Castaneda by Correll v. Pederson

• Decision Date: 27 April 1993
• Docket Number: No. 92-0149,92-0149
• Citation: 500 N.W.2d 703,176 Wis.2d 457
• Parties: Antonio CASTANEDA, Jr., by his Guardian ad Litem, John H. CORRELL, Antonio Castaneda, Sr., Sherry Castaneda and State of Wisconsin Department of Health and Social Services, Plaintiffs-Respondents, v. Thomas E. PEDERSON, M.D., and St. Paul Fire & Marine Insurance Co., Defendants-Co-Appellants, Wisconsin Patients Compensation Fund, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 703

500 N.W.2d 703

176 Wis.2d 457

Antonio CASTANEDA, Jr., by his Guardian ad Litem, John H CORRELL, Antonio Castaneda, Sr., Sherry Castaneda and State of Wisconsin Department of Health and Social Services Plaintiffs-Respondents, v. Thomas E. PEDERSON, M.D., and St. Paul Fire & Marine Insurance Co., Defendants-Co-Appellants Wisconsin Patients Compensation Fund, Defendant-Appellant.^d

No. 92-0149.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 6, 1993.

Opinion Released April 27, 1993.

Opinion Filed April 27, 1993.

Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.

FINE, Judge.

This is a medical-malpractice action brought on behalf of Antonio Castaneda, a minor, to recover damages allegedly sustained by him as the result of the claimed negligent failure by Thomas E. Pederson, M.D., an ophthalmologist, to diagnose Antonio's brain tumor, which allegedly caused Antonio's regression from poor sight to total blindness. Antonio's parents also sought compensation for their losses. The jury found Dr. Pederson causally negligent, and awarded to Antonio the following: $750,000 for pain, suffering, and disability; $300,000 for impairment of his earning capacity; $750,000 for the cost of his future care; and $49,787.08 for his past medical and hospital expenses. Additionally, the jury awarded to Antonio's mother, Sherry L. Castaneda, $150,000 as compensation for the loss of Antonio's society and companionship. The jury awarded nothing to Antonio's father, who was separated from Mrs. Castaneda. Dr. Pederson and his malpractice insurer, St. Paul Fire & Marine Insurance Company, and the Wisconsin Patients Compensation Fund appeal. We affirm, and discuss in turn the issues they raise.

1. Alleged Juror Misconduct.

Both Dr. Pederson and the Wisconsin Patients Compensation Fund assert that the trial court should have granted a new trial because, during a noon break between the closing arguments, one of the jurors researched the range of jury awards in medical malpractice cases. They argue that the jury was tainted or, at the very least, the individual juror should have been disqualified from the case. If the juror was disqualified, a new trial would be necessary because she was one of the ten out of twelve jurors who joined in the verdict. See Rule 805.09(2), Stats. (verdict in civil case must be agreed to by five-sixths of the jurors).

In a post-conviction hearing, the trial court found that the juror consulted a 1987 publication that pegged the average medical-malpractice award in 1985 at $1.5 million. The trial court further found that the juror did not share this information with the other jurors until after all but one of the special-verdict questions had been answered. The remaining question asked the jury to fix an award that would fairly and reasonably compensate Antonio for his pain, suffering, and disability. As noted, the jury awarded to Antonio $750,000 in response to this question.

The trial court's findings of fact are not challenged on appeal, and we accept them under our deferential standard of review. See 805.17(2), Stats. (trial court's findings of fact may not be reversed on appeal unless they are "clearly erroneous"). The trial court concluded the defendants had not shown by clear and convincing proof that a new trial was warranted. Although we are assisted by the trial court's thoughtful and able examination of the problem created by the juror's excursion into independent research, we review de novo the trial court's ultimate legal conclusion that a new trial was not warranted. See After Hour Welding v. Laneil Management Co., 108 Wis.2d 734, 741, 324 N.W.2d 686, 690-691 (1982). We agree with the trial court's conclusion, and affirm.

A party seeking to impeach a jury verdict in a civil case with evidence of juror-misconduct must clear three hurdles. First, the proffered evidence must be competent under Rule 906.06(2), Stats. After Hour Welding, 108 Wis.2d at 738-740, 324 N.W.2d at 689-690. Second, the proffered evidence must be "clear and convincing." Id., 108 Wis.2d at 740-741, 324 N.W.2d at 690. Third, the competent evidence must show by the "clear and convincing" standard that the moving party was prejudiced--not in an analysis of the jurors' subjective thought processes, because that inquiry is forbidden by Rule 906.06(2), but, rather, " 'on the basis of the nature of the matter and its probable effect on a hypothetical average jury.' " Id., 108 Wis.2d at 741, 324 N.W.2d at 691 (citation omitted).

Rule 906.06(2), Stats., provides that a juror may testify, either in person or by affidavit, "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." Evidence that a juror was exposed to matters not of record is competent under Rule 906.06(2). See State v. Poh, 116 Wis.2d 510, 520-521, 343 N.W.2d 108, 114 (1984) (defendant's driving record). The average medical-malpractice award in 1985 was extraneous to the record and, therefore, the evidence concerning the juror's conduct was competent. The first hurdle of the After Hour Welding analysis is thus cleared.

The second and third hurdles to jury impeachment in a civil case established by After Hour Welding are interrelated: the party seeking a new trial must establish by clear and convincing evidence that a new trial is warranted because of the prejudicial impact the extraneous information would have on a hypothetical average jury, in light of the facts, circumstances, and result of the case. ¹ United States v. Crosby, 294 F.2d 928, 950 (2d Cir.1961), cert. denied, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (relied upon by After Hour Welding, 108 Wis.2d at 741, 324 N.W.2d at 691); see Poh, 116 Wis.2d at 530, 343 N.W.2d at 119. We look to a "hypothetical jury" because, as noted, inquiry into the motives of the actual jury is expressly forbidden by Rule 906.06(2), Stats. We consider the result because otherwise the question of prejudice becomes a speculative, almost metaphysical exercise. ²

The Wisconsin Patients Compensation Fund cites cases, including those from other states, where new trials were ordered because of prejudicial extraneous information. The Wisconsin decisions it cites are representative: Poh, 116 Wis.2d 510, 343 N.W.2d 108; State v. Barthels, 166 Wis.2d 876, 480 N.W.2d 814 (Ct.App.1992), aff'd on other grounds, 174 Wis.2d 173, 495 N.W.2d 341 (1993); and State v. Ott, 111 Wis.2d 691, 331 N.W.2d 629 (Ct.App.1983).

In Poh, the defendant was convicted of three counts of negligent operation of a motor vehicle while under the influence of an intoxicant. 116 Wis.2d at [176 Wis.2d 466] 514, 343 N.W.2d at 111. In the course of their deliberations, some of the jurors were told by another juror that the defendant had a history of drunk driving and, indeed, previously had been involved in fatal accidents. Id., 116 Wis.2d at 520-521, 343 N.W.2d at 114-115. Poh recognized that the "other acts evidence" in the case "raise[d] 'a definite risk that the jury might convict to punish a person they perceive to be a generally bad actor where automobiles are concerned.' " Id., 116 Wis.2d at 531, 343 N.W.2d at 119 (citation omitted, bracketing added). The court noted that, although the evidence in the case was sufficient to convict Poh, there were what the court termed "weaknesses" in the State's case. Id., 116 Wis.2d at 532, 343 N.W.2d at 120. Given the power of the "other acts evidence" to divert the jury from its impartial assessment of the case, the supreme court directed that a new trial be ordered. Id., 116 Wis.2d at 532-533, 343 N.W.2d at 120.

Barthels and Ott present similar situations. In Barthels, the defendant was convicted of first-degree sexual assault against a child. 166 Wis.2d at 879, 480 N.W.2d at 816. During the course of the trial, some jurors were exposed to a newspaper article reporting that the sexual-assault charge had been severed from an endangering-safety charge that involved the same victim. Id., 166 Wis.2d at 890-891, 480 N.W.2d at 820-821. In an alternate holding, see id., 166 Wis.2d at 890 n. 8, 480 N.W.2d at 820 n. 8, Barthels noted that the similarity between the two charges improperly suggested "a pattern" of "assaultive behavior" against the alleged victim. Id., 166 Wis.2d at 895, 480 N.W.2d at 822. Other act evidence may not be used to show a defendant's propensity to commit the crime charged. Rule 904.04, Stats.

In Ott, the defendant was convicted of injury by conduct regardless of life. 111 Wis.2d at 691, 331 N.W.2d at 629. Central to this issue was whether the defendant's conduct under consideration "evinced" a "depraved mind." Id., 111 Wis.2d at 692, 331 N.W.2d at 630. Following instruction by the trial court, and after the jury had started to deliberate, the jury was permitted to go home for the night. Ibid. One of the jurors then looked up the jury definition of the words "evinced" and "depraved." Id., 111 Wis.2d at 693, 331 N.W.2d at 630. Ott determined that the dictionary definition of "depraved," as most likely discovered by the juror (the precise definition was not of record, id., 111 Wis.2d at 695, 331 N.W.2d at 631), "was sufficiently broader than the technical meaning embodied in the instruction to probably prejudice Ott." Id., 111 Wis.2d at 696, 331 N.W.2d at 631. A new trial was ordered. Id., 111 Wis.2d at 696-697, 331 N.W.2d at 632.

The circumstances here are substantially different from any of the authorities cited by the defendants. Although wholly inappropriate, the juror's research on benchmark awards in medical malpractice cases merely extended--by how much is not in the record-the average citizen's awareness of jury verdicts generally, as reported in the lay media. Thus, as Poh teaches, the juror's "discovery" was very little different from what jurors are expected to bring with them into the jury room:

Jurors are expected to bring commonly known...