Beverly Hills Fire Litigation, In re

• Citation: 695 F.2d 207
• Decision Date: 21 July 1982
• Docket Number: 80-3358,Nos. 80-3320,s. 80-3320
• Parties: 10 Fed. R. Evid. Serv. 1598 In re BEVERLY HILLS FIRE LITIGATION. Mary Elizabeth KISER, Individually and as Ancillary Administratrix of the Estate of Paul S. Kiser, deceased, Individually and on behalf of all others similarly situated hereinafter referred to as the Class (80-33 20/80- 3358/59/60), Plaintiffs-Appellants, Cross-Appellees, v. BRYANT ELECTRIC (80-3320), Cadillac Cable Corporation, General Electric, Hatfield Wire, Leviton, Pass & Seymour, John I. Paulding, Reynolds Metals, Slater Electric, American Insulated Wire, Ettco Wire, Marmon Group, Rhode Island Insulated Wire, Square D (80-3320, 80-3358), Columbia Cable & Wire Company (80-33 20/80-3359), South Wire Company and Triangle PWC (80-33 20/80-3360), Defendants-Appellees, Cross-Appellants. to 80-3360.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 207

695 F.2d 207

10 Fed. R. Evid. Serv. 1598

In re BEVERLY HILLS FIRE LITIGATION Mary Elizabeth KISER, Individually and as Ancillary Administratrix of the Estate of Paul S. Kiser, deceased Individually and on behalf of all others similarly situated hereinafter referred to as the Class (80-33 20/80- 3358/59/60), Plaintiffs-Appellants, Cross-Appellees, v. BRYANT ELECTRIC (80-3320) Cadillac Cable Corporation, General Electric, Hatfield Wire Leviton, Pass & Seymour, John I. Paulding, Reynolds Metals, Slater Electric, American Insulated Wire, Ettco Wire, Marmon Group, Rhode Island Insulated Wire, Square D (80-3320, 80-3358), Columbia Cable & Wire Company (80-33 20/80-3359), South Wire Company and Triangle PWC (80-33 20/80-3360), Defendants-Appellees, Cross-Appellants.

Nos. 80-3320, 80-3358 to 80-3360.

United States Court of Appeals, Sixth Circuit.

Argued July 9, 1981.

Decided July 21, 1982.

On Petition for Rehearing Dec. 23, l982.

Stanley M. Chesley (argued), Waite, Schneider, Bayless & Chesley, Cincinnati, Ohio (Philip Taliaferro, III, Larry C. West, J. Gregory Wehrman, William D. Hillmann, G. Wayne Bridges, Covington, Ky., Thomas C. Spraul, Spraul & Reyering, Gene I. Mesh, Louis F. Gilligan and Lanny R. Holbrook, Keating, Muething & Klekamp, Walter Bortz, Beall, Hermanies & Bortz, Cincinnati, Ohio, E. Andre Busald, Florence, Ky., Richard M. Hunt, Dayton, Ohio, on brief; Fay E. Stilz, Cincinnati, Ohio, of counsel), for plaintiff-appellants, cross-appellees Mary Elizabeth Kiser, et al.

Jacob K. Stein (argued), Paxton & Seasongood, Cincinnati, Ohio, for Square D Co. and Slater Elec. Co.

Charles S. Cassis, Brown, Todd & Heyburn, Louisville, Ky., for Bryant Elec.

John David Cole, Cole, Harned & Broderick, Bowling Green, Ky., for Southwire and Triangle PWC.

Louis DeFalaise, Adams, Brooking & Stepner, Covington, Ky., for Columbia Cable & Elec. Corp.

Robert C. Ewald, Wyatt, Grafton & Sloss, Louisville, Ky., for Reynolds Metals.

James Wiles, Wiles, Doucher, Tressler & Van Buren, Columbus, Ohio, for American Insulated Wire, Leviton and Rhode Island Insulated Wire.

Lee O. Fitch, Miller, Searl & Fitch, Portsmouth, Ohio, for Hatfield Wire.

William V. Johnson, Johnson, Cusack & Bell, Ltd., Chicago, Ill., for Marmon Group, Inc.

William T. McCracken, Crabbe, Brown, Jones, Potts & Schmidt, Columbus, Ohio, for General Elec.

W. Andrew Patton, Kohnen & Kohnen, Cincinnati, Ohio, for John I. Paulding.

C. Alex Rose, Curtis, Rose & Parker, Louisville, Ky., for Pass & Seymour.

Before EDWARDS, Chief Judge, ENGEL, Circuit Judge, and WEICK, ^* Senior Circuit Judge.

ENGEL, Circuit Judge.

On the evening of May 28, 1977, fire destroyed the Beverly Hills Supper Club in Southgate, Kentucky. One hundred sixty-five patrons and employees perished in the fire and many others were injured. Extensive litigation followed in both the State and Federal courts. Underlying this appeal is a class action commenced in the United States District Court for the Eastern District of Kentucky, based on diversity of citizenship. The class consists of the legal representatives of the persons killed and approximately thirty-five individuals who claimed to have been injured in the fire. Plaintiffs named as defendants several manufacturers of "old technology" aluminum branch circuit wiring, claiming those materials had been installed in the supper club and had caused the fire. ¹

Shortly before the trial was scheduled to begin, the trial judge ordered that it be bifurcated. The jury first would consider the question of "causation in fact." If aluminum wiring were found to be a cause of the fire, the jury would then determine questions of liability and damages.

Plaintiffs' theory at trial was that the fire began in a "dead" or empty space within the north wall of a cubbyhole next to the Zebra Room, located on the first floor of the Supper Club. ² Plaintiffs asserted that the fire originated at an aluminum duplex receptacle. The receptacle, a standard electrical outlet into which electrical appliances are plugged, was allegedly located in the cubbyhole and connected to aluminum branch circuit wiring.

Plaintiffs claimed that, due to a number of physical characteristics of old technology wiring, heat developed at the connection of the aluminum branch circuit wiring to the receptacle, ³ and that this heat eventually ignited the wooden studs and other building materials in the wall. Plaintiffs claimed that the heat finally caused an open flame which spread undetected within the wall for approximately one to one and one-half hours before flame broke through the wall and directly engaged the Zebra Room itself.

Defendants responded that the receptacle in the cubbyhole was not proved to have been wired with aluminum branch circuit wiring. They claimed that the fire more likely began due to copper wiring of an electrical pump that was connected to a water fountain located in front of a staircase on the north side of the north wall. The defendants also suggested that the fire started as a result of numerous fire code violations found to have existed in the club.

After twenty-two days of trial over a period of eleven weeks, the jury returned a special verdict answering in the negative the question whether the connection of old technology aluminum wired to an electrical device caused the fire at the Supper Club. Based upon that finding, the trial judge entered a general judgment in favor of the defendants. Plaintiffs moved for a mistrial, for judgment notwithstanding the verdict and for a new trial. The trial judge denied all motions. These appeals followed.

While several issues are raised in these appeals, one error, improper experimentation by a juror, is of such importance that it alone mandates vacating the judgment and remanding for new trial or other proceedings. Of the numerous other issues raised, therefore, we address only those relevant to the disposition of this appeal or those whose resolution may facilitate any proceedings on remand.

I

During the trial, one of the jurors performed an improper experiment when he investigated the condition of the aluminum wiring and connections in his home. He then reported his findings to other jurors, findings which were factually at odds with plaintiffs' theory of how the fire began.

Plaintiffs sought to show throughout the course of the trial that aluminum branch wiring is more likely to overheat and cause fires than is copper wiring. Carl Duncan, qualified as an expert in electrical fire origin, testified that an early indication of the degenerative process leading to overheating is that binding screws holding the wire appear to be loose. This loosening, he testified, aggravates the inability of the wire to conduct electricity. As the process allegedly occurs over a period of 5 to 10 years, plaintiffs characterized aluminum wiring systems as "time bombs."

Following this testimony, the juror examined receptacles in his home. He pulled receptacles from their boxes and checked the binding head screws for tightness. He also looked for receptacles manifesting later stages of degeneration. His experiment tended to contradict evidence presented by the plaintiffs on the hazards of aluminum wiring. The juror found nothing wrong with his own receptacles which, he claimed, had been installed eleven years earlier. The juror believed that, under plaintiffs' theory, the receptacles would have been in place long enough for some degeneration to have occurred. He also found that the screws holding aluminum wiring to his electrical devices in his outlets were tight.

After the verdict for the defendants had been rendered and the jury discharged, the juror wrote an anonymous letter to the Kentucky Enquirer, a newspaper of general circulation in northern Kentucky. In the letter, he explained the reasons for his decision and challenged the validity of the plaintiffs' evidence when compared to findings in his own home. ⁴ He also expressed the view that the fire was caused by numerous fire code violations found in the Supper Club.

In the post-trial evidentiary hearing, the trial judge learned that the juror communicated this information to at least six other jurors during the course of the trial. At least one juror recalled having privately discussed this matter with the experimenting juror during the course of the jury deliberations. Thereafter, plaintiffs moved for a mistrial.

The trial judge denied plaintiffs' motions for mistrial, for judgment notwithstanding the verdict, and for a new trial based upon the juror's conduct, observing:

In the context of the trial length, the quantity of evidence presented and the number of witnesses called by each side, this action by a juror appears to be of minor consequences and not a sufficient intrusion upon the deliberative process as to require the setting aside of the jury verdict.

In Re: Beverly Hills Fire Litigation, C. No. 77-79 at p. 8 (E.D.Ky. April 7, 1980).

Plaintiffs claim that the juror's investigation was an impermissible experiment requiring that the verdict be set aside. Defendants respond that the juror's action was harmless. They further stress that the inflammatory language regarding "time bombs" made it almost inevitable that the experiment would occur. Since the trial was expected to be a long one, the defendants claim that it is unreasonable to expect that a juror would wait until the end of the trial to inspect his own home for dangers which the plaintiffs had so characterized. Defendants contend that the juror's investigation was not in the nature of an "experiment" nor a purposeful attempt to develop information about the case being tried, but was more in the nature of a personal and unrelated experience which could not have affected the judgment of that juror or those to whom he communicated that information.

Upon a careful examination of the record and the applicable law, we regretfully conclude that the jury verdict was impermissibly tainted...