Galus v. Milner

¶1dissents and votes to affirm in the following memorandum. Weiss, J. (dissenting). I respectfully dissent. The sole issue in this case is whether a verdict in favor of a defendant physician in a medical malpractice case should be set aside because a juror failed to truthfully respond to questions put to her during voir dire. Plaintiff urges that upon voir dire, the forelady of the jury did not respond when asked whether she knew the defendant physician or any of his associates, or whether she ever had a G.I. series or an I.V.P. Plaintiff had a peremptory challenge left. During jury deliberations, the forelady disclosed to other jurors that she had been treated by one of the defendant physicians partners who performed an I.V.P. upon her seven or eight years ago. During deliberations, she was asked if she saw plaintiff’s decedent at the doctors’ offices. She cast an initial vote in favor of defendant and obviously continued to vote that way. In order to set a verdict aside, movant must sustain the burden of proving (1) concealment of facts; (2) bias; or (3) prejudice, which issues of fact must be resolved by Trial Term. The record must indicate an abuse of discretion by such court before we may overturn its finding (Holland v Blake, 38 AD2d 344, affd 31 NY2d 734; Luster v Schwarz, 35 AD2d 872). An incorrect answer given under a mistaken impression will not suffice (Holland v Blake, supra; Murphy v 16 Abingdon Sq. Realty Corp., 243 App Div 815, 816). At bar, I find a conflict raised by the juror’s testimony under oath at a postverdict hearing before Trial Term, insisting she affirmatively responded to the question, with affidavits of two other jurors, each of whom recalls the question but not her answer. The affidavit of juror Beach states: “Its funny, if she had been telling the truth during the jury selection, why would they select her?” This would belie that the juror in question disclosed her previous treatment by defendant’s associate. The court elected not to question these two jurors under oath, but obviously assigned credibility to their sworn statements. I find that the results in Luster v Schwarz (supra)and Holland v Blake (supra) distinguishable. An issue of fact was raised on the credibility of the juror in question which the trial court resolved in favor of plaintiff. Under these circumstances, it appears that there is a substantial likelihood the juror’s failure to disclose her prior treatment by defendant’s partner on voir dire prejudiced plaintiff’s case (see Troiano v Nardini, 55 AD2d 732). The order for a new trial was well within the discretion of Trial Term which had the responsibility to evaluate the proof before it. This record does not warrant disturbance of the exercise of that discretion. The amended order should be affirmed.