NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: September 4, 2024
S24A0687, S24X0643. JOSEPH POPPELL et al. v. CARDINAL
HEALTH INC. et al.; and vice versa.
MCMILLIAN, Justice.
The family members of individual drug abusers brought this
action against several wholesale distributors of prescription
medications, alleging that they distributed controlled substances in
violation of state and federal law, resulting in the family members’
injuries by the drug abusers. In Case. No. S24A0687, the family
members (hereinafter “Appellants”) appeal from the final judgment
entered on the jury’s verdict in favor of the distributors (hereinafter
“Appellees”), arguing that the trial court committed reversible error
in denying Appellants’ motion for new trial, which contended that a
juror was dishonest during the selection process and introduced
extraneous prejudicial information during deliberations, and that
the trial court erred in refusing to instruct the jury on willful
blindness. In Case No. S24X0643, the distributors cross-appeal,
arguing that in the event this Court vacates the judgment in the
main appeal, the Court should determine that Georgia’s Drug
Dealer Liability Act, OCGA § 51-1-46 (“DDLA”), is unconstitutional
in that it violates due process by imposing liability without requiring
any transactional nexus between a defendant’s conduct and a
plaintiff’s injury; 1 that Appellees are “licensed practitioners” exempt
from liability under the DDLA; that the Appellants’ allegations of
regulatory violations cannot support a DDLA claim; and the
physical-impact rule bars most of Appellants’ claims. In Case No.
S24A0687, we reject Appellants’ enumerations of error and
therefore affirm. Our holding makes it unnecessary to address the
distributors’ cross-appeal, so we dismiss Case No. S24X0643 as
1 This Court has exclusive jurisdiction over all cases in which the
constitutionality of a law has been drawn into question, even if the question is
raised in a cross-appeal. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II; State v. Mondor, 306 Ga. 338, 339 n.2 (830 SE2d 206) (2019) (recognizing that when
the Court has subject matter jurisdiction over a cross-appeal, the Court has
jurisdiction “over the whole case”).
2
moot. See Rockdale County v. U.S. Enterprises, Inc., 312 Ga. 752,
753 (865 SE2d 135) (2021).
Appellants are 21 individuals who are the spouses, parents,
siblings, and/or children of individual drug abusers in and around
Glynn County whose drug addictions allegedly caused emotional
neglect and abuse that injured Appellants. Appellees are DEAregistered, state-licensed wholesale distributors of prescription
medications, including controlled substances, who supplied those
drugs to pharmacies. In their complaint, Appellants alleged
violations of the DDLA (OCGA § 51-1-46) and the Georgia Racketeer
Influenced and Corrupt Organizations Act (OCGA § 16-14-1 et seq.),
and negligence and breach of duty by Appellees and certain
pharmacies.2 Generally, Appellants’ DDLA claims alleged that the
drug abusers who injured them became addicted to prescription
opioids as a result of Appellees’ failure to report suspicious orders of
controlled substances to pharmacies in the Glynn County area or to
2 Before trial, Appellants dismissed their breach of duty claims and the
pharmacy defendants settled, and during trial, Appellants dismissed their
negligence claims.
3
halt shipments of those orders.
A jury trial was held between January 23 and March 1, 2023.
At trial, Appellants argued and attempted to show that Appellees
distributed controlled substances in violation of state and federal
law to pharmacies who used those drugs to fill thousands of invalid
prescriptions from “pill mill” doctors. Based on the evidence at trial,
Appellants argued that Appellees had an unspoken understanding
with those pharmacies to make money by supplying the controlled
substances to fill those prescriptions, resulting in their use by
individual drug abusers who injured Appellants in the course of
their drug abuse. According to Appellants, the evidence proved that
Appellees violated state and federal law by failing in their duties to
maintain effective controls against the diversion of the controlled
substances they distributed; by failing to conduct adequate due
diligence on their pharmacy customers; and by failing to identify,
report, and halt suspicious orders of controlled substances to those
pharmacies, including shipments to the pharmacies that dispensed
the controlled substances actually used by the individual drug
4
abusers who injured Appellants, deliberately ignoring numerous red
flags in order to continue shipping the suspicious orders.
Appellees, however, argued that the evidence showed that they
had created and maintained compliance and due diligence programs
to guard against diversion of controlled substances and that they
followed the directives from federal and state regulators about
tracking and reporting suspicious pharmacy orders. At the close of
Appellants’ case, Appellees moved for a directed verdict on the
grounds that the DDLA violates due process, that Appellees are
“licensed practitioner[s]” the DDLA expressly exempts from
liability, that the alleged regulatory violations do not support DDLA
claims, and that the physical-impact rule barred the claims of most
Appellants. The trial court summarily denied Appellees’ motion,
and the case was submitted to the jury.
On March 1, 2023, the jury returned a verdict that none of the
remaining defendants were liable as to any of the plaintiffs’ claims.
These appeals followed.
1. Appellants’ primary contentions concern whether a new
5
trial should be granted based on allegations that one of the jurors
(Juror S.T.) introduced extraneous prejudicial information into jury
deliberations or was dishonest during jury selection.
According to the representations in Appellants’ pleadings both
here and below, about a week after the verdict was rendered, the
jury foreperson contacted Appellants’ counsel to inform counsel of
alleged misconduct by Juror S.T. and provided an affidavit
describing the alleged misconduct. The foreperson’s affidavit,
executed six days after entry of the final judgment, averred that
during jury deliberations Juror S.T. told the jury that he knew
individual drug abuser Ethan Tindall, who testified at trial, as well
as Tindall’s family; that Juror S.T. “suggested” that he had engaged
in criminal activity with Tindall and his brother; that Juror S.T. had
been a bad person; that Juror S.T. said that the Tindalls are bad
people and that Tindall was still engaging in criminal activity; and
that Juror S.T. suggested that God had put him on the jury to
prevent people like Tindall’s family from recovering from this
lawsuit.
6
Appellants moved for a new trial based on the grounds that
Juror S.T. had introduced extraneous prejudicial information during
deliberations and that Juror S.T. had not been truthful during voir
dire regarding his knowledge of and relationship with Tindall. 3 In
support of their claims, Appellants submitted affidavits from the
foreperson and an associate of S.T. named M.B. M.B. averred that
S.T. had discussed the trial with him and that M.B. “understood”
that S.T. knew Scott and Brandy Turner, who were parties to the
case.
3Juror S.T. answered “no” to the following questions on the jury
questionnaire:
25. Have you, or any of your close friends or family members
. . . struggled with issues of substance abuse?
26. Do you know anyone who has been involved with or
addicted to illegal or street drugs (heroin, meth, cocaine, etc.)?
27. Do you know anyone who has been addicted to
prescription drugs (pain pills, muscle relaxers, sleeping pills, etc.)?
28. Have you heard about, read about, or watched programs
about the opioid crisis in our nation?
29. Do you, for any reason, have knowledge or experience
with any drugs classified as prescription opioids (e.g. oxycodone,
hydrocodone, morphine, methadone, tramadol, fentanyl)?
Appellants also asserted that S.T. untruthfully answered the question
“Is there anything else that you would like to tell the Court and the parties in
this case? If so, please tell us here[.]” by answering “All I do is work an[d] go
home.” And Appellants contended that S.T. did not disclose when asked at voir
dire that he knew any of the parties or individual drug abusers, including
Ethan Tindall.
7
Appellees submitted the affidavits of Jurors S.T., D.F., and
B.D. in opposition to the motion for new trial. Jurors D.F. and B.D.
both averred that they had “no recollection” of S.T. making the
statements attributed to him by the foreperson. S.T. averred that
he does not know Tindall, the Turners, or their families and that he
did not “recall hearing the names of any of the [individual drug
abusers] or Plaintiffs before trial.” He specifically denied making
the statements about Tindall that the foreperson attributed to him.
He did not address the assertions about his conversation with M.B.
or other alleged statements about his purpose for serving on the
jury.
The trial court held a hearing on Appellants’ motion for new
trial on June 27, 2023, where the court sought to determine whether
it needed to hear from witnesses and if so, from whom. The trial
court announced that it could determine whether “extraneous
information . . . [had been] brought in by the affidavits . . . without
any questioning of any witnesses” and that it would only hear from
S.T. regarding the allegations of dishonesty, stating: “All I’m
8
interested in is the voir dire process and questionnaire process and
whether he was truthful in that process. And I’ll ask the questions
and it will be short.” The court then scheduled another hearing for
July 21, 2023, where it called S.T. to testify.
Prior to the July hearing, Appellants submitted multiple
proposed questions for the trial court to ask S.T., as well as multiple
exhibits to support their contention that S.T. had misrepresented
during voir dire that he did not know anyone suffering from drug
addiction. These exhibits included a verified counterclaim from
S.T.’s divorce proceeding in which his ex-wife stated that he had a
“habitual drug addiction.” Appellants also provided other criminal
and court records, which they argued showed that M.B. and another
individual named K.B. were both people S.T. knew well and that
M.B. and K.B. had drug problems.
At the July hearing, S.T. testified that in filling out the
questionnaire, he had done his best to “be as truthful as I
remembered it”; that neither he nor any of his family members had
ever struggled with substance abuse; and that although he learned
9
“through this case” that some people he knew struggled with
substance abuse, “[a]t the time” of the jury selection process, “I
didn’t really know nobody that was, you know, addicted.” He flatly
denied knowing Tindall or the Turners and testified further that he
did not introduce extraneous information about Tindall during
deliberations. S.T. admitted discussing the trial with M.B. but said
that the conversation occurred after the trial was over. He testified
that, in his role as a juror, he decided the case based on the evidence
presented at trial and the law given by the trial court. A few days
after the hearing, the trial court entered its order stating that “[t]he
court has reviewed the motion and heard arguments regarding the
same on June 27, 2023 and on July 21, 2023. After careful
consideration and review, it is hereby ORDERED that the Plaintiffs’
motion for new trial be DENIED.”
(a) Appellants contend that Juror S.T.’s introduction of
extraneous prejudicial information into jury deliberations deprives
them of their right to a fair and impartial jury and requires a new
trial. More specifically, they argue that by suggesting to the jury
10
during deliberations that Tindall continued to be engaged in
criminal activity, S.T. was telling the jury that Tindall had lied to
them on the stand when he claimed otherwise and that this was
extraneous prejudicial information.
“A motion for new trial because of improper juror conduct is
addressed to the sound discretion of the trial judge, and unless there
is an abuse of discretion, an appellate court will not upset the trial
court’s determination.” Dorsey v. State, 279 Ga. 534, 544 (5) (615
SE2d 512) (2005); see also Collins v State, 308 Ga. 608, 611-12 (2)
(842 SE2d 811) (2020); Armstrong v. Gynecology & Obstetrics of
DeKalb, P.C., 327 Ga. App. 737, 740 (1) (761 SE2d 133) (2014)
(noting that “the new Evidence Code does not change [this] longstanding rule”). “[I]f a trial court determines that extraneous
information was provided to the jury, it will have to evaluate
prejudice.” Beck v. State, 305 Ga. 383, 387 (2) (825 SE2d 184) (2019).
As pointed out by both parties, OCGA § 24-6-606 (b) is the
evidentiary rule that limits the kind of evidence that may be
admitted from a juror after verdict when there is a challenge to the
11
validity of the verdict:
Upon an inquiry into the validity of a verdict or
indictment, a juror shall not testify by affidavit or
otherwise nor shall a juror’s statements be received in
evidence as to any matter or statement occurring during
the course of the jury’s deliberations or to the effect of
anything upon the jury deliberations or any other juror’s
mind or emotions as influencing the juror to assent to or
dissent from the verdict or indictment or concerning the
juror’s mental processes in connection therewith;
provided, however, that a juror may testify on the
question of whether extraneous prejudicial information
was improperly brought to the juror’s attention, whether
any outside influence was improperly brought to bear
upon any juror, or whether there was a mistake in
entering the verdict onto the verdict form.
OCGA § 24-6-606 (b) (“Rule 606 (b)”). See Ford Motor Co. v. Conley,
294 Ga. 530, 550 (3) (b) n.13 (757 SE2d 20) (2014) (“The statutory
limitation on questioning jurors after their verdict is now found in
OCGA § 24-6-606 (b).”); see also Harris v. State, 314 Ga. 51, 54-55
(2) (875 SE2d 649) (2022) (“Rule 606 (b) governs what is or is not
admissible to sustain or impeach a verdict, creating a nearly
categorical bar on juror testimony, with only three specific
exceptions.” (citation and punctuation omitted)); Beck v. State, 310
Ga. 491, 495 (1) (852 SE2d 535) (2020) (“Although a juror may testify
12
to any facts bearing upon the question of the existence of any
extraneous influence, the court may not inquire into the subjective
effect of such information on the particular jurors.” (citation and
punctuation omitted)).
Citing Rule 606 (b), Appellees first argue that the foreperson’s
affidavit testimony about S.T.’s alleged statements during
deliberations was inadmissible to the extent that it did not concern
whether extraneous prejudicial information was improperly brought
to the jury’s attention. We agree. Under Rule 606 (b), evidence
about S.T.’s statements made in deliberations concerning his own
mind or emotions or mental processes during deliberations—
evidence such as the foreperson’s averments that S.T. stated he was
a bad person and did bad things and perceived a divine purpose in
serving on the jury—was inadmissible, and we do not consider it.
See OCGA § 24-6-606 (b).
Thus, in our analysis, we will only consider evidence of
potentially extraneous information that was allegedly introduced by
S.T. during deliberations. As averred by the foreperson, these
13
statements include that S.T. knew Tindall and “suggested” he had
engaged in criminal activity with Tindall and “suggested” that
Tindall was still engaged in criminal activity. However, S.T.
testified that he did not know Tindall and specifically denied making
the allegedly prejudicial extraneous statements about Tindall that
the foreperson attributed to him, and Jurors D.F. and B.D. both
averred that they had “no recollection” of S.T. making such
statements.
Although the trial court denied the motion for new trial
without making express factual findings or determinations on
credibility, we have held that “[i]t is well settled that a trial court is
not required to issue written findings of fact and conclusions of law
when deciding a motion for new trial.” Lynn v. State, 310 Ga. 608,
611 (2) (852 SE2d 843) (2020). In such cases involving a summary
denial of a motion for new trial, we have also held that “in the
absence of explicit factual and credibility findings by the trial court,
we presume implicit findings were made supporting the trial court’s
decision.” Anthony v. State, 311 Ga. 293, 297 (3) (857 SE2d 682)
14
(2021) (citation and punctuation omitted). See also State v. Walden,
311 Ga. 389, 390 (858 SE2d 42) (2021) (“Where, as here, the trial
court was not required to make explicit factual findings or credibility
determinations on the record, and in fact did not do so, we assume
that the trial court implicitly resolved all disputes of fact and
credibility in favor of its ruling, and we generally accept such
implicit factual findings unless clearly erroneous.” (emphasis
added)); Cain v. State, 306 Ga. 434, 438 (2) (831 SE2d 788) (2019)
(assuming that trial court credited testimony of officers over
defendant where trial court ruled that defendant’s statement was
voluntary without making explicit factual findings); Dallow v.
Dallow, 299 Ga. 762, 777 (4) (791 SE2d 20) (2016) (recognizing that
“[i]n the absence of a contrary showing, the trial court will be
presumed to have followed the law” (citation and punctuation
omitted)).
Because the trial court was authorized to credit S.T.’s live
testimony over the testimony provided by the foreperson by
affidavit, and was likewise authorized to give more weight to the
15
affidavit testimony of Jurors D.F. and B.D., whose averments
supported S.T.’s live testimony, in concluding that no extraneous
prejudicial information was provided to the jury, we see no abuse of
discretion in denying a new trial on this basis. See Beck, 310 Ga. at
496 (1) (affirming trial court’s denial of motion for new trial based
on introduction of alleged extraneous prejudicial information during
jury deliberations because “[o]n this record, the trial court was
entitled to conclude that any testimony suggesting that the jury
received [extraneous prejudicial] information . . . was not credible”);
Burney v. State, 309 Ga. 273, 293 (5) n.16 (845 SE2d 625) (2020)
(“Because the trial court was sitting as a trier of fact in determining
what transpired during jury deliberations, we defer to its resolution
of this and any other conflicts or inconsistencies in the evidence
presented.”). This enumeration of error fails.
(b) Appellants also contend that S.T.’s dishonesty during the
jury selection process requires a new trial. 4 This claim can be
4 Rule 606 (b)’s limitations also apply to this claim and constrain our
review of it on appeal, as explained more below. See Warger v. Shauers, 574
16
resolved on a similar basis because the record supports a trial court
finding of no material dishonesty.
To obtain a new trial on the ground that a juror did not give a
correct response to a question posed on voir dire or in a jury
questionnaire, a party “must show that the juror failed to answer
the question truthfully and that a correct response would have been
a valid basis for a challenge for cause.” Sears v. State, 270 Ga. 834,
840 (2) (514 SE2d 426) (1999). See Gainesville Radiology Group v.
Hummel, 263 Ga. 91, 93 (428 SE2d 786) (1993) (relying on
McDonough Power Equipment Inc. v. Greenwood, 464 U.S. 548, 556
(104 SCt 845, 78 LE2d 663) (1984), to hold that “new trials will not
be granted unless the movant can demonstrate that: ‘a juror failed
to answer [or to answer] honestly a material question on voir dire,
U.S. 40, 44-48 (II) (135 SCt 521, 190 LE2d 422) (2014) (holding that Federal
Rule 606 (b)’s preclusion applies to claims for a new trial made on the ground
that a juror lied during voir dire and prohibits the use of evidence of
deliberations to show dishonesty during voir dire); see also Beck, 305 Ga. at
385-86 (2) (“Rule 606 (b) is borrowed from the Federal Rules of Evidence,” and
“[w]hen Georgia courts consider the meaning of provisions borrowed from the
Federal Rules of Evidence, they are guided by the decisions of the federal
appeals courts construing and applying the Federal Rules, especially the
Eleventh Circuit.”) (citation and punctuation omitted).
17
and then further show that a correct response would have provided
a valid basis for a challenge for cause’”). In this context the ruling
on the motion for new trial was committed to the sound discretion of
the trial court, it was the trial court’s role as the fact-finder to
determine issues of credibility and resolve any inconsistencies in the
admissible evidence, and “[t]he trial court’s findings of fact on the
question whether a juror answered a [ ] question untruthfully will
be upheld unless clearly erroneous.” Jones v. State, 289 Ga. App.
767, 771 (4) (658 SE2d 386) (2008); see also Dorsey, 279 Ga. at 544
(5) (“A motion for new trial because of improper juror conduct is
addressed to the sound discretion of the trial judge, and unless there
is an abuse of discretion, an appellate court will not upset the trial
court’s determination.”); Hummel, 263 Ga. at 93. And again, where,
as here, the trial court was neither required to, nor did make explicit
factual and credibility findings, we presume that it implicitly
resolved any and all disputes of fact and credibility in favor of its
ruling, and we generally accept those implicit factual findings unless
clearly erroneous. See Walden, 311 Ga. at 390; Anthony, 311 Ga. at
18
297 (3).
Here, while Appellants presented admissible evidence that
they argue supports a finding that S.T. was dishonest during the
selection process, any such findings of dishonesty must be made by
the finder of fact after resolving any inconsistencies, making
credibility determinations, and weighing the evidence. Appellants
argue that S.T. dishonestly answered “no” to questions in the jury
questionnaire about whether S.T. knew of friends or family
members who were drug abusers or had heard about the opioid
crisis. Appellants argue that the evidence they presented—namely,
S.T.’s ex-wife’s assertion during their divorce proceedings that he
had a “habitual drug addiction,” and the records showing that M.B.
and K.B., whom S.T. knew, were involved with illegal drugs—proved
that S.T.’s answers to those questions were dishonest. But a lone
allegation by an ex-spouse in a divorce proceeding hardly establishes
proof of that allegation, all the more when denied by the accused, as
is the case here. And evidence that S.T. knew people who happened
to be involved with illegal drugs—even evidence indicating that he
19
may have known those people fairly well and was friendly with
them—does not constitute irrefutable proof that S.T. knew about
their involvement with drugs or that he was dishonest in failing to
so say. To the contrary, S.T. testified at the hearing that he did not
struggle with addiction and that he knew both M.B. and K.B. but
was not aware of their alleged involvement with drugs; the trial
court was authorized to credit that testimony.5
Appellants also argue that the foreperson’s averment that S.T.
knew Tindall and M.B.’s averment that S.T. knew the Turners,
prove that S.T.’s silence during voir dire when asked whether he
knew Tindall or Scott Turner was dishonest. Again, aside from the
5 Appellants argued in passing in their appellate briefing, but more at
oral argument, that record evidence concerning S.T.’s divorce proceedings, as
well as a bankruptcy proceeding, proves that he was dishonest in failing to
indicate on his questionnaire that he had ever been a plaintiff or defendant or
had any involvement in a lawsuit or court case. But even if we take S.T.’s
failure to make such indications as an affirmative answer that he had not done
the above, S.T. also clearly stated in his questionnaire that he was “[d]ivorced”
and owed “child support”; the trial court was not required to find that a lay
person’s failure to identify divorce or bankruptcy proceedings as lawsuits or
court cases constituted dishonesty; and regardless, Appellants have not
demonstrated that a different response from S.T. would have provided a valid
basis for a challenge for cause. See Sears, 270 Ga. at 840 (2). The same goes
for S.T.’s allegedly dishonest answer as to whether he had heard, read, or
watched programs about the nation’s opioid crisis.
20
admissibility of the foreperson’s averments on that point, there was
contradictory testimony in the record, including S.T.’s testimony
that he did not know Tindall or the Turners, which testimony the
trial court was authorized to credit.
Appellants also point to S.T.’s hearing testimony to support
their claims of his dishonesty:
[H]ow I made my decision was – this was me personally,
but like, for instance, if I went down here to an alcohol
beverage store and I bought an alcohol beverage and I left
from here and I drunk that bottle and I got in an
automobile accident and I killed that other party, so is it
going to be on the distributor who distributed that bottle
to that company? That’s how I made my decision.
According to Appellants, this testimony proves that S.T. was
dishonest during voir dire when he remained silent when the panel
was asked generally if they disagreed with lawsuits brought by
those injured by drug abusers against the drug distributors. But
S.T.’s testimony about his mindset in deciding the case during
deliberations is inadmissible under Rule 606 (b). See Rule 606 (b)
(“Upon an inquiry into the validity of a verdict . . . a juror shall not
testify by affidavit or otherwise nor shall a juror’s statements be
21
received in evidence as to any matter or statement occurring during
the course of the jury’s deliberations or to the effect of anything upon
the jury deliberations . . . or concerning the juror’s mental processes
in connection therewith.”). Appellants otherwise point to various
other portions of S.T.’s hearing testimony, which they characterize
as “evasive,” “implausible,” and “unbelievable,” but, again, it was for
the trial court, as factfinder, not this Court, to make credibility
determinations, resolve inconsistencies, and weigh the evidence. See
Beck, 310 Ga. at 496 (1); Burney, 309 Ga. at 293 (5) n.16.
Appellants also argue on appeal why they believe S.T. was not
credible and why they believe the other evidence they submitted
proved that he was dishonest. Although they point to United States
v. Perkins, 748 F2d 1519 (11th Cir. 1984), for the proposition that
an appellate court can make credibility determinations to override
a trial court’s denial of a motion for new trial based on juror
dishonesty, that is not what Perkins held. To the contrary, Perkins
applied the federal clearly erroneous standard to hold that the trial
court clearly erred in determining that the juror did not make an
22
intentional misrepresentation during voir dire, reasoning that it
was objectively demonstrable from the record that the juror failed to
honestly answer material questions. See Perkins, 748 F2d at 1529-32 (IV). That is neither inconsistent with the standard we have set
forth and applied here, nor does it persuade us to reverse the trial
court’s credibility determinations and factual findings in this case,
which are supported by evidence in the record and are therefore not
clearly erroneous.
Because the trial court was authorized on this record to find
that S.T. did not answer dishonestly a material question during voir
dire or in the juror questionnaire, the trial court did not abuse its
discretion in denying Appellants’ motion for new trial on that
ground. See, e.g., Lucas v. State, 274 Ga. 640, 647 (11) (555 SE2d
440) (2001) (appellant not entitled to new trial on the basis of juror’s
voir dire responses where the record did not establish dishonesty).
This enumeration also fails.
(c) Lastly, Appellants contend that at a minimum, the trial
court failed to conduct an adequate inquiry into whether extraneous
23
prejudicial information was introduced to the jury and that a
remand is required for a full evidentiary hearing, including a
“thorough and sifting cross-examination” of S.T. We disagree.
Relying on a series of federal criminal cases for the principle
that a failure to hold a hearing on allegations of outside influences
on the jury is an abuse of discretion, see, e.g., Remmer v. United
States, 347 U.S. 227, 229-30 (74 SCt 450, 98 LE2d 654) (1954);
United States v. Chiantese, 582 F2d 974, 979 (5th Cir. 1978);
Richardson v. United States, 360 F2d 366, 369 (5th Cir. 1966);
United States v. Harris, 908 F2d 728, 733 (11th Cir. 1990),
Appellants point to the trial court’s statement at the first hearing on
their motion for new trial that it could determine whether
extraneous information had been brought in by the affidavits
without questioning any witnesses and that it would only need to
hear from S.T. regarding the allegations of dishonesty, arguing that
this demonstrates that the trial court abused its discretion by not
holding a full hearing on S.T.’s alleged introduction of extraneous
information during deliberations and alleged dishonesty during the
24
selection process.
But in reviewing the claims of alleged juror misconduct in this
case, the trial court held two hearings on Appellants’ motion for new
trial; examined S.T., asking approximately 50 questions—many of
which Appellants proposed—which later constituted over a dozen
transcript pages; received into evidence the affidavit testimony of
four different jurors, as well as all the exhibits Appellants tendered
in support of their motion; and heard and considered extensive
written and oral arguments from the parties. Also, a review of the
trial court’s examination of S.T. at the second hearing on Appellants’
motion shows that the court asked S.T. about his responses during
the jury selection process that he did not know any of the parties or
individual drug abusers in this case; that the court asked about
whether he knew Tindall—the subject of Appellants’ extraneous
prejudicial information claim; and that the court specifically asked
S.T., “[d]uring trial, did you introduce any elements that you learned
outside the jury room and outside this courtroom to the other
jurors?” The trial court also heard Appellants argue at length, both
25
before and after the court questioned S.T., about the various exhibits
they submitted to the court and how Appellants believed that each
piece of this documentary evidence impeached S.T.’s credibility and
demonstrated both that he was dishonest during the selection
process and that he introduced extraneous prejudicial information
during deliberations.
Moreover, although Appellants claim that their right to crossexamine S.T. under OCGA § 24-6-611 (b) was curtailed, we conclude
that the trial court acted within its discretion in its determination
of the mode and presentation of evidence at the second hearing.
OCGA § 24-6-611 (b) provides in relevant part: “The right of a
thorough and sifting cross-examination shall belong to every party
as to the witnesses called against the party.” S.T., however, was not
a witness called “against” Appellants, so it does not appear that the
statutory right to a “thorough and sifting cross-examination” applies
to S.T. Also, even if subsection (b) were somehow relevant here, the
statutory context proceeding it, namely OCGA 24-6-611 (a) (3),
provides that “the court shall exercise reasonable control over the
26
mode and order of interrogating witnesses and presenting evidence
so as to . . . [p]rotect witnesses from harassment or undue
harassment.” As this Court has indicated, “the necessity of
protecting jurors from post-trial harassment” was one of the reasons
supporting a former statutory rule against allowing jurors to
impeach their own verdict. See Watkins v. State, 237 Ga. 678, 684
(229 SE2d 465) (1976) (emphasis added). Here, the trial court acted
well within its discretion in controlling the mode and presentation
of evidence by propounding its own questions to S.T. and without
permitting cross-examination by either side.
For these reasons, whatever the requirement for the inquiry is
in this context, we hold that under the circumstances of this case,
the court acted within its discretion in investigating the allegations
of juror misconduct and that a remand for another evidentiary
hearing is not required. See, e.g., Smith v. Phillips, 455 U.S. 209,
215-17 (II) (102 SCt 940, 71 LE2d 78) (1982) (“Due process means a
jury capable and willing to decide the case solely on the evidence
before it, and a trial judge ever watchful to prevent prejudicial
27
occurrences and to determine the effect of such occurrences when
they happen,” and when there are allegations of juror partiality,
“[s]uch determinations may properly be made at a hearing” where
the court may “ascertain the impartiality of a juror by relying solely
upon the testimony of the juror in question.”); United States v. Lloyd,
661 Fed. Appx. 605, 607-08 (11th Cir. 2016) (trial court’s decision to
question the juror accused of misconduct but not the other jurors
more extensively was an adequate investigation and therefore not
an abuse of discretion); Burney, 309 Ga. at 292 (5) (affirming trial
court’s denial of motion for new trial based on juror misconduct
where trial court appointed sheriff’s department to conduct
independent investigation and “prohibited both [parties] from
conducting other investigations into the issue”). Therefore, this
enumeration also fails.
2. Appellants also contend that the trial court committed
reversible error in refusing their request that the jury be instructed
28
on willful blindness. 6 We disagree.
Citing Able v. State, 312 Ga. App. 252 (718 SE2d 96) (2011),
Appellants requested that the trial court instruct the jury:
The element of knowledge may be satisfied by inferences
drawn from evidence that a Defendant deliberately closed
its eyes to what would have otherwise been obvious to it.
A finding of conscious purpose to avoid enlightenment
would permit an inference of knowledge. Stated another
way, a Defendant’s knowledge of a fact may be inferred
from willful blindness to the existence of the fact.
Whether or not you draw any such inference is a matter
solely within your discretion.
See id. at 261 (3) (b) (setting forth the appropriate language for a
jury instruction on deliberate ignorance to prove the knowledge
element of a violation of a criminal statute). But the trial court
ruled, “I find that’s argumentative. You can argue that to the jury,
but I am not going to give the charge on it.”
We need not decide whether the trial court erred in refusing to
give the charge on willful blindness in this civil case—which
Appellants requested based on similar language taken from
6 Appellants again objected, after the court instructed the jury, to the
court’s refusal to give the requested willful blindness charge.
29
criminal case law—because pretermitting that issue, Appellants
have not shown that they were harmed by the trial court’s refusal to
give the requested charge. In civil cases, OCGA § 9-11-61 provides:
[N]o error or defect in any ruling or order or in anything
done or omitted by the court . . . is ground for granting a
new trial or for setting aside a verdict or for vacating,
modifying, or otherwise disturbing a judgment or order,
unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every
stage of the proceeding must disregard any error or defect
in the proceeding which does not affect the substantial
rights of the parties.
See also Fulton Nat. Bank of Atlanta v. Marshall, 245 Ga. 745 (267
SE2d 225) (1980) (conducting harmless-error review of refusal to
give requested charge). We have described OCGA § 9-11-61 as
“exhort[ing] the appellate courts to disregard errors or defects in the
proceeding which do not affect the substantial rights of the parties,
but leav[ing] open the question of how to determine when an error
affected the parties’ substantial rights or that the failure to correct
the error was inconsistent with substantial justice.” Phillips v.
Harmon, 297 Ga. 386, 392 (I) (B) (774 SE2d 596) (2015) (cleaned up).
“[W]hether an error requires reversal depends on the nature of the
30
error and the importance of the issue to which it applies.” Id.
(citation and punctuation omitted).
Here, the trial court instructed the jury, “Plaintiffs allege that
the Defendants distributed or conspired to distribute certain
controlled substances in violation of state and federal laws” and
“Plaintiffs allege that the Defendants through an unspoken
understanding, conspired with the pharmacies to make money
through the distribution of controlled substances used to fill invalid
prescriptions.” The trial court explained that a “[c]onspiracy
involves persons pursuing a common objective through a common
plan,” that “[t]he law recognizes the difficulty of proving a
conspiracy,” and thus that “it is not necessary for the persons
involved in the conspiracy to . . . have entered into any explicit or
formal agreement,” so long as they had a “mutual understanding[.]”
The court further charged: “An understanding may be proved by
circumstantial evidence. This means the understanding may be
inferred from the nature of the acts done, the relation of the parties,
the interest of the alleged conspirators and other circumstances. A
31
Defendant’s participation in a conspiracy may also be inferred from
any acts by the Defendant which furthered the objectives of the
conspiracy. In other words, the existence of a conspiracy can be
inferred from the conduct of the participants.” The court instructed,
“[i]f you find that any Defendant had such an understanding with
any of the pharmacies, then that Defendant is responsible for the
conduct of all of the persons with which it had such an
understanding,” before charging the jury, “[i]f you find a pharmacy
or pharmacist filled a – filled prescriptions for a controlled substance
that they knew or should have known were not issued for a
legitimate medical purpose in the usual course of professional
practice, that would constitute distribution of controlled substances
in violation of Georgia law. Likewise, if you find a Defendant
conspired with a pharmacy or pharmacist to supply controlled
substances to fill invalid prescriptions, that would constitute
distribution of controlled substances in violation of Georgia law.”
Considering the charge as a whole, we conclude that the jury
was accurately instructed that it could consider circumstantial
32
evidence and make reasonable inferences from the evidence,
including whether Appellees had the requisite knowledge to be held
liable. See Smith v. Stacey, 281 Ga. 601, 604 (4) (642 SE2d 28)
(2007) (“[C]onsidering the charge as a whole, it is most unlikely the
jury was misled or any harm done to Appellant[s].” (citation and
punctuation omitted)).
Moreover, Appellants were permitted to argue willful
blindness to the jury, as well as the evidence that Appellants relied
upon in attempting to prove that theory. Appellants argued
repeatedly throughout their closing that the law did not permit
Appellees to “turn a blind eye to suspicious circumstances,” or to
“stick[ ] [their] head[s] in the sand and stuff[ ] millions of dollars in
[their] pocket[s]” while ignoring “red flags.” Appellants were also
allowed to explain that:
Knowledge can be inferred by sticking your head in the
sand. Okay? Evidence of knowledge is shown by these
distributors deliberately closing their eyes to what would
have otherwise been obvious to it. You can infer that – a
distributor’s knowledge of a fact from a willful blindness
to the existence of the fact.
33
See Nalls v. State, 304 Ga. 168, 173 (2) (a) (815 SE2d 38) (2018) (any
error in jury instruction did not affect outcome of trial where court
elsewhere properly instructed the jury on relevant legal issues, and
appellant’s theory of the case, as underscored during closing
arguments, was unimpacted by alleged error); Wright v. Wright, 170
Ga. App. 652, 654 (2) (317 SE2d 888) (1984) (explaining that despite
appellant’s claim that trial court erred in refusing to give requested
charge on voluntary contributions, appellant “was allowed to argue
voluntary contribution without limitation of use,” and “[t]hus the
issue raised by the appellant . . . was fairly presented to the jury”).
Because the charge as a whole properly instructed the jury on
knowledge and the Appellants were permitted to argue willful
blindness to the jury, we conclude that “the charge as a whole
substantially covered the issues to be decided by the jury” and it
would be “unreasonable to believe that jurors would be misled” by
the court’s instructions, Lee v. Swain, 291 Ga. 799, 800 (a) (733 SE2d
726) (2012), meaning the trial court’s refusal to include Appellants’
requested charge on willful blindness was not “inconsistent with
34
substantial justice,” OCGA § 9-11-61, and was therefore harmless.
Cf. Mann v. State, 307 Ga. 696, 699 (2) (a) (838 SE2d 305) (2020) (in
criminal context, harmless error inquiry is whether it is “highly
probable” that the failure to give a requested charge “contributed to
the verdict.”) (citation and punctuation omitted). Accordingly, this
enumeration of error fails as well.
Judgment affirmed in Case No. S24A0687. Appeal dismissed
in Case No. S24X0643. All the Justices concur except Boggs, C.J.,
not participating and Peterson, P.J., and Pinson, J., disqualified.
35