Nursing Home Pressure Ulcer Case Reversed and Remanded for New Trial When Court Replaced Holdout Juror

The plaintiff, August Bosman, who was the special administrator of the Estate of Joan Bosman, appealed from the denial of his motion for a new trial. The plaintiff argued that the court was in error in replacing a holdout juror with an alternative juror during jury deliberations.

The lawsuit was filed in June 2011 against Riverside Health System, d/b/a Miller Healthcare Center and Riverside Senior Living Center where it was alleged that Joan Bosman suffered multiple necrotic pressure ulcers while she was a resident of the long-term care facility operated by the defendant Riverside Health System.

During jury selection, one juror was questioned about whether she had been personally involved in or knew someone who was involved in an incident that resulted in personal injuries or damages and if the incident resulted in a lawsuit. This juror said her friend had filed a lawsuit against a nursing home after her friend’s mother died from injuries sustained while she resided at the facility. The juror assured the court that her prior experiences would not affect her ability to sit as a juror. In addition, defense counsel asked this juror whether she personally had any experience receiving rehabilitative care or knew someone who had received care. The juror said she had no experience receiving rehabilitative care and that she could set aside her friend’s experience with the nursing home and decide the case on the evidence presented.

The jury included 12 people with two alternate jurors. After closing argument, the court read the jury instructions to the jury and to the two alternate jurors. The court sent the jury to deliberate but did not discharge the alternate jurors. A decision was reached between the plaintiff and the defendant that a unanimous verdict of 12 jurors would be required. The alternates were segregated in a separate room during deliberations.

During the second day of deliberations, the court received three notes from the jury. The three notes essentially said that the jury was deadlocked but more particularly that one of the jurors told the others that she had surgery and a hospital stay, which resulted in an infection and complications. This juror had stated that she could not judge the situation without reference to that history. At this point, the jury was deadlocked because this one juror was holding out for a plaintiff’s verdict against 11 jurors who favored the defendant.

The presiding judge questioned the juror individually who turned out to be the one who said that she had no prior experiences but in fact had had a bad experience with a medical provider, and at this trial she wanted to punish the medical community because of her experience. The judge dismissed this juror on defense counsel’s motion to strike her for failure to disclose a potential bias during voir dire and subsequent issues concerning her credibility. Plaintiff’s counsel opposed the motion. The court excused the juror and replaced her with the first alternate juror. The court then instructed the reconstituted jury to begin deliberations anew.

After the deliberations were restarted, the plaintiff’s counsel moved for a mistrial. The court denied the plaintiff’s motion finding that it had dismissed the juror because she failed to disclose potential bias against the party during voir dire. The new jury found in favor of the defendant.

On appeal, the plaintiff argued that she was denied a fair trial because the court erred in discharging a holdout juror. In addition, there was a reasonable possibility that the dismissal was based on the juror’s view regarding the sufficiency of the evidence.

The Illinois Code of Civil Procedure provides that one or two additional jurors may be impaneled to serve as an alternate, 735 ILCS 5/2-1106(b). The alternate jurors: “Shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable to perform their duties. An alternative juror who does not replace a principal juror shall be discharged at the time the jury retires to consider its verdict.” The Illinois Appellate Court found that based on the plain language of the Code, the retention of the alternatives and replacement of a deliberating juror was trial error. However, this error only warrants reversal where a party suffers prejudice. People v. Roberts, 214 Ill.2d 106, 121 (2005).

When the jury was unable to reach a verdict after it sent out its third note, the trial judge had two options: (1) instruct the jury to continue deliberating; or (2) declare a mistrial. People v. Gallano, 354 Ill.App.3d 941, 953 (2004).

Instead of utilizing one of these options, the court conducted an inquiry into the juror’s alleged bias. Plaintiff was prejudiced by this inquiry. The remaining 11 jurors had formed opinions about the case during the course of several votes, and they were then exposed to the outside influences of the juror inquiry, which suggested to them the reason of the bias that led to the juror’s eventual replacement. The inquiry also disclosed the jurors’ deliberation to the parties; therefore, the court held that the trial judge abused its discretion when it replaced the biased juror with an alternate juror after deliberations had already begun. Accordingly, the judgment of the circuit court was reversed and remanded for a new trial.

August Bosman v. Riverside Health System, et al., 2016 IL App (3d) 150445 (Oct. 6, 2016).

Kreisman Law Offices has been handling nursing home abuse cases, nursing home negligence cases, long-term care facility negligence cases and wrongful death cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a nursing home and/or its medical providers for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Chicago Ridge, Blue Island, Oak Park, River Grove, Evergreen Park, Countryside, Country Club Hills, Arlington Heights, Brookfield, Highland Park, Lisle, Kenilworth, Homewood, Geneva, Des Plains, Round Lake Beach, Chicago (South Loop, University of Chicago, Wrigleyville, Greek Town, Gold Coast, Garfield Ridge, Edgebrook, Edgewater, DePaul University Area, Chinatown, Canaryville, Buena Park, McKinley Park), Joliet and Northbrook, Ill.