Clifford Masch authored "The Same Juror Rule," which was featured in Ohio Lawyer magazine. Please see Pages 20-21 in the flipbook attached here.
The article is also published in its entirety below with permission from the Ohio State Bar Association:
The Same Juror Rule
In O’Connell v. Chesapeake, 58 Ohio St.3d 220 (1991), the Ohio Supreme Court formally adopted what is commonly referred to as the same juror rule. The issue before the O’Connell court was whether those jurors who did not find in favor of the plaintiff on the existence of causal negligence against a defendant could then participate in the subsequent analysis of allocating comparative fault between the defendant determined to be non-negligent and other potentially responsible parties. After discussing the basis behind the competing principles of the same juror rule versus the any majority rule utilized in various jurisdictions, the O’Connell court concluded that same juror rule was the “more rationally and analytically sound rule” to apply to the matter before the court.
The O’Connell court predicated its adoption of the same juror rule on the reasoning that the determination of causal negligence on the part of one party should be a precondition to participate in the subsequent apportionment of comparative fault as between that party and others. The court held that it would be illogical to allow a juror who initially concluded that a defendant was not causally negligent to then participate in the allocation of some degree of fault as between the party determined to be non-negligent and other potentially responsible parties. The O’Connell court concluded that, when a juror finds that a defendant has not acted in a causally negligent manner, it becomes incomprehensible how that same juror can be called upon to apportion some degree of fault to that same defendant. Based upon this reasoning, the O’Connell court concluded “in a case tried under comparative negligence principles, three-fourths of the jury must agree as to both negligent and proximate cause as to the defendant and only those jurors who so find may then participate in the apportionment of comparative negligence as between that defendant and other responsible parties.”
A number of courts have since considered the potential application of the same juror rule discussed in O’Connell in the context of a juror’s resolution of other issues other than apportionment. These courts have generally held that the rule would not bar a juror’s participation in resolution of issues unless the issue was interdependent on the juror’s determination of no casual negligence against a defendant. For example, in West v. Curtis, 2009- Ohio-3050, the Belmont County Court of Appeals reviewed a situation where only seven of eight jurors had found the defendant was entitled to punitive damages. As a consequence, the trial court only permitted the seven jurors who determined that the plaintiff was entitled to punitive damages to participate in the determination as to the amount of the punitive damage award. The defendant argued that on appeal the trial court’s exclusion of the juror who did not find in favor of the plaintiff’s punitive damage claim to participate in the subsequent assessment of the amount of the punitive damages award and attorney fees violated the defendant’s right to a full jury trial on damages. In avoiding the resolution of this position, the West court held that no error could be deemed to arise from this argument as the jury verdict on the amount of punitive damages and for attorney fees was still agreed to by three-fourths of the jury. In sum, the West court determined that there could be no true error as the voting seven jurors which determined the amount of punitive damages and attorney fees constituted the requisite three-fourths to sustain the verdict.
A similar result was reached in Sagedy v. Cardiothoracic & Vascular Surgery of Akron, Inc., 182 Ohio App. 301, 718 (2000), where a juror concluded that a defendant physician had neither breached the standard of care or proximately caused the plaintiff’s injuries thereafter signed the general verdict form awarding damages. In addition, two other jurors who had found that the defendant physician did not deviate from the standard of care also participated in the apportionment of fault. While the Sagedy court concluded that these determinations violated the same juror rule as articulated in O’Connell, the court went on to find that the acts did not constitute reversible error as the conclusions on the general verdict and on apportionment were still supported by three-fourths of the jury even when disregarding the jury votes that violated the same juror rule.
Another court discussed the potential application of the holding in O’Connell to situations involving the determination of negligence and proximate cause in Estate of Mary Lawson v. Mercy Hosp. Fairfield, 2011 Ohio Misc. LEXIS 831. In that case, six of eight jurors found that a hospital was negligent in the provision of care and treatment to the plaintiff. However, two jurors who found in favor of the breach of the standard of care finding thereafter joined four other jurors in concluding that the breach of the standard of care was not a proximate cause of the plaintiff’s injury. All six jurors who signed “no” to the proximate cause interrogatory also signed the general verdict form in favor of the defendant hospital.
On appeal, the plaintiff argued that under the Ohio Supreme Court’s holding in O’Connell, only those jurors who found the existence of a breach of the standard of care could participate in the determination of proximate cause, the Estate of Mary Lawson court reasoned that the finding of negligence and proximate cause were not as would be subject to the O’Connellsame juror rule. Rather, the deliberation of whether the conduct of the hospital personnel fell below the standard of care was a separate and distinct analysis from the determination of a proximate cause nexus as between the hospital’s conduct and the resulting injury. The Estate of Mary Lawson court determined that the two elements necessary to establish a “causal negligence” finding (negligence and proximate cause) involve separate and distinct analyses which are not interdependent on each other.
Similarly, in Dillon v. Ohio Health Corp., 2015-Ohio-1389, the jury answered two separate interrogatories. The first addressed the question of whether the defendant was negligent and the second answered whether any negligence was a proximate cause of the plaintiff’s injuries. A six panel majority of the jury answered the first interrogatory “yes” and the second interrogatory “no.” However, the group of six who reached the negligence determination was different from the group of six that reached the proximate cause decision. Two jurors who signed the negligence interrogatory did not sign the proximate cause interrogatory. All eight jurors signed a general verdict form in favor of the defendant.
In addressing the potential application of the “same juror” rule to this situation, the Dillon court, similar to the common pleas court in Estate of Mary Lawson, held that the determination of negligence and proximate cause involved separate and distinct questions which are not interdependent. Accordingly, the Dillon court rejected the argument that the same juror rule prevented a juror who did not find negligence from participating in the determination of proximate cause. The Dillon court held that to conclude otherwise would deprive a party of a right to a full jury trial as guaranteed under the Ohio constitution.
Based upon a review of the case law discussed herein, a majority position has emerged that the O’Connell court’s same juror rule does not apply to the jury’s separate determination of the requisite elements of “causal negligence” which, by definition, would include both the determination of a breach of the standard of care and the determination of proximate cause. In sum, a juror who does not determine liability against a given defendant can still participate in the determination of damages against that defendant. Conversely, the courts have uniformly construed the O’Connell decision as prohibiting a juror who does not determine liability against a given defendant from participating in the allocation of fault as between that defendant and other potentially responsible parties. Interestingly, the application of these holdings may lead to a potential dilemma where there could be less than two-thirds of a jury who would be qualified to participate in the allocation analysis addressed in O’Connell. In this regard, a theoretical dilemma could arise where six of eight jurors who find a breach of the standard of care would share a common nucleus of four of the six of eight jurors who determine the existence of proximate cause. In other words, two of the jurors who did not find a breach of the standard of care would make up the requisite three-fourth six jurors finding on proximate cause. Under this possible scenario, a panel of the same six jurors that determined both requisite elements of “causal negligence,” (negligence and proximate cause) would no longer exist. In such case, there would be no possible six panel jury who could then participate in an allocation determination subject to the holding in O’Connell. Although the scenario outlined above has yet to be addressed by any Ohio court, it highlights the importance of remaining vigilant in the assessment of a uniformity of the jurors’ compliance with the same juror requirements set forth in O’Connell.