Texas tort reform laws have made it extremely tough for medical malpractice plaintiffs to prevail in Texas civil courtrooms.

So Houston attorney Robert Killeen used a tactic normally used in criminal law litigation to convince an appellate court to reverse a take-nothing judgment against a heart surgeon and remand his plaintiff client's med mal case for a new trial.

Killeen represents Carolyn Jackson, who sued heart surgeon Daniel Garber Stroud for medical malpractice after her husband died from complications related to heart bypass surgery. Jackson is African-American and Stroud is Caucasian.

During jury selection, one of four black panelists was struck for cause. And at the conclusion of jury selection, Stroud used his peremptory strikes to remove the three remaining black panelists.

Jackson then made a Batson challenge—named after the 1986 U.S. Supreme Court decision in Batson v. Kentucky, which stands for the proposition that a prosecutor's use of peremptory challenge in a criminal case may not be used to exclude jurors based solely on their race.
But the trial court overruled Jackson's Batson challenge and no black panelist was seated on the jury. The jury later returned a defense verdict and the trial court signed a take-nothing judgment against Jackson.

Jackson appealed the judgment to Houston's First Court of Appeals arguing that the trial court abused its discretion in overruling her Batson challenge because Stroud's purported reasons for striking the black panelists were pretexts for unlawful racial discrimination.

Yet Stroud contented on appeal that the trial court properly overruled Jackson's Batson challenge because she failed to prove purposeful discrimination.

In their decision, the First Court focused on Stroud's decision to strike a black panelist, P. Howe, because she worked as a certified nursing assistant. Stroud argued in his appellate brief that Howe was struck because a CNA position requires little education and her employment in the health care field would lead her to presume expertise in medical malpractice.

But the appellate court concluded that Stroud's explanations for striking Howe were unpersuasive because he didn't bother to question Howe about his concerns during jury examination.

“The record shows that Stroud failed to ask panelist Howe any questions related to his belatedly-expressed concerns about her education, her willingness to decide the case based on the evidence rather than her experiences, or her ability to follow an instruction from the trial court to refrain from informing jurors of special medical knowledge she has acquired during her career,” wrote Justice Harvey Brown.

The decision reverses the defense win and remands the cases for a new trial, noting, “We have no reason to doubt that the attorney responsible for the challenged peremptory strikes is 'pure of heart,' and we assume that he is.”

Killeen, who represented Jackson both at trial and on appeal, said he was prepared for filing and defending his Batson challenge even though they are rarely lodged in civil cases in Texas.
“It's incredibly unusual,” Killeen, a partner in Killeen & Stern, said of the Batson challenge. “Our firm does a lot of criminal work and from my perspective, not a lot of civil lawyers know how to handle a Batson challenge in a civil trial.''

Having all of the African-American jurors struck from the panel was extremely problematic for his African-American client—something the First Court has now corrected, Killeen said.
“It's a tremendous decision. It's extremely well laid out by the First Court,'' Killeen said of the ruling.

Donald S. Stephens, a Pearland attorney who represents Stroud, said his client has not decided whether to appeal the First Court's decision.

“We're disappointed by the decision but we look forward to the resolution of the case,'' Stephens said.