                     IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2006-CA-01696-SCT

BOBBIE JOHNSON

v.

ST. DOMINICS - JACKSON MEMORIAL
HOSPITAL


DATE OF JUDGMENT:                            06/14/2006
TRIAL JUDGE:                                 HON. BOBBY BURT DELAUGHTER
COURT FROM WHICH APPEALED:                   HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      HIAWATHA NORTHINGTON, II
ATTORNEYS FOR APPELLEE:                      SHARON F. BRIDGES
                                             JOHN E. WADE, JR.
                                             JONATHAN R. WERNE
NATURE OF THE CASE:                          CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                                 AFFIRMED - 10/25/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE WALLER, P.J., EASLEY AND CARLSON, JJ.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Bobbie Johnson filed suit against St. Dominic-Jackson Memorial Hospital (“St.

Dominic”) alleging the negligence of its nurse in administering a shot which caused necrosis

in an area of her soft tissue and, after treatment, left a scar and caused her pain and suffering.

The Circuit Court of the First Judicial District of Hinds County entered judgment in favor

of St. Dominic, consistent with the jury’s verdict, from which Johnson now appeals. Having

found sufficient evidence to support the verdict of the jury and determined that the trial judge
properly did not reconvene the jury after receipt of an ex parte communication from a juror,

we affirm.

                                          FACTS

¶2.    While recovering from gallbladder surgery at St. Dominic, Johnson began to

experience nausea and vomiting. Her doctor prescribed 25 mg. of phenergan to be given by

intramuscular injection. A nurse administered the injection. Sometime thereafter, the tissue

around the injection site became inflamed and ultimately necrotic, requiring debridement of

the area and skin grafting. The skin grafting and debridement left a visible scar, and,

according to Johnson, the entire incident caused pain and suffering.

                                      DISCUSSION

I.     WHETHER THE TRIAL COURT ERRED BY DENYING BOBBIE
       JOHNSON’S MOTION FOR JUDGMENT NOTWITHSTANDING THE
       VERDICT, OR IN THE ALTERNATIVE, FOR A NEW TRIAL.

       A.     Motion for Judgment Notwithstanding the Verdict.

¶3.    The standard of review for denial of a motion for judgment notwithstanding the

verdict (JNOV) is de novo as to the law applied by the trial court judge as well as the

evidence presented during trial. The legal sufficiency of the evidence, and not the weight of

the evidence, is tested in a motion for JNOV. White v. Yellow Freight Systems, Inc., 905

So. 2d 506, 510 (Miss. 2004) (citing Tharp v. Bunge Corp., 641 So. 2d 20, 23 (Miss. 1994)).

“If there is substantial evidence in support of the verdict we will affirm the denial of the

JNOV.” Natchez Elec. Supply Co. v. Johnson, 2007 WL 2495311 *1, *3 (Miss. Sept. 6,

2007). “‘Substantial evidence’ is information of such quality and weight that reasonable and

fair-minded jurors in the exercise of impartial judgment might have reached different

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conclusions.” Id. at *4. All evidence must be viewed by this Court in a light most favorable

to support the verdict. Canadian Nat’l/Ill. Central R. Co. v. Hall, 953 So. 2d 1084, 1089

(Miss. 2007); Natchez Elec. & Supply Co., 2007 WL 2495311 at *4.

¶4.    The basis of Johnson’s claim is that St. Dominic was negligent, through its nurse

Kattie Minor, by using the wrong length needle and failing to utilize the “z-track” method 1 ,

in administering the phenergen injection to Johnson, which resulted in a wound, further

medical treatment, and ultimately a permanent scar.

¶5.    Nurse Minor initially stated during her deposition that she used a one-inch needle.

At trial, she testified that her deposition testimony was incorrect and she actually used a one-

and-one-half-inch needle. St. Dominic provided testimony that a one-and-one-half-inch

needle was the standard of care and the only size needle dispensed on that unit.

¶6.    As to Johnson’s second substantive allegation that no jury could have found that the

z-track injection method was unnecessary, Johnson’s expert testified that even if the nurse

in question had used the z-track technique advocated by Johnson, the patient could not have

been assured a different outcome. Further, Johnson’s expert could point to no literature that

set forth a directive that specifically stated that phenergan should be administered using the

z-track method. St. Dominic’s expert provided evidence that the drug manufacturer did not

specify use of the z-track technique in the administration of its product, phenergan. St.

Dominic’s expert testified that the z-track method was not the standard of care for

intramuscular phenergan injections.



       1
       The z-track method involves moving the superficial tissue aside with one hand while
administering the injection at an angle with the other hand.

                                               3
¶7.    This Court cannot reverse the judgment on the ground that insufficient evidence exists

to support a jury verdict relative to the length of the needle or the method of administering

the injection. We find that sufficient testimony supported the jury’s verdict for St. Dominic.

       B.     Motion for a New Trial.

¶8.    The standard of review on a motion for a new trial is abuse of discretion. Steele v.

Inn of Vicksburg, Inc., 697 So. 2d 373, 376 (Miss. 1997). The weight of the evidence,

rather than the legal sufficiency, is tested in a motion for a new trial. “When reviewing a

denial of a motion for a new trial based on an objection to the weight of the evidence, we will

only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that

to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So. 2d

836, 844 (Miss. 2005) (citing Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)); see Lift-

All Co. v. Warner, 943 So. 2d 12, 15 (Miss. 2006). Our role of reviewing a challenge to the

weight of the evidence is that of a thirteenth juror.2 Bush v. State, 895 So. 2d at 844.

¶9.    The evidence reviewed, however, ought to be weighed in the light most favorable to

the verdict. Herring v. State, 691 So. 2d 948, 957 (Miss. 1997). “[I]f the jury verdict is

supported by the substantial weight of the evidence, it should not be set aside.” Lift-All Co.

v. Warner, 943 So. 2d at 15. “This Court shall reverse a trial judge’s denial of a request for


       2
        As we noted in Bush, this Court has “specifically disclaimed any role as the
‘thirteenth juror’ in the context of granting a new trial on the issue of damages, Patterson
v. Liberty Associates, L.P., 910 So. 2d 1014, 1022 (Miss. 2004), as well as when we review
a motion for judgment notwithstanding the verdict, Allen v. Mac Tools, Inc., 671 So. 2d
636, 646 (Miss. 1996). However, when the trial court (and subsequently the appellate court)
reviews a verdict that is alleged to be against the overwhelming weight of the evidence, this
presents a distinctive situation which necessitates the court sitting as a ‘thirteenth juror.’”
Bush v. State, 895 So. 2d at 844, n.2.

                                              4
new trial only when such denial amounts to a [sic] abuse of that judge’s discretion.” Steele

v. Inn of Vicksburg, Inc., 697 So. 2d 373, 376 (Miss. 1997) (quoting Shields v. Easterling,

676 So. 2d 293, 298 (Miss. 1996) (further quoting Bobby Kitchens, Inc. v. Miss. Ins. Guar.

Ass’n, 560 So. 2d 129, 132 (Miss. 1989)).

¶10.   A jury’s verdict is given great deference by this Court, and “conflicts of evidence

presented at trial are to be resolved by the jury.” Lift-All Co. v. Warner, 943 So. 2d at 1;

Blossman Gas, Inc. v. Shelter Mut. Gen. Ins. Co., 920 So. 2d 422, 426 (Miss. 2006);

Venton v. Beckham, 845 So. 2d 676, 687 (Miss. 2003) (citing Jackson v. Griffin, 390 So.

2d 287, 289 (Miss. 1980)). Only if the plaintiff makes a strong case for error by the trial

court is this Court free to reverse the trial court’s denial of a motion for a new trial. The

verdict must be contrary to the substantial weight of the evidence in order to warrant a

reversal of the verdict and a new trial. Blossman Gas, Inc. v. Shelter Mut. Gen. Ins. Co.,

920 So. 2d at 424. This verdict does not, as in Blossman, shock the conscience or rest on

a complete lack of evidence. Id. at 426-27.

¶11.   The jury was free to accept or reject any or all of the testimony and evidence

presented. The jury chose to accept the testimony that supported St. Dominic and rendered

a verdict in its favor. This Court finds that the overwhelming weight of the evidence is not

contrary to the jury’s verdict for St. Dominic. A reversal of the judgment denying Johnson’s

motion for a new trial is not warranted.

¶12.   St. Dominic has set forth substantive evidence to counter every element of plaintiff’s

prima facie case, thus providing a credible basis for the jury to render a verdict in favor of

St. Dominic, which is the legal standard of sufficiency and weight that is required of it. This

                                              5
being the case, this issue is without merit. This Court will not disturb the jury verdict in

favor of St. Dominic; the jury’s verdict for the defense will stand; and the trial court’s denial

of Johnson’s motion for JNOV, or in the alternative, for a new trial, is hereby affirmed.

II.    WHETHER THE TRIAL COURT ERRED IN FAILING TO
       RECONVENE THE JURY TO DETERMINE ITS TRUE VERDICT.

¶13.   The second claim of error we address is whether the trial court erred in denying

Johnson’s request to reconvene the jury to determine its true verdict. Johnson contends that

an electronic communication sent by the jury foreman to the circuit court judge after the trial

raised proper questions that required the trial court to reconvene the jury. St. Dominic argues

that jurors may not be heard to impeach their own verdict. The trial court held the ex parte

jury communication to be improper and denied Johnson’s request to reconvene the jury as

incompetent and inadmissible.

¶14.   The circuit court judge received the following email after the trial:

              Judge DeLaughter, my name is . . . . I recently served as
              foreman for the jury in one of your court cases, “Bobbie
              Johnson vs. St. Dominic-Jackson Memorial Hospital”. [sic] The
              experience was great and memorable as it was my first jury duty
              assignment.

              This letter’s purpose is to request your follow-up review to the
              last Court’s instruction to the jury. I believe that justice was
              served, but my conscience wants me to make sure that the jury
              was not swayed on a misinterpretation.

              In one of the initial instructions, I believe #10, I believe it read
              in the below manner for the 1 st charge for the jury: (a) To
              determine that the needle length in question was not the right
              size OR (b) that the Z-track method should have been used.
              This clearly is an either – or scenario.




                                               6
             Upon your last court instruction to the jury (in response to the
             jury’s last question), we the jury translated those guidelines as
             not an “OR” situation anymore, but as an “AND” situation
             meaning the following:

             Determine (1), then if you believe (1), determine (2) and then if
             you believe (2), then determine 3. In other words, the path to
             (3) was (1) And (2) And (3). And anything otherwise, we must
             return a verdict for the defendant. This final instruction was a
             tremendous swing vote mechanism; thus, I wanted to be diligent
             by writing you this letter ...that is probably a bit late.

             If you feel that the jury interpreted the instructions properly,
             then justice was indeed served. If not, then I’m not sure what is
             the next step; however, I do feel that the first step was to notify
             you of the “possible” misinterpretation.

             Again, I am not sure that there was a misinterpretation, as 12
             jurors interpreted the exact same thing; that the path to (3) was
             (1) And (2) And (3). Only you can decide whether or not there
             was misinterpretation on anyone’s part. Normally when my
             conscience shows me something like this, then I at least have to
             look into it (or in this case, I’m requesting that you do).

             Regards,
             [Jury foreman]

¶15.   Inquiries into the validity of verdicts are governed by Rule 606(b) of the Mississippi

Rules of Evidence, which provides that a juror may not impeach a verdict by using thought

processes or discourses which may have contributed to a verdict.

             Upon an inquiry into the validity of a verdict or indictment, a
             juror may not testify as to any matter or statement occurring
             during the course of the jury’s deliberations or to the effect of
             anything upon his or any 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, except that a juror may testify on the question
             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. Nor may his


                                             7
              affidavit or evidence of any statement by him concerning a
              matter about which he would be precluded from testifying be
              received for these purposes.

Miss. R. Evid. 606(b) (emphasis added).

¶16.   Rule 606(b) has been interpreted by this Court as prohibiting consideration of any

evidence from a juror by affidavit or any other form of communication that would invite the

Court to examine the deliberations of a jury. Gladney v. Clarksdale Beverage Co., Inc., 625

So. 2d 407, 412 (Miss. 1993).

¶17.   Johnson argues that the verdict announced by the jury after the trial does not represent

the true verdict of the jurors. She cites Martin v. State in support of her request to reconvene

the jury. Martin v. State, 732 So. 2d 847 (Miss. 1998). In Martin, we held that a trial court

has the authority to determine whether or not a clerical error has occurred when the jury

verdict was rendered, as well as the authority to correct any such error. Id. at 854-55. The

jurors in Martin believed they were finding the defendant guilty of a misdemeanor charge

of marijuana possession, and not guilty of a felony charge of morphine possession. The

confusion was a result of a mistake as to what constituted the charges in Count I and what

constituted the charges under Count II of the indictment; consequently, the verdict rendered

was not what the jury had intended. Id. at 848.

¶18.   While Martin does stand for the proposition that a very narrow exception may be

found when a jury votes and agrees on a verdict that is at variance with the verdict rendered,

we strongly cautioned that such an exception is severely limited to those few-and-far-

between cases where the facts are closely aligned with Martin. Id. at 854. This Court

further limited our holding in Martin by adopting the footnote in Robles that set forth the

                                               8
meaning of clerical error in a jury verdict. Id. (referencing Robles v. Exxon Corp., 862 F.2d

1201 (5th Cir. 1989)). The situation addressed by the footnote in Robles and adopted by this

Court in Martin is in line with the facts of the case sub judice. Johnson fails to point to any

exception that would allow this Court to inquire into this jury verdict.

               The category of “clerical” errors . . . can be understood to refer
               only to discrepancies between the verdict delivered in court and
               the precise verdict physically or verbally agreed to in the jury
               room, not to discrepancies between the verdict delivered in court
               and the verdict or general result which the jury testifies it
               “intended” to reach.
Id. at 1208.

¶19.   Public policy does not support an attack on jury verdicts on the grounds of a supposed

need to determine how the jury deliberated or what the jury was thinking. Robles, 862 F.2d

at 1205. We must protect our jurors against harassment after they have rendered a verdict,

insure the finality of their verdicts, and strive to avoid manipulation of a verdict by

disgruntled ex-jurors. Robles, 862 F.2d at 1206 (citing Peveto v. Sears, Roebuck & Co., 807

F.2d 486, 489 (5th Cir. 1987)). The doctrine of res judicata must be honored. As the Senate

Judiciary Committee noted, “Jurors will not be able to function effectively if their

deliberations are to be scrutinized in post-trial litigation. In the interests of protecting the

jury system and the citizens who make it work, rule 606 [of the Federal Rules of Evidence]

should not permit any inquiry into the internal deliberations of the jury.” Robles, 862 F.2d

at 1205 (citing S. Rep. No. 93-1277, 93d Cong., 2d Sess. 13-14 (1974)). The United States

Supreme Court has long held that an individual attack on a jury verdict is unwise. McDonald

v. Pless, 238 U.S. 264, 267 (1914). Mississippi law is wholly consistent with this line of

reasoning and will not be disturbed.

                                               9
¶20.   Speculation as to how the jury did or did not interpret its instructions is not a question

properly before this Court, being precluded by Mississippi Rules of Evidence, common law,

and the overarching principles of res judicata. The email a juror sent to the circuit court

judge after the trial concluded indicated that the jury may have misinterpreted an instruction.

Such a concern does not, as Johnson claims, represent that the jury verdict was not rendered

as intended.

¶21.   Indeed, the email indicates that the foreman believed it was possible there was a

misinterpretation, a speculation that is impermissible under Rule 606(b) of the Mississippi

Rules of Evidence. Rule 606(b) bars testimony by jurors to impeach a verdict regarding “any

matter or statement occurring during the course of the jury’s deliberations or to the effect of

anything upon his or any other juror’s mind or emotions as influencing him.” Miss. R. Evid.

606(b).

¶22.   Our law is well-settled on this point -- jurors may not impeach their own verdicts on

the basis of their mental processes or deliberations. Puckett v. State, 879 So. 2d 920 (Miss.

2004) (quoting Lewis v. State, 725 So. 2d 183, 189 (Miss. 1998) (citing Fairman v. State,

513 So. 2d 910, 915-16 (Miss. 1987)).

¶23.   Johnson’s request to reconvene the jury is improper and without merit on public

policy grounds, the overarching doctrine of res judicata, the Mississippi Rules of Evidence,

and case law. The trial court’s judgment denying Johnson’s request to reconvene the jury

is affirmed, and the jury verdict stands as rendered.

                                       CONCLUSION




                                              10
¶24.   The circuit court was correct in denying Johnson’s motion for judgment

notwithstanding the verdict, or in the alternative, for a new trial. The record reflects

sufficient evidence to sustain the jury verdict, a verdict that is not against the overwhelming

weight of the evidence. Therefore, the circuit court’s judgment denying Johnson’s motion

for JNOV, or in the alternative, for a new trial, is affirmed. Further, the circuit court was

correct in denying Johnson’s request to reconvene the jury as improper and without merit.

Therefore, the circuit court’s denial of Johnson’s request to reconvene the jury is affirmed.

¶25.   AFFIRMED.

     SMITH, C.J., DIAZ, P.J., EASLEY, CARLSON, DICKINSON, RANDOLPH
AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.




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