Ravin v. Gambrell By and Through Eddy

• Citation: 788 P.2d 817
• Decision Date: 19 March 1990
• Docket Number: No. 88SC309,88SC309
• Parties: Sheldon J. RAVIN, D.O., and David R. McKee, D.O., Petitioners, v. Daniel GAMBRELL, a minor, By and Through his mother and best friend, Linda Gambrell EDDY, and Linda Gambrell Eddy, personally, Respondents.
• Court: Colorado Supreme Court

Page 817

788 P.2d 817

Sheldon J. RAVIN, D.O., and David R. McKee, D.O., Petitioners, v. Daniel GAMBRELL, a minor, By and Through his mother and best

friend, Linda Gambrell EDDY, and Linda Gambrell

Eddy, personally, Respondents.

No. 88SC309.

Supreme Court of Colorado,

En Banc.

March 19, 1990.

Johnson & Mahoney, P.C., Collie E. Norman, Denver, for petitioner Sheldon J. Ravin, D.O.

Pryor, Carney and Johnson, P.C., Kathie Fliss Martell, Englewood, for petitioner David R. McKee, D.O.

Peter A. Goldstein, P.C., Peter A. Goldstein, Colorado Springs, for respondents.

James S. Bertagnolli, Colorado Springs, guardian ad litem for Daniel Gambrell, a Minor.

Sherman and Howard, W. David Pantle and Steven D. Plissey, Denver, for amicus curiae Bank Western Federal Sav. Bank.

Justice KIRSHBAUM, delivered the Opinion of the Court.

In Gambrell v. Ravin, 764 P.2d 362 (Colo.App.1988), the Court of Appeals held that the trial court erroneously denied a motion for new trial filed by Daniel Gambrell and his mother, Linda Gambrell Eddy (respondents). The Court of Appeals held that respondents were entitled to a new trial because improper communications occurred between the jury and a bailiff during jury deliberations and because the trial court erred in refusing to instruct the jury on the issue of res ipsa loquitur. Having granted petitions for writ of certiorari filed by petitioners Sheldon J. Ravin and David R. McKee to review these issues, we now affirm and remand the case with instructions.

I

When Linda Gambrell Eddy (Eddy) became pregnant in the fall of 1978, she decided to use the LaBoyer method ¹ of natural childbirth. She engaged the services of David R. McKee, a licensed doctor of osteopathic medicine, and McKee made arrangements for delivery in the birthing room ² of Eisenhower Hospital in Colorado Springs.

In July 1979, McKee participated in National Guard maneuvers. He referred Eddy and his other patients to Sheldon J. Ravin, also a licensed doctor of osteopathic medicine.

On the morning of July 13, 1979, Eddy telephoned Ravin and reported that she was experiencing pain. Ravin advised her to go to the hospital when her contractions became closer. She did so, and arrived at the hospital at approximately 7:00 p.m. A hospital staff member informed Ravin by telephone that Eddy was in labor and transported her to the birthing area. Ravin arrived at the hospital at 7:50 p.m., at which time Eddy was in heavy labor. She reminded Ravin that she wished to experience a natural childbirth. She also stated that she did not want to receive any anesthesia and that she did not want an episiotomy to be performed. ³

Approximately 8:00 p.m., Ravin informed Eddy that because the child was large an episiotomy should be performed. Eddy refused to authorize the procedure. The child's head was then delivered, but shoulder dystocia--the lodging of the shoulders in the birth canal--prevented further delivery and the child's head began to recede back into the birth canal. Recognizing that if delivery were not completed within eight to ten minutes the child might die, Ravin utilized a number of techniques in efforts to dislodge the shoulder. Other personnel associated with the hospital assisted in these procedures. Delivery was finally completed by means of the Woods maneuver, which technique requires application of pressure to the top of the uterus while the body of the child is turned. The child, Daniel, developed a condition involving paralysis of his left arm as the result of an injury sustained during the delivery.

Respondents subsequently filed a civil action against Ravin alleging negligent delivery. McKee was later joined as a co-defendant. Trial commenced in May 1985. ⁴ At the conclusion of the evidentiary phase of the trial, the trial court denied respondents' request to instruct the jury with respect to the doctrine of res ipsa loquitur and refused to direct a verdict for the petitioners. After two days of deliberation the jury returned a verdict in favor of the petitioners.

Respondents subsequently filed a motion for new trial. The respondents argued, inter alia, that the verdict should be set aside because of improper communications between a bailiff and the jury during jury deliberations and because the trial court erred in refusing to instruct the jury with respect to the doctrine of res ipsa loquitur. At the hearing on this motion respondents introduced affidavits establishing that on the second day of deliberations a juror informed the attending bailiff that she was not feeling well and was the only juror who favored the respondents; that the juror asked whether a unanimous verdict was required and how long deliberations would continue in the absence of unanimity; that the bailiff stated that the verdict had to be unanimous and the judge could require deliberations to continue for some two weeks; and that this conversation was heard by other jurors.

The trial court denied the motion for new trial. The trial court concluded that although the bailiff's statements were improper, a new trial was not required because the conversation did not directly concern the case itself. It also ruled that the request for a res ipsa loquitur instruction was not warranted by respondents' evidence.

In reversing the trial court's judgment, the Court of Appeals concluded that the bailiff's improper communication required the granting of a new trial. The Court of Appeals also directed that upon retrial the issue of res ipsa loquitur should be submitted to the jury if the evidence so warrants. ⁵

II

In addressing the issues generated by the conduct of the bailiff, the Court of Appeals held that to determine whether misconduct during jury deliberations warranted a new trial a trial court must apply the objective test of whether there is a reasonable possibility that the misconduct affected the jury verdict. In reaching this conclusion the Court of Appeals adopted the rationale of our decision in Wiser v. People, 732 P.2d 1139 (Colo.1987), a criminal proceeding. Petitioners assert that the Wiser test should not apply to civil actions and, alternatively, that the facts of this case do not satisfy that test. We reject the petitioners' arguments.

A person seeking to set aside a verdict on the ground of extraneous influence upon the jury must not only establish the fact of improper communication but also establish that as a result thereof the moving party was prejudiced. People v. Garcia, 752 P.2d 570 (Colo.1988); Wiser v. People, 732 P.2d 1139 (Colo.1987); Canton Oil v. District Court, 731 P.2d 687 (Colo.1987); Butters v. Dee Wann, 147 Colo. 352, 363 P.2d 494 (1961). The requirement of prejudice recognizes the policy of encouraging finality of judgments and reflects concern with the cost and delay associated with retrials.

In Wiser v. People, we pointed out that any test of prejudice must begin with recognition of the limitations placed upon the introduction of evidence of juror misconduct by CRE 606(b). That rule provides as follows:

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

CRE 606(b). As the Court of Appeals recognized, CRE 606(b) prohibits inquiry into the deliberative processes of jurors. People v. Garcia, 752 P.2d 570 (Colo.1988); People v. Collins, 730 P.2d 293 (Colo.1986); Santilli v. Pueblo, 184 Colo. 432, 521 P.2d 170 (1974). However, a party alleging jury misconduct may introduce evidence to establish that external influences improperly influenced a jury decision. People v. Garcia, 752 P.2d 570 (Colo.1988); Wiser v. People, 732 P.2d 1139 (Colo.1987); People v. Harrison, 746 P.2d 66 (Colo.App.1987). In this case, the trial court and the Court of Appeals properly excluded from consideration those portions of juror affidavits which discussed the deliberative processes of the jurors.

Colorado Rule of Evidence 606(b) applies to all cases, civil as well as criminal. The rule is designed to reinforce the finality of jury verdicts, to protect the sanctity of jury deliberations, and to safeguard the privacy of jurors. See McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); 3 J. Weinstein & M. Berger, Weinstein's Evidence § 606 (4th ed. 1988). This and other courts have recognized that jurors should be protected from harassment by a losing party. Boyles v. People, 90 Colo. 32, 6 P.2d 7 (1931). See McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); United States v. Schwartz, 787 F.2d 257, 261-62 (7th Cir.1986). See also C. McCormick, Handbook on the Law of Evidence § 68 (3d ed. 1984); 3 J. Weinstein & M. Berger, Weinstein's Evidence § 606 at 606-25 (4th ed. 1988); Crump, Jury Misconduct, 66 N.C.L.Rev. 509 (1988). However important these concepts are, in cases where the result of jury deliberations has been substantially undermined because of fundamental flaws in the deliberative process itself, courts must weigh the force of these policies against the overriding concern that parties to the judicial process be assured of a fair result. See Patterson v. Colorado, 205 U.S. 454, 459, 27 S.Ct. 556, 557, 51 L.Ed. 879 (1907). All of these concerns are equally important in both civil and criminal proceedings.

In recognition of these conflicting...