After a defense verdict in a medical malpractice case the plaintiff was granted a new trial based on racially based juror comments directed at the plaintiff’s attorney. The defendant doctor appealed the granting of the new trial. In a published opinion the Court of Appeals upheld the granting of a new trial.[1]
The case is based on the plaintiff’s allegations that the doctor violated the standard of care by failing to take an appropriate history and by failing to conduct an appropriate physical so that further testing or diagnostics might be performed to reveal that she had pneumonia instead of terminal cancer. The untreated pneumonia progressed to sepsis resulting in Ms. Turner’s hospitalization for approximately 45 days, during most of which time she was in a coma. The sepsis also resulted in the amputation of the plaintiff’s left forefoot.
Two jurors stated that during deliberations several jurors had referred to the plaintiff’s attorney, who is of Japanese ancestry, as “Mr. Kamikaze,” “Mr. Miyashi,” “Mr. Miyagi,” or “Mr. Havacoma.” One juror also reportedly stated that the defense verdict was “almost appropriate” given that it was delivered on December 7, a reference to the day in 1941 when the Japanese attacked Pearl Harbor.
The defendant raised several arguments. One was that the standard of review should be de novo because the juror misconduct was based on written affidavits. The Court of Appeals ruled that the standard of review is abuse of discretion, not de novo because the findings here were based on the trial court’s presence during the multi-day trial, not merely on declarations, affidavits, and written documents.
The Court also pointed out that it is undisputed that the words “Mr. Kamikaze,” “Mr. Miyashi,” and “Mr. Miyagi” were used by jurors in reference to the plaintiff’s attorney and there is also no dispute that the Pearl Harbor comment was made, although the parties characterize the context differently.
When determining whether misconduct occurred, the trial court must consider whether the alleged conduct inheres in the verdict. If the allegations are mere conclusions that the misconduct affected the outcome then the allegations are not to be considered. Whetherconduct inheres in the verdict is a question of law, reviewed de novo.[2] The allegations must demonstrate objective facts upon which the court may conclude jury misconduct is probable.
It is not for the juror to say what effect the remarks may have had upon his verdict, but he may state facts, and from them the court will determine what was the probable effect upon the verdict. It is for the court to say whether the remarks made by the juror in this case probably had a prejudicial effect upon the minds of the other jurors.”[3]
The Court concluded that the statements about the use of “Miyagi,” “Miyashi,””Kamikaze,” and the Pearl Harbor comment are capable of objective proof without an examination of the jurors’ thought processes and that a juror’s statement concerning the chuckling and smirking of some jurors is also capable of objective proof. The defendant also argued that since the comments were directed toward the plaintiff’s attorney, rather than the plaintiff herself, the behavior in question could not entitle the plaintiff to a new trial.
The Court rejected that argument noting that juror use of “Mr. Havacoma” demonstrates that jurors associated the plainitff’s counsel closely with his client, who was in a coma for many of the 45 days of her hospitalization, and that the Pearl Harbor comment related to the jury verdict demonstrates that the defense verdict against the plaintiff was closely associated with plaintiff’s counsel. The Court also concluded that the very reasons for the attorney-client relationship require a close association between the lawyer and his or her client.
[1] Turner v. Stime, Washington Court of Appeals Div. III, 27037-8 (12/17/2009).
[2] The Court cited Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 768, 818 P.2d 1337 (1991).
[3] Gardner v. Malone, 60 Wn.2d 836, 376 P.2d 651, 379 P.2d 918 (1962).