Summary
In Gambrell v. Ravin, 764 P.2d 362 (Colo.App. 1988), the Court of Appeals held that the trial court erroneously denied a motion for new trial filed by Daniel Gambrell and his mother, Linda Gambrell Eddy (respondents).
Summary of this case from Ravin v. GambrellOpinion
No. 85CA1291
Decided May 5, 1988. Rehearing Denied June 2, 1988. Certiorari Granted Ravin November 7, 1988 (88SC309).
Appeal from the District Court of El Paso County Honorable Donald E. Campbell, Judge
James S. Bertagnolli, Guardian Ad Litem.
Peter A. Goldstein, P. C., Peter A. Goldstein, for Plaintiffs-Appellants.
Johnson, Mahoney Scott, P. C., Collie E. Norman, Karen B. Best, for Defendant-Appellee Ravin.
Pryor, Carney and Johnson, P. C., Friedrick C. Haines, for Defendant-Appellee McKee.
This is an appeal by the plaintiffs, Daniel Gambrell and his mother, Linda Gambrell Eddy, from an adverse jury verdict and judgment entered thereon in their medical malpractice action against two physicians, Sheldon J. Ravin and David R. McKee. We reverse and remand for a new trial.
Defendant McKee provided prenatal care and treatment to plaintiff Linda Gambrell Eddy during the pregnancy that culminated in the birth of plaintiff Daniel Gambrell. However, when she went into labor, he was not available, and defendant Ravin, who was taking his calls, delivered the child. Complications during delivery resulted in an injury to Daniel that caused a substantial limitation of the use of his left arm.
The case was tried to a jury over a period of nine days, and, after nearly two days of deliberation, the jury returned a verdict in favor of the defendants. An affidavit of one juror, Mrs. Rasher, indicated that toward the end of the jury deliberations she was feeling ill and that she was alone in her position favoring the plaintiffs. She asked the bailiff what would happen if the jury remained deadlocked and was told by him that the judge might make them deliberate for "up to two weeks." An affidavit of the jury foreman confirmed this remark. (The defendants submitted a second affidavit of Mrs. Rasher in which, inter alia, she indicated her belief that the defendants had not been negligent.)
I.
Alleging that the bailiff's response to the juror was both unauthorized and untrue, and that it was prejudicial, the plaintiffs contend that the trial court erred in not granting them a new trial. We agree.
Matters relating to inquiries into the validity of a verdict are governed by CRE 606(b). By that rule, a juror is precluded from testifying as to matters occurring during the course of deliberation, or to the effect of events in the jury room upon his or other jurors' mind or emotion. See Rome v. Gaffrey, 654 P.2d 333 (Colo.App. 1982). However, the rule allows "a juror [to] testify on the question whether extraneous prejudicial information was improperly brought to the juror's attention, or whether any outside influence was improperly brought to bear upon any juror."
Under the rule, the portion of the juror's affidavit about her physical condition and her position as holding out alone against the other jurors, as well as her second affidavit, cannot properly be considered. People v. Harrison, 746 P.2d 66 (Colo.App. 1987). It is appropriate to consider the remark attributed to the bailiff, that if a verdict could not be reached, the judge might make them deliberate for "up to two weeks." Nevertheless, exposure to this extraneous influence does not, in and of itself, mandate a new trial. It must be determined if the influence was prejudicial. How to determine prejudice presents difficult logical and philosophical problems.
The portion of the rule prohibiting inquiry into the "effect of anything upon [a juror's] mind or emotions as influencing him to assent to . . . the verdict . . . or concerning his mental processes in connection therewith" prevents inquiry that could determine whether the bailiff's statement did affect the juror and, thus, was prejudicial. In Wiser v. People, 732 P.2d 1139 (Colo. 1987), that anomaly is discussed at length. There, the court determined that "the relevant question is whether there is a "reasonable possibility" that extraneous contact or influence affected the verdict to the detriment of the defendant." While the Wiser court was dealing with a verdict in a criminal case, it was interpreting CRE 606(b), as are we, and therefore, we find no reason not to apply the same rule in this civil case.
Thus, we apply the objective test of Wiser, i.e., whether there is a reasonable possibility that the bailiff's comment that the judge might make the jury deliberate for up to two weeks affected the verdict to the detriment of the party attacking the verdict. We conclude that there was a reasonable possibility that the jury was affected and hold, therefore, that a new trial is required.
Had the trial court itself made a statement to the jurors similar to the remarks of the bailiff we could not sanction such a "dynamite Allen-type" charge. See Lowe v. People, 175 Colo. 491, 488 P.2d 559 (1971). No more should we allow a verdict to stand based on a bailiff's comment to the same effect. The bailiff is, in the eyes of the jury, its contact with the court.
II.
We address other assertions of error raised by the plaintiffs which are likely to reoccur on retrial.
A.
The first of these is plaintiffs' contention that the court erred in refusing to instruct on the doctrine of res ipsa loquitur. We agree with this contention, but only as to Dr. Ravin, as Dr. McKee was not present at the delivery of the baby.
No longer is the application of the doctrine of res ipsa loquitur limited to situations in which no reasonable explanation for injury exists other than the negligence of the defendant. See Holmes v. Gamble, 655 P.2d 405 (Colo. 1982) and Hartford Fire Insurance Co. v. Public Service Co., 676 P.2d 25 (Colo.App. 1983).
In Montgomery Elevator Co. v. Gordon, 619 P.2d 66 (Colo. 1980), the essential elements of the doctrine were enumerated as follows:
"(1) The event is the kind which ordinarily does not occur in the absence of negligence.
"(2) Other reasonable causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence, [and]
"(3) The indicated negligence is within the scope of the defendant's duty to the plaintiff."
However, a plaintiff does not have to establish "by a preponderance of the evidence that the injury was of the kind which ordinarily does not occur in the absence of negligence." Holmes v. Gamble, supra. As we understand that case, it is not a matter for the trial court to determine whether the evidence preponderates or not; rather, it should consider all legitimate inferences from the evidence in the light most favorable to the plaintiffs, and then submit the issue of res ipsa loquitur to the jury if the facts in evidence reasonably permit a conclusion that negligence is the more probable explanation. Montgomery Elevator Co. v. Gordon, supra. Restatement (Second) of Torts § 328D, comment e (1965). It is the function of the jury to determine which of several potential explanations was more convincing in determining the cause of the injury. Hartford Fire Insurance Co. v. Public Service Co., supra.
On retrial, if the evidence so establishes, the plaintiffs would be entitled to an instruction on res ipsa loquitur, and if such instruction is given, the instruction on the happening of an accident not being presumptive of negligence, CJI-Civ.2d 9:12 (1980) should not be given. Kitto v. Gilbert, 39 Colo. App. 374, 570 P.2d 544 (1977).
B.
Finally, we address the contention that the trial court erred in not instructing the jury on the standard of care applicable to specialists. If, as occurred at this trial, there is a question of fact presented by the evidence as to whether one or both of the defendants held himself out as a specialist, the court should instruct the jury both on the standard of care required of specialists, CJI-Civ.2d 15:5 (1980), and of the standard of care required of general practitioners, CJI-Civ.2d 15:1 (1980). In addition to these instructions, the jurors should be instructed that it is their duty to determine the fact question whether, under the evidence, either defendant held himself out to be a specialist and, on the basis of this determination, to apply the appropriate standard of care instruction. See Short v. Kinkade, 685 P.2d 210 (Colo.App. 1983).
Here, the evidence that Dr. Ravin had advertised in the Yellow Pages under the heading of "Family Practice Obstetrics Pediatrics," was enough to raise this issue. His explanation that the meaning of the advertisement was that he was holding himself out in the community "as a family practitioner who did deliver babies and did take care of babies" presents a fact question for resolution by the jury.
The other contentions of error are without merit or are unlikely to arise on retrial.
The judgment is reversed and the cause is remanded for a new trial.
JUDGE JONES concurs.
JUDGE VAN CISE concurs in part and dissents in part.