The opinion of the court was delivered by: Lippman, Chief Judge
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
At the conclusion of a long and complex trial during which plaintiff sought to prove that defendant physicians had committed malpractice by failing to detect, diagnose and properly treat a tumor situated in her pelvis, the jury returned a verdict evidently exonerating defendants while purporting to award damages "for the plaintiff" in the amount of $1.5 million. Shortly after the verdict, plaintiff requested that the jury be polled to ascertain whether "each juror consents this is the verdict as read by the foreperson." The request was denied as "unnecessary" and the jury discharged. The trial court would, however, subsequently acknowledge that it had erred in denying the poll and, on that ground, grant plaintiff's posttrial motion to set aside the verdict and declare a mistrial. In the ensuing litigation, defendants have conceded that it was error not to poll the jury, yet urge that harmless error analysis may save the verdict.
In the decision and order now before us, brought up for review by plaintiff's appeal as of right, pursuant to CPLR 5601(d), from an Appellate Division order affirming the dismissal of her remaining claims, a divided Appellate Division panel agreed with defendants, and denied the previously granted motion to set aside the verdict. While the entire panel acknowledged that plaintiff had been entitled to have the jury polled and even that the entitlement was "absolute," the majority viewed the error as one of form only, since, in its estimation, "the objective facts set forth amply demonstrate[d] that polling the jury would not have resulted in a different verdict" (Duffy v Vogel, 49 AD3d 22, 25 [1st Dept 2007]). This view was, at bottom, premised upon the manner in which the verdict had been rendered: each member of the jury had signed the verdict sheet in response to each of the answered interrogatories, the jury's responses to the interrogatories had been uniformly unanimous, and during the foreperson's recitation of the verdict in open court, no juror cried out in protest. The dissenters countered that "[i]t is simply impossible, short of clairvoyance, to decide that no juror in this case would change his or her mind upon being polled facing the litigants in open court" (id. at 32), and, accordingly, would have held that the trial court's failure to honor plaintiff's absolute right to have the jury polled required that the verdict be set aside, as the trial court had done.
At common law, it was recognized that although jurors had agreed upon a verdict within the confines of the jury room and announced their verdict in open court, they might yet be examined by poll to determine whether they remained wedded to their verdict, and if it appeared that the verdict had been due to mistake or partiality, the jurors would, prior to the recording of the verdict, have an opportunity to "go together and consider the better of it, and alter what they have delivered" (2 Hale, History of the Pleas of the Crown at 299-300 [1800 ed]). That jurors "should be enabled to avail themselves of the locus penitentioe, and correct a verdict which they have mistaken or about which, upon further reflection, they have doubt" (Blackley v Sheldon, 7 Johns 32, 33-34 ) has been recognized in the vast majority of jurisdictions, and the polling of jurors in open court has been viewed as essential to the provision of such a locus, since, without the device, the reservations of individual jurors about a verdict to which they may have assented in the enforced privacy of the jury room under misapprehension, pressure from fellow jurors or out of sheer exhaustion, would likely never gain timely expression.
In New York, we have long recognized that affording jurors a last opportunity individually to express agreement or disagreement with the reported verdict, is, when requested by a litigant, indispensable to a properly published, and thereby perfected, verdict: "It is a general rule, that no verdict is of any force but a public verdict given in open court; until that is received and recorded there is no verdict. When the jury come to the bar to deliver their verdict, all or any of them have the right to dissent from a verdict to which they had previously agreed. (Root v. Sherwood, 6 John. 68.) A verdict is not recognized as valid and final until it is pronounced and recorded in open court: the jury may change their mind and disagree as to their verdict after they have pronounced it in open court before it is received and entered on the minutes. After a verdict is rendered or announced and before it is entered, the jury may be examined by the poll, if the court please, and either of them may disagree to the verdict. (Blakely v. Sheldon, 7 John. 32.) The expression in the last case, if the court please,' would seem to imply that the polling of the jury was in the discretion of the court; but in the case of Fox v. Smith, (3 Cowen, 23), and Jackson ex dem. Fink and others v. Hawks, (2 Wend. 619), it is decided to be the absolute right of a party to have the jury polled on their bringing in their verdict, whether it be sealed or oral, unless he has expressly agreed to waive that right" (Labar v Koplin, 4 NY 547, 550-551 ).
That a verdict may not be deemed "finished or perfected" until it is recorded, and that it may not be validly recorded without a jury poll where one has been sought,*fn1 (see Warner v New York Cent. R.R. Co., 52 NY 437, 442 ), have been uncontroversial propositions. Although we have not had the opportunity recently to reconsider them, they have been applied over the years with axiomatic force by New York's intermediate appellate courts (see Brigham v Olmstead, 10 AD2d 769 [3d Dept 1960] ["Not until inquiry is made of the whole jury, not merely the foreman, as to their verdict and it is duly entered by the Clerk is the verdict complete. Until it is thus announced there is no verdict"]; Muth v J & T Metal Prods. Co., 74 AD2d 898 [2d Dept 1980], lv dismissed 51 NY2d 745  [reinstatement of verdict following appellate denial of previously granted motion to set aside the verdict not possible because, in light of the trial court's denial of defendant's request to poll the jury, there was no valid verdict to reinstate]; see also Luppino v Busher, 119 AD2d 554, 556 [2d Dept 1986]; Ricchueto v County of Monroe, 267 AD2d 1012 [4th Dept 1999]; Matter of National Equip. Corp. v Ruiz, 19 AD3d 5, 12-14 [1st Dept 2005]). No cogent, principled argument is made for their revision here.
Inasmuch as, under New York law, the honor of a request for a jury poll is a necessary condition of a "finished or perfected" verdict, it follows that in this State's courts the failure to poll a jury may never be deemed harmless. Harmless error analysis is a judicial device employed to sustain an already perfected verdict, not to perfect a verdict in the first instance.
A verdict in a jury trial is emphatically not a judicial construct. Indeed, it is hard to know upon what empirical basis a verdict untested in open court by direct inquiry of the individual jurors might be judicially deemed to be the final expression of the jury's true intention. Here, it is important to understand that the relevant question is not whether the trial evidence was sufficiently persuasive to impel a hypothetical reasonable juror to vote in favor of the announced verdict, but rather whether each juror chosen by the parties to hear the case would, upon reflection, publicly affirm that the verdict agreed to in the jury room was the one he or she actually intended. The exercise of individual conscience involved is one whose outcome defies prediction.
Certainly, the prediction called for may not be based, as it was by the Appellate Division, on the circumstance that jurors have signed a verdict sheet. The proper publication of a verdict in open court, so long deemed essential to assure the integrity of the verdict, is not to be cast aside as a mere formality on the theory that jurors are prospectively bound to act in accordance with their verdict sheet signatures. Indeed, in Root v Sherwood (6 Johns 68 ), where the argument, here exactly reiterated, was made that "[t]he signing of the verdict is an express assent, by each juror, to the verdict, and is equivalent to a polling of the jury," the court responded,
"[t]here is no verdict of any force but a public verdict, given openly in court; until it was received and recorded, it was no verdict, and the jury had the right to alter it as they may a private verdict. The previous agreement, that the jury might seal up their verdict, did not take away from the parties the right to a public verdict, duly delivered. There being, then, no legal verdict in this case, a new trial must be awarded."
(See also Dore v Wyer, 1 AD2d 973, 973 [2d Dept 1956] [denial of plaintiff estate administrator's request for a jury poll as "unnecessary" upon the ground that ten jurors had signed the verdict sheet required reversal and a new trial since "[t]he administrat[or] had an absolute right to have the jury polled, and the denial of that right was serious error"]). Nor can there be any conceptually viable contention that the outcome of the public polling sought was foregone since the jurors in the present case privately signed the verdict sheet in numerous places, particularly since, had they followed instructions and concluded their deliberations after finding that defendants had not been negligent, their signatures would have been significantly less numerous.
Finally, we do not think it sensible to expect that a juror would in open court spontaneously pipe up his or her disagreement with an announced verdict. Jurors who have been pushed to a verdict about which they have serious reservations are not likely moments later in the solemn and intimidating atmosphere of the courtroom attending the announcement of the verdict to feel free to express their ...