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Kravitz v. Beech Hill Hospital9/27/2002
tandings, intentions and the like is immaterial and may not be considered. See Wigmore, supra §§ 2349(a), at 681 & 2354(4), at 714-16; see also Fed. R. Evid. 606(b) (prohibiting use of juror's testimony or affidavit to determine the validity of a verdict).
In this case, counsel for Beech Hill submitted an affidavit explaining that " here is now overwhelming evidence that the jury found the sex was consensual." Counsel requested the court to "accept the affidavit of counsel as evidence in support of Beech Hill's opposition to plaintiffs' motion, call the jury back to poll them on this question, or allow me the time to collect the affidavits of the individual jurors consistent with what they told me." Because there were no allegations of juror bias or misconduct, it was patently inappropriate to submit the attorney's affidavit for the purpose of explaining the jurors' intentions and motives behind their verdict. The affidavit was thus inadmissible as an evidentiary basis for setting aside the jury verdict, and the trial court was permitted to consider it only "to determine whether the jury should be reconvened for questioning on the propriety of the conduct of their deliberations." Drop Anchor Realty Trust v. Hartford Fire Ins. Co., 126 N.H. 674, 682-83 (1985). Because the affidavit contained no information that the jury engaged in misconduct, the trial court properly refused to reconvene the jury.
The plaintiffs assert, however, that the court did not merely use the affidavit as a basis for deciding whether to reconvene the jury, but also to resolve the post-trial motions on Doe's claims. After reviewing the court's order, we issued an order on May 8, 2002, asking the trial court to "clearly articulate whether it was influenced by Attorney Friedman's affidavit to any extent in ruling on the post-trial motions other than the motion to reconvene the jury." On May 29, 2002, the trial court responded that its "substantive determinations were made without consideration of the unilateral jury interview material presented by counsel for Beech Hill . . . [and that it] also believes that it made its determinations without influence of those materials." As the trial court explained that it did not rely on the affidavit and further noted the specific portions of the proceedings upon which it did rely, we conclude that the trial court did not impermissibly use the affidavit in ruling on the parties' post-trial motions. See Eichel v. Payeur, 106 N.H. 484, 487 (1965) (explaining that a court's order is presumed to rest upon the grounds stated by a motion, and not upon impermissible information).
II. Evidentiary Issues
The plaintiffs argue that the trial court erred by refusing to increase the jury verdict or grant a new trial on the issue of damages after the trial court's pretrial orders were violated on two occasions. In its pretrial orders, the trial court ruled that while evidence of Doe's alleged consensual sexual activity prior to her admission to Beech Hill was inadmissible, Beech Hill "shall have leave to inquire of witnesses, in good faith, into whether Jane Doe, or Judith Kravitz on behalf of Jane Doe, may have made false allegations of sexual assault against any third-party, or allegations of sexual assault which were later recanted." The court further ruled that Beech Hill was required to avoid references to the ethnicity of persons unless ethnicity was determined to be relevant. The plaintiffs argue that these pretrial orders were violated, first, when Beech Hill referred to an alleged sexual incident involving Doe as consensual, and second, when a defense witness unintentionally described the men involved in that incident as being Jamaican.
We first addr
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