Castaneda by Correll v. Pederson, 92-0149

• Decision Date: 23 June 1994
• Docket Number: No. 92-0149,92-0149
• Citation: 518 N.W.2d 246,185 Wis.2d 199
• Court: Wisconsin Supreme Court
• 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 Company, Defendants-Co-Appellants-Petitioners, Wisconsin Patients Compensation Fund, Defendant-Appellant-Petitioner.

Page 246

518 N.W.2d 246

185 Wis.2d 199

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 Company, Defendants-Co-Appellants-Petitioners Wisconsin Patients Compensation Fund, Defendant-Appellant-Petitioner.

No. 92-0149.

Supreme Court of Wisconsin.

Argued Feb. 3, 1994.

Decided June 23, 1994.

For the plaintiffs-respondents there were briefs by J. Michael End and Gray & End, Milwaukee and oral argument by J. Michael End.

HEFFERNAN, Chief Justice.

This is a review of a published decision of the court of appeals, Castaneda v. Pederson, 176 Wis.2d 457, 500 N.W.2d 703 (Ct.App.1993), affirming a judgment of the Milwaukee County circuit court, Judge William J. Haese. The judgment was entered following a jury verdict awarding the plaintiffs, collectively referred to as "Castaneda," damages for Dr. Pederson's negligent treatment of Antonio Castaneda, Jr. The issue we address on review is whether Dr. Pederson is entitled to a new trial on the grounds that jurors were prejudiced by extraneous information. The information to which Dr. Pederson refers is a statistic on the average medical malpractice award, which juror Gloria Kopke obtained and shared during deliberations.

We conclude that the statistic Kopke obtained and shared was prejudicial to the determination of damages and the verdict as to damages must be reversed. We base our conclusion on a totality of factors. Because the statistic pertained to medical malpractice damages, a material issue in the case, an average jury may have used the statistic as a bench mark even though the statistic was irrelevant to the determination of Castaneda's damages. Further, a precise statistic is not the common knowledge typically possessed by jurors. The statistic would have been inadmissible at trial but, because it was presented during deliberations, the parties could not challenge the statistic and the circuit court could not provide a curative instruction.

We further conclude that the information had no prejudicial effect on the jury's findings on negligence and causation. The statistic was entirely unrelated to either of these issues. Thus we reverse the court of appeals' decision in part and remand for a new trial solely on the issue of damages.

In this medical malpractice action Castaneda alleged that Dr. Pederson, an ophthalmologist, was negligent in failing to diagnose a brain tumor that was causing Castaneda's vision problems. Castaneda further alleged that Dr. Pedersen's failure to diagnose the tumor caused Castaneda's already extremely limited vision to deteriorate to total blindness and that Castaneda subsequently fell down stairs and sustained further injury as a result of the blindness.

The case went to trial. On August 2, 1991, the court recessed for lunch after the defendant's closing argument, prior to the plaintiff's rebuttal closing argument. During the noon recess, juror Gloria Kopke went to the Milwaukee Public Library and found a publication entitled "Report of the Task Force on Medical Liability and Malpractice" that stated that the average medical malpractice award in 1985 was $1.5 million. She took notes on her research. During jury deliberations, Kopke shared this information with the other jurors.

The special verdict form submitted to the jury required the jury to answer a series of questions. At the time that Kopke shared the information on average awards, the jury had already determined that Dr. Pederson was negligent and that the negligence caused Castaneda injury. The jury had already reached agreement on all but one of the damage awards. The court had set $49,787 as damages for Castaneda's past medical and hospital expenses and the jury had awarded Castaneda $300,000 for impairment of earning capacity and $750,000 for future care costs. The jury had awarded Castaneda's mother $150,000 for loss of society and companionship, and had awarded Castaneda's father nothing. The jury had only to set the damages for Castaneda's pain, suffering and disability. After Kopke's remarks, the jury awarded $750,000 for this category of damages. Two jurors, Baron and Thoreson, dissented to each determination in the special verdict.

After the verdict was delivered and the jury was dismissed, Dr. Pederson's counsel interviewed the dissenting jurors and learned of Kopke's conduct. Dr. Pederson filed a motion for a new trial. The circuit court denied the motion, concluding that the information Kopke gave the jury was equally prejudicial to Castaneda and Dr. Pederson. The court relied in part on the $750,000 award for pain, suffering and disability, concluding that the award was low.

The court of appeals affirmed. Noting that jurors are expected to bring commonly known facts and experiences into the jury room, the court concluded that the average citizen has a general awareness of jury verdicts and the information Kopke shared was little different than this general knowledge. Castaneda, 176 Wis.2d at 467, 500 N.W.2d 703. The court of appeals also concluded that the information was not prejudicial to Dr. Pederson because the $750,000 award for pain, suffering and disability was low. Id. at 468, 500 N.W.2d 703.

Judge Schudson dissented. He explained that Kopke's research provided irrelevant information on damages, a central issue in the case. Id. at 478, 500 N.W.2d 703 (Schudson, J., dissenting). According to Judge Schudson, statistical information related to damages probably distracted the jurors from determining actual damages and was therefore prejudicial. Judge Schudson also asserted that the moving party need not show that the juror misconduct was more prejudicial to the moving party than to the non-moving party. Id. at 480, 500 N.W.2d 703. He added that the actual damages award was useless in determining prejudice in all but the most obvious cases. Id. at 481, 500 N.W.2d 703.

The methodology a circuit court must utilize to determine whether to overturn a verdict and grant a new trial because of juror misconduct is well established. The court must first determine whether the jurors are competent to testify in an inquiry into validity of the verdict, an evidentiary issue governed by sec. (Rule) 906.06(2), Stats. ¹ State v. Poh, 116 Wis.2d 510, 343 N.W.2d 108 (1984); After Hour Welding, Inc. v. Laneil Management Co., 108 Wis.2d 734, 738, 324 N.W.2d 686 (1982). That is, the court must determine whether the testimony of the jurors is admissible at the hearing on the motion for a new trial.

Section 906.06(2) prohibits jurors' testimony as to statements made during deliberations and as to the deliberative processes of the jurors, in order to promote verdict finality and maintain the integrity of the jury as a decision-making body. State v. Shillcutt, 119 Wis.2d 788, 793, 350 N.W.2d 686 (1984). To accommodate the sometimes competing policy of ensuring a fair trial and a just resolution of the issues, the statute provides an exception for testimony "on the question whether extraneous prejudicial information was improperly brought to the jury's attention." Section 906.06(2), Stats.; Shillcutt, 119 Wis.2d at 794, 350 N.W.2d 686; Poh, 116 Wis.2d at 517-18, 343 N.W.2d 108. The party seeking to impeach the verdict has the burden of proving that a juror's testimony is admissible by establishing "that the juror's testimony concerns extraneous information (rather than the deliberative processes of the jurors), that the extraneous information was improperly brought to the jury's attention, and that the extraneous information was potentially prejudicial." Poh, 116 Wis.2d at 520, 343 N.W.2d 108.

We conclude that Dr. Pederson has met his three-part burden of proof and thus the juror's affidavits and statements as to the information shared by juror Kopke were admissible. First, the affidavits and statements concern extraneous information, which we have defined as that which is neither of record nor the "general knowledge" we expect jurors to possess. Poh, 116 Wis.2d at 521, 343 N.W.2d 108. Kopke researched medical malpractice awards and informed the jury that the average medical malpractice claim paid in 1985 was $1.5 million. This statistic was not a part of the trial record--Kopke obtained the information through her own independent research. Furthermore, the information is a precise statistic rather than the general knowledge about damage awards that we expect jurors to possess.

Second, the extraneous statistic on average jury awards was improperly brought to the jury's attention. Kopke conducted the research and shared the information with the jury. Information not on the record is not properly before the jury. Poh, 116 Wis.2d at 521-22, 343 N.W.2d 108.

Third, the extraneous statistic was potentially prejudicial. The level of prejudice needed under sec. 906.06(2), which governs when a juror may testify in an attempt to impeach a verdict, is necessarily lower than that needed to successfully impeach the verdict. State v. Messelt, 185 Wis.2d 255, ----, 518 N.W.2d 232 (1994) (of even date herewith). See also After Hour, 108 Wis.2d at 738-742, 324 N.W.2d 686 (after court determines that a juror's testimony regarding extraneous information is admissible at a post-conviction hearing, it must determine whether the extraneous information probably would have a prejudicial effect on an average jury). For purposes of sec. 906.06(2), the statistic on average medical malpractice awards was potentially prejudicial because it related to the subject of damages, a material issue at the trial. A statistic on average damage awards was irrelevant to the determination of Castaneda's damages, but the jurors might have thought that they should use the average as a bench mark.

Castaneda claims that the sec. 906.06(2) exception, allowing juror testimony on extraneous...