Weisgerber v. Ann Arbor Center for Family

• Decision Date: 28 September 1994
• Docket Number: No. 139321,No. 98396,98396,139321
• Citation: 521 N.W.2d 601,447 Mich. 963
• Parties: Iris E. WEISGERBER, Personal Representative of the Estate of Carolyn Sue Weisgerber, Deceased, Plaintiff-Appellee/Cross-Appellant, v. ANN ARBOR CENTER FOR the FAMILY, a/k/a Ann Arbor Center for the Family, Inc., a Michigan corporation; and Kenneth R. Silk, M.D.; jointly and severally, Defendants- Appellants/Cross- Appellees. COA
• Court: Michigan Supreme Court

Page 601

521 N.W.2d 601

447 Mich. 963

Iris E. WEISGERBER, Personal Representative of the Estate of Carolyn Sue Weisgerber, Deceased Plaintiff-Appellee/Cross-Appellant, v. ANN ARBOR CENTER FOR the FAMILY, a/k/a Ann Arbor Center for the Family, Inc., a Michigan corporation; and Kenneth R. Silk, M.D.; jointly and severally Defendants- Appellants/Cross- Appellees.

No. 98396.

COA No. 139321.

Supreme Court of Michigan.

Sept. 28, 1994.

ORDER

On order of the Court, the application for leave to appeal is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and REINSTATE the October 26, 1990 judgment of the Washtenaw Circuit Court, for the reasons stated by the trial judge in his February 7, 1991 opinion denying the plaintiff's motion for a new trial. The application for leave to appeal as cross-appellant is DENIED because it is moot.

The case is REMANDED to the Washtenaw Circuit Court for reinstatement of the judgment entered pursuant to the jury's verdict. We do not retain jurisdiction.

LEVIN, J., states as follows:

I would deny leave to appeal, and dissent from the peremptory reversal of the Court of Appeals, but would join in an order granting leave to appeal to consider the jurisprudentially significant issue, involved in the instant case, dealt with in Collier v. Westland Arena, Inc., 183 Mich.App. 251, 254, 454 N.W.2d 138 (1990), in which the Court of Appeals said:

This Court has held that a new trial must be granted when it is shown that a juror gave untruthful answers during voir dire and truthful answers would have revealed grounds for a successful challenge for cause. Gustafson [v. Morrison, 57 Mich.App. 655, 664-665, 226 N.W.2d 681 (1975) ]; Clemmons [v. Super Food Services, Inc., 3 Mich.App. 377, 381-382, 142 N.W.2d 491 (1966) ].

In the instant case, the Court of Appeals, in an unpublished opinion, ¹ relied on Collier in stating:

Once a jury has been polled and discharged, its members may not challenge mistakes or misconduct inherent in the verdict. Hoffman v Spartan Stores Inc., 197 MichApp 289, 293; 494 NW2d 811 (1992), citing Hoffman v Monroe Public Schools, 96 MichApp 256, 260-261; 292 NW2d 542 (1980). However, affidavits or testimony impeaching the verdict are proper if they concern an overt act which is accessible to the knowledge of all the jurors. It must not involve matters inherent in the verdict. People v Vettese, 195 MichApp 235, 244; 489 NW2d 514 (1992), citing People v Graham, 84 MichApp 663; 270 NW2d 673 (1978). Moreover, a new trial must be granted when it appears that a juror gave untruthful answers during voir dire, whereas truthful answers would have allowed a successful challenge for cause. Collier v Westland Arena Inc, 183 MichApp 251, 254; 454 NW2d 138 (1990).

The parties do not cite any decision of this Court addressing the question dealt with in Collier, and therefore it might be appropriate for this Court to grant leave to appeal. It has been observed that "[i]n Michigan, the present law on verdict impeachment is in great disarray." ²

It appears that the rule stated by the Court of Appeals in Collier is the majority rule. ³

I

Plaintiff, Iris E. Weisgerber, personal representative of the estate of Carolyn Sue Weisgerber, deceased, commenced this malpractice action against Ann Arbor Center for the Family, also known as Ann Arbor Center for the Family, Inc., a Michigan corporation, and Kenneth R. Silk, M.D., after Carolyn Weisgerber committed suicide under Silk's care. The jury returned a verdict in favor of the defendants, and indicated on the verdict form that Silk had met the applicable standard of care.

Shortly thereafter, the trial judge received a telephone call from juror Clara Debreczeny alleging that two of the jurors acted improperly during jury deliberations. The judge suggested that Debreczeny write a letter, and she did so.

Debreczeny stated in her letter that she and juror Gordon Macomber originally voted "no" in response to the question whether Silk had met the standard of care, and that the other four jurors had voted "yes." She said that juror Marie Conn then stated that "she could never give money for death," and that thereupon Macomber said "he would never give money for death...." There was another vote and Macomber said "yes," meaning Dr. Silk "had done his job." ⁴

During the jury voir dire, prospective jurors were asked the following questions: "Does any member of the jury feel uncomfortable with the idea of awarding money damages for the loss of a human life?" "If you determine that the Defendants were liable in this case would any of you be reluctant to award the Plaintiff 2 or 3 million dollars in damages even if you felt the evidence warranted such a verdict?" Both jurors Conn and Macomber remained silent, and neither raised their hand.

Following receipt of Debreczeny's letter, the trial judge instructed the lawyers to present law and argument concerning whether the matters set forth in the letter warranted an investigation or a new trial. He also instructed the lawyers not to communicate with any of the jurors until he ruled, and thus no affidavit was presented. In finding that neither an investigation nor a new trial was warranted, the judge said:

This is not a situation where a juror lied during the voir dire as to knowing a witness, or having been in an accident previously, etc. The statements of the two jurors can well be interpreted as meaning that they would not vote for a verdict for damages for death in the case before them. It doesn't appear that they were necessarily talking about what they would do in other cases. They were stating that they could not find the damages for death in the case before them.... When the jury was asked by the Jury Clerk, after they read their verdict, that they solemnly swore "that the verdict as read by the foreperson was a verdict of each of you, so help you God," they answered in the affirmative. Ms. Debreczeny at no time objected to the reading of the verdict or stated that she had a different verdict. If, as claimed by the plaintiff's attorney, the two jurors who had an opinion that no one should get money for the death of a person, they could well have answered Question No. 1 of the verdict form that Defendant Silk did not meet his standard of care and could have answered Question No. 2 that his failure to meet the standard of care was a proximate cause of the injury and then as to the total amount of plaintiff's damages in Question No. 3, could have answered zero. They did not do this. The jurors found that Defendant Silk met the standard of care.

The Court of Appeals concluded that the judge abused his discretion in failing to investigate whether jurors Conn and Macomber responded truthfully during the jury voir dire. The Court of Appeals remanded with instructions that the judge conduct a hearing to investigate the allegations contained in the letter. "He must determine whether the jurors gave untruthful answers during voir dire and whether truthful answers would have revealed grounds for a successful challenge for cause."

The Court of Appeals said that the judge abused his "discretion by speculating the that jurors refused to award money in the case before them but might award money damages for death in other cases. The judge's assumption is not supported by anything in the record. He should have conducted an investigation into the allegations."

The Court of Appeals pointed out that the "allegations raised by juror Debreczeny do not involve matters inherent in the verdict," but rather "challenge the truthfulness of certain jurors' answers on voir dire," and said that therefore "affidavits or testimony impeaching the verdict were appropriate to determine if the two jurors could have ever awarded damages for death."

The Court of Appeals was clearly correct in stating that the judge's assumption was not supported by the record. I also think it was clearly within the supervisory authority of the Court of Appeals to conclude that the failure of Conn and Macomber to respond to the questions during voir dire and the statements set forth in Debreczeny's letter were sufficient to require an investigation and hearing, and that thus the lawyers should not have been precluded from obtaining affidavits or otherwise inquiring, as at a hearing, of jurors Conn and Macomber and the other jurors regarding the subject matter of the letter and Conn and Macomber's responses during the voir dire.

II

While the majority prefers the assessment of the trial judge, the determination of the Court of Appeals was not so devoid of reason as to justify peremptory reversal. The majority's decision to peremptorily reverse the Court of Appeals belittles its efforts in the disposition of this case, as reflected in its carefully written, albeit unpublished, opinion, and deprives the personal representative of Weisgerber's estate and her counsel of an opportunity to fully brief and orally argue in support of the decision of the Court of Appeals.

This is an interlocutory appeal. The Court of Appeals has simply remanded for an evidentiary hearing. I often hear it said that it is not our function to call balls or strikes, but rather to deal with jurisprudentially significant issues. The reasons stated by the trial judge, adopted by the majority in its peremptory order, do not state a jurisprudentially significant issue. If the majority perceives that there is a jurisprudentially significant issue, leave to appeal should be granted.

Today's peremptory order reflects an increasingly common method of deciding cases, a method that does not provide safeguards against hasty and ill-considered decisions, a method that is unsafe.

When this Court grants leave to appeal, there is an opportunity to educate the justices concerning the state of the record and the law through oral argument, as well as visually through briefs. A justice who may have missed...