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Home / Courts / Tort/Negligence – Medical Malpractice – Rule 59(a) – Juror Misconduct

Tort/Negligence – Medical Malpractice – Rule 59(a) – Juror Misconduct

Cummings v. Ortega. (Lawyers Weekly No. 10-07-0791, 19 pp.) (Robert N. Hunter Jr., J.) Appealed from Harnett County Superior Court (Steve A. Balog, J.) N.C. App.

Holding: The trial court did not commit legal error, nor did it abuse its discretion by admitting into evidence affidavits of two jurors alleging juror misconduct when considering a Rule 59(a) motion to set aside a jury verdict and subsequently refusing to reconsider its decision.



During a surgical procedure, the plaintiff’s artery was inadvertently lacerated. The plaintiff subsequently developed pain and other ailments allegedly as a result of the laceration. She sued the defendant alleging medical malpractice.

After a two-week trial, the jury found in favor of the defendant. Two jurors provided affidavits alleging significant juror misconduct against a third juror.

The plaintiff filed a motion under N.C. R. Civ. P. 59(a) to set aside the verdict based on the affidavits. The court found those portions of the affidavits relating to juror misconduct prior to the commencement of deliberations to be admissible, and based on those portions of the affidavits, it set aside the jury verdict and granted a new trial.

The defendant filed a motion for reconsideration under N.C. R. Civ. P. 60(b), providing an affidavit from the juror against whom the charges of misconduct were levied. The trial court denied the motion.

The defendant appealed.


The plaintiff argued that review of a trial court granting or denying a new trial under Rule 59 as well as review of Rule 60 motions are subject to the abuse of discretion standard.

The defendant argued that the proper standard was de novo on the basis that improper admission of the affidavits of the two jurors constituted an error of law because they referred to a third juror’s state of mind.

The trial court was aware of the limitations in Rule 606(b) which generally prevent the court from reviewing juror affidavits to impeach the jury verdict.

However, because the affidavits include more than merely information regarding the mental processes of the jurors, we do not think it necessary to engage in a de novo review. Based on this court’s long-held presumption of the trial court’s capability to distinguish competent evidence from incompetent evidence, we disagree with defendants’ contention and hold that the proper standard of review in this case is abuse of discretion.

In awarding a new trial, the trial court specifically evaluated the affidavits as they related to irregularity, juror misconduct and the disregard of the court’s instructions pursuant to Rule 59(a).

Upon review, all the affidavits show that some jurors began discussing the merits of the case before deliberations began, against the repeated instructions of the court. This fact appears uncontested.

No juror reported to the trial judge any misconduct, which was against the repeated instructions of the court.

For purposes of Rule 59(a) these acts would qualify as competent evidence to show a trial irregularity, misconduct of the jury, or manifest disregard by the jury of the instructions of the court.

Where the trial judge finds that the fairness of the judicial process has been breached under Rule 59(a), he has the broad discretion to balance these competing concerns to achieve a just result, and our case law does not allow us to vacate this decision absent manifest abuse.

Likewise, when ruling on the defendants’ Rule 60 motion for reconsideration, the trial court carefully considered the affidavit of the juror who was accused of misconduct and used its proper discretion to weigh the credibility of the competing affidavits of the three jurors who proffered affidavits.

The trial court was within its discretion when it clearly articulated that it evaluated the affidavits only as they related to the extraneous prejudicial information to the jury.


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