Diane B. Perkins v. Alton Dauterive
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00951-COA
DIANE B. PERKINS, INDIVIDUALLY AS MOTHER
AND NEXT FRIEND OF DANIELLE DAWN
PERKINS AND STACEY RENEE PERKINS, MINORS
APPELLANT
v.
APPELLEE
DR. ALTON DAUTERIVE
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
5/8/2001
HON. STEPHEN B. SIMPSON
HANCOCK COUNTY CIRCUIT COURT
DONALD C. DORNAN
WYNN E. CLARK
ROGER T. CLARK
WILLIAM E. WHITFIELD
CIVIL - WRONGFUL DEATH
JUDGMENT ENTERED IN FAVOR OF DR.
ALTON DAUTERIVE PURSUANT TO JURY
VERDICT.
AFFIRMED - 09/21/2004
BEFORE KING, C.J., BRIDGES, P.J., AND CHANDLER, J.
CHANDLER, J., FOR THE COURT:
¶1.
Diane B. Perkins, as mother and next friend of Danielle Dawn Perkins and Stacy Renee Perkins,
sued Dr. Alton Dauterive, alleging that Dr. Dauterive had committed medical malpractice that resulted in
the wrongful death of her husband, Daniel Walter Perkins (Walter). The jury returned a verdict for Dr.
Dauterive. Perkins appeals, arguing that the trial court erroneously denied her motion for a new trial
because (1) the verdict was against the overwhelming weight of the evidence, and (2) the jury received
extraneous prejudicial information.
¶2.
Finding no error, we affirm.
FACTS
¶3.
The following facts were adduced at the trial, which occurred in May 2001 in the Circuit Court of
Hancock County. On the morning of November 25, 1994, Walter went to a fishing camp in Lakeshore,
Mississippi. At the camp, an assailant suddenly approached Walter and stabbed him once with a fishing
knife in the area of the top right shoulder. The blade of the knife was just under five inches long.
Paramedics arrived and treated Walter. Walter was bleeding from the stab wound and he was hypotensive,
meaning that his blood pressure was abnormally low. Walter was transported to the emergency room at
Hancock Medical Center and arrived at approximately 7:45 a.m.
¶4.
Dr. Sean Appleyard, the on-duty emergency room physician, examined Walter and assessed his
condition. Dr. Appleyard administered an intravenous crystalloid solution and other care, and Walter's
condition stabilized. Walter was communicative, and stated that he had been stabbed with "a twelve-inch
knife" and that the knife had "bounced off [his] collarbone." Walter reported that his right arm felt numb.
His lungs were clear. Dr. Appleyard could not feel a pulse in Walter's right arm, but he detected a slight
pulse using doppler. Dr. Appleyard concluded that Walter had most likely sustained an injury to the right
subclavian artery. Dr. Appleyard ordered x-rays of Walter's chest. Upon reviewing the x-rays, Dr.
Appleyard did not see any air or blood in Walter's chest cavity. On review of the same x-rays a few days
later, a radiologist noted the presence of fluid in Walter's chest cavity outside of the lungs.
¶5.
At around 8:15 a.m., Dr. Appleyard called Dr. Dauterive, the on-call general and vascular surgeon,
who was in the midst of performing elective surgery at Gulfport Memorial Hospital. Dr. Appleyard
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informed Dr. Dauterive that Walter had a distal clavicular stab wound with a pulseless right arm and that
he suspected a right subclavian artery injury. Dr. Dauterive told Dr. Appleyard to order blood typing and
to keep Walter stable, and advised that he would arrive at Hancock Medical as soon as he could. Dr.
Appleyard did not inquire what exact time Dr. Dauterive would be arriving, but, because Dr. Dauterive
stated his intent to come take responsibility for Walter, Dr. Appleyard assumed that Dr. Dauterive would
arrive within a reasonable time.
¶6.
Walter's family arrived at 8:45 a.m. and expressed concern about when Dr. Dauterive would come.
Dr. Appleyard called Dr. Dauterive again at 9:15 a.m. and discussed the possibility of transferring Walter
to another facility. Dr. Dauterive thought it likely that transfer would be moot because, by the time Walter
made it to a different hospital, Dr. Dauterive already would have arrived at Hancock Medical. As transfer
would take between one and one half hour, the doctors decided that it would be best to keep Walter at
Hancock Medical and await Dr. Dauterive. Dr. Dauterive said he would be there as soon as possible.
Dr. Appleyard advised the family that it would be risky to transfer Walter due to the fragility of his condition
and the time it would take to transfer him. The family agreed to leave Walter at Hancock Medical.
¶7.
Dr. Dauterive arrived between 10:30 and 11:00 a.m. He examined Walter and determined based
upon Walter's clinical presentation that Walter's arterial injury was most likely underneath the stab wound
where the knife had entered the skin, which meant that Walter had an injury to the proximal axillary artery
or to the distal right subclavian artery, necessitating surgical repair. "Proximal" indicates a location on the
body closer to the heart. "Distal" indicates a location on the body farther away from the heart. On the right
side of the body, the innominate or brachiocephalic artery comes from the aorta, and branches into the
carotid and subclavian arteries. The carotid artery travels up the neck, while the subclavian artery winds
over the first rib, underneath the clavicle, and down the shoulder and becomes the axillary artery.
3
¶8.
At 12:05 p.m., Dr. Dauterive began surgery. The goal of the surgery was to locate the injured
portion of the artery and to gain control of the artery on either end of the injury, first proximally and then
distally, and then to repair the injured portion. Dr. Dauterive made an infraclavicular incision approximately
ten centimeters proximal to the surface wound. He exposed the right subclavian artery and began exploring
the artery, moving distally. Walter's blood pressure became elevated at 12:35 p.m. At 12:50 p.m., Walter
became hypotensive. Dr. Dauterive performed an emergency median sternotomy to open the chest and
called for assistance from his partner, Dr. Leonovicz. When Dr. Dauterive opened Walter's chest, he
discovered that Walter had bled massively (exsanguinated) into his chest cavity, which had caused the drop
in his blood pressure. Dr. Dauterive discovered that the arterial injury was located more proximally than
he initially suspected; in fact, the proximal end of the subclavian artery was nearly transected directly
underneath the head of the clavicle. The reason Walter had presented to the hospital in such good
condition was that a blood clot had temporarily sealed the injured artery. During the surgery, the clot had
become dislodged, resulting in sudden exsanguination.
¶9.
Dr. Dauterive clamped the artery to control the bleeding. The surgical team transfused Walter with
packed red blood cells and installed an arterial line for more exact monitoring of blood pressure. An
emergency line for rapidly transfusing blood products was placed in Walter's saphenous vein. Dr.
Dauterive repaired the artery using a saphenous vein graft obtained from Walter's groin. Walter began
oozing blood from all exposed surfaces. At 1:45 p.m., Walter received his first transfusion of fresh frozen
plasma, and at 3:00 p.m. he was transfused with platelets obtained from another hospital. However, Walter
developed coagulopathy as a result of his exsanguination and blood replacement. Coagulopathy is a failure
of the clotting factors in the blood, resulting in excessive bleeding, and is difficult to reverse. Walter's
coagulopathy could not be reversed during the surgery. Dr. Dauterive released Walter to intensive care
4
for further transfusion of blood products in an effort to stop the coagulopathy. The coagulopathy continued,
and family members decided to take Walter off life support. He was pronounced dead at 10:18 p.m.
¶10.
Diane Perkins and her children commenced a wrongful death action against Drs. Dauterive and
Appleyard, Hancock Medical Center, and Van Meter and Associates, an entity with which Dr. Appleyard
was under contract. Hancock Medical Center was dismissed from the case prior to trial, and Perkins
settled with Dr. Appleyard and Van Meter and Associates during the trial, leaving Dr. Dauterive as the sole
defendant. After the trial, the jury voted 9-3 in favor of Dr. Dauterive.
LAW AND ANALYSIS
I. DID THE TRIAL COURT ERRONEOUSLY DENY PERKINS' MOTION FOR A NEW TRIAL
BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE
EVIDENCE?
¶11.
After the jury verdict for Dr. Dauterive, Perkins filed a motion for a new trial, arguing, inter alia,
that the verdict was against the overwhelming weight of the evidence. The trial court denied the motion.
On appeal, Perkins contends that the evidence of several breaches of the standard of care by Dr. Dauterive
was so overwhelming that the verdict was contrary to the weight of the evidence.1 We disagree and affirm
the trial court's denial of the motion for a new trial.
¶12.
The grant or denial of a motion for a new trial is a matter entrusted to the lower court's sound
discretion, and this Court will only reverse the denial of a new trial when we are convinced that the lower
court abused its discretion. Green v. Grant, 641 So. 2d 1203, 1207 (Miss. 1994). "Only when the
verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction
an unconscionable injustice will this Court disturb it on appeal." Herrington v. Spell, 692 So. 2d 93, 103
1
Perkins's motion for a new trial alternatively requested a JNOV, and challenged both the weight
and the sufficiency of the evidence. As Perkins' brief only addresses the weight of the evidence and not
the sufficiency of the evidence, we limit our appellate review to the weight of the evidence.
5
(Miss. 1997). In determining whether the verdict was against the overwhelming weight of the evidence,
we review all of the evidence as a whole, in the light most favorable to the verdict, and generally accept as
true all of the credible evidence in favor of the non-moving party. Brandon HMA, Inc. v. Bradshaw, 809
So.2d 611, 616 (¶ 13) (Miss.2001); Green, 641 So. 2d at 1203. We will reverse only if "no reasonable,
hypothetical juror could have found as the jury found." Brandon HMA Inc., 809 So. 2d at 616 (¶ 13).
¶13.
As the plaintiff, Perkins had the burden to prove the elements of medical malpractice by a
preponderance of the evidence. Phillips v. Hull, 516 So. 2d 488, 491 (Miss. 1987). To present a prima
facie case of medical malpractice, a plaintiff "(1) after establishing the doctor-patient relationship and its
attendant duty, is generally required to present expert testimony (2) identifying and articulating the requisite
standard of care and (3) establishing that the defendant physician failed to conform to the standard of care.
In addition, (4) the plaintiff must prove the physician's noncompliance with the standard of care caused the
plaintiff's injury, as well as proving (5) the extent of the plaintiff's damages." McCaffrey v. Puckett, 784
So. 2d 197, 206 (¶ 33) (Miss. 2001). Once a prima facie case is made, the defendant physician is not
required to put on expert testimony rebutting the prima facie case in order to survive a directed verdict.
Id. Rather, a prima facie case of medical malpractice creates a fact question for the jury to resolve. See
id. at 206-07 (¶ 35). Perkins argues that the evidence was such that the jury reasonably could have
concluded only that Walter died because Dr. Dauterive breached the standard of care, in other words, that
Dr. Dauterive failed to provide Walter with that degree of skill and diligence which would have been
provided by a reasonably prudent, minimally competent general and vascular surgeon in the same or similar
circumstances. See McCarty v. Mladineo, 636 So. 2d 377, 381 (Miss. 1994).
¶14.
All the surgical experts agreed that the proper surgical goal in this case was to obtain proximal and
distal control of Walter's arterial injury and then to repair the injury. The main dispute was over the correct
6
preoperative approach, specifically, whether the standard of care required Dr. Dauterive to order an
arteriogram. An arteriogram is a diagnostic procedure in which contrast dye is injected into an artery to
reveal blood flow in the artery. Perkins's expert, Dr. Stephen Smith, testified that an arteriogram would
have shown the portion of the artery with good blood flow and enabled Dr. Dauterive to quickly establish
proximal control during the surgery. Dr. Smith stated that, had Dr. Dauterive ordered an arteriogram, he
would have known the exact location of Walter's arterial injury, would have made a different first incision,
and would have accessed and controlled the transected artery before the blood clot became dislodged.
¶15.
The experts generally agreed that the correct preoperative approach was dictated by the location
of the entrance wound. If the entrance wound was located within one of the three surgical zones of the
neck, then the standard of care required Dr. Dauterive to order a preoperative arteriogram in order to
determine the correct first incision. But if the entrance wound was not in a surgical zone, then an
arteriogram could be ordered at the surgeon's discretion. The surgical experts and Dr. Dauterive agreed
the injury that was ultimately discovered to Walter's proximal subclavian artery was in surgical zone 1, but
there was also agreement that the zone classifications are used for entrance wounds, not what is
consequently discovered during surgery. There was conflicting testimony about the boundaries of the
surgical zones of the neck and about where the entrance wound was located on Walter's body. Dr. Smith
opined that an arteriogram was required because Walter's entrance wound was in the lowermost surgical
zone of the neck, known as zone 1.
¶16.
Dr. Dauterive testified that his assessment and treatment of Walter had been informed by his clinical
judgment and experience. Dr. Dauterive stated that, though an arteriogram would have been necessary
had the entrance wound been in zone 1, Walter's entrance wound was over the distal one third of the
clavicle and was outside of zone 1. Dr. Dauterive said that Walter's pulseless right arm was a hard sign of
7
vascular injury and, in his judgment, he needed to go straight to surgery without an arteriogram. He said
that an arteriogram would have taken between one and two hours. Dr. Dauterive stated that it was his
clinical judgment that conducting an arteriogram would have been too dangerous given Walter's arterial
injury.
¶17.
Dr. Smith testified that Walter's entrance wound was in zone 1 because zone 1 extends vertically
from the cricoid cartilage down to the clavicles and horizontally to the distal ends of the clavicles. There
was other medical evidence that zone 1 is not commonly thought to extend all the way to the clavicles and
Dr. Smith admitted that most medical texts do not definitively depict or discuss any lateral boundaries of
the zones of the neck. Dr. Smith stated that accepted surgical protocol required a hemodynamically stable
patient like Walter with an injury in zone 1 and hard signs of vascular injury to receive an arteriogram prior
to surgery. He stated that there was only a one to two percent chance of a complication from an
arteriogram in Walter's case, and only a small risk that Walter's blood pressure would rise during the
procedure and cause the blood clot to dislodge. Dr. Smith stated that Dr. Dauterive's treatment of Walter
breached the standard of care and caused or contributed to Walter's death.
¶18.
Dr. Dauterive's expert, Dr. Kennan Buechter, stated that Dr. Dauterive did not breach the standard
of care in treating Walter and that his treatment did not cause or contribute to Walter's death. He stated
that Walter's clinical picture revealed no sign of the proximal subclavian artery injury that was ultimately
discovered, and that it was reasonable for Dr. Dauterive to conclude that Walter had suffered a proximal
axillary artery or distal subclavian artery injury. He stated that, though an x-ray was later determined to
have depicted fluid outside the lung field, that finding did not rule out the injury suspected by Dr. Dauterive.
Dr. Buechter stated that Dr. Dauterive's first incision was a reasonable approach. He said that the entrance
8
wound was on the distal shoulder, outside of zone 1, and, therefore, no arteriogram was required. Dr.
Buechter stated that, had Walter been his own patient, he would not have ordered an arteriogram.
¶19.
Perkins offered the autopsy report as evidence of the location of the entrance wound. The report
contained a drawing of a body with marks indicating the injuries and incisions found on Walter's body. The
drawing tended to show that the entrance wound of the knife was located on or very near Walter's neck,
supporting the argument that the entrance wound was in zone 1. During his testimony for Dr. Dauterive,
Dr. Buechter pointed out that the position of the entrance wound on the drawing conflicted with the portion
of the autopsy report dictated by the pathologist, which described the injury as being on the "right
shouldertop," and supported Dr. Buechter's opinion that the entrance wound was not in zone 1.
¶20.
Perkins attacked several other aspects of Dr. Dauterive's performance, and Dr. Dauterive offered
evidence challenging these contentions. Dr. Smith posited that Walter's outcome would have been different
had he been given plasma and platelets, which are clotting factors, earlier in the surgery. Dr. Dauterive
testified that he did not need to administer clotting factors any earlier because clotting would have interfered
with his repair of the transected artery.
¶21.
Dr. Smith testified that the hours Walter spent in the emergency room before Dr. Dauterive arrived
caused or contributed to his death because he did not receive definitive care quickly enough. Dr. Smith
opined that Walter should have been transferred. There was evidence that Dr. Dauterive did not breach
the standard of care regarding his arrival time and fact that Walter was not transferred. Dr. Appleyard
testified that Hancock Medical was a level four trauma center, which meant that it did not have trauma
surgeons immediately available. Perkins's emergency medicine expert, Dr. Guzzardi, testified that any delay
in Walter's care was attributable to Dr. Appleyard, who, as the emergency room physician, had a duty to
coordinate timely care for Walter.
9
¶22.
Clearly, Perkins and Dr. Dauterive put on conflicting credible evidence regarding the standards of
care applicable to Walter's treatment and whether or not Dr. Dauterive's performance comported with the
standards of care. It is the province of the jury to evaluate the credibility of the witnesses and to resolve
evidentiary conflicts by accepting or rejecting evidence. Brandon HMA, 809 So.2d at 617 (¶ 20). This
Court declines Perkins's invitation to examine the knife with which Walter was stabbed and attempt to
determine whether Dr. Dauterive's defense theory is physically plausible; that issue requires complex
analysis of the medical evidence and is a classic example of a question rightfully entrusted to the jury. We
find that the evidence presented in this case was such that a reasonable juror could conclude that Perkins
failed to prove Dr. Dauterive committed malpractice in his treatment of Walter. The verdict was not against
the overwhelming weight of the evidence, and the trial court did not abuse its discretion in denying Perkins
a new trial.
II. DID THE TRIAL COURT ERRONEOUSLY DENY PERKINS' MOTION FOR A NEW TRIAL
BECAUSE THE JURY RECEIVED EXTRANEOUS, PREJUDICIAL INFORMATION?
¶23.
Perkins also moved for a new trial on the ground of jury misconduct. Perkins alleged that, in a
post-verdict interview, a juror in the minority alleged that a majority juror made a prejudicial statement to
the jurors during deliberations. Perkins submitted an affidavit of the minority juror, Joe Bourgeois, stating:
A lady who said she was a nurse also served on the jury and sat on the back row in the
jury box. During the last approximately twenty minutes of the jury deliberations, the nurse
said that she was familiar with what doctors go through and she stated as a fact to the other
jury members that if we returned a verdict for the Plaintiffs that the doctor would lose his
medical license or have his license suspended. She emphasized for that reason the jury
should vote for the Defendant. The 9-3 vote for the Defendant was taken shortly after the
nurse made this statement to the jury.
¶24.
Perkins contended that certain questions posited by the jury to the trial court during deliberations
supported the conclusion that the nurse's statement was the impetus for the defense verdict. The case was
10
submitted to the jury at 12:50 p.m. At 2:00 p.m., the jury sent a note asking whether they could consider
Dr. Appleyard's potential responsibility; at 2:45 p.m., the jury asked how much insurance money Perkins
received, the amount of the Perkins's attorneys' fees, and whether Perkins could recover damages if they
ruled for Dr. Dauterive. The court responded to these notes by instructing the jury that it should consider
Dr. Appleyard's fault as set out in a jury instruction, that the court could not answer the questions about
insurance money and attorneys' fees, and that the jury had all the evidence and instructions of law. At
approximately 3:40, the jury returned the verdict for Dr. Dauterive. Perkins argued that the jury's questions
to the court, along with the affidavit, indicated that the jurors were indecisive about ruling against Perkins
until the nurse's statement swayed them in favor of Dr. Dauterive. The trial court denied Perkins's motion,
and Perkins argues that the ruling was error.
¶25.
Mississippi Rule of Evidence 606 (b) states:
Inquiry Into Validity of Verdict or Indictment. 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 his or any other
juror's mind or emotions as influencing him to assent to or dissent from the verdict or
indictment or concerning his 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 his affidavit or evidence of any
statement by him concerning a matter about which he would be precluded from testifying
be received for these purposes.
(emphasis added). The rule against a juror revealing influences on his own verdict precludes a juror from
testifying as to extraneous information or outside influence which he, himself, introduced to the jury.
Gladney v. Clarksdale Beverage Co., 625 So. 2d 407, 413 (Miss. 1993). A juror may only testify as
to extraneous information or outside influence introduced by other jurors or other sources, and may not
testify as to how that information or influence affected the verdict. Id. at 414, 419.
11
¶26.
Gladney prescribes the process for jury inquiry by the trial court. Gladney, 625 So. 2d at 418-
19. The inquiry begins when the trial court and opposing counsel are made aware of potential juror
misconduct by the manifestation of evidence of juror misconduct. Id. at 418. Regarding the scope of
counsel's right to attack an unfavorable verdict by investigating juror misconduct, "a balance must be struck
between the right to inquire into the jury verdict and the right of each juror to be free from harassment and
secure in their verdict." Id. Jury inquiry is not permitted as a "mere fishing expedition" for a way to
challenge an undesirable verdict. Id.
¶27.
When evidence of misconduct is manifested, the trial court must consider whether an investigation
is warranted. Id. An investigation is warranted if there is "sufficient evidence to conclude that good cause
exists to believe that there was in fact an improper outside influence or extraneous prejudicial information.
. . . Although a minimal standard of a good cause showing of specific instances of misconduct is acceptable,
the preferable showing should clearly substantiate that a specific, non-speculative impropriety has
occurred." Id. at 419. The showing must be adequate to overcome the presumption in Mississippi of jury
impartiality. Id.
¶28.
If an investigation is warranted, the trial court should hold an investigative post-trial hearing. Id.
In accordance with precedent and Rule 606 (b), the trial court may not permit any inquiry into the internal
deliberations of the jurors or the subjective effects of the extraneous information. Id. "Once it is
determined that the communication was made and what the contents were, the court is then to decide
whether it is reasonably possible this communication altered the verdict." Id. In assessing the significance
of the extraneous information, the court may order a new trial if the extra-record facts are material, that is,
they affect an issue of importance in the case, and if the extra-record facts are qualitatively different from
the evidence properly presented to the jury in the case. Id. at 414 (quoting Salter v. Watkins, 513 So.
12
2d 569, 571 (Miss. 1987)). An example of an application of this framework resulting in a new trial is the
case of James v. State, 777 So. 2d 682, 700 (¶ 60) (Miss. Ct. App. 2000), in which a juror revealed to
others the defendant's alleged prior commission of the same crime.
¶29.
In the instant case, the court considered the impact of Juror Bourgeois's affidavit. The court found
that the information in the affidavit did not go to the material issue of the case, which was whether Dr.
Dauterive breached the standard of care in his treatment of Walter. The court held that Bourgeois's
affidavit was insufficient to show that the jurors were exposed to extraneous information that reasonably
altered the verdict and that, pursuant to the procedure articulated in Gladney, it was not necessary for the
court to further inquire into whether the alleged extraneous information was considered by the jurors during
deliberations. We review the trial court's denial of an investigative hearing in this context for abuse of
discretion. Brake v. Speed, 605 So. 2d 28, 37 (Miss. 1992).
¶30.
Both parties have thoroughly briefed this issue. Perkins argues that the facts demonstrated a
reasonable possibility that the information alleged in Bourgeois's affidavit altered the verdict. Perkins argues
that the majority juror's statement that a verdict for Perkins would cause Dr. Dauterive to be suspended
or to lose his medical license was significantly prejudicial because of that juror's status as a nurse. Perkins
contends that the jury's questions to the trial court support the conclusion that they were concerned with
extraneous matters rather than the evidence. Perkins points out that prejudice may be inferred from the
timing of the verdict in that the jury returned its verdict for Dr. Dauterive approximately 20 minutes after
the nurse's statement. Dr. Dauterive argues, inter alia, that the nurse's statement was not an outside
13
influence upon the jury and that Juror Bourgeois was a relative of Diane Perkins and executed the affidavit
in an effort to help Perkins challenge the defense verdict.2
¶31.
In Brake, the court addressed the concept of extraneous information and pronounced, "it does not
matter that information outside the record is provided by a fellow juror as opposed to some other person.
. . . [i]f the [extraneous] information is outside the record of proceedings in open court, it is an outside
influence under the rule." Brake, 605 So. 2d at 38. More recently, our supreme court rejected a losing
party's claim that the jury relied upon impermissible extraneous information in reaching its verdict. APACMiss. Inc. v. Goodman, 803 So. 2d 1177, 1186 (¶ 39) (Miss. 2002). In APAC-Mississippi, jurors
stated that the jury had used a calculation method known as a "quotient verdict" in determining a damage
award. Id. at 1185-86 (¶ 36). Observing that quotient verdicts are not permitted in Mississippi, the court
nonetheless held that the jurors' use of the quotient verdict method was not reliance upon external influences
that would warrant an new trial. Id. at 1186 (¶¶ 38-39).
¶32.
The case of Payton v. State, 2001-KA-01658-SCT (¶¶ 123-135) (Miss. Nov. 6, 2003),
contains facts similar to the case at bar. At voir dire, the trial court had ascertained that, because the
county was rural, the jurors knew some of the persons involved with the case but those jurors promised
to be impartial. Id. at (¶ 130). Payton moved for a new trial and sought to introduce the affidavit of a juror
stating that several jurors personally knew one witness and told the other jurors that the witness would not
lie respecting his testimony. Id. at (¶ 125). The court held the affidavit failed to meet the threshold showing
of external influences because all of the proposed evidence therein related to things which some jurors told
2
We note that the record contained insufficient evidence from which this Court could conclude that
Perkins and Juror Bourgeois were related.
14
other jurors during the deliberative process, and there was no evidence that someone outside the twelve
jurors did something to influence their deliberations. Id. at (¶¶ 134-35).
¶33.
As in Payton, the statement regarding the verdict's potential impact on Dr. Dauterive's licensing
was based on the personal knowledge of one of the twelve jurors and did not come from someone outside
the jury room. APAC-Mississippi and Payton indicate that jurors are permitted to bring some degree of
personal knowledge and experience into the deliberation process without jeopardizing their verdict. Even
were we to find that the nurse's alleged statement pushed the permissible boundary, considering all the facts
of this case, the trial court acted well within its discretion in determining that there was no reasonable
possibility that the nurse's information swayed the other eight majority jurors to ignore the copious evidence
legitimately presented in this case and to vote for Dr. Dauterive. We observe that "public policy requires
a finality to litigation." Martin v. State, 732 So. 2d 847, 852 (¶ 22) (Miss. 1998). This issue is without
merit.
¶34. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, GRIFFIS AND BARNES,
JJ., CONCUR.
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