Fikreta & Sejfudin Cutuk, Apps. v. Jeffrey F. Bray, M.d., Resp. ( 2013 )

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2013 OCT 28 miQ:3 00
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FIKRETA CUTUK and SEJFUDIN ) NO. 68406-0-1
CUTUK, wife and husband, )
Appellants, ) DIVISION ONE
\/
V.
UNPUBLISHED OPINION
JEFFREY F. BRAY, M.D., )
Respondent. ) FILED: October 28, 2013
Leach, C.J. — In this medical negligence case, Fikreta Cutuk and Sejfudin
Cutuk appeal the trial court's order granting Dr. Bray a new trial on all issues
based on juror misconduct. Because the court did not abuse its discretion in
finding that the juror misconduct likely affected the outcome of the trial, we affirm.
FACTS
Dr. Jeffrey Bray misdiagnosed Fikreta Cutuk's ectopic pregnancy and
consequently removed her one healthy fallopian tube. Later, she underwent a
second surgery to remove the diseased one. Cutuk sued Bray for medical
negligence. A jury found Bray negligent and awarded Cutuk $71,795.53.
After trial, defense counsel interviewed several jurors, and Bray moved for
a new trial based upon juror misconduct. Bray supported his motion with the
declarations of three jurors, two who had dissented from the verdict and the
NO. 68406-0-1 / 2
foreperson, who had agreed with the verdict. The declarations each stated that a
juror had looked up a definition of "negligence" in a dictionary, reported the
definition to the jury, and the definition was discussed during jury deliberations.
In response, Cutuk filed declarations from six additional jurors. Four
stated that the alleged incident did not occur, although one of them recalled
someone wishing they could use a dictionary. One stated that a juror had looked
up the definition of "negligence" and the definition was "discussed briefly by a
couple of jurors." And the sixth juror stated, "There was a juror who said he
would, or did, look up the word in a dictionary, but there was never a
conversation amongst us jurors of any definition of negligence other than the
definition provided by the court."
After reviewing the conflicting declarations, the court found "that objective
proof has been presented to satisfy the court that in fact a juror did look up the
definition of negligence and did discuss, however briefly, that definition with the
other jurors." Reasoning that the common definitions of "negligence" generally
found in dictionaries would contradict the specialized standard in a medical
negligence case, the court concluded that the misconduct would likely affect the
jury's verdict. Because the court understood controlling case law to require a
new trial if it had any doubt that the misconduct affected the verdict, it granted
Bray a new trial. Cutuk appeals.
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STANDARD OF REVIEW
The trial court has discretion to decide whether to grant a new trial.1 We
will disturb the trial court's decision only if we find a clear abuse of that discretion
or if the decision is based on an erroneous interpretation of the law.2 A court
abuses its discretion when its decision is "'manifestly unreasonable, or exercised
on untenable grounds, or for untenable reasons.'"3 We give greater deference to
a decision to grant a new trial than to a decision to deny a new trial.4
ANALYSIS
Cutuk contends that the record contains insufficient evidence to support
the trial court's finding that the alleged misconduct occurred. Alternatively, she
claims that the trial court abused its discretion when it found the misconduct
occurred without holding an evidentiary hearing. Finally, she claims that if the
misconduct did occur, it did not clearly influence the jury's verdict.
When a party challenges a verdict with evidence of alleged juror
misconduct through consideration of extraneous matter, the trial court must
consider two questions: (1) whether the court may even consider the evidence
1 State v. Jackman, 113 Wash. 2d 772, 777, 783 P.2d 580 (1989).
2 Jackman, 113 Wn.2d at 777.
3 Breckenridge v. Valley Gen. Hosp., 150 Wash. 2d 197, 203-04, 75 P.3d 944(2003) (quoting State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482 P.2d 775(1971)).
4 Richards v. Overlake Hosp. Med. Ctr.. 59 Wash. App. 266, 271, 796 P.2d
737(1990).
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and (2) whether the alleged misconduct warrants a new trial.5 To answer the first
question, the court must decide whether the alleged misconduct "inheres in the
verdict."6 Evidence that describes "[t]he mental processes by which individual
jurors reached their respective conclusions, their motives in arriving at their
verdicts, the effect the evidence may have had upon the jurors or the weight
particular jurors may have given to particular evidence, or the jurors' intentions
and beliefs,"7 inheres in the verdict.
If the misconduct inheres in the verdict, the court may not consider the
evidence. If the misconduct does not inhere in the verdict, the court may
consider the evidence; but not all misconduct necessitates a new trial. Juror
misconduct only warrants a new trial when it causes prejudice.8 To evaluate
potential prejudice, the court makes an objective inquiry into whether the
misconduct could have affected the jury's decision, rather than inquiring into its
actual effect, because the actual effect inheres in the jury verdict.9 Due to the
great deference an appellate court gives to a trial court's discretionary decision to
5Johnson v. Carbon, 63 Wash. App. 294, 302, 818 P.2d 603 (1991).
6Johnson, 63 Wn. App. at 302.
7 Cox v. Charles Wright Acad., Inc., 70 Wash. 2d 173, 179-80, 422 P.2d 515(1967).
8 State v. Lemieux, 75 Wash. 2d 89, 91, 448 P.2d 943 (1968); State v.
Briqqs, 55 Wash. App. 44, 55, 776 P.2d 1347 (1989); State v. Rempel, 53 Wash. App.
799, 801, 770 P.2d 1058 (1989), rev'd on other grounds, 114 Wash. 2d 77, 785
P.2d 1134(1990).
9 Richards, 59 Wn. App. at 273.
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grant a new trial, Cutuk bears a heavy burden to show that the trial court's
exercise of discretion in this case was manifestly unreasonable or based upon
untenable grounds.
To support his request for a new trial, Bray presented declarations of three
jurors, Jill Lang, Cheryl Jones, and Joanna Satterwhite. Each stated that a juror
conducted outside research and reported the results to the jury. In her
declaration, Lang stated, "One juror looked up the definition of negligence in a
dictionary and reported the definition back to the rest of the jurors. The dictionary
definition of negligence was discussed during deliberations."
Jones stated,
On Tuesday morning, the third day of deliberations, . . . one juror
reported to the group that he was struggling with what negligence
meant and looked up the definition of negligence in a dictionary.
He said he pulled the dictionary off his shelf at his home. He
reported the definition back to the rest of the jurors. The dictionary
definition of negligence was discussed during deliberations [for]
approximately 10 minutes.
And Satterwhite described, "One juror had to look up the definition of negligence
in a dictionary and reported the definition back to the rest of the jurors. The
dictionary definition of negligence was discussed during deliberations."
In response, Cutuk submitted declarations from six additional jurors, four
of whom declared that no one reported consulting a dictionary and the jury did
not engage in any discussion of a definition outside the scope of the evidence or
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NO. 68406-0-1 / 6
the jury instructions. However, one juror, Eric Wiebusch, stated, "I recall that on
the beginning of the last day Juror Number 5, Jerry, stated that he had looked up
the definition of negligence in a dictionary the previous evening. I do not recall
what that definition was. It was discussed briefly by a couple ofjurors."10
The trial court considered all nine juror declarations before it ruled on
Bray's motion.11 In his oral ruling, the trial judge stated,
It doesn't surprise me, given the dynamics of a jury situation, that
some jurors will hear some things and other jurors will not hear
those same things. . . .
... I have at least four jurors who say it did occur. I have a
fifth one who says, well, there was something generally like that.
And then I have three who say they don't recall it occurring. . . .
So bottom line, the court makes a factual finding that
objective proof has been presented to satisfy the court that in fact a
juror did look up the definition of negligence and did discuss,
however briefly, that definition with the other jurors.
The record amply supports the trial judge's factual determination that Bray met
his burden to show the misconduct actually occurred.
The trial court determined that Adkins v. Aluminum Co. of America12
required that it grant a new trial if doubt existed about whether the misconduct
10 Notably, juror number 5, Jerry Patzer, categorically denied having
looked up the word "negligence" or sharing any definition of the word with the
other jurors.
11 Three jurors declined to be interviewed.
12 110 Wash. 2d 128, 137-38, 750 P.2d 1257 (1988).
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affected the verdict. Because the trial court concluded that the misconduct likely
affected the verdict, it ordered a new trial on all issues.
In Adkins, the court stated,
Where jury misconduct can be demonstrated by objective proof
without probing the jurors' mental processes, the effect the
improper information may have had upon the jury is a question
properly determined in the sound discretion of the trial court. If the
trial court has any doubt about whether the misconduct affected the
verdict, it is obliged to grant a new trial.[13]
The Adkins court considered a very similar issue to this case. While deliberating
on a personal injury suit, the jury looked up definitions of "negligence" and
"proximate cause" in a 1933 edition of Black's Law Dictionary supplied by the
court bailiff. The Supreme Court reviewed the trial court's decision to grant a
mistrial under the abuse of discretion standard.14
The court noted that while the dictionary definitions did not amount to new
evidence as such, they constituted extrinsic information that was not admitted as
evidence at trial or provided by the trial court. It further noted that the Black's
Law Dictionary definitions contained legal premises not applicable to the case.15
The Supreme Court affirmed the trial court, holding that it did not abuse its
13 Adkins, 110 Wn.2d at 137 (citation omitted).
14 Adkins, 110 Wn.2d at 136-37.
15 Adkins, 110 Wn.2d at 138.
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discretion because it "was justified in concluding that it could not reasonably say
that the jury was not influenced by the dictionary."16
Here, like in Adkins, the court acknowledged that the jurors' testimony
about any effect the discussion had on jury deliberations inhered in the verdict
and should not be considered by it when deciding the motion. Instead, the court
reasoned that "in all probability the misconduct would affect the verdict" because
the typical dictionary definition of "negligence," even relying on a legal dictionary,
differs substantially from the negligence definition used in a medical negligence
action.
The trial court's decision to grant a new trial accords with Adkins. The trial
court did not know exactly what dictionary definition of negligence was reported
to the jury or what effect, if any, that report had on the jurors' deliberative
process. The trial court made an objective assessment that the juror's
misconduct likely affected the jury's verdict and reasonably doubted that the jury
considered only the definition of "negligence" provided in the jury instructions.
The court applied Adkins correctly when it resolved its doubts against the verdict.
Cutuk, however, contends that Adkins only applies "where the trial court is
privy to the nature of the extrinsic material considered by the jury." She argues
vigorously that the unknown elements of the jury misconduct should have been
16 Adkins, 110 Wn.2d at 138.
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fatal to Bray's motion for a new trial. Instead of relying on Adkins, she asks the
court to apply Tarabochia v. Johnson Line, Inc.,17 which she claims dictates a
different result. We find Tarabochia distinguishable.
There, our Supreme Court reversed a trial court decision granting a new
trial where the jury conducted an experiment inside the jury room trying to
recreate the circumstances that led to the respondent's injury. The respondent
longshoreman fell into a hole between several bags of urea, a crystalline
chemical, while unloading cargo on a ship.18 The parties presented conflicting
evidence about whether urea had spilled from the bags and become wet and
slippery, thus creating the hazardous condition that led to the accident. The
court admitted into evidence the respondent's shoes, a plastic bag like those
used to store the urea, and two samples of urea.20 The jury used these materials
to conduct an experiment, although the jurors' affidavits did not detail the exact
nature and results of that experiment. The court noted, "It is not unlikely that the
jury thought when it was given the plastic bag, the urea crystals and the shoes,
that it was being invited to conduct just such a test as it undertook."21 The
Supreme Court found that because nothing indicated the jurors obtained new
17 73 Wash. 2d 751, 440 P.2d 187 (1968).
18 Tarabochia, 73 Wn.2d at 752.
19 Tarabochia, 73 Wn.2d at 752.
20 Tarabochia, 73 Wn.2d at 752.
21 Tarabochia, 73 Wn.2d at 757 n.2.
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material facts through their experimentation, the trial court erred by granting a
new trial.22
Despite Cutuk's insistence that uncertainty about exactly what took place
in the jury room controls the outcome of this case, the court did not decide
Tarabochia on that basis. Instead, the court found that the party seeking a new
trial had failed to demonstrate the discovery of new material facts "which must
have influenced the verdict."23 Unlike Tarabochia, where the jurors relied only on
information already available to them inside the jury room, and like Adkins, the
jury here received extrinsic information in the form of a dictionary definition of a
legal term critical to the outcome of the case.
Alternatively, Cutuk argues that the court erred by ruling on Bray's motion
without conducting a full evidentiary hearing before resolving the disputed facts
presented in the jurors' declarations. We disagree. Under CR 59(a)(2), the court
may grant a new trial based upon
[mjisconduct of prevailing party or jury; and whenever any one or
more of the jurors shall have been induced to assent to any general
or special verdict or to a finding on any question or questions
submitted to the jury by the court, other and different from his own
conclusions, and arrived at by a resort to the determination of
chance or lot, such misconduct may be proved by the affidavits of
one or more of the jurors.
22 Tarabochia, 73 Wn.2d at 754.
23 Tarabochia, 73 Wn.2d at 757.
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Cutuk cites the Ninth Circuit's statement in United States v. Sava,24 a juror
misconduct case out of Hawaii, that "'[although it is usually preferable to hold [an
evidentiary] hearing,' it is not necessary where 'the court [knows] the exact scope
and nature of the . . . extraneous information.'" Saya does not justify finding that
the trial court abused its discretion here. The Saya court stated the current Ninth
Circuit rule: "'An evidentiary hearing is not mandated every time there is an
allegation of jury misconduct or bias. Rather, in determining whether a hearing
must be held, the court must consider the content of the allegations, the
seriousness of the alleged misconduct or bias, and the credibility of the
source.'"25
The trial court did that here. In its oral ruling, the court noted the
seriousness of the allegations and the potential breach of the jurors' oath. The
judge acknowledged that he saw no evidence of juror bias and no reason to
question the credibility of the three jurors who signed declarations for Bray and
noted that even two of Cutuk's juror declarations contained statements
corroborating the misconduct allegations. The court recognized that among any
group of twelve jurors, some may hear things differently or focus on different
parts of the discussion. Therefore, it found significant objective evidence that the
24 247 F.3d 929, 935 (9th Cir. 2001) (some alterations in original) (quoting
United States v. Halbert, 712 F.2d 388, 389 (9th Cir. 1983)).
25 Sava, 247 F.3d at 934-35 (quoting United States v. Angulo, 4 F.3d 843,
847 (9th Cir. 1993)).
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misconduct occurred. Cutuk fails to demonstrate the need for an evidentiary
hearing to properly determine the salient facts.
Cutuk acknowledges that "an evidentiary hearing is not mandated every
time there is an allegation of jury misconduct," yet she implies that the trial court
must conduct one if the parties dispute any of the facts surrounding alleged
misconduct. She cites State v. Parker26 and Halverson v. Anderson.27 In Parker,
the court noted that allegations of jury misconduct must be taken as true if they
are not denied. We reject Cutuk's asserted corollary—that if one side disputes
the allegations, then the court must conduct an evidentiary hear to resolve the
dispute. In many contexts trial courts decide disputed facts on a written record
without any evidentiary hearing.
Halverson also involved undisputed evidence of juror misconduct and
provides no support for Cutuk's position. Cutuk cites no authority holding that a
trial court abused its discretion by resolving factual issues relating to a motion for
a new trial without an evidentiary hearing.
CONCLUSION
The court correctly resolved all doubts about the demonstrated juror
misconduct in favor of granting a new trial. It did not abuse its discretion by
26 25 Wash. 405, 413, 65 P. 776 (1901).
27 82 Wash. 2d 746, 752, 513 P.2d 827 (1973).
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NO. 68406-0-1/13
resolving the request for a new trial without an evidentiary hearing after receiving
conflicting evidence of misconduct. We affirm.
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WE CONCUR:
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GfrtJ.
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