dissenting.
Respectfully, I dissent.
The Majority Opinion displays the same indifference to obvious bias previously displayed by the Kentucky Court of Appeals in Mackey v. Greenview Hosp., Inc., Ky. App., 587 S.W.2d 249 (1979), which it cites as authority. The same hand that authors the present Opinion concurred in result in the Mackey case.
Mackey was wrongly decided. It doesn’t take a Rhodes Scholar to realize that a jury packed with friendly acquaintances and former patients cannot be regarded as a neutral jury, and should not be tolerated in a just society even if the jurors profess to be unbiased. In Mackey the Court of Appeals failed to redress jury selection procedures which were flagrantly unfair, and other misconduct by trial counsel which should never be condoned by an appellate court. But at least Mackey was a Court of Appeals’ Opinion, not ours.
Now we have decided to reverse a case wherein a panel of the Court of Appeals, unanimous in its opinion, refused to rubber-stamp a jury of former patients whose babies were delivered by these defendants/obstetricians, recognizing such jurors “must be presumed bias.” In speaking to the jurors who should have been struck for cause, the Court of Appeals stated:
“Here, it is significant that not only did all three women have lengthy professional relationships with one or more of the physicians, but also that the physicians were their obstetricians/gynecologists. We cannot ignore the bonds that have formed in such relationships, particularly where a child has been born, nor the often confidential nature of matters discussed. Certainly, the nature of the relationship between a physician and the prospective juror is a paramount consid-eration_ [W]e are not able to disregard the possible bias in this case and find that the trial court in so doing abused its discretion.”
This is not speculation; it is common sense. This progressive decision by the Court of Appeals in this case should be applauded, not rejected. It is a worthy offspring of equally worthy decisions rendered by the Court of Appeals in Davenport v. Ephraim McDowell Mem. Hosp., Ky.App., 769 S.W.2d 56 (1988), and by our Court in Montgomery v. Commonwealth, Ky., 819 S.W.2d 713 (1991), two cases which put providing a fair trial above protecting the prerogatives of the trial judge, as we should do now.
In the final analysis, we are confronted here with the trial judge’s refusal to excuse jurors whose babies had been successfully delivered by the same doctors now defending themselves against a charge of mistreating someone else’s baby. The Majority Opinion suggests that, as long as these jurors say that they would not be biased by their previous relationship to their obstetrician, there is no reason to presume otherwise: this is incredibly naive, and ignores reality. The Majority Opinion says that the claimant’s counsel should have asked more questions: this would only have provided glowing testimonials about the doctors for their fellow jurors to digest. The Majority Opinion tells us that claimant’s counsel should have called in experts to testify about any so-called “special” bond between a woman and the doctor who nurtures her during pregnancy and delivers her baby, that to presume bias in the absence of such testimony is speculation rather than reasonable inference. But the probability of bias is overwhelming, and to hold otherwise defies common sense.
No litigant should be required to plead the case for her baby in such circumstances.