Kyla Kesterson, a young child with severe cerebral palsy, was excluded from most of the liability phase of the trial of her medical malpractice lawsuit. As a result of her condition, Kyla is unable to control her movements and is confined to a special wheelchair, she has a feeding tube inserted into her stomach, her airway must suctioned several times a day, she has bladder and bowel dysfunction, she suffers frequent seizures, she has severely limited cognitive function, and she cannot speak. The Kestersons claim that Kyla’s neurological injuries occurred when she was deprived of oxygen just prior to her birth as a result of the malpractice of the defendants.
At trial, the judge ordered bifurcation of the liability and damages issues and the defendants moved to exclude Kyla from the courtroom during the liability phase of the trial, arguing her presence would be prejudicial to them, that she could not meaningfully participate in the trial, and her parents could adequately represent her interests. Defendants did not contend that Kyla should be excluded from the damages phase of the trial. Kyla’s attorneys argued that they did not intend for her to be in the courtroom for any lengthy period but that she had a constitutional right to be present. During the liability trial, the judge twice denied the Kestersons’ request to bring Kyla in the courtroom but granted one such request. On the one occasion that Kyla was allowed to appear, during the cross examination of a defense medical expert, she was in the courtroom for testimony that covered one page of the over 4600 page transcript. The jury returned a verdict in favor of the defendants.
The Georgia Court of Appeals upheld the decision of the trial court and adopted a five part test for determining when a plaintiff might be excluded. The Georgia Supreme Court disagreed. Justice Nahmias, writing for the court, established that the right of a party to be present in a courtroom when her case is being tried is deeply rooted in the law of this Nation and is reflected in the Georgia Constitution which guarantees “the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” That right may be waived or a party may forfeit that right by disrupting the courtroom. The trial court would have been within its authority to remove Kyla from the courtroom if she had disrupted the proceedings but that was not the basis for the judge’s decision. Instead, Kyla was excluded from most of the trial of her case because of concern that her physical and mental condition would cause the jury to be biased-unduly sympathetic toward her. The trial judge, according to Justice Nahmias, was correct to be concerned about this issue but that concern should not have been resolved by excluding Kyla from the proceedings.
The fact that Kyla may not have been competent to participate in her defense was not relevant. According to the Supreme Court, Georgia courts have never conditioned the right to be present on proof that the party is legally competent or that she will actually pay attention to the proceedings and actively participate in them.
This opinion makes it clear that no matter how disabled a plaintiff may be, mentally or physically, they may not be excluded from the courtroom just because their appearance would create sympathy for them.
Please let me know if you would like a copy of this opinion.