Fritz v. Wright

*241Justice SAYLOR,

dissenting.

I agree with the holding of the Superior Court majority that Article 1, Section 6 of the Pennsylvania Constitution and Section 5104(b) of the Judicial Code require that a valid civil verdict must be fully supported by at least ten of twelve jurors.

As the majority notes, historically, the Pennsylvania Constitution required jury verdicts to be unanimous. See Majority Opinion at 231-32, 907 A.2d at 1090. Under this scheme, there was obviously no room for an “any majority” rule. For example, indisputably all jurors had to agree as to liability and damages before a verdict could be rendered awarding money damages. In 1971, however, the Constitution was amended to authorize the General Assembly to provide that “a verdict may be rendered by not less than five-sixths of the jury in any civil case.” Pa. Const. art. 1 § 6. This uncomplicated change facially conveys only the idea that the threshold number of jurors in complete agreement concerning the verdict may be lowered. I do not believe that the straightforward terms of the amendment put the electorate on notice of a sea change in the idea that there must be complete agreement among the jurors favoring the verdict.

The majority, however, reasons that this constitutional amendment was intended, not only to lower the threshold number of jurors in full agreement with a verdict, but also to implement the additional, substantial, and unstated innovation of skewing the character of the essential agreement, such that differing five-sixth majorities must be considered relative to component questions associated with an underlying verdict. None of the majority’s justifications, however, persuades me that the amendatory language should be read in so broad a fashion.

First, the majority indicates that requiring the rendering of a verdict with which ten of twelve jurors are in full agreement “flouts the public’s intent in amending the constitution and the General Assembly’s clearly expressed intention that civil cases are to be decided by five-sixths of a twelve-member jury, not *242unanimously by a jury of ten.” Majority Opinion at 237, 907 A.2d at 1093. This “jury of ten” idea is illusory, however, as it facially fails to account for two jurors in Pennsylvania’s twelve-juror system. Moreover, the quoted passage substitutes for the concept of the rendering of a “verdict,” as clearly expressed in both Article 1, Section 6, and Section 5104(b), the looser expression “civil cases are to be decided.” Utilizing the language of the Constitution and the statute and putting aside the “jury of ten” rhetoric, the majority’s rationale does not sustain itself. In fact, requiring the rendering of a verdict supported in full by ten of twelve jurors is perfectly consistent with the electorate’s action in amending the Constitution, as well as the Legislature’s clearly expressed intention, to lower the threshold to permit verdicts to be rendered that are supported in full by five-sixths of a twelve-member jury.

Second, the majority reasons that the litigants’ right to a jury trial would be undermined if all jurors were not required to consider and decide each of the issues submitted to them by the court. See Majority Opinion at 237-38, 907 A.2d at 1093-94. The majority, however, offers no real support for the proposition that jurors must accede to the reasoning of a majority of others with respect to any aspect of their own rationale underlying a verdict. Rather, jurors have traditionally been permitted to dissent to a verdict for any legitimate reason, whether it is a belief that there is no liability or that there is no causally connected injury, or, conversely, an understanding that liability and damage exist in a case in which a majority of jurors favors a defense verdict. Further, juries as collective bodies routinely do not consider dependent issues where their decision on a predicate issue is dispositive; I find nothing in logic, in precedent, or, in particular, in the amendment to Article I, Section 6, that supports precluding a juror from doing the same within his or her own individualized assessment, assuming full and fair deliberation.

The majority’s remaining rationale appears to advance policy considerations tending to favor the implementation of the “any majority” rule that does not require that at least ten jurors agree to all aspects of a verdict. While I do not dispute *243that some of these factors would have weight in a policy evaluation, again, I do not believe that a policymaking venture is appropriate here. Rather, it is my position that the public policy has been set by the electorate and the General Assembly via Article I, Section 6 and the enabling legislation. Since the majority raises such matters, however, I note my belief that the policy considerations are more greatly mixed than the majority opinion portrays.

First, the majority reasons that a requirement that at least ten of twelve jurors wholly agree with the jury verdict “effectively disenfranchises the dissenting voters,” denying them the opportunity to participate meaningfully in the decision of the subsequent material questions. See Majority Opinion at 238, 907 A.2d at 1094. From the perspective of an individual juror, however, it appears to me that one who believes that there is no liability is as (or more) likely to feel disenfranchised if he or she is forced to contribute a vote allocating damages than if permitted to rest on a determination of no liability.1 Additionally, the notion that such a juror has no ability to continue to participate meaningfully in the discussions during a damages assessment is conjectural, as it is based upon a fixed and conclusory set of assumptions about the dynamic process of juror deliberation. For example, as Appellee highlights, it gives no attention Pennsylvania law’s allowance for the possibility of compromise verdicts. See Elza v. Chovan, 396 Pa. *244112, 115, 152 A.2d 238, 240 (1959).2 Moreover, dependent findings in juror deliberations can frequently be viewed as a refinement of the predicate findings, accord O’Connell, 569 N.E.2d at 897-98; therefore, it is neither illogical nor unjust that the extent of a juror’s participation at later stages of deliberations might be impacted by his or her earlier findings.

Next, the majority references difficulties presented by the technique of bifurcation of liability and damages questions. See Majority Opinion at 238-40, 907 A.2d at 1095. The Court, however, has treated bifurcation short of severance as merely allowing for a “pause in the proceeding,” in furtherance of prospects for settlements and cost savings. See Stevenson v. GMC, 513 Pa. 411, 420, 521 A.2d 413, 417-18 (1987). Findings in bifurcated proceedings are not final orders subject to appeal, and the trial court remains free to consider evidence adduced in the damages phase of a bifurcated trial in a post-trial assessment concerning liability. See id. at 420-22, 521 A.2d at 417-19.3 Similarly, there is nothing in the reasoning *245supporting the permissive allowance of bifurcation in civil trials utilizing a single jury that suggests that the dynamics of the jury deliberations must be altered.4

Next, the majority suggests that requiring agreement among ten of twelve jurors increases the ability of counsel to intrude into juror deliberations. See Majority Opinion at 235, 907 A.2d at 1092 (“If we were to accept Appellees’ position, and that of the Superior Court majority, the fortuitous fact that this verdict included special findings would permit counsel to delve into the otherwise sacrosanct jury deliberation process to ascertain disagreements among particular jurors or particular subparts of their discussions, whereas this would not be permitted if the verdict had been a general verdict without interrogatories.”). However, I do not see why this is the case. In Pennsylvania, whether and to what extent a civil jury is polled is discretionary with the trial court, see In re Estate of Dettra, 415 Pa. 197, 205, 202 A.2d 827, 832 (1964), and post-trial inquiries into the propriety of jury verdicts are closely guarded by both competency-related evidentiary principles and ethical rules. See Pratt v. St. Christopher’s Hosp., 581 Pa. 524, 535-36, 540, 866 A.2d 313, 319-20, 323 (2005). Moreover, I do not regard concerns about the possibility that an improper verdict might be discovered as bearing greatly on the question of what is required to comprise a proper verdict in the first instance.

Finally, the majority highlights various efficiencies that it believes flow from the “any majority” rule that it endorses and suggests that a contrary approach would threaten the use of special interrogatories. See Majority Opinion at 238-40 & n. *24611, 907 A.2d at 1095-96 & n. 11. I agree that the “any majority” rule is the more efficient approach, as it allows for the rendering of verdicts upon a lesser degree of constancy in consensus. Therefore, this policy consideration is one that does militate, to some degree, in favor of its use.5 In our system of civil justice, however, efficiencies are evaluated in connection with complete and fair adjudication of the rights and entitlements of the litigants. See O’Connell, 569 N.E.2d at 897 (expressing the view, in light of the diluting effect associated with tallying differing majorities garnered across any number of special interrogatories to arrive at a verdict, that the “any majority” rule represents a form of “substituting efficiency over substantive justice”).

In this regard, I return to the theme that the weighing of these policies has been undertaken by the electorate and the General Assembly in Article 1, Section 6 and the enabling legislation, in which uncomplicated language was used to convey the idea that the number of jurors who must be in full agreement in a civil case was being reduced from twelve of twelve to ten of twelve. Again, this was, in and of itself, a substantial innovation furthering efficiency, and I differ with the majority’s inference that further, substantial, and unstated innovations were intended by the simple and straightforward language that was presented to the electorate in accomplishing the amendment to Article 1, Section 6.

*247For the above reasons, I would affirm the order of the Superior Court. Accordingly, I respectfully dissent.

. Cf. O’Connell v. Chesapeake & Ohio R.R. Co., 58 Ohio St.3d 226, 569 N.E.2d 889, 897 (1991) ("It is illogical to require, or even to allow, a juror to initially find a defendant has not acted causally negligently, and then subsequently permit this juror to assign some degree of fault to the same defendant. Likewise, where a juror finds that a plaintiff has not acted in a causally negligent manner, it is incomprehensible to then suggest that this juror may apportion some degree of fault to the plaintiff and thereby diminish or destroy the injured party’s recovery.”); Juarez v. Superior Court of Los Angeles County, 31 Cal.3d 759, 183 Cal.Rptr. 852, 647 P.2d 128, 136 (1982) (Richardson, L, dissenting) (”[A]s a practical matter, it does not seem ... realistic to assume that a juror who concludes that a party is not culpable would be able conscientiously to apportion financial responsibility to that party.”); id. (”[T]he requirement of consistency in a juror's votes ... is supportive of the entire deliberative process, encouraging reason instead of speculation in the rendering of mutually interdependent special verdicts upon which the ultimate judgment is to be entered.”).

. One judge further developed the point that, assuming full and fair deliberations, no juror is fully excluded at any point in the deliberative process as follows:

Nor does the requirement of consistency between a juror’s findings of negligence, proximate cause, and damages, on the one hand, and liability for those damages, on the other, necessarily require, as the majority suggests, that only those jurors initially finding each of the parties liable may deliberate upon the apportionment of that liability among them. While the logical progression would normally appear to be from findings of actionable negligence to apportionment of liability therefor, it is apparent that a juror may change her or his mind on one or more special verdicts at any time before the jury verdict is rendered. That factor alone would appear to refute the wisdom of imposing upon the deliberative process an artificial restriction barring each juror from fully considering and reconsidering each issue. As the majority implicitly acknowledges in its holding, a tentative vote is not cast in bronze; and so long as the ultimate product of a juror’s deliberation is consistent, there is no reason to interfere with the process of "decisions and revisions which a minute [may] reverse.”

Juarez, 183 Cal.Rptr. 852, 647 P.2d at 135-36 (Richardson, J., dissenting) (emphasis in original; citations omitted).

. This is distinguished from severance, in which case a final order is entered in each of the separated proceedings. See Stevenson, 513 Pa. at 419-20, 521 A.2d at 417 (distinguishing bifurcation from severance).

. It should also be noted that bifurcation is to be "carefully and cautiously applied” and utilized only upon a trial court’s overall evaluation that the interests of justice are best advanced through the use the procedure. Stevenson, 513 Pa. at 422-23, 521 A.2d at 419 (quoting Brown v. GMC, 67 Wash.2d 278, 407 P.2d 461, 464 (Wash.1965)). Obviously, the potential impact upon jury deliberations in light of the circumstances of the case is a relevant consideration.

Moreover, to the extent that the technique of bifurcation short of severance would alter jury voting dynamics, our rules regulating trial procedure must obviously bend to constitutional commands such as those embodied in Article 1, Section 6; we do not adjust the constitutional interpretation to fit the procedural rules.

. I disagree, however, that the maintenance of a "same juror” approach threatens the use of special interrogatories. See Majority Opinion at 238-39 n. 11, 907 A.2d at 1095 n. 11. In the first instance, I differ with the majority’s suggestion that the mere fact that liability may be established in a tort case based on alternate theories is inherently confusing in terms of juror voting behavior. See id. Further, from my perspective, various difficulties attend the use of either the "any majority” or the "same juror” rule in complex civil litigation. Cf. Juarez, 183 Cal.Rptr. 852, 647 P.2d at 136 (Richardson, J., dissenting) ("[Wjhile the adoption of a rule abandoning the necessity of consistency in a juror’s special verdicts in this context may expedite such trials, it is not likely to be less confusing to the jury ... or more productive of justice. Rather, informing jurors ... that they must be consistent in attributing responsibility for the payment of damages to parties whom they find to be culpable would appear to have the dual virtues of simplicity and common sense, while effectuating the underlying principle of responsibility in proportion to fault.”).