September 2, 2020

The Supreme Court of Ohio (“Ohio Supreme Court”) held in its opinion dated July 23, 2020, “This case involves a jury verdict rendered late on a Friday evening in favor of the defense in a medical-malpractice action. After the trial was over, one of the jurors wrote a letter to the court saying that she regretted her vote and had compromised her true beliefs to avoid having to return the following week. The trial court refused to consider the letter and denied the plaintiff’s motion for a new trial. But the court of appeals reversed, determining that the letter could properly be considered and that the trial court had abused its discretion in refusing to grant a new trial. We conclude that the court of appeals erred in so doing.”

The Underlying Facts

About two weeks before ReDon Jones’s death, he presented to the Cleveland Clinic’s Hillcrest Hospital complaining of chest pains. A cardiologist evaluated Jones and ordered that a stress test be conducted on a treadmill to determine whether there was evidence of reversible ischemia (a decreased blood supply to the heart muscles). The test was performed the following week, and the cardiologist interpreted the results as negative for ischemia. Jones died as a result of a fatal heart attack one week later.

Jones’s wife and the administrator of his estate filed an Ohio medical malpractice wrongful death lawsuit against the cardiologist, Hillcrest Hospital, and the Cleveland Clinic Foundation (collectively, “the Cleveland Clinic”), alleging that the cardiologist had been negligent in failing to order a cardiac catheterization, which would have found Jones’s blocked coronary artery and enabled doctors to save his life.

The Ohio wrongful death medical malpractice jury trial began on a Monday, and the parties rested on Thursday of the same week. Jury deliberations began on Friday at about 11:00 a.m. At 12:30 p.m., the jury sent a note to the court asking for clarification about the legal definition of the standard of care and alerting the court that their votes were evenly split. The trial court instructed the jury to re-read the jury instructions and to continue deliberations.

Approximately half an hour later, the jury took a lunch break until 2:15 p.m. At 5:00 p.m., the jury submitted a second note asking, “We are still undecided 4-4. What should we do?” After conferring with counsel, the trial court submitted a reply at 5:20 p.m. that stated: “Keep deliberating.”

Sometime after the second note, a juror requested to be excused due to a family emergency. The trial court asked the jury: “Do you want to continue to deliberate if Juror No. 3 has to go?” The jury responded, “Yes.” After conferring with the attorneys, the court dismissed the juror and empaneled an alternate juror.

Upon the request of Jones’s counsel, the trial court—at about 7:20 p.m.—instructed the jurors that they would “have to restart their deliberations” from the beginning with the replacement juror. The court explained that this meant the jury would have to select a new foreperson and supplied the jury with new verdict forms and interrogatories.

The jury deliberated for approximately one hour before sending a third note around 8:00 p.m. announcing that it was deadlocked four-to-four. With the agreement of counsel for both parties, the court instructed the jury to keep deliberating.

About an hour later, the trial court received another note, which stated: “We are deadlocked at 50/50. Everyone is very strong in their decision and are not swaying based on the evidence. How long do we have to stay here tonight? Can we go home? We are tired, cranky, and see no change in our opinions, based on the evidence in the foreseeable future.”

The trial court, with the agreement of counsel, decided to send a note to the jurors saying that they could leave and come back on Monday morning to resume deliberations. After delivering the message to the jury, the bailiff reported that a couple of jurors reacted to the judge’s note by stating, “Come back for what? We’re not going to change.” In response, the trial court determined that it would read the standard jury instruction relating to deadlocked deliberations, and discussed with counsel about whether it should read the charge that night or on Monday morning.

At approximately 10:00 p.m., while the judge and the attorneys were still discussing the deadlocked jury charge, the bailiff announced that the jury had reached a verdict. The jury returned to the courtroom, and the trial court reviewed the verdict forms and interrogatories. The court realized that the jurors had not completed the general-verdict form and instructed them to return to the jury room to complete this form. At this point, after having watched the judge’s initial review of the forms, Jones’s counsel said, “I don’t think we should accept the verdict from the jury because of the circumstances involved in the case; that they said they were tired, they were cranky, and the Judge said they want to go home.” Jones’s counsel, however, did not move for a mistrial.

When the jurors returned to the courtroom, the trial court read the verdict form and announced the jury had reached a six-to-two verdict in the defense’s favor. The court polled the six jurors in the majority, and each juror confirmed their votes.

Jones subsequently filed a motion for a mistrial, asserting that the court should have sua sponte declared a mistrial on the night of deliberations rather than accept the jury’s verdict. “Reasonable minds can only conclude,” Jones argued, “that [in] moving from [a] strongly deadlocked position to a complete about-face less than 30 minutes after being instructed to return Monday at 8:30 am that certain jurors surrendered their honest opinion as to the weight of the evidence for the mere purpose of returning a verdict and going home.”

One month after the trial, while the motion was pending, the trial court received a letter from a juror. In the letter, the juror explained that her juror service had been stressful and said that she had ultimately agreed to a defense verdict in order to avoid coming back the following week. She had “felt very strongly that the plaintiff was correct in the case and the defendant was negligent.” “Yet in the end, to speed the process along,” she wrote, “I and one other juror changed our votes as the hour approached 11 p.m. Now I have to live with that decision which went against what I believed was right.”

The court did not consider the juror’s letter in denying Jones’s motion, concluding that because the juror’s statement did not suggest a threat, bribe, or impropriety by an officer of the court, Evid.R. 606(B) precluded its use to attack the verdict. Jones appealed.

The Eighth District Court of Appeals held that Evid.R. 606(B) did not preclude the court from considering the letter because the juror who wrote the letter did not testify at a subsequent proceeding concerning the original verdict. The appellate court further found that notwithstanding the juror’s letter, given the totality of the circumstances surrounding the jury’s deliberations, the trial court’s denial of Jones’s motion for a mistrial was an abuse of discretion. The Eighth District Court of Appeals also concluded that the trial court had committed plain error in not giving the deadlocked jury charge after receiving the third and fourth jury notes.

Ohio Supreme Court Opinion

The Ohio Supreme Court stated, “The question whether a juror may testify about her mental or emotional processes during deliberations to impeach a jury verdict is not a novel one. A firmly established common-law rule prohibits the admission of such testimony.” Evid.R. 606(B) prohibits juror testimony to impeach a verdict except for two circumstances: first, under what is commonly referred to as the “aliunde rule,” a juror may testify about jury misconduct when evidence of that misconduct arises from a source outside of the jury; second, even without outside evidence, a juror may testify about “any threat, any bribe, any attempted threat or bribe, or any improprieties of any officer of the court.

The Ohio Supreme Court stated: “Looking to the explicit terms of the rule, there was no “outside evidence” that any “outside influence was improperly brought to bear on any juror.” A juror’s own impressions of deliberations are not “outside evidence” … And all that Jones offers aside from the juror note is conjecture that jurors felt pressured to change their votes because of a desire to avoid further deliberations and because of pressure from other jurors who felt the same way. This does not amount to an “outside influence.” Rather, what Jones complains of is exactly the type of internal juror dynamics that the aliunde rule is designed to keep sacrosanct. Nor has Jones presented any evidence of a threat, bribe, attempted threat or bribe, or impropriety by an officer of the court … the Eighth District construed Evid.R. 606(B) to preclude only sworn juror testimony. That is a misreading of the rule.”

The Ohio Supreme Court held: “We find no misconduct or irregularity that warrants a new trial. Having excluded the juror’s letter, we are left with the mere fact that the jury broke a deadlock and returned a verdict soon after it was told to come back on Monday. There is no evidence that the jurors breached their oaths. There is no evidence of any improper outside influence. And nothing in the jury’s notes to the judge suggests any misconduct … It is true that deliberations extended fairly late into Friday night. But this occurred at the jury’s choice—the judge asked the jurors if they wanted to continue deliberations when one juror had to leave, and they responded that they did. And while the jury was told that it would have to come back the next week, there is nothing unusual about jury deliberations proceeding into the following week. Thus, we find none of the grounds set forth in Civ.R. 59(A)(1) and (2) to be present in this case.”

A concurring opinion stated, “Regardless of which side prevails, the confidence in a jury verdict rendered under circumstances like these is tenuous at best. The option the court gave to the jury of continuing deliberations into the late hours of a Friday evening or returning on Monday morning left the jury between a rock and a hard place. It is no surprise that under circumstances like this, jurors might put their own personal interests above the interests of the parties.”

Source Jones v. Cleveland Clinic Foundation, Slip Opinion No. 2020-Ohio-3780.

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