Mayhue v. St. Francis Hosp. of Wichita, Inc.

• Decision Date: 09 July 1992
• Docket Number: Nos. 90-3341,90-3366,s. 90-3341
• Citation: 969 F.2d 919
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 405, 59 Empl. Prac. Dec. P 41,672 Bertha E. MAYHUE, Plaintiff-Appellant and Cross-Appellee, v. ST. FRANCIS HOSPITAL OF WICHITA, INC., Defendant-Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 919

969 F.2d 919

59 Fair Empl.Prac.Cas. (BNA) 405,

59 Empl. Prac. Dec. P 41,672

Bertha E. MAYHUE, Plaintiff-Appellant and Cross-Appellee, v. ST. FRANCIS HOSPITAL OF WICHITA, INC., Defendant-Appellee

and Cross-Appellant.

Nos. 90-3341, 90-3366.

United States Court of Appeals, Tenth Circuit.

July 9, 1992.

James S. Phillips, Jr. of Phillips & Phillips, Chartered, Wichita, Kan., for plaintiff-appellant and cross-appellee.

Alexander B. Mitchell, II of Klenda, Mitchell, Austerman & Zuercher, Wichita, Kan., for defendant-appellee and cross-appellant.

Before MOORE and EBEL, Circuit Judges, and ALLEY, District Judge. ^*

EBEL, Circuit Judge.

In this civil rights action, we examine whether the district court's decision to grant the defendant's motion for a new trial because of the jury's unauthorized use of dictionary definitions during its deliberations constitutes reversible error. We cannot find abuse of discretion on the record before us, and accordingly we affirm the decision of the district court.

I. BACKGROUND

In 1982, Bertha Mayhue, a black woman, brought a race discrimination action in the United States District Court for the District of Kansas against her employer, St. Francis Hospital of Wichita, Inc. ("St. Francis"), under 42 U.S.C. § 1981 ¹ and 42 U.S.C. § 2000e-2(a). ² Mayhue alleged that St. Francis engaged in racial discrimination when it (a) failed to promote her to food director in 1970 on account of her race, (b) failed to reemploy her on account of her race when its school of nursing closed in 1980, and (c) failed to employ her as food service director in 1983 on account of her race. Furthermore, she alleged, the hospital engaged in unlawful retaliation when, as a result of her complaints of racial discrimination, it (d) failed to reemploy her when the school of nursing closed in 1980 and (e) failed to employ her as food service director in 1983.

In October 1986, a jury entered a verdict in favor of Mayhue as to claims (a), (b), and (d) and in favor of St. Francis as to claims (c) and (e). The jury awarded damages of $200,000, as well as employee benefits for 1970 to mid-1973. In January 1987, the district court found in favor of St. Francis with respect to Mayhue's Title VII claims.

The controversy in this case arises from the jury verdict. The jury instructions generally instructed the jury that it "must consider only the evidence which is admitted by the court." Memorandum and Order (Jan. 12, 1987), Appellant's App. at 38, 44. Therefore, when the jury during its deliberations requested a dictionary, the court specifically denied that request. After the jury returned its verdict, however, the court's staff found a handwritten note in the jury room that contained definitions of the words "discriminate," "p[re]judice," "administer," "clinical," and "hypertension." ³ Id. at 40.

The two definitions that the court relied upon in granting a new trial were:

P[re]judice--an opinion formed without taking time and care to judge fairly[,] to damage, harm, injury as by some action that weakens a right or claim.

Discriminate--to see or note a differ[e]nce

to make or see a differ[e]nce between

to constitute a differ[e]nce between

Id.

The court conducted an evidentiary hearing to determine the effect of this note in accordance with Federal Rule of Evidence 606(b), which provides that "a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." The hearing revealed that the foreperson of the jury wrote the note and read the definitions aloud to the jurors the day they rendered their decision. ⁴ This timing is important because the jury had reported twice during its preceding day of deliberations that it had reached a stalemate and was plagued by irreconcilable differences. ⁵ Yet within hours after the foreperson read the definitions on the note, the jury was able to reach a verdict. ⁶ Although some jurors testified that they did not remember having seen or heard these definitions, the district court found that "at least four members of the jury were in possession of evidence not offered at trial." Memorandum and Order (Jan. 12, 1987), Appellant's App. at 41. ⁷ Accordingly, the court granted St. Francis' motion for a new trial.

The case was retried. In October 1990, the second jury found no discrimination or retaliation by St. Francis. Mayhue appeals, challenging the district court's decision to grant St. Francis' motion for a new trial because of juror misconduct. In the event that Mayhue's appeal is successful, St. Francis cross-appeals as to the district court's denial of its motion to dismiss and its motion for JNOV. ⁸

II. DISCUSSION

The standard of review that governs a motion for a new trial is very important, perhaps critical, to the outcome of this appeal. We review the district court's decision to grant St. Francis' motion for a new trial only for an abuse of discretion. United States v. Day, 830 F.2d 1099, 1106 (10th Cir.1987). Thus, we will reverse the court's decision only if we have " 'a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.' " United States v. Thompson, 908 F.2d 648, 650 (10th Cir.1990) (citation omitted) (new trial warranted where jury was exposed to prejudicial external information).

We give the trial judge wide latitude with respect to St. Francis' motion for a new trial because he was uniquely able to assess the likelihood that the extraneous information was prejudicial. See Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152, 1179 (10th Cir.1981), cert. denied, 464 U.S. 824, 104 S.Ct. 92, 78 L.Ed.2d 99 (1983); see also United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir.1988) ("We give substantial weight to the trial court's appraisal of the prejudicial effects of extraneous information on the jury, since the trial judge has the advantages of close observation of the jurors and intimate familiarity with the issues at trial."); Day, 830 F.2d at 1106 (" 'the trial judge ... is in the best position to evaluate the effect of the offending evidence on the jury' ") (citation omitted).

The trial judge presided over the proceedings from start to finish; thus, he knows better than we how the definitions might have diverted the jurors' attention away from the theories presented at trial and the instructions that were to govern their deliberations. He monitored the deliberations and observed the expressions and the demeanor of the jurors while they struggled to reach a decision and twice reported being deadlocked. Thus, we affirm the district court's decision to grant St. Francis' motion for a new trial because there is credible evidence in the record to support it.

Although state court decisions may be considered, the ruling on a motion for a new trial is governed by federal law. Malandris, 703 F.2d at 1179.

The law in the Tenth Circuit is clear. A rebuttable presumption of prejudice arises whenever a jury is exposed to external information in contravention of a district court's instructions. See United States v. Hornung, 848 F.2d 1040, 1044-45 (10th Cir.1988), cert. denied, 489 U.S. 1069, 109 S.Ct. 1349, 103 L.Ed.2d 817 (1989); Day, 830 F.2d at 1103. The district court must then examine the facts and circumstances of the case in order to determine whether this presumption has been overcome.

In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the

Supreme Court established a rebuttable presumption of prejudice for criminal cases involving improper communication between a third party and the foreperson of the jury:

In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.

Id. at 229, 74 S.Ct. at 451 (citations omitted).

In Hornung, this Court applied the rebuttable presumption established in Remmer in upholding a jury verdict despite improper contact between a juror and a bank teller. While a juror was conducting routine business at his bank, a teller informed him of the defendant's illicit activities at the bank. Hornung, 848 F.2d at 1043-44. In the course of discussing the juror's exposure to extrinsic influences, we stated, "The trial court has broad discretion in reviewing the effect of extrajudicial information.... The presumption [of prejudice] is not conclusive, but rather can be overcome upon the government meeting its burden of establishing that the contact with the juror was harmless to the defendant." Id. at 1044-45 (citations omitted). We concluded that the presumption of prejudice resulting from the improper contact in that case was overcome by overwhelming evidence of the defendant's guilt. Id. at 1045; see also United States v. Greer, 620 F.2d 1383 (10th Cir.1980) (where United States Deputy Marshal engaged in extensive lunchtime conversation with several jurors regarding Federal Youth Correction Act and its effect upon sentencing, two judges agreed that a rebuttable presumption of prejudice arose).

Other circuits have similarly held that a jury's exposure to extrinsic material gives rise to the rebuttable presumption of prejudice established in Remmer. See, e.g., United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir.1984) ("Prejudice from extrinsic evidence is assumed in the form of a rebuttable presumption and the government bears...