Kesterson v. Jarrett

A party may not be denied the right to be present in court based solely on the risk that her physical or mental condition may generate improper sympathy, even if that condition prevents them from actively participating or understanding the proceedings.

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Under the longstanding law of Georgia, the parties to a lawsuit have a fundamental right to be present in court during the trial of their case. The issue presented in this appeal is whether a party may be denied that right and excluded from the courtroom because her physical and mental condition may evoke undue sympathy from the jury and thereby improperly prejudice the other party. This appears to be a question of first impression for Georgia’s appellate courts, likely because exclusion of a party from trial for this reason is such an exceptional event in this State. In this case, however, the trial court excluded Appellant Kyla Kesterson, a young child with severe cerebral palsy, from most of the liability phase of the trial of her and her parents’ lawsuit alleging that her condition was caused by Appellees’ medical malpractice.

The Court of Appeals affirmed that ruling, adopting a test used by the United States Court of Appeals for the Sixth Circuit, which gives the trial court discretion to exclude a civil party when the party’s physical and mental condition may generate jury sympathy and her mental condition precludes her from meaningfully participating in and understanding the proceedings. See Kesterson v. Jarrett, 307 Ga. App. 244, 250 704 SE2d 878 2010 citing Helminski v. Ayerst Labs., 766 F2d 208, 218 6th Cir. 1985. We conclude, however, that a party may not be excluded from her own trial simply because her physical and mental condition may evoke sympathy, even under these circumstances. Instead, trial courts can and should address the risk of undue sympathy using jury instructions and other common and time-tested means of ensuring that both parties receive a fair trial, without infringing on the parties’ right to be present. Accordingly, we reverse.

Kesterson v. Jarrett

A party may not be denied the right to be present in court based solely on the risk that her physical or mental condition may generate improper sympathy, even if that condition prevents them from actively participating or understanding the proceedings.

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