812 F.2d 482 (9th Cir. 1987), 85-4326, Hard v. Burlington Northern R.R.

Docket Nº85-4326.
Citation812 F.2d 482
Party NameThomas J. HARD, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD, Defendant-Appellee.
Case DateMarch 09, 1987
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 482

812 F.2d 482 (9th Cir. 1987)

Thomas J. HARD, Plaintiff-Appellant,

v.

BURLINGTON NORTHERN RAILROAD, Defendant-Appellee.

No. 85-4326.

United States Court of Appeals, Ninth Circuit

March 9, 1987

Submitted Dec. 1, 1986[*]

Page 483

Charles C. Dearden, Billings, Mont., for defendant-appellee.

Joseph P. Hennessey, Richard L. Webb, Jr., Walter M. Hennessey, Billings, Mont., for plaintiff-appellant.

Appeal from the United States District Court for the District of Montana.

Before BROWNING, and WRIGHT, Circuit Judges, and ORRICK, [**] Senior District Judge.

EUGENE A. WRIGHT, Circuit Judge:

Thomas Hard appeals from a jury verdict awarding him compensatory damages for injuries suffered while working for Burlington Northern. He urges that jury misconduct, an inadequate damage award, and a verdict against the weight of the evidence require a new trial. We remand to the district court for an evidentiary hearing on the issue of juror misconduct.

BACKGROUND

While washing a locomotive for Burlington Northern, Hard slipped and fell on a concrete ramp. He allegedly sustained injuries to his arm, shoulder, neck, and back. He claimed that the slippery ramp was a result of Burlington Northern's negligence and brought an action under the Federal Employers' Liability Act (FELA), 45 U.S.C. Sec. 51, et seq. (1982). Burlington Northern argued that Hard's sprained wrist was a result of his own negligence, and that his other injuries resulted from his jumping out of a swing at a later date. The jury found Hard 50% negligent and awarded him $5,000.

After trial, Hard's attorney learned that juror Donald Fraser and his father were former employees of Burlington Northern or its predecessor, Northern Pacific Railroad. He moved for a new trial on grounds that Fraser concealed the identity of the former employer during voir dire and introduced extraneous and prejudicial information into the jury's deliberations. He presented the affidavits of three jurors stating that during deliberations Fraser made statements regarding Burlington Northern's settlement practices. The court refused to consider the affidavits, finding that they were excluded by Federal Rule of Evidence 606(b) and were the product of improper post-verdict interrogation. Hard v. Burlington Northern R.R., 618 F.Supp. 1463, 1465-68 (D.Mont.1985). The court also refused to hold an evidentiary hearing. It then denied Hard's motion for a new trial. Id. at 1468.

STANDARD OF REVIEW

This court reviews a denial of a motion for a new trial for abuse of discretion. Robins v. Harum, 773 F.2d 1004, 1006 (9th Cir.1985). This standard also applies to the court's procedural responses to claims of juror misconduct. United States v. Soulard, 730 F.2d 1292, 1305 (9th Cir.1984); United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977).

Page 484

ANALYSIS

  1. Juror Misconduct

The court was faced with two allegations of juror misconduct. We analyze each separately.

A. Failure to Respond During Voir Dire

Fraser was asked several questions during voir dire which were intended to reveal any prior contacts between Burlington Northern and himself. While the questions were not entirely free of ambiguity, they were reasonably calculated to require an affirmative response if Fraser had been employed by Burlington Northern. Fraser either failed to respond or answered in a manner which indicated that he had no significant prior contacts with Burlington Northern. 1 The district court held that Hard had failed to make a sufficient showing by proper means of proof that the juror failed to answer honestly. Hard v. Burlington Northern R.R., 618 F.Supp. 1463, 1466-68 (D.Mont.1985). While we agree with the court that the reporter's transcript fails to demonstrate dishonesty by Fraser, when it is considered in light of the juror affidavits there exists a possibility of dishonesty which is sufficient to make the failure to have conducted an evidentiary hearing an abuse of discretion.

The district court, relying on Federal Rule of Evidence 606(b), 2 refused to consider

Page 485

the juror affidavits proffered by Hard's attorney. Statements which tend to show deceit during voir dire are not barred by that rule. See Maldonado v. Missouri Pacific Ry. Co., 798 F.2d 764, 770 (5th Cir.1986); 3 J. Weinstein & M. Berger, Weinstein's Evidence p 606 at 606-33. The district court could not properly exclude the affidavits on this ground.

It also refused to consider the affidavits because they resulted from post-verdict interviews with the jurors. While these interviews are not looked on favorably in this circuit, see Traver v. Meshriy, 627 F.2d 934, 941 (9th Cir.1980) (questioning jury about its internal deliberations or manner in which it arrived at its verdict should be discouraged); Smith v. Cupp, 457 F.2d 1098, 1100 (9th Cir.) (improper and unethical for lawyers to interview jurors to discover their course of deliberation), cert. denied, 409 U.S. 880, 93 S.Ct. 208, 34 L.Ed.2d 153 (1972), Ninth Circuit cases have often considered juror affidavits without discussing the propriety of post-verdict interviews, see, e.g., United States v. Langford, 802 F.2d 1176, 1180 (9th Cir.1986); United States v. Marques, 600 F.2d 742, 746 (9th Cir.1979), cert. denied, 444 U.S. 1019, 100 S.Ct. 674, 62 L.Ed.2d 649 (1980). Since we had not joined other courts in holding that evidence acquired in post-verdict interviews conducted without leave of the court makes the evidence obtained inadmissible, the court could not refuse to consider the evidence on this ground. 3

While it is not always an abuse of discretion to fail to hold an evidentiary hearing when faced with allegations of juror misconduct, see Langford, 802 F.2d at 1180, it is preferable that a hearing be held, id.; United States v. Halbert, 712 F.2d 388, 389 (9th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984). A court is to be guided by the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source in determining whether a hearing must be held. United States v. Hendrix, 549 F.2d 1225, 1227-28 (9th Cir.1977) (citation omitted).

Considering these factors and the policy in favor of such hearings in light of the juror affidavits, the district court abused its discretion by not holding a hearing to investigate the allegation that Fraser failed to answer honestly a material question during voir dire. See McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984).

The district court has the discretion to determine the extent and nature of the hearing. Hendrix, 549 F.2d at 1227. We hold only that a hearing must be held.

B. Introduction of Extraneous Evidence

According to the affidavits, juror Fraser told other jurors about Burlington Northern's, or its predecessor's, settlement practices, including payment of injured employees' medical...

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92 practice notes
  • 67 F.3d 306 (9th Cir. 1995), 94-35666, Construct Tech Corp. v. City of Coeur D'Alene
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • October 3, 1995
    ...A district court's decision to deny a party's motion for a new trial is reviewed for abuse of discretion. Hard v. Burlington N.R.R., 812 F.2d 482, 483 (9th Cir.1987). A trial court abuses its discretion if its decision is based on an erroneous interpretation of the law. Northern Alaska Envt......
  • 914 F.2d 261 (9th Cir. 1990), 88-15539, Aetna Cas. and Sur. Co. v. Taylor
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • September 5, 1990
    ...concerning a motion for a new trial pursuant to Fed.R.Civ.P. 59 is reviewed for abuse of discretion. Hard v. Burlington Northern R.R., 812 F.2d 482, 483 (9th DISCUSSION Proposed Instruction No. 8--Presumption of Sanity Aetna's Proposed Instruction No. 8 2 would have required Beeman to prove......
  • 625 So.2d 407 (Miss. 1993), 91-CA-0106, Gladney v. Clarksdale Beverage Co., Inc.
    • United States
    • Mississippi Supreme Court of Mississippi
    • September 30, 1993
    ...either improper outside influence or extraneous prejudicial information. Id. The Ninth Circuit, in Hard v. Burlington Northern Railroad, 812 F.2d 482, 485 (9th Cir.1987), stated in a footnote that when faced with allegations of jury misconduct, the better practice is for the attorney to see......
  • 520 N.W.2d 796 (N.D. 1994), 930286, State v. Brooks
    • United States
    • North Dakota Supreme Court of North Dakota
    • August 24, 1994
    ...is to distinguish between "general information," and "specific facts." See, e.g., Hard v. Burlington Northern R.R., 812 F.2d 482, 486 (9th Cir.1987). Because this has been described as a vague and unworkable standard, another standard has been used by some courts. These ......
  • Request a trial to view additional results
91 cases
  • 67 F.3d 306 (9th Cir. 1995), 94-35666, Construct Tech Corp. v. City of Coeur D'Alene
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • October 3, 1995
    ...A district court's decision to deny a party's motion for a new trial is reviewed for abuse of discretion. Hard v. Burlington N.R.R., 812 F.2d 482, 483 (9th Cir.1987). A trial court abuses its discretion if its decision is based on an erroneous interpretation of the law. Northern Alaska Envt......
  • 914 F.2d 261 (9th Cir. 1990), 88-15539, Aetna Cas. and Sur. Co. v. Taylor
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • September 5, 1990
    ...concerning a motion for a new trial pursuant to Fed.R.Civ.P. 59 is reviewed for abuse of discretion. Hard v. Burlington Northern R.R., 812 F.2d 482, 483 (9th DISCUSSION Proposed Instruction No. 8--Presumption of Sanity Aetna's Proposed Instruction No. 8 2 would have required Beeman to prove......
  • 625 So.2d 407 (Miss. 1993), 91-CA-0106, Gladney v. Clarksdale Beverage Co., Inc.
    • United States
    • Mississippi Supreme Court of Mississippi
    • September 30, 1993
    ...either improper outside influence or extraneous prejudicial information. Id. The Ninth Circuit, in Hard v. Burlington Northern Railroad, 812 F.2d 482, 485 (9th Cir.1987), stated in a footnote that when faced with allegations of jury misconduct, the better practice is for the attorney to see......
  • 520 N.W.2d 796 (N.D. 1994), 930286, State v. Brooks
    • United States
    • North Dakota Supreme Court of North Dakota
    • August 24, 1994
    ...is to distinguish between "general information," and "specific facts." See, e.g., Hard v. Burlington Northern R.R., 812 F.2d 482, 486 (9th Cir.1987). Because this has been described as a vague and unworkable standard, another standard has been used by some courts. These ......
  • Request a trial to view additional results
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