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Tellier v. Ford Motor Co. (3/20/92), 827 P 2d 1125
Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
EDWARD S. TELLIER, )
) Supreme Court File No.
Appellant, ) S-4239
) Superior Court File No.
) 3AN-88-7781 Civil
) O P I N I O N
FORD MOTOR COMPANY, )
Appellee. ) [No. 3823 - March 20, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Rene J. Gonzalez, Judge.
Appearances: Charles E. Tulin,
Anchorage, and Richard P. Clem, Minneapolis,
Minnesota for Appellant. Sigurd E. Murphy
and Steven S. Tervooren, Hughes, Thorsness,
Gantz, Powell & Brundin, Anchorage; John M.
Thomas and Gary L. Hayden, Office of the
General Counsel, Ford Motor Company,
Dearborn, Michigan, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
This appeal arises from a products liability case.
Plaintiff Edward Tellier sued Ford Motor Company for the injuries
Tellier suffered in a car accident. After the jury returned a
verdict in favor of Ford, Tellier filed a motion for a new trial.
He alleged that Ford had introduced prejudicial evidence of
Tellier's prior conviction for sexual abuse of a minor, in
violation of the court's ruling on a motion in limine. The
superior court denied that motion. Tellier appeals. We affirm.
Tellier suffered serious injuries when his 1982 Ford
EXP coupe went off the road and he was thrown through the car's
sunroof. Tellier sued Ford in strict liability and negligence,
claiming that his injuries were the result of the defective
design of the car's roof and sunroof.
Prior to trial, Tellier made a motion in limine to
prevent Ford from introducing evidence of Tellier's prior
conviction and incarceration for the crime of sexual abuse of a
minor in the first degree. Ford opposed the motion, arguing that
the evidence was admissible as substantive evidence that the
emotional problems exhibited by Tellier after the accident were
not caused by the accident, and as impeachment evidence to
challenge Tellier's credibility. Despite these arguments, Judge
Gonzalez granted Tellier's motion, ruling that Ford was precluded
from presenting any evidence of Tellier's conviction.
During the trial, Ford introduced into evidence
Tellier's medical records from Harborview Developmental Center as
a basis for an expert witness' opinions regarding Tellier's care
at Harborview. These records, marked Defendant's Exhibit B,
contained at least four references to Tellier's prior conviction,
on pages 4, 149, 158 and 275. Tellier did not initially object
to the admission of these pages into evidence. However, when
Ford's counsel later referred to specific pages of the medical
records while examining an expert witness, Tellier's counsel
objected to page 4 on the grounds that it contained a reference
to Tellier's conviction. Judge Gonzalez responded that he had
assumed when he admitted the medical records that both parties
had had the opportunity to review the records, and that they
would raise specific objections to documents contained within the
records at the time they were offered. He ruled that the
reference to the sexual abuse conviction on page 4 could not be
discussed by the doctor, and it was agreed that the sentence
referring to the conviction would be redacted from the document.
Judge Gonzalez then instructed counsel for both parties
to review the medical records for similar information:
[I]f the parties have not done so, I
highly recommend that you review the medical
records very closely. If there's any
objectionable information that the parties
want to move to excise from the records,
you'd better do it now because it's been
stipulated that the records are in evidence
and if there is a matter that shouldn't be
there, we'd better address it.
He later specifically instructed Tellier's counsel to review the
Harborview records carefully to ensure that the records did not
contain objectionable information:
I will suggest Mr. Tulin and Mr. Clem,
if you have not already done so, review those
Harborview records to determine whether or
not there are any other entries that deal
with the areas that the Court has covered
that will not be used in this trial.
Tellier's counsel reviewed the Harborview medical records later
that day and found another reference to Tellier's prior
conviction on page 158, which was subsequently redacted by
agreement of both parties. Tellier's counsel apparently did not
find the other two references to Tellier's prior conviction on
pages 149 and 275.
At the conclusion of the trial, Judge Gonzalez once
again instructed counsel for both parties to review the
documentary evidence carefully "to make sure that no document
that's not in evidence is inadvertently sent into the jury room."
Ford's counsel then sought to enter into evidence the pages of
the Harborview medical records which Dr. Reynolds relied on in
forming his opinion. It is not clear from the record whether
Ford's counsel intended to introduce these pages in addition to
the already admitted Harborview medical records, or in place of
the Harborview records. Tellier's counsel objected to the
admission of these pages into evidence, claiming that Ford should
not be allowed to select those pages of the medical records most
beneficial to its case for admission into evidence. Judge
Gonzalez sustained this objection, ordering all of the Harborview
records to be placed into evidence. It is not clear from the
record whether Ford or Tellier ultimately introduced the
Harborview records into evidence.
The jury deliberated for about one hour before
returning a unanimous verdict in favor of Ford. After the jurors
were excused, the wife of plaintiff's counsel contacted juror
John Samson. He told her that one of the trial exhibits
contained evidence pertaining to Tellier's conviction and
incarceration for the crime of sexual abuse of a minor. That
exhibit was Exhibit B, the three-ring binder containing Tellier's
medical records from Harborview Developmental Center.
Upon learning that Exhibit B contained evidence of
Tellier's prior conviction, Tellier filed a motion for a new
trial, arguing that the verdict had been tainted by the jurors'
review of that evidence. In response to Tellier's motion, Ford
produced the affidavits of John Samson and the jury foreman,
Michael Mason. Both jurors stated in their affidavits that the
document in question had not been seen by any of the jurors
before the verdict was reached.1
The trial court held an evidentiary hearing at which it
questioned both of these jurors extensively. Juror Mason, the
jury foreman, stated unequivocally that the inadmissible evidence
had not been seen by any juror before the deliberations were
concluded and the vote was taken. Juror Samson, who stated that
he did not pay attention to the other juror's activities during
the deliberations, was unsure whether any of the jurors looked at
Exhibit B during deliberations. He stated, however, that he
believed that the inadmissible evidence was not discovered until
after the deliberations were concluded and the vote taken.
Based on the record and the testimony of these two
jurors, Judge Gonzalez made several findings of fact. He found
that the jury did not discover the inadmissible evidence until
after it had unanimously agreed on the verdict. He found that
the medical records were available for inspection prior to trial
and that the court had instructed the parties on at least two
occasions during the trial to review the medical records to
ensure that they did not contain inadmissible evidence. He also
found that Ford had sought to admit only a small portion of
Exhibit B, which did not contain any objectionable information,
but that Tellier objected and offered instead the complete
Judge Gonzalez denied Tellier's motion for a new trial,
holding that the jury's verdict was not tainted by the
inadmissible entries in Exhibit B, and that Tellier had offered
the inadmissible evidence himself. Tellier appeals this
Alaska Rule of Evidence 103(c) directs judges to
conduct jury trials, "to the extent practicable, so as to prevent
inadmissible evidence from being suggested to the jury by any
means." One means by which a judge may prevent inadmissible
evidence from being suggested to the jury is to instruct the
parties to review the documentary evidence for inadmissible
information. After such an instruction, counsel for both parties
are required to carefully review the evidence for inadmissible
information.2 If a party fails to object to inadmissible
evidence contained in a certain document after the judge has
specifically instructed counsel to review that document for
inadmissible information, the party waives its right to later
object to the admission of that information into evidence. See
Thomson v. Wheeler Constr. Co., 385 P.2d 111, 115 (Alaska 1963).
In this case, Tellier's medical records from the
Harborview Developmental Center were introduced into evidence as
Exhibit B. On two occasions, Judge Gonzalez clearly instructed
counsel to review Exhibit B to ensure that it did not contain
objectionable information. Despite these instructions, neither
party objected to the two references to Tellier's prior
conviction which had not been redacted from Exhibit B. Because
both references would have been discovered had counsel reviewed
the exhibit, Tellier may not now predicate error upon the
admission into evidence of the unredacted references.3 In so
holding, we note that the record contains no evidence that Ford's
counsel knew that Exhibit B contained unredacted information
ruled inadmissible in a pre-trial order.
Tellier argues that Ford introduced Exhibit B into
evidence, and therefore he was not obliged to review the exhibit
for objectionable information. This argument fails.
Irrespective of which party introduced Exhibit B into evidence,
both parties were required to comply with Judge Gonzalez'
instructions to review Exhibit B for objectionable information.
His counsel having failed to do this, Tellier cannot now benefit
from that failure with an order for a new trial.
1. Tellier alleges that Ford violated Alaska Rule of
Evidence 606(b) in taking these affidavits. That rule provides:
Upon an inquiry into the validity of a
verdict or indictment, a juror may not be
questioned as to any matter or statement occurring
during the course of the jury's deliberations or
to the effect of any matter or statement 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, except that a
juror may testify on the question whether
extraneous prejudicial information was improperly
brought to bear upon any juror. Nor may his
affidavit or evidence of any statement by him
concerning a matter about which he would be
precluded from testifying be received for these
Because Ford questioned Samson and Mason as to the effect on the
jury of the references to Tellier's prior conviction contained in
Exhibit B, and because those references were not "extraneous"for
purposes of Rule 606(b), we find that Ford violated Rule 606(b)
in taking the affidavits. We therefore do not consider the
affidavits in deciding this case. See Commentary to Alaska R.
2. Even if a judge does not specifically instruct counsel
to review the exhibits for inadmissible evidence, all parties
should diligently and conscientiously examine the exhibits for
3. Tellier's counsel claims that, after Judge Gonzalez
instructed him to review the Harborview medical records for
objectionable information, he reviewed copies of the Harborview
medical records in the possession of his co-counsel's office.
This did not relieve him of the duty to review the records which
had actually been introduced into evidence.