Question: Can A Party Invite Error During Trial And Then Appeal Based Upon That Error?
Answer: No, A Party Cannot Complain If They Invited Error. See Below.
In 2014, Dawn Manning was stopped at a stop sign preparing to turn right. Defendant Tunstall approached from behind, did not realize that Manning was still at the intersection, and hit her brakes and swerved just before colliding with her vehicle. The front of Tunstall’s vehicle struck the corner of Manning’s rear bumper, pushing Manning’s vehicle. The low-speed collision caused some damage to the vehicles. After moving her vehicle out of traffic, Manning called 911 and her mother. Manning began experiencing a headache and neck pain at the scene. She refused an ambulance, but had her boyfriend drive her to the ER that same day. A physician treated her for whiplash, prescribing pain medicine and a muscle relaxant. When the pain did not subside over the next couple days, Manning returned to the ER and was told to seek chiropractic treatment. She also was treated by a chiropractor and spine specialist.
On September 22, 2015, Manning met with Dr. Steven Paschall – the medical expert she later retained for trial. Manning complained of a constant ache in her neck, multiple daily neck spasms, and mid-back pain. Dr. Paschall inquired about the effects that her condition had on her activities of daily living. After a physical examination, which demonstrated a limited range of motion in her cervical spine, Dr. Paschall took several x-rays which showed a significant angular motion segment integrity change at C4/5 with a loss of motion integrity of over 20 degrees. Based on his independent examination of Manning, Dr. Paschall diagnosed her with “cervical spine ligament laxity, with alteration of motion segment integrity; thoracic strain, and limited cervical range of motion.” Dr. Paschall opined that Manning had reached maximum medical improvement and suffered from a permanent injury/chronic pain as a result of the collision. He gave her a permanent partial impairment rating of 28 percent.
At a 3-day trial in August of 2017, in addition to Dr. Paschall’s video deposition, Manning presented the testimony of her mother and father, her best friend, her boyfriend, and herself to establish the effect her chronic pain has had on her life since the accident. In response, Defendant presented opposing expert testimony who testified that Manning’s alleged long-term injuries were not consistent with biomechanical tests as well as a neurosurgeon who gave the opinion that Manning did not have permanent injuries and was a malingerer. The jury returned a verdict in favor of Manning in the amount of $1.3 million. Defendant filed a motion to correct error which was later summarily denied.
One of the issues appealed related to an alleged error by the judge in discharging a juror. Less than 1.5 hours into deliberations, Mary sent a note to the trial court. Mary indicated, “I don’t feel as we are close to a decision. I need to leave to pick up my grandson. Can I be excused?” After discussing the matter with counsel, the court refused the request and directed the jury to continue deliberating. Over an hour later, the jury sent the court a note that said, “Your Honor, the jury cannot reach a verdict at this point due to the award amount. We find for the plaintiff, but can’t agree on the award. We are 1 million dollars apart with 1 juror unable, or unwilling to budge.” Again, the court addressed the note with counsel and then instructed the jury to continue deliberating. 49 minutes later, the court received another note from juror Mary, who wrote, “I would like to be excused due to pain in my legs. Can the alternate take over in my absence? I hate to ask but I’m in pain and can’t take it any longer.” Once again, the court spoke with counsel. Manning’s counsel stated that he did not have a problem with granting the juror’s request. Defendant’s counsel then expressly indicated that she had no objection to the request either. The jury deliberated for about 40 more minutes and then issued its $1.3 million verdict.
Defendant argues that the trial court committed fundamental error by discharging Mary without creating the appropriate record. She notes that once deliberations have begun the discharge of a juror is warranted only in the most extreme situations where it can be shown that the removal of the juror is necessary for the integrity of the process, does not prejudice the deliberations of the rest of the panel, and does not impair the parties right to a trial by jury. Here, the trial court did not remove a willing juror, but instead dismissed her because she was experiencing pain in her legs during deliberations which the trial court informed the remaining jurors that this was the reason for her removal. Further, Defendant’s attorney affirmatively agreed to the removal of Mary. Thus, the record establishes that Defendant invited the error when her counsel affirmatively agreed to the removal of Mary. Defendant’s counsel was in the best position to observe Mary throughout trial and to make a reasoned decision whether to keep her on the jury. Further, counsel knew that 1 juror – possibly Mary – was $1 million away from the verdict proposed by the rest of the jury. Based on the record, we conclude that Defendant engaged in a rational, albeit unsuccessful, trial strategy. She cannot now be heard to complain. 107 N.E.3d 1093