Petition — Ford Motor Co. v. Hasson ex rel. Hasson
Supreme Court brief1983
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82-1139
Supreme Court, U.S.
FILED
No. ..-...
IN THE WAN % 1993
Supreme Court of the United..States.,,..
CLERK
October Term, 1982
FoRD Motor COMPANY, a Corporation,
Petitioner,
VS.
JAMES M. Hasson, a Minor, by and through his Guardian
ad Litem Jack M. Hasson, and JAcK M. HAsson, In-
dividually,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT
OF THE STATE OF CALIFORNIA.
McCuTCHEN, BLACK, VERLEGER
& SHEA,
HOWARD J. PRIVETT,
WINCHESTER COOLEY III,
HUGH CLINTON GARDNER III,
600 Wilshire Boulevard,
Los Angeles, Calif. 90017,
(213) 624-2400,
Attorneys for Petitioner,
Ford Motor Company.
Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622
Question Presented.
Whether, in a state which elects to provide a jury as trier
of fact, a litigant is denied due process by jurors who secretly
read a novel and work crossword puzzles over an extended
period during the taking of evidence?
TABLE OF CONTENTS
Page
CRMGTNND FUNOGIIOE 5. osetia ceacata ceveidcbeskiabnocebibsvarte i
SPIN, Sucvedsesevednsupes crsesk@hatondsebichrectihabeds l
COLT OUNOYY «ac cncuscveasndasabaadudencppdensdas¥ereosi canvas l
POI a's son ooh kcuiven thiaakunsnansooensenbnaiaythauacrnereel l
Constitutional and Statutory Provisions Involved ...... 2
POE OE TD COORG civiaiscccéccyscusthasctvvsncsvensdacten 2
FRET RORIOUING, 65 oiisnks ccvesesveeddsdveveentsbeebanies 2
The Federal Question Was Timely and Properly
Raised so as to Give the Supreme Court
PURTIONUUE vonincevepedcidnsipecs caglenentstiaisinevapate 7
Argument for Granting the Writ ..................0cceeeees 9
Due Process Requires That if a State Elects to Provide
Jury Trial in Civil Actions, It Must Be Comprised
of Jurors Who Are Willing and Able to Give Full
Consideration to the Evidence Presented by Both
ENO ce inia tenders cearasnccsae de oxcbuainiarianasrsinactads 11
Due Process Requires That the Jurors Not Be Dis-
tracted From Their Responsibilities ................. 12
No Showing of Prejudice Is Required for Reversal
Where a Due Process Violation Is Demonstrated
sashiodbios varus teed ebeiicsuadeemand senghtbanacdviicudaneanes 15
Due Process Precludes Judgments Based Upon a State
Reviewing Court’s Determination of Who, in Its
Opinion, Would Have Prevailed in a Fair Trial .. 19
A State Which Elects to Prohibit Post-Trial Eviden-
tiary Hearings Concerning Juror Misconduct Must
at Least Compensate for This by Application of a
Presumption of Prejudice Which Is Real, Not
PEN tan scho'csshands cdasukunnadbaanrantases cbevarbivaseia 24
COGN ole i ghadcdniesapvivechadovasihceieantuedbuntasentah 26
iii
INDEX TO APPENDICES
Page
Appendix A. Opinion of California Supreme Court in
Hasson v. Ford Motor Company ............ App. p. 1
Dissenting Opinion by Richardson, J. .. ............ 35
Appendix B. Order of Supreme Court of California
SRO DUDUMNETEE oases Ado abin ves Voudey base’ vecsccedevde 42
Appendix C. Order of Supreme Court of California
Denying Motion to Stay Issuance of Remittitur ..... 43
PEO 12.) GROANS phlei ieee nonsactcvesenseses 44
Appendix E. Notice of Appeal to the Supreme Court
I ANE THOUNOE wh eVecicto canton ccndsbesssvncccsaticoes 45
Appendix F. Opinion of Court of Appeal of the State
of California in Hasson v. Ford Motor Company ... 47
iv
TABLE OF AUTHORITIES
Cases Page
Chapman v. California, 386 U.S. 18, 87 S.Ct. ....
(1967), rehearing denied, 386 U.S. 987, 87 S.Ct.
PT EEUMEED suck eriven Labavabtcntagectendihoancesevars aii
Chemetron Corp. v. Business Funds, Inc., 682 F.2d
RU Ce ans PIPED chs bidbescdvadcesvcauehededssedysvees
Citron v. Aro Corporation, 377 F.2d 750 (3rd Cir.
1967), cert. denied sub nom., Aro Corporation v.
Citron, 389 U.S. 973, 88 S.Ct. 473 (1967)
Nngoab bbs ttanmlvndi cal svedanhecetsvversessbane Oy Aas 405
Commonwealth v. Brown, 211 Pa. 431, 332 A.2d 828
SUPINE ach svete suioa teks dsteaeityveestabebenestasecsya sigh
Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519
RE La ach Tia. saan benekevesestapererncésbachees
Eckstein v. Kirby, 452 F.Supp. 1235 (E.D. Ark.
SOPUUNEE Ny pace Gina ce edicantt (iodeasybacenataapnkcns eds 13, 14,
Edwards v. California, 314 U.S. 160, 62 S.Ct. 164
UU CONeA gidl OLS Ccs Peg chsh eenaeank Creseyanién es coah
Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628 (1965),
rehearing denied, 382 U.S. 875, 86 S.Ct. 18
CURED vapuncenvvsdevenssvssdvccrvocvetede £2; 13:22, 23,
Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct.
REE bea cedesivkekusnues dnshdenediteteoacasasccstduess
Gibson v. Berryhill, 411 U.S. 564; 93 S.Ct. 1689
PERE A iaad aka op lsdncnecewade uWVdle MMGKSCKIN 0's cedv oboe nese
Japanese Electronic Products Antitrust Lit., In re, 631
F.2d 1069 (3rd Cir. 1980) (‘‘Electronic
PIN TD ss ck h aaa yh-doeas bien Gs peaee bub ske viaites 5 ay pe
Krause v. Rhodes, 570 F.2d 563 (6th Cir. 1977), cert.
denied, sub nom., Rhodes v. Krause, 435 U.S. 924,
B,C CLIETED oes cvkudécwcchbcsphabbescsdcaccescdns
22
15
Page
Linhart v. Nelson, 18 Cal.3d 641, 134 Cal.Rptr. 813
CRE act Dacnsheniseeucdccckendthnusecutesobekedins iiegs 3; ae
Marshall v. Jerrico, 446 U.S. 238, 100 S.Ct. 1610
STI Crab suckancrsyscecustixesehoiaadeanencetUrasetns 16
Paramount Film Distributing Corp. v. Applebaum, 217
F.2d 101 (Sth Cir. 1954), cert. deniead sub nom.,
Applebaum v. Paramount Pictures, Inc., 349 U.S.
SOE, 1S Ns ORE CRISP vvcickciccepverexcncotsninsatin 21
Pekar v. United States, 315 F.2d 319 (Sth Cir. 1963)
5 Sngiap dieu evascsa shbavesdhesuneses te heheraiescoueariinees 17
People v. Bullwinkle, 105 Cal.App.3d 82, 164 Cal.Rptr.
DUCE CED ciiinresisccecevakechtieekentstakess ioaemah int 20
People v. Honeycutt, 20 Cal.3d 150, 141 Cal.Rptr. 698
SEMPER. ks5sckacs onadyineavadatuvns st tiacbaaehaioaneainentiah 6
People v. Martinez, 82 Cal.App.3d 1, 147 Cal. Rptr.
ETT D inde csgitnovenoventnenis tinonbentaanenenanians 20
People v. Phillips, !22 Cal.App.3d 69, 175 Cal.Rptr.
TIER LOD ED Scien pesititsinteseoesdbinnctioinsidniehoyen 20
People v. Pierce, 24 Cal.3d 199, 155 Cal.Rptr. 675
PRO IE cc cdincotaesdattibhbas cabuebiskaouelassaetokeemenranel 20
Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450
TRUER Siicashoccdyecescscanegearsboustobentey sake 24, 25, 26
Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940
RRS i caschcceiescncoschusosechensemaaal 11, 24, 25, 26, 27
Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437
GRUIRED aki cinsesyiepedeseidseaerts taeemineexetin bie 16, 26
United States v. Gay, 522 F.2d 429 (6th Cir.
PIPE aparbocacdeayiaalsjankest cockahinuseeesn teens 16, 17, 27
United States v. Harry Barfield Company, 359 F.2d 120
COR, TOE: avccicsiachantcadinccsipicecsenaesatnes 17, 18
Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct.
GR CARTED vsinn dace cunaono ccdpuioaaehiovnunhssdeyateewey vba 16
vi
Constitutions Page
California Constitution, Art. I, Sec. 16 ...............05. vy)
United States Constitution, Sixth Amendment .......... 10
United States Constitution, Seventh Amendment .. 9, 10
United States Constitution, Fourteenth Amendment,
MUTA shueisphdakcaderes ccaeehiloas 444 05 AOy Ady BOy et
Statutes
California Code of Civil Procedure, Sec. 657 .......... 25
California Code of Civil Procedure, Sec. 658 .......... 3
California Evidence Code, Sec. 1150 (Deering
ESAs caeks Vineus vhsnakewinacabaoketeharces’ as se
No. ..-...
IN THE
Supreme Court of the United States
October Term, 1982
ForD Motor COMPANY,
Petitioner,
vs.
JAMES M. HASSON, a Minor, by and through his Guardian
ad Litem JACK M. HASSON, and JACK M. HASSON,
Individually,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT
OF THE STATE OF CALIFORNIA.
INTRODUCTION.
The petitioner Ford Motor Company (‘‘Ford’’) respect-
fully prays that a writ of certiorari issue to review the judg-
ment and opinion of the Supreme Court of the State of
California rendered on September 16, 1982.
OPINION BELOW.
The opinion of the Supreme Court of California is offi-
cially reported in 32 Cal.3d 388 (September 16, 1982) and
it is printed in the Appendix hereto, infra pp.1-41.
JURISDICTION,
The judgment of the Supreme Court of California was
entered on September 16, 1982. Ford’s timely Petition for
Rehearing was filed on October 1, 1982, and denied by the
ae Pa
California Supreme Court on November 15, 1982. This
Petition for Certiorari is being filed within 90 days of that
date. This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1257(3).
CONSTITUTIONAL AND STATUTORY PROVISIONS IN-
VOLVED.
The Fourteenth Amendment (Section 1) to the Consti-
tution of the United States provides in pertinent part:
**....3 mor shall any State deprive any person of life,
liberty or property without due process of law.’’
STATEMENT OF THE CASE,
Factual Background.
This Petition questions the fundamental fairness of a de-
termination that validates verdicts rendered by jurors who
were guilty of clear misconduct in a state civil jury trial
involving a tragically injured plaintiff and a large corporate
defendant. The trial was long and involved numerous wit-
nesses, complex technical issues and a great deal of con-
flicting testimony.
Following their return of an astounding $11,500,000
award to plaintiffs, Ford learned that 5 of the 12 assigned
jurors had cared so little about their responsibilities that they
had abandoned all but the pretense of discharging them.
Concealed from the view of counsel by the jury box, they
indulged in private amusements — reading a novel and
solving crossword puzzles — for an extended period of days
or weeks while witnesses and evidence were being pre-
sented. These facts were first disclosed to the trial partici-
pants during juror interviews immediately following the
verdict.
Ford’s ability to prove the fact of this misconduct was
severely restricted. In California, there is no right to compel
paint. eae
juror testimony after trial: any showing in this regard must
be made by affidavits provided by jurors voluntarily. Cal.
Code Civ. Proc. § 658; Linhart v. Nelson, 18 Cal.3d 641,
643-45, 134 Cal.Rptr. 813 (1976). In addition, the type of
evidence which may be presented is further restricted by
Evidence Code section 1150, which provides in relevant
part:
‘*(a) Upon an inquiry as to the validity of a verdict,
any otherwise admissible evidence may be received as
to statements made, or conduct, conditions, or events
occurring, either within or without the jury room, of
such a character as is likely to have influenced the
verdict improperly. No evidence is admissible to show
the effect of such statement, conduct, condition, or
event upon a juror either in influencing him to assent
to or dissent from the verdict or concerning the mental
processes by which it was determined.’’ Cal. Evid.
Code § 1150 (Deering 1966).
Under the circumstances, Ford took the only available
step. It filed declarations provided to its counsel by three
jurors willing to bring to light the misconduct they had
objectively perceived. Of these jurors, one — Mrs. A —
had voted for plaintiffs on all issues; another — Mr. W
— had voted for the defense; the third — Mrs. G — had
been excused because of a family illness shortly before the
conclusion of trial and had not voted at all. Their declara-
tions described intentional acts of misconduct by jurors D,
L, G-1, G-2 and V.
Mrs. A declared:
**During the course of trial, over approximately a one-
month period, juror [D] was reading the book A Night
in Byzantium in the jury box while witnesses and
evidence were being presented.
*‘Jurors [L, G-1 and V] over a period of several
weeks during the trial were doing crossword puzzles
ey Sie
in the jury box while witnesses and evidence were
being presented.’’ (C.T. 3198.)*
Mrs. G declared:
*‘During the course of trial | observed that [L], in the
jury box, had opened written material or material with
figures not having to do with the trial, which she was
working on or doing something with while testimony
and evidence were being presented.
‘On many occasions during the trial | saw juror [D]
reading a book in the jury box while evidence and
witnesses were being presented.’’ (C.T. 4303.)
Mr. W declared:
*‘During the course of trial I saw jurors [L, G-2 and
V] doing crossword puzzles in the jury box while wit-
nesses and evidence were being presented.
‘I observed that juror [D] while sitting in the jury
box during court sessions was reading a book. Her
reading continued intermittently over a period of many
days.’ (C.T. 3205.)
Plaintiffs’ counsel were successful in obtaining counter
affidavits from every juror and alternate; but none denied
the occurrence of the above-described misconduct or even
denied seeing it. The forewoman of the jury, G-2, simply
ignored the charges altogether: the remaining four accused
jurors — L, D, G-1 and V — filed declarations containing
an identical formula paragraph:
“I specifically deny . . . that | was reading extraneous
material or doing crossword puzzles in any manner or
to any extent, whereby I was not able to pay close
attention to the testimony . . ."’ (C.T. 630, 640, 649,
654. Emphasis added.)
*References will be herein made to pages in the Clerk's Transcript
using the preface ‘*C.T."’
Lr me
In short, those jurors who chose to respond to the serious
charges did not deny the misconduct occurred. They simply
offered a highly dubious and, under Evidence Code § 1150,
patently inadmissible rationalization about its effect.
Ford presented its juror declarations along with numerous
other arguments in support of a Motion for New Trial.
Plaintiffs presented their juror affidavits and arguments in
opposition. As noted by the California Supreme Court, the
trial court erroneously failed to disregard the plaintiffs’ ju-
rors’ inadmissible disclaimers* and denied Ford’s Motion
except as it related to the excessiveness of the jury’s
$7,500,000 compensatory damages award which it ordered
reduced by $1,650,000. Ford appealed.
Following submission of briefs and oral arguments, a
unanimous Court of Appeal agreed with Ford’s contentions
that the above-described misconduct both occurred and was
prejudicial. As the Court noted:
‘‘A crossword-puzzle working juror attempting to as-
certain the proper word has a closed mind, or at min-
imum, an interrupted attention span. Similarly a novel-
reading juror cannot concentrate on both the flow of
the plot and the flow of the testimony. Such inattention
implies prejudgment of the case, which is misconduct.
‘Nothing admissible appears in the record herein
to rebut the presumption of prejudice which arises from
such juror misconduct. The inescapable conclusion is
that the parties did not have twelve unbiased, impartial
jurors.
‘The judgment and new trial order both must be
reversed for a new trial on all issues by an unbiased
jury.’’ Appendix, p. 51.
*Appendix, pp. 25-26.
sillliees
Plaintiffs submitted a Petition for Hearing to the California
Supreme Court.
The State Supreme Court granted plaintiffs’ Petition and,
following hearing of oral arguments, issued its opinion
which, by a 6-1 majority, reinstated the verdict of the trial
court in its entirety. On the subject of juror misconduct, the
majority opinion declares:
(a) ‘*That Ford has made a prima facie showing of im-
proper conduct by certain jurors’’ — the novel reader and
the crossword puzzle solvers. Appendix, p. 22.
(b) That the plaintiffs’ counter-declarations concerning
these matters were inadmissible ‘‘and should not have been
considered by the trial court on ruling on the motion for a
new trial.”’ /d., pp. 25-26 (footnote omitted).
(c) That: ‘‘The allegations contained in Ford’s decia-
rations therefore remain unrebutted. It must be concluded
that by failing to fulfill their duty of attentiveness, the jurors
committed misconduct.’’ /d., p. 26. And,
(d) That a civil litigant, such as Ford, is entitled to the
benefit of California’s well-established presumption that
** “prejudice arises from any juror misconduct.’ ** /d., pp.
27-28 (quoting from People v. Honeycutt, 20 Cal.3d 150,
156, 141 Cal.Rptr. 698 [1977] [emphasis added]).*
*In so holding, the California Supreme Court notes that a presumption
of — became a part of California law because the evidentiary
limitations posed by section 1150 seriously impair an aggrieved lit-
igant’s ability to prove prejudice:
“The presumption of prejudice is an evidentiary aid to those
ies who are able to establish serious misconduct of a
ikely to have had an effect on the verdict or which deprived t
complaining party of a thorough consideration of his case,
who are unab a of the evidence t
actual prejudice occurred. The law thus recognizes the substantial
barrier to of prejudice which Evidence Code section 1150
erects, it seeks to lower that barrier somewhat."’ Appendix,
pp. 27-28 (emphasis added).
er ae
Having concluded that unrebutted presumptively preju-
dicial juror misconduct occurred in this case, the majority
then makes an abrupt departure from logic and precedent
by, in the words of dissenting Justice Richardson, ‘*pur-
porting to rebut the presumption because detendant has
failed to show actual prejudice!’’ Appendix, p. 37 (em-
phasis in original). In so holding, the majority of the Cal-
ifornia Supreme Court has deprived Ford of its due process
right to a fair trial guaranteed by the Fourteenth Amendment
to the United States Constitution,
The Federal Question Was Timely and Properly Raised
so as to Give the Supreme Court Jurisdiction.
In its Motion for New Trial and in its briefs on Appeal,
Ford challenged the propriety of considering the subjective
disclaimers offered by plaintiffs’ jurors. The constitutional
issues presented by this petition arose for the first time when
the California Supreme Court published its opinion which
concedes that plaintiffs’ juror declarations should not have
been considered, Acknowledging that Ford proved the exis-
tence of presumptively prejudicial juror misconduct, the
California Supreme Court then took the unprecedented step
of holding that this misconduct, the scope and effects of
which neither the defendant nor the court could possibly
measure, was harmless. To achieve this result, the Cali-
fornia Supreme Court did not decide that Ford's evidence
was insubstantial. Instead, it assumed the role of a trier-of-
fact and decided on review of the bare record of a closely
contested trial that the liability evidence against Ford was,
in its word, ‘‘overwhelming.’’* It went on to declare, in
direct opposition to its earlier recognition of the need for
*Appendix, p. 29. As noted by the dissent, this finding expressly
fails to meet Ford's contentions as to the ‘*damages aspect of the case."’
Id., p. 38, J. Richardson dissenting.
aii
a presumption of prejudice to temper the restrictions of
Evidence Code § 1150,* that Ford must lose because it had
failed to prove actual prejudice. In so holding, the California
Supreme Court has deprived Ford of ‘‘a fair trial in a fair
tribunal’’** and has thus denied Ford its rights under the
Due Process Clause of the Fourteenth Amendment.
These points were raised with appropriate citation to fed-
eral constitutional authority in a Petition for Rehearing filed
by Ford on October |, 1982. On November 15, a majority
of the Court, Justice Richardson dissenting, summarily de-
nied Ford's petition without comment, This Petition for
Certiorari is being timely filed within 90 days of that date.
This Court's jurisdiction is invoked pursuant to 28 U.S.C,
§ 1257(3).
*See footnote at p. 6, supra.
**/rwin v, Dowd, 366 U.S. 717, 722 (1971).
ei
ARGUMENT FOR GRANTING THE WRIT,
It was plainly proved that during the trial of this case,
five of the twelve jurors for an extended period of days or
weeks secretly tuned out some or all of the proceedings in
favor of indulging in private amusements — reading a novel
and solving crossword puzzles. All five, three of whose
votes were necessary to the verdict, joined in voting in favor
of liability and returning a $7.5 million compensatory dam-
ages award which the California Supreme Court as well as
the trial court determined to be excessive. Four of them,
all of whose votes were necessary to the verdict, joined in
the bare 9-3 majority which returned a $4,000,000 punitive
damage . award,
In its opinion upholding the verdicts, the California
Supreme Court repeatedly alludes to the evidence supporting
plaintiffs’ case; but in each example the testimony upon
which the Court relies was not such that all reasonable men
would be bound to reach the same conclusion, Substantial
evidence to the contrary was presented by Ford which if
heard and understood could have resulted in a sustainable
defense verdict. No one at this stage can say what weight
an attentive jury might have given to that evidence. Ac-
cordingly, it is impossible to gauge the extent to which the
misconduct affected the jury's finding on any issue, however
critical to the outcome.
Citing both California Constitution Article I, section 16*
and the Seventh Amendment to the United States Consti-
*Article [, section 16 of the California Constitution provides, in
pertinent part:
Trial by jury is an inviolate right and shall be secured to all, but
in a civil case three-fourths of the jury may render a verdict.
“In civil causes the jury shall consist of 12 persons or a lesser
number a on by the parties in open court. . . ."’ Cal, Const.
art. I, § 16.
nO.
tution, the California Supreme Court admits that ‘‘civil lit-
igants, like criminal defendants, have a constitutionally pro-
tected right to the complete consideration of their case by
an impartial panel of jurors’’ (Appendix, p. 28.) Citing the
same provisions as: well as the Sixth Amendment, the Court
concedes:
‘*The duty to listen carefully during the presentation
of evidence at trial is among the most elementary of
a juror’s obligations. .. . Were the rule otherwise,
litigants could be deprived of the complete, thoughtful
consideration of the merits of their cases to which they
are constitutionally entitled.’’ /d., p. 21.
Yet, in the present case, the Court holds that a litigant may
be deprived of such fundamental constitutional rights when-
ever a reviewing court, having weighed the evidence in a
bare written record, feels strongly that the result below was
correct. Moreover, as noted by the dissenting justice, the
majority indicates that it is its review of the liability evidence
alone that is determinative, regardless of how strong the
losing party’s evidence may have been on the subject of
damage. Id., p. 38, Richardson, J., dissenting.
Our case involved five jurors, including the forewoman,
who deliberately chose not to do their duty. The intentional
abridgment, on this scale, of so elemental a right is totally
unprecedented in American jurisprudence. In every respect,
the California Court’s decision represents a shocking de-
parture from precedent and plainly deprives Ford of con-
Stitutional rights afforded it by the Due Process Clause of
the Fourteenth Amendment.
ital ties
Due Process Requires That if a State Elects to Provide
Jury Trial in Civil Actions, It Must Be Comprised
of Jurors Who Are Willing and Able to Give Full
Consideration to the Evidence Presented by Both
Sides.
In considering the issue of juror misconduct in the context
of a state criminal trial, this Court recently declared:
*‘Due process means a jury capable and willing to
decide the case solely on the evidence before it.
..«” Smith v. Phillips, 455 U.S. 209, 217 (1982)
(emphasis added).
In the instant matter, five jurors were demonstrably un-
willing to give their undivided attention to the evidence. It
is also clear that the activities they elected to indulge in
— reading and solving crossword puzzles — are ones which
by their very nature rendered these jurors incapable to prop-
erly receive the evidence presented.
The ability of jurors to comprehend the evidence pre-
sented in a complex trial was found to be an essential ele-
ment of due process by the Third Circuit Court of Appeals
in In re Japanese Electronic Products Antitrust Lit., 631
F.2d 1069 (3rd Cir. 1980) (hereafter ‘‘Electronic Prod-
ucts’’). Speaking for the majority, Chief Judge Seitz ob-
served:
‘*The primary value promoted by due process in fact
finding procedures is ‘to minimize the risk of erroneous
decisions.’ [Citations.] A jury that cannot understand
the evidence and the legal rules to be applied provides
no reliable safeguard against erroneous decisions. . . .
Moreover, in the context of a completely adversary
proceeding, like a civil trial, due process requires that
‘the decision-maker’s conclusion . . . rest solely on
the legal rules and evidence adduced at the hearing.’
Goldburg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011,
ots Bods
1022, 25 L.Ed.2d 287 (1970). Unless the jury can
understand the legal rules and evidence, we cannot
realistically expect that the jury wili rest its decision
on them.”’ /d. at 1084.
As Chief Judge Seitz concluded:
‘‘Our liberties are more secure when judicial deci-
sion makers proceed rationally, consistently with the
law, and on the basis of evidence produced at trial. If
the jury is unable to function in this manner, it has the
capacity of becoming itself a tool of arbitrary and er-
ratic judicial power.’’ Electronic Products, supra, 631
F.2d at 1085.
The jurors with which we deal here had no known lack
of capacity to understand. Rather they took deliberate action
to engage in other mental activities which diverted their
attention from the evidence being presented. Nowhere in
the California Supreme Court’s opinion is the suggestion
made that even the most gifted of jurors could simultane-
ously read or solve crossword puzzles and duly weigh the
evidence presented by both sides.
Due Process Requires That the Jurors Not Be Distracted
From Their Responsibilities.
In Estes v. Texas, 381 U.S. 532 (1965), rehearing denied,
382 U.S. 875 (1965), this Court decided that televising trial
proceedings, under the then novel and cumbersome state
of the art, denied the defendant his right to a fair trial
provided by the Due Process Clause. A particular concern
expressed by the Court was the presence of the TV camera
as a potential cause of juror inattention:
**{W)hile it is practically impossible to assess the effect
of television on jury attentiveness, those of us who
know juries realize the problem of jury ‘distraction.’
. . » Human nature being what it is, not only will a
juror’s eyes be fixed on the camera, but also his mind
a, on
will be preoccupied with the telecasting rather than
with the testimony.’’ /d. at 546.
In a lengthy concurring opinion, Chief Justice Warren
commented on the prejudice inherent in jurors being dis-
tracted. He concluded that the presence of television in the
courtroom could have the effect of preventing the trial
participants ‘‘from giving their full attention to their proper
functions at trial. . . . To the extent that television has such
an inevitable impact it undercuts the reliability of the trial
process.’’ /d. at 570.
In Citron v. Aro Corporation, 377 F.2d 750 (3rd Cir.
1967), cert. denied sub nom., Aro Corporation v. Citron,
389 U.S. 973 (1967), the Court found that plaintiff's due
process rights were violated by the trial court’s imposition
of several lengthy recesses during which the jurors might
have forgotten some of his evidence. The Court declared:
**The uncertainty of memory being what it is ordinar-
ily, it would be unreasonable to expect that under the
circumstances here present the jurors would contain a
completely revivable grasp of eleven days of testimony
offered by the plaintiff more than two months before
the case was finally submitted to them for consid-
eration. Absent such a grasp, the jury was in no po-
sition to adequately weigh the testimony offered by the
plaintiff against that offered by the defendant. This the
jurors were required to do if they were to arrive at a
fair and just verdict.”’ Id. at 752-53.
In Eckstein v. Kirby, 452 F.Supp. 1235 (E.D.Ark. 1978),
the District Court rejected a constitutional attack against a
Statute which excluded persons with impaired hearing from
jury service. The Court stated:
**Impairment of the senses, particularly the senses of
sight and hearing, vitiates a person’s ability to serve
effectively as a juror. Evidentiary analysis, a juror’s
Rt ba
primary function, requires an unimpeded perception,
for without the ability to perceive there is no ability
to evaluate, reconcile or judge... .°*. .. The pres-
ence of a juror with a physical impairment of such
magnitude as to interfere with the juror’s ability to hear
and understand the presented testimony and evidence
precludes a verdict by all jurors. Such a disability
would render the juror incompetent to serve and would
deny (the defendant's) right to an impartial jury and
a fair hearing.’ . . . [P]hysically qualified jurors are
essential .to any meaningful exercise of the Sixth
Amendment's jury trial guarantee and to the fulfillment
of the concept of a fair trial.’’ Id. at 1243 (emphasis
added), quoting, in part, Commonwealth v. Brown,
211 Pa. 431, 332 A.2d 828 (1974).
The analogous situations presented by the foregoing cases
and the present one are plain. However, certain distinctions
are also worthy of note.
Each of the foregoing authorities postulated willing jurors
whose ability to function as comprehending triers of fact
could possibly be affected by factors beyond their control.
No doubt was suggested as to their commitment to give the
parties a fair trial. In contrast, our case involved five jurors
who deliberately abandoned all but the pretense of adherence
to their oath in favor of voluntarily engaging in diverting
mental activities.
Moreover, one need not be a social psychologist to ob-
serve that when a significant number of jurors ignore the
proceedings in a way conspicuous to the others, they are
not just depriving themselves of information necessary to
render a fair verdict; they are doing something that im-
properly influences the remaining jurors as well. The effect
is an atmosphere subversive to an intangible but important
element in the judicial process; that is the jurors’ collective
belief that they have a serious responsibility. to discharge.
ae
When five of their number plainly demonstrate that they
deem it unnecessary to pay close attention to all of the
evidence in order to decide the case, the potential for causing
the remaining members to take their own responsibilities
less seriously is clear,
A second key distinction is also present in the cited au-
thorities. In each case, the court was confronted with cir-
cumstances involving an effect upon trial proceedings which
it could not quantify. Each dealt with circumstances that
might have rendered jurors incapable of functioning as ra-
tional decision makers. In Estes, the presence of television
cameras might have distracted the jurors. In our case, read-
ing and solving crossword puzzles unquestionably distracted
them. That, in fact, was the intended purpose of the activ-
ities. In Eckstein, Citron, and Electronic Products, there
was cause for concern that jurors might fail to hear, com-
prehend, or recall evidence. In our case, there was no room
for uncertainty. One does not need the benefit of California’s
presumption of prejudice to conclude that jurors who read
or perform puzzles rather than trying to pay close attention
to the sometimes complicated and often conflicting evidence
being introduced are not giving the parties a fair trial.
No Showing of Prejudice Is Required for Reversal Where
a Due Process Violation Is Demonstrated.
The Fourteenth Amendment provides more than simply
a mechanism by which disputes are resolved in a rational
manner: it guarantees a tribunal that functions according to
certain expected norms. As this Court declared not long
ago:
**[A proper tribunal] preserves both the appearance and
reality of fairness, ‘generating the feeling so important
to a popular government, that justice has been done,’
<a ae
**Indeed, ‘justice must satisfy the appearance of jus-
tice.’ ’’ Marshall v. Jerrico, 446 U.S. 238, 242-43
(1980).
Thus, it was the possibility of injustice, not proof of bias
or impropriety, which long ago led this Court to hold that
due process required reversal where a municipal official
presiding over the case had a minor pecuniary interest in
the outcome of proceedings before him:
‘There are doubtless mayors who would not allow
such a consideration as $12 costs in each case to affect
their judgment in it; but the requirement of due process
of law in judicial procedure is not satisfied by the
argument that men of the highest honor and the greatest
self-sacrifice could carry it on without danger of in-
justice. Every procedure which would offer a possible
temptation to the average man as a judge to forget the
burden of proof required to convict the defendant, or
which might lead him not to hold the balance nice,
clear and true between the State and accused, denies
the latter due process of law.’’ Tumey v. Ohio, 273
U.S. 510, 532 (1927).
The same concept has been applied in administrative ad-
judications in which the presiding officers have an even less
direct interest in the outcome. See, e.g., Gibson v. Berryhill,
411 U.S. 564 (1973); Ward v. Village of Monroeville, 409
U.S. 57 (1972).
In similar fashion, federal courts have held that no proof
of actual prejudice is required for reversal in both civil and
criminal cases where the effect of demonstrated irregular-
ities involving juries cannot be quantified. Thus, in United
States v. Gay, 522 F.2d 429 (6th Cir. 1975), the Court held
that reversal was mandatory where it was shown that the
trial judge had discussed with jurors their requests to be
excused, off the record and outside the presence of counsel.
iy, oe
The Sixth Circuit Court of Appeals declared that the absence
of a record of what actually transpired required it to assume
what occurred was prejudicial,
‘Even though the appellant has not been able to dem-
onstrate prejudice in the present case, the total absence
of a record of the proceedings in which the changes
in the makeup of the jury occurred requires us to as-
sume prejudice. We have the utmost confidence in the
integrity of the District Judge who presided in these
proceedings, and of the trial judges of the circuit in-
dividually and as a group. However, in a time when
our judicial system is being severely questioned, it is
as important to maintain the appearance of justice and
regularity as it is to be certain of their reality.”’ Id.
at 435 (emphasis added),
In a civil suit for a tax refund, the Fifth Circuit Court of
Appeals similarly concluded that no showing of actual prej-
udice was required for reversal. During trial, the president
of the corporate taxpayer had engaged in social conversation
with two jurors. In reversing, the Court of Appeals held:
‘*The taxpayer argues and the court concluded that
no harm was done by this activity. . . . However, if
the occurrence is such as to be so inherently unfair as
to reflect on the jury system, we think a mistrial should
be declared or . . . a new trial should be granted.
Over and above the rights of the litigants, the jury
system could not long survive abuse of the type here
made out.’ United States v. Harry Barfield Company,
359 F.2d 120, 123 (Sth Cir. 1966) (emphasis added).
The Barfield court discussed a prior criminal case, Pekar
v. United States, 315 F.2d 319 (Sth Cir. 1963), in which
a conversation between a juror and the U.S. attorney was
held reversible error.
‘It is true that no evidence was offered there to show
that the juror was not influenced but we reversed,
. . » [treating] the conduct as being prejudicial per se
and not subject to being overcome by a showing of
harmlessness."’ /d. at 124.
The Court also noted:
“In Mattox v. United States, 1892, 146 U.S. 140, 13
S.Ct. 50, 36 L.Ed. 917, the Supreme Court said:
** “It is vital * * * that the jury should pass upon the
case free from external causes tending to disturb the
exercises of deliberate and unbiased judgment. Nor can
any ground of suspicion that the administration of jus-
tice has been interfered with be tolerated.’ *’ /d.
The Court concluded:
**Pekar and Mattox are criminal cases but the integrity
of the jury system is no less to be desired in civil cases.
Our system of trial by jury presupposes that the jurors
be accorded a virtual vacuum wherein they are exposed
only to those matters which the presiding judge deems
proper for their consideration. This protection and safe-
guard must remain inviolate if trial by jury is to remain
a viable aspect of our system of jurisprudence. Any
conduct which gives rise to an appearance of evil must
be scrupulously avoided. What occurred in this case
exceeded the bounds of propriety and will not do. The
case must be reversed for a new trial.’’ /d. (emphasis
added).
The misconduct at issue in our case unquestionably
**gives rise to an appearance of evil.’’ We must respectfully
disagree with California Supreme Court's characterization
of the intentional juror misconduct in this case as ‘‘essen-
tially neutral.’ Appendix, p. 29. Whether the court is spec-
ulating that the involved jurors may have ‘‘evenhandedly”’
disregarded the evidence presented by both sides in equal
measure, or simply that they may have done their best to
render a ‘‘fair’’ verdict based on the fraction of the evidence
they paid attention to, the misconduct would only be ‘‘es-
—19—
sentially neutral’’ if it had been discovered during trial and
involved jurors replaced with alternates or mistrial declared,
In our case, however, the jurors’ efforts to conceal their
misconduct from the trial participants were successful. Thus
they were able to bring their unavoidably distorted percep-
tions to deliberations and to provide the votes necessary to
both plaintiffs’ liability verdicts and the huge compensatory
and punitive awards.
Moreover, the intentional nature of the misconduct causes
us to take issue with the California Court's observation
concerning ‘‘neutrality’’ at another level. When a juror con-
sciously and deliberately chooses to address his or her at-
tention to private amusements rather than the evidence being
presented, it is as plain as it could possibly be that this juror
is saying, by his or her conduct: ‘‘I don’t need to consider
the evidence to decide this case.’* This proper inference was
drawn by the unanimous California Court of Appeal and
quoted with approval by dissenting Justice Richardson:
‘* ‘Such inattention implies prejudgment of the case . . .
[%] . . . The inescapable conclusion is that the parties did
not have 12 unbiased, impartial jurors.’ *’ Appendix, p. 39-
40, Richardson, J., dissenting.
Due Process Precludes Judgments Based Upon a State
Reviewing Court’s Determination of Who, in Its
Opinion, Would Have Prevailed in a Fair Trial.
The California Supreme Court states that the presumption
of prejudice arising from the jury misconduct proved by
Ford may be rebutted by either the prevailing party’s affir-
mative showing that prejudice does not exist ‘‘or by a re-
viewing court’s examination of the entire record to deter-
mine whether there is a reasonable probability of actual
harm to the complaining party resulting from the miscon-
duct.’’ Appendix, pp. 28-29. In our case, the prevailing
| oe
parties chose not to attempt an affirmative showing which
would permit a reviewing court to place the misconduct in
perspective. Accordingly, the court purports to apply the
quoted alternative test. We respectfully submit that, on the
facts of this case, the court's ‘‘examination of the record"’
test denies Ford its due process right to a fair trial because
it is impossible to measure the effects of the misconduct. *
Appropriate guidance to assess the remedy to be afforded
when a federal constitutional right is infringed is to be found
in federal authority. Here, the relevant federal authority
mandates reversal on the facts of our case.
*The only three California Court of Appeal cases cited by the State
Supreme Court (Appendix, p. 29) which relied upon an ‘‘examination
of the record’’ test are clearly distinguishable. All involved: (a) juror
consideration of ‘‘evidence’’ obtained outside of court in addition to
the evidence admitted at trial and (b) a complete record, viz., one in
which the improperly received material was presented for the reviewing
court's consideration. See, in chronological order, People v. Martinez,
82 gh 1, 20-25, 147 Cal.Rptr. 208 (1978), People v. Bull-
winkle, | re 82, 91-92, 164 Cal.Rptr. 163 (1980); and
People v. Phillips, 122 Cal.App.3d 69, 81, 175 Cal. Rptr. 703 (1981).
In such situations, where all the facts are known, there is some logic
to the reviewing court applying a standard identical to that which it
would apply if the improperly obtained evidence had been erroneously
admitted at trial.
Moreover, the California Supreme Court's ‘‘examination of the re-
cord’’ test cannot be reconciled with its own recent holding in People
v. Pierce, 24 Cal.3d 199, 155 Cal.Rptr. 675 (1979). There, a juror
sought and obtained information out of court from a prosecution witness.
In denying Pierce's motion for new trial, the trial court had applied the
test whether it was ‘*. . . ‘reasonably probable that a result more fa-
vorable to the defendant would have been reached in the absence of
error.’ *' 24 Cal.3d at 206-07. In absolute language. the California
Supreme Court declared this reweighing of the evidence to be improper
where unrebutted proof of juror misconduct was concerned:
ae Jury pr on — a osarm. ny of ane and jadiee
¢ prosecution rebuts that presumption by that no prejudice
actually resulted, the defendant is entitled | to a new trial. (Cita-
tions.}"’ 24 Cal.3d at (emphasis added).
In so holding, the court expressly refused to engage in what it termed
**sheer speculation’’ that the involved juror’s vote would have been the
same in the absence of the misconduct. /d. at 208.
—_— )
In federal civil actions involving juror misconduct, courts
have applied a rebuttable presumption of prejudice test, but
couched in strong terms which place the burden of proof
upon the prevailing litigant, not the aggrieved party or the
reviewing court. Thus, in Paramount Film Distributing
Corp. v. Applebaum, 217 F.2d 101, 105-06 (Sth Cir, 1954),
cert, denied sub nom., Applebaum v. Paramount Pictures,
Inc., 349 U.S. 961 (1955), the test was framed as follows:
**The solution of this question does not require a pos-
itive finding that the jury was actually influenced by
what took place; but rather involved the determination
as to whether or not it was made reasonably certain
that they were not."’ (Emphasis added. )
And in Krause v. Rhodes, 570 F.2d 563 (6th Cir. 1977),
cert. denied, sub nom., Rhodes v. Krause, 435 U.S. 924
(1978), a civil case involving an egregious intrustion on the
jury process (threats on the life of a juror), the court ex-
pressed the test in the following terms:
**|T]he party seeking to avoid a new trial has the burden
of showing the entire absence of any influence on the
verdict or the probability that such influence existed."’
Id, at 568.
In criminal cases, the test universally applied since Chap-
man v. California, 386 U.S. 18 (1967), rehearing denied,
386 U.S. 987 (1967), has required the prosecution to es-
tablish the absence of prejudice beyond a reasonable doubt.
We have found no case involving interference with the
correct functioning of a jury in which punitive damages or
civil penalties are involved. The close parallel that this Su-
preme Court has noted between penal and punitive damages
actions* suggests that the Chapman standard should prop-
**'[P]unitive damages are wholly irrelevant to the state interest that
justifies a negligence standard for private defamation actions. They are
not compensation for injury. Instead, they are private fines levied by
civil j to punish ible conduct to deter its future oc-
currence.’’ Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974)
(Emphasis added). )
va ee
erly be applicable to a case such as ours where a punitive
award is involved.*
But whether the standard applicable to a case such as ours
is deemed to be that articulated in federal criminal cases or
federal civil cases, certain points are clear. In both types
of actions, interference with the proper functioning of the
jury creates a presumption of prejudice under which the
prevailing party must bear the burden of demonstrating, in
specific terms, the absence of an adverse influence on the
verdict. Similarly, in neither civil or criminal cases, insofar
as we have been able to determine, has a reviewing court
deemed it appropriate to assess the question of prejudice by
reference to the general quantum of evidence. Both of these
propositions hold true in those cases which, like ours, in-
volve the potential inability of the jury to properly weigh
the evidence presented at trial.
In Estes v. Texas, supra, this court recognized the im-
possibility of quantifying the effect of T.V. cameras in the
courtroom, but required no showing of actual prejudice to
hold this denied defendant due process. As the court noted:
*‘One cannot put his finger on [television's] specific mis-
chief and prove with particularity wherein he was preju-
diced.’’ 381 U.S. at 544, The court deemed it sufficient to
cite various possible impediments, including juror inatten-
tion, which the presence of television might have introduced
into the trial,
*The Fifth Circuit Court of Appeals recently applied criminal law
standards in its review of a due $8 contention involving a punitive
statute in Chemetron Corp. v. Business Funds, Inc,, 682 F.2d
1149, 1181, fn, 76 (Sth Cir, 1982), noting:
**Although [the statutes — here are civil, not criminal, in
nature, they can be labelled penal or quasi-criminal because they
address fraud and permit punitive damages for violation. In order
to err on the side of caution, we will apply criminal law standards
in our due process analysis."
ean
In his concurrence, Chief Justice Warren chose to focus
on the importance of preserving not just the appearance of
a fair trial but the elements necessary to its fairness as well:
** . . the Fourteenth Amendment is [not] to be read
formalistically, for the clear intent of the amendments
is that these specific rights be enjoyed at a constitutional
trial. In the words of Justice Holmes, even though
‘every form (be) preserved,’ the forms may amount to
no ‘more than an empty shell’ when considered in the
context or setting in which they were actually applied.”’
Id, at 560.
Agreeing that no showing of actual prejudice was required
for reversal, the Chief Justice observed:
‘The prejudice of television may be so subtle that it
escapes the ordinary methods of proof, but it would
gradually erode our fundamental conception of trial.’
Id, at 578 (footnotes omitted).
Similarly, in Citron v. Aro Corporation, supra, the court
required no proof of actual prejudice to hold that interrup-
tions in the trial proceedings might have impaired the jury's
ability to ‘‘adequately weigh the testimony . . . [as] the
jurors were required to do if they were to arrive at a fair
and just verdict.’’ 377 F.2d at 752-53. The court declared:
**The question for decision is whether the error may
be disregarded as harmless in the absence of affirmative
showing of prejudice. We think not.
ee ee a
**Since the error was one related to the substantial
rights of the plaintiff and prejudice was clearly within
the range of possibility, a demonstration of prejudice
was not required, [Citation.] It is the settled rule that
an error ‘which relates to the substantial rights of a
party is ground for reversal unless it affirmatively ap-
pears from the whole record that it was not prejudicial.’
[Citations.]’’ Jd. at 752.
ern, ee
In the present case, like Estes and Citron, no review of the
record could possibly establish that Ford was not deprived
of its right to a jury able to comprehend and weigh all of
the evidence. In our case, unlike Estes, the distraction was
neither accidental or hypothetical; it was intentional and
proved. In our case, in contrast to Citron, we are not dealing
with the possibility that evidence may not have been re-
membered but rather the certainty that evidence was not
received. Proved juror misconduct caused the evidence pre-
sented at our trial to be neither fully nor fairly considered.
As it is impossible to prove that this fact had no influence
on the verdict, due process mandates reversal.
A State Which Elects to Prohibit Post-Trial Evidentiary
Hearings Concerning Juror Misconduct Must at
Least Compensate for This by Application of a Pre-
sumption of Prejudice Which Is Real, Not Illusory.
Federal law has long held it to be a violation of due
process to declare a jury irregularity harmless in a criminal
case without affording the aggrieved litigant a right to a full
evidentiary hearing. In Remmer v. United States, 347 U.S.
227 (1954), this Court held it was improper for the trial
judge to dismiss post-trial charges of jury tampering (an
offer to bribe a juror) without a full evidentiary hearing to
determine the circumstances of the misconduct and its effect
on the juror. As this Court declared:
**The trial court should not decide and take final
action ex parte on information such as was received
in this case, but should determine the circumstances,
the impact thereof upon the juror, and whether or not
it was prejudicial, in a hearing with all interested parties
permitted to participate.’’ 347 U.S. at 229-30.
Most recently, in Smith v. Phillips, supra, 455 U.S. at
215-216, this Court noted:
ar,
‘*This court has long held that the remedy for allega-
tions of juror partiality is a hearing in which the de-
fendant has the opportunity to prove actual bias... .
*+ * * *
..*. . .» Preservation o the opportunity to prove
actual bias is a guarantee of a defendant's right to an
impartial jury.” ’’ (quoting from Dennis v. United
States, 339 U.S. 162, 171-72 [1950].)
In a separate concurrence, Justice O’Connor explained the
benefits afforded by a hearing:
**. .. A hearing permits counsel to probe the juror’s
memory, his reasons for acting as he did, and his un-
derstanding of the consequences of his actions. A hear-
ing also permits the trial judge to observe the juror’s
demeanor under cross-examination and to evaluate his
answers in light of the particular circumstances of the
case.’’ Id. at 222, O’Connor, J. concurring.
As we have noted, supra, at 2-3, California law expressly
bars the sort of post-trial evidentiary hearing described in
Smith and Remmer. Linhart v. Nelson, supra, 18 Cal.3d at
644-45. Ford had no opportunity to compel the involved
jurors to explain and disclose the scope of their misconduct
in this case. Under these circumstances, the presumption
of prejudice is the only protection against a litigant being
deprived of his federal constitutional right to full consid-
eration of his evidence in a fair trial.*
*It is noteworthy that the presence of an able and conscientious trial
judge provides scant insulation of this right in a California civil jury
case. California law provides that such judge may not grant a new trial
on evidentiary grounds: **. . . unless after weighing the evidence the
court is convinced from the entire record, including reasonable infer-
ences therefrom, that the court or jury clearly should have reached a
oe verdict or decision.*’ California Code of Civil Procedure sec-
tion 657.
oe, * ae
Thus it is, we submit, imperative to fulfillment of due
process that the presumption of prejudice be real and not
simply a ‘‘teasing illusion.’’* Where, as here, the ag-
grieved litigant has proved intentional prolonged misconduct
involving nearly half the members of the jury and there is
no evidence to permit a reviewing court to make an inde-
pendent evaluation of the effect of the misconduct on the
minds of the jurors involved, that should be the end of the
matter. Ford should be entitled to a new trial.
CONCLUSION.
Federal authority makes it clear that an essential element
of Fourteenth Amendment due process is a trier of fact
willing and able to receive and consider all of the evidence
presented by the parties. In this case, Ford has been denied
this fundamental right. Unrebutted evidence showed that
five jurors deliberately diverted their attention from the pro-
ceedings at trial in favor of playing at private amusements:
they did so secretly and, by all accounts, for an extended
period of time. As noted by Justice Richardson:
**The misconduct was not the momentary dozing of
a Single juror in an isolated incident. Rather, it involved
almost half the jury in frequent, prolonged, intentional
mental activity of a type that was diverting and that
required thought and contemplation.’’ Appendix, 39,
Richardson, J., dissenting.
Federal Law has long been sensitive to any appearance
of bias in a trier of fact (Tumey, supra), a. has declared
it to be a violation of Fourteenth Amendment due process
to declare a jury irregularity harmless without first affording
the aggrieved party a full evidentiary hearing to give him
an Opportunity to show bi |. See Remmer, supra; Smith v.
*** . . like a munificent bequest in a pauper’s will.’’ Edwards v.
California, 314 U.S. 160, 186 (1941), Jackson, J., concurring.
a
Phillips, supra. Where, as here, state law affords no op-
portunity for such hearing, due process must demand more
than a presumption of prejudice which is ephemeral in its
application.
Nothing in the California Supreme Court’s opinion sug-
gests that Ford produced less than substantial evidence to
support its case on liability and damages. Nothing in the
Court’s characterization of plaintiffs’ liability evidence as
‘‘overwhelming’’ detracts from this. It is impossible to con-
clude on the basis of a review of the record that the result
would have been the same if Ford were not denied the right
to a fair trial in a fair tribunal afforded it by the Due Process
Clause of the Fourteenth Amendment. (Cf. United States
v. Gay, supra, 522 F.2d at 435). Ford should be entitled
to no less. We respectfully urge that the Petition for Cer-
tiorari be granted.
Respectfully submitted,
McCuTCHEN, BLACK, VERLEGER
& SHEA,
HOWARD J. PRIVETT,
WINCHESTER COOLEY III,
HUGH CLINTON GARDNER III,
Attorneys for Petitioner,
Ford Motor Company.
APPENDIX A.
Opinion of California Supreme Court in
Hasson v. Ford Motor Company.
In the Supreme Court of the State of California.
James M. Hasson, a Minor, etc., et al., Plaintiffs and
Appellants, v. Ford Motor Company, Defendant and Ap-
pellant. L.A. 31527. Super Ct. No. C 989 523.
Filed: September 16, 1982.
Defendant appealed from a substantial jury verdict
awarded against it in this product liability action; plaintiffs
cross-appealed from the trial court’s reduction of the com-
pensatory portion of the award. The Court of Appeal over-
turned the judgment in its entirety and ordered a new trial
on the sole ground of juror misconduct. We granted a hear-
ing primarily to clarify (1) under what circumstances juror
inattentiveness during trial proceedings will constitute mis-
conduct requiring a new trial, and (2) what type of evidence
may be introduced to establish or rebut claims of juror
misconduct. Because the Court of Appeal resolved the juror
misconduct issue, albeit incorrectly, it did not reach defen-
dant’s remaining assertions of error. As will appear, we
conclude that none of defendant’s contentions has merit.
One evening in July 1970, James Hasson, then a 19-year-
old college freshman, borrowed his father’s 1966 Lincoln
Continental to take some visiting friends on a tour of por-
tions of the Los Angeles area. He drove his friends to the
top of Mount Olympus Drive to see the view. As the car
descended, it brakes failed. James’ efforts to slow the car
by using the emergency brake and by throwing the trans-
mission into reverse proved unavailing, and the vehicle ca-
reened down the steep, curving street, eventually crashing
into a fountain at the base of the hill. Although the four
passengers escaped serious injury, James did not. He suf-
a
fered a severely fractured skull which caused extensive brain
damage and abruptly ended his pursuit of a college education
and projected medical career. In addition, he has encoun-
tered profound psychological problems and total, permanent
physical disability.
James and his father filed suit in 1971 against Ford Motor
Company (Ford), the manufacturer of the automobile, and
against other defendants for damages sustained as a result
of the accident. The trial court submitted the case to the
jury on strict liability and negligence theories, and the jury
returned a verdict of $1,123,840 against Ford. On a prior
appeal, we reversed that judgment because the judge erred
in failing to instruct the jury on the defense of contributory
negligence, although we found the evidence sufficient to
support a verdict against Ford. (Hasson v. Ford Motor Co.
(1977) 19 Cal.3d 530.)
The case was retried in 1978 with Ford the sole defendant
and James’ negligence no longer a significant issue. Again,
the plaintiffs relied on theories of strict liability and neg-
ligence. They attempted to prove that the accident was the
result of brake failure which occurred when during operation
of the vehicle the brake fluid heated up enough to cause it
to vaporize. Although the fluid in Hasson’s Continental had
a boiling point of 555°F when installed at the factory, it had
a boiling point of 304° or less when tested after the accident.
The reduced boiling point corresponded to a vaporization
temperature of only 275°F to 280°F. The reason for the
drastic reduction in boiling point — and consequently in the
temperature at which brake failure could occur — was that
the fluid had a hygroscopic quality; that is, it tended to
absorb water vapor. As more moisture was absorbed into
the brake fluid, its boiling point became lower. Hasson’s
experts testified that Ford was aware of the danger of brake
failure due to heat-induced fluid vaporization; they ex-
a IS
pressed the opinion that Ford should have increased the
safety of the brake system by measures such as warning
dealers and owners to periodically replace used fluid with
new fluid having a higher boiling and vaporization point.
Alternatively, plaintiffs’ experts testified that Ford could
have installed a dual master cylinder at minimal cost to
prevent complete brake failure in the event of fluid vapor-
ization.
The necessity of proving this highly technical theory of
liability caused the retrial to be lengthy and complex. It
lasted nearly 3 months, required the calling of 50 witnesses,
and generated a reporter’s transcript of almost 6,000 pages.
Hasson and Ford produced experts who testified in excru-
ciating detail about the design of the brake system installed
in 1965 and 1966 Lincoln Continentals, the scientific prop-
erties of brake fluid, and measures Ford could or should
have taken to alleviate the danger of brake failure. Fur-
thermore, there was extensive proof of James’ catastrophic
injuries and his years of medical history since the accident.
The jury found Ford to be negligent and strictly liable in
tort; it awarded plaintiffs $7,570,719 in compensatory dam-
ages and $4,000,000 in punitive damages. After the ensuing
judgment, Ford moved for a new trial; it asserted numerous
grounds therefor, including several varieties of juror mis-
conduct. The court ruled that the compensatory damages
award was excessive and compelled plaintiffs to consent to
a reduction of the award to a total of $9,247,719 in order
to avoid a new trial. (See Code Civ. Proc., § 662.5, subd.
(b).) The other grounds for a new trial were rejected, and
judgment was entered for the reduced amount.
Ford mounts a detailed challenge to the sufficiency of the
evidence to support each of the findings of the jury, in-
cluding the existence of negligence or a defect in the brakes
7
on the accident vehicle, causation, and grounds for punitive
damages. Ford has skillfully attempted to persuade us that
the jury should have accepted its version of the facts.
Unfortunately, that effort is largely misdirected.
In 1977, when this court unanimously overturned the first
jury verdict against Ford, the majority opinion by Justice
Richardson summarized the accepted principles governing
appellate review of a jury's factual determinations; ‘‘We do
not reweigh the evidence on appeal, but rather determine
whether, after resolving all conflicts favorably to the pre-
vailing party [citations], and according prevailing parties
the benefit of all reasonable inferences [citation], there is
substantial evidence to support the judgment.’’ (Hasson v.
Ford Motor Co., supra, 19 Cal.3d 530, 544.) The evidence,
viewed in light of these principles, was found to be amply
sufficient ‘to support a determination that fluid vaporization
was a proximate cause of the accident.’’ (/d., at p, 545.)
After a second trial and a second unfavorable jury verdict,
Ford’s main argument for reversal is an augmented version
of the sufficiency claims we previously rejected. Ford's
prolix briefs summarize virtually all the evidence adduced
at trial and point out its strengths and weaknesses, However,
that showing is largely irrelevant to the issue on appeal:
whether the evidence in plaintiffs’ favor provides a sufficient
basis for the jury's findings. Ford's elaborate factual pre-
sentation is but an attempt to reargue on appeal those factual
issues decided adversely to it at the trial level, contrary to
established precepts of appellate review. As such, it is
doomed to fail.
The primary theory advanced by plaintiffs at trial was
that the design of the disc brake system installed on 1966
Lincoln Continental automobiles was defective because it
could potentially generate enough heat during normal op-
erations to cause the brake fluid to vaporize, resulting in
sll ae
total loss of braking capability. Ford introduced the disc
brake system on the 1965 Lincoln Continentals, the first
time that an American automobile manufacturer had offered
disc brakes as standard equipment on a domestic model,
The new braking system was considered a breakthrough
because it was believed to provide more predictable and
dependable braking than the drum brakes then in general
use. However, it had one important disadvantage: disc
brakes tend to generate tremendous amounts of heat during
use. Hydraulically operated brakes rely for their effective-
ness on the principle that brake fluid is incompressible, so
that an application of pressure to the pedal results in an
instantaneous transfer of force to all four wheels, actuating
the wheel cylinders which press the brake linings against
a revolving rotor, slowing the forward progress of the ve-
hicle. The heat produced by friction between the rotor and
the lining must be dissipated into the surrounding atmos-
phere and the other components of the brake system, In the
disc brake system, the wheel cylinders are located very close
to the point of contact between the lining and rotor, There-
fore, the fluid tends to heat up during application of the
brakes. When the fluid reaches a certain temperature, it
instantaneously vaporizes and becomes compressible, so
that the driver is able to depress the brake pedal all the way
to the floorboard without encountering uny resistance —
and without achieving any braking power.
Fluid vaporization is an insidious cause of brake failure:
its symptoms disappear and full pedal returns as soon as the
fluid cools down by a few degrees. Thus, an inspection
conducted shortly after total brake failure might disclose no
indication that fluid boil had occurred,
Shortly after releasing its 1965 Lincoln Continentals,
Ford began to receive numerous complaints of brake loss
attributable to fluid boil. As a result, all the 1965 models
stilt
were recalled in an attempt to alleviate the problem. The
main modifications were the installation of a dust shield
designed to increase the flow of air across the brakes and
the replacement of the brake fluid with one having a much
higher ‘‘dry’’ boiling point. The ‘‘dry’’ boiling point is the
temperature at which newly installed fluid will come to a
boil. During use, brake fluid tends to absorb moisture, low-
ering its boiling point considerably, For purposes of brake
failure, the significant factor is the fluid’s vaporization
point, which is somewhat lower than its boiling point, The
fluid originally installed on the 1965 Lincoln Continentals
had a dry boiling point of 375°F; the replacement fluid had
a dry boiling point of 550°F, Unfortunately, the 550°F fluid
tended to absorb water vapor at a higher rate; after a few
years of use, its actual boiling point was no higher than that
of used 375°F fluid.
Ford argues that the jury could not reasonably have found
that the disc brake system on the accident vehicle was de-
fective, but the evidence is to the contrary, It was established
that the vaporization temperature of the 550°F fluid lowered
dangerously in use, The evidence further indicated two pos-
sible ways Ford could have alleviated the danger of brake
loss; (1) by warning dealers and users that the brake fluid
should be periodically replaced with fresh fluid having a
higher boiling and vaporization point; and (2) by installing
as factory equipment a dual master cylinder or by recalling
the cars and retrofitting them with the dual master cylinder,
Periodic replacement of the brake fluid would have sub-
stantially reduced the danger of fluid vaporization, The dual
master cylinder would have essentially created two separate
braking systems, one for the front wheels and one for the
rear wheels. In the event that fluid vaporization did occur,
the dual master cylinder would enable the alternate system
to continue functioning, thus preventing total failure. Ford
is,
installed dual master cylinders on its 1967 Lincoln Conti-
nentals, indicating that the system was available well before
the accident in question occurred.
As an alternative to finding the system to be defective
the jury could have found that Ford was negligent: Ford
was aware of the danger of brake failure posed by the disc
brake system, yet did not take adequate measures to elim-
inate the danger.
With respect to the issue of causation, Ford claims the
evidence conclusively established that fluid boil could not
occur in normal usage. Thus, it reasons, either the brake
failure on the accident vehicle had a different cause; or
James Hasson abused the brakes by ‘‘dragging’’ them, i.e.,
driving with his right foot on the accelerator and his left
foot resting on the brake pedal.' However, James testified
unequivocally that he was not dragging his brakes on the
date of the accident. Further, there is ample evidence con-
sistent with the theory that fluid boil caused the accident,
even though the car was being operated in a normal manner.
Justice Richardson's analysis of this issue after the first trial
remains accurate; ‘“The record included evidence that air
temperatures were warm on the day of the accident, which
would tend to diminish the cooling effect of ventilation of
the brakes. The driving pattern was stop-and-go over hilly
terrain, meaning frequent application of the brakes, plus the
additional buildup, or soakup of heat which occurs when
already warm brakes are allowed to stand momentarily with-
'Ford separately raises the related contention that the jury's verdict
that James Hasson was not negligent is inconsistent with their probable
conclusion that fluid boil caused the accident. Ford argues that the fluid
boil could not have occurred if Hasson had not been dragging his brakes
prior to the accident, As we explain, the jury could rationally have
concluded on the basis of the ev a ee
occurred during normal operating tions
out ventilation. Plaintiffs’ experts pointed to characteristics
of disc brakes in general, as well as specific features of the
1966 Lincoln’s brake system design in particular, which
they believed would contribute to the buildup of heat under
such conditions. Moreover, the symptoms described by the
passengers and other witnesses — the apparent sudden,
complete loss of pedal pressure (supported by the absence
of skid marks) and return of pedal within 45 minutes after
the accident (confirmed by investigating officers) — were
entirely consistent with plaintiffs’ theory of the accident.
**Ford elected not to dispute much of this evidence, sug-
gesting rather, that the entirety of the evidence, including
the results of its own tests, was more consistent with the
probability of driver error as the sole cause of the accident.
**The jury, of course, was not compelled to accept Ford’s
view simply because more than one inference could rea-
sonably be drawn from the record. So long as the foundation
for the opinions of plaintiffs’ experts was sufficient, as we
think it was, the jury was entitled to consider those opinions
in forming its own conclusions. It was the function of the
trier of fact to weigh all the evidence and to draw any
reasonable inferences it found warranted.
**We think the inferences here drawn were reasonable.
That the evidence might also have supported Ford's version
of the accident is irrelevant on appeal. We therefore hold
that there was sufficient evidence to support a determination
that fluid vaporization was a proximate cause of the acci-
dent.’’ (Hassan v. Ford Motor Company, supra, 19 Cal.3d
at p. 545.)
Ford additionally claims that the evidence at trial was not
sufficient to support the jury’s punitive damages award.
Once again, Ford draws our attention to evidence it deems
ye
favorable to its position and asks that we upset the verdict
because of the strength of such evidence. As we have pre-
viously stated, Ford has a ditficult hurdle to overcome: It
must convince us of the absence of substantial evidence on
which the jury could have based its verdict; a mere conflict
of evidence will not suffice. (E.g., Crawford v. Southern
Pacific Co. (1935) 3 Cal.2d 427, 429.)
Punitive damages are appropriate if ‘‘the defendant has
been guilty of oppression, fraud, or malice. . . .’’ (Civ.
Code, § 3294.)’ **[A] conscious disregard of the safety of
others may constitute malice within the meaning of section
3294 of the Civil Code. In order to justify an award of
punitive damages on this basis, the plaintiff must establish
that the defendant was aware of the probable dangerous
consequences of his conduct, and that he wilfully and
deliberately failed to avoid those consequences.’’ (Taylor
v. Superior Court (1979) 24 Cal.3d 890, 895-896.)
Mindful of the limited scope of appellate review, we now
examine plaintiff's evidence to determine its sufficiency.
Plaintiffs’ showing emphasized heavily the testimony of
Harley Copp, a former Ford employee for 30 years who
held numerous high level engineering and management po-
sitions. Copp testified, inter alia, that although Ford knew
of the fluid boil problem with its Continentals from dealer
and customer complaints, it deliberately failed to warn deal-
"In an appendix to its opening brief, Ford offers a number of theories
for holding section 3294 unconstitutional. It is not necessary to devote
extensive pores ey lh to the question, the courts have frequently and
proorengy Hggr my that provision s validity. (E. o Egan v. Mutual of
Co. (1979) 24 Cal.3d 809, 819; Bertero v. Nat'l Gen.
Corp. (1974) 13 Cal.3d 43, 66, fn. 13; Zhadan v. Downtown L.A.
Motors (1976) 66 Cal.App.3d 481, 489; Merlo v. Standard Life and
Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 19-20; Wetherbee v. United
Ins. Co. (1971) 18 Cal. App.3d 262, 266; Fletcher v. Western Nat’! Ins.
Co. (1970) 10 Cal.App.3d 376, 404; Toole v. Richardson-Merrell Inc.
(1967) 251 Cal.App.2d 689, 716-717.)
"ee
ers or owners of available remedial steps because it was
protecting the Continental’s reputation among consumers.
He further testified that Ford deliberately failed to run ad-
equate tests to accurately define the nature of the brake loss
problem and deliberately failed to install a dual master
cylinder on the 1966 Continental as original equipment or
on recall.
At one point, plaintiffs’ counsel directed the following
question to Copp: ‘*Was there anything in the owner’s man-
ual to indicate that . . . if there was any kind of a fluid boil,
that there would be no brakes at all?’’ Copp responded:
**No. The tags . . . on the steering wheel, and in the owner’s
manual . . . [don’t] say anything about a potential brake
failure.”’
When asked: ‘‘In your opinion was there a conscious
disregard of safety on the part of Ford with respect to not
putting a dual master cylinder on the 1966 Lincoln Conti-
nental?’’ He answered: ‘*Yes.”’
Dr. John Albert Fellows, a scientist and consultant, tes-
tified that Ford management had ‘‘adopted a policy of ad-
vertising that the Lincoln was free [from] the need of service
for at least a good portion of its components . . . and that
they were opposed to abandoning that policy in public
recognition.”
Despite this evidence, Ford now asks us to set aside the
jury verdict because of asserted inconsistencies and conflicts
in testimony favorable to plaintiffs. The jury, however, was
responsible for judging the credibility of the witnesses; it
would be wholly improper for us to usurp that function by
reweighing the evidence. We hold that substantial evidence
supports the award of damages.
Ford argues that the trial court erred in admitting evidence
of prerecall brake failures in 1965 models. This contention
is easily resolved. At trial, Ford contended that the 1966
brake system was substantially different because of design
modification instituted pursuant to the recall campaign and
maintained on 1966 models: The 1966 system's fluid had
a higher dry boiling point; Ford also installed a vented dust
Shield an¢ changed the brake lining. Plaintiffs countered
with expert testimony suggesting that the changes were in-
significant and, in the case of the vented dust shield, com-
pletely ineffective. The trial court plainly had a reasonable
basis for admitting evidence of the numerous failures oc-
curring in 1965 models for the purpose of showing the nearly
identical 1966 models to be similarly defective. Plaintiffs
were not required to prove that the 1965 system was exactly
the same as the 1966 system. ‘‘Identical conditions will
rarely be found. Substantial similarity is normally suffi-
cient.’’ (Jensen v. Southern Pacific Co. (1954) 129
Cal.App.2d 67, 74.) This determination ‘‘is primarily the
function of the trial judge.’’ (/bid.)
The trial court also admitted into evidence letters sent to
Ford and testimony describing incidents of brake failure in
1965 and 1966 Lincoln Continentals. One letter informed
Ford that a certain private toll road had been closed to
Lincoln Continentals as a result of reports of brake failures
occurring with Lincolns using the road. A second letter
complained of a brake failure — impliedly due to fluid boil
— occurring in a postrecall 1965 Lincoln Continental. Two
Continental owners related instances of brake failure. The
evidence was offered as proof that Ford had notice that the
fluid boil problem persisted after the brake system was
modified by the addition of different brake fluid and the
vented dust shield. Ford argues that the trial judge abused
—)2—
his discretion by admitting the evidence because the cir-
cumstances surrounding the reported brake failures were not
similar enough to those surrounding the failure which caused
Hasson’s accident (See Ault v. International Harvester Co.
(1974) 13 Cal.3d 113, 121-122; Kopfinger v. Grand Central
Pub. Market (1964) 60 Cal.2d 852, 861.)
When evidence is offered to show only that defendant
had notice of a dangerous condition, the requirement of
similarity of circumstances is relaxed: ** ‘all that is required
. . « is that the previous injury should be such as to attract
the defendant's attention to the dangerous situation. . . .’ *’
(Laird v. T.W. Mather Inc. (1958) 51 Cal.2d 210, 220.)
It does not appear that the evidence was improperly ad-
mitted; there were sufficient facts from which the jury could
have justifiably inferred that these postrecall failures were
the result of fluid boil. All of the incidents were character-
ized by the sudden loss of all pedal and brake function after
a period of continuous hard use. In several of the incidents,
the evidence showed that full pedal returned within a brief
period after total failure, a clear symptom of fluid boil.
Although the trial judge might justifiably have excluded
some of the evidence on the ground that its potential for
prejudice outweighed its probative value (see Evid. Code,
§ 352), he did not abuse his discretion by admitting it.
Ford raises several assertions of error concerning the trial
court’s rulings on requested jury instructions.
Plaintiffs’ theory at trial was that the accident occurred
because of a defectively designed brake system which al-
lowed the brake fluid to overheat and vaporize, resulting
in a complete loss of braking power. Ford, in contrast,
theorized that the accident was caused by a booster hose
that was improperly installed by a mechanic when the car
ox {3
was serviced, so that it later became disconnected and
caused brake loss. Ford requested and was denied an in-
struction that the disconnected booster hose was a supersed-
ing cause of the accident. (See generally Phillips v. G.L.
Truman Excavation Co. (1961) 55 Cal.2d 801, 806.)
In Self v. General Motors Corp. (1974) 42 Cal.App.3d
1, cited by Ford, the Court of Appeal reversed a verdict for
plaintiff because the trial judge incorrectly denied defen-
dant’s request for an instruction on superseding causation.
In Self, plaintiff's car burst into flames after being hit from
behind. Plaintiff argued that the fire resulted from a design
defect, the unsafe location of the fuel tank. General Motors,
however, contended that the impact of the collision was so
great that even a properly located fuel tank would have
caught fire. The Court of Appeal held that it was error not
to instruct the jury that the harm caused by the defective
tank placement could have been superseded by the sheer
force of the impact. Se/f is factually distinguishable: Here,
a disconnected booster hose would not have caused a com-
plete brake loss; plaintiff would have only lost the ‘‘power
assist’’ braking capability. He would not have experienced
the total brake failure to which he testified: ‘*|T|here was
no resistance whatsoever and the brake pedal went straight
to the floor. . . .’" Therefore, the hose problem could not
have been a superseding cause; it was at most a concurrent
cause of the accident, and the jury was instructed on the
theory of concurrent causation. The trial court acted
correctly in refusing the proffered instruction.
Ford maintains that the trial court erred by giving plain-
tiff's nondelegable duty instruction: **The manufacturer of
a completed product cannot delegate to anyone its duty to
have its product delivered to the ultimate user free from
dangerous defects.’’ Ford maintains that the instruction
misstates the holding of the case from which it derives. That
ates,
opinion used the phrase ‘‘ultimate purchaser’’ rather than
“‘ultimate user.’’ (Vandermark v. Ford Motor Company
(1964) 61 Cal.2d 256, 261.) Ford also claims the instruction
was ‘‘thoroughly misleading’’ (see Henderson v. Harnisch-
feger Corp. (1974) 12 Cal.3d 663, 670) because it suggests
that Ford would be liable for defective maintenance.
Although the instruction is not a verbatim quotation from
Vandermark, it is an accurate statement of the law. In Van-
dermark, we noted that ‘‘ ‘[A] manufacturer is strictly
liable in tort when an article he places on the market. . .
proves to have a defect that causes injury to a human
being.’ '’ (Vandermark, supra, 61 Cal.2d at p. 261, quoting
Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d
57, 62.) This duty runs to al/ who are injured by a defective
product, not just ultimate purchasers. (Elmore v. American
Motors Corp. (1969) 70 Cal.2d 578, 586.) Moreover, the
jury was explicitly instructed that Ford was liable only for
manufacturing defects that existed when the car left Ford's
possession.
Ford also contends that the trial court incorrectly in-
structed the jury on the existence of a manufacturing defect
because no substantial evidence had been advanced to sup-
port the instruction. The only possible manufacturing defect
in the particular Lincoln Continental owned by Hasson
would have been a defectively installed booster hose. Ford
argued at trial that if the hose was improperly connected,
faulty maintenance at the dealership was responsible, not
incorrect factory installation. Ford's theory was based on
the testimony of the car’s former owner that he ‘had all
new hoses replaced under the hood.’’ Further, a Ford em-
ployee testified that the marks on the booster hose removed
from the accident vehicle indicated that it was a replacement
hose, not an item of original equipment. On the other hand,
there was evidence that the brake booster hose in question
atten.
was designed to last for the life of the car so that it would
not normally be replaced routinely. Therefore, it might rea-
sonably be inferred that, despite the employee's testimony,
the booster hose had not been replaced. Alternatively, the
evidence supported the inference that if replacement had
occurred, it was necessitated by defective factory installa-
tion of the original hose. Although the evidence of a man-
ufacturing defect was not strong, the jury might reasonably
have believed plaintiff's version of the facts.
Ford insists that it was prejudicial error for the court to
have instructed the jury that the standards of the Society of
Automotive Engineers (SAE) were only *‘minimal.’* A sub-
stantial amount of evidence was introduced at trial about
government and industry standards for automotive products.
The jury was instructed that ‘‘[s]tandards concerning com-
ponent parts of braking systems of automobiles promulgated
by the [SAE] are only minimal in nature and do not establish
the standard of care for a reasonable manufacturing company
under the circumstances of this case.”’ Ford asserts that it
was prejudicial error for the judge to characterize the stan-
dards as minimal without any probative facts in evidence
on this subject. Ford insists that the jury was invited to
erroneously conclude that the SAE did not observe very
high standards and, therefore, neither did Ford. But Ford
misunderstands the instruction. Objectively viewed, the in-
struction means only that compliance with industry stan-
dards does not always insulate a manufacturer from negli-
gence liability. ‘‘[W]hen the manufacturer or supplier
knows of, or has reason to know of, greater dangers |despite
compliance with regulations] its duty . . . may not be ful-
filled.’’ (Stevens v. Parke Davis & Co. (1973) 9 Cal.3d 51,
65.)
Ford requested an instruction that custom in the industry
**is relevant and ought to be considered, but is not neces-
eS ee
sarily controlling on the question whether or not [the de-
fendant] exercised ordinary care. . . ."’ Ford maintains that
the trial court erred in refusing the requested instruction.
However, Ford was unable to show that any custom or
practice had developed regarding industry design, manu-
facture, or maintenance of disc brake systems. This was
largely because the disc brake system was new; Ford was
the first American car manufacturer to introduce it as stan-
dard equipment. The system was introduced in 1965, one
year before plaintiff's car was manufactured. Other Amer-
ican car manufacturers marketed disc brakes in 1965, but
only as optional equipment. Ford’s reliance on the custom
and practice of other manufacturers regarding drum brakes
is inapposite because the two systems are fundamentally
different. The judge correctly refused to give the instruction.
IV.
Ford asserts that reversal is necessary because of a number
of instances of juror misconduct.
We may easily dispose of the contention that a retrial is
necessary because two jurors concealed bias against Ford
when questioned on voir dire. Ford points out that no juror
responded when counsel for Ford floated this question to
an assembled group of potential jurors: ‘*I believe Mr. Har-
ney [counsel for plaintiffs] asked you if you had been in-
volved in litigation arising out of automobile accidents. Are
there any of you who have been involved in lawsuits for
any other reason?’’ One of the jurors present when that
question was propounded had been a defendant in several
lawsuits brought by large corporate creditors. Another juror
remained silent when he was among a group of potential
jurors who were asked whether any of them had“*‘dealt with
brain injuries’’; the juror did not volunteer the fact that his
son had died as a result of brain damage sustained in an
a | a
automobile accident. Not surprisingly, Ford cites no au-
thorities to support its claim that these facts establish mis-
conduct. It is difficult to see how either of these incidents
involving failure to affirmatively respond to such general-
ized inquiries asked of a group of jurors can be thought to
amount to concealment of bias. (Cf. Weathers v. Kaiser
Foundation Hospitals (1971) 5 Cal.3d 98, 110.) Moreover,
Ford presented no evidence of actual bias other than the
jurors’ silence on voir dire; and the trial court, in denying
a new trial on this ground, impliedly determined that there
was insufficient proof of concealed bias.’ We see no reason
to disturb that finding.
Similarly unpersuasive are Ford’s claims of misconduct
due to one juror’s nighttime legal studies during trial and
the alleged reading of prejudicial newspaper articles. During
the final three weeks of trial, one juror attended night classes
in paralegal studies. The subject of one class was the law
of products liability. Ford interviewed the lecturer and ob-
tained a declaration stating that he discussed a case in which
a jury awarded a large amount of damages to an individual
badly injured when the gas tank on his Ford Pinto exploded
in flames after a collision. Ford was subjected to punitive
damages because, in order to save money, it had consciously
decided to abstain from modifying the Pinto in the manner
necessary to make it more safe. Plaintiffs’ counsel obtained
counterdeclarations from the lecturer and the juror in ques-
tion pointing out that the class was designed for beginners
and did not cover in detail the subject of products liability.*
*When it ruled on Ford's motion for a new trial, the trial court stated:
**The court finds that there was [sic] no impropricties on the part of the
aere, individually, which would warrant the granting of such a mo-
“Of course we cannot consider that portion of the juror’s counteraf-
fidavit disclaming misconduct because she ‘‘did not understand"’ an
references the instructor might have made to Ford. (Evid. Code, § 1150,
subd. (a); People v. Stokes (1894) 103 Cal. 193, 197-198.)
Ford argues that the juror’s paralegal studies amounted
to the improper reception of evidence concerning the subject
of the trial (see, e.g., Smith v. Covell (1980) 100 Cal. App.3d
947, 952-953), implying that the juror purposely sought out
extrajudicial opinion concerning the issues at trial. We re-
view the record differently: The juror’s decision to undertake
paralegal studies during trial appears to have been wholely
coincidental. If she intended to solicit improper evidence,
she certainly undertook a circuitous route toward that ob-
jective. The lecturer’s declaration, viewed objectively, in-
dicates merely that a juror inadvertantly attended a single
class where the subject of an arguably related piece of lit-
igation was mentioned in passing. The juror’s actions were
not misconduct.
Ford also charges that some of the jurors were exposed
to prejudicial newspaper articles which discussed litigation
concerning Ford Pinto automobiles. One juror declared that
an alternate juror brought in an article about a Pinto accident
in which three teenage girls were killed; she further stated
that some jurors *‘read and discussed” the article. The juror
also declared: *‘On another occasion during the trial, I ob-
served that some jurors were reading a newspaper article
brought into the jury room by Alternate Juror Rash. They
were reading and discussing an article on the lawsuits and
accidents concerning the Pinto automobile. During this dis-
cussion, Mrs. Davis said that there must be something to
Hasson’s case if Ford is paying for all these Pinto acci-
dents.’’ A second affidavit stated: ‘*During the middle part
of the trial, | saw some jurors in the jury rcom reading and
discussing an article in a newspaper concerning the problems
with the Pinto gas tank."’ The second article discussed a
case in which a child orphaned in a Pinto crash received a
settlement for $600,000.
—19—
Plaintiffs’ counsel solicited contrary declarations.
Alternate Juror Rash, the one said to have provided the in-
flammatory articles, stated that ‘‘I did not present to any
juror in the Hasson case any newspaper article concerning
the Ford Pinto automobile, nor did I engage in any discus-
sions or conversations concerning the Ford Pinto automo-
bile.’’ He also denied discussing any other lawsuits or ver-
dicts against Ford. Eleven jurors, including juror Davis,
declared that ‘‘I did not see Alternate Juror Rash present
or allude to any newspaper article concerning the Ford Pinto
automobiles, nor did I hear any discussion concerning the
Ford Pinto automobile.’’ Juror Davis specifically denied
making the statement that ‘‘there must be something to
Hasson’s case... .”’
It does not appear that Ford met its burden of establishing
misconduct due to the improper reception of evidence. Al-
though the two affidavits it presented constitute a prima
facie showing of misconduct, they are directly rebutted in
all important respects by a number of counterdeclarations.
The trial court correctly declined to settle this ‘‘battle of the
juror declarations’’ in Ford’s favor by granting a new trial.
In support of its claim of juror misconduct due to inat-
tentiveness at trial, Ford presented three juror declarations
stating that one fellow juror was observed reading a novel
entitled ‘‘A Night in Byzantium’’ during trial proceedings.
Two of the declarations said that this activity took place
‘while witnesses and evidence were being presented.’'* The
declarations did not specify which side was presenting ev
idence during the novel-reading, nor did they cite specific
“Accordingly, there is no Seantetien for song sl pe specttetion that
the * purported distraction may have uring lapses in
the trial court proceedings, e.g. fp A rede sg amrgthrn Jp gar te
ee ee eee
ury
2D aie
dates; they stated variously that the juror read the novel
‘over approximately a one-month period,”’ *‘[o]n many
occasions,’’ and ‘‘intermittently over a period of many
days.’’ Two of the declarations further noted that certain
jurors had worked crossword puzzles at unspecified dates
and for unspecified periods of time ‘‘while evidence and
testirnony were being presented."’ Four of the identified
jurors, however, signed counterdeclarations containing this
statement: ‘‘I specifically deny that I did not pay attention
to the testimony of witnesses and evidence being presented
during the trial or that I was reading extraneous material or
doing crossword puzzles in any manner or to any extent,
whereby I was not able to pay close attention to the testi-
mony of each and every witness and the presentation of all
evidence in open court. | specifically state that I did pay
attention to all testimony and evidence presented during the
trial herein.’’ The counterdeclaration of a fifth accused juror
did not contain the above disclaimer. None of the counter-
declarations denied engaging in the alleged activities during
trial; they sought to show only that no activities had diverted
their attention from the trial proceedings.
Ford contends that the jurors’ activities during trial con-
stitute serious misconduct requiring reversal of the judgment
below.° We agree with the basic premise that a jury's failure
“It is curious that not one of the many participants in the trial other
than the jurors themselves — i.c., the judge, attorneys, bailiff, shorthand
epee — noticed the jurors’ distracting activities at any time during
al, Had the trial judge been informed of the misconduct at the time
it had occurred, he would have had the opportunity to take corrective
measures. Nevertheless, cach of Ford's four attorneys filed affidavits
disclaiming knowledge of the misconduct prior to the rendering of the
verdict. (See Weathers v. Kaiser Foundation Hospitals, supra, 5 Cal.3d
98, 103.) They Faye Pag ny cman ortega misconduct to
the elevated position of the jury box and the fact that the jurors
took notes during the course of the trial so that their downcast eye
arm movements aroused no suspicion. It does not appear that
waived inattentiveness of the jurors as a ground for a new trial. (/bid.)
nsilitiinien
to pay attention to the evidence presented at trial is a form
of misconduct which will justify the granting of a new trial
if shown to be prejudicial to the losing party. (See Code
Civ. Proc., § 657, subd. 2.) The duty to listen carefully
during the presentation of evidence at trial is among the
most elementary of a juror’s obligations. Each juror should
attempt to follow the trial proceedings and to evaluate the
strengths and weaknesses of the evidence and arguments
adduced by each side so that the jury's ultimate determi-
nations of the factual issues presented to it may be based
on the strongest foundation possible. Were the rule other-
wise, litigants could be deprived of the complete, thoughtful
consideration of the merits of their cases to which they are
constitutionally entitled. (U.S. Const., 6th & 7th Amends.;
Cal. Const, Art. I, § 16.)
Although implicitly recognizing that juror inattentiveness
may constitute misconduct, courts have exhibited an un-
derstandable reluctance to overturn jury verdicts on the
ground of inattentiveness during trial. In fact, not a single
case has been brought to our attention which granted a new
trial on that ground. Many of the reported cases involve
contradicted allegations that one or more jurors slept through
part of a trial. Perhaps recognizing the soporific effect of
many trials when viewed from a layman's perspective, these
cases uniformly decline to order a new trial in the absence
of convincing proof that the jurors were actually asleep
during material portions of the trial. (People v. Lee Yick
(1922) 189 Cal. 599, 609-610; People v. Ung Sing (1915)
171 Cal. 83, 88-89; Callegari v. Maurer (1935) 4 Cal. App.2d
178, 184; People v. Roselle (1912) 20 Cal.App. 420, 423-
424; State v. Cuevas (lowa 1979) 281 N.W.2d 627, 632;
State v. Pace (Utah 1974) 527 P.2d 658, 659; Maxwell v.
State (Ala.App. 1946) 27 So.2d 804, 806; Powell v. Louis-
ville & N.R. Co. (Ky.App. 1916) 189 S.W. 213, 214-215;
a
Continental Casualty Co. v. Semple (Ky.App. 1908) 112
S.W. 1122, 1123).
A number of decisions have considered claims of juror
intoxication when presented with evidence that jurors
imbibed alocholic beverages prior to hearing evidence or
engaging in deliberations. The decisions have generally
rejected claims of misconduct if satisfied that the con-
sumption of liquor was not likely to have affected the in-
dulgent jurors’ capacity to competently perform their duties.
(E.g., People v. Leary (1895) 105 Cal. 486, 491-496; Peo-
ple v. Deegan (1881) 88 Cal. 602, 604-607; People v.
Manson (1976) 61 Cal.App.3d 102, 215; but cf. People v.
Lee Chuck (1889) 78 Cal. 317, 330-339.)
A few other cases have rejected allegations of misconduct
based upon the apparently inattentive demeanor of jurors
during trial proceedings. In State v. Williams (Mo.App.
1978) 577 S.W.2d 59, 62, a juror was observed reading a
newspaper during the giving of testimony. The trial judge
had the paper taken away. The appellate court upheld the
judge's decision not to declare a mistrial, noting that the
complaining party had shown no demonstrable prejudice.
In Ferman v. Estwing Manufacturing Company (IIl.App.
1975) 334 N.E.2d 171, 174-175, the appellate court over-
turned an order granting a new trial because a juror had
appeared bored and inattentive during the trial. The court
held that the party seeking a new trial must affirmatively
establish prejudice resulting from juror inattention. Finally,
in Wofford v. State (Okla.Crim.App. 1972) 494 P.2d 672,
674-675, the court found no error in the trial judge's refusal
to dismiss a juror who yawned and cleaned his fingernails
during the giving of instructions.
Turning to the facts of the present case, it appears that
Ford has made a prima facie showing of improper conduct
by certain jurors. No evidence contradicted the declarations
a ea
to the effect that some jurors engaged in distracting activities
during the presentation of evidence at trial. It may reason-
ably be argued that the participating jurors did not at all
times devote their full attention to the proceedings before
them.
Plaintiffs rely on the counterdeclarations to rebut the in-
ference that some jurors were inattentive during the trial.
Those counterdeclarations in essence deny that the jurors’
diverting activities prevented them from carefully listening
to all the evidence put before them. Ford persuasively re-
sponds that Evidence Code section 1150, subdivision (a),
renders the counterdeclarations inadmissible. That section
provides: ‘‘Upon any inquiry as to the validity of a verdict,
any otherwise admissible evidence may be received as to
statements made, or conduct, conditions, or events occur-
ring, either within or without the jury room, of such a
character as is likely to have influenced the verdict im-
properly. No evidence is admissible to show the effect of
such statement, condition, or event upon a juror either in
influencing him to assent to or dissent from the verdict or
concerning the mental processes by which it was deter-
mined.”’
The primary authority interpreting this section is People
v. Hutchinson (1969) 71 Cal.2d 342, in which we declared
the rule as follows: ‘*[Section 1150, subdivision (a), draws
a] distinction between proof of over acts, objectively as-
certainable, and proof of the subjective reasoning process
of the individual juror, which can be neither corroborated
nor disproved. . . ."’ We noted that section 1150 limits
impeachment evidence to ‘‘proof of overt conduct, condi-
tions, events, and statements. . . . This limitation prevents
one juror from upsetting a verdict of the whole jury by
impugning his own or his fellow jurors’ mental processes
or reasons for assent or dissent. The only improper influ-
illic
ences that may be proved under section | . 50 to impeach
a verdict, therefore, are those open to sight, hearing, and
the other senses and thus subject to corroboration.”’ (/d.,
at pp. 349-350.)
Ford points out that the counterdeclarations relate to the
subjective mental processes of the jurors: i.e., whether they
were in fact able to pay full attention to the matters before
them. Plaintiffs take the position that the counterdeclarations
should be admissible to disprove the fact of misconduct.
Each of these contentions has some logical support. On the
one hand, the counterdeclarations plainly are an attempt to
directly prove the subjective state of mind of individual
jurors; therefore, they appear to run afoul of the rule of
Hutchinson. On the other hand, the counterdeclarations do
not relate to the deliberative mental processes of the jurors,
but only to the issue whether the jurors physically paid
attention to the evidence presented at trial.
In one previous case, we considered direct, subjective
proof of the state of mind of a juror in rejecting allegations
of misconduct due to sleepiness. In People v. Ung Sing,
supra, 171 Cal. 83, 88-89, the defendant sought a new trial;
he presented an affidavit alleging that one juror was asleep
during some testimony. This court upheld the trial judge’s
denial of a new trial, relying on the accused juror’s coun-
teraffidavit stating that he was awake and heard all of the
testimony.
Plaintiffs also place reliance on People v. Deegan, supra,
88 Cal. 602, 604-607. There the court—citing counter-
affidavits of other jurors and persons present in the court-
room who did not perceive the juror to be intoxicated—
rejected a claim of misconduct based on the drinking of
alcohol by a juror prior to entering the courtroom. Although
plaintiffs place substantial reliance on Deegan, we view that
ania:
case as standing only for the proposition that when objective,
circumstantial proof of a juror’s ability to deliberate is of-
fered to show misconduct, that proof may be rebutted by
similar objective proof to the contrary. (Cf. People v. Stokes
(1894) 103 Cal. 193, 196-197.) Ung Sing is the only case
cited which allowed direct, subjective proof of a juror’s
state of mind; that authority, however, was decided many
years before the enactment of section 1150 and our explan-
atory decision in Hutchinson. It no longer accurately reflects
the law in this state.
The rule of Hutchinson serves a number of important
policy goals: It excludes unreliable proof of jurors’ thought
processes and thereby preserves the stability of verdicts.’
It deters the harassment of jurors by losing counsel eager
to discover defects in the jurors’ attentive and deliberative
mental processes. It reduces the risk of postverdict jury
tampering. Finally, it assures the privacy of jury delibera-
tions by foreclosing intrusive inquiry into the sanctity of
jurors’ thought processes.
We therefore decline to obfuscate the clear line drawn
in Hutchinson between proof of objectively ascertainable
facts and proof of the subjective mental processes of jurors.
The counterdeclarations fall into the latter category and
should not have been considered by the trial court in ruling
"The policy of preserving the stability of jury verdicts is aptly ex-
pressed in the following coy ally require trial courts to review
declarations reciting Qo ght processes of jurors is certain to
produce a deleterious effect upon the finality of jury verdicts. | foresee
the likelihood of all unsuccessful litigants, plaintiffs and detendants
alike, canvassing jurors hereafter as a matter of og in the fond hope
of discovering some forbidden clement that may have inadvertently
= into jury discussions. Motions thereafter made on the basis of
such discovery will seriously i the expeditious administration of
justice."’ (Krouse v. Graham (1977) 19 Cal.3d 59, 85 [conc. & dis.
os J.}; see also People v. Romero (1982) 31 Cal.3d 685,
)
i
on the motion for a new trial." The allegations contained
in Ford’s declarations therefore remain unrebutted. It must
be concluded that by failing to fulfill their duty of atten-
tiveness, the jurors committed misconduct.
This conclusion does not end our discussion, however,
because a new trial is required only if it can be established
that Ford was somehow prejudiced by the jurors’ inatten-
"Plaintiffs cites Krouse v. Graham, supra, 19 Cal.3d 59, 79-82, for
the ition that the trial court correctly admitted the counter-
declarations. In Krouse, defendant sought a new trial on the ground that
the jurors had increased the verdict by an amount estimated to be paid
by plaintiffs in legal fees. In support of his motion, defendant attempted
to introduce declarations of jurors alleging *‘several jurors commented"’
on their belief that plaintiffs’ counsel would be paid one-third of the
total award. The declarations further stated that the uy “considered”
this belief and ‘‘determined’’ the total award by ing an amount
estimated to be plaintiffs’ attorneys fees to the amount of damages. The
trial court refused to admit the declarations, believing that they related
to the mental processes of the jurors and were therefore excluded by
Evidence Code section 1150, subdivision (a). We reasoned that *‘if the
jurors in the present case actually discussed the subject of attorneys’
fees and specifically agreed to increase the verdicts to include such fees,
such discussion and agreement would appear to constitute matters ob-
jectively verifiable, subject to corroboration, and thus conduct which
would lie within the scope of section 1150. . . . [%] The declarations
in question are inconclusive, however, and could be construed as con-
duct reflecting only the mental processes of the declarant jurors. . . .
An assertion that a juror privately ‘considered’ a icular matter in
arriving at his verdict, would seem to concern a juror's mental processes,
and declarations regarding them, accordingly, would be inadmissible
under section 1150."' (/d. at pp. 80-81.) We ordered the trial court to
admit the declarations and to reconsider the motion for a new trial.
Krouse merely held that when juror declarations alleging misconduct
are *‘inconclusive,"’ i.¢., do not clearly relate only to overt acts or only
to subjective mental processes, the trial court should admit the decla-
rations in their entirety and consider the admissible portions thereof in
ruling on the motion for a new trial. However, the trial court must
disregard inadmissible portions. Here, a similar ambiguity existed. Por-
tions of counterdeclarations referred only to whether the jurors actually
did pay attention to the trial proceedings; these portions constituted an
impermissible —— into the jurors’ mental sses, Other portions
of the counterdeclarations referred to objectively verifiable facts. There-
fore, the declarations were y admitted in their entirety, even
though portions thereof cou ce re oe oe ee aoe
in ruling on the motion for a new ,
fe,
tiveness. Prejudice exists if, in the absence of proven mis-
conduct, it is reasonably probable that a result more favor-
able to the complaining party would have been achieved.
On these facts, there is but the flimsiest evidence of actual
prejudice to Ford. Only if we can infer from the bare fact
that the jurors’ diverting activities that they had prejudged
the outcome of the case and closed their minds to further
consideration of the evidence can it be said that actual prej-
udice occurred. Such an inference of partiality would be
patently unwarranted on this record.
Nevertheless, Ford urges that we should presume prej-
udice from the fact of inattentiveness alone. In People v.
Honeycutt (1977) 20 Cal.3d 150, 156, we stated: ‘‘It is well
settled that a presumption of prejudice arises from any juror
misconduct. . . ."" However, the presumption may be re-
butted by proof that no prejudice actually resulted.’’ (See
also People v. Pierce (1979) 24 Cal.3d 199, 205-209.)’ The
presumption of prejudice is an evidentiary aid to those par-
ties who are able to establish serious misconduct of a type
"Plaintiffs cite numerous cases which declare that the complaining
party bears the burden of poner nig ja as resulting from miscon-
duct. (E.g., City of Los Angeles v. Lowensohn (1976) 54 Cal. App. 3d
625, 637; City of Pleasant Hill v. First Baptist Church (1969) |
Cal.App.3d 384, 430; Philbrick v. Weinberger (1964) 228 Ca’ ‘_ oe
681, 688; Richards v. Gemco (1963) 217 Mes 858, 863; Win
nigar v. Bales (1961) 194 Cal. App.2d 273, 281; Watson v. Los Angeles
Transit Lines (1958) 157 Cal. ge 112, 116; LaGue v. Delgaard
(1956) 138 Cal.App.2d 346, 348; People v. Thomas (1952) 108
Cal. App.2d 832, 837.) Cases in other states universally require a show-
ing of prejudice before overturning a jury verdict on grounds of juror
inattentiveness. (E.g., International Ins, Co. v. Ballon (Fla.App. 1981)
403 So.2d 1071, 1075; see also cases cited in Annot., Inattentiveness
of Juror From Sleepiness or Other Cause as Ground for Reversal or
New Trial, 88 A.L.R.2d 1275, 1278-1279; 88 Am.Jur.2d, New Trial,
§ 95.) These authorities ar to be inconsistent with Honeycutt’ s
presumption of prejudice. (See also Cal. Const., Art. VI, § 13.) On
these facts, however, we need not reconsider the wisdom of the above-
cited, broad language from Honeycutt because Ford does not prevail
even if aided by the presumption.
=
likely to have had an effect on the verdict or which deprived
the complaining party of thorough considerat.vn of his case,
yet who are unable to establish by a preponderance of the
evidence that actual prejudice occurred. The law thus rec-
ognizes the substantial barrier to proof of prejudice which
section 1150 erects, and it seeks to lower that barrier some-
what.
Plaintiffs argue that the presumption of prejudice should
not apply in civil cases. It is true that the presumption
developed in criminal cases. But regardless of the rule's
origin, civil litigants, like criminal defendants, have a con-
Stitutionally protected right to the complete consideration
of their case by an impartial panel of jurors. (U.S. Const..
7th Amend.; Cal. Const., Art. 1, § 16; Andrews v. County
of Orange (1982) 130 Cal.App.3d 944, 953.) People v.
Honeycutt, supra, 20 Cal.3d 150, 156, footnote 3, relied
in part on civil cases applying a rebuttable presumption of
prejudice. (See also Smith v. Covell (1980) 100 Cal. App.3d
947, 953-954.) Code of Civil Procedure section 475 does
not compel a different result. That section states in pertinent
part: ‘‘There shall be no presumption that error is prejudi-
cial, or that injury was done if error is shown.’’ We long
ago rejected a rigid interpretation of section 475 in San Jose
Ranch Co. v. San Jose Land & Water Co. (1899) 126 Cal.
322, 324-325. Furthermore, parallel provisions in the Cal-
ifornia Constitution and the Penal Code have not prevented
us from applying the presumption in criminal cases. (See
Cal. Const., Art. VI, § 13; Pen. Code, §§ 1258, 1404.) No
principled distinction can be drawn between civil and crim-
inal cases for purposes of the presumption of prejudice aris-
ing from juror misconduct.
However, the presumption is not conclusive; it may be
rebutted by an affirmative evidentiary showing that preju-
dice does not exist or by a reviewing court’s examination
—29—
of the entire record to determine whether there is a reason-
able probability of actual harm to the complaining party
resulting from the misconduct. (In re Winchester (1960) 53
Cal.2d 528, 535; People v. Phillips (:981) 122 Cal.App.3d
69, 81; People v. Bullwinkle (1980) 105 Cal.App.3d 82,
91-92; Smith v. Covell, supra, 100 Cal.App.3d 947, 953-
954; People v. Martinez (1978) 82 Cal.App.3d 1, 20-25.)'°
Some of the factors to be considered when determining
whether the presumption is rebutted are the strength of the
evidence that misconduct occurred, the nature and serious-
ness of the misconduct, and the probability that actual prej-
udice may have ensued.
Here the jurors engaged in essentially neutral, albeit dis-
tracting, activities at unspecified times during the presen-
tation of evidence. There was overwhelming proof of lia-
bility against Ford and no substantial likelihood that actual
prejudice may have resulted from the jurors’ activities. It
was not clear what type of evidence was being presented
while the misconduct occurred or even which side’s case
was being presented. In sum, the showing of misconduct
is rebutted by an examination of the record which reveals
no substantial likelihood that Ford was given anything less
than a full and fair consideration of its case by an impartial
jury. The instances of misconduct demonstrated here do not
rise to the level of evidence ‘‘of such a character as is likely
to have influenced the verdict improperly.’’ (Evid. Code,
"On review of an order denying a new trial an appellate court has
the obligation to review ‘‘the entire record, including the evidence, so
as to make an independent determination whether the error was prej-
udicial."* (Cal. Const., Art. Vi, § 13, City of Los Angeles v. Decker
(1977) 18 Cal.3d 860, 872; Clemens v. Regents of University of Cal-
ifornia (1971) 20 Cal. App.3d 356, 366; Deward v. Clough (1966) 245
Cal.App.2d 439, 445; Wilkinson v. Southern Pacific Co. (1964) 224
Cal.App.2d 478, 483-484.
a Ne
§ 1150, subd. (a).) The trial court so found in its denial of
a motion for new trial.
We take this opportunity to emphasize our unwillingness
to allow the impeachment of jury verdicts on a bare showing
that some jurors failed to conform their conduct to the ideal
standard of utmost diligence in the performance of their
duties. Even the most diligent juror may reach the end of
his attention span at some point during a trial and allow his
mind to wander temporarily from the matter at hand. We
do not condone such conduct and trust that trial courts will
be alert and take appropriate action if it occurs. But we
recognize that this is especially likely to occur in such a
complex and lengthy trial as the case at bar. Retrials are to
be avoided unless necessitated by a more substantial der-
eliction of jurors’ duties than was evident in this case.
‘*Society has a manifest interest in avoiding needless re-
trials: they cause hardship to the litigants, delay the
administration of justice, and result in social and economic
waste."’ (Mercer v. Perez (1968) 68 Cal.2d 104, 113.) This
plaintiff was seriously and permanently injured in 1970. He
has prevailed in two lengthy jury trials, but for twelve years
has received no recovery. Justice will not be served by a
second reversal, yet another lengthy trial, to be followed
in all likelihood by further appeals.
V.
Finally, Ford urges us to overturn the jury's compensatory
award on the ground that it is excessive as a matter of law.
Plaintiffs’ expert projected the special damages as follows:
Past Medical Expenses $ 70,719.00
Future Medical Expenses: $ 333,000.00
Past Attendant Care $ 77,000.00
Future Attenda:it Care $ 789,000 0
Future Earnings Losses $2,350,000.00
TOTAL $3,619,000.00
aia Dic
The jury ultimately awarded a total of $7,500,000 in
compensatory damages; the trial court remitted $1,650,000
of the award; and the compensatory portion of the ultimate
judgment was $5,850,000.
Of course, we may overturn the award of damages only
if the award is excessive as a matter of law or if after
reviewing the record favorably to the judgment, we conclude
that the award is so grossly disproportionate to the harm
suffered as to raise the presumption that it resulted from
passion or prejudice. (Bertero v. National General Corp.
(1974) 13 Cal.3d 43, 64; Schroeder v. Auto Driveway Com-
pany (1974) 11 Cal.3d 908, 919.) Although the trial court
may weigh the evidence and grant a new trial or order a
remittitur if it finds the jury’s award to be against the weight
of the evidence, we are not so empowered.
Accepting Ford’s assumption that the jury awarded the
full amount projected by plaintiffs’ expert and that the re-
mainder of the award was for pain and suffering, there is
some arguable merit to Ford’s claim that the jury's award
was excessive. The claims for future medical expenses and
future attendant care may be somewhat exaggerated. Fur-
ther, the claim for future earnings losses is based on the
speculative assumption that James Hasson would fulfill his
lifelong dream of becoming a medical doctor. The only
tangible support for that assumption was the testimony of
a college professor that James was ‘‘capable’’ of completing
the necessary schooling, but James’ scholastic history made
that possibility dubious. At the time of the accident, he had
completed only one year of college, earning less than a
**B’’ average. Moreover, his high school grades and Scho-
lastic Aptitude Test scores were unspectacular. On the other
hand, it was reasonable to assume that James would have
completed college and accordingly had a future earnings
capacity with a present value of $868,000 or more. Fur-
a
thermore, the relevant figure for purposes of reviewing the
excessiveness of damages is the total reflected in the
postremittitur judgment. The trial court reduced the
compensatory award by $1,650,000. In so doing, it brought
the total amount of damages within reasonable limits and
rendered it nonexcessive.
VI.
Plaintiffs have cross-appealed from the trial court's order
reducing the amount of their compensatory award, The pro-
cedural history of the order is somewhat complicated: After
the entry of a judgment against it, Ford moved for a new
trial on numerous grounds. The court heard defendant's
motion on December 1, 1978, indicating at the conclusion
of argument that it intended to grant a conditional new trial
on the ground of insufficiency of the evidence to support
the compensatory award. (Code Civ. Proc., § 662.5.) The
new trial was to concern the issue of damages only, and it
would be avoided if plaintiffs consented to a reduction of
the award by $1,650,000. However, the minute order er-
roneously stated that a conditional new trial was to be
granted ‘‘on all issues.’’ Subsequently, on December 11,
plaintiffs’ counsel sought to correct the error by way of a
letter to the trial judge which suggested language for a new
order conforming to the oral directions given by the judge
at the conclusion of the new trial hear-ing. The judge
adopted counsel's wording verbatim and entered the new
order on December 12, nunc pro tunc as of December |.
Plaintiffs now contend in their cross-appeal that both or-
ders are invalid because neither contains an adequate ex-
planation of the trial judge’s reasons for ordering the con-
ditional new trial. Of course, the requirement of a written
specification of reasons for granting a new trial is well
established. (Code Civ. Proc., § 657; Mercer v. Perez
a |
(1968) 68 Cal.2d 104; Scala v. Jerry Witt & Sons, Inc.
(1970) 3 Cal.3d 359, 365; Stevens v. Parke, Davis & Co.
(1973) 9 Cal.3d 51, 59-63; La Manna v. Steward (1975)
13 Cal.3d 413, 417-425.) The rule serves the dual purposes
of *‘encouraging careful deliberation by the trial court before
ruling on a motion for new trial, and of making a record
sufficiently precise to permit meaningful appellate review.”’
(Scala v. Jerry Witt & Sons, Inc., supra, 3 Cal.3d at p. 363;
see also Mercer v. Perez, supra, 68 Cal.2d at pp. 112-113.)
The requirement applies equally to grants of conditional
new trials. (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d
910, 930-931.) It is plain that neither of the minute orders
satisfied the requirement of a written specification of rea-
sons, The first referred only to the ‘‘insufficiency of the
evidence to justify the verdict’’; the second granted a new
trial ‘‘on the ground of excessive damages.’’ Although the
trial court's remarks upon granting the conditional new trial
were more detailed, they obviously were not sufficient be-
cause they were oral, not written. (See Stevens v. Parke,
Davis & Co., supra, 9 Cal.3d at pp. 62-63.)
Nevertheless, plaintiffs are estopped to complain of the
trial court's error because they participated in its commis-
sion. (See Johnson v. Rich (1957) 150 Cal.App.2d 740,
747.) It would be anomalous to allow plaintiffs to base their
appeal solely on the ground of the deficiency of an order
which their counsel drafted. Under the unusual circum-
stances of this case — plaintiffs’ counsel, who lost the
motion for a new trial, drafted the adverse ruling said to be
deficient — the trial court's order may stand even though
it contains no written statement of reasons. Counsel cannot
escape the effect of such invited error by pointing out that
aaa
the trial judge had an opportunity to enter a specification
of reasons separately from the order.
The judgment is affirmed in all respects.
MOSK, J.
WE CONCUR:
BIRD, C.J.
NEWMAN, J.
BROUSSARD, J.
REYNOSO, J.
*BROWN, J.
*Assigned by the Chairman of the Judicial Council.
— },
DISSENTING OPINION BY RICHARDSON, J.
Hasson v. Ford Motor Company
L.A. 31527
I respectfully dissent.
The case presents an important issue involving the integ-
rity of our jury system, namely, whether a verdict may stand
despite proof that sitting jurors were permitted, during the
presentation of evidence, to read books or work crossword
puzzles. Through the sworn declarations of three named
jurors (one of whom voted for plaintiff, one of whom voted
for defendant, and one of whom did not vote) the following
record was established:
Juror A declared that ‘‘over approximately one month
. . » [juror D] was reading . . . a book in the jury box while
witnesses and evidence were being presented,”’ and that
three other jurors (L, G and V) ‘‘over a period of several
weeks during the trial were doing crossword puzzles in the
jury box while witnesses and evidence were being pre-
sented’’; juror G declared, *‘During the course of the trial
I observed [juror L] in the jury box, had open written ma-
terial or material with figures, not having to do with the
trial, which she was working on or doing something with
while testimony and evidence were being presented. On
many occasions during the trial I saw [juror D] reading a
book in the jury box while evidence and witnesses were
being presented’’; juror W declared that *‘During the course
of trial I saw jurors [L, G and V] doing crossword puzzles
in the jury box while witnesses and evidence were being
presented. I observed that [juror D] while sitting in the jury
box during court sessions was reading a book. Her reading
continued intermittently over a period of many days."’
The foregoing sworn declarations from three of the sitting
jurors involved conduct of five of the twelve jurors. One
ita,
of the jurors charged with having worked the crossword
puzzles did not deny that she had done so. The other four,
in identical language, denied that ‘I was reading extraneous
material or doing crossword puzzles in any manner or to
any extent, whereby I was not able to pay close attention
to the testimony."’ (Italics added.) The emphasized language
is significant, containing an implicit acknowledgment that
the misconduct occurred. Although the jurors asserted that
the misconduct did not prevent them from following the
testimony, this claim of extenuation is inadmissible under
Evidence Code section 1150, subdivision (a).
The majority has frankly conceded that defendant *‘has
made a prima facie showing of improper conduct by certain
jurors. No evidence contradicted the declarations to the ef-
fect that some jurors engaged in distracting activities during
the presentation of evidence at trial.’’ (Ante, p. —— |[maj.
opn., at p. 28].) The majority adds, further, that ‘‘It must
be concluded that by failing to fulfill their duty of atten-
tiveness, the jurors committed misconduct.’’ (Ante, p. —
[maj. opn., at p. 33].)
Fully acknowledging this misconduct, however, the
majority nonetheless insists that there was ‘‘no substantial
likelihood that actual prejudice may have resulted from the
jurors’ activities. It was not clear what type of evidence was
being presented while the misconduct occurred or even
which side's case was being presented."’ (Ante, p. ——. [maj.
opn., at pp. 36-37].) With due respect, I think the majority
errs, It does not matter what kind of evidence was being
offered or who presented it during these periods of improper
inattention. The majority of this court held just five years
ago that, whether in a civil or criminal case, ‘‘/t is well
settled that a presumption of prejudice arises from any jury
misconduct. In an early case we said: ‘For, when misconduct
of jurors is shown, it is presumed to be injurious to defen-
Higa
—37—"
dant, unless the contrary appears . . . . {4| Juror miscon-
duct has occurred in several forms requiring reversal when
prejudice is presumed in the absence of evidence to rebut
the presumption.’ *' (People v. Honeycutt (1977) 20 Cal.3d
150, 156, italics added.)
The present majority ignores this long established pre-
sumption of prejudice by purporting to rebut the presump-
tion because defendant has failed to show actual prejudice!
However, as the majority itself has observed, the presump-
tion of prejudice was intended specifically to assist those
litigants *‘who are unable to establish by a preponderance
of the evidence that actual prejudice occurred,"’ (Ante, p.
—. [maj. opn., at p. 34], italics added.) Thus, the majority
casts the burden of showing a ‘‘substantial likelihood’’ of
actual prejudice upon the very party whose inability to prove
such prejudice created the presumption in its favor, This
reasoning cannot be the law and it surely has not been our
previous position, For example, quite recently in a criminal
context, People v. Pierce (1979) 24 Cal.3d 199, we said
**jury misconduct raises a presumption of prejudice, and
unless the prosecution rebuts that presumption by proof that
ao prejudice actually resulted, the defendant is entitled to
a new trial. [Citations.|'’ (P. 207, italics added.) Similarly,
in the case before us when jury misconduct is established,
the burden is upon the plaintiff to demonstrate that no prej-
udice resulted from the misconduct. It is not the task of
defendant, who has the benefit of the presumption, to show
prejudice.
Nor is the misconduct trivial or inconsequential. A de-
fendant’s right to a fair jury trial in civil litigation is of both
federal and state constitutional significance. (Byram v.
Superior Court (1977) 74 Cal.App.3d 648, 654; Clemens
v. Regents of University of California (1971) 20 Cal. App.3d
P<
356, 360.) We should not countenance such a complete
erosion of a constitutional command.
The fact, of course, if it be a fact, that the evidence
against defendant on the issue of /iability was, in the ma-
jority’s words, ‘‘overwhelming,’’ does not detract one whit
from defendant's right to the jurors’ careful independent
evaluation of the damage aspect of the case. There was
certainly no ‘‘overwhelming proof’’ of plaintiff's entitle-
ment to $11,570,719, the amount of the jury's verdict,
which the trial court itself voluntarily reduced, In my view,
this is an exceedingly large verdict, and the jurors’ admitted
inattention to the flow of the evidence may very well have
occurred during the presentation of the damage phase of the
case. We do not know. Moreover, my conclusion is not
changed by defendant's inability to identify and match the
particular periods of the jurors’ distraction with the specific
evidentiary presentation by one party or the other, That, of
course, is not a critical point because oral or documentary
evidence favorable to a defendant may be received during
a plaintiff's presentation, and vice versa.
How, in fairness, is it possible for defendant which did
not know of the misconduct, nor did anyone else outside
of the jury box apparently, to prove that the jury's inattention
injured it, either as to the liability or damage issues in this
case? The jury's misconduct here was real, it was substantial
and it is admitted. It is not an answer to say that because
no one saw the misconduct, not judge, counsel, bailiffs or
anyone else, therefore it must not have occurred. The record
beyond doubt establishes that in fact it did occur and the
majority freely acknowledges that it did. The fact that the
jury misconduct may have been surreptitious does not dilute
the force of the majority's conclusion that, ‘‘by failing to
fulfill their duty of attentiveness, the jurors committed mis-
conduct.’’ (Ante, p. ——. [maj. opn. at p. 33].) This mis-
a eS
conduct was pervasive, involving five of the twelve jurors
including the ‘‘forewoman.’’ It continued over an extended
period of time, variously described as ‘‘approximately a
one-month period,’’ or ‘‘over a period of several weeks,”’
or ‘‘on many occasions,’’ or ‘‘intermittently over a period
of many days.’’ It occurred ‘‘while witnesses and evidence
were being presented.” (Italics added.) The misconduct was
not the momentary dozing of a single juror in an isolated
incident. Rather, it involved almost half the jury in frequent,
prolonged, intentional mental activity of a type that was
diverting and that required thought and contemplation. |
respectfully suggest that there are very few jurors, or anyone
else to my knowledge, who can simultanteously read a book
or work a crossword puzzle while following attentively the
testimony in a courtroom. Such activities, in my opinion,
were wholly incompatible with a juror’s duties and, with
full respect to my esteemed colleagues, we delude ourselves
if we think otherwise. The misconduct poisoned the verdict.
Thus, I ain unable to square the degree of admitted jury
misconduct in this record with what I have always believed
was the sworn duty of a juror to ‘well and truly try the
matter at issue.’’ (Code Civ. Proc., § 604.) This duty surely
entails giving undivided attention to the evidence and court
proceedings whether the trial lasts three hours, three weeks
or three months. Litigants are entitled to no less.
Accordingly, I concur in the conclusion of the unanimous
Court of Appeal herein that **‘A crossword-puzzle working
juror attempting to ascertain the proper word has a closed
mind, or at minimum, an interrupted attention span. Sim-
ilarly a novel-reading juror cannot concentrate on both the
flow of the plot and the flow of the testimony. Such inat-
tention implies prejudgment of the case which is miscon-
duct. [4] Nothing admissible appears in the record herein
to rebut the presumption of prejudice which arises from such
—40—
juror misconduct. The inescapable conclusion is that the
parties did not have 12 unbiased, impartial jurors.”’
Believing that we should not approve as a standard for
California litigants the jury conduct in this case, I would
reverse the judgment.
RICHARDSON, J.
oiilonn
HASSON, a Minor etc., et al. v. FORD MOTOR CO.
L.A. 31527
Counsel for the Parties:
For Appellant:
Winchester Cooley, III
McCutchen, Black, Verleger & Shea
600 Wilshire Boulevard
Los Angeles, California 90016
Telephone: (213) 624-2400
For Respondent:
David M. Harney, Esq.
Harney & Moore
650 South Grand Avenue, Suite 1200
Los Angeles, California 90017
Telephone: (213) 626-8761
Ellis J. Horvitz, Esq.
Horvitz & Greines
16000 Ventura Boulevard, Suite 401
Encino, California 91436
Telephone: (213) 995-0800
Gerald H.B. Kane, Jr.
270 Portofino Way, No. 304
Redondo Beach, California 90277
Telephone: (213) 379-4904
Superior Court: Los Angeles
Superior Court No.; C-989 523
Trial Judge: Hon. James G. Kolts
—_— =
APPENDIX B.
Order of Supreme Court of California
Denying Rehearing.
Order Due November 15, 1982.
Order Denying Rehearing. L.A. No. 31527.
In the Supreme Court of the State of California In Bank.
James M. Hasson, a minor, etc., et al. v. Ford Motor
Company.
Filed: November 15, 1982.
Newman, J., and Kaus, J., did not participate.
Appellant's petition for rehearing DENIED.
Richardson, J., is of the opinion that the petition should
be granted.
/s/ Bird
Chief Justice
eS
APPENDIX C.
Order of Supreme Court of California
Denying Motion to Stay Issuance of Remittitur.
L.A. No. 31527.
In the Supreme Court of the State of California In Bank.
James M. Hasson, a minor, etc., et al. v. Ford Motor
Company.
Filed: November 15, 1982.
Newman, J., and Kaus, J., did not participate.
The motion to stay issuance of the remittitur, considered
by the court in bank, is DENIED.
/s/ Bird
Chief Justice
—44—
APPENDIX D.
Remittitur.
In the Supreme Court of the State of California.
James M. Hasson, a Minor, etc. et al., Plaintiffs and
Appellants, vs. Ford Motor Company, Defendant and Ap-
pellant. L.A. No. 31527.
Appeal County LOS ANGELES. Superior Court No. C
989 523.
The above-entitled cause having been heretofore fully
argued, and submitted,
IT Is ORDERED, ADJUDGED, AND DECREED by the Court
that the judgment of the Superior Court of the County of
Los Angeles in the above-entitled cause, is hereby affirmed.
Plaintiffs and Appellants HASSON shall recover its costs
on APPEAL. Defendant and Appellant FORD MOTOR CO.
shall recover its costs on CROSS-APPEAL.
1 LAURENCE P. GILL, Clerk of the Supreme Court of the
State of California, do hereby certify that the foregoing is
a true copy of an original judgment entered in the above-
entitled cause on the 16th day of SEPTEMBER, /982
WITNESS my hand and the seal of the Court, this 15th
day of NOVEMBER, /982
LAURENCE P. GILL
Clerk
By R. GILMORE
Deputy
an
APPENDIX E.
Notice of Appeal to the
Supreme Court of the United States.
L.A. 31527
2nd Civil No. 57952
(Super. Ct. No. C989523)
In the Supreme Court of the State of California.
James M. Hasson, a Minor, by and through his Guardian
ad Litem Jack M. Hasson, individually, Plaintiffs and Ap-
pellants, v. Ford Motor Company, a corporation, Defendant
and Appellants.
Appeal from the Superior Court of Los Angeles County.
Hon. James G. Kolts, Judge.
NOTICE OF APPEAL TO THE SUPREME COURT
OF THE UNITED STATES
Notice is hereby given that Ford Motor Company, the
defendant and appellant above named, hereby appeals to
the Supreme Court of the United States from the fitial judg-
ment of the Supreme Court of the State of California,
rendered in this action on September 16, 1982, affirming
the judgment for plaintiffs in all respects.
Rehearing was denied in this case by the Supreme Court
of the State of California on November 15, 1982, a petition
for rehearing having been timely filed in that court by Ford
Motor Company on October |, 1982.
ae
This appeal is taken pursuant to 28 United States Code
section 1257(2).
Dated: November 24, 1982.
Respectfully submitted,
McCUTCHEN, BLACK, VERLEGER
& SHEA
WINCHESTER COOLEY lil
HUGH C. GARDNER U1
By /s/ Winchester Cooiey III
WINCHESTER COOLEY III
Attorneys for Appellant
FORD MOTOR COMPANY
res al
APPENDIX F.
Opinion of Court of Appeal of the State of California
in Hasson v. Ford Motor Company.
Court of Appeal of the State of California, Second Ap-
pellate District, Division Five.
James M. Hasson, a Minor, by and through his Guardian
ad Litem Jack M. Hasson, and Jack M. Hasson Individually,
Plaintiffs, Respondents, and Cross-Appellants, v. Ford
Motor Company, Defendant, Appellant, and Cross-Respon-
dent. 2d Civ. No. 57952. (Super. Ct. No. C 989 523).
Filed: November 25, 1981.
APPEAL from a judgment and order of the Superior Court
of Los Angeles County. James G. Kolts, Judge. Reversed
and Remanded.
McCutchen, Black, Verleger, & Shea, Winchester Cooley
Ill, Hugh C. Gardner III, for Appellant.
Harney & Moore, David M. Harney; Horvitz & Greines,
Ellis J. Horvitz; Gerald H. B. Kane, Jr., for Respondents.
Defendant appeals from a judgment awarding plaintiffs
$5,206,657 in compensatory damages and $4,000,000 in
punitive damage and from an order denying a motion for
judgment notwithstanding the verdict.
Plaintiffs appeal from the conditional new trial order
granting a new trial on the ground of excessive damages
only. We reverse the judgment and the conditional new trial
order and remand to the trial court for a new trial on all
issues because of juror misconduct
BACKGROUND
The genesis of this case is an automobile accident which
occurred July 17, 1970, when a 1966 Continental auto-
mobile manufactured by Ford Motor Company suffered a
brake failure while travelling in the Hollywood Hills and
crashed into a fountain and a wall, destroying the car and
a
leaving the driver severely disabled. The driver, plaintiff
James M. Hasson, was at that time, 19 years; and his father,
Jack M. Hasson, as his son's guardian ad litem, filed against
Ford Motor Company on behalf of his son and himself.
The first trial ended in a verdict in 1973 for plaintiff; this
was reversed in 1977 (Hasson v. Ford Motor Co, (1977)
19 Cal.3d 530).
This appeal arises from the second trial in 1978 at which
time the jury returned a verdict for plaintiffs in the sum of
seven and one half million dollars in actual damages and
four million punitive damages. A motion for new trial by
Ford Motor Company was granted on the basis of excessive
damages unless plaintiff consented to a reduction of
$1,650.000. Plaintiff consented to reduction. The appeal
and cross-appeal followed.
Ford Motor Company contends eight categories of error
warrant a reversal of the judgment. Plaintiffs contend that
damages are not excessive and urge reinstatement of original
jury verdict.
Except for the contentions of prejudicial juror misconduct
and excessive damages, other issues raised herein involve
substantiality of the evidence. Because there was prejudicial
juror misconduct necessitating a new trial on all issues, the
court does not address the other contentions because reso-
lution of such issues is not necessary to a final determination
of the case. (Code Civ. Proc., § 43.)
DISCUSSION
Voir Dire Concealment.
The contention of defendant that there is prejudicial error
because of ‘‘concealment’’ of information by jurors during
voir dire is without merit. The juror who failed to divulge
she was being sued by her creditors and who subsequently
filed bankruptcy did not harm defendant's case in any man-
contilbies
ner whatsoever. The juror who did not reveal he had lost
a 15-year old son because of an automobile accident which
caused brain damage was not asked specifically whether
any member of his family had suffered brain injuries in an
automobile accident. It is difficult, therefore, to see that
intentionally he was ‘‘concealing’’ bias, or thai his non-
disclosure was prejudicial.
Juror Misconduct.
However, the contention by defendant of various acts of
improper conduct by jurors during the trial is a basis for
serious and concerned scrutiny.
Juror declarations filed by defendant in conjunction with
the motion for a new trial referred to (1) statements allegedly
made by other jurors that indicated a bias against defendant
before deliberations: (2) statements allegedly made by one
juror regarding a visit to the Continental dealer, a previous
defendant herein; (3) reading by several jurors of an article
from the Los Angeles Times about another Ford Motor
Company case, allegedly brought into the courtroom by
another juror; (4) reading by a juror of A Night in Byzantium,
and (5) observation of three jurors working crossword puz-
zles during the taking of evidence.
Juror counter-declarations filed by plaintiffs deny the fol-
lowing: any statements of bias made by a juror before de-
liberations; any statements regarding a visit by a juror to
the dealership during the trial; and that if the article from
the Los Angeies Times were brought in, which jurors, if
any, read it, was not known. However, there was no denial
of working crossword puzzles and no denial of reading a
book by the ‘‘accused’’ jurors. Each juror insisted that no
bias resulted from such activity, in the following language:
“I specifically deny that I did not pay attention to
the testimony of witnesses and evidence being pre-
_
sented during the trial or that I was reading extraneous
materia! or doing crossword puzzles in any maner or
to any extent, whereby I was not able to pay close
attention to the testimony of each and every witness
and the presentation of all evidence in open court, .
Evidence Code section 1 150(a) permits juror doeniticind
or affidavits to be used for the purpose of showing
**. ., Statements made, or conduct, conditions, or
events occurring, either within or without the jury
room, of such a character as is likely to have influenced
the verdict improperly. No evidence is admissible to
show the effect of such statement, conduct, condition,
or event upon a juror either in influencing him to assent
or dissent from the verdict or concerning the mental
processes by which it was determined.’
Any portion of the counter-declarations signed by the
jurors which referred to the effect, or non-effect, of external
conduct on the decision-making process of said jury is sim-
ply inadmissible and cannot be used as objective evidence
(People v. Hall (1980) 108 Cal.App.3d 373, and should
have been stricken by the trial judge at the hearing on the
motion for new trial and judgment notwithstanding the
verdict.
In Smith v. Covell (1980) 100 Cal. App.3d 947 (citing at
page 953, People v. Honeycutt, (1977) 20 Cal.3d 150, 156,
141 Cal.Rptr, 698, 570 P.2d 1050), the court states:
** *LA] presumption of prejudice arises from any ju-
ror misconduct [which] presumption may be rebutted
by proof that no prejudice actually resulted.’ . . .”’
In Deward v, Clough (1966) 245 Cal. App.2d 439 at page
444, the court states:
.. » the right to a trial by jury in an action such as
this is jurisdictional, (Citations.] .. . And ‘the right
to unbiased and unprejudiced jurors is an inseparable
——§]—
and inalienable part of the right to a trial by jury.
.. »’ [Citations.] The guarantee is to 12 impartial ju-
rors... ."’ (Original in double italics; italics added. )
A crossword-puzzle working juror attempting to ascertain
the proper word has a closed mind, or at minimum, an
interrupted attention span. Similarly a novel-reading juror
cannot concentrate on both the flow of the plot and the flow
of the testimony. Such inattention implies prejudgment of
the case, which is misconduct.
Nothing admissible appears in the record herein to rebut
the presumption of prejudice which arises from such juror
misconduct, The inescapable conclusion is that the parties
did not have 12 unbiased, impartial jurors.
The judgment and new trial order both must be reversed
for a new trial on all issues by an unbiased jury.
CERTIFIED FOR PUBLICATION,
RALPH, J.*
We concur:
ASHBY, Acting P.J.
HASTINGS, J.
*Assigned by the Chairperson of the Judicial Council,
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