951 F.Supp. 820 (S.D.Ind. 1997), NA 94-143, Mary M. v. North Lawrence Community School Corp.

Docket Nº:NA 94-143 C D/H.
Citation:951 F.Supp. 820
Party Name:MARY M., as Parent/Next Friend for Diane M., a Minor (Names are pseudonyms), Plaintiff, v. NORTH LAWRENCE COMMUNITY SCHOOL CORPORATION, Defendant.
Case Date:January 06, 1997
Court:United States District Courts, 7th Circuit, Southern District of Indiana

Page 820

951 F.Supp. 820 (S.D.Ind. 1997)

MARY M., as Parent/Next Friend for Diane M., a Minor (Names are pseudonyms), Plaintiff,

v.

NORTH LAWRENCE COMMUNITY SCHOOL CORPORATION, Defendant.

No. NA 94-143 C D/H.

United States District Court, S.D. Indiana, New Albany Division.

Jan. 6, 1997

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Michael K. Sutherlin, Indianapolis, IN, for Plaintiff.

Darla S. Brown, Jennifer Bauer, Kelley Belcher & Brown, P.C., Bloomington, IN, for Defendant.

ENTRY

BARKER, Chief Judge.

In this case plaintiff alleges that her thirteen-year-old daughter was sexually harassed and/or abused by one Andrew Fields, a school cafeteria worker employed by defendant, in violation of Title IX of the Educational Amendment Act of 1972, 20 U.S.C. § 1681. A jury trial was conducted on October 21-28, 1996, resulting in a verdict in favor of plaintiff and against defendant on the issue of liability, but awarding zero compensatory damages and zero punitive damages. Now before the court are plaintiff's Motions for a New Trial and to Question and Interview Jurors on the Record, or in the Alternative, to Personally Interview the Jurors, and plaintiff's bill of costs. For the reasons discussed below, plaintiff's motions for a new trial and to interview jurors are denied, and plaintiff's bill of costs is allowed in part and disallowed in part.

I. Motion for New Trial

Plaintiff argues that she is entitled to a new trial because, in her estimation, the jury's verdict is a "compromise verdict," and is inconsistent with the evidence and the Court's instructions to the jury. The test in the Seventh Circuit for reviewing a jury verdict is "whether there is a reasonable basis in the record for the verdict." Knox v. State of Ind., 93 F.3d 1327, 1332 (7th Cir.1996); Gorlikowski v. Tolbert, 52 F.3d 1439, 1446 (7th Cir.1995).

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A. Compromise Verdict

"A compromise verdict results when jurors resolve their inability to make a determination with any certainty or unanimity on the issue of liability by finding inadequate damages." Mekdeci v. Merrell Nat'l. Labs., 711 F.2d 1510, 1513 (11th Cir.1983). However, an award of low or zero damages, standing alone, does not necessarily indicate a compromise. Id. A verdict might be deemed a compromise verdict where the record clearly demonstrates such factors as lengthy deliberations, strongly contested issues of liability, evidence of jury confusion, or that neither party urged acceptance of the verdict. See Bosco v. Serhant, 1986 WL 11990, at *2 (N.D.Ill. Oct. 21, 1986). Plaintiff's burden is a heavy one, because the rule is "that the record itself viewed in its entirety must clearly demonstrate the compromise character of the verdict otherwise it is not error for the trial judge to refuse to set the verdict aside on this ground." Maher v. Isthmian Steamship Co., 253 F.2d 414, 419 (2nd Cir.1958), quoted in Luria Bros. & Co. v. Pielet Bros. Scrap Iron, 600 F.2d 103, 115 (7th Cir.1979).

In this case, plaintiff points to the following as indications of a compromise verdict: the length of the jury's deliberations; the fact that the jury sent a question to the judge; the fact that, after deliberating for seven hours, the jury reported that it was deadlocked with five jurors on one side and three on the other, and yet two hours later, reached its verdict. Plaintiff cites Mekdeci and Lucas v. American Mfg. Co., 630 F.2d 291, 292-94 (5th Cir.1980) as examples of cases where the verdict was found to be a compromise. However, both of those cases are easily distinguishable from the facts of this case. In Lucas, because of an approaching hurricane, the trial court admonished the jury either to quickly finish its deliberations, or to return on a later date. The jury found the defendant liable, but awarded damages less than the minimum amount stipulated by the defendant. The Fifth Circuit held that a new trial was necessary because of the risk that the trial court's coercion produced the inadequate award of damages. Lucas, 630 F.2d at 292-94. In Mekdeci, the court's finding that the verdict was a compromise was based on the following facts: the jury deliberated for four days; the jury sent several communications to the judge indicating uncertainty on the central issue of causation; on the fourth day of deliberations, the jury attempted to qualify its verdict; and the jury announced a deadlock soon after the judge denied its request to qualify its verdict. Mekdeci, 711 F.2d at 1515.

In our case, the jury deliberated for a total of approximately nine hours, not an unusually long time and a significantly shorter period of time than in Mekdeci. The first question sent by the jury to the judge in this case merely asked for clarification of the relevant time period in which to evaluate Fields' conduct--hardly evidence of confusion on a central issue. While the jury thereafter did indicate, after seven hours of deliberations, that they were at a stalemate, they did not attempt to qualify or otherwise explain their verdict. Furthermore, there is no evidence in this case that the jury was coerced into reaching a verdict, as was the Lucas jury. In fact, after the jury informed the court that it was deadlocked, the judge conferred with counsel for both parties, and without objection from either side, then instructed the jury to continue its efforts to reach a unanimous verdict, referring the jury to the court's instruction number 23. 1 The Seventh

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Circuit approved the giving of this instruction to deadlocked juries in U.S. v. Silvern, 484 F.2d 879, 883 (7th Cir.1973) (requiring that any supplemental instruction given to juries in a deadlock situation must be in this form), and has since held that a Silvern charge such as this is appropriate where a jury, after deliberating for seven hours, indicates to the judge that it believed that further deliberation would be "fruitless." U.S. v. Kwiat 817 F.2d 440, 446 (7th Cir.1987), cert. denied, 484 U.S. 924, 108 S.Ct. 284, 98 L.Ed.2d 245 (1987); see also U.S. v. Beverly, 913 F.2d 337, 351 (7th Cir.1990) (mistrial not compelled by the fact that the jury thought it was deadlocked after approximately twelve hours of deliberations in a lengthy and complicated criminal trial), cert. denied, 498 U.S. 1052, 111 S.Ct. 766, 112 L.Ed.2d 786 (1991). More recently, the Seventh Circuit upheld a trial court's denial of a motion for a new trial where the jury deliberated for ten hours before announcing a deadlock, and the judge instructed them to make another effort to arrive at a verdict. U.S. v. Coffman, 94 F.3d 330, 335 (7th Cir.1996). 2

Finally, plaintiff bases her contention that the verdict was a compromise verdict in part on her assumption that the jury's early five-three vote was in her favor, and that "three men were unwilling to set aside their bias and prejudice and held out and refused to find any liability unless there was an agreement not to award any damages." (Plaintiff's Memorandum in Support of Motion for New Trial, at 1). 3 We find this assumption to be wholly unsupported and inappropriate, and therefore unacceptable as evidence of a compromise verdict. See Thezan v. Maritime Overseas Corp., 708 F.2d 175, 180 (5th Cir.1983) ("It is a cardinal principal of jurisprudence that we are not allowed to speculate as to the thought processes of the jury.") cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984); U.S. v. Russo, 796 F.2d 1443, 1450 (11th Cir.1986) ("We will not look behind the verdicts for evidence of jury confusion.").

B. Inconsistent with the evidence and with jury instructions

Plaintiff also challenges the verdict on the grounds that it is unsupported by the evidence, and that it is inconsistent with the court's jury instructions. Once again, we will only grant a new trial if we can conclude that there is no reasonable basis in the record for the verdict. Knox, 93 F.3d at 1332; Gorlikowski, 52 F.3d at 1446. Specifically, plaintiff claims that a verdict of liability without any damages is inconsistent with the evidence and with jury instruction numbers 15 and 16. In Instruction Number 15, the Court instructed the jury that:

If you find that the Plaintiff has proved all of the essential elements of her claim against the Defendant, then the Plaintiff is entitled to recover compensatory damages against the Defendant for any damages which she may have personally suffered as a result of Defendant's actions. Therefore, if you decide for Plaintiff on the issue of liability, you must then fix the amount of damages that will reasonably and fairly compensate Plaintiff for any harm which the wrongful conduct of the Defendant proximately caused or was a substantial factor in bringing about....

Court's Instruction No. 15 (emphasis added). In Instruction Number 16, the Court instructed the jury that plaintiff was not required to prove damages with mathematical

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certainty, but that plaintiff was "only required to furnish evidence consisting of sufficient facts and circumstances to permit an intelligible and probable estimate thereof." Court's Instruction No. 16.

Plaintiff is correct in arguing that, because the jury found that she had proved all of the elements required for a finding of liability, she was entitled to recover the amount of damages which would compensate for any harm proximately caused by defendant's wrongful conduct. This does not, however, mean that with a finding of liability automatically comes an award of some amount of damages. Plaintiff must furnish proof that she actually suffered damages, and that those damages were proximately caused by defendant's wrongful conduct. Plaintiff's reliance on Thomas v. Stalter, 20 F.3d 298 (7th Cir.1994), is misplaced. In that case, the court directed a new trial where a finding of zero damages was inconsistent with a jury instruction which "specifically required...

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