Cook v. Rockwell Intern. Corp.

• Citation: 428 F.Supp.2d 1152
• Decision Date: 18 April 2006
• Docket Number: Civil Action No. 90-K-181.
• Parties: Merilyn COOK, et al., Plaintiffs, v. ROCKWELL INTERNATIONAL CORPORATION and The Dow Chemical Company, Defendants.
• Court: U.S. District Court — District of Colorado

Page 1152

428 F.Supp.2d 1152

Merilyn COOK, et al., Plaintiffs, v. ROCKWELL INTERNATIONAL CORPORATION and The Dow Chemical Company, Defendants.

Civil Action No. 90-K-181.

United States District Court, D. Colorado.

April 18, 2006.

Bernadette M. Rappold, David F. Sorensen, Ellen T. Noteware, Eric L. Cramer, Jennifer E. MacNaughton, Jonathan Auerbach, Peter B. Nordberg, Stanley B. Siegel, Merrill Gene Davidoff, Berger & Montague, P.C., Philadelphia, PA, Christopher Thomas Reyna, John David Stoner, Chimicies & Tikellis, L.L.P., Haverford, PA, Gary B. Blum, Holly Brons Shook, Bruce H. Deboskey, Steven William Kelly, Silver & Deboskey, P.C., Denver, CO, Jean Marie Geoppinger, Louise M. Roselle, Stanley M. Chesley, Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, OH, David Evans Kreutzer, Colorado Department of Law, Denver, CO, Kenneth A. Jacobsen, Jacobsen Law Offices, LLC, Wallingford, PA, R. Bruce McNew, Taylor, Gruver & McNew, P.A., Greenville, DE, Daniel R. Satriana, Jr., Clisham, Satriana & Biscan, LLC, Denver, CO, Ronald Simon, Simon & Associates, Washington, DC, for Plaintiffs.

Amy Horton, Edward J. Naughton, Timothy P. Brooks, Wendy S. White, Goodwin Procter, LLP-DC, Washington, DC, David M. Bernick, Douglas J. Kurtenbach, Mark S. Lillie, John E. Tangren, Stephanie A. Brennan, S. Jonathan Silverman, Kirkland & Ellis-Illinois, Chicago, IL, Joseph John Bronesky, Christopher Lane, Sherman & Howard, L.L.C., Denver, CO, Martin Thomas Tully, Katten Muchin Rosenman LLP, Chicago, IL, Douglas M. Poland, Lafollette, Godfrey & Kahn, Madison, WI, Lester C. Houtz, Bartlit, Beck, Herman, Palenchar & Scott-Colorado, Denver, CO, Louis W. Pribila, Dow Chemical Company, Midland, MI, for Defendants.

AMENDED ORDER ON PENDING MOTIONS FILED UNDER SEAL (DOCS. 2122, 2123, 2156) AND TO PRESERVE JURY NOTES (DOC. 2124)

KANE, District Judge.

This matter is before me on Defendants' Motion to Speak with Juror (Filed Under Seal) (Doc. 2122), Defendants' Motion to Unseal Redacted Version of Juror Notes and Transcripts (Filed Under Seal) (Doc. 2123), Defendants' Motion to Preserve Jury Notes (Doc. 2124), and Defendants' Motion to Correct Error in Transcription (Filed Under Seal) (Doc. 2156). Being fully advised of "their premises and the applicable law, I issue the following rulings:

1. Defendants' Motion to Speak with Juror (Filed Under Seal) (Doc. 2122).

Citing United States v. Samet, 207 F.Supp.2d 269 (S.D.N.Y.2002), Defendants move under D.C.COLO.LCiv.R 47.1 for an order (1) allowing them to speak with Juror X¹ and (2) disclosing "any communications the Court or Court personnel have had with [Juror X] following her exit from the jury room." The Motion is DENIED in both regards under Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987) and F.R.E. 606(b).

District courts have wide discretion to shield jurors from post-trial "fishing expeditions" carried out by losing attorneys interested in casting doubt on the jury's verdict or deliberations process. See e.g. United States v. Hall, 424 F.Supp, 508, 538-39 (W.D.Okla.1975), aff'd, 536 F.2d 313 (10th Cir.1976). "`There are many cogent reasons militating against post-verdict inquiry into jurors' motives for decision. The jurors themselves ought not be subjected to harassment; the courts ought not be burdened with large numbers of applications mostly without real merit; the chances and temptations for tampering ought not be increased; verdicts ought not be made so uncertain.'" Id. at 538 (quoting United States v. Crosby, 294 F.2d 928, 950 (2d Cir.1961), cert. den'd., 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962)).

Samet, Defendants' principle authority for the relief requested, provides a single case hi which a court, in a criminal prosecution, deemed it necessary to declare a mistrial rather than continue with fewer than 12 jurors when a juror sent communications and made statements, during the course of deliberations, suggesting she held a minority view on the merits of the case, was experiencing pressure from other jurors to change her vote, had changed her vote on some counts, and no longer believed she could deliberate fairly. Finding the limited exception for proceeding with fewer than 12 jurors in criminal cases set forth in Fed.R.Crim.P. 23(b) could not be invoked without violating jury secrecy, the district court declared a mistrial. 207 F.Supp.2d at 277 & n. 4.

Samet is completely distinguishable on its facts from the scenario that presented itself in the Cook v. Rockwell case on January 25th when Juror X left the jury deliberation room in distress. Had Defendants pursued their motion for mistrial at that time (which motion was anticipated and suggested orally but never formally pursued with a written motion or briefing) I would have denied it both because Samet was inapplicable² and because, quite simply, Juror X was excused for cause because she was no longer able to perform her duties. With no indication that Juror X held any view on the merits of the case at that time (which was two days into what became 18 days of deliberations), minority or otherwise, no indication that she was being pressured to change any such "view," and no `indication that she was leaving because she could no longer deliberate fairly—and with the remaining jurors' public assurance that they could continue to do so—there was simply no basis for declaring a mistrial at that time. Fishing for such indices now, however, after the remaining jurors deliberated for 15 additional days and returned a verdict against Defendants, is not only unsupported by Samet, but is in direct contravention of Rule 606(b) of the Federal Rules of Evidence and the sound, centuries-old legal and public policy considerations underlying that Rule.

Defendants raised all manner of issues on January 25th in the wake of Juror X's discharge, but in the end, failed to formalize their motion for mistrial or to provide briefing they promised was forthcoming.³ Instead, Defendants allowed the jury to continue deliberating for three full weeks after Juror X's dismissal, not following up on the issue, and instead, acted in a manner entirely inconsistent with any objection to allowing the jury to continue its deliberations to final verdict or a desire to have the issue resolved before final verdict was reached.

For example, one of Defendants' first actions after Juror X's dismissal on January 25th was to revisit their stipulation to allow a consensus verdict with up to two dissenters per verdict form question, stating that having lost two jurors, they were "not prepared to accept less than [a] unanimous verdict." (Tr. at 10764-65.) Defendants revealed a change of heart over the noon hour, however, reaffirming in response to a question submitted by the newly convened 10-member jury their original agreement to allow a binding vote with two dissents, expressly acknowledging that this meant an 8-2 vote would be binding, and repeating that agreement on the record. (Tr. at 10765.)⁴ Defendants made no objection then or at any time thereafter to the jury continuing to deliberate with 10, rather than 11, jurors.

During the course of the following three weeks, moreover, Defendants filed numerous responses to at least eight questions/requests by the jury as it deliberated, but neither requested that deliberations be halted nor filed any briefing in support of their Samet-based suggestion that Juror X's departure without questioning her somehow created or revealed an insurmountable taint on the jury requiring mistrial. Instead, Defendants waited until after the jury reached its verdict and after the verdict went against them to reassert the specter that Juror X "may" have been a dissenting juror who "may" have been rousted from the jury based on that dissent such that they should be allowed to investigate that specter post-verdict to determine whether a mistrial or new trial is warranted now. Had the verdict gone their way, Defendants would have received the benefit of their hedge and we would undoubtedly have heard nothing further from them on the issue.⁵

Once a jury has deliberated to verdict, Samet, even if it were to apply in this case, falls away and no reasonable argument can be made that anything other than FRE 606(b) governs a post hoc inquiry into a potential "taint" in the deliberative process, particularly one that ostensibly occurred two days into an 18-day deliberation process and after a four month, exceedingly complex trial. In this case, Rule 606(b) governs the issues raised and precludes the fishing expedition requested by Defendants.

FRE 606(b) prohibits jurors from testifying "as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict . . . or concerning the juror's mental processes in connection therewith," and prohibits a juror's affidavit or evidence of any juror's statement concerning any such matter from being received by a Court for purposes of questioning the validity of a verdict.

The Rule is a codification of principles dating back to the 18th century and long held inviolate in our system of laws. See McDonald v. Pless, 238 U.S. 264, 269, 35 S.Ct. 783, 59 L.Ed. 1300 (1915)(citing the 1785 ruling of Lord Mansfield in Vaise v. Delaval, 1 T.R. 11, and concluding it "is unquestionably the general rule that the losing party cannot, in order to secure a new trial, use the testimony of jurors to impeach their verdict"). The Supreme Court wrote specifically about the nature and underpinnings of Rule 606(b) in Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), reiterating the substantial policy considerations underlying the Rule and reviewing case law treating allegations of the physical or mental incompetence of a juror as falling squarely within its prohibitions.

The exceptions to the...