Opposition Brief — Brokamp v. Mercy Hospital Anderson

Supreme Court, U.S.

FILED

_y ‘wan 3 00°01

No. 99-1332

CLERK |

IN THE

Supreme Court of the United States

DANIEL BROKAMP and DONNA BROKAMP,

Petitioners,

MERCY HOSPITAL ANDERSON,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

Court OF APPEALS OF OuI0 First District,

HAMILTON COUNTY

RESPONDENT?’S BRIEF IN OPPOSITION

coe erin ee ae eens

JUNE SMITH TYLER RONALD S. Kopp

ROETZEL & ANDRESS, LPA Counsel of Record

250 East Fifth Street, Suite 310 ALISA LABUT WRIGHT

Cincinnati, Ohio 45202 ROETZEL & ANDRESS, LPA

(513) 361-0200 222 South Main Street

Akron, OH 44308

(330) 376-2700

Attorneys for Respondent

158827 @ Counsel Press LLC

(800) 274-3321 + (800) 359-6859

.

QUESTIONS PRESENTED FOR REVIEW

The questions presented for review by Petitioners are as

follows:

i.

Is not the United States Constitution violated when

the courts permit a juror to serve (and be the

deciding vote) where said juror does not believe

that people should be allowed to come to court to

ask for money?

When, during voir dire, a prospective juror fails to

fully and/or truthfully disclose personal opinions

which override the justice system, the inquiry for

the court then is not into the validity of the verdict;

but rather, the competency of the juror to sit as a

juror in the case, and upholding the constitutional

right to impartial jurors are at issue and the aliunde

rule is inapplicable.

If ajuror’s bias or prejudice is demonstrated which

was not honestly disclosed in voir dire the trial court

has a duty to declare a mistrial and protect the

Constitutional guarantee of an impartial jury.

Where a plaintiff adduces evidence in support of

two conclusions: (1) that the instrumentality causing

the injury was, at the time of the injury, or at

the time of the creation of the condition causing

the injury, under the exclusive management and

control of the defendant; and (2) that the injury

occurred under such circumstances that in the

ordinary course of events it would not have occurred

if ordinary care had been observed the trial court

errs in refusing a request to charge the jury on the

issue of res ipsa loquitur.

ii

Where a party has no explanation for the absence

of evidence that is normally present, a court should,

upon request, instruct the jury as to a negative

inference.

Great care must be used if a judge questions a

witness so as not to seem to become an advocate or

give the jury an erroneous impression and a court

should not inject its own opinion for that of expert

witnesses.

A party subjected to clear prejudice by a trial court

is denied “due process” under the United States,

Constitution and should be granted a new trial free

of judicial prejudice.

ii

CORPORATE DISCLOSURE STATEMENT OF

MERCY HOSPITAL ANDERSON

Mercy Hospital Anderson is a nonprofit/tax-exempt

501(c)(3) corporation. Mercy Health Partners of Southwest

Ohio, dba Mercy Health Partners (also a nonprofit/tax-

exempt 501(c)(3) corporation) is the Parent/Member

Corporation of Mercy Hospital Anderson. Mercy Hospital

Anderson is the parent/member corporation of Mercy

Hospital Foundation, a nonprofit/tax-exempt 501(c)(3)

corporation.

iv

TABLE OF CONTENTS

Page

Questions Presented for Review ............... i

Corporate Disclosure Statement of Mercy Hospital

OOD on Von ins yeas bwnnawavudedinuydec. ili

Table of Contents ........................... hy

Table of Cited Authorities .................... Vv

Statement of Jurisdiction ..................._. l

Statement of the Case ........................ 2

Reason for Denying the Writ .................. 5

TABLE OF CITED AUTHORITIES

Cases:

Adams v. Robertson, 520 U.S. 83, 117 S. Ct. 1028,

Roe Ses Ge POPE ovo ho were nndvuccncn:

Coleman v. Thompson, 501 U.S. 722, 111 S. Ct.

2546, 115 L. Ed. 2d 640 (1991) ..............

Herb v. Pitcairn, 324 U.S. 117, 65 S. Ct. 459, 89

ek |: Pe ns arr ent A My hohe Bao

Hill v. Town of Conway, 193 F.3d 33 (1"Cir. 1999) .

Illinois v. Gates, 103 S. Ct. 2317, 462 U.S. 213, 76

L. Ed. 2d 527, rehearing denied, 104 S. Ct. 33,

463 U.S. 1237, 77 L. Ed. 2d 1453 (1983) ......

Lund v. Kline, 133 Ohio St. 317, 13 N.E.2d 575

CRN oka Aree Ce ea ee Cee .

McDonald v. Pless, 238 U.S. 264 (1915) ........

Sochor v. Florida, 504 U.S. 527, 112 S. Ct. 2114,

PED LL. Bh 20 SIO CGI) nov vc cvnsovobacdvcs

State v. Adams, 141 Ohio St. 423, 48 N.E.2d 861

OP ava oe shee eee Cee

State v. Rudge, 89 Ohio App.3d 429, 624 N.E.2d

a ee res

Page

vi

Cited Authorities

Page

State y. Schiebel, 55 Ohio St. 3d 71, 564 N.E.2d 54

(1990), cert. denied, 499 U.S. 961,111S.Ct. 1584

ciel EEE RT MeO eT = aaepe emen te 8

Street v, New York, 89S. Ct. 1354, 394 U.S. 576, 22

L. Ed. 2d 572, on remand 250 N.E.2d 250, 302

N.Y.S.2d 848, 24 N.Y.2d 1026 (1969) ........ 8

U.S. ex rel. Pascal y. Burke, 90 F. Supp. 868

a) 10

Statute:

28 U.S.C.A. § 1257 0 9

United States Constitution:

Fifth Amendment............................ 10

Sixth Amendment ........................... 10

Seventh Amendment ......................... 10

Ninth Amendment .......................... 10

Rules:

Ohio Rule of Evidence 606(B) ................. ti

Supreme Court Rule 10....................... 1,9

l

STATEMENT OF JURISDICTION

Supreme Court Rule 10 states that this Court will only

grant a petition in its discretion and only for compelling

reasons, and explains the character of the reasons that the

Court will consider. These reasons include, but are not limited

tO, a state court of last resort deciding an important federal

question in a way that conflicts with the decision of another

state court of last resort or a United States Court of Appeals,

a state court or. United States Court of Appeals deciding an

important question of federal law that has not been, but

should be, settled by this Court, or deciding an important

federal question in a way that conflicts with a relevant

decision of this Court. Rule 10 further explains that a petition

is rarely granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly stated

rule of law. Petitioners Brokamp have not set forth an

adequate basis to justify the exercise of this Court’s

discretionary jurisdiction.

Petitioners do not and cannot state an adequate basis for

jurisdiction because the state court did not decide an

important question of federal law and none was presented.

Adams v. Robertson, 520 U.S. 83, 117 S. Ct. 1028, 137

L. Ed. 2d 203 (1997). The state court decision rests on a

state law ground that is independent of the federal question

and adequate to support the judgment. Coleman v, Thompson,

501 U.S. 722, 111 S. Ct. 2546, 2553, 115 L. Ed. 2d 640

(1991). This Court lacks jurisdiction to review independently

supported judgments on direct appeal, and since the state

law determination is sufficient to sustain the decree, any

opinion of this Court on a federal question would be advisory.

Herb v. Pitcairn, 324 U.S. 117, 125-126, 65 S. Ct. 459, 462-

464, 89 L. Ed. 789 (1945): see also Sochor v. Florida,

504 U.S. 527, 533-534, 112 S. Ct. 2114, 2119-2120, 119

L. Ed. 2d 326 (1992),

These issues will be more fully explained below.

2

STATEMENT OF THE CASE

Petitioners, Daniel and Donna Brokamp, have filed a

petition for writ of certiorari against Respondent Mercy

Hospital Anderson. !

The Petitioners argue that a new trial should have been

granted given the “irregularity of the proceedings” and

misconduct of the jury.

As to any irregularity in the proceedings, Petitioners

assert that the trial judge improperly questioned Petitioners’

counsel during trial. What the petition does not state is that

Said questioning was conducted outside of the presence of

the jury and involved only the trial judge and Respondent’s

counsel.

The specific allegation of juror misconduct is that one

of the jurors, Earl Eldridge, identified as Juror No. 4, was

not impartial. Two of the jurors informed Petitioners’ counsel

that one of their members stated that he did not believe that

people should be allowed to “come into court and get money.”

Petitioners claim that Juror No. 4 was untruthful in his

responses to questions during voir dire and that the failure

1. The petition erroneously identifies James Barringer as a

Respondent. Petitioners’ complaint filed in the Hamilton County

Court of Common Pleas, Hamilton County, Ohio, named as

Defendants Mercy Hospital Anderson and John Doe, R.N.

Petitioners’ state court appeal to the Hamilton County Court of

Appeals for the First Appellate District of Ohio (hereinafter

“Hamilton County Court of Appeals”) also identified only Mercy

Hospital Anderson and John Doe, R.N. as defendants-appellees, as

did Petitioners’ memorandum in support of jurisdiction filed with

the Supreme Court of Ohio. Throughout the state court proceedings,

Petitioners Brokamp never substituted an identifiable individual for

the John Doe, R.N. party. Therefore, Respondent James Barringer

is not properly before this Honorable Court as he was not a party to

the proceedings in the state court.

3

to answer truthfully concealed his bias.2 What the petition

does not state is that this exchange occurred while Petitioners’

counsel interviewed the jury after the trial.

At the trial court level, Petitioners filed a motion for a

new trial and for judgment notwithstanding the verdict. This

motion contained a brief argument that the alleged jury

misconduct deprived Petitioners of a fair trial because they

did not have an impartial jury. The constitutional issue of an

impartial jury was ancillary, however, to the actual legal issue

that the trial court was asked to address. Indeed, any

constitutional arguments were ancillary to the legal issue the

state courts were asked to address at every level, including

most importantly the Hamilton County First District Court

of Appeals. At the state court level, the legal dispute was

over the applicability of the aliunde rule.

The Hamilton County Court of Appeals dealt with

Petitioners’ arguments about the alleged juror misconduct

in a succinct fashion and based entirely upon Evidence Rule

606(B):

The Brokamps’ allegation of juror

misconduct, in their first assignment, is the most

serious. Specifically, they maintain that one of the

jurors failed to truthfully disclose his personal

2. The actual question asked by the trial court was “i]s there

anybody here that will not follow the law as I give it to you, whether

you agree with it or not?” Petitioners recite this question at Page 11

of the petition in Footnote 2. There is no evidence whatsoever that

Juror No. 4 answered that question falsely or that he failed to follow

the law as required by the trial court. There is no evidence whatsoever

that Juror No. 4 allowed his alleged prejudice to dictate his vote.

Indeed, five other jurors voted the same way as Juror No. 4.

Moreover, the jurors that were interviewed by Petitioners’ counsel

did not testify that Juror No. 4 attempted to persuade any other

member of the jury to agree with him or follow his lead.

4

opinions during voir dire, and that this omission

prejudicially affected their constitutional rights

to a fair trial and an impartial jury. This allegation

was presented to the court by proffer from the

Brokamps after the verdict had been rendered.

Two jurors were then called before the court and

questioned about an alleged improper comment.

Evid. R. 606(B) governs the type of evidence

that may be considered when a court inquires into

the validity of a verdict. This evidentiary rule

embodies the aliunde rule, which requires the

introduction of evidence from a competent source

other than a juror to impeach a jury verdict.

[citations omitted]. The jury’s verdict may not be

impeached by evidence from a member of the jury

unless a foundation for the introduction of such

evidence is first laid from some other source.

[citations omitted]. Here, the only foundation

provided was a proffer by the Brokamps’ counsel,

who did not have firsthand knowledge of the jury

deliberations. Such a proffer did not constitute

evidence aliunde. [citations omitted]. Because

there was insufficient evidence aliunde, we

conclude that the trial court did not abuse its

discretion in denying the motion for new trial.

Hamilton County Appellate Opinion, Appendix A to petition,

Pages 30a-3la. The Hamilton County Court of Appeals

concluded that the trial court did not abuse its discretion in

denying Petitioners’ motion for a new trial. The Supreme

Court of Ohio declined jurisdiction.

5

REASON FOR DENYING THE WRIT

It is virtually impossible to determine from the petition

exactly what ruling Petitioners are requesting this Court to

review. Assuming, arguendo, that the petition seeks review

of the rulings by the Supreme Court of Ohio, the law does

not permit this Court to review such rulings. While

28 U.S.C.A. does permit review of a decision of the highest

state court, a state supreme court’s decision to exercise its

discretion to decline an appeal is not a judgment or decree

reviewable by the United States Supreme Court. Hill v. Town

of Conway, 193 F.3d 33 (1 Cir. 1999). Appendix B of the

petition reflects the ruling of the Supreme Court of Ohio to

dismiss the appeal sua sponte because no substantial

constitutional question exists, and to decline the discretionary

appeal. Appendix C reflects the Supreme Court of Ohio’s

denial of Petitioners’ motion for reconsideration of the order

reflected in Appendix B.

If the petition seeks to have the Court review the decision

of the Hamilton County Court of Appeals, it fails for the

following reasons. First, the Hamilton County Court of

Appeals decision rested on adequate state law grounds and

did not decide an important federal question. Indeed, it did

not decide a federal question at all. No state court in the

history of this matter decided an important federal question.

The Hamilton County Court of Appeals simply decided a

state law evidentiary issue in affirming trial court rulings.

In Ohio, a trial court may not consider a post-verdict

allegation of juror bias premised upon information disclosed

by jurors who participated in the deliberation process absent

competent evidence aliunde. Lund v. Kline, 133 Ohio St. 317,

13 N.E.2d 575 (1938) (slips of paper retrieved from jury room

not evidence aliunde of juror misconduct). State v. Adams,

_ 141 Ohio St. 423, 48 N.E.2d 861 (1943) (aliunde rule not

applicable where misconduct is by officer of court).

6

The aliunde rule protects a jury verdict and the constitutional

elements of a fair trial. The Ohio Supreme Court stated in

State v. Adams, supra, that:

[T]he [aliunde] rule is based upon

considerations of public policy, which, if not

adhered to, would encourage further litigation and

indefinitely postpone its termination; that to

permit a juror to impeach the verdict by his

testimony would allow a dissatisfied or corrupt

juror to destroy a verdict after he had assented to

it; and that to permit such testimony would destroy

the privacy of deliverations of the jury and expose

the jurors to criticisms and embarrassment.

Id., at 427, 48 N.E.2d 863.

This Court recognized the need for jury verdicts to

remain inviolate in the decision in McDonald v. Pless, 238

U.S. 264 (1915), when Justice Lamar wisely wrote:

But let it once be established that verdicts

> solemnly made and publicly returned into court

can be attacked and set aside on the testimony of

those who took part in their publication and all

verdicts could be, and many would be, followed

by an inquiry in the hope of discovering

something which might invalidate the finding.

Jurors would be harassed and beset by the

defeated party in an effort to secure from them

evidence of facts which might establish

misconduct sufficient to set aside a verdict. If

evidence thus secured could be thus used, the

result would be to make what was intended to be

a private deliberation, the constant subject of

public investigation; to the destruction of all

7

frankness and freedom of discussion and

conference.

Id., at 238 U.S. 264, 267-68.

The issue presented to the state courts was the

applicability of the aliunde rule. The aliunde rule is codified

in Ohio in Evidence Rule 606(B), and allows inquiry into

the validity of a verdict “only after some outside evidence

of that act or event has been presented.” Ohio Evidence Rule

606(B) provides as follows:

Evidence Rule 606. COMPETENCY OF

JUROR AS WITNESS

: * * *

(B) Inquiry into validity of verdict or indictment

Upon an inquiry into the validity of a verdict

or indictment, a juror may not testify as to any

matter or statement occurring during the course

of the jury’s deliberations or to the effect of

anything upon his or any other juror’s mind or

emotions as influencing him to assent to or dissent

from the verdict or indictment or concerning his

mental processes in connection therewith. A juror

may testify on the question of whether extraneous

prejudicial information was improperly brought

to the jury’s attention or whether any outside

influence was improperly brought to bear on any

juror, only after some outside evidence of that act

or event has been presented. However a juror may

testify without the presentation of any outside

evidence concerning any threat, any bribe, any

attempted threat or bribe, or any improprieties of

8

any Officer of the court. His affidavit or evidence

of any statement by him concerning a matter about

which he would be precluded from testifying will

not be received for these purposes.

Ohio Rule of Evidence 606(B). Evidence in the form of

testimony by a member of the jury alleging misconduct of

another juror is not evidence aliunde that may be used to

impeach a verdict. See State v. Schiebel, 55 Ohio St. 3d 71,

564 N.E.2d 54 (1990), cert. denied, 499 U.S. 961, 111

S. Ct. 1584 (1991).

Based upon the application of Evid. R. 606(B) and the

aliunde rules, the Hamilton County Appellate Court

concluded that the trial court did not abuse its discretion in

denying Petitioners’ motion for a new trial. The Hamilton

County Appellate Court did not decide an important federal

question. Petitioner never presented an important federal

question. The state court rulings were based entirely upon

state evidentiary rules, and the state law provided adequate

grounds. If both the requirements that a federal question has

been raised and decided in the state court below do not appear

on the record, the appellate jurisdiction of the Supreme Court

fails. Illinois v. Gates, 103 S. Ct. 2317, 462 U.S. 213, 76

L. Ed. 2d 527, rehearing denied, 104 S. Ct. 33, 463 U.S.

1237, 77 L. Ed. 2d 1453 (1983). If the federal issue was not

presented to the state courts in such a manner that it was

necessarily decided by the highest state court, the United

States Supreme Court would have no power to consider the

issue. Street v. New York, 89 S. Ct. 1354, 394 U.S. 576, 22

L. Ed. 2d 572, on remand 250 N.E.2d 250, 302 N.Y.S.2d

848, 24 N.Y.2d 1026 (1969). Moreover, Petitioners have

never made the argument that the aliunde rule violates due

process or is unconstitutional.

Furthermore, the petition contains an argument that the

trial court was prejudiced against the claims of the Petitioners

9

and that such prejudice pervaded the entire trial. See Petition,

pp. 20-21. At no point, however, does the petition describe

how this alleged prejudicial attitude of the trial court affected

any specific rulings during the trial. More importantly, the

petition never describes how the Hamilton Appellate Court’s

opinion decided an important federal question related to the

trial court’s alleged prejudice. The simple reason for this

failure is that the Hamilton Appellate Court decision did not

decide an important federal question in this regard.

At the state appellate level, Petitioners complained that

the trial court prejudiced the entire case because of a factual

misconception regarding the location and identification of

the nerve that Petitioners’ claim was injured by a negligent

injection. The only portion of the appellate ruling that

addressed the claims of judicial prejudice came at the very

end of the opinion when the court stated “After reviewing

the record, we cannot say that the trial court demonstrated

undue prejudice.” Moreover, as pages 21 and 22 of the

petition clearly explain, the Petitioners are complaining about

the trial court’s factual finding regarding the mid-case switch

of the nerve at issue. As dictated by Supreme Court Rule 10,

“A petition for a writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law.” Therefore,

the trial court’s factual decisions do not constitute a basis

for this Court exercising jurisdiction.

Petitioners only discuss the trial court’s rulings in their

petition. The petition wholly fails to discuss the decision of

the Hamilton County Appellate Court. This Court only has

jurisdiction to review the decision of the highest state court

in which a decision could be had. 28 U.S.C.A. § 1257.

~ Therefore, since Petitioners fail to address or even mention

the state appellate court’s ruling, this Court should deny the

petition.

10°

At the state court level, Petitioners vaguely argued that

the Sixth Amendment conferred the right to an impartial jury.’

In their Hamilton County appellate brief, Petitioners’ cited

Ohio decisions from criminal cases for the proposition that

the Sixth Amendment right to an impartial jury is violated if

even one juror is unduly biased or prejudiced. See State v.

Rudge, 89 Ohio App.3d 429, 624 N.E.2d 1069 (1993). The

petition before this Court, however, recites the Fifth, Seventh

and Ninth Amendments to the United States Constitution,

but not the Sixth Amendment. The Fifth, Seventh and Ninth

Amendments were never presented to the state courts and

the state courts never decided an important federal issue

regarding those Amendments.

CONCLUSION

Only federal questions will be reviewed by this Court

on appeal from a state court. Supreme Court Rules 10 and

14. See also U.S. ex rel. Pascal v. Burke, 90 F. Supp. 868

(1950) (on review of the judgment of the highest court of a

state, the United States Supreme Court will consider only

the federal question raised, provided it has been properly

brought before the state court). Therefore, this Court should

deny the petition for writ of certiorari because it raises

exclusively state law issues.

This Court’s review function is extremely important and

necessary to the working of our federal system. The Supreme

Court Rules carefully and clearly delineate the types of cases

and reasons for which this Court will exercise its review

power. The case presented by this petition does not involve

3. The Sixth Amendment to the Constitution of the United

States is of course more appropriately applied to criminal

prosecutions, as it states that “[i]n all criminal prosecution, the

accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall have

been committed... .”

11

a substantial or important question of federal law and this

Court should decline to issue a writ.

For all of the reasons set forth above, Respondent

requests that this most Honorable Court deny the petition

for writ of certiorari.

Respectfully submitted,

JUNE SMITH TYLER RONALD S. Kopp

RoetzeL & ANpREsS, LPA Counsel of Record

250 East Fifth Street, Suite 310 = Arisa LABUT WRIGHT

Cincinnati, Ohio 45202 ROETZEL & ANDRESS, LPA

(513) 361-0200 222 South Main Street

Akron, OH 44308

(330) 376-2700

Attorneys for Respondent