                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    August 18, 2005 Session

             GILBERT WATERS, ET AL. v. WESLEY COKER, M.D.

                      Appeal from the Circuit Court for Davidson County
                          No. 01C-1443     Hamilton Gayden, Judge



                     No. M2004-01540-COA-R3-CV - Filed June 29, 2006


Plaintiff in medical malpractice action appeals jury verdict alleging that the “dynamite charge” which
supplemented the original instruction after the jury was apparently deadlocked violated Kersey v.
State and its progeny. We agree and, because we find the instruction affected the result, we reverse.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                 Reversed and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J.,
M.S., and WILLIAM B. CAIN , J., joined.

Robert L. Trentham, Taylor B. Mayes, Nashville, Tennessee, for the appellant, Wesley Coker, M.D.

Larry D. Ashworth, Richard H. Batson II, Nashville, Tennessee, for the appellees, Gilbert Waters
and wife, Hixie Waters.

                                             OPINION

       Plaintiffs, Gilbert and Hixie Waters, filed suit against numerous defendants seeking to
recover for injuries Mr. Waters sustained during surgery. Initially, plaintiffs named the hospital, the
anesthesiologist, the nurse anesthesiologist and the anesthesiology practice group involved in the
surgery as defendants. The surgeon, Dr. Coker, was named later. During the course of the
proceedings, all defendants except Dr. Coker were dismissed.

        The case proceeded to trial against Dr. Coker, an orthopedic surgeon, for medical
malpractice. In May of 2000, according to plaintiffs, Dr. Coker performed surgery on Mr. Waters
to repair a ruptured disk in his back, a lumbar laminectomy. It was anticipated that after the surgery,
Mr. Waters, a healthy 67 year-old, would be able to return to work. Instead, Mr. Waters suffered
brain damage. Plaintiffs maintain that Mr. Waters’ injuries were caused by medication given Mr.
Waters by Dr. Coker during surgery (morphine and fentanyl) in addition to those administered by
the anesthesiologist. Dr. Coker, on the other hand, denied fault and believed that Mr. Waters’
injuries resulted from a series of strokes.

        After a two week jury trial, a verdict was returned for Dr. Coker. Dr. Coker appealed the trial
court’s refusal to award him discretionary costs. Subsequently, the plaintiffs appealed, raising
several grounds for reversal including the trial court’s denial of their motion to amend the complaint
to include informed consent, erroneous jury instructions, and error in giving a portion of the jury
instructions outside the presence of counsel and the parties. The ground raised by plaintiffs that we
find dispositive, however, pertains to the supplemental charge which was given by the judge after
the jury began deliberations and after it informed the judge it was deadlocked.

                          I. THE SUPPLEMENTAL INSTRUCTION HEREIN

        The record reflects that a day and a half after the jury had retired to deliberate, the jury
foreman wrote a note to the trial judge advising the court that the jury was deadlocked. The note
given stated: “The jury in the case of Gilbert Waters and Dr. Coker has reached an impasse with a
vote of eleven to one.” The trial court accepted the note and, with the jury out of the courtroom,
advised the parties and their counsel of the division, then read the note in open court.

        After a discussion with counsel, both parties agreed for the court to give a “dynamite charge.”
When the jury was brought back into the courtroom, the judge did not give the jury the instructions
about deliberations and the duty of the jury that had been contained in the original instructions.
Instead, the court gave the jury the following instructions:

       Okay. Ladies and gentlemen of the jury, the foreperson has informed me that you are
       presently hung up at eleven to one. Now, what I’m going to do, since lunch has been
       ordered at a quarter to 12:00, is I’m going to ask you to continue to deliberate at least
       through lunch. If all 12 of you are in the jury room eating lunch, you may talk about
       the case while your eating.

       Remember this, that don’t give up your convictions merely for the purpose of
       reaching a verdict. However, also remember that this was an expensive proceeding
       on both sides; very expensive, as you can imagine, bringing doctors from different
       parts of the country and having discovery depositions, the lawyer’s time. And,
       unfortunately, in Tennessee, we don’t have a majority verdict or eight to three verdict
       as they do in some states, or nine to two.

       So none of us know who - how you’re voting. But I want the person to search their
       conscience. If they feel like that they can equally come to a position with the other
       twelve, to do that. Other eleven. But, again, don’t give up your convictions, but do
       remember that the case will have to be tried all over again, and that’s something I
       hope you will consider.



                                                 -2-
       So I’ll excuse you to go eat lunch and come back. And as I said, nobody knows how
       that eleven-one is, and that’s good. We’ll leave it just like that.

       Okay. You may be excused.

       After the jury left the courtroom, the judge asked the attorneys if there were any objections
to “my dynamite lunch charge.” The record shows no objections were made. Later that day, the jury
rendered its unanimous verdict for Dr. Coker.

                                II. THE LAW OF “DYNAMITE” CHARGES

        The term “dynamite charge” generally refers to a charge given the jury after deliberations
have begun and when it appears the jury is deadlocked. The colloquialism arises from the intended
effect to break the deadlock so that the jury reaches a unanimous decision. An examination of
caselaw on the subject reveals that in Tennessee both the meaning and legal parameters of the
“dynamite charge” have evolved.

        In Simmons v. State, 281 S.W.2d 487 (Tenn. 1955), the Tennessee Supreme Court approved
a supplemental charge that allowed jurors to be instructed to give heed to the opinions of their fellow
jurors. The charge approved in Simmons was Tennessee’s version of the dynamite charge approved
by the United States Supreme Court in Allen v. United States, 164 U.S. 492, 501 (1896). The
supplemental charge used with a deadlocked jury is sometimes referred to as the “Allen” or
“dynamite charge.”

        In Kersey v. State, 525 S.W.2d 139 (Tenn. 1975), the Tennessee Supreme Court rejected the
charge that had been approved in Simmons and provided clear guidelines regarding supplemental
charges to deadlocked juries. In Kersey, the jury in a criminal trial reported to the court that they
were unable to reach a unanimous verdict. Id. at 140. Upon inquiry by the judge, the jury foreman
reported that the jury was deadlocked eleven to one. Id. Thereafter, the judge gave the jury what
was then called a “dynamite” or “Allen” charge which, in effect, advised dissenting jurors that they
should give heed to the majority position.1 Id. It was hoped that the “dynamite” charge “would blast
the jury into a unanimous verdict.” Id.

        In Kersey, the Supreme Court ruled that the charge previously approved in Simmons violated
the right to trial by jury. Id. at 144. The court then proceeded to provide guidance on several aspects
of charging the jury after deliberations had begun in an effort to resolve a deadlocked jury. First, the
trial courts were admonished in Kersey not to inquire about how a jury may be divided.

       Until the jury shall have reached a verdict, no one - - not even the trial judge - - has
       any right, reason or power to question the specifics of its deliberative efforts.



       1
           This was the same charge approved in Simmons. Kersey, 525 S.W .2d at 140 n.2.

                                                       -3-
Id. at 141. The Court went on to instruct trial courts to admonish juries not to disclose their division
since the “only permissive inquiry” is as to progress and whether it believes further deliberations
might be helpful. Id.

        The Court then discussed the history of the “dynamite” or “Allen” charge. The Court noted
that this issue “has tantalized the criminal defense bar, tortured the trial bench, and tormented the
appellate courts throughout the nation.” Id. at 142. The Court found as follows:

              The right of trial by jury may not be impaired or encumbered with conditions
       which, in their practical operation, may embarrass or violate the free and full
       enjoyment of the right.

               In our view the Allen charge and the Allen-Simmons charge operate to
       embarrass, impair and violate the constitutional right of trial by jury. Any undue
       intrusion by the trial judge into this exclusive province of the jury, is an error of the
       first magnitude. We recognize that the trial judge has a legitimate concern in the
       administration of justice and that he labors under a duty to lend guidance to the jury
       through instructions as to the governing principles of the law. However, when the
       effort to secure a verdict reaches the point that a single juror may be coerced into
       surrendering views conscientiously entertained, the jury’s province is invaded and
       the requirement of unanimity is diluted. We view these charges as being tantamount
       to a judicially mandated majority verdict which is impermissible under Tennessee
       law.

               Moreover, there is an inherent inconsistency in these charges in that the
       dissenters are urged to reconsider their verdict and simultaneously are reminded to
       make their decisions based upon their own convictions which they are cautioned not
       to sacrifice. They ask the dissenters to consider shifting their opinions, because the
       majority is of a different persuasion. We find no merit to any suggestion that might
       necessarily makes right. We take note of the classic lines:

                        NOR IS THE PEOPLE’S JUDGMENT ALWAYS
                        TRUE. THE MOST MAY ERR AS GROSSLY AS
                        THE FEW.

              We conclude that the interests of justice demand the rejection of the
       “dynamite” charge. Under the statutory and inherent supervisory power of this Court,
       we direct that trial courts in Tennessee, when faced with deadlocked juries, comply
       with the ABA Standards Relating to Trial by Jury, Sec. 5.4 . . . .

              The instruction contemplated in Sec. 5.4(a) may be given as a part of the main
       charge and should be given in the following form:



                                                  -4-
                       The verdict must represent the considered judgment of each
               juror. In order to return a verdict, it is necessary that each juror agree
               thereto. Your verdict must be unanimous.

                       It is your duty, as jurors, 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. Each of you must decide
               the case for yourself, but do so only after an impartial consideration
               of the evidence with your fellow jurors. In the course of your
               deliberations, do not hesitate to reexamine your own views and
               change your opinion if convinced it is erroneous. But do not
               surrender your honest conviction as to the weight or effect of
               evidence solely because of the opinion of your fellow jurors, or for
               the mere purpose of returning a verdict.

              If given as a part of the main charge, it may be repeated should a deadlock
       develop.

              Judicial economy and uniformity demand these results. Strict adherence is
       expected and variations will not be permissible.

               We hold that the charge given in this case was prejudicial.

Id. at 144-45 (internal citations omitted). To summarize, the Supreme Court in Kersey, using the
strongest possible language, gave the following guidance when providing supplemental instructions
to jurors:

       1) Jurors should be advised not to disclose how the jury may be divided;

       2) The only permissive inquiry by the court is about progress and whether further
       deliberations may be helpful;

       3) If giving supplemental instructions, the standard charge provided in Kersey must
       be given; and

       4) The Kersey supplemental charge may only be given if it was included in the main
       charge.

       In particular, the Kersey court disapproved any language that might coerce a juror into
surrendering to the majority, against his or her conscientiously-held views, for the sake of unanimity.




                                                  -5-
        While the court in Kersey said it “rejected” the dynamite charge, the term nevertheless
continues to be used informally to describe a supplemental charge given when a jury is deadlocked.
Given subsequent history, it appears more accurate to say the dynamite charge given by the trial
court in Kersey was rejected and guidance was given as to the parameters of an acceptable dynamite
charge for the future, also known as the “Kersey charge.” While the term “dynamite charge” is not
favored, it remains in common usage.

        In 1978, the Tennessee Supreme Court applied the principles of Kersey to a civil case in
Vanderbilt Univ. v. Steely, 566 S.W.2d 853 (Tenn. 1978). Mr. Steely sued Vanderbilt for injuries
he sustained when he fell down a flight of stairs at the university. Id. at 853. The issues at trial were
“hotly contested,” and the jury reported it was unable to reach a verdict after it had deliberated for
some time. Id. The judge gave a supplemental charge which varied from the charge provided in
Kersey. The charge in Steely reminded the jury of the time and expense consumed at the trial and
instructed that each juror should consider the opinion of fellow jurors and be influenced to the extent
the juror considers proper. Id. at 855-56.

         The Supreme Court in Steely found this charge violated the guidelines laid down in Kersey.
First, the supplemental charge was not the one mandated in Kersey and made reference to additional
considerations that should not play a role. Id. at 854. Second, the supplemental charge given had
not been included in the main charge. Id. Quoting Kersey, the Court found this to be “an error of
the first magnitude” and reinforced that “strict adherence to the dictate of Kersey is expected, and
variations are not permitted.” Id.

        For a charge to be reversible error, however, the erroneous charge must be found to have
affected the results of the trial. Id. The Court in Steely phrased the requirement thusly:

        An error in the charge of the judge to the jury is not grounds for reversal unless it
        affirmatively appears that the error has affected the results of the trial. T.C.A. §
        27-117. Upon a considered review of the entire record of the cause, we are of the
        opinion that the supplemental charge was a material factor in persuading the jury to
        return a verdict, and that the variation between that charge and the Kersey charge was
        a material factor in its having that effect. In particular, the charge given informed the
        jury that, should they fail to agree, a new trial would be necessary, and emphasized
        the waste of time, money, and effort that this would entail. It contains language that
        could be interpreted as implying that the jurors had a “duty” to agree. Finally, the
        entire charge was improperly emphasized by being given for the first time only after
        the jury had been deadlocked for several hours. We believe that these departures
        from the Kersey standard, when taken collectively, worked to the material prejudice
        of the petitioner.

Id. at 854.




                                                  -6-
        This court was presented with a challenge to a supplemental instruction in Bass v. Barksdale,
671 S.W.2d 476 (Tenn. Ct. App. 1984). In Bass, the plaintiff brought a medical malpractice action
claiming that due to negligent administration of ethambutol, an anti-tuberculosis drug, she lost her
sight. Id. at 478. At the close of the proof and before lunch, the jury was charged.

        Later in the afternoon, the judge called the jury back. Id. at 483. The judge asked about their
progress and was informed by the foreman that one juror was preventing a unanimous verdict. Id.
The judge then gave the jury a portion of the Kersey charge he had given in the main charge but also
went beyond Kersey when he reminded the jury that if the verdict was not unanimous then the case
must be retried and referred to a retrial as a waste of the taxpayers’ money. Id. at 484. The opinion
did not note that any objections were made to the supplemental charge.

        The court in Bass found that the judge failed to admonish the jury not to divulge its division,
and failed to give the supplemental charge laid out in Kersey. Id. at 485-86.

        While the Trial Judge committed “error of the first magnitude,” Kersey, 525 S.W.2d
        at 144, this alone is not sufficient to reverse. It must affirmatively appear that the
        error in the jury charge has affected the results of the trial. Tenn. R. App. P. 36(b);
        Vanderbilt University v. Steely, 566 S.W.2d at 854.

        We are of the opinion after a review of the record that the failure of the Trial Judge
        to give the entire Kersey charge in the main charge and then to emphasize that partial
        Kersey charge by giving it as a supplemental charge to what was perceived to be a
        “deadlocked” jury was a material factor, particularly when taken with the fact that the
        Trial Judge informed the jury “all of the time we’ve spent on the trial up until now
        has gone down the drain . . . we’d have to try the case all over again. . . . sometimes
        it seems like we’re just wasting the taxpayers’ money to come back in and spend
        another two weeks on a case that we’ve tried,” that resulted in prejudice to the
        defendants.

        Nothing should be done or said to a juror which can in any manner be taken by that
        juror to indicate that he or she should abandon an honestly held conviction in order
        to reach a verdict so that time and money will be saved.

Id. at 486.

       The Supreme Court’s position in Kersey and Steely was reaffirmed in Johnson v. Hardin,
926 S.W.2d 236 (Tenn. 1996), wherein the Court reversed a jury verdict based on failure to comply
with Kersey. Johnson, 926 S.W.2d at 242-43. In Johnson, the Court reiterated that a mistrial from
a hung jury can be a safeguard to liberty. Id. at 242.




                                                 -7-
        In many areas [a hung jury] is the sole means by which one or a few may stand out
        against an overwhelming contemporary public sentiment. Nothing should interfere
        with its exercise.

Johnson, 926 S.W.2d at 243 (quoting Kersey, 525 S.W.2d at 143). The Court in Johnson cited Bass
favorably for the principle that reference to resources expended for a trial cannot be used to
encourage unanimity in a verdict. Id.

                                            III. ANALYSIS

        Based upon the precedent set out above, we must conclude that the supplemental instructions
were error. They clearly differed from the instructions specified in Kersey and failed to follow the
format specified in Kersey and Steely. In addition, the trial court twice made reference to the time
and expense incurred for the trial, although our courts have clearly found “appeal to these irrelevant
considerations is error.” Johnson, 926 S.W.2d at 242; Steely, 566 S.W.2d at 855. An additional
damaging aspect of the instruction was the trial court’s reference to the requirement of a unanimous
verdict which could be perceived as critical of that requirement: “Unfortunately, in Tennessee, we
do not have a majority verdict.” A reasonable juror could have concluded that the trial judge was
intimating that a lone holdout juror should not prevent a verdict.

        Further, the court directly addressed the holdout juror, although it did not identify him or her,
and specifically urged that he or she attempt to come to the same position as the others and to
remember that retrial was the consequence if he or she did not. This language could have coerced
the single juror into surrendering conscientiously-held views, thereby invading the province of the
jury and diluting the requirement of unanimity. State v. Torres, 82 S.W.3d 236, 257-58 (Tenn.
2002). Harkening back to Kersey, any instruction that is “tantamount to a judicially mandated
majority verdict” is not allowed under Tennessee law. Kersey, 525 S.W.2d at 145. The Supreme
Court has repeatedly advised that “strict adherence to Kersey is expected and failure to do so is an
error of the first magnitude.” We view the charge given herein as tantamount to a judicially
mandated majority verdict.

        Since we have found that the supplemental instructions given herein violated the guidelines
set by the Supreme Court in Kersey and Steely, we must also consider whether it affirmatively
appears that the error in the jury charge has affected the results of the trial. Tenn. R. App. P. 36(b);
Steely, 566 S.W.2d at 854; Bass, 671 S.W.2d at 486. The question is whether the charge violating
Kersey was a material factor in persuading the jury to return a verdict. Steely, 566 S.W.2d at 855;
State v. Bishop, No. 02C01-9508-CC-00243, 1997 WL 122246 at *8 (Tenn. Crim. App. Mar. 19,
1997). That determination is fact-specific and must be made in view of the context and “under all
the circumstances.” Torres, 82 S.W.3d at 258 (quoting Lowenfield v. Phelps, 484 U.S. 231, 237
(1988)).




                                                  -8-
         Considering the position and influence of a presiding trial judge, there is reason to
         believe that his strong request to the jury was calculated to and did produce a verdict
         from a jury which was deadlocked. It was therefore prejudicial and not harmless.

Bervoets v. Hardy Ralls Pontiac-Olds, Inc., No. 86-169-II, 1986 WL 13502 at *12 (Tenn. Ct. App.
Dec. 3, 1986).

        Based upon the record before us, we believe the erroneous instruction was a material factor
leading to a verdict. The jury had deliberated for one and one-half days; one juror disagreed with
the others; shortly after the trial court gave the supplemental instruction, a unanimous verdict was
reached. Based on the language of and circumstances surrounding the charge, it appears to us that
the charge affected the result.

        We note that the court asked for objections to this charge and none were made.2 The request
for objections, however, was made after the charge was given and after the jury had resumed
deliberations. In this specific factual circumstance we do not find a waiver. First, any objection
would have been pointless since it would be nearly impossible to “unring the bell” after the court had
provided its thoughts on the unanimous verdict requirement. Second, the jury had already begun
deliberations based on the erroneous charge before the court asked if there were objections.
Additionally, where fundamental concepts underlying trial by jury are at stake, any waiver should
appear specifically and definitively in the record.

       Judgment of the trial court is reversed, and the case is remanded for a new trial. Costs of this
appeal are assessed against the appellant, Wesley Coker, M.D., for which execution may issue if
necessary.



                                                                ____________________________________
                                                                PATRICIA J. COTTRELL, JUDGE




         2
          In Bass, the trial court provided the opportunity for questions or objections after the erroneous charge, and
none were made. Bass, 671 S.W .2d at 484. Apparently, the appellate court in Bass did not view failure to object as
preventing reversal because of the erroneous charge.

                                                         -9-
