Lin this medical-negligence case, appellant Patricia Milner appeals from a jury verdict in favor of appellee Dr. Rex Lutt-rell.
I. Background
Mrs. Milner underwent a gastric-bypass operation in 1977. In the following years, she experienced problems with reflux and consulted Dr. Forest Miller. Dr. Miller referred her to |2Pr. Luttrell, who determined that Mrs. Milner needed a “revision” of her previous bypass. Surgery was scheduled for May 13, 1999, and Milner signed a pre-operative consent form describing the procedure as a “reversal gastric bypass and incisional hernia repair.” According to Milner, she understood the term “reversal” to mean that she would be
On May 2, 2001, Milner sued Dr. Lutt-rell for negligence in performing the Roux-en-Y bypass without her consent and in performing it incorrectly. A jury found Dr. Luttrell not liable, and the circuit court entered judgment in his favor. Milner sought relief in posttrial motions, which the court denied, leading to this appeal.
II. Denial of a mistrial and other relief
Prior to trial, the circuit court ruled that it would not allow evidence of insurance coverage regarding Milner’s damages.
I have initiated a letter to her insurance company and, once we get approval, I will get her scheduled with Dr. Kerry Ozment and, together, we will revise her to a much more functional status.
(Emphasis added.)
As a sanction for this mention of insurance, Milner asked the court to strike Dr. Luttrell’s answer and to proceed with a trial on damages alone. Dr. Luttrell’s attorney noted that the letter had been removed from display during the bench conference, and she offered to redact the offending language. The court stated that an “inadvertent oversight” had occurred with regard to the letter and denied Milner’s motion to strike. The court suggested that Milner consider an admonitory instruction to the jury, but Mil-ner did not pursue that remedy. Milner now argues that the court erred in failing to strike the doctor’s answer or declare a mistrial.
The denial of a mistriаl will not be reversed absent an abuse of discretion or manifest prejudice to the movant. Union Pac. R.R. Co. v. Barber,
14We note at the outset that Milner did not request a mistrial during the bench conference but raised that matter only in her posttrial motions. A motion for a mistrial must be made at the first opportunity, Barber, supra, and a party cannot obtain relief by asserting an argument for the first time in a posttrial motion. See Cincinnati Life Ins. Co. v. Mickles,
In any event, Milner has not shown that she was entitled to either a
|aIn this case, defense counsel briefly and inadvertently displayed a letter containing the words “her insurance company” during opening statements. Milner acknowledged during a posttrial hearing that the incident was probably accidental. Milner also declined the cоurt’s suggestion to admonish the jury. Under these circumstances, we cannot say that the circuit court abused its discretion in denying more extreme relief.
III. Denial of a new trial for jury misconduct
During voir dire, Milner’s attorney, Charles Boyd, asked potential jurors if they had any close friends or relatives who were doctors or associated with the mediсal profession. Venireperson Cheryl Brewer stated that she had been a physician’s office manager for thirty years. Brewer was later seated on the jury and served as foreman.
After trial, Boyd and his co-counsel, Matthew Lunde, submitted affidavits to the court stating that they had learned from an unnamеd juror that two jurors on the panel worked for a physician and knew the standards for informed consent and making entries in medical records. Boyd and Lunde later contacted Cheryl Brewer, who allegedly described her work-related knowledge regarding a doctor’s option to disregard the pаtient’s consent form if the doctor determined that another procedure was necessary and her knowledge that “if surgery is not done within forty eight hours of a consent ... another consent had to be signed.” Based on these allegations, Milner sought a new trial on the ground that the jury had been exposed to extraneous prejudicial information in reaching its verdict.
During the motion hearing, the circuit court declined to hear testimony from Brewer but allowed Milner to proffer a synopsis of what Brewer would say if called. The proffer | f,essentially tracked the affidavits, which set forth Brewer’s knowledge оf informed consent and medical records obtained in the course of her vocation. Following the hearing, the court denied Milner’s new-trial motion.
The decision whether to grant a new trial for jury misconduct will not be reversed absent an abuse of that discretion. D.B. & J. Holden Farms Ltd. P’ship
The threshold issue on this point is whether the circuit judge was permitted to consider the affidavits and testimony proffered by Milner. Rule 606(b) of the Arkansas Rules of Evidence provides that a juror may nоt testify as to any matter or statement occurring during the course of deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict, or concerning his mental process in connection therewith. Nor may a juror’s affidavit or evidence of any statement by him be received on such matters. Ark. R. Evid. 606(b) (2010). A juror may, however, testify as to whether “extraneous prejudicial information” was improperly brought to the jury’s attention or whether any “outside influence” was improperly brought to bear on any juror. Id. Rule 606(b) embodies the public interest in preserving the confidentiality of jury deliberations and ensures that jury deliberations remain secret unless it becomes clear that the jury’s verdict was tainted by a showing of extraneous prejudicial information or some |7improper outside influence. Waste Mgmt. of Ark., Inc. v. Roll Off Serv.,
Milner argues that the jury in this case was exposed to extraneous prejudicial information in the form of a juror’s specialized knowledge of medical records and informed consent. We disagree. The issue of extraneous prejudicial information has arisen most frequently when jurors have visited an accident scenе during trial and reported their observations to other jury members. See St. Louis Sw. Ry. Co. v. White,
Moreovеr, the great weight of authority in other jurisdictions is that a juror’s professional or vocational knowledge does not qualify as extraneous prejudicial information |swhen brought into the jury room. In Hard v. Burlington Northern Railway Co.,
In light of these authorities, we conclude that Cheryl Brewer’s vocational knowledge of medical records and informed consent did not constitute extraneous prejudicial information under Rule 606(b). The rule therefore prohibitеd the circuit court from considering Milner’s affidavits and testimony and, consequently, the court had no evidence on which to grant a new trial. See Waterfield v. Quimby,
Even if Brewer’s knowledge was considered extraneous, the affidavits and testimony proffered by Milner would be insufficient to show a reasonable possibility of prejudice. The attorneys’ first set of affidavits did little more than recount their conversation with an unnamed juror to the effect that other unnamed jurors on the panel possessed specialized medical knowledge. Later, the attorneys’ affidavits reported a telephonе conversation with Cheryl Brewer to the effect that she possessed work-related knowledge of informed consent and medical records. Brewer’s proffered testimony, as paraphrased by Mil-ner’s counsel, did | gnot add appreciably to the affidavits. In these circumstances, where the evidence before the trial court consisted of affidavits from the defeated attorneys and the proffered, unsworn testimony of a single juror, the court did not abuse its discretion in refusing to grant a new trial. See generally Waste Mgmt. of Ark., supra (holding that a single juror’s affidavit, stating that a verdict had been mistаkenly recorded, was not sufficient to warrant a new trial). Further, the limited information contained in the proffered materials meant that the court was left to speculate about whether any jurors were actually affected by Brewer’s knowledge. See Diemer v. Dischler,
Milner also contends that an unnamed juror did not respond honestly when asked during voir dire if he or she worked in the medical field. This is pure speculation, as the record contains no infоrmation regarding the juror’s identity or profession.
IV. Prohibiting the use of Dr. Luttrell’s previous deposition
At trial, Dr. Luttrell testified that he attended St. George’s University medical school, which was located in Bay Shore, New York, and that he studied internal medicine at East Tennessee State for three years before undergoing five years of surgical training. He also stated that he was board certified in general surgery. On cross-examination, Dr. Luttrell acknowledged that St. George’s medical school was headquartered in New York but that he attended a branch of the school located in the West Indies. Following this testimony, Milner prepared to impeach Dr. Luttrell with his deposition testimony from a prior case in which he Instated that he had been cut from the residency program at East Tennessee after two years, though he later reentered the program and completed the full five years. The circuit cоurt refused to allow the deposition, not only because it was from another lawsuit but also because “what happened in ... residency programs or internships is not relevant to this proceeding. If he is now board certified, he is a competent surgeon.”
Deposition testimony from a prior case may be used for impeachment purposes. Dodson v. Allstate Ins. Co.,
We therefore affirm the circuit court’s judgment entered on the jury verdict. Our affirmance renders Dr. Luttrell’s cross-appeal regarding an evidentiary issue moot.
Affirmed.
Notes
. Mrs. Milner died after the case was tried. The circuit court substituted her heirs, Randall Brown and Donna Donaldson, as plaintiffs. For the sake of clarity, we will refer to Mrs. Milner as the appellant.
. The court's order was based on the collateral-source rule, which prohibits the admission of evidence showing that an injured person received payments from another source. Ebbing v. State Farm Fire & Cas. Co.,
. The striking of a defendant's answer is traditionally considered a discovery sanction. Ark. R. Civ. P. 37(b) & (d) (2010). We make no comment as to whether such a sanction should be available during trial for evidentia-ry violations.