Rene Stutzman of the Orlando Sentinel reported this week the post-trial tactic of the defendant’s medical malpractice lawyers after a $28 million verdict in Florida. The tactic: if you lose the trial, put the jurors on trial. Defense attorneys say three of six jurors lied during jury selection, and are seeking to bring the jurors back into court to explain themselves. As I explain below, I think this request, if allowed, is a blow to the integrity of the jury system we have in this country. Certainly this request would be denied under Maryland law.
The medical malpractice action in the Florida case stemmed from a minor surgery performed by Dr. Robert Bowles, an obstetrician-gynecologist, for minor incontinence. Plaintiff alleges that Dr. Bowles negligently performed the procedure and, as a result, she cannot urinate naturally. Instead, the Plaintiff must catheterize herself twice a day for the rest of her life. In other words, we are talking about incredibly serious damages in this case.
Still, Plaintiff’s attorney told reporters that he had offered to settle the case for $275,000 before trial. Instead, the doctor and his attorneys decided to roll the dice, and they got hit with a $28 million verdict. Florida has a cap on pain and suffering damages so she will not receive anything resembling $28 million in even the best case scenario. (But would you take $28 million for this woman’s injury?)
The doctor’s attorney now alleges that three jurors lied during voir dire, claiming that two jurors did not disclose that they had been involved in lawsuits and a third did not mention all of the lawsuits she had been involved with in the past. Most of these lawsuits, however, involved unpaid debts in which she was a defendant.
One of our attorneys tried a case recently where the defense lawyers in post-trial arguments claimed juror misconduct. These lawyers contended that although a voir dire question was asked in the present tense, the juror could not have possibly understood that the question was in the present tense because the question was presumably read quickly. The logic of the argument is that although the juror inadvertently answered the question honestly, she had malice in her heart because she must have understood the question in the present tense. Why? Because she could not possibly have understood the question posed “in an instant during voir dire.” In other words, the defense attorneys claimed that while she told the truth, she must have meant to lie.
I was flabbergasted. Can you imagine making this argument with a straight face? Calling this argument ridiculous seems drastically understated. The Anne Arundel County trial judge summarily rejected the argument. Defendant’s attorney actually noted an appeal but shortly thereafter agreed to pay the judgment.
O.J. Simpson’s trial brought to the forefront the issue of juror misconduct. Incredibly, ten jurors were dismissed from that trial. While certainly that trial was an exception on almost every single level, a study done in 1991 found that 24.7% of jurors in a study disclosed during post-trial interviews that they or their family members had been victims of crime concealed that information during voir dire. Jurors fail to tell the truth for a variety of reasons. Some questions appear too trivial for a complete response. Some jurors are simply intimidated by the process and are too uncomfortable to offer the full truth, particularly if it might cause them public embarrassment, as in the case of the juror in the Florida malpractice case in this post.
But the concealed information must be material and their must be a showing of juror bias in Maryland and in most states. In this case the “target” juror from the defendant’s malpractice lawyer’s standpoint was actually a defendant in the cases she withheld. There is no reason to believe that her failure to disclose made her more biased toward the Plaintiff. In fact, you might expect the opposite to be true, that she would be more inclined to the Defendant’s arguments.
In Maryland, the trial judge is given great latitude in making the call on whether juror misconduct warrants a new trial. This rule makes sense largely because there is often a dispute as to whether the act constituting the alleged misconduct actually occurred. Sifting through this kind of evidence and trying to determine whether it was material is enhanced by sitting through the trial.
Maryland judges do not, however, have the discretion to allow jurors to impeach their own verdicts. Accordingly, Maryland precludes juror testimony in support of allegations of juror misconduct and denied motions for a new trial based upon this evidence.
It seems to me this rule is designed to prevent the exact abuses in which the medical malpractice lawyers are engaging in this Florida case, harassing jurors by asking them to testify as to their own alleged misconduct.