Duffy v. Vogel
Decision Date | 31 March 2009 |
Docket Number | No. 42.,42. |
Citation | 12 N.Y.3d 169,905 N.E.2d 1175 |
Parties | Eleanor DUFFY, Appellant, v. James M. VOGEL et al., Respondents, et al., Defendant. |
Court | New York Court of Appeals Court of Appeals |
At the conclusion of a long and complex trial during which plaintiff sought to prove that defendant physicians had committed malpractice by failing to detect, diagnose and properly treat a tumor situated in her pelvis, the jury returned a verdict evidently exonerating defendants while purporting to award damages "for the plaintiff" in the amount of $1.5 million. Shortly after the verdict, plaintiff requested that the jury be polled to ascertain whether "each juror consents this is the verdict as read by the foreperson." The request was denied as "unnecessary" and the jury discharged. The trial court would, however, subsequently acknowledge that it had erred in denying the poll and, on that ground, grant plaintiff's posttrial motion to set aside the verdict and declare a mistrial (2007 N.Y. Slip Op. 34280[U]). In the ensuing litigation, defendants have conceded that it was error not to poll the jury, yet urge that harmless error analysis may save the verdict.
In the decision and order now before us, brought up for review by plaintiff's appeal as of right, pursuant to CPLR 5601(d), from an Appellate Division order affirming the dismissal of her remaining claims (50 A.D.3d 319, 855 N.Y.S.2d 440 [2008]), a divided Appellate Division panel agreed with defendants, and denied the previously granted motion to set aside the verdict. While the entire panel acknowledged that plaintiff had been entitled to have the jury polled and even that the entitlement was "absolute," the majority viewed the error as one of form only, since, in its estimation, "the objective facts set forth amply demonstrate[d] that polling the jury would not have resulted in a different verdict" (Duffy v. Vogel, 49 A.D.3d 22, 25, 849 N.Y.S.2d 52 [1st Dept. 2007]). This view was, at bottom, premised upon the manner in which the verdict had been rendered: each member of the jury had signed the verdict sheet in response to each of the answered interrogatories, the jury's responses to the interrogatories had been uniformly unanimous, and during the foreperson's recitation of the verdict in open court, no juror cried out in protest. The dissenters countered that "[i]t is simply impossible, short of clairvoyance, to decide that no juror in this case would change his or her mind upon being polled facing the litigants in open court" (id. at 32, 849 N.Y.S.2d 52), and, accordingly, would have held that the trial court's failure to honor plaintiff's absolute right to have the jury polled required that the verdict be set aside, as the trial court had done.
We now reverse.
At common law, it was recognized that although jurors had agreed upon a verdict within the confines of the jury room and announced their verdict in open court, they might yet be examined by poll to determine whether they remained wedded to their verdict, and if it appeared that the verdict had been due to mistake or partiality, the jurors would, prior to the recording of the verdict, have an opportunity to "go together and consider the better of it, and alter what they have delivered" (2 Hale, History of the Pleas of the Crown, at 299-300 [1800 ed]). That jurors "should be enabled to avail themselves of the locus penitentiae, and correct a verdict which they have mistaken, or about which, upon further reflection, they have doubt" (Blackley v. Sheldon, 7 Johns 32, 33-34 [1810]) has been recognized in the vast majority of jurisdictions, and the polling of jurors in open court has been viewed as essential to the provision of such a locus, since, without the device, the reservations of individual jurors about a verdict to which they may have assented in the enforced privacy of the jury room under misapprehension, pressure from fellow jurors or out of sheer exhaustion, would likely never gain timely expression.
In New York, we have long recognized that affording jurors a last opportunity individually to express agreement or disagreement with the reported verdict, is, when requested by a litigant, indispensable to a properly published, and thereby perfected, verdict:
( .) ( .) (Labar v. Koplin, 4 N.Y. 547, 550-551 [1851]).
That a verdict may not be deemed "finished or perfected" until it is recorded, and that it may not be validly recorded without a jury poll where one has been sought* (see Warner v. New York Cent. R.R. Co., 52 N.Y. 437, 442 [1873]), have been uncontroversial propositions. Although we have not had the opportunity recently to reconsider them, they have been applied over the years with axiomatic force by New York's intermediate appellate courts (see Brigham v. Olmstead, 10 A.D.2d 769, 197 N.Y.S.2d 570 [3d Dept. 1960] [] ; Muth v. J & T Metal Prods. Co., 74 A.D.2d 898, 425 N.Y.S.2d 858 [2d Dept.1980], lv. dismissed 51 N.Y.2d 745, 432 N.Y.S.2d 365, 411 N.E.2d 784 [1980] [ ]; see also Luppino v. Busher, 119 A.D.2d 554, 556, 500 N.Y.S.2d 557 [2d Dept.1986]; Ricchueto v. County of Monroe, 267 A.D.2d 1012, 701 N.Y.S.2d 550 [4th Dept.1999]; Matter of National Equip. Corp. v. Ruiz, 19 A.D.3d 5, 12-14, 794 N.Y.S.2d 2 [1st Dept.2005]). No cogent, principled argument is made for their revision here.
Inasmuch as, under New York law, the honor of a request for a jury poll is a necessary condition of a "finished or perfected" verdict, it follows that in this State's courts the failure to poll a jury may never be deemed harmless. Harmless error analysis is a judicial device employed to sustain an already perfected verdict, not to perfect a verdict in the first instance.
A verdict in a jury trial is emphatically not a judicial construct. Indeed, it is hard to know upon what empirical basis a verdict untested in open court by direct inquiry of the individual jurors might be judicially deemed to be the final expression of the jury's true intention. Here, it is important to understand that the relevant question is not whether the trial evidence was sufficiently persuasive to impel a hypothetical reasonable juror to vote in favor of the announced verdict, but rather whether each juror chosen by the parties to hear the case would, upon reflection, publicly affirm that the verdict agreed to in the jury room was the one he or she actually intended. The exercise of individual conscience involved is one whose outcome defies prediction.
Nor can there be...
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