Tuesday, August 16, 2011
Is There A Doctor In Your Past?: Supreme Court Of Mississippi Permits Jury Impeachment Regarding Lies During Voir Dire
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
But while jurors may not testify as part of an inquiry into the validity of a verdict, almost all courts have found that jurors can testify to prove that a juror lied during voir dire, with the result being that a verdict is overturned. Most courts find that such testimony simply falls outside the scope of Rule 606(b). But in its recent opinion Merchant v. Forest Family Practice Cliic, P.A., 2011 WL 3505309 (Miss. 2011), the Supreme Court of Mississippi found that when a juror conceals information during voir dire, such information constitutes an improper outside influence, permitting juror testimony under the Rule.In Merchant,
[Charles] Harris was treated for gout of the left foot by Dr. [John] Lee at the [Forest Family Practice] Clinic on multiple occasions between June 13, 2006, and June 30, 2006. On July 2, 2006, Harris was taken to the emergency room of Mississippi Baptist Medical Center and was diagnosed as septic. As a result of the sepsis, Harris's left leg was amputated. On August 13, 2006, Harris died. On August 6, 2008, the Estate [of Charles Harris] filed a complaint against the Clinic, Dr. Lee, and John Does 1–10, alleging, inter alia, medical negligence, vicarious liability, and wrongful death.
The Estate of Charles Harris also brought a similar lawsuit against another doctor, Dr. Howard Clark, who treated Harris at another clinic. Before trial in the action against Dr. Lee,
During voir dire, the circuit judge asked the venire, "[w]ith that type of case, a case where a doctor has been sued for malpractice, will that affect your judgment in this case?" The first inquiry posed by counsel for the Estate during voir dire was "[w]ould you raise your hand if any of you have had an occasion to be treated at the [Clinic] by Dr. Lee or any other doctors [?]" Counsel for the Estate later asked the venire, "would you raise your hand if you feel like...you should not sit on this jury because of the knowledge of... Dr. Lee or his [C]linic..., that you feel like you shouldn't sit on this jury because you can't put aside that bias[?]" Finally, counsel for Dr. Lee asked the venire, "you will make your decision based on the actual evidence and the [j]udge's instruction. Are you all aware of that?" During voir dire, the venire members (including [Clyde] Lowden) also responded affirmatively that they "still have an open mind and can receive the evidence and the law of this case and make a fair decision[,]" and that they will "listen to the evidence, listen to the [c]ourt, and...follow the [c]ourt's instructions, even if for some reason you disagree...."
At the end of trial, the jury returned a verdict in favor of Dr. Lee and the Clinic. Thereafter, the Estate filed a "Motion to Investigate Juror Misconduct, to Set Aside or Void Jury Verdict, to Void or Set Aside Final Judgment, for New Trial, and to Change Venue." In support of the juror misconduct portion of the motion, the Estate attached the affidavit of Juror Maria Lopez, which stated that juror Clyde Lowden told other jurors
[t]hat he had been a patient of both Dr. Lee and Dr. Clark. That both were good doctors and that we the [j]ury could not "let those attorneys keep taking money from our doctors." [Another juror] and I reminded [Lowden] that the [c]ourt had instructed us to disregard the comment about a lawsuit against Dr. Clark. [Lowden] nonetheless continued to refer to that lawsuit in an attempt to persuade his fellow jurors to vote in favor of Dr. Lee.
The court denied the motion, and the Estate's appeal eventually reached the Supreme Court of Mississippi. The court concluded that
Lopez's affidavit and subsequent testimony offered unrebutted evidence that Lowden "failed to truthfully answer questions during voir dire[,]" which implicated an "'outside influence' contemplated by Rule 606(b)."
The court then found that this improper outside influence was sufficient to require a new trial because "Lowden's failure to respond to the aforementioned questions amounted to withholding 'substantial information' which 'would have provided a valid basis for challenge for cause....'"