Verdicts

In Maryland, Alternates Not Welcome in Jury Room

In this medical malpractice action, the Court of Appeals of Maryland declared in a case of first impression that in civil actions the presence of alternate jurors in the jury deliberation room is presumptively prejudicial, requiring re-trial on the issues. Grimstead v. Brockington, — A.3d —-, 2010 WL 5129070 (Md., 12/17/10).

The plaintiff was awarded $1,959,195 after the jury found that her doctor failed to correctly diagnose and treat her cancer. At the conclusion of the evidentiary portion of the trial, the judge instructed alternate jury members to attend the jury deliberations without participating. The defendant did not object to this. However, during jury deliberations, two of the original jury members were excused for medical reasons. The trial judge substituted two of the alternates for the original jury members. The defendant was unhappy with these substitutions and objected at the time of substitution, but his objections were denied. The doctor appealed, asserting that the trial court commited reversible error under Maryland Rule 2-512(b) by allowing the alternate jurors to attend jury deliberations and allowing them to substitute for two regular jurors during deliberations, even though he had expressly agreed to the alternates' presence during the deliberations and attempted to withdraw his consent only when the trial court designated the alternates to replace regular jurors. The Court of Special Appeals reversed, finding the judge erred, and this appeal followed.

The Court of Appeals of Maryland observed that both the law in place at the time of this trial (Maryland Rule 2-512(b)) and the law that replaced it in 2008 (Maryland Rule 2-512(f)) require judges presiding over civil actions to dismiss alternate jurors if they are not substituted for a regular juror prior to deliberation. While the high court had never considered the question of the propriety of allowing alternate jurors in the deliberation room in civil trials, it had done so in the context of criminal trials: In Hayes v. State, 355 Md. 615 (1999) and Stokes v. State, 379 Md. 618 (2004) the court had found that allowing alternates to enter the jury deliberations room was prima facie error requiring re-trial. In Stokes, the court explained: “We consider the presence of alternate jurors during the jury deliberations as sufficiently impinging upon the defendant's constitutional right to a jury trial as guaranteed by the Maryland Constitution and Maryland Rules of Procedure to create a presumption of prejudice. Jury deliberations are private and are to be conducted in secret …. The presence of alternate jurors who have no legal standing as jurors injects an improper outside influence on jury deliberations and impairs the integrity of the jury trial. Prejudice must be presumed where alternates breach the sanctity of the jury room.” Because Maryland guarantees the right to a jury trial in both civil and criminal cases, and the statutes governing civil and criminal jurors and alternates are basically identical, the court determined that the holdings of Hayes and Stokes were applicable here. This being the case, the trial judge's substitution of alternates for regular jurors after deliberations had begun was clearly error and was presumptively prejudicial. “Consequently,” the court found, “even if we assume, arguendo, that principles of waiver are applicable, [the defendant] did not waive his objection to the mid-deliberation substitution of alternate jurors for regular jurors.” The case was remanded for new trial.

Disclosure Adequate: Expert May Opine on What Did Not Cause Injury

The Supreme Court of Connecticut found that the exclusion of a medical expert's testimony concerning what did not cause plaintiff's injuries was error, as the disclosure that he would testify concerning causation necessarily implied that he might have to discuss those things he did not believe caused the injury. Klein v. Norwalk Hosp., — A.3d —-, 2010 WL 5071423 (Conn., 12/21/10).

The plaintiff claimed to have suffered an injury to his arm caused by faulty insertion of an IV at the defendant hospital. In order to comply with the state's requirement for disclosure of experts and their testimony found in Practice Book ' 13-4(4), the plaintiff disclosed that he would call as an expert witness Clifford Gevirtz, an anesthesiologist specializing in pain management. The disclosure stated that Gevirtz was to testify on matters concerning the standard of care, departures therefrom, causation and damages. The defendant, for its part, disclosed that its expert, orthopedic surgeon Robert Strauch, would testify that the plaintiff's alleged injury was caused not by the IV stick, but by a neurological condition called Parsonage Turner Syndrome. Plaintiff's expert Gervitz was not specifically disclosed as an expert on Parsonage Turner Syndrome, nor was it disclosed that he would be testifying specifically about that disease or about his opinion that plaintiff did not suffer from it.

During plaintiff's counsel's direct examination of Gevirtz, he asked if the doctor was “familiar with the condition known as Parsonage Turner Syndrome.” The court sustained the defendant's objection to this question on the ground that the plaintiff's disclosure did not comply with the Practice Book because it did not encompass Gevirtz's testifying concerning Parsonage Turner Syndrome. The defense then presented its expert, who averred that plaintiff's nerve damage was caused by Parsonage Turner Syndrome and not by the IV stick.

The jury returned a verdict for the defendant. Plaintiff appealed on the basis that Gevirtz should have been permitted to testify about Parsonage Turner Syndrome. The appellate court affirmed, finding that even if there had been error in this regard, it was not prejudicial to plaintiff's case. This appeal followed.

Plaintiff claimed on appeal to the Supreme Court of Connecticut that: 1) his disclosure of Gevirtz's testimony was adequate to meet the requirements of the Practice Book; and 2) the defendant was on notice that Gevirtz would testify concerning Parsonage Turner Syndrome because that was the subject of its own expert's testimony. According to the court, the plaintiff was correct on the first point because in disclosing that Gevirtz “would testify as to what was the cause of the plaintiff's alleged injury, the disclosure implicitly indicated that Gervitz also could be expected to testify about what was not the cause of the plaintiff's alleged injury.” (See Mancuso v. Consolidated Edison Co. of New York, 967 F.Sup. 1437 (S.D.N.Y. 1997) (“Critical to establishing specific causation is exclusion of other possible causes of symptoms.”)) Plaintiff also prevailed on his second point, as the defense had questioned Gevirtz in deposition concerning neurological disorders that might have caused plaintiff's pain and dysfunction, and defense counsel said in opening remarks to the jury that the jurors would hear from Gevirtz, who would tell them that the injuries were caused by the IV needle stick “and nothing else, and specifically not Parsonage Turner Syndrome” This statement, along with the defense's questioning of plaintiff's expert, evinced the defendant's knowledge of the possibility that Gevirtz would testify concerning his rejection of any neurological disease (including Parsonage Turner Syndrome) as the cause of plaintiff's injury. Finding that the exclusion of Gevirtz's testimony prejudiced plaintiff, the high court remanded the case to the intermediate appellate court with an order to reverse and remand for new trial.

In Maryland, Alternates Not Welcome in Jury Room

In this medical malpractice action, the Court of Appeals of Maryland declared in a case of first impression that in civil actions the presence of alternate jurors in the jury deliberation room is presumptively prejudicial, requiring re-trial on the issues. Grimstead v. Brockington, — A.3d —-, 2010 WL 5129070 (Md., 12/17/10).

The plaintiff was awarded $1,959,195 after the jury found that her doctor failed to correctly diagnose and treat her cancer. At the conclusion of the evidentiary portion of the trial, the judge instructed alternate jury members to attend the jury deliberations without participating. The defendant did not object to this. However, during jury deliberations, two of the original jury members were excused for medical reasons. The trial judge substituted two of the alternates for the original jury members. The defendant was unhappy with these substitutions and objected at the time of substitution, but his objections were denied. The doctor appealed, asserting that the trial court commited reversible error under Maryland Rule 2-512(b) by allowing the alternate jurors to attend jury deliberations and allowing them to substitute for two regular jurors during deliberations, even though he had expressly agreed to the alternates' presence during the deliberations and attempted to withdraw his consent only when the trial court designated the alternates to replace regular jurors. The Court of Special Appeals reversed, finding the judge erred, and this appeal followed.

The Court of Appeals of Maryland observed that both the law in place at the time of this trial (Maryland Rule 2-512(b)) and the law that replaced it in 2008 (Maryland Rule 2-512(f)) require judges presiding over civil actions to dismiss alternate jurors if they are not substituted for a regular juror prior to deliberation. While the high court had never considered the question of the propriety of allowing alternate jurors in the deliberation room in civil trials, it had done so in the context of criminal trials: In Hayes v. State , 355 Md. 615 (1999) and Stokes v. State , 379 Md. 618 (2004) the court had found that allowing alternates to enter the jury deliberations room was prima facie error requiring re-trial. In Stokes, the court explained: “We consider the presence of alternate jurors during the jury deliberations as sufficiently impinging upon the defendant's constitutional right to a jury trial as guaranteed by the Maryland Constitution and Maryland Rules of Procedure to create a presumption of prejudice. Jury deliberations are private and are to be conducted in secret …. The presence of alternate jurors who have no legal standing as jurors injects an improper outside influence on jury deliberations and impairs the integrity of the jury trial. Prejudice must be presumed where alternates breach the sanctity of the jury room.” Because Maryland guarantees the right to a jury trial in both civil and criminal cases, and the statutes governing civil and criminal jurors and alternates are basically identical, the court determined that the holdings of Hayes and Stokes were applicable here. This being the case, the trial judge's substitution of alternates for regular jurors after deliberations had begun was clearly error and was presumptively prejudicial. “Consequently,” the court found, “even if we assume, arguendo, that principles of waiver are applicable, [the defendant] did not waive his objection to the mid-deliberation substitution of alternate jurors for regular jurors.” The case was remanded for new trial.

Disclosure Adequate: Expert May Opine on What Did Not Cause Injury

The Supreme Court of Connecticut found that the exclusion of a medical expert's testimony concerning what did not cause plaintiff's injuries was error, as the disclosure that he would testify concerning causation necessarily implied that he might have to discuss those things he did not believe caused the injury. Klein v. Norwalk Hosp., — A.3d —-, 2010 WL 5071423 (Conn., 12/21/10).

The plaintiff claimed to have suffered an injury to his arm caused by faulty insertion of an IV at the defendant hospital. In order to comply with the state's requirement for disclosure of experts and their testimony found in Practice Book ' 13-4(4), the plaintiff disclosed that he would call as an expert witness Clifford Gevirtz, an anesthesiologist specializing in pain management. The disclosure stated that Gevirtz was to testify on matters concerning the standard of care, departures therefrom, causation and damages. The defendant, for its part, disclosed that its expert, orthopedic surgeon Robert Strauch, would testify that the plaintiff's alleged injury was caused not by the IV stick, but by a neurological condition called Parsonage Turner Syndrome. Plaintiff's expert Gervitz was not specifically disclosed as an expert on Parsonage Turner Syndrome, nor was it disclosed that he would be testifying specifically about that disease or about his opinion that plaintiff did not suffer from it.

During plaintiff's counsel's direct examination of Gevirtz, he asked if the doctor was “familiar with the condition known as Parsonage Turner Syndrome.” The court sustained the defendant's objection to this question on the ground that the plaintiff's disclosure did not comply with the Practice Book because it did not encompass Gevirtz's testifying concerning Parsonage Turner Syndrome. The defense then presented its expert, who averred that plaintiff's nerve damage was caused by Parsonage Turner Syndrome and not by the IV stick.

The jury returned a verdict for the defendant. Plaintiff appealed on the basis that Gevirtz should have been permitted to testify about Parsonage Turner Syndrome. The appellate court affirmed, finding that even if there had been error in this regard, it was not prejudicial to plaintiff's case. This appeal followed.

Plaintiff claimed on appeal to the Supreme Court of Connecticut that: 1) his disclosure of Gevirtz's testimony was adequate to meet the requirements of the Practice Book; and 2) the defendant was on notice that Gevirtz would testify concerning Parsonage Turner Syndrome because that was the subject of its own expert's testimony. According to the court, the plaintiff was correct on the first point because in disclosing that Gevirtz “would testify as to what was the cause of the plaintiff's alleged injury, the disclosure implicitly indicated that Gervitz also could be expected to testify about what was not the cause of the plaintiff's alleged injury.” ( See Mancuso v. Consolidated Edison Co. of New York , 967 F.Sup. 1437 (S.D.N.Y. 1997) (“Critical to establishing specific causation is exclusion of other possible causes of symptoms.”)) Plaintiff also prevailed on his second point, as the defense had questioned Gevirtz in deposition concerning neurological disorders that might have caused plaintiff's pain and dysfunction, and defense counsel said in opening remarks to the jury that the jurors would hear from Gevirtz, who would tell them that the injuries were caused by the IV needle stick “and nothing else, and specifically not Parsonage Turner Syndrome” This statement, along with the defense's questioning of plaintiff's expert, evinced the defendant's knowledge of the possibility that Gevirtz would testify concerning his rejection of any neurological disease (including Parsonage Turner Syndrome) as the cause of plaintiff's injury. Finding that the exclusion of Gevirtz's testimony prejudiced plaintiff, the high court remanded the case to the intermediate appellate court with an order to reverse and remand for new trial.