Update: On July 23, 2020, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
“Well the sequence is what I think is at play here.”
Chief Justice O’Connor, to counsel for the Cleveland Clinic
“What do you think should have happened on that Friday?”
Justice Stewart, to counsel for Jones
On March 11, 2020, the Supreme Court of Ohio heard 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 recused himself from the case. Judge Lynne S. Callahan of the Ninth District Court of Appeals was assigned to sit for him but was not present in person for the oral argument. Chief Justice O’Connor announced that Judge Callahan was watching remotely and would participate in the conference on the case.
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 the 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. The trial court 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 the Cleveland Clinic objected on the grounds that the jury would need to restart deliberations late on a Friday evening and reconvene. The trial court agreed deliberations would have to start over, 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 they were deadlocked and asking how long the jurors would need to stay that evening. The trial court 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, the trial court 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.
The trial court denied the motion for a mistrial. Jones appealed.
The Appeal
In a unanimous opinion 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 they 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, it was plain error for the trial court not to give 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 issues before the high court, the appeals court found that the trial court should not have limited Jones’ use of the Cleveland Clinic’s designee’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. Read the oral argument preview here.
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.
Key Statutes and Precedent
*Evid.R. 606(B) Competency of Juror as Witness (“ 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.”)
*Relied on by counsel during argument
At Oral Argument
Arguing Counsel
Stephen W. Funk, Roetzel & Andress, LPA, Akron, for Appellants Cleveland Clinic Foundation, Cleveland Clinic Health System-East Region dba Hillcrest Hospital, and Dr. Avrum Jacobs, M.D.
Christopher M. Mellino, The Mellino Law Firm LLC, Rocky River, for Appellee Madora Jones, Administrator of the Estate of ReDon Jones, Deceased
Cleveland Clinic’s Argument
This case involves important issues of the confidentiality of jury deliberations and the finality of jury verdicts. The 8th district’s decision must be reversed because it wrongly subjects jury verdicts to a new and unprecedented type of judicial inquiry that is not warranted by case precedent and is expressly barred by ER 606 (B).
In this case the 8th district vacated a defense jury verdict just because a previously deadlocked jury then returned a verdict in the defendants’ favor in short order. The appeals court seemed troubled by the fact that the verdict came within 15 minutes of an apparent deadlock. But it is not atypical for jurors to change their minds during deliberations. That can happen very quickly.
It is also not atypical for juries to begin deliberations on a Friday and be faced with the decision about whether to continue to deliberate or to come back on Monday. Here, the jury ultimately chose to complete their deliberations on Friday, and came back with a final defense verdict which was polled under oath. Each juror assented that this was his or her verdict. Now the courts are engaging in an inquiry as to why two of the jurors suddenly changed their minds. We are inferring the jury was irreconcilably deadlocked and that two of the jurors changed their minds because they were asked to come back on Monday. Neither of these inferences is proper under this Court’s precedent nor under Evid. R. 606 (B) because engaging in an inquiry for reasons for the jury’s verdict is impermissible in Ohio.
Ultimately the jury rendered a verdict in favor of the defendants. They were asked whether this was their verdict, and they affirmed under oath that it was. Once they do that, that becomes a final verdict. To then engage in a post-verdict inquiry as to why they changed their minds, that they would do so just to avoid returning on Monday, is very problematic. That would have huge ramifications for the jury system in Ohio.
Courts should not engage in a post-verdict inquiry into the motivations for a jury verdict. Once the verdict is rendered, which it was in this case, and was affirmed under oath in individual polling, that becomes final. It would be improper then to declare a mistrial because the appeals court found that the verdict was based on improper motivation.
As for the failure to give a Howard charge, none of the parties requested one, and none was necessary because the jury had reached a verdict.
As far as the remaining two assignments of error before the appeals court, it is the defense position that this Court has the authority to reinstate the defense verdict in this case because those two assignments of error do not go to the heart of the verdict. The third assignment of error involved a motion in limine ruling, and the appeals court found the plaintiff never sought to introduce that evidence during trial. The other assignment of error was simply to rule on a discovery motion on remand. But the law is very clear that once a verdict is rendered and the judgment is entered, any pretrial motions regarding discovery are moot. Those assignments of error don’t change the fundamental point of this case, so no remand is necessary. In other words, these alleged errors, even if true, are not sufficient to require a remand for further consideration or to serve as the basis for not reinstating the defense verdict.
Once the jury is discharged, jurors are potentially subject to all kinds of outside influences. Family members can question and challenge them for ruling as they did, urge them to contact the court and say they changed their minds. That is the kind of thing that should not be allowed to happen. Courts should not be second guessing jury decisions because that fundamentally undermines the finality of jury decisions and the integrity of those decisions.
Jones’ Argument
Everyone wants a fair trial. In a jury trial that means the jury decides the case based on the evidence and their honest belief as to what the evidence means. In Ohio six of eight jurors are needed for a verdict in a civil case. That didn’t happen in this case. Four jurors decided the case in favor of the defendant and four in favor of the plaintiff.
The jury was not properly polled in this case, so what was rendered was not a final verdict. Of the six who found in favor of the defendants, the record will show that four jurors said they signed the verdict form, but there is no verbal affirmation from the other two that they signed. The plaintiff objected to the court accepting this verdict.
There was no post-verdict judicial inquiry here. It’s obvious from what happened during the deliberations that the jurors were strongly divided from the outset. They were divided for ten hours and as the day went on, the notes became stronger until the last two notes said they were deadlocked, and they were strongly divided. They told the court they were deadlocked 50/50, everyone was strong in their views, and were not changing their minds based on the evidence. They told the court this again at 9:30 at night, and asked how long they would have to stay, indicating there would not be any change in their opinions based on the evidence in the foreseeable future. Then the bailiff went in and told them they would have to report back Monday morning and they told the bailiff come back for what, we’re not going to change. Less than 15 minutes later they had a verdict. So, it is clear from what happened, the only thing anybody said to make them change their vote was the bailiff saying they would have to come back on Monday. That was the only variable in the equation. It is just human nature that you don’t spend 11 hours arguing a position and give it up in less than 15 minutes. Simply put, the judge should not have accepted the verdict in this case.
At the time the plaintiff filed for a mistrial, there was no letter from the juror yet. The letter did not come until much later, after the motion was already pending, and after plaintiff had already objected to the court accepting the verdict. The letter essentially just repeated what was in plaintiff’s motion. The trial court indicated it was going to disregard the letter in ruling on the mistrial motion. And the appeals court said it was making the decision notwithstanding the letter from the juror.
The 8th district’s decision does not pose any threat or danger to the justice system. This is an extraordinary set of facts; it’s unlikely to happen again. The court of appeals said in three different places that its decision was based on the facts of this case. So, it is fact specific.
The bottom line is this was not a defense verdict. The jury was deadlocked. Two jurors abandoned their consciences and did what they weren’t supposed to do despite instructions from the court not to give up their honest beliefs just to end the deliberations. They violated their oath as jurors. They decided the case not based on the evidence, but based on a desire not to have to come back on Monday. That’s wrong. That’s an injustice and there’s no rule that should be created to force an unjust verdict on the parties.
Finally, as to the other two assignments of error before the appeals court, if those issues are properly before this Court, the appeals court correctly ruled that the trial court abused its discretion in limiting the Civ. R. 30(B)(5) testimony of the corporate designee of the Cleveland Clinic. Her testimony established the invalidity of the stress test given to Mr. Jones. To argue precluding that testimony is not prejudicial is ridiculous. And her deposition was filed and is part of the record. The appeals court also said the trial court erred in failing to rule on plaintiff’s motion to compel. The parties did try to work this out but could not. Once all extra-judicial attempts to work out discovery disputes have been exhausted, the trial court is obligated to have a hearing on this, and the trial court refused to so. Otherwise litigants have no recourse to get trial courts to rule on motions to compel unless the court of appeals tells them they must. The documents sought here went the heart of the case.
What Was on Their Minds
Verdict on that Fateful Night
Wasn’t the verdict within 15 minutes and also in response to learning they would have to come back on Monday and start all over again, asked Chief Justice O’Connor?
Was what happened fair to the parties, asked Justice Stewart? Especially when you have juries that are deadlocked like this? Wouldn’t it be problematic if jurors changed their vote based on a desire not to return on Monday, or because they felt they had this jury duty long enough?? Is it problematic that there is not a fair assessment of what each and every juror thinks the evidence shows? Is reaching a verdict at 10p.m. itself problematic? Their options were to stay or come back Monday? What should have happened that Friday? Did the jurors ask to go home? She added that the trial court did give the jury the option of continuing the deliberations until Monday, but they decided not to do that. Later she asked, why was a substitute juror added?
The Juror Letter
If we were to say the trial court should not have considered that juror letter, does that resolve the case, asked Justice DeWine? He added that the 8th district said, notwithstanding the juror’s letter, given the totality of the circumstances around the jury’s deliberations, the trial court’s denial of Jones’ motion for a mistrial was an abuse of discretion.
Did the juror come forward sua sponte, asked Chief Justice O’Connor?
Remaining Assignments of Error in the Appeals Court
Are the other issues the appeals court considered before this Court, asked Justice DeWine? If we did address them, wouldn’t we be deciding them without any briefing from the parties? How do we do that? Was the excluded testimony proffered? Was the failure to proffer raised in the appeals court? He also added that simply filing the deposition of the excluded testimony was not the same as proffering it.
Since the remaining assignments of error in the appeals court are not in front of us as propositions of law, what precedent allows this court to address them, asked Justice French? I am puzzled by the assignment of error on the motion to compel, she commented. If there’s no ruling by the trial court, don’t we deem those motions to have been denied? Why would we send that back if we deem them denied?
Even if the evidence excluded by the motion in limine had been allowed in, would that have still been insufficient to set aside the verdict, asked Chief Justice O’Connor?
Second Guessing Jurors’ Motivations
Even if the verdict was because jurors didn’t want to return, absent irregularities or occurrences such as bribery or fraud, was that a basis to overturn the verdict, asked Chief Justice O’Connor?
Polling the Jury
Wasn’t the jury polled, asked Justice Fischer?
Were some of the jurors who were polled simply silent, rather than giving their assent, asked Chief Justice O’Connor? Just nodded their head and the judge didn’t say please speak up for the record?
Is the issue of whether there was significant affirmation by the jurors before this court, asked Justice French? Was that part of the decision of the 8th district?
How do we know that each juror verified the verdict, asked Justice Stewart? What about the jurors who failed to respond?
Waiver
Did the plaintiff argue that when the jurors were polled, only 4 jurors assented that was their verdict, asked Justice DeWine? Was the trial judge informed at the time that there were only 4 jurors who formally assented to the verdict? Wasn’t that issue waived since it wasn’t raised? He then added that an argument made at oral argument must be raised in the briefs.
Howard Charge
What about the issue of the failure to give a Howard charge, asked Justice French? Was that part of the totality of the circumstances here?
How does that work, asked Justice Stewart? Is it by majority rule? Does everyone have to unanimously say no we’d rather stay here and get it done or we’d rather come back Monday? Because I imagine different people’s personal lives are different, she added.
How it Looks from the Bleachers
To Professor Emerita Marianna Bettman
One thing that could happen is the Court could decide this is a one-off, and dismiss the case as improvidently allowed. And interestingly, the letter from the juror seems to be something of a red herring, since the trial court did not consider it in ruling on the motion for a mistrial, and the appeals court made its decision notwithstanding the letter. Still, something does seem rotten here. Justice Stewart seemed the most troubled by what happened. But rotten or not, change of heart or not, I think the Cleveland Clinic is going to prevail on its first proposition of law, that once 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). For the Clinic, Mr. Funk stuck to that talking point over and over.
But even if the Cleveland Clinic does prevail on this point, I don’t think the Court will reinstate the defense verdict. I see no way the Court is going to rule on the other assignments of error before the appeals court, despite Mr. Funk’s best efforts to get them to. I think the case will be remanded to the court of appeals.
Justice DeWine really drilled Mr. Mellino, Jones’ lawyer, about now arguing that the jurors weren’t properly polled because the record reflected that one or two of the jurors failed to verbally indicate their assent that this was their verdict. While apparently Mr. Mellino did not raise that issue in the briefing or below, he did object to the judge accepting the verdict, and just a couple of weeks ago, in Phoenix Lighting Group, L.L.C. v. Genlyte Thomas Group, L.L.C, Slip Opinion No. 2020-Ohio-1056, one of the things the Court held was that while normally arguments not raised below are waived, once a claim is properly presented, new arguments can be made to support that claim. Parties aren’t limited to the exact arguments they made below. Wouldn’t that apply here?
To Student Contributor Carson Miller
As much as the facts of this case seem to point to several jurors changing their minds to avoid coming back the following Monday, I think a majority of the Court supports Cleveland Clinic’s proposition that courts should not make inquiries into the motivations behind verdicts. I think that the Court likely remands the case back to the Eighth District to determine the outstanding issues. Counsel for Jones fell into the all too common trap of attempting to relitigate the facts of the case on appeal rather than address the propriety of the Eighth District’s decision to overturn the jury verdict.
To a certain extent, I sympathize with the desire to argue the facts here—it is difficult to look at the record and find any way that the jurors changed their minds on the facts before them. But that is not this issue on appeal, and Counsel failed to make an argument in support of upholding the Eighth District’s analysis on the jury issue.