISS, M.D., LAKE SHORE CLINIC, ) 75A05-9807-CV-342
KEIM HOUSER, M.D., HOLY CROSS )
Appellees (Plaintiffs ). )
APPEAL FROM THE STARKE CIRCUIT COURT
The Honorable David Matsey, Judge
Cause No. 75C01-9009-CP-258
November 22, 2002
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 dystocia
See footnote and the umbilical cord wrapped around the infants neck.See footnote
Shelamiah Jordan was born at 2:17 a.m. on December 10, 1986.
Shortly thereafter, she was diagnosed with fetal distress, asphyxia, cerebral palsy, and Erbs
palsy of the left arm.
On December 3, 1988, Geneva Jordan and Lynn Jordan, the parents of Shelamiah,
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 Shelamiahs next friends, the Jordans
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. 1993). 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 Shelamiahs 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.
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, Shelamiah 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 (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.
We first observe that a number of jurisdictions still employ the two-pronged Helminski
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, 122 S. Ct.
2663 (2002); Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d 472, 478 (1st
Cir. 2000); Green v. North Arundel Hosp., 730 A.2d 221, 234 (Md. App.
1999) (listing courts that have adopted Helminski). Further, although the ADA has
been in effect for more than a decade, our research 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, 122 S. Ct. 1960 (2002) (recognizing that
Helminski protects a category of rights required to be given some degree of
accommodation under the Fourteenth Amendments 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 Helminski 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. Rules 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
Jury 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 History, 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,
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 Penns proprietorship, in 1682. Arnold, supra,
at 13; Landsman, supra, at 592. Eventually, all colonies embraced trial by
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 Kings oppressive behavior.
See footnote 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.
See footnote 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.
See footnote 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), 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, 408 N.Y.S.2d 114 (N.Y.
App. Div. 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 that 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 defendants claim on appeal that the
plaintiff should have been excluded from the courtroom during trial, the Florida Supreme
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, 589
A.2d 363 (Conn. 1991), the Connecticut Supreme Court examined the nature of a
partys 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 partys 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 Rozbicki 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 childs disfigurement. On appeal, the
plaintiff challenged his exclusion. Relying on the open courts
See footnote provision in its
constitution, the Oklahoma Supreme Court concluded that [a]bsent 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, 641 N.Y.S.2d 195 (N.Y.
App. Div. 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 defendants
objection); Bryant v. Kansas City Rys. Co., 228 S.W. 472, 475 (Mo. 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, 73 N.W. 913, 914 (S.D. 1898) (allowing the plaintiff to
be brought into the courtroom on a cot despite the defendants 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 Shelamiahs constitutional right to be present at her own trial.
Rather, absent waiver or extreme circumstances, a party may not be so
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
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur
BOEHM, J., dissents with separate opinion.
I respectfully dissent. The majoritys formulation allows for the possibility that extraordinary
circumstances can warrant exclusion of a party. But if this case does
not present extraordinary circumstances, except for incarcerated litigants it seems that no circumstances
could meet this test. It thus is in practical terms an absolute
right to a jury trial in civil cases. I agree with the
majority that the right to a trial includes a very strong presumption that
a party has the right to be physically present at the trial.
However, I do not believe this presumption stems from the right to a
jury trial in a civil case. Nor in my view does any
other provision of the state or federal constitution bar exclusion of a party
if the trial court finds that extraordinary circumstances require it. Accordingly, I
would reaffirm the standard announced by the Court of Appeals in Gage v.
Bozarth, 505 N.E.2d 64 (Ind. Ct. App. 1987), and allow a plaintiff to
be excluded in a bifurcated trial in the unusual circumstances when a party
establishes that another partys appearance or conduct is likely to prevent the jury
from performing its duty and the trial court has determined the other party
cannot assist counsel in any meaningful way. Id. at 67-68.
The proposition that a party is entitled to be present at a civil
trial seems intuitive to most American lawyers and judges. Yet the source
of such a right, if there is one, is rarely explored. The
presumptive or absolute right of a civil litigant to be present at trial
is not found in the text of any provision in either the federal
or state constitutions. Until now,
Gage was the only relevant precedent in
the state. The Court of Appeals in that case held that there
is no absolute right to be present in the liability phase of a
civil personal injury case. Rather, if the partys presence did not serve
the purpose of assisting counsel, but would risk prejudicing the jury, exclusion may
be proper. The federal courts follow the same rule. See Gonzalez-Marin
v. Equitable Life Ins. Socy, 845 F.2d 1140, 1146 (1st Cir. 1988); Helminski
v. Ayerst Labs., 766 F.2d 208, 218 (6th Cir. 1985).
It seems to me that the source of this right is instructive in
determining its scope. I believe the right to be present derives not
from the right to a jury trial, but from both the federal right
to due process of law and the concept of fundamental fairness in judicial
proceedings that is implicit, if not explicit, in our state constitution. Because
it stems from procedural fairness, the right is not absolute and must be
balanced against considerations of fairness to other parties. As a result, I
agree with the authorities that have concluded there is a right to be
present if a party can meaningfully communicate with counsel, but if not, the
presence of the party is subject to a balancing test in which fairness
to other parties is a proper consideration. This balancing is fact sensitive
and deference should be shown to the trial courts ruling. Accordingly, I
would affirm the trial court.
I. Source of the Right to be Present
A. The Right to a Jury Trial
The majority concludes that the right to be present is ancillary to the
right to trial by jury. I think this is contrary to precedent,
and also leads to incongruous results.
First, there is little authority for the view that the jury trial right
includes an absolute right to be present. There are some differences between
state and federal rights to a civil jury. But I am aware
of no difference between the two constitutions in the procedures to be followed
if a jury is required. Rather, both constitutions purport to preserve the
jury right as it existed at common law. Any differences between the
two are in the types of lawsuit in which the right to a
jury trial attaches, not to what that right entails if it applies.
Compare Songer v. Civitas Bank, 771 N.E.2d 61 (Ind. 2002), with City of
Monterey v. Del Monte Dunes, Ltd., 526 U.S. 687 (1999). Accordingly, federal
precedent is relevant in determining what rights are ancillary to the right to
a jury trial.
As far as I can determine, no federal court has found that the
right to be present at trial is guaranteed by the right to a
jury trial in a civil case. To the contrary, the Seventh Amendment
right to a jury
trial does not guarantee a civil litigant an absolute
right to be present during the trial. Federal precedent, like prior Indiana
precedent, is clear on this point.
See Helminski, 766 F.2d at 213
(noting due process, not the Seventh Amendment, is the source of any right
to be present); see also Harris v. King, No. 96-2452, 1997 U.S. App.
LEXIS 36353 at *3 (8th. Cir. 1997) (unpublished); Latolais v. Whitley, 93 F.3d
205, 207-08 (5th Cir. 1996), American Inmate Paralegal Assn v. Cline, 859 F.2d
59, 62 (8th Cir. 1988) (per curiam).
Finally, if the right is derived from the right to a jury trial,
it would not be equally available in a bench trial. Although I
find little direct relevant authority, it seems to me that the right to
be present is at least as strong in a bench trial where the
countervailing factor of fairness to the other party may be of diminished weight.
Thus both precedent and reason lead me to reject the jury trial
right as the source of the right to be present.
B. Due Process
Federal cases addressing this issue have balanced considerations of fairness to the excluded
party against any prejudice to interests of others. See Helminski, 766 F.2d
at 213 (partys appearance is not alone a basis to exclude, but exclusion
may be proper if there is no meaningful opportunity to communicate). Excluding
a litigant who can effectively communicate with counsel would deny the litigant the
opportunity to be heard and frustrate the very notions of fairness that the
Due Process Clause protects. And I agree that there is no merit
to the claim that retention of counsel waives the right to be present.
Carlisle v. Nassau County, 408 N.Y.S.2d 114, 117 (N.Y. App. Div. 1978).
But if a party cannot assist counsel in any meaningful way, fairness
to that party becomes a factor of diminished weight. And if the
partys presence may, as Gage puts it, prevent the jury from performing its
duty, fairness to the other parties is also entitled to consideration. If
that occurs, and there is no opportunity for meaningful communication, the balance of
fairness tips in favor of exclusion, and due process does not bar this
result. Gage, 505 N.E.2d at 67. Indeed, weighing the interests involved
and then barring a party from being present occurs with some regularity at
the trial court level in other contexts. For example, challenges to the
right to exclude a litigant are most prevalent in cases where a litigant
is incarcerated. In such cases, the incarcerated civil litigants right to be
present is not absolute. In determining whether to exclude the litigant, the
court must weigh the prisoners need to be present against concerns of expense,
security, logistics and docket control. Muhammad v. Warden, Baltimore City Jail, 849
F.2d 107, 111-12 (4th Cir. 1988). As a result, an incarcerated civil
litigant is often barred from the courtroom. To be sure, the district
court may not summarily exclude a prisoner-plaintiff from the trial of his
Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir. 1977);
Stone v. Morris, 546 F.2d 730, 735 (7th Cir.1976). But there are
a variety of factors that must be balanced in reaching this decision.
Just as the trial court has discretion to deny prisoner-plaintiffs the right to
be present on procedural grounds, in my view trial courts also have discretion
to deny other litigants access to some phases of a trial in those
rare cases where that action is appropriate.
Other State Constitutional Sources
As the majority notes, Indiana constitutional history sheds little light on the presence
vel non of an absolute right to be present in a civil trial
and Gage is the only relevant precedent in this state. Most states
follow the federal rule in this respect and permit exclusion where communication is
not possible. See Morley v. Superior Court of Ariz., 638 P.2d 1331,
1333 (Ariz. 1985) (plaintiff was in a coma and unable to communicate); Dickson
v. Bober, 130 N.W.2d 526, 529 (Minn. 1964) (plaintiff unable to comprehend trial
or express himself); Province v. Center for Womens Health & Family Birth, 25
Cal. Rptr. 2d 667, 675 (Cal. Ct. App. 1993) (noting infant unable to
communicate); Green v. N. Arundel Hosp. Assn Inc., 785 A.2d 361, 378 (Md.
Ct. App. 2001) (plaintiff could not comprehend or participate in the proceeding).
Often this result is reached without discussing what, if any, constitutional provision is
The majority notes Oklahoma has found a right to be present to be
grounded in its constitutional counterpart to the open courts provision found in Article
I, §12 of the Indiana Constitution. Cary v. Oneok, Inc., 940 P.2d
201 (Okla. 1997). In my view, Cary does not support the notion
that the right to be present is absolute. Indeed Cary itself states
that the Oklahoma courts ha[ve] never held, nor do we hold here that
a partys right to be present in the courtroom is absolute. Id.
at 204. In addition, Cary found that the party could assist counsel.
Id. at 205. Under those circumstances, I agree that the balance
of fairness must tip in favor of permitting the party to attend, but
I do not believe an Open Courts provision is a factor in that
result. More generally, the Open Courts provision of the Indiana Constitution assures
all litigants an opportunity to be heard but says nothing about the forum
and manner in which that proceeding is to go forward. Nothing in
the text or purpose supports any particular procedural right. Rather it guarantees
a remedy by due course of law, but leaves it to the law
to prescribe what course is due. See McIntosh v. Melroe Co., 729
N.E.2d 972 (Ind. 2000).
The case law from other jurisdictions finding a right to be present from
other sources is equally distinguishable on various grounds. For example, Carlisle dealt
with whether a party waives its right to be present by choosing competent
counsel, and does not deal with whether the party could meaningfully assist counsel.
Fla. Greyhound Lines, Inc. v. Jones, 60 So. 2d 396 (Fla. 1952),
states that the court will not exclude a plaintiff because of physical appearance,
but gives no constitutional basis for its decision. Rozbicki v. Huybrechts, 589
A.2d 363 (Conn. 1991), concerns whether a person who has the right to
be present at trial also has the right to be present during voir
dire, and does not reach the question concerning whether the right to be
present is absolute. In Mason v. Moore, 226 A.D.2d 993 (N.Y. App.
Div. 1996), the party was not excluded because, in part, his presence was
necessary to assist experts during their testimony. Moreover, Fla. Greyhound Lines, Inc.,
Bryant v. Kan. City Rys. Co., 228 S.W. 472 (Mo. 1921), and Chicago
Great W. Ry. Co. v. Beecher, 150 F.2d 394 (8th Cir. 1945), all
involved the review of the trial courts refusal to exclude the plaintiff.
Because the discretion should be given to the trial court, decisions upholding a
refusal to exclude do not support an absolute right to be present.
D. The Right to a Fair Trial
Although found in the text of no particular constitutional provision, fundamental fairness at
judicial proceedings is assumed and required by the Indiana Constitution. Sanchez v.
State, 749 N.E.2d 509, 514-15 (Ind. 2001). Similarly, the Due Process Clause
of the Fourteenth Amendment applies in state judicial proceedings and carries with it
a federal constitutional right to a fair trial in a civil case, albeit
no right to a particular result. See
Chicago Council of Lawyers v.
522 F.2d 242, 248 (7th Cir. 1975);
Bailey v. Systems Innovation, Inc.,
852 F.2d 93, 98 (3d Cir. 1988) ([F]airness in a jury trial, whether
criminal or civil in nature, is a vital constitutional right.); John E. Nowak
& Ronald D. Rotunda,
Constitutional Law § 13.8 (6th ed. 2000) (the Constitution
guarantees a fair procedure, not a particular result). But this right under
either the federal or state constitution does not guarantee the right to be
present. Rather, it guarantees fundamental fairness to all parties. A claim
of right must be evaluated in terms of its impact on others as
well as vindication of the interests of the claimants. When other constitutional
concerns, such as due process, cannot be infringed upon because of the factual
circumstances of a particular case, the defendant should have the opportunity to convince
the court that his or her right to a fair trial will be
in jeopardy unless the plaintiff is barred during the liability phase of a
trial. In other words, if a civil trial is bifurcated, and the
plaintiff cannot meaningfully aide counsel, this same principle of fairness permits a party
the opportunity to show that a fair trial requires the exclusion of an
opposing party in the liability phase.
II. Exclusion in This Case
Here, the trial court made a determination that the presence of the plaintiff
would be highly prejudicial to the Defendants and that the plaintiff could not
testify about the events related to liability and could not aid in the
presentation of Plaintiffs case. The child has numerous physical and mental disabilities,
including cerebral palsy and Erbs palsy. I do not suggest that these
conditions in any way diminish her due process rights. But neither do
they overcome the right of an opponent to a fair trial. In
the unusual circumstance where a party cannot meaningfully assist counsel and the partys
presence may impair a fair trial, a trial court judge should be vested
with the discretion to exclude the party. Here, the trial court judge
had the opportunity to observe the child in a videotaped deposition and assess
her ability to aid counsel and the potential affect of her appearance on
a jury. The child also was unable to testify about any matters
concerning the liability of the defendants. I do not believe that based
on these facts the trial court judge abused his discretion in determining that
her appearance, though highly relevant to damages, was not a proper factor in
the liability phase.
In short, the trial court found that the defendants right to a fair
trial would be infringed by plaintiffs presence, and that the due process rights
of the plaintiff would not be meaningfully impaired by her absence. This
finding is highly fact sensitive and should be reviewed under an abuse of
discretion standard. Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002) (trial
courts application of law to a fact sensitive inquiry is reviewed for an
abuse of discretion), Gage, 505 N.E.2d at 67 (trial courts have the discretion
to exclude plaintiffs).
Just as courts often exclude evidence if its prejudicial effect outweighs its probative
value, courts may exclude a party when it can be demonstrated that his
or her presence would be prejudicial and the absence of the litigant would
not impair other constitutional guarantees because of the partys inability to assist counsel.
Even if the presence of a party is significantly prejudicial, other interestsmost
frequently the right to assist counselmay nevertheless require the partys presence. But
in the absence of a showing of the impairment of those interests, exclusion
may be ordered. That is a matter for trial court discretion and
I would not find it abused in this case.
Shoulder dystocia occurs when an infants shoulder becomes lodged behind the
mothers pubic bone and impedes its progress through the birth canal.
Merck Manual 1906 (Robert Berkow, M.D., ed., 16th ed. 1992).
See R. at 1149.
The record shows: Shelamiah suffers from cerebral palsy in all four
extremities and Erbs 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.
Footnote: 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,
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 Parliaments 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
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 states
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).
Article I, Section 13(a) of the Indiana Constitution guarantees the right
to trial by jury in criminal cases.
See Ind. Const. art. I,
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
be 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).
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.