Shamburger v. BehrensShamburger v. Behrens
Lead Opinion
(on reassignment).
This medical malpractice case is before this court for the second time. In Shamburger v. Behrens,
The second trial concluded with a jury verdict for Elston and Signe Shamburger (Shamburgers) which Behrens now appeals. After the verdict Behrens filed timely motions for a new trial and judgment notwithstanding the verdict. These motions were denied. Later Behrens filed a motion for relief from the judgment based upon alleged juror misconduct. This motion was also denied. Behrens appeals from these orders denying his requested relief. We affirm.
Facts
In May 1986, in preparation for upcoming trials in Pennington County, the clerk of courts sent out a “Personal Information Form” to prospective jurors. James R. Curtis (Curtis), received one, filled it out, and returned it to the clerk.
The clerk summoned Curtis as a prospective juror for this trial since nothing appeared on the returned form which would disqualify him as a juror. Curtis was seated on the jury and participated in the jury deliberations which resulted in a verdict favorable to Shamburgers. The vote of the jury was ten to two; Curtis was one of the ten.
The jury returned the verdict on July 1, 1986 and the trial court entered its judgment on July 2, 1986. The order denying a new trial and judgment notwithstanding the verdict were entered on August 7,1986. Twenty days later Donald R. Shultz (Shultz), Shamburgers’ attorney, received the following handwritten letter from Curtis:
*301 8-26-86
Donald R. Shultz
P.O. Box 8110
Rapid City, SD 57709
Dear Mr. Shultz:
As a juror on your case against Dr. Clayton Behrens, I commend you for a job well done. I trust that it will not be appealed!
However, I have a felony conviction on my record which could be just the ammunition that Mr. Porter and his firm needs to file such an appeal.
If this information were revealed, along with how instrumental I was in the verdict and the large dollar amount awarded, an appeal would certainly be made.
If you wish to prevent this situation, I feel that withholding this information is worth a percentage of your fee similar to what you charged your clients.
If this case were to go to trial again, your chances of winning it a second time would be “slim to none”!
Sincerely,
/s/ James R. Curtis
Acting with responsible and ethical dispatch, Shultz contacted the judge who in turn called the Pennington County sheriff. A meeting was arranged between Shultz and Curtis at Shultz’ law office. The conversation between the parties was taped. Curtis’ demand for $30,000 was refused. He eventually left with $1,000 in marked bills. As Curtis left Shultz’ office, he was arrested. He was subsequently charged and convicted of grand theft by threat and sentenced to a term in the state penitentiary-
After learning of Curtis’ extortion maneuver, Behrens moved for relief from the judgment under
1) James Curtis’ real name was James Curtis Svihovec;
2) James Curtis was convicted under the name Svihovec of mail fraud in Omaha, Nebraska on May 31, 1978, and received a five year sentence most of which was spent on probation;
3)James Curtis had been involved in other litigation in Pennington County particularly a foreclosure of a contract for deed proceeding in 1984.
1. WAIVER
It is undisputed that Curtis was not questioned about his qualifications during voir dire. Although no record was made of that portion of the trial, the parties agree on this point. The earliest anyone knew of the potential problem was when Shultz received the August 26, 1986 letter. Sham-burgers argue that Behrens’ failure to object or even question Curtis about prior felony convictions during voir dire constitutes waiver of his right to now complain.
The basis of this argument depends upon the function of the personal information form. Shamburgers take the position that Behrens had to question the рrospective juror and could not rely upon the questionnaire. Anything less, they contend, is a waiver.
After the personal information form was received by the clerk, and there was nothing on the form which the clerk could discern would disqualify Curtis, the basic information was shared with the litigants. This is a common practice within this state. While the form may vary from circuit to circuit, the use of these forms has become a basic part of the jury selection process. The purpose of these forms is to shorten the time required for jury selection. It allows the attorneys to bypass routine questioning about name, age, children, and spouse’s employment and to ask questions dealing with the pertinent issues at trial.
Thе personal information forms are not and were not intended to be a substitute for voir dire, but are merely a tool to aid trial efficiency. Nevertheless, the personal information form sent to Curtis contained a section asking potential jurors to inform the court if they were disqualified for jury duty for any one of several reasons, including “convicted felon not restored to civil rights.” Either through mistake, misunderstanding or intent, Curtis did not mark the appropriate box. It is speculation to
Behrens’ reliance upon the answers given by Curtis in the personal information form was not unreasonable and failure to question Curtis about prior felony convictions did not operate as a waiver. State v. Delfs,
2. JUROR QUALIFICATIONS
Juror Curtis was convicted of mail fraud in 1978 under
The qualifications of a petit juror are generally found at
Qualifications of jurors. All citizens of this state, who are registered to vote and of sound mind and who are able to read, write, and understand the English language, and not justices or clerks of the Suрreme Court or a judge of the circuit court or any court of the United States, or a court of limited jurisdiction, or licensed attorneys, or clergymen as defined in § 19-13-16 when jury service conflicts with their religious beliefs and who have not been convicted of any felony unless restored to their civil rights and who are not subject to disability by the commission of any offense which by special provision of law does or shall disqualify them, are and shall be competent persons to serve on all grand and petit juries within their counties respectively. (emphasis added)
Shamburgers argue that
We hold that a person who has been convicted of a felony under federal law is not automatically disqualified as a juror under
3. RELIEF FROM THE VERDICT BASED UPON JURY MISCONDUCT
Shortly after the Curtis letter surfaced, Behrens requested relief from the judgment. The trial court denied the motion and in doing so found that there was no intrinsic or extrinsic influence upon the jury verdict; that the jury had not been tampered with or influenced by juror Curtis; that there was no showing of any substantial effect on the jury verdict by Curtis, and that to allow the post-verdict innuеndos suggested by Curtis’ letter to set aside the jury verdict would allow his threat to be condoned and give an unacceptable taint to the jury verdict. This is solid reasoning by the trial court.
A person seeking a new trial on the grounds of alleged juror misconduct has the burden in the trial court to show that the alleged misconduct materially affected his substantial rights. Carpenter v. Union Baking Co.,
In this case Behrens’ proof failed to show any bias by juror Curtis against Beh-rens. Behrens’ reliance upon Delfs, supra, is excessive because there the jurors’ misconduct (failure to disclose prior DWIs in a DWI trial) was specifically prejudicial to the State and the State’s position. The trial court held Behrens failed to establish Curtis’ misconduct materially affected Beh-rens’ substantial rights. He failed to show Curtis’ misconduct affected the jury verdict, offering only sheer speculation and conjecture as to what might have been in the juror’s mind. The moving party has the burden of showing the alleged misconduct materially affected his substantial rights. There is a failure tо sustain that burden of proof in this case.
Behrens claims that the sheriff’s interview and Curtis’ extortion interview with counsel for Shamburgers suggest Curtis’ extortion idea was formulated before the verdict was reached. As indicated by counsel, this suggestion is then “bootstrapped” into seeds of disaster planted by Curtis before trial setting the stage for depriving Behrens of a fair adjudication. Behrens urges that the extortion letter is proper evidence of Curtis’ prejudice and deceit in the jury’s verdict. This overlooks the applicable statutory law requirements on impeachment of a verdict.
The statutory basis for impeachment of a jury verdict on claimed misconduct of a juror based on testimony from a juror is governed by
(Rule 606(b) ) Juror’s testimony prohibited as to deliberative process — Exception for improper influence — Affidavits and statements. Except as otherwise provided by statute, upon an inquiry into the validity of a verdict or indictment, 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 his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial informаtion was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes, (emphasis added)
It is settled law in South Dakota that only extrinsic, as opposed to intrinsic, information may be used to impeach a jury verdict. Duncan v. Pennington County Housing Authority,
A common ground for a motion for a new trial is that the jury, or members of it, has not performed in the fashion expected оf juries. Attacks on this ground are frequently abortive because, as will be seen, the circumstances under which the jurors themselves may testify to impeach the verdict are very limited.
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The correct rule is that a juror may testify about whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. A juror may not testify about statements made during the course of the jury’s deliberation nor may he testify about the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to the verdict or about his mental processes in connection with the verdict.
11 C. Wright & A. Miller Federal Practice and Procedure, § 2810. In Finney, supra at 171, in a special concurring opinion, Justice Wollman emphasized the intrinsic evidence exclusion rule, stating that in close cases, it is better “ ‘to err upon the side of exclusion rather than receipt of [such] evidence.’ ”
Behrens fails to point to any evidence of improper pre-verdict bias or prejudice by juror Curtis. The claimed evidence of Curtis’ thought processes must be excluded because it was not extraneous information brought to any juror’s attention. Any possible prejudice or bias juror Curtis may have had in jury deliberations were part of his own mental process and not an extraneous influence. Thus, any post-trial evidence claiming his bias or prejudice must be excluded.
In United States v. Eagle,
As recently noted in Tanner v. United States, 483 U.S. -,
There is little doubt that post-verdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it. Allegations oí juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict seriously disrupt the finality of the process, (emphasis added).
Tanner, supra, 483 U.S. at -,
There is simply no proof in this record that juror Curtis’ improper conduct and plan had any effect on the verdict. In fact, there is no proof that his plan to extort money was even conceived before he wrote the letter, which was eight weeks after the jury verdict. Under this evidence, there is nothing to show that his extortion attempt was anything more than a poorly conceived afterthought. The trial court is affirmed because there simply is no proof in this record that juror Curtis’ improper conduct had any effect whatsoever on the verdict.
We affirm for yet another reason. As stated by the trial court:
The attempted manipulation by Mr. Curtis cannot be condoned or supported and indeed to allow this to be set aside simply on those assertions by him subse*305 quent to the verdict would be condоning to some degree his conduct or would be creating an inference of taint subsequent to a verdict which should not be accepted by this Court.
In other words, if an attempt at extortion is allowed to vacate a valid jury verdict, then we promote and reward the extortion attempt rather than exposing and punishing it. The jury verdict was reached on July 1, 1986. The letter containing the extortion threat was received almost two months later, on August 27, 1986. While the juror’s conduct after the trial was reprehensible and has resulted in a criminal conviction, the trial court correctly held it was no basis for a new trial. Behrens has clearly failed to establish reversible error in the court’s ruling. If he could sustain his burdеn of proof that he was prejudiced, then and only then should the jury verdict be vacated.
In the absence of proof that the extortion plan had an extrinsic causal connection with the jury deliberations or verdict, we affirm.
4. NATIONAL STANDARD OF CARE
Dr. Behrens is certified by the American Board of Surgery and is a Fellow of the American College of Surgery. He has been certified since 1954. He graduated from medical school in 1943. After two years in military service, a pathology residency and some general practice in eastern South Dakota, he completed another residency in surgery and then came to the Rapid City area where he has practiced his profession and had contact with Shambur-ger.
Shamburgers’ medical expert, Dr. John E. DeLauro, is a surgeon from Denver, Colorado. He was not familiar with the setting in which Behrens worked. He testified that board certified surgeons must meet and comply with national standards in order to maintain their certification. It was his testimony that such surgeons should be evaluated on a national basis regardless of where they might practice. It was his medical opinion that there was a national standard for reducing the risk of infection in pre-operative and post-operative care and that Behrens failed to meet this standard.
In settling the instructions, the trial court determined that the applicable legal standard of care for measuring Behrens’ actions should be a national standard of care. Over Behrens’ objection the following instruction was given:
Instruction 6
In determining whether the Defendant was negligent, you are instructed that the Defendant has the duty to have that degree of learning or skill ordinarily possessed by board-certified surgeons of good standing engaged in the same field of specialization in the United States under same or similar circumstances.
It is his further duty to use that degree of skill ordinarily exercised in like cases by board-certified members in good standing of his profession who are engaged in the same field of specialization in the United States and to be diligent in an effort to accomplish the purpose of which he is employed.
You will judge Defendant’s performance in accordance with the standard of care applicable to him as of the time of events complained of which is April 7, 1980 through May 6, 1980.
These duties apply to pre-operative care and post-operative care. The failure to perform these duties is negligence.
In analyzing the applicable standard of care in South Dakota, we note that Block v. McVay,
Also, there is nо evidence indicating that there was any reasonable doubt as to whether he followed the proper practice prevailing throughout the medical profession. The type of evidence required upon which to base a finding of negli*306 gence in this respect must of necessity be furnished by medical experts.
Fjerstad v. Knutson,
Decedent had a right to expect that the treatment rendered by a hospital which maintains and staffs an emergency room would be commensurate with that available in the same or similar communities or in hospitals generally.
This statement appears to suggest both a national and local standard in the same sentence.
It is no longer justifiable, if indeed it ever was, to limit a hospital’s liability to that degree of care which is customarily practiced in its own community. This is particularly true when we recognize — as we must — that many communities have only one hospital. Adherence to such a rule, then, means the hospital whose conduct is assailed is to be measured only by standards which it has set for itself. There is no other hospital to which it may be compared.
This would permit a hospital to establish a negligent standard of care and later avoid liability by pointing to its own conduct as the norm by which negligence should be tested. We have brushed aside many of these same arguments in connection with the skill to be exercised by a doctor in attending his patient, and we have long compelled him to abide by the rules of good practice followed generally under similar circumstances. (Citations omitted.) (Emphasis added.)
Numerous authorities support the adoption of a national standard of care for specialists in medicine.
5. FUTURE DAMAGES
Behrens asserts that the trial court improperly instructed the jury on the issue of future damages as no evidence had been presented to provide the jury with a foundation for assessing alleged future damages.
We find that evidence was presented that Elston Shamburger had suffered pain for five years prior to trial and no evidence was introduced to allege or support the
Where evidence is presented to support a jury instruction on future damages, an instruction should be given. Corn Exchange Bank v. Tri-State Livestock Auction Co., Inc.,
We affirm.
Notes
. In Magbuhat v. Kovarik,
. Early v. Noblin,
Concurrence Opinion
(concurring in part and dissenting in part).
While I agree with the majority’s position upon the issues of waiver and the national standard of care for specialists, I respectfully dissent from the position that this case should be affirmed in all other respects. I do so because I perceive in the majority opinion a failure to distinguish between the requirements to be a qualified juror and juror misconduct during deliberations.
1.
JUROR CURTIS DID NOT NECESSARILY POSSESS THE QUALIFICATIONS TO BE SEATED AS A JUROR IN THIS CASE.
The qualifications of a petit juror are generally found at
QUALIFICATIONS OF JURORS. All citizens of this state, who are registered to vote, and of sound mind and who are able to read, write, and understand the English language, and not justices or clerks of the Supreme Court or а judge of the circuit court or any court of the United States, or a court of limited jurisdiction, or licensed attorneys, or clergymen as defined in § 19-13-16 when jury service conflicts with their religious beliefs and who have not been convicted of any felony unless restored to their civil rights and who are not subject to disability by the commission of any offense which by special provision of law does or shall disqualify them, are and shall be competent persons to serve on all grand and petit juries within their counties respectively. (Underlining added).
The language of this statute is broad enough to encompass an individual who has been convicted of a felony under either state or federal law as there is nо limitation placed upon the wording. The phrase "... convicted of any felony ...” means convicted of a felony in South Dakota, Iowa, any other state or in federal court. And when the language of the statute is clear and no ambiguity exists, the courts should apply the clear meaning of the words used. In the Matter of the Petition of Famous Brands,
In the case of State v. Hermann,
The State further contends that a conviction in a federal court is not a disqualification. Sec. 496.100, applicable to St. Louis County, provides: “None of the following persons shall be permitted to serve as jurors: * * * (5) Any person who has been convicted of a felony”. In*308 State ex rel. Barrett v. Sartorious,351 Mo. 1287 ,175 S.W.2d 787 ,149 A.L.R. 1067 [1943], we held that such broad language without any stated limitation disqualified from voting one who had been convicted of a felony in a federal court. Certainly the reasons given therein are applicable here. There is even greater reason for such a conviction being a disqualification of a juror than a voter because Sec. 494.010 provides that every juror shall be “sober and intelligent, of good reputation * * * and otherwise qualified.” Certainly a conviction for a felony in a federal court has some bearing on these matters.
Id. at p. 619.
The plaintiffs claim that Curtis’s civil rights were restored to him when he was discharged from federal probation. As a basis for such claim they cite two statutes:
A sentence of imprisonment in the state penitentiary for any term suspends the right of a person so sentenced to vote, to hold public office, to become a candidate for public office and to serve on a jury, and forfeits all public offices and all private trusts, authority or power during the term of such imprisonment. Any person who is serving a term in any penitentiary shall be a competent witness in any action now pending or hereafter commenced in the courts of this state, and his deposition may be taken in the same manner prescribed by statute or rule relating to taking of depositions. After a suspension of sentence pursuant to § 23A-27-18, upon the termination of the time of the original sentence or the time extended by order of the court, a defendant’s rights withheld by this section are restored. (Underlining added)
Whenever any convict has been discharged under the provisions of § 24-5-1 he shall at the time of his discharge be considered as restored to the full rights of citizenship. At the time of the discharge of any convict under the provisions of this chapter, he shall receive from thе warden a certificate and such certificate shall be due notice that he has been restored to the full rights of a citizen. If a convict is on parole at the time he becomes eligible for discharge, the warden shall issue a like certificate, which shall be due notice that such convict has been restored to the full rights of a citizen. Any convict discharged pri- or to July 1, 1965 shall as of the time of his discharge, be considered as restored to the full rights of citizenship. The warden is hereby authorized to issue a certificate to such ex-convicts.
The warden shall mail a copy of the certificate to the clerk of court for the county from which the convict was sentenced. (Underlining added)
Neither of these statutory provisions are applicable to the facts presented by this appeal. The first statute and the whole of
The plaintiffs argue that individuals who have been convicted under a criminal system other than South Dakota’s would have a more restricted right to serve on a jury. To answer this claim it should be noted that a classification restricting jury service, to non-felons is a constitutionally permitted classification. See, e.g., Rubio v. Superior Court,
Thus, a person who has been convicted of a felony under federal law is excludable as a juror under
2.
THE TRIAL COURT ERRORED BY FAILING TO GRANT THE DEFENDANT’S MOTION FOR RELIEF FROM THE JUDGMENT BASED UPON JURY MISCONDUCT.
Shortly after the Curtis letter surfaced, the defendant requested relief from the judgment. The trial court denied the motion and in doing so held (1) that there was no intrinsic or extrinsic influence by Curtis upon the jury; and, (2) there was no evidence to conclude that the jury was tampered with by Curtis.
I agree with the majority that Behren’s demonstration of juror misconduct during dеliberations falls short of the standard required by
The defendant’s request for relief under
An excеption is made to this rule so that ‘where it is shown that matters which might establish prejudice or work a disqualification were actually gone into on voir dire, and false answers were given, or deception otherwise practiced, the court will be permitted to consider the question on the motion for a new trial, either upon oral testimony taken at a hearing on the motion, or by affidavits’; because ‘the situation is closely akin to that when a new trial is sought for newly discovered evidence; and the complaining party is not to be left without a remedy for the want of a prior objection and exception, when the disqualification of the juror was one which he by due diligence could not have learned sooner. (Citations omitted)
We find from the record herein there was such concealment and deception on the part of juror Michel as to make this exception applicable in this ease; and we must hold this was prejudicial to defendant for the reasons stated in the above-cited cases. (Underlining added)
In concluding the court stated the reason implicit in this ruling is required because:
... [Defendant was entitled to this information, in determining which jurors to strike in using his peremptory challenges, regardless of whether or not it amounted to an absolute disqualification. Therefore, the judgment herein must be reversed. (Underlining added)
In McDonough Power Equipment v. Greenwood,
The defendant’s motion for a new trial meets the criteria of Greenwood. First, Curtis failed to answer a material question. His prior conviction of mail fraud, a crime of dishonesty, had a direct bearing upon his qualifications as a juror. Under our state procedure it makes no difference whether the question was answered by questionnaire or by way of answer in voir dire. A dishonest answer to a material question under either circumstances is adequate. See, State v. Delfs, supra; State v. Wyss,
Next, if the true state of affairs were known, the defendant would have had a challenge for cause. Under
I would reverse the trial court’s ruling and remand the proceedings to the lower court for a new trial.
I am authorized to state that MILLER, J., joins in concurring in part and dissenting in part.