PATRICIA MAYS V GERALD SCHELL MDAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
October 13, 2005
Saginaw Circuit Court
LC No. 00-034067-NH
GERALD SCHELL, M.D., and SAGINAW
VALLEY NEUROSURGERY, P.C.,
Official Reported Version
ST. MARY'S MEDICAL CENTER OF
Before: Cooper, P.J., and Bandstra and Kelly, JJ.
In this medical malpractice case, defendants appeal by leave granted the trial court's order
granting plaintiff 's motion for a new trial on the basis of evidence not admitted at trial being
submitted to the jury. We vacate the order granting a new trial.
Defendant Gerald Schell, M.D., performed two back surgeries on plaintiff. Plaintiff
alleged that Dr. Schell's failure to render timely and effective treatment resulted in her paralysis.
In an approximately three-week trial, nine witnesses testified, seven of whom were experts, and
40 exhibits were admitted, including numerous medical records.
During deliberations, the jury requested plaintiff 's complete medical records, including
MRIs (magnetic resonance imaging), CTs (computerized tomography), myleograms, and a light
box. Pursuant to the court's policy, instead of providing the exhibits specifically requested by the
jury, all the trial exhibits were presented to the jury. Unfortunately, the jury was also
erroneously given defense counsel's banker's box, which contained numerous items never
admitted at trial, including: medical records; deposition transcripts, including one questioning
plaintiff 's expert about his censure by the American Association of Neurosurgeons; testimonial
history of expert witnesses; deposition summaries; memos to the file; memoranda of law,
including one on the ability of defense counsel to cross-examine on an expert's censure; some
marked exhibits; correspondence between Dr. Schell and defense counsel; correspondence
between Dr. Schell and Pronational Insurance Company; and defense counsel's notes. After the
jury rendered its verdict of no cause of action and was discharged, the trial court's clerk retrieved
the exhibits from the jury room and found that some1 of the exhibits were intermixed with the
contents of defense counsel's banker's box. The trial court contacted both parties and scheduled
a hearing to determine what should be done about the error.
At the hearing, plaintiff moved for a new trial, arguing that it was the only appropriate
remedy given the jury's exposure to the prejudicial documents in the banker's box. However,
plaintiff objected to re-calling the jury for questioning to ascertain whether the jurors looked at
the items in the banker's box. Defendants countered that the trial court was obligated to first
review the materials in the box to determine if they were substantially prejudicial to plaintiff 's
case and to poll the jurors to determine whether they even relied on any of the items in the box.
The trial court took the matter under advisement and, four months after the motion was first
heard, ultimately granted plaintiff 's motion. The trial court concluded that the unadmitted
materials in the banker's box were prejudicial and reasoned that because of the quantity and
complexity of the exhibits in the case, it would be impossible to determine with any certainty if
the jury relied on the prejudicial materials in reaching its verdict.
Defendants argue that the trial court erred when it granted plaintiff 's motion for a new
trial because plaintiff failed to establish substantial prejudice by the submission to the jury of the
unadmitted evidence. We agree. We review a trial court's decision to grant a motion for a new
trial for an abuse of discretion. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 498; 668
NW2d 402 (2003). "An abuse of discretion occurs when the decision is so violative of fact and
logic that it evidences a perversity of will, a defiance of judgment, or an exercise of passion or
"The consideration of documents that are not admitted into evidence but are submitted to
the jury does not constitute error requiring reversal unless the error operated to substantially
prejudice the party's case." Phillips v Deihm, 213 Mich App 389, 402-403; 541 NW2d 566
(1995); see also Beasley v Washington, 169 Mich App 650, 660; 427 NW2d 177 (1988); Eley v
Turner, 155 Mich App 195, 200; 399 NW2d 28 (1986). In describing what constitutes actual
prejudice under these circumstances, our Supreme Court in People v McCrea, 303 Mich 213,
266; 6 NW2d 489 (1942), quoting 16 RCL, pp 302-303), held:
It is unclear from the record what items, exactly, were intermixed.
"When by mistake or inadvertence on the part of a juryman or the court, or
even through error of judgment on the part of the court, an article has been taken
to their [sic] room by the jury which ought not to have been, then before a verdict
will be set aside for that cause, it must appear, either from examination of the
objectionable article itself, or from the facts properly presented by the bill of
exceptions, that such article must have been, in the nature of the case, or in point
of fact was, considered by the jury in arriving at the conclusion reached by their
In this case, while the record is clear that the banker's box was presented to the jury,
plaintiff, the moving party, did not prove—indeed objected to eliciting proof—that the jury even
looked at the items in the box, let alone considered any item. Under the circumstances, it is
possible that the jury simply found the evidence it requested and only reviewed that evidence
leaving the contents of the banker's box unviewed. In other words, because the record does not
reflect that the jury actually looked at, let alone relied on, the materials not admitted into
evidence, there was no basis for the trial court to conclude that plaintiff was substantially
prejudiced by the mistake. Because the trial court's ruling was based on mere speculation rather
than established fact, and because the trial court granted a new trial before it determined whether
plaintiff actually suffered any prejudice, we conclude that it abused its discretion in granting
plaintiff 's motion for a new trial.
Order for a new trial vacated.
Bandstra, J., concurred.
/s/ Kirsten Frank Kelly
/s/ Richard A. Bandstra