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Perkins v. Komarnyckyj8/6/1992
The issue presented in this medical malpractice action is whether the trial Judge's erroneous ex parte instructions to the jury require a new trial on damages alone or on both liability and damages. We granted review because of the unique and important nature of the issues presented. See Rule 23(c)(4), Ariz.R.Civ.App.P., 17B A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
FACTS AND PROCEDURAL HISTORY
Peter Perkins sued Drs. Phillip Cooke, a general dentist, and Orest Komarnyckyj, a periodontist (Defendants), for malpractice. Perkins alleged that the Defendants failed to diagnose a squamous cell carcinoma in its early stages and that the consequent delay in treatment resulted in a significant reduction in his chance of survival.
The case was tried to a jury. Perkins died during the trial as a result of his cancer. On a motion by Perkins' attorney, the court permitted the complaint to be amended to an action for wrongful death with Perkins' survivors (Plaintiffs) substituted as parties.
After the jury had retired and begun its deliberations, the jury posed a series of written questions to the Judge. Without informing the parties that the jury had asked him any questions, and without consulting the parties regarding the proper responses, the trial Judge provided the jury with written answers to the questions.
The jury was composed of eight members and two alternates. The parties had stipulated that the two alternates would participate in the trial and deliberations, and that a majority would be seven out of the ten jurors. The jury returned a verdict in favor of Plaintiffs: eight out of the ten jurors found against both Defendants on the issue of liability, while two jurors found in favor of both Defendants. The jury determined that the Plaintiffs' damages totaled $1,098,054, and that Dr. Cooke's percentage of fault was 67%, Dr. Komarnyckyj's 33%, and Perkins' 0%. Both Defendants moved for a new trial, and Dr. Komarnyckyj also moved for judgment notwithstanding the verdict. The trial Judge denied these motions, and Defendants appealed.
In a memorandum decision, the court of appeals affirmed in part, reversed in part, and remanded the case for retrial on the issue of damages. Perkins v. Komarnyckyj, No. 2 CA-CV 90-0254 (Ct.App.Jan. 10, 1991) (memorandum decision). The court of appeals ruled that the trial Judge had not abused his discretion by denying a mistrial after Perkins' death and allowing the case to proceed as a wrongful death action with substituted parties, and had not erred in a number of substantive and evidentiary rulings. In addition, the court of appeals ruled that the trial Judge properly refused to give Defendants' instruction on calculating the increased risk attributable to their conduct. None of these issues is before us on review.
The final question addressed by the court of appeals was the trial Judge's response to one of the written questions sent to him by the jury:
QUESTION [1/30/89, 3:45 p.m., during deliberations]: If any jurists should find for the defendants, should those jurists take part in the determination of the percentage of liabilities and damages?
REPLY: . . . The jurors who agree on liability are the ones who should fix damages and sign the form of verdict.
The court of appeals ruled that the trial Judge had erred by answering the jury's note without notifying the parties and by instructing that those jurors who voted against the Defendants' liabil
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