Cohen v. Levin

• Decision Date: 01 July 1981
• Parties: David COHEN, an infant by his father and natural guardian, Stanley Cohen, Plaintiff, v. Dr. Alfred C. LEVIN and Booth Memorial Hospital, Defendants.
• Court: New York Supreme Court

Page 851

442 N.Y.S.2d 851

110 Misc.2d 464

David COHEN, an infant by his father and natural guardian Stanley Cohen, Plaintiff, v. Dr. Alfred C. LEVIN and Booth Memorial Hospital, Defendants.

Supreme Court, Queens County.

July 1, 1981.

Kramer, Dillof, Tessel, Duffy & Moore, New York City, for plaintiff; Thomas A. Moore, New York City, of counsel (Charles F. McGuire, New York City, with him on the Memorandum.)

Bower & Gardner, New York City, for defendant Booth Memorial Medical Center; James Brown, New York City, of counsel (Siff & Newman, P. C., New York City, on the Memorandum, Thomas R. Newman, L. Kevin Sheridan, and Steven Di Joseph, New York City, of counsel).

Fisher, Kelly, Wassner & Fallon, New York City, for defendant Levin; Bruce Wassner, New York City, of counsel (Norman Bard, Brooklyn, on the Memorandum).

ARTHUR W. LONSCHEIN, Justice.

In this medical malpractice action, the jury reported a plaintiff's verdict against both defendants, in the total sum of $2,930,000, apportioning liability on the basis of 75% against the defendant Levin and 25% against the defendant Booth Memorial Medical Center. When the jury was polled, it was found that the verdict was not unanimous on any of the issues. Juror number 4 voted for liability on the Hospital, but did not join in the finding of liability as to Dr. Levin, in the measure of damages, or in the apportionment of liability. Juror number 5 did not join in the finding of liability as to Booth Memorial, but did join in the other findings, including the apportionment of damages. The jury had been instructed that before it could report its verdict, at least five jurors had to agree, and that it had to be the same five jurors in agreement as to all of the issues. After the verdict was returned, the court was not requested to send the jury back for further deliberations.

Both defendants now request the court to set aside the verdict, on a variety of grounds. These can be summarized as follows:

1.) The jury clearly disregarded the court's instructions in reporting its verdict without the agreement of the same five jurors on all issues, and this violation of instructions, in and of itself, warrants a new trial.

2.) The verdict is insufficient since less than five jurors agreed on all issues, as well as internally inconsistent due to the votes of juror number 5.

3.) The court's charge was unfair in that the evidence was marshalled in an improper manner and allowed the jury to draw certain unwarranted inferences.

4.) This verdict was excessive and was influenced by certain testimony which should have been stricken.

THE FORMAL SUFFICIENCY OF THE VERDICT

The threshold question which must be addressed is whether the degree of agreement actually reached and reported by this jury is formally sufficient to constitute a verdict which may be accepted by the court. Left for later discussion are the possible grounds for setting the verdict aside.

The court believes that as to all issues except the apportionment of liability between the defendants, a formally sufficient verdict has indeed been returned.

CPLR 4113(a) provides that the concurrence of five-sixths of the jurors is enough for the jury to render its verdict. The statute is silent on the question of whether, in a case which involves more than one issue or more than one defendant, the same group of jurors must agree on all of the issues. The court had instructed the jury that indeed it must be the same five jurors in agreement before a verdict could be rendered. As will be shown below, this procedure is necessary in any case which involves a possible apportionment of liability between defendants, in order to preclude the possibility of a verdict depending on one or more jurors voting inconsistently.

The reported decisions in this area are in conflict. In Murphy v. Roger Sherman Transfer Co., 62 Misc.2d 960, 310 N.Y.S.2d 891, a jury of twelve returned a plaintiff's verdict as follows: a core group of nine jurors agreed on liability and damages. They were joined by one of the remaining jurors on liability (making ten on that issue) and by a different remaining juror on damages (making ten on that issue). The Appellate Term reversed, holding (p. 961, 310 N.Y.S.2d 891), that "A general verdict is an indivisible entity and it cannot readily be separated into its component elements."

This case appears to have been overruled by the Appellate Division, First Department, in Bichler v. Eli Lilly & Co., 79 A.D.2d 317, 436 N.Y.S.2d 625. That case involved a unanimous general verdict by a jury of six. The general verdict was accompanied however, by written interrogatories. There was a core group of only four jurors who agreed on all of these. One of the other jurors agreed with the core group on the first interrogatory (making five) and a different juror joined the core group on the second interrogatory (again making five). The Appellate Division, without mentioning Murphy, supra, ruled that there was no constitutional defect in the verdict and upheld it. The votes of both dissenting jurors on the interrogatories were inconsistent with their votes on the general verdict, but this issue does not appear to have been preserved for review, and in any event the court did not discuss its ramifications.

In Reed v. Cook, 103 N.Y.S.2d 539 (Sup.) (n. o. r.) there were three defendants. The jury of twelve found unanimously against one defendant, by ten to two against a second, and by a different ten to two in favor of the third. This was before Dole v. Dow, 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, and there was no claim for apportionment of liability. The court held that since the case consisted essentially of three separate cases (plaintiff against each of the three defendants) which could readily have been tried separately, there was no need for the same ten jurors to agree on all of the issues, and accepted the verdict.

In Forde v. Ames, 93 Misc.2d 723, 401 N.Y.S.2d 965 (Sup.Ct., Nassau Co., 1978) the court was faced with essentially the same facts as in Murphy v. Roger Sherman, supra, and accepted the verdict, reasoning that such a pattern of votes would have been proper in a bifurcated trial. The court stated that "the appropriate assumption in a case such as this is that when a juror is outvoted on the question of liability he will accept the outcome and continue to deliberate with the other jurors honestly and conscientiously to decide the remaining issues."

Finally, in Orens v. Secofsky, 60 A.D.2d 866, 401 N.Y.S.2d 259, the Appellate Division was faced with a liability verdict in a bifurcated trial where different combinations of five jurors had returned verdicts against one of the two defendants and in favor of the other. The court termed the failure of five jurors to agree on all issues a "disquieting factor." It also seems that the verdict consisted of answers to two interrogatories as to each defendant, and that the jury's response to the interrogatories as to the exonerated defendant were inconsistent. The court did not rule on the propriety of the verdict on any grounds, however, since the parties had stipulated to the procedure which gave rise to the problem, and had therefore, "charted their own course."

These cases make it clear that a verdict returned with the concurrence of a core group of less than five...