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Conway v. Blackburn6/13/2005
trinsic. See Balisok, 123 Wn.2d at 118. It is the burden of the party seeking review of an issue to ensure that the record on review contains a verbatim transcript of proceedings necessary to present the issue. RAP 9.2(b). Because Conway argues that the evidence is extrinsic, Conway bears the burden here to produce transcripts necessary to allow us to review the issue.
Conway has failed to provide any trial transcripts. Conway argues that because Blackburn does not dispute that evidence of custom-made bras was not presented at trial, transcripts are not necessary. But, it is Conway's burden to prove that the evidence was extrinsic. Blackburn need not dispute Conway's claim that the evidence was extrinsic. We review the trial court's order denying a new trial for abuse of discretion.
Breckenridge, 150 Wn.2d at 203. The court abuses its discretion when its decision is manifestly unreasonable, or made on untenable grounds or for untenable reasons. Here, the trial court heard the evidence presented and exercised discretion in not granting a new trial. Without knowing what evidence was presented, we cannot determine that the trial court's order was an abuse of discretion. Thus, we decline to review the trial court's order denying a new trial on the ground that the jury introduced extrinsic evidence. See State v. Lough, 70 Wn. App. 302, 335, 853 P.2d 920 (1993).
B. Alleged Misconduct: Introducing Comparative Fault Theory
The same two jurors who made the declarations about the custom-made bra evidence also made declarations about jurors imposing a duty on Conway:
During the deliberations, three jurors stated to the rest of us, in substance, that it was Ms. Conway's responsibility to look into Dr. Blackburn's background thoroughly before she had the surgery; that she had the opportunity to do this but didn't do it; that because she didn't do as much checking into his background as she should have, she was just as much responsible for the outcome as he was; that if she had waited for a few months she could have had the more experienced surgeon do the operation but she was in a hurry and had Dr. Blackburn do it instead; and because she didn't check him out as well as she should have, we can't put the blame for all of what happened squarely on his shoulders. . . .
I'm not sure whether these three jurors used the word 'fault' when telling the jury that Ms. Conway didn't check into Dr. Blackburn's background as thoroughly as she should have. However, it was clearly implied by what they said that because Ms. Conway didn't learn how inexperienced he was, she was as much at fault for what happened as he was, and because of that, we shouldn't blame him completely for the outcome.
Declaration of James T. Phillips
Three jurors told the rest of us on the jury that Janice Conway had a duty to do better research in finding a doctor. . . . If a person is going to have an operation, they said, that person has the responsibility to do the research to find out whether the doctor is a good one and whether the doctor is experienced. These three jurors said Janice Conway didn't research Dr. Blackburn enough, that she should have done a better job looking into his background. They said that because she didn't do enough research into his background, she was responsible for what happened to her.
They argued basically that because Janice Conway should have done a better job researching the doctor, what happened to her was her own fault, and we can't blame the doctor. These arguments were made before the vote was taken.
Declaration of Gerrit C. Hoogenboezem
Juror affidavits cannot be properly considere
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