Anis v. Bryanlgh Health System
| Decision Date | 27 December 2005 |
| Docket Number | No. A-04-661.,A-04-661. |
| Citation | 14 Neb. App. 372,707 N.W.2d 60 |
| Parties | Aziz Y. ANIS, M.D., appellant, v. BRYANLGH HEALTH SYSTEM, a corporation, appellee. |
| Court | Nebraska Supreme Court |
Thomas M. Locher, Joel E. Feistner, and Doug Krenzer, of Locher, Cellilli, Pavelka & Dostal, L.L.C., Omaha, for appellant.
Dean J. Sitzmann, Stephen L. Ahl, and Justin E. Driscoll, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., Lincoln, for appellee.
Aziz Y. Anis, M.D., appeals the order of the district court for Lancaster County which overruled his motion for new trial in his tort action against BryanLGH Health System (BryanLGH). Because we conclude that Anis failed to meet his burden of proving by clear and convincing evidence that he was prejudiced by alleged jury misconduct, we affirm.
Anis initiated a negligence action against BryanLGH for injuries Anis suffered when he slipped and fell on some ice in a parking garage owned and operated by BryanLGH. At the conclusion of the trial, the jury was instructed, inter alia, as follows:
The law forbids you to return a verdict determined by chance. You may not, for instance, agree in advance that each juror will state an amount to be awarded in damages, that all of those amounts will be added together, that the total will be divided by the number of jurors, and that the result will be returned as the jury's verdict.
A verdict determined by chance is invalid.
This instruction is identical to the pattern jury instruction. See NJI2d Civ. 4.02. During the formal jury instruction conference, Anis did not specifically object to this instruction. Anis offered proposed instructions and verdict forms, which the trial court rejected and none of which addressed the topic of a verdict determined by chance. At the close of the conference, counsel for Anis stated:
The only other matter that I would just raise for the purpose of the record, Judge, [Anis] would object to the instructions as a whole. It's not accurately stating the law and failing to instruct the jurors on the specific instructions that have been offered and marked for purposes of that.
Read in context, this broad objection merely notes the divergence between the court's instructions and verdict forms and those particular instructions and verdict forms requested by Anis, none of which spoke to the subject of a verdict determined by chance. This objection served only to further preserve Anis' objection to the trial court's refusal to use the particular instructions and verdict forms preferred by Anis.
During deliberations, the jury submitted a single set of written questions to the trial court which the trial court answered, as follows:
We have found both parties to be neglectful.
Question A.: Do we have to unanimously agree on the percentage of neglect? If other than 50-50?
Answer: Please reread the instructions.
Question B.: Can we have a calculator?
Answer: No
Question C.: What is our time situation[?]
Answer: What time situation are you referring to?
Answer: Please reread the instructions.
Both parties and their counsel waived their appearances at the reading of the verdict. The jury found BryanLGH to be 32 percent negligent and Anis to be 68 percent negligent. Following the court's instructions, the jury returned a verdict for BryanLGH. After the jury announced its verdict, the court polled each of the jurors and each confirmed the verdict. The court entered judgment pursuant to the jury's verdict. Anis moved for a new trial, alleging that the jury's verdict was not sustained by the evidence "and/or" was contrary to law. After a hearing at which neither party offered any evidence, the trial court denied the motion for new trial. Anis appeals to this court.
ASSIGNMENTS OF ERROR
Anis alleges that (1) the verdict rendered by the jury was an improper quotient verdict based upon chance and lottery, and must therefore be set aside, and (2) the trial court abused its discretion in overruling Anis' motion for new trial without conducting any independent evaluation of all the circumstances of the case and without making specific findings for review based upon that evaluation.
STANDARD OF REVIEW
In order for a new trial to be ordered because of juror misconduct, the party claiming the misconduct has the burden to show by clear and convincing evidence that prejudice has occurred. In re Petition of Omaha Pub. Power Dist., 268 Neb. 43, 680 N.W.2d 128 (2004). The trial court's ruling on a question involving jury misconduct will not be disturbed on appeal absent an abuse of discretion. Id.
ANALYSIS
Evidence of Quotient Verdict.
Anis alleges that the jury's verdict was an improper quotient verdict based on chance and lottery. A quotient verdict is one in which the jurors, for the purpose of arriving at a verdict, agree that each should write on his or her ballot a sum representing his or her judgment, that the aggregate should be divided by the number of jurors, and that the jurors will be bound by the quotient as their verdict. See Haarberg v. Schneider, 174 Neb. 334, 117 N.W.2d 796 (1962). Quotient verdicts are generally considered invalid. See id. They do not represent the deliberate judgment of the jurors, are subject to manipulation, and evoke the nature of a lottery. See Winston v. Davis, 187 Neb. 522, 192 N.W.2d 413 (1971). An after-the-fact agreement to use an average does not invalidate the verdict. See McGuire v. Thompson, 152 Neb. 28, 40 N.W.2d 237 (1949).
Spreitzer v. State, 155 Neb. 70, 76, 50 N.W.2d 516, 522 (1951), quoting 53 Am. Jur. Trial § 1031 (1945).
Anis argues that the jury's questions during deliberations raise a reasonable inference that the jury agreed on a quotient process to determine the outcome of the trial. The burden of establishing prejudice rests on the party claiming jury misconduct. See In re Petition of Omaha Pub. Power Dist., supra. While we could infer the existence of an agreement to be bound by a quotient process from the final question of the set of questions submitted by the jury during deliberations, it is equally possible to infer that the jury reread the instructions as advised by the court and did not agree to be bound by a quotient verdict. As such, Anis has not sustained his burden of proof. See Richardson v. Ames Avenue Corp., 247 Neb. 128, 525 N.W.2d 212 (1995) ().
The same can be said of Anis' argument that the "odd numbers" of the verdict prove that the verdict was based on a prior agreement to adhere to a quotient process. Brief for appellant at 11. Even if we were to make the unlikely inference that the jury's assessment of comparative fault demonstrates an agreement to be bound by a quotient verdict, the facts lend equal—if not greater—support to the inference that the jurors assessed fault after thoughtful deliberation and unanimous agreement. It is presumed a jury followed the instructions given in arriving at its verdict, and unless it affirmatively appears to the contrary, it cannot be said that such instructions were disregarded. Kvamme v. State Farm Mut. Auto. Ins. Co., 267 Neb. 703, 677 N.W.2d 122 (2004). We cannot find the required affirmative showing merely from an inference which is no stronger than the opposing inference.
Moreover, Anis did not object to the court's response to the jury's questions. Indeed, the argument on the motion for new trial suggests that Anis' counsel had approved of the court's answers to the jury's questions. Also, recalling that the moving party bears the burden of establishing prejudice from the alleged misconduct, we observe that all of the examples of allocations of Anis' negligence provided in the jury question—60, 50, and 70 percent, respectively—were numbers greater than or equal to the percentage of negligence sufficient to bar Anis' claim. See Neb.Rev.Stat. § 25-21,185.09 (Reissue 1995). We conclude that Anis did not satisfy his burden of proving by clear and convincing evidence that prejudice occurred, and therefore, we conclude that the trial court did not abuse its discretion in overruling Anis' motion for new trial.
Independent Evaluation and Specific Findings.
Anis contends...
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Bridwell v. Walton, A-17-1011.
...be divided by the number of jurors, and that the jurors will be bound by the quotient as their verdict. Anis v. BryanLGH Health System , 14 Neb. App. 372, 707 N.W.2d 60 (2005). It is the agreement by the jurors to be bound by the quotient which creates the invalidity of quotient verdicts; t......