Update: On April 1, 2021, in an opinion written by Judge Frank Celebrezze, Jr. and joined by Judges Eileen A. Gallagher and Mary Eileen Kilbane, the Eighth District overruled the remaining assignments of error regarding the manifest weight of the evidence, Civ. R. 30(B)(5) testimony of the designated witness for the Cleveland Clinic, and a motion to compel discovery documents, and affirmed the judgment of the trial court.

“…[W]hat Jones complains of is exactly the type of internal juror dynamics that the aliunde rule is designed to keep sacrosanct.”

Justice DeWine, majority opinion

“The option the court gave to the jury of continuing deliberations into the late hours of a Friday evening or returning on Monday morning left the jury between a rock and a hard place. It is no surprise that under circumstances like this, jurors might put their own personal interests above the interests of the parties.”

Justice Stewart, separate concurrence

On July 23, 2020, the Supreme Court of Ohio handed down a merit decision in Jones v. Cleveland Clinic Found., 2020-Ohio-3780. In an opinion written by Justice DeWine, joined by Chief Justice O’Connor and Justices French, Kennedy, Fischer and Judge Lynne S. Callahan sitting for Justice Donnelly, and in which Justice Stewart wrote a separate concurrence, the Court held that the trial court properly denied the plaintiff’s motion for a new trial and properly refused to consider a post-trial change-of-heart letter from a juror. The case was argued March 11, 2020.

Case Background

Lots of detail needed as context to understand this one.

About two weeks before he died, ReDon Jones went to the Cleveland Clinic’s Hillcrest Hospital complaining of chest pain. The cardiologist who evaluated him ordered a stress test, which was performed the following week. The results were interpreted as negative for ischemia. A week later, ReDon suffered a fatal heart attack.

Madora Jones, (“Jones”) ReDon’s wife and the administrator of his estate, filed a medical malpractice and wrongful death action against the cardiologist, Hillcrest Hospital, and the Cleveland Clinic Foundation (collectively, “the Cleveland Clinic”), alleging that the cardiologist had been negligent in failing to order a cardiac catheterization, which would have found the blocked artery and given the doctors the chance to save ReDon’s life.

Jury Deliberations

The trial in this case started on a Monday and ended on Thursday afternoon of the same week. Jury deliberations started Friday morning around 11 am. At 12:30 the jury sent out a note asking for clarification about the legal definition of standard of care and advising the court it was evenly split. The jury was advised to re-read the jury instructions and to keep deliberating. Shorty after that the jury took a lunch break and returned at 2:15 to continue deliberating. At 5 p.m. the jury again advised the court by note that it was evenly split at 4-4 and asked what to do. After conferring with counsel, the judge told the jury at 5:20 p.m. to keep deliberating.

At some point after the second note, a juror asked to be excused due to a family emergency. The trial judge asked the jury if it wanted to deliberate if that juror were excused and was told that it did. After talking it over with counsel, the juror with the family emergency was excused, an alternate juror seated, and the jury was instructed at about 7:20 p.m. it would have to start its deliberations over from the beginning.

After deliberating for about another hour, the jury sent a third note at around 8 p.m. stating it was deadlocked 4-4. With the agreement of counsel, the jury was again instructed to keep deliberating. An hour later, the jury sent out another note, which said the following:

“We are deadlocked at 50/50. Everyone is very strong in their decision and are not swaying based on the evidence. How long do we have to stay here tonight? Can we go home? We are tired, cranky, and see no change in our opinions, based on the evidence in the foreseeable future.”

At this point, it was around 9:30 p.m. With the agreement of counsel, the trial court sent the jurors a note telling them they could go home and return Monday morning to resume deliberations. The bailiff reported that upon receiving the note, a couple of jurors expressed the pointlessness of doing that since no one was going to change positions. The judge then discussed with counsel whether to deliver a Howard charge, and if so, whether to give it that night or Monday morning. While this discussion was going on, at around 10 p.m. the bailiff announced the jury had reached a verdict. Upon receiving it, the judge initially had to send the jury back because the jurors had not completed the general verdict forms, and he instructed them to do so. At this point, Jones’s lawyer stated that he did not think the court should accept the verdict under the circumstances. But Jones’s lawyer did not move for a mistrial.

When the jury returned for the final time, the court read the verdict, which was 6-2 in favor of the Cleveland Clinic. The six jurors in the majority were polled and each affirmed their votes.

Mistrial Motion

Jones subsequently filed a motion for a mistrial on the grounds that the court should have declared a mistrial sua sponte the night of deliberations rather than accept the verdict, given the apparent complete about-face less than half an hour after being instructed to return the following week to resume deliberations.

The Juror’s Letter

 One month after the trial, and while Jones’s motion for a mistrial was still pending, the trial court received a letter from a juror, explaining that while she had felt very strongly in favor of the plaintiff, she ultimately agreed to change her position to avoid having to return the following week, and that another juror had done the same thing. She wrote, “now I have to live with that decision which went against what I believed was right.”

Ruling on the Mistrial Motion

The trial court denied Jones’s motion for a mistrial. In doing so, the court expressly did not consider the juror’s letter because it contained no suggestion of any threat, bribe, or impropriety by an officer of the court, and was precluded by Evid.R. 606 (B).

The Appeal

In a unanimous opinion the Eighth District Court of Appeals reversed. As to the juror’s letter, the appeals court held that it was not precluded by Evid. R. 606(B) because “the juror who wrote the letter did not testify at a subsequent proceeding concerning the original verdict.”  The appeals court also found that even notwithstanding the juror’s letter, given the totality of the circumstances in this matter the trial court’s denial of the motion for a mistrial was an abuse of discretion, and that it was plain error not to give a Howard charge after getting the third and fourth notes from the jury.

The appeals court also sustained two other assignments of error relating to rulings on pretrial motions and did not rule on Jones’s final assignment of error which was that the verdict was against the manifest weight of the evidence.

Read the oral argument preview here and the analysis here.

Key Precedent

Civ.R. 59(A) (Allows for a new trial to be granted based on various issues that can arise at trial, including irregularity in the jury proceedings or misconduct of the jury, or at the sound discretion of the court.)

Evid.R. 606(B) (The validity of a jury verdict may not be impeached using juror testimony about jury deliberations, unless extraneous information or outside influences were improperly introduced to jurors.)

Jenkins v. Krieger, 67 Ohio St.2d 314 (1981). (A trial court has wide latitude in its discretion to grant a new trial where the jury’s verdict will result in manifest injustice.)

State v. Schiebel, 55 Ohio St.3d 71 (1990). (Under the aliunde rule, a juror may testify about juror misconduct only after evidence extraneous to and independent of the jury demonstrates the occurrence of improper conduct.)

Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997). (In civil cases, an error that was not timely raised in trial proceedings may only be corrected through plain error review in rare circumstances where, if left uncorrected, the error “would have a material adverse effect on the character of, and public confidence in, judicial proceedings.”)

State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467 (1998). (“When a trial court fails to rule on a pretrial motion, it may ordinarily be presumed that the court overruled it.”)

State v. Mason, 82 Ohio St.3d 144 (1998). (Absent evidence of outside influence or juror prejudice, to protect juror privacy, jury deliberations cannot be introduced as evidence to impeach a jury verdict.) 

State v. Hessler, 90 Ohio St.3d 108 (2000). (Juror testimony speaking to the juror’s state of mind during deliberations cannot be admitted to impeach a jury verdict.)

State v. Robb, 88 Ohio St.3d 59 (2000). (A Howard charge is a non-coercive instruction given to a jury that believes it is deadlocked to encourage another attempt at jury consensus.)

State v. Brown, 2003-Ohio-5059 (2003). (The determination of whether a jury has become irreconcilably deadlocked is to be made at the discretion of the court based on the circumstances particular to the case.)

Hayward v. Summa Health Sys./Akron City Hosp., 2014-Ohio-1913 (2013). (Substantial injustice exists where a court looks to the face of the record and finds “(1) errors and (2) that without those errors, the jury probably would not have arrived at the same verdict.”)

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.

Does the Court Adopt the Cleveland Clinic’s Propositions of Law?

Yes

Merit Decision

Analysis

The Court notes that the appeals court’s reasoning for why a new trial should have been granted was twofold, finding both that the trial court should have given a Howard charge and should have considered the juror’s letter.  Since the two reasons are intertwined, the Court considers each separately, and concludes that the appeals court was wrong on both counts in ordering a new trial.

The Juror’s Letter

The long-established common law rule, now incorporated into Evid. R, 606(B), prohibits the admission of juror testimony about the juror’s state of mind during deliberations to impeach a jury verdict. There are two exceptions to this rule. The first, known as the aliunde rule, allows a juror to testify about jury misconduct when evidence of that misconduct arises from a source outside the jury. The second allows juror testimony without outside evidence about any threat or attempted threat or bribe or improprieties by an officer of the court. Neither applies here. On the contrary, the juror’s letter was exactly the kind of thing a juror cannot testify to under the rule, and therefore it could not be used to impeach the verdict. The appeals court erred in finding otherwise.

The Howard Charge

A Howard charge is what is given to deadlocked juries, urging them to try one last time to come to agreement about the verdict. In this case, the trial court had decided to give the charge just when the jury had, unbeknownst to the court and counsel, reached its verdict and was discussing the timing of the charge with counsel. Before this, Jones had not requested a Howard charge.

The appeals court decided that it was plain error for the trial court not to have administered a Howard charge sua sponte after the third and fourth notes from the jury. But as the Court has previously held, plain error in a civil case is rarely recognized and is a brutally tough standard to meet. This just isn’t one of those cases.

A trial judge is in the best position to determine the timing of a Howard charge.  Certainly, better than the appeals court is. In this case, the third jury note came in at 8 p.m., but because of the seating of the alternate juror for the excused juror, at that point the jury had only been deliberating for about an hour, since they had to start deliberations over. So, no abuse of discretion for failure to give the Howard charge after the third note. Nor after the fourth. After getting that fourth note, the judge was just in the process of deciding with counsel when to give the Howard charge when the jury suddenly announced it had reached a verdict.

Trial Court Properly Refused to Grant New Trial

The Court agrees with the appeals court that Jones’s postverdict motion for a mistrial should be analyzed as a motion for a new trial. Under Civ. R. 59 (A)(1) and (2) the grounds for a new trial include irregularity in the proceedings, misconduct of the jury or prevailing party, and a catch-all provision for good cause shown. The Court finds none of the grounds present in the case. While the Court agrees deliberations went late into the night on a Friday, that was the jury’s choice. And starting at the point where the jury had to begin deliberations anew, the jury had only been deliberating less than three hours. So, the appeals court was wrong in deciding that matters relating to the jury deliberations warranted a new trial.

But the Case is  Not Over….

So, does this mean the Cleveland Clinic wins the malpractice case?   It does not. At least not yet. In addition to the proposition of law accepted in this case there were three other assignments of error before the appeals court. In one, the appeals court found that the trial court had erred in granting a motion in limine precluding Jones from introducing part of the deposition testimony of a Cleveland Clinic cardiac sonographer, but did not decide whether Jones was prejudiced by that ruling. The appeals court is directed to make that determination on remand, as well as dealing with some unresolved pretrial discovery motions. Perhaps most consequential is the unresolved assignment of error that the jury verdict was against the manifest weight of the evidence.  That one is also to be decided on remand.

Justice Stewart’s Separate Concurrence

While Justice Stewart concurred in the majority decision, she wrote separately to express her concerns about the way the trial court handled this case. “The nearly 11 hours that the jury deliberated on the final day became an ordeal,” she wrote. She very gently criticized the trial judge for trying to be overly accommodating at the beginning of the case, promising the jury the case would be in their hands by Friday, which both gave false expectations to and put additional pressure on the jurors.

“… Our system of jury service does jurors a disservice by the way we sometimes treat them,” Stewart wrote. “One example is by asking them to change their life plans at the last minute. Trial courts could avoid this by refraining from making promises that risk creating expectations the trial court may be unable to keep. It is unfair to the jurors and unfair to the parties to require a jury to render a verdict when the primary focus of the jurors is the end of their jury service. These problems are all apparent in this case. Regardless of which side prevails, the confidence in a jury verdict rendered under circumstances like these is tenuous at best.”

Case Disposition

The appeals court is reversed in its finding that the trial court should have ordered a new trial, but the case is remanded to the appeals court to decide the remaining assignments of error in a manner consistent with this opinion.

Trial Court Judge (affirmed on the  new trial issue)

Cuyahoga County Common Pleas Court Judge Brendan Sheehan

Eighth District Panel (reversed on the new trial issue)

Opinion Author Frank D. Celebrezze, Jr. joined by Judges Eileen A. Gallagher and Mary Eileen Kilbane, 

Concluding Observations

Here’s what I wrote after argument:

“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.”

I don’t think this decision adds much of anything to the Court’s jurisprudence in this area. But I wouldn’t call this a defense victory yet, either, despite the best efforts of the Cleveland Clinic’s lawyer to keep the case from being remanded.  The appeals court still has to make a weight-of-the-evidence decision, and although that is a very difficult standard to meet, this one may just make it.

I think Justice Stewart had the most useful things to say in this matter.  I think having any confidence in this verdict is very dubious, either way, given the entire course of events that evening.  While I agree it was improper to consider the juror’s letter, it certainly confirms why this verdict is on shaky ground.