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Kravitz v. Beech Hill Hospital9/27/2002
findings in Questions #1 and #2, you must make a determination as to a damage amount concerning Jane Doe herself. Therefore, please continue your deliberations as to Question #6. In considering question #6, you must follow all instructions on damages as previously given to you.
The jury shortly thereafter rendered a verdict for Doe for $130.00.
The plaintiffs moved for additur, or in the alternative, a new trial on damages. Beech Hill objected and further moved to set aside the verdict, or, alternatively, for judgment notwithstanding the verdict. Prior to the court ruling on the above motions, Beech Hill's counsel filed a supplement to its original objection explaining that she had contacted twelve jurors and learned that they unanimously believed that the sexual contact between Doe and Reels was consensual. The motion also explained that counsel learned that the jurors found Beech Hill liable, not because they believed that Doe was raped or that Beech Hill was negligent, but because that "was their way of giving Judith Kravitz the $13,762.00. They did that because they felt she did not get what she paid for in sending her daughter to Beech Hill Hospital." Counsel attached her own affidavit describing her post-trial conversations with the jurors. The plaintiffs objected to this supplemental filing on the grounds that Beech Hill's post-trial effort to impeach the jury's verdict was improper and that the court should not consider such evidence.
After reviewing the affidavit, the court determined that it was unnecessary to reconvene the jury. In its order on the post-trial motions, the court declined to grant an additur and reduced the $130.00 verdict as to Doe back to the jury's original verdict of zero. In support of this ruling, the court explained that the jury could have reasonably determined that damages on the part of Doe had not been established. The court further noted that the jury appeared to have provided Kravitz a restitutional or contractual remedy. Because such a remedy had not been pleaded, the court permitted Kravitz to amend her pleadings in order to address the issues of contractual or restitutional damages. This appeal and cross-appeal ensued.
I. Post-Verdict Inquiry into Jury Intentions
The plaintiffs first assert that the trial court improperly received the affidavit of counsel for Beech Hill to impeach the verdict. It is well established that the testimony or affidavits of jurors are not admissible to impeach the verdict. See Bunnell v. Lucas, 126 N.H. 663, 667-68 (1985). "This is so, not because they are irrelevant but because experience has shown that they are more likely to prevent than to promote the discovery of the truth." Exeter-Hampton Mobile Co. v. State, 106 N.H. 476, 478 (1965) (quotations and ellipses omitted). Although the testimony or affidavits of jurors are inadmissible when offered as a basis for setting the verdict aside, they may be admitted in limited circumstances to exculpate the jury or to sustain a verdict. See Bunnell, 126 N.H. at 668. Thus, it is permissible to use the affidavits of jurors to sustain a verdict only after it has been attacked by competent evidence of misconduct of one or more members of the jury. See Caldwell v. Yeatman, 91 N.H. 150, 153 (1940); see also 8 J. Wigmore, Evidence ยง 2354(4), at 714-16 (McNaughton rev. 1961) (explaining that a juror's testimony may be offered to sustain a verdict when there have been allegations of bias or misconduct during jury deliberations). In contrast, where the object of admitting the jurors' testimony is to affect, either favorably or unfavorably, a motion to set aside a verdict or to grant a new trial, evidence regarding the jurors' motives, beliefs, misunders
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