Grossheim v. Freightliner Corp., 91-1255

• Decision Date: 10 September 1992
• Docket Number: No. 91-1255,91-1255
• Citation: 974 F.2d 745
• Parties: 36 Fed. R. Evid. Serv. 724 Ronald GROSSHEIM; Ann Grossheim, Plaintiffs-Appellants, ANR Freight System, Inc., Intervening Plaintiff, v. FREIGHTLINER CORPORATION, a Delaware corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 745

974 F.2d 745

36 Fed. R. Evid. Serv. 724

Ronald GROSSHEIM; Ann Grossheim, Plaintiffs-Appellants ANR Freight System, Inc., Intervening Plaintiff, v. FREIGHTLINER CORPORATION, a Delaware corporation, Defendant-Appellee.

No. 91-1255.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 18, 1991.

Decided Sept. 10, 1992.

George T. Fishback (argued and briefed), Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, Detroit, Mich., for plaintiffs-appellants.

Lance R. Mather and David N. Campos, Smith, Haughey, Rice & Roegge, Grand Rapids, Mich., for intervenor.

Cheryl A. Bush (briefed) and Dennis M. Haffey (argued), Dykema & Gossett, Detroit, Mich., for defendant-appellee.

Before: NELSON and SUHRHEINRICH, Circuit Judges; and ENGEL, Senior Circuit Judge.

ENGEL, Senior Circuit Judge.

The principal issue in this appeal is whether the trial judge abused his discretion in declaring a mistrial after one juror of a six juror panel, upon examination by the judge, revoked her assent to the verdict announced by the foreperson.

Ronald Grossheim and his wife Ann brought this Michigan diversity action in the United States District Court for the Western District of Michigan alleging that defendant Freightliner Corporation's negligence and defective design of a climbing system caused serious personal injuries to Mr. Grossheim when he slipped and fell from a truck cab manufactured by Freightliner. The matter came on for trial and after six days of testimony and two and one-half days of jury deliberations, the jury returned a verdict in favor of plaintiffs, finding damages suffered by Mr. Grossheim in the amount of $1,625,000.00 and by Mrs. Grossheim in the amount of $375,000.00. The jury then discounted those damages by sixty percent to reflect Mr. Grossheim's contributory negligence, resulting in a total verdict for the Grossheims in the amount of $800,000. However, uncertainty regarding the jury's unanimity in the verdict prompted the trial judge, United States District Judge Robert Holmes Bell, to set aside the verdict and to declare a mistrial. Finally, after two subsequent abortive efforts to retry the case, each ending in mistrial, the parties finally tried this case to completion before Senior United States District Judge Wendell A. Miles. This time the jury returned a verdict in favor of Freightliner finding no cause of action, and the court entered judgment thereon. This appeal followed.

The Grossheims raise three issues on appeal. First, they assert that Judge Bell abused his discretion in setting aside the $800,000 verdict returned by the jury in the first trial. There was insufficient basis for declaring the mistrial, they argue, and therefore seek reinstatement of that verdict. In the alternative the Grossheims claim two errors in the ultimate retrial. They argue that Judge Miles erred by excluding from evidence their proposed exhibit consisting of a trucking industry document that sets forth recommended designs for truck cab climbing systems, and by retaining jurisdiction after ANR Freight Systems defeated complete diversity by intervening as a silent party plaintiff. Accordingly, the Grossheims ask us to vacate the judgment of no cause of action and to remand to the district court for yet another trial on the merits.

We conclude that Judge Bell did not abuse his discretion in ordering a new trial following the first verdict, and that no error has been demonstrated sufficient to warrant reversal of the judgment of no cause of action on the second trial. Accordingly, we affirm.

I.

The scenario that presented itself to the district court following the return of the jury verdict in the first trial was new to the experienced trial judge, but certainly not unheard of. Jurors frequently react emotionally upon return of their verdict. A jury's decision-making process is often stressful and a natural sympathy for genuine injuries often gives rise to painful conflicts when the question of legal fault and responsibility is close. The tortured history of this case, which saw four trials, three of which aborted, suggests that the issue of liability was razor thin.

The first trial consumed six days. Thereafter, upon submission upon instructions not challenged here, the jury deliberated for two and one-half days, twice informing Judge Bell that it was deadlocked. Each time, however, Judge Bell, with the consent of both parties, gave the jury a modified "Allen" charge. Neither party objected to that instruction. Finally the jury returned to the courtroom and the foreman announced a verdict in favor of the Grossheims. Thereafter members of the jury, in unison, told Judge Bell that this was indeed their verdict. Because two jurors appeared particularly distressed as they voiced assent to the verdict, however, counsel for Freightliner asked the trial judge to poll the jurors individually. One juror, Elizabeth Buxton, was so equivocal when asked whether the returned verdict was her verdict that Judge Bell, after further examination, set aside the verdict and declared a mistrial. The Grossheims appeal that order.

Fairness and a full understanding of the setting in which Judge Bell exercised his discretion require that we reproduce verbatim the transcript of the proceedings:

THE COURT: The jury having indicated that they have their verdict form filled out, apparently have reached a verdict, we will bring the jury in in this matter. (Jury in at 3:31 p.m.)

THE COURT: You may be seated. Okay, Madam Clerk.

THE CLERK: Members of the jury, have you agreed upon a verdict? If so, let your foreperson rise.

Would you please read your verdict, Mr. Foreperson?

THE COURT: Just a minute here. You have a sealed verdict there. Would you please hand it to the Bailiff? I'm sorry. That's okay. We'll do it just a little differently in this case.

Madam Clerk, would you please examine the sealed verdict. You may be seated. Thank you. May I please see this.

Madam Clerk, would you please read the verdict into the record in this matter. This is being a special verdict form, if you would please read the question and read the answer following it then, please.

THE CLERK: Question No. 1: Was Freightliner negligent in its design of the climbing system? Answer: Yes.

No. 2: Was Freightliner's negligence a proximate cause of Plaintiffs' injuries? Answer: Yes.

What are Plaintiff Ronald Grossheim's damages? One million six hundred twenty-five thousand dollars.

Was Ronald Grossheim negligent? Answer: Yes.

Was Ronald Grossheim's negligence a proximate cause of Plaintiffs' injuries? Answer: Yes.

Ronald Grossheim's negligence: 60 percent.

THE COURT: Okay. Mr. Foreman, was that and is this your verdict?

JUROR KEMARLY: It was, all of us.

THE COURT: Ladies and gentlemen of the jury, was that and is this your verdict?

THE JURORS: Yes. [emphasis added]

THE COURT: Okay. Mr. Haffey, would you wish the jurors be polled in this matter?

MR. HAFFEY [counsel for defendant]: Yes, I would, Your Honor.

THE COURT: Madam Clerk, would you please poll the jurors.

THE CLERK: Elizabeth Buxton, was that and is this your verdict?

JUROR BUXTON: It's something I can live with.

THE CLERK: Deloris Duke, was that and is this your verdict?

JUROR DUKE: I don't like it, but yes.

THE CLERK: Elizabeth McLeod, was that and is this your verdict?

JUROR McLEOD: Yes.

THE CLERK: Darren Kemarly, was that and is this your verdict?

JUROR KEMARLY: Yes.

THE CLERK: Coralene Jones, was that and is this your verdict?

JUROR JONES: Yes.

THE CLERK: M.A. Sainz, was that and is this your verdict?

JUROR SAINZ: Yes.

THE COURT: Okay. Thank you, Madam Clerk.

Let me ask Juror Number 1, was this and is this your verdict?

JUROR BUXTON: I don't know what you want me to say. I'm not happy with it, but I can live with it. I can tolerate it so that I can go home.

THE COURT: Okay. For the required unanimity in this matter, this is your verdict, is it, for purposes of this matter?

JUROR BUXTON: Yes. [emphasis added]

THE COURT: Okay. Juror Number 2, is this your verdict for purposes of this matter?

JUROR DUKE: Yes.

THE COURT: Okay. If you can be excused, all of you, to the jury room just for a few moments and then we'll excuse you in this matter. Thank you. You may be excused. (Jury out at 3:35 p.m.)

THE COURT: Anything need be placed upon the record as it relates to the jurors' indication of whether or not this is their verdict, Mr. Fishback?

MR. FISHBACK [counsel for plaintiffs]: I don't believe so.

THE COURT: Mr. Haffey?

MR. HAFFEY: Yes, Your Honor. It seems apparent, both on the record and what's not on the record, which is a woman in the back row crying, that this is not a unanimous verdict, that this is a coerced verdict, at least as to--and I may be wrong on the numbers, but I think Juror Number 1 and also as to Juror Number 2. It's probably the type of thing that ought to be raised now rather than on a later motion after the jury has been discharged, a motion for a new trial or JNOV. But the woman in the back--the two women in the back row are both crying, and one says it's something I can live with in order to go home today. I don't have the exact language, the record will reflect that, but it is not a unanimous verdict.

THE COURT: Mr. Fishback?

MR. FISHBACK: I really don't have any comment. I think that the assent to the verdict was sufficient. Obviously, it was an emotional kind of thing for the jurors, as it has been for all of us who've had any contact with the case.

THE COURT: The problem, and I'm--this is a unique situation. I've never had this situation before. The problem we have confronted here is the unanimity that is required for a juror, and for a juror to blurt out, as Juror Number 1 did, I can live with this is troublesome. It's very troublesome to the Court.

I'm inclined to think that we might be better served by bringing these two jurors who have indicated some disagreement into the courtroom individually and inquiring of them...