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Failure to monitor exhibits sent to jury room.

OCCASIONALLY TRIAL JUDGES MAKE ERRORS IN ALLOWING JURIES IN THE MIDST OF DELIBERATIONS TO REVIEW OR EXAMINE MATERIALS THAT ARE NOT IN EVIDENCE. In this Michigan case a trial judge made a colossal error. He mistakenly allowed a defense counsel's "banker's box" of material not in evidence into the jury room.

PATRICIA MAYS UNDERWENT TWO BACK SURGERIES PERFORMED BY DR. GERALD SCHELL. Subsequently she brought suit against Dr. Schell alleging that his failure to render timely and effective treatment resulted in paralysis In a jury trial that lasted three weeks the jury heard testimony from nine witnesses, seven of whom were expert medical witnesses. Numerous medical records were entered into evidence. A Saginaw Circuit Court jury returned a verdict in favor of Dr. Schell, his professional group and St. Mary's Medical Center of Saginaw both of which had been joined in the suit against Dr. Schell. During the course of jury deliberations, the jury requested the plaintiff's complete medical records including MRIs, CTs, myelogram and a light box. Pursuant to the court's policy, instead of providing the exhibits specifically requested by the jury, all of the trial exhibits were presented to the jury. Unfortunately, the jury was also erroneously given defense counsel's "banker's box," which contained numerous items never admitted at trial, including: medical records; deposition transcripts, including one questioning the plaintiff's expert about his censure by the American Association of Neurosurgeon; testimonial history of expert witnesses; deposition summaries; memos to the file; memoranda of law, including one on the ability of defense counsel to cross-examine an expert's censure; some marked exhibits; correspondence between Dr. Schell and defense counsel; correspondence between Dr. Schell and the Pronational Insurance Company; and defense counsel's notes. After the jury rendered its no-cause verdict in favor of the defendants and was discharged, the trial judge's clerk retrieved the exhibits from the jury room and found that some of the exhibits were "intermixed" with the contents of defense counsel's "banker's box." Both parties were notified and a hearing was scheduled to determine what should be done. The plaintiff moved for a new trial, arguing that it was the only appropriate remedy. The trial judge ordered a new trial. The defendants appealed.

THE COURT OF APPEALS OF MICHIGAN REVERSED THE ORDER OF THE TRIAL COURT FINDING THAT THE TRIAL COURT HAD ERRED IN GRANTING THE PLAINTIFF A NEW TRIAL. The court held, inter alia, that while the record was clear that the "banker's box" was presented to the jury in error, the plaintiff, in moving for a new trial did not prove-and indeed objected to eliciting proof that the jury even looked at the items in the box, let alone considered any item. The court found that under the circumstances it was possible that the jury simply found the evidence they requested and only reviewed that evidence leaving the contents of the "banker's box" unviewed. The court concluded that because the record did not reflect that the jury in fact looked at, let alone relied on, the material in the "banker's box," which was not admitted into evidence, there was no basis for the trial court to conclude that the plaintiff was substantially' prejudiced by the mistake. The court further concluded that because the trial court's ruling in awarding the plaintiff a new trial was based on mere speculation, rather than established fact, and because the trial court granted a new trial before it determined whether the plaintiff actually suffered any prejudice, the trial court erred in awarding the plaintiff a new trial.

A VIGOROUS DISSENTING OPINION WAS FILED. The dissenting judge opined that the jury room should be sacrosanct and the trial court properly determined that the invasion of that sanctity alone by the trial court's error in allowing the defendant counsel's "banker's box" to get into the jury room in and of itself might have entitled the plaintiff to a new trial. The dissenting judge noted that the fact the trial judge's own clerk found that the exhibits legitimately introduced into evidence were "intermingled" with the contents of the defense counsel's "banker's box" was clear and convincing evidence that at least one or more members of the jury ran across at least some of the defense counsel's material which was in the magic box. The dissenting judge concluded that the plaintiff had established "that the jury was exposed to extraneous influences" and that there was "a real and substantial possibility that [those influences] could have affected the jury's verdict." Accordingly, the dissenting judge concluded that the trial court's decision to order a new trial was "a valid exercise of discretion. Mays v. Schell, 2005 WL 2649879 N.W.2d--MI

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Date:Oct 1, 2005
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