Professional Negligence Law Reporter

A Texas appellate court held that a juror’s discussion of her father’s medical experience during jury deliberations in a medical negligence trial did not constitute an improper outside influence that would necessitate a new trial.

Thomas Wichman suffered a punctured rectum while undergoing a colonoscopy performed by physician Ned Snyder. Wichman sued Snyder and Kelsey-Seybold Medical Group PLLC, alleging negligent performance of the colonoscopy. The defense argued that Wichman’s injuries resulted in whole or in part from preexisting diverticulosis. Although the trial court instructed the jurors that they should refrain from sharing special knowledge or experience with other jurors and should not discuss evidence not admitted in the courtroom, two of the jurors testified in open court and in an affidavit that their fellow juror had told the other jurors that her father had diverticulosis and that the plaintiff’s injuries would have happened “no matter what.” The jury later found for the defense. The plaintiff moved for a new trial on the basis of juror misconduct.

Affirming, the appellate court noted that Tex. R. Evid. 606(b) states that during an inquiry into the validity of a verdict, a juror may not testify about any statement made or incident occurring during jury deliberations. A juror may testify about whether an outside influence was improperly brought to bear on any juror, however. Here, the court said, the two jurors testified that their fellow juror had shared her personal experiences and conclusions about the plaintiff’s medical condition based on these experiences. Citing case law, the court found that none of the jurors’ testimony related to an outside influence brought to bear on a juror in that the evidence the plaintiff presented in support of his motion for new trial originated not from an outside source, but from a juror herself. The plaintiff did not submit any evidence from a source other than a juror, the court found.

Accordingly, the court concluded that the trial court had not erred in denying the plaintiff’s motion for new trial.

Citation: Wichman v. Kelsey-Seybold Med. Grp., 2020 WL 4359734 (Tex. App. July 30, 2020).