New Trial Warranted Where RN Juror Described Personal Experiences in the ER In Med-Mal Trial Deliberations

 Wobbler v. Kamath, California Court of Appeals (August 12, 2021) A159347:

The trial court dismissed an RN juror, seated an alternate juror, then, after Defendant-physician obtained a favorable verdict, granted a new trial based on juror misconduct.  This decision was upheld by the appellate court.  A key evidentiary issue at trial was whether the plaintiff had been wearing a bandage over the sutured incision in his arm when he arrived by ambulance at the hospital.  The evidentiary record on this issue was solely medical staff notes of the injured party's condition arriving at the hospital but no clear reference to a bandage.  No medical staff testified regarding the notes.  During deliberations the RN juror, ding to the affidavit of another juror, "brought inter own personal experience as an RN...and expressed her nursing opinions to the other jurors on various issues."  The RN juror stated that the presence of a bandage on his arm would have been documented at the time of his admission to the ER.  The trial judge characterized this as "specialized information" constituting prohibited juror misconduct under California law.  The judge further found this information to be prejudicial and that the specific instance stated by the affiant-juror were more credible that the RN juror's general denials.

In California the evaluation of jury misconduct is a 3-point inquiry:

1.  Are the affidavits supporting the motion for new trial admissible?  If so,

2.  Do the facts establish misconduct by the juror?, If so,

3.  Was the misconduct prejudicial?

The trial judge answered all 3 affirmatively and is granting a new trial was affirmed.

One can only imagine the jurors insisting that the RN juror answer their questions about best practices in the emergency room.  Judges instruct jurors that they do not have to leave their personal experiences and common sense at the door to the deliberation room.  However, this does not extend to specialized knowledge.  Nevertheless, we still have doctors, lawyers, engineers, accountants, mechanics, etc., serving on juries.  Always a cause for concern if their expertise is part of the subject matter of the trial.

The Importance of Plain Language in Questioning Jurors

 In a 2016 NY case a juror was asked if any of his "close relatives" had ever been charged.  He said no, but after the trial it was discovered that his father had gone to prison for 7 years.  Was he lying?  Is this juror misconduct?   But what does "close relatives" mean?  He was raised in an orphanage and was never close to his father.  Judges and lawyers during jury selection need to use plain language and avoid legalese.  Elsewhere in this blog I have noted that standard instructions over the past 10 years need to be constantly updated as to social media venues that jurors could potentially use to discuss the case during trial.  The outdated instructions often refer to MySpace and fail to include media sites not even around then, such as Snap, Instagram.  Some jurors when found to have been on social media about the case have replied, "You never said we couldn't use ______!"  

Legalese terms are familiar to judges and lawyers, but not non-lawyers.  "Beyond a reasonable doubt" is a concept that is difficult even for lawyers and judges to agree upon.  I have asked 25 potential jurors to raise their hand if they have ever been a party in a lawsuit.  No hands go up.  Then I would ask if any are divorced and half of them raise their hands.  They didn't think a divorce case is a "lawsuit," even if contested.  Likewise, most would not consider a DWI to be a "crime."  

In conclusion, the vast majority of jurors have no intention to lie during jury selection.  It is up to the judge to insure that the questions are clear and understandable.

See also 4-16-18 post.  

Update to August 14 Post: Whitmer Kidnapping Trial Juror Allowed to Remain

 Barry Croft and Adam Fox were convicted on August 23 in the Whitmer kidnapping trial.  Within hours the trial judge released the documents related to the alleged misconduct.  A court clerk reported that the person who relayed the alleged comments by the juror to defense counsel had not themselves spoken to the juror, therefore it was secondhand (double hearsay) tip.   The prosecution agreed that the judge could have a private conversation with the juror, but the defense objected.  The judge met with the juror and determined that the juror could serve impartially, was not manipulative and was, therefore,  not discharged.  He determined there was no evidence of a "predetermined decision to find the defendants guilty."  Post-trial motions may occur prior to sentencing in December.