Opinion
No. X08 CV 000177475S
August 25, 2008
Memorandum of Decision on Plaintiffs' Motion for Mistrial Procedural/Factual Background
The plaintiffs claim substantial damages flowing from a 1998 cardiac arrest suffered by the plaintiff Nicole Hurley while seated at her desk as an eighth-grade student at Dunbar School in Bridgeport. Although she survived the cardiac arrest, Nicole has significant physical and cognitive impairments which will require intensive care and therapy for the rest of her life.
Nicole Hurley sues by her probate court-appointed conservator, Attorney Barbara Miller. Nicole's mother, Lucinda Hurley, is the other plaintiff, claiming emotional distress damages.
Nicole was born in 1984 with a congenital heart block condition that interfered with her heart's capacity to produce a safe heart rhythm. Several days after birth her physicians implanted a cardiac pacemaker manufactured by the defendant Medtronic, Inc. In 1988 and again in 1993 her pacemaker was replaced with new Medtronic pacemakers, allowing her to grow and live a normal life. In the summer of 1998 Nicole's pacemaker's elective replacement indicator signaled that the pacemaker battery was nearing the end of its life cycle and was wearing down. A representative of Medtronic, Inc., Frank Kling, was present at the Stamford office of Nicole's cardiologist Dr. Richard Landesman on September 14, 1998 to attend an examination of Nicole and to test the battery in her pacemaker. Mr. Kling confirmed that his "interrogation" of the pacemaker indicated that the battery was low and needed to be replaced as soon as possible. Another option discussed by Mr. Kling with Dr. Landesman was the lowering of the pacing rate of the pacemaker from sixty to forty paces per minute to gain more time before total battery failure. Dr. Landesman requested Mr. Kling to lower the rate to forty paces per minute, which adjustment was made by Mr. Kling, using the Medtronic computerized analyzer he had brought with him. On October 26, 1998 Nicole Hurley suffered her sudden cardiac arrest. In this action the plaintiffs are making product liability claims against Medtronic, Inc. as the manufacturer of the pacemaker.
Medtronic, Inc. is the sole remaining defendant. Claims against all other defendants were resolved prior to trial.
Following the reversal of a summary judgment for the defendant Medtronic, Inc., the case was remanded to this court for trial. The primary liability issue to be tried was whether or not Mr. Kling's advice to Dr. Landesman that he had the option of lowering the pacing rate of the pacemaker, accompanied by his actions in decreasing the pacing rate down to forty paces per minute were in derogation of, or contradicted, the warnings in the Medtronic technical manual for the pacemaker, the language of which had been approved by the United States Food and Drug Administration ("FDA") under the provisions of the Medical Device Amendments of 1976 to the Food Drug and Cosmetic Act, 21 U.S.C. § 360c et seq., which warnings were conceded by the parties to be adequate. After hearing evidence for some 26 trial days, the case was submitted to the jury on January 18, 2008 with a strict admonition that "Your verdict must be unanimous. There is no such thing as a majority vote of a jury in Connecticut." The jury was given four verdict forms: a plaintiff's verdict and a defendant's verdict on the claims of Nicole Hurley, and a plaintiff's verdict and a defendant's verdict on the claims of Lucinda Hurley. (Court Exhibits 16, 17, 18 and 19.) The jury was also given a set of Jury Interrogatories (Court Exhibit 15) consisting of eleven written questions to be answered progressively with instructions after each answer whether or not, depending on the answer, a verdict form should be signed by the foreperson and whether or not it was necessary to answer to the next interrogatory or interrogatories. The jury was also instructed on the procedure for announcing their verdict: "When you have reached a verdict, knock on the door and tell the marshal that you have reached a verdict and the marshal will alert me. When you are told to enter the courtroom, the foreperson should sit in the first seat and have the appropriate two signed verdict forms and the completed and signed jury interrogatory form. When the jury is asked if it has reached a verdict, the foreperson should respond . . ."
Hurley v. Heart Physicians, P.C., 278 Conn. 305 (2006).
As said by the Supreme Court in Hurley: "What is at issue, however, is whether, notwithstanding the FDA approved written pacemaker replacement warnings, Kling, by his oral communications to Landesman that turning down the pacemaker was an option, accompanied by his physical adjustment of the pacemaker to forty paces per minute, actually contradicted the manual, thereby vitiating and nullifying the manual's warnings, and rendered the pacemaker essentially ineffective." (Emphasis in original.) 278 Conn. at 321-22.
After approximately two hours of deliberation during which the jury sent three notes to the court, the jury announced that they had reached a verdict. The jury had answered Interrogatory No. 1 by checking the box for "No" to the question "Has the Plaintiff Proven by a fair preponderance of the evidence that Frank Kling, by his oral communications to Dr. Landesman that turning down the pacemaker was an option, accompanied by his physical adjustment of the pacemaker to forty paces per minute, actually contradicted the Technical Manual thereby vitiating and nullifying the manual's warnings?" In accordance with the instructions for a "No" answer to Interrogatory No. 1, the remaining interrogatories were not answered, and the jury entered a defendant's verdict on the claims of both Nicole Hurley and Lucinda Hurley. The completed Jury Interrogatories Form and the two defendant's verdict forms were signed and dated by the foreperson Sherry Hynes. The verdicts and the interrogatory answer were read aloud to the jury by the clerk, and then accepted and recorded by the court, following which the verdicts and the interrogatory answer were read aloud by the clerk a second time, following which the clerk inquired "ladies and gentlemen of the jury do you agree that this is your verdict?" to which the jury collectively responded "Yes." (Transcript Excerpt, January 18, 2008, 3-6.) There was no audible negative answer from any juror. There was a request by the plaintiff for individual polling of the jury, which was done, and will be described below in detail as that procedure is a ground of the instant motion for mistrial. Following that individual polling, and colloquy between the court and counsel (during which there was no request that the jury be reinstructed or sent back for further deliberation) the jury was excused. The plaintiffs then made a verbal motion for mistrial on the ground that one juror, Mr. Curry, had initially responded "no" during the individual polling to the question "Frank Curry, is this your verdict?" The plaintiffs argue, based on that initial answer, that a mistrial is necessary because the verdict was not unanimous.
The first note asked for an itemized list of exhibits. (There were 145 full exhibits admitted into evidence and sent into the jury room at the start of deliberations.) An itemized list with "i.d. only" exhibits redacted was sent in to the deliberation room. The second note asked if an adverse witness for the plaintiff can also be called as a defense witness, to which the court responded "yes." The third note asked if the jurors could take a ten-minute break, which was allowed by the court.
After the jury was excused and after court had been adjourned, there were additional discussions between Juror Curry and plaintiffs' counsel outside the courtrooms which resulted several days later in a meeting at the offices of plaintiffs' counsel at which Mr. Curry gave verbal statements to an attorney representing the plaintiffs which were reduced to a writing which Mr. Curry signed under penalty of perjury. Based on that statement (to be described in discussion, below) the plaintiffs have supplemented their motion for mistrial by adding s second ground of juror misconduct.
Discussion A. Lack of Unanimity
The claim of lack of a unanimous verdict stems from the responses of Juror Frank Curry to the individual polling of the jurors after their verdict forms and interrogatory answers had twice been read aloud to them in open court. The transcript of January 18, 2008 is quoted:
THE CLERK: Frank Curry, is this your verdict?
JUROR FRANK CURRY: I . . . What exactly is this for again, I just . . .
THE COURT: Individual polling, one by one. The question is, is this your verdict, yes or no?
THE CLERK: Frank Curry, is this your verdict?
JUROR FRANK CURRY: Ummm No, it's not my verdict. Yeah. You want us to admit it was hard. I don't . . .
THE COURT: No, No.
JUROR FRANK CURRY: I'm trying to figure out —
THE COURT: Mr. Curry, at this point —
JUROR FRANK CURRY: This is it. This is our final thing, right?
THE COURT: This is — the verdict has been —
JUROR FRANK CURRY: Read off.
THE COURT: — announced in court. And this is —
JUROR FRANK CURRY: Yes.
THE COURT: — an individual polling of jurors one by one.
JUROR FRANK CURRY: Yes.
THE COURT: You were asked collectively.
JUROR FRANK CURRY: Right
THE COURT: And now at a request one by one you're being asked. Ask the question again, please
THE CLERK: Frank Curry, is this your verdict?
JUROR FRANK CURRY: Yes.
Focusing on part of the juror's initial answer, "No, it's not my verdict," plaintiffs argue that the verdict should not have been accepted and a mistrial should have been declared because the verdict was not unanimous as required by Practice Book § 16-30 and State v. Peeler, 271 Conn. 338, 347 n. 10 (2004) ("Both this court and the United States Supreme Court have long held that the fact that a jury is unable to reach a unanimous verdict is considered the classic basis for a proper declaration of a mistrial . . ."). If that was all Mr. Curry said, there is no doubt that the jury should either have been directed to retire for further deliberations, or a mistrial should have been declared. Practice Book §§ 16-32 and 16-33. But Mr. Curry both before and after answering the clerk's question, indicated confusion about the meaning of the question "Is this your verdict?" His very first words, before answering, were "I . . . what exactly is this for again, I just . . ." After being told by the court, that it was "Individual polling, one by one" and the clerk had repeated the question, Mr. Curry did say "Ummm. No it's not my verdict" but continued without prompting or questioning to utter the possibly inconsistent phrase "Yeah" (defined in the American Heritage Dictionary, Second College Edition under this spelling and the alternate spelling of "yeh" as informal for "yes") and then attempted to make a statement and did ask questions that indicated to the court that he was uncertain as to the meaning of the question being put to him. Restarted to say "You want us to admit it was hard, I don't . . ." but the court cut off that statement because it was unresponsive to the question and seemed to be leading to a disclosure of the dialogue that took place during deliberations. Mr. Curry then asked "I'm trying to figure out — This is it, this is our final thing; right?" The court proceeded to answer his question by explaining that the jury had answered collectively that the verdict as announced and read back to them was their verdict and this was now an individual polling one by one. During that explanation Mr. Curry twice interrupted with the word "Yes." Following that explanation the court asked the clerk to repeat the question, and Mr. Curry responded "Yes" without qualification or equivocation, and did not speak again while court was in session.
Practice Book § 16-30 provides: "The verdict shall be unanimous and shall be announced by the jury in open court."
Practice Book § 16-32 provides, in part: "If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or they may be discharged."
Practice Book § 16-33 provides: "Subject to the provisions of section 16-17, [permitting the court to return a jury for a second and third reconsideration] the judicial authority shall discharge the jury after they have rendered their verdict or after a mistrial has been declared."
In fact Mr. Curry had indicated some level of confusion about the process of announcing the verdict when the six jurors first entered the courtroom and the clerk inquired whether or not the jury had reached a verdict. Although the court had clearly instructed the jury that the foreperson should respond, and the foreperson Sherry Hynes had responded "We have," Mr. Curry asked "Do we all answer?" (Transcript Excerpt 1/18/08, 2, 3.)
At this point Mr. Curry and I were apparently speaking simultaneously, and his statement is interrupted in the transcript (p. 7) by mine.
This question suggests that Mr. Curry prior to that point misconstrued the question: "Is this your verdict?" to be an inquiry whether or not he was the person in the jury room who first suggested or advocated the verdict.
The court was satisfied then and remains satisfied today that Mr. Curry's final "Yes" was his operative answer and affirmation that he joined with the other five jurors in rendering the verdict for the defendant, and the verdict was therefore unanimous.
In Tough v. Ives, 162 Conn. 274 (1972), a juror exhibited similar confusion about what was being asked during the polling process. Upon a poll of the jurors, one juror answered that her verdict was in favor of the plaintiff, contrary to the unanimous verdict in favor of the defendant that was presented to the court. Id. at 277. After further discussion with the Court, the juror indicated that she initially found for the plaintiff, but later cast her final vote for the defendant. Id. at 277-78. The Connecticut Supreme Court found that this final statement was enough to indicate the juror's assent to the verdict and therefore, the court did not err in accepting the verdict. Id. at 280.
Similarly, in State v. Gullette, 3 Conn. Cir.Ct. 153 (Circuit Court, App.Div. 1964), the court also held that a juror's confusion did not warrant a mistrial. Like Tough, the jurors in Gullette were individually polled and one juror indicated that she found the defendant not guilty. Id. The defendant moved for a mistrial, but the court asked the jury to continue deliberating. Id. at 156-57. The jury then returned four minutes later with a unanimous verdict of guilty. Id. at 157. The Appellate Division stated that "[i]f the dissent arose not so much from a vacillating state of mind as from a confusion concerning an unfamiliar procedure, then, of course, no inference can be drawn that the juror was undecided and that the verdict failed of being unanimous." Id. at 160. The court further stated that the juror's response was consistent with "the inference that the question put to her on the individual poll had, in her mind, some relation to what her private attitude had been during jury deliberations, rather than what her final decision was, which made the verdict nonunanimous." Id. at 161. Indeed, "it is the last answer that makes the verdict." Id. at 165 (emphasis added). The court therefore reasoned that there was no error in the trial court's refusal to grant a mistrial once the court understood that the verdict was unanimous. Id. at 169.
Other Connecticut courts have engaged in the same analysis. See State v. Mosca, 90 Conn. 381 (1916) (no error where the foreperson was initially confused and reported the wrong verdict, but all the jurors ultimately assented to the final, correct verdict); and Sydoriak v. Peate, Docket No. CV89-279797, Superior Court, Judicial District of New Haven at New Haven (April 26, 1994, Reynolds, J.T.R.), 1994 Conn.Super.LEXIS 1085 (Conn.Super.Ct.) (denying plaintiff's motion for a mistrial where the jury inadvertently submitted conflicting verdict forms, but confirmed their unanimous verdict on the record).
The plaintiffs also suggests in their memorandum that Mr. Curry's final answer of "yes" was the product, in part, of ". . . intense pressure and embarrassment caused by the repeated questioning in open court." (Plaintiff's Memorandum. p. 14.) The court disagrees. Mr. Curry put direct questions to the court ("What exactly is this for . . .?"; "You want us to admit . . .?"; ". . . this is our final thing, right?"). The court recognized his confusion and attempted to answer his questions objectively and calmly without opening the door to improper revelation of deliberations. The court has accepted the plaintiffs' invitation to review the recorded audio of the January 18 proceedings, and disagrees with plaintiff's assertion of "tension and pressure in the courtroom." (Plaintiffs' Memorandum, p. 2, n. 1.) There was no shouting or raising of voices. There were several occasions of simultaneous speaking, but nothing in the court's view that could be construed as pressure on Mr. Curry to answer one way or the other. Nor did the content of the court's remarks to Mr. Curry exceed permissible bounds: As said in Tough, supra:
Neutral inquiry by the trial judge as to the meaning of a juror's response is not erroneous. See United States v. Brooks, 420 F.2d 1350, 1353 (D.C. Cir.); Smith v. S F Construction Co., 62 Wash 2d 479, 383 P.2d 300; 5A Moore, Federal Practice (2nd Ed.), p. 2239; notes, 71 A.L.R.2d 640, 25 A.L.R.3d 1149. Only when such inquiry is coercive or seeks explanations, motives or information in the jury room should it be found objectionable. 162 Conn. at 280
State v. Gary, 273 Conn. 393 (2005), cited by the plaintiffs, suggests in dictum, without analysis or amplification that a verdict can be "improperly coerced . . . by the trial court . . ." Id. at 414. The court finds here that there was no improper coercion worked upon Mr. Curry by the dialogue that took place in the courtroom. The suggestion that Practice Book § 16-32 (quoted at fn. 7) allowed the court only two options — further deliberations or discharge — once Mr. Curry uttered his initial "no" is not determinative. The court had the right if not the obligation in light of Mr. Curry's questions and apparent confusion to probe further to determine whether or not he actually voted to render the verdict as announced. Tough v. Ives, supra.
B. Juror Misconduct
Aside from a brief reference to coercion by the court, addressed above, the claim of misconduct is based entirely on verbal and written statements made by Juror Frank Curry to plaintiff's counsel outside of the courtroom after the jury had been dismissed. The court has reviewed his written answers given to questions put to him by Attorney Antonio Povert, III at the offices of Koskoff and Bieder in Bridgeport on January 21, 2008 (Exhibit F and G to Plaintiff's Memorandum of Law in Support of Motion for Mistrial, dated January 23, 2008) which form the substance of the juror misconduct claims. Except for his reference to the individual polling in the courtroom, everything else Mr. Curry relates occurred in the jury room during deliberations. His claims fall into two general categories: (1) alleged time pressure he felt because two other jurors stated their intention not to return to court for another day of deliberation, even at the risk of being held in contempt of court; and (2) alleged irregularities in the deliberative process, such as not considering or reviewing certain evidence, misconstruction of the court's charge as to burden of proof, improper consideration or consideration for improper purposes of certain evidence; reliance on a fact (Medtronic's supposed net worth) not in evidence, and very little discussion of the evidence. (He does state, however, that he "succumbed to the pressure" and that he "initially" [before entering the courtroom] "agreed to the verdict".) (¶ 9 of Statement, Ex. F to memorandum of Law.)
"[W]henever there is a claim of juror misconduct, the trial court is required to conduct an inquiry to determine the nature and extent of the jury taint, if any. Although the form and scope of such an inquiry lie within a trial court's discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct. That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between." (Internal quotation marks and citation omitted.) State v. Gary, supra, 273 Conn. at 417. In this case the court has reviewed, in addition to Mr. Curry's answers to Atty. Povert's questions, affidavits of record submitted by Paralegal Terri Beatty, Atty. James Horwitz, Atty. Antonio Povert, Atty. Lori G. Cohen, and Atty. James H. Rotando, and has heard extensive oral argument on this motion and has received and reviewed extensive briefing by the plaintiff and the defendant. Both parties have stated in briefing that no further inquiry is warranted and neither party has requested an evidentiary hearing, and the court finds that an evidentiary hearing is not necessary.
The court holds that all the statements of alleged juror misconduct fall within the exclusionary rule of Practice Book § 16-34:
Upon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event, or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined. Subject to these limitations, a juror's testimony or affidavit shall be received when it concerns any misconduct which by law permits a jury to be impeached.
The type of misconduct which by law permits a jury to be impeached has been clearly defined. For the sound policy reasons to give stability to verdicts, to minimize the temptation for jury tampering, and to prevent inquisition into the arguments and reasoning of jurors, there is an application of the ". . . parol evidence rule to a jury's verdict so that their outward verdict as finally and formally made and not their prior and private intentions is taken as exclusively constituting the act." Hall v. Bergman, 106 Conn.App. 660, 776-78 (2008), citing CT Page 14274 Aillon v. State, 168 Conn. 541, 550 (1975). The workings of this rule were set forth in detail in 2005 by the Supreme Court in State v. Gary, supra:
It is well established that evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict is excludable in post verdict proceedings as immaterial . . . An affidavit to avoid the verdict may not be received to show any matter which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instructions of the court; the statements of the witnesses or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow jurors, or mistaken in his calculations or judgment, or other matters resting alone in the juror's breast . . . That rule has been aptly described as applying the parol evidence rule to a jury's verdict, so that their outward verdict as finally and formally made, and not their prior and private intentions, is taken as exclusively constituting the act . . . A jury verdict may not be impeached by an affidavit of a juror showing that he misunderstood the instructions of the court . . . it follows, therefore, that the verdict may not be impeached by an unsworn and uncorroborated statement offered by a party to the action [indicating that a juror had made statements after the verdict suggesting that the jury had misapplied the law] . . . That the verdict may have been the result of compromise or a mistake on the part of a jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters . . .
On the other hand, the rule [excluding evidence of juror's mental impressions as immaterial] does not prohibit jury testimony regarding the failure to obey certain essential formalities of juror conduct, i.e. irregularities and misconduct extraneous to the mental operations of the jury . . . Thus, any conduct in violation of [General Statutes] § 51-245 [prohibiting jurors from conversing with any person who is not a member of the jury relative to the cause under consideration before they have returned their verdict] may be established by the testimony of a juror. As early as 1866 it was recognized [t]hat affidavits or jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent, or attorney; that witnesses or others conversed as to the facts or merits of the cause, out of court and in the presence of jurors, that the verdict was determined by aggregation and average or by lot, or game of chance or other artifice or improper manner. (Citations and internal quotation marks omitted.) 273 Conn. at 415-16.
There is nothing in Mr. Curry's answers about any improper contact between a juror and any non-juror, or even any discussions among jurors outside the deliberation room, or any violation of the "essential formalities of juror conduct" extraneous to the mental operations of a juror which are permissible under our parol evidence rule. The court finds that all of Mr. Curry's claims "essentially inhere in the verdict itself" and are therefore immaterial under the rule of Aillon as amplified in Gary. Indeed Mr. Curry's claims are virtually a catalogue of the types of situations (underlined in the above quote from Gary) which are immaterial and may not be received to impeach a verdict. See, also Gordon v. Havermeyer Place Company, LLC, Docket No. CV 04-199831S, Superior Court, Judicial District of Stamford/Norwalk at Stamford (May 13, 2008, Karazin, J.) (Parol evidence rule applied to evidence that a juror had stated that he would never change his mind after a deadlocked jury had been instructed to resume deliberations).
The court has necessarily reviewed Mr. Curry's written answers (as the court must always review all proffered evidence to determine its relevance or materiality), but the court now determines that Mr. Curry's statements therein are inmaterial under the rule of Aillon and Gary and Practice Book § 16-34. The statement therefore cannot be received or considered on its merits to impeach the jury's verdict and the motion for mistrial on the ground of juror misconduct is therefore denied. (The statement shall remain of record in the nature of an exhibit for identification for purposes of appellate review.)
Order
For the reasons herein stated, the plaintiff's motion for mistrial is denied. As requested by the plaintiff the court has ordered the audio c.d. of the verdict acceptance proceedings of January 18, 2008 as provided to the court by Court Monitor Deirdre Clement to be preserved. It has been marked as Court Exhibit 25.
So Ordered.