Link v. Mercedes-Benz of North America, Inc., Civ. A. No. 74-0771.

• Citation: 618 F. Supp. 679
• Decision Date: 12 August 1985
• Docket Number: Civ. A. No. 74-0771.
• Parties: Jules LINK and Solomon Katz, on behalf of themselves and all others similarly situated, Plaintiffs, v. MERCEDES-BENZ OF NORTH AMERICA, INC., Defendant.
• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

618 F. Supp. 679

Jules LINK and Solomon Katz, on behalf of themselves and all others similarly situated, Plaintiffs, v. MERCEDES-BENZ OF NORTH AMERICA, INC., Defendant.

Civ. A. No. 74-0771.

United States District Court, E.D. Pennsylvania.

August 12, 1985.

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Richard F. Stevens, Allentown, Pa., for plaintiffs.

Robert J. Spiegel, Philadelphia, Pa., for defendant.

OPINION

CAHN, District Judge.

Before me are post-trial motions in this antitrust class action. The defendant is Mercedes-Benz of North America, Inc. ("MBNA"), a wholly-owned subsidiary of Daimler-Benz, Aktiengesellschaft.¹ Plaintiffs are a certified class of consumer purchasers of nonwarranty repairs of Mercedes-Benz automobiles from 1970 to the present.² For the reasons set forth below, the motions will be granted in part and denied in part.

I. Background

Plaintiffs allege that MBNA and its dealers conspired to fix and raise the price of nonwarranty repairs of Mercedes-Benz automobiles.³ They contend that the conspiracy was effected through the dealers' use of the MBNA Labor Time Guide to calculate repair charges to consumers. As explained in my memorandum opinion of August 17, 1984, the time guides list many typical repairs and assign a certain number of operation hours to each. Dealers who use the time guides do not charge consumers for the actual time spent repairing their automobiles but charge whatever "operation" period of time is specified in the guide for the particular operation. In addition, each dealer sets an hourly rate to be charged for mechanics' services. The hourly rate is multiplied by the time unit specified in the time guide to reach a total price for each repair. Plaintiffs contend that MBNA and its dealers agreed to use the time guides as a mechanism for fixing and raising the price of nonwarranty repairs, in violation of § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 (1983).

After a lengthy trial, the jury returned a verdict for defendant, finding that MBNA had not conspired with its dealers to fix and raise the labor charges for nonwarranty repair work.⁴ Plaintiffs have filed a motion for a new trial or judgment n.o.v., a motion to alter, amend, and vacate the judgment, and a motion to set trial and hearing dates for injunctive relief relating to labor and parts.⁵

II. Motion for a New Trial or Judgment N.O.V.

Plaintiffs advance six major arguments in support of their motion for a new trial. First, they argue that a new trial is warranted because there was an unauthorized contact with a member of the jury during trial. Second, plaintiffs contend that the court improperly submitted an issue to the jury and improperly excluded another. Third, they assert that, after informing counsel of the instructions it intended to give to the jury, the court impermissibly deviated from that charge. Fourth, plaintiffs argue that the court gave the jury erroneous instructions on price-fixing and concerted action. Fifth, they maintain that the court erred in the admission and exclusion of certain documentary evidence. Sixth, they contend that the jury verdict was against the weight of the evidence. In addition to these primary claims, plaintiffs raise numerous other arguments in support of their motion for a new trial. They also maintain that they are entitled to judgment n.o.v. because defendant failed to adduce sufficient facts to justify the verdict.

A. Juror Contact Issue

The jury returned with its verdict on October 5, 1984. On October 9, 1984, plaintiffs advised the court that one of the jurors, Mr. James Brooks, may have been contacted by a defense lawyer during the course of the trial. Mr. Brooks reportedly mentioned the phone call to another juror, Mr. Edward Fura. Based on this information, and in consultation with attorneys for both plaintiffs and defendant, the court decided that both jurors should be called for questioning.

Mr. Fura was contacted immediately by telephone, put under oath, and questioned on the record as to his knowledge of the incident. According to Mr. Fura, Mr. Brooks told him that, during the course of the trial, Mr. Brooks had received a telephone call from a member of the defense team at the hotel room where he was staying. The caller reportedly said, "I don't want you, I want one of my lawyers." Transcript of October 9, 1984, Hearing ("Fura Transcript") at 33. Mr. Fura stated that this was the full extent of his conversation with Mr. Brooks on the subject. Fura Transcript at 33-34.

Mr. Brooks appeared in person for questioning before the court on October 10, 1984. Again, counsel for plaintiffs and defendant were present. In response to the court's inquiry, the following colloquy took place:

Q: Mr. Brooks, you were a juror in the case of Link, et al. v. Mercedes-Benz, et al., and, as I just told you, the lawyers think that there is a possibility that some person who may have said he was a lawyer telephoned you during the trial, at some point during the trial.

Is there something to that?

A: Your Honor, I did receive a phone call by someone anonymous. Now, I don't know whether it was a lawyer or someone that had the wrong number, but I identified myself by saying that, "I'm James Brooks," and at that time I was in — I don't remember the room, but I told him my room number, and they hung up.

Q: There was nothing else said?

A: Nothing else, Your Honor.

Q: Did the voice sound familiar to you?

A: It did. It sounded like Mr. Spiegel, it sounded like him, but I couldn't be certain.

Transcript of October 10, 1984, Interrogation of Juror James Brooks ("Brooks Transcript") at 3-4. At this point, Mr. Brooks was asked to wait in a side office and the court asked the lawyers if there were any questions they wished the court to ask. In response to the lawyers' suggestions, Mr. Brooks was called back for more questioning. At that time, he answered as follows:

Q: Mr. Brooks, could you be a little more specific about what was said in the phone call by the caller and by you?

First, tell me, to the best of your recollection, everything the caller said to you.

A: Well, the caller asked for a name, I cannot remember the name, and I responded by saying: "No, I'm James Brooks, and this is room ...," whatever, I can't remember the room, I don't know if it was 212 or 310 or whatever, and that was it.

Q: Nothing else was said?

A: Nothing else was said.

They asked for a name, and I responded by giving them my name.

Q: What made you think that this caller was an attorney in the case?

A: Well, like I said, the voice sounded like Mr. Spiegel. That's the only, that's the only identification I could — I could recognize the voice, you know.

Q: Nothing was said about the case?

A: Oh, no; no, Your Honor.

Q: What did you say to the caller?

A: I said: "No. This is James Brooks," room number whatever, and they hung up.

Brooks Transcript at 14-15. Mr. Brooks went on to say that the topic of the phone call had come up because the jurors were discussing where the lawyers stayed during trial. Mr. Brooks recalled saying to the other jurors that he had seen a few of the lawyers at the Hilton Hotel and thought one of the lawyers had called his room there. Brooks Transcript at 17.

Plaintiffs claim that a new trial is warranted based on this evidence of an unauthorized juror contact. I disagree. The seminal case in this area is Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892), in which the Supreme Court stated that:

private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least until their harmlessness is made to appear.

Id. at 150, 13 S.Ct. at 53. As subsequent cases establish, once an improper communication has been made to a juror, a presumption of prejudice arises that is rebuttable only by a strong contrary showing. See, e.g., Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). While Mattox was a criminal case, this rule has also been applied to civil actions. See, e.g., Hobson v. Wilson, 737 F.2d 1 (D.C.Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985); Rinker v. County of Napa, 724 F.2d 1352 (9th Cir.1983); Krause v. Rhodes, 570 F.2d 563 (6th Cir.1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1488, 55 L.Ed.2d 517 (1978).

In this case, even assuming, arguendo, that there was a juror contact of the type that would trigger the Mattox presumption, the harmlessness of the contact has clearly been shown. In making this determination, I have carefully reviewed the testimony of jurors Brooks and Fura. Nowhere in the record does either juror suggest that the caller engaged Mr. Brooks in conversation beyond that reported above. According to Mr. Brooks, whose testimony I found fully credible, the caller hung up without saying anything after Mr. Brooks identified himself. Thus, not only did the caller communicate nothing about the pending action, but there was no conversation at all. Mr. Brooks stated that he thought the voice on the phone was similar to that of a defense lawyer, but that the caller did not identify himself or mention this case.

In view of the evidence developed through the questioning of jurors Brooks and Fura, I find that the contact was most likely an accidental wrong number that could have had no influence on the case. I note that the jurors were questioned about the phone call as soon as possible after the court was advised of a potential problem. The questioning took place on the record with all counsel present. The lawyers were invited to apprise the court of questions they wished to have asked. These measures adequately developed the factual basis of the situation so that the harmlessness of the contact became apparent. Under these circumstances, there is no basis for a new trial due to an improper juror contact.⁶

B. Submission of Issues to the Jury

Plaintiffs argue...