                     IN THE COURT OF APPEALS OF IOWA

                                  No. 18-2213
                             Filed March 18, 2020


BERNICE LINN and HOWARD LINN,
     Plaintiffs-Appellants,

vs.

NORTH IOWA ANESTHESIA ASSOCIATES, P.C., MICHAEL QUALEY, M.D.,
MERCY HEALTH SERVICES d/b/a MERCY MEDICAL CENTER-NORTH IOWA,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Colleen

Weiland, Judge.

      Plaintiffs appeal the district court’s denial of their motion for new trial

following a jury verdict in favor of the defendants. AFFIRMED.



      Amanda M. Bartusek and Bruce H. Stoltze of Stoltze & Stoltze, PLC, Des

Moines, for appellants.

      Jeffrey R. Kappelman and Frederick T. Harris of The Finley Law Firm, P.C.,

Des Moines, for appellees North Iowa Anesthesia Associates, P.C. and Michael

Qualey, M.D.

      Desirée A. Kilburg and Connie M. Alt of Shuttleworth & Ingersoll, P.L.C.,

Cedar Rapids, for appellee Mercy Health Services Iowa Corp. d/b/a Mercy Medical

Center-North Iowa.



      Heard by Vaitheswaran, P.J., and Doyle and May, JJ.
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VAITHESWARAN, Presiding Judge.

       Bernice Linn and her husband Howard Linn filed a medical malpractice

action against Dr. Michael Qualey, North Iowa Anesthesia Associates, P.C., and

Mercy Medical Center (the defendants). The Linns alleged that Bernice was

scheduled for “a right total knee replacement” at Mercy, where she received pre-

operative anesthesia services and, in particular, a “right leg femoral nerve block.”

They asserted that, “[w]ithin about one minute,” Bernice had a seizure and went

into “cardiac and respiratory arrest,” requiring extended acute care and

rehabilitation. In their view, the defendants “were negligent in the treatment and

care of” Bernice.

       The case was tried to a jury, which quickly returned a verdict in favor of the

defendants. The Linns moved for a new trial. The district court denied the motion,

and this appeal followed.

       The Linns argue (1) the jury committed misconduct by failing “to deliberate”;

(2) the jury committed misconduct by discussing “the facts, evidence, and

witnesses throughout their breaks during the trial”; (3) the district court erred in

failing to “continue to remind jurors of their admonition” not to converse with each

other; (4) the district court erred in “refus[ing] to poll the jury”; and (5) the district

court should have granted their motion for mistrial based on defense counsel’s

comments in opening statements.

I.     Failure to Deliberate

       The Linns contend “[t]he matter was submitted to the jury and approximately

fifteen (15) minutes later, the jury returned a verdict finding in favor of the

defendants.” In their view, the length of deliberation mandated a new trial. Mercy
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counters that the Linns “failed to make an adequate record or seek the appropriate

relief” and, accordingly, did not preserve error.

       We disagree with Mercy’s error preservation concern. See 33 Carpenters

Constr., Inc. v. State Farm Life and Cas. Co., ___ N.W.2d ___, ___ (Iowa 2020)

(“It is a fundamental doctrine of appellate review that issues must ordinarily be both

raised and decided by the district court before we will decide them on appeal.”)

(quoting Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)). The Linns

challenged the length of deliberations, discussed the issue with the court and

opposing counsel, and obtained an on-the-record ruling. Error was preserved, and

we proceed to the merits. Our review of the court’s ruling is for an abuse of

discretion. See Fry v. Blauvelt, 818 N.W.2d 123, 128 (Iowa 2012) (“If the motion

[for new trial] is based on a discretionary ground such as misconduct it is reviewed

for an abuse of discretion.” (citation omitted)); cf. State v. Christensen, 929 N.W.2d

646, 677 (Iowa 2019) (declining to decide whether to review juror-misconduct

claims for an abuse of discretion or de novo).

       The district court noted that the case was submitted to the jury at 3:48 p.m.

and “the speed” with which the jury returned the verdict was “quite stun[ing].”

Nonetheless, the court declined to find a lack of deliberation or permit juror

questioning about the length of deliberations, reasoning that the process could

have been as simple as “we choose a foreperson, we take a vote, if we’re all on

the same page, there’s not much more to talk about.”

       “The general rule, with very few exceptions, is that ‘shortness of time taken

by a jury in arriving at its verdict has no effect upon the validity of the verdict either

in civil or criminal cases.’” Lappe v. Blocker, 220 N.W.2d 570, 574 (Iowa 1974)
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(quoting 53 Am. Jur. Trial § 908, at 107 (Supp. 1973)). Although the deliberation

period in this case was short, “Iowa law does not prescribe a minimum period for

deliberation except with less-than-unanimous civil verdicts.” Id.; see Iowa R. Civ.

P. 1.931(1). The verdict in this case was unanimous.

       The court’s ruling finds support in Ives v. Swift & Co., 183 N.W.2d 172, 177

(Iowa 1971). There, a jury awarded a plaintiff damages after deliberating “less

than an hour and a half.” Ives, 183 N.W.2d at 177. The defendant argued the

verdict was the result of passion and prejudice. The supreme court concluded

otherwise, reasoning as follows:

       The short period of deliberations alone does not indicate the jury
       failed to give the case careful and thoughtful consideration. As the
       trial court said: “It is entirely possible that all of the jurors were agreed
       upon liability at the outset of their deliberations. It is further possible
       they were not far apart on the amount of their verdict.”

Id. The district court adopted the same rationale here. We discern no abuse of

discretion in the court’s ruling.

II.    Jury’s Pre-Deliberation Discussions

       The Linns contend the jurors impermissibly discussed the case before

formally beginning deliberations.         They cite conversations their attorneys’

paralegal had with several jurors, conversations the paralegal memorialized in an

affidavit filed with the court.       They characterize the discussions as juror

misconduct.

       Iowa Rule of Civil Procedure 1.927(1) states:

              A jury once sworn shall not separate unless so ordered by the
       court, who must then advise them that it is the duty of each juror not
       to converse with any other juror or person, nor be addressed on the
       subject of the trial; and that, during the trial it is the duty of each juror
                                        5


      to avoid, as far as possible, forming any opinion thereon until the
      cause is finally submitted.

The district court considered the paralegal’s affidavit in ruling on the new trial

motion. The court found the jury engaged in pre-deliberation discussions with each

other but concluded there was no prejudice.

      We assume without deciding that the jurors conversed with each other

about the case before formal deliberations began.1 Conversations alone do not

warrant a new trial. Violation of rule 1.927(1) is a “technical defect in procedure

which does not call for a reversal unless it appears prejudice has in some way

resulted to the complaining party.” State v. Wallace, 152 N.W.2d 266, 268 (Iowa

1967); see also Christensen, 929 N.W.2d at 674 (“Our traditional cases emphasize

that in order for a new trial to be granted based on jury misconduct, it must be

shown that the misconduct influenced the jury in reaching its verdict.”). The Linns

made no showing of prejudice. Cf. State v. Newsome, 682 A.2d 972, 994 (Conn.

1996) (“[T]here was no indication that the challenged comments either influenced

the jurors’ deliberations or prejudiced them against the defendant.”). Indeed, two

of the three jurors to whom the paralegal spoke told her “it was discussed that



1 In Ryan v. Arneson, 422 N.W.2d 491, 495 (Iowa 1988), the court adopted the
following standard with respect to consideration of jury deliberations:
       Based on Iowa’s adoption of language identical to Federal Rule of
       Evidence 606(b), and the policy reasons for insulating the manner
       in which the jury reaches its verdict, we now adopt the federal rule
       which protects each of the components of deliberation including
       juror arguments, statements, discussions, mental and emotional
       reactions, votes, and any other feature of the process occurring in
       the jury room.
The Linns argue the paralegal’s affidavit could be considered because it described
juror discussions before the beginning of formal deliberations. In light of our
disposition on prejudice grounds, we need not reach this issue.
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[they] could not make a decision until after closing arguments” and the third said

nothing to contradict this assertion. We conclude the district court did not abuse

its discretion in declining to grant the Linns’ new trial motion on this ground.

III.   Jury Admonition

       The Linns contend the district court abused its discretion in failing to

“continue to remind jurors of their admonition pursuant to Iowa Rule of Civil

Procedure 1.927(1).” Although the court’s initial admonition was off the record, the

district court made repeated on-the-record admonitions reminding the jury of the

initial instructions. We discern no violation of rule 1.927(1).

IV.    Polling of the Jury

       The Linns contend the district court abused its discretion in “refus[ing] to

poll the jury” “to determine whether they had engaged in discussions prior to being

provided with the instructions and being discharged to deliberate.” The defendants

respond that the Linns agreed to a sealed verdict, and, as a result, they were

precluded from polling the jury. See Iowa R. Civ. P. 1.931(3) (“When, by consent

of the parties and the court, the jury has been permitted to seal its finding and

separates before it is rendered, such sealing is equivalent to a rendition and a

recording thereof in open court, and such jury shall not be polled or permitted to

disagree with respect thereto.”).     They also argue there was “no competent

evidence” supporting the allegations “other than rank speculation.”

       Rule 1.931(3) does not serve as an absolute prohibition on jury polling

following a sealed verdict. See Rutledge v. Johnson, 282 N.W.2d 111, 114 (Iowa

1979). The court has “limited power” to engage in polling “to permit a showing

thereby that through inadvertence or clerical error the verdict rendered does not in
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form express the real verdict reached by the jury in its deliberations.” Id. (citation

omitted). The Linns do not challenge the form of the verdict.

       Even if jury polling were more broadly available in sealed-verdict cases, we

agree with the defendants that the Linns failed to make their case for polling. As

noted, two of the three jurors who spoke to the paralegal informed her they could

not make a decision until the end of the case and the third juror did not contradict

the statement. The paralegal’s affidavit and the jurors’ statements she recounted

were insufficient to raise doubts about the deliberation process. Accordingly, we

conclude the district court did not abuse its discretion in declining to permit juror

polling. See State v. Gathercole, 877 N.W.2d 421, 427 (Iowa 2016) (setting forth

standard of review).

V.     Comments During Opening Statements

       During opening statements, one of the defense attorneys told the jury, “If

you were us, and you were thinking what kind of expert would I what, what would

you want in an expert; right?” The Linns moved for mistrial. The district court

denied the motion but granted their request for a curative instruction, as follows:

              This is my direction to you: It is proper for an attorney to tell
       you what they believe the evidence will show about experts and their
       testimony. It is not proper for an attorney to ask you to put yourself
       in the position of one of the parties. To the extent that you heard
       [counsel] do that, you must disregard that suggestion.

       On appeal, the Linns argue counsel improperly “appeal[ed] to jurors to place

themselves in the position of one of the parties.”       In their view, the claimed

misconduct entitled them to a new trial.

       “Direct appeals to jurors to place themselves in the situation of one of the

parties . . . are condemned by the courts.” Oldsen v. Jarvis, 159 N.W.2d 431, 435
                                         8

(Iowa 1968); see also State v. Musser, 721 N.W.2d 734, 754 (Iowa 2006) (noting

attorneys may not instruct jurors “to place themselves in the position of the victim”

(citing Lucas v. State, 335 So.2d 566, 567 (Fla. Dist. Ct. App. 1976))). This

prohibition is known as a “[g]olden [r]ule” violation. Oldsen, 159 N.W.2d at 435.

       We question whether counsel violated the golden rule. But even if there

was a violation, the court’s curative instruction mitigated any prejudice. See State

v. Plain, 898 N.W.2d 801, 815 (Iowa 2017) (“Cautionary instructions are sufficient

to mitigate the prejudicial impact of inadmissible evidence ‘in all but the most

extreme cases.’” (citation omitted)); Smith v. Haugland, 762 N.W.2d 890, 900

(Iowa Ct. App. 2009) (“A new trial is required for improper conduct by counsel if it

appears that prejudice resulted or a different result would have been probable but

for any misconduct.”). We conclude the district court did not abuse its discretion

in denying the Linns’ mistrial motion.

       AFFIRMED.
