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Conway v. Blackburn6/13/2005
Janice Conway had a breast reduction surgery performed by plastic surgeon James Blackburn II. The surgery did not have good results. Conway sued Blackburn, alleging medical malpractice and failure to adequately inform of the risks of surgery. The 12-person jury returned a defense verdict with two jurors dissenting. Conway appeals, arguing that the trial court abused its discretion when it denied her motion for a new trial on jury misconduct grounds. Conway also argues that the trial court improperly assessed fees against her. Finding no error, we affirm.
FACTS
On November 10, 2000, Janice Conway underwent a bilateral breast reduction surgery. James Blackburn II was her plastic surgeon . Blackburn encountered difficulty during surgery maintaining vascularity to Conway's right nipple. Despite efforts to save the nipple, it died and had to be removed. Over the next year and half, Conway followed up with Blackburn on other problems she had with the surgery. Conway argued that Blackburn placed her nipples too high on her breasts. Blackburn argued that the nipples looked like they were too high on Conway's breasts because her breasts bottomed-out after surgery. Conway had problems with breast symmetry, but Blackburn argued that this was a result of postoperative changes in Conway's breasts. Conway also had 'dog ears' at her surgery incision sites.
Conway sued Blackburn for medical malpractice and for failure to secure informed consent. After deliberating for about two hours, the twelve-member jury returned a defense verdict, with two members dissenting. The jury found that Blackburn was not negligent and that he did not fail to obtain Conway's informed consent. The trial court entered judgment dismissing the action and awarding costs to Blackburn, including witness and mileage fees for his experts. Conway made a motion for a new trial under CR 59(a)(1) on the grounds of jury misconduct. Conway argued that various jurors committed four types of misconduct: they introduced extrinsic evidence concerning an issue of material fact, injected erroneous statements of law into deliberations, concealed a bias against Conway during voir dire, and disregarded the court's instructions not to discuss the case before it was submitted. Conway based her motion on the declarations of two jurors and one alternate juror, and excerpts from voir dire.
The trial court denied Conway's motion for a new trial, and Conway timely appeals. Conway also appeals the trial court's award of statutory witness and mileage fees for Blackburn's expert witnesses. Conway did not make a trial transcript part of the record on review.
ANALYSIS
I. Alleged Jury Misconduct During Deliberations
The rule announced in State v. Parker, 25 Wn. 405, 65 P. 776 (1901), explains the use of juror affidavits to support a motion for a new trial: In considering the affidavits filed, we entirely discard those portions which may tend to impeach the verdict of the jurors, and consider only those facts stated in relation to misconduct of the juror, and which in no way inhere in the verdict itself. It is not for the juror to say what effect the remarks may have had upon his verdict, but he may state facts, and from them the court will determine what was the probable effect upon the verdict. It is for the court to say whether the remarks made by the juror in this case probably had a prejudicial effect upon the minds of the other jurors.
Parker, 25 Wn. at 415; see also Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 272, 796 P.2d 737 (1990). A jury verdict will not be set aside based on evidence that 'inheres in the verdict.' Gardner v. Malone, 60 Wn.2d 836, 841, 37
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