Lee v. Phillips
Decision Date | 15 July 2014 |
Docket Number | A14A0188 |
Parties | LEE v. PHILLIPS, IV BY NEXT FRIEND SANTHONIA HECTOR v. HARMON et al. |
Court | Georgia Court of Appeals |
FIRST DIVISION
NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed.
Lee V. Phillips, IV, by and through his mother Santhonia Hector, and Hector individually, (collectively "Plaintiffs") filed this medical malpractice action against Marcia R. Harmon, CNM,1 Deborah E. Haynes, M.D., Eagles Landing OB-GYN Associates, P.C., Eagles Landing OB-GYN Associates II, LLC, and Henry Medical Center, Inc. (collectively "Defendants"), alleging that, due to Defendants' negligence, Phillips suffered oxygen deprivation shortly before birth, which resulted in severe, permanent neurological injuries, including spastic quadriplegia, blindness, and an inability to speak.
The case ultimately proceeded to a jury trial, which commenced on August 20, 2012 and, following approximately one and a half days of deliberations, the jury returned a verdict for the Defendants on September 6, 2012. Plaintiffs filed a motion for new trial asserting, among other things, that the trial court erred by engaging in a communication with the jury when neither the parties nor their attorneys were present, and by refusing to give Plaintiffs' requested charge on spoliation of evidence. The trial court denied their motion, and Plaintiffs filed this appeal, raising the additional claim that the Defendants improperly introduced evidence of collateral source benefits. We agree with Plaintiffs that they were entitled to a new trial and reverse.
1. We first consider Plaintiffs' contention that they are entitled to a new trial because the trial court responded to a note from the jury during the course of their deliberations without ever advising the parties or their counsel that the communication had taken place.
(a) As to this issue, the record shows that several weeks after the jury returned its verdict, two jurors contacted Plaintiffs' counsel to express concerns about possible juror misconduct.2 During that conversation, Plaintiffs' counsel learned for the first time that the trial judge had responded to a note from the jury without ever disclosing the contents of the note or his response to either the parties or their counsel. Thereafter, Plaintiffs' counsel obtained affidavits from the two jurors, both of whom averred that, on the second day of deliberations, the jury sent a note to the trial judge "indicating that [they] were not able to reach a unanimous verdict." According to the jurors, the judge sent a note back, which instructed the jury to "continue deliberating."
After learning of the communication, Plaintiffs' counsel sent a letter to the trial judge requesting that he "take steps to see that both the jurors' note . . . and [his] responsive note are filed with the Clerk." After realizing that the court reporter did not have the note, the trial judge, without seeking input from counsel or holding a hearing, entered an order supplementing the record pursuant to OCGA § 5-6-41 (d).3 The order recites that four notes were delivered to the court while the jury was deliberating, that three of the notes were preserved and made a part of the record, but that the note pertaining to the jury's inability to reach a unanimous verdict was not one of them. The order found that the note read "What happens if we can't reach a unanimous verdict," and was delivered to the court immediately after lunch recess on September 5, 2012, which was the first day the jury deliberated. The trial judge further recited that due to the fact that the note did not actually indicate that the jury was "hung" and in view of the short amount of time the jury had been deliberating after such a lengthy trial, he did not believe consultation with counsel about his response to the note was necessary, and therefore wrote on the same piece of paper "please continue deliberating" and had the bailiff return the note to the jury. The trial judge also stated the note had remained with the jury, and presumably was destroyed along with the jurors' personal notes as instructed by the bailiff after the verdict was returned.
Plaintiffs subsequently filed a motion to recuse or disqualify the trial judge due to the perceived conflict between his order supplementing the record and the jurors' affidavits. The trial judge granted the motion to recuse, and the case was re-assigned. Following a hearing on Plaintiffs' motion for new trial, the assigned judge rejected Plaintiffs' claim that the trial court's communication with the jury was per se reversible error, and concluded that the Plaintiffs were not entitled to a new trial because the note was not impermissibly misleading or coercive. Plaintiffs now challenge that ruling, arguing that, under the circumstances of this case, we should presume that the trial judge's communication with the jury was harmful, and that, in any event, the trial judge's response was coercive under the circumstances in which it was given.
Kesterson, 291 Ga. at 384 (2) (a).
The issue in Kesterson - whether a party may be denied the right to be present and properly excluded from the courtroom because his or her physical or mental condition might invoke undue sympathy from the jury - was one of first impression in this state.4 However, there is, as noted in Kesterson, a long line of precedent in Georgia affirming a civil litigant's right to be present at their trial. See, e.g., St. Paul Fire & Marine, Ins. Co. v. Brunswick Grocery Co., 113 Ga. 786, 789 (39 SE 483) (1901) ( ); Mays v. Tharpe & Brooks, 143 Ga. App. 815, 816 (240 SE2d 159) (1977) (); Walden v. MARTA, 161 Ga. App. 725, 726 (288 SE2d 671) (1982) ( ).
Although a party's right to be present is firmly established in both our civil and criminal jurisprudence, there appears to be a dearth of authority addressing the right of a civil litigant to be present when the trial judge engages in communications with the jury. However, our appellate courts have addressed this issue numerous times in criminal cases and, as have the parties, we turn to those cases for guidance.5
As our Supreme Court explained in Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998), (Citations and punctuation omitted; emphasis in original.) Id. at 807 (6). See also Cox v. Yates, 96 Ga. App. 466 (100 SE2d 649) (1957) ( ).
Unquestionably the trial judge should not in any manner communicate with the jury about the case, in the absence of the accused and his counsel, pending the trial; and the better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to prejudice the accused . . . ; and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial.
Hanifa,269 at 807 (6). Lowery v. State, 282 Ga. 68, 73 (4) (b) (646 SE2d 67) (2007) ().
Further, and pertinent to this case, our appellate courts have specifically considered judge/jury communications concerning a jury's ability, or inability, to reach a verdict, and routinely held that it is error for a trial judge to respond to such an inquiry in the absence of the defendant and/or his counsel. E.g., Lowery v. State, 282 Ga. at 74 (4) (b) (i); Wells v. State, 297 Ga. App. 153, 159-160 (2) (676 SE2d 821) (2009); Barnett v. State, 276 Ga. App. 238, 241-242 (2) (623 SE2d 136) (2005).
But see Stewart v. State, 165 Ga. App. 428, 429-430 (2) (300 SE2d 331) (1983) ( ).
Defendants, while certainly not suggesting that ex parte communications between a trial judge and a jury are...
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