949 F.2d 914 (7th Cir. 1991), 86-1530, Haugh v. Jones & Laughlin Steel Corp.

Docket Nº:86-1530.
Citation:949 F.2d 914
Party Name:John HAUGH, Plaintiff-Appellant, v. JONES & LAUGHLIN STEEL CORPORATION, Defendant-Appellee.
Case Date:November 22, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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949 F.2d 914 (7th Cir. 1991)

John HAUGH, Plaintiff-Appellant,

v.

JONES & LAUGHLIN STEEL CORPORATION, Defendant-Appellee.

No. 86-1530.

United States Court of Appeals, Seventh Circuit

November 22, 1991

Argued Sept. 6, 1991.

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Leonard Ring, Margaret A. McGuire (argued), Ring & Associates, Chicago, Ill., for plaintiff-appellant.

Terrence L. Smith, Lawrence M. Hansen (argued), Smith & Debonis, East Chicago, Ind., for defendant-appellee.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and MORAN, Chief Judge. [*]

POSNER, Circuit Judge.

This is an appeal (long delayed by virtue of the defendant's bankruptcy and the resulting automatic stay only recently lifted) from a judgment for the defendant entered upon a directed verdict in the second trial of a diversity personal-injury suit. The first trial ended in a jury verdict of $85,000 for the plaintiff, but the district judge granted the defendant's motion for a new trial on the basis of an improper communication by the marshal to the jury during the jury deliberations. The evidence was somewhat different at the second trial and persuaded the judge to grant the defendant's motion for a directed verdict (which he had denied at the first trial) on the twin grounds that the defendant had owed no duty of care to the plaintiff and that, in any event, the evidence showed conclusively that the plaintiff had been contributorily negligent--which at the time of the accident was a complete defense to liability. Indiana has since replaced contributory negligence with comparative negligence, whereby a plaintiff's own negligence is only a partial defense unless that negligence is adjudged more than 50 percent responsible for the accident; but the statute

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is not retroactive. Kaczmarek v. Allied Chemical Corp., 836 F.2d 1055, 1057 (7th Cir.1987); Justice v. CSX Transportation, Inc., 908 F.2d 119, 121 (7th Cir.1990). The plaintiff's appeal seeks reinstatement of the first jury's verdict on the ground that the grant of a new trial violated Rule 606(b) of the Federal Rules of Evidence, and alternatively a new trial--a third trial--on the ground that the grant of a directed verdict was improper because a reasonable jury could have found that the defendant owed the plaintiff a duty of care and that the plaintiff was not contributorily negligent.

At the time of the accident, in 1980, John Haugh was employed by Eichleay Corporation, which had a contract with Jones & Laughlin Steel Corporation to furnish workers and materials for making repairs at J & L's mill in East Chicago, Indiana. Haugh's particular job was to remove any generator needing repairs and replace it with a steel shaft (weighing almost a ton) to maintain a connection with the remaining generators, and then in turn to remove the shaft when the generator was ready to be reinstalled after having been repaired. It was in the course of his removing a shaft that the accident occurred. Although the contract between Eichleay and J & L gave Eichleay complete responsibility for the removal of generators and shafts incidental to the repair function for which it had been hired, the practice was for employees of J & L, not of Eichleay, to do the preliminary rigging. So when on the day of the accident Haugh approached the shaft that he had been ordered to remove, he found as usual that most of the bolts connecting the shaft to the generator had already been removed and a chain hoist had been affixed to a choke (cable) that had been wrapped around the shaft. Unfortunately, the cable had not been tightened around the shaft; it had no choking action. Haugh didn't notice this, and when, having removed the remaining bolts, he drew on the chain hoist to pull the shaft out from between the generators, the shaft slipped out of the cable and fell on him, injuring his arm. He had long experience in the job and admitted on cross-examination at both trials that if he had looked closely at the rigging he would have seen it was defective. The suit is against J & L for the negligence of its employees in rigging the shaft improperly, suit against Eichleay being barred of course by the workers' compensation statute.

On the very evening of the day on which the first jury rendered its verdict for Haugh and was discharged, the jury foreman wrote the district judge complaining that the marshal who had shepherded the jurors during their deliberations had told them that there was no such thing as a hung jury and that they would be kept in custody for as long as it took them to reach a verdict. The letter prompted the judge to hold a hearing at which he questioned the marshal and each of the eight jurors. The foreman repeated what she had said in the letter. The marshal denied having made the precise statement attributed to him but admitted having said "You just have to keep deliberating" when asked by a juror how long the jury would have to stay in the courthouse if it couldn't reach a verdict. Four of the jurors agreed with the essentials of the foreman's version of the marshal's statement. So did two others but they were unsure who had made the statement. The remaining juror had not heard the statement at all. The judge found as a fact that the marshal had made the statement described by the foreman and that several of the jurors had heard it, and he further found that there was a reasonable possibility that the jury as a whole had been influenced by it.

We must uphold the first finding--that the marshal made the statement that the jury foreman attributed to him--unless it was clearly erroneous, United States v. Green, 779 F.2d 1313, 1322 (7th Cir.1985); Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir.1984) (per curiam); United States ex rel. Buckhana v. Lane, 787 F.2d 230, 236 (7th Cir.1986), and the second unless it was an abuse of discretion. United States v. Best, 939 F.2d 425, 429 (7th Cir.1991) (en banc); United States v. Bruscino, 687 F.2d 938, 940 (7th Cir.1982) (en banc). Abuse of discretion is conventionally regarded as a

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more deferential standard than clear error, though whether there is any real or consistent difference has been questioned, United States v. McKinney, 919 F.2d 405, 422-23 (7th Cir.1990) (concurring opinion); Henry J. Friendly, "Indiscretion About Discretion," 31 Emory L.J. 747 (1982). The alternative view is that both standards denote a range rather than a point, that the ranges overlap and maybe coincide, and that the actual degree of scrutiny in a particular case depends on the particulars of that case rather than on the label affixed to the standard of appellate review. See also River Road Alliance, Inc. v. Corps of Engineers, 764 F.2d 445, 449 (7th Cir.1985); Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 388-89 (7th Cir.1984). (Consistent with this suggestion, Owen v. Duckworth collapses the two standards into one, that of clear error, flexibly conceived. 727 F.2d at 646.) Whatever the standard is called, appellate judges properly give great weight to the trial judge's assessment of the impact of an improper communication on the jury because he has the inestimable advantage over the appellate judges of having actually observed the jurors. United States v. Bruscino, supra, 687 F.2d at 941.

A marshal--whose official position makes him likely to be believed--commits a serious impropriety when he tells a jury that it will be locked up till it renders its verdict, however long that may take. That was the practice in the eighteenth century. Jurors were "prisoners of the court." Kennard v. State, 177 Md. 549, 554, 10 A.2d 710, 712 (Ct.App.1940). Or virtual prisoners: Blackstone explains that "if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imprisoned, the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart," 3 Commentaries on the Laws of England 376 (1768). See McHenry v. United States, 276 F. 761, 763 (D.C.Cir.1921). As recently as half a century ago, a judge told a jury that it would have to deliberate without heat in the jury room if it couldn't come to a verdict. Mead v. City of Richland Center, 237 Wis. 537, 539-41, 297 N.W. 419, 421 (1941). But those days are no more. And the...

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