Duffy v. Vogel , 849 N.Y.2d 52 ( 2007 )

OPINION OF THE COURT

Kavanagh, J.

Plaintiff commenced this medical malpractice action claiming she sustained permanent injuries as a result of the two defendant physicians’ failure to detect, diagnose and properly treat a granular cell tumor found in her pelvic area. The jury ultimately concluded that neither defendant was negligent, but did find that two nonparty physicians were responsible for plaintiff’s injuries and set the amount of her damages at $1.5 million. After the foreperson announced the verdict in open court, the trial court denied plaintiff’s request that the jury be polled, discharged the jury and directed the Clerk to enter a verdict in favor of defendants. Subsequently, the trial court granted plaintiffs motion to set aside the verdict on the grounds that it had committed reversible error by failing to poll the jury as requested.

Upon completion of the trial, during which each side made extensive use of expert testimony, the trial court prepared a verdict sheet containing 21 interrogatories to be used by the jury in its deliberations. Questions 1-10 inquired about the legal responsibility of the named defendants. Questions 11-16 focused on two nonparty physicians who had treated plaintiff during the period in question and who were added to the verdict sheet at the request of defendants. Questions 17-18 addressed plaintiffs responsibility, while questions 19 and 20 asked the jury, if appropriate, to allocate responsibility among the various individuals named at trial and to make an award for damages in light of those findings.

The jury found that neither defendant was negligent. Although instructed not to proceed any further in its deliberations if it made such a finding, the jury chose to answer the remaining questions on the verdict sheet. Specifically, it found that both nonparty physicians were negligent and that their negligence caused plaintiff to incur damages in the amount of $1.5 million.¹ The jury also found that plaintiff was negligent, but that her negligence was not a substantial factor in causing her injury. In addition, the jury’s verdict, as announced by its foreperson, was in all respects unanimous.

Plaintiff initially claimed that the verdict was inherently inconsistent and asked that the trial court so instruct the jury, and have it reconvene to continue its deliberations. When the trial court refused this request, plaintiff asked that the jury be polled. The trial court stated that it saw no need, given the manner in which the verdict had been delivered, and it denied plaintiffs request. It then discharged the jury, and entered judgment for defendants. On plaintiffs subsequent motion, the trial court set aside the verdict on the ground that it had committed reversible error by not polling the jury as requested by plaintiff.

The process by which this verdict was delivered leaves no doubt but that the jury unanimously concluded that neither defendant had committed malpractice while treating plaintiff. The verdict was announced and published in open court. At that time, the foreperson was asked to recite, in the presence of each member of the jury, the jury’s answers to the interrogatories contained on the verdict sheet. The court clerk read aloud each interrogatory, and in response the foreperson announced the jury’s finding. A total of 16 questions were posed by the court clerk to the foreperson and to each, the foreperson announced the jury’s answer.² In addition, the clerk asked the foreperson 14 times what the jury’s vote was on a particular interrogatory, and each time the foreperson publicly announced that the jury’s decision was unanimous. At no time while this verdict was being delivered did any member of the jury give any indication that he or she had an exception, objection or reservation as to any of the answers given by the foreperson to any of the interrogatories on the verdict sheet.

The jury’s verdict as announced and published in open court was an accurate reflection of what each juror had by his or her own hand affirmed on the verdict sheet. Each juror’s vote was recorded on the verdict sheet for every interrogatory that was answered, and, after each interrogatory, each juror signed affirming his or her support for the answer as recorded. Each answer, as recorded on the verdict sheet, conformed in every respect to each answer given by the jury through its foreperson in open court. Under all of these circumstances, polling the jury would have simply confirmed what had already been stated in open court and recorded on its verdict sheet; that being that defendants were not legally responsible for any of the claims made against them by plaintiff.

The issue to be decided on this appeal is not whether the plaintiff had an “absolute right” to have the jury polled after it published its verdict. She clearly did and it was error on the part of the trial court not to conduct one. What this Court must decide is whether, on these facts, it was an error of such magnitude that it served to render all that had occurred before it during this three-week trial a nullity. If failing to poll the jury was merely an error in form and not substance having no impact on the outcome of these proceedings, and neither party has demonstrated prejudice then the interest of justice would not be served by setting this verdict aside. Here, the objective facts set forth amply demonstrate that polling the jury would not have resulted in a different verdict. That opinion is not based upon intuition; rather it is based upon a fair reading of what transpired in open court and what is unambiguously set forth in the jurors’ own handwriting on their verdict sheet. Throughout, each time the jury was asked it stated in no uncertain terms through its foreperson that it was of the collective view that defendants were not liable, and in that view, the jurors were all of the same mind and unanimous.

A fair reading of the record simply does not support the rigid application of a rule, as urged by the defense and adopted by the dissent, that would mandate reversal regardless of the surrounding circumstances or that would lead to what is undoubtedly an unfair result.

Moreover, the dissent’s reliance on the opinion it authored in Matter of National Equip. Corp. v Ruiz (19 AD3d 5 [2005]) is misplaced. There, the trial court’s failure to poll the jury after it had delivered its verdict was but one of many errors committed in the recording of the verdict. Not one, but two verdicts were rendered during the course of that trial and the one which was ultimately entered into the record by the court was never shown to either of the attorneys, or announced or published by the jury in open court. In fact, the jury’s answers as recorded on that verdict sheet were never entered into the official record. Adding to the confusion that surrounded the taking of that verdict was the fact that the trial judge, after taking the second verdict, which again found for the plaintiff, entered judgment in favor of the defendants because of an error on the verdict sheet. One week later, long after the jury had been discharged, the trial court sua sponte vacated the judgment it had entered for the defendants and substituted one for the plaintiff consistent with the jury’s findings as set forth on its first verdict sheet. Given the chaos that characterized those proceedings—and the confusion and uncertainty that surrounded the taking of those two verdicts, polling the jury would actually have served its intended purpose. Suffice it to say, the uncertainty that permeated the proceedings in National Equipment stands in stark contrast to what happened in the matter that is now before this Court.

Setting aside this verdict simply and solely because the jury was not polled—when it is abundantly clear that polling would have made no difference in the result—would, under these facts, lead to a result which by any measure is unconscionable. There can be no doubt that the jury, after hearing all of the evidence that was presented during this vigorously contested trial, concluded that defendants were not negligent, and therefore not responsible for any of the injuries claimed by plaintiff. To deprive defendants of the benefit of this verdict—one that was fairly earned and entered—for an error not of their making or one for which they bear any responsibility, would, on these facts, be grossly unfair. Moreover, the integrity of this entire process would, in our view, be ill-served by this Court’s sanction of such a result.

I cannot agree that a denial of one’s “absolute right” to poll a jury requires the automatic nullification of the jury’s verdict and would never be subject to a harmless error analysis. While the dissent suggests that a court could never hold that the denial of an absolute right was harmless, this Court has so held (Matter of Eric W., 182 AD2d 439 [1992] [the court’s refusal to allow appellant to invoke his absolute right to waive his presence at a Wade hearing was harmless error]).

Nor has plaintiff established that the verdict as delivered was inherently inconsistent. While the jury may have misinterpreted an instruction on the verdict sheet, and, as a result, answered certain interrogatories unnecessarily, the answers given were not only consistent with each other, but were also supported by the weight of the credible evidence (see e.g., Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 40 [1980]; CPLR 4404 [a]). Furthermore, since the jury, by its verdict, completely absolved defendants of any malpractice, plaintiff was not prejudiced by the inclusion of the nonparty doctors on the verdict sheet.

Accordingly, the order of the Supreme Court, New York County (Donna M. Mills, J.), entered March 7, 2007, which, after a jury trial, granted plaintiffs motion to set aside the verdict and declare a mistrial, should be reversed, on the law, without costs, the motion denied and the verdict reinstated. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

1 . The jury found that one of the nonparty physicians was 60% liable while the other was 40% liable. It awarded $1,000,000 for past pain and suffering and $500,000 for future pain and suffering and indicated that plaintiff would endure this pain for five years into the future.

2 . The questions included five separate inquiries regarding the jury’s percentage allocation of responsibility that it assigned to the five individuals (plaintiff, two defendants, and two nonparty doctors) on the verdict sheet.