concurring in part and dissenting in part:
The majority opinion in Wiser v. People, 732 P.2d 1139 (Colo.1987) required the “reasonable possibility” test to be used in determining whether extraneous juror conduct affected the verdict to the detriment of the moving party. I agree with the justices who specially concurred in the result in Wiser that the “minimal showing [of reasonable possibility] is not sufficient to impeach a jury’s verdict and to warrant a new trial,” and that “a new trial should not be granted unless the movant proves that actual prejudice from juror misconduct or extraneous juror conduct is more probable than not.” If that were the test, I would hold that the moving party had failed to prove that a different verdict would have resulted absent the bailiff’s remark to the juror.
However, the test adopted by the majority in Wiser must be applied by us. I agree that here, as stated by the majority in the instant case, “there was a reasonable possibility that the jury was affected.” Therefore, I concur in the majority’s conclusion that the judgment must be reversed and a new trial granted on this ground.
The majority then proceeds to “address other assertions of error raised by the plaintiffs which are likely to reoccur on retrial.” I do not agree with the majority’s conclusion in the first of these (II A) “that the court erred in refusing to instruct on the doctrine of res ipsa loquitur.”
The requisites for application of that doctrine are set forth in Montgomery Elevator Co. v. Gordon, 619 P.2d 66 (Colo.1980), these being the three elements quoted in the majority opinion and reiterated in Holmes v. Gamble, 655 P.2d 405 (Colo.1982). As stated in Holmes:
“For a case to be submitted to the jury on a theory of res ipsa loquitur, the circumstantial evidence of these three elements must be such that it is more likely that the event was caused by negligence than that it was not. Where the probabilities are at best evenly balanced between negligence and its absence, it becomes the duty of the court to direct a verdict for the defendant.”
The plaintiffs’ expert testified that shoulder dystocia, the delivery complication that led to the child’s injury, might be encountered through the negligence of a physician, but that it might be encountered without a physician’s negligence. Also, the expert testified that such injury can occur despite appropriate care, and that, once shoulder dystocia does occur, “there was an unavoidable risk of brachial plexus injury....”
Based on the expert testimony presented by the plaintiffs, in addition to that supplied by defendants, I agree with the trial court that plaintiffs did not establish a prima facie case that this injury ordinarily would not occur in the absence of negligence. Unless the rule is to be that in all negligence cases a res ipsa loquitur instruction must be given if requested, and that is the conclusion to be drawn from the majority opinion, the trial court’s refusal to instruct the jury on res ipsa loquitur was proper on this record.
Of course, on retrial, if the evidence is sufficient to meet the prescribed tests, plaintiffs would be entitled to an instruction on res ipsa loquitur, although it would be applicable to defendant Ravin only. However, if such instruction is given, the defendant would be entitled to an instruction patterned on CJI-Civ. 2d 9:12 (1980) to the effect that the happening of an accident or a bad result does not raise any presumption of negligence on the part of either the plaintiff or the defendant. Conrad v. Imatani, 724 P.2d 89 (Colo.App.1986).
Also, I do not agree with part II B of the majority opinion. In my view, the evidence presented was insufficient to raise a fact question as to whether Dr. Ravin held himself out as a specialist rather than a general practitioner. On this record, an instruction on standard of care patterned on CJI-Civ. 2d 15:1 (1980) was sufficient.