Motion to Limit Preemptory Challenges of Multiple Defendants

Plaintiff’s Motionto Limit Defendants to Single Set of Peremptory Challenges in Jury Selection


– Plaintiff,


– Defendants

Plaintiff, Kevin Thomas, by and through his counsel Miller & Zois, LLC, files this Motion in Limine to Limit Defendants to a Single Set of Peremptory Challenges in Jury Selection and in support thereof states as follows:

This is a medical malpractice action that surrounds the care and treatment provided to Kevin Thomas, the Plaintiff, by Caroline Stone, R.N., St. Agnes Healthcare, Inc., Carol Jackson, M.D., Krupa Smith, PA-C, and Maryland Provo-I Medical Services, P.C. (collectively, “Defendants”). As a result of this medical malpractice, the Plaintiff lost his leg.


Md. Rule 2-512 (e)(2) governs the use and apportionment of peremptory challenges during jury selection:

(e)(2) Peremptory challenges. Each party is permitted four peremptory challenges plus one peremptory challenge for each group of three or less alternate jurors to be impaneled. For purposes of this section, several plaintiffs or several defendants shall be considered a single party unless the court determines that adverse or hostile interests between plaintiffs or between defendants justify allowing to each of them separate peremptory challenges not exceeding the number available to a single party. The parties shall simultaneously exercise their peremptory challenges by striking from the list.

“The rule recognizes that there are cases in which one side of a suit is not united in its pursuit of a single claim or a single mode of defense.” Goren v. United States Fire Ins. Co., 113 Md. App. 674, 696-97, 688 A.2d 941, 952 (1997)(Hollander, J.). “Co-parties, while sharing a common adversary, may also have differences between themselves significant enough so that a single set of challenges does not adequately address their individual interests in shaping the jury.” Id.

“Under the rule, the trial court must engage in a two-step process before granting co-parties additional peremptory challenges.” Id. First, the court must make a factual finding of adverse or hostile interest, and second, the court, in its discretion, must determine whether that interest would justify allowing the added challenges.” Kloetzi v. Kalmbacher, 65 Md.App. 595, 599, 501 A.2d 499, 501 (1985). “Thus, an adverse interest does not per se warrant added peremptory strikes.” Garlock, Inc. v. Gallagher, 149 Md.App. 189, 214, 814 A.2d 1007, 1021 (2003). “Even if the court determines that there are hostile co-parties, it is not required to award additional strikes.” Goren, at 697, 688A.2d at 952. “The party requesting extra peremptory strikes carries the burden of proving the adverse or hostile interest.” Id.

“Adverse means ‘[h]aving opposing interests; having interests for the preservation of which opposition is essential.’” Kloetzi, at 600, 501 A.2d at 502 (citing Black’s Law Dictionary). “Hostile is defined as ‘[h]aving the character of an enemy; standing in the relation of an enemy.’” Id.

In determining if co-defendants are adverse or hostile, the trial court should look to “the pleadings, the nature of the parties’ representation—that is, whether they are represented by the same or independent counsel, and the nature of the claims.” Id. at 600, 501 A.2d at 502 (internal citations omitted). An examination of these factors reveals that the co-defendants in this case are not in adverse or hostile positions.

First, the pleadings do not reveal that the Defendants are in a hostile position as to one another, or as to their position with respect to Mr. Thomas. None of the Defendants have asserted a cross-claim, and each of the Defendants has in their Answers made general and specific denials of Mr. Thomas’s claims. Exhibits 1 & 2.

Second, although the Defendants Caroline Stone, R.N. and St. Agnes Healthcare, Inc. are collectively represented by different counsel than Carol Jackson, M.D., Krupa Smith, P.A.-C, and Maryland Provo-I Medical Services, P.C., this does not indicate that they have adverse or hostile interests. Rather, it is merely indicates that these are separate Defendants who have retained separate counsel. The Defendants are represented by different counsel because they are separate and independent parties, rather than because of any conflict of interest that would require separate counsel.

Third, the nature of the claims in this case shows that Defendants’ interests are neither adverse nor hostile. There are no cross-claims asserted by the Defendants against one another, which shows that they are not affirmatively asserting any legal claims that put them in the position of adverse parties. Moreover, the nature of Mr. Thomas’s claims against each Defendant indicates that the Defendants’ interests in this litigation are identical.

Mr. Thomas’s claims arise out of a visit to St. Agnes Hospital on December 3, 2009. During that visit, Mr. Thomas saw several medical providers including Caroline Stone, R.N., who is an employee of St. Agnes Healthcare, Inc., Carol Jackson, M.D., and Krupa Smith, P.A.-C. Plaintiff essentially alleges that each of these healthcare providers failed to diagnose and treat the same medical condition on December 3, 2009. The defense of these claims does not pit the Defendants against one another. Rather, the Defendants have an identical interest in defending against Mr. Thomas’s claims on the issues of liability and damages.

In this case, there is no potential adversity between the Defendants. There is no risk of these defendants pointing at one another in an effort to avoid liability. Instead, their interests are perfectly aligned in defending against Mr. Thomas’s claims. There is no justification for granting Defendants separate peremptory challenges.


The Defendants are not entitled to separate peremptory challenges. An analysis of each of the three relevant factors shows that the Defendants do not have adverse or hostile interests, and that even if they did, those interests would be insufficient to justify the granting of separate strikes. Accordingly, Plaintiff’s Motion to Limit Defendants to a Single Set of Peremptory Challenges in Jury Selection should be granted.

Related Examples and Information

  • Article – tactics and why this issue of preemptory challenges is so critical
  • More Sample Motions in Limine – more motions in limine in personal injury cases
  • Sample Motions – in malpractice and other personal injury claims
  • Tort Lawyer Tools – examples of interrogatories, depositions, designation of experts, request for admissions, and request for production of documents.
  • Personal Injury Pleadings – examples of complaints, answers, and expert designations.
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