*1 with this should be filed a death warrant application for further court. with di rections. remanded
Reversed and appellant Audrey cross-appellee, Hunt, v. Methodist M Hospital appellees, Smith, .D., and James M. and John cross-appellant. appellee Horrocks, D., M.
485 N.W.2d737 5, 1992. No. S-89-444. Filed June *2 Virginia Cullan, Daniel B. Cullan and Cullan, L. of Cullan & appellant. for Vanskiver,
Thomas J. Sodoro, Shomaker and Clark J. Daly Sodoro, appellee & Hospital. for Methodist Jaudzemis, Cline,
Fredric H. and A. Kauffman Kathleen Williams, Oldfather, Wright, appellee Johnson & for Smith. Lamson, Jr., Lyman Larsen,
William M. Kennedy, L. Holland, DeLacy Svoboda, & appellee for Horrocks.
Boslaugh, White, Caporale, Shanahan, Grant, Fahrnbruch, JJ.
Per Curiam. plaintiff, Audrey Hunt, The was admitted to the defendant 11, 1984, Dr. Hospital July the defendant Methodist on Horrocks, internist, treatment of an ulcer on M. an James Dr. After consultation with the defendant John her left foot. Smith, surgeon, it was determined that an vascular performed to determine whether an arteriogram should be might bypass operation improve the blood flow to the arterial leg. plaintiff’s performed by arteriogram
An was the defendant Smith on July bypass operation performed An was on 1984. arterial July malpractice only concerned with 1984. This action is complications developed following arteriogram procedure injury and resulted in serious arm. arteriogram performed by introducing a catheter axillary artery. patient’s right Bleeding into the at the site where artery punctured is most common risk of an arteriogram, and the was monitored for this nurse, doctor, complication. No or medical student noted bleeding puncture during following site first 6 hours procedure, period following which is the critical time *3 arteriogram. 17, 1984, July large ecchymotic
On a area was noted a plaintiff’s posterior right upper nurse on the arm. An ecchymosis very is evidence of blood in the tissue and is following puncture artery common of an or vein. Horrocks, plaintiff
The was monitored Smith and his associate, Waltke, Eugene Dr. A. and medical students and 21, 1984, July through nurses. From there were no significant findings relating right 21, July to Hunt’s arm. On physicians diagnosed the plaintiff’s a venous thrombosis in the right swelling arm because of massive in her arm. The physicians then treated her arm for this condition. July
From permanent to there was no evidence of arm, paresis plaintiff’s in appeared the and it that she was responding July On plaintiff’s treatment. right changed pale cool, condition in that her arm became and pulse. Following changes, there was no these Dr. Waltke performed surgery on the arm and plaintiff discovered that the bleeding axillary artery. performed from the Dr. Waltke surgery Dr. because Smith was out of town. leaking puncture compressed The site blood from the artery, part so that the flow to the nerves in the lower of blood result, inadequate. the arm and hand was a some of the As died, extremity plaintiff in the and the now has a nerves lower right claw hand and has lost the use of her arm. finally jury
The case was tried in 1989. The returned a verdict defendants, plaintiff appealed. for the and the has error, plaintiff’s assignment alleges In the of that the first she refusing give requested erred in to trial court instruction agent Dr. if Dr. Waltke was the of Smith and that found negligent, that Dr. Waltke was it should find that Dr. Smith was brief, negligent. plaintiff argue why In her does not it was requested error for trial court to refuse her instruction. Instead, argues by refusing she that the trial court erred to allow petition her to amend her to conform to the evidence that agent assigned regarding Waltke thewas of Smith. No error was amendment, permit the refusal of the trial court to which day requested testimony, just was not until the fourth of before plaintiff rested. party Dr. Waltke was not a to the action and is not mentioned any place in in the third cause of action in the sixth amended petition, specifications which the cause action in negligence alleged against Specifically, Smith were made. alleged negligent failing that Smith was properly plaintiff, failing timely diagnose monitor complications resulting angiography, failing from the ultrasound, failing pursue utilize and in conservative plaintiff. treatment of the pretrial February
In the order on the conference made on 1989, the trial court noted that the issues had been framed and negligence plaintiff’s specifications as to each defendant against had been narrowed and that the claim each upon specific negligence. defendant was based acts of order set out both the “Uncontroverted Facts” and the “Issues Fact, Others, Remaining Litigated upon Be No To *4 (Emphasis supplied.) order Trial.” This was effective as a approved to limitation of issues and was “as form and consent ” counsel, by including plaintiff. all the counsel for the [sic] requested by plaintiff the The instruction went further than merely instructing agent that Waltke was the of Smith. It also by negligence jury, submitted issue of Waltke to the support there was no evidence to a submission of that issue to jury. by testimony There was no plaintiff’s expert witnesses to the effect that Waltke had deviated from the standard care. give
The trial court requested refused to instruction because there nowas evidence that Dr. Waltke had violated the applicable standard of care and because the issue respondeat superior pled. had never been The trial court refused to allow plaintiff petition to amend the at the conclusion of the plaintiff’s evidence because the amendment would have prejudiced the defendants in that the proceeded case had on theory specific negligence by Smith, acts of and the defendants were entitled to assume there was no issue as to negligence Waltke. deny decision as to whether to allow or to amendments pleadings after begun a trial has is a matter for the discretion
of the trial court. Wrecking Bros., Associated v. Wiekhorst Neb. N.W.2d 343 “Pleadings . . . not be stages amended at change certain so as to ...” issues Id. at 767, 424 N.W.2d plaintiff’s at 347. Because the requested pleadings amendment to the would have changed the issue of liability negligence Smith’s for liability from for specific acts of negligence liability to include unalleged negligent acts Waltke, it was not error deny for the trial court to request to amend the pleadings at the conclusion of the evidence. nothing
There is in the evidence support finding negligent Waltke was in his plaintiff. treatment of the None of plaintiff’s expert witnesses testified that Dr. Waltke the applicable breached diagnosis standard of care as to his operation plaintiff. on
Accordingly, proposed pleadings amendment to the requested properly instruction were refused the trial court. error,
For assignment her second alleges that refusing trial court erred in Somsky, allow Dr. Paul on examination, redirect respond questions why as to he had
843 plaintiff’s not reviewed the prior testifying medical records to at expected Somsky, the trial. The answer was that due to his condition, expect testify medical did not to and therefore did not have an opportunity being to review records before called. trial, plaintiff Somsky
Prior to the designated had as an expert Due experienced by Somsky witness. to a heart attack in 1988, April plaintiff filed a motion to substitute another expert sustained, Although witness. that motion was plaintiff designated never expert a substitute witness. On the day testimony, second plaintiff moved to submit a discovery deposition Somsky taken the defendants Somsky testify because person was unable to in poor due to his health. The trial court request. Somsky denied this then trial, appeared at the and the plaintiff trial court instructed the Somsky was not be questioned about his medical during testimony. condition his
At the Somsky trial examination, volunteered on direct twice, least that he had plaintiff’s not reviewed the medical prior taking records the stand.
The extent to which a witness on redirect examination explain testimony elicited on primarily cross-examination lies the discretion of Walker, 794, the trial court. State v. 225 Neb. 408 N.W.2d case, Somsky’s In this medical condition was not relevant to “
any of the issues because it did
‘any tendency
not have
make the existence of
fact that
consequence
is of
determination of the action
probable
probable
more
or less
”
than it would be without the evidence.’ Crowder v. Aurora
Co.,
Co-op
704, 721,
Elev.
223 Neb.
393 N.W.2d
(1986). Accordingly, the trial court did not abuse its discretion
refusing
Somsky
to allow
explain
on redirect the reason for
familiarity
his lack of
with
plaintiff’s
medical records.
assignment
error,
In her third
plaintiff
argues
that the
excluding
court erred
summary
exhibit
a
of nurses’
regarding
plaintiff’s right
*6
summary
complete
be a
of the
purport
Exhibit 12 did not
to
was,
fact, only summary
a
of
plaintiff’s medical records. It
important.
felt were
plaintiff’s
of the matters the
witness
some
argumentative
proper
extent it
in nature and not a
To that
testify
allowed to
plaintiff’s
item of evidence. The
witness was
concerning
length
the matters listed on exhibit
and there
any
right
plaintiff
prejudice
was no
to
substantial
refusing the offer of exhibit 12.
“
may be allowed into evidence
‘when the
Summaries
being
large
volume of documents
summarized is so
as to make
impractical
impossible ....’”
their use
or
Crowder Aurora
Co.,
Co-op Elev.
part
The final of error that the trial failing grant ground juror court erred in a new trial on the jurors presubmission held misconduct because certain discussions, contrary to the trial court’s admonitions “not to anyone” express with and “not to form or discuss case an you heard all the opinion until such time as have evidence and you your and decision.” deliberation the case is submitted argues that the trial cross-appeal, defendant Horrocks By a five of three and admitting erred in affidavits court discharged juror support alternate offered her motion. explains evidence and the juror
In one a how certain affidavit juror him. In affidavit a instructions influenced another prior case declares certain discussed her as to those expressed opinion how submission and jurors. separate In two affidavits discussions influenced juror explains how and instructions another the evidence following particular him declares that a witness’ influenced testimony, presubmission ensued a discussion there effect jurors concerning or four certain three having case. developments probable on outcome of the were discharged juror’s alternate affidavit reveals 5-day a presubmission place period took over discussions prejudiced plaintiff’s discussions case. declares these (Reissue 1989)provides: 27-606(2) Neb. Rev. Stat. § validity of a verdict or Upon inquiry an into the indictment, testify any matter or not as occurring jury’s during statement the course anything upon or deliberations or effect of his juror’s influencing him to other mind or as emotions or assent to or dissent from the verdict indictment *7 therewith, processes in connection concerning his mental may question except testify a on the whether prejudicial improperly was extraneous information any brought jury’s or whether outside attention upon any juror. improperly brought influence to bear by or of statement him Nor his affidavit evidence indicating an effect of kind be received for these this purposes. juror may testify jury
We have held that a as whether the emanating prejudicial considered information from sources trial, presented juror’s but evidence that a extraneous testimony may be used to the effect of such not establish jury jury jury or its on the or upon information influence motives, methods, thought processes, misunderstanding, or
846
during
deliberations
entered into the verdict.
discussions
McDonald,
85,
(1988);
State
230 Neb.
Under the constitutional
a
entitled,
litigant is
he
right,
unless waives the
to have his
qualified jurors. Implicit
impartial
case tried
twelve
qualified
impartial
persons
concept
“trial”
twelve
is the
that there be
consideration
issues and
evidence
upon
part
and deliberation thereon
twelve....
all
right
concept
Derived from the constitutional
of a
to a
trial
principle
improper
is the
that “it
discuss a
case
all
themselves until
the evidence has been
presented,
arguments,
counsel have
final
made
case has
been
submitted to them
final
after
instructions
425,
419,
court.”
v.
182
Washington,
State
Conn.
438 A.2d
1144,
McDonald,
1147 (1980);
supra;
State v.
United States v.
Nance,
(8th
1974),
926,
847 deadly pang bitterness of An right. unfair trial adds defeat.” with one discussed the case
In cases where
have
uniformly
deliberations,
have
found
courts
prior
another
Baum,
294,
44
62 N.W.
improper. Edney v.
Neb.
such conduct
McDonald,
Isley,
Neb.
supra;
v.
State v.
195
(1895);
461
State
Drake,
App.
N.C.
(1976);
N.W.2d 262
State v.
31
239
States, 147 F.2d
v. United
(1976);
The guide as a for other opinion seminal which has served States, jurisdictions on this In Winebrenner v. United issue. supra, by judges advising jurors the court held that instructions they might among prior to discuss the case themselves Fifth and is reversible error and violation of the submission Amendments to federal Constitution. reasons Sixth Several were advanced for this conclusion: themselves, jurors may among
If . . . the
discuss the case
groups
jury,
either
of less than the entire
or with the
jury, they
giving premature
entire
are
consideration to the
By due
which
process
evidence.
of law meant “a law
condemns;
proceeds upon inquiry,
hears before it
judgment only
renders
trial.”
after
should
because, first,
they
not discuss
case
themselves
evidence; second, they
have not heard all of the
have not
heard the instructions of the court as
how this evidence
them,
they
is to be
heard
considered
neither have
arguments
of counsel.
The court further noted jurors’ discussing prior a case to its submission for deliberation: having only
A not but in discussion formed expressed guilt his view as to innocence defendant, give his inclination thereafter would be to testimony mind special attention to such as to his he strengthened, confirmed or vindicated views which *9 whereas, already jurors, had expressed to his fellow had expression been and no of tentative there no discussion opinion, he would not be confronted with embarrassment change he the tentative before his fellow should might hearing which from evidence. opinion he entertain Id. C., Co., 850,
In F. at court in Q. Pool B. & R. 6 case observed:
Now, the human mind is constituted so what one publicly touching any controversy himself declares is potent biasing judgment in confirming much more his predilections than may similar declarations which he his by persons. uttered other When men hear most commit fact, theory, publicly judgment they themselves or declarations, apt public too are to stand their own in pride defiance of evidence. of opinion This and of consistency belongs to human nature.
Thus, juror expressed a who has his or her view in a regarding innocence, guilt, liability discussion facts or the or parties be give special “would inclined thereafter testimony strengthening confirming attention to the views expressed already jurors.” Washington, to fellow State v. 182 426, 438 Conn. A.2d at 1147. law, right
As confirmed case constitutional both protects juror civil and criminal parties cases from discussions prior Anything juror to deliberations. short of silence is misconduct, point, and at some dialogue nondeliberation prejudices party a and voids the trial.
However, in order for a new trial to be ordered because of
misconduct,
juror
party claiming
the misconduct has the
convincing
burden to show clear and
prejudice
evidence that
Far-Mar-Co,
736,
has occurred. Ellis v.
215 Neb.
340 N.W.2d
McDonald,
(1983);
85,
423
State v.
Neb.
230
The burden of the trial court in whether there is Steinmark, misconduct was first articulated State v. Therein, 201 Neb. N.W.2d this court wrote: allegation made,
When an of misconduct and is supported by showing prove tends to that serious occurred, misconduct the trial court should an conduct evidentiary hearing alleged to determine whether actually occurred, misconduct occurred. If it the trial court must then determine prejudicial whether it was the extent the defendant was denied a fair trial. If the trial *10 court occur, determines that the misconduct did not prejudicial, that it was not adequate findings should be made so that the determination be reviewed. 204-05, See,
Id. at
State v. is a respect useful case in duty trial provide court’s to satisfactory hearing juror on the misconduct. Steinmark involved a defendant who asserted that the trial court did not afford him an adequate hearing regard in juror to hearing misconduct. Presented at the anwas affidavit juror in which a testified that several repeated other they rumors had heard about the defendant and had drawn regarding pieces conclusions several vacating evidence. In trial, the denial of a new we alleged declared that the “matters the affidavit a sufficient showing support of the [were] allegations require of misconduct evidentiary hearing an determine whether misconduct occurred and whether it was prejudicial...” 205, 266 Id. at N.W.2d at 754. We also recited obligation determining validity of the trial court in the determination of allegations explained that
misconduct court, question which question for was a misconduct all the circumstances “independent evaluation of required an conclusion, we wrote: Id. In the case.” alleged that the issue of the The record indicates upon the verdict in jury and its effect of the misconduct summary While we are manner. was resolved in a this case record, say, present prepared upon basis not trial, to a new we believe the the defendant is entitled that hearing upon a further be remanded for cause should alleged in the as motion matter of misconduct of for new trial. Id.
(Emphasis supplied.) affidavits in this case establish The uncontradicted duty to It thus became the trial court’s misconduct occurred. prejudiced plaintiff. whether that misconduct determine Accordingly, remanded with the direction that the the cause is evidentiary hearing to determine what trial court conduct an during and whether presubmission said discussions plaintiff. prejudiced discussions those Remanded with direction. J., participating. C. not Hastings, Boslaugh, J., dissenting. opinion only part
I from that holds dissent alleged in the affidavits of two and one the misconduct the cause be remanded and the trial court requires alternate evidentiary hearing determine conduct a further directed to jurors during presubmission whether what was said prejudiced plaintiff. discussions 1989) severely 27-606(2) (Reissue restricts Neb. Rev. Stat. § *11 determining in which can be considered whether the evidence Only juror prejudice or occurred. evidence of misconduct improperly brought ... “extraneousprejudicial information brought jury’s improperly “outside attention” or influence” any upon juror be considered as the basis for to bear (Emphasis remanding supplied.) the cause this case. In this neither. case there was Co., Rahmig Mosley Machinery
As we said in
Neb.
455,
I believe the jurors submission discussion some of with prejudicial It extraneous information outside influence. then declares “[a]nything juror short of silence is misconduct” appears adopt per requiring se rule the trial court in evidentiary hearings such cases to conduct extensive prejudice determine whether occurred. example
An
as
applied
to how this statute
is
Farms,
Taylor
misconduct
cases
found Watkins v.
Seed
Inc.,
case,
295 Ark.
(1) said, ‘Tuffy’ Howard, first woman “W.B. (appellants’ attorney), got custody of some children for a children, man after got custody the man of the he “Yes, A(2) replied, murdered them.” second woman that’s the kind jurors, Seymour of man he is.” two These whom remarks, claimed had part made the also testified as a appellants’ proof. one, Mary offer Seale, The first having any Howard, denied made statements about but did hearing remember someone make them. The second Cornelison, juror, Donna testified had attorneys discussed the but that she did not make nor remarks, by Seymour, recall as those having described presence jury. been in made 295 Ark. 748S.W.2dat 144.
The Arkansas court held this was not evidence of prejudicial improperly extraneous information that had been brought jury’s attention. The court concluded saying:
Nonetheless, 606(b) Rule ensures that deliberations *12 852 secret, clear that the it becomes unless remain
should showing extraneous of was tainted jury’s verdict improper some outside information prejudicial proffer here is not appellants the The evidence influence. and, 606(b), Rule exception under in the included believe, therefore, testimony, we would allowing the the protects privacy the of policy that public the violate jury room. 294-95, 748 at 145. S.W.2d
295 Ark. rule that the trial support the older cases seem While they not to are required to admonish court is among until it has been submitted themselves the case discuss the rule is not them, cases indicate of modern some Klee, 394, (9th F.2d 395-96 United States v. 494 universal. In 1974), court stated: Cir. trial, presented new Klee support of a motion for a
In
says
jurors
eleven
an
one
affidavit
(including alternates) discussed the
jurors
the fourteen
jurors expressed
during recesses and that nine
case
guilt.
opinions
Klee’s
premature
about
If
affidavit
true,
the court’s admonition.
disregarded
judges give
that most
similar
While we are aware
juries,
pass
we have never had occasion to
admonitions
necessity
for such an
upon
propriety
either the
of or
agreement
The circuits are not
on
admonition.
States, Cir.,
See, g., Winebrenner v. United
8
e.
question.
322;
1361
147 F.2d
23A C.J.S. Criminal Law §
Carter,
Cir.,
v.
10
430
(1961). But United States
cf.
States, Cir., 1968,
1278, 1279;
v. United
5
404
F.2d
Rotolo
Viale,
F.2d 316, 317;
Cir.,
2
United States
(Emphasis Viale, 595, 602 , (2d 1963), Cir. States v. 312 F.2d In United stated: court judge been the law of this circuit that the trial
It has never must, discuss the case admonish the not to themselves, practice although it has been the of most of it to refrain from judges suggest is advisable Compare the case is concluded. discussion until such event, Cir., any States, F.2d In United 329. Myres v. commit error judge did not we hold that matter, request an did such especially since counsel not this instruction, given instruction was in fact and since such an day of the trial. the second *13 at the showing plaintiff made the to me that the
It seems of in far short motion trial this case falls hearing on the for new required for convincing as a basis the evidence that clear and remanding the cause. alleged in the affidavits offered
Generally, the misconduct among place that pertains the to discussions took plaintiff the jurors prior being to the case’s submitted certain the at jury for deliberation. The offered five affidavits of were hearing the motion new trial. Four the affidavits on for jurors. The affidavit was from an alternate from three fifth the in the Two of participate who did not deliberations. only thought processes jury the affidavits related influenced how evidence and instructions of the court the the clearly A the These two were inadmissible. verdict. affidavits Klug, jurors, from one these second affidavit Gerald jurors jury as to among mentioned discussion a few the room they affecting probable how felt certain were the factors that outcome of the trial. This affidavit contained a statement these specific “at time were conclusions drawn from no comments.” part:
The affidavit of Pamela Bahn stated recess, discuss the Judge At each Clark instructed us not to jurors of a case with our fellow or others make certain However, unfortunately, the other trial. several of fair disregarded Up until the jurors the Court’s instruction. days two there was a of discussion last the trial lot lawyers’ aspects either conduct or of the case regarding the lawyers kept were like one of .... comments hair, or, lawyer , twitching boy, good---- with his this was Foster, juror, her the alternate stated in Sharon L. who was affidavit: jurors judge’s my opinion
In some of the violated case until repeated instructions not to discuss the deliberations____ lawyers . The were reference
. . comments pertained as well Hunt. These doctors as Mrs. comments competence incompetence parties or of all perceived A was Mrs. involved. comment made about Hunt’s style. management business (Emphasis omitted.) great sympathy felt
The affidavits reveal that who, injury plaintiff, question, without received a serious following arteriogram complications as a result of They procedure. also show that on the basis of the evidence and instructions, jury compelled to return verdict for the defendants. alleged jury
It is also clear from the affidavits only misconduct consisted discussions about attorneys’ performance themselves such matters as the presented case as and the evidence at trial. There allegations are no considered extraneous prejudicial information outside influence was improperly brought any juror. upon to bear *14 question jury’s is no the disregard
There the trial prior court’s admonition not to discuss the case to submission improper. deliberation was issue is whether there has showing by convincing been clear and a sufficient admissible evidence prejudice require of misconduct and the cause hearings be remanded further held. McDonald, 85, 94, 430 282, 288
In Neb. State 230 N.W.2d (1988), jury court where this held that misconduct “involves juror only, prejudice behavior the burden to establish rests on McDonald, claiming party the In misconduct.” evidence of alleged presented jury hearing misconduct was at the on the defendant’s motion for trial. new That evidence consisted of by testimony defense trial counsel’s wife overheard that she two jurors discussing presented evidence which had been at trial. We finding affirmed the court’s that the defendant was not prejudiced by jury’s misconduct. case, majority opinion
In this jury cites no case where the instructed, properly presubmission was admonished and but by discussion case was found to be so hearing. Most of further new trial or a require prejudicial as prejudice which found majority opinion in the the cases cited being information considering extraneous jury’s involved the by outside sources. improperly influenced and an be remanded cause should holding In during said what was evidentiary hearing held to determine whether jurors and by some of the discussion presubmission majority cites prejudiced plaintiff, those discussions Steinmark, N.W.2d 751 201 Neb. State v. misconduct However, alleged jury case involved the Steinmark during prejudicial information of extraneous consideration deliberation. “ construed to cover influence’ has been ‘Extraneous room, jury in the
publicity received and discussed jury evidence not admitted consideration between court, or other contact and communications the trial including contacts with persons, third and his presence of the defendant judge outside the contrast, among of discussions By evidence counsel. or harassment of one jurors, intimidation another, the verdict... intra-jury influences on and other impeach a verdict.” competent is not Wilson, (D.C. 1976), Cir. 534 F.2d 378-79 United States v. Gereau, F.2d 140 Virgin Islands v. quoting Government of 1975). (3d Cir. hearing at the on the affidavits submitted
It is clear from
only
misconduct
motion for new trial that
jury’s
of the trial
alleges
was the
violation
occurred
prior
the case
to deliberation.
not to discuss
court’s admonition
any juror
extraneous
allegations that
considered
There are no
by outside sources.
improperly
influenced
information or
States,
1945),
Cir.
(8th
The trial
order overruling
court’s
motion for a
new trial and
conducting
its not
hearing
a further
on the matter
alleged jury
misconduct were within the trial court’s
discretion and should
except
not be overturned
for an abuse of
Robbins,
discretion. State v.
207 Neb.
I would affirm judgment of the district court.
Grant, J., joins in this dissent. Kathy appellant Billy Shiers, cross-appellee, Jolene appellee cross-appellant. Shiers, Allan
485 N.W.2d574 5, 1992. Filed June No. S-89-1266. notes arm. The trial court objection sustained the defendants’ to the offer of exhibit 12 incomplete because it was an summary plaintiff’s of the medical records, already all of which had been received in evidence. Neis, D. who Dr. Delbert prepared Exhibit 12 had been plaintiff. To assist his expert an witness for testified as 2 and which testimony prepared he had and used exhibits plaintiff’s medical records. On partial were summaries of the 12, which offered exhibit redirect examination summary plaintiff’s medical incomplete but another The trial court prepared. that Neis had sustained records objection merely partial 12. was to exhibit It defendants’ records, already summary which were evidence.