Dot Merch. v. Clinic

• Decision Date: 11 August 2011
• Docket Number: No. 2009–CA–01622–SCT.,2009–CA–01622–SCT.
• Citation: 67 So.3d 747
• Parties: Dot MERCHANT, As Administratrix of the Estate of Charles Ernie Harris, Sr., And On Behalf of All Wrongful Death Beneficiaries of Charles Ernie Harris, Sr.v.FOREST FAMILY PRACTICE CLINIC, P.A. and John P. Lee, M.D.
• Court: Mississippi Supreme Court

67 So.3d 747

Dot MERCHANT, As Administratrix of the Estate of Charles Ernie Harris, Sr., And On Behalf of All Wrongful Death Beneficiaries of Charles Ernie Harris, Sr.

v.FOREST FAMILY PRACTICE CLINIC, P.A. and John P. Lee, M.D.

No. 2009–CA–01622–SCT.

Supreme Court of Mississippi.

Aug. 11, 2011.

Shane F. Langston, Jackson, Rebecca M. Langston, attorneys for appellant.Anastasia G. Jones, Mildred M. Morris, James A. Becker, Jr., Timothy Lee Sensing, Jackson, attorneys for appellees.EN BANC.RANDOLPH, Justice, for the Court:

¶ 1. In August 2008, the Estate of Charles Ernie Harris, Sr. (“Estate”) filed a medical malpractice action against John P. Lee, M.D., and the Forest Family Practice Clinic (“Clinic”) ¹ in the Circuit Court of Scott County, Mississippi. Three days prior to trial, the Estate filed a “Motion to Transfer Venue” based upon Dr. Lee's status in the community and his son's position as the Scott County Sheriff. The circuit court denied the Estate's “Motion to Transfer Venue.” In jury selection, the Estate subsequently exercised only seven of its ten peremptory challenges.² Ultimately, the empaneled jury returned a verdict in favor of Dr. Lee and the Clinic.

¶ 2. Following the circuit court's entry of “Final Judgment,” the Estate filed a “Motion to Investigate Juror Misconduct, to Set Aside or Void Jury Verdict, to Void or Set Aside Final Judgment, for New Trial, and to Change Venue.” Regarding juror misconduct, the Estate attached a juror affidavit which provided that, during deliberations, another juror had revealed prejudices and information which had not been disclosed in voir dire, and repeatedly had referred to a separate lawsuit which the circuit judge had instructed the jury to disregard. Following hearing, the circuit court denied the Estate's post-trial motions. The Estate now appeals.

FACTS

¶ 3. The merits, vel non, of this case are not at issue on appeal, but this Court will briefly recount the undisputed facts. Harris was treated for gout of the left foot by Dr. Lee at the Clinic on multiple occasions between June 13, 2006, and June 30, 2006. On July 2, 2006, Harris was taken to the emergency room of Mississippi Baptist Medical Center and was diagnosed as septic. As a result of the sepsis, Harris's left leg was amputated. On August 13, 2006, Harris died. On August 6, 2008, the Estate filed a complaint against the Clinic, Dr. Lee, and John Does 1–10, alleging, inter alia, medical negligence, vicarious liability, and wrongful death.

¶ 4. On Friday, May 29, 2009, three days before trial, the Estate filed a “Motion to Transfer Venue and for Continuance,” contending that it:

has good reason to believe, and does believe that, from the undue influence of [Dr. Lee] and his partners ... as well as the fact that Dr. Lee is the father of the Sheriff of Scott County, Mike Lee,[ ³] that [the Estate] cannot obtain a fair and impartial trial in Scott County....

Regarding Dr. Lee and the Clinic, the Estate maintained that “a large majority of residents ... in Scott County will be either current or former patients of one of the three doctors at [the Clinic].” As to Sheriff Lee, the Estate asserted that “every potential juror will know Sheriff Lee and/or one of his deputies.... Also, the Sheriff's deputies may be acting as bailiffs or [c]ourt security during the trial and thus the risk of imposing an unintentional influence may be present.” In addressing the Estate's motion, the circuit judge stated that “this case has been on the docket for some time. You chose the venue in the filing of the suit.... The fact that [Dr. Lee] is a prominent doctor, you knew that [at] the time you filed the suit.” As to Sheriff Lee, the circuit judge found that his identity previously had been disclosed ⁴ and his position was “an easy matter of discovery” which, “in and of itself, does not entitle you to have me sustain your motion for change of venue.” The circuit court denied the Estate's “Motion to Transfer Venue.” ⁵

¶ 5. When jury selection began, the circuit judge noted that:

I issue[d] a summons for 185 jurors to begin with for a term of [c]ourt. The Clerk advised after I had [excused] people who were 65 and older and sick or whatever that we only had 39. So we summonsed [sic] 65 additional.... [W]hen we get a list of the jurors, I'm going to expand the peremptory challenges that you have because of the issue that you raised that Dr. Lee is a doctor of this county and that [Sheriff] Lee is the son of the doctor.

(Emphasis added.) Thereafter, the circuit court provided each party with ten peremptory challenges, based upon the “prominence of the parties in the case.” Further, before voir dire began, the circuit judge specifically instructed the venire that Dr. Lee was a party in the case, that Sheriff Lee was his son, and that neither fact should “affect your judgment in this case” or interfere with “[y]ou[r] ... oath ... that you will be fair and impartial on the evidence of the case.”

¶ 6. During voir dire, twenty-one members of the venire acknowledged that either they or their family members had been treated by Dr. Lee or other Clinic physicians, and/or that they had a personal relationship with Dr. Lee or Sheriff Lee. Four other members of the venire stated that they had relatives who either worked for, or had law-enforcement matters pending with, the Scott County Sheriff's Department. Following voir dire, the Estate challenged numerous members of the venire “for cause.” The circuit court excused eight members of the venire “for cause.” The Estate then exercised seven of its ten peremptory challenges.

¶ 7. At trial, during cross-examination of the Estate's medical expert, Dr. Steven Schwartz, counsel for Dr. Lee asked the following question, “[a]s far as your medical legal business picking up, can you tell me if you've been retained as an expert in the case where [counsel for the Estate] is suing Dr. Howard Clark just up the road? ” ⁶ (Emphasis added.) After the Estate's objection was sustained, the circuit judge instructed the jury to disregard that question, and the jurors affirmatively responded that they would heed said instruction. The Estate moved for a mistrial, emphasizing that:

[w]e've already talked about the fact that there are only about five doctors in the whole county.... [I]f any of those jurors are friends of Dr. Clark or go see Dr. Clark, they may be prejudiced by that comment. There was no reason whatsoever for that question.... I know the [c]ourt gave an instruction for the jury to disregard it, but given everything else we've talked about with regard to the [S]heriff and the doctors and the small communities, that ... justifies a mistrial.The circuit judge denied the Estate's motion, stating that “I instructed the jury to disregard the statement. All 13 stated they would follow my instructions, so I chose to believe that will be done.”

¶ 8. After the Estate rested, it renewed its motion for mistrial based upon the “cumulative effect” of the question counsel opposite posed to Dr. Schwartz, ⁷ the presence of “Sheriff Lee's deputies ... in the courtroom throughout the trial[,]” and an allegation that a deputy sheriff had spoken with Dr. Lee and had shaken his hand in “full view of the jury.” Regarding the question to Dr. Schwartz, the circuit judge reiterated that “I choose to believe that with an instruction such as I gave ... that [the jury] would follow the [c]ourt's instructions....” As to the conduct of the deputy sheriffs, the circuit judge stated that he had not observed them “being in the way of anyone or having familiarity with the” parties. The circuit court overruled the Estate's renewed motion for mistrial.

¶ 9. Following deliberation, the jury returned a verdict in favor of Dr. Lee and the Clinic. A poll of the jury revealed nine jurors agreed, two disagreed, and one was undecided. On June 11, 2009, “Final Judgment” was entered by the circuit court.

¶ 10. On June 12, 2009, the Estate filed a “Motion to Investigate Juror Misconduct, to Set Aside or Void Jury Verdict, to Void or Set Aside Final Judgment, for New Trial, and to Change Venue.” ⁸ Regarding juror misconduct, the Estate attached the affidavit of Juror Maria Lopez.⁹ That affidavit provided, in pertinent part, that during jury deliberations, Juror Clyde Lowden had stated, inter alia:

[t]hat he had been a patient of both Dr. Lee and Dr. Clark. That both were good doctors and that we the [j]ury could not “let those attorneys keep taking money from our doctors.” [Pace] and I reminded [Lowden] that the [c]ourt had instructed us to disregard the comment about a lawsuit against Dr. Clark. [Lowden] nonetheless continued to refer to that lawsuit in an attempt to persuade his fellow jurors to vote in favor of Dr. Lee.(Emphasis added.) According to the Estate, Lowden prejudicially had failed to disclose in voir dire that he had been a patient of Dr. Lee.¹⁰ The Estate also contended that Lowden had “intentionally violated the [c]ourt's clear and unambiguous charge and repeatedly referenced the lawsuit against Dr. Clark as a reason to rule in favor of Dr. Lee.” The Estate maintained that such is “precisely the type of ‘extraneous prejudicial information’ envisioned by” Mississippi Rule of Evidence 606(b).

¶ 11. On August 17, 2009, a hearing was held before the circuit court on the Estate's post-trial motions. Regarding juror misconduct, the circuit judge examined Lopez's affidavit, then stated:

[t]he question to me is the [c]ourt having instructed the juror to disregard that statement, was that then extraneous information that was brought into the jury room. If so, it would support the allegation of [Lopez] that there was extraneous information brought in if they chose somewhat to ignore the [c]ourt's instruction.

The circuit judge then permitted examination of Lopez, during which she reiterated the statements from her affidavit, with limited additions ¹¹ and retractions. Following Lopez's testimony, the circuit judge...