Cummings v. Ortega

• Decision Date: 07 October 2011
• Docket Number: No. 417PA10.,417PA10.
• Citation: 716 S.E.2d 235
• Parties: Penny CUMMINGSv.Agnes ORTEGA, M.D. and Women's Health Care Specialists, P.A.
• Court: North Carolina Supreme Court

716 S.E.2d 235

Penny CUMMINGS

v.Agnes ORTEGA, M.D. and Women's Health Care Specialists, P.A.

No. 417PA10.

Supreme Court of North Carolina.

Oct. 7, 2011.

On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, ––– N.C.App. ––––, 697 S.E.2d 513 (2010), affirming both an order granting plaintiff a new trial entered on 13 April 2009 and an order entered on 10 July 2009 denying defendants' motion for reconsideration and relief from the 13 April 2009 order, both entered by Judge Steve A. Balog in Superior Court, Harnett County. Heard in the Supreme Court 2 May 2011.

Neighbors Law Firm, P.C., Cary, by Patrick E. Neighbors, for plaintiff-appellee.

Crawford & Crawford, LLP, Raleigh, by Renee B. Crawford, Robert O. Crawford, III, and Arienne P. Blandina, for defendant-appellants.

JACKSON, Justice.

In this appeal we consider whether evidence contained in juror affidavits is admissible to support plaintiff's motion for a new trial in her medical malpractice case. Because we hold that these statements are inadmissible pursuant to Rule 606(b) of the North Carolina Rules of Evidence, we reverse.

On 18 May 2005, plaintiff Penny Cummings filed a medical malpractice action against defendants in the Superior Court, Harnett County. In her complaint, plaintiff alleged that she suffered personal injuries during a diagnostic laparoscopy performed by defendant Agnes Ortega, M.D. At the time of the surgery, Ortega was the owner of defendant Women's Health Care Specialists, P.A. Defendants answered, denying all allegations by plaintiff.

The case was called for jury trial on 1 December 2008. During slightly more than two weeks, sixteen witnesses presented testimony at trial focusing primarily on medical issues of a highly technical nature. On 16 December 2008, the jury returned a unanimous verdict finding that defendants were not liable for plaintiff's injuries. The trial court entered judgment for defendants on 5 January 2009.

On 18 December 2008, two days after the jury returned its verdict, Rachel Simmons, one of the jurors, contacted plaintiff's attorneys to report misconduct by a fellow juror, Charles Githens. According to Simmons, Githens made several statements about the case to the other jurors in the jury room before the case was submitted formally to the jury, notwithstanding repeated warnings from the trial court. On 2 January 2009, Simmons executed an affidavit stating:

I served on the jury for the legal case Cummings v. Ortega. I believe that significant juror misconduct occurred during the trial. Upon my recollection, on December 4, 2008, prior to any evidence introduced by the plaintiff, Juror No. 8 [Githens], while in the jury deliberation room, and in the presence of myself and the other jurors, made the statement to the effect that his mind was made up, that the other jurors could agree with him or they would sit there through the rest of the year. He subsequently stated that he wished the plaintiff, Ms. Cummings, would have died, and we wouldn't have to be sitting there at all. He also attempted to discuss the case prior to deliberations with several jurors present, at which point another juror reprimanded him.

These statements interfered with my thought process about the evidence during the plaintiff's case, and I believe it interfered with the other jurors as well during deliberation, as they began realizing any discussion about the evidence was futile, and they didn't want to continue serving through the holidays. In my opinion, there was not a full and frank discussion of the evidence.

On 12 January 2009, plaintiff's attorneys obtained a second affidavit from another juror, Joel Murphy. Murphy's affidavit corroborated Simmons's statements:

I served on the jury for the legal case Cummings v. Ortega. Prior to actual deliberation on the evidence in this case, Juror No. 8 [Githens] made the statements that his mind was made up and no matter what the evidence he wasn't going to change it. This statement had a chilling effect on other jurors. He also exhibited extremely disruptive behavior and was especially discourteous to the female jurors in the case, to the extent that I believe it affected their ability to express their opinions about the evidence. I believe several jurors did not engage in full discussion of the evidence because they didn't want to sit through the holidays in a futile attempt to discuss the evidence with him.

Notably, neither Simmons nor Murphy reported Githens's misconduct to the trial court during the course of the trial, notwithstanding the trial court's repeated instructions to do so.¹

Based upon these two affidavits, plaintiff filed a motion on 14 January 2009 to set aside the verdict and grant a new trial pursuant to Rule 59(a)(2) of the North Carolina Rules of Civil Procedure, arguing that she was denied a fair trial because of Githens's misconduct. The trial court heard plaintiff's motion on 20 March 2009. During this hearing defendants objected to introduction of the affidavits. The trial court ruled that the affidavits were inadmissible to the extent that they related to “extraneous matters and certain matters occurring after the commencement of deliberation of the jury.” But the trial court ruled that the affidavits were admissible “as to the matters within that relate to juror misconduct occurring prior to deliberation of the jury.” As a result, the trial court set aside the verdict and granted plaintiff's motion for a new trial in an order filed on 13 April 2009.

On 15 April 2009, defendants filed a motion seeking relief from the trial court's order pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure. Defendants' motion was supported by an affidavit from Githens, which stated in relevant part:

8. I am providing this affidavit because I cared deeply about serving as a juror on this trial and feel very distressed that my conduct has been construed by the court to cast any doubt upon the fairness of this trial to either party.

9. Except as set out in Paragraph 12, I do not recall making the specific statements that my fellow jurors allege I made.

10. However, if I did make such statements, they were made only to my fellow jurors while in the jury room. I know this because I certainly never spoke at any time to anyone else about the case until after the verdict was returned and we were discharged as a jury.

11. In addition, any such statements made to my fellow jurors in the jury room would not have been intended to be taken literally. Any such comments certainly would not have been intended to sway, intimidate or persuade any other jurors during the evidence portion of the trial. If anything, such comments would have been only a reflection of my state of mind at the time at having to anticipate a three-week trial.

12. I do recall making a general statement to the effect that, “once my mind was made up, I would not change it.” However, I did not state that I had made up my mind before any evidence was presented, because I had not. The affidavits of Mr. Murphy and Ms. Simmons are inaccurate.

13. Any such statements by me also were not, and should not be construed as, an accurate statement of how I intended to conduct myself as a juror or how I did conduct myself as a juror regarding my duties to listen to and consider all of the evidence and the law before rendering my verdict.

14. Any such statements by me were not, and should not be construed as, an accurate statement of how I reached my verdict.

On 30 June 2009, the trial court denied defendants' motion.

At defendants' request, the trial court certified this matter for immediate appeal. On 17 August 2010, the Court of Appeals affirmed the trial court's order setting aside the verdict and awarding a new trial. Cummings v. Ortega, ––– N.C.App. ––––, 697 S.E.2d 513 (2010). Defendants filed a petition for discretionary review on 21 September 2010, which we allowed in part on 15 December 2010.

Defendants argue that the trial court erred by considering evidence of alleged juror misconduct contained within juror affidavits to set aside the verdict and grant plaintiff a new trial. We agree.

“Ordinarily, a motion for a new trial is addressed to the sound judicial discretion of the trial judge and is not reviewable in the absence of an abuse of discretion.” Smith v. Price, 315 N.C. 523, 533, 340 S.E.2d 408, 414 (1986). But a trial court's decision is reviewable when, as here, the court “acts based on an error in law.” Chandler v. U–Line Corp., 91 N.C.App. 315, 321, 371 S.E.2d 717, 721, disc. review denied, 323 N.C. 623, 374 S.E.2d 583, 583–84 (1988) (citing Smith, 315 N.C. at 533, 340 S.E.2d at 414; Selph v. Selph, 267 N.C. 635, 636–37, 148 S.E.2d 574, 575–76 (1966)).

The notion that juror testimony may not be permitted to impeach a verdict is both long-standing and well-settled. In 1821 this Court first recognized the common law rule that affidavits containing evidence of juror misconduct are inadmissible to impeach the validity of a jury's verdict. State v. M'Leod, 8 N.C. (1 Hawks) 344, 346 (1821) (“As to the misconduct of the Jury, it has been long settled, and very properly, that evidence impeaching their verdict must not come from the Jury; but must be shewn [sic] by other testimony.”); see also Purcell v. S. Ry. Co., 119 N.C. 728, 739, 26 S.E. 161, 162 (1896); State v. Royal, 90 N.C. 755, 755 (1884); State v. Brittain, 89 N.C. 481, 505 (1883); State v. Smallwood, 78 N.C. 560, 562–63 (1878). This rule, which was based upon Lord Mansfield's decision in Vaise v. Delaval, (1785) 99 Eng. Rep. 944 (K.B.), is intended to promote and protect the jury system. See Jones v. Parker, 97 N.C. 33, 34, 2 S.E. 370, 370 (1887) (characterizing the use of juror testimony to impeach a jury's verdict as “unsafe and unwise”). We have noted that without this rule “motions for a new trial would frequently be made, based upon incautious remarks of jurors, or declarations by...