Alejo Jimenez v. Heyliger

• Decision Date: 14 February 1992
• Docket Number: Civ. No. 88-2028 GG.
• Citation: Alejo Jimenez v. Heyliger, 792 F.Supp. 910 (D. P.R. 1992)
• Parties: Nancy ALEJO JIMENEZ, Plaintiff, v. Dr. Eduardo HEYLIGER, Seguros Triple S, Inc., Defendants.
• Court: U.S. District Court — District of Puerto Rico

792 F. Supp. 910

Nancy ALEJO JIMENEZ, Plaintiff, v. Dr. Eduardo HEYLIGER, Seguros Triple S, Inc., Defendants.

Civ. No. 88-2028 GG.

United States District Court, D. Puerto Rico.

February 14, 1992.

COPYRIGHT MATERIAL OMITTED

Raul Davila Rivera, Bauza & Davila, Old San Juan, P.R., for plaintiff.

Nelson Rivera Cabrera, Hato Rey, P.R., for defendants.

OPINION AND ORDER

GIERBOLINI, Chief Judge.

This is a medical malpractice case filed by Dr. Nancy Alejo Jiménez, a dentist born in the Dominican Republic against Dr. Eduardo Heyliger, a gynecologist. Plaintiff claims that defendant was negligent when he performed on her a hysterectomy. She alleges that due to defendant's negligence a vesicovaginal fistula was formed which caused her to discharge urine through the vagina rather than by the urethra. The case was tried before a jury and lasted four days. As is customary, the jury was instructed during the preliminary instructions and at other times that they were not to discuss the case among themselves or with any other person until the case was finally submitted to them for consideration after the court's instructions as to the applicable law.

During the formal charge the jury was instructed again that they could not communicate with any one except the court, and all such communications should be in writing.

After the formal charge Mr. Edwin Ayala Diaz, a Court Security Officer (CSO), provided by the United States Marshal Service, was sworn in to take charge of the jury. Some time after the jury started deliberations, the court was informed that the CSO had, upon request by the jury, brought into the jury room, without permission of the court, a drawing made by defendant's expert, Dr. Juan Figueroa during his direct examination. We ordered the immediate removal of the drawing from the jury room and informed the attorneys for the parties of what had transpired.

In due course the jury rendered a verdict for defendant. After the jury was discharged, new information regarding possible jury misconduct came to light. We called the attorneys for both sides and informed them that a hearing regarding the new information would be held the next day.

Two witnesses testified under oath at the hearing, Mr. Edwin Ayala Díaz, the CSO in charge of the jury, and Mr. Boabdil Vazquetelles, the court reporter. Mr. Ayala Díaz testified that he had little experience as a CSO. He joined the CSO group while we were still at the Old San Juan courthouse, but soon thereafter his military unit was sent to the Persian Gulf. Upon his return, he rejoined the CSO service. He had received no training as to what to do with a jury. As a result of his ignorance in handling a jury, he entered the jury room and stayed there during their deliberations. He initially stated that he only stayed there for ten minutes but from other information received by this court, we conclude that he stayed there for an extended period of time, longer than that testified to by the CSO. Mr. Vazquetelles testified that he had been waiting in the court room for the deliberations to terminate. Vazquetelles then went to check for communications from the jury. Having had Vazquetelles as this court's reporter for the last twelve years, this judge knows that he would not have checked for messages from the jury only ten minutes into its deliberations. Vazquetelles testified that he: looked for the CSO in the area where the CSO normally is but couldn't find him; continued to look for the CSO by walking to the area near the judge's chambers; walked out to the hallway; walked to the area in front of the courtroom; went back to the courtroom; went through the court; returned to the area near the jury room; went into the judge's chambers and inquired of the court room deputy as to the whereabouts of the CSO; went back outside and spoke to another CSO; returned to the chambers and spoke with the court room deputy again; communicated the aforementioned facts to this judge; went to the jury room and knocked on the door; and finally found Ayala Díaz, the CSO in question, out in the front area. This lengthy sequence of events Vazquetelles described in his testimony establishes, and we so find, that the period of time the CSO spent inside the jury room was much longer than the ten minutes he testified to.

Ayala Díaz testified that during his stay inside the jury room he could hear the jury deliberations, and at one point the jury requested he bring them the two charts made by the experts of each party. He returned to the courtroom and brought back to the jury room a drawing by defendant's expert which was done on paper. He testified that he was unable to bring into the jury room the other drawing, which had been made by plaintiff's expert on a mobile blackboard. The CSO testified that he did not inform the court of the jury's request and of his action, bringing in only one drawing and failing to bring in the second one. As an excuse for the latter he stated that the blackboard was bulky and he could not handle it by himself.

At some point Ayala Díaz heard someone knocking at the jury room, and when he opened the door another CSO informed him that Mr. Vazquetelles, the court reporter, was looking for him. He went out of the jury room and Mr. Vazquetelles informed him that he could not be inside the jury room. Vazquetelles further informed Ayala Díaz that all jury requests must be in writing and brought to the judge's attention. These were all instructions given to the jury during their formal charge by this court. Mr. Ayala Díaz testified that he then informed Mr. Vazquetelles that he had brought the defense's drawing inside the jury room. Ayala Díaz testified that he never informed this judge nor any members of this judge's staff until after the jury's verdict, that the jury had requested two charts and that he brought in only the defense's drawing.

Mr. Vazquetelles testified as to another incident involving alternate juror, Margarita Rotger. The four day trial was split by a weekend. The jury was not sequestered for the trial. However, they were instructed on several occasions during trial that they were not to discuss any aspect of the case with anyone, including fellow jurors, until they began formal deliberation at the trial's end. Mr. Vazquetelles stated that on Saturday afternoon, November 15, 1991, he inadvertently ran into alternate juror Rotger at a consumer exhibition at the Roberto Clemente Coliseum. Vazquetelles testified that although he did not initiate conversation on the subject, alternate juror Rotger made the following comments concerning the trial to him and his daughter,

Boy, what a case. You know, it's funny, when we — we asked ourselves why is this case in the federal court, and I said, "She's got to be Dominican. She looks Dominican." And when she stated that she was Dominican, I started to laugh ... because I was right in what I said. And it seems to me that she is a "buscona." (Transcript of Nov. 20, 1991 hearing, pp. 22-23).

The certified court interpreter Marie Hernández translated the Spanish word "buscona" as follows:

Well, the Spanish word "buscona" would have different connotations. It goes from just a plain money searcher, money seeker, to the connotation of street walker. It has a variety of ranges.... Including hustler in the term of hustler or prostitute. That is the dictionary sense. (Addendum to Transcript of Nov. 20, 1991 hearing, p. 2).

Vazquetelles further testified as to another statement Rotger made to him:

Q Did she Rotger make any additional comments about the case or the plaintiff?

A Well, that about the plaintiff, that she was a "buscona" and — oh, yes, about this thing about her having several abortions at the age of 15. She just made faces, you know, concerning that.

THE COURT: I didn't get that.

THE WITNESS: She Rotger says, "And this thing about her plaintiff, you know, having these abortions at the age of 15," she made those facial gestures going like this (indicating). (Transcript of Nov. 20, 1991 hearing, pp. 23-24.)

Analysis

For the reasons stated below we find that refusal to set aside the verdict and order a new trial would be inconsistent with substantial justice. The irregularities in jury deliberation, probable jury bias based on national origin, and failure of the court to give a curative instruction to a highly prejudicial remark defense counsel made in his closing arguments to the jury, are errors too substantial to be characterized as harmless under Federal Rule of Civil Procedure 61.

Federal Rule of Civil Procedure 59(a)(1) states that a new trial may be granted in a jury trial "for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." The rule is broadly stated to avoid having to list all possible grounds for granting a new trial, but general grounds include, "... that for other reasons the trial was not fair, and that the motion may also raise questions of law arising out of substantial errors in the admission or rejection of evidence or the giving or refusal of instructions ... The court has the power and duty to order a new trial whenever, in its judgment, this action is required in order to prevent injustice." 11 Wright & Miller, Federal Practice and Procedure: Civil § 2803, pp. 37-38 (1973). The decision to grant a new trial ultimately rests within the sound discretion of the trial court, and appellate review is limited to "abuse of discretion." Dumas v. Maclean, 404 F.2d 1062, 1065 (1st Cir.1968), Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177 (1948), Nimrod v. Sylvester, 369 F.2d 870 (1st Cir.1966), See generally 11 Wright & Miller, Federal Practice and Procedure: Civil §§ 2803, 2818, pp. 31-33, 119 (1973).

The jury deliberations in this case were conducted under less than model laboratory conditions. Due process does not mean an errorless trial but it does mean "a jury capable and willing to decide the...