Prejudice Test Indicated for Juror Misconduct
The Legal Intelligencer
January 24, 2005

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.)