Opinion
D073402
04-20-2020
C.A. et al., Plaintiffs and Appellants, v. LORI LYNN ARNOLD et al., Defendants and Respondents.
The Salem Law Firm, Edmond E. Salem; John F. Machtinger; and Steven B. Stevens; for Plaintiffs and Appellants. Cole Pedroza, Kenneth R. Pedroza, Zena Jacobsen; Hegeler & Anderson, Barton H. Hegeler and Storm P. Anderson for Defendants and Respondents Lori Lynn Arnold, California Center for Reproductive Medicine, and California Center for Reproductive Sciences. Callahan, Little & Sullivan and Timothy J. Sullivan for Defendant and Respondent A Perfect Match, Inc.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2012-00103745-CU-MM-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Kevin A. Enright, Judge. Affirmed. The Salem Law Firm, Edmond E. Salem; John F. Machtinger; and Steven B. Stevens; for Plaintiffs and Appellants. Cole Pedroza, Kenneth R. Pedroza, Zena Jacobsen; Hegeler & Anderson, Barton H. Hegeler and Storm P. Anderson for Defendants and Respondents Lori Lynn Arnold, California Center for Reproductive Medicine, and California Center for Reproductive Sciences. Callahan, Little & Sullivan and Timothy J. Sullivan for Defendant and Respondent A Perfect Match, Inc.
Mother and Father had a child using in vitro fertilization. After the child was born with a genetic defect, the parents sued the egg donation and surrogacy agency (A Perfect Match, or APM) and the reproductive endocrinologist (Dr. Lori Lynn Arnold) involved in the in vitro fertilization process, asserting negligence and breach of contract claims. After a seven-week trial, the jury rendered a verdict in defendants' favor. On appeal, Plaintiffs contend the trial court erred (1) in failing to discharge a juror, and (2) in denying their motion for a new trial based on juror misconduct. We reject these contentions and affirm the judgment.
The lawsuit was also brought on behalf of the child. We refer to the parents and the child collectively as Plaintiffs. We refer to Dr. Arnold, California Center for Reproductive Medicine, and California Center for Reproductive Sciences collectively as Dr. Arnold.
FACTUAL BACKGROUND
Mother and Father decided to have a child through in vitro fertilization using a donor egg, a surrogate, and Father's sperm. They contracted with APM, an egg donor and surrogacy agency, and selected Dr. Arnold as their reproductive endocrinologist specializing in fertility issues.
After the parents notified APM they were interested in egg donor Number 525 (egg donor), APM disclosed via e-mail the following information: the egg donor had previously had a donor cycle that resulted in the birth of twins; one of the twins was born with a "birth abnormality"; the family said the child "was born missing one eye and with a plate missing from the nose" and the "doctors diagnosed the baby with [m]icrophthalmos and [u]nilateral [c]hoanal [a]tresia"; and APM "sent an inquiry to a geneticist to see if this is a congenital malformation or genetic." Several days later, APM forwarded to parents an e-mail from a genetic counselor recommending genetic testing of the egg donor prior to using her services. Without obtaining such testing, the parents decided to use this egg donor, and met with Dr. Arnold to begin the in vitro fertilization process.
Father testified that he did not read the portion of APM's e-mail that recommended genetic testing. Instead, Father skipped over the first two paragraphs—"Please see e-mail below from the geneticists. Please let us know if this is something you would like to have the geneticist do. [¶] Darlene also contacted the previous family to see if they did any genetic testing on the son. If you have no concerns, then no other steps will need to be taken, but we will definitively share with you any information if the family did perform any genetic testing on the little boy"—and began reading the third paragraph regarding the amount of money the donor was requesting. Father then stopped reading before getting to the genetic counselor's e-mail. Mother testified that, when she saw the prior e-mail about the twin's "birth abnormality," she thought it was "nothing important, not a big deal" because it was not in the donor's profile with APM. She thought APM would talk to a geneticist about "what tests needed to be done to make sure that everything will be good." When APM called to ask if they still wanted to proceed with the donor, because someone else was interested in using her, the parents assumed "this donor is clear" even though APM never told them the donor had been cleared.
Dr. Arnold met with the egg donor, conducted an examination, and obtained a medical and family history. Dr. Arnold learned that one of the donor's prior donations had resulted in a twin with a malformation, and the donor reported being told by one of her doctors that "nothing was related to her." Dr. Arnold observed that the donor had "a completely normal phenotype," meaning she had looked and acted normal. Because the donor did not have any birth or genetic defects in her family history, had no physical malformations, and had been screened three prior times by reproductive endocrinologists without finding a genetic condition, Dr. Arnold concluded there was nothing in the donor's background that would indicate a genetic problem.
Eggs were retrieved from the donor and were fertilized with Father's sperm to create embryos. The parents consented to preimplantation genetic diagnosis (PGD) testing on the embryos and signed consent forms for this procedure. The consent forms recommended that any resulting fetus from the procedures undergo further prenatal genetic testing, including amniocentesis or chorionic villus sampling (CVS). Dr. Arnold implanted two embryos into the surrogate, and one developed into a fetus. At 11 weeks, Dr. Arnold transferred care of the surrogate to an obstetrician. Neither amniocentesis nor CVS was performed during the pregnancy.
The child was born in June 2011. At six months of age, she was diagnosed with retinoblastoma—a cancer of the eye which required its surgical removal—and a chromosomal deletion which caused her to be disabled. Plaintiffs sued Dr. Arnold for medical negligence, and APM for negligence and breach of contract. Plaintiffs contended that Dr. Arnold was negligent in failing to fully inform them of genetic testing that could have been performed on the fetus. Plaintiffs further contended that APM breached its contract and was negligent in failing to inform them of the egg donor's history.
Plaintiffs also sued the obstetrician but reached a settlement with him before trial. This settlement is addressed further, post.
Experts presented contrasting opinions as to whether Dr. Arnold and APM breached their respective standards of care. Plaintiffs argued Dr. Arnold did not properly advise the parents about necessary genetic testing (amniocentesis and CVS), as evidenced by her failure to document these discussions in her medical charts. As one witness stated, "if it's not in the chart note, it didn't happen." However, Dr. Arnold testified that she had an independent recollection of speaking with Mother and Father multiple times; she explained prenatal testing to them—including amniocentesis, CVS, and the limitations of the PGD test—as she does with all her patients; and the parents seemed to understand and asked appropriate questions. The defense also emphasized that further prenatal testing could not be performed until the surrogate was in the obstetrician's, not in Dr. Arnold's, care. A defense expert opined Dr. Arnold met the standard of care by advising the parents, verbally and in writing, of the risks of in vitro fertilization, and by exercising her clinical judgment to approve the egg donor after examining her, obtaining a family and medical history (including the prior birth abnormality from a prior cycle), reviewing her medical records, and performing a genetic screening test.
Father did not remember having a conversation with Dr. Arnold about additional prenatal tests, and he said they were never informed of any possible birth defects as a result of the pregnancy. Father further testified he never read the "fine print" in the surrogacy and egg donation service agreement he signed stating they were aware, and assumed the risk, that pregnancy may result in genetic and congenital abnormalities. Mother also stated she never paid attention to the contracts they signed before the child was born, she never read this language in the surrogacy and egg donation service agreement, and she was not aware of the risk that the pregnancy may result in abnormalities.
Dr. Arnold pointed to consent forms in the medical records covering these topics. For example, the consent form regarding PGD testing states: "Due to the chance of misdiagnosis, as well as the presence of types of aneuploidy for which we do not test, we recommend prenatal testing by CVS or amniocentesis. CVS and amniocentesis offer higher accuracy and lower misdiagnosis rates than PGD" and "we strongly recommend prenatal testing by chorionic villous sampling (CVS) or amniocentesis . . . . There is no guarantee that a child will be normal after IVF with PGD." Dr. Arnold's records state that she discussed PGD "in detail" with the parents. Dr. Arnold also testified that she recommended that the parents consult with a genetic counselor for the egg donor, but the parents declined.
This fact was undisputed. Dr. Arnold testified that she notified the parents when the surrogate was going to see the obstetrician and recommended that the parents attend "because it's an important consult to talk about the prenatal testing such as CVS or amniocentesis." Dr. Arnold further testified that she had a "fairly lengthy conversation" with the obstetrician, they discussed the limitations in the PGD testing, and she made sure he knew the pregnancy involved a surrogate and "he knows to call the intended parents."
As to APM, Plaintiffs argued the agency should have removed the egg donor from its database until more testing was completed, and the agency should not have given the parents the impression that the donor was safe to use. As a result, Plaintiffs argued, APM breached their contract by failing to provide a safe and healthy donor. APM argued its role was to "match" donors to intended parents; it provided access to its donor database but was not responsible for medically clearing the donors; and, although the donor's profile in this case did not mention the twin's birth abnormality, APM immediately disclosed this information when the parents first expressed an interest in the donor. The defendants' expert reproductive endocrinologist testified that APM met the standard of care in conveying this information to the parents, and it was not responsible for any medical decisions including any genetic testing of the donor.
On the issue of causation, defendants' expert reproductive endocrinologist opined that the child's condition was completely unrelated to the egg donor, and that "in the highest level of probability," the malformation observed in the twin boy and the child here were completely unrelated "random acts of nature." Defendants' expert geneticist opined that "to a reasonable degree of medical probability," the child's chromosomal deletion was de novo (i.e., unrelated to the donor), and it was a "virtual certainty" that the donor did not contribute to the child's chromosomal deletion. He also testified the twin's condition was entirely unrelated to the child's spontaneous mutation. Similarly, the defendants' expert reproductive endocrinologist testified that, within a reasonable degree of medical probability, the donor did not cause the child's condition, and there was no relationship between the child's and the twin's abnormalities.
Defense experts emphasized that these opinions were not disputed by Plaintiffs' experts. Plaintiffs' expert geneticist conceded that she could not say to a reasonable degree of medical probability that the child's condition came from the donor and further conceded that, if the donor had been sent for testing prior to egg retrieval, to a reasonable degree of medical probability that test would have been normal. Plaintiffs' expert geneticist also agreed that the twin's abnormality had no relationship to the condition of the child in this case.
The witness explained that, although neither the egg donor nor the sperm donor "had retinoblastoma in their body," there can be a "new mistake" in the egg or sperm that were combined to form the embryo. "So that's very likely when this started, not from something that the parent actually had and can pass on to the next child and the next child and, you know, has a—you can't see it going through the family. This was a new change in the egg or sperm that made the child." The witness further testified that prenatal testing (amniocentesis or CVS) of the fetus would have detected the genetic deletion that resulted in the child's cancer because the deletion was so large in this case. The defendants' expert geneticist disagreed that amniocentesis would have detected the deletion.
However, one of Plaintiffs' experts testified that the egg donor could have a "balanced translocation"—meaning she could appear completely normal and still be a carrier of the chromosomal deletion at issue here. A defense witness opined that it was extremely unlikely that such a balanced translocation occurred.
The parties' experts disagreed over the severity and extent of the child's disabilities and the impact they would have on her long-term. Plaintiffs' experts opined that the child's physical and intellectual disabilities were severe, she would never live independently, and she would require 24-hour care every day for the remainder of her life (including a personal aide in school). Defense experts opined that the child's intelligence was low average to average, and she had developmental delays, but was making good progress and had a "good prognosis for continued progressive development and independent functioning."
One of the Plaintiffs' experts acknowledged it was possible the child may be able to function independently, but "[i]t's a low probability."
To establish their damages at trial, Plaintiffs presented evidence that the child underwent extensive daily therapy—including physical therapy, occupational therapy, speech therapy (in English and Spanish), hippotherapy (horseback riding therapy), art and music therapy, and sensory therapies—and showed videos of the child undergoing therapy in her home. The child had her own chef (in addition to the parents' chef), a nutritionist, several nannies, and a nurse. There was extensive testimony describing how the parents were proactive in obtaining therapy for the child, and explaining how the child has benefited and shown great progress as a result of this therapy, the family's efforts, and the child's hard work.
After several days of deliberations, the jury returned a defense verdict reflected in three special verdict forms. First, the jury determined that Dr. Arnold was not negligent in the diagnosis or treatment of Plaintiffs. A jury poll indicated this was the vote of 10 of the 12 jurors. Second, the jury determined that APM did not fail to do something that the contract required it to do. All 12 jurors indicated this was their vote. The jury found that APM was negligent, but their negligence was not a substantial factor in causing harm to the Plaintiffs. Nine of the jurors indicated their vote was that APM was negligent, and all 12 jurors indicated their vote was that any negligence by APM was not a substantial factor in causing harm to the Plaintiffs. Third, the jury determined Plaintiffs' wrongful life damages were zero. (The jurors were not polled on this verdict form.) Judgment was entered in the defendants' favor.
DISCUSSION
I.
Failure to Remove Juror
Plaintiffs contend the trial court abused its discretion when it failed to discharge one of the jurors (Juror S.) upon their request near the end of trial.
A. Additional Factual Background
During voir dire, Juror S. disclosed she had been a special education teacher for nearly 20 years, and responded to questions from counsel for both sides.
Juror S. said she was responsible for going through "the IEP process" on a daily or weekly basis. (An "IEP" is an individualized education program. (20 U.S.C. § 1401, subd. (14); Ed. Code, § 56032.)) She expressed having "a very sincere heart" for children with special needs. When asked about awarding damages for pain and suffering, Juror S. told Plaintiffs' counsel she was "definitely . . . a little biased" when families ask her school district to pay for an alternative school placement. She explained, "I get it. But, at the same time, I work with a lot of families who don't have this opportunity to be able to ask for additional money and we have to navigate the system, and we do just fine." When defense counsel asked if Juror S., as "an advocate for special needs children," could set aside any sympathy for the child here, she said it would be "hard" but promised to do her best and be an impartial judge of the facts.
Prior to trial, the court told the jurors they could submit questions for counsel to ask the witnesses. Juror S. submitted four notes; the first came after the child's pediatrician testified:
"Wondering about [child's]
"(1) IFSP (Infant Family Support Plan) for kids with delays birth-[three years of age]
"(2) IEP (Individualized Education Plan) for kids with delays [three years of age]-(school age)
"Will we have access to these documents that outline her therapies offered by state/fed[eral] gov[ernment] and goals/progress related to her delays?
"PT, SLP, OT, Nursing Services, VT goals and Progress are outlined in an IFSP and IEP—Will these be discussed, presented?"
We assume Juror S. meant an "individualized family service plan." (Ed. Code, § 56032.)
After Plaintiffs' expert pediatric neuropsychologist described testing to rate the child's disabilities, Juror S. submitted a second note:
"Often Rating Scales for (BASC, BRIEF) and checklists (ABAS) their [sic] are versions for family and a version for teachers/therapist. [¶] I often complete these scales/checklists as a second rater. This provides a double rater and eliminates any discrepancy/bias from family and/or teacher/therapist. [¶] It provides a clearer picture of the scores. [¶] Did [plaintiffs' expert] ask any of [child's] teachers/therapists to complete the teacher version for the BASC, BRIEF and/or ABAS?"
The witness testified that he measured the child's adaptive abilities with the Adaptive Behavior Assessment System-II (ABAS-II), a standardized instrument for examining adaptive deficits, and discussed the validity of using parent responses as part of his testing. The witness also discussed the Behavior Assessment System for Children-II (BASC-II), which has a parent rating component. The witness also referred to the Behavior Rating Inventory of Executive Function (BRIEF) tests.
After receiving this note, Plaintiffs' counsel stated he had misgivings about keeping this juror on the panel. He expressed his concern she might interject her own experience by imposing what she thinks ought to have happened or should have happened independent of any evidence. The court proposed to remind the jury to "be patient, let the lawyers do their job, and remind them to base their decisions solely on the evidence." The court further stated, "I'm not singling her out. She is quite expressive, as you know." Plaintiffs' counsel replied, "Wonder why the Court would say that," and agreed with the court's proposal.
Counsel later described how other jurors might react to Juror S., saying, "Now I watch her today and I send a note back over the railing, look at that goofy grin on her face today now because someone is saying some things that she really likes. I've been along the lines telling you it's not good. Altogether she needs to have validation. She has, in my opinion, what I said a chip on her shoulder about being a public school teacher not getting the credit she feels she deserves. [¶] . . . [¶] I've actually been watching some responses to her giddiness, and she's not getting, in my opinion, a warm reception. [¶] So I don't know how that's going to play out in the back. But I suspect I have a pretty good idea." Counsel described Juror S. as a "wild card" that he did not like having on the jury, but informed the court, "I don't have any advice for you as to what to do right now."
When Plaintiffs' pediatric neurologist testified about the global reduction in the child's brain and nerve cells and her delayed motor development, Juror S. submitted a third note:
"Not sure if this is a relevant question . . .
"Question is a wonder based on my background.
"B.D.N.F.
"Brain Derived Neurotropic [sic] Factor
"Protien [sic] housed in skeletal muscles that creates/protects brain cells.
"I have learned in trainings/classes . . .
" 'The more we move our large muscles the stronger our brains can get, thanks to BDNF.'
"Is this protien [sic] (BDNF) impacted in [child's] development?"
Finally, after the child's physical therapist testified, Juror S. submitted a fourth note:
"What document or plan was used to drive/guide therapy and annual goals as an infant/toddler?
"What document or plan was used to measure annual progress and update annual or benchmark therapy goals as an infant?
"What type of infant support plan was used to hold therapists accountable?"
See footnote 11, ante.
After receiving each note, the court informed the jury it had shared the note with counsel, counsel was aware of the note's contents, and the note's question may or may not be answered. Counsel did not object to the court's handling of these four questions.
It appears counsel attempted to respond to the second note. After receiving the note, counsel asked Plaintiffs' expert pediatric neuropsychologist if she had relied exclusively on a survey that was completed by the parents in assessing the child. The expert acknowledged that one way to obtain nonbiased information is to ask current teachers or therapists (in addition to parents) about the child, but explained she did not do so here because she did not have access to other providers.
On the last day of trial, Plaintiffs' counsel raised concerns about Juror S.'s "exaggerated movements" during some of the testimony.
"During the testimony this morning by [Mother] on the economics, the movements by [Juror S.] were troubling. The looks of shock, the head turning, the looking back at the jurors and seeking agreement, perhaps. And I recognize this is probably her area, and I don't—I don't expect that she doesn't have an opinion.
"However, her opinions as a result of her experience must not infect her deliberations or that of other jurors, and I fear that it might be at this point or that it will be.
"And so this afternoon—and I just began to write things down.
"Question to [Mother] on video: 'You understand she could have been born with a birth defect?'
"[Mother] says, 'no.'
"And [Juror S.] shakes her head in disbelief.
"And so I don't expect jurors to come in here without any personal views, but her exaggerated movements are troubling."
Throughout the case, multiple experts opined that there was a chance of birth defects present in any pregnancy. This was referred to as the "background risk" of birth defects.
Plaintiffs asked the court to inquire of and admonish the juror. Defense counsel responded, "I don't think she was alone in that reaction, and I don't think there is a requirement that jurors have to suspend common sense. So I—I think there was a strong reaction to some of the claims, but I don't know that—it's certainly not juror misconduct or basis for an admonition as I see it." Plaintiffs suggested that Juror S.'s expressions and movements amounted to nonverbal communication with the other jurors and were improper.
The court indicated it was hesitant to address Juror S. immediately before sending the case to the jury, "particularly when she's been expressive throughout the whole case." Nonetheless, the court stated counsel could provide a proposed instruction for the court's consideration the following day.
The next day, Plaintiffs renewed their request for the court to inquire of Juror S. and further requested she be removed from the jury, contending she was exhibiting bias and trying to influence others with nonverbal expressions. Defense counsel disagreed with the characterization, and argued there was no basis for discharging her. The court stated Juror S.'s "[personality had] not changed since she came into this courtroom," and she was "quite expressive," further noting "I think we are speculating on plaintiffs' side in terms of what she is or is not communicating." Nonetheless, the court agreed to inquire of Juror S. individually. Outside the presence of the other jurors, the court told her:
"So it's natural as humans that we form impressions. But my statement to you and all the jurors, as I've said, is to hold off making any decisions until you hear everything, the law that I instruct in and then base your decision solely on the evidence and the law as opposed to, well, I remember this in my own personal experience and I'm going to decide this case. And your colleagues don't know anything about that. [¶] . . . [¶] And that would be not appropriate."
Juror S. admitted that, based on her own knowledge and experience, "it's been very difficult [to sit through the trial] because there are a lot of things that are posing in my head, like, why is this not happening?" However, when asked by the court, she assured that she would do her "absolute best" to base her decision solely on the evidence and the law as instructed, adding "but I am who I am" and "I . . . come with a completely different level of understanding of a lot of this topic." She then explained that she was "really . . . curious to hear [the other jurors'] impression[s] of the whole thing." Finally, she acknowledged that she "completely" understood the instruction to refrain from making decisions until she heard all the evidence and instructions, and to base her decision solely on the evidence and the law, as opposed to her own personal experience.
The court's inquiry ended with the following exchange:
"The Court: Any questions you have about what I'm saying?
"[Juror S.]: No. I completely understand where you're coming from, absolutely.
"The Court: So saying that, are you fine to go forward as that impartial juror?
"[Juror S.]: Oh, yeah. Absolutely.
"The Court: Can you be fair and impartial?
"[Juror S.]: Absolutely. Absolutely."
After Juror S. left the courtroom, Plaintiffs' counsel stated that he "didn't hear anything that would cause [him] to believe that she will not do what [the court] instructed her to do." Nonetheless, counsel repeated Plaintiffs' request to discharge the juror. The court remarked:
"In terms of conversation or nonverbal communication amongst her colleagues on the jury right now, I think we are speculating and we can take different views of what she must be saying or think she's saying. [¶] But based on my discussion with her just now, which counsel all heard, I think she's very forthright. She does have that experience, I think that it's clear in her mind that she—it would be unfair as an impartial judge to base her decision by becoming an expert witness in the jury room or being an expert witness, that's her own secret experience that the other 11 don't have, I think she contemplates that. I think she's quite intelligent, and I think she is understanding what I—what I was asking about."
The court concluded there was "no question" in its mind that Juror S. could be fair and impartial and that she would carry out her duties as a juror.
B. Governing Legal Principles
"A trial court has authority to discharge a juror upon good cause shown to the court that the juror is unable to perform his or her duty. (Code Civ. Proc., § 233; [citation].) An appellate court reviews such a determination for abuse of discretion." (Shanks v. Department of Transportation (2017) 9 Cal.App.5th 543, 550; see People v. Maury (2003) 30 Cal.4th 342, 434.) "The trial court's discretion under [Code of Civil Procedure section 233] is 'bridled to the extent' the juror's inability to perform his or her functions must appear in the record as a 'demonstrable reality,' and 'court[s] must not presume the worst' of a juror." (People v. Bowers (2001) 87 Cal.App.4th 722, 729.) "[A] court may not discharge a juror merely because he or she harbors doubts about [a party's] case." (People v. Allen and Johnson (2011) 53 Cal.4th 60, 76 (Allen and Johnson).) "The specific procedures to follow in investigating an allegation of juror misconduct are generally a matter for the trial court's discretion." (People v. Seaton (2001) 26 Cal.4th 598, 676 (Seaton) [concluding trial court did not abuse its discretion in failing to discharge juror accused of misconduct].)
C. Analysis
Plaintiffs argue it was clear from the juror's statements during voir dire, her four notes, her "expressive gestures and behavior in the jury box," and her "open resistance to confining her decision to the evidence," that she was unwilling to follow the trial court's instructions and render a fair and impartial verdict. We disagree.
During voir dire, Juror S. described her employment and responded to questions about her background and opinions. There was nothing objectionable about Juror S.'s statements that she is involved in IEP's, she cares about special needs children, and she works with families who navigate the public school system without the opportunity to "ask for additional money." Although Juror S. also said she was "definitely . . . a little biased" when families ask her school district to pay for an alternative placement, she explained that was due to her belief that the students "do just fine" in her school. Plaintiffs' counsel did not inquire further. By contrast, defense counsel asked about the juror's potential sympathy in favor of the child in this case. Ultimately, Juror S. promised to be an impartial judge of the facts, and neither side challenged her for cause. (Code Civ. Proc., § 225.) On this record, we disagree with Plaintiffs' assertion that Juror S.'s statements during voir dire made it clear she "was not going to obey the trial court's instructions or adhere to her oath."
Juror S.'s notes also did not show she would disregard her oath. The jurors were invited to submit notes for counsel's consideration. Juror S. submitted notes on topics generally related to the testimony of the witnesses: when the pediatrician testified, she wanted to know if certain plans were in place outlining treatment services for the child (an individualized family service plan or an IEP); when the neuropsychologist testified, Juror S. asked about the standardized tests that were performed and whether the child's teachers were involved in rating the child's development; when the neurologist testified, Juror S. asked about the impact on the child's brain; and when the physical therapist testified, Juror S. wanted to know about the treatment plans and goals for the child. The trial court responded the same way to each note—informing the jury the question may or may not be answered—and counsel did not object. The trial court did not abuse its discretion in failing to take further action in response to these notes.
After receiving each note, the court informed the jury the note had been shared with counsel, counsel was aware of the note's contents, and the note's question may or may not be answered. The trial court also reminded the jury to "be patient," to allow counsel to present their case, and to base their decision solely on the evidence presented at trial. The trial court later instructed the jury that if a question they asked during trial was not asked, "do not speculate as to what the answer might have been or why it was not asked. There are many legal reasons why a suggested question cannot be asked of a witness. Give the question no further consideration."
Toward the end of trial, Plaintiffs raised a concern about Juror S.'s reaction to Mother's testimony. Specifically, counsel stated that Juror S. had a "look[] of shock," and turned her head to look at other jurors "seeking agreement" during Mother's testimony "on the economics," and she shook her head in disbelief when Mother said she did not know the child could be born with a birth defect. At Plaintiffs' request, the trial court individually inquired of Juror S. On appeal, Plaintiffs highlight portions of Juror S.'s response—that it had been "very difficult" to listen to some of the testimony, that it was "difficult for [her] not to" rely on her personal experience, and that she has a "completely different level of understanding of a lot of this topic"—to support their claim that she would not follow the court's instructions or confine her decision to the evidence. But the trial court credited her testimony that she would follow the court's instructions, and we do not reweigh the court's credibility determinations. (Allen and Johnson, supra, 53 Cal.4th at p. 75 ["a reviewing court defers to the factual determinations the trial court makes when assessing the credibility of the jurors"].) Juror S. stated she understood her obligation to base her decision solely on the evidence presented and the law as instructed, she expressed her willingness to deliberate with her fellow jurors, and she said she "absolutely" understood the court's directives.
After hearing her responses and observing her demeanor, the trial court found Juror S. to be "forthright" and concluded she understood her duties and responsibilities as an impartial juror. Indeed, Plaintiffs' counsel admitted that he "didn't hear anything that would cause [him] to believe that she will not do what [the court] instructed her to do." We find no abuse of discretion in declining to dismiss Juror S. on this record. (See Seaton, supra, 26 Cal.4th at p. 676 [trial court did not abuse its discretion in failing to discharge juror where it inquired of the juror and reasonably found no misconduct]; People v. Ochoa (1998) 19 Cal.4th 353, 417 [no abuse of discretion in failing to dismiss juror where trial court questioned juror about her observations of defendant in chains outside the courthouse, and received her assurance that encounter would not affect her]; People v. Virgil (2011) 51 Cal.4th 1210, 1241 [" 'If a juror's responses [to the trial court's inquiry regarding the juror's ability to be impartial] are conflicting or equivocal, the trial court's ruling is binding on us.' "].)
Plaintiffs also mention Juror S. asked the court to seal her name on the juror questionnaire, arguing she made the request because she was concerned that families with whom she works might react negatively to any damages awarded in Plaintiffs' favor. Plaintiffs fail to note Juror S. expressed concern about her name being public if damages were not awarded as well (i.e., regardless of the case's outcome). Plaintiffs never raised this issue in the trial court as a basis for discharging Juror S. Even if they had, the outcome on appeal would not change. The trial court told all prospective jurors it would consider requests to seal portions of their questionnaires. Juror S. did not express any bias against either side in making her request; she merely expressed a desire to keep her name and responses confidential. Other jurors made similar requests.
II.
New Trial Motion Based on Juror Misconduct
Plaintiffs contend the trial court erred in denying their motion for new trial based on juror misconduct. They argue the jurors engaged in two types of misconduct: (1) interjecting external specialized knowledge and expertise into the jury's deliberations, and (2) expressing bias against the Plaintiffs and in favor of the defendants.
A. Applicable Law
Allegations of juror misconduct may form the basis for a new trial motion. (Code Civ. Proc., § 657). "A juror may commit misconduct by receiving or proffering to other jurors information about the case that was not received in evidence at trial." (In re Lucas (2004) 33 Cal.4th 682, 696 (Lucas).) "However, a distinction must be drawn between the introduction of new facts and a juror's reliance on his or her life experience when evaluating evidence." (Allen and Johnson, supra, 53 Cal.4th at p. 76.) " 'Jurors' views of the evidence . . . are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror's own claim to expertise or specialized knowledge of a matter at issue is misconduct. [Citations.]' " (Ibid., quoting In re Malone (1996) 12 Cal.4th 935, 963 (Malone).)
"Although juror misconduct raises a presumption of prejudice [citations], we determine whether an individual verdict must be reversed for jury misconduct by applying a substantial likelihood test." (In re Boyette (2013) 56 Cal.4th 866, 889.) As our Supreme Court has explained: " 'The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test.' " (Lucas, supra, 33 Cal.4th at p. 697.)
"On appeal from a ruling denying a new trial motion based on juror misconduct, we defer to the trial court's factual findings if supported by substantial evidence, and exercise our independent judgment on the issue of whether prejudice arose from the misconduct (i.e., whether there is a substantial likelihood of . . . juror bias)." (People v. Cissna (2010) 182 Cal.App.4th 1105, 1117, citing People v. Nesler (1997) 16 Cal.4th 561, 582 & fn. 5; see Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905, 910 (Vomaska) [appellate court "independently review[s] the record to determine whether misconduct, if it occurred, prevented a fair trial"].)
B. Evidentiary Rulings
Plaintiffs submitted declarations from four jurors in support of their motion for a new trial, and defendants submitted four counter-declarations. "Juror affidavits may be used to impeach a verdict if they refer to objectively ascertainable statements, conduct, conditions or events, but not subjective reasoning processes of jurors, which are likely to have influenced the verdict improperly." (Vomaska, supra, 55 Cal.App.4th at p. 910.) The trial court found that both parties' declarations offered both permissible "overt acts" testimony and impermissible "subjective reasoning processes of the individual juror" testimony. (See People v. Steele (2002) 27 Cal.4th 1230, 1261 (Steele).) The trial court noted it would consider only the permissible portions of the jurors' declarations and described the portions of each declaration it determined contained inadmissible, subjective reasoning testimony.
Other than objecting to consideration of an unsigned declaration from Juror C., Plaintiffs identify no portion of proffered evidence they contend should have been, but was not, considered, nor do they identify evidence that was wrongly considered. We will not consider the unsigned declaration. (Code Civ. Proc., § 2015.5; Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 612, 618.) But we find no abuse of discretion on the remaining evidentiary rulings (Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345 (Barboni)), and we defer to the trial court's factual findings with respect to conflicting evidence. (See Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 108 (Weathers) [" 'When an issue is tried on affidavits . . . and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed.' "]; Wagner v. Doulton (1980) 112 Cal.App.3d 945, 948-949 ["Weighing the credibility of conflicting declarations on a motion for a new trial is uniquely within the province of the trial court."]; Young v. Brunicardi (1986) 187 Cal.App.3d 1344, 1350-1351 (Young) ["The determination by a trial court of a motion for a new trial submitted on affidavits which present conflicting facts is a determination of those controverted facts in favor of the prevailing party."].)
C. Analysis
1. Interjection of Extraneous, "Expert" Information
Plaintiffs claim a new trial is warranted because jurors interjected extraneous information into jury deliberations, based on personal and professional experience. We discuss each category of alleged extraneous information below.
a. Comments Regarding Juror S.'s Professional Background and an IEP
According to Plaintiffs' juror declarations, Juror S., a special education teacher, told jurors she and other professionals (a contract specialist, a nurse, and a psychologist) were picked for the jury based on their professional expertise, and the attorneys wanted the jurors to rely on their professional expertise to arrive at a verdict. Juror S. told the jury she wanted to know whether there was an IEP developed by the child's school district, and that, if the parents did not have an IEP, she was "against" the parents' plan for taking care of the child. In her declaration, Juror S. acknowledged she asked whether the child had an IEP, but stated that "no one else ever discussed, or even used the term 'IEP' at any point during the negligence deliberations."
We agree with the trial court that Juror S.'s comments do not constitute misconduct. Plaintiffs submitted declarations stating Juror S. referred to an IEP during deliberations, she wanted to know whether there was an IEP for the child here, and she was against the parents' plan for taking care of the child without an IEP in place. These were reasonable topics of discussion given the evidence presented at trial. When Plaintiffs' expert testified about the child's future needs and the costs of those needs over her lifetime, the expert specifically referred to the need for a certified home health aide who would, in part, work with the child's parents, therapist, and school, and who "would be attending the IEPs in the public school, the individualized education plans." Plaintiffs' expert also referred to her recommendation that the child attend public schools, but that she receive two hours of tutoring per day at school. There were other references to public school placement and whether the child's needs would be met in a public school setting with special education services. On this record, we perceive no misconduct in discussions regarding an IEP, necessary services for the child, and the potential costs of available services.
Plaintiffs requested a total of over fifteen million dollars for this expert's life care plan.
Moreover, "[j]urors do not enter deliberations with their personal histories erased, in essence retaining only the experience of the trial itself. Jurors are expected to be fully functioning human beings, bringing diverse backgrounds and experiences to the matter before them. . . . It is inappropriate after-the-fact to complain about the particular background and experiences which a given juror brought to the deliberation process." (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 741-742.) Accordingly, Juror S.'s references to her professional background as a special education teacher, and her experience with IEP's, do not alter our conclusion that no juror misconduct occurred. (Malone, supra, 12 Cal.4th at p. 963 ["Jurors' views of the evidence . . . are necessarily informed by their life experiences, including their education and professional work."]; Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 819 (Iwekaogwu) ["A juror does not commit misconduct merely by describing a personal experience in the course of deliberations."].)
b. Comments Regarding the Child's Condition, Needs, and Services
Plaintiffs' declarants claimed that Juror S. commented during deliberations that her school district provided services for children with disabilities and it did not cost a lot of money like the Plaintiffs were seeking. Juror S. claimed, based on her expertise, the child would be considered to have a mid-to-moderate disability, would not need "a lot of care," and would be able to "function in the world" without a lot of special help. She was not a "severely disabled" child who would deserve a lot of money and could receive services in a " 'standard' " school system.
In her declaration, Juror S. denied making "any type of professional assessment concerning [the child's] condition," and further denied making "comments regarding [the child's] level of disability based solely upon [her] professional experience." Juror S. declared that she "knew and understood the rule prohibiting individual jurors from introducing their own professional opinions to the jury," and "throughout the course of deliberations, [she] made a concerted effort to relate all of [her] comments, observations and opinions directly to the evidence and expert opinions that were presented at trial."
Plaintiffs' declarants similarly claimed that Juror C., a nurse, stated that, in her professional opinion, the child's chromosomal deviations were not significant, which is why they were not reflected in the charting.
These allegations do not establish misconduct. "A juror may not express opinions based on asserted personal expertise that is different from or contrary to the law as the trial court stated it or to the evidence, but if we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow those jurors to use their experience in evaluating and interpreting that evidence. Moreover, during the give and take of deliberations, it is virtually impossible to divorce completely one's background from one's analysis of the evidence. We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions that attorneys draw, never refer to their background during deliberations." (Steele, supra, 27 Cal.4th at p. 1266.)
The severity of the child's disabilities was widely discussed and debated by the parties' dueling experts during trial, with defense experts opining that the child's disabilities were milder and more moderate than Plaintiffs' experts believed. The scope and duration of services that the child would need throughout her life were likewise contested, and evidence at trial was introduced as to whether or not adequate services were available to the child through the public school system. One of Plaintiffs' own expert witnesses opined that public schools and public school programs would benefit the child by integrating her into the mainstream general education program while allowing her to receive the special services she needed.
Dr. Kawai testified that she was "a proponent" of public schools and that she "want[ed] to see [the child] in a public school where they have special services. She can be pulled out for her math, her reading, you know, other classes. [¶] Her physical [education] can be adaptive PE, what we call adaptive physical education, to suit her gross motor problems and fine motor problems."
"A fine line exists between using one's background in analyzing the evidence, which is appropriate, . . . and injecting 'an opinion . . . based on specialized information obtained from outside sources,' which . . . [is] misconduct." (Steele, supra, 27 Cal.4th at p. 1266.) The jurors' comments here—which reflected the evidence presented at trial—did not cross this line. (Malone, supra, 12 Cal.4th at p. 963 ["It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial."]; cf. McDonald v. Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, 263-264 [finding misconduct when juror interjected opinions on subjects on which there had been no evidence at trial, and which contradicted the evidence presented by testifying experts].)
c. Comments Regarding Medical Charting
Similarly, comments jurors made regarding their experience with medical charting do not amount to misconduct. Plaintiffs contend that Juror O., a prison psychologist, told jurors that when he charted for patients, he did it like Dr. Arnold, and that the doctors he worked with often did not write everything down in patient charts but would rely on oral communications. Plaintiffs' declarants also averred that Juror C. stated that in her experience working in hospitals, doctors do not always write everything down in the charts. Defense declarations emphasized there were "open discussions about whether Dr. Arnold had charted her encounters correctly," and that the jurors were not giving professional opinions based on their own charting practices, but were instead commenting on the evidence introduced at trial.
As discussed ante, the sufficiency of the notes in Dr. Arnold's charts was contested at trial. Plaintiffs' experts criticized Dr. Arnold for not documenting her discussions regarding further available prenatal testing such as amniocentesis or CVS, and for not noting that she asked the family whether they had further questions on these topics. Dr. Arnold testified, however, that when discussing the limitations of PGD, she discussed with Plaintiffs, as she discusses with all her patients, details regarding amniocentesis and CVS. Various witnesses discussed the depth and scope of the information routinely included in medical charts. One witness, for example, stated he also does not chart discussions with patients regarding amniocentesis, and that there are "dramatic variations" in how physicians and fellows chart medical information.
Based on this record, jurors' comments regarding Dr. Arnold's charting practices were "within the range of permissible interpretations" of evidence produced at trial. (Steele, supra, 27 Cal.4th at p. 1266; accord People v. Loker (2008) 44 Cal.4th 691, 753 [concluding jurors' reliance on their own experiences in evaluating witness testimony did not cross the line into misconduct]; Bandana Trading Co., Inc. v. Quality Infusion Care, Inc. (2008) 164 Cal.App.4th 1440, 1447 (Bandana) [concluding juror's reference to her accounting expertise did not arise to the level of prejudicial misconduct because "[j]urors are entitled to rely on their general knowledge and experience in evaluating the evidence"].) It was not misconduct for the jurors to refer to their backgrounds and use their personal experience to evaluate the evidence presented at trial regarding Dr. Arnold's charting practices. (People v. San Nicolas (2004) 34 Cal.4th 614, 650 [" '[W]e must allow . . . jurors to use their experience in evaluating and interpreting that evidence. . . . [I]t is virtually impossible to divorce completely one's background from one's analysis of the evidence.' "].)
d. Comment Regarding Asperger's Syndrome
Plaintiffs contend that Juror S. improperly interjected her professional expertise into deliberations when she stated that Dr. Arnold appeared to have Asperger's syndrome, and that because people with Asperger's syndrome "always follow the rules," or are methodical and routine-driven, Dr. Arnold would have given full information and disclosures to the Plaintiffs and was a credible witness.
There was no evidence at trial that Dr. Arnold had Asperger's syndrome. Juror S. acknowledged saying she believed Dr. Arnold exhibited some characteristics of someone with Asperger's, but her comment was an isolated one, and her further statement that nobody discussed this reference was uncontradicted by the other jurors' declarations. Given the isolated and insignificant nature of Juror S.'s remark, we agree with the trial court's determination that it does not rise to the level of juror misconduct. (See, e.g., English v. Lin (1994) 26 Cal.App.4th 1358, 1365 [insufficient evidence of juror misconduct where declarations did not show that juror's remarks were considered as "additional evidence" by other members of the jury, as opposed to an explanation of the particular juror's "reasoning process"]; Iwekaogwu, supra, 75 Cal.App.4th at p. 819 [motion for new trial based on juror misconduct denied where juror described a personal experience but there was no evidence jurors considered that description as providing additional evidence]; accord Bandana, supra, 164 Cal.App.4th at p. 1447; see also People v. Garcia (2001) 89 Cal.App.4th 1321, 1339 [no misconduct occurred where juror told other members of the jury that he " 'had taken a course in which he had studied body language,' " and based on his observations of the defendant's body language while testifying, the defendant was lying].)
Juror S.'s declaration provides in pertinent part: "I recall making a single isolated reference to my perception that Dr. Arnold exhibited some characteristics of a person with Asperger's disease. . . . [N]o one discussed or said anything about my off-handed comment. While the jurors certainly discussed their views of Dr. Arnold's credibility as a witness, there were no discussions regarding Dr. Arnold's medical history or condition during deliberations."
2. Expressions of Bias Against Plaintiffs and In Favor of Defendants
Plaintiffs claim the jurors engaged in improper discussions demonstrating bias against Plaintiffs. According to Plaintiffs' declarants, several jurors commented during deliberations that Plaintiffs were wealthy and did not need more money—in part because they had reached a multi-million dollar settlement with another defendant—and they expressed concern regarding the impact of a damages award on defendants' businesses.
In light of the entire record, we conclude no bias was established by the jurors' references to Plaintiffs' wealth and the settlement with the obstetrician. The jury was presented with extensive evidence of Plaintiffs' wealth, mostly all of which came from Plaintiffs themselves. Both parties also repeatedly referred to the fact that Plaintiffs reached a settlement with the obstetrician who provided prenatal care to the surrogate. The jury's reference to the Plaintiffs' wealth and the settlement does not reflect bias; it merely reflects comments that might naturally be expected in response to the evidence presented.
The parents testified they paid around $150,000 to APM for egg donor and surrogacy matching services. Father commented that this amount of money "was not an object," as he was willing to be pay for "the best." Plaintiffs' requested damages referenced horseback riding (hippotherapy), music therapy, English and Spanish language speech therapy, housekeeping services, a personal nurse for the child, personal nannies (including a "nanny therapy assistant"), the child's chef (in addition to the parents' chef), a personal driver and a bodyguard for the child, a personal assistant to manage the household staff, staff benefits (including assistance with housing, food, and clothing), and a Los Angeles apartment in addition to the main family home in Peru. Although not part of their requested damages, Mother also explained that the parents travel with two to three people to assist them, and two people to assist the child. Additionally, although the videos were not provided for our review, the record indicates that Plaintiffs presented videos to the jury depicting their lifestyle. Plaintiffs' genetic expert Dr. Clark, discussing the extensive therapies and tutoring that was provided for the child, commented that the Plaintiffs "have the means to do that." Plaintiffs' counsel, in closing argument, addressed the issue of Plaintiffs' wealth, commenting, "They are lucky. They worked hard. Some people say that they've earned it, the old-fashioned way, they worked hard." Defense counsel argued that the damages requested were unreasonable—"even with their lifestyle"—and pointed out the parents had hired a nanny even before the child's birth (and had a nurse present at her birth), before knowing of any health issues.
Plaintiffs' allegation that jurors' comments reflect a preexisting bias against them is speculative and unfounded. (Tillery v. Richland (1984) 158 Cal.App.3d 957, 975-976 (Tillery).) The defense declarations emphasized that the jurors merely discussed the evidence presented on these issues. Although the Plaintiffs' declarants contended the discussions were more extensive—including statements that Plaintiffs "did not need more money" and they had "already received settlement money"—the trial court apparently resolved these conflicts in favor of the defendants, and we defer to this implied finding. (See Young, supra, 187 Cal.App.3d at pp. 1350-1351.)
In his declaration, Juror M. acknowledged stating that Plaintiffs "hypothetically, may have settled with [the obstetrician] for 'millions' and perhaps even ten million dollars," but the comment was made in passing and was not a topic of discussion. In declarations submitted by the defense, other jurors noted that several jurors' trial notes referenced a settlement between Plaintiffs and the obstetrician, but the issue of how much money Plaintiffs had received or might be able to recover did not come up during the course of substantive deliberations. The jurors were instructed that although they had "heard evidence that there was a settlement between [the obstetrician] and [Plaintiffs]," they "must not consider this settlement to determine responsibility for any harm."
Plaintiffs also contend that Juror M. improperly opined that awarding money to Plaintiffs might put defendants out of business, and they "couldn't do that." Juror M. explained the context of his statement, noting he was commenting on the applicable standard of care. Juror M. explained, "I remarked that it would not be fair to apply today's standard of care to circumstances that happened several years earlier." There was evidence presented at trial regarding the changes in technology, prenatal testing, and other industry standards since 2010. The trial court could properly credit Juror M.'s explanation. We agree this brief discussion does not demonstrate bias or amount to juror misconduct. (Barboni, supra, 210 Cal.App.4th at p. 350.) "Random phrases suspended in thin air, taken out of context, should not be the subject of a successful attack on the propriety of the verdict." (Tillery, supra, 158 Cal.App.3d at p. 977.)
Juror M. also explained the discussion spanned two or three minutes of the several days of deliberations. One of the other defense jurors stated the jury "did not spend much, if any, time discussing these comments" and another did not recall any discussion on this issue.
3. Even Assuming Misconduct, Plaintiffs Were Not Prejudiced
Even if we were to assume juror misconduct occurred, we would conclude the presumption of prejudice has been rebutted here. The presumption of prejudice arising from juror misconduct "does not mean that every insignificant infraction of the rules by a juror calls for a new trial. Where the misconduct is of such trifling nature that it could not in the nature of things have prevented either party from having a fair trial, the verdict should not be set aside." (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 507.)
The juror statements purportedly injecting "expert" opinions into deliberations—regarding an IEP, the severity of the child's condition, and Asperger's syndrome—were immaterial to the narrow factual issues the jury was asked to decide: whether Dr. Arnold breached the standard of care, and whether APM breached the parties' contract or was negligent. Similarly, statements regarding Plaintiffs' wealth, the effect of damages on defendants' business and a prior settlement with a former defendant, were immaterial to the issues decided by the jury because the jury determined that defendants were not liable and thus did not reach the issue of damages. Jurors' comments regarding their personal observations with respect to physician charting practices were consistent with the evidence presented and did not inject new or contradictory evidence into deliberations. And Juror S.'s views about why certain jurors were picked to be on the jury were irrelevant. The tangential nature and nominal seriousness of the assumed misconduct indicates that there is no probability that actual prejudice may have resulted.
The cases on which Plaintiffs rely demonstrate why a new trial is not warranted here. For example, in Weathers, a new trial was warranted in a medical negligence case against the hospital where several jurors intentionally concealed racial bias and views favoring the hospital (including personal experiences) and discussed the case with nonjurors. (Weathers, supra, 5 Cal.3d at pp. 107-110.) The evidence in support of the new trial motion affirmatively demonstrated bias in favor of the defendant hospital, based on facts completely outside the trial record. (See id. at p. 104.) In Smith v. Covell (1980) 100 Cal.App.3d 947 (Smith), a new trial on the issue of damages was warranted in an action by a plaintiff who sustained a delayed onset back injury after a car accident, where several jurors concealed anti-plaintiff and pro-defense biases during voir dire that were later revealed during deliberations, and a juror shared during deliberations his personal experience that, when his back " 'went out,' " it " 'went out right away,' " and " 'hurt right away,' " but nonetheless he was able to continue working. (Id. at pp. 952-955.) This evidence bolstered defense medical experts' testimony on a critical issue: whether the accident could have caused plaintiff's back injuries, even though she did not complain of pain within 72 hours of the accident. And it bolstered the defense position on damages: that the plaintiff's pain and disability causing her inability to work were "of psychological origin." (Id. at p. 954; see also In re Stankewitz (1985) 40 Cal.3d 391, 396, 399-400 [new trial warranted where juror, a police officer, provided his own (incorrect) legal definition of robbery that conflicted with the instructions of the court, and "vouch[ed] for its correctness on the strength of his long service as a police officer"]; Jones v. Sieve (1988) 203 Cal.App.3d 359, 365-366 [new trial warranted where jurors injected personal information and information from reference books not presented at trial, where the information injected was "not of a trifling nature but, instead, concerned the merits of the subject under deliberation by the jury" (footnote omitted)].) In each of these cases, jurors shared personal information that was different from or contradictory to the evidence or law presented at trial and that was directly relevant to the material issues in the case.
The declarations establishing misconduct in Smith were uncontradicted (Smith, supra, 100 Cal.App.3d at p. 952), unlike the present case.
In contrast, here, the record demonstrates the jurors carefully considered the evidence presented at trial, the positions and arguments of the parties, and the instructions from the court, and decided, after extensive deliberation, that Dr. Arnold was not negligent, that APM did not breach the parties' contract, and to the extent that APM was negligent, any negligence was not a substantial factor in causing the child's condition. Although we have found no misconduct or bias, we have reviewed the entire record to determine whether Plaintiffs received a fair trial, and we conclude they did. (Tillery, supra, 158 Cal.App.3d at p. 977.) Our independent examination of the record does not show a reasonable probability Plaintiffs were prejudiced by the alleged statements regarding the jurors' professional experiences, the Plaintiffs' financial condition, or the impact of a damages award. Evaluated in light of the entire record, the comments were not inherently and substantially likely to exert an improper influence on the jury, and were not indicative of actual bias by the jurors. (See Lucas, supra, 33 Cal.4th at p. 697.)
The jury was instructed that "[s]worn testimony, documents, or anything else may be admitted into evidence. You must decide what the facts are in this case from the evidence you have seen or heard during the trial. You may not consider as evidence anything that you saw or heard when court was not in session, even something done or said by one of the parties, attorneys, or witnesses." The jury was further instructed, "You [the jurors] should use your common sense and experience in deciding whether testimony is true and accurate. However, during your deliberations, do not make any statements or provide any information to other jurors based on any special training or unique personal experiences that you may have had related to matters involved in this case. What you may know or have learned through your training and experience is not a part of the evidence received in this case."
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
GUERRERO, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.