Cummings v. Ortega

• Court: North Carolina Court of Appeals
• Writing for the Court: HUNTER, JR., ROBERT N
• Citation: Cummings v. Ortega, 697 S.E.2d 513 (N.C. App. 2010)
• Decision Date: 17 August 2010
• Docket Number: No. COA09-1491.,COA09-1491.
• Parties: Penny CUMMINGS, Plaintiff,v.Agnes ORTEGA, M.D. and Women's Health Care Specialists, Defendants.

697 S.E.2d 513

Penny CUMMINGS, Plaintiff,v.Agnes ORTEGA, M.D. and Women's Health Care Specialists, Defendants.

No. COA09-1491.

Court of Appeals of North Carolina.

Aug. 17, 2010.

COPYRIGHT MATERIAL OMITTED

Appeal by defendants from an order entered 13 April 2009 by Judge Steve A. Balog in Harnett County Superior Court. Heard in the Court of Appeals 12 May 2010.

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

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

HUNTER, JR., ROBERT N., Judge.

Agnes Ortega, M.D., and Women's Health Care Specialists (“defendants”) appeal from a Rule 59(a) order setting aside a jury verdict in favor of defendants on 16 December 2008. The verdict found no negligent acts by defendant in a medical malpractice action filed by Penny Cummings (“plaintiff”). Defendants subsequently filed a Rule 60(b) Motion for Reconsideration and Relief from Order which the trial court denied on 10 July 2009.

On appeal, defendants contend that the trial court erred by considering juror affidavits to impeach the verdict of the jury and award plaintiff a new trial pursuant to Rule 59. Furthermore, defendants contend that the juror affidavits contain inadmissible evidence, and as such, the trial court committed legal error by relying on that evidence to grant a new trial. After review, we conclude that the trial court did not consider inadmissible evidence contained in the affidavits, and therefore neither committed legal error, nor abused its discretion in setting aside the verdict and in refusing to reconsider its decision.

I. Factual Background

Plaintiff consulted defendants for gynecological problems for which defendant Dr. Agnes Ortega had treated her for approximately 8 years. In May of 2002, plaintiff underwent a diagnostic laparoscopy for infertility. During the surgical procedure which involved the use of a needle to cauterize, open, and explore cysts on the ovaries, plaintiff's right external iliac artery was inadvertently lacerated. Defendants controlled the bleeding and plaintiff recovered temporarily; subsequently, plaintiff began suffering from pain and other ailments regarding her right leg.

Plaintiff filed a medical malpractice action against defendants on 18 May 2005 seeking damages for her alleged injuries. Plaintiff alleged and defendant denied that the leg injuries claimed were a result of the surgical procedure and the inadvertent laceration. Defendants alleged that any injuries resulting from the inadvertent laceration were fully healed, and the leg ailments were caused by other medical issues from which plaintiff suffered.

On 1 December 2008, plaintiff's civil action was called for trial in Harnett County Superior Court, Judge Steve A. Balog presiding. After preliminary discussions between counsel and the bench, the Court instructed the prospective jurors as follows:

Because of your special status here right now as prospective jurors, later after our trial jurors are chosen it is important that you remember that during your time here, it is your duty not to talk among yourselves about the proceedings in this court or about this case here for trial. You must understand that neither the Court, the parties, the witnesses, the lawyers, nor anyone else interested or involved in these matters may have any private contact or conversation with you during your time here. This should not be regarded as mere aloofness, but as a wise precaution against improper contact or influence or the appearance of that. If you need anything for your comfort or otherwise, approach the bailiff. He can help you, and if he can't help you enough, needs my assistance, I'll get involved. But he should be able to handle just about everything that you may need.

The parties in the cases to be tried this week are entitled to jurors who approach their cases with an open mind, and agree to keep their minds open until a verdict is reached. Jurors must be as free as humanly possible from bias, prejudice or sympathy, and must not be influenced by preconceived ideas, either as to facts or as to the law. You must not form an opinion or express an opinion about any case that is here for trial.

After this instruction voir dire of the jurors began and lasted for three days before the jury was impaneled. At each of the 12 recesses the court took before impaneling the jury, the judge gave the following admonitions to the jury:

Follow the instructions I've given you throughout the trial. I remind you of those, not to talk about the case among yourselves or with anyone else. Don't have any contact whatsoever with the people interested or involved in this matter. Don't conduct any independent research into matters or issues that may be raised by this trial. Don't form or express any opinions about the case.

After impaneling the jury, the judge further instructed the jury as to their conduct during deliberations as follows:

While you serve as a juror in this case, you must obey the following rules. First, you must not talk about the case among yourselves. The only place this case may be talked about is in the jury room, and then only after I tell you to begin your deliberations at the conclusion of the trial. You don't talk about the case while it's going on. You don't talk about the case until I tell you that you can at the end of the trial when you begin your deliberations in the jury room.

Second, you must not talk about this case with anyone else, including members of your family or your co-workers, or allow anyone else to talk with you or say anything in your presence about this case. As I said, that includes your family members, people that you are close to that will be curious about what you are doing and what's going on, and you have to enforce with them that you can't talk about the case. I believe I mentioned earlier that after the trial is over and you've been released, you will be able to talk about it at that point, but you can't until that time.

If anyone communicates or attempts to communication with you or in your presence about this case, you must notify me of that fact immediately through one of the bailiffs.

Third, while you sit as a juror in this case, you're not to form an opinion about the outcome of this case, nor are you to express to anyone any opinion about the case until I tell you to begin your deliberations at the conclusion of the trial.

Fourth, you must not talk or communicate in any way with any of the parties in this case, the witnesses, the lawyers, or other persons interested or involved in this case. This rule applies inside as well as outside the courtroom and the courthouse, and it prohibits any type of conversation, whether about the evidence in this case, or about the weather, or just the other conversations to pass the time of day.

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Fifth, you must not read about this case in the newspaper or listen to any radio or television broadcasts of this case, if there is such a thing. Your verdict must be based exclusively on what is brought out in this courtroom.

Sixth, you must not make any independent inquiry or investigation by any means into matters or issues raised by this trial, including books, magazines, law books, encyclopedias, the Internet, anything and everything else. You get all your information right here.

Each of you must obey each of these rules to the letter. Unless you do so, there is no way the parties can be assured of absolute fairness and impartiality.

It is your duty, both while the trial is in progress and while it is in recess and while you're in the jury room, to see that you remain a fair and impartial trier of the facts. If you violate these rules, you violate an order of the Court, and this is contempt of court and could subject you to punishment as provided by law.

A two-week jury trial followed and at each of the sixty recesses that were held, the judge admonished the jurors using substantially the same admonition as used during jury selection quoted above.

After the close of evidence, the jurors were instructed by the judge on the substantive elements of the law and a unanimous verdict was reached and judgment was entered in favor of defendants on 16 December 2008.

On 18 December 2008, plaintiff's counsel was contacted by juror Rachel Simmons (“Simmons”), who alleged substantial juror misconduct prior to the taking of any evidence in the trial. Simmons provided by an affidavit, the following testimony:

I, Rachel Simmons, avow that the following is true and correct:

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 other jurors, made the statement to the effect that his mind was made up, and 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 2008, a corroborating affidavit was provided by another juror, Joel Murphy (“Murphy”):

I, Joel Murphy, swear that the following is true and correct:

I served on the jury for the legal case Cummings v. Ortega. Prior to actual deliberation on the evidence in this

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