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Gootee v. Clevinger12/1/2000
Appeal from the Circuit Court for Marion County, Victor J. Musleh, Judge.
This is an appeal from a final judgment entered after a jury verdict in favor of the defendants below. Because the lower court erred in failing to excuse two jurors for cause, we reverse.
The appellant, John Gootee [ "Gootee"], as personal representative of the Estate of Leonie Gootee (his wife), was the plaintiff below in a wrongful death claim based on the alleged medical malpractice of the appellee, Sidney Clevinger, M.D. [ "Clevinger"]. The complaint alleged that Clevinger failed to diagnose and treat Leonie Gootee's heart disease after an electrocardiogram revealed an abnormality.
At trial, during voir dire, a potential juror, Davis, made the following statements:
DAVIS: My daughter's in-laws are patients of Dr. Clevinger's.
COURT: Your daughter's in-laws are. Okay. Do you know him socially?
DAVIS: His father was my mailman.
COURT: Okay. Anything else?
DAVIS: No.
COURT: Okay. So if you passed him on the street would you know him?
DAVIS: Yes.
COURT: You would say hello?
DAVIS: Well, yes, because he was in our building. We're Ocala Eye Surgeons on Magnolia. His office was upstairs and ours was down.
DAVIS: He's also the doctor for my daughter's in- laws and he's been very good to them in working with my daughter and her husband doing a lot to help them. So I really - I've got to be honest about this. I would try to be impartial but, in all fairness to both sides, I'm not sure that my sympathies wouldn't be with Dr. Clevinger even though I would not - you know, I would feel bad about it. I just wish I could say a hundred percent that I would be strictly impartial but I really can't say that.
KNOX: You have a doubt about whether or not you could be [Counsel fair to the parties in this case given your knowledge of for Gootee] Dr. Clevinger?
DAVIS: I hope I wouldn't but I'm not going to tell you that positively. I'm sure it's going to be an emotional thing. I mean it's very difficult in a case like this. Your sympathies go with both parties.
KNOX: But because of your relationship with Dr. Clevinger it would make it -
DAVIS: It would make it more difficult, definitely, yes.
KNOX: What you're saying is you have a concern about whether you could be fair knowing that relationship?
DAVIS: Yes.
HURT: You feel that you can be fair and equal to both sides, [Counsel now that you've heard lawyers talking for this amount for Clevinger] of time?
DAVIS: Since I am in the position that I am in, I would do everything I could to be fair to both sides.
HURT: I think that's -
COURT: What does that mean, everything you can to be fair? Could you be fair?
DAVIS: Yes, I would try to be fair.
COURT: Not try, can you be?
DAVIS: I hope I can. How can anybody tell you positively when we hear everything right now what we're going to be able to do?
HURT: Well, he's not asking you the result.
COURT: You're not telling us what you're going to do. You must be able to say I can be fair, not I'll try. I can tell you right now I'm going to be fair. But you've got to be able to tell me the same thing.
DAVIS: Most people tell me I'm fair.
COURT: Well, what's your answer, then, to my question?
DAVIS: Yes, I can be fair whether I like it or not.
COURT: They start out at zero. How about in the back there? Nothing to nothin
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