Deemer v. Finger , 817 S.W.2d 435 ( 1991 )

COMBS, Justice.

The present review concerns a medical malpractice action which resulted in a jury verdict for the defendant.

The circuit court in which the case was tried had activated the videotape system to officially record the proceedings. See CR 98. Reviewing the videotapes some months after the trial, while in the course of prosecuting an appeal on various issues, the plaintiffs counsel came upon a recorded conversation between the trial judge and a juror. The dialogue, unheard by counsel for either party, unfolded as follows:

COURT: Good morning, ma’am.

JUROR: When you say not to discuss the case, how about saying things like “Well, how long do you project that you will be gone?” or something?

COURT: Oh — no that’s okay.

JUROR: Actually, I can say — like they’ve said — “possibly two weeks,” something like that?

COURT: No, that’s okay.

JUROR: That’s okay?

COURT: Sure. You can tell them but you can’t come up with a date, I guess. That’s fine.

JUROR: Well, my husband came home and told me more about this case than I knew of, so—

COURT: Well,—

JUROR: There are things out there but I just don’t know what we can do—

COURT: Well, you shouldn’t have any discussions at all, other — that type of discussion is okay.

JUROR: Okay.

COURT: Okay.

This juror became the foreman of the jury.

Appellant argued in his brief filed in the Court of Appeals that this lately discovered exchange compromised the integrity of the verdict. The appellee’s brief addressed the merits of the issue, but also challenged it on procedural grounds, arguing that it had not been raised in the appellant’s pre-hear-ing statement. Appellant then formally moved the Court of Appeals to consider the issue. The court denied the motion, and ordered the argument stricken from the briefs. Appellant’s motion to reconsider was denied, for the stated reason that the Court of Appeals “is limited in its review to issues presented to the trial court.” Appellant did not petition for discretionary review of this order, but, following an adverse decision on all other issues, sought review of the entire case, arguing with respect to juror misconduct that the Court of Appeals had abused its discretion in refusing to consider the issue.

Appellee contends that the question is foreclosed for the reason that the appellant failed to seek discretionary review within twenty days after the Court of Appeals’ denial of reconsideration.¹ Viewed in its context, however, the order of denial was interlocutory, not finally determinative of appellant’s ultimate claim for relief, i.e., a new trial. The appeal proceeded on other issues; had appellant prevailed on these, or any of them, the rejection of the one issue would have been moot (except perhaps as the subject of a precautionary cross-motion for discretionary review). We do not interpret CR 76.20 to require piecemeal review, or a separate motion for discretionary review of an interlocutory order, when a single review will justly serve the interests of all parties and the interest of judicial economy. Rule 76.-20(3)(b) requires that the motion state the date only of final disposition by the Court of Appeals. Under CR 76.20(4), the record on the motion is to include the decision on any motion for reconsideration. Appellant’s motion for review timely followed the final decision of the Court of Appeals. CR 76.20(2)(d) therefore does not mandate dismissal. If we may review the outcome, certainly we may review the interlocutory order, which presented a ripened issue only upon determination of the appeal.

We believe the Court of Appeals abused its discretion in refusing to consider the issue of juror misconduct. We have adopted videotaping technology as a means to further the ends of justice. In the present case, it has revealed a serious trial error which, absent the innovation, might have gone undetected. Reviewing the entire videotaped record of a lengthy trial (three weeks in this case) is necessarily time-consuming. Considering that counsel were neither privy to nor advised of the judge-juror conversation in question, it is not surprising that the incident was discovered well after the appeal process was underway. Yet the appellee was not “ambushed” in the Court of Appeals. The issue was raised when recognized, and was briefed by both parties.

The Court of Appeals is of course correct in that, ordinarily, appellate courts do not review issues which have not been presented to the trial court. It is conceptually difficult to conclude that a lower court has committed error on an issue not raised before it. Generally, as implied by the Court of Appeals, an appropriate remedy may lie in a motion pursuant to CR 60.02, to introduce the issue in the trial court. On the other hand, a palpable error affecting the substantial rights of a party, even if insufficiently raised or preserved, is reviewable, and, upon a determination that it has resulted in manifest injustice, reversible. CR 61.02.

CR 60.02 does not afford the present appellant an adequate opportunity for relief. In a very real sense, the issue was initiated in the trial court, through the direct revelations of the juror concerning the information about the case imparted to her by her husband. In the same sense, the trial court has once ruled on the issue, deciding, without participation of counsel, that “that type of discussion is okay.” The opportunity for a timely and meaningful inquiry into the details of the juror’s extrinsic fact-gathering vanished long ago. In a proceeding under CR 60.02, not only would the trial court be reviewing its own error, but the product of any evidentiary hearing would be less reliable than the contents of the present record.

However inadvertently, the trial court, in eschewing further inquiry, in condoning the juror’s extra-court conversation, and in failing to notify counsel of her remarks, committed palpable error. The juror’s comments fairly command the inference that she allowed her husband to address her concerning the substance of the ease being tried, in transgression of her oath² and the court’s admonitions. Considering the accumulated record (and in particular the fact that the trial judge and defense counsel, in a recorded television interview broadcast during the course of this trial, commented on excessive and escalating jury verdicts for plaintiffs), we will not presume that this juror’s independent knowledge failed to affect her decision in the case. We must hold that the cause was not tried by a fair and impartial jury, and that the appellant suffered manifest injustice and is entitled to a new trial.

Only one other issue remains viable. That is whether, upon retrial, the appellant’s expert ought to be allowed to testify that the defendant had deviated from the standard of care applicable to a “mere resident,” when the defendant was not a “mere resident”. Should a second trial develop similarly to the present record, we agree with the Court of Appeals that the court may admit or exclude this testimony in its sound discretion.

The judgment is reversed, and this matter is remanded to the Warren Circuit Court for further proceedings.

LAMBERT and LEIBSON, JJ., concur. SPAIN, J., concurs in result only. WINTERSHEIMER, J., files a separate dissenting opinion, in which STEPHENS, C.J., joins. REYNOLDS, J., not sitting.

1 . "A motion for discretionary review by the Supreme Court of a Court of Appeals decision shall be filed within 20 days after the date of the order or opinion sought to be reviewed unless ... a timely motion for reconsideration ... has been filed ... in which event a motion for discretionary review shall be filed within 20 days after the date of the order denying the ... motion for reconsideration, or, if it was granted, within 20 days after the date of the opinion or order finally disposing of the case in the Court of Appeals." CR 76.20(2)(b).

“The failure of a party to file a Motion for Discretionary Review within the time specified in this Rule ... shall result in a dismissal of the Motion for Discretionary Review.” CR 76.-20(2)(d).

2 . "[N]ot to converse with, nor allow themselves to be addressed by, any other person on any subject of the trial ...” KRS 29A.310(1).