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No. 101,040

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ERIN RENEE DUNCAN, AS ADMINISTRATRIX OF THE ESTATE OF JAMES JEFFERY DUNCAN, DECEASED; ERIN RENEE DUNCAN, AN HEIR AT LAW OF JAMES JEFFERY DUNCAN, DECEASED; and MORGAN DUNCAN, HANNAH DUNCAN, MICHAEL DUNCAN, JOSEPH DUNCAN, and DAVID DUNCAN, MINOR HEIRS AT LAW OF JAMES JEFFERY DUNCAN, DECEASED, BY AND THROUGH THEIR MOTHER AND NATURAL GUARDIAN ERIN RENEE DUNCAN, Appellees, v. WEST WICHITA FAMILY PHYSICIANS, P.A., Defendant, and ROBYN HARTVICKSON, M.D., a/k/a ROBYN HARRIS, M.D., Appellant.

SYLLABUS BY THE COURT

1. Appellate courts review jury instructions to determine whether they are substantially correct statements of law and whether the jury could reasonably have been misled by them. Even if an isolated instruction is erroneous in some way, the instructions are not reversible error if they properly and fairly state the law as applied to the facts when considered as a whole.

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2. It is within the discretion of the trial court to grant or deny a new trial under K.S.A. 60-259(a), and such decision will not be disturbed on appeal except upon a showing of abuse of that discretion. A trial court abuses its discretion when it denies a motion for a new trial based on juror misconduct if the defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant's right to a fair trial.

3. An instruction similar to PIK Civ. 3d 181.20 from the criminal context, specifically PIK Crim. 3d 68.12, has been heavily criticized by our appellate courts, especially when given after the jury announces a deadlock. The practice of submitting a coercive type instruction after the jury has reported its failure to agree on a verdict is not recommended and may well lead to prejudicial error.

4. A trial court risks error in giving PIK Civ. 4th 181.20 (amended 2008) in a civil case after the jury has announced a deadlock. The risk of error is magnified by the inclusion of language from prior versions of this PIK instruction, particularly that language expressly criticized by our appellate courts in the criminal context. Although the error is not structural in nature, the belated use of

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this instruction may be considered in determining whether undue coercion has been a factor in reaching a verdict.

5. Juror misconduct is not grounds for a new trial unless it is shown to have substantially prejudiced a party's rights, and the party claiming prejudice has the burden of proof. Juror misconduct which results in prejudice to a litigant and impairs his or her right to a fair trial requires a new trial.

6. There are two methodologies to analyze whether there has been juror misconduct in compromising a verdict. First, our appellate courts have examined the question based upon objective circumstances; under this approach, there is usually no direct evidence from one or more jurors of misconduct. The second methodology is based on an assessment of the direct evidence of misconduct and is usually based upon affidavits or testimony of jurors.

7. Under the objective circumstances test, we examine three objective criteria to determine whether there has been a compromise verdict. In particular, a damages award that is grossly inadequate, a case with a close question of liability, and an odd sequence of jury deliberations are all indicia of a compromise verdict.
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8. Misconduct by the jury, when it occurs, may be uncovered and the truth and veracity of those testifying to such misconduct can be tested. The matters set forth in juror affidavits, if proven, must establish a conscious conspiracy by the members of the jury to disregard and circumvent the instructions on the law given by the court. If they do so, the jurors have violated their oaths as jurors and this misconduct may support a new trial.

9. Our appellate courts have often concluded that a verdict exclusively awarding economic damages but ignoring uncontroverted evidence of noneconomic damages can be inadequate and indicative of compromise, especially where the economic damages award appears also to be inadequate.

10. Under the facts of this case, the lack of a noneconomic damages award in a case of hotly contested liability, corroborated with direct evidence from a single juror of a conspiracy to compromise on liability in exchange for reduced damages, substantiates a finding of jury misconduct and this misconduct substantially prejudiced the defendant's right to a fair trial. Our conclusion is also buttressed by the relatively quick achievement of unanimity after the district court gave a belated Allen-type dead locked jury instruction under PIK Civ. 3d 181.20 and by the compelling testimony of a juror who reported the
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compromise to defense counsel. Accordingly, the district court's denial of the defendant's motion for new trial was an abuse of discretion.

Appeal from Sedgwick District Court; WILLIAM SIOUX WOOLLEY, judge. Opinion filed January 8, 2010. Reversed and remanded with directions.

Steven C. Day and Chris S. Cole, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, for appellant.

J. Darin Hayes, Mark B. Hutton, and Anne M. Hull, of Hutton & Hutton Law Firm, LLC, of Wichita, for appellees.

Before GREENE, P.J., MALONE, J., and KNUDSON, S.J.

GREENE, J.: Dr. Robyn Hartvickson, a/k/a Robyn Harris, M.D., appeals a verdict against her in a medical malpractice action, principally arguing that the district court erred in giving the jury a so-called "hammer instruction" after a deadlock was perceived, and in denying her motion for a new trial based upon both circumstantial and direct evidence of an apparent compromise verdict. She also claims other errors were committed during the trial, but we do not reach these issues because we agree that her motion for new trial based upon jury misconduct should have been granted. We reverse the district court and remand for a new trial.
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Factual and Procedural Background

The widow and heirs of James Jeffery Duncan (Duncan) brought this medical malpractice action against Hartvickson after Duncan died from a large pulmonary embolism. The essential claim was that Hartvickson negligently diagnosed Duncan with pneumonia and failed to note and treat the embolism when Duncan presented himself to her for treatment on the day prior to his death.

At trial, plaintiffs' experts supported a departure from the standard of care in failing to explore the possibility of pulmonary embolism based on Duncan's symptoms. Hartvickson and her experts asserted that she met the standard of care, suggesting that the embolism was very recent in its formation and likely not evident when Hartvickson examined Duncan, thus verifying her diagnosis of pneumonia. The parties agree that liability of Hartvickson was hotly contested.

After approximately 2 and 1/2 days of deliberations, the jury asked for the court's direction because its "last three votes [had] not changed" and there was no "majority either way." Over Hartvickson's objection, the trial court then gave the jury what is commonly known as the deadlocked jury instruction under PIK Civ. 3d 181.20 and dismissed the jury for the evening. The following morning, the jury returned its verdict
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finding Hartvickson liable and awarding economic damages only totaling $982,143. Despite plaintiffs' extensive evidence of noneconomic loss, the jury awarded no such damages in its verdict.

After one of the jurors later contacted Hartvickson's counsel and suggested that the jury had reached a compromise verdict, Hartvickson timely filed a motion for new trial based on jury misconduct or, alternatively, for a recall of the jury. Following an affidavit and live testimony from the single juror only, the trial court denied Hartvickson's motion. Hartvickson appeals. Standard of Review

With regard to Hartvickson's claim of error based on the trial court's giving of the deadlocked jury instruction, we review the instructions to determine whether they are substantially correct statements of law and whether the jury could reasonably have been misled by them. Hawkinson v. Bennett, 265 Kan. 564, 577-78, 962 P.2d 445 (1998). Even if an isolated instruction is erroneous in some way, the instructions are not reversible error if they properly and fairly state the law as applied to the facts when considered as a whole. State v. McKissack, 283 Kan. 721, 732, 156 P.3d 1249 (2006).

With regard to Hartvickson's claim of jury misconduct, it is within the discretion of the trial court to grant or deny a new trial under K.S.A. 60-259(a), and such decision
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will not be disturbed on appeal except upon a showing of abuse of that discretion. City of Mission Hills v. Sexton, 284 Kan. 414, 421, 160 P.3d 812 (2007). A trial court abuses its discretion when it denies a motion for a new trial based on juror misconduct if the defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant's right to a fair trial. State v. Mathis, 281 Kan. 99, 103-04, 130 P.3d 14 (2006).

Did the District Court Err in Giving an Allen-type Instruction After the Jury Suggested Its Deadlock?

After deliberating for more than 2 days, the jury sent a note the trial court asking for directions. The note stated: "We have deliberated for two and one-half days. Our last three votes have not changed, and we do not have a majority either way. We seek the court's direction."

The court then consulted with counsel and suggested there were several options for response to the jury note, including to "bring them in, read them the hammer instruction, or else known as [PIK Civ. 3d 181.20], the deadlocked jury instruction and send them back to continue to deliberate." This instruction, also commonly referred to as an Allen-type instruction, has taken on this name due to its first being discussed in
Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896). Plaintiffs asked that

the instruction be given, but Hartvickson objected noting that the Supreme Court "has
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recognized that it can cause a jury to make a decision on an improper basis, feeling undue pressure from the court." Notwithstanding this objection, the court decided to give the supplemental instruction, apparently based on the then-current version of the instruction, PIK Civ. 3d 181.20 (modified in 2008 to delete objectionable language; see PIK Civ. 4th 181.20).

The instruction, as given to the jury, stated:

"This is an important case. If you should fail to reach a decision, the case is left open and undecided. Like all cases, it must be decided sometime. There is no reason to believe that the case can be tried again any better or more exhaustively that it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side. "Also, there is no reason to believe that the case would ever be submitted to twelve people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were. "These matters are mentioned now because some of them may not have been in your thoughts. "This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision. "This does mean that you should give respectful consideration to each other's views and talk over any differences of opinion in a spirit of
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fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion so that this case may be completed. "The giving of this instruction at this time in no way means it is more important than any other instruction. On the contrary, you should consider this instruction together with and as a part of the instructions which I previously gave you. "You may now retire and continue your deliberations in such manner as may be determined by your good judgment as reasonable people." (Emphasis added to illustrate the objectionable language no longer included in PIK Civ. 4th 181.20 [amended 2008].)

An instruction of this nature from the criminal context, specifically PIK Crim. 3d 68.12, has been heavily criticized by our appellate courts, especially when given after the jury announces a deadlock. In State v. Boyd, 206 Kan. 597, 600-01, 481 P.2d 1015 (1971), cert. denied 405 U.S. 927 (1972), our Supreme Court clearly warned against giving this instruction after a report of jury deadlock:

"[T]his court has criticized the giving of coercive charges of this character after the jury has received the case for its determination. [Citations omitted.] We reiterate our warning: The practice of submitting a forcing type instruction after the jury has reported its failure to agree on a verdict is not commended and may well lead to prejudicial error."

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This warning is essentially reiterated in the civil context within both the Notes on Use and the Comment to PIK Civ. 4th 181.20 (amended 2008), where the following admonition is provided:

"The propriety of giving this instruction in criminal trials has been addressed on several occasions. Although few verdicts have been reversed because of giving the instruction after the jury has announced itself deadlocked, the court has been critical of the practice. In each case where the matter has been considered, the court has noted that trial courts would be well advised to submit the instruction before the jury retires to commence deliberations, not afterward. "

Indeed, more recently our appellate courts have continued to criticize the instruction, often focusing on aspects thereof that are particularly misleading, technically incorrect, or inconsistent with other instructions. For example, in State v. Scott-Herring, 284 Kan. 172, 181, 159 P.3d 1028 (2007), the Supreme Court once again criticized the instruction, in particular the objectionable portion that was included here:

"We recognize that the phrase 'all cases . . . must be decided sometime' is not technically correct because a case may be resolved in any number of ways that do not involve a jury's verdict. However, we do not believe this technical error in the language warrants the reversal of ScottHerring's conviction under our standard of review, which requires proper and fair instructions rather than technically perfect instructions."

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See also State v. Salts, 288 Kan. 263, Syl.

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