I believe that none of the alleged errors occurring at trial constitutes a valid basis for reversing the verdict, and would affirm the jury verdict in its entirety.
I The majority finds error with the court's decision to deny appellant's Batson challenge because the court did not engage in enough consideration of the challenge to show that it understood and applied the correct test. This is a tenuous ground for reversal, inasmuch as the majority is forced to concede that appellant is not complaining on appeal that peremptory challenges were used in furtherance of purposeful racial discrimination. Ante at 5. If there is no complaint that St. Alexis Hospital used a peremptory challenge to strike black jurors, any question regarding the court's handling of the prima facie test would certainly be irrelevant to the question of purposeful discrimination vel non.
But even were I to apply with considerable care the Batson prima facie test under Hicks v. Westinghouse Materials Co. (1997), 78 Ohio St. 3d 95,98-99, my opinion that the court did not err by refusing to find purposeful discrimination in the strike would not change. The majority repeats the same error it finds the court made it fails to apply the test to determine whether appellant made out a prima facie case of exclusion on racial grounds.
The majority takes issue with St. Alexis' ground for striking Juror No. 7, finding it is clearly insufficient to establish a race-neutral explanation for the strike. Ante at 9. However, the second part of the three part, burden-shifting test set forth in Batson does not require the party striking a juror to state good reasons for the strike at that point in the inquiry:
It is not until the third step that the persuasiveness of the justification becomes relevant the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. Purkett v. Elem (1995), 514 U.S. 765, 768.
The proponent of the strike need merely articulate a legitimate reason for the strike. Id. This does not mean that the reason must make sense it might even be considered implausible or fantastic or silly or superstitious. Id. Hence, in Purkett, the United States Supreme Court accepted as legitimately race-neutral strikes of two black males because they had long, curly and unkempt hair.
Applying the proper analysis shows that the court could legitimately accept St. Alexis' *Page 379 reason for striking the juror as being race-neutral on its face. This being the case, the burden would have shifted to appellant to show that St. Alexis' reason for striking the juror was pretext. The majority candidly concedes that appellant could not make that showing, noting that it is unlikely that St. Alexis used the peremptory to exclude a juror based on her race. The majority is correct to reach this conclusion, for three of the eight jurors seated for trial were black and St. Alexis only used two of its three peremptory challenges. This is not the kind of substantial disparity between struck jurors and those seated to establish an inference of discrimination. See, e.g., United States v. Alvarado (C.A.2, 1991), 923 F.2d 253, 255 (Only a rate of minority challenges significantly higher than the minority percentage of the venire would support a statistical inference of discrimination.).
Because the majority concedes there is ultimately no question of racial animus and recognizes the unassailable fact that appellant will not prevail on this point, its remand would serve no meaningful purpose.
II The majority nexts finds the court erred by permitting David Longworth, M.D. to testify because he could not express an opinion concerning proximate causation. Appellant's theory at trial was that the hospital violated the standard of care by failing to give a single dose of antibiotic early enough to kill the infection that ravaged her. Longworth told the jury he did not have an opinion, to the requisite degree of medical certainty, whether a single dose of antibiotics would have altered the course of the infection.
It does not matter that the court permitted Longworth's testimony because it went to the issue of proximate cause, and proximate cause became irrelevant in light of the jury's finding that no standard of care had been breached. The majority agrees that Longworth's testimony went to the ultimate issue of proximate cause, see ante at 15, but chooses to ignore the jury's ultimate finding relating to reasonable care, saying that a question the jurors sent to the court shows they were still considering proximate causation two days after they began deliberating.
This is a non sequitur. Even if the jury considered proximate causation during its deliberations, it says nothing about the ultimate verdict which found defendants did not breach a standard of care. We do not know why the jury reached the verdict it did, and it is not our job to inquir[e] into a jury's thought processes * * *. See United States v. Powell (1984), 469 U.S. 57, 66-67. The verdict stands as it is, and a finding that there had been no breach of a standard of reasonable care would negate any consideration of proximate causation. *Page 380
Even were proximate causation still at issue, I would find no error. The majority gives the impression that Longworth's testimony was the only defense evidence on proximate cause, but a second witness, Lowell Young, M.D., testified and said that the infection had irreversibly progressed to the point where antibiotics would not have altered the course of the infection. The majority notes the existence of this testimony, then proceeds to ignore it, choosing instead to focus solely on Longworth's testimony and its impact on the jury. Young expressed his opinion to the requisite degree of medical certainty, and his testimony clearly presented the fact issue of proximate cause. The presence of this second opinion completely undermines the majority's conclusion that the jury relied solely on Longworth's testimony to appellant's detriment.
III In upholding appellant's third assignment of error, the majority finds that Arthur Wheeler, M.D., did not devote enough of his time to the active clinical practice of medicine because he testified at deposition that approximately two-thirds to seventy-five percent of his time is spent doing research. In doing so, the majority gives no meaningful consideration to Wheeler's subsequent affidavit in which he stated that he devoted sixty-five percent of his time to the active practice of clinical medicine. It finds it sufficing to say that Wheeler's affidavit merely contradicts his deposition testimony. Ante at 22.
The court has the sole discretion to determine the competency of a witness, and the court did not abuse its discretion by finding that Wheeler's affidavit clarified certain aspects of his deposition testimony to make clear the scope of his clinical duties. At trial, Wheeler clarified that his research was part and parcel of his clinical practice of medicine: My research would involve being at the bedside, taking care of critically ill patients with new therapy. Clarified in this manner, Wheeler's testimony dispelled any misunderstanding of his initial statements in deposition. Any discrepancies between the deposition testimony and affidavit ultimately went to Wheeler's credibility, and the court clearly resolved those credibility issues in Wheeler's favor.
Moreover, I disagree with the majority when it nit picks with Wheeler's failure to explain in his affidavit how his research is related to the clinical practice of medicine. Wheeler's curriculum vitae fully outlined his impressive (and unchallenged) qualifications, and the jury was fully able to look at these qualifications and decide whether Wheeler's deposition testimony might not have accurately stated the nature of his practice. Moreover, the jury could properly assess Wheeler's credibility in light of the inconsistencies between his affidavit and deposition testimony. In my opinion, the majority finds no compelling reason to *Page 381 show why the court's decision to permit Longworth's testimony was arbitrary, unreasonable or capricious.
IV In its discussion of the fourth assignment of error, the majority finds the court committed plain error by failing, on its own initiative, to voir dire a juror who had been accused by another juror of considering matters outside the evidence during deliberations. In reaching this finding, the majority cites to the proper standard of review, but then proceeds to ignore that standard.
There are no hard and fast rules for dealing with jury issues that arise during deliberations. Because trial judges are in a better position to review alleged claims of juror misconduct, we must apply an abuse of discretion standard and review the court's failure to question the individual juror to see whether the court's failure was unreasonable, arbitrary or unconscionable. See State v. Hessler (2000),90 Ohio St. 3d 108, 115-116. When jury misconduct does occur, a new trial is not mandatory, but will only be ordered when the juror misconduct has materially affected the substantial rights of the complaining party. State v. Hipkins (1982), 69 Ohio St. 2d 80; State v. Kehn (1977),50 Ohio St. 2d 11, 19.
In United States v. McVeigh (C.A.10, 1998), 153 F.3d 1166, 1187, the Tenth Circuit Court of Appeals said:
Courts face a delicate and complex task whenever they undertake to investigate reports of juror misconduct or bias during the course of a trial. United States v. Thomas, 116 F.3d 606, 618 (2d Cir. 1997). In determining whether the allegation is sufficiently serious to warrant a hearing, the district court must consider the content of the allegations, including the seriousness and likelihood of the alleged bias, and the credibility of the source. United States v. Jones, 707 F.2d 1169,1173 (10th Cir. 1983) (citation omitted). Ultimately, the court must weigh the benefits of having a hearing, including the ability perhaps to ascertain more fully the extent and gravity of the possible prejudice, against the risks inherent in interrupting the trial and possibly placing undue emphasis on the challenged conduct. See [United States v. Bertoli, 40 F.3d 1384, (3d Cir. 1994)]; at 1395; [United States v. Harris, 908 F.2d 728 (11th Cir. 1990)] at 734; United States v. Chiantese,582 F.2d 974, 980 (5th Cir. 1978).
The Tenth Circuit went on to note that intra-jury misconduct generally has been regarded as less serious than extraneous influences on the jury. 153 F.3d at 1186. See, also, United States v. DeLeon (C.A.1, 1999), 187 F.3d 60, 67. This is not a case where a juror had been accused of learning information about the *Page 382 trial from a source extraneous to the evidence presented at trial, so it cannot be considered a more serious case of alleged misconduct.
I can say this is not a serious case of alleged misconduct because all jurors have personal experiences that they take with them into the jury deliberation room and the courts do not expect those experiences to be cast aside during jury deliberations. In United States v. Navarro-Garcia (C.A. 9, 1991), 926 F.2d 818, 821, the Ninth Circuit Court of Appeals said:
Inevitably, jurors must rely on their past personal experiences when hearing a trial and deliberating on a verdict. Hard v. Burlington No. RR, 812 F.2d 482,486 (9th Cir. 1987). Indeed, 50% of the jurors' time [is] spent discussing personal experiences.
Kessler, The Social Psychology of Jury Deliberations, in The Jury System in America 69, 83 (R. Simon ed. 1975).
There are limitations on how a juror may apply personal experiences personal experiences are relevant only for purposes of interpreting evidence in the record. United States v. Jones (C.A.6, 1978), 580 F.2d 219,222. The courts draw the line when personal experience becomes personal knowledge of facts specific to the litigation. See, e.g, Silagy v. Peters (C.A.7, 1990), 905 F.2d 986; Hard v. Burlington Northern RR. (C.A.9, 1989) 870 F.2d 1459 (juror who allegedly worked for the defendant had personal knowledge of the defendant's settlement practices); In re Beverly Hills Fire Litigation (C.A.6, 1982), 695 F.2d 207, 211-212, cert. denied (1983), 461 U.S. 929 (misconduct occurred when juror conducted at-home experiment on the evidence and reported his findings to other veniremen).
McMickens told the court that the juror alleged to have engaged in misconduct was talking about stuff like, well, the way it is did [sic] on the job, her job, like that. On its face, the juror's statement is a text-book example of a juror applying her own personal experience to the case at hand. The complaint is so innocuous that it required no further investigation from the court, particularly when appellant failed to ask the court to conduct further inquiry.
Just how the majority concludes that the juror was applying a different standard of care, see ante at 35, is obscure. I believe the court gave this issue the hearing it required. Nothing juror McMickens alleged required the court to go any further in investigating misconduct.Under any rational plain error analysis, we must find that appellant has failed her burden on appeal.
Finally, I take issue with the majority's conjecture that McMickens' complaints raised the specter that any one of the several jurors on the panel who worked in the medical field could have been engaged in misconduct by informing the jury of their job experiences. See ante at 34. There is simply no evidence in the record to support this conjecture. It is reckless to assume that any person who works in the *Page 383 medical field is incapable of rendering a fair verdict because they would apply their own life experiences. R.C. 2313.42 lists the causes for challenge of persons called as jurors, and nothing in that code section permits a blanket challenge for cause of medical personnel. The majority's dicta might suggest that persons with medical backgrounds would never be competent to sit on juries, and that conclusion is clearly contrary to both the law and public policy.
Because I would overrule the assignments of error, I respectfully dissent and would affirm the trial court in toto.
________________________ TIMOTHY E. McMONAGLE, J.
ATTACHMENT A APPELLANTS' ASSIGNMENT OF ERROR
I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR DURING JURY SELECTION.
II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING THE TESTIMONY OF DEFENSE EXPERT DAVID LONGWORTH, M.D., OVER PLAINTIFFS' OBJECTION.
III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING THE TESTIMONY OF DEFENSE EXPERT ARTHUR WHEELER, M.D., OVER PLAINTIFFS' OBJECTION.
IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR DURING JURY DELIBERATIONS.
V. THE JURY VERDICT SHOULD BE REVERSED BECAUSE IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
VI. THE TRIAL COURT COMMITTED ERROR IN FAILING TO GRANT PLAINTIFFS' MOTION FOR A NEW TRIAL.
JOURNAL ENTRY Decided June 7, 2001 TIMOTHY E. MCMONAGLE, Judge.
Defendants-appellees Rajhendra K. Mehta, M.D., 4M Emergency Systems, Inc., and Moudaccer Mounajjed, D.O., have filed motions for reconsideration of this court's opinion and judgment entry rendered on April 12, 2001. In that opinion, we concluded that the culmination of errors that occurred during trial denied appellants their right to a fair and impartial trial. We held that the trial court (1) did not conduct the proper constitutional analysis in evaluating appellant s Batson-Hicks challenge to a peremptory challenge, (2) committed reversible error in allowing Dr. David Longworth to provide expert testimony at trial because his opinion was not held with the requisite degree of certainty, (3) abused its discretion in allowing Dr. Arthur Wheeler to "fudge" his testimony so as to meet, the qualifications for providing expert testimony under the parameters of Evid.R. 601 (D), and (4) failed to protect appellant's right to trial by a jury of *Page 384 unbiased and unprejudiced jurors willing to decide the case solely on the evidence presented to it by not investigating an allegation of juror misconduct brought to the trial judge during jury deliberations. Accordingly, we reversed the judgment of the trial court in favor of appellees and remanded the case for a new trial.
The test generally applied to a motion for reconsideration in the court of appeals is whether the motion calls to the attention of the court an obvious error in its decision or raises an issue for consideration that was not considered at all or was not fully considered by the court when it should have been. See, e.g., Chandler Assoc., Inc. v. America's Healthcare Alliance, Inc. (1997), 125 Ohio App. 3d 572, 709 N.E.2d 190; Woerner v. Mentor Exempted Village School Dist. Bd. of Edn. (1993),84 Ohio App. 3d 844, 619 N.E.2d 34; State v. Gabel (1991),75 Ohio App. 3d 675, 600 N.E.2d 394; Columbus. v. Hodge (1987), 37 Ohio App. 3d 68,523 N.E.2d 515; Matthews v. Matthews (1981), 5 Ohio App. 3d 140, 5 OBR 320,450 N.E.2d 278.
Dr. Mehta, citing State v. Gowdy (2000), 88 Ohio St. 3d 387,727 N.E.2d 579, submits that this court should reconsider its decision that the trial court did not properly apply the Batson test to appellants' allegation of racial discrimination in opposition to appellee's peremptory challenge. Dr. Mehta argues that an appellate court can overturn a trial court's finding on the issue of discriminatory intent only if that finding is "clearly erroneous," and there is no evidence here that the trial court finding of nondiscriminatory intent was clearly erroneous.
Dr. Mehta's argument and citation to Gowdy, supra, indicates that he misunderstands our decision. Our holding that the trial court erred in not finding discriminatory intent was based on the trial court's abbreviated and inadequate analysis of the constitutional question presented by appellants' Batson-Hicks challenge — not on the evidence or lack thereof of discriminatory intent in appellee's peremptory strike. As we stated in our opinion:
"Appellants' argument regarding appellee's peremptory challenge to remove Juror Number 7 from the venire is not that appellee's exercise of its peremptory challenge constituted racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Rather, appellants' argument is that the trial court committed reversible error because it did not conduct the proper constitutional analysis in determining that appellee St. Alexis Hospital was not racially motivated in excluding an African American from the jury through the use of a peremptory challenge. We agree." (Emphasis in original.)
Accordingly, we held that by abruptly interrupting counsel and immediately ruling upon appellants' Batson-Hicks challenge before counsel had concluded his explanation of his alleged nondiscriminatory reason for the peremptory strike, the trial judge failed to adequately analyze the constitutional question presented *Page 385 by appellants' challenge. In short, the trial judge did not bother even to complete the first step of the three-part Batson inquiry before ruling on the challenge.
Dr. Mehta's citation to Gowdy is therefore inapposite. In Gowdy, the record indicated that the trial judge ruled on the plaintiffs Batson-Hicks challenge to the state's peremptory challenge of a prospective juror after the prosecutor set forth three valid reasons for challenging the juror. The Supreme Court of Ohio found that "[w]hile the trial judge could have made more explicit findings on the record regarding the challenges," the trial court had properly completed all three steps of the three-part Batson inquiry and, accordingly, did not abuse its discretion in allowing the state to exercise a peremptory challenge against a prospective juror. That was clearly not what happened here.
Dr. Mehta also asserts that this court should reconsider its decision regarding Dr. Wheeler's testimony because his trial testimony "clarified" that he was competent to testify. This argument was considered and rejected in our decision rendered on April 12, 2001.
Similarly, we considered and rejected the argument made by Dr. Mounajjed and 4M Emergency Systems that the proximate cause testimony of Dr. Longworth, admitted even though he acknowledged that he did not hold his opinion with the requisite degree of certainty, was harmless error because the jury found that Dr. Mounajjed was not negligent. The "reality" is that the jury reached the issue of proximate cause, as demonstrated by its note to the judge indicating they were stalemated on this issue.
Finally, Dr. Mehta asserts that this court erred in ordering a new trial because any juror misconduct was harmless. Dr. Mehta contends that because the jury found that St. Alexis Hospital was negligent, any misconduct "could have only inured to the benefit of the plaintiff' and, hence, there was "actual prejudice" to appellants.
Dr. Mehta's argument ignores the fact that although the jury found that St. Alexis had breached the standard of care, it also found that St. Alexis Hospital's breach was not the proximate cause of appellants' damages. In light of this finding, the extraneous information brought to the attention of the jury by the unnamed nurse-juror may indeed have been prejudicial to appellants. As we stated in our opinion, however, the trial judge's complete failure to investigate the allegation of juror misconduct makes it "impossible to ascertain, much less demonstrate, whether or not [appellants] were actually prejudiced by the alleged juror misconduct" and what parts, if not all, of the jury verdict were tainted. *Page 386
Appellees have not raised an obvious error in our prior decision, nor have they raised an issue that was not previously considered. Appellees' motions for reconsideration are therefore denied.
Motion for reconsideration denied.
DIANE KARPINSKI, A.J., concurs.
MICHAEL J. CORRIGAN, J., dissents.