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Prejudice Test Indicated for Juror Misconduct

The Legal Intelligencer
January 24, 2024

By: Asher Hawkins

When allegations of jurors seeking extra judicial opinions prior to deliberations are lodged post-verdict. Pennsylvania trial courts should follow an "objective test for prejudice" in determining whether a hearing on those claims is merited, the state Supreme Court has ruled in a 6-1 decision.

In affirming the Superior Court's panel in Pratt vs. St. Christopher's Hospital, the majority concluded that a Philadelphia judge had abused his discretion by not holding a post-trial evidentiary hearing after receiving a letter from a Pratt juror alleging that fellow jurors had discussed the underlying medical malpractice action with physicians they knew personally.

According to the majority's opinion, "Juror 10" sent Philadelphia Common Pleas Judge Victor J. DiNubile Jr. a letter some two weeks after the jury in Pratt voted 10-2 in favor of the defense.

The case involves claims by Sharon Pratt and Michael Nesmith Sr. that doctors failed to recognize in their infant son Michael the presence of a rare infection that ultimately caused brain damage.

The majority noted that while Pennsylvania Rule of Evidence 606(b) prohibits jurors from testifying about their states of mind in reaching particular decisions, it does allow for juror testimony if facts were "improperly brought to the jury's attentions or [if] . any outside influence was improperly brought to bear upon any juror."

"As the Superior Court concluded," Justice Thomas G. Saylor wrote, "the circumstances of the present case squarely implicate the extraneous-information exception, since [Pratt and Nesmith] alleged inappropriate [juror] contact with outside medical professionals."

Saylor was joined by Chief Justice Ralph J. Cappy and Justices Ronald D. Castille, Russell M. Nigro, J. Michael Eakin and Max Baer. Justice Sandra Schultz Newman filed a dissenting opinion.

The plaintiff's alleged that the defendants negligently failed to timely determine that Nesmith was suffering from a subdural empyema, a collection of pus in the brain caused by infection, according to a Superior Court panel's April 2003 decision in the case.

The suit was instituted in 1991, and the defendants in the case were St. Christopher's Hospital and two of its physicians, Ronald Souder and Margaret Fisher.

According to the Superior Court opinion, Michael Jr. was 6 months old when he was hospitalized at St. Christopher's in August 1989 because of a high fever and a bulging forehead. A spinal tap was performed almost immediately after admission and physicians ruled out meningitis as the cause of the child's symptoms.

Eight days after admission, Nesmith underwent a CAT scan. It was then that the doctors discovered the subdural empyema. The plaintiff's contended at trial that because a diagnosis had not been made in time, Nesmith suffered severe brain damage and was left with neurological and physical impairments, the Superior Court opinion states.

According to the plaintiff's attorney, Bryn Mawr solo practitioner Gayle Lewis, the younger Nesmith has an IQ of approximately 68, which places him in the mental retardation range. He also suffers from fine motor difficulties on his left side and has scarring on his head.

Juror 10 was part of the second jury panel to hear Pratt at the trial level. After the first jury returned a defense verdict following a trial before Judge Paul Ribner, Pratt and Nesmith filed post-trial motions, successfully arguing that the verdict was against the weight of the evidence. The defense appealed, and the Superior Court upheld Ribner's decision, according to Lewis.

After a second trial in January 2001, the second jury returned another defense verdict after roughly eight hours' deliberations. In her letter to DiNubile two weeks later, Juror 10 asserted that some of her fellow jurors had asked friends and relatives in the medical profession as well as their own physicians whether the defendants should have performed a CAT scan on Nesmith Jr. earlier. The jurors discussed those outside opinions during deliberations, Juror 10 wrote, also stating her belief that those discussions had influenced the jury's ultimate decision.

According to Saylor's opinion, which was filed Wednesday, DiNubile had found that the "no-impeachment rule" prohibiting jurors from testifying post-trial as to their mental processes in reaching a verdict prevented him from ordering an evidentiary hearing on Juror 10's claims.

"The trial court also expressed substantial misgivings about broadening the availability of post-trial attacks upon jury verdicts." Saylor wrote.

In a 2-1 decision, the 2003 Superior Court panel in Pratt adopted a three-pronged "objective test for prejudice" first set out in the state Supreme Court's 1992 plurality decision in Carter by Carter vs. U.S. Steel Corp.

Under the Carter test, the court should consider: (1) whether the extraneous influence relates to a central issue in the case; (2) whether the extraneous influence provided the jury with information they did not have before them at trial; and (3) whether the extraneous influence was emotional or inflammatory in nature.

"In summary, in instances of post-verdict allegations of extraneous information and/or outside influence affecting jury deliberations, we adopt the objective test for prejudice as well as the associated guidelines that are set forth in the lead opinion in Carter," Saylor wrote.

In her dissent, Newman argued that a trial judge "is in a better position than the appellate court to decide the question of prejudice ."

"The vague, unsworn assertions contained in the letter of Juror No. 10 demanded no more than the review conducted by the trial judge," she wrote, adding later, "I believe that accepting the context of this letter as establishing sufficient grounds for a hearing will ultimately undermine the finality of verdicts. No verdict will be safe from challenge two weeks or two months or even two years from the date that it is entered."

Lewis said she expects the evidentiary hearing to be conducted by DiNubile, but has not been notified when that hearing will take place.

"We're not trying to preserve the jury system here, and the [Supreme Court] understands the importance of that," she said.

"There has always been a clear standard under Carter, and now, under Pratt, it's even clearer."

St. Christopher's Hospital was represented in the matter by William Sutton of Post & Schell. The defendant doctors' attorney was Charles Fitzpatrick of Mylotte David & Fitzpatrick. Neither immediately responded to calls seeking comment.

(Copies of the 29-page opinion in Pratt vs. St. Christopher's Hospital, PICS No. 05-0062, are available from The Legal Intelligencer.)

High Court Oral Arguments to Start Today in Phila.

The Legal Intelligencer
October 18, 2024

By: CHRISTOPHER LILIENTHAL

Starting today, the Pennsylvania Supreme Court is in Philadelphia for three days of oral arguments, helming a docket of nearly three times as many appeals as it heard last month in Pittsburgh.

Of the 36 cases scheduled for argument over the next three days, several are worth watching. Arguments begin each day at 9:30 a.m. in Courtroom 456 on the fourth floor of City Hall.

Times are not available for individual arguments. The justices hear them in order according to their "daily list number."

MONDAY

Pratt v. St. Christopher's Hospital, Daily List No. 6.
Issue: Whether a new trial is warranted in a Philadelphia medical malpractice case in which two jury members sought outside opinions on the expert testimony offered at trial.

A split Superior Court panel last year found that a new trial was required. "In this case," President Judge Joseph A. Del Sole wrote, "two jurors in essence sought out their own expert testimony, which necessarily sever to support one of the two sides at trial. If these allegations of misconduct are true, this action was prejudicial - and warrants a new trial."

Philadelphia Common Pleas Judge Victor J. DiNubile Jr. had found that a new trial was not warranted because jurors are not permitted to testify about how they reach their decisions and because the information obtained from outside sources was amply addressed during the trail by both sides.

Plaintiff's attorney: Gayle Lewis, the Lewis Law Firm, Bryn Mawr. Defense attorney: Charles A. Fitzpatrick, Mylotte David & Fitzpatrick, Philadelphia.

Jurors' Seeking Outside Opinions Warrants New Trial

The Legal Intelligencer
Vol 228, No. 80
April 25, 2024

By: Jennifer Batchelor
Of the Legal Staff

A new trial is warranted where it can be established that one or more jury members sought outside opinions on expert testimony offered at trial, a divided Superior Court panel has ruled.

Judge Joseph A. DelSole, joined by Judge Richard B. Klein, delivered the majority's opinion in Pratt v. St. Christopher's Hospital, while Judge James R. Cavanaugh dissented.

"In this case", DelSole wrote, "two jurors in essence sought out their own expert testimony, which necessarily served to support one of the two sides at trial. If these allegations of misconduct are true, this action was prejudicial . and warrants a new trial."

Philadelphia Common Pleas Judge Victor J. DiNubile, Jr., on the other hand, had held that a new trial was not warranted, because jurors are not permitted to testify about how they reach their decisions and because the information that was obtained from outside sources was amply addressed during the trial by both sides.

Sharon Pratt and Michael Nesmith brought suit on behalf of themselves and their child, Michael Nesmith, Jr., against St. Christopher's Hospital, Covenant House, Inc., Germantown Hospital Emergency Physicians Associates, Inc. and several doctors. The plaintiffs alleged that the defendants negligently failed to timely determine that Nesmith was suffering from a subdural empyema, a collection of puss in the brain caused by infection.

The suit was instituted in 1991, and the defendants remaining in the case include St. Christopher's Hospital and two of its physicians, Ronald Souder and Margaret Fisher. Attorney Gayle Lewis of Philadelphia, who represents the plaintiffs, said the additional defendants were released from the case.

According to the Superior Court majority, Michael Jr. was 6 months old when he was hospitalized at St. Christopher's in August 1989, because of high fever and a bulging forehead. The opinion states that a spinal tap was performed almost immediately after admission and that physicians ruled out meningitis as the cause of the child's symptoms.

Eight days after admission, Nesmith underwent at CAT Scan, DelSole said. It was then that the doctors discovered the subdural empyema.

The plaintiffs contended at trial that because a diagnosis had not been made in time, Nesmith suffered severe brain damage and was left with neurological and physical impairments, the opinion states.

Lewis told The Legal that Nesmith has an IQ of approximately 68; mental retardation is generally thought to be present in individuals with IQ scores of 70 or below. In addition, Lewis said, Nesmith suffers from fine motor difficulties on his left side and has scarring on his head.

DelSole's opinion states that negligence and causation were hotly contested by the defense.

The defendants argued that since the spinal tap showed clear spinal fluid, there was no reason to believe that the child had a subdural empyema, DelSole wrote. The defense also asserted that Nesmith showed no outward signs of such an infection.

According to the opinion, the defendants' experts testified that the condition is extremely rare. Therefore, they said, only after the child's condition deteriorated into extreme illness and lethargy -- or about the eighth day of hospitalization -- was it reasonable and within the standard of care to order a CAT Scan.

The trial resulted in a defense verdict. The plaintiffs filed post-trial motions and, according to Lewis, successfully argued that the verdict was against the weight of the evidence.

A new trial was ordered, and the trial began in January 2001, the opinion states. The second jury deliberated for about eight hours before returning with another defense verdict.

Two weeks later, the court received a letter from a juror, Pamela Toller, who said some jurors had consulted outside sources during the trial and deliberations.

"Beginning during the trial and continuing through deliberations," DelSole quoted Toller's letter as saying, "some of the jurors reported that they had spoken to various people such as relatives and friends involved in the medical profession, and their own personal physicians, to get their opinions regarding whether a CAT Scan should have been performed earlier, whether both a meningitis test and a CAT Scan should have been performed at the same time and whether this was the standard of care in 1989 .. I believe that the opinions of these jurors obtained from outside sources influenced the verdict because the jurors discussed these outside opinions during deliberations and stated that their conversations . either confirmed . or changed [their] minds."

The trial court denied the plaintiffs' motion for a new trial and request for a hearing to determine whether the defense verdict should be set aside. The plaintiffs appealed the trial court decision.

The Superior Court majority began its analysis with Pennsylvania's "no-impeachment" rule that post-verdict; a juror is incompetent to testify about what occurred during deliberations. However, DelSole wrote an exception permits post-trial testimony of extraneous influences that might have prejudiced the jury during deliberations.

Under the exception, the judge wrote, a juror may testify only as to the existence of the influence and not as to the effect the influence might have had on deliberations.

"Testimony that jurors sought outside information regarding the standard of care to be followed by health professionals and discussed it during deliberations is not testimony of the jury's reasoning process," the opinion states. "Rather it is testimony of overt conduct. . When such overt conduct is related to an issue in the case, as it was here, the potential for prejudice may arise."

Citing the Pennsylvania Supreme Court's decision in 1992 in Carter v. U.S. Steel Corp., DelSole laid out a three-part test to determine the likelihood of prejudice. Under Carter, the court should consider: (1) whether the extraneous influence relates to a central issue in the case; (2) whether the extraneous influence provided the jury with information they did not have before them at trial; and (3) whether the extraneous influence was emotional or inflammatory in nature.

Where extraneous evidence is not new, but rather was presented at trial, prejudice is not established, the judge said.

The trial court had determined that Toller's letter alone was not sufficient to grant a hearing or a new trial. DiNubile noted that, under the no-impeachment rule, Toller could not testify to more than she wrote in the letter and that other jurors, if subpoenaed, could testify only as to whether they discussed the case with fellow jurors. Toller, the trial judge said, did not know whether the discussions influenced the jurors, and the jurors could not testify about that. Therefore, DiNubile concluded, the letter was insufficient justification for disturbing the verdict.

DiNubile also reasoned that the information sought by the jurors was well covered at trial by both sides. Under current case law, the judge said, if the subject of so-called outside influence had been amply covered at trial, any additional information obtained by a juror was rendered irrelevant and moot.

The Superior Court disagreed with the trial judge's reasoning and result.

"If called to testify, the jurors would not be able to testify whether the information obtained influenced their decision," DelSole acknowledged. "However it is important to determine whether they indeed sought this information from outside sources. If the parties in fact sought this outside information, we conclude that the effect of obtaining this information resulted in prejudice warranting a new trial."

The opinion sates that in the cases cited by the trial court, prejudice did not occur from outside information since what was sought had already been presented at trial. Pratt is distinguishable because jurors were seeking others' opinion on testimony presented at trial, Del Sole said.

"The jurors, by seeking an opinion from an outside source, sought an opinion from someone whom they found to be personally credible, on the core issue in the case," the opinion states. ". Human experience dictates that an individual will more heavily weight an opinion from an individual known to them, than an opinion given by a complete stranger."

The majority remanded, instructing the trial court to determine whether jurors actually did seek outside opinion. If a hearing shows that juror misconduct did occur, the opinion states, judgment should be vacated and a new trial granted.

Charles Fitzpatrick of Mylotte David & Fitzpatrick is listed as counsel for the defendant physicians. He was out of the office and could not be reached for comment. Peter Besack of McKissock & Hoffman is listed as counsel for St. Christopher's. He is no loner with the firm, and no one at McKissock was available for comment prior to press time. The Pennsylvania Trial Lawyers Association filed an amicus brief in the case. Counsel on behalf of the association also could not be reached by press time.

In his dissent, Cavanaugh stated simply that he would affirm for the reasons set forth by DiNubile.

$4.5M for Medical Malpractice

New Jersey Law Journal
February 12, 2024

By Charles Toutant

Guida v. Fichman; A Gloucester County jury awarded $4.5 million in damages on Feb. 2 to a Turnersville woman who suffered a parylizing stroke, allegedly due to interaction between two migraine drugs.

But the plaintiff, Delores Guida, 49, will receive an undisclosed sum because attorneys in the case reached a confidential high-low agreement before the jury deliberated.

Guida sued her doctor, Herbert Fichman of Washington Township, in connection with a stroke that left her paralyzed and confined to a wheelchair, according to her attorney, Cherry Hill solo practitioner Gayle Lewis.

Guida's experts, a neurologist and a pharmacologist, alleged at trial that an interaction between two migraine medications Fichman prescribed, Imitrex and Cafergot, caused the stroke. The defense maintained that the drugs did not cause the stroke, says Lewis.

After a 10-day trial before Judge Donal Smith, the jury found Fichman was 68 percent negligent. The award included $100,000 for past medical expenses, $150,000 for lost wages, $445,000 for future lost wages, and $600,000 for pain and suffering.

The physician was represented by Jay Blumberg of Woodbury's Reynolds, Drake & Blumberg, who did not return calls requesting comment.