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Ottley v. Kirchharr12/9/2005
Appellants challenge the trial court's order granting Appellee a new trial due to purported juror misconduct. We reverse because Appellee failed to demonstrate the juror concealed material and relevant information. Because we find that the trial court abused its discretion by granting Appellee's motion for new trial, we reverse and remand for reinstatement of the jury verdict.
Factual and Procedural Background
Appellee sued Appellants for dental malpractice. Appellee suffered temporomandibular joint ("TMJ") dysfunction and related facial injuries, which required extensive reconstructive surgery. Early in voir dire, Appellee's counsel stated:
We allege that [Appellant Dr. Otley] dislocated [Appellee's] temporomandibular joint . . . as a result of an extraction procedure . . . nd as a result it caused her to undergo four hospital surgeries and that she is due to have the fifth in the future to reconstruct her jaws. Now, knowing that that's the type of case you are going to be hearing and knowing in advance that the damages in this case are tremendous, do you have any hesitancy . . . as to whether or not you think you could be fair and impartial . . . ?
(emphasis added). In response, a potential juror immediately informed the court that he had negative experience with dental care, and he was dismissed.
Counsel for Appellee proceeded to engage in a lengthy discussion with the venire regarding damages, caps on damages, prior experiences, and opinions regarding medical malpractice. Counsel thoroughly inquired about any connections the jurors or their families might have with the medical, dental, or legal profession. Counsel also had a discussion regarding the jurors' prior dental experiences, and specifically asked if anyone had had a tooth pulled by a dentist or oral surgeon. Additionally, counsel inquired about whether any of the jurors had been diagnosed with TMJ dysfunction. After receiving no response, counsel asked the following question: "Has anybody ever had facial reconstructive surgery?" None of the potential jurors responded to the question.
Counsel did not explain, describe, or define what he meant by "facial reconstruction surgery." Nor did counsel explain that he was inquiring about all types of procedures, including ones outside the context of his voir dire. He made no further references to "facial reconstructive surgery." Instead, he discussed the anticipated trial structure and the fact that he was going to call dental and oral surgeons as expert witnesses. Counsel never referred to any plastic surgeons or issues regarding plastic surgery.
After a four-day trial, the jury returned a verdict in favor of Appellants. Appellee timely filed a motion for new trial and a motion to interview a juror, alleging that the juror failed to disclose that she "underwent cosmetic facial reconstructive surgery in the recent past." (emphasis added). The trial court ordered that the juror be interviewed by both parties in a deposition setting to determine whether the juror had previously undergone facial reconstructive surgery and, if so, the extent of that surgery.
The interview occurred several months after the trial. The juror responded that she had had a facelift under general anesthesia. She also had excess skin removed from her eyes, a cheek lift, an implant inserted in her chin, and laser skin treatment. She testified that she did not consider her procedures to be facial reconstructive surgery because they were done for purely cosmetic reasons. Neither her plastic surgeon nor his staff ever called the procedures reconstructive surgery.
The juror testified that she knew two people who underwent r
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