        The Supreme Court of South Carolina

             Philip Ethier and Jeanne Ethier, Petitioners,

             v.

             Fairfield Memorial Hospital; Guy R. Bibeau, M.D.;
             Tuomey Medical Professionals, Inc.; and Pee Dee
             Emergency Medical Associates, PA, Defendants,

             Of whom Guy R. Bibeau, M.D. is the Respondent.

             Appellate Case No. 2018-001435



                                      ORDER


The petition for rehearing is denied. However, the attached opinion is substituted
for the previous opinion, which is withdrawn.


                                  s/ Donald W. Beatty                          C.J.

                                  s/ John W. Kittredge                               J.

                                  s/ Kaye G. Hearn                                   J.

                                  s/ John Cannon Few                                 J.

                                  s/ James E. Lockemy                          A.J.


Columbia, South Carolina

May 27, 2020
           THE STATE OF SOUTH CAROLINA
                In The Supreme Court

   Philip Ethier and Jeanne Ethier, Petitioners,

   v.

   Fairfield Memorial Hospital; Guy R. Bibeau, M.D.;
   Tuomey Medical Professionals, Inc.; and Pee Dee
   Emergency Medical Associates, PA, Defendants,

   Of whom Guy R. Bibeau, M.D. is the Respondent.

   Appellate Case No. 2018-001435



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



               Appeal From Fairfield County
             Roger L. Couch, Circuit Court Judge


                    Opinion No. 27953
        Heard September 24, 2019 – Filed May 11, 2020
                   Re-Filed March 27, 2020


              REVERSED AND REMANDED


   Ronald Brian Cox and Robert David Proffitt, of Proffitt &
   Cox, LLP, of Columbia, for Petitioners.

   David Cornwell Holler, of Lee, Erter, Wilson, Holler &
   Smith, LLC, of Sumter, Stanley Lamont Myers, Sr., of
             Moore Taylor Law Firm, P.A., of West Columbia, Andrew
             F. Lindemann, of Lindemann, Davis & Hughes, PA, of
             Columbia, and G. Murrell Smith, Jr., of Smith Robinson
             Holler DuBose Morgan, LLC, of Sumter, all for
             Respondent.


JUSTICE HEARN: In this medical malpractice action, Petitioners Phillip and
Jeanne Ethier appeal a verdict in favor of Respondent Dr. Guy Bibeau, who
misdiagnosed a popliteal aneurysm as a probable spider bite. Petitioners contend the
court of appeals erred in affirming the trial court's decision to deny granting a new
trial based on intentional juror concealment and premature deliberations. We reverse
and remand for a new trial.

                           FACTUAL BACKGROUND

    I.    Facts

        In April 2011, Philip Ethier went to the emergency room at Fairfield
Memorial Hospital after he felt a sudden, excruciating pain jolt up his leg as he
walked to a shed in his backyard. Rather than drive to a nearby hospital in Chester
County, Ethier traveled to Fairfield Memorial because he recently had been hired as
a licensed practical nurse in its emergency department. Upon arrival, a certified
nurse assistant examined his vitals, and Ethier informed her that his leg and foot
were in severe pain—about a 7 or 8 on a scale of 10. She noted on a medical intake
form that his "feet started to turn ecchymotic."1 According to the nurse's notes, she
examined Ethier's pedal and post-lib pulses, but the corresponding section was left
blank.2

       Thereafter, Bibeau examined Ethier, diagnosing him with a probable spider
bite—a "ridiculous" diagnosis according to the plaintiff's expert at trial, especially
since neither Ethier nor the nurse assistant mentioned that as a possible scenario and
no one ever identified a bite mark. Bibeau informed Ethier to follow-up with his


1
  Related to ecchymosis, which is "a discoloration due to extravasation of blood, as
in a bruise." See Ecchymosis, Dictionary.com, https://www.dictionary.com
/browse/ecchymosis.
2
  These pulses are taken in a patient's foot, where according to the Ethiers' expert, an
abnormal reading may indicate a vascular issue.
primary physician if symptoms changed and was given similar information upon
discharge that afternoon.

       Over the next six weeks, Ethier's symptoms gradually improved, allowing him
to return to work at the hospital. However, during that time, the tip of one of the toes
on his right foot turned black, and according to Ethier, he spoke with Bibeau and
another doctor a couple of times during his shifts at the hospital. The occurrence and
extent of these "curbside consultations" were disputed at trial. Ethier's initial
symptoms returned in late May 2011, requiring him to return to the emergency room.
This time, however, Ethier went to a hospital in Chester County, and doctors
immediately realized Ethier was suffering from an aneurysm. Shortly thereafter,
Ethier was transported by ambulance to a hospital in Charlotte, where vascular
surgeons first attempted noninvasive measures to alleviate the blood clots caused by
the vascular injury. After these measures failed, surgeons elected to perform invasive
surgery, requiring them to cut an incision from his hip to above his ankle.

      Due to the severity of the surgery, Ethier suffered intense pain, and trial
testimony indicated he is no longer as active as before. Further, while Ethier
attempted to return to work as a nurse, the pain eventually prevented him from doing
so. Additionally, his wife testified that his disability strained the close
companionship they previously enjoyed in their marriage.

       The jury found Bibeau negligent and awarded $1,250,000 in economic
damages and $500,000 in non-economic damages to Philip Ethier. Additionally, the
jury awarded $250,000 in damages to Jeanne Ethier for loss of consortium.
However, because the jury apportioned only 30% of the fault to Bibeau and the
remaining 70% to Philip Ethier, the trial court entered a defense verdict on both
claims. The Ethiers filed a motion to alter or amend the judgment, asserting Jeanne
Ethier was entitled to recover the full amount on her loss of consortium claim, but
the trial court disagreed, finding Philip Ethier's comparative negligence barred
recovery for both claims.

   II.    Allegations of Juror Misconduct

      During voir dire, the court asked prospective jurors whether they ever had a
"close social or a personal relationship" with either the Ethiers or Dr. Bibeau. After
no one indicated they did, the court asked the same question about the list of potential
witnesses, which included Jerilyn Wadford and Rhonda Gwynn, two nurses who
examined Ethier, and the CEO of Fairfield Memorial, Mike Williams. To this
question, juror Teresa Killian informed the court, "I used to work at Fairfield
Memorial Hospital with Mike Williams." The court responded, "[s]o you knew him
from that employment," which Killian confirmed. Killian never disclosed that she
also worked with Bibeau or the two nurses.

       After trial, the Ethiers' counsel learned Killian previously worked with Bibeau
and the nurses, and that Killian had discussed her knowledge of them with other
jurors. One of the jurors, Sandra Carmichael, attested Killian stated she knew the
nurses as well as Bibeau, and that both "were very careful and thorough, and if they
said they did something, they did it." Carmichael also noted that during jury breaks,
Killian repeatedly discussed Bibeau's skills as a doctor.

        The Ethiers' counsel filed an affidavit with the trial court, which then held a
hearing pursuant to State v. Aldret, 333 S.C. 307, 509 S.E.2d 811 (1999), to
determine the scope of Killian's conduct. The court first called Killian, who denied
making any of the alleged statements. She also indicated that she only disclosed
knowing Mike Williams because he had treated her son nearly sixteen years earlier.
Further, she added that because the question only called for a close social or personal
relationship, she did not include Bibeau or the nurses when she mentioned Williams
at trial. Thereafter, the court called the remaining members of the jury, and nine
testified they specifically recalled Killian informing them she had worked with
Bibeau and the nurses. Four jurors said Killian vouched for the skill, proficiency,
and truthfulness of all three during jury breaks. Carmichael testified that Killian's
statements affected her vote, as she initially believed Bibeau was more negligent.
Nevertheless, while the trial court found Killian had engaged in premature
deliberations, it found no prejudice. The court also believed Killian did not
intentionally conceal that she knew Bibeau and the three nurses through her previous
employment, contending the question was ambiguous because it only addressed
"close personal or social relationships." Accordingly, the trial court denied the
Ethiers' motion for a new trial.

       The Ethiers appealed to the court of appeals, which, in an unpublished
opinion, affirmed the denial of a new trial based on juror misconduct and the trial
court's decision that Philip Ethier's comparative negligence barred Jeanne Ethier's
loss of consortium claim. We granted the Ethiers' petition for a writ of certiorari.

                                       ISSUE
     Did the court of appeals err in affirming the trial court's denial of Petitioner's
motion for a new trial based on juror misconduct for premature deliberations?
                                 LAW/ANALYSIS

       The Ethiers contend Killian's premature deliberations affected the
fundamental fairness of the trial. Conversely, Bibeau asserts evidence of premature
deliberations is inadmissible and regardless, the trial court did not abuse its
discretion in denying the motion for a new trial.

       Ordinarily, juror testimony concerning juror misconduct is not admissible
unless the allegations of misconduct pertain to external influences. Shumpert v.
State, 378 S.C. 62, 66, 661 S.E.2d 369, 371 (2008) ("For a considerable period of
history, the rule in South Carolina was that a juror's testimony was not admissible to
prove either a juror's own misconduct or the misconduct of fellow jurors."). Rule
606, SCRE, also favors exclusion over inclusion of juror testimony pertaining to
internal misconduct. However, a well-recognized exception exists where the
misconduct affects the fundamental fairness of the trial. State v. Hunter, 320 S.C.
85, 88, 463 S.E.2d 314, 316 (1995) ("Normally, juror testimony involving internal
misconduct is competent only when necessary to ensure due process, i.e.
fundamental fairness."). Premature deliberations fall within this exception. State v.
Aldret, 333 S.C. 307, 312, 509 S.E.2d 811, 813 (1999) ("[W]e hold premature jury
deliberations may affect 'fundamental fairness' of a trial such that the trial court may
inquire into such allegations and may consider affidavits in support of such
allegations."). Once the court determines that premature deliberations occurred, the
moving party bears the burden of demonstrating prejudice, which involves an
analysis as to whether the juror misconduct actually affected the verdict. Id. at 315,
509 S.E.2d at 815 ("[W]e hold the burden is on the party alleging premature
deliberations to establish prejudice."). Finally, the trial court's decision on a motion
for a new trial is reviewed for an abuse of discretion. Id.

        Because premature deliberations may affect the fundamental fairness of the
trial, the affidavit and juror testimony are admissible. Accordingly, our inquiry
concerns whether the trial court abused its discretion in finding Killian's conduct did
not prejudice the Ethiers. In Aldret, we imposed the burden to prove prejudice on the
party alleging premature deliberations. Id. We did so in part because we previously
required a showing of prejudice in the context of external influences and based on
the fact that the majority of jurisdictions have imposed prejudice on internal
influences. Id. at 313–15, 509 S.E.2d at 814–15. While the burden to demonstrate
prejudice is high,3 when evidence strongly supports the fact that votes were changed

3
  The Ethiers did not challenge the trial court's use of the clear and convincing
evidence standard. Accordingly, because this issue is not properly before the Court,
as a result of a juror's impermissible conduct, we cannot countenance such a tainted
verdict.

       We have previously upheld a trial court's finding of no prejudice even when
there was direct evidence that votes were changed. Vestry & Church Wardens of
Church of Holy Cross v. Orkin Exterminating Co., 384 S.C. 441, 682 S.E.2d 489
(2009). In Vestry, a church filed suit against an exterminating company for breach
of contract after members discovered termite damage following an inspection. Id. at
443, 682 S.E.2d at 490–91. The jury returned a verdict in favor of the exterminating
company, but the trial court soon learned of potential juror misconduct. Id. at 443–
44, 682 S.E.2d at 491. As a result, the court held a hearing, where it questioned jurors
about the alleged misconduct. It became apparent that a juror violated virtually every
instruction given by the trial court. Id. For example, the juror ignored the court's
instruction not to discuss the case during the trial with anyone, including fellow
jurors. Specifically, the juror informed her fellow jurors early and often of her view
of the case, referring to the church members as "historic people" with money who
should "clean up their own mess." Id. The juror did not understand why she had to
hear both sides of the case, and she mentioned that she had consulted with a painter
about the termite damage. Stunningly, she even drove to the church to look at the
damage prior to deliberations and based on her own inspection, determined it was in
good condition. Id. The trial court actually held her in criminal contempt of court;
yet nevertheless, the court denied the church's motion for a new trial, inexplicably
finding the church was not prejudiced—a decision which this Court upheld. Id. at
445, 448–49, 682 S.E.2d at 491, 493–94. Because Vestry stands for the principle that
less than twelve fair and impartial jurors is perfectly acceptable and is an anomaly
in our jurisprudence, we overrule it.

        In many ways, Killian's behavior mirrors that of the juror in Vestry. The trial
court initially recognized the seriousness of Killian's conduct, and therefore, held an
Aldret hearing to probe the extent of her statements. At the hearing, nine jurors
testified they heard Killian state during breaks at trial that she worked at the hospital
with Bibeau and the nurses. Four jurors testified Killian vouched for the skill of all
three by stating they were "good, careful, or thorough," and if Bibeau did not take
foot pulses, then "the nurse" did. Further, four jurors noted Killian vouched for the
truthfulness and credibility of all three, asserting Killian informed the jury during
breaks that if they "said they did something, they did it."


we leave for another day the standard of proof to be applied when determining
whether a party has suffered prejudice as a result of alleged juror misconduct.
       Despite this testimony, Killian denied discussing the case prematurely and
noted her relationship with Bibeau and the nurses did not impact her vote. The trial
court found Killian engaged in premature deliberations, but it concluded the Ethiers
failed to prove the requisite prejudice in order to grant a new trial. While we
commend the trial court for its thorough post-trial evidentiary hearing, it is clear
Killian's conduct severely hampered the fundamental fairness of the trial, and that
the circumstances here demonstrate prejudice. Carmichael testified that Killian's
comments directly affected her vote, as she initially believed Bibeau was more
negligent. Indeed, in response to the court's prejudice inquiry, Carmichael stated,

      Carmichael: Because when we got back there . . . several of us was
      leaning towards in favor of [Philip Ethier] and she kept on repeating the
      reputation and some of the jurors changed their minds and left only two
      of us with [Philip Ethier], and basically was like, well, if she worked
      with [Bibeau] and she knew that he was a good doctor . . .

      The Court: Okay, so it did have some effect on your ultimate decision?

      Carmichael: Yeah. She stated several times that she knew him and he
      was a good, reliable doctor.

       Killian's intentional disregard of the trial court's repeated instructions not to
engage in premature deliberations directly affected the verdict. Killian discussed
matters that were not introduced as evidence, and bolstered other evidence that had
been admitted. Further, Killian's conduct is egregious, as she repeatedly discussed
the case after being instructed not to do so. Aldret, 333 S.C. at 311, 509 S.E.2d at
813 (holding premature deliberations may affect the fundamental fairness of a trial
in part because the Court has "routinely held instructions which invite jurors to
engage in premature deliberations constitute reversible error"). Moreover, the
content of her statements is equally troubling, as it concerns the most hotly disputed
fact at trial—whether Bibeau checked Ethier's foot pulses. Ethier's expert testified
his symptoms presented a classic indication of a vascular issue, which a simple check
of his foot pulse would have revealed, and the medical forms do not indicate these
pulses were taken. In essence, Bibeau received the benefit of having a character
witness on the jury who could attest to his skill without being subjected to cross-
examination. This benefit is not speculation, as Killian directly affected
Carmichael's vote. Although we have been reluctant to reverse a trial court's denial
of a motion for a new trial based on juror misconduct, Killian's disregard of her oath,
with resulting prejudice, heightens the error and necessitates the step we take here.
       Because we find this issue dispositive, we decline to address the Ethiers'
remaining issues.4 Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598,
613, 518 S.E.2d 591, 598 (1999) (noting an appellate court need not address
additional arguments after reaching a dispositive issue). While we do not reach the
effect of Philip Ethier's negligence on his wife's consortium claim, we do note that
South Carolina has historically aligned itself with the minority of jurisdictions which
hold a loss of consortium claim and the underlying negligence action are two
separate claims. Lee v. Bunch, 373 S.C. 654, 647 S.E.2d 197 (2007) ("In South
Carolina, claims for personal injuries and for loss of consortium are separate and
distinct."). However, the majority of jurisdictions recognize that a spouse's
negligence reduces the damages award for loss of consortium. See Tuggle v. Allright
Parking Sys., Inc., 922 S.W.2d 105, 108–09 (Tenn. 1996) ("The clear majority of
jurisdictions…hold that a loss of consortium award must be reduced, and may be
barred, by the comparative fault of the physically injured spouse."). We do not reach
this issue today because the juror misconduct infected both actions, and a new trial
as to both claims is warranted.

                                   CONCLUSION
       We reverse the court of appeals' decision and remand for a new trial as to all
of the Ethiers' claims.

REVERSED AND REMANDED.

BEATTY, C.J., KITTREDGE, FEW, JJ., and Acting Justice James Edward
Lockemy, concur.




4
  The Ethiers also contended the trial court erred in failing to grant a new trial based
on juror concealment when Killian did not disclose during voir dire her working
relationship with Bibeau and the two nurses, and it erred in barring recovery for
Wife's loss of consortium claim when the jury found her husband 70% at fault.
