Judges: Catterson, Kavanagh
Filed Date: 12/20/2007
Status: Precedential
Modified Date: 11/1/2024
OPINION OF THE COURT
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
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.
The jury’s verdict as announced and published in open court was an accurate reflection of what each juror had by his or her
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
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
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.
. 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.
. 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.