TOLEN v. FORSTER

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Court of Appeal, Second District, Division 2, California.

Scott Thomas TOLEN, a minor, by and through his guardian ad litem Janice A. Tolen, Plaintiff and Respondent, v. Archibald F. FORSTER, M.D., Defendant and Appellant.

Civ. 54426.

Decided: December 17, 1979

Bonne, Jones, Bridges, Mueller & O'Keefe and David J. O'Keefe, Los Angeles, and Horvitz, Greines & Poster, Ellis J. Horvitz and Marc J. Poster, Encino, for defendant and appellant. Butler, Jefferson & Dan and Michael A. K. Dan, Los Angeles, for plaintiff and respondent.

Defendant appeals from an order granting plaintiff's motion for a new trial on the basis of jury misconduct.

Plaintiff Scott Thomas Tolen, a minor, through his guardian ad litem Janice A. Tolen, brought an action for damages for injuries suffered at birth and allegedly caused by the medical malpractice of defendant Archibald F. Forster. At the conclusion of the trial, the jury, by a vote of nine to three, returned a verdict in favor of defendant.

Plaintiff moved for a new trial on the grounds of insufficiency of the evidence to justify the verdict and jury misconduct. Among the juror affidavits submitted by plaintiff was one by Cecilia Chacon, who voted in favor of plaintiff. That affidavit states that during jury deliberations, juror Chacon consulted two dictionaries on the terms “negligence,” “neglect,” “dereliction,” and “malpractice;” that she wrote down the definitions; and that she discussed them with the other jurors. The definitions, as contained in the affidavit, are as follows:

Malpractice: “1. A dereliction from professional duty or a failure of professional skill or learning that results in injury, loss, or damage. 2. An injurious, negligent, or improper practice.”

Neglect: “To fail to carry out (an expected or required action) through carelessness or by intention; leave undone.”

The trial court rejected appellant's claim of insufficient evidence to support the verdict and certain allegations of irregularities in the jury proceedings but granted the motion for a new trial on the ground that by discussing dictionary definitions of “certain key words which had been previously defined by the Court”, juror Chacon had introduced into the deliberations the element of “intentional” acts on the part of the doctor, thus constituting juror misconduct. This appeal followed.

The question before us is whether the granting of a new trial was a valid exercise of the trial court's discretion or whether defendant in fact has been improperly deprived of a judgment in his favor.

DISCUSSION:

A trial court's ruling upon a motion for a new trial will not be disturbed on appeal unless there has been an abuse of discretion. (City of Pleasant Hill v. First Baptist Church, 1 Cal.App.3d 384, 428, 82 Cal.Rptr. 1.) As we said in Johns v. City of Los Angeles, 78 Cal.App.3d 983, 987, 144 Cal.Rptr. 629: “The proper exercise of trial court discretion “‘imports the exercise of discriminating judgment within the bounds of reason.””’ And, simply because evidence is in conflict does not mean that an abuse of discretion cannot be found. (Johns v. City of Los Angeles, supra, at p. 987, 144 Cal.Rptr. at p. 631.)

There is no question that where, as here, a dictionary is consulted by a juror during the jury's deliberations, such conduct goes beyond the instructions given by the court. The jury should have relied solely upon the evidence for the facts and upon the trial court's instructions for the law on the case. On the other hand, not every dereliction, however slight, by one or more jurors constitutes juror misconduct requiring a new trial. A new trial is to be granted only if a party's rights have been prejudiced by the claimed misconduct. (City of Pleasant Hill v. First Baptist Church, supra, 1 Cal.App.3d 384, 430, 82 Cal.Rptr. 1; Winningar v. Bales, 194 Cal.App.2d 273, 281, 14 Cal.Rptr. 908; Watson v. Los Angeles Transit Lines, 157 Cal.App.2d 112, 116, 320 P.2d 890.)

In the present case, plaintiff has not shown prejudice as a result of juror Chacon's consultation of the dictionary and her reading of the definitions of the terms “malpractice” and “neglect” to the other jurors. (Watson v. Los Angeles Transit Lines, supra, 157 Cal.App.2d 112, 116, 320 P.2d 890.) The only showing of prejudice attempted by plaintiff is through the affidavits of certain jurors. Affidavits of jurors may be used to impeach their verdict only in certain limited situations. Thus, they may be used to show that the verdict was decided by lot or chance, or to show that one or more of the jurors concealed bias or prejudice on voir dire. (People v. Hutchinson, 71 Cal.2d 342, 348, 78 Cal.Rptr. 196, 455 P.2d 132; Putensen v. Clay Adams, Inc., 12 Cal.App.3d 1062, 1082, 91 Cal.Rptr. 319.) Admission of jurors affidavits is also permissible for purposes defined and limited by Evidence Code section 1150, subdivision (a), which provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”

In People v. Hutchinson, supra, 71 Cal.2d at p. 349, 78 Cal.Rptr. at p. 200, 455 P.2d at p. 136: the court pointed out that section 1150 properly distinguishes between “proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved ․” Therefore, the only improper influences that may be proved under section 1150 to impeach a verdict “are those open to sight, hearing, and the other senses and thus subject to corroboration.” (People v. Hutchinson, supra, at p. 350, 78 Cal.Rptr. 196, 201, 455 P.2d 132, 137; Krouse v. Graham, 19 Cal.3d 59, 80, 137 Cal.Rptr. 863, 562 P.2d 1022; Johns v. City of Los Angeles, supra, 78 Cal.App.3d 983, 989, 144 Cal.Rptr. 629.) Section 1150's limitation to proof of objective facts “prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent.” (People v. Hutchinson, supra, 71 Cal.2d at p. 350, 78 Cal.Rptr. at p. 201, 455 P.2d at p. 137.)

The five signed juror affidavits, which were all on letterhead of plaintiff's counsel and were submitted by plaintiff in support of his motion for a new trial, state in summary that juror Chacon copied the definitions of “malpractice” and “neglect” from a dictionary; that neglect was defined by the dictionary as “to fail to carry out (an expected or required action) through carelessness or by intention,” that juror Chacon discussed these definitions with the other jurors; that the verdict for defendant was based on an absence of intentional harm, that the doctor did the best he could and an error in judgment did not constitute malpractice; that the jurors speculated as to who would have to pay for the judgment and how much of the award would go to the plaintiff's attorney; that certain jurors did not believe one of the plaintiff's expert witnesses; that the jury foreman was scheduled to go on vacation and wanted “to get out of there”; and that one juror was for the plaintiff but was swayed to vote for defendant because of “great pressure” from the other jurors.

Defendant submitted counteraffidavits of eight of the nine majority jurors. Of these eight, three came from jurors whose declarations had earlier been obtained, and submitted to the court, by plaintiff. These affidavits state in summary that one of the jurors told juror Chacon that any dictionary definitions were not pertinent to the deliberations and the case had to be decided on the facts and the court's instructions, after which the discussions focused on the court's instructions and that the ultimate decision was based on the facts and the instructions given by the court. A ninth counteraffidavit submitted by defendant was by juror Chacon, who stated that though she consulted a dictionary on the definition of “neglect” and “malpractice,” she did not show such definitions to the other jurors; that neither she nor, as far as she knew, the other jurors decided the case on the dictionary's definitions; and that she voted for plaintiff because she believed defendant to be negligent.

In the case at bench, the only objective fact offered to impeach the verdict is juror Chacon's mention to the other jurors of the definitions of “neglect” and “malpractice.” The remainder of the matters alleged in the affidavits had the effect of proving the jurors' mental or reasoning processes and subjective considerations which influenced their verdict and thus did not constitute competent evidence to impeach the verdict. (Continental Dairy Equip. Co. v. Lawrence, 17 Cal.App.3d 378, 387, 94 Cal.Rptr. 887; Putensen v. Clay Adams, Inc., supra, 12 Cal.App.3d 1062, 1083, 91 Cal.Rptr. 319.)

We conclude that the order granting a new trial was an abuse of discretion.

Plaintiff's purported cross-appeal from the judgment has been abandoned and is dismissed. The order granting the motion for a new trial is reversed.

BEACH, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.

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