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Baird v. Owczarek

Superior Court of Delaware

August 29, 2013

Thomas Baird
v.
Frank R. Owczarek, M.D., Eye Care of Delaware, LLC, and Cataract and Laser Center, LLC

Submitted: June 21, 2013

On Defendants' Motion for Sanctions.

On Defendants' Motion to Strike Plaintiff's Affidavit in Support of Plaintiff's Motion for a New Trial.

On Plaintiff's Motion for a New Trial.

On Defendants' Amended Motion for Costs.

Dear Counsel:

Ethical rules do not set forth best practices; instead, ethical rules set forth minimum standards, which can foster "minimal-ethicality":

Not only do many professional codes frame ethicality narrowly, leaving out what might be thought to be most important, they often function affirmatively to encourage a sort of minimal-ethicality, according to which actors are rewarded for being as "minimally ethical" as possible. . . . Whenever ethics is reduced to a system of rules, one need not make choices, but may merely mechanically follow the rules. Rules also benefit the savvy and opportunistic. They will operate as close as possible to the rules' border, while the inexperienced or morally motivated will remain well inside.[1]

This decision is about dubious—yet still ethical—conduct. No one broke the rules, although the parties and their counsel "pushed the envelope." But the conduct of Plaintiff's counsel is more troubling than the conduct of Defendants' counsel.

The facts raised now, as this medical negligence case ends, are not complex. After a jury did not find that Defendant Frank R. Owczarek, M.D. did not treat Plaintiff Thomas Baird negligently, Mr. Baird contacted Juror No. 6 because his lawyers could not. Mr. Baird asked the Court to grant a new trial based solely on the juror's claim that jurors misbehaved during the trial and while they deliberated. Defendants Dr. Owczarek, Eye Care of Delaware, LLC, and Cataract and Laser Center, LLC, aggrieved, asked the Court to sanction Mr. Baird and his lawyers, but Defendants did not comply completely with the rule that governs of their request. This Court does not condone "minimal-ethicality";[2] however, the Court will countenance "minimal-ethicality" when the law so requires.[3] And it does not here: Defendants' motion for costs is GRANTED IN PART and DENIED IN PART, and the other motions are DENIED or DENIED AS MOOT.

I. FACTS[4]

On January 16, 2004, Defendant Frank R. Owczarek, a board-certified ophthalmologist, concluded that he could fix Plaintiff Thomas Baird's eyesight. The doctor proposed laser-assisted in situ keratomileusis—also known as LASIK. On January 27, Dr. Owczarek operated; that is, he reshaped Mr. Baird's corneas. No complications arose during the surgery.

Matt J. Epstein, O.D., an optometrist, treated Mr. Baird after his surgery. Dr. Epstein maintained a relationship with Dr. Owczarek and his two firms, Defendants Eye Care of Delaware, LLC and Cataract and Laser Center, LLC. Defendants scheduled Mr. Baird's post-operative care with Dr. Epstein directly and shared twenty percent of the LASIK fee with him. In 2004, Dr. Epstein saw Mr. Baird twice, and his sight was better—at first.

In the fall of 2009, Dr. Epstein referred Mr. Baird back to Dr. Owczarek because Mr. Baird's sight had deteriorated. On October 14, 2009, Dr. Owczarek operated on Mr. Baird's left eye again; however, his sight continued to worsen. Then on April 20, 2011, Dr. Owczarek diagnosed Mr. Baird with corneal ectasia, which is a degenerative disorder in which the cornea weakens, thins, and bulges. Ectasia is also a contraindication of LASIK.

Five months later, on September 30, 2011, Mr. Baird sued Dr. Owczarek and Eye Care of Delaware;[5] Mr. Baird later joined another defendant: Cataract and Laser Center, LLC.[6] Mr. Baird claimed that

1. Dr. Owczarek should have diagnosed Mr. Baird with corneal ectasia before the first LASIK in 2004,
2. Dr. Owczarek should not have operated on Mr. Baird in 2004 or 2009 because corneal ectasia is a contraindication of LASIK, and
3. the first LASIK, the second LASIK, and the intervening treatment were one continuing tort.[7]

Defendants answered that Dr. Owczarek exercised reasonable care[8] and, in the alternative, that the statute of limitations barred part of the suit because

1. the first LASIK happened on January 27, 2004—more than two or even three years before Mr. Baird filed a complaint against Defendants—and
2. the first and second LASIKs were not one continuing tort because they were not "inexorably related" or "intertwined, " as the Supreme Court's holding in Ewing v. Beck[9] requires.[10]

Before the trial, Defendants asked the Court to enter partial summary judgment against Mr. Baird because the statute of limitations[11] allegedly barred his claim that Dr. Owczarek was negligent in 2004.[12] The Court denied the motion because Mr. Baird and Defendants disputed facts that were material to whether the first and second LASIKs were sufficiently related.[13]

The trial began on April 1, 2013 and ended nine trial days (11 days) later. The parties presented their cases well, and the attorneys exhibited professionalism, civility, and skill. The trial was intense: the jury faced complex questions, and experts from across the nation testified about ectasia, LASIK, and ophthalmology. Cross-examination was thorough. The Court did not instruct the jury until April 11.

The jury returned a verdict within a few hours. The jury found that

1. Mr. Owczarek did not "breach[] the standard of care in his treatment of [Mr.] Baird concerning LASIK surgeries performed on January 27, 2004, " and
2. Mr. Owczarek did not "breach[] the standard of care in connection with LASIK enhancement surgery performed on [Mr.] Baird on October 14, 2009."[14]

When taking the verdict, the Prothonotary, per usual procedure, asked the jurors whether they agreed with the verdict. After the jurors collectively stated that they agreed with the verdict, the undersigned Judge directed the Prothonotary to poll the jurors individually. The Prothonotary asked each juror whether he or she agreed with the verdict, and each juror told the Court that the verdict was also his or her verdict, although Juror No. 6 hesitated before she acknowledged the verdict as her verdict. The Court then discharged the jury.

Later that day, Juror No. 6 called the Chappaqua, New York office of Todd J. Krouner, one of Mr. Baird's lawyers.[15] Mr. Krouner was unavailable because he was still returning from Delaware; thus, he did not talk with the juror.[16]According to Juror No. 6, she also called the Court, but she "was unable to reach" the undersigned Judge.[17] And on April 12, Bruce L. Hudson, another of Mr. Baird's lawyers, asked the Court to either contact Juror No. 6 directly or permit Mr. Baird's counsel to contact her:

I am writing to seek Your Honor's guidance concerning an issue that has arisen after the verdict in this matter was rendered yesterday. Yesterday afternoon around 5:00 P.M., my out-of-state co-counsel, Todd Krouner, received a call at his office in New York from juror number 6, [name omitted], who asked to speak with him. He was then returning to New York. Consequently, Mr. Krouner's receptionist indicated to [Juror No. 6] that Mr. Krouner was unavailable and not able to speak to her. At this time, no further communication has been made with that juror.
The Court may recall that when it polled the jury, [Juror No. 6] hesitated, and appeared to be in visible distress. After conferring with Mr. Krouner, and reviewing Rule 3.5(c) of the Delaware Lawyers' Rules of Professional Conduct, we respectfully seek leave of the Court to respond to [Juror No. 6's] unsolicited telephone call. In the alternative, as a courtesy to [Juror No. 6], we respectfully request that the Court communicate with her, and among other things, explain that Mr. Krouner is not permitted to respond.
We appreciate the Court's guidance on this issue. For the Court's convenience, the number that [Juror No. 6] left with Mr. Krouner's office is [telephone number omitted].[18]

Although Mr. Hudson identified Juror No. 6's telephone number "[f]or the Court's convenience, "[19] the Court did not call her. The Court informed Juror No. 6 only that Mr. Krouner could not contact her:

I write to you because I have been advised by the attorneys for Mr. Baird that you telephoned for Mr. Todd Krouner at his office in New York on April 11 in the late afternoon.
I write to advise you that Delaware law does not permit an attorney to communicate with a juror after discharge of the jury.[20]

And the Court did not permit Mr. Baird's counsel to contact Juror No. 6:

For your information, I enclose a copy of a letter written by me today to Juror No. 6, [name omitted]. Permission is not granted to Plaintiff's counsel to "respond to [Juror No. 6] unsolicited telephone call" as set forth in Plaintiff's letter to me of April 12.[21]

Most of the issues now before the Court arose from Mr. Baird's decision to call Juror No. 6.

On April 25, 2013, Mr. Baird moved the Court to grant a new trial under Superior Court Civil Rule 59 because jurors allegedly misbehaved when they deliberated and their misconduct harmed him.[22] Defendants have contended that the Court must set aside the jury's verdict if

1. "there is a reasonable possibility that allegedly extraneous information . . . affected the verdict" or
2. "the integrity of the deliberative process was compromised."[23]

To support his motion for a new trial, Mr. Baird has filed an affidavit, in which he averred that

1. he called Juror No. 6 and discussed the jury's deliberations with her,
2. his counsel did not suggest that he contact Juror No. 6, although he got her telephone number from Mr. Hudson's April 12 letter to the Court, and
3. he did not ask Juror No. 6 to write a letter to the Court or dictate what she wrote in her April 23 letter to the Court.[24]

The Court has also received a letter from Juror No. 6, in which she alleged that

1. Juror No. 8 said that Orenthal James "O.J." Simpson was innocent,
2. Juror No. 9 pushed the jury to decide the case quickly,
3. Juror No. 1 wanted to decide the case but not review the evidence,
4. Juror No. 1 repeatedly asked Juror No. 6 (among others) to explain her opinions,
5. a majority of the jurors wanted to ask the Court to clarify the standard of care, but Juror No. 1 (the foreperson) refused to pass along their questions, and
6. Juror No. 9 researched "something" online.[25]

In response to the actions of Mr. Baird and his counsel, Defendants have asked the Court to

1. sanction Mr. Baird because he contacted Juror No. 6, [26]
2. sanction Mr. Baird's counsel because they knowingly helped him contact Juror No. 6 or waited too long to tell the Court that he contacted her, [27] and
3. strike Mr. Baird's affidavit in support of his motion for a new trial because the affidavit recounts his conversation with Juror No. 6.[28]

Mr. Baird has not contested Defendants' claim that neither he nor his counsel told the Court that he contacted Juror No. 6 until he asked the Court for a new trial. He and Juror No. 6 spoke on April 21, [29] and he filed his motion on April 25;[30]Mr. Baird and his lawyers thus waited about four days before they told the Court that he and Juror No. 6 spoke.

In the motion for sanctions, Defendants asked the Court to

1. revoke the two New York attorneys' pro hac vice admissions,
2. award attorneys' fees and costs that Defendants incurred to litigate the motion for a new trial and related motions, and
3. refer Mr. Baird's counel to the Office of Disciplinary Counsel.[31]

Before filing the motion for sanctions, Defendants had asked the Court to order Mr. Baird to pay their costs under Superior Court Civil Rule 54 and Title 10, Sections 5101 and 8906 of the Delaware Code.[32]

II. DEFENDANTS' MOTION FOR SANCTIONS

Defendants have asked the Court to sanction Mr. Baird and his lawyers because Mr. Baird contacted Juror No. 6 after the Court discharged the jury and his lawyers helped him. The Court may sanction lawyers under

1. Superior Court Civil Rule 11 or
2. the Court's inherent power to police proceedings.[33]

The Court's power under Civil Rule 11 is limited, [34] but the Court's inherent power is quite potent.[35] The Court must wield its inherent power with great restraint.[36]

And before asking the Court to use either power, a party should exercise similar restraint because even doubtful accusations can leave a stain behind them.[37]Plaintiff has offended Defendants—and their offense is certainly reasonable; however, Defendants' counsel did not comply with all of Rule 11's requirements. No convincing evidence shows that Mr. Baird's attorneys suggested that Mr. Baird contact Juror No. 6, and no authority barred Mr. Baird from contacting her. Defendants' motion for sanctions is therefore DENIED.

A. The Court Will Not Sanction Mr. Baird's Lawyers under Superior Court Civil Rule 11 Because Defendants Did Not Serve His Attorneys with the Motion for Sanctions More Than 21 Days Before Defendants Filed the Motion with the Court.

The main goal of Superior Court Civil Rule 11 is to deter frivolous claims.[38]Rule 11 is not a tactical tool;[39] the legal system is the Rule's intended beneficiary.[40]

A motion for sanctions under Rule 11(c) must meet three "significant procedural requirements, "[41] which dissuade litigants from abusing the Rule:

1. The motion must "be made separately from other motions or requests";
2. The motion must "describe the specific conduct alleged to violate [Rule 11(b)]";
3. The motion may "not be filed with or presented to the Court unless, within 21 days after service of the motion . . ., the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected."[42]

The price of noncompliance is possibly high—the Court may deny the motion.[43]That result is appropriate here.

Defendants did not serve their motion for sanctions as Rule 11(c) required: Defendants served Mr. Baird with the motion when they filed it with the Court, although the Rule directed them to allow his lawyers to right any wrongs.[44]Defendants provided Mr. Baird and his counsel with less than 21 days—zero days in fact—to fix or withdraw his motion for a new trial. Nothing justified this rush. Defendants have claimed that they could not provide Mr. Baird's counsel with any days because the Court's electronic filing system—File & ServeXpress—serves and files papers at the same time. But this argument is not persuasive because Defendants could have observed the spirit, if not the letter, of Rule 11(c). Civility and collegiality define the Delaware Bar; its members cherish their cooperative, yet adversarial, interactions, which demonstrate the great respect, consideration, and admiration that the members have for each other and the law.[45]Defendants could have warned Mr. Baird and his counsel that Defendants were planning to ask the Court to sanction his counsel under Rule 11—but they did not. Defendants also could have asked the Court to exempt their motion from Rule 11's safe harbor requirement if they thought that File & ServeXpress was a problem. Sanctions under Superior Court Civil Rule 11 are thus not warranted.

B. The Court Will Not Sanction Mr. Baird's Lawyers under Its Inherent Power Because Defendants Did Not Prove by Clear and Convincing Evidence That His Lawyers "Knowingly" Helped Him Contact Juror No. 6 after the Court Discharged the Jury.

Only the Supreme Court may supervise the practice of law in Delaware; however, this Court may still protect the integrity of its proceedings and thereby ensure "the fair and efficient administration of justice":

While [the Supreme Court] recognize[s] and confirm[s] a trial court's power to ensure the orderly and fair administration of justice in matters before it, including the conduct of counsel, the [Delaware Lawyers'] Rules [of Professional Conduct] may not be applied in extra-disciplinary proceedings solely to vindicate the legal profession's concerns in such affairs. Unless the challenged conduct prejudices the fairness of the proceedings, such that it adversely affects the fair and efficient administration of justice, only this Court has the power and responsibility to govern the Bar, and in pursuance of that authority to enforce the Rules for disciplinary purposes.[46]

In other words, the Court may not sanction a lawyer just because the lawyer violated the Delaware Lawyers' Rules of Professional Conduct.[47] More is needed: the Court's only recourse is referral to the Office of Disciplinary Counsel unless the breach impaired the fairness of a proceeding.[48] No sanctions are hence proper here.

Defendants have contended that Plaintiff's three attorneys collectively violated Delaware Lawyers' Rules of Professional Conduct 3.5(c) and 8.4(a), under which they could not "knowingly" help Mr. Baird "communicate with a juror . . . after discharge of the jury unless the communication is permitted by court rule."[49] The facts are essentially undisputed:

1. On April 11, 2013, the day when the Court discharged the jury, Juror No. 6 called the Chappaqua, New York office of Mr. Krouner, one of Mr. Baird's lawyers. Mr. Krouner did not return the juror's telephone call; instead, he properly asked Delaware counsel, Mr. Hudson, to ask the Court whether Mr. Baird's counsel could return Juror No. 6's telephone call.[50]
2. In a letter dated April 12, Mr. Hudson asked the Court to contact Juror No. 6 or to allow Mr. Baird's counsel to do so. Mr. Hudson provided the juror's telephone number to the Court "[f]or [its] convenience."[51]
3. In a letter dated April 16, the Court advised Juror No. 6 that Mr. Baird's attorneys could not return her telephone call or otherwise contact her.[52] The Court provided a copy of this letter to both Mr. Baird's and Defendants' counsel.[53]
4. In a letter dated April 16, the Court told both parties' counsel that Mr. Baird's counsel could not return Juror No. 6's telephone call or otherwise contact her.[54]
5. Sometime between April 12 and April 21, Mr. Baird obtained a copy of the April 12 letter, which included Juror No. 6's telephone number.
6. Sometime between April 16 and April 21, Mr. Baird learned that his lawyers could not return Juror No. 6's telephone call or otherwise contact her.[55]
7. On April 21, Mr. Baird called Juror No. 6, and the two discussed the jury's deliberations.[56]
8. On April 25, Mr. Baird asked the Court for a new trial under Superior Court Civil Rule and cited what Juror No. 6 supposedly had told him.[57]

Defendants have claimed that Mr. Baird's counsel "knowingly" helped him call the juror.[58] Because no evidence supports Defendants' contention directly, they in effect ask the Court to infer that Mr. Baird's counsel acted "knowingly."

When asserting a violation of a Delaware Lawyers' Rule of Professional Conduct, a party must prove, "by clear and convincing evidence, "

1. a violation of the rule and
2. how the violation disrupts the administration of justice.[59]

Before Mr. Baird called Juror No. 6, he had obtained a copy of the April 12 letter in which his lawyers provided the Court with the juror's telephone number. Mr. Baird's lawyers asserted, both in the April 12 letter and during oral argument, that they provided the telephone number to the Court "[f]or [its] convenience."[60]They have also stated that they sent Mr. Baird with a copy of the April 12 letter because Rule 1.4(a)(3) required them to keep him informed about the case.[61]No evidence indicates that they "knowingly" helped Mr. Baird contact Juror No. 6. Defendants have in effect asked the Court to infer that Mr. Baird's lawyers acted "knowingly" because they could have benefited if Mr. Baird contacted Juror No. 6. But because the evidence is not "clear and convincing, " the Court must decline Defendants' invitation to sanction Mr. Baird's counsel.[62]

Yet Mr. Baird's attorneys do not occupy moral high ground. They should have known that Mr. Baird might very well contact Juror No. 6 because Mr. Baird had just lost his lawsuit, and this result most likely disappointed him. He thus had a good motive to call Juror No. 6; he only needed a means to do so. His lawyers nonetheless provided him with a copy of the April 12 letter in which they gave Juror No. 6's telephone number to the Court "[f]or [its] convenience." The Court did not need the telephone number at that time. If the Court needed Juror No. 6's telephone number, the Court could have easily obtained the telephone number from the Jury Services Office. Including Juror No. 6's telephone number in the April 12 letter was hence an unnecessary, if not unreasonable, risk. Mr. Baird's counsel should have known better and not furnished Mr. Baird with Juror No. 6's telephone number.[63]

C. The Court Will Not Sanction Mr. Baird under Its Inherent Power Because No Authority Barred Him from Contacting Juror No. 6.

This Court may take "whatever action is reasonably necessary to ensure the proper administration of justice";[64] however, the totality of the circumstances does not warrant sanctions. In an April 16 letter, the Court told the parties' lawyers that "Plaintiff's counsel" could not contact Juror No. 6:

For your information, I enclose a copy of a letter written by me today to Juror No. 6, [name omitted]. Permission is not granted to Plaintiff's counsel to "respond to [Juror No. 6] unsolicited telephone call" as set forth in Plaintiff's letter to me of April 12.[65]

Mr. Baird is not an attorney, and he is not representing himself. In other words, the group "Plaintiff's counsel" does not include him. In another April 16 letter, the Court told Juror No. 6 that an "attorney" could not communicate with her:

I write to advise you that Delaware law does not permit an attorney to communicate with a juror after discharge of the jury.[66]

The Court stated only that "Plaintiff's counsel" or an "attorney" could not contact Juror No. 6 because the Court was construing Delaware Lawyers' Rule of Professional Conduct 3.5(c), which does not apply to Mr. Baird, a non-lawyer.[67]Charles Slanina, former Chief Disciplinary Counsel for the Supreme Court, has opined in this case that the rule only "governs the conduct of attorneys . . . ."[68]Because Rule 3.5(c) does not apply to Mr. Baird, no interpretation of Rule 3.5(c) applies to him either, including the Court's holding in State v. Cabrera.[69]

In Cabrera, the Court held that Rule 3.5(c) did not violate the Constitution.[70]A jury convicted the defendant, Luis G. Cabrera, of two counts of murder.[71] Seven years later, he asked the Court to set aside his judgment of conviction under Superior Court Criminal Rule 61 because

1. one juror might have known the defendant's wife,
2. one juror might have prejudged the defendant, and
3. one juror complained about the internal dynamics of the jury's deliberations.[72]

Cabrera asked the Court to allow him to interview the jurors ex parte.[73]But because Cabrera was in prison, he could not interview the jurors himself; therefore, he could interview them only if his counsel could interview them. And his counsel could interview them only if

1. Rule 3.5(c) was unconstitutional and thus void or
2. a "court rule" allowed his lawyers to interview the jurors.

He claimed that Rule 3.5(c) was unconstitutional because no "court rule" existed.[74]The Court concluded that Delaware Rule of Evidence 606(b) is a "court rule" that would permit his lawyers to interview the jurors—albeit only before the Court.[75]Rule 3.5(c) was hence upheld.

Rule 3.5(c) and the Cabrera Court's interpretation of Rule 3.5(c) do not bind Mr. Baird because

1. he is not a lawyer and
2. he, unlike Cabrera, could interview Juror No. 6 himself.

Mr. Baird may thus interview jurors—free from the Court's supervision—unless an authority besides Rule 3.5(c) states otherwise. First, Defendants only cite the Court's April 16 letters, in which the Court answered a very narrow question. Second, Mr. Baird also did not harass or invade the privacy of Juror No. 6; in fact, the juror tried to contact Mr. Krouner well before Mr. Baird contacted her. He challenged the verdict, but he did not obstruct the administration of justice. For these reasons, sanctions are not appropriate, even if the Court disapproves of Mr. Baird's choice to contact Juror No. 6.

Neither Mr. Baird nor his attorneys behaved perfectly, but sanctions are inappropriate; accordingly, Defendants' motion for sanctions is DENIED.

III. PLAINTIFF'S MOTION FOR A NEW TRIAL

Plaintiff has asked the Court to set aside the verdict and grant a new trial under Superior Court Civil Rule 59 because two jurors compromised the jury's deliberations and therefore the trial was not fair. He has claimed that

1. Juror No. 1, the foreperson, prevented other jurors from asking the Court to clarify the standard of care and
2. Juror No. 9 researched "something" online.[76]

Plaintiff has reasoned that the Court must presume that the jurors' conduct prejudiced him because the circumstances are "egregious."[77] Defendants have responded that

1. Juror No. 6 may not testify about whether Juror No. 1 prevented other jurors asking the Court to clarify the standard of care, and
2. because the circumstances are not "inherently prejudicial, " the Court may not presume that Juror No. 9's "research" prejudiced Plaintiff.[78]

Both Plaintiff and Defendants contend that the facts warrant a presumption only if there is a "reasonable possibility" that the jurors' actions affected the verdict, [79]although the Supreme Court explicitly rejected this standard in Massey v. State.[80]Certain language in McLain v. Gen. Motors Corp.[81] somewhat muddied the waters because the McLain Court restated the then-rejected standard three months after Massey was decided.[82] But the McLain Court ultimately stated the right standard:[83] the Court must presume that Plaintiff was prejudiced if the circumstances are "so inherently prejudicial" that there is a "reasonable probability, " not "possibility, " that the circumstances affected the verdict. Plaintiff's motion for a new trial is therefore DENIED because Juror No. 6 may not testify about whether or how the jurors influenced each other and the remaining circumstances are not "inherently prejudicial."

A. Juror No. 6 May Not Provide Evidence That Juror No. 1 Stopped Jurors From Asking the Court to Clarify the Standard of Care but May Provide Evidence for the Court Preliminarily to Consider Whether Juror No. 9 Researched "Something" Online.

The general rule is that no juror may impeach his or her own verdict.[84]The goals of this rule are

1. to shield jurors from harassment,
2. to protect the privacy of jurors and also their deliberations,
3. to promote the finality of and thus confidence in verdicts, and
4. to prevent tampering with the jury and the judicial process.[85]

Delaware Rule of Evidence 606(b), which states the rule, provides two exceptions:

[A] juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.[86]

Because Rule 606(b) allows a juror to provide evidence only about whether a juror learned "extraneous prejudicial information" or experienced "outside influence, " Delaware courts have distinguished between so-called "extrinsic" and "intrinsic" influences:[87]

1. jurors may testify about whether an "extrinsic influence" existed, and
2. jurors may not testify about whether an "intrinsic influence" existed or how an influence—whether "intrinsic" or "extrinsic"—affected the verdict.[88]

Notably, Plaintiff's motion does not raise every allegation that Juror No. 6 raised in her April 23 letter to the Court. Plaintiff alleges only two influences here: one "intrinsic"—that Juror No. 1 stopped other jurors from asking the Court to clarify the standard of care—and one "extrinsic"—that Juror No. 9 researched "something" online.

Plaintiff first claims that Juror No. 1, the jury's foreperson, stopped jurors from asking the Court to clarify the standard of care.[89] Plaintiff's only evidence is what Juror No. 6 told Plaintiff and her letter sent to the Court and dated April 23.[90]Even if the Court would conclude that Juror No. 1 behaved as Juror No. 6 alleges, she could not testify about how Juror No. 1 acted during the jury's deliberations because no "juror may . . . testify as to any matter or statement [that] occurr[ed] during . . . the jury's deliberations."[91] Plaintiff has no other evidence; hence, further discussion is not needed.[92]

Plaintiff also claims that Juror No. 9 researched "something" online.[93]Plaintiff's only evidence is what Juror No. 6 told Plaintiff and her April 23 letter.[94]She "may testify" about whether Juror No. 9 researched "something" online because "a juror may testify [about] whether extraneous prejudicial information was improperly brought to the jury's attention."[95] But even though Juror No. 6 "may testify" about whether Juror No. 9 did research, Juror No. 6 "may not testify" about whether the research affected the verdict:

A juror may not testify as . . . to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith . . . .[96]

Because Juror No. 6 "may testify" (to use the language of Rule 606(b)) that Juror No. 9 did out-of-court research, additional discussion is warranted.

B. The Court Cannot Conclude That the Circumstances Are "Egregious" Because Plaintiff Has Not Shown What Juror No. 9 Researched and Hence Whether the Research Was "So Inherently Prejudicial" That There Is a "Reasonable Probability" That the Research Prejudiced Plaintiff.

Under Superior Court Civil Rule 59, the Court may set aside a verdict and grant a new trial because a juror knew or learned extraneous information only if the aggrieved party proves that

1. the information "identifiably prejudiced" the party, or
2. the information was "so inherently prejudicial" that the Court must presume that the information prejudiced the party.[97]

The Court will not investigate the conduct of discharged jurors or grant a new trial if the opposing party (here, Defendants) rebuts the Court's presumption.[98]When deciding whether a new trial or further investigation is warranted, the Court enjoys "very broad discretion."[99] The circumstances do not come close to warranting a new trial or further investigation here because Juror No. 6 has not stated with any detail what Juror No. 9 researched online.[100] Juror No. 6 has not explained (if she even knows) what Juror No. 9 "looked up" on the internet. Any prejudice is thus completely speculative.[101] In other words, Plaintiff has not shown that there is a "reasonable probability" that what Juror No. 9 researched online affected the verdict.

In general, an aggrieved party cannot prove—at least directly—that extraneous information affected a verdict[102] because no juror may testify about how anything affected the verdict.[103] The Supreme Court has considered this issue.[104] This Court may thus infer from the circumstances—the nature of the information and its relationship to the case—that extraneous information affected the verdict.[105] But the Court does so only if the circumstances are "egregious."

Since at least 1985, [106] the Court has presumed that a juror's misconduct was prejudicial only when the circumstances were "egregious."[107] In Hughes v. State, [108] after the Supreme Court set aside a verdict, another jury convicted the defendant.[109] Before the Supreme Court again, the defendant alleged that his second trial was not fair because

1. jurors knew that a jury had convicted him once before,
2. jurors knew that he had failed a polygraph test.[110]

The Supreme Court agreed and determined that the "egregious circumstances" justified a presumption that the defendant was prejudiced:

In order to obtain a new trial on the grounds that an impartial jury was never empanelled, generally speaking, we require a showing of identifiable prejudice to the accused. However, under egregious circumstances such as those presented here, the law raises a presumption of prejudice and, consequently, a violation of due process, in favor of the defendant. . . .
In deciding whether prejudice will be presumed, . . . each case must turn on its special facts.[111] The Supreme Court then held that the State had not rebutted the presumption.[112]

The Supreme Court further discussed what were "egregious circumstances."[113]In Massey v. State, [114] the defendant claimed that a juror used drugs and alcohol during the trial.[115] Before the Supreme Court, the defendant argued that even a "reasonable possibility" that the juror's misconduct affected the verdict justifies a presumption that he was prejudiced.[116] The Massey Court rejected this argument, reaffirmed the holding of the Supreme Court's decision in Hughes v. State, and then explained what circumstances are "egregious":

Generally, a defendant must prove he was "identifiabl[y] prejudice[d]" by the juror misconduct, unless the defendant can establish the existence of "egregious circumstances, " i.e., circumstances that, if true, would be deemed inherently prejudicial so as to raise a presumption of prejudice in favor of [the] defendant. As the rule was stated in Hughes, if a defendant can show that there is a reasonable probability of juror taint of an inherently prejudicial nature, a presumption of prejudice should arise that [the] defendant's right to a fair trial has been infringe upon.[117]

In other words, circumstances are "egregious" if there is a reasonable probability, not just a reasonable possibility, that a juror's misconduct affected the verdict.[118]This rule remains the law today.[119]

The Court has applied the rule in civil trials as well.[120] In McLain v. General Motors Corp, [121] the plaintiff alleged that

1. one juror did not accept the verdict until the other jurors harassed her,
2. the other jurors harassed her because they did not want to deliberate another day,
3. a bailiff told the jurors that they would need to deliberate another day if they failed to return a verdict before the end of the day.[122]

The Superior Court did not grant a new trial because the bailiff's comments were not prejudicial. The McLain Court mentioned the "reasonable possibility" standard that the Supreme Court had rejected in Massey v. State:

The jury verdict will be set aside if there is a reasonable possibility that allegedly extraneous information or influences affected the verdict. . . .[123]

But immediately after that statement, the McLain Court explained and applied the correct standard:

The moving party generally carries the burden of demonstrating misconduct. There are, however, certain classes of misconduct in which the burden is upon the party, in whose favor the verdict was rendered, to demonstrate the harmlessness of the alleged influence. The question of whether prejudice resulted must be resolved by drawing inferences. Some types of misconduct are considered presumptively prejudicial, especially in criminal, but also occasionally in civil cases, and a rebuttable presumption of prejudice may arise in favor of the moving party, depending on the misconduct alleged. The Delaware Supreme Court has labeled these instances "'egregious circumstances'—circumstances that, if true, would be deemed inherently prejudicial so as to raise a presumption of prejudice in favor of [the moving party]." "[I]f a [party] can show that there is a reasonable probability of juror taint of an inherently prejudicial nature, a presumption of prejudice should arise that [the moving party] [sic] right to a fair trial has been infringed upon."[124]

The McLain Court applied the same standard that the Massey Court had applied. Under this standard,

1. the Court must presume that an aggrieved party was prejudiced if the circumstances are "egregious, " and
2. the circumstances are egregious if they are "so inherently prejudicial" that there is a "reasonable probability" that they affected the verdict.

Out-of-court research can be misconduct, but out-of-court research is not ipso facto "so inherently prejudicial" that there is a "reasonable probability" that such research would affect a verdict. The Court instead needs enough information to assess how the research could influence jurors and therefore affect the verdict. For example, the Court did not presume that an aggrieved party was prejudiced just because jurors looked up words in a dictionary while they were deliberating.[125]In Porter v. Murphy, [126] the jury asked the bailiff for a dictionary.[127] She did not ask for the Court's leave; instead, she simply provided the jury with a copy of Webster's New Collegiate Dictionary.[128] After the jury returned a verdict against the plaintiffs, they asked the Court to set aside the verdict and grant a new trial because

1. "the only reasonable inference [was] that the jury looked up the very words that went to the core of the case, " and
2. "the introduction of the dictionary tainted the evidence and presumably contradicted the legal instructions."[129]

The Court noted that the bailiff acted improperly but did not grant a new trial.[130]The Court described the plaintiffs' "only reasonable inference" as "completely speculative."[131] Because nothing showed what word or words—"if any"—were looked up, the Court did not presume that the research prejudiced the plaintiffs.[132]

The Court's rationale in Porter governs the Court's analysis in this case.[133]Plaintiff has not shown what Juror No. 9 may have researched on the internet; instead, Plaintiff has asked the Court to presume or infer that he was harmed just because Juror No. 6 has alleged that Juror No. 9 "looked something up."[134]No evidence indicates what that "something" was. In her letter to the Court, Juror No. 6 has stated neither what this "something" was nor how it was material. This weakens Plaintiff's claim: Juror No. 6 likely would have provided more detail if what Juror No. 9 researched online had affected how the jury reached its verdict. Only one reasonable inference exists—the research was not or barely material. The Court will not disregard a verdict or compromise other jurors' privacy unless an aggrieved party shows that the alleged "inherent prejudice" is not speculative. The Court cannot assess the danger of research if its goal is ill or not defined. Because Plaintiff has not shown—at all—what Juror No. 9 researched online, the Court cannot infer that the research was "inherently prejudicial";[135] therefore, Plaintiff's motion for a new trial is DENIED.[136]

IV. DEFENDANTS' AMENDED MOTION FOR COSTS

Defendants have asked the Court to tax $21, 713.50 in total costs against Plaintiff under Superior Court Civil Rule 54 and Title 10, Sections 5101 and 8906 of the Delaware Code:

1. $642.50 to pay Veritext for producing the video deposition of Matt J. Epstein, O.D.;
2. $8, 000 to pay Steven B. Siepser, M.D. for attending the trial and testifying as an expert;
3. $6, 000 to pay William B. Trattler, M.D. for attending the trial and testifying as an expert;
4. $1, 800 to pay Thomas F. Grogan, C.F.E. for attending the trial and testifying as an expert;
5. $96 to pay Parcels, Inc. for serving Dr. Epstein with a subpoena;
6. $675 to pay Vincent A. Bifferato, Sr., for mediation; and
7. $4, 500 to reimburse Defendant Frank R. Owczarek, M.D. for the expenses that he "necessarily incurred" to attend the trial.[137]

"Costs" are "incidental damages" that the Court may award to reimburse a party for expenses that it "necessarily incurred" to assert its rights before the Court.[138]The Court may decline to tax "excessive" or "unreasonable" expenses as costs.[139]Defendants' expenses are recoverable under Delaware law, except as noted below. Defendants' motion for costs is GRANTED IN PART and DENIED IN PART: Plaintiff must pay $15, 639.02 in costs to Defendants.

A. Plaintiff Must Pay $642.50 for the Production of Matt J. Epstein, O.D.'s Video Deposition.

Per Superior Court Civil Rule 54(f) and Section 5101 of the Delaware Code, the Court may tax the costs of videoing the deposition of Matt J. Epstein, O.D. because:

1. Defendants introduced the video into evidence, [140]
2. Defendants provided proof that Veritext charged $642.50 to video the deposition, [141] and
3. nothing indicates that Veritext's fee was excessive.

For these reasons and because Plaintiff did not object to this cost specifically, the Court awards $642.50 to Defendants.

B. Plaintiff Must Pay $14, 225.52 of Steven B. Siepser, M.D.'s, William B. Trattler, M.D.'s, and Thomas F. Grogan, C.F.E.'s Fees for Attending the Trial and Testifying as Expert Witnesses.

Per Superior Court Civil Rule 54 and Section 8906 of the Delaware Code, the Court may tax the fees of Steven B. Siepser, M.D., William B. Trattler, M.D., and Thomas F. Grogan, C.F.E. for testifying as expert witnesses:

An expert's fee is recoverable as a cost of litigation, but is limited to the time necessarily spent in actual attendance upon the Court for the purpose of testifying. "Attendance includes a reasonable time for traveling to and from the courthouse, waiting to testify, and testifying."[142]

Defendants ask the Court to tax $15, 700 in fees against Plaintiff, but the Court will use its discretion to adjust this amount because it is excessive:[143]

1. In 1995, the Medical Society of Delaware's Medico-Legal Affairs Committee concluded that a fee between $1, 300 and $1, 800 per half-day is reasonable.[144]
2. From January 1, 1995 to April 1, 2013, the price of health care increased by 95.15 percent according to the Consumer Price Index.[145]
3. In April 2013, a fee between $2536.99 and $3512.76 per half-day or between $5073.99 and $7025.52 was reasonable.
4. Dr. Siepser's fee was $8, 000 but exceeds the range's upper bound by $974.48, or about 14 percent.[146]
5. Dr. Trattler's fee was $6, 000 and is within the range.[147]
6. Mr. Grogan's fee was $1, 200, [148] which is $600 less than what Defendants asked the Court for in their amended motion.[149]Nothing indicates that Mr. Grogan's fee is unreasonable. Defendants did not argue that Dr. Siepser's fee was reasonable; they contended that his fee was "recoverable, " and they provided proof that he charged $8, 000.[150]For these reasons, the Court awards only $14, 225.52 total to repay Defendants for Dr. Siepser's, Dr. Trattler's, and Mr. Grogan's fees.

C. Plaintiff Must Pay $96 for the Service of a Subpoena on Matt J. Epstein, O.D.

Per Superior Court Civil Rule 54(d) and Section 5101 of the Delaware Code, the Court may tax Parcel, Inc.'s fee for serving Dr. Epstein with a subpoena.[151]Parcels charged $96, [152] and nothing indicates that $96 was too much. Plaintiff only argued that the Court could not award this cost under Rule 54(f), (g), and (h).[153]The Court therefore awards $96 to Defendants.

D. Plaintiff Must Pay $675—Defendants' Share—of the Mediator's Fee.

Per Superior Court Civil Rule 54(d) and Section 5101 of the Delaware Code, the Court may tax Vincent A. Bifferato, Sr.'s fee for mediation to Plaintiff.[154]The Court concludes that Plaintiff should pay the whole fee:

1. The mediation failed.
2. Defendants negotiated in good faith: they offered $200, 000 to Plaintiff; he did not accept that offer.[155]
3. The jury found that Defendants were not negligent and awarded no damages to Plaintiff.
4. The fee was $1, 350—of which Plaintiff already owes half, or $675.[156]
5. Nothing indicates that the fee is unreasonable.

Plaintiff claimed that this fee was not recoverable under Rule 54(f), (g), and (h).[157]Rule 54(f), (g), and (h) does not allow the Court from taxing the mediator's fee; however, Rule 54(f), (g), and (h) does not prohibit the Court from doing so either. Plaintiff ignored other authority, under which the Court may tax the mediator's fee. For these reasons, the Court awards $675 in costs to Defendants.

E. The Court Will Not Require Plaintiff to Pay the Expenses that Dr. Owczarek Incurred Because He Attended His Trial.

Defendants have asked the Court to tax one final cost against Plaintiff. Because Dr. Owczarek attended the trial, he missed nine days of work.[158]Defendants have asserted that his insurer, ProAssurance, paid him $500 each day, or $4, 500 in total.[159] They have contended that the $4, 500 was a "necessarily incurred expense of Dr. Owczarek's presence at trial" because he "necessarily" lost income when attended his trial.[160]

But Defendants produced no evidence that Dr. Owczarek lost $4, 500; they claimed that he lost "at least" $4, 500 and that his insurer paid $4, 500 to him. Defendants' argument was conclusory:

"[T]he $4, 500 amount paid by Dr. Owczarek's insurance carrier is, in fact, much less than he would have earned had he been treating patients and performing surgeries during the 9 days of trial. As Dr. Owczarek necessarily lost income as a result of asserting his rights in court, and the $4, 500 offered by his carrier is a fraction of that amount, Dr. Owczarek requests that amount.[161]

The income that Dr. Owczarek might have lost is too speculative for the Court to tax to Plaintiff. Defendants also cited no direct authority that supports their claim. For these reasons, the Court declines to award costs to reimburse Dr. Owczarek for this kind of expense.

For these reasons and because Defendants have substantiated their costs, although Plaintiff contends otherwise, [162] Defendants' amended motion for costs is GRANTED IN PART and DENIED IN PART: Plaintiff must pay $15, 639.02 in costs to Defendants.

V. CONCLUSION

The Court's decision involves a complicated end to a complicated case. The Court was fortunate that counsel for Mr. Baird and for Defendants were good: both before and during the trial, professionalism, civility, and skill characterized the advocacy. Because this decision only discusses counsel's final choices, it does not convey the totality of the Court's experience. For the reasons stated:

1. Defendants' Motion for Sanctions is DENIED;
2. Defendants' Motion to Strike Mr. Baird's Affidavit in Support of His Motion for a New Trial is DENIED AS MOOT;
3. Plaintiff's Motion for a New Trial is DENIED; and
4. Defendants' Amended Motion for Costs is GRANTED IN PART and DENIED IN PART: the Prothonotary is directed to enter judgment in favor of Defendants Frank R. Owczarek, M.D., Eye Care of Delaware, L.L.C., and Cataract and Laser Center, L.L.C. and against Plaintiff Thomas Baird in the amount of $15, 639.02.

IT IS SO ORDERED.

Richard R. Cooch, R.J.


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