Baird v. Frank R. Owczarek, M.D., Eye Care of Del. LLC

• Decision Date: 28 May 2014
• Docket Number: No. 504,2013.,504
• Citation: 93 A.3d 1222
• Parties: Thomas BAIRD, Plaintiff Below, Appellant, v. Frank R. OWCZAREK, M.D., Eye Care of Delaware LLC, and Cataract and Laser Center, LLC, Defendants Below, Appellees.
• Court: United States State Supreme Court of Delaware

93 A.3d 1222

Thomas BAIRD, Plaintiff Below, Appellant,
v.
Frank R. OWCZAREK, M.D., Eye Care of Delaware LLC, and Cataract and Laser Center, LLC, Defendants Below, Appellees.

No. 504, 2013.

Supreme Court of Delaware.

Submitted: May 14, 2014.
Decided: May 28, 2014.

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Court Below—Superior Court of the State of Delaware, in and for New Castle County, Case No. N11C–09–241.
Upon appeal from the Superior Court. REVERSED and REMANDED.

Bruce L. Hudson, Esquire, Hudson & Castle Law, Wilmington, Delaware, and Todd J. Krouner, Esquire (argued), Chappaqua, New York, for appellant.

Gregory S. McKee, Esquire (argued), Joshua H. Meyeroff, Esquire, Wharton Levin Ehrmantraut & Klein, P.A., Wilmington, Delaware, for appellees.

Before HOLLAND, BERGER and RIDGELY, Justices.

HOLLAND, Justice:

This is an appeal from a final judgment of the Superior Court that was entered after a jury verdict in favor of defendants-appellees, Frank R. Owczarek, M.D. (“Dr. Owczarek”), Eye Care of Delaware, LLC, and Cataract and Laser Center, LLC (collectively, the “Appellees”). The plaintiff-appellant, Thomas Baird (“Baird”), appeals on a number of grounds. We have concluded that the Superior Court's failure to conduct any investigation into alleged egregious juror misconduct (internet research), which violated the Superior Court's direct instruction to refrain from consulting outside sources of information, constituted reversible error. In addition, the Superior Court's failure to exclude evidence of informed consent in this medical negligence action also constituted reversible error. Accordingly, the judgments of the Superior Court are reversed and this matter is remanded for a new trial. ¹

Facts

On January 27, 2004, Baird underwent a LASIK ² procedure on both eyes performed by Dr. Owczarek. On October 14, 2009, Baird underwent a second LASIK surgery on his left eye—a LASIK “enhancement.” Baird alleged that as a result of the surgeries, he developed post-LASIK ectasia, a vision-threatening corneal disease that required a DALK ³ procedure.

On September 30, 2011, Baird filed a medical negligence action, alleging that the Dr. Owczarek was negligent, not during his performance of the surgeries themselves, but in his decision to perform the surgeries in the first place. Baird also brought a claim based on a lack of informed consent, which he later withdrew.

Having withdrawn his informed consent claim, Baird moved to exclude the defense of assumption of risk and evidence of informed consent. In the same motion, Baird requested that the trial judge exclude the expert testimony of Dr. Steven Siepser, the defendant's standard of care expert. The trial judge denied the motions, but agreed to give a limiting instruction on the issue of informed consent.

An eight-day trial began on April 1, 2013. The jury returned a verdict in favor of the defendants. Over a two-week period following the trial, Juror No. 6 left a telephone message with Baird's counsel and repeatedly attempted to contact the trial judge to inform him of juror misconduct. Eventually, Juror No. 6 wrote a letter to the trial judge alleging that Juror No. 9 had done internet research during the jury's deliberations. Baird moved for

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a new trial based upon the allegations of misconduct by Juror No. 6. After hearing oral argument, the trial judge summarily denied the motion for a new trial without conducting any investigation.

Delaware Constitution

The historical origins of the right to trial by jury which is provided for in the Delaware Constitution was reviewed by this Court in Claudio v. State.⁴ When the Delaware Constitution of 1792 was adopted, the right to trial by jury set forth in the federal Bill of Rights as the Sixth ⁵ and Seventh ⁶ Amendments to the United States Constitution was only a protection against action by the federal government.⁷ In Claudio, this Court noted that when Delaware adopted its Constitution in 1792, notwithstanding the ratification of the first ten amendments or federal Bill of Rights in 1791, it did not create “a mirror image of the United States Constitution” with regard to trial by jury.⁸

Following the adoption of the Fourteenth Amendment to the United States Constitution, the Sixth Amendment right to trial by jury in criminal proceedings has been deemed to have been incorporated by the Due Process clause and now also provides protection against state action.⁹ Nevertheless, the United States Supreme Court has not held that the Seventh Amendment's guarantee of jury trials in civil proceedings was made applicable to the states by the incorporation doctrine ¹⁰ with the adoption of the Fourteenth Amendment to the United States Constitution.¹¹ Accordingly, the right to a jury trial in civil proceedings has always been and remains exclusively protected by provisions in the Delaware Constitution.¹²

Jury Determines Facts

When the Delaware Constitution was rewritten in 1897, the General Assembly included several significant provisions regarding the right to trial by jury. Article I of the 1897 Delaware Constitution was denominated for the first time as the “Bill of Rights.” Section 4 of that article provided for the right to trial by jury as “heretofore.” Article IV, Section 19 was a new addition in the 1897 Constitution and provided: “Judges shall not charge juries with respect to matters of fact, but may

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state the questions of fact in issue and declare the law.” ¹³ The reason given during the Constitutional Debates for the adoption of Section 19 was to ensure “that Judges shall confine themselves to their business, which is to adjudge the law and leave juries to determine the facts.” ¹⁴

In Storey, this Court characterized Section 19 as perpetuating Delaware's commitment to trial by jury in civil actions at law with regard to issues of fact.¹⁵ In examining when a trial judge may set aside a jury verdict, this Court described Delaware's long history of commitment to trial by jury.¹⁶ We explained that Section 19 reaffirmed Delaware's commitment to the common law principles regarding trial by jury:

In the policy of the law of this state, declared by the courts in numberless decisions, the jury is the sole judge of the facts of a case, and so jealous is the law of this policy that by express provision of the Constitution the court is forbidden to touch upon the facts of the case in its charge to the jury. ¹⁷

Accordingly, under the Delaware Constitution, an essential element of the right to trial by jury is for verdicts to be based solely on factual determinations that are made from the evidence presented at trial. ¹⁸ The accused's rights to confrontation, cross-examination and the assistance of counsel ¹⁹ assure the accuracy of the testimony which the jurors hear and safeguard the proper admission of other evidence.²⁰Those rights can be exercised effectively only if evidence is presented to the jury in the courtroom,²¹ where that evidence can be subjected to the adversarial process under the authoritative guidance of a trial judge. These principles are equally applicable to the parties' rights in a Delaware civil jury trial. In addition, the Delaware Constitution provides that, in a civil proceeding that is appealed to this Court, “from a verdict of a jury, the findings of the jury, if supported by the evidence, shall be conclusive.” ²²

Ascertaining Juror Misconduct

The right to an impartial jury is compromised if even one juror is improperly influenced.²³ This Court has recognized the difficulty which a party has in proving actual prejudice within a jury panel.²⁴ That difficulty is attributable to the sanctity of the jury's deliberations and the common law prohibition against jurors impeaching their own verdict. Accordingly, this Court has held “that a flat prohibition against receiving post-verdict testimony from jurors would contravene another important public policy: that of ‘redressing the injury of the private litigant where a

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verdict was reached by a jury that was not impartial.’ ” ²⁵

The need to accommodate the conflicting policies of preserving the sanctity of a jury's deliberations and the parties' right to an impartial jury, has resulted in the recognition of a distinction between extrinsic and intrinsic influences upon a jury's verdict.²⁶D.R.E. 606(b) codifies the common law prohibition against inquiry into the jurors' mental processes, ²⁷ but also provides an exception:

[A] juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.²⁸

Egregious Circumstance Test

In an effort to address the evidentiary limitations caused by precluding any inquiry into a juror's mental processes, this Court has adopted an inherently prejudicial egregious circumstance test.²⁹ To succeed on a claim of improper jury influence, a party must either prove that he or she was “identifiably prejudiced” by the juror misconduct or prove the existence of “ ‘egregious circumstances,’—i.e., circumstances that, if true, would be deemed inherently prejudicial so as to raise a presumption of prejudice.” ³⁰ The presumption of prejudice can be rebutted, however, by a post-trial investigation conducted by the trial judge.³¹

Juror Internet Research Improper

In this case, the Superior Court clearly and appropriately instructed the jury that they were not to “... use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry, computer; the Internet, any Internet service, or any text or instant messaging service; or Internet chat room, blog, or website such as Facebook, My Space, LinkedIN [sic], YouTube or Twitter to communicate to anyone any information in this case or conduct any research about this case until I accept your verdict.” ³²

Baird argues that Juror No. 9's internet research was an improper extraneous influence and was an “egregious circumstance” that raised a...