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: Kentucky Tort Journal

Mistrial is Improper Vehicle for Correcting Jury Verdict

By Edward A. Brutscher, Esq.

The Court of Appeals published Williams v. Primary Care Associates, a medical malpractice case resulting in two jury trials, the last which was declared a nullity on appeal. Williams brought the claim as the Administrator of the Estate of Leslie Dunagan, who died after the defendants nurse practitioner failed to diagnose an abdominal stress ulcer.

In the first trial the jury deliberated for over eight hours before announcing their verdict. The verdict was not unanimous but found the nurse practitioner defendant 100% at fault. The jury awarded medical and funeral expenses, but nothing for destruction of Leslie's power to earn money. The Appellees (Defendants) argued that the jury should be returned to consider the issue further, which the trial court ordered. After twenty-five minutes, the jury returned an additional $800,000 for loss of earning power. The Appellees moved for a mistrial, which was granted. The case was subsequently tried a second time. Both issues of liability and damages were retried. The verdict was in the Appellees favor. The appeal followed.

The Appellants argued that the trial court abused its discretion in granting a mistrial after the jury had returned its verdict. The court discussed the roots of the mistrial as a common law creation and its modern use. The court declared; "We believe the better position is that a mistrial contemplates some error during trial that cannot be cured which prevents a jury from returning a verdict and thus precludes the court from entering a judgment...a mistrial is equivalent to no trial thus making it inappropriate to grant a mistrial after the jury returns a verdict." The court believed that upon entry of a judgment in accordance with the verdict, the judge could enter a judgment not withstanding the verdict (JNOV) or order a new trial, neither of which was addressed since no judgment was ever entered.

The only reasons given by the trial court for granting the mistrial was a witnesses reference to "insurance companies" and the jury deliberating too little time after being sent back. The court found both of these reasons insufficient to justify a mistrial, even if one was appropriate. The court believed that granting a mistrial due to the amount of time a jury spent deliberating was an abuse of discretion on its face. In Kentucky, there is no minimum time a jury must deliberate before returning a verdict.

The court did not believe that the alleged errors rose to the level of a JNOV or a new trial, and it directed the case back to the trial court accordingly. However, if the trial court found grounds for a new trial, the new trial would be on the issue of damages only, and only the damage issue related to loss of power to earn. The trial order and Judgment of the Barren Circuit Court was set aside and the order granting the mistrial was reversed. The matter was remanded with directions to enter the judgment from the first trial.

OUCH...this opinion gives homage to the old adage; "Be careful what you wish for." Notice it wasn't the Appellants (Plaintiffs) who asked that the jury be allowed to reconsider its verdict, it was the Appellees (Defendants). By doing so, the defendants not only opened themselves up to such a result, but they waived any argument that the judge erred by sending it back. Of course, they might have felt the trial and resulting verdict was going well enough to risk a chance the jury would award an amount in line with the rest of their verdict. Sort of like Vegas, huh.

I am not a fan of ever sending the jury back to reconsider its verdict, no matter what issue is likely to remain. One must be especially careful in asking the jury to reconsider a verdict for impairment, especially in a death case, since that figure is usually the highest. Sending the verdict back after a "0" is awarded is just telling the jury, "what you did was not right so you must fix it." A jury will either do one or two things, in my opinion. They will either get upset that you are not accepting the result they reached. This usually results in the "0" being replaced by a similar number like "1" or "100". Or, they will quickly realize that the numbers they were throwing around like "800,000" were closer and gladly put one of those in the empty space after about twenty-five minutes. The question then becomes, is it worth the chance?

Interesting note about the issue of damages on a motion for new trial. A new trial does not encompass the whole trial, but only that issue, which is the subject of dispute. In this case that would have been only on the issue of loss to power to earn. However, since the issue of liability was found in the plaintiff's favor, and death resulted, loss to power to earn is almost guaranteed. So a verdict of "0" is inadequate, requiring a new trial on that issue. The choice then becomes do you want a jury that just awarded "0" to give you a number, or a jury that will not hear from the defendant at the next trial and that will only hear arguments over amount, usually large numbers, that follow after death? A calculated and strategic move definitely, and certainly not an easy choice to make. Unfortunately, a mistrial is not the appropriate way to resolve this dilemma, and frankly, once you place your bets and roll the dice, you live with the final number.

Full post as published by Kentucky Tort Journal on March 10, 2008 (boomark / email).