Andrews v. O'Hearn, 10837

Decision Date07 May 1986
Docket NumberNo. 10837,10837
Citation387 N.W.2d 716
PartiesMary ANDREWS and Mark Andrews, Plaintiffs and Appellants, v. J.W. O'HEARN, M.D., S. Thompson, M.D., Fargo Clinic, St. Luke's Hospitals, Ryan B. Harrington, M.D., The Neurologic Associates, Dale R. Shook, M.D., Roger L. Gilbertson, M.D., Radiologists, Ltd., and Does 1 through 50, inclusive, including each and every number between 1 and 50, inclusive, Defendants and Appellees. Civ.
CourtNorth Dakota Supreme Court

David M. Harney (argued), and Frederick C. Shaller, of Harney, Wolfe, Pagliuso, Shaller & Carr, Los Angeles, Cal., David M. Axelrad (argued), and Barry R. Levy, of Horvitz, Levy & Amerian, Encino, Cal., and Robert Vogel (argued), of Robert Vogel Law Office, P.C., Grand Forks, for plaintiffs and appellants.

John D. Kelly (argued), Jane C. Heinley, and Harlan G. Fuglesten, of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for defendants and appellees J.W. O'Hearn, M.D., S. Thompson, M.D., and Fargo Clinic.

Jack G. Marcil (argued), and Paul F. Richard, of Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, for defendant and appellee St. Luke's Hospitals.

Patrick J. Maddock (argued), and Gerald J. Haga, of Degnan, McElroy, Lamb, Camrud, Maddock & Olson, Ltd., Grand Forks, for defendants and appellees Ryan B. Harrington, M.D., and The Neurologic Associates.

Gunder Gunhus (argued), and Kate MacEachern, of Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, Minnesota, for defendants and appellees Dale R. Shook, M.D., Roger L. Gilbertson, M.D., and Radiologists, Ltd.


Mary and Mark Andrews (plaintiffs) appealed from the judgment of the district court of Cass County dismissing their complaint, the order denying their motion for a new trial and for judgment notwithstanding the verdict, and the order denying costs in their favor and granting taxation of costs against them. We affirm.

This suit involves various allegations of medical malpractice against Drs. O'Hearn, Thompson, Harrington, Shook, and Gilbertson, Fargo Clinic, St. Luke's Hospitals, The Neurologic Associates, and Radiologists, Ltd. (defendants). 1 Following a nine-week trial, the jury found O'Hearn, Harrington, and St. Luke's Hospitals negligent; the jury did not, however, find proximate cause between the acts of the negligent defendants and the injuries to the plaintiffs and therefore awarded no damages. On appeal, the plaintiffs raise as issues:

(1) that the trial court erroneously refused to consider juror affidavits that allegedly demonstrate the jury's use of an erroneous definition of proximate cause;

(2) that communications with the jury by the bailiff and judge without notice and outside the presence of counsel constituted prejudicial error;

(3) that the court's instruction on proximate cause was incorrect;

(4) that the court's instruction on presumption of truth was improper;

(5) that defense counsel committed misconduct during closing arguments;

(6) that the jury's finding of negligence against O'Hearn, Harrington, and St. Luke's Hospitals compels a finding of proximate cause and liability for damages;

(7) that the jury erred as a matter of law in absolving Fargo Clinic and The Neurologic Associates of negligence; and

(8) that the trial court erred by awarding costs and disbursements to defendants and denying costs to plaintiffs.


Plaintiffs allege that the jurors disregarded the court's instruction on proximate cause and instead relied on their own improper definition of proximate cause. In support of this proposition, plaintiffs submitted six juror affidavits to the trial court.

                The trial court refused to consider the affidavits, holding that affidavits of jurors are not admissible to impeach the jury's verdict except to show juror misconduct based upon extraneous prejudicial information, outside influence, or a chance verdict.  This is a correct statement of the long-standing rule in North Dakota.  Rule 606(b), N.D.R.Ev.;  Rule 59(b)(2), N.D.R.Civ.P.;  Mauch v. Manufacturers Sales & Service, Inc., 345 N.W.2d 338 (N.D.1984);  James Turner & Sons v. Great Northern Railway Co., 67 N.D. 347, 272 N.W. 489 (1937).  Juror affidavits may not be used "for purposes of impeaching a verdict relative to the mental processes or reasoning of the jurors in arriving at a decision."  Mauch, 345 N.W.2d at 343.   An attempt to use juror affidavits to demonstrate how the jury arrived at its decision falls precisely within the confines of the rule prohibiting impeachment of the jury verdict

Plaintiffs nonetheless argue that our rule should be abandoned because it prevents the correction of an injustice and denies the plaintiffs due process of law. 2 We have for many years extolled the importance of our public policy, which is codified in our rules, that prevents examination of the mental processes of jury deliberations. One of plaintiffs' counsel stated in oral argument that the future of the jury system in our State depends upon our determination of the appropriate response to alleged jury misconduct in its deliberations. We agree with counsel's statement, but reach a result contrary to his position. Were we to allow examination of the jury's internal deliberations, as is proposed here, the jury system would suffer an unprecedented blow to its function and effectiveness. As we stated in State v. Forrester, 14 N.D. 335, 338, 103 N.W. 625, 626 (1905), consideration of juror affidavits to impeach a verdict would be a great detriment to the jury system:

"It would greatly tend to unsettle verdicts if a juror be permitted to say, after it is too late to be remedied, that he did not understand the charge of the court. To do so would result in continual embarrassment and interminable controversy after trials, although a verdict had been duly and solemnly announced. It would subject jurors to constant annoyance by being called upon to state the occurrences of the jury room, which ought to be kept secret as well as privileged. It would subject jurors to influences by corrupt parties in an effort to have them impair their verdict after they had ceased to act as jurors. Although injustice may at times result from thus holding verdicts solemnly rendered unassailable by affidavits of jurors as to their not understanding the charge or as to their reasons for agreements, we deem it the better rule, and subject to less liability to injustice, that a verdict actually rendered shall be conclusively deemed to be a verdict, and beyond impeachment by the declaration of a juror as to a mental condition existing when he agreed upon a verdict, or as to his reasons for so agreeing." [Emphasis added.] 3

It is essential to our system of justice that the jury be unfettered in its discussions; the prospect of continued reexamination and subsequent justification of the jury verdict would create a substantial chilling effect upon the jurors and hinder free and open discussion. See, e.g., McDonald v. Pless, 238 U.S. 264, 267-268, 35 S.Ct. 783, 784, 59 L.Ed. 1300, 1302 (1915). Post-verdict examination of the content, method, and manner of the jury's internal decision-making process would "place every verdict at the mercy of jurors and invite tampering and harassment." Notes of Advisory Committee on Rule 606(b), F.R.Evid., citing Grenz v. Werre, 129 N.W.2d 681 (N.D.1964). As recently stated by the United States Supreme Court,

"once the jury has heard the evidence and the case has been submitted, the litigants must accept the jury's collective judgment. Courts have always resisted inquiring into a jury's thought processes [citing McDonald v. Pless and Rule 606(b) ]; through this deference the jury brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality." United States v. Powell, 469 U.S. 57, ---- 105 S.Ct. 471, 478, 83 L.Ed.2d 461, 470 (1984).

This admonition as to the sanctity of the jury's thought processes and the need for finality applies with even more force to civil litigation, where liberty interests are not involved. 4

Plaintiffs contend that a jury's agreement to disregard the instructions is an objectively verifiable act properly subject to judicial review. Plaintiffs' argument that group decisions constitute objectively verifiable evidence of overt acts that can be admitted as evidence is contrary to North Dakota law and drawn from a misapplication of one sentence taken out of the context of our decision in Kerzmann v. Rohweder, 321 N.W.2d 84 (N.D.1982). In support of their view, the plaintiffs quoted only the italicized portion of the following quotation from Kerzmann:

"Rule 606(b) sets forth the circumstances when a juror is competent as a witness when an inquiry is made into the verdict. The portion of Rule 606(b) which is relevant here permits a juror to testify as to 'whether extraneous prejudicial information was improperly brought to the jury's attention, [or] whether any outside influence was improperly brought to bear on any juror, ...' Rule 606(b). These items are similar to the California rule that a juror may testify to overt acts, conduct, events, and statements that are objectively ascertainable. [Citation omitted.] Rule 606(b) does not permit a juror to testify 'as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's Our reference to the similarity to the California rule, which is contained in a statute, does not mean that our rule is identical or is to be given similar interpretation. Indeed, the California statute is substantially different from our rule. Rule 606(b) of our Rules of Evidence 5 provides that:

mind or emotions ...' Rule 606(b). These items are similar to the California rule that prohibits a juror from testifying to the subjective reasoning processes of the juror. [Citation omitted.]" 321 N.W.2d at 91.

"a juror may not testify as to any matter or statement occurring...

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