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InPratt v. St. Christopher's Hospital, et al., 2005 Pa. LEXIS 101 (Supreme Court of Pennsylvania, January 19, 2005), the Pennsylvania Supreme Court was faced with the issue of whether it is jury misconduct when two jurors seek out medical opinions from a trusted acquaintance to assist them in deciding whether to accept the opinion an expert presented at trial.

The main issue at the trial of the Pratt case was whether the medical providers were negligent in failing to timely order a CAT scan. The jury returned a defense verdict, with ten of the twelve jurors supporting the verdict. After the verdict was rendered, the Court received a letter from Juror 10 indicating that during deliberations she learned several jurors had discussed the case with outside medical professionals, who were friends, relatives, and/or personal physicians. The Juror concluded that the opinions obtained from outside sources influenced the verdict because the jurors discussed these outside opinions during deliberations.

The trial court denied the post-trial motions, without a hearing, and entered judgment on the verdict. On appeal, the Superior Court of Pennsylvania applied the "no-impeachment rule" and the exception allowing post-verdict testimony regarding the fact or existence of extraneous influences that might have prejudiced deliberations. President Judge Del Sole wrote that testimony may be heard on the issue of jurors seeking their own information about the standard of care to be followed by health providers and discussing those outside opinions during deliberations because such testimony is not part of the jury's reasoning processes; rather, it is testimony of overt conduct. The majority departed from the trial court, however, on the issue of potential prejudice that arose from the extraneous communication. The Superior Court relied on an objective test for prejudice, taking into account the facts and circumstances of the particular case and focusing on how a typical juror would be affected by the influence. The majority relied on the case of Carter by Carter v. United States Steel Corp., 604 A.2d 1010 (1992), in concluding that potential for prejudice was implicated. The majority found it significant that jurors were alleged to have obtained extraneous information from individuals in whom they placed particular trust, explaining, "human experience dictates that …..an individual will more heavily weigh an opinion from an individual known to them, than an opinion given by a complete stranger." In this case, the two jurors in essence sought their own expert testimony, which necessarily served to support one of the two sides at trial.

As a result, the Superior Court found it appropriate to remand for an evidentiary hearing on the juror misconduct claim to determine whether the jurors, in fact, received opinions from outside sources regarding the appropriate medical standard of care.

The hospital defendants appealed to the Pennsylvania Supreme Court, which analyzed the issues in light of Pennsylvania Rule of Evidence 606(b), which provides:

Upon an inquiry into the validity of a verdict,…a juror may not testify to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions in reaching a decision upon the verdict or concerning the juror's mental processes in connection therewith, and the juror's affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury's attention or whether any outside influences was improperly brought to bear upon any juror.

This competency-based principle included the general exclusionary principle referred to in the "no-impeachment rule," as well as the exceptions relating to "prejudicial facts not of record, and beyond common knowledge and experience" and "outside influences." The Court determined that the rule balanced the goal of fair and impartial decision-making with the interests in confidentiality of jury deliberations and the finality of duly rendered verdicts.

The Supreme Court agreed that the circumstances implicated the extraneous-information exception. The Court based its decision on the fact that there was inappropriate jury conduct with outside medical professionals pertaining to the main issue of the case regarding the timing of ordering a CAT scan. The Court did acknowledge that the practice of interviewing jurors after a verdict and obtaining ex parte unsworn statements to respond to questions and representations was highly unethical and improper and was forbidden by public policy. However, it held that Juror 10's letter was sufficient to allow for an evidentiary hearing by the trial court.

The Supreme Court rejected the plaintiffs' argument that there should be a new trial at that juncture simply based on the determination that there was jury misconduct. The Court believed that the interest in finality weighed substantially in favor of an evidentiary hearing, with the burden of proof allocated to the plaintiff because the plaintiff was contesting the verdict. The Supreme Court directed that an evidentiary hearing would be needed to determine the substance of the information conveyed. The hearing should also reveal whether the recipients were majority or minority jurors since this was essential to apply the objective inquiry in order to assess the actual prejudicial affect the jury misconduct had on the deliberations.

Lawyers need to be aware that in order to receive a jury verdict that will not be improperly influenced, and perhaps later overturned, jurors must be reminded that they must not seek opinions from acquaintances to bring into the deliberation room. Admittedly, jurors will bring their own experiences, knowledge, and beliefs into the deliberation room; however, if they bring extraneous information and outside influences into the deliberation room, lawyers must understand the right to seek an evidentiary hearing to determine the factual extent of the information learned and what, if any, influence it had on the jury's decision.

*Jon is an associate in our Philadelphia, PA office. He can be reached at (215) 575-2750 or jcross@mdwcg.com.