MERIT BRIEF OF AMICUS CURIAE THE ACADEMY OF MEDICINE OF CLEVELAND & NORTHERN OHIO IN SUPPORT OF APPELLANTS THE CLEVELAND CLINIC FOUNDATION ET AL. IN THE SUPREME COURT OF OHIO Madora Jones, Administrator Of the Estate of Redon Jones Appellee, -vs- The Cleveland Clinic Foundation, et al., Appellants. ) ) ) ) ) ) ) ) ) ) ) Case No. 2019-0390 On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District, Case No. 107030 CHRISTOPHER M. MELLINO MEGHAN C. LEWALLEN MARGO KAY MOORE CALDER C. MELLINO The Mellino Law Firm, L.L.C. 19704 Center Ridge Road Rocky River, OH 44116 Email: [email protected][email protected][email protected][email protected]PAUL W. FLOWERS Paul W. Flowers Co., L.P.A. 50 Public Square, Suite 1910 Cleveland, OH 44113 Phone: (216)-344-9393 Email: [email protected]Attorneys for Appellee, Madora Jones, Administrator of Estate of Radon Jones STEPHEN W. FUNK (0058506) (Counsel of Record) Roetzel & Andress, L.P.A. 222 S. Main Street, Suite 400 Akron, OH 44308 419-843-2001 phone 419-841-2608 fax Email: [email protected]R. MARK JONES (0009910) TAMMI J. LEES (0077896) Roetzel & Andress, L.P.A. 1375 E. 9 th Street; 10th Floor Cleveland, OH 44114 Phone: (216)-623-0150 Email: [email protected][email protected]Attorneys for Appellants The Cleveland Clinic Foundation, et al. Supreme Court of Ohio Clerk of Court - Filed September 09, 2019 - Case No. 2019-0390
32
Embed
MERIT BRIEF OF AMICUS CURIAE THE ACADEMY OF …supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=872169.pdfTrial Docket and Journal Entries at 1 (“T.d.”), Complaint. Ms. Jones
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
MERIT BRIEF OF AMICUS CURIAE THE ACADEMY OF MEDICINE OF
CLEVELAND & NORTHERN OHIO IN SUPPORT OF APPELLANTS THE
healthcare providers, AMCNOs membership included, prevail in a supermajority of
medical malpractice suits. Philip G. Peters, Twenty Years of Evidence on the Outcome
of Medical Malpractice Claims, 467 Clinical Orthopedics and Related Research 352
(2009). The rule Ms. Jones promulgates would empower jurors and unsuccessful
litigants to potentially throw into question the large number of defense verdicts in
medical malpractice cases.
Relitigating the validity of trial court decisions is not only inefficient, but it
also undermines the integrity and finality of the time-honored jury system. The
Eighth District Court of Appeals decision concluding that the trial court abused its
discretion by not granting a mistrial opens a “pandora’s box” and permits Ohio courts
to reexamine a verdict on the basis of a jurors’ unsworn, post-trial statements about
their personal motivations for their vote. This rule means that jury verdicts are not
3
final even if all jurors affirm their vote before the court.
If this Court allows jurors to undermine the validity of private, candid jury
deliberations, medical professionals across the state will be unduly burdened with
the obligation to relitigate their medical malpractice cases. Ms. Jones asks for a legal
structure that would preclude the efficient, final disposition of medical malpractice
actions. Such a rule would require medical professionals, who have already
successfully and extensively presented the merits of their case to a jury, to re-defend
their favorable verdict.
Moreover, if the appellate court decision is left to stand, jurors likely will be
subject to harassment from litigants dissatisfied with their verdict. Unsuccessful
litigants will be incentivized to question jurors to determine if any of them were tired,
hungry, dissatisfied or otherwise have regrets about their decision. This harassment
not only unduly burdens jurors, but also threatens to extend litigation in an otherwise
settled matter. This Court should seek to preemptively protect against the potential
for harassment.
AMCNO has an interest in opposing Ms. Jones’ legal position, as it inhibits the
efficient, just, and final disposition of medical malpractice actions against its
members. For the foregoing reasons, AMCNO has a strong and vested interest in the
outcome of this matter. AMCNO urges on behalf of its entire membership that this
Court reverse the decision of the Eighth District Court of Appeals and reinstate the
jury verdict.
4
II. STATEMENT OF FACTS
The underlying litigation involves a medical malpractice action that Appellee
Madora Jones filed against Appellants The Cleveland Clinic Foundation on April 12,
2016. Trial Docket and Journal Entries at 1 (“T.d.”), Complaint. Ms. Jones brought
her claim on behalf of the estate of her late husband, ReDon Jones, who died from a
heart attack. T.d. 1, Complaint. Before his death, Mr. Jones sought care for his chest
pain at Cleveland Clinic’s Hillcrest Hospital. Id. The physicians at Hillcrest
evaluated Mr. Jones and administered an electrocardiogram (“EKG”) to determine
the cause of his chest pain. Jones v. Cleveland Clinic Found., 2019-Ohio-347, 119
N.E.3d 490, ⁋ 2 (8th Dist.). The EKG did not show any elevations. Id. A few days later,
the physicians again sought to determine the source of Mr. Jones’ chest pain, this
time by administering a nuclear stress test. Id. at ⁋ 4. Mr. Jones, however, refused
the nuclear stress test because it would aggravate his claustrophobia. Id. A week
later, the physicians administered a stress-echo test. Id. Despite the efforts of the
Cleveland Clinic medical team, Mr. Jones suffered a fatal heart attack while at home
on July 9, 2012. T.d. 1, Complaint.
Ms. Jones filed suit with the Cuyahoga Court of Common Pleas alleging
wrongful death and medical malpractice. T.d. 1, Complaint. The suit culminated in a
trial that lasted about four days and involved testimony on behalf of both parties from
several expert witnesses. See T.d. 43, Ms. Jones’ exhibit list; T.d. 44, trial brief of
Cleveland Clinic (detailing the list of exhibits and witnesses for trial); see also T.d.
95, journal entry case called for jury trial; T.d. 104, journal entry jury trial continues
5
(indicating that trial began on 10/30/2017 and ended on 11/3/2019). After the
conclusion of the proceedings, the court charged the eight-person jury to “[c]onsult
with one another in the jury room, and deliberate with a view of reaching an
agreement if you can do so without disturbing your individual judgment.” Jones, at ⁋
8. The jury began deliberations at 11:00 a.m. T.d. 117, Trial Court Opinion and
Judgment Entry. 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. Id. The court instructed them to continue
deliberations. Id. Shortly thereafter, around 1:00 p.m., the jury was dismissed for
lunch. Id. Deliberations resumed around 2:15 p.m. Id.
At 5:00 p.m. the jury sent a note to the court indicating that they were
deadlocked. Id. After consultation with counsel, the court again instructed the jury
to continue deliberations. Then, at 7:00 p.m. a juror asked to be excused to attend to
his grandmother, who was in the hospital due to a fall. Id. After conferencing with
the attorneys, the court dismissed the juror and empaneled the alternate juror. Id.
The court then gave the jury the choice to end deliberations for the day, or to continue
deliberations with an alternate juror. Id. The court specifically asked the jury
whether they wanted to continue to deliberate with the new juror, and the jury
replied, “Yes.” T.d. 117, Trial Court Opinion and Judgment Entry. The court then
instructed the jury that they would need to “begin their deliberations anew.” Id.
The jury deliberated for a total of about two to three hours with the new
alternate juror. T.d. 117, Trial Court Opinion and Judgment Entry. About an hour
6
into their new deliberations, the jury indicated that they were deadlocked. Id. With
the agreement of counsel for both parties, the court instructed the jury to keep
deliberating, as they had only been deliberating for one hour. Id. At 9:00 p.m. the jury
again indicated that they were deadlocked. Id. After the jury sent their 9:00 p.m. note,
the court, with the consent of counsel, advised the jurors that they had permission to
leave for weekend, and that they were to reconvene on Monday to resume
deliberations. Id. Though the jurors expressed disappointment in having to reconvene
on Monday, no juror voiced their inability to return on Monday to deliberate. Id. At
10:00 p.m., the jury announced to the court that they had reached a 6-2 defense
verdict. Id.; T.d. 109, jury verdict journal entry. To ensure the validity of the verdict,
the court individually polled the jury to confirm their assent to the verdict. T.d. 117,
Trial Court Opinion and Judgment Entry. Each juror proceeded to confirm, under
oath, that their vote was accurately reported. Id. Thus, the court entered a defense
verdict for the Cleveland Clinic. T.d. 118, judgment entry consistent with jury’s
verdict.
During this entire period, Ms. Jones’ counsel did not seek a mistrial, nor did
he argue that the jury had reached an unbreakable deadlock. T.d. 117, Trial Court
Order and Judgment Entry. In fact, Ms. Jones’ counsel did not object to any aspect of
the jury deliberation process. Id. (“Notably, Plaintiff did not object to any aspect of
the jury deliberations to this point.”). The following Monday, Ms. Jones filed a motion
for mistrial, requesting that the court invalidate the verdict “based on the
circumstances of the jury’s deliberations.” T.d. 105, Ms. Jones’ motion for mistrial.
7
Essentially, Ms. Jones asked the court to infer that the verdict was invalid from the
circumstantial facts that the jury’s decision occurred after a deadlock and after they
were instructed to return on Monday. Id.
One month after trial, and while the motion was pending, a juror wrote a letter
to the court stating that she regretted her defense vote. See T.d. 111, journal entry of
12/12/2017 attorney conference; T.d. 113, Ms. Jones’ supplemental brief in support of
her motion for mistrial; T.d. 116, Cleveland Clinic’s brief in opposition to Ms. Jones’
motion for mistrial. The juror’s letter voiced her opinion that serving as a juror was
a stressful and frustrating experience. Id. The juror, however, did not allege that any
threat, bribe, or improper conduct of a court official was brought to bear upon her
decision making. Id. See also T.d. 117, Trial Court Order and Judgment Entry.
The court denied the motion for mistrial noting that (1) the jury had only been
deliberating for about two hours concerning a week-long medical malpractice case;
(2) the jury chose, voluntarily, to stay late that day; and (3) the jury had not alleged
that their ability to be fair had been compromised. T.d. 117, Trial Court Order and
Judgment Entry. Finally, the court concluded that “as a matter of law, … requiring
jurors to return for juror service on … Monday … is not coercive. It may be
inconvenient, it may be undesirable, but it is simply not legally coercive.” Id. In
deciding the motion for mistrial, the court did not consider the juror’s unsworn, post-
trial letter because it was inadmissible evidence pursuant to Ohio Evid. R. 606(B).
Id. Specifically, the court concluded that Evid. R. 606(B) only allows jurors to testify
about “a threat, any bribe, any attempted threat or bribe, or any improprieties of any
8
officer of the court,” and because the juror’s letter did not address any of these factors,
it was not competent evidence. Id.
On appeal, the Eighth District concluded that the trial court abused its
discretion by denying the motion for mistrial because the jury “broke a previously
unbreakable deadlock.” Jones, at ¶ 29. Further, the Eighth District held that Evid.
R. 606(B) did not preclude the court from considering the juror’s letter. Id. at ⁋ 32.
The court ruled that Evid. R. 606(B) was “wholly inapplicable in this case” because
“the juror who wrote the letter did not testify at a subsequent proceeding concerning
the original verdict.” Id. at ⁋⁋ 34-35. Thus, the Eighth District Court of Appeals
reversed and remanded the matter for another trial. Id. at ⁋ 60.
III. LAW AND ARGUMENT
Appellant’s Proposition of Law No. 1
When the jurors are polled and confirm their assent to the
verdict, courts should not inquire into the motivations for
the jury’s verdict unless there is competent evidence of
threats, bribery, or other improper conduct admissible
under Evid. R. 606(B)
1. Evid. R. 606(B) generally precludes a juror from
offering testimony to impeach a verdict, except in
rare instances where there is evidence of clear
improper external conduct.
Once jurors are polled and confirm their verdict, Evid. R. 606(B) precludes
inquiry into the juror’s motivations unless there is evidence that some outside party
threatened, bribed or otherwise improperly influenced their decision making. Evid.
R. 606(B) provides that juror testimony is incompetent evidence to impeach a verdict
except in rare, narrow circumstances:
9
[A] juror may not testify as to any matter or statement occurring during
the course of the jury's deliberations or to the effect of anything upon
that or any other juror's mind … [except whether] extraneous prejudicial
information was improperly brought to the jury's attention….
(emphasis added).
Evid. R. 606(B) prohibits the use of a juror’s personal thoughts to upset a jury’s
verdict. That same juror, however, might be able to testify as to select external acts
of misconduct. State v. Robb, 88 Ohio St.3d 59, 79, 723 N.E.2d 1019 (2000) (noting
that exceptions to Evid. R. 606(B) exist only when an extraneous influence is
involved) (internal citations omitted). This is because a juror’s personal motivations,
being internal, cannot be challenged or verified through other testimony. This rule
conforms with Ohio’s aliunde rule, which requires a party to produce competent
evidence outside of juror testimony to support an impeachment of a verdict. Lund v.
Kline, 133 Ohio St. 317, 319 (1938) (explaining that juror testimony is only
appropriate if it can be supported or challenged by external evidence); Kent v. State,
42 Ohio St. 426, 436 (1886) (holding that juror affidavits could not be properly
considered in a motion for new trial because they contained unverifiable allegations
of jury misconduct during deliberations). The rule precludes juror testimony
concerning their emotional or mental processes during deliberations, as there could
be no evidence, aliunde, in such circumstances. Robb, at 79 (interpreting Evid. R.
606(B) as restricting a juror’s competence to testify about their mental impressions
during their deliberations).
In contrast, a juror’s testimony as to select external influences, like threats or
bribery, can be considered without evidence aliunde because the other jurors might
10
testify as to whether the acts of misconduct actually occurred. Adams v. State, 141
Ohio St. 423, 431 (1943) (holding that juror testimony as to an inappropriate
statement by a court official was admissible because it was in connection with an
external event). This constitutes an exception to the requirement that juror's
testimony must be conditioned upon introduction of other evidence. Notably, the text
of Evid. R. 606(B) states that this exception relates only to matters involving threats,
bribes or external events. All other juror affidavits or statements of the juror are
prohibited by the rule. See, e.g., State v. Hessler, 90 Ohio St.3d 108, 123, 734 N.E.2d
1237 (2000) (excluding juror affidavit because it did not meet the Evid. R. 606(B) test
for admission without first presenting external evidence). This distinction prevents a
sole juror, like the juror whose note is in controversy in the instant case, from
upheaving the result of an otherwise settled trial with nothing more than an account
of their personal perceptions.
The existing jury-trial system, without extra-judicial jury testimony, has
mechanisms in place to ensure that a jury reaches a verdict that accurately reflects
their judgment. The jury must listen to a full trial and consider all the admissible
evidence; they must listen to their peers and defend their positions during
deliberation; and in this case, they had to confirm under oath that their vote was an
honest one. Through this process, a juror’s opinions are properly formed, tested, and
then verified. In almost all cases, this trial procedure is sufficient to produce an
accurate jury verdict. Pena-Rodriguez v. Colorado, 137 S.Ct. 855, 861 (2017)
(explaining that “experience shows” that a jury trial, jury instructions, and candid
11
jury deliberations all combine to produce fair and impartial verdicts). A single juror’s
personal thoughts should not be sufficient to usurp this entire judicial process. Mattox
v. U.S., 146 U.S. 140, 148 (1892) (stating that public policy forbids the "secret
thought[s] of one [juror from having] the power to disturb the expressed conclusions
of [all the other jurors].")1 Therefore, as a general rule, jurors are prohibited from
impeaching their own verdicts. Schwindt v. Graeff, 109 Ohio St. 404, 407, 142 N.E.
736 (1924); Adams, at 427.
2. Evid. R. 606(B) is the codification of a long-standing common
law doctrine prohibiting the use of juror testimony to
impeach their verdicts.
This evidentiary rule is firmly rooted in Ohio and American law and stands to
protect important public policy. The rule that a juror may not present their personal
sentiment to impeach their own verdict has been part of Anglo-American
jurisprudence since the late 18th century, when Lord Mansfield, Chief Justice,
declared:
The court cannot receive such an affidavit from any of the jurymen
themselves * * * but in every such case the court must derive their
knowledge from some other source: such as from some person having
seen the transaction through the window, or by some such other means
Schwindt, at 406-07 (citing Vaise v. Delaval, 1 T. R., 11 (K. B.)).
By the time that the Fourteenth Amendment to the Constitution was ratified,
Lord Mansfield’s no-impeachment rule had become an institution in American law.
1 The Mattox court allowed the admission of juror affidavits that indicated that the jury consulted information that was not in evidence, including a prejudicial newspaper article. Maddox, at 151. Federal courts eventually overruled Maddox’s liberal evidentiary holding in favor a stricter ban on juror affidavits. See Pena-Rodriguez, at 864. However, this evolution in federal law does not overrule Maddox’s observation that a lone juror should not have the power to overturn a settled decision.