AGUIRRE v. DREWRY CHEMICAL CO (1984)

Plaintiffs appeal the judgment entered on the special jury verdict favorable to the defendants in plaintiffs' action for wrongful death.   For the reasons set forth below we reverse the judgment.

Factual and Procedural Background

Emilio Aguirre, a tractor driver, applied the insecticide Telone II to his employer's fields.   On one occasion a leaky hose in the tractor rig caused him to get insecticide on his skin and clothing.   He died of leukemia.   His wife Maria, individually, and as guardian for their minor children (collectively plaintiffs) sued the Drewry Chemical Company and Aguirre's employer alleging (1) Drewry supplied defective chemicals, Telone II, to his employer;  (2) Aguirre used the chemical in furtherance of his employer's business;  and (3) that as a direct result of the defect in Telone II Aguirre became sick and died.

The jury found Aguirre used Telone II in a reasonably foreseeable manner and that it was defective.   It found the defect, however, was not the proximate cause of Aguirre's death.   The issue of proximate cause was decided by a jury vote of nine to three.

Plaintiffs unsuccessfully moved for a new trial based on the alleged misconduct of juror Waldrop, a retired registered nurse and a cancer victim, for failing to disclose her bias during voir dire and discussing her views on the cause of cancer during jury deliberations.   This appeal is directed to the court's denial of that motion.

Discussion

Appellate resolution of the denial of the motion for new trial based on juror misconduct involves the application of two separate, and to some extent, competing principles.   On the one hand, the appellate court must respect the trial court's exercise of discretion and its determination of the facts on conflicting evidence.   On the other, it must independently determine whether the misconduct denied the complaining party of his constitutional right to trial by jury.   These principles have been expressed in the following manner.

 The determination of a motion for a new trial rests so completely within the discretion of the trial court that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.  (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387, 93 Cal.Rptr. 769, 482 P.2d 681.)   Where the new trial motion is based upon juror misconduct occurring during jury deliberations the court may consider declarations from the jurors provided those declarations contained admissible evidence of statements made within the jury room.  (See Evid.Code, § 1150.)   Weighing the credibility of conflicting declarations is solely within the responsibility of the trial court.  (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 109, 95 Cal.Rptr. 516, 485 P.2d 1132.)   Our reviewing function is limited to whether the order is supported by the record.   Even where issues are tried on affidavits or declarations and where there is a substantial conflict in the facts, the determination of the controverted facts by the trial court will not be disturbed.  (Id., at p. 108, 95 Cal.Rptr. 516, 485 P.2d 1132.)

 Where the declarations establish jury misconduct, a presumption of prejudice is raised and a new trial must be granted.  (People v. Pierce (1979) 24 Cal.3d 199, 207, 155 Cal.Rptr. 657, 595 P.2d 91.)   The presumption of misconduct, however, may be rebutted where the court finds on substantial evidence that no prejudice actually resulted.  (Ibid.)

In our view this latter statement in Pierce establishes a different standard than that enunciated in Andrews v. County of Orange (1982) 130 Cal.App.3d 944, 953, 182 Cal.Rptr. 176 recently cited in Tapia v. Barker (1984) 160 Cal.App.3d 761, 765, 206 Cal.Rptr. 803.  (See also Tillery v. Richland (1984) 158 Cal.App.3d 957, 970, 205 Cal.Rptr. 191.)   In Andrews the court stated that in reviewing an order denying a new trial on the ground of juror misconduct, “a reviewing court has a constitutional obligation (Cal. Const., art. VI, § 13) to review the entire record, including the evidence, and to determine independently whether the act of misconduct, if it occurred, prevented the complaining party from having a fair trial.”  (130 Cal.App.3d at p. 955, 182 Cal.Rptr. 176.)   By referring to the miscarriage of justice standard of the California Constitution, Andrews appears to be saying the test is whether absent the error is it reasonably probable a different result would have been reached, i.e., the test of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.  Pierce specifically holds, however, the Watson test does not apply to juror misconduct.  (24 Cal.3d at p. 207, 155 Cal.Rptr. 657, 595 P.2d 91.)

We believe the different and more stringent standard applied in Pierce is premised on the distinction between errors of substance and errors of procedure.   The right to trial by jury is guaranteed in both civil and criminal cases by the Sixth and Seventh Amendments to the United States Constitution.   Those Amendments reflect a fundamental due process concern with the means by which disputes are adjudicated.   The Pierce standard similarly focuses not on the end result but on the means by which it is achieved.   The question is not simply whether the ultimate result is “probably” correct.   Because the right to trial by jury guarantees litigants a fair procedure, the question is whether the juror's misconduct could have affected the outcome.   The respondent has the burden of demonstrating no possible prejudice.¹

Governed by the foregoing principles we examine the case before us.   After judgment was entered on the special verdict, plaintiffs' counsel obtained declarations from eight jurors.   Defendants' counsel obtained supplemental declarations from five of the eight jurors and additional declarations from three jurors including Waldrop.   The jurors agree that near the end of their deliberations Waldrop, who otherwise had been quiet during the deliberations, discussed the fact that she had been a cancer patient.   She said she did not wish to influence anyone's vote.   Following her comment there was a respectful silence.   There is also juror unanimity that her comments included some reference to her physicians' opinions on the cause of cancer.

 Waldrop's statements relating to her own condition occurring during jury deliberations constitute misconduct.   The jury was diverted from the evidence presented at trial to matters outside the record.   In effect, they were asked to consider Waldrop's cancer as comparable to the condition suffered by the victim and to ponder the medical cause of each.  (See Smith v. Covell (1980) 100 Cal.App.3d 947, 952–954, 161 Cal.Rptr. 377.)   Taken to its logical conclusion, this is no different than having Waldrop invite her physicians into the jury room to discuss the medical aspects of cancer and clearly constitutes misconduct.   To resolve the issue of prejudice a more detailed examination of the juror declarations is necessary.

Jurors Guzman, Navarro and Felix declared Waldrop said her doctors explained to her that physicians do not know the cause of cancer.   The declarations from the remaining jurors either make no reference to her physicians' opinions or indicate she said her doctors opined that they did not know the cause of her cancer.   Although there may be a semantic difference between Waldrop talking about the cause of cancer in a general sense and the cause of her own cancer, the connotation of both phrases is the same.   Both relate to the cause of cancer and suggest that cancer is tragically part of human experience, arbitrarily striking innocent victims of all ages at any time.   In effect Waldrop was acknowledging the cause of Aguirre's cancer was a difficult legal question but perhaps as a practical matter it was due to the vagaries of life rather than to Telone II.

Regardless of the exact words used there is no innocuous interpretation.   Waldrop's opinions on cancer drawn from her personal experiences communicated to the other jurors amounts to extrinsic evidence on a crucial issue at trial.   There are no declarations stating Waldrop's comments were neutralized by anything said by any of the other jurors.   If anything, Waldrop's nursing background giving her statements additional credibility exacerbated their impact and resultant prejudice.

 Because of this prejudice we reverse the judgment.   Since it is unfair to limit retrial to the issues of proximate cause and damages we also conclude the new trial should be on all issues.

Disposition

Judgment reversed.

FOOTNOTES

1.   Much of the confusion in this area stems from the use of the term “prejudice.”   Because the issue in juror misconduct cases is whether the misconduct was “prejudicial,” it is understandable to attempt to equate this with the Watson test for “prejudicial” error.   As we have explained, however, the Watson test focuses on the factual likelihood that a trial error affected the outcome of a case.   The Pierce standard, in contrast, evaluates the abstract tendency of a given act or event to affect the outcome.   Thus, where juror misconduct is involved, we would never review the state of the evidence and conclude that a new trial was not warranted because it is unlikely the jury would have reached a contrary result.   On the other hand, we can review a conceded act of juror misconduct and conclude it had no tendency to affect the verdict.  (See In re Winchester (1960) 53 Cal.2d 528, 534, 2 Cal.Rptr. 296, 348 P.2d 904 (several jurors violated Penal Code section 1128 by separating from remainder of jury to phone family members;  misconduct held not prejudicial because phone conversations did not concern case).)We recognize the difficult burden the Pierce standard places on parties opposing new trial motions based on juror misconduct.   Nonetheless, the Supreme Court has determined such a burden is warranted in light of the importance of a party's right to a jury trial and the legislative determination that inquiry into jurors' minds should be strictly limited.   (See Evid.Code, § 1150.)

WIENER, Associate Justice.

BROWN, P.J., and STANIFORTH, J., concur. Hearing Denied;  MOSK, J. and LUCAS, J., dissenting.