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Jones v. Sisters of Providence In Washington3/9/2000
En Banc
The sole issue before this court in this medical malpractice action is whether reversal was required because an alternate juror participated in deliberations. We hold that under the facts of this case it was prejudicial error requiring reversal.
I.
Facts
In June 1995, Frederick Jones brought a medical malpractice action against Drs. Susan Lo and Richard Foutch claiming that they were negligent for failing to diagnose Jones' right leg ischemia. Jones also named Sisters of Providence as a defendant because both Drs. Lo and Foutch were working out of facilities owned by Providence when they treated Jones.
As the case was being submitted to the jury, the trial court requested that the alternate juror be present and actively participate in deliberations, but advised the alternate to not actually vote on the verdict. The record reveals no advance discussion with counsel on this subject, either in or out of the jury's presence. Neither the court nor any of the parties sought a stipulation to this procedure. Furthermore, neither party objected, nor was there any further discussion between the court and counsel on the use of the alternate juror before the verdict was entered.
The jury deliberated for about two days, with the alternate juror being present for almost half of deliberations but leaving the jury room before the regular jurors voted on the verdict. Following the jury's verdict for Providence, Jones moved for a new trial, arguing that the trial court erred by allowing the alternate juror to deliberate with the jury. The trial court denied Jones' motion, finding that under the relevant civil rule, CR 47(b), the court could include the alternate juror in the deliberations and, even if not, Jones waived any error by failing to object.
Jones appealed raising numerous issues for review. In the published portion of the Court of Appeals' decision, the court found that the alternate juror's participation during deliberations constituted reversible error and remanded the case for a new trial. Jones v. Sisters of Providence, 93 Wn. App. 727, 970 P.2d 371 (1999). The Court of Appeals affirmed on all other issues in the unpublished portion of its decision.
II.
Analysis
A.
Error
The first question is whether the trial court actually erred in permitting the alternate juror to deliberate. The relevant portion of CR 47(b) states:
An alternate juror who does not replace a regular juror may be discharged or temporarily excused after the jury retires to consider its verdict. When an alternate juror is temporarily excused but not discharged, the trial judge shall take appropriate steps to protect such juror from influence, interference or publicity which might affect that juror's ability to remain impartial, and the trial judge may conduct brief voir dire before seating such alternate juror for any trial or deliberations. An alternate juror may be recalled at any time that a regular juror is unable to serve . . . . If the jury has commenced deliberations prior to the replacement of a regular juror with an alternate juror, the jury shall be instructed to disregard all previous deliberations and to begin deliberations anew.
Providence asserts that CR 47(b)'s use of the permissive "may" regarding discharging or temporarily excusing an alternate, coupled with the rule's goal of protecting alternates from improper outside influences, provides a trial judge with the discretion to allow the alternates to participate in deliberations. Under Providence's theory, there is no better way to protect an alternate from improper outside influe
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