In an opinion filed on July 15, 2014, the Court of Appeals of Georgia (“Court of Appeals”) reversed a defense verdict in a Georgia medical malpractice case because the trial judge failed to advise the plaintiffs regarding a jury note he received after the lunch recess on the first day of deliberations in which the jury asked, “What happens if we can’t reach a unanimous verdict” and the trial judge responded “please continue deliberating,” without consulting with the parties or their counsel regarding the note or his response because he did not believe consultation with counsel about the note or his response was necessary.
Several weeks after the defense verdict, two jurors contacted Plaintiffs’ counsel to express concerns about possible juror misconduct (they alleged that another juror may have been sending and receiving text messages during deliberations) at which time the Plaintiffs’ counsel learned for the first time that the trial judge had responded to a note from the jury without ever disclosing the contents of the note or his response to either the parties or their counsel.
The Court of Appeals held that, as a general proposition and broadly stated, a trial judge should not answer a question from the jury in a civil case about their ability to reach a verdict unless the parties and/or their counsel are present as well, further stating that Georgia appellate courts have specifically considered judge/jury communications in criminal cases concerning a jury’s ability, or inability, to reach a verdict, and routinely held that it is error for a trial judge to respond to such an inquiry in the absence of the defendant and/or his counsel.
The next issue the Court of Appeals had to decide was whether the trial court’s error was “harmless error” (Plaintiffs normally would not be entitled to a new trial unless they could show “material harm” from the trial court’s actions). In deciding this issue, the Court of Appeals stated that harm may be presumed under certain circumstances, such as when a fundamental right has been denied and the error cannot be cured after the verdict; the Court of Appeals saw no reason why denial of a fundamental and constitutional right such as the right to be present – in person or by counsel – should not also be one of those rare circumstances where prejudice might be presumed (“[nothing] requires us to apply a harmless error analysis to a right to be present violation such as the one that occurred in this case”).
The Court of Appeals noted that the Georgia Supreme Court set out a procedure in criminal cases to require trial courts to have jurors’ communications submitted to the court in writing; to mark the written communication as a court exhibit in the presence of counsel; to afford counsel a full opportunity to suggest an appropriate response; and to make counsel aware of the substance of the trial court’s intended response in order that counsel may seek whatever modifications counsel deems appropriate before the jury is exposed to the instruction. The Court of Appeals noted that the Georgia Supreme Court did not specifically limit the application of the procedure to criminal cases.
Nonetheless, the Court of Appeals stated that this case had unique circumstances that must be viewed together: (1) that the communication was not disclosed to the Plaintiffs or their counsel until after the verdict; (2) the note and response were not made a part of the record at the time it was made or thereafter; (3) the differing recollections about the nature and timing of the communication; (4) the fact that those differences were never resolved in the trial court by the judge who decided the motion for new trial; (5) the inability of the Plaintiffs to show what effect the communication had on the jury’s verdict; and (6) the Court of Appeals inability to say that a verdict would have been demanded for the Defendants regardless of the effect of the communication on the jury.
The Court of Appeals held that, based on the above considerations and under the particular circumstances of this case, the Plaintiffs were entitled to a new trial.
Lee V. Phillips, IV by Next Friend Santhonia Hector v. Harmon, et al., A14A0188. Read the entire opinion of the Georgia Court of Appeals in this case by clicking here.
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