2016 IL App (3d) 150445
Opinion filed October 6, 2016
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2016
AUGUST BOSMAN, as Special Administrator ) Appeal from the Circuit Court
of the Estate of Joan Bosman, Deceased, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois,
Plaintiff-Appellant, )
)
v. ) Appeal No. 3-15-0445
) Circuit No. 11-L-9
RIVERSIDE HEALTH SYSTEM d/b/a )
Miller Health Care Center and )
Riverside Senior Living Center, ) Honorable
) Kendall O. Wenzelman,
Defendant-Appellee. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court, with opinion.
Justices Carter and Wright concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 Plaintiff, August Bosman, as special administrator of the estate of Joan Bosman, appeals
from the denial of his motion for a new trial. Plaintiff argues that the court erred in replacing a
holdout juror with an alternate juror. We reverse and remand.
¶2 FACTS
¶3 In June 2011, plaintiff filed a complaint alleging that Joan Bosman suffered multiple
necrotic pressure ulcers while she was a resident of a long-term care facility operated by
defendant, Riverside Health System. The case proceeded to a jury trial.
¶4 The court initially advised the jury venire about the trial process and read the general
instructions regarding the jury’s role. The court then began voir dire. The court asked the venire
whether there was anything about the case that would prevent them from being fair and
impartial. The 12 jurors who were later impaneled and the 2 alternates indicated that they would
be fair and impartial. The court then asked the potential jurors if any of them had personally been
involved in or knew someone who was involved in an incident that resulted in personal injuries
or damages, and if the incident resulted in a lawsuit. Juror Dariel Dewit said that her friend had
filed a lawsuit against a nursing home after her friend’s mother died from injuries sustained
while she resided at the facility. Dewit assured the court that her prior experiences would not
affect her ability to sit as a juror. Dewit also agreed that she would wait until she heard all of the
evidence before reaching any opinions or conclusions, she would follow the law even if she
disagreed with it, and she would not use sympathy, bias, or prejudice in reaching her verdict.
¶5 Defense counsel asked juror Dewit whether she personally had any experience receiving
rehabilitation care or knew someone that had received care. Dewit said that she had no
experience receiving rehabilitative care and that she could set aside her friend’s experience with
the nursing home and decide the case on the evidence presented.
¶6 At the conclusion of voir dire, a 12-person jury was impaneled, and 2 alternate jurors
were selected. Dewit was impaneled as a juror.
¶7 After closing arguments, the court read the jury instructions to the jury and the two
alternate jurors. The court sent the jury to deliberate. While discussing whether to discharge the
alternate jurors, defendant said that it would not agree to a verdict of less than 12 jurors. Plaintiff
agreed that the alternate jurors would have to be retained if defendant was not going to agree to a
verdict of less than 12 jurors. The court retained the alternates and admonished them not to have
2
any discussion about the case. The alternates were segregated in a separate room during the
deliberations.
¶8 During the second day of deliberations, the court received three notes from the jury. The
first note indicated that the jury was deadlocked. According to the court, the note stated the
issues that the jurors agreed and disagreed on and gave some indication as to the breakdown,
which the court did not disclose. The court called the jurors and alternates into the courtroom and
instructed them, using Illinois Pattern Jury Instructions, Civil, No. 1.05 (2011) (hereinafter, IPI
Civil No. 1.05), that the verdict must be unanimous and that it was the jurors’ duty “to consult
with one another and to deliberate with a view to reaching an agreement, if you can do so
without violence to individual judgment.”
¶9 After returning to deliberations, the jury sent a second note, which the court read to the
parties. The note indicated that the jury had continued deliberations without any change in result
and the deliberations were devolving into argument. The court sent a responsive note that
instructed the jury to continue to deliberate.
¶ 10 In the afternoon, the court received a third note from the jury, which the court
paraphrased to avoid disclosing the juror’s positions on the issues. The note indicated that the
jury had made no progress and that some individuals felt they would be coerced to sign a verdict
form. The court brought the jury and alternates into the courtroom and read Illinois Pattern Jury
Instructions, Civil, No. 1.06 (2011) (hereinafter, IPI Civil No. 1.06), which instructed the jury
that if it failed to agree on a verdict, the case must be retried. The court instructed the jury to
retire and reconsider the evidence in light of its instruction. The court then stood in recess until
the next morning.
3
¶ 11 On the third day of deliberations, the court tendered copies of the three notes to the
parties. Each of the notes was signed by the jury foreperson. The first note said:
“After continued deliberation there is still absolutely no progress. There is
one juror who has explicitly clear [sic] that she will not change her position, and
many of the other jurors on the other side are not willing to reverse themselves.
The one juror has repeatedly stated that she’s done talking and listening, but that
she will sign the verdict just to be done. She has explained that doing so would
violate her beliefs and she would feel that her vote would be coerced. It is clear
that no additional deliberation will change this result.”
The second note said:
“Following your instructions we have continued deliberating without any
change in result. However, the debate is devolving into argument and tempers are
beginning to flare. I don’t think we can continue without violating your order not
to do violence to others opinions.”
The third note stated:
“I’m not exactly sure how to address this issue, or what the appropriate
response is, but I feel obligated to ask. The juror who is in the minority has made
it clear that she has a significant bias which we believe is inhibiting her ability to
give fair consideration to the evidence and both parties. The questions used to
screen jurors missed some significant and relevant issues. This juror has told us
that she had surgery and a hospital stay which resulted in an infection and
complications. She has stated that she cannot judge this situation without
reference to that history. It is our considered opinion that her agenda is to punish
4
the [defendant], and her stated goal is to send a message to the wider medical
community.
As I said, I don’t know what, if any resolution there may be, but our jury
instruction clearly state[s] that we cannot use prejudice or speculation, and that
we must report any violation of these instructions. We have unanimously agreed
that this juror is relying upon both, despite our best efforts to convince her of the
impropriety of that reliance. Short of substituting an alternate juror this current
jury will not be able to return a unanimous verdict.” (Emphasis in original.)
¶ 12 After a recess, plaintiff and defendant agreed that they would accept a unanimous verdict
of 11 jurors. Defense counsel said that based upon the notes from the jury, he believed the
holdout juror had an undisclosed bias that put her oath in question. The court directed the bailiff
to bring the holdout juror into the courtroom, where the court conducted a brief inquiry.
¶ 13 Juror Dewit testified that there was consensus among 11 jurors on at least one issue and
she disagreed with these jurors. Dewit said she was unable to change her position on any of the
issues in contention. Dewit acknowledged that she had thought about her prior experiences, but
“that wasn’t what affected [her] decision.” Dewit told defense counsel that her vote was not
based on a desire to send a message to the wider medical community and that she used her
experiences to evaluate the case, as allowed by the jury instructions.
¶ 14 Following Dewit’s testimony, defense counsel asked to proceed on the parties’ agreement
to an 11-person verdict. Plaintiff’s counsel withdrew his approval, stating “without being able to
verify the accuracy of these statements, which we can’t do, then I don’t have authority to accept
a unanimous verdict of eleven.” Defense counsel argued plaintiff’s qualification was not part of
the original agreement, and he suggested polling the remaining 11 jurors to determine if Dewit
5
had violated her oath. Following arguments from the parties, the court called the jury foreperson
to testify.
¶ 15 The foreperson testified that Dewit said she had surgery, got an infection, and then
blamed the treating hospital for her infection. Dewit was “intent that [defendant] was at fault,
speculating on evidence that was never presented, and saying that it had to have happened
because it happened to her.” The foreperson said that on the first day of deliberations, Dewit
said,
“she wanted to punish and teach them a lesson about taking care of patients. And
then she said a few times since then that she wants to send a message to all the
nursing homes and hospitals that they need to treat people better. And that if we
give them—if we give the plaintiff a judgment, that that will tell that they need to
do a better job.”
¶ 16 The court dismissed the foreperson, and defense counsel moved to strike juror Dewit
based on her failure to disclose a potential bias during voir dire and subsequent issues
concerning her credibility. Plaintiff’s counsel opposed the motion. The court excused Dewit and
replaced her with the first alternate juror. The court then instructed the reconstituted jury to begin
deliberations anew.
¶ 17 After the deliberations were restarted, plaintiff moved for a mistrial. The court denied
plaintiff’s motion, finding that it had dismissed Dewit because she failed to disclose a potential
bias against a party during voir dire.
¶ 18 After a few hours of deliberations, the reconstituted jury found for defendant. The court
polled the jury, and each juror indicated that the verdict was representative of their vote. The
court entered a judgment for defendant.
6
¶ 19 ANALYSIS
¶ 20 Plaintiff argues that he was denied a fair trial because the court erred in discharging a
holdout juror and there was a reasonable possibility that the dismissal was based on the juror’s
view regarding the sufficiency of the evidence. See People v. Gallano, 354 Ill. App. 3d 941, 953
(2004). We find that the court erred in retaining the alternate jurors through deliberations and
impermissibly replaced a deliberating juror with an alternate.
¶ 21 Initially, the parties dispute the standard of review. Plaintiff argues the issue is subject to
de novo review because it involves a claim of constitutional error—plaintiff’s right to a
unanimous jury verdict. Ill. Const. 1970, art. I, § 13. Defendant argues the applicable standard is
an abuse of discretion.
¶ 22 This issue is reviewed for an abuse of discretion. People v. Roberts, 214 Ill. 2d 106, 121
(2005) (“[m]atters relating to jury selection and management are generally within the discretion
of the trial court”); Addis v. Exelon Generation Co., 378 Ill. App. 3d 781, 792 (2007) (court has
great discretion in determining whether to excuse a juror). An abuse of discretion occurs when
no reasonable person would agree with the trial court’s decision. People v. Hale, 2012 IL App
(1st) 103537, ¶ 41.
¶ 23 The Code of Civil Procedure (Code) provides that one or two additional jurors may be
impaneled to serve as an alternate. 735 ILCS 5/2-1106(b) (West 2014). The alternate jurors
“shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable
to perform their duties.” Id. “An alternate juror who does not replace a principal juror shall be
discharged at the time the jury retires to consider its verdict.” Id.
¶ 24 Here, the court retained the two alternate jurors through deliberations. Eventually, one
alternate juror was called to replace a deliberating juror. Based on the plain language of section
7
2-1106(b) of the Code, the retention of the alternates and replacement of a deliberating juror was
error. Id. However, this error only warrants reversal where a party suffers prejudice. Roberts, 214
Ill. 2d at 120. To determine if prejudice resulted from the substitution, we
“consider the totality of the circumstances, including: (1) whether the alternate
juror and the remaining original jurors were exposed to outside prejudicial
influences about the case; (2) whether the original jurors had formed opinions
about the case in the absence of the alternate juror; (3) whether the reconstituted
jury was instructed to begin deliberations anew; (4) whether there is any
indication that the jury failed to follow the court’s instructions; and (5) the length
of deliberations both before and after the substitution.” Id. at 124.
¶ 25 The juror substitution at issue resulted from a deadlock in deliberations. In an attempt to
resolve the deadlock, the court initially instructed the jury to continue its deliberations, and later,
it instructed the jury that the case would be retried if the jury failed to reach a verdict. See IPI
Civil Nos. 1.05, 1.06. Despite these instructions, the foreperson sent out a third note that
indicated the jury remained deadlocked potentially due to Dewit’s undisclosed bias. At this
point, the court had two options: (1) instruct the jury to continue deliberating, or (2) declare a
mistrial. Gallano, 354 Ill. App. 3d at 954.
¶ 26 Instead of utilizing one of these options, the court conducted an inquiry into Dewit’s
alleged bias. Plaintiff was prejudiced by this inquiry. The remaining 11 jurors had formed
opinions about the case through the course of several votes, and they were then exposed to the
outside influences of the juror inquiry, which suggested to them the reason for Dewit’s eventual
replacement. The inquiry also disclosed the jury’s deliberations to the parties. See Roberts, 214
8
Ill. 2d at 124. Therefore, we find the court abused its discretion when it replaced Dewit with an
alternate juror after deliberations had already begun.
¶ 27 CONCLUSION
¶ 28 The judgment of the circuit court of Kankakee County is reversed and remanded.
¶ 29 Reversed and remanded.
9