WEST VIRGINIA RECORD

CHARLESTON – Justices of the West Virginia Supreme Court of Appeals have laid down a simple rule for judges choosing jurors: When in doubt, throw them out.

Circuit Judge Mark Karl of Marshall County broke that rule, the Justices unanimously decided Nov. 16.

Karl seated the husband of a Reynolds Memorial Hospital nurse on a jury in a trial against the hospital. The jury ruled in the hospital's favor.

Now Karl must hold a new trial.

Under West Virginia law and common law, a judge must disqualify a potential juror who has an interest in the outcome of a trial.

Because juror qualification issues arise quickly, the Justices wrote, a judge must resolve any uncertainty and doubts in favor of excluding the juror.

The Justices wrote that Karl expressed concerns about "Juror W" before trial but decided to let him serve.

They wrote, "Juror W's earning power, household income, and family welfare was directly and specifically dependent in part on one of the parties to the lawsuit."

They wrote, "Moreover, the juror's spouse worked at the specific physical location where the alleged acts of negligence occurred, and in the same job classification as the individual hospital employee who is alleged to have been negligent."

In the suit, Mike Mikesinovich seeks compensation for injuries to his late mother, Mary Mikesinovich.

His mother sued Reynolds Memorial in 2001, claiming she fell and broke a hip as a nurse tried to move her from a bed to a wheelchair.

Mary Mikesinovich died in 2003. Her son pursued the suit as executor of her estate.

Karl set trial for 2004, before a jury of six.

In jury selection Mikesinovich challenged five of six jurors for cause, arguing they all had interests in the outcome.

Mikesinovich challenged Juror W because his wife had worked at Reynolds Memorial for 23 years.

Karl rejected the challenges, finding no relationship between the five jurors and any of the parties.

After losing the verdict, Mikesinovich moved for a new trial. Karl denied it.

Mikesinovich appealed. James Graham Bordas Jr., James Graham Bordas III and Geoffrey Brown of Bordas & Bordas in Wheeling represented him.

Ancil Ramey, James Wright and Hannah Curry of Steptoe and Johnson in Charleston represented Reynolds Memorial.

Mikesinovich continued to plead for five disqualifications, but the Justices wrote that the decision on Juror W made it unnecessary to consider the rest.