Perkins v. Komarnyckyj

834 P.2d 1260 PERKINS, personal represent

Janet

ative of the Estate of Peter J. Per

kins, Plaintiff/Appellee, KOMARNYCKYJ, D.D.S.,

Orest G. sin

gle man; Cooke, Phillip D.D.S. Cooke,

Cindy wife, husband and Defen

dants/Appellants.

No. CV-91-0104-PR. Court

En Banc.

Aug. Langerman by Amy Law Offices G. Phoenix,

Langerman, plaintiff/appellee. Jennings, Jay Strouss & Salmon Fradkin, Phoenix, defendants/appel- Komamyckyj. lants a be seven out of by Jeffrey P.A. and that would Gallagher Kennedy, a Phoenix, jurors. jury The returned verdict Tonner, defendants/appellants for the ten eight of out of the ten favor Plaintiffs: Cooke. jurors found both Defendants liability, while two found the issue OPINION jury The Defendants. favor both FELDMAN, Chief Justice. to- Plaintiffs’ determined presented in this medical mal- The issue $1,098,054, per- and that Dr. Cooke’s taled the trial practice action whether 67%, Komamyc- centage of was Dr. fault erroneous jury instructions 33%, Perkins’ Both Defen- kyj’s and 0%. or on require a trial on alone new trial, for a and Dr. Ko- dants moved new granted damages. both and for not- mamyckyj also moved unique impor- and review because judge withstanding the verdict. The presented. nature of the issues tant motions, ap- and Defendants denied these 23(c)(4),Ariz.R.Civ.App.P., 17B A.R.S. Rule pealed. Ariz. jurisdiction pursuant decision, the court of In a memorandum 6, 5(3) A.R.S. 12-120.24. in part, appeals part, affirmed reversed on the the case and remanded HISTORY AND PROCEDURAL FACTS Komarnyc Perkins v. Cooke, Phillip Drs. a Perkins sued Peter kyj, (Ct.App. No. 2 90-0254 Jan. CA-CV dentist, a Komamyckyj, general and Orest decision). 1991) (memorandum The court malpractice. (Defendants), for periodontist judge appeals ruled that the trial had alleged that the Defendants failed Perkins by denying a mis his discretion not abused cell diagnose squamous carcinoma allowing the after Perkins’ death and consequent stages and that early its wrongful death action proceed case significant in a delay in treatment resulted parties, and substituted had erred chance of survival. reduction evidentiary in number of substantive addition, appeals rulings. court Perkins tried to The was properly refused ruled that the trial of his during a result trial as died give instruction on calculat Defendants’ attorney, by Perkins’ On a motion cancer. to their ing the increased risk attributable permitted complaint the court us of these issues is before conduct. None wrongful action for death amended to an on review. (Plaintiffs) substi- with Perkins’ survivors parties. tuted as by the court question final addressed The response to begun appeals its was had retired After the questions to him sent one of written deliberations, jury posed a series jury: judge. Without questions to the written jury had parties that informing the during p.m., QUESTION [1/30/89, 3:45 con- questions, without him asked any jurists If should [sic] deliberations]: proper regarding the sulting parties defendants, ju- find those should provided responses, the trial in the determination rists take questions. answers to the with written liabilities and dam- percentage of ages? composed mem- agree on REPLY: ... had two alternates. bers and fix dam- ones who should are the would stipulated the two alternates sign form of verdict.1 ages participate in the trial general award of are to make replies REPLY: You questions were as 1. The rest of the you lump sum. If want in a follows: ar- separately how the amount was indicate p.m.]: [1/30/89, Can we QUESTION 3:47 at, may. verdict form should plaintiff rived damages per specify the amount total sum. listed)? have one (five The court of possibility ruled that the trial reasonable to either answering grounds for had erred a new trial. See, e.g., Rosell, Kirby 45- notifying note without (Ct.App.1982); instructing those who voted Watson, also Texas see Gen. Indem. Co. v. against liability were Defendants’ not (new (Tex.App.1983) S.W.2d 615 participate in the deliberation of the granted jurors convinced remaining two issues. no one “Because can tell voting jurors way those a certain jurors what effect the excluded would have issue could not on other is- issue, vote damages had” the court af- sues); generally see 58 Am.Jur.2d New judgment firmed the of the trial court as to Trial Although 317. neither liti- §§ liability damage but reversed the award error, gant causes the often neither remanded for retrial on the over, starting benefits from the risk of issue alone. Mem.Dec. at 5-6. by jurors such mistakes is a cost of the granted review to determine whether right by jury. to trial entire must be reversed and present case, procedures In the judge remanded normal when the trial communi- disrupted judge parte cates ex were when the re- jurors, erroneously with di- sponded inquiry recting substantive from the jurors those in who voted favor of consulting without In many counsel. the Defendants on issues not to jurisdictions, any communication by a deliberations, participate in further judge deliberating jury with a without the the case properly whether remanded knowledge input litigants may for retrial on the only. grounds for a mistrial. See generally 58 Am.Jur.2d New 323; Trial 75B Am. § DISCUSSION Jur.2d Trial (1992). § Errors purposes review, For the of our 1. Communicating Jury ap Plaintiffs do not contest the court of Notifying Without Counsel peals’ determination the trial court by jury fairness of trial de improperly communicated in prohibi rives substantial from the compelled by jurispru nevertheless tion communication to the dential ques considerations to settle regarding information evidence and le subject. tion on this conduct generally See gal standards. Am. generally See was erroneous. Russell (1989). According Davis, Annotation, Jur.2d New Trial Propriety and Preju cases where a Effect, Cases, ly, wrongly dicial in Federal Civil inter feres with the Judge Communications between that liti Jury gant may Made out Counsel’sPresence and be held to account for his or her Deliberation, prejudices opposing par misconduct if it Submission after generally 58 Am.Jur.2d New Trial A.L.R.Fed. 392 ty. (1977 Supp.1991). More cases, over, In in many respond where member cases the failure to jury brings jury may to the deliberations extra effect a communica material, information, Thus, neous or communica if tion. even the trial has no regarding responding tions the issues intention of [1/30/89, No, p.m.]: QUESTION must all If REPLY: You 3:48 remain. main until verdict stipulate rendered are ex- are awarded we a trust fund or cused* per plaintiff? other instruction [1/31/89, QUESTION Does the a.m.]: 9:15 REPLY: No. special interroga- percentages total of the 2 [1/30/89, pan.]: any ju- QUESTION If 4:10 tories have to total 100%? REPLY: Yes. rors find for the defendants are therefore eligible participate in the decisions on [1/31/89, QUESTION 9:30 To find Pe- a.m.]: percentage and the amount of liably percentage ter Perkins do to some [sic] damages, jurors are those excused until the agree? complete verdict is read in court? REPLY: Yes. in- respond, must still Error does Substantive form the of the communication and tell instruction positions allow the to voice their against ing those concerns for the record. participate should not in the deter If this had consulted case issues, including mination of other dam respond- litigants even advised the ages, was itself erroneous. v. Del Hall might have jury’s inquiries, error vat, Further, if been detected and avoided. (1964), three lia who voted might be object, any counsel failed bility did not the discussion Kluckhohn, waived. See Ashdown damages or vote on that issue. This court A.D.2d 404 N.Y.S.2d quoted “good authority” an Ohio instructing (judge consulted held cause which that whose “[a] jury’s inquiry, in to that jury, response jury to has been submitted is entitled par- dissenting on should not juror by cause considered and discussed plaintiff ticipate damages; in decision jurors, the is entitled have all all to argued in favor of instruction who the every in them the decision of When, ruling). as in could not later contest 291, question presented to them.” at Id. notice, this a trial acts without (quoting Stump, at 389 P.2d Ralston v. litigants object opportunity have no to the 375, 143, App. 31 O.O. 62 N.E.2d 75 Ohio the regarding concerns or voice their 293, (1944)); v. 294-95 accord J.C. Gorski procedure until it is too late. judge’s Co., 405-07, 404, Penney Ariz. damage is done. 851, (1968) (error juror 852-54 from discussion after withdrew opportunity this to We thus take Co., against liability); Texas Gen. Indem. judges not com emphasize that trial should (excluding “two of the 656 S.W.2d at 615 jury regarding municate the substan in jurors participation full the twelve legal or matters of substantial tive issues very essence notify jury deliberations violates the first procedural importance without system deprived spirit jury to giving opportunity counsel an jury”). by full and fair trial whatever a positions state their make ap appropriate. is We therefore record principle simple. constitution- by court of prove position taken right jury it the by al carries with Stores, Safeway v. Inc.: Duran jury right every by to have issue tried between “[C]ommunication [of substance] empaneled, has not two-thirds that been jury during deliberations the court and the three-fourths, or other of that or disap parties] notice without such [to Hall, Ariz. fraction. at 1102, 726 P.2d proved.” 151 jurors have been P.2d at who do It is (Ct.App.1986). error. empaneled required consider course, not, impose judges issues submitted to them decide each obligation counsel to communicate with by the The cases cited establish court. respect minor details administrative minor- find in a jurors themselves lunch, viewing of an as the time for such or ity on one withdraw issue See, exhibit, glass. magnifying or a use of other from consideration of the excluded Buchanan, 407 F.2d e.g., Sanders in the issues case. Cir.1969) (10th (jury it could not told Gorski, reach the we did not In Hall and evi examine documents admitted cases the both dence). inquiries because On significance, irregularity in the deliberations arguable or even substance brought attention or trial dealing with rules whether of the through from members to coun affidavits communicated procedure, must be “the Adhering principle jury is made to the any response sel before impeached jury cannot respond is verdict any decision not to or before that the jurors,” we found the affidavits of made.

H9 irregularity ance.”); had not been generally established. see 75B Am.Jur.2d Trial Hall, 95 Ariz. at 389 P.2d at 696. 521 & n. at Therefore, we declined to overturn ver- Thus, verdict, until return the dicts reach preju- and did not the issue of jury may again again decide to recon- Id.; 405-06; Gorski, dice. Ariz. at sider all of one or in the issues case. us, P.2d at 852-53. In the case now before example, jury might For vote that both however, the error established liable, defendants tort case are rath- instruction from the later, then allocating per- course of by juror’s er than affidavit. We cannot centages fault fixing damages, con- speculate that the failed assume clude really defendant was not follow the erroneous instruction. liable at all. Consequently, do not and we London, 355, 357, 89 Ariz. See Elliott v. cannot any point know assume that at (1961) (court presumed 362 P.2d instructions); followed 5 Am.Jur.2d unalterably Appeal concluded that Defendants (“appellate and Error § court generally presumes that the ... were liable Perkins’ death. Defendants instructions, heeded the incor- correct or deprived right were of their all of to have rect, given it”). that were must deciding participate in all of the therefore consider the issue prejudice, issues. to question. we turn now that Moreover, require litigant we cannot to prejudice resulting show the extent of from Prejudice Scope Remedy B. the when, matter, practical an error the The court of held the error impossible nature of the renders it to judge’s required only trial error on prove of any prejudice. the extent In this the argue, issue of Defendants necessary prejudice the inheres the however, on damages that retrial is alone judge’s instructions, which, trial if fol- error, insufficient to correct the and that we must lowed—and assume were— required retrial on is as well. deprived Defendants of opportunity the Plaintiffs, the assert—and have their exhaustively deliberated without reason—that because of a full Hampton See v. Schabe negli the ten found that Defendants Bays Dist., Free Union School 103 A.D.2d death, gently caused Perkins’ Defendants 418, 328, (1984) (“partic- 480 N.Y.S.2d 335 are unable to that the instruction establish ipation less than all its members affected jury’s the conclusion that Defen deprives the of the reflections and dants were for Perkins’ liable death. Ab might sent individual showing have issue, damage opposed only question might per- the verdict and should be have retried. suaded or more of one the other Ralston, position”); wisdom his non-participation Given in the Plaintiffs’ (where N.E.2d at instructs error, tempting accept argu- it is their jurors voting against verdict could not scope ment trial. and limit the the new award, determining take “it cannot believe, however, that the it asserted assumed that was not inherently prejudicial, and no further prejudicial, for the amount of verdict reversal, showing require is needed might substantially been different mand, on all and retrial issues. A made”). had the statement been decision on an issue is not final its until accepted by verdict trial court. Ral- short, prejudice conclusively (“Until Stump, ston v. 62 N.E.2d at 294 presumed the nature of the error conclusion of the is submitted to deprives right. court, of an essential accepted by nothing it is more 2, (“[T]he right art. ju- See Ariz. agreement among than a tentative § rors, inviolate.”); by jury shall subject change remain id. revocation at (same); accept- 6, time before submission v. Fulmi- such Arizona - nante, U.S. -, -, 1246, responding, rists.” In S.Ct.

1265, (1991) (certain principles, transmission of erroneous 113 L.Ed.2d 302 upon it himself took to correct “structural defects constitution usage mechanism,” by informing error in including, foreman’s for exam only jurist him that in- ple, exclusion of of de “[t]here unlawful members I assume mean jurors.” volved. Me. grand “defy fendant’s race quite inappropri- We believe this correction standards”); analysis error’ by ‘harmless often unfamiliar ate. Jurors are with cor- Chapman California, U.S. legal terminology rect even be S.Ct. L.Ed.2d 705 guilty improper grammar or usage. Un- (“some rights so basic constitutional [are] endanger the accuracy less such errors their fair trial that infraction can never judicial process, we see no need for the error”); see also harmless be treated as embarrassing juror risk un- Valley Reinartz, Transp. Sys. v. 67 Ariz. correcting improper necessarily grammar 383, 197 (1948)(prejudice usage. perform Jurors an important presumed improper evidence is ad “where duty and, recompense civic with little jury might mitted act or upon which cases, most considerable inconvenience. improper given of law instructions They are respect to be treated with gen jury”). might which mislead the They consideration. are not be embar- erally Appeal and Error 5A C.J.S. rassed. (some (1958 Supp.1991) at 695 error “so or so substantial in nature connected rights or the course of DISPOSITION proceedings pri it cannot be said re

ma facie not to have influenced the erroneous, in- sult”). struction that those liability participate were not to the deters If, the judge’s on the other mination of necessitates a retrial had cor- communication damages. por- on as as well That law, rectly explained the harmless error appeals’ tion the court decision analysis appropriate would have been be- manding solely the case for on this cause, although failing erred in issue of is vacated. The case is notify parties, the failure to do so superior court remanded to the for retrial any legal right. could not have affected on all issues. Duran, Ariz. at P.2d at Const, 1104; (no see also art. 27§ CAMERON, MOELLER, V.C.J., reversal for “technical error” “sub- when MYERS, (retired), Judge, concur. done). stantial Given the nature of justice” the made in the substantive error GORDON, X. Justice FRANK Jr. present how- communication (retired) decision; in this did not ever, deprived of a funda- Defendants were pursuant to Ariz. analysis right, mental a harmless error MYERS, Judge D. Honorable ROBERT inappropriate. The circum- is therefore Court, Superior Maricopa County present no alternative stances of this designated in his stead. to sit on well for retrial as but remand as CORCORAN, Justice, specially

concurring. Message Jury C. It is I result. reversible concur acting also re- Jurisprudential judge, considerations for without the a trial to, effect, parties, on one more matter. dis- quire approval us to comment of the qualify foreman some deliberation judge, In his to the note did not “ju- issue because incorrectly referred making join verdict on the EXHIBIT A issue. BEFORE THE DISCIPLINARY

COMMISSION OF THE SUPREME COURT OF ARIZONA No. Comm.

In the Matter of GOTTESMAN, H. MICHAEL a Member the State P.2d 1266 Arizona, Respondent. Bar of the Matter a Member DISCIPLINARY COMMISSION REPORT Arizona, State H. Bar of Michael GOTTESMAN, Respondent. May 28, Filed This matter came on regularly hear- No. SB-92-0048-D. ing Disciplinary before the Commission Comm. No. 92-0068. April 1992. The appeal record on hav- Supreme Court of Arizona. duly been considered and a decision rendered, the reports Commission as fol- Aug. 20, 1992. lows: Greenlee, Counsel, Nancy A. State Bar Decision Counsel, Turney, Harriet L. Chief Bar By unanimous Commis- vote Bar of Arizona. State considering matter,1 sioners Com- discipline

mission recommends the identical discipline aof censure as a result of im- JUDGMENT AND ORDER posed by Supreme Jersey Court of New having This hearing matter come on for 10, 1991. on December Disciplinary Commission of the having duly Court of it Discussion Decision timely appeal rendered its decision and no Respondent Jersey lawyer prac- is a New Court, having been before the filed ticing primarily in that state. He also a ORDERED, member of the Arizona

IT Bar. IS AND ADJUDGED DECREED MICHAEL H. GOTTES- relating Respondent’s facts disci- MAN, a of the State Bar of Ari- member pline arrangement concern his an in- zona, hereby censured for conduct vestigator by name of Anthony Infante. obligations violation of his duties Mr. Infante would obtain and do clients lawyer, as disclosed the commission investigative regard personal work attached as port hereto Exhibit injury cases and receive of the fees 50% resulting from clients procured. that he pursu-

IT IS FURTHER ORDERED that 52(a)(8), Respondent prior employer to Rule Rules of the left his ant firm, began using Court of State Bar Arizona own law Mr. Infante Although granted judgment against investigator H. MICHAEL original agreement split, costs incurred was a 50-50 GOTTESMAN for up Vs-Va-Vs, fees splitting Bar of Arizona in the amount of ended one-third State Infante, $211.60, together going Respon- to Mr. with interest at one-third to dent, judgment. from the date of this and one-third “overhead.” The rate proceedings. participate in Commissioner Hoffman did not these

Case Details

Case Name: Perkins v. Komarnyckyj

Court Name: Arizona Supreme Court

Date Published: Aug 6, 1992

Citation: 834 P.2d 1260

Docket Number: CV-91-0104-PR

Court Abbreviation: Ariz.