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45 136 ;
COMMOWEALTH OF MASSACHUSETTS -
SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT
HAMPSHIRE, ss. CIVIL ACTION NO.
1580CV00130
)
David Kielson and Gail Kielson, )
Plaintiffs, )
v. ) Plaintiffs’ Suggested Voir Dire Ques-
) tions to be Submitted By the Court
Brian D. Johnson, M.D., Albert Lim, D.O. )
Linda Preston, M.D. )
Defendants. )
A. Knowledge of the Parties, Counsel, and Witnesses
1. Are any of you or is any member of your immediate family personally acquainted with the
Plaintiffs, David or Gail Kielson, related to them by blood or marriage, or do any of you
or does any member of your immediate family have any connection of any kind with the
Plaintiffs?
2. The Plaintiffs are represented by Scott Sanes and Ken Gogel, who are seated at counsel
table. Are any of you or is any member of your immediate family personally acquainted
with the Mr. Sanes or Mr. Gogel? Are any of you related to them by blood or marriage, or
do any of you or does any member of your immediate family have any connection of any
kind with them?
3. The Defendants are seated at counsel table. Are any of you or is any member of your im-
mediate family personally acquainted with the Defendants, Dr. Brian Johnson, Dr. Albert
Lim or Dr. Linda Preston , related to them by blood or marriage, or do any of you or does
any member of your immediate family have any connection of any kind with the Defen-
dants?4, The Dr. Brian Johnson is represented by , who is seated at counsel table.
is/are with the law firm of . Are any of you or is any member of your
immediate family personally acquainted with the , or any of the other attorneys
from his/her/their law firm, ? Are any of you related to them by blood or mar-
riage, or do any of you or does any member of your immediate family have any connec-
tion of any kind with them?
5. The Dr. Albert Lim is represented by , who is seated at counsel table. is/are
with the law firm of . Are any of you or is any member of your immediate family
personally acquainted with the or any of the other attorneys from his/her/their
law firm, ? Are any of you related to them by blood or marriage, or do any of you
or does any member of your immediate family have any connection of any kind with
them?
6. The Dr. Linda Preston is represented by . who is seated at counsel table. is/
are with the law firm of . Are any of you or is any member of your immediate
family personally acquainted with the , or any of the other attorneys from his/her/
their law firm, ? Are any of you related to them by blood or marriage, or do any of
you or does any member of your immediate family have any connection of any kind with
them?
7.1 am going to read a list of witnesses who may be called during this trial. Please respond if you
know any of these persons:
The Plaintiffs may call the following persons as witnesses:
[list witnesses from Final Joint Pretrial Order, including expert witnesses]
The Defendants may call the following persons as witnesses:
[list witnesses from Final Joint Pretrial Order, including expert witnesses]
Is any panel member related by family or marriage to any of the individuals that I have just
named?
Are you personally acquainted with these persons, or do you have any knowledge of them, di-
rectly or indirectly, through your social, business or professional lives?B. Knowledge of the Case
8. Have any of you read or heard anything about this case from any source, and I am not indicat-
ing from this question that there has been any publicity concerning it?
C. Previous Jury Duty
9. Have any of you served as jurors in either criminal or civil cases, or as members of a grand
jury, either in the state or federal courts?
a. Civil
b. Criminal
c. Grand Jury
Would your prior experience have any effect or influence on your ability to serve as a fair and
impartial juror in this case?
D. Business Dealing with the Parties
10. Have you or any member of your immediate family had business dealings with the
Plaintiff(s) or the Defendant(s)?
E. Previous Litigation of Prospective Jurors
11. Have any of you or has any member of your immediate family ever participated in a lawsuit
of any kind, as a party or in any other capacity?
F. Ability to Sit as Fair and Impartial Jurors
12. Does any panel member have any feeling--thought--inclination--premonition-- prejudice-
-religious belief or persuasion--or bias--which might influence or interfere with your full
and impartial consideration and which might influence you either in favor of or against
either the Plaintiff(s) or the Defendant(s)?13,
14.
15.
16.
You must understand that it is most important for you to keep open minds until you have
heard all the evidence and received the Court’s instruction concerning the law. Is there
anyone here who would not be able to keep an open mind until all of the evidence is pro-
duced and the Court’s instructions are received?
Will you take the law as the Court instructs you, without any reservation whatsoever, and
apply the facts to the Court’s instructions on the law? If you cannot do this, please hold
up your hand.
Do you recognize and accept the proposition that jurors are the sole judge of the facts and
the Court is the sole judge of the law? If you do not recognize this or cannot accept this,
please hold up your hand.
Is there anyone here who would not be able or willing to render a verdict solely on the
evidence presented at the trial and the law as I give it to you in my instructions, disre-
garding any other ideas, notions, or beliefs about the law that you may have?
E. Personal Inconvenience
17.
18.
Does any person here have any medical disability or problem -- such as difficulty in see-
ing or hearing -- or any illness that might cause a problem in serving as a juror in this
case?
This trial may last as much as 2 weeks. The exact period of time is impossible, of course,
to know today. Does any prospective juror have any immediate personal or family situa-
tion that would limit his or her ability to serve as a juror in this case for the period of
time?
F. Lawsuit that involves allegations of Medical Negligence
19.
Have you, or family member, or a close personal friend, ever had any experience, either
so good or so bad, with a doctor or any other health care provider, that would make it dif-
ficult for you to sit as an impartial juror in this matter?20."
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24
25.
26.
~ if the law and the evidence ‘warranted, could you | award ard damages fort the e plaintiff e even
you felt sympathy for the doctor?}
_ Regardless of f of, plaintiff's p present at condition, if tt the law and evidence ‘warranted, could yc you}
"Fender a verdict in favor of the defendant despite being sympathetic to the plaintiff”
“Have you, any ‘family member, or close personal { friend ever worked ‘for: : Attorneys, Doct
“tors, Hospitals or Physical Therapists, Any type of health care provider, Any ambulance A
EMT /Rescue?!
“Have you, ‘or ‘any ; members of y your family, | been 1 employed i in| processing, ,, investigating or
handling any type of medical or personal injury claims? If so, please describe.
__@ Is there anything that: you ‘may nay have read in the | print ‘media or seen on television or!
~~ heard on the radio about medical negligence cases or caps or limits on jury verdicts or
awards that would prevent you from deciding this case fairly and d impartially on th the e facis|
presented?,
This case involves a claim against the defendant for injuries suffered by the plaintiff as a
result of alleged medical negligence. Do you have any existing opinions or strong feel-
ings one way or another about such cases?
If the answer to Question No. 25 is affirmative, ask the following question at sidebar: If
so, what are your opinions?
Do you have any familiarity with dementia or complications after a surgery or any famil-
iarity with the types of treatment available for dementia?27.
28.
29.
30.
Are you, or have you ever been, related (by blood or marriage) to anyone affiliated with
the health care field? If so, please describe:
Have you or any relative or close personal friend ever had a dispute with respect to a
health care issue of any kind with a doctor, chiropractor, dentist, nurse, hospital employ-
ee, technician or other person employed in the health care field?
Have you or any relative or close personal friend ever brought a claim against a doctor,
chiropractor, dentist, nurse or hospital for an injury allegedly caused by a doctor, dentist,
nurse or hospital?
Have you or any relative or close personal friend ever considered bringing a medical or
dental negligence action but did not do so?
G. Concluding Question
31.
Finally, can any of you think of any matter that you should call to the Court’s attention
that may have some bearing on your qualifications as a juror, or that -- even to the slight-
est degree -- may prevent your rendering a fair and impartial verdict based solely upon
the evidence and my instructions as to the law?Plaintiffs Proposed Voir Dire Questions
Introduction
-60 second intro of myself and co counsel to find out if anyone on the jury panel knows
us
-60 second intro of my clients
-60 second intro of defense counsel and defendants
Background-Voir Dire” is french and translates to mean “to speak the truth”, it is the
only chance during the entire trial that lawyers speak to the jurors and jurors can answer
or ask questions. The court allows this to determine if jurors might have prejudices or bi
ases in their background (which we all have) that would keep them from being fair to
both sides.
Question: Can I ask for everyone to commit with a show of hands to responding to the
lawyers this morning with full candor?
Background-This is a lawsuit that alleges that David Kielson was not given enough im
portant information to determine whether he should go forward with a hip surgery against
the 2 anesthesiologists involved in his care before the surgery and it alleges that he was
not treated properly by the attending physician in the hospital after the surgery.
Questions: | Does anyone have any connection with the medical community thru work,
education, close family members?
Does anyone have any connection with the insurance industry?
Does anyone feel that it is simply wrong to sue doctors even if the evi
dence shows that their care fell below the standard of care?
Liability
Background-each of us is an expert in driving and can testify that running a stop sign is
negligence. For Doctors there are medical stop signs called “Standard of Care” and you
will hear expert testimony on the standard of care in this lawsuit.
Question: Can everyone follow the law and instructions of the Judge and hold a doctor
responsible if they run a medical stop sign that caused injury to Mr. Kielson?
~Background: Negligence is not intentional conduct. We aren’t here to prove the doctors
intentionally hurt Mr. Kielson.
Question: Is there anyone who would require proof of intentional conduct to hold the
doctors responsible?-Background: From the perspective of the Plaintiffs in this case, the 2 doctors that con-
sulted with Mr. Kielson before his hip surgery should have either warned him that the
anesthesia could aggravate or accelerate his mild dementia or at least called or talked to
Mr. Kielson’s Neurologist. We allege that because they failed to inform him properly, he
went forward with the surgery and as a direct result his dementia went from mild to se-
vere in a very short period of time.
Question: Is there anyone who feels that they can not follow the expert testimony on
what an anesthesiologist is supposed to inform patients before surgery and use their
common sense to determine if there was proper medical care in this case?
-Background: After the surgery, it was important that Mr. Kielson be fully oxygenated
because of his mild dementia and sleep apnea. The Plaintiffs in this case maintain that the
attending doctor failed to take proper measure to insure that he was fully oxygenated and
that also accelerated or incited his dementia to get worse fast.
Question: Anyone who can’t listen to expert testimony on the subject of post surgical
care and use their common sense to determine if the attending doctor failed to exercise
proper medical care?
-Background: Almost all incidents in this world are caused by a combination of factors.
In medical negligence cases, the Plaintiffs are not required to prove that the action of one
doctor was thee only cause. The judge will define “proximate cause” and we expect to
prove that but for the acts or omissions of each of these doctors, Mr. Kielson’s dementia
would not be in the severe state that he currently is.
Question: Is there anyone who feels that we need to prove the doctors actions were the
only or sole cause of Mr. Kielson’s dementia becoming severe?
-Background: The plaintiffs do not have to prove their allegations against the doctors
“beyond a reasonable doubt” as they would in a criminal case. In civil cases we must
prove our allegations by a “preponderance of the evidence” which means more likely
than not.
Question: Is there anyone who feels that they would need us to meet the higher standard
of beyond a reasonable doubt because the lawsuit is against doctors?
-Background: The evidence of the doctors failures to exercise proper care in this case
along with the damages to Mr. Kielson will be brought to you by way of expert testimony
from both Mr. Kielson’s treating neurologist, Dr. Emily Clionsky and neuropsychologist,
Dr. Mitchel Clionsky along with an Anesthesiologist that practices at a hospital in Bos-
ton, Dr. Eduard Vaynberg.
Question: Is there anyone who is unable to consider both the testimony of treating physi-
cians and expert witnesses to determine if the standard of care was met when treating Mr.
Kielson?Til.
Damages
-Background: There are 2 types of damages in personal injury cases. One type is econom
ic and one is noneconomic. Economic damages are items like loss of wages or medical
bills. Non economic are damages like physical pain, mental anguish and impairment of
ability.
Question: Is there anyone who, no matter what the evidence is, can not award damages
for physical pain? mental anguish? impairment? Loss of consortium to Mrs. Kielson?
Background-Mr. and Mrs. Kielson seek full and fair compensation for what happened to
them in this case. Half justice would be no justice at all.
Question: Is there anyone who feels that, no matter what the dollar amount is in damages
that is determined by the jury, they could simply not award full damages in a medical
negligence case?
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o| 45 136 ; COMMOWEALTH OF MASSACHUSETTS - SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT HAMPSHIRE, ss. CIVIL ACTION NO. 1580CV00130 ) David Kielson and Gail Kielson, ) Plaintiffs, ) v. ) Plaintiffs’ Suggested Voir Dire Ques- ) tions to be Submitted By the Court Brian D. Johnson, M.D., Albert Lim, D.O. ) Linda Preston, M.D. ) Defendants. ) A. Knowledge of the Parties, Counsel, and Witnesses 1. Are any of you or is any member of your immediate family personally acquainted with the Plaintiffs, David or Gail Kielson, related to them by blood or marriage, or do any of you or does any member of your immediate family have any connection of any kind with the Plaintiffs? 2. The Plaintiffs are represented by Scott Sanes and Ken Gogel, who are seated at counsel table. Are any of you or is any member of your immediate family personally acquainted with the Mr. Sanes or Mr. Gogel? Are any of you related to them by blood or marriage, or do any of you or does any member of your immediate family have any connection of any kind with them? 3. The Defendants are seated at counsel table. Are any of you or is any member of your im- mediate family personally acquainted with the Defendants, Dr. Brian Johnson, Dr. Albert Lim or Dr. Linda Preston , related to them by blood or marriage, or do any of you or does any member of your immediate family have any connection of any kind with the Defen- dants?4, The Dr. Brian Johnson is represented by , who is seated at counsel table. is/are with the law firm of . Are any of you or is any member of your immediate family personally acquainted with the , or any of the other attorneys from his/her/their law firm, ? Are any of you related to them by blood or mar- riage, or do any of you or does any member of your immediate family have any connec- tion of any kind with them? 5. The Dr. Albert Lim is represented by , who is seated at counsel table. is/are with the law firm of . Are any of you or is any member of your immediate family personally acquainted with the or any of the other attorneys from his/her/their law firm, ? Are any of you related to them by blood or marriage, or do any of you or does any member of your immediate family have any connection of any kind with them? 6. The Dr. Linda Preston is represented by . who is seated at counsel table. is/ are with the law firm of . Are any of you or is any member of your immediate family personally acquainted with the , or any of the other attorneys from his/her/ their law firm, ? Are any of you related to them by blood or marriage, or do any of you or does any member of your immediate family have any connection of any kind with them? 7.1 am going to read a list of witnesses who may be called during this trial. Please respond if you know any of these persons: The Plaintiffs may call the following persons as witnesses: [list witnesses from Final Joint Pretrial Order, including expert witnesses] The Defendants may call the following persons as witnesses: [list witnesses from Final Joint Pretrial Order, including expert witnesses] Is any panel member related by family or marriage to any of the individuals that I have just named? Are you personally acquainted with these persons, or do you have any knowledge of them, di- rectly or indirectly, through your social, business or professional lives?B. Knowledge of the Case 8. Have any of you read or heard anything about this case from any source, and I am not indicat- ing from this question that there has been any publicity concerning it? C. Previous Jury Duty 9. Have any of you served as jurors in either criminal or civil cases, or as members of a grand jury, either in the state or federal courts? a. Civil b. Criminal c. Grand Jury Would your prior experience have any effect or influence on your ability to serve as a fair and impartial juror in this case? D. Business Dealing with the Parties 10. Have you or any member of your immediate family had business dealings with the Plaintiff(s) or the Defendant(s)? E. Previous Litigation of Prospective Jurors 11. Have any of you or has any member of your immediate family ever participated in a lawsuit of any kind, as a party or in any other capacity? F. Ability to Sit as Fair and Impartial Jurors 12. Does any panel member have any feeling--thought--inclination--premonition-- prejudice- -religious belief or persuasion--or bias--which might influence or interfere with your full and impartial consideration and which might influence you either in favor of or against either the Plaintiff(s) or the Defendant(s)?13, 14. 15. 16. You must understand that it is most important for you to keep open minds until you have heard all the evidence and received the Court’s instruction concerning the law. Is there anyone here who would not be able to keep an open mind until all of the evidence is pro- duced and the Court’s instructions are received? Will you take the law as the Court instructs you, without any reservation whatsoever, and apply the facts to the Court’s instructions on the law? If you cannot do this, please hold up your hand. Do you recognize and accept the proposition that jurors are the sole judge of the facts and the Court is the sole judge of the law? If you do not recognize this or cannot accept this, please hold up your hand. Is there anyone here who would not be able or willing to render a verdict solely on the evidence presented at the trial and the law as I give it to you in my instructions, disre- garding any other ideas, notions, or beliefs about the law that you may have? E. Personal Inconvenience 17. 18. Does any person here have any medical disability or problem -- such as difficulty in see- ing or hearing -- or any illness that might cause a problem in serving as a juror in this case? This trial may last as much as 2 weeks. The exact period of time is impossible, of course, to know today. Does any prospective juror have any immediate personal or family situa- tion that would limit his or her ability to serve as a juror in this case for the period of time? F. Lawsuit that involves allegations of Medical Negligence 19. Have you, or family member, or a close personal friend, ever had any experience, either so good or so bad, with a doctor or any other health care provider, that would make it dif- ficult for you to sit as an impartial juror in this matter?20." ait” kL. 2a” bo. 2a 24 25. 26. ~ if the law and the evidence ‘warranted, could you | award ard damages fort the e plaintiff e even you felt sympathy for the doctor?} _ Regardless of f of, plaintiff's p present at condition, if tt the law and evidence ‘warranted, could yc you} "Fender a verdict in favor of the defendant despite being sympathetic to the plaintiff” “Have you, any ‘family member, or close personal { friend ever worked ‘for: : Attorneys, Doct “tors, Hospitals or Physical Therapists, Any type of health care provider, Any ambulance A EMT /Rescue?! “Have you, ‘or ‘any ; members of y your family, | been 1 employed i in| processing, ,, investigating or handling any type of medical or personal injury claims? If so, please describe. __@ Is there anything that: you ‘may nay have read in the | print ‘media or seen on television or! ~~ heard on the radio about medical negligence cases or caps or limits on jury verdicts or awards that would prevent you from deciding this case fairly and d impartially on th the e facis| presented?, This case involves a claim against the defendant for injuries suffered by the plaintiff as a result of alleged medical negligence. Do you have any existing opinions or strong feel- ings one way or another about such cases? If the answer to Question No. 25 is affirmative, ask the following question at sidebar: If so, what are your opinions? Do you have any familiarity with dementia or complications after a surgery or any famil- iarity with the types of treatment available for dementia?27. 28. 29. 30. Are you, or have you ever been, related (by blood or marriage) to anyone affiliated with the health care field? If so, please describe: Have you or any relative or close personal friend ever had a dispute with respect to a health care issue of any kind with a doctor, chiropractor, dentist, nurse, hospital employ- ee, technician or other person employed in the health care field? Have you or any relative or close personal friend ever brought a claim against a doctor, chiropractor, dentist, nurse or hospital for an injury allegedly caused by a doctor, dentist, nurse or hospital? Have you or any relative or close personal friend ever considered bringing a medical or dental negligence action but did not do so? G. Concluding Question 31. Finally, can any of you think of any matter that you should call to the Court’s attention that may have some bearing on your qualifications as a juror, or that -- even to the slight- est degree -- may prevent your rendering a fair and impartial verdict based solely upon the evidence and my instructions as to the law?Plaintiffs Proposed Voir Dire Questions Introduction -60 second intro of myself and co counsel to find out if anyone on the jury panel knows us -60 second intro of my clients -60 second intro of defense counsel and defendants Background-Voir Dire” is french and translates to mean “to speak the truth”, it is the only chance during the entire trial that lawyers speak to the jurors and jurors can answer or ask questions. The court allows this to determine if jurors might have prejudices or bi ases in their background (which we all have) that would keep them from being fair to both sides. Question: Can I ask for everyone to commit with a show of hands to responding to the lawyers this morning with full candor? Background-This is a lawsuit that alleges that David Kielson was not given enough im portant information to determine whether he should go forward with a hip surgery against the 2 anesthesiologists involved in his care before the surgery and it alleges that he was not treated properly by the attending physician in the hospital after the surgery. Questions: | Does anyone have any connection with the medical community thru work, education, close family members? Does anyone have any connection with the insurance industry? Does anyone feel that it is simply wrong to sue doctors even if the evi dence shows that their care fell below the standard of care? Liability Background-each of us is an expert in driving and can testify that running a stop sign is negligence. For Doctors there are medical stop signs called “Standard of Care” and you will hear expert testimony on the standard of care in this lawsuit. Question: Can everyone follow the law and instructions of the Judge and hold a doctor responsible if they run a medical stop sign that caused injury to Mr. Kielson? ~Background: Negligence is not intentional conduct. We aren’t here to prove the doctors intentionally hurt Mr. Kielson. Question: Is there anyone who would require proof of intentional conduct to hold the doctors responsible?-Background: From the perspective of the Plaintiffs in this case, the 2 doctors that con- sulted with Mr. Kielson before his hip surgery should have either warned him that the anesthesia could aggravate or accelerate his mild dementia or at least called or talked to Mr. Kielson’s Neurologist. We allege that because they failed to inform him properly, he went forward with the surgery and as a direct result his dementia went from mild to se- vere in a very short period of time. Question: Is there anyone who feels that they can not follow the expert testimony on what an anesthesiologist is supposed to inform patients before surgery and use their common sense to determine if there was proper medical care in this case? -Background: After the surgery, it was important that Mr. Kielson be fully oxygenated because of his mild dementia and sleep apnea. The Plaintiffs in this case maintain that the attending doctor failed to take proper measure to insure that he was fully oxygenated and that also accelerated or incited his dementia to get worse fast. Question: Anyone who can’t listen to expert testimony on the subject of post surgical care and use their common sense to determine if the attending doctor failed to exercise proper medical care? -Background: Almost all incidents in this world are caused by a combination of factors. In medical negligence cases, the Plaintiffs are not required to prove that the action of one doctor was thee only cause. The judge will define “proximate cause” and we expect to prove that but for the acts or omissions of each of these doctors, Mr. Kielson’s dementia would not be in the severe state that he currently is. Question: Is there anyone who feels that we need to prove the doctors actions were the only or sole cause of Mr. Kielson’s dementia becoming severe? -Background: The plaintiffs do not have to prove their allegations against the doctors “beyond a reasonable doubt” as they would in a criminal case. In civil cases we must prove our allegations by a “preponderance of the evidence” which means more likely than not. Question: Is there anyone who feels that they would need us to meet the higher standard of beyond a reasonable doubt because the lawsuit is against doctors? -Background: The evidence of the doctors failures to exercise proper care in this case along with the damages to Mr. Kielson will be brought to you by way of expert testimony from both Mr. Kielson’s treating neurologist, Dr. Emily Clionsky and neuropsychologist, Dr. Mitchel Clionsky along with an Anesthesiologist that practices at a hospital in Bos- ton, Dr. Eduard Vaynberg. Question: Is there anyone who is unable to consider both the testimony of treating physi- cians and expert witnesses to determine if the standard of care was met when treating Mr. Kielson?Til. Damages -Background: There are 2 types of damages in personal injury cases. One type is econom ic and one is noneconomic. Economic damages are items like loss of wages or medical bills. Non economic are damages like physical pain, mental anguish and impairment of ability. Question: Is there anyone who, no matter what the evidence is, can not award damages for physical pain? mental anguish? impairment? Loss of consortium to Mrs. Kielson? Background-Mr. and Mrs. Kielson seek full and fair compensation for what happened to them in this case. Half justice would be no justice at all. Question: Is there anyone who feels that, no matter what the dollar amount is in damages that is determined by the jury, they could simply not award full damages in a medical negligence case?