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Preiss v. Moritz

District court's judgment reversed in a medical malpractice case where fewer than 10 qualified jurors returned the verdict thereby materially injuring the plaintiff as a matter of law.

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Appellants Duane Preiss (representing his children, Alexis and Ronni Preiss, and the estate of his deceased wife, Traci L. Rasmussen-Preiss) and Shirley Rasmussen (Traci’s mother) (together “Preiss”), appeal from a judgment based on a jury verdict in favor of appellees Charles Moritz, Central Texas Kidney Associates, P.A., Wilbert Polson, and Austin Radiological Association, P.A. (together “the healthcare providers”). Preiss complains on appeal that the district court erred in denying him a new trial because two unqualified jurors served on the district-court jury. We will reverse the district court’s judgment and remand the case to that court.

FACTUAL AND PROCEDURAL BACKGROUND

Preiss brought a medical-malpractice action against the healthcare providers, arguing that they were negligent in performing a kidney biopsy on Traci and that their negligence was the cause of her death. At trial, by a 10-2 vote, the jury found that any negligence of the healthcare providers was not a cause of Traci’s death, but rather her death was caused, at least in part, by her own negligence. The district court rendered judgment on the jury’s verdict that Preiss take nothing. Preiss filed a motion for new trial, arguing that one of the jurors was statutorily disqualified from serving as a juror and had also committed juror misconduct. Later, the district court granted Preiss leave to file an amended motion for new trial. Preiss’s amended motion was filed more than thirty days after the district-court judgment. See Tex. R. Civ. P. 329b(b) (stating that leave of court required to file amended motion for new trial more than thirty days after judgment ordered). The amended motion added allegations that a second jury member, Irene Olivares Garcia, was also statutorily disqualified from serving on the jury. After a hearing, the district court denied Preiss’s amended motion.

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