                                                                'JlMlt OF V,A Ct:!5!"Tr'


                                                               2013 OCT 28 miQ:3     00




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

FIKRETA CUTUK and SEJFUDIN                 )      NO. 68406-0-1
CUTUK, wife and husband,                   )

                     Appellants,           )      DIVISION ONE

       \/
       V.


                                                  UNPUBLISHED OPINION
JEFFREY F.    BRAY, M.D.,                  )

                     Respondent.           )      FILED: October 28, 2013


       Leach, C.J. — In this medical negligence case, Fikreta Cutuk and Sejfudin

Cutuk appeal the trial court's order granting Dr. Bray a new trial on all issues

based on juror misconduct.      Because the court did not abuse its discretion in

finding that the juror misconduct likely affected the outcome of the trial, we affirm.

                                       FACTS


       Dr. Jeffrey Bray misdiagnosed Fikreta Cutuk's ectopic pregnancy and

consequently removed her one healthy fallopian tube. Later, she underwent a

second surgery to remove the diseased one.           Cutuk sued Bray for medical

negligence. A jury found Bray negligent and awarded Cutuk $71,795.53.

       After trial, defense counsel interviewed several jurors, and Bray moved for

a new trial based upon juror misconduct.       Bray supported his motion with the

declarations of three jurors, two who had dissented from the verdict and the
NO. 68406-0-1 / 2




foreperson, who had agreed with the verdict. The declarations each stated that a

juror had looked up a definition of "negligence" in a dictionary, reported the

definition to the jury, and the definition was discussed during jury deliberations.

       In response, Cutuk filed declarations from six additional jurors.         Four

stated that the alleged incident did not occur, although one of them recalled

someone wishing they could use a dictionary. One stated that a juror had looked

up the definition of "negligence" and the definition was "discussed briefly by a

couple of jurors." And the sixth juror stated, "There was a juror who said he

would, or did, look up the word in a dictionary, but there was never a

conversation amongst us jurors of any definition of negligence other than the

definition provided by the court."

       After reviewing the conflicting declarations, the court found "that objective

proof has been presented to satisfy the court that in fact a juror did look up the

definition of negligence and did discuss, however briefly, that definition with the

other jurors." Reasoning that the common definitions of "negligence" generally

found in dictionaries would contradict the specialized standard in a medical

negligence case, the court concluded that the misconduct would likely affect the

jury's verdict. Because the court understood controlling case law to require a

new trial if it had any doubt that the misconduct affected the verdict, it granted

Bray a new trial. Cutuk appeals.

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                              STANDARD OF REVIEW


       The trial court has discretion to decide whether to grant a new trial.1 We

will disturb the trial court's decision only if we find a clear abuse of that discretion

or if the decision is based on an erroneous interpretation of the law.2 A court

abuses its discretion when its decision is "'manifestly unreasonable, or exercised

on untenable grounds, or for untenable reasons.'"3 We give greater deference to

a decision to grant a new trial than to a decision to deny a new trial.4

                                      ANALYSIS


       Cutuk contends that the record contains insufficient evidence to support

the trial court's finding that the alleged misconduct occurred. Alternatively, she

claims that the trial court abused its discretion when it found the misconduct

occurred without holding an evidentiary hearing.       Finally, she claims that if the

misconduct did occur, it did not clearly influence the jury's verdict.

       When a party challenges a verdict with evidence of alleged juror

misconduct through consideration of extraneous matter, the trial court must

consider two questions: (1) whether the court may even consider the evidence



       1 State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989).
       2 Jackman, 113 Wn.2d at 777.
       3 Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 203-04, 75 P.3d 944
(2003) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775
(1971)).
       4 Richards v. Overlake Hosp. Med. Ctr.. 59 Wn. App. 266, 271, 796 P.2d
737(1990).
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NO. 68406-0-1/4




and (2) whether the alleged misconduct warrants a new trial.5 To answer the first

question, the court must decide whether the alleged misconduct "inheres in the

verdict."6 Evidence that describes "[t]he mental processes by which individual

jurors reached their respective conclusions, their motives in arriving at their

verdicts, the effect the evidence may have had upon the jurors or the weight

particular jurors may have given to particular evidence, or the jurors' intentions

and beliefs,"7 inheres in the verdict.

       If the misconduct inheres in the verdict, the court may not consider the

evidence.    If the misconduct does not inhere in the verdict, the court may

consider the evidence; but not all misconduct necessitates a new trial.        Juror

misconduct only warrants a new trial when it causes prejudice.8 To evaluate
potential prejudice, the court makes an objective inquiry into whether the

misconduct could have affected the jury's decision, rather than inquiring into its

actual effect, because the actual effect inheres in the jury verdict.9 Due to the

great deference an appellate court gives to a trial court's discretionary decision to



       5Johnson v. Carbon, 63 Wn. App. 294, 302, 818 P.2d 603 (1991).
       6Johnson, 63 Wn. App. at 302.
       7 Cox v. Charles Wright Acad., Inc., 70 Wn.2d 173, 179-80, 422 P.2d 515
(1967).
       8 State v. Lemieux, 75 Wn.2d 89, 91, 448 P.2d 943 (1968); State v.
Briqqs, 55 Wn. App. 44, 55, 776 P.2d 1347 (1989); State v. Rempel, 53 Wn. App.
799, 801, 770 P.2d 1058 (1989), rev'd on other grounds, 114 Wn.2d 77, 785
P.2d 1134(1990).
       9 Richards, 59 Wn. App. at 273.
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NO. 68406-0-1 / 5




grant a new trial, Cutuk bears a heavy burden to show that the trial court's

exercise of discretion in this case was manifestly unreasonable or based upon

untenable grounds.

       To support his request for a new trial, Bray presented declarations of three

jurors, Jill Lang, Cheryl Jones, and Joanna Satterwhite. Each stated that a juror

conducted outside research and reported the results to the jury.                In her

declaration, Lang stated, "One juror looked up the definition of negligence in a

dictionary and reported the definition back to the rest of the jurors. The dictionary

definition of negligence was discussed during deliberations."

       Jones stated,

       On Tuesday morning, the third day of deliberations, . . . one juror
       reported to the group that he was struggling with what negligence
       meant and looked up the definition of negligence in a dictionary.
       He said he pulled the dictionary off his shelf at his home. He
       reported the definition back to the rest of the jurors. The dictionary
       definition of negligence was discussed during deliberations [for]
       approximately 10 minutes.

And Satterwhite described, "One juror had to look up the definition of negligence

in a dictionary and reported the definition back to the rest of the jurors. The

dictionary definition of negligence was discussed during deliberations."

       In response, Cutuk submitted declarations from six additional jurors, four

of whom declared that no one reported consulting a dictionary and the jury did

not engage in any discussion of a definition outside the scope of the evidence or

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the jury instructions. However, one juror, Eric Wiebusch, stated, "I recall that on

the beginning of the last day Juror Number 5, Jerry, stated that he had looked up

the definition of negligence in a dictionary the previous evening. I do not recall

what that definition was. It was discussed briefly by a couple ofjurors."10

       The trial court considered all nine juror declarations before it ruled on

Bray's motion.11 In his oral ruling, the trial judge stated,

       It doesn't surprise me, given the dynamics of a jury situation, that
       some jurors will hear some things and other jurors will not hear
       those same things. . . .

               ... I have at least four jurors who say it did occur. I have a
       fifth one who says, well, there was something generally like that.
       And then I have three who say they don't recall it occurring. . . .

              So bottom line, the court makes a factual finding that
       objective proof has been presented to satisfy the court that in fact a
       juror did look up the definition of negligence and did discuss,
       however briefly, that definition with the other jurors.

The record amply supports the trial judge's factual determination that Bray met

his burden to show the misconduct actually occurred.

       The trial court determined that Adkins v. Aluminum Co. of America12

required that it grant a new trial if doubt existed about whether the misconduct




       10 Notably, juror number 5, Jerry Patzer, categorically denied having
looked up the word "negligence" or sharing any definition of the word with the
other jurors.
       11 Three jurors declined to be interviewed.
       12 110 Wn.2d 128, 137-38, 750 P.2d 1257 (1988).
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NO. 68406-0-1 / 7




affected the verdict. Because the trial court concluded that the misconduct likely

affected the verdict, it ordered a new trial on all issues.

       In Adkins, the court stated,

       Where jury misconduct can be demonstrated by objective proof
       without probing the jurors' mental processes, the effect the
       improper information may have had upon the jury is a question
       properly determined in the sound discretion of the trial court. If the
       trial court has any doubt about whether the misconduct affected the
       verdict, it is obliged to grant a new trial.[13]
The Adkins court considered a very similar issue to this case. While deliberating

on a personal injury suit, the jury looked up definitions of "negligence" and

"proximate cause" in a 1933 edition of Black's Law Dictionary supplied by the

court bailiff. The Supreme Court reviewed the trial court's decision to grant a

mistrial under the abuse of discretion standard.14

       The court noted that while the dictionary definitions did not amount to new

evidence as such, they constituted extrinsic information that was not admitted as

evidence at trial or provided by the trial court.         It further noted that the Black's

Law Dictionary definitions contained legal premises not applicable to the case.15
The Supreme Court affirmed the trial court, holding that it did not abuse its




       13 Adkins, 110 Wn.2d at 137 (citation omitted).
       14 Adkins, 110 Wn.2d at 136-37.
       15 Adkins, 110 Wn.2d at 138.
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NO. 68406-0-1 / 8




discretion because it "was justified in concluding that it could not reasonably say

that the jury was not influenced by the dictionary."16
          Here, like in Adkins, the court acknowledged that the jurors' testimony

about any effect the discussion had on jury deliberations inhered in the verdict

and should not be considered by it when deciding the motion. Instead, the court

reasoned that "in all probability the misconduct would affect the verdict" because

the typical dictionary definition of "negligence," even relying on a legal dictionary,

differs substantially from the negligence definition used in a medical negligence

action.


          The trial court's decision to grant a new trial accords with Adkins. The trial

court did not know exactly what dictionary definition of negligence was reported

to the jury or what effect, if any, that report had on the jurors' deliberative

process.       The trial court made an objective assessment that the juror's

misconduct likely affected the jury's verdict and reasonably doubted that the jury

considered only the definition of "negligence" provided in the jury instructions.

The court applied Adkins correctly when it resolved its doubts against the verdict.

          Cutuk, however, contends that Adkins only applies "where the trial court is

privy to the nature of the extrinsic material considered by the jury." She argues

vigorously that the unknown elements of the jury misconduct should have been


          16 Adkins, 110 Wn.2d at 138.
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NO. 68406-0-1 / 9




fatal to Bray's motion for a new trial. Instead of relying on Adkins, she asks the

court to apply Tarabochia v. Johnson Line, Inc.,17 which she claims dictates a
different result. We find Tarabochia distinguishable.

      There, our Supreme Court reversed a trial court decision granting a new

trial where the jury conducted an experiment inside the jury room trying to

recreate the circumstances that led to the respondent's injury. The respondent

longshoreman fell into a hole between several bags of urea, a crystalline

chemical, while unloading cargo on a ship.18 The parties presented conflicting
evidence about whether urea had spilled from the bags and become wet and

slippery, thus creating the hazardous condition that led to the accident.      The

court admitted into evidence the respondent's shoes, a plastic bag like those

used to store the urea, and two samples of urea.20 The jury used these materials

to conduct an experiment, although the jurors' affidavits did not detail the exact

nature and results of that experiment. The court noted, "It is not unlikely that the

jury thought when it was given the plastic bag, the urea crystals and the shoes,

that it was being invited to conduct just such a test as it undertook."21 The
Supreme Court found that because nothing indicated the jurors obtained new


       17 73 Wn.2d 751, 440 P.2d 187 (1968).
       18 Tarabochia,   73 Wn.2d   at 752.
       19 Tarabochia,   73 Wn.2d   at 752.
       20 Tarabochia,   73 Wn.2d   at 752.
       21 Tarabochia,   73 Wn.2d   at 757 n.2.
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NO. 68406-0-1/10




material facts through their experimentation, the trial court erred by granting a

new trial.22

       Despite Cutuk's insistence that uncertainty about exactly what took place

in the jury room controls the outcome of this case, the court did not decide

Tarabochia on that basis. Instead, the court found that the party seeking a new

trial had failed to demonstrate the discovery of new material facts "which must

have influenced the verdict."23 Unlike Tarabochia, where the jurors relied only on

information already available to them inside the jury room, and like Adkins, the

jury here received extrinsic information in the form of a dictionary definition of a

legal term critical to the outcome of the case.

       Alternatively, Cutuk argues that the court erred by ruling on Bray's motion

without conducting a full evidentiary hearing before resolving the disputed facts

presented in the jurors' declarations. We disagree. Under CR 59(a)(2), the court

may grant a new trial based upon

       [mjisconduct of prevailing party or jury; and whenever any one or
       more of the jurors shall have been induced to assent to any general
       or special verdict or to a finding on any question or questions
       submitted to the jury by the court, other and different from his own
       conclusions, and arrived at by a resort to the determination of
       chance or lot, such misconduct may be proved by the affidavits of
        one or more of the jurors.




        22 Tarabochia, 73 Wn.2d at 754.
        23 Tarabochia, 73 Wn.2d at 757.
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NO. 68406-0-1/11




       Cutuk cites the Ninth Circuit's statement in United States v. Sava,24 a juror

misconduct case out of Hawaii, that "'[although it is usually preferable to hold [an

evidentiary] hearing,' it is not necessary where 'the court [knows] the exact scope

and nature of the . . . extraneous information.'" Saya does not justify finding that

the trial court abused its discretion here. The Saya court stated the current Ninth

Circuit rule:   "'An evidentiary hearing is not mandated every time there is an

allegation of jury misconduct or bias. Rather, in determining whether a hearing

must be held, the court must consider the content of the allegations, the

seriousness of the alleged misconduct or bias, and the credibility of the

source.'"25

       The trial court did that here.     In its oral ruling, the court noted the

seriousness of the allegations and the potential breach of the jurors' oath. The

judge acknowledged that he saw no evidence of juror bias and no reason to

question the credibility of the three jurors who signed declarations for Bray and

noted that even two of Cutuk's juror declarations contained statements

corroborating the misconduct allegations. The court recognized that among any

group of twelve jurors, some may hear things differently or focus on different

parts of the discussion. Therefore, it found significant objective evidence that the

       24 247 F.3d 929, 935 (9th Cir. 2001) (some alterations in original) (quoting
United States v. Halbert, 712 F.2d 388, 389 (9th Cir. 1983)).
       25 Sava, 247 F.3d at 934-35 (quoting United States v. Angulo, 4 F.3d 843,
847 (9th Cir. 1993)).
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NO. 68406-0-1/12




misconduct occurred.     Cutuk fails to demonstrate the need for an evidentiary

hearing to properly determine the salient facts.

       Cutuk acknowledges that "an evidentiary hearing is not mandated every

time there is an allegation of jury misconduct," yet she implies that the trial court

must conduct one if the parties dispute any of the facts surrounding alleged

misconduct. She cites State v. Parker26 and Halverson v. Anderson.27 In Parker,

the court noted that allegations of jury misconduct must be taken as true if they

are not denied. We reject Cutuk's asserted corollary—that if one side disputes

the allegations, then the court must conduct an evidentiary hear to resolve the

dispute. In many contexts trial courts decide disputed facts on a written record

without any evidentiary hearing.

       Halverson also involved undisputed evidence of juror misconduct and

provides no support for Cutuk's position. Cutuk cites no authority holding that a

trial court abused its discretion by resolving factual issues relating to a motion for

a new trial without an evidentiary hearing.

                                   CONCLUSION


       The court correctly resolved all doubts about the demonstrated juror

misconduct in favor of granting a new trial.       It did not abuse its discretion by




       26 25 Wash. 405, 413, 65 P. 776 (1901).
       27 82 Wn.2d 746, 752, 513 P.2d 827 (1973).
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NO. 68406-0-1/13




resolving the request for a new trial without an evidentiary hearing after receiving

conflicting evidence of misconduct. We affirm.



                                                     A#^f c-. ••/
WE CONCUR:




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                                                       GfrtJ.




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