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MERIT BRIEF OF AMICUS CURIAE THE ACADEMY OF MEDICINE OF
CLEVELAND & NORTHERN OHIO IN SUPPORT OF APPELLANTS THE
CLEVELAND CLINIC FOUNDATION ET AL.
IN THE SUPREME COURT OF OHIO
Madora Jones, Administrator
Of the Estate of Redon Jones
Appellee,
-vs-
The Cleveland Clinic
Foundation, et al.,
Appellants.
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Case No. 2019-0390
On Appeal from the Cuyahoga County
Court of Appeals, Eighth Appellate
District, Case No. 107030
CHRISTOPHER M. MELLINO
MEGHAN C. LEWALLEN
MARGO KAY MOORE
CALDER C. MELLINO
The Mellino Law Firm, L.L.C.
19704 Center Ridge Road
Rocky River, OH 44116
Email: [email protected]
PAUL W. FLOWERS
Paul W. Flowers Co., L.P.A.
50 Public Square, Suite 1910
Cleveland, OH 44113
Phone: (216)-344-9393
Email: [email protected]
Attorneys for Appellee, Madora
Jones, Administrator of Estate of
Radon Jones
STEPHEN W. FUNK (0058506)
(Counsel of Record)
Roetzel & Andress, L.P.A.
222 S. Main Street, Suite 400
Akron, OH 44308
419-843-2001 phone
419-841-2608 fax
Email: [email protected]
R. MARK JONES (0009910)
TAMMI J. LEES (0077896)
Roetzel & Andress, L.P.A.
1375 E. 9th Street; 10th Floor
Cleveland, OH 44114
Phone: (216)-623-0150
Email: [email protected]
Attorneys for Appellants
The Cleveland Clinic Foundation, et
al.
Supreme Court of Ohio Clerk of Court - Filed September 09, 2019 - Case No. 2019-0390
BRIAN D. SULLIVAN (#0063536)
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115-1093
Phone: (216) 430-2190
Email: [email protected]
Attorney for Amicus Curiae The
Academy of Medicine of Cleveland &
Northern Ohio
i
TABLE OF CONTENTS
I STATEMENT OF INTEREST OF AMICUS CURIAE .............................. 1
II. STATEMENT OF FACTS .............................................................................. 4
III. ARGUMENT .................................................................................................... 8
Appellant’s Proposition of Law No. 1
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) .................................................................................. 8
1. Evid. R. 606(B) generally precludes a juror from offering
testimony to impeach a verdict, except in rare instances
where there is evidence of clear improper external conduct .......... 8
2. Evid. R. 606(B) is the codification of a long-standing
common law doctrine prohibiting the use of juror testimony
to impeach their verdicts ............................................................ 11
3. Evid. R. 606(B)’s limited exception is not applicable in this case. 13
4. Evid. R. 606(B) provides for the finality of jury verdicts, especially
in instances where the jurors were polled and affirmed their assent
to the verdict. .................................................................................. 17
Appellant’s Proposition of Law No. 2
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............................................................................. 20
IV. CONCLUSION .............................................................................................. 24
ii
TABLE OF AUTHORITIES
Cases
United States Supreme Court Cases
Jenkins v. United States,
380 U.S. 445, 446 (1965) .............................................................................................. 13
Mattox v. U.S.,
146 U.S. 140, 148 (1892) .......................................................................................... 9, 10
McDonough Power Equip. v. Greenwood,
464 U.S. 548, 555 (1983) .............................................................................................. 17
Pena-Rodriguez v. Colorado,
137 S.Ct. 855, 861 (2017) ......................................................................................... 9, 10
Tanner v. United States,
483 U.S. 107, 127 (1987) .................................................................................. 10, 13, 21
Supreme Court of Ohio Cases
Adams v. State,
141 Ohio St. 423, 431 (1943) ....................................................................... 8, 10, 12, 17
Emmert v. State,
127 Ohio St. 235, 241, 187 N.E. 862 (1933). .............................................................. 12
Grundy v. Dhillon,
120 Ohio St.3d 415, 426, 2008-Ohio-6324, 900 N.E.2d 153 ........................... 11, 17, 20
Hoffman v. Davidson,
31 Ohio St.3d 60, 62, 508 N.E.2d 958 (1987) .............................................................. 17
Kent v. State,
42 Ohio St. 426, 436 (1886) ........................................................................................... 8
Lund v. Kline,
133 Ohio St. 317, 319 (1938) ............................................................................. 8, 11, 16
Schwindt v. Graeff,
109 Ohio St. 404, 407, 142 N.E. 736 (1924) .......................................................... 10, 11
iii
State v. Hessler,
90 Ohio St.3d 108, 123, 734 N.E.2d 1237 (2000) .............................................. 9, 11, 16
State v. Mason,
82 Ohio St.3d 144, 167, 694 N.E.2d 932 (1998) .......................................................... 12
State v. Reiner,
89 Ohio St.3d 342, 350, 2000-Ohio-190, 731 N.E.2d 662) .......................................... 20
State v. Robb,
88 Ohio St.3d 59, 79, 723 N.E.2d 1019 (2000) ........................................... 8, 11, 12, 13
State v. Schiebel,
55 Ohio St.3d 71, 75, 564 N.E.2d 54 (1990) .......................................................... 11, 21
State v. Williams,
99 Ohio St.3d 493, 498-99, 2003-Ohio-4396, 794 N.E.2d. 27. .............................. 15, 16
Ohio District Court of Appeals Cases
Jones v. Cleveland Clinic Found.,
2019-Ohio-347, 119 N.E.3d 490, ⁋ 8 (8th Dist.) .................................................. passim
Foreign Authority
Commonwealth v. Abnee,
375 S.W.3d 49, 51 (2012) ....................................................................................... 20, 21
Vaise v. Delaval,
1 T. R., 11 (K. B.).......................................................................................................... 10
Legislative History
S. Rep. No. 93-1277 pp. 13-14 (1974) .......................................................................... 15
Rules
Federal Rules of Evidence, Rule 606(B) ................................................................ 13, 15
Ohio Rules of Evidence, Rule 606(B) .................................................................. passim
iv
Secondary Sources
Dale Ann Sipes et al., On Trial: The Length of Civil and Criminal Trials, NATIONAL
CENTER FOR STATE COURTS 10 (1988) ......................................................................... 14
Dennis J. Devine et al., 45 Years of Empirical Research on Deliberating Groups, 7
Psych., Pub. Pol’y, & Law 622, 703 (2001) ................................................................ 2
Ohio Dept. of Insurance, Ohio 2015 Medical Professional Liability Closed Claims
Report 2 (2018) ......................................................................................................... 2
Philip G. Peters, Twenty Years of Evidence on the Outcome of Medical Malpractice
Claims, 467 Clinical Orthopedics and Related Research 352 (2009). ................ 2, 18
The Supreme Court of Ohio, Ohio Courts Statistical Report 17 (2017) ..................... 2
Thomas L. Brunell, Chetan Dave & Nicholas C. Morgan, Factors Affecting the Length
of Time a Jury Deliberates: Case Characteristics and Jury Composition, 5:1 REVIEW
OF LAW AND ECONOMICS 555, 556, 565-66 (2009) .................................................... 14
1
I. STATEMENT OF INTEREST OF AMICUS CURIAE
The Academy of Medicine of Cleveland & Northern Ohio (“AMCNO”) is a
professional medical association serving the northern Ohio community. AMCNO
functions as a non-profit 501(c)(6) professional organization in representing Northern
Ohio’s medical community through legislative action and community outreach
programs. This professional organization has been in existence since 1824, and
became known as The Academy of Medicine in 1902. Now known as the AMCNO, it
has a membership of over 5,000 physicians, making it one of the largest regional
medical associations in the entire United States.
AMCNO strives to provide legislative advocacy for its physician members
before the Ohio General Assembly, state medical board, other state and federal
regulatory boards, and Ohio courts. AMCNO also sponsors numerous community
initiatives. AMCNO works collaboratively with hospitals, chiefs of staff, and other
related organizations, on a myriad of different projects of interest and/or concern to
its members. Simply put, AMCNO is the voice of physicians in northern Ohio, and
has been so for over 190 years.
Physicians, including those in the northern Ohio community, are often
litigants in a wide variety of civil litigation. Thus, it is appropriate that AMCNO
weigh in on matters of important policy when such matters implicate the interests of
its physician members. AMCNO has an interest in the present subject matter because
the outcome of this appeal directly impacts AMCNO membership. AMCNO’s
membership is comprised of members of the medical profession who, along with other
2
healthcare providers, are the traditional defendants in medical malpractice actions.
These medical professionals are called to defend in the thousands of medical
malpractice suits that are pending in Ohio every year. See The Supreme Court of
Ohio, Ohio Courts Statistical Report 17 (2017) (reporting that over 3,000 professional
tort claims were pending in Ohio courts in 2017); Ohio Dept. of Insurance, Ohio 2015
Medical Professional Liability Closed Claims Report 2 (2018) (stating that over 2,000
medical malpractice claims were reported in 2015). Though plaintiffs file a
substantial volume of medical malpractice claims, they only prevail about thirty
percent of the time. Dennis J. Devine et al., 45 Years of Empirical Research on
Deliberating Groups, 7 Psych., Pub. Pol’y, & Law 622, 703 (2001). Conversely,
healthcare providers, AMCNOs membership included, prevail in a supermajority of
medical malpractice suits. Philip G. Peters, Twenty Years of Evidence on the Outcome
of Medical Malpractice Claims, 467 Clinical Orthopedics and Related Research 352
(2009). The rule Ms. Jones promulgates would empower jurors and unsuccessful
litigants to potentially throw into question the large number of defense verdicts in
medical malpractice cases.
Relitigating the validity of trial court decisions is not only inefficient, but it
also undermines the integrity and finality of the time-honored jury system. The
Eighth District Court of Appeals decision concluding that the trial court abused its
discretion by not granting a mistrial opens a “pandora’s box” and permits Ohio courts
to reexamine a verdict on the basis of a jurors’ unsworn, post-trial statements about
their personal motivations for their vote. This rule means that jury verdicts are not
3
final even if all jurors affirm their vote before the court.
If this Court allows jurors to undermine the validity of private, candid jury
deliberations, medical professionals across the state will be unduly burdened with
the obligation to relitigate their medical malpractice cases. Ms. Jones asks for a legal
structure that would preclude the efficient, final disposition of medical malpractice
actions. Such a rule would require medical professionals, who have already
successfully and extensively presented the merits of their case to a jury, to re-defend
their favorable verdict.
Moreover, if the appellate court decision is left to stand, jurors likely will be
subject to harassment from litigants dissatisfied with their verdict. Unsuccessful
litigants will be incentivized to question jurors to determine if any of them were tired,
hungry, dissatisfied or otherwise have regrets about their decision. This harassment
not only unduly burdens jurors, but also threatens to extend litigation in an otherwise
settled matter. This Court should seek to preemptively protect against the potential
for harassment.
AMCNO has an interest in opposing Ms. Jones’ legal position, as it inhibits the
efficient, just, and final disposition of medical malpractice actions against its
members. For the foregoing reasons, AMCNO has a strong and vested interest in the
outcome of this matter. AMCNO urges on behalf of its entire membership that this
Court reverse the decision of the Eighth District Court of Appeals and reinstate the
jury verdict.
4
II. STATEMENT OF FACTS
The underlying litigation involves a medical malpractice action that Appellee
Madora Jones filed against Appellants The Cleveland Clinic Foundation on April 12,
2016. Trial Docket and Journal Entries at 1 (“T.d.”), Complaint. Ms. Jones brought
her claim on behalf of the estate of her late husband, ReDon Jones, who died from a
heart attack. T.d. 1, Complaint. Before his death, Mr. Jones sought care for his chest
pain at Cleveland Clinic’s Hillcrest Hospital. Id. The physicians at Hillcrest
evaluated Mr. Jones and administered an electrocardiogram (“EKG”) to determine
the cause of his chest pain. Jones v. Cleveland Clinic Found., 2019-Ohio-347, 119
N.E.3d 490, ⁋ 2 (8th Dist.). The EKG did not show any elevations. Id. A few days later,
the physicians again sought to determine the source of Mr. Jones’ chest pain, this
time by administering a nuclear stress test. Id. at ⁋ 4. Mr. Jones, however, refused
the nuclear stress test because it would aggravate his claustrophobia. Id. A week
later, the physicians administered a stress-echo test. Id. Despite the efforts of the
Cleveland Clinic medical team, Mr. Jones suffered a fatal heart attack while at home
on July 9, 2012. T.d. 1, Complaint.
Ms. Jones filed suit with the Cuyahoga Court of Common Pleas alleging
wrongful death and medical malpractice. T.d. 1, Complaint. The suit culminated in a
trial that lasted about four days and involved testimony on behalf of both parties from
several expert witnesses. See T.d. 43, Ms. Jones’ exhibit list; T.d. 44, trial brief of
Cleveland Clinic (detailing the list of exhibits and witnesses for trial); see also T.d.
95, journal entry case called for jury trial; T.d. 104, journal entry jury trial continues
5
(indicating that trial began on 10/30/2017 and ended on 11/3/2019). After the
conclusion of the proceedings, the court charged the eight-person jury to “[c]onsult
with one another in the jury room, and deliberate with a view of reaching an
agreement if you can do so without disturbing your individual judgment.” Jones, at ⁋
8. The jury began deliberations at 11:00 a.m. T.d. 117, Trial Court Opinion and
Judgment Entry. At 12:30 p.m. the jury sent a note to the court, asking for
clarification about the legal definition of the standard of care, and alerting the court
that their votes were evenly split. Id. The court instructed them to continue
deliberations. Id. Shortly thereafter, around 1:00 p.m., the jury was dismissed for
lunch. Id. Deliberations resumed around 2:15 p.m. Id.
At 5:00 p.m. the jury sent a note to the court indicating that they were
deadlocked. Id. After consultation with counsel, the court again instructed the jury
to continue deliberations. Then, at 7:00 p.m. a juror asked to be excused to attend to
his grandmother, who was in the hospital due to a fall. Id. After conferencing with
the attorneys, the court dismissed the juror and empaneled the alternate juror. Id.
The court then gave the jury the choice to end deliberations for the day, or to continue
deliberations with an alternate juror. Id. The court specifically asked the jury
whether they wanted to continue to deliberate with the new juror, and the jury
replied, “Yes.” T.d. 117, Trial Court Opinion and Judgment Entry. The court then
instructed the jury that they would need to “begin their deliberations anew.” Id.
The jury deliberated for a total of about two to three hours with the new
alternate juror. T.d. 117, Trial Court Opinion and Judgment Entry. About an hour
6
into their new deliberations, the jury indicated that they were deadlocked. Id. With
the agreement of counsel for both parties, the court instructed the jury to keep
deliberating, as they had only been deliberating for one hour. Id. At 9:00 p.m. the jury
again indicated that they were deadlocked. Id. After the jury sent their 9:00 p.m. note,
the court, with the consent of counsel, advised the jurors that they had permission to
leave for weekend, and that they were to reconvene on Monday to resume
deliberations. Id. Though the jurors expressed disappointment in having to reconvene
on Monday, no juror voiced their inability to return on Monday to deliberate. Id. At
10:00 p.m., the jury announced to the court that they had reached a 6-2 defense
verdict. Id.; T.d. 109, jury verdict journal entry. To ensure the validity of the verdict,
the court individually polled the jury to confirm their assent to the verdict. T.d. 117,
Trial Court Opinion and Judgment Entry. Each juror proceeded to confirm, under
oath, that their vote was accurately reported. Id. Thus, the court entered a defense
verdict for the Cleveland Clinic. T.d. 118, judgment entry consistent with jury’s
verdict.
During this entire period, Ms. Jones’ counsel did not seek a mistrial, nor did
he argue that the jury had reached an unbreakable deadlock. T.d. 117, Trial Court
Order and Judgment Entry. In fact, Ms. Jones’ counsel did not object to any aspect of
the jury deliberation process. Id. (“Notably, Plaintiff did not object to any aspect of
the jury deliberations to this point.”). The following Monday, Ms. Jones filed a motion
for mistrial, requesting that the court invalidate the verdict “based on the
circumstances of the jury’s deliberations.” T.d. 105, Ms. Jones’ motion for mistrial.
7
Essentially, Ms. Jones asked the court to infer that the verdict was invalid from the
circumstantial facts that the jury’s decision occurred after a deadlock and after they
were instructed to return on Monday. Id.
One month after trial, and while the motion was pending, a juror wrote a letter
to the court stating that she regretted her defense vote. See T.d. 111, journal entry of
12/12/2017 attorney conference; T.d. 113, Ms. Jones’ supplemental brief in support of
her motion for mistrial; T.d. 116, Cleveland Clinic’s brief in opposition to Ms. Jones’
motion for mistrial. The juror’s letter voiced her opinion that serving as a juror was
a stressful and frustrating experience. Id. The juror, however, did not allege that any
threat, bribe, or improper conduct of a court official was brought to bear upon her
decision making. Id. See also T.d. 117, Trial Court Order and Judgment Entry.
The court denied the motion for mistrial noting that (1) the jury had only been
deliberating for about two hours concerning a week-long medical malpractice case;
(2) the jury chose, voluntarily, to stay late that day; and (3) the jury had not alleged
that their ability to be fair had been compromised. T.d. 117, Trial Court Order and
Judgment Entry. Finally, the court concluded that “as a matter of law, … requiring
jurors to return for juror service on … Monday … is not coercive. It may be
inconvenient, it may be undesirable, but it is simply not legally coercive.” Id. In
deciding the motion for mistrial, the court did not consider the juror’s unsworn, post-
trial letter because it was inadmissible evidence pursuant to Ohio Evid. R. 606(B).
Id. Specifically, the court concluded that Evid. R. 606(B) only allows jurors to testify
about “a threat, any bribe, any attempted threat or bribe, or any improprieties of any
8
officer of the court,” and because the juror’s letter did not address any of these factors,
it was not competent evidence. Id.
On appeal, the Eighth District concluded that the trial court abused its
discretion by denying the motion for mistrial because the jury “broke a previously
unbreakable deadlock.” Jones, at ¶ 29. Further, the Eighth District held that Evid.
R. 606(B) did not preclude the court from considering the juror’s letter. Id. at ⁋ 32.
The court ruled that Evid. R. 606(B) was “wholly inapplicable in this case” because
“the juror who wrote the letter did not testify at a subsequent proceeding concerning
the original verdict.” Id. at ⁋⁋ 34-35. Thus, the Eighth District Court of Appeals
reversed and remanded the matter for another trial. Id. at ⁋ 60.
III. LAW AND ARGUMENT
Appellant’s Proposition of Law No. 1
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)
1. Evid. R. 606(B) generally precludes a juror from
offering testimony to impeach a verdict, except in
rare instances where there is evidence of clear
improper external conduct.
Once jurors are polled and confirm their verdict, Evid. R. 606(B) precludes
inquiry into the juror’s motivations unless there is evidence that some outside party
threatened, bribed or otherwise improperly influenced their decision making. Evid.
R. 606(B) provides that juror testimony is incompetent evidence to impeach a verdict
except in rare, narrow circumstances:
9
[A] juror may not testify as to any matter or statement occurring during
the course of the jury's deliberations or to the effect of anything upon
that or any other juror's mind … [except whether] extraneous prejudicial
information was improperly brought to the jury's attention….
(emphasis added).
Evid. R. 606(B) prohibits the use of a juror’s personal thoughts to upset a jury’s
verdict. That same juror, however, might be able to testify as to select external acts
of misconduct. State v. Robb, 88 Ohio St.3d 59, 79, 723 N.E.2d 1019 (2000) (noting
that exceptions to Evid. R. 606(B) exist only when an extraneous influence is
involved) (internal citations omitted). This is because a juror’s personal motivations,
being internal, cannot be challenged or verified through other testimony. This rule
conforms with Ohio’s aliunde rule, which requires a party to produce competent
evidence outside of juror testimony to support an impeachment of a verdict. Lund v.
Kline, 133 Ohio St. 317, 319 (1938) (explaining that juror testimony is only
appropriate if it can be supported or challenged by external evidence); Kent v. State,
42 Ohio St. 426, 436 (1886) (holding that juror affidavits could not be properly
considered in a motion for new trial because they contained unverifiable allegations
of jury misconduct during deliberations). The rule precludes juror testimony
concerning their emotional or mental processes during deliberations, as there could
be no evidence, aliunde, in such circumstances. Robb, at 79 (interpreting Evid. R.
606(B) as restricting a juror’s competence to testify about their mental impressions
during their deliberations).
In contrast, a juror’s testimony as to select external influences, like threats or
bribery, can be considered without evidence aliunde because the other jurors might
10
testify as to whether the acts of misconduct actually occurred. Adams v. State, 141
Ohio St. 423, 431 (1943) (holding that juror testimony as to an inappropriate
statement by a court official was admissible because it was in connection with an
external event). This constitutes an exception to the requirement that juror's
testimony must be conditioned upon introduction of other evidence. Notably, the text
of Evid. R. 606(B) states that this exception relates only to matters involving threats,
bribes or external events. All other juror affidavits or statements of the juror are
prohibited by the rule. See, e.g., State v. Hessler, 90 Ohio St.3d 108, 123, 734 N.E.2d
1237 (2000) (excluding juror affidavit because it did not meet the Evid. R. 606(B) test
for admission without first presenting external evidence). This distinction prevents a
sole juror, like the juror whose note is in controversy in the instant case, from
upheaving the result of an otherwise settled trial with nothing more than an account
of their personal perceptions.
The existing jury-trial system, without extra-judicial jury testimony, has
mechanisms in place to ensure that a jury reaches a verdict that accurately reflects
their judgment. The jury must listen to a full trial and consider all the admissible
evidence; they must listen to their peers and defend their positions during
deliberation; and in this case, they had to confirm under oath that their vote was an
honest one. Through this process, a juror’s opinions are properly formed, tested, and
then verified. In almost all cases, this trial procedure is sufficient to produce an
accurate jury verdict. Pena-Rodriguez v. Colorado, 137 S.Ct. 855, 861 (2017)
(explaining that “experience shows” that a jury trial, jury instructions, and candid
11
jury deliberations all combine to produce fair and impartial verdicts). A single juror’s
personal thoughts should not be sufficient to usurp this entire judicial process. Mattox
v. U.S., 146 U.S. 140, 148 (1892) (stating that public policy forbids the "secret
thought[s] of one [juror from having] the power to disturb the expressed conclusions
of [all the other jurors].")1 Therefore, as a general rule, jurors are prohibited from
impeaching their own verdicts. Schwindt v. Graeff, 109 Ohio St. 404, 407, 142 N.E.
736 (1924); Adams, at 427.
2. Evid. R. 606(B) is the codification of a long-standing common
law doctrine prohibiting the use of juror testimony to
impeach their verdicts.
This evidentiary rule is firmly rooted in Ohio and American law and stands to
protect important public policy. The rule that a juror may not present their personal
sentiment to impeach their own verdict has been part of Anglo-American
jurisprudence since the late 18th century, when Lord Mansfield, Chief Justice,
declared:
The court cannot receive such an affidavit from any of the jurymen
themselves * * * but in every such case the court must derive their
knowledge from some other source: such as from some person having
seen the transaction through the window, or by some such other means
Schwindt, at 406-07 (citing Vaise v. Delaval, 1 T. R., 11 (K. B.)).
By the time that the Fourteenth Amendment to the Constitution was ratified,
Lord Mansfield’s no-impeachment rule had become an institution in American law.
1 The Mattox court allowed the admission of juror affidavits that indicated that the jury consulted information that was not in evidence, including a prejudicial newspaper article. Maddox, at 151. Federal courts eventually overruled Maddox’s liberal evidentiary holding in favor a stricter ban on juror affidavits. See Pena-Rodriguez, at 864. However, this evolution in federal law does not overrule Maddox’s observation that a lone juror should not have the power to overturn a settled decision.
12
Pena-Rodriguez, at 863; Tanner v. United States, 483 U.S. 107, 127 (1987) (identifying
that “long-recognized and very substantial concerns support the protection of jury
deliberations from intrusive inquiry”). Today, states have varied their application of
the no-impeachment rule, but in general, they have all adopted the Mansfield rule as
a matter of common law. Pena-Rodriquez, at 863. Currently, the federal courts along
with most state courts, including Ohio, have adopted a broad no-impeachment rule
with limited exceptions for testimony about prejudicial extraneous information or
other improper external influences. Id. at 864; Schwindt, at 408.
For 100 years, Ohio has precluded jurors from impeaching a verdict with
testimony about their own subjective beliefs, thoughts, or motives during
deliberations. For example, in a 1924 opinion, this Court prohibited a juror from
offering testimony that several of their jurors made their decision based upon a coin
toss. See generally Schwindt. While the court recognized the reality that prohibiting
juror testimony about subjective motivations for a jury verdict “will not further the
ends of justice in all cases,” they ultimately determined that it is “designed to
accomplish justice in the greatest number of cases.” Id. at 408. Fourteen years later,
in 1938, the Ohio Supreme Court affirmed its position and excluded juror testimony
that alleged that the jurors, instead of deliberating over guilt or damages, simply
wrote their positions on a piece of paper and then averaged all their votes. Lund, at
320. In these cases, this Court refused to inquire into a jury’s motivation for its
verdict.
13
To this day, Ohio still recognizes “[a] firmly established common law rule” that
“flatly prohibits the admission of juror testimony to impeach a jury’s verdict.” Hessler,
at 123. See also Grundy v. Dhillon, 120 Ohio St.3d 415, 426, 2008-Ohio-6324, 900
N.E.2d 153 (detailing Evid. R. 606(B)’s preclusive effects). Ohio Evid. R. 606(B)
codifies this general common law prohibition on the admission of jury testimony.
Robb at 79 (noting that Evid. R. 606(B) “reflects” the common law rule prohibiting
the admission of juror testimony). The rule itself begins by explaining that it is largely
inappropriate for jury testimony to be used to impeach a verdict. Id.; State v. Schiebel,
55 Ohio St.3d 71, 75, 564 N.E.2d 54 (1990) (“[t]he first sentence of Evid. R.
606(B) embodies the common-law tradition of protecting and preserving the integrity
of jury deliberations by declaring jurors generally incompetent to testify …”). The
rule then provides a single exception: that a juror might testify to “any outside
evidence concerning any threat, any bribe, any attempted threat or bribe, or any
improprieties of any officer of the court.” Evid. R. 606(B).
3. Evid. R. 606(B)’s limited exception is not applicable in this
case.
Ohio courts apply this exception in very narrow circumstances where there is
clear, improper external influence that was brought to bear upon the jurors. Robb, at
79 (holding that exceptions exist to Evid. R. 606(B)’s general preclusions when an
extraneous influence is involved) (internal citations omitted); State v. Mason, 82 Ohio
St.3d 144, 167, 694 N.E.2d 932 (1998) (holding that a party must present evidence of
outside influence to avoid Evid. R. 606(B)’s exclusionary rule). For example, this
Court allowed juror testimony to establish that a bailiff told the jurors that the judge
14
wanted them to find the defendant guilty and that if they did not reach a verdict, they
would be locked up for the night. Emmert v. State, 127 Ohio St. 235, 241, 187 N.E.
862 (1933). This Court again allowed juror testimony when it was alleged that the
bailiff had improperly told the jurors that they could not cease deliberating, even if it
took three months to reach a decision. Adams, at 424. These were, in the court’s own
words, cases of “gross misconduct” that was proven by “undisputed evidence” and
its “influence on the final verdict of the jury cannot reasonably be denied.” Adams, at
431; Emmert, at 241.
This case is not one of those select, narrow instances in which a juror’s
testimony becomes admissible. In this instance, the juror has alleged nothing more
than that she was tired, frustrated with the demands of jury duty, and wanted to go
home. Jones, at ⁋ 16. She did not allege that any threat or bribe influenced her vote.
Id. Similarly, she did not allege that any that any improper external conduct
influenced her decisions. Id.
The juror did not, and could not, allege improper external influence because at
no point during the trial did the court engage in improper conduct. Ms. Jones submits
that the trial court unintentionally coerced the jurors into reaching a hasty decision
when it ordered them to return to deliberate on Monday. T.d. 105, Ms. Jones’ motion
for mistrial. The record, however, does not support Ms. Jones’ assertion. There is no
evidence that the court gave coercive instructions that pressured the jury to change
their decisions. Ms. Jones’ allegations of impropriety rest on the assumption that the
jury was too fatigued to continue the deliberations necessary to render an appropriate
15
verdict. Memorandum in Response to Jurisdiction of Appellees filed April 15, 2019 p
1. (the jury “hurriedly” returned a verdict). Testimony of juror fatigue, however, is
inappropriate evidence of a juror’s mental state, and as such, does not present
sufficient grounds to pierce the vital protections of Evid. R. 606(B).
According to The Supreme Court of the United States, Fed. Evid. R. 606(b)
would preclude evidence of juror fatigue even in extreme cases when “one or more
jurors was inattentive during trial, sleeping, or thinking about other matters.”
Tanner, at 121. Even if the jurors were fatigued, Ohio courts have consistently held
that it is not coercive to encourage hung juries to reach a verdict, even if they have
been deliberating for a protracted period of time See Robb, at 81 (listing cases).
Compare Jenkins v. United States, 380 U.S. 445, 446 (1965) (explaining that a judge
cannot mandate a jury to reach a verdict). Thus, the trial court’s decision to instruct
the jurors to “keep deliberating” was not coercive under Evid. R. 606(B).
Though the Court directed the jurors on occasion to continue deliberating, the
court never forced the jury to stay late. To the contrary, the court repeatedly
empowered the jurors to deliberate at their own pace. When a juror asked to leave to
attend to a family emergency, the court released him, and then gave the jury the
choice to stay and deliberate or to leave and come back. T.d. 117, Trial Court Order
and Judgment Entry. The jury voluntarily chose to stay. Id. As a result each member
of the jury was “well aware that they could be excused with the remaining alternate
to be seated in their stead with [one juror] having already been excused.” Id.
16
Eventually, after only a few hours of deliberating with the new jury, the jurors
were advised that they were free to leave that Friday evening and reconvene on
Monday. T.d. 117, Trial Court Order and Judgment Entry. It was not unreasonable
for the court to ask the jury to continue to deliberate, as they had deliberated for only
about 2-3 hours with the new jury, which is about the average deliberation time for a
jury in a medical malpractice case. See, e.g., Dale Ann Sipes et al., On Trial: The
Length of Civil and Criminal Trials, NATIONAL CENTER FOR STATE COURTS 10 (1988)
(finding that juries in professional malpractice cases took an average of 148 minutes
to deliberate). See also Thomas L. Brunell, Chetan Dave & Nicholas C. Morgan,
Factors Affecting the Length of Time a Jury Deliberates: Case Characteristics and
Jury Composition, 5:1 REVIEW OF LAW AND ECONOMICS 555, 556, 565-66 (2009)
(finding that some juries take anywhere from 100 minutes to nearly 400 minutes to
make a decision).
At the time, Ms. Jones’ trial counsel voiced no concern with the trial court’s
conduct. In fact, Ms. Jones’ counsel did not object to any of the judge’s instructions
and responses to jury questions, including the final instruction that the jury should
reconvene for further deliberations on Monday morning. Memorandum in Support of
Jurisdiction of Appellants filed March 15, 2019 p 10. Ms. Jones openly admits in her
motion for mistrial that the court did not have any “intent to force the jury’s hand.”
T.d. 105, Ms. Jones’ motion for mistrial. Accordingly, there was no threat, bribe, or
improper external influence which was brought to bear upon the juror’s vote.
17
4. Evid. R. 606(B) provides for the finality of jury verdicts,
especially in instances where the jurors were polled and
affirmed their assent to the verdict.
The broad evidentiary prohibition on the use of juror testimony to impeach a
verdict is part of a larger public policy to ensure the finality of jury verdicts. When
adopting Fed. R. Evid. 606(b), the federal equivalent of Ohio Evid. R. 606(B), the 1974
U.S. Senate expressly considered the negative effects that juror testimony might have
on the judicial system:
Public policy requires a finality to litigation. And common fairness
requires that absolute privacy be preserved for jurors to engage in the
full and free debate necessary to the attainment of just verdicts. Jurors
will not be able to function effectively if their deliberations are to be
scrutinized in post-trial litigation. In the interest of protecting the jury
system and the citizens who make it work, rule 606 should not permit
any inquiry into the internal deliberation of the jurors.
S. Rep. No. 93-1277, pp. 13-14 (1974)
Like its federal counterpart, Ohio Evid. R. 606(B) protects the finality of jury
verdicts by generally prohibiting a juror from testifying about the personal
motivations for their verdict. While it is not atypical for jurors to change their minds
during trial or during deliberations, at a certain point, a juror’s civic duty requires
them to come to a final decision. Evid. R. 606(B) draws that line in the sand, and
provides that a juror can only change their mind up until the point that a verdict is
entered. State v. Williams, 99 Ohio St.3d 493, 498-99, 2003-Ohio-4396, 794 N.E.2d.
27. A court might poll a jury, but after that point, Ohio law dictates that the verdict
becomes final. In fact, this Court has long recognized that a jury’s verdict becomes
18
final after the jurors have been individually polled and confirmed their assent to the
verdict under oath. Williams, at 445-46.
For example, in Hessler, this Court determined that a verdict was final after
the jurors were polled about their verdicts. Id. at 121. In that case, a juror in a capital
case tearfully told a judge that she was “going crazy” in the deliberation room because
she “[did] not agree with any of the people in there” and “[could not] handle that
pressure.” Id. at 116. Shortly thereafter, the jury returned a verdict sentencing the
defendant to death. Id. at 120. When polled about this verdict, the troubled juror
affirmed that she agreed with the verdict. Id. The defendant later filed a motion for
mistrial, which the trial court denied. Id. at 122 This Court affirmed the trial court’s
decision, noting that the verdict was final the moment that the juror confirmed her
assent during the individual juror poll:
Here, the juror was given the chance to declare in open court her assent
to or dissent from the recommendations. Thus, she was given the
opportunity to change her mind if she desired. However, each time she
was individually polled about a recommendation, she answered that she
agreed with it, and she registered no further complaints. Under these
circumstances, we conclude that the juror exercised her free will and
that she agreed with the sentencing recommendations announced in
court.
Id. at 121.
In this case, the juror was also given the opportunity to change her mind
during the jury poll, but instead choose to indicate that she assented to the verdict.
T.d. 117, Trial Court Order and Judgment Entry. Thus, like the juror in Hessler, this
juror exercised her free will in agreeing with the verdict, and this Court should regard
the resulting verdict as final. To rule otherwise would jeopardize the finality of jury
19
trials. If a juror were allowed to freely impeach their own verdicts, it would be
difficult to determine when a suit is terminated. Lund, at 319. It would open the door
for parties to harass jurors, and it would empower a single dissatisfied juror with the
ability to destroy a verdict at any time after he had assented to it. Id. This would open
a “novel source of litigation” which might “indefinitely postpone [the] termination” of
any civil suit. Id.; Adams, at 427.
Civil trials, and medical malpractice trials in particular, represent an
important investment of private and public resources, and it “ill serves the important
end of finality to wipe the slate clean” simply because one juror expressed
dissatisfaction with her motivations during deliberations. Grundy, at 421 (citing
McDonough Power Equip. v. Greenwood, 464 U.S. 548, 555 (1983)).2
Juries in medical malpractice cases often expend significant amounts of time
in the course of their civic duty. Due in part to the complexity of the evidence in
medical malpractice cases, medical malpractice trials tend to last more than twice as
long as other personal injury trials. Cynthia G. Lee & Robert C. LaFountain, Medical
Malpractice Litigation in State Courts, 18 National Center for State Courts: Court
Statistics Project 1, 4 (Apr. 2011). The median trial length for a medical malpractice
case is 5 days, whereas the median trial length for other tort cases is only 2 days. Id.
Also, medical malpractice cases, unlike other tort cases, require expert medical
testimony to establish the standard of care. See, e.g, Hoffman v. Davidson, 31 Ohio
2 The Grundy Court was referring to wiping the slate clean after a juror admitted to omitting information in the voir
dire. However, the logical conclusion that it is inefficient to “wipe the slate clean” after trial extends to the case here.
20
St.3d 60, 62, 508 N.E.2d 958 (1987). The intensive nature of medical malpractice
trials necessarily means that they are time consuming and expensive to re-litigate.
A final verdict in medical malpractice cases is essential for physician-parties,
who need a firm disposition in a case so that they can either return to providing
medical services within their communities or can gauge their next steps. The
supermajority of physicians who are found not-liable in medical malpractice cases
need a final verdict so that they return to practice. See, e.g., Peters, supra, at 352.
Finality is also essential for courts, which require an expeditious resolution of
disputes; and for jurors, who can rest after satisfying their civic duty.
The jury poll that occurred in this case should mark the final judicial inquiry
into the jury’s motivations for the verdict. As the juror has not alleged threats,
bribery, or other improper external influence, the broad prohibition on jury testimony
contained in Ohio Evid. R. 606(B) acts to bar admission of her testimony.
Appellant’s Proposition of Law No. 2
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
Evid. R. 606(B)’s prohibition on jury testimony broadly excludes any
inadmissible juror statements, regardless of whether those statements were
submitted in formal testimony or in informal communications:
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.
21
Id. The text of Evid. R. 606(B) states that jurors are incompetent to submit any type
of evidence that would be inadmissible if they were to testify. Id. Notably, Evid. R.
606(B) does not preclude juror testimony only if it will be inadmissible later. See id.
Essentially, Evid. R. 606(B) precludes jurors from submitting evidence that is
inadmissible under the prior provisions of the rule regardless of whether the juror
intends to testify. The rule simply seeks to prohibit the use of inadmissible evidence
in all forms. The rule’s prohibitions are not “triggered” by the juror’s decision to testify
at a later trial. Indeed, the rule contains no such procedural requirement. Id.
The rule does not limit its application to in-court testimony. Rather, Evid. R.
606(B) broadly applies to “any statement by the jurors” that is inadmissible under
the rule’s previous provisions. Id. The Eighth District overlooked Evid. R. 606(B)’s
broad language when it wrongfully chose to consider the juror’s letter “because the
juror who wrote the letter did not testify at a subsequent proceeding concerning the
original verdict.” Jones, at ⁋⁋ 34-35. The Eighth District’s ruling creates an exception
to 606(B)’s prohibition on juror testimony which threatens to swallow the entire rule.
As previously discussed, Evid. R. 606(B) codifies the long-standing legal
doctrine that jurors are incompetent to testify about their internal motivations for
their verdict. Under the Eighth District’s ruling, a juror could submit endless
testimony about their personal motivations during deliberations, so long as that
juror’s statements are not in the form of formal testimony. If this Court adopts the
Eighth District’s rule, it would provide a method for jurors and disgruntled parties to
avoid Evid. R. 606(B)’s evidentiary restrictions. All a party or a juror would have to
22
do is submit their testimony impeaching the verdict in the form of informal out-of-
court statements. Thus, the Eighth District’s rule promotes the use of unsworn
testimony to impeach a verdict, but discourages the use of sworn testimony. The rule
Ms. Jones seeks to promulgate would constructively require motions for a mistrial to
be based upon unsworn testimony. This is shaky ground upon which to premise an
entirely new trial.
It does not matter if a juror’s statement is sworn or unsworn for purposes of
Evid. R. 606(B), as both forms of testimony threaten to undermine the policy
justifications of the rule. As previously discussed, Evid. R. 606(B) protects the finality
of verdicts and the privacy of jury deliberations and protects the jurors from undue
harassment. Grundy, at 426 (“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.’”
(quoting State v. Reiner, 89 Ohio St.3d 342, 350, 2000-Ohio-190, 731 N.E.2d 662)).
Evid. R. 606(B) can only accomplish these policies if it applies broadly to all juror
testimony, sworn and unsworn.
The Kentucky Supreme Court faced a similar situation to this case, and held
that in situations like the instant case, the rules of evidence prohibit the use of
unsworn juror testimony to establish a juror’s individual motivations for reaching a
verdict. Commonwealth v. Abnee, 375 S.W.3d 49, 56 (2012). In Abnee, the court
addressed a case where a party sought to impeach a verdict, that had been confirmed
via a juror-poll, with a letter that a juror wrote to the court indicating that she “felt
23
very pressured to change [her] verdict to guilty” and that her poor decision has been
“eating at [her] ever since it happened.” Id. at 51. The court held that this unsworn,
unverifiable letter about a juror’s personal motivation was not competent evidence to
support a motion for a new trial. Id. at 55. The Supreme Court of Kentucky refused
to receive the juror’s testimony because it presented dangers “too obvious to require
comment:”
[Considering the juror’s testimony] would open the door so wide, and
present temptations so strong, for fraud, corruption and perjury, as
greatly to impair the value of, if not eventually to destroy, this
inestimable form of trial by jury.
Id. at 53.
The juror’s testimony in this case presents all the same threats to the
administration of justice as that of the juror’s letter in Abnee. Like the juror in Abnee,
the instant juror seeks to submit an unsworn account of their emotional motivations
to singlehandedly undermine a solemn verdict returned by a jury who not only heard
the presentation of the evidence, vigorously deliberated, and returned a verdict, but
who also confirmed that verdict under oath in open court. Id. at 50. This jury-trial
procedure is sufficient to produce valid, final verdicts.
Neither the juror in Abnee nor the instant juror suggested that the jury system
was somehow corrupted by an external source. Instead, they both admitted that the
jury deliberated and rendered a verdict on their own. Jones, at ⁋ 16; Abnee, at 51. The
only allegation of impropriety contained in either juror’s letter was that they
disagreed with the motivations behind the juror’s independent votes. Id. It is not the
24
providence of a court to judge the merits of a juror’s internal thought process during
deliberations. Indeed, free and candid jury deliberations can exist only if the court
allows the jury to deliberate independent of judicial scrutiny. Tanner, at 120-121
(“full and frank discussion in the jury room, jurors' willingness to return an unpopular
verdict, … would all be undermined by a barrage of postverdict scrutiny of juror
conduct”); Schiebel, at 75. (explaining that Evid. R. 606(B) preserves the integrity of
jury deliberations). The Abnee Court rightly chose to preclude admission of this type
of juror testimony. In so doing, the Abnee Court protected the sanctity of jury verdicts,
promoted the finality of judgments, and protected free deliberations. Abnee, at 53.
This Court now has the opportunity to preserve these same virtues.
IV. CONCLUSION
The text of Evid. R. 606(B) codifies the long-standing Ohio legal tradition that
jurors are generally incompetent to render testimony impeaching their verdict. This
evidentiary prohibition serves the interests of courts, jurors, parties, and medical
professionals throughout the state. The Eighth District’s ruling allows parties and
jurors to avoid the evidentiary exclusions contained in Evid. R. 606(B) by simply
providing otherwise inadmissible testimony in the form of an unsworn statement. Ms.
Jones submits that not even a solemn juror poll can solidify the finality of a verdict.
In so ruling, the Eighth District limited Evid. R. 606(B)’s positive effects on the jury
system. In order to uphold 606(B)’s central purpose, this Court should reverse the
decision of the Eighth District Court of Appeals below.
25
Respectfully submitted,
/s/ Brian D. Sullivan
BRIAN D. SULLIVAN (#0063536)
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115-1093
Phone: (216) 430-2190
Email: [email protected]
Attorney for Amicus Curiae The Academy Of
Medicine Of Cleveland & Northern Ohio
26
CERTIFICATE OF SERVICE
A copy of the foregoing was sent by ordinary United States mail, postage
prepaid, on this 9th day of August, 2019 to the following:
/s/ Brian D. Sullivan_________________
BRIAN D. SULLIVAN (#0063536)
CHRISTOPHER M. MELLINO
MEGHAN C. LEWALLEN
MARGO KAY MOORE
CALDER C. MELLINO
The Mellino Law Firm, L.L.C.
19704 Center Ridge Road
Rocky River, OH 44116
Email: [email protected]
PAUL W. FLOWERS
Paul W. Flowers Co., L.P.A.
50 Public Square, Suite 1910
Cleveland, OH 44113
Phone: (216)-344-9393
Email: [email protected]
Attorneys for Appellee, Madora
Jones, Administrator of Estate of
Radon Jones
STEPHEN W. FUNK (0058506)
(Counsel of Record)
Roetzel & Andress, L.P.A.
222 S. Main Street, Suite 400
Akron, OH 44308
419-843-2001 phone
419-841-2608 fax
Email: [email protected]
R. MARK JONES (0009910)
TAMMI J. LEES (0077896)
Roetzel & Andress, L.P.A.
1375 E. 9th Street; 10th Floor
Cleveland, OH 44114
Phone: (216)-623-0150
Email: [email protected]
Attorneys for Appellants
The Cleveland Clinic Foundation, et
al.
