Brooks v. Zahn, 1

• Decision Date: 20 August 1991
• Docket Number: CA-CV,No. 1,1
• Citation: 170 Ariz. 545,826 P.2d 1171
• Parties: Richard H. BROOKS, Trustee in Bankruptcy for John R. Huston, Sr., M.D., and Beverly Huston, husband and wife, Plaintiffs-Appellants, v. F. Darwin ZAHN, M.D.; Central Surgeons, Ltd., an Arizona corporation; Charles M. Rucker, M.D.; Arizona Heart & Lung Surgeons, Ltd., an Arizona corporation, Defendants-Appellees. 89-292.
• Court: Arizona Court of Appeals

Page 1171

826 P.2d 1171

170 Ariz. 545

Richard H. BROOKS, Trustee in Bankruptcy for John R. Huston, Sr., M.D., and Beverly Huston, husband and wife, Plaintiffs-Appellants, v. F. Darwin ZAHN, M.D.; Central Surgeons, Ltd., an Arizona corporation; Charles M. Rucker, M.D.; Arizona Heart & Lung Surgeons, Ltd., an Arizona corporation, Defendants-Appellees.

No. 1 CA-CV 89-292.

Court of Appeals of Arizona Division 1, Department D.

Aug. 20, 1991.

Reconsideration Denied Sept. 25, 1991.

Review Denied April 7, 1992.

[170 Ariz. 547] Harris & Palumbo, P.C. by Kevin W. Keenan and Anthony J. Palumbo, Phoenix, for plaintiffs-appellants.

Teilborg, Sanders & Parks, P.C. by Richard A. Kent and Scott H. Houston, Phoenix, for defendants-appellees.

OPINION

McGREGOR, Judge.

The primary issue on appeal is whether the trial court abused its discretion by denying appellants' motion for new trial, which alleged that a juror concealed her bias and prejudice on voir dire and introduced extraneous prejudicial information into jury deliberations. We find no abuse of discretion and affirm the judgment.

I.

On December 9, 1986, John Huston, M.D., and Beverly Huston (Hustons) brought a medical malpractice claim against F. Darwin Zahn, M.D., Charles M. Rucker, M.D., and various medical associations (the doctors), alleging that the doctors negligently provided Dr. Huston with surgical, antibiotic and follow-up care stemming from their treatment of his gastrointestinal bleed and infection following surgery. During the jury selection process, the trial judge conducted most of the questioning. ¹ The trial court inquired whether any prospective juror was engaged in the practice of medicine, employed by a health care provider or a medical practice affiliation, or had any significant medical or health care education. A prospective juror, Marilyn Grabowicz (Grabowicz), responded that she was a retired registered nurse.

After Grabowicz answered the court's questions about her training and nursing experience, the following exchange occurred:

THE COURT: Now, this is a case in which there may be some claims with regard to some surgery on a gastrointestinal bleed and some problems with some infections that occurred to it over a period of time. In your 30 years of experience, would you have any special knowledge or education or experience with regard to something like that that might affect your ability to come in here, listen to the testimony, make up your mind based on the testimony and exhibits which come in before us?

MS. GRABOWICZ: I don't really think so.

During his follow-up questions to the jury, Hustons' attorney did not inquire further into Grabowicz's professional or personal experiences. The parties selected Grabowicz as a jury member.

After the jury returned a defense verdict, Hustons moved for a new trial on several grounds, including jury misconduct. Hustons supported their motion with juror Rosemary Amerson's (Amerson) affidavit. In the affidavit Amerson alleged that Grabowicz and other jurors emphasized Grabowicz's experience as a nurse; that Grabowicz stated her opinions regarding the administration of antibiotics to Dr. Huston, the appropriateness of the surgeries performed on Dr. Huston, the delays in referring Dr. Huston to others for additional surgery, and the length of time necessary for Dr. Huston's chest wall to heal; and that Grabowicz told other jurors that her husband had experienced a chest wall infection similar to Dr. Huston's infection.

The trial court conducted an evidentiary hearing to determine if Grabowicz introduced extraneous prejudicial information into the jury deliberations. During the hearing the trial court questioned Grabowicz and the other jurors regarding those statements that Grabowicz made concerning her husband's infection. The trial court did not question the jurors regarding those statements Grabowicz made based upon her medical knowledge.

Grabowicz acknowledged that during deliberations she said that her husband had suffered from osteomyelitis, which affected his leg, and that the infection drained for two to three years. Other jurors testified, with varying degrees of recollection, concerning the time at which and the context in which Grabowicz made her comments and their effect on the jurors' decision.

The trial court found that Grabowicz did not fail to answer truthfully any question asked on voir dire. The court also stated, "[T]here is absolutely nothing wrong with the jury, during deliberation, turning to Mrs. Grabowicz, because of her medical experience, and asking specifically her opinion because of her background and experience, as long as she did not significantly go into factual experiences and put before the jury factual information which didn't come out in court. Every juror has a right to express an opinion based upon their own experience." The trial court further found that, in any event, Grabowicz made her comments after sufficient votes existed for a defense verdict. Accordingly, the court concluded that no prejudice resulted from the challenged comments. Based on these findings, the trial court denied Hustons' motion.

Hustons timely filed a notice of appeal. We have jurisdiction pursuant to A.R.S. § 12-2101.F.

II.

Hustons first argue that the trial court abused its discretion in denying their motion for a new trial because Grabowicz falsely answered questions on voir dire.

Rule 59(a)(2), Arizona Rules of Civil Procedure, permits an aggrieved party to move for a new trial on the ground of juror misconduct. To obtain a new trial based on a juror's failure to answer honestly a question on voir dire, a party must show that misconduct occurred and that this misconduct resulted in probable prejudice. Catchings v. City of Glendale, 154 Ariz. 420, 422, 743 P.2d 400, 402 (App.1987). The trial court is in the best position "to determine what effect, if any, alleged misconduct might have had upon other jurors" and whether a new trial should be granted. Cota v. Harley Davidson, a Division of AMF, Inc., 141 Ariz. 7, 10, 684 P.2d 888, 891 (App.1984). Accordingly, we will not set aside the trial court's denial of a motion for a new trial based on alleged juror misconduct absent a clear abuse of discretion. Adroit Supply Co. v. Electric Mutual Liability Insurance Co., 112 Ariz. 385, 389, 542 P.2d 810, 814 (1975).

Hustons fail to point to any specific question that Grabowicz answered in an untruthful manner. They imply, however, that she falsely replied, "I don't really think so" to the trial court's inquiry as to whether her prior nursing experience would preclude her from rendering a verdict based on testimony and exhibits. The trial court, however, found that Grabowicz did not fail to reveal any information directly solicited from her by the court or the attorneys. The trial judge reviewed the record to determine whether any question should have prompted Grabowicz to report her husband's illness and stated:

[I]f in fact there was a problem as a result here, it was probably perhaps my fault or perhaps your [counsel's] fault because we never clearly asked any of the jurors if they or some member of their family or anyone like that had ever had anything of a similar nature, so that Ms. Grabowicz could have said yes, my husband had something like that.

We will not set aside a trial court's finding of fact unless it is clearly erroneous. Schade v. Diethrich, 158 Ariz. 1, 7, 760 P.2d 1050, 1056 (1988). In this instance, the record provides substantial support for the trial court's finding that Grabowicz did not mislead the court or counsel on voir dire.

Hustons further contend that Grabowicz's professional and personal experiences biased and prejudiced her in favor of the doctors and that she failed to acknowledge this prejudice on voir dire. To support their contention, Hustons rely on Amerson's affidavit and jurors' testimony at the evidentiary hearing.

The Amerson affidavit alleges that Grabowicz made statements that favored the doctors about the appropriateness of the antibiotic care, the amount of surgery performed, and the effect of Dr. Huston's smoking and use of alcohol on his recovery. The jury foreman testified that Grabowicz commented that maybe she "should never have been on this jury ...," apparently in reference to her experience with her husband's leg infection. Other jurors said that Grabowicz related that her husband had a bone infection that took a long time to heal. Some jurors could not recall that Grabowicz made any comment about her husband.

Arizona follows the long established rule that testimony from or affidavits of jurors will not be admitted to impeach a verdict unless they involve matters that are not inherent in the verdict. Kirby v. Rosell, 133 Ariz. 42, 43, 648 P.2d 1048, 1049 (App.1982). In general, testimony from a juror about any matter discussed in the sanctity of the jury room during deliberations is inadmissible to impeach a verdict. Valley National Bank of Arizona v. Haney, 27 Ariz.App. 692, 694, 558 P.2d 720, 722 (1976). Rule 606(b), Arizona Rules of Evidence, sets out the rule against probing the minds of jurors after they have deliberated to reach a verdict as follows:

(b) Inquiry into validity of verdict in civil action. Upon an inquiry into the validity of a verdict in a civil action, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict, or concerning the juror's mental processes in connection therewith, except that 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 on any juror. Nor may a juror's affidavit or evidence or any statement by the juror, concerning a matter about which the juror would be...