Phillips v. Harmon, Nos. S14G1868

• Court: Supreme Court of Georgia
• Writing for the Court: HINES, Presiding Justice.
• Citation: 297 Ga. 386,774 S.E.2d 596
• Parties: PHILLIPS et al. v. HARMON et al. Harmon et al. v. Phillips et al. Henry Medical Center v. Phillips et al.
• Docket Number: Nos. S14G1868,S14G1893,S14G1895.
• Decision Date: 29 June 2015

297 Ga. 386
774 S.E.2d 596

PHILLIPS et al.
v.
HARMON et al.

Harmon et al.
v.
Phillips et al.

Henry Medical Center
v.
Phillips et al.

Nos. S14G1868
S14G1893
S14G1895.

Supreme Court of Georgia.

June 29, 2015.

774 S.E.2d 598

Jonathan Andrew Parrish, The Parrish Law Firm, LLC, Atlanta, Wayne Grant, Kimberly Waters Grant, Grant Law Office, Atlanta, for Phillips et al.

Michael Scott Bailey, Anna Burdeshaw Fretwell, Huff, Powell & Bailey, LLC, Atlanta, for Harnon et al.

Hall, Booth, Smith, John E. Hall, Jr., W. Scott Henwood, Wark W. Wortham, Nathan A. Gaffney, for Henry Medical Center, Inc.

Opinion

HINES, Presiding Justice.

297 Ga. 386

This Court granted a writ of certiorari to the Court of Appeals in Phillips ex rel. Hector v. Harmon, 328 Ga.App. 686, 760 S.E.2d 235 (2014), to determine if that Court properly held in this medical malpractice action: (1) that the trial court's communication to the jury outside the presence of counsel and the parties was reversible error (S14G1893; S14G1895), and (2) that the trial court did not abuse its discretion in its refusal to give plaintiffs' requested jury charge on spoliation (S14G1868). For the reasons that follow, we affirm in part and reverse in part the judgment of the Court of Appeals, and remand the case to that Court.

Lee V. Phillips IV (“Phillips”) by and through his mother Santhonia Hector (“Hector”), and Hector individually (collectively “Plaintiffs”), brought this medical malpractice action against certified nurse midwife (“CNM”) Marcia R. Harmon, 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”). Plaintiffs alleged that Defendants' negligence caused Phillips to suffer oxygen deprivation shortly before birth, resulting in severe, permanent neurological injuries, including spastic quadriplegia, blindness, and an inability to speak.

The case went to trial before a jury on August 20, 2012, and the jury returned a verdict for the Defendants on September 6, 2012, after approximately one-and-a-half days of deliberations. Plaintiffs filed a motion for a new trial, alleging that the trial court erred by engaging in a communication with the jury when neither the parties

297 Ga. 387

nor their attorneys were present, and by refusing

774 S.E.2d 599

to give their requested jury charge on the spoliation of evidence. The trial court denied the motion, and Plaintiffs appealed to the Court of Appeals.¹

The Court of Appeals concluded that the trial court did not abuse its discretion in refusing to give Plaintiffs' requested charge on spoliation of evidence; however, it reversed the trial court's denial of Plaintiffs' motion for new trial after determining that Plaintiffs were 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.

I. S14G1893; S14G1895. Communication with the Jury.

The facts as found by the Court of Appeals with regard to the communication with the jury are the following. Several weeks after the jury verdict, two jurors contacted Plaintiffs' counsel regarding possible juror misconduct.² In that conversation, Plaintiffs' counsel learned for the first time that the trial judge had responded to a note from the jury without disclosing to the parties or their counsel the contents of the note or his response. Plaintiffs' counsel obtained affidavits from these two jurors, which affidavits 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,” and that the judge sent back a note instructing the jury to “continue deliberating.”

Subsequently, Plaintiffs' counsel asked the trial judge to take measures to see that both the jury note and the judge's responsive note were filed with the clerk of court. After realizing that the court reporter did not have a copy of the jury's note, the trial judge, without holding a hearing or seeking any input from the parties' counsel, entered an order supplementing the record pursuant to OCGA § 5–6–41(d).³ The order recited that four notes were delivered to the court

297 Ga. 388

during deliberations and that three of them were preserved and made part of the record, but that the note regarding the jury's inability to reach a unanimous verdict was not one of them. The order stated that the missing note read, “What happens if we can't reach a unanimous verdict,” and was delivered to the court immediately after lunch recess on the first day of jury deliberations; 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 that the jury had been deliberating after the lengthy trial, the trial judge did not believe it was necessary to consult with counsel about his response; therefore, the trial judge 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 that the note had remained with the jury, and presumably was destroyed along with the jurors'

774 S.E.2d 600

personal notes, as instructed by the bailiff after return of the verdict.

Plaintiffs moved to recuse or disqualify the trial judge due to the perceived conflict between the jurors' affidavits and the trial judge's order supplementing the record. The trial judge granted the motion, and the case was reassigned. Following a hearing on Plaintiffs' motion for new trial, the assigned judge rejected Plaintiffs' claim that the trial judge's communication with the jury outside the presence of Plaintiffs or counsel was per se reversible error, and concluded that Plaintiffs were not entitled to a new trial because the note was not impermissibly misleading or coercive. However, in denying the motion for new trial, the trial court noted that the evidence in the case was “close” and would have supported a verdict for either Plaintiffs or Defendants.

After a lengthy analysis which examined the right of a natural party to be present in the courtroom during trial, and the applicability of a presumption of prejudice or harmless error review, the Court of Appeals concluded that the particular and unique circumstances surrounding the communication in this case warranted a new trial. And, the Court was correct to do so.

297 Ga. 389

A. Right to be Present

As the Court of Appeals properly noted, in Kesterson v. Jarrett, 291 Ga. 380, 728 S.E.2d 557 (2012), this Court steadfastly reaffirmed the right of a natural party to be present in the courtroom when the party's case is being tried as such right,

is deeply rooted in the law of this Nation and, if anything, even more embedded in the law of this State. It has been treated as a component of the due process of law in both criminal and civil cases since the early decisions of this Court. The right to be present is also reflected textually in our State Constitution, in the provision guaranteeing to every person “the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state.” Ga. Const. of 1983, Art. I, Sec. I, Par. XII.⁴

Id. at 384(2)(a), 728 S.E.2d 557. (Internal citations omitted.) Kesterson was also a medical malpractice case in which it was alleged that a child suffered neurological injuries caused by oxygen deprivation shortly before birth as the result of the defendant medical providers' negligence in failing to timely recognize signs of fetal distress. The trial court excluded the young child from most of the liability phase of the trial of the lawsuit after the defendants moved to so exclude the child from the courtroom on the basis that the child's presence would be prejudicial to them. Id. at 382(1), 728 S.E.2d 557. The Court of Appeals affirmed that ruling after applying a test which gave the trial court discretion to exclude a civil party when the party's physical and mental condition might generate sympathy from the jury and the party's mental condition precludes meaningful participation in and understanding of the proceedings. See Kesterson v. Jarrett, 307 Ga.App. 244, 248 –251(1)(b), 704 S.E.2d 878 (2010). So, the issue before this Court on certiorari was whether a party might be denied the right to be present in court during the trial of the party's case and excluded from the courtroom because the party's physical and mental condition might evoke undue sympathy from the jury, and thereby improperly prejudice the other side. Kesterson, 291 Ga. at 380–381, 728 S.E.2d 557. This Court reversed and remanded the case to the Court of Appeals after concluding that a party could not be excluded from the party's own trial simply because the party's

297 Ga. 390

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