Jhunjhnuwala v. Carillo
Plaintiffs and appellants Elissa Jhunjhnuwala, Jason Nowland, Brandy Ascough, and Brian Ascough[1] appeal from a judgment and post-judgment order following a jury trial in favor of defendant and respondent James F. Carillo, M.D., in this consolidated action for medical malpractice and wrongful death. Plaintiffs contend the trial court should have granted their motion for a new trial on the grounds of attorney and juror misconduct. Specifically, plaintiffs contend Carillo’s attorney committed misconduct during closing argument by arguing the following: 1) plaintiffs did not owe any money for their mother’s medical expenses, which had been paid by Medi-Cal and Oregon’s Medicaid program; 2) inflammatory photos were displayed in violation of a trial court order; 3) a record of vital sign trends was available from the monitor used during the operation, although none was produced in discovery; 4) nurses are “truth-tellersâ€; 5) misrepresentations as to the evidence; and 6) maligning opposing counsel’s professionalism. In addition, plaintiffs contend the trial court abused its discretion by excluding evidence from juror declarations, and the juror misconduct included: 1) concealing bias in voir dire; 2) prejudging the case; 3) expressing anti-gay prejudice; 4) acting to protect Carillo’s reputation; and 5) threatening physical violence during deliberations.
We conclude the remarks during closing argument, which suggested plaintiffs did not owe any money for their mother’s medical expenses because the expenses were paid by Medi-Cal and Oregon’s Medicaid program, directly violated California law and the trial court’s express order, and thus, constituted misconduct. Statements made by jurors during deliberations were erroneously excluded in connection with the motion for a new trial. Therefore, we reverse the order denying the motion for a new trial with directions.
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