SHARON LAY, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF BRANDON LAY, DECEASED; AND FRED LAY v. CHRISTOPHER S. ADLEY, M.D.; AND PEDIATRIC CARE OF KENTUCKY, P.S.C.
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RENDERED:
OCTOBER 1, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001685-MR
SHARON LAY, INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF
BRANDON LAY, DECEASED; AND FRED LAY
APPELLANTS
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE STEVEN R. JAEGER, JUDGE
ACTION NO. 01-CI-01193
v.
CHRISTOPHER S. ADLEY, M.D.;
AND PEDIATRIC CARE OF KENTUCKY, P.S.C.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON, AND MINTON, JUDGES.
JOHNSON, JUDGE:
Sharon Lay, individually and as administratrix
of the estate of Brandon Lay, deceased, and Fred Lay,
individually, have appealed from the trial order and judgment
entered by the Kenton Circuit Court on July 7, 2003, following a
defense verdict in their medical malpractice action against the
appellees, Christopher S. Adley, M.D. and Pediatric Care of
Kentucky, P.S.C.
Having concluded that the trial court did not
abuse its discretion in denying the Lays an evidentiary hearing
or in denying their post-verdict motions for a mistrial with
respect to the issues of juror impropriety, we affirm.
On June 8, 2001, the Lays filed a medical malpractice
action against the appellees, in which they alleged, inter alia,
that Dr. Adley was negligent in his care and treatment of their
son, Brandon Lay, and that his negligence resulted in Brandon’s
death.1
The case proceeded to trial and on February 21, 2003, a
Kenton County jury returned a 9-3 verdict in favor of the
appellees.
Following the verdict, the Lays requested the trial
court to poll the jury.
Each juror subsequently confirmed his
or her vote in open court, thereby reaffirming the 9-3 verdict
in favor of the appellees.
Shortly thereafter, the Lays’
attorney, Eric Deters, approached several members of the jury as
they exited the courtroom to inquire about the verdict.
On February 27, 2003, the Lays filed a motion for a
mistrial based on allegations of juror misconduct.
In support
of their motion, the Lays submitted affidavits from several
members of the jury, namely, Sarah Brady, Ray Davis, John
Gilligan, Dan Gaddy, Darren McCulley and Michael Clark.2
In sum,
the affidavits cited various instances of alleged misconduct.
1
The Lays alleged that Pediatric Care of Kentucky was vicariously liable for
the actions of Dr. Adley under the theory of respondeat superior, or in the
alternative, that it was directly liable for his actions under a theory of
negligent supervision.
2
Brady, Gilligan and Gaddy voted for the defense. Davis, McCulley and Clark
did not sign the defense verdict. When polled, they indicated that they
voted for the plaintiffs.
-2-
More specifically, Brady stated that she “did not speak
truthfully when polled” and that she “switched [her] vote to the
defense . . . to get it over with.”
Brady further stated that
juror Diane Russell informed her during deliberations that she
had discussed issues related to the case with her daughter-inlaw, who is a nurse.
Gilligan stated that he “did not speak
truthfully when . . . polled[,]” and he claimed the jurors that
supported the appellees “convinced [him] wrongfully . . . to
change [his] vote.”
Gaddy also stated that he “was not speaking
truthfully when . . . polled.”
Davis and Clark both stated, in
separate affidavits, that Russell informed the panel during
deliberations that she had discussed issues related to the case
with her daughter-in-law.
Davis and Clark further stated they
were under the impression that Russell had spoken with her
daughter-in-law during the trial.
McCulley stated that he
discussed the result of a prior case that involved a medical
malpractice claim in which he served as a juror with Beth
Averbeck.3
McCulley further stated that he “recall[ed]
discussions among several jurors at jury breaks, prior to
deliberations, about [a] prior baby death case heard by [the
3
Averbeck served on the jury in the case sub judice. McCulley stated that
the discussion took place in an elevator at the courthouse prior to the
completion of jury selection.
-3-
same venire].”4
In addition to the aforementioned allegations of
misconduct, the Lays claimed that juror Justin Smith was not a
legal resident of Kenton County when the case was tried.5
In response to the Lays’ motion for a mistrial, the
appellees submitted affidavits from jurors Terry Legg, David
Meyer, Russell, Averbeck and Smith.6
In sum, Russell
unequivocally denied having discussed the case with her
daughter-in-law during the trial and Averbeck, Meyer, Legg and
Smith stated that they did not recall Russell ever mentioning
that she had discussed the case with her daughter-in-law.
Smith
further stated that he was a resident of Kenton County.
On March 18, 2003, the Lays filed a motion requesting
an evidentiary hearing on the issue of Russell’s alleged
conversation with her daughter-in-law.
On July 7, 2003, the
trial court entered an order denying the Lays’ motions for a
mistrial and evidentiary hearing.
The court stated that it was
not convinced “[the] parties were denied a fair trial[,]” or
that “[t]here was [a] fundamental defect in [the] proceedings
that resulted in any manifest injustice.”
On the same date, the
4
The case alluded to by McCulley in his affidavit is Wells v. St. Elizabeth
Medical Center, Case No. 01-CI-00255. The Wells case is currently pending on
appeal before a different panel of this Court. It appears from the record
that McCulley and Clark were the only jurors who served on both cases.
5
In support of this contention, the Lays submitted an affidavit from Smith’s
girlfriend, Angie Hupfer, which they claim indicates that Smith was not a
legal resident of Kenton County when the case was tried.
6
Legg, Meyer, Russell, Averbeck and Smith all voted for the defense.
-4-
trial court entered a trial order and judgment consistent with
the jury’s verdict.
On July 15, 2003, the Lays filed a motion for a new
trial, a motion to vacate judgment, and a motion for an
evidentiary hearing.
On August 8, 2003, the trial court entered
an order denying the post-judgment motions filed by the Lays.
The order reads, in relevant part, as follows:
There is an abundance of information,
accusation, innuendo, and name-calling in
the various affidavits and pleadings filed
of record. The Court concludes that a
further evidentiary hearing is not
necessary. Moreover, the Court finds no
authority or grounds that would permit
counsel for Plaintiff to depose a juror
about the manner of the jury deliberations.
Therefore, the plaintiffs’ requests for an
evidentiary hearing and to depose juror
Diane Russell are DENIED [emphasis omitted].
As in the case of Wells v. St.
Elizabeth, decided contemporaneously
herewith, the plaintiffs’ grounds for new
trial in this matter are asserted on various
and different shifting theories. The
allegations made are directly controverted
by other members of the jury panel. The
decision of the jury was confirmed by the
jury poll in open Court, and no member of
the panel at anytime had reported any
violation of the Court’s admonitions. See
Rietze v. Williams, [Ky.,] 458 S.W.2d 613
(1970). This is particularly significant
because the foreperson . . . McCulley, was
aware of the issues that had been raised in
the Wells trial, and, as stated in his
affidavit, was particularly cautious during
these deliberations. Based upon the
totality of these circumstances, the Court
concludes that no juror’s conduct had any
-5-
prejudicial effect on the deliberations or
verdict. . . . Furthermore, the Court is
not convinced that this jury rushed to
judgment. The jury deliberated for more
than two hours. The jury asked questions,
and had them answered. . . . The verdict of
this jury was supported by the evidence.
This appeal followed.
The Lays argue on appeal that the trial court abused
its discretion in denying their motion for a mistrial and
subsequent motion for an evidentiary hearing.
In support of
this contention, the Lays cite several instances of alleged
juror misconduct, which they claim prejudiced their right to a
fair trial.
Specifically, the Lays contend that: (1) several
jurors switched their vote just to end the trial; (2) Russell
and Averbeck discussed the case during their lunch breaks; (3)
Russell and Averbeck improperly allowed prejudice to influence
their votes; (4) Averbeck interfered with the deliberations of
the jury; (5) Russell discussed issues related to the case with
her daughter-in-law during the trial; (6) several jurors
discussed a prior case heard by the same jury venire, which also
involved a medial malpractice claim, during the trial; and (7)
Smith was not a “proper member of the jury.”
In addition to the
foregoing allegations of juror misconduct, the Lays claim the
trial court abused its discretion by not allowing the jury “to
review in part or in whole” the video deposition of a witness,
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Dr. Gary Utz, who testified at trial.
We will address the
issues raised by the Lays in this appeal in order.
It is well-established that a mistrial should only be
granted “if there is a manifest, urgent, or real necessity for
such action.”7 As the Supreme Court of Kentucky stated in Gould
v. Charlton Co., Inc.:8
It is universally agreed that a
mistrial is an extreme remedy and should be
resorted to only when there is a fundamental
defect in the proceedings which will result
in a manifest injustice. The occurrence
complained of must be of such character and
magnitude that a litigant will be denied a
fair and impartial trial and the prejudicial
effect can be removed in no other way.9
A trial court’s decision to deny a motion for a mistrial will
not be disturbed absent an abuse of discretion.10
“It is a long-established and generally accepted
doctrine . . . that testimony or affidavits of jurors impeaching
a verdict rendered by them will not be received where the facts
sought to be shown are such as inhere in the verdict” [footnote
omitted].11
That is to say, absent a few limited exceptions, “a
7
Burgess v. Taylor, Ky.App., 44 S.W.3d 806, 815 (2001).
8
Ky., 929 S.W.2d 734 (1996).
9
Id. at 738.
10
See, e.g., Maxie v. Commonwealth, Ky., 82 S.W.3d 860, 863 (2002).
11
75B Am.Jur.2d Trial § 1899 (1992). The origins of this rule can be traced
to Lord Mansfield’s often-cited decision in Vaise v. Delaval, 1 Term Rep. 11,
99 Eng. Rep. 944 (K.B. 1785). See 8 Wigmore, Evidence, § 2352 (McNaughton
rev. 1961). The rule that a verdict cannot be impeached by the affidavit or
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verdict cannot be impeached by the affidavit or testimony of a
juror.”12
As the United States Supreme Court noted in Tanner v.
United States:13
There is little doubt that post-verdict
investigation into juror misconduct would in
some instances lead to the invalidation of
verdicts reached after irresponsible or
improper juror behavior. It is not at all
clear, however, that the jury system could
survive such efforts to perfect it.
Allegations of juror misconduct,
incompetency, or inattentiveness, raised for
the first time days, weeks, or months after
the verdict seriously disrupt the finality
of the process. . . . Moreover, full and
frank discussion in the jury room, jurors’
willingness to return an unpopular verdict,
and the community’s trust in a system that
relies on the decisions of laypeople would
all be undermined by a barrage of postverdict scrutiny of juror conduct.14
testimony of a juror was first recognized by Kentucky in Wickliffe v. Payne,
4 Ky. 413, 418 (1809), and it has been applied with consistency thereafter,
subject to a few limited exceptions. See, e.g., Robert G. Lawson, The
Kentucky Evidence Law Handbook, § 3.15 p. 152 (3d ed. 1993)(noting that
“[t]here is a strong, deeply-rooted policy against subjecting jury verdicts
to challenge on the basis of information provided by jurors who have rendered
those verdicts. . . . The policy is reflected most directly in a universally
recognized principle that broadly prohibits jurors from impeaching the
validity of their own verdicts, a prohibition that is firmly embedded in the
case law of Kentucky”).
12
Rietze, 458 S.W.2d at 620-21 (noting that “the affidavits of
admissible to show a mistake in a verdict which had the effect
misrepresenting the jury’s intention and finding”). City Taxi
v. Gipson, Ky., 289 S.W.2d 723, 725 (1956). The affidavits of
also admissible to sustain a verdict. See, e.g., Gregorich v.
386 S.W.2d 955, 956 (1965).
13
jurors are
of
Service, Inc.
jurors are
Jones, Ky.,
483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987).
14
Id. 483 U.S. at 120-21. See also McDonald v. Pless, 238 U.S. 264, 267-68,
35 S.Ct. 783, 59 L.Ed. 1300 (1915):
But let it once be established that verdicts solemnly
made and publicly returned into court can be attacked
and set aside on the testimony of those who took part
in their publication and all verdicts could be, and
-8-
In Doyle v. Marymount Hospital, Inc.,15 this Court
acknowledged that prohibiting a juror from impeaching his or her
own verdict “may work a hardship when juror misconduct . . . can
only be shown by the testimony of a fellow juror.”16
Nevertheless, the Court reasoned that the theory behind the rule
“is that a juror [should] recognize and report any misconduct to
the trial court immediately and that to allow him to do it after
the verdict ‘would invite the very kind of mischief the rule was
designed to obviate.’”17
It is important to note that while some
jurisdictions limit the rule prohibiting a juror from impeaching
his or her verdict to statements concerning the juror’s own
conduct, in Kentucky it extends “to statements tending to show
improper acts or communications by third persons.”18
Moreover,
many would be, followed by an inquiry in the hope of
discovering something which might invalidate the
finding. Jurors would be harassed and beset by the
defeated party in an effort to secure from them
evidence of facts which might establish misconduct
sufficient to set aside a verdict. If evidence thus
secured could be thus used, the result would be to
make what was intended to be a private deliberation,
the constant subject of public investigation; to the
destruction of all frankness and freedom of
discussion and conference.
15
Ky.App., 762 S.W.2d 813 (1988).
16
Id. at 815. (noting that “the fact that the juror making the affidavit did
not concur in the verdict returned is immaterial” [footnote omitted]). 75B
Am.Jur.2d Trial § 1904 (1992).
17
Doyle, supra at 815 (quoting Rietze, 458 S.W.2d at 620).
18
Rietze, 458 S.W.2d at 620. Cf., Doyle, supra at 816-17 (noting that
affidavit of non-juror admissible to show that juror discussed issues related
to the case with affiant). Many jurisdictions permit jurors to testify on
the issue of whether extraneous information or any outside influence was
-9-
it is well-established in this jurisdiction that affidavits or
testimony from a juror concerning statements made during
deliberations as to matters not in evidence are inadmissible.19
improperly brought to bear upon the jury. Most, if not all, of the
jurisdictions that allow such testimony do so based in part on their
evidentiary rules. For example, Federal Rule of Evidence (FRE) 606(b)
provides that:
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter
or statement occurring during the course of the
jury's deliberations or to the effect of anything
upon that or any other juror’s mind or emotions as
influencing the juror to assent to or dissent from
the verdict or indictment or concerning the juror’s
mental processes in connection therewith, except that
a juror may testify on the question whether
extraneous prejudicial information was improperly
brought to the jury’s attention or whether any
outside influence was improperly brought to bear upon
any juror. Nor may a juror’s affidavit or evidence
of any statement by the juror concerning a matter
about which the juror would be precluded from
testifying be received for these purposes [emphasis
added].
Kentucky Rule of Evidence (KRE) 606, on the other hand, does not contain a
provision permitting such testimony. In fact, the Kentucky Rules of Evidence
are silent with respect to the admissibility of testimony by jurors
concerning their verdicts. As Professor Lawson notes in his treatise on
Kentucky Evidence Law, “‘[the] decision to leave the matter out of the[ ]
Rules is based on a belief that the subject matter is more closely related to
the validity of verdicts than to the admissibility of evidence.’” The
Kentucky Evidence Law Handbook at § 3.15 p. 152 (quoting Evidence Rules Study
Committee, Kentucky Rules of Evidence--Final Draft, p. 57 (Nov. 1989)).
19
See Jones v. Commonwealth, Ky., 450 S.W.2d 812, 814 (1970)(noting that
affidavit of juror in criminal case stating that fellow jurors made
statements during deliberations concerning criminal charges pending against
the defendant that were not admitted into evidence held inadmissible). See
also Barnes v. Lucas, Ky., 249 S.W.2d 778, 779 (1952)(stating that “it is
well established that the affidavit of a juror [cannot] be used to impeach
the verdict of the jury except to show that it was arrived at by lot. [RCr
10.04]. This rule applies to civil, as well as criminal, cases”); and Turner
v. Hall’s Adm’x, Ky., 252 S.W.2d 30, 34 (1952)(noting that affidavit of
jurors inadmissible to show that statements were made by other jurors during
deliberations concerning the extent of the defendant’s insurance coverage
when no evidence of insurance was admitted at trial).
-10-
The Lays reliance on the “appearance of evil”
exception to the rule prohibiting jurors from impeaching their
own verdict is misplaced.20
The trial court in the case before
us admonished the jury on numerous occasions throughout the
course of the trial.
Moreover, the jury failed to raise any
allegations of misconduct during the trial and each juror
confirmed his or her vote in open court when polled.
The trial
court is vested with “broad discretion, to determine the
prejudicial effect of juror misconduct--including the impact of
extra judicial information.”21
Given the vacillating nature of
the affidavits submitted by the Lays in support of their motion
for a mistrial, we are simply unpersuaded that the “appearance
of evil” was so great as to undermine the integrity of the
verdict returned by the jury.
Consequently, we are unable to
conclude that the trial court abused its discretion in denying
the Lays’ motion for a mistrial with respect to these issues.
The Lays further contend that juror Justin Smith was
not a resident of Kenton County at the time of the trial.
“To
obtain a new trial because of juror mendacity, ‘a party must
20
In Dillard v. Ackerman, Ky.App., 668 S.W.2d 560, 562-63 (1984), this Court
held that when the “appearance of evil” militates in favor of a new trial an
exception to the rule that a jury cannot impeach its own verdict is
warranted. The Court noted that “where the misconduct . . . was patently
improper, in view of our rule that a jury cannot impeach its own verdict, we
would be helpless to redress the wrong caused unless we had a doctrine to
apply such as the ‘appearance of evil principle.’” Id. at 562. See also
Young v. State Farm Mutual Automobile Insurance Co., Ky., 975 S.W.2d 98
(1998).
21
Gould, 929 S.W.2d at 740.
-11-
first demonstrate that a juror failed to answer honestly a
material question on voir dire, and then further show that a
correct response would have provided a valid basis for a
challenge for cause.’”22
here.
The Lays made no such demonstration
As previously discussed, Smith stated in his affidavit
that he was a resident of Kenton County.
23
The Lays failed to
introduce any evidence indicating that Smith lied about his
residency during voir dire.
The Lays also contend that the trial court abused its
discretion by failing to conduct an evidentiary hearing on the
issue of Russell’s alleged conversation with her daughter-inlaw.
We were unable to find any support for the proposition
that a trial court is required to conduct an evidentiary hearing
whenever a party raises allegations of juror misconduct
following an unfavorable verdict.
The mere fact that post-
verdict allegations of juror misconduct are raised does not
automatically create a right to a hearing.
We are of the
opinion that the decision to conduct a hearing with respect to
allegations of juror misconduct lies within the sound discretion
22
Adkins v. Commonwealth, Ky., 96 S.W.3d 779, 796 (2003)(quoting McDonough
Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78
L.Ed.2d 663 (1984)).
23
As noted above, an affidavit of a juror is admissible to sustain a verdict.
Gregorich, 386 S.W.2d at 956.
-12-
of the trial court.24
As previously discussed, Russell
unequivocally denied having discussed the case with her
daughter-in-law during the trial.
Moreover, several jurors
stated that they did not recall Russell ever mentioning that she
had discussed the case with her daughter-in-law.
While the
affidavits submitted by jurors Brady, Davis and Clark certainly
suggest otherwise, it is well-established that “[t]he trial
judge [ ] determines the issue of credibility in this area.”25
Consequently, we cannot conclude that the trial court abused its
discretion by failing to conduct an evidentiary hearing on the
issue of Russell’s alleged conversation with her daughter-inlaw.
To hold otherwise would, as the United States Supreme
Court noted long ago, “make what was intended to be a private
deliberation, the constant subject of public investigation[.]”26
Finally, the Lays claim that the trial court abused
its discretion by not allowing the jury “to review in part or in
whole” the video deposition of Dr. Gary Utz.27
During
deliberations, the jury submitted a written request to review
24
See, e.g., United States v. Sun Myung Moon, 718 F.2d 1210, 1234 (2nd Cir.
1983)(stating that “a trial court is required to hold a post-trial jury
hearing only when reasonable grounds for investigation exist. Reasonable
grounds are present when there is clear, strong, substantial and
incontrovertible evidence, that a specific, nonspeculative impropriety has
occurred which could have prejudiced the trial of a defendant” [citation
omitted]).
25
Duncan v. O’Nan, Ky., 451 S.W.2d 626, 629 (1970).
26
McDonald, 238 U.S. at 267-68.
27
Dr. Utz testified on behalf of the Lays at trial via video deposition.
-13-
the video deposition of Dr. Utz.
The record indicates that both
parties agreed to allow the jury to review Dr. Utz’s video
deposition, which lasted approximately 38 minutes, in its
entirety.28
The trial court informed the jury in writing that
Dr. Utz’s video deposition would be played “in open court in its
entirety.”
For whatever reason, the jury returned a verdict
prior to viewing Dr. Utz’s video deposition.
The record clearly
indicates that the trial court advised the jury that they could
review Dr. Utz’s video deposition in open court if they so
desired.
Consequently, we cannot conclude that the trial court
abused its discretion with respect to this issue.29
Based on the foregoing reasons, the trial order and
judgment of the Kenton Circuit Court is affirmed.
ALL CONCUR.
28
The Lays’ attorney initially suggested that the jury be provided with a
transcript of the deposition.
29
The Lays argue in their brief that the trial court erred by requiring the
jury to review Dr. Utz’s entire deposition. This argument merits little
attention as the record indicates that the Lays never objected to having the
entire deposition played for the jury. Moreover, the jury did not specify
which portions of Dr. Utz’s video deposition it wanted to review. The jury
simply asked to see the “record of Dr. Utz’s deposition.”
-14-
BRIEFS AND ORAL ARGUMENT FOR
APPELLANTS:
Eric C. Deters
Ft. Mitchell, Kentucky
BRIEF FOR APPELLEES:
Mark G. Arnzen
Mary K. Molloy
Covington, Kentucky
ORAL ARGUMENT FOR APPELLEES:
Mary K. Molloy
Covington, Kentucky
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