The Locus Penitentioe, Jury Polling and the Meaning of "Absolute"

CIVIL PROCEDURE – JURY POLLING – HARMLESS ERROR ANALYSIS
Duffy v. Vogel
(Ct. Apps., decided 3/31/2009)

The New York Court of Appeals' newest Chief Judge Jonathan Lippman issued his first opinion for the Court on Tuesday. In a well written discourse of the historical underpinnings of a litigant's right to have the jury polled in open court following its delivery of a verdict, Judge Lippman concluded that such right is absolute and not subject to a harmless error analysis. The case is not about insurance coverage, but is worth reading nonetheless. How often does our state's highest court get to go back nearly 200 years in case law to find precedent for its decision?

At the conclusion of a two-week trial for medical malpractice, the jury filled out an 11-page verdict sheet containing 21 interrogatories. Five inapplicable questions were not answered, but the answers to the remaining 16 were all consistent, and every one of the 16 answers was signed by every juror. All the answers were unanimous, though a 5-1 verdict would have been valid (CPLR 4113 [a]), and favored the defendants, evidently exonerating them from liability. The foreperson announced all the answers in open court, and declared as to each one that the jury had answered unanimously. In spite of all the interrogatory answers in favor of the defendants' position, however, the jury's verdict sheet purported to award damages "for the plaintiff" in the amount of $1.5 million.

In the face of what seemed like an inherent contradiction in the verdict, plaintiff's counsel asked that the jury be polled, a process in which each juror is asked to announce how he or she voted in the verdict. The trial judge denied the request as "unnecessary" and discharged the jury. The trial court subsequently acknowledged that it had erred in denying the poll and, on that ground, granted plaintiff's post-trial motion to set aside the verdict and declare a mistrial. Defendants conceded that it was error not to poll the jury, yet urged that harmless error analysis saved the verdict.

A divided panel of the First Department, Appellate Division, agreed with the defendants and reinstated the verdict. While the entire panel acknowledged that plaintiff had been entitled to have the jury polled and even that the entitlement was "absolute," the majority viewed the error as one of form only, since, in its estimation, "the objective facts set forth amply demonstrate[d] that polling the jury would not have resulted in a different verdict" (Duffy v Vogel, 49 AD3d 22, 25 [1st Dept 2007]).

In this 6-1 decision, the Court of Appeals disagreed with the Appellate Division, and ordered a new trial. Chief Judge Lippman opined that a litigant's "absolute" right to have the jury polled following a verdict is not subject to an appellate court's harmless error analysis because such an "analysis in this context would amount to no more than a speculative exercise, impermissibly substituting the judgments of judges for those that would have been made and disclosed by jurors had their verdict been properly pronounced in open court." Judge Lippman concluded:

Even if we were writing upon a clean slate, which we are not, we would not concur in the dissent's view that it would be a good idea to treat the denial of a litigant's right to have the jury polled as a kind of potentially harmless error. Contrary to the premise of the dissent, jury polling has never been justified on the ground that there is a high probability that it will uncover disparity between the announced verdict and what the jurors intended. Its justification rests instead upon the right of a litigant to a public verdict demonstrably that of the particular jurors chosen in the case. Long, and we think indispensable experience, has shown that that basic entitlement, so closely enmeshed with and protective of the right to trial by jury, may not be deemed secured in any individual case simply upon the foreperson's announcement of a verdict - - even one multiply subscribed - - and that the claim to be able reliably to distinguish in hindsight the case in which the failure to honor the entitlement was or was not harmless is highly suspect and should not be adopted as a basis for law. While it is, from defendants' perspective, doubtless nightmarish to face a new trial of this matter, sparing them a new trial upon the approach advocated by the dissent is an even less attractive option, prospectively involving courts too confident of their ability to discern what is in a juror's mind in the unwitting validation of false verdicts and the concomitant deprivation of true verdicts.

In his dissent, Judge Smith chides the majority's reasoning as "fanciful" and the result as "nightmarish", contending that a trial court's refusal to allow jury polling in a civil case should be subject to a harmless error analysis on appeal:

So far as I know, we have never before today held that a particular kind of error in a civil case cannot be harmless. That does not mean that no such errors exist. No doubt, for example, the wrongful denial of a trial by jury in a civil case would not be subject to harmless error analysis. Still, I find it puzzling indeed that, by virtue of today's decision, we have afforded a sacrosanct status never before conferred on any right of a civil litigant to the quasi-medieval ritual of the jury poll.