Blake by Adams v. Spartanburg General Hosp., 23554

• Decision Date: 13 January 1992
• Docket Number: No. 23554,23554
• Citation: 307 S.C. 14,413 S.E.2d 816
• Court: South Carolina Supreme Court
• Parties: , 31 A.L.R.5th 871 Leneace BLAKE, by her Guardian ad Litem, Deborah ADAMS, Respondent, v. SPARTANBURG GENERAL HOSPITAL, Cardiovascular Anesthesia, P.A., Mazen Al-Sawaf, and Cheryl Alexander, Appellants.

Page 816

413 S.E.2d 816

307 S.C. 14, 31 A.L.R.5th 871

Leneace BLAKE, by her Guardian ad Litem, Deborah ADAMS, Respondent, v. SPARTANBURG GENERAL HOSPITAL, Cardiovascular Anesthesia P.A., Mazen Al-Sawaf, and Cheryl Alexander, Appellants.

No. 23554.

Supreme Court of South Carolina.

Submitted Nov. 21, 1991.

Decided Jan. 13, 1992.

William U. Gunn, of Holcombe, Bomar, Cothran & Gunn, P.A., Spartanburg, for appellant Spartanburg General Hosp.

William M. Hagood, III, of Love, Thornton, Arnold & Thomason, Greenville, for appellants Cardiovascular Anesthesia, P.A. and Mazen Al-Sawaf.

Cary C. Doyle and John M. O'Rourk, Anderson, for appellant Cheryl Alexander.

Charles L. Henshaw, Jr., of Furr & Henshaw, P.A., Columbia, and O. Fayrell Furr, Jr., of Furr & Henshaw, P.A., Myrtle Beach, for respondent.

HARWELL, Justice:

The primary issue before this Court is whether the trial judge erred in granting respondent Leneace Blake (Blake) a new trial on the grounds that a bailiff's comments may have influenced jury deliberations. We affirm.

I. FACTS

Blake underwent coronary bypass surgery in 1987 at Spartanburg General Hospital. She allegedly was administered an excessive amount of potassium. She experienced cardiac arrest while in the operating room, but was resuscitated. Blake thereafter brought a medical malpractice action, alleging she suffered brain damage as a consequence of the cardiac arrest, which she further alleged resulted from the improper administration of potassium. The jury returned a verdict for appellants.

Some days after trial Blake's attorneys were informed that a bailiff made comments to a juror urging the jury to reach a verdict. The bailiff allegedly made statements to the effect that the trial judge did not like a hung jury, and that a hung jury places an extra burden on taxpayers. The trial judge held an evidentiary hearing at which each juror and bailiff involved in the trial was questioned. The trial judge found that a bailiff made improper comments to two jurors, one of whom was the foreperson, and that the comments were relayed to the remaining jurors by the foreperson on the second day of deliberations. The trial judge granted Blake a new trial on the grounds that "a possibility of coercive effect" resulted from the bailiff's comments.

II. DISCUSSION

Appellants assert that the trial judge erred in granting respondent's motion for a new trial. We disagree.

The trial judge based his ruling on Jones v. Bennett, 290 S.C. 96, 348 S.E.2d 365 (Ct.App.1986), in which the court held that a jury verdict may be set aside because of contact with a juror when:

(1) the contact was made in an effort to influence the juror by or on behalf of a party in whose favor the verdict was rendered or;

(2) the contact was such as would obviously influence the juror or;

(3) the trial judge finds the contact either influenced or probably influenced the juror.

Id. at 98-99, 348 S.E.2d at 366. The trial judge interpreted Jones as articulating criteria a trial judge should utilize in order to determine whether remarks made to a jury necessitate the setting aside of a jury verdict. We think the trial judge misconstrued the holding in Jones as limiting his discretion solely to a consideration of the Jones criteria. We hold that Jones enumerates some, but not all, factors a trial judge may consider when deciding whether to set aside a jury verdict.

The trial judge also discerned, based on State v. Compton, 127 Ariz. 420, 621 P.2d 926 (1980), that "insider" comments, such as those made by an officer of the state, inherently produce a greater possibility of coercive effect on a jury than comments made by "outsiders." We again decline to limit a judge's discretion by adopting the Compton court's presumption. We hold that a determination of whether any person has a coercive effect on a juror because of any reason is a matter addressed to the sound discretion of the trial judge who is considering the impact of a communication on jury deliberations.

In Jacobs v. American Mutual Fire Insurance Co., 287 S.C. 541, 340 S.E.2d 142 (1986), decided the month before Jones, this Court reiterated that a trial judge in his discretion may grant a new trial upon the ground of undue influence, and his decision thereon will not be reversed absent clear evidence of abuse of discretion. Id. at 543, 340 S.E.2d at 143 (citing Zorn v. Crawford, 252 S.C. 127, 165 S.E.2d 640 (1969)). We require clear evidence of an abuse of discretion because the trial judge has the opportunity to view the trial, the character and intelligence of the jurors, and "to consider the verdict in the light of the evidence ... [to] determine whether the verdict has so little support as to indicate corrupt or improper influence." McGill Bros. v. Seaboard Air Line Ry., 75 S.C. 177, 180, 55 S.E. 216, 217 (1906). Accordingly, we examine the record in order to determine whether the trial judge abused his discretion in granting a new trial on the grounds that the jury verdict may have been influenced by the bailiff's remarks.

A bailiff or other person in charge must limit his communications with the jury and avoid all comments concerning the case. Jacobs, 287 S.C. at 543, 340 S.E.2d at 143. However, a bailiff's remarks to a juror are not per se grounds for setting aside a jury verdict. The test is whether the verdict was solely the result of honest deliberation on the case as publicly developed at trial, or whether there is reason to suppose outside influences entered into it as a factor. McGill Bros., 75 S.C. at 181, 55 S.E. at 217. Every case of this kind must be decided on its own facts. Id.

App...