Presiding Judge M. Yvette Miller, Georgia Court of Appeals (Photo: John Disney/ALM)

The Georgia Court of Appeals upheld a trial judge's decision to reseat five African American jurors who were struck by the defense in a trial that ultimately delivered nearly $1.3 million to a woman injured in a go-kart wreck at a Roswell track.

After the defense used all of its peremptory strikes against black jurors, the plaintiffs asked the court to decide whether the dismissals were a violation under the U.S. Supreme Court's decision in Batson v. Kentucky, which bars race-based jury selection.

Although the defense argued that the strikes were for other reasons, Fulton County State Court Judge Patsy Porter ruled that, in five of the defense's six peremptory strikes, those reasons were pretextual and not race-neutral.

The defense's sixth strike was not used.

Defense counsel at trial included Barbara Marschalk, Matthew Nanninga and Robert Quinn of Drew Eckl & Farnham. On appeal, they were joined by Robert Marcovitch of Lewis Brisbois Bisgaard & Smith, who declined to comment.

Plaintiffs attorney Lloyd Hoffspiegel said other posttrial issues, including a sanctions motion against the defense and a request for attorney fees, were placed on hold while the appeal was pending.

Hoffspiegel tried the case with his son and Hoffspiegel Law partner, Alex Hoffspiegel, and Mark Link and Ashley Dawkins of Tucker's Link & Smith. For the appeal, they enlisted the aid of Hadden Law Firm principal John Hadden.

As detailed in the appellate ruling and court filings, the case involved a 2014 incident at Andretti Indoor Karting and Games in which plaintiff Tanisha Marshall was injured when she hit an unpadded section of wall after being bumped by another driver.

Marshall sued the track's corporate owner, AIKG LLC, in 2016, and the case went to trial in December 2017.

The trial began with a hiccup when a juror declared on the first day that she could not be impartial. Porter declared a mistrial and held the juror in contempt.

During voir dire for a second jury, Marshall's attorneys raised a Batson challenge, arguing that, of the 25-member jury pool, 15 were white and 10 were black, as is Marshall.

Of those 10, only three made it to the jury.

Noting that all the defense strikes were of African American panelists, Porter directed AIkG's counsel to respond to the Batson challenge.

The defense began by noting it had not used all six of its strikes and still had one left.

A defense lawyer identified as Marschalk in a transcript then discussed the stricken jurors individually.

The first was “a retired gentleman and in my experience I typically do not like retirees, no matter what their background is,” she is quoted as saying. “I find that they, I don't know if it's from daytime television or what, but in my experience retirees have not been particularly good defense jurors.”

The next juror “we didn't learn that much information from,” she said. “The only note that I have written down about [the juror] was that she commented during [Lloyd] Hoffspiegel's voir dire that, when people drive too fast, it can lead to great injuries.”

The third juror also didn't offer much information, “and the only thing I wrote down about her is that she had a pretty visceral reaction to one of the questions during Mr. Hoffspiegel's examination, which she was very, very, very adamant about seat belt usage and seemed to indicate that she thought seat belts would basically prevent any sort of injury,” she said.

The fourth, Marschalk is quoted as saying, “caused me a little bit of concern and that was that, if you don't follow the rules, people get hurt.”

Marshall's counsel had earlier indicated that “this is going to be a safety rules case,” she said.

She said the defense also “didn't learn a lot about” the fifth strike, but one thing she wrote down was “businesses should make sure that people cannot get hurt, and that's a direct quote from the voir dire process.”

Porter allowed Marshall's lawyers to argue why the defense reasons were pretextual, then ruled that those reasons did not satisfy the Batson requirements “based upon the fact that race neutral reasons were not given; based upon the fact that several of the jurors … were asked few, if any questions.”

“Based upon the strikes that the defense made, it was an overwhelming pattern of strikes against African Americans,” Porter said, and “not a lot of meaningful question[s]” were asked of the dismissed jurors.

She reseated the stricken jurors, and the case went to trial.

The jury delivered a post-apportioned award of $1.28 million after a two-day trial.

AIKG appealed Porter's Batson ruling, and on June 12  the Court of Appeals affirmed.

The opinion, written by Presiding Judge Yvette Miller with the concurrence of Judges Clyde Reese and Elizabeth Gobeil, said there are three prongs to sustaining a Batson challenge: The challenger must make a prima facie showing of racial discrimination; the challenged party must then provide a race-neutral explanation; then the court decides whether the challenger has proven a discriminatory intent.

Porter's ruling followed all three steps, Miller wrote.

“Given that all of the stricken jurors were African-American, as well as the trial court's finding of AIkG's admission that it did not 'glean' information from several of the jurors [and] the disparate lack of questioning of the stricken jurors … the trial court did not clearly err in finding purposeful discrimination in AIKG's use of its peremptory strikes,” Miller said.

While Marshall's lawyers welcomed the ruling, they noted that there are still other unresolved issues.

In addition to the pending sanctions motion, AIKG's excess insurance carrier has filed a declaratory judgment action in federal court in Atlanta seeking to avoid its portion of the judgment and any additional sums that may accrue if the sanctions bid is successful.