OMI Holdings, Inc. v. Howell

• Decision Date: 07 June 1996
• Docket Number: No. 75566,75566
• Parties: OMI HOLDINGS, INC., Plaintiff, v. John M. HOWELL, Defendant.
• Court: Kansas Supreme Court

Page 1274

918 P.2d 1274

260 Kan. 305

OMI HOLDINGS, INC., Plaintiff, v. John M. HOWELL, Defendant.

No. 75566.

Supreme Court of Kansas.

June 7, 1996.

Syllabus by the Court

1. Any duty which the ethics rules impose on an attorney-witness is owed to the court. An attorney's violation of the ethics rules cannot create a cause of action to adverse litigants or even to clients. This is because the ethics rules do not impose a legal duty on the attorney owing to either a client or a third party. Occasionally, attorney conduct which violates an ethics rule may also violate an independent legal duty and a cause of action may ensue. It is the violation of the independent legal duty, not the ethics rule, that gives rise to a cause of action.

2. Remedies other than a civil suit exist to deal with jury tampering, such as criminal penalties, mistrials, new trials, sanctions under 28 U.S.C. § 1927 (1994), or the inherent power of the court to find a participant in contempt of court.

3. The duty of a witness not to communicate with a juror is owed to the public and the court and not to the parties. Thus, a witness does not owe damages to a party for the breach of this duty.

4. In order for the violation of a statute or ordinance to constitute negligence per se, the statute must be designed to protect a specific group of people, not just designed to protect the general public with incidental consideration given to the protection of a certain group. A statute which is clearly promulgated to provide safety and welfare for the public at large does not impose a duty on the statute violator which is owed to the person injured.

5. The test to determine whether the violation of a statute may constitute negligence per se depends upon legislative intent. Legislative intent is primarily determined by the language of the statute, the purpose of the statute, and the nature of the evil the statute sought to remedy.

6. To establish fraud by silence, the plaintiff must show by clear and convincing evidence the following elements: (1) that defendant had knowledge of material facts which plaintiff did not have and which plaintiff could not have discovered by the exercise of reasonable diligence; (2) that defendant was under an obligation to communicate the material facts to the plaintiff; (3) that defendant intentionally failed to communicate to plaintiff the material facts; (4) that plaintiff justifiably relied on defendant to communicate the material facts to plaintiff; and (5) that plaintiff sustained damages as a result of defendant's failure to communicate the material facts to plaintiff.

Byron L. Gregory, of McDermott, Will & Emery, Chicago, Illinois, argued the cause, and Roger W. Wenthe and Michael S. Schachter, of the same firm, and Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., Kansas City, and Professor William E. Westerbeke, of the University of Kansas School of Law, Lawrence, were with him on the brief, for plaintiff.

Jerome H. Eschmann, of Ascough, Eschmann, Oyler, P.A., Topeka, argued the cause, and Bradley A. Winters and James W. Erwin, of Thompson & Mitchell, St. Louis, Missouri were with him on the brief, for defendant.

ABBOTT, Justice:

This case is before the court on three questions certified by the United States Court of Appeals for the Tenth Circuit pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. The questions are:

I. "Whether Kansas law recognizes a civil cause of action for embracery against an expert witness who causes a civil jury case to end in a mistrial as a result of his contacts with jury members."

II. "Whether Kansas law recognizes a civil cause of action for negligence against an expert witness who causes a civil jury case to end in a mistrial as a result of his contacts with jury members."

III. "Whether Kansas law recognizes a civil cause of action for fraud against an expert witness in a civil jury case who has contacts with jury members and who either fails to reveal those contacts to, or attempts to conceal those contacts from, the court or the opposing party."

The questions basically ask whether Kansas recognizes a civil cause of action for embracery, negligence, or fraud against an expert witness who causes a mistrial as a result of contacts with jury members. Embracery is "[t]he crime of attempting to influence a jury corruptly to one side or the other, by promises, persuasions, entreaties, entertainments, douceurs, and the like." Black's Law Dictionary 522 (6th ed.1990).

The facts are set forth in the certification order as follows:

"Plaintiff OMI Holdings, Inc., was the defendant in Manildra Mill. Corp. v. Ogilvie Mills, Inc., Case No. 86-2457-S, a complex and protracted case in the United States District Court for the District of Kansas involving patent issues, alleged antitrust violations, and pendent state law claims. On March 4, 1991, a combined bench and jury trial commenced in the Manildra matter. After 18 days of testimony, a mistrial was declared due to conversations overheard between John M. Howell, one of plaintiff Manildra Milling Corporation's expert witnesses, and several members of the jury. OMI subsequently filed a motion for reimbursement of attorney fees incurred in the aborted trial. OMI's motion was denied by the trial court, which concluded that 'the conversation which resulted in a mistrial was partially the fault of the expert witness and partially the fault of the jurors who disregarded th[e] [trial] court's admonitions'....; Manildra Mill. Corp. v. Ogilvie Mills, Inc., 782 F.Supp. 102, 103-04 (D.Kan.1991).

"On March 25, 1993, OMI filed this action against Howell in the District Court of Shawnee County, Kansas. In Count I of its petition, OMI asserted a cause of action for embracery against Howell, alleging that Howell 'owed a duty to OMI to refrain from influencing or attempting to influence the acts of Manildra jurors in any manner other than through sworn testimony given in the presence of Court and the parties in the courtroom,' and further alleging that Howell violated this duty by participating in contacts with the jurors with the intention to influence or attempt to influence their decision. Appellant's append. at 4. In Count II of its petition, entitled "Negligence," OMI asserted that Howell violated a duty to use reasonable care to avoid contacting the Manildra jurors by participating in contacts with the jurors 'with knowledge or reason to know that his contacts would harm OMI, with the intention to influence or attempt to influence the decisions of the Manildra jurors to adopt Manildra's positions, and with knowledge or reason to know that his acts would violate the rules prohibiting contact between witnesses or attorneys and the Manildra jurors.' Appellant's append. at 5. In Count III of its petition, entitled "Fraud," OMI asserted that Howell failed to inform the trial court or OMI of his contacts with the Manildra jurors 'with knowledge that his omission to reveal these facts would cause the court and OMI to incorrectly believe that no such contacts had taken place.' Appellant's append at 6. OMI further asserted in Count III that it justifiably relied on Howell's silence by continuing to participate in the trial and 'needlessly incurring additional fees, costs and other losses.' Id.

"The case was subsequently removed from state court to the United States District Court for the District of Kansas upon diversity jurisdiction grounds. On May 12, 1993, Howell filed a motion to dismiss pursuant to Fed. R. Civ. P[roc]. 12(b)(6), claiming that OMI's petition failed to state a claim upon which relief could be granted. On September8, 1994, the district court issued a memorandum and order granting Howell's motion. In it memorandum and order, the district court concluded that Kansas would not recognize a civil cause of action for embracery under the circumstances alleged by OMI. In support of this conclusion, the district court noted that the Kansas courts, in Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177 [1987], and Hokanson v. Lichtor, 626 P.2d 214 [1981], had previously rejected civil causes of action for spoliation of evidence and for perjury. Noting the similarities between this case and Koplin and Hokanson (e.g., the existence of other penalties for the alleged wrongful conduct, the concern for duplicative litigation), the district court concluded the Kansas courts would likewise reject a civil cause of action for embracery. In addition, the district court rejected the notion that section 18 of the Kansas Constitution's Bill of Rights could be used to create a cause of action for embracery. Finally, the district court rejected the argument that federal or state criminal statutes, which prohibit contact with jurors outside of open court, could be used to create a private cause of action. As for OMI's negligence and fraud claims, the district court concluded that both were 'back-door' efforts to bring a civil action for embracery. Moreover, the district court concluded there were no duties, under Kansas law, to exercise reasonable care in following a court's instructions to avoid communications with jurors outside of open court or to disclose embracery."

I. EMBRACERY

In support of its position that Kansas should recognize the tort of embracery, OMI cites to the following cases: Doan's Case (No.2 ), 17 Pa. C.C. 521, 5 Pa. DR. 211 (1896); Employers Insurance v. Hall, 49 N.C.App. 179, 270 S.E.2d 617 (1980), cert. denied 301 N.C. 720, 276 S.E.2d 283 (1981); LaBarre v. Payne, 174 Ga.App. 32, 329 S.E.2d 533 (1985); Trudell v. Heilman, 158 Cal.App.3d 251, 204 Cal.Rptr. 551 (1984).

In Doan's Case (No.2 ), 17 Pa. C.C. 521, the defendant attempted to influence members of a grand jury to insure that the grand jury would criminally indict two people the defendant wished to have indicted. 17 Pa. C.C. at 521. Based on this conduct, the court found that the defendant could be held in contempt...