Georgia – Right to Participate In Trial

Georgia Supreme Court reverses lower courts’ decision to keep severely injured plaintiff from attending trial.

Kesterson v. Jarrett, 2012 Ga. LEXIS 567 (June 18, 2012) We previously reported to you on this case which involved the compelling question of whether a severely injured plaintiff that is not able to contribute nor comprehend the proceedings can be barred from the court room during a trial involving liability for those injuries.  Kyla Kesterson was born with significant birth defects as a result of being deprived of oxygen at birth.  Her parents sued those involved in her delivery alleging medical malpractice.  The trial court agreed to bifurcate liability from damages at trial.  The defendants thereafter filed a motion with the court to preclude Kyla from being present in the courtroom for the liability phase of the trial.  The trial court agreed and prohibited the Kesterson’s from bringing their daughter into the courtroom during the liability phase of the trial. The parents moved the court for exceptions relating to three different witnesses and the trial court denied all three petitions. Those decisions were appealed.

The Georgia Supreme Court just this week announced their decision which reversed the rulings of the courts below and held that Kyla had the right to be present for the liability phase of the trial. While the Court seemed to respect the trial court judge’s concern over the jury sympathy that could come from her presence in the courtroom, the Court stated that concern was not to be resolved by excluding parties from the courtroom.