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                                     Appellate Court                           Date: 2017.01.10
                                                                               13:07:16 -06'00'




                  Bosman v. Riverside Health System, 2016 IL App (3d) 150445



Appellate Court          AUGUST BOSMAN, as Special Administrator of the Estate of Joan
Caption                  Bosman, Deceased, Plaintiff-Appellant, v. RIVERSIDE HEALTH
                         SYSTEM d/b/a Miller Health Care Center and Riverside Senior
                         Living Center, Defendant-Appellee.



District & No.           Third District
                         Docket No. 3-15-0445



Filed                    October 6, 2016



Decision Under           Appeal from the Circuit Court of Kankakee County, No. 11-L-9; the
Review                   Hon. Kendall O. Wenzelman, Judge, presiding.



Judgment                 Reversed and remanded.



Counsel on               Michael T. Reagan, of Law Offices of Michael T. Reagan, of Ottawa,
Appeal                   and Aaron W. Rapier, of Rapier Law Firm, of Naperville, for
                         appellant.

                         Matthew A. Arnold, of Momkus McCluskey, of Lisle, for appellee.



Panel                    JUSTICE LYTTON delivered the judgment of the court, with opinion.
                         Justices Carter and Wright concurred in the judgment and opinion.
                                              OPINION

¶1      Plaintiff, August Bosman, as special administrator of the estate of Joan Bosman, appeals
     from the denial of his motion for a new trial. Plaintiff argues that the court erred in replacing a
     holdout juror with an alternate juror. We reverse and remand.

¶2                                               FACTS
¶3        In June 2011, plaintiff filed a complaint alleging that Joan Bosman suffered multiple
     necrotic pressure ulcers while she was a resident of a long-term care facility operated by
     defendant, Riverside Health System. The case proceeded to a jury trial.
¶4        The court initially advised the jury venire about the trial process and read the general
     instructions regarding the jury’s role. The court then began voir dire. The court asked the
     venire whether there was anything about the case that would prevent them from being fair and
     impartial. The 12 jurors who were later impaneled and the 2 alternates indicated that they
     would be fair and impartial. The court then asked the potential jurors if any of them had
     personally been involved in or knew someone who was involved in an incident that resulted in
     personal injuries or damages, and if the incident resulted in a lawsuit. Juror Dariel Dewit said
     that her friend had filed a lawsuit against a nursing home after her friend’s mother died from
     injuries sustained while she resided at the facility. Dewit assured the court that her prior
     experiences would not affect her ability to sit as a juror. Dewit also agreed that she would wait
     until she heard all of the evidence before reaching any opinions or conclusions, she would
     follow the law even if she disagreed with it, and she would not use sympathy, bias, or prejudice
     in reaching her verdict.
¶5        Defense counsel asked juror Dewit whether she personally had any experience receiving
     rehabilitation care or knew someone that had received care. Dewit said that she had no
     experience receiving rehabilitative care and that she could set aside her friend’s experience
     with the nursing home and decide the case on the evidence presented.
¶6        At the conclusion of voir dire, a 12-person jury was impaneled, and 2 alternate jurors were
     selected. Dewit was impaneled as a juror.
¶7        After closing arguments, the court read the jury instructions to the jury and the two
     alternate jurors. The court sent the jury to deliberate. While discussing whether to discharge
     the alternate jurors, defendant said that it would not agree to a verdict of less than 12 jurors.
     Plaintiff agreed that the alternate jurors would have to be retained if defendant was not going to
     agree to a verdict of less than 12 jurors. The court retained the alternates and admonished them
     not to have any discussion about the case. The alternates were segregated in a separate room
     during the deliberations.
¶8        During the second day of deliberations, the court received three notes from the jury. The
     first note indicated that the jury was deadlocked. According to the court, the note stated the
     issues that the jurors agreed and disagreed on and gave some indication as to the breakdown,
     which the court did not disclose. The court called the jurors and alternates into the courtroom
     and instructed them, using Illinois Pattern Jury Instructions, Civil, No. 1.05 (2011)
     (hereinafter, IPI Civil No. 1.05), that the verdict must be unanimous and that it was the jurors’
     duty “to consult with one another and to deliberate with a view to reaching an agreement, if
     you can do so without violence to individual judgment.”


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¶9          After returning to deliberations, the jury sent a second note, which the court read to the
       parties. The note indicated that the jury had continued deliberations without any change in
       result and the deliberations were devolving into argument. The court sent a responsive note
       that instructed the jury to continue to deliberate.
¶ 10        In the afternoon, the court received a third note from the jury, which the court paraphrased
       to avoid disclosing the juror’s positions on the issues. The note indicated that the jury had
       made no progress and that some individuals felt they would be coerced to sign a verdict form.
       The court brought the jury and alternates into the courtroom and read Illinois Pattern Jury
       Instructions, Civil, No. 1.06 (2011) (hereinafter, IPI Civil No. 1.06), which instructed the jury
       that if it failed to agree on a verdict, the case must be retried. The court instructed the jury to
       retire and reconsider the evidence in light of its instruction. The court then stood in recess until
       the next morning.
¶ 11        On the third day of deliberations, the court tendered copies of the three notes to the parties.
       Each of the notes was signed by the jury foreperson. The first note said:
                     “After continued deliberation there is still absolutely no progress. There is one juror
                who has explicitly clear [sic] that she will not change her position, and many of the
                other jurors on the other side are not willing to reverse themselves. The one juror has
                repeatedly stated that she’s done talking and listening, but that she will sign the verdict
                just to be done. She has explained that doing so would violate her beliefs and she would
                feel that her vote would be coerced. It is clear that no additional deliberation will
                change this result.”
       The second note said:
                     “Following your instructions we have continued deliberating without any change in
                result. However, the debate is devolving into argument and tempers are beginning to
                flare. I don’t think we can continue without violating your order not to do violence to
                others opinions.”
       The third note stated:
                     “I’m not exactly sure how to address this issue, or what the appropriate response is,
                but I feel obligated to ask. The juror who is in the minority has made it clear that she has
                a significant bias which we believe is inhibiting her ability to give fair consideration to
                the evidence and both parties. The questions used to screen jurors missed some
                significant and relevant issues. This juror has told us that she had surgery and a hospital
                stay which resulted in an infection and complications. She has stated that she cannot
                judge this situation without reference to that history. It is our considered opinion that
                her agenda is to punish the [defendant], and her stated goal is to send a message to the
                wider medical community.
                     As I said, I don’t know what, if any resolution there may be, but our jury instruction
                clearly state[s] that we cannot use prejudice or speculation, and that we must report any
                violation of these instructions. We have unanimously agreed that this juror is relying
                upon both, despite our best efforts to convince her of the impropriety of that reliance.
                Short of substituting an alternate juror this current jury will not be able to return a
                unanimous verdict.” (Emphasis in original.)
¶ 12        After a recess, plaintiff and defendant agreed that they would accept a unanimous verdict
       of 11 jurors. Defense counsel said that based upon the notes from the jury, he believed the


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       holdout juror had an undisclosed bias that put her oath in question. The court directed the
       bailiff to bring the holdout juror into the courtroom, where the court conducted a brief inquiry.
¶ 13       Juror Dewit testified that there was consensus among 11 jurors on at least one issue and she
       disagreed with these jurors. Dewit said she was unable to change her position on any of the
       issues in contention. Dewit acknowledged that she had thought about her prior experiences, but
       “that wasn’t what affected [her] decision.” Dewit told defense counsel that her vote was not
       based on a desire to send a message to the wider medical community and that she used her
       experiences to evaluate the case, as allowed by the jury instructions.
¶ 14       Following Dewit’s testimony, defense counsel asked to proceed on the parties’ agreement
       to an 11-person verdict. Plaintiff’s counsel withdrew his approval, stating “without being able
       to verify the accuracy of these statements, which we can’t do, then I don’t have authority to
       accept a unanimous verdict of eleven.” Defense counsel argued plaintiff’s qualification was
       not part of the original agreement, and he suggested polling the remaining 11 jurors to
       determine if Dewit had violated her oath. Following arguments from the parties, the court
       called the jury foreperson to testify.
¶ 15       The foreperson testified that Dewit said she had surgery, got an infection, and then blamed
       the treating hospital for her infection. Dewit was “intent that [defendant] was at fault,
       speculating on evidence that was never presented, and saying that it had to have happened
       because it happened to her.” The foreperson said that on the first day of deliberations, Dewit
       said,
                “she wanted to punish and teach them a lesson about taking care of patients. And then
                she said a few times since then that she wants to send a message to all the nursing
                homes and hospitals that they need to treat people better. And that if we give them—if
                we give the plaintiff a judgment, that that will tell that they need to do a better job.”
¶ 16       The court dismissed the foreperson, and defense counsel moved to strike juror Dewit based
       on her failure to disclose a potential bias during voir dire and subsequent issues concerning her
       credibility. Plaintiff’s counsel opposed the motion. The court excused Dewit and replaced her
       with the first alternate juror. The court then instructed the reconstituted jury to begin
       deliberations anew.
¶ 17       After the deliberations were restarted, plaintiff moved for a mistrial. The court denied
       plaintiff’s motion, finding that it had dismissed Dewit because she failed to disclose a potential
       bias against a party during voir dire.
¶ 18       After a few hours of deliberations, the reconstituted jury found for defendant. The court
       polled the jury, and each juror indicated that the verdict was representative of their vote. The
       court entered a judgment for defendant.

¶ 19                                             ANALYSIS
¶ 20       Plaintiff argues that he was denied a fair trial because the court erred in discharging a
       holdout juror and there was a reasonable possibility that the dismissal was based on the juror’s
       view regarding the sufficiency of the evidence. See People v. Gallano, 354 Ill. App. 3d 941,
       953 (2004). We find that the court erred in retaining the alternate jurors through deliberations
       and impermissibly replaced a deliberating juror with an alternate.
¶ 21       Initially, the parties dispute the standard of review. Plaintiff argues the issue is subject to
       de novo review because it involves a claim of constitutional error—plaintiff’s right to a

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       unanimous jury verdict. Ill. Const. 1970, art. I, § 13. Defendant argues the applicable standard
       is an abuse of discretion.
¶ 22       This issue is reviewed for an abuse of discretion. People v. Roberts, 214 Ill. 2d 106, 121
       (2005) (“[m]atters relating to jury selection and management are generally within the
       discretion of the trial court”); Addis v. Exelon Generation Co., 378 Ill. App. 3d 781, 792 (2007)
       (court has great discretion in determining whether to excuse a juror). An abuse of discretion
       occurs when no reasonable person would agree with the trial court’s decision. People v. Hale,
       2012 IL App (1st) 103537, ¶ 41.
¶ 23       The Code of Civil Procedure (Code) provides that one or two additional jurors may be
       impaneled to serve as an alternate. 735 ILCS 5/2-1106(b) (West 2014). The alternate jurors
       “shall replace jurors who, prior to the time the jury retires to consider its verdict, become
       unable to perform their duties.” Id. “An alternate juror who does not replace a principal juror
       shall be discharged at the time the jury retires to consider its verdict.” Id.
¶ 24       Here, the court retained the two alternate jurors through deliberations. Eventually, one
       alternate juror was called to replace a deliberating juror. Based on the plain language of section
       2-1106(b) of the Code, the retention of the alternates and replacement of a deliberating juror
       was error. Id. However, this error only warrants reversal where a party suffers prejudice.
       Roberts, 214 Ill. 2d at 120. To determine if prejudice resulted from the substitution, we
                 “consider the totality of the circumstances, including: (1) whether the alternate juror
                 and the remaining original jurors were exposed to outside prejudicial influences about
                 the case; (2) whether the original jurors had formed opinions about the case in the
                 absence of the alternate juror; (3) whether the reconstituted jury was instructed to begin
                 deliberations anew; (4) whether there is any indication that the jury failed to follow the
                 court’s instructions; and (5) the length of deliberations both before and after the
                 substitution.” Id. at 124.
¶ 25       The juror substitution at issue resulted from a deadlock in deliberations. In an attempt to
       resolve the deadlock, the court initially instructed the jury to continue its deliberations, and
       later, it instructed the jury that the case would be retried if the jury failed to reach a verdict. See
       IPI Civil Nos. 1.05, 1.06. Despite these instructions, the foreperson sent out a third note that
       indicated the jury remained deadlocked potentially due to Dewit’s undisclosed bias. At this
       point, the court had two options: (1) instruct the jury to continue deliberating, or (2) declare a
       mistrial. Gallano, 354 Ill. App. 3d at 954.
¶ 26       Instead of utilizing one of these options, the court conducted an inquiry into Dewit’s
       alleged bias. Plaintiff was prejudiced by this inquiry. The remaining 11 jurors had formed
       opinions about the case through the course of several votes, and they were then exposed to the
       outside influences of the juror inquiry, which suggested to them the reason for Dewit’s
       eventual replacement. The inquiry also disclosed the jury’s deliberations to the parties. See
       Roberts, 214 Ill. 2d at 124. Therefore, we find the court abused its discretion when it replaced
       Dewit with an alternate juror after deliberations had already begun.

¶ 27                                         CONCLUSION
¶ 28       The judgment of the circuit court of Kankakee County is reversed and the cause remanded.

¶ 29       Reversed and remanded.


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