Opinion
HHBCV146023484S
11-19-2015
Robert Stone v. Joann McGovern
UNPUBLISHED OPINION
RULING ON PLAINTIFF'S POSTTRIAL MOTIONS (NOS. 149 AND 152) AND DEFENDANT'S OBJECTIONS (NOS. 155 AND 154)
Marcia J. Gleeson, J.
The jury in this civil negligence action returned a verdict for the defendant on September 1, 2015.
On September 9, 2015, the plaintiff filed a motion to set aside the verdict and enter judgment in favor of the plaintiff, or in the alternative to set aside the verdict and order a new trial, on the ground that the verdict was against the weight of the evidence. (No. 149.) The defendant filed an objection to the motion on September 15, 2015. (No. 155.)
On September 10, 2015, the plaintiff filed a motion to set aside the verdict and for a new trial based on juror misconduct. (No. 152.) The defendant filed an objection to the motion on September 15, 2015. (No. 154.)
A hearing on the post-trial motions was held on October 20, 2015. The motions will be addressed seriatim as follows.
The appropriate legal standard for setting aside a jury verdict is well-settled. " The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence." (Citation omitted; internal quotation marks omitted.) Howard v. MacDonald, 270 Conn. 111, 126, 851 A.2d 1142 (2004).
In Wichers v. Hatch, 252 Conn. 174, 186-89, 745 A.2d 789 (2000), our Supreme Court stated: " The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly . . . The trial judge in considering the verdict must do the same . . . and if, in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial . . . The trial judge has a broad legal discretion and his action will not be disturbed unless there is a clear abuse . . . A conclusion that the jury exercised merely poor judgment is likewise insufficient . . . Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue. That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do." (Citations omitted; footnote omitted, internal quotation marks omitted.) See also Gambardella v. Feldman, 294 Conn. 482, 986 A.2d 1022 (2010).
This court is fully aware that: " [i]t is the jury's right to accept some, none or all of the evidence presented . . . It is the [jury's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses . . . The [jury] can . . . decide what--all, none, or some--of a witness' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) Smith v. Lefebre, 92 Conn.App. 417, 422, 885 A.2d 1232 (2005). Moreover, " [w]e emphasize that, in reviewing the evidence in the light most favorable to sustaining the verdict, the trial court, and the reviewing court, are bound by the jury's credibility determinations and all reasonable inferences the jury could have drawn from the evidence." (Emphasis in original.) Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 290, 290 32 A.3d 318 (2011).
" [E]vidence is not insufficient . . . because it is conflicting or inconsistent. [The finder of fact] is free to juxtapose conflicting versions of events and determine which is more credible." (Internal quotation marks omitted.) Brown v. Hartford, 160 Conn.App. 677, 702 (2015). " The existence of conflicting evidence . . . curtails the authority of the court to overturn the verdict because the jury is entrusted with deciding which evidence is more credible and what effect it is to be given." (Internal quotation marks omitted.) Hughes v. Lamay, 89 Conn.App. 378, 384, 873 A.2d 1055, cert. denied, 275 Conn. 922, 883 A.2d 1244 (2005).
I. Motion No. 149 and Objection No. 155
This motion asks the court to set aside the verdict and enter judgment in favor of the plaintiff, or in the alternative to set aside the verdict and order a new trial, on the ground that the verdict was against the weight of the evidence. The defendant has objected, arguing in her brief that there was evidence at trial upon which the jury might have reasonably reached its conclusion. During the hearing on posttrial motions, both attorneys waived argument, asking the court to decide this motion on the briefs submitted.
This case arises out of a collision between a motorcycle operated by the plaintiff and a motor vehicle operated by the defendant, for which responsibility was sharply contested at trial.
In this motion to set aside the verdict, the gravamen of plaintiff's argument is that the jury was required to credit the plaintiff's testimony on the evidence over that of the defendant because the plaintiff claimed an exact recollection of " how the accident happened" and the defendant did not. The court disagrees with this assertion and the plaintiff cites no authority for it. Moreover, the jury also had to consider the totality of the testimony of both parties as well as the testimony of the plaintiff's liability expert, the defendant's liability expert, the police officer who investigated the accident, and the credibility of each.
" A verdict should not be set aside . . . where it is apparent that there was some evidence on which a jury might reasonably have reached its conclusion." (Internal quotation marks omitted.) ( Schettino v. Labarba, 82 Conn.App. 445, 450, 844 A.2d 923 (2004). Nor can the court substitute its opinion for that of the jury simply because the court would consider or weigh the evidence differently. Considering the evidence in the light most favorable to sustaining the verdict, the court finds that there was ample evidence to support the verdict for the defendant; that is, for the jury to have reasonably found that the plaintiff failed in his proof on the issues, and accordingly denies the plaintiff's motion and sustains the defendant's objection.
II. Motion No. 152 and Objection No. 154
The plaintiff has moved to set aside the verdict on the ground of juror misconduct, based on an affidavit from Edward Jazlowiecki, an attorney in the firm of Jazlowiecki & Jazlowiecki, which has represented the plaintiff during these proceedings. Therein, Jazlowiecki stated, inter alia, that on the evening of September 3, 2015 he initiated and conducted an " extended phone conversation" with Juror #1, R.G., to inquire about the jury's verdict. Based solely upon that conversation and the resulting affidavit, in his memorandum the plaintiff asserts three grounds for his claim of juror misconduct:
The court uses the initials of jurors " to protect their legitimate privacy interests." State v. Ciullo, 140 Conn.App. 393, 416 n.10, 59 A.3d 293 (2013), aff'd, 314 Conn. 28, 100 A.3d 779 (2014).
1. That during the trial, R.G., who had a keen interest in astrology, " exerted undue influence" on the other jurors by doing " Astrological Workups" for most of the jurors based on their dates of birth and dates of marriage, causing " the entire jury to be unfairly and prejudicially tainted by [R.G.] and his Astrological beliefs, " and thus denying the plaintiff a fair trial;
2. That during the pre-deliberation portion of the trial, R.G. while at home did " a Full Astrological Workup of the case" based on the date of the accident, in violation of his juror's oath and of the court's admonitions prohibiting independent research or investigations about the case and resulting in probable prejudice to the plaintiff;
3. That during the deliberations portion of the trial, R.G. while at home did " a Full Astrological Workup" of the plaintiff and the defendant based on their dates of birth in violation of his juror's oath and of the court's admonitions prohibiting independent research or investigations about the parties, and resulting in probable prejudice to the plaintiff.
" Where juror misconduct is alleged in civil cases, the rule is that if the prevailing party is not implicated in the misconduct, [t]he burden rests on the moving party . . ." (Internal quotation marks omitted.) Baldwin v. Jablecki, 52 Conn.App. 379, 383-84, 726 A.2d 1164 (1999). " [T]he burden is on the moving party . . . to establish that juror misconduct denied him a fair trial . . . That burden requires the moving party to demonstrate that the juror misconduct complained of resulted in probable prejudice to the moving party . . . In sum, the test is whether the misbehavior is such to make it probable that the juror's mind was influenced by it so as to render him or her an unfair and prejudicial juror." (Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 104, 956 A.2d 1145 (2008). Not every instance of juror misconduct requires a new trial. Sawicki v. New Britain General Hospital, 302 Conn. 514, 522, 29 A.3d 453 (2011); Williams v. Salamone, 192 Conn. 116, 122, 470 A.2d 694 (1984).
" [A] specific allegation of juror misconduct requires some inquiry by the trial court." (Citation omitted.) Baldwin v. Jablecki, supra, 52 Conn.App. 383. " In light of the public policy concerns implicated once a judgment has been rendered, we limit the type of evidence that may be considered in impeachment of a jury's verdict. Although [litigants] . . . have an interest in impartial jury trials . . . after a jury verdict has been accepted, other . . . interests emerge that favor proceedings limited in form and scope. The [courts have] a strong interest in the finality of judgments . . . and in protecting the privacy and integrity of jury deliberations, preventing juror harassment and maintaining public confidence in the jury system." (Internal quotation marks omitted.) Sawicki v. New Britain General Hospital, supra, 302 Conn. 522-23. In State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995), our Supreme Court addressed the issue of how a trial court should respond to allegations of juror misconduct. " [A] trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel. Although the form and scope of such an inquiry lie within a trial court's discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct. That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court's sound discretion with respect thereto." Id., 526. " The [movant] is entitled to a fair opportunity to substantiate his claim." State v. Roman, 262 Conn. 718, 729, 817 A.2d 100 (2002). These rules apply to civil as well as criminal cases. Harrison v. Hamzi, 77 Conn.App. 510, 522, 823 A.2d 446, cert. denied, 266 Conn. 905, 832 A.2d 69 (2003). Upon receiving evidence of incidents during trial or during deliberations which might have affected the result of the trial, it is for the trial court to determine whether they warrant a reversal of the verdict. Turk v. Silberstein, 48 Conn.App. 223, 228, 709 A.2d 578 (1998).
Bearing in mind the above principles, the court scheduled a hearing on plaintiff's post-trial motions for October 20, 2015. On October 20, 2015, the court met with counsel for both parties in chambers prior to the hearing, to inquire as to their positions and to invite their input, after which the preliminary hearing was commenced. After assessing the allegations and hearing from both counsel on the record, the court immediately conducted, over the objection of the defendant, a limited evidentiary hearing by placing under oath and questioning R.G., who was present under the plaintiff's subpoena.
The plaintiff did not seek to call any of the other jurors as witnesses and the court understood that none had been subpoenaed for the hearing.
The plaintiff first claims that by doing " Astrological Workups" for most of the jurors, R.G. " exerted undue influence" on " the entire jury, " and " caused them to be unfairly and prejudicially tainted by [R.G.] and his Astrological beliefs, " to defer to his opinions, and/or to give his opinions about the case more weight than they deserved. As to this first ground, assuming arguendo that it is true as stated in the Jazlowiecki affidavit that R.G., having a keen interest in astrology, prepared astrological workups for some of the jurors based upon their dates of marriage or birth, the court fails to see how that constitutes a viable allegation of juror misconduct. The supporting affidavit is silent as to any evidence of resulting undue influence or prejudice, and the plaintiff's brief contains only unsupported tautological and conclusory assertions that the alleged workups did result in such undue influence or prejudice. " It is well established that representations of counsel are not evidence." Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 741, 84 A.3d 895 (2014). In addition, the plaintiff did not seek to call any of the other jurors as witnesses or offer any evidence on the alleged undue influence at the hearing, and when the complaining party fails to move his contention " from the realm of speculation to the realm of fact, " further inquiry is not necessary, State v. Owens, 100 Conn.App. 619, 629, 918 A.2d 1041, cert denied, 282 Conn. 927, 926 A.2d 668 (2007). The court is persuaded on the basis of the allegations before it and the inquiry, that the first ground lacks any merit.
As to the second and third grounds, the gravamen of plaintiff's claims as expressed in his brief is that R.G. violated his juror's oath to decide the case based only on the evidence presented in court, as well as the court's repeated warnings not to perform any investigations or research about the case or the parties and " not to look anything up on the Internet concerning information about the case or any of the people involved, including the parties, " by doing " Full Astrological Workups" of the case and the parties during the trial. As these claims warranted additional scrutiny, R.G. was questioned under oath by the court. In its discretion the court declined to allow plaintiff's counsel to personally examine or cross examine R.G.; however, after completing its preliminary questions the court, outside of the presence of the juror, invited input from both counsel, after which the court again questioned R.G. Pursuant to the said examination, the court finds as follows.
The plaintiff does not allege that the so-called workups or any information related thereto were imparted to any of the other jurors.
The defendant's counsel made no such request.
R.G. has an interest in astrology, and in connection with that interest is able to produce astrological charts by inputting a date into a program on his home computer. This results in a circular chart, or map, showing the position of the planets in the sky on the inputted date. After the verdict in this case was accepted and the jury discharged, R.G. while at home did astrological charts of the plaintiff and the defendant using dates of birth which he had observed in a trial exhibit.
R.G. also similarly produced a chart based on the date of the accident, the production of which he only " vaguely" recalls. Unlike his recollection of the timing of the astrological charts of the plaintiff and the defendant, during his testimony R.G. was not sure about the timing but allows that it is possible that he may have done this chart before the verdict was accepted. In either event, after R.G. input the date of the accident into his computer, the computer produced a chart consisting of a map showing the position of the planets in the sky on that date. R.G. looked at the map, but did not print it out or do anything further with it. There was nothing he saw of significance about that particular day so he just looked at it and moved on to something else. He doesn't specifically recall what he told Attorney Jazlowiecki during their telephone conversation but recalls that he talked to Jazlowiecki for " quite a while, " and that Jazlowiecki " kept asking many questions." The chart that R.G. produced in this regard was not a " full astrological workup, " which is a more labor intensive process taking about a day or more to complete.
The court concluded the questioning over the objection of plaintiff's counsel, and in its discretion denied the plaintiff's request that he be allowed to call as witnesses the author of the affidavit, Attorney Jazlowiecki, and the plaintiff's jury consultant, Ms. Felter, in order to impeach R.G.'s testimony. The court was satisfied with R.G.'s answers and his demeanor, credits his testimony regarding his version of the events at issue, and does not agree that a wholesale inquiry regarding the juror's beliefs and motivations regarding these events was either warranted or permissible under Connecticut law. " [A]fter a jury verdict has been accepted, other . . . interests emerge that favor proceedings limited in form and scope. The [courts have] a strong interest in the finality of judgments . . . and in protecting the privacy and integrity of jury deliberations, preventing juror harassment and maintaining public confidence in the jury system." (Citations omitted; internal quotation marks omitted.) Sawicki v. New Britain General Hospital, supra, 302 Conn. 522-23. " In reviewing juror misconduct, [Connecticut courts] use an objective standard in which the focus is on the nature and quality of the misconduct, rather than the mental processes of the jurors." (Internal quotation marks omitted.) Harrison v. Hamzi, supra, 77 Conn.App. at 523. Moreover, our rules of practice provide: " Upon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined. Subject to these limitations, a juror's testimony or affidavit shall be received when it concerns any misconduct which by law permits a jury to be impeached." Practice Book § § 16-34, 42-33.
The court notes that during the post-trial motions hearing, counsel agreed that during voir dire, R.G. was questioned about his interest and beliefs regarding astrology, and stated that he would not use his astrological beliefs in deciding the case. R.G. was accepted by all parties and plaintiff did not take exception to his participation in this trial.
The Supreme Court has explained the interest in part as follows: " [L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference." McDonald v. Pless, 238 U.S. 264, 267-68, 35 S.Ct. 783, 59 L.Ed. 1300 (1915).
The plaintiff claims in the second and third grounds that in taking the complained of actions, R.G. violated the court's repeated warnings not to perform any investigations or research about the case or the parties and " not to look anything up on the Internet concerning information about the case or any of the people involved, including the parties, " by doing " Full Astrological Workups" of the case and the parties during the trial, and consequently his juror's oath to decide the case based only on the evidence presented in court.
At the beginning of the trial the jurors and alternates took an oath which, in pertinent part, was as follows: " that you will decide this case between the plaintiff and the defendant . . . based on the evidence given in court and on the laws of this state as explained by the judge . . ." General Statutes § 1-25. Prior to the start of evidence, the jurors were instructed by the court, inter alia, as follows: " You must not perform any investigations, research or experiments of any kind, either individually or as a group. Don't consult any dictionaries, encyclopedias or the internet for the meaning of words or for any general information about matters raised in or issues related to this trial. Don't review any statutes that might be referred to here in court. Don't visit any places where any activity related to this trial took place." A similar admonition was given to the jury every trial day thereafter before the mid-morning, lunchtime and mid-afternoon breaks, and before the jury was released at the end of the day.
As to the second ground, assuming arguendo that it was during the trial and before he was discharged that R.G. used the date of the accident to produce and view at home a map of the position of the planets in the sky, and if the court's admonitions are viewed broadly, R.G.'s action could be viewed as falling within the court's prohibition against performing any investigation or research or using an external source for general information about matters raised in or issues related to this trial. However, as the " general information" in question was a map of the planets, this is not a situation where a piece of evidence or fact which was not admitted at trial was learned by or communicated to a juror or jurors, such as an unauthorized visit to the scene of the accident or a conversation with a witness, " a circumstance that may give rise to a heightened risk of prejudice to the defendant." State v. Rhodes, 248 Conn. 39, 51, 726 A.2d 513 (1999), cert. denied, 262 Conn. 933, 815 A.2d 134 (2003). It is not claimed that the planetary chart contained information reflective of the facts, merits, or law of this case, or that R.G. shared or discussed the chart with any of the other jurors. To the extent that the behavior may be viewed as constituting a violation of the court's admonitions, the court views that conduct as de minimus, that is, amounting to an unfortunate but innocuous indiscretion on the part of a single juror. See Williams v. Salamone, supra, 192 Conn. 116 (juror consultation of map in order to establish the location of the accident described as an innocuous indiscretion). The court is unable to find that the behavior here, objectively considered, was of the nature or quality " to make it probable that the juror's mind was influenced by it so as to render him . . . an unfair and prejudicial juror." Connecticut Light & Power Co. v. Gilmore, supra, 289 Conn. 104.
As to the third ground, the court accepts the testimony of R.G. that he produced the charts based on the plaintiff's and the defendant's dates of birth after the verdict, and accordingly finds that although unusual and perhaps ill-advised, this behavior did not constitute juror misconduct. In addition, even if the behavior could be considered to be misconduct, the court does not find it probable that the misconduct was of such a nature to make it probable that the misconduct resulted in prejudice. Cf. Williams v. Salamone, supra, 192 Conn. 116 (juror consultation of map in order to establish the location of the accident described as an innocuous indiscretion which the court reasonably found had no prejudicial effect). Accordingly, the court denies the plaintiff's motion and sustains the defendant's objection.
III. Conclusion
For all of the foregoing reasons, the plaintiff's motions are denied and the defendant's objections are sustained.