The South Carolina Supreme Court, in its opinion dated March 11, 2020, stated, “it is clear Killian’s [a juror’s] conduct severely hampered the fundamental fairness of the trial, and that the circumstances here demonstrate prejudice. Carmichael [another juror] testified that Killian’s comments directly affected her vote, as she initially believed Bibeau [the defendant physician] was more negligent.”
The Underlying Facts
The South Carolina medical malpractice plaintiff, Philip Ethier (“Ethier”), went to the emergency room at defendant Fairfield Memorial Hospital after he felt a sudden, excruciating pain jolt up his leg as he walked to a shed in his backyard. Defendant Guy R. Bibeau, M.D. (“Bibeau”) was the emergency room physician who examined the plaintiff, diagnosing the plaintiff with a probable spider bite despite neither Ethier nor the nurse assistant mentioning that as a possible scenario and no one ever identified a bite mark. Bibeau informed Ethier to follow-up with his primary physician if symptoms changed and was given similar information upon discharge that afternoon.
Six weeks later, the plaintiff went to another hospital where he was immediately diagnosed with an aneurysm requiring surgery that resulted in an incision from his hip to above his ankle that left him partially disabled.
The South Carolina medical malpractice jury found Bibeau negligent and awarded $1,250,000 in economic damages and $500,000 in non-economic damages to the plaintiff and $250,000 in damages to his wife for loss of consortium. However, because the jury apportioned only 30% of the fault to Bibeau and the remaining 70% to Philip Ethier, the trial court entered a defense verdict on both claims.
During voir dire, the court asked prospective jurors whether they ever had a “close social or a personal relationship” with either the Ethiers or Dr. Bibeau or the potential witnesses. Juror Teresa Killian (“Killian”) informed the court, “I used to work at Fairfield Memorial Hospital with [its CEO]” but never disclosed that she also worked with Bibeau or the two nurses.
After the South Carolina medical malpractice trial, the plaintiffs’ lawyer learned that Killian previously worked with Bibeau and the nurses, and that Killian had discussed her knowledge of them with other jurors. One of the jurors, Sandra Carmichael (“Carmichael”), attested Killian stated she knew the nurses as well as Bibeau, and that both “were very careful and thorough, and if they said they did something, they did it.” Carmichael also noted that during jury breaks, Killian repeatedly discussed Bibeau’s skills as a doctor.
During a post-trial hearing before the judge, Killian denied making such statements. However, nine other jurors testified during the hearing that they specifically recalled Killian informing them she had worked with Bibeau and the nurses. Four jurors testified that Killian vouched for the skill, proficiency, and truthfulness of all three during jury breaks. Carmichael testified that Killian’s statements affected her vote, as she initially believed Bibeau was more negligent.
Nevertheless, while the trial court found Killian had engaged in premature deliberations, it found no prejudice. The court also believed Killian did not intentionally conceal that she knew Bibeau and the three nurses through her previous employment, contending the question was ambiguous because it only addressed “close personal or social relationships.” Accordingly, the trial court denied the Ethiers’ motion for a new trial.
South Carolina Supreme Court Opinion
The South Carolina Supreme Court stated, “Because premature deliberations may affect the fundamental fairness of the trial, the affidavit and juror testimony are admissible. Accordingly, our inquiry concerns whether the trial court abused its discretion in finding Killian’s conduct did not prejudice the Ethiers … While the burden to demonstrate prejudice is high, when evidence strongly supports the fact that votes were changed as a result of a juror’s impermissible conduct, we cannot countenance such a tainted verdict.”
The South Carolina Supreme Court stated, “Killian’s intentional disregard of the trial court’s repeated instructions not to engage in premature deliberations directly affected the verdict. Killian discussed matters that were not introduced as evidence, and bolstered other evidence that had been admitted. Further, Killian’s conduct is egregious, as she repeatedly discussed the case after being instructed not to do so … Moreover, the content of her statements is equally troubling, as it concerns the most hotly disputed fact at trial—whether Bibeau checked Ethier’s foot pulses. Ethier’s expert testified his symptoms presented a classic indication of a vascular issue, which a simple check of his foot pulse would have revealed, and the medical forms do not indicate these pulses were taken. In essence, Bibeau received the benefit of having a character witness on the jury who could attest to his skill without being subjected to cross-examination. This benefit is not speculation, as Killian directly affected Carmichael’s vote. Although we have been reluctant to reverse a trial court’s denial of a motion for a new trial based on juror misconduct, Killian’s disregard of her oath, with resulting prejudice, heightens the error and necessitates the step we take here.”
The South Carolina Supreme Court concluded: “We reverse the court of appeals’ decision and remand for a new trial as to all of the Ethiers’ claims.”
Source Ethier v. Fairfield Memorial Hospital, Opinion No. 27953.
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