___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 01090 [4th Dept., 2015]
This dental malpractice case resulted in a defense verdict. After the jury had been discharged, one juror complained that a member of the trial audience had been “stalking” the jurors during lunch and other recesses in the trial. The juror described the behavior as “creepy.” It turned out that the person was representative of the defendants’ insurer, there to observe the trial on its behalf.
The court interviewed the juror in camera, but failed to notify counsel or obtain their consent. Counsel were not given any opportunity to participate in the interview or to be heard concerning the procedure. The court interviewed the complaining juror only, and not the other jurors. While plaintiff’s motion to set the verdict aside was pending, the court prohibited counsel from contacting any of the jurors. Since the evidence before the court was thereby limited to the statements of the complaining juror, the defendants were, as the Fourth Department noted, precluded from any meaningful opposition to the motion and the result was “a foregone conclusion.” The trial court set the verdict aside on the grounds of improper outside influence and ordered a new trial.
The Fourth Department found the one-sided and unduly limited manner of the court’s investigation to be an abuse of discretion and reversed. On the limited record, the court found itself unable to determine if there in fact had been any influence on the jury which would likely have impacted the verdict. It therefore remitted for a full evidentiary hearing.