Audette v. Isaksen Fishing Corp.

• Decision Date: 24 April 1986
• Docket Number: No. 85-1901,85-1901
• Citation: 789 F.2d 956
• Parties: Albert G. AUDETTE, Plaintiff, Appellant, v. ISAKSEN FISHING CORPORATION, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 956

789 F.2d 956

Albert G. AUDETTE, Plaintiff, Appellant, v. ISAKSEN FISHING CORPORATION, Defendant, Appellee.

No. 85-1901.

United States Court of Appeals First Circuit.

Argued March 6, 1986.

Decided April 24, 1986.

Thomas J. Hunt with whom Law Offices of Thomas J. Hunt, Boston, Mass., was on brief, for plaintiff, appellant.

Thomas E. Clinton with whom William H. Welte and Clinton & Muzyka, P.C., Boston, Mass., were on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and MALETZ, ^* Senior Judge.

MALETZ, Senior Judge.

This appeal concerns the status of and procedure for jury polls in civil actions. Plaintiff-appellant Albert G. Audette contends that the district court abused its discretion and, among other things, effectively denied him his right to poll the jury when it entered judgment for defendant-appellee Isaksen Fishing Corporation on count one of the complaint. We affirm.

I. Background

On June 29, 1983, Audette, a fisherman working aboard the F/V HUNTRESS, was injured when he slipped on track roller lubricant on the deck and fell. He commenced an action under the Jones Act, 46 U.S.C. Sec. 688 (1982), and the general maritime law theory of unseaworthiness. ¹ The district court submitted to the jury a special verdict form, which read in pertinent part as follows: ²

1. (a) Was the defendant, Isaksen Fishing Corporation, negligent?

ANSWER: YES NO

(b) If so, was that negligence a proximate cause of the injury to plaintiff?

ANSWER: YES NO

2. (a) Was the F/V HUNTRESS unseaworthy?

ANSWER: YES NO

(b) If so, was that unseaworthiness a proximate cause of the injury to the plaintiff?

ANSWER: YES NO

During deliberations, the jury advised the district judge that it was unable to agree on the negligence question, 1(a), but was able to reach agreement on the related proximate cause question, 1(b). After consulting with counsel, the court instructed the jury that it was permitted to answer 1(b) first, but that it would remain obligated to attempt to answer 1(a) unanimously, even if the answer to 1(b) were negative and thus compelled a verdict for Isaksen on the Jones Act claim. The district court further instructed the jury that it was permitted to consider questions 2(a) and 2(b) first.

Later, the jury advised the court that it was unanimous on all questions except 1(a) and that "[i]t does not appear we will be able to reach unanimous agreement on this question." The court directed the jury to continue its deliberations. Approximately one hour and thirty-five minutes later, the court determined, with the agreement of counsel, that in the event the jury remained deadlocked on interrogatory 1(a):

I'll take a partial verdict. The verdict will be what it is, but there will be a mistrial declared on Count 1, which is the negligence count.

Shortly thereafter, the jury advised the district court that it remained deadlocked on question 1(a). The court determined that it would be an undue imposition on the jury to require further deliberations and therefore took a partial verdict. In accordance with the court's order, the jury foreman wrote in response to interrogatory 1(a): "We were unable to reach agreement on this question." The answers to interrogatories 1(b), 2(a), and 2(b) were all negative. The clerk read these questions and answers aloud and inquired: "So say you, Mr. Foreman? So say you all members of the jury." The record then indicates: "[All replied with a verbal 'yes.']"

Immediately thereafter, the following transpired:

THE COURT: Ladies and gentlemen of the jury, in accordance with your verdict, the Court declares a mistrial with regard to Count 1 of the complaint, the negligence claim, and orders that judgment be entered for the defendant on Count 2, the unseaworthiness claim.

Counsel, is there anything further at this time?

MR. CLINTON [attorney for Isaksen]: No.

MR. HUNT [attorney for Audette]: Nothing.

THE COURT: Ladies and gentlemen of the jury, this concludes your service, important service in this case.

Five days later, the district court advised the parties that it intended to enter judgment for Isaksen on count one as well as count two, because the jury's unanimous answer to interrogatory 1(b)--that the negligence of Isaksen was not a proximate cause of Audette's injury--amounted to a verdict for Isaksen on the Jones Act claim. After considering submissions by the parties, the court entered judgment for Isaksen on counts one and two of the complaint, and this appeal followed.

II. Reconsideration of the Mistrial

Audette contends that the district court erred in reconsidering its initial declaration of a mistrial on count one. He argues that this reconsideration, after dismissal of the jury, not only deprived him of his rights to poll the jury and to object to jury instructions but also lacked an adequate foundation in the jury's responses to the interrogatories. We discuss the jury polling issue in part III of this opinion. Audette's other arguments need not detain us long.

First, there is no merit to Audette's contention that the trial judge's change of heart on the granting of a mistrial deprived him of an opportunity to object to jury instructions, since, under the contemporaneous objection rule, Fed.R.Civ.P. 51, the time for objection had passed. See O'Brien v. Papa Gino's of America, Inc., 780 F.2d 1067, 1075 (1st Cir.1986). Nor is there merit to Audette's argument that the partial verdict was insufficient to support a judgment for Isaksen on count one. Rather than duplicate Audette's "analytical acrobatics," id. at 1071, we find it quite simple "to harmonize the jury's answers," id. See Gallick v. Baltimore & Ohio Railroad, 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963); Gosnell v. Sea-Land Service, Inc., 782 F.2d 464, 466-67 (4th Cir.1986); Davis v. West Community Hospital, 755 F.2d 455, 465 (5th Cir.1985). In short, the jury's unanimous finding that any negligence by Isaksen was not a proximate cause of the plaintiff's injuries suffices to support--indeed, compels--a judgment for defendant on count one. See Skyway Aviation Corp. v. Minneapolis, Northfield & Southern Railway, 326 F.2d 701, 704 (8th Cir.1964); cf. Kissell v. Westinghouse Electric Corp., 367 F.2d 375, 376 (1st Cir.1966) (partial verdict finding contributory negligence by plaintiff suffices to support verdict for defendant). Therefore, the district court was correct in reconsidering its declaration of a mistrial on count one.

III. Jury Polling

Withal, Audette claims that the district court erred in changing its position on count one after the jury had been discharged, since this effectively denied him the right to seek a poll of the jury. Although Audette never asked the court to poll the jury, he contends that the right was not waived. He argues that he had no incentive to seek a poll when the verdict was read, inasmuch as he perceived a benefit in the declaration of a mistrial and the attendant opportunity to relitigate his Jones Act claim. Thus, according to Audette, he was lulled into a false sense of security and deprived of a substantial right.

Our evaluation of Audette's contentions is governed by the harmless error rule. "[N]o error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial ... or otherwise disturbing a judgment ..., unless refusal to take such action appears to the court inconsistent with substantial justice." Fed.R.Civ.P. 61. We have explained why the jury's answers provided ample support for a verdict for Isaksen and why Audette had lost his opportunity to object to jury instructions. In determining whether Audette's being lulled into not requesting a jury poll constituted an error sufficient to clear the hurdle of rule 61, we must consider the place of jury polling in civil actions.

A. The Purpose of Jury Polling

Polling the jury gives effect to each juror's "right to change his mind about a verdict to which he has agreed in the jury room," United States v. Shepherd, 576 F.2d 719, 724 (7th Cir.), cert. denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 155 (1978), even though "the likelihood of such a change of mind is remote," id. at 725. Additionally, "[t]he purpose of the poll is to test the uncoerced unanimity of the verdict by requiring 'each juror to answer for himself, thus creating individual responsibility, eliminating any uncertainty as to the verdict announced by the foreman.' " United States v. Mathis, 535 F.2d 1303, 1307 (D.C.Cir.1976) (per curiam) (quoting Frady v. United States, 348 F.2d 84, 88-89 (D.C.Cir.) (en banc) (quoting State v. Vaszorich, 13 N.J. 99, 126, 98 A.2d 299, 314, cert. denied, 346 U.S. 900, 74 S.Ct. 219, 98 L.Ed. 400 (1953)), cert. denied, 382 U.S. 909, 86 S.Ct. 247, 15 L.Ed.2d 160 (1965) (emphasis in original)). Accord United States v. McClintock, 748 F.2d 1278, 1293 (9th Cir.1984) (purpose of jury poll is to insure each member agrees with verdict and to discover possible coercion), cert. denied, --- U.S. ----, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985); United States v. Spitz, 696 F.2d 916, 917 (11th Cir.1983) (same); United States v. Love, 597 F.2d 81, 85 (6th Cir.1979) (purpose of jury poll is to make certain that unanimity has been achieved).

In its most important opinion on the role of the jury poll in civil cases, the Supreme Court stated:

That generally the right to poll a jury exists may be conceded. Its object is to ascertain for a certainty that each of the jurors approves of the verdict as returned; that no one has been coerced or induced to sign a verdict to which he does not fully assent. It is not a matter which is vital, is frequently not required by litigants; and while it is an undoubted right of either, it is not that which must be found in the proceedings in order to make a valid verdict.

Humphries v. District of Columbia, 174 U.S. 190, 194, 19 S.Ct. 637, 638-39, 43 L.Ed. 944 (1899).

While this...