Hanson v. Parkside Surgery Center

Decision Date06 June 1989
Docket NumberNo. 86-6089,86-6089
Citation872 F.2d 745
Parties, 27 Fed. R. Evid. Serv. 1169 Larry Ray & Linda HANSON, Plaintiffs-Appellants, v. PARKSIDE SURGERY CENTER; Peter N. Arrowsmith, M.D.; Peter N. Arrowsmith, M.D., P.C.; and Arrowsmith Eye Institute, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Steven A. Riley (argued), Nashville, Tenn., for plaintiffs-appellants.

W.A. Moody, Michael Castellarin, Noel F. Stahl, W. Gregory Miller (argued), and David L. Steed, Nashville, Tenn., for defendants-appellees.

Before ENGEL, Chief Judge *, and MERRITT and NORRIS, Circuit Judges.

ENGEL, Chief Judge.

Plaintiff Larry Ray Hanson appeals from the judgment of the United States District Court for the Middle District of Tennessee granting defendant Parkside Surgery Center's motion for a directed verdict and from a jury verdict rendered in favor of defendant Peter N. Arrowsmith, M.D. and the remaining defendants. After this appeal was filed, Parkside Surgery settled with Hanson and was dismissed from the case. Hanson's claims with regard to the other defendants remain before us.

Hanson asserts that the district court committed six reversible errors in conducting the trial: (1) seating an eight-member jury, with all eight members deliberating; (2) restricting the testimony of plaintiff's expert, Dr. Denis O'Day; (3) excluding the deposition testimony of Dr. John M. Omahundro, III; (4) disallowing evidence of Dr. Arrowsmith's revised informed consent form; (5) failing to allow plaintiff's counsel to cross-examine Dr. Arrowsmith concerning statements attributed to him contained in a newspaper article; and (6) failing to allow plaintiff's counsel to admit into evidence the informed consent form used by plaintiff's expert.

The most important issue raised by plaintiff, in our judgment, is whether it was reversible error under the circumstances here for the trial court to have submitted the case to the unanimous decision of eight, as contrasted to six, jurors. After reviewing the briefs and record and hearing oral argument, and despite reservations about the manner in which the jury was seated, we reject all of Hanson's claims of error and affirm.

In 1983, Larry Hanson, a resident of Alabama, learned of an experimental/investigative eye surgery called radial keratotomy which reduces nearsightedness by changing the shape of the cornea. The procedure has been done by Dr. Arrowsmith in Nashville, Tennessee since 1981. Mr. Hanson visited Arrowsmith's office in Nashville, spoke with Arrowsmith concerning the procedure, and watched a video tape prepared by Arrowsmith as part of the informed consent process. Mr. Hanson elected to have the surgery and signed Dr. Arrowsmith's and Parkside Surgery's informed consent forms, but during the anesthesia process (the anesthesia was administered with a sharp-tipped rather than a blunt-tipped needle, a medical decision, the validity of which is also in dispute), Hanson's optic nerve was damaged and he was rendered blind in his left eye.

The Hansons timely filed a medical malpractice suit invoking the diversity jurisdiction of the United States District Court for the Middle District of Tennessee alleging negligence in the anesthesia process. They further alleged that defendants had failed to obtain Hanson's informed consent. The case was tried before a jury, and Tennessee's malpractice statutes were applied. During trial and before the jury began its deliberations, plaintiff Linda Hanson dismissed her claims. A directed verdict subsequently was rendered for Parkside, and the jury returned a verdict for defendant Arrowsmith. Larry Hanson filed a motion for new trial pursuant to Fed.R.Civ.P. 59(a). His motion was denied. Shortly thereafter, he filed a motion for reconsideration of that order. While that motion was pending, he also filed a notice of appeal. Following a change in counsel, Hanson filed a motion to stay all proceedings pending a determination of the effectiveness of the notice of appeal or, in the alternative to file a supplemental brief. The trial court decided that it would not rule on the plaintiff's motion to reconsider pending the outcome of the issue in this court.

On January 23, 1987, pursuant to Fed.R.App.P. 10, defendant Arrowsmith filed a motion in the district court for approval of a statement on the evidence or proceedings and for correction of the record with regard to the contents of an unreported pre-trial meeting held in chambers during which the manner of selection and the size of the jury was discussed. Over plaintiff's motion in opposition, the district court granted Arrowsmith's motion and approved his statement on the evidence or proceedings. The statement set out the jury selection process as it was described by the district court to all counsel at the pre-trial conference:

twenty jurors would be brought to the courtroom and placed in the jury box and in a row of seats in front of the box. During voir dire plaintiffs would be allowed six peremptory challenges and the defendants would be allowed six peremptory challenges between them. After all twelve challenges had been exercised a jury of eight persons would be sworn and seated and no alternate jurors would be specifically designated. The case would then be tried to all eight jurors. At the end of the trial if both sides agreed to excuse two of the jurors then each side would select one juror who would be dismissed and the remaining jury of six persons would retire to deliberate. If both sides did not agree to excuse two jurors at the end of the trial, then the case would be submitted to a jury of eight. 1

The statement also indicated that all counsel had an opportunity to ask the district court questions about the procedure and that they expressed their understanding of and agreement "with the manner of jury selection and the number of jurors who would hear the case." 2 The plaintiff continues to challenge the propriety of the district court's decision to approve the statement and to question its accuracy.

Plaintiff first claims that the district court committed reversible error by submitting the case for deliberation, over plaintiff's objection, to an eight-member jury in violation of Fed.R.Civ.P. 47(b) and Rule 12(j) of the Local Rules of the Court for the Middle District of Tennessee. In relevant part, Rule 47(b) provides "[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict." Local Rule 12(j) provides "[a]ll civil juries shall be composed of six (6) persons, excluding alternates." Relying primarily on Kuykendall v. Southern Railway, supra, plaintiff argues that both of these rules are "mandatory," and therefore absent a valid stipulation by the parties, as provided for in Fed.R.Civ.P. 48, for an eight-member jury, the district court's failure to discharge two jurors as alternates in this case is grounds for reversal. 3 See also DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512 (4th Cir.1985). Defendants counter by arguing that because no substantial right was affected, the claimed violations of Rule 47(b) and Local Rule 12(j) in this case do not merit a new trial, and moreover, because plaintiff agreed to the procedure followed at trial, albeit during a conference that took place off the record, he waived the right to object to any violation of either of the rules. We conclude that Fed.R.Civ.P. 48 does not preclude a stipulation such as that found by the district court. 4 Likewise we find that the local rule does not preclude waiver by a stipulation entered into pursuant to Rule 48.

In Kuykendall v. Southern Railway, supra, as in this case, the trial court empaneled an eight-member jury without designating two members as alternates. After closing arguments, the court announced, out of the presence of the jury, that the case would be submitted to the eight jurors, all of whom would participate in the deliberations. The defendants objected, relying on a local rule requiring the trial judge to submit the case to a jury of either six or twelve, but the objection was overruled. Because one of the eight jurors was excused for illness, the case was eventually submitted to the remaining seven. Borrowing from its cases addressing similar situations under Fed.R.Crim.P. 24(c), the analogous rule of criminal procedure, the court of appeals adopted a "per se rule of reversal" for civil cases where an alternate juror is allowed to retire with the jury in violation of Rule 47(b). It therefore reversed and remanded the case for a new trial. Id. at 393. Although no alternates had been designated, the Fourth Circuit reasoned that since there was no "written" or "clearly recorded" stipulation pursuant to Rule 48 the jury must be treated as one of six regular jurors and two alternates. Id. at 392-93. The effect of this designation was to bring the jury within the mandate of Rule 47(b).

While the Fourth Circuit was within its superintending authority in holding that a departure from the authorized jury size in civil cases is permitted only "by a written stipulation or one clearly recorded," DeBenedetto, 754 F.2d at 514; Kuykendall, 652 F.2d at 392, we decline to adopt such a per se rule here. Moreover, assuming that Rule 47(b) and that Local Rule 12(j) may have been violated, we still believe such violations are subject to the application of the harmless error standards of Fed.R.Civ.P. 61. Cf. United States v. Levesque, 681 F.2d 75, 80 (1st Cir.1982) (violation of Fed.R.Crim.P. 24 warrants reversal only where irregularity affects substantial rights).

The Supreme Court has noted that, for purposes of the seventh amendment, what is required for a jury is "a number large enough to facilitate group deliberation combined with a likelihood of obtaining a representative cross-section of the community." Colgrove v. Battin,...

To continue reading

Request your trial
23 cases
  • U.S. v. Jones
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 3 Marzo 1997
    ...1093, 111 S.Ct. 978, 112 L.Ed.2d 1063 (1991); McGowan v. Cooper Indus., Inc., 863 F.2d 1266, 1271 (6th Cir.1988); Hanson v. Parkside Surgery Ctr., 872 F.2d 745, 750 (6th Cir.), cert. denied, 493 U.S. 944, 110 S.Ct. 349, 107 L.Ed.2d 337 (1989); Mannino v. International Mfg. Co., 650 F.2d 846......
  • U.S. v. Mohney
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 28 Enero 1992
    ...are within the discretion of the trial court and ordinarily may be reversed only for abuse of discretion. Hanson v. Parkside Surgery Center, 872 F.2d 745, 750 (6th Cir.), cert. denied sub nom., Hanson v. Arrowsmith, 493 U.S. 944, 110 S.Ct. 349, 107 L.Ed.2d 337 Under Fed.R.Evid. 704(a), "tes......
  • Olympia Hotels Corp. v. Johnson Wax Development Corp.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 21 Agosto 1990
    ...such a ruling. The principle we are exploring should not be applied fanatically (what principle should be?). Hanson v. Parkside Surgery Center, 872 F.2d 745, 749-50 (6th Cir.1989), held that it was a harmless error to impanel an eight-person jury instead of the six-person jury required by t......
  • Hasouris v. Sorour
    • United States
    • Appeals Court of Massachusetts
    • 8 Enero 2018
    ...witness's presence").11 To the contrary, the plaintiff acknowledged Sorour's diligent efforts.12 Cf. Hanson v. Parkside Surgery Center, 872 F.2d 745, 750 (6th Cir.), cert. denied sub nom. Hanson v. Arrowsmith, 493 U.S. 944, 110 S.Ct. 349, 107 L.Ed.2d 337 (1989) ; Schwartz v. System Software......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT