Update: On July 23, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the argument here.

On March 11, 2020, the Supreme Court of Ohio will hear oral argument in the case of Madora Jones, Administrator of the Estate of ReDon Jones v. The Cleveland Clinic Foundation, et al., 2019-0390. The issues in the case deal with confidentiality of jury deliberations and finality of jury verdicts in civil cases. Justice Donnelly has recused himself from the case, and Judge Lynne S. Callahan of the Ninth District Court of Appeals has been assigned to sit for him.

Case Background

ReDon Jones sought emergency medical care in June 2012 after experiencing chest pains. Doctors at the Cleveland Clinic ran stress tests, but ruled out acute coronary syndrome as a cause, and discharged Jones. Two weeks later, Jones died of a heart attack, and his estate (“Jones”) filed a wrongful death and medical malpractice claim against Cleveland Clinic and the doctors (“Cleveland Clinic”). The matter eventually went to a week-long jury trial, with closing arguments presented on the morning of Friday, November 3, 2017. Jury deliberations began immediately after closing arguments at 11:00 a.m.

At 5:00 p.m., the jury wrote a note to the trial court stating that it was divided 4-4, and asked the court for guidance. Cuyahoga County Common Pleas Court Judge Brendan Sheehan instructed the jury to “keep deliberating.” After this message, the jury sent another note which stated that one of the jurors had an urgent family matter, and again asked the court for guidance. The jury stated that they wanted to continue deliberations if the juror had to leave and be replaced by an alternate juror. Counsel for Cleveland Clinic objected on the grounds that the jury would need to restart deliberations late on a Friday evening and reconvene. Judge Sheehan agreed deliberations would have to recommence, but overruled the objection, excused the juror, and added an alternate juror.

An hour after the juror substitution, the jury wrote another note, again stating that that they were deadlocked and asking how long they would need to stay that evening. Judge Sheehan instructed the jury to continue deliberating. After 9:00 p.m., the jury wrote another note, which stated that they were deadlocked at 4-4, and asked to leave. In response to this note, Judge Sheehan instructed the bailiff to tell the jury that they were to come back the following Monday to continue deliberating. The bailiff gave the message to the jury. Several jurors  told the bailiff “come back for what? We aren’t agreeing.”

Fifteen minutes later—at 10:00 p.m.—the jury announced it had reached a verdict.  Before the verdict was read, Jones objected to the Court accepting it. The verdict was 6-2 in favor of the Cleveland Clinic. The six jurors who signed the verdict form were individually polled under oath and affirmed their verdict. Counsel for Jones filed a motion for a mistrial on the following Monday. While the motion was pending, the trial court held a hearing because the court had received a letter from a juror. The juror wrote that the jury was frustrated by the deadlock, and some, including the author of the letter, made the decision to switch their votes after being told that they would need to return the following Monday—which the jury took to mean they could be deliberating indefinitely. The juror also wrote that if they had not been kept late on that Friday or knew that Monday would be the last day before being dismissed, votes would not have been changed.

Judge Sheehan denied the motion for a mistrial. Jones appealed.

The Appeal

In a unanimous opinion authored by Judge Frank D. Celebrezze, Jr. and joined by Judges Eileen A. Gallagher and Mary Eileen Kilbane, the Eighth District Court of Appeals reversed.

The Eighth District did not agree that the trial court should have sua sponte declared a mistrial, but found that the trial court abused its discretion when it denied Jones’ mistrial motion. Because the jury stated on several occasions that it was deadlocked, and then reached a verdict only minutes after being informed that it would need to return to continue deliberating the following week, the trial court should have granted Jones’ motion for a mistrial.

The juror’s letter provides even more support for a finding of a mistrial because it confirms that the only reason for the verdict was to avoid further deliberation. The trial court should not have relied on Ohio Rule of Evidence 606(B) to exclude the letter from its consideration of Jones’ mistrial motion because Rule 606(B) precludes the juror from testifying at a later proceeding about the original verdict, which the juror who wrote the letter did not do.

The appeals court also held that after receiving the third and fourth notes from the jury,  the trial court erred by not giving the jury a Howard charge—an instruction to the jurors to re-examine their positions when the jury appears unable to reach a verdict. Finally, although the parties disagree over the relevance to the issue before the high court, the appeals court found that the trial court should not have limited Jones’s use of Cleveland Clinic’s Civ. R. 30(B)(5) deposition testimony at trial, and that the trial court should have ruled on several discovery motions.  

Cleveland Clinic appealed.

Votes to Accept the Case

Yes: Justices DeWine, Fischer, French, and Kennedy*

No: Chief Justice O’Connor, Justices Donnelly and Stewart

*Justice Kennedy would accept the appeal on all propositions.

Cleveland Clinic’s First Proposition of Law Accepted for Review

When the jurors are polled and confirm their assent to the verdict, courts should not inquire into the motivations for the jury’s verdict unless there is competent evidence of threats, bribery, or other improper conduct admissible under Evid.R. 606(B).

Cleveland Clinic’s Second Proposition of Law Accepted for Review

Evid.R. 606(B) broadly applies to the testimony of a juror and any other evidence of a statement by a juror concerning a matter that the juror would be precluded from testifying about under the rule.

Cleveland Clinic’s Third Proposition of Law Not Accepted for Review

A party cannot introduce expert testimony on liability issues in a medical malpractice action from a Rule 30(B)(5) witness who does not satisfy the qualification requirements for expert testimony.

Key Statutes and Precedent

Evid.R. 606(B) (“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 . . . . However, a juror may testify without the presentation of any outside evidence concerning any threat, any bribe, any attempted threat or bribe, or any improprieties of any officer of the court. A juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying will not be received for these purposes.”)

State v. Sabbah, 13 Ohio App.3d 124 (6th Dist. 1982) (“The jury’s explicit, unequivocal indication (1) that it was evenly deadlocked after a substantial period of deliberation, (2) that it lacked sufficient evidence to reach a verdict, and (3) that any verdict it might reach would be unfair are the attendant, aggravating circumstances needed to find that the jury’s subsequent verdict was unduly coerced.”)

State v. Howard, 42 Ohio St. 3d 18 (1989) (approving supplemental instruction for deadlocked juries).

Tasin v. SIFCO Industries, Inc., 50 Ohio St.3d 102 (1990) (“[T]here is a weighty government interest in insulating the jury’s deliberative process from post-verdict inquiry by the parties.”)

State v. Sheppard, 84 Ohio St.3d 230 (1998) (“[T]he rule permits a juror to testify regarding extraneous prejudicial information or improper outside influence, but only after some outside evidence (evidence aliunde) of that act or event has been presented.”)

State v. Hessler, 90 Ohio St.3d 108 (2000) (The common law aliunde rule flatly prohibits the admission of juror testimony to impeach a jury verdict.)

State v. Williams, 2003-Ohio-4396 (A jury’s verdict becomes final once the jury has been polled and each juror has assented to the verdict in open court.)

State v. Brown, 2003-Ohio-5059 (“There is no bright-line test to determine what constitutes an irreconcilably deadlocked jury.”)

Grundy v. Dhillon, 2008-Ohio-6324 (“Evid.R. 606(B) is intended to preserve the integrity of the jury process and the privacy of deliberations, to protect the finality of the verdict, and to insulate jurors from harassment by dissatisfied or defeated parties.”)

Cleveland Clinic’s Argument

The Eighth District’s decision should be reversed because it wrongly subjects jury verdicts in civil cases to a new type of judicial inquiry that is barred by Evid.R. 606(B). A jury’s verdict becomes final after the jurors have been individually polled and confirmed their assent to the verdict under oath. The Supreme Court of Ohio has recognized the common law aliunde rule, which prohibits admission of juror testimony to impeach a jury verdict. Evid.R. 606(B) codifies this rule, which provides that a juror may not testify as to any matter or statement occurring during the jury’s deliberations, unless it relates to threats, bribes, or the impropriety of a court official.

Here, after deliberating for only about 1-2 hours, with no coercive instruction by the trial court, the jury reached a verdict for the defense.  All six jurors who signed the verdict were individually polled and assented to the defense verdict under oath. The Eighth District’s ruling is unprecedented—it holds that a trial court abused its discretion by not declaring a mistrial merely because the jury was previously deadlocked and then changed its mind. By questioning the validity of the verdict, the court engaged in the type of inquiry barred under Evid.R. 606(B). There is a strong government interest in protecting the jury’s deliberative process from inquiry by the parties.

Further, the Eighth District created a new exception to Evid.R. 606(B) when it considered the juror’s letter. This ruling ignores the last sentence of Evid.R. 606(B), which bars a “juror’s affidavit or evidence of any statement by the juror.” This ruling creates the untenable result that the sworn testimony of a juror who assented to the verdict is not competent to challenge the jury’s verdict, but an unsworn letter submitted by that juror after the verdict must be considered.

This Court should reverse the Eighth District and establish a bright-line rule that would bar any judicial inquiry into the validity of jury verdicts unless there is competent evidence of threats, bribery, or other improper conduct admissible under Evid.R. 606(B). The Court should also reverse the Eighth District’s ruling that it was plain error for the trial judge to fail to give a Howard charge to a jury after only one hour after beginning its deliberations anew.

The Court should reinstate the defense verdict, rather than remand for further proceedings. Although the Eighth District sustained assignments of error regarding limitation of 30(B)(5) deposition testimony and Jones’ discovery motions, these errors, standing alone, were not sufficiently prejudicial to warrant a new trial. The fact that this Court did not accept jurisdiction on these issues does not mean that the Court lacks authority to order a reinstatement of the defense verdict as a remedy for the Eighth District’s decision to vacate the verdict.

Jones’ Argument

The reality of this case was that on the Friday evening of a week-long trial, the judge was faced with a deadlocked jury which returned a verdict within minutes of being informed they would have to return to continue deliberating on Monday. The juror’s subsequent letter was not dispositive of this issue. 

Any decision issued in this case will be purely advisory because a new trial will be necessary regardless of how this evidentiary issue is resolved. The Eighth District reversed the trial court for three separate errors: the refusal to grant a mistrial on the basis of juror misconduct, the improper limitation on the Civ. R. 30(B)(5) deposition testimony of Cleveland Clinic’s designated hospital representative (here a Registered Diagnostic Cardiac Sonographer) and the failure to rule upon a motion to compel production of documents. The Cleveland Clinic has not challenged the ruling on the motion to compel, and this Court has declined to accept Cleveland Clinic’s Third Proposition of Law, which dealt with the 30(B)(5) testimony.

At no time did the Eighth District inquire into the motivations for the jury’s decision. The Eighth District’s opinion rested on a finding of other improper conduct under the circumstances, therefore requiring a mistrial. It was based on observable and undisputed circumstances that had been memorialized in the record—hardly some speculation over the internal thoughts of the jurors. Even if this Court agrees that Cleveland Clinic’s propositions of law are legally correct, the Eighth District should still be affirmed because there was competent evidence of improper conduct the moment that the jury rendered a verdict 15 minutes after learning a Monday return was all but inevitable.  

It is unlikely that the same circumstances will arise again with a second jury on remand, and therefore Evid.R. 606(B) will not come into play. Thus, this Court’s decision will result in an advisory opinion no matter how the two Propositions of Law are decided.

Further, the juror’s letter was not a pivotal factor in the Eighth District’s opinion—rather, the letter merely confirmed the court’s suspicions that the jury’s sudden change of opinion came from a desire to leave rather than from an honest verdict. Regardless, under the plain terms of Evid.R. 606(B), voluntary and unsolicited non-testimonial written communications are not barred from evidence.

Finally, Cleveland Clinic’s arguments surrounding the 30(B)(5) testimony and Jones’ discovery motions below are outside the jurisdiction of this appeal, and no valid ground exists for interfering with the Eighth District’s disposition of those issues.

Amicus in Support of Cleveland Clinic

Academy of Medicine of Cleveland and Northern Ohio (“AMCNO”)

AMCNO is a professional medical association that represents Northern Ohio’s medical community through legislative action and community outreach programs. It has a membership of more than 5,000 physicians. AMCNO is concerned that if the Eighth District’s ruling stands, it will allow jurors to undermine the validity of jury deliberations and unduly burden medical professionals with the obligation to relitigate medical malpractice cases.

Student Contributor: Carson Miller