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South Bend Clinic2/6/2002
OPINION - FOR PUBLICATION
Appellants-defendants South Bend Clinic, Inc., Gail A. English, M.D. (Dr. English) and Randolph E. Szlabick, M.D. (Dr. Szlabick) (collectively, the defendants) appeal the jury verdict entered in favor of appellee-plaintiff Robert F. Kistner, the personal representative of the Estate of Marguerite E. Kistner. Specifically, they contend that juror misconduct occurred when it was discovered after the trial that several jurors had consulted a dictionary during deliberations for a definition of the term, "preponderance."
FACTS
The facts most favorable to the judgment are that Robert Kistner filed a wrongful death action against the defendants as a result of alleged medical malpractice that was perpetrated against Marguerite. She died from breast cancer on August 6, 1994, that had been allegedly misdiagnosed and treated by the defendants. A jury trial commenced on January 22, 2001, and concluded on January 30. After a close of the evidence, the trial court read the final instructions to the jury. While the trial court defined the term "preponderance of the evidence" in the preliminary instructions, no definition was given in the final instructions. The judge instructed the jury as follows in the preliminary instructions:
When I say that a party has the burden to prove an issue by a preponderance of the evidence, I mean by the greater weight of the evidence. A greater number of witnesses testifying to a fact in one side or a greater quantity of evidence introduced on one side is not necessarily of the greater weight. The evidence gen upon any fact that convinces you most strongly of its truthfulness is of the greater weight. Appellant's App. at 18.
After nearly eight hours of deliberation, the jury foreman informed the trial judge that the jury was unable to reach a verdict. Concluding that the jury would probably not reach a unanimous verdict that evening, the judge excused the jury and ordered it to return for further deliberation the next morning to "take one more shot at it when everybody is a little fresher." Appellant's App. at 38.
After deliberating for approximately one hour the next day, the jury ultimately returned a $300,000 verdict in Kistner's favor and against all defendants. Thereafter, defense counsel Stephen Harants spoke with several jurors about the verdict. One of the jurors informed Harants that they had requested a dictionary on the first day of deliberations for a definition of the word "preponderance." Appellant's App. at 60. The trial judge refused the request. Harants eventually learned that one or more of the jurors consulted a dictionary at home, between the first and second day of deliberations in order to obtain a definition of "preponderance." Appellant's App. at 60. The jury foreman also consulted a dictionary that defined the word as "of superior in weight." Appellant's App. at 70. During the second day of deliberations, the foreman told the other jurors that he had referenced the dictionary.
On March 2, 2001, the defendants filed a verified motion to correct error, an accompanying memorandum and a request for a new trial. The motion was supported by Harants' affidavit and alleged that the trial judge was obligated to set aside the verdict because the jurors' consulting of the dictionary constituted misconduct and resulted in prejudice to them. Kistner opposed the motion to correct error and, following an oral argument on May 23, 2001, the trial court denied the defendants' motion. The defendants now appeal.
DISCUSSION AND DECISION
In resolving the issue of juror misconduct advanced by the defendants, we note that the trial court's ruling wi
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