Jordan Ex Rel. Jordan v. Deery

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

DAVID SPALDING
ROBERT PALMER

JANE BENNETT

May, Oberfell & Lorber
South Bend, Indiana

KARL MULVANEY

NANA QUAY-SMITH

Bingham Summers Welsh & Spilman LLP
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

SHELAMIAH D. JORDAN bnf GENEVA )
JORDAN AND LYNN JORDAN, )
) Supreme Court Cause Number
Appellants (Plaintiffs), ) 75S05-0106-CV-310
)
v. )
)
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 )
HOSPITAL, )
)
Appellees (Plaintiffs). )

APPEAL FROM THE STARKE CIRCUIT COURT
The Honorable David Matsey, Judge
Cause No. 75C01-9009-CP-258

CIVIL TRANSFER

November 22, 2002

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 dystocia[1] and the umbilical cord wrapped around
the infant’s neck.[2] 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 Erb’s 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 Shelamiah’s 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
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 plaintiff’s 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.

II. Discussion

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 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 Plaintiff’s 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, 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), 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 plaintiff’s 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 plaintiff’s
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 plaintiff’s 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 plaintiff’s 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 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 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 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 “[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 defendant’s 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 defendant’s
objection that the plaintiff’s 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.
BOEHM, Justice.

I respectfully dissent. The majority’s 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 party’s
“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
party’s 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. Soc’y, 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 court’s 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 Ass’n 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 (party’s 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 party’s 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 litigant’s right to be present is not
absolute. In determining whether to exclude the litigant, the court must
weigh the prisoner’s 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 civil rights suit. 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.
C. 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
Women’s Health & Family Birth, 25 Cal. Rptr. 2d 667, 675 (Cal. Ct. App.
1993) (noting infant unable to communicate); Green v. N. Arundel Hosp.
Ass’n 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 relevant.
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 party’s
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 court’s
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. Bauer, 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 Plaintiff[’]s case.” The child has
numerous physical and mental disabilities, including cerebral palsy and
Erb’s 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 party’s 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 defendant’s right to a fair
trial would be infringed by plaintiff’s 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 court’s 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 party’s inability to assist counsel. Even if the presence of a party
is significantly prejudicial, other interests—most frequently the right to
assist counsel—may nevertheless require the party’s 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.

-----------------------
[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 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).

[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 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).
[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.