The title for this case summary could have been varied, such as:
- Judges Can’t Expect Judicial-Type Explanations from Jurors Who Are Lay People
- Jury Medical Malpractice Verdict Against Doctor, Rejected by Trial Judge, was Restored on Appeal
- Jury Trials Give Rise to Many Challenging Issues for Litigants
Civil litigation trials with juries are often more challenging to conduct for a variety of reasons. First there is a need to develop the art of jury selection, and then there is a need to develop good stage presence for the jury, because little nuances that perhaps mean very little to the presiding judge, can impact jury members in many different (unknown) ways: talking too fast, or sounding condescending or too rough, or boring them with legalese, or not giving them enough eye contact, etc. Much of this is intangible, but it is still a factor that often separates successful litigation lawyers from the ineffective ones.
But one of the most challenging features of a jury trial are the instructions to the jury and the list of questions that the jury must “answer.” Litigants don’t instruct juries, but litigants must be very attentive to the judge’s instructions to the jury, because if a mistake is made, it should be brought to the judge’s attention, and this can be very challenging. First it is very difficult to quickly identify errors, and often what may seem like an error is clarified or better explained later on in the judge’s instruction. Second, it is always difficult to know whether the clarification you are seeking will actually help or hinder your case. But in the end, if a jury is not instructed correctly, a new trial may have to be ordered.
The list of questions for the jury to answer, however, are typically generated through the effort of the parties and the judge. As such, the parties have more say in the list of formal questions that the jury will have to answer. However, even after you get through an acceptable list of questions to pose to the jury, the final blow can come on interpreting the jury’s answers. Sometimes the answers are not as clear as they could be, especially since jurors for the most part don’t have legal training.
This case is a fantastic illustration of how the jury answers caused a rift of debate, leading the trial judge and first appellate court to effectively nullify the jury’s answers and the jury’s verdict against the defendant doctors, to require a new trial, only to then be reversed on a second appeal whereby the jury’s verdict against the doctors was restored. This resulted in a judgment against the two doctors for just shy of $15,000,000.00.
As is clearly evident, there was a lot on the line over how to interpret the jury’s “answers,” and this represents a striking example of how Jury trials can infuse additional hoops-and-loops for the litigants.
This case involved alleged negligence of two doctors caring for a pregnant and birthing mother: following a difficult birth the newborn suffered a seizure leading to serious disabilities. A jury concluded that the defendant physicians failed to meet the standard of care required of doctors looking after pregnant patients and that this failure caused the newborn’s disabilities.
The problem in this case is that although the trial judge concluded that there was evidence capable of supporting the jury’s decisions, the trial judge refused to enter judgment in accordance with the jury’s verdict on the ground that the jury’s explanation on what acts on the part of the doctors caused the injuries were insufficiently laid out. A new trial was ordered.
The first question is, can the trial judge ignore the conclusions reached by a jury? The answer is yes. The grounds upon which a trial judge may refuse to grant judgment in accordance with a jury verdict are limited both by the Rules of Civil Procedure and by the jurisprudence. Rule 52.08 (1) stipulates that:
“Where the jury,
(a) disagrees;
(b) makes no finding on which judgment can be granted; or
(c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings,
the trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action.”
In this case, the trial judge relied on Rule 52.08 (1)(b), on the theory that the jury didn’t sufficiently explain how the conduct of the doctors caused the injuries when they answered the questions as follows:
“2(a) If your answer to question 1(a) is yes, have the plaintiffs satisfied you on the balance of probabilities that, but for the breach of the standard of care, Rhonda would not have sustained brain damage?
Answer: YES
(b) If your answer to question 2(a) is yes, how did …(Dr. X’s)… breach of the standard of care cause Rhonda’s brain damage? Please provide clear and specific answers:
Dr. …(X’s)… failure to move the C-section to April 18, 2006 put Rhonda at higher risk which more likely than not caused Rhonda’s brain damage.
[. . .]
4(a) if your answer to question 3(a) is yes, have the plaintiffs satisfied you on the balance of probabilities that, but for the breach of the standard of care Rhonda would not have sustained brain damage?
Answer: YES
(b) If your answer to question 4(a) is yes, how did … (Dr. Y’s)…breach of the standard of care cause Rhonda’s brain damage? Please provide clear and specific answers:
Dr. …(Y’s)… failure to deliver Rhonda on April 21, 2006 due to her being IUGR, her medical history and NST results more likely than not caused her brain damage.”
The entire controversy came down to the fact that jury used the term “higher risk,” which in legal parlance is technically insufficient to establish “causation” in law, which requires a conclusion that “but for” the acts of neglect, the outcome would not have occurred. As such, to say the doctors’ actions put someone “higher at risk” does not quite connect the cause-and-effect dots. It was the basis for the trial judge to assert that the answers were insufficient, and that a new trial was required.
The problem, as explained by the Ontario Court of Appeal is that “jurors are lay persons who cannot be expected to craft reasons with the detail expected of the judiciary.” In conclusion, the Ontario Court of Appeal agreed with the following dissenting opinion in the first appeal (before the Ontario Divisional Court):
“(The jury’s answers)… are not inconsistent with the verdict. They show that the jury accepted the plaintiff’s theory of causation and rejected the defence theory of causation. The parties’ causation theories were binary choices. Therefore, even though the jury’s impugned reasons are conclusory, the path to their conclusion is evident. That path is not based on impermissible reasoning nor is it contrary to any principle of justice.
[…]
Where, as here, the reasons are consistent with the verdict and are not premised on impermissible reasoning or a principle inconsistent with justice, the court should enter judgment in accordance with the jury’s verdict.”
The Ontario Court of Appeal added: “there is no basis to conclude that the jury proceeded on any erroneous premise or was confused or mistaken as to the instructions given to it. The answers given are not tainted by doubt or ambiguity.”
Should Juries Be Asked to Give Answers on Causation?
The Ontario Court of Appeal addressed whether it is appropriate to continue to ask a jury to provide particulars of its findings, and although not providing any general rule, the appellate court did provide this guidance:
“Jury deliberations are not transparent, and there is an element of inscrutability to every jury verdict. Where there are, as here, multiple reasoning paths that could lead to a finding of causation, asking for particulars may undermine the integrity of the jury’s verdict more by infelicities of expression than any real concern for the merits of the jury’s decision or reasoning and may stretch the limits of what a jury can reasonably be expected to give by way of reasons.”
In the end, seven judges in total had a say in this case, and three sided with having a new trial, and four sided with entering judgment in accordance with the jury’s verdict, all stemming from the use of two words used by the jury: “higher risk.” If the jury question ended at the first question, “but for the breach of the standard of care, would Rhonda not have sustained brain damage,” this long stretch of appeals (including a motion for leave to appeal) would have not been necessary.
However, without some question posed to the jury on causation, it is hard to know whether the jury used an unavailable legal route to find a breach of the standard of care. Indeed, it was a recommendation of the Supreme Court of Canada in ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 that jury’s be asked to “specify in what respects the defendant was negligent” in order to “reveal whether the jury has understood and applied the judge’s instruction that it must accept the standard practice as the legal standard against which the defendant’s conduct can be measured.”
Concluding Comments
Moving forward, it would appear that the take-away from this case is that jurors should be asked to provide a modicum of an explanation to ensure that they are relying on some acceptable legal or factual theories, but for judges not to get too hung-up on the words used by the jurors since they are not legally trained professionals.
Cheung v. Samra, 2022 ONCA 195
https://www.canlii.org/en/on/onca/doc/2022/2022onca195/2022onca195.html