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Mays v. Schell10/13/2005
FOR PUBLICATION
Before: Cooper, P.J. and Bandstra and Kelly, JJ.
In this medical malpractice case, defendants appeal by leave granted the trial court's order granting plaintiff's motion for a new trial on the basis of evidence not admitted at trial being submitted to the jury. We reverse.
I. Facts
Defendant Gerald Shell, M.D. performed two back surgeries on plaintiff. Plaintiff alleged that Dr. Shell's failure to render timely and effective treatment resulted in her paralysis. In an approximately three-week trial, nine witnesses testified, seven of which were experts, and forty exhibits were admitted, including numerous medical records.
During deliberations, the jury requested plaintiff's complete medical records including MRI's, CT's, myleograms and a light box. Pursuant to the court's policy, instead of providing the exhibits specifically requested by the jury, all of the trial exhibits were presented to the jury. Unfortunately, the jury was also erroneously given defense counsel's banker's box, which contained numerous items never admitted at trial, including: medical records; deposition transcripts, including one questioning plaintiff's expert about his censure by the American Association of Neurosurgeons; testimonial history of expert witnesses; deposition summaries; memos to the file; memoranda of law, including one on the ability of defense counsel to cross-examine on an expert's censure; some marked exhibits; correspondence between Dr. Schell and defense counsel; correspondence between Dr. Schell and Pronational Insurance Company; and defense counsel's notes. After the jury rendered its no-cause verdict and was discharged, the trial court's clerk retrieved the exhibits from the jury room and found that some of the exhibits were intermixed with the contents of defense counsel's banker's box. The trial court contacted both parties and scheduled a hearing to determine what should be done about the error.
At the hearing, plaintiff moved for a new trial, arguing that it was the only appropriate remedy given the jury's exposure to the prejudicial documents in the banker's box. However, plaintiff objected to recalling the jury for questioning to ascertain whether they looked at the items in the banker's box. Defendants countered that the trial court was obligated to first review the materials in the box to determine if they were substantially prejudicial to plaintiff's case and poll the jurors to determine whether they even relied on any of the items in the box. The trial court took the matter under advisement and, four months after the motion was first heard, ultimately granted plaintiff's motion. The trial court concluded that the unadmitted materials in the banker's box were prejudicial and reasoned that because of the quantity and complexity of the exhibits in the case, it would be impossible to determine with any certainty if the jury relied on the prejudicial materials in reaching their verdict.
II. Analysis
Defendants argue that the trial court erred when it granted plaintiff's motion for a new trial because plaintiff failed to establish substantial prejudice by the submission to the jury of the unadmitted evidence. We agree. We review a trial court's decision to grant a motion for a new trial for an abuse of discretion. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 498; 668 NW2d 402 (2003). "An abuse of discretion occurs when the decision is so violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or an exercise of passion or bias." Id.
"The consideration of documents that are not admitted into evidence but are submitted to the jury does not c
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