Filed 3/6/13 Jones v. Drucker CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JAMES JONES,
Plaintiff and Appellant,

v.
MICHAEL R. DRUCKER,
Defendant and Respondent. 2d Civil No. B238437 (Super. Ct. No. 56-2008-00328693) (Ventura County)

Appellant James Jones filed a me dical malpractice action against respondent Dr. Michael R. Drucker, alleging in juries resulting from hernia surgery. In this appeal from a judgment in favor of resp ondent, appellant conten ds the court abused its discretion in denying his motion for a new tr ial on the ground of jury misconduct. The contention essentially turns on an alleged reference made during deliberations by one juror, and then extensively discussed by the panel, that there wa s no evidence of a standard of care established by the American Medical Association. We conclude that the declaration in support of the claim of jury misconduct was inadmissible. (Evid. Code, § 1150, subd. (a).) We affirm.2 FACTS AND PROCEDURAL HISTORY
The Trial On July 10, 2007, respondent perfo rmed a "plug and "p atch" surgery to repair an inguinal hernia in appellant's left groin area. The procedur e consists of placing a "plug" in the hernia, which is then "patched" with mesh that can be permeated by human tissue. In accordance with his training, respondent tied the "tails" of the patch together with a single stitch placed behind ap pellant's spermatic cord. No stitching or
other method was utilized to anchor the patch to appellant's body. The promotional materials for the pl ug and patch procedure indicate the surgery is relatively pain free and that comp lications are rare; 95 percent of patients are
able to return to thei r normal activities within three days of the surgery. There is a risk, however, that the patch will migrate or roll, which can cause irritation and lead to scarring of the surrounding nerves. The day after the surgery, appellant co mplained of pain in his inner left thigh, scrotum and penis. Ba sed on his experience, responde nt concluded that appellant was experiencing typical post-operative pain and that no follow-up was necessary. When appellant visited respondent eight days later, he complained of the same pain. Although the pain was in the area of th e ilioinguinal nerve, there wa s no indication at the time of surgery that the nerve was either near the mesh or had to be moved to avoid any impact. Respondent told appellant that he expected the pain w ould be gone once he had completely healed. On August 2, 2007, appellant went to Dantae Davies, M.D., for a second opinion. After conducting an independ ent evaluation, Dr. Davies recommended "watchful waiting" and told appe llant to follow up with resp ondent. Although Dr. Davies believed that appellant's pain was neurogeni c and could be caused by various factors irritating the nerves, he did not diagnose ne rve entrapment or recommend surgery at that
time. Appellant presented with the same symptoms when he visited respondent about a month later. Respondent determined at that time that the problem could be nerve3 related and referred appellant to a pain specia list. Two months later, appellant saw a pain specialist and was referred to another hernia su rgeon, Dr. Parviz Amid . In June 2008, Dr. Amid conducted a second surgery and discov ered the mesh had rolled up and formed a mass incorporating two nerves. Because the ne rves were too entangled to be separated, Dr. Amid removed them in the hope it would replace the pain with numbness. Appellant was initially pain free after th e surgery. Four or five weeks later, however, the pain
returned. Another doctor conducted a third surgery in March 2009, but the pain persisted. Appellant then filed the instant action. At trial, appellant called Leo Murphy , M.D., as an expert witness. Dr. Murphy opined that although respondent acted within the standard of care in performing the surgery on appellant, his follow-up treatm ent of appellant fell below that standard. 1 The doctor believed that respondent should have performed a thorough differential diagnosis of appellant and inject ed a nerve block to determine if the pain was neurogenic. According to Dr. Murp hy, there was a "grace period" of three to four months during which reparative surgery could be conducted before the nerve in jury became permanent. Jeffrey Johnsrud, M.D., testified as an expert on behalf of respondent. Dr. Johnsrud opined that respondent acted within the standard of care both during and after the surgery. When appellant visited respondent nine days af ter the surgery, it would have been impossible to distinguish between a nerv e injury and post-surgical swelling. When appellant presented to respondent at that time, the pain he complained of was "clearly not
abnormal" and did not warrant either a nerve block or physical examination of the area from which the pain emanated. Absent an infection, the standard of care would not call for a second reparative surgery un til at least six months to a year after the first surgery.
At the conclusion of the tr ial, the jury was instructed on the standard of care as follows: "A surgeon is ne gligent if he fails to use th e level of skill, knowledge, and care in diagnosis and treatment that other re asonably careful surgeons would use in the

1 In his pretrial declaration and depos ition, Dr. Murphy opined that respondent committed negligence in performing the hernia surgery. When the doctor testified at trial, however, he changed his opinion on this issue.4 same or similar circumstances. This level of skill, knowledge, and care is sometimes
referred to as 'the standard of care.' [¶] You must determin e the level of skill, knowledge, and care that other reasonably ca reful surgeons would use in the same or similar circumstances, based only on the te stimony of the expert witnesses who have
testified in this case." The jury was also given a special verdict form in which it was asked (1) whether respondent was "negligen t in the diagnosis and/or treatment of" appellant; and (2) whether respondent's negligen ce was a substantial factor in causing the harm that appellant suffered. The form also instruct ed the jury that if the answer to the first question was no, the jury was to "answer no further ques tions, and have the presiding juror sign and date this verdict." After deliberating over the course of tw o days, the jury retu rned a verdict of 11 to 1 in favor of respondent. On the verdic t form, the jury answer ed "no" to the first question and thus did not answ er the second question.
The New Trial Motion After judgment was entered in favor of respondent, appellant moved for a new trial alleging that (1) the verdict was agai nst the weight of the evidence with regard to respondent's post-operative treatment of appellant; and (2 ) the jury committed misconduct by "refusing to follow the court's instructions a nd refusing to deliberate on one of [appellant's] two theo ries of negligence, i.e., [respondent's] negligence in [appellant's] post-operative care." In support of his juror misconduct cl aim, appellant offered a declaration from Juror Patricia L. Bergman. Juror Bergman stated in pe rtinent part: "When I said [during deliberations] that we had to look beyond the su rgery itself and consider Dr. Drucker's aftercare (or lack of aftercare), a nother juror said that the testimony about the standard of care was too vague, and that beca use we were not provided any information
on the American Medical Association's definiti on of the standard of care, we could not find negligence." The declaration also stat ed "[t]here was extensive conversation and speculation about the Am erican Medical Association's st andard," and that "[t]he only evidence jurors discussed was whether Dr. Druc ker was negligent duri ng the surgery. I5 pointed out that there was evidence about neg ligence in his care af ter the surgery, but other jurors declined to disc uss it because they did not know what the standard of care
was." In opposing the motion, responde nt asserted that Juror Bergman's
declaration was inadmissible under Evidence Co de section 1150, subdivision (a), because it referred to the ju rors' subjective reasoning processe s. Respondent also offered a conflicting declaration from Juror Melissa Banni ng. Juror Banning stated in pertinent part: "I specifically do recall that the definiti on of standard of care was read in the jury room several times from documentation provide d to us by the court. . . . I cannot specifically recall if the American Medical Asso ciation was mentioned or not. If it was, I do not deny that fact, but I categorically ca n state that no definition of the American Medical Association was stated by any juro r or set forth by any written documentation brought into the jury room. We used the definition provided to us by the court." Juror Banning also stated: "I completely disagree with [Juror Bergman's] statement that 'the only evidence jurors discussed was whethe r Dr. Drucker was negligent during the surgery.' The aftercare evidence and the definition of standard of care constituting negligence were definitely discussed. I do no t recall that any jurors declined to discuss aftercare because they did not know what the standard of ca re was. I disagree with [Juror] Bergman's statement in that regard. I also disagree with Ms. Bergman's statement
. . . that when she tried to ask about Mr. Jone s' care after the surgery a juror said 'we don't
have to consider that because 9 of the 12 jurors agree that he was not negligent during the surgery.' Again, the surgery, the aftercar e and the evidence pe rtinent thereto were definitely discussed and we applied the defini tion of standard of care contained in the jury instructions."
When the motion was called for hear ing, Judge Barbara A. Lane, who presided at trial, was on medical leave. Due to time restraints, the motion was heard by Judge David Worley pursuant to Code of Civil Procedure sections 660 and 661. 2 Prior to

2 All further undesignated statutory referen ces are to the Code of Civil Procedure. Section 660 provides that the trial court lose s jurisdiction to rule on a new trial motion 606 the hearing, Judge Worley i ssued a tentative ruling denying the motion. After hearing argument from appellant's counsel, the cour t addressed the following to appellant's counsel: "[Juror] Banning's declaration cont radicted [Juror Bergman's declaration] and indicated that they had indeed considered the issues of pain management, postoperative care, and the other issues . . . , so we essentia lly have conflicting declarations on that. [¶] I'm not going to repeat the law and the thresholds that apply to that kind of an evaluation,
but based on the record I have before me and recognizing of course it is a sterile record, I didn't preside at the trial, but, nevertheless, I strike the balance in favor of denying the motion." Appellant filed a timely notice of appeal.
DISCUSSION Appellant contends the trial court e rred in denying his motion for new trial on the ground of juror misconduct. We conclude otherwise. Section 657, subdivision 2 provides that the trial court may grant a new trial if the jury committed misconduct that materially affected th e substantial rights of the moving party. On a new trial motion allegi ng jury misconduct, the moving party bears
the burden to establish both that such misc onduct occurred and that the misconduct was prejudicial. ( Donovan v. Poway Un ified School Dist. (2008) 167 Cal.App.4th 567, 625; Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 57.) "The standard of review on a new trial motion alleging ju ror misconduct is abuse of discretion." ( Sarti v.
Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1213.) In ruling on a request for new trial based on juror misconduct, the trial court applies a “three-step inquiry . . . : De termine whether the affi davits supporting the motion are admissible, whether the facts establish misconduct, and whether the misconduct is prejudicial.” ( Bell v. State of California (1998) 63 Cal.Ap p.4th 919, 932;

days after the moving party is served with a notice of entr y of judgment. Section 661 provides in pertinent pa rt that "[t]he motion for a new tr ial shall be heard and determined by the judge who presided at the trial; provided, however, that in case of the inability of such judge . . . , the same shall be heard and determined by any other judge of the same court." In its order denying the motion, Judge Worley made an express finding that Judge Lane was unable to hear the motion as contemplated in section 661 because she "is presently on medical leave and not expected to return before expiration of the Court's power to rule on th[e] motion pursuant to" section 660.7 see also Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4t h 149, 160.) “[W]e review the trial court's order, no t its reasoning, and affirm . . . if it is correct on any theory apparent from the record.” ( Blue Chip Enterprise s, Inc. v. Brentwo od Sav. & Loan Assn. (1977) 71 Cal.App.3d 706, 712.) Respondent claims, as he did below, th at appellant's motion fails on the first prong because Juror Bergman's declarati on was inadmissible under Evidence Code section 1150, subdivision (a). Although the tr ial court did not address this claim, we agree with respondent that th e declaration was inadmissible and that appellant's new trial
motion should have been de nied on that basis. In deciding whether juror declarations are admissible to impeach a verdict, courts “must take great care not to overstep the boundaries establis hed by Evidence Code section 1150.” ( People v. Duran (1996) 50 Cal.App.4th 103, 112.) Subdivision (a) of the statute provides that "[u] pon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to st atements made, or conduct, conditions, or events occurring, either within or without the jury room, of su ch a character as is likely to have influenced the verdict improperly. No ev idence is admissible to show the effect of such statement, conduct, conditi on, or event upon a juror e ither in influencing him to
assent to or dissent from the verdict or c oncerning the mental processes by which it was
determined." "Evidence Code section 1150 permits evidence from jurors regarding '"overt acts"-that is, such statements, conduct, conditions, or events as are "open to sight, hearing, and the other senses and thus subj ect to corroboration" [but jurors] may not testify to "the subjective reasoning processes of the individual juror . . . ." [Citation.]' [Citation.] Evidence Code sec tion 1150 'may be violated not only by the admission of jurors' testimony describing th eir own mental processes, but also by permitting testimony concerning statements made by jurors in th e course of their deliberations. In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that stat ement is admissible. [Citation.] But when a juror in the course of deliberations gives th e reasons for his or her vote, the words are8 simply a verbal reflection of the juror's mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Co de section 1150.' [Citation.]" ( People v. Sanchez (1998) 62 Cal.App.4th 4 60, 475-476.) Where the declaration at issue "suggests '"'deliberative e rror' in the jury's co llective mental processconfusion, misunderstanding, an d misinterpretation of the la w,"' particularly regarding 'the way in which the jury interpreted and applied the instructions,' the affidavit or declaration is inadmissible. [Citation.] Th e mere fact that such mental process was manifested in conversation between jurors duri ng deliberations does not alter this rule. [Citation.]" ( Id. at p. 476.) Juror Bergman's declaration is essen tially offered for its statements that "[t]he only evidence jurors discussed was wh ether [respondent] was negligent during the surgery" because one of the ju rors "said that the testimony ab out the standard of care was too vague, and that because we were not provided any informa tion on the American
Medical Association's definition of the standard of care, we could no t find negligence."
These statements are inadmissible under Ev idence Code section 1150 because they suggest deliberative error in th e jury's mental process. "D eclarations which impugn the jury's mental processes or th e jurors' reasons for assenting to the verdict or attempt to show 'that the jury made no findings as to certain ma tters' are inadmissible under Evidence Code section 1150. [Citations.]" ( Gorman v. Leftwich (1990) 218 Cal.App.3d 141, 146.) Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1 677, is instructive. In that case, six jurors submitted declarations stating they had defi ned battery in a manner that conflicted with the jury instructions a nd had expressed that mi sunderstanding during deliberations. In addressing whether the decl arations were admissible under the rules of Evidence Code section 1150, th e court explained that the moving party sought to "avoid the impact of these rules by focusing on the fact that several of the jurors communicated their misunderstanding of the instructions during deliberations . However, '[t]he subjective quality of one juror' s reasoning is not purged by th e fact that another juror9 heard and remembers the verbalization of that reasoning.' To hold otherwise would destroy the rule . . . which clearly prohibits the upsetting of a ju ry verdict by assailing these subjective mental processes. It would al so inhibit and restrict the free exchange of ideas during the jury's deliberations.'" ( Id. at pp. 1683–1684.) The court concluded: "Here, the jurors' statements themselves did not constitute mi sconduct, nor do they reflect an outside influence brought into the courtroom. Rathe r, the alleged misconduct arose from the way in which the jury interpreted and applied the inst ructions. Such evidence is inadmissible." ( Id. at p. 1684.) Juror Bergman's declaration relates not only a verbaliza tion of one juror's subjective reasoning, but also purports to esta blish the effect that statement had on the rest of the jury's reasoning process. Altho ugh the declaration technically describes "overt acts," those acts are in essence a descrip tion of the subjective reasoning the jurors allegedly employed in reac hing their verdict.
This is not a case in which extr aneous law was injected into the proceedings by a juror claiming expertise or s uperior knowledge of the issue at hand. (Compare, e.g., In re Stankewitz (1985) 40 Cal.3d 391, 396-400 [juror who said "that as a police officer he knew the law" repeatedly ma de incorrect statements regarding elements of robbery].) To the extent the purportedl y offending juror stat ement included an erroneous statement of law, our Supreme Cour t has explained that "[n]ot all comments by all jurors at all times will be logical, or even rational, or, strictly speaking, correct. But such comments cannot impeach a una nimous verdict; a jury verdic t is not so fragile. 'The introduction of much of what might strictly be labeled "extrane ous law" cannot be deemed misconduct. The jury sy stem is an institution that is legally fundamental but also fundamentally human. Jurors bring to their deliberati ons knowledge and beliefs about general matters of law and fact that find thei r source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses: it has the potential to undermine determinati ons that should be made exclusively on the evidence introduced by the parties and the instructions given by the court. Such a10 weakness, however, must be tolera ted. "[I]t is an impossible standard to require . . . [the jury] to be a laboratory, completely steriliz ed and freed from any external factors." [Citation.] Moreover, under that "standard " few verdicts would be proof against challenge.' [Citations.]" ( People v. Riel (2000) 22 Cal.4th 1153, 1219.)
The statement at issue here relate s one juror's reasons for concluding appellant had failed to meet his burden of pr oving respondent had viol ated the standard of care. Nothing prevented the ot her jurors from reviewing the instructions themselves to determine whether they agreed with that reasoning. The mere fact that the statement was
made does not amount to misconduct. At mo st, it is but one manifestation of the human
frailties from which few verdicts could withstand such close scrutiny. ( People v. Riel,

supra , 22 Cal.4th at p. 1219.) Ju ror Bergman's statement that the remark led the rest of the jury to refrain fro m deliberating on the issue of respondent's negligence was plainly inadmissible. ( Gorman v. Leftwich, supra, 218 Cal.App.3d at p. 14 6.) Because appellant
offered no admissible evidence to support his claim of juror misconduct, his motion for a new trial on that ground was properly denied. In light of our co nclusion, we need not address appellant's remaining claims. 3

3 We also note that Juror Be rgman's credibility was serious ly called into question by her own reply to Juror Banning's declaration. Atta ched to Juror Bergman' s reply is a copy of an email she sent to appellant's trial counsel th e day after the verdicts were read. In that email, she refers to respondent as "a first-class jerk" and says she was " stunned " when nine jurors concluded there was no evidence u pon which to base a finding that respondent negligently performed appellant's surgery. According to Juror Bergman, she and two other jurors " adamantly disagreed " with this conclusion—ap parently notwithstanding the fact that appellant had effectively conceded this issue at trial. The juror goes on to express her "frustration" w ith the special verdict fo rm, which she erroneously characterizes as requiring the jury to find re spondent negligently perfo rmed the surgery in order to return a verdict in favor of appellant . She then states: "There was a sense of frustration that the jurors were not given enough evidence to help us make a more comprehensive decision, such as . . . [t]he generally accepted Standard of Care was not specifically spelled out so because it was a 'generalization' as to what is considered by the American Medical Association as Standard of Care, we had no specific guidelines to determine whether [respondent] was below the St andard of Care." No mention is made of any juror stating that res pondent could not be found negligent because the jury had no information on the American Me dical Association's definition of the standard of care.11 The judgment is affirmed. Responde nt shall recover his costs on appeal.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.12 Barbara A. Lane, Judge

David Worley, Judge Superior Court County of Ventura

________________ ______________

Ferguson Case Orr Paterson, Wen dy C. Lascher, John A. Hribar, for Plaintiff and Appellant. Carroll, Kelly, Trotter, Franzen & McKe nna, Mark V. Franzen, Christy Lee Thomasson, for Defendant and Respondent.