PER CURIAM.
Plaintiff Jill Meglino
We discern the following facts and procedural history from the record on appeal.
On September 27, 2010, the vehicle driven by Gagne rear-ended the vehicle driven by Meglino. According to Meglino, her head slammed into the back of her seat. She sought medical treatment at a hospital the next day because she was unable to move her head from side to side.
Meglino and her husband filed their complaint in May 2011. She alleged that she suffered personal injuries as a result of the accident caused by Gagne's negligence. Gagne denied liability and asserted that Meglino's injuries did not satisfy the verbal threshold established by the Automobile Insurance Cost Reduction Act (AICRA),
The case was tried by a jury over three days from June 11 to June 13, 2013. Gagne's attorney conceded liability, but continued to argue that Meglino's injuries did not satisfy the AICRA threshold. The facts that follow were developed at the trial.
Robert Sabo, M.D., examined Meglino approximately three and a half weeks after the accident. According to Sabo,
Sabo also diagnosed Meglino with facet joint syndrome. He testified that this damage does not appear on an MRI. Meglino continued treatment with Sabo for eleven months. During that time, she received three spinal injections. In May 2011, Meglino underwent a radiofrequency ablation. She testified that she felt better only for one to two weeks following that procedure.
In August, Meglino refused further pain medication. She also refused further surgery, fearing it would make her condition worse. Meglino testified that her symptoms remained "about the same" after the conclusion of her treatment.
Meglino testified that she experiences neck pain daily, which increases when she lifts heavy objects. She has trouble sleeping and endures long-lasting headaches. Meglino is no longer able to participate in activities she used to enjoy, including landscaping, dirt-biking, and playing with her young daughter. She also has trouble sitting in one place for extended time periods.
Meglino testified that her injury has adversely affected her relationship with her husband. Her husband and father-in-law corroborated that testimony during the trial. On cross-examination, Meglino testified that, following the accident, she went to school for medical billing and graduated in October 2011. The program required her to attend classes from 8:00 a.m. until 2:30 p.m. daily. As of the time of trial, she was working full-time at a medical group's office.
Meglino's expert, Robert C. Dennis, M.D., testified that Meglino suffers from a disc herniation at the C5-C6 level, shown by her MRI, and a facet joint injury causing radicular pain. Dennis examined Meglino on April 12, 2012. He testified that the injury was caused because of a whiplash or flexion extension motion. He opined that spinal disc injuries are permanent because they do not heal. Dennis noted the presence of fibriotic tissue in Meglino's neck. His physical exam also revealed that Meglino had an abnormal cervical spine and a loss of motion of fifty percent with muscle weakness. Dennis noted that there was no evidence of spasm or any previous injury or degeneration in Meglino.
During cross-examination, Dennis was questioned about Meglino's emergency room x-rays. Although Meglino had testified earlier that she went to the emergency room because she could not turn her head in the morning following the accident, the hospital's records reflect that she had unrestricted range of motion in her neck.
Richard Sacks, M.D., testified as the defense expert. When Sacks examined Meglino, he found no cervical spasm. Sacks' palpation revealed abnormal tenderness. His review of Meglino's MRI showed that two of her spinal discs had minimal physiologic bulging and did not show any objective evidence of an injury from an automobile accident. He conceded on cross-examination that he had not seen all of Meglino's medical records.
Following the testimony on the second day of trial, counsel and the judge held an informal charge conference, and then discussed the jury charge on the record the following morning. Both attorneys agreed to the judge's proposed charges.
With regard to Meglino's injury, the judge charged:
The judge also directed the jurors that, if they had a question, they should not disclose where they were in the process of their deliberations.
After the charge, a juror asked the judge whether the jury could deliberate during lunch, because the jurors were "dying to discuss the case." The judge instructed them that the case could not be discussed outside the jury room.
At approximately 2:00 p.m., the jury alerted the judge that there was a question, which read: "Is the evidence of permanent damage based on just the herniated/bulging/protruding disc?" The judge and counsel discussed the question at length. The judge proposed rereading the applicable section of the charge. Meglino's attorney suggested that the question be answered "no," meaning that the "herniated/bulging/protruding disc" was not the only "evidence of permanent damage." Defense counsel responded that he thought it should be answered "yes," meaning it was the only such evidence. There followed an unresolved discussion of whether there was, in fact, other objective evidence of permanency.
At that point, the judge again suggested that he reread the charge. Meglino's attorney told the judge that was "satisfactory." Defense counsel responded that, although his preference was for the judge to answer the question in the affirmative, he would accept the idea of rereading the charge. Then defense counsel pointed out that the question appeared to be "asking something different," that is, whether "there's something else other than what's been argued to them here today." Meglino's attorney wondered whether the jury wanted to know if they could only rely on "an MRI finding of this as opposed to the clinical examination [evidence]."
Because the question could be read in different ways, the judge suggested that
Both counsel consented. The jury was brought back into the courtroom and the judge asked the jurors for a clarification of the question.
When the jury had not submitted a revised question for "awhile," the judge asked the attorneys whether he should bring the jurors back into the courtroom or "just leave well enough alone." Meglino's attorney responded that he "would prefer to leave them alone." Gagne's attorney responded that he "[didn't] think you can take [the jury] out of there like that." Consequently, the judge took no action.
The jurors sent out a second note advising the judge that they had "reached a verdict." The jury found that Meglino failed to prove by a preponderance of the evidence that she sustained a permanent injury as a proximate result of the accident. The verdict was unanimous, six to zero, and both attorneys waived the polling of the jury.
After the judge had read the verdict and excused the jury, the following took place:
According to Meglino, the same juror contacted her by telephone the following day and apologized for the verdict. In an affidavit in support of her post-trial motion, Meglino related the conversation as follows:
Her attorney immediately advised the judge about the call, once he learned about it from his client.
On June 18, Meglino filed a motion requesting that the judge conduct a post-verdict voir dire of the jury or, in the alternative, nullify the result and grant a new trial. The judge heard oral argument on June 24. On July 1, the judge issued a thoughtful and thorough written opinion explaining his reasons for denying the motion. The implementing order and the judgment of no cause were entered the same day. This appeal followed.
On appeal, Meglino argues that the trial judge erred in giving the model jury charge with respect to the AICRA verbal threshold, should not have permitted the jury to return a verdict before he had answered the jury's question, and should have spoken to the juror when she asked to speak with him following the verdict or at least after Meglino moved for a post-trial voir dire or new trial.
We start our analysis with Meglino's arguments concerning the jury charge. The judge charged the jury using the language of
"Where there is a failure to object, it may be presumed that the instructions were adequate.... [and] that trial counsel perceived no prejudice would result."
One way for a plaintiff to recover under the AICRA verbal threshold,
The model charge, which was given by the trial judge, includes the last sentence virtually verbatim. The charge's requirement that there be "objective medical evidence," which "must be verified by physical examination or medical testing and cannot be based solely upon the plaintiff's subjective complaints," also finds support in the statute.
We also reject Meglino's argument that the trial judge should have tailored the charge to outline the evidence at issue in this case. Her trial attorney made no such request and never objected to the charge being given without specific reference to the evidence, which was argued to the jury by counsel during their summations. This was a standard verbal threshold case and there was no particular reason for a tailored charge.
We now turn to the issue of the jury's question. Meglino argues that the judge should not have allowed the jury to return a verdict before he had resolved the jurors' question.
The jury asked whether "the evidence of permanent damage [was] based on just the herniated/bulging/protruding disc." The trial judge proposed to reread
When the judge became concerned about the delay in the jury's submission of a revised question, he asked counsel whether he should "call the jurors back out or just leave well enough alone." Meglino's attorney responded first and said that he "would prefer to leave them alone." Defense counsel concurred. When the jury announced that there was a verdict, Meglino's attorney made no objection and did not request the judge to ask whether the jury still had a question before taking the verdict. Meglino now argues that the judge acted in error.
Meglino's position on this issue implicates the doctrine of invited error. The Supreme Court explained the doctrine in
We find the doctrine applicable here. Meglino's preference not to query the jury was quite clearly a matter of litigation tactics. The tactic carries over to her attorney's failure to object to the judge taking the verdict without asking the jury about the question. The invited error doctrine generally precludes parties from seeking a second chance when the tactic they chose at trial has failed. By following Meglino's preference, the judge did not explore whether the jury was having problems reframing the question or had decided it no longer required an answer. It would be unfair to Gagne to allow Meglino a second trial based on the bad result she now argues was caused by the judge following her own "preference." As the Court observed in
This is not, as Meglino argues, a case in which the trial judge abrogated his obligation to respond to or clarify a jury's question.
Finally, we turn to Meglino's argument that the judge erred in failing to allow the juror to speak after the jury was excused and again when he denied the motion for post-trial jury voir dire or a new trial. Meglino seeks a remand for post-trial voir dire or a new trial on the basis of two events: (1) a brief exchange following the verdict in which a female juror appeared to want to say something to the judge following the return of a unanimous verdict in her presence and (2) statements made over the telephone to Meglino by a caller who did not identify herself or provide any contact information, other than to say that she was the juror who tried to speak to the judge following the verdict.
The total exchange between the judge and the juror was exceedingly brief.
Judges are generally instructed not to have post-trial conversations with jurors.
With respect to the post-trial voir dire, our courts have long recognized a privilege against disclosure of a jury's deliberations and that secrecy ensures free communication and independence in the jury room.
Three reasons support this strong policy against overturning jury verdicts based on the details of deliberations. First, "disappointed litigants would be encouraged to tamper with jurors, to harass them and to employ fraudulent practices in an effort to induce them to repudiate their decisions."
In
Generally speaking, the courts have recognized two exceptions to the rule that evidence from jury deliberations will not warrant a new trial. First, if it appears that racial or religious bigotry infected deliberations, a new trial is warranted.
"[C]alling back jurors for interrogation after they have been discharged is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct."
We see no basis for a post-trial voir dire or a new trial in this case. After listening to the foreperson state that the verdict was unanimous, a juror attempted unsuccessfully to speak to the judge about something. She
In light of the law outlined above, those allegations do not amount to the type of "strong showing that a litigant may have been harmed by jury misconduct" required for a court to engage in the "extraordinary procedure" of a post-verdict voir dire.
For all of the reasons outlined above, we affirm the orders on appeal.
Affirmed.