## Facts

- Mrs. Tillery (about 67) was hospitalized for severe back pain under Dr. Rothman’s care; imaging raised concern for a malignant lesion and metastatic cancer.
- Dr. Rothman consulted Dr. Kent L. Richland, a neurosurgeon, regarding evaluation and possible surgical treatment for intractable pain.
- Dr. Richland ordered further diagnostic testing, including a myelogram; a spinal fluid leak occurred as a recognized complication.
- Dr. Richland recommended and performed a laminectomy as a primarily palliative, pain-relieving procedure; post-operative relief was limited.
- Mrs. Tillery was later discharged at the family’s request and received subsequent care elsewhere; the cancer was regarded as advanced and inoperable, and treatment was essentially palliative.
- Mr. Tillery alleged the physicians withheld material information about the cancer diagnosis and prognosis and that Dr. Richland pursued surgery without adequate disclosure; the defense asserted appropriate care, adequate disclosure, and informed consent.
- At trial, the jury awarded compensatory damages against Dr. Rothman but found Dr. Richland not liable; the judgment against Rothman was satisfied.
- Mr. Tillery moved for a new trial based on alleged juror misconduct/bias, evidentiary error (including admission of habit/custom evidence), instructional error, and insufficiency of the evidence; the motion was denied.

## Issues

1. Whether substantial evidence supported the jury’s verdict in favor of Dr. Richland on negligence and intentional tort theories.
2. Whether juror affidavits established juror misconduct or concealed bias sufficient to impeach the verdict under Evidence Code § 1150 and require a new trial.
3. Whether the trial court erred by admitting testimony about Dr. Richland’s habit, custom, or routine practice in disclosing diagnoses/risks and obtaining consent.
4. Whether claimed instructional and other trial errors warranted reversal.

## Decision

- The Court of Appeal affirmed the judgment for Dr. Richland.
- The verdict was supported by substantial evidence, including defense expert testimony that the cancer was advanced and inoperable and that the diagnostic work-up and laminectomy were appropriate for pain control.
- Juror affidavits did not justify impeachment of the verdict because they concerned deliberative processes or were too speculative to show disqualifying concealed bias or improper external influence under Evidence Code § 1150.
- Testimony about Dr. Richland’s routine practice in informing patients and documenting consent was properly admitted as habit/routine-practice evidence, not impermissible propensity evidence.
- Alleged instructional and evidentiary errors did not show prejudice warranting a new trial or reversal.

## Legal Principles

- On review for sufficiency of the evidence, an appellate court asks whether substantial evidence supports the verdict and does not reweigh evidence or reassess credibility; conflicts are resolved in favor of the prevailing party.
- Evidence Code § 1150 permits impeachment of a verdict only through proof of objectively verifiable “overt acts” or external influences; jurors’ subjective reasoning and deliberative thought processes are inadmissible to attack a verdict.
- Evidence of habit or routine practice may be admitted to show conduct in conformity with that habit on the occasion in dispute, even though general character or propensity evidence is inadmissible.
- A new trial or reversal requires a showing of prejudicial error, not merely arguable imperfections in rulings or instructions.

## Conclusion

The Court of Appeal left intact a defense verdict for a neurosurgeon accused of malpractice and nondisclosure, holding that substantial evidence supported the jury’s findings, juror affidavits did not meet the strict limits for verdict impeachment under Evidence Code § 1150, and the physician’s routine-practice testimony was admissible as habit evidence rather than improper character proof.


Tillery v. Richland, 205 Cal. Rptr. 191 (Cal. Ct. App. 1984)