Petition for Writ of Certiorari — A. O. Smith Harvestore Products, Inc. v. Saylor

89-3280 | FiLeD |

AUG 25 1989

JOSEPH F. SPANIOL, JR,

No. 89- CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

A.O. SMITH HARVESTORE PRODUCTS, INC.,

HERMITAGE HARVESTORE SYSTEMS, INC.,

and CHUCK DOWDY, a

Petitioners,

V.

JAMES D. SAYLOR and KAAREN SAYLOR

d/b/a UDDER NONSENSE DAIRY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DonaLp E. EGAn

LEE ANN WATSON

Counsel of Record

CYNTHIA PHotos ABBOTT

KaTTEN Mucuin & Zavis

525 West Monroe Street

Chicago, Illinois 60606

(312) 902-5200

Attorneys for Petitioners

P

:

;

.

;

'

|

d

-

i

QUESTIONS PRESENTED

This case was tried twice, once in 1985, and again in

1987 on remand following reversal of the judgment in the

first trial. Because of potential prejudice, the district judge

insiructed all parties, counsel, and witnesses at the sec-

ond trial to refrain from informing the jury of the first

trial. However, during a postverdict judicial inquiry of the

jurors, the Petitioners established that a trial spectator,

who was a relative of one of the witnesses that testified

for Respondents, told a juror during a trial recess that

the case had been previously tried two years earlier.

The questions presented for review are:

1. Whether, having established that an extraneous com-

munication relating to the first trial was made to one

of the jurors, the Petitioners were entitled to the

rebuttable presumption of prejudice established in —

Remmer v. United States, 347 U.S. 227 (1954), and

applied by the majority of the circuit courts, or were

required to prove actual prejudice in accordance with

the Sixth Circuit’s minority view that Smith v. Phillips,

455 U.S. 209 (1982), a case involving juror bias, effec-

tively overruled the Remmer presumption of prejudice

in all juror misconduct cases.

2. Whether, contrary to decisions by other circuits, the

trial judge was permitted under Rule 606(b) of the

Federal Rules of Evidence prohibiting intrusion into

the jury’s mental processes, to inquire of the jurors

whether the extraneous communication had an “effect”

on their verdict as the Sixth Circuit held.

1 If the Petition is granted, Petitioners will also argue that the

Respondents did not rebut the presumption of prejudice by show-

ing that the extraneous communication was harmless.

ii

PARTIES TO THE PROCEEDING

AND RULE 28.1 LISTING

Petitioners are A.O. Smith Harvestore Products, Inc.,

Hermitage Harvestore Systems, Inc., and Chuck Dowdy.

Respondents are James D. Saylor and Kaaren Saylor d/b/a

Udder Nonsense Dairy.

A.O. Smith Harvestore Products, Inc.’s subsidiaries are

Sceptor Finance Company Ince. and 4-J Harvestore Sys-

tems, Inc. A.O. Smith Harvestore Products, Inc.’s cor-

porate parent is A.O. Smith Corporation, a publicly held

company traded on the American Stock Exchange. Sub-

sidiaries and affiliates of A.O. Smith Corporation are:

A.O. Smith Electric Motors (Ireland) Ltd.

A.O. Smith Enterprises Ltd.

AgriStor Credit Corporation

AgriStor Credit Corporation of Canada Ltd.

Claymore Insurance Company, Ltd.

Fabricadores de Componentes de Motores S.A.

De C.V.

Fabricantes de Componentes de Motrices S.A.

De C.V.

Fabricantes de Motores de Mexico S.A. De C.V.

Motores Electricos de Juarez S.A. De C.V.

Productos de Aqua S.A. De C.V.

Productos Electricos Aplicados S.A. De C.V.

Smith Fiberglass Products Inc.

Metalsa S.A.

A.O. Smith Water Products Company B.V.

A.O. Smith L’Eau Chaude, Sarl

AOS Holding Company

_ A.O. Smith Holdings (Ireland) Ltd.

A.O. Smith International Trading Co.

Smith Investment Company

Hermitage Harvestore Systems, Inc. has no corporate

parent, affiliates or subsidiaries.

TABLE OF CONTENTS

QUESTIONS PRESENTED .................

PARTIES TO THE PROCEEDING

AND RULE 28.1 LISTING ................

py hy 8) |: er

OPINIONS BELOW ....................... So

ET a ae, ic, sa awe vases ceens

STATUTORY PROVISION INVOLVED ......

STATEMENT OF THE CASE ...............

REASONS FOR GRANTING THE WRIT ....

I. Summary Of Reasons .................

II. The Sixth Circuit’s Decision Is In Direct

PAGE

Conflict With Decisions Of Other Circuits . li

III. The Issues Presented Are Important To

Civil And Criminal Litigants And The

SE EC Ca aU Sods ce kLeks cath eke ccics 18

ES og co coclvn ss tkaeeta4h sake bees 20

APPENDIX

Opinion Of The Court Of Appeals .......... App. 1

Denial Of Petition For En Banc Rehearing .. App. 17

Order Of the District Court ................ App. 19

iv

TABLE OF AUTHORITIES

CASES: PAGE

Abell v. Potomac Insurance Co., 858 F.2d 1104

SE 05 42s bean ee ene Rowe ies -4 9,19

Agristor Leasing v. Saylor, 803 F.2d 1401 (6th Cir.

SEE ONCOL TA ak oh Cub Cede Ehehadun keene 66 3

Attridge v. Cencorp Division of Dover Technologies

Int'l, Inc., 836 F.2d 118 (2d Cir. 1987) .... 13

Baca v. Sullivan, 821 F.2d 1480 (10th Cir. 1987) . 19

DeGrave v. United States, 820 F.2d 870 (7th Cir.

RUD | Weve GU eens ce diekees eepeaaeewebas ss 7

Haley v. Blue Ridge Transfer Co., 802 F.2d 1532

Se SEE Sick wake esanesdnusenavches . 6,138

Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984) ... 9

Irvin v. Dowd, 366 U.S. 717 (1961) ........... 10

Krause v. Rhodes, 570 F.2d 563 (6th Cir. 1977),

cert. denied, 485 U.S. 924 (1978) .......... 9

Mattox v. United States, 146 U.S. 140 (1892) .... 8,17

McDonough Power Equipment, Inc. v. Greenwood,

Be IIb Siw bh dnc cey bans cueesee 8, 10

Neron v. Tierney, 841 F.2d 1197 (1st Cir.), cert.

denied, 109 S. Ct. 90 (1988) ............ 12, 14, 19

Owen v. Duckworth, 727 F.2d 643 (7th Cir. 1984) . 13

Remmer v. United States, 347 U.S. 227 (1954) .. passim -

Rinker v. County of Napa, 724 F.2d 1352 (9th Cir.

ED. xb Acn case FcGesw ee Geka dhs Hp04 o's wen 9, 10

v

Stephens v. South Atlantic Canners, Inc., 848 F.2d

484 (4th Cir.), cert. denied, 109 S. Ct. 564

CRE danish Nan Sa nkWen Atonses CeaRAk Rees 9

Tanner v. United States, 107 S. Ct. 2739 (1987) . 8:15, 17

Transamerican Freight Lines v. Brada Mille.

Freight Systems, Inc., 423 U.S. 28 (1975) .. 2

United States v. Bagnariol, 665 F.2d 877 (9th Cir.

1981), cert. denied, 456 U.S. 962 (1982) .... 7,15

United States v: Bassler, 651 F.2d 600 (8th Cir.

SE ha W sd CGR ba aes eh cbdebeese cae dkeakes 15, 17

BE aS euk tbs odbes eves sobbbe Seuad oe oes 7, 16

ESE NRO EIA MNS RZ I ea a ues

United States v. Caporale, 806 F.2d 1487 (11th Cir.

1986), cert. denied, 482 U.S. 917 (1987) .... 7

United States v. Cooper, 868 F.2d 1505 (6th Cir.

SE: Sa An cdads udursdh nee uenias eubeuie os 11

United States v. Crane, No. 86-3917, slip op. (6th

6 eS SO er ee oe ree

United States v. Delaney, 732 F.2d 639 (8th Cir.

UE SG sn uv cade cdwancaeecbiewdsessisdesss 7,16 ~

United States v. DeLtis, 722 F.2d 902 (1st Cir.

DUE dh.danncdeagenedvhonkeeyeneretedeetnn 12

United States v. Greer, 620 F.2d 1383 (10th Cir.

SE a ib wicke bie den ch abd ape teens chen 7, 18, 17

United States v. Heller, 785 F.2d 1524 (11th Cir.

SES. i'n Unni ekeabwonnavauamnbden ieee hese 10, 18

United States v. Hornung, 848 F.2d 1040 (10th Cir.

SEE bbb cic 044040545 60000 000 sou 7

vi

United States v. Jelsma, 630 F.2d 778 (10th Cir.

ROR EN eS PCY PR 17

United States v. Jonnet, 762 F.2d 16 (8d Cir

Si soriciccs ops clea eet eek 7, 16

United States v. Kabir, Nos. 87-3850/3851, slip op.

(6th Cir. Dec. 28, 1988), cert. denied, 109 S. Ct:

SIE, hoch ke neea shah dobwhitesbasces 19, 20

SUE, 4060s aden chadssees bees Caseesesatene 6, 11

BOUND nc cc cacsnyensenseuhee sS5n0es<nueecees 5

United States v. Pennell, 737 F.2d 521 (6th Cir.

1984), cert. denied, 469 U.S. 1158 (1985) .. 6,7, 11,

FE eT eS Ur Pa nrc att ELE Es SY «Res onal had 12, 16

United States v. Ramos, 861 F.2d 461 (6th Cir.

1988), cert. denied, 109 S. Ct. 1353 (1989) .. 20

United States v. Robinson, 756 F.2d 56 (8th Cir.

SUED ce cccasnccndcsnnsessabaneeseabe teens 7

United States v. Wiley, 846 F.2d 150 (2d Cir

ME hc nc 0000 0nens-0n0es Skenennsasabeenss 7

United States v. Williams, 822 F.2d 1174 (D.C. Cir.

GED cn cccccccccustatecusesaeneseeeeeen - 20

United States v. Zelinka, 862 F.2d 92 (6th Cir.

BU Sencevcccascesntacdhacunbeaeseuets 11, 12, 20

Vaise v. Delaval, 99 Eng. Rep. 944 (K.B. 1785) . 18

Wiedemann v. Galiano, 722 F.2d 335 (7th Cir.

BREE hiv wib dus 0:e-0'é kes Cale ee ee 7,15

Vii

LEGISLATIVE MATERIAL:

Federal Rules Of Evidence: Hearings On H.R.

5463 Before The Committee On The Judiciary,

938d Cong., 2d Sess. (1974) ................

TREATISES & COMMENTARY:

J. Weinstein & M. Berger, Weinstein’s Evidence

ESS PE ere Te T eT eee

Crump, Jury Misconduct, Jury Interviews, And

The Federal Rules Of Evidence: Is The Broad

Exclusionary Principle Of Rule 606) Justi-

fied?, 66 N. Cer. L. Rev. 509 (1988) .......

Thompson, Challenge To The Decisionmaking

Process—Federal Rule Of Evidence 606(b) &

The Constitutional Right To A Fair Trial, 38

BRK, Tis ED WA bc cb ccesccuecicests<

Note, Clean Sweep of the New Trial Safeguard

Against Prejudice From Unauthorized Com-

munications With Jury Members, 31 Wayne L.

ED Ss wicdeqececceeeaeSéacedes

Note, Pre-Delidberations Juror Misconduct, Eviden-

tial Incompetence, And Juror Responsibility, 98

WED Rade Me GHD cicccncccsacsncscesces

15

17

18

10, 18

11

No. 89 -

IN THE

Supreme Court of the United States

OcTOBER TERM, 1989

A.O. SMITH HARVESTORE PRODUCTS, INC.,

HERMITAGE HARVESTORE SYSTEMS, INC.,

and CHUCK DOWDY,

Petitioners,

Vv.

JAMES D. SAYLOR and KAAREN SAYLOR

d/b/a UDDER NONSENSE DAIRY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners, A.O. Smith Harvestore Products, Inc., Her-

mitage Harvestore Systems, Inc., and Chuck Dowdy, re-

spectfully request that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Sixth Circuit entered April 26, 1989.

a a

OPINIONS BELOW

The opinion of the Court of Appeals for the Sixth Cir-

cuit is contained in the Appendix at.App. 1.2 The order

entered by the District Court for the Eastern District of

Tennessee is contained in the Appendix at App. 19.

JURISDICTION

The judgment of the Court of Appeals was entered on

April 26, 1989.3 By order of July 10, 1989, the Court of

Appeals denied Petitioners’ timely petition for rehearing

with suggestion for rehearing en banc. (App. 17). This

Court has jurisdiction pursuant to 28 U.S.C. §1254(1).

STATUTORY PROVISION INVOLVED

Rule 606(b) of the Federal Rules of Evidence provides

as follows:

Upon an inquiry into the validity of a verdict

or indictment, a juror may not testify as to any

matter or statement occurring during the course

of the jury’s deliberations or to the effect of

2 Pursuant to Rule 24 of the Court of pepe for the Sixth Cir-

cuit, the opinion was not recommended for publication. The fact

that the Court of Appeals recommended that the opinion not be

published, however, is not a bar to this Court’s review. See, e.g.,

Transamerican Freight Lines v. Brada Miller Freight Systems,

Inc., 423 U.S. 28, 34 (1975).

3 The Sixth Circuit remanded the case for a new trial on the issue

of damages unless the Respondents accepted a remittitur of $350,000.

(App. 16). Absent review by this Court, however, there will not

be a third trial since on May 25, 1989, Respondents filed a motion

in the District Court reflecting their acceptance of a remittitur

of $350,000. The issuance of the mandate was stayed by the Sixth

Circuit pending the filing of this Petition.

er

anything upon that or any other juror’s mind or

emotions as influencing the juror to assent to or

dissent from the verdict or indictment or con-

cerning the juror’s mental processes in connec-

tion therewith, except that a juror may testify

on the question whether extraneous prejudicial

information was improperly brought to the jury’s

attention or whether any outside influence was

improperly brought to bear upon any juror. Nor

may a juror’s affidavit or evidence of any state-

ment by the juror concerning a matter about

which the juror would be precluded from testi-

fying be received for these purposes.

Fed. R. Evid. 606(b).

STATEMENT OF THE CASE

The issues presented for review involve a conflict in the

circuits regarding the presumption of prejudice afforded

a party in a postverdict hearing once it is established that

an extraneous and potentially prejudical communication

was made to a juror. In particular, the circuits are divided

with respect to whether this Court’s decision in Smith

v. Phillips, 455 U.S. 209 (1982), a case involving alleged

juror bias, abolished the presumption of prejudice estab-

lished in Remmer v. United States, 347 U.S. 227 (1954),

a case involving an extraneous communication to a juror.

The issues in this case arise as the result of a judicial

inquiry which was conducted several months after the sec-

ond trial in which the jury rendered a verdict against

Petitioners in the sum of $1,365,000. The first trial had

also resulted in a substantial verdict against the Peti-

tioners but the Sixth Circuit reversed and ordered a new

trial. Agristor Leasing v. Saylor, 803 F.2d 1401 (6th Cir.

1986). Prior to the commencement of the second trial the

tills

District Court granted Petitioners’ motion in limine direct-

ing counsel and witnesses to refrain from making any refer-

ences to the existence of the first trial in the presence

of the jury.* Despite this precaution, however, the jury

learned of the first trial through a trial spectator, who

was a relative of one of the witnesses for the Respondents

and a plaintiff in another action against the Petitioners.

(JA 87). Thus, the judicial inquiry was convened for the

____. purpose of determining the circumstances of that inter-

ested spectator’s communication to the juror. At the in-

quiry each of the jurors was individually questioned about

the communication by the trial judge in the presence of

counsel for all parties, and the following testimony was

elicited.

During a trial recess the spectator approached one of

the jurors, whom she had known many years earlier, in

the women’s restroom and told her “we sat through this

whole case two years ago.” (JA 520-21, 556-59, 562). Be-

fore the spectator could say more, the juror informed her

that she was not supposed to discuss the case and left

the restroom. (JA 560). Upset by the incident, the juror

reported the incident to the marshal. (JA 521).5 The other

4 Specifically, the trial judge warned as follows:

Yes, I don’t want that done at all by anybody. It’s not

proper, and there is absolutely no proper—the way it was

tried before has nothing at all to do with what the judgment

should be of this jury now, and we all—I am telling every-

body to prevent that from happening at all cost ....

(JA 437) (“JA” citations are to the Joint Appendix (two volumes)

submitted by the parties to the Sixth Circuit. For the Court’s con-

venience, a set of the Joint Appendix was transmitted herewith

and lodged with the Clerk of the Court.).

5 Although the District Court and the parties learned of the in-

cident during the trial, Petitioners did not at that time know that

the spectator who made the contact was more than a bystander

(Footnote continued on following page)

wile

- jurors’ testimony is inconsistent with respect to whether

and what they were told of the incident. (JA 512, 527,

539).§

At the conclusion of the judicial inquiry, and over the

Petitioners’ objection, the District Court addressed the

following question to the jurors, as a group:

On the verdict that you returned here in this

case when you were jurors, did you decide it on

the evidence that you heard in this courtroom

and on the law that the Court gave you and on

nothing else? If you did that, raise your right

hand.

(JA 567). Ail jurors raised their hands.

The Petitioners then filed a motion for new trial pur-

suant to Rule 60(b) of the Federal Rules of Civil Proce-

dure, arguing that because the jury learned of the first

trial they had been prejudiced and did not receive a fair

trial.?7 Refusing to give the Petitioners the benefit of the

5 continued

and that she was related to a witness in the case who was also

pl aves in a similar action. (JA 87). Accordingly, consistent with

vant authorities, the District Court and Court of Appeals both

rejected Respondents’ arguments that Petitioners waived their

right to argue that they were entitled to a new trial as a result

of the outside contact with the jury. See, e.g., United States v.

Moten, 582 F.2d 654 (2d Cir. 1978).

6 Included in the Petition’s Appendix is a chart which summarizes

the testimony of the jurors at the judicial inquiry and graphically

illustrates the inconsistencies and discrepancies among their an-

swers. (App. 20).

7 Although the second trial lasted over two weeks and thirty wit-

nesses testified, including ten experts on a myriad of complicated

subjects such as engineering, veterinary science, and animal nutri-

pr the jury oe ; | 5000 | hours to return a verdict in get

0! e Respon nts for in compensatory damages and pre-

judgment interest of $490, 000. (JA 43, 488-90),

—~§—

rebuttable presumption of prejudice established by this

Court in Remmer v. United States, 347 U.S. 227 (1954),

the District Court denied the motion for a new trial. Rely-

ing upon the jurors’ <ssurances that they decided the case

solely on the evidence, the district judge concluded that

there was “no juror misconduct, that any contact which

occurred was harmless, and that all jurors exhibited ex-

emplary behavior at all times.” (App. 19).

On appeal, the Sixth Circuit affirmed, holding that Rem-

mer was not “controlling law,” because it was “‘super-

seded” by Smith v. Phillips, 455 U.S. 209 (1982). (App.

11). Phillips, as earlier interpreted by the Sixth Circuit

in United States v. Pennell, 737 F.2d 521 (6th Cir. 1984),

cert. denied, 469 U.S. 1158 (1985), requires a showing of

actual prejudice by the movant, as opposed to permitting

a rebuttable presumption of prejudice once the outside

communication is established. (App. 11-12). The Sixth

Circuit’s analysis and construction of Phillips as “‘super-

seding” Remmer is directly contrary to the following

Courts of Appeals, each of which has expressly criticized

and/or rejected Pennell’s interpretation of Phillips and

Remmer:

Fourth: see, e.g., Haley v. Blue Ridge Trans-

fer Co., 802 F.2d 1532, 1535-37 (4th

Cir. 1986);

Ninth: see, e.g., United States v. Littlefield,

752 F.2d 1429, 1431-32 (9th Cir.

1985);

District of see, e.g., United States v. Butler, 822

Columbia: F.2d 1191, 1195 (D.C. Cir. 1987).

In addition, without specifically addressing the Sixth Cir-

cuit’s position, the Courts of Appeal for the Second,

Seventh, Eighth, Tenth and Eleventh Circuits, have con-

oe

tinued to apply the Remmer presumption of prejudice

since the time Phillips was decided.®

In its opinion, the Sixth Circuit also expressly rejected

Petitioners’ argument that Pennell and Phillips are

limited to situations where the hearing on the issue of

the outside juror contact occurs before the jury renders

its verdict, and do not apply to a postverdict hearing as

was the case here. (App. 12). The Sixth Circuit instead

held that Rule 606(b) of the Federal Rules of Evidence

does not prohibit postverdict questioning of jurors regard-

ing the effect of an outside communication on their ver-

dict. (App. 12-13). This position is in direct conflict with

all of the other courts of appeals which have considered

the issue.®

Recognizing that the Sixth Circuit’s internal rules pro-

hibited the panel which decided this case from overruling

a prior panel’s decision in Pennell, Petitioners filed a peti-

tion for rehearing en banc. The petition was denied with

no judge voting in favor of an en banc rehearing. (App.

17).

8 See, e.g., United States v. Wiley, 846 F.2d 150, 157-58 (2d Cir.

1988); DeGrave v. United States, 820 F.2d 870, 872 (7th Cir. 1987);

United States v. Robinson, 756 F.2d 56, 59 (8th Cir. 1985); United

States v. Hornung, 848 F.2d 1040, 1043-46 (10th Cir. 1988); United

States v. C , 806 F.2d 1487, 1503 (11th Cir. 1986), cert. de-

nied, 482 U.S. 917 (1987).

® See, e.g., United States v. Jonnet, 762 F.2d 16, 19-20 (3d Cir.

1985); United States v. Delaney, 732 F.2d 639, 643 n.6 (8th Cir.

1984); Wiedemann v. Galiano, 722 F.2d 335, 337 (7th Cir. 1983);

United States v. Brooks, 677 F.2d 907, 913 (D.C. Cir. 1982); United

States v. Bagnariol, 665 F.2d 877, 884-85 (9th Cir. 1981), cert. de-

nied, 456 U.S. 962 (1982); United States v. Greer, 620 F.2d 1383,

1389 (10th Cir. 1980).

willie

REASONS FOR GRANTING THE WRIT

I. Summary Of Reasons

The resolution of the issues presented in this Petition

transcends this particular case and impacts the essence

of our system of jurisprudence in criminal and civil litiga-

tion alike. As this Court observed in McDonough Power

Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984):

One touchstone of a fair trial is an impartial trier

of fact—‘‘a jury capable and willing to decide the

case solely on the evidence before it.”

Id. at 554 (quoting Smith v. Phillips, 455 U.S. 209, 217

(1982)). See also Mattox v. United States, 146 U.S. 140,

150 (1892) (“Private communications, possibly prejudicial,

between jurors and third persons, or witnesses, or the

officer in charge, are absolutely ferbidden, and invalidate

the verdict, at least unless their harmlessness 1z made

to appear.”’).

An equally inviolate principle is the prohibition against

courts and litigants inquiring into the jurors’ deliberative

processes.!° That principle was codified in Rule 606(b) of

the Federal Rules of Evidence which expressly prohibits

inquiries into “any matter or statement occurring during

the course of the jury’s deliberations or to the effect of

anything upon that . . . or concerning the juror’s mental

processes in connection therewith.” Fed. R. Evid. 606(b).

A dilemma, however, is created by the interaction be-

tween these two principles when a hearing regarding a

possible extraneous communication with the jury is con-

ducted after the jury has rendered its verdict, since it

10 See Tanner v. United States, 107 S. Ct. 2739, 2745-48 (1987);

Mattox v. United States, 146 U.S. 140, 149 (18$2).

may be difficult if not impossible to learn whether the

verdict was affected by the extraneous contact without vio-

lating the prohibition against invading the jurors’ mental

processes. Thus, a choice must be made between counter-

vailing policy considerations. On the one hand, truth and

a fair trial to all litigants, an overriding goal of the judicial

system, must be balanced against policy considerations on

the other hand which underlie the prohibition against in-

quiring into the reasons for the verdict. Those include

ensuring the finality of jury verdicts, protecting the in-

tegrity of the judicial process, discouraging jury harass-

ment, as well as conserving judicial resources by avoiding

lengthy or unnecessary proceedings on juror misconduct

issues.

In Remmer, this Court resolved the tension between

these considerations by adopting the so-called rebuttable

presumption of prejudice—a direct or indirect communica-

tion or contact with the jury about a matter relating to

the trial is deemed “presumptively prejudicial,” unless the

Government proves that the contact was harmless. 347

U.S. at 229.11 The Sixth Circuit, however, in contrast to

the other circuits, construes this Court’s subsequent deci-

sion in Phillips, as having effectively overruled Remmer

by eliminating the presumption of prejudice notwithstand-

ing the fact that the juror misconduct in Phillips involved

juror bias, not an extraneous communication. In doing so, |

11 Although Remmer was a criminal case, the presumption of

ra established in that case has been uniformly applied in

civil litigation as well. See Krause v. Rhodes, 570 F.2d 563, 568

(6th Cir. 1977), cert. denied, 435 U.S. 924 (1978); Hobson v. Wilson,

737 F.2d 1, 47-48 (D.C. Cir. 1984). See, e.g., Abell v. Potomac In-

surance Co., 858 F.2d 1104 (5th Cir. 1988); Stephens v. South

Atlantic Canners, Inc., 848 F.2d 484 (4th Cir.), cert. denied, 109

's Ct. oan (1988); Rinker v. County of Napa, 724 F.2d 1352 (9th

ir. 1983).

= =

the Sixth Circuit has not only made it virtually impossi-

ble for a party to ever establish that an extraneous com-

munication denied it a fair trial, but has sacrificed the

objectives sought to be achieved by Rule 606(b)’s prohibi-

tion against inquiring into the jurors’ mental processes. As

observed by one commentator, such postverdict inquiries

of jurors pose particular problems:

The jurors now have a substantial self-interest

in providing testimony that is consistent with the

validity of their verdict. They have taken a pub-

lic position on the issue and may be reluctant

to provide testimony that they may have acted

improperly in arriving at that position.

Thompson, Challenge To The Decisionmaking Process—

Federal Rule Of Evidence 606(b) & The Constitutional

Right To A Fair Trial, 38 Sw. L.J. 1187, 1218 (1985).'?

The conflict between circuits created by the Sixth Cir-

cuit’s position presents important considerations for this

Court. First, the issues are not isolated but are occurring

and promise to reoccur in both criminal and civil contexts.

Second, further development by future decisions in other

circuits is unlikely to cause the Sixth Circuit to yield in

12 Accord Mc h Power Equipment, Inc. v. Greenwood, 464

U.S. 548, 558 (1984) (Brennan, J., concurring) (“the bias of a juror

will rarely be admitted by the juror himself’’); Smith v. Phillips,

455 U.S. 207, 231-32 (1982) (Marshall, J., dissenting) (“It is the

nature of the practices here challe that proof of actual harm,

or lack of harm is virtually impossible to adduce.”) (quoting Peters

v. Kiff, 407 U.S. 498, 504 (1972)); Irvin v. Dowd, 366 U.S. 717, 728

(1961) (Court observed that despite a juror’s sincerity when he

says he can be fair, the “psychological impact requiring such a

declaration before one’s fellows is often its father.”). See also

United States v. Heller, 785 F.2d 1524, 1527 (11th Cir. 1986)

(jurors’ denials are an insufficient basis on which to overcome pre-

sumption of prejudice); Rinker v. County of Napa, 724 F.2d 1352,

1354 (9th Cir. 1983) (juror’s affidavit stating that she was not af-

fected by the contact did not rebut presumption of prejudice).

=

its minority interpretation in light of its refusal to do so

to date in the face of explicit criticism by courts and

commentators?® and its several recent decisions reaffirm-

ing its position.’4

Accordingly, to avoid a continuation of inconsistent ap-

plications and interpretations of Remmer, Phillips, and

Rule 606(b) in lower court decisions affecting substantial

numbers of criminal and civil litigants, this Court should

grant review of this case to determine? (1) whether the

Sixth Circuit erred in holding that Petitioners were not

entitled to the Remmer presumption of prejudice once

they established that the extraneous communication about

the prior trial was made to one of the jurors, and (2)

whether the trial judge violated Rule 606(b) when it in-

quired of the jurors not only about the extraneous com-

munication itself but also its effect on their verdict.

II. The Sixth Circuit’s Decision Is In Direct

Conflict With Decisions Of Other Circuits

The Sixth Circuit squarely acknowledged that “if Rem-

mer were controlling law, the burden would have been

on the [Respondents] to estabiish lack of prejudice from

the unauthorized contact.” (App. 11). But the Court of

Appeals continued to follow its decision in United States

v. Pennell, 737 F.2d 521 (6th Cir. 1984), cert. denied, 469

U.S. 1158 (1985), where it held:

13 See, e.g., United States v. Littlefield, 752 F.2d 1429, 1431 (9th

Cir. 1985). See Note, Clean Sweep of the New Trial Safeguard

Against Prejudice From Unauthorized Communications With

Jury Members, 31 Wayne L. Rev. 1088, 1096-1100 (1985).

14 See, e.g., United States v. Cooper, 868 F.2d 1505, 1523 (6th Cir.

1989); United States v. Zelinka, 862 F.2d 92, 95 (6th Cir. 1988);

United States v. Crane, No. 86-3917, slip op. (6th Cir. Feb. 18,

1988).

—12—

In light of Phillips, the burden of proof rests

upon a defendant to demonstrate that unauthor-

ized communications with jurors resulted in ac-

tual a partiality. Prejudice is not to be pre-

sumed.

Id. at 532. Similarly, in United States v. Zelinka, 862 F.2d

92 (6th Cir. 1988), cited and relied upon in the decision

in this case (App. 12), the Sixth Circuit reaffirmed its view

that Pennell controls, expressly observing that:

This court has consistently held that Smith v.

Phillips reinterpreted Remmer to shift the

burden of showing bias to the defendant rather

than placing a heavy burden on the government

to show that an unauthorized contact was harm-

less.

Id. at 95. Significantly, the Sixth Circuit has not charted

its own course oblivious to the fact that its interpreta-

tion and application of Phillips differs from decisions by

other courts of appeals. In Zelinka, for example, the Sixth

Circuit. acknowledged that two courts of appeals had ex-

pressly disagreed with Pennell and still others continue

to apply the Remmer presumption. /d.15

What the Sixth Circuit ignored in Zelinka, however,

and expressly disavowed in this case, is the critical dis-

tinction between preverdict and postverdict inquiries re-

garding juror misconduct. (App. 12-13). As Petitioners

argued below and as all of the other circuits which have

addressed the issue recognize, the actual bias test dis-

15 The Sixth Circuit also believed, however, that the First Cir-

cuit agreed with its erry 862 F.2d at 95 (citing Neron v.

841 F.2d 1197, 1200 (1st Cir. 1988), and United States

Delatis, 722 F.2d 902, 909 (1st Cir, 1983)). But Neron and

DeLautis, like Phillips, involved issues of potential juror bias, not

tential prejudice as a result of an extraneous communication,

like the situation here and in Remmer.

wh De

—13—

cussed in Phillips cannot be applied in a federai postver-

dict hearing because it would typically result in a viola-

tion of Rule 606(b) in order to satisfy the test. See, e.g.,

Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1535-36

n.5 (4th Cir. 1986) (“proof of ‘actuai’ prejudice would have

been impossible to uncover in this case without contraven-

ing Federal Rule of Evidence 606(b)’’); Owen v. Duck-

worth, 727 F.2d 643, 646 (7th Cir. 1984) (“A determina-

tion of jury prejudice is complicated in the federal courts

by the proscription against questioning jurors directly

about the effect of the outside contact on their delibera-

tions. Fed. R. Evid. 606(b).’”); United States v. Greer, 620

F.2d 1383 (10th Cir. 1980) (“The effect of [Rule 606(b)]

is that a presumption of prejudice cannot be overcome

once a jury has reached its verdict.”’). See also Attridge

v. Cencorp Division of Dover Technologies Int'l, Inc., 836

F.2d 113 (2d Cir. 1987).6

This Court was not required to consider the effect of

Rule 606(b) on a litigant’s rights in a postverdict hearing

regarding juror misconduct in Phillips. Phillips involved

a petition for writ of habeas corpus, seeking relief from

16 In addition to the distinction between a preverdict and post-

verdict hearing, this Court’s decision in Phillips involved juror

bias, not an extraneous communication with jurors. The Fourth

Circuit, for example, has found Phillips inapplicable to extraneous

communication cases, explaining as follows:

Phillips and all of our cases following it are distinguishable

from the present case because they address intrinsic juror

bias subject to revelation a dire. . . . We see

a basic difference between the beliefs, feelings, preferences

and general personality traits that every juror carries into

the courtroom and the power of after-acquired extraneous

information . . . to infect and extirpate impartiality from

the fact-finding process.

H , 802 F.2d at 1536 n.5. Indeed, in Phillips this Court ex-

pressly observed that voir dire, though not infallible, is a safeguard

of juror impartiality. 455 U.S. at 217.

in

a state court conviction because of alleged juror bias. Sig-

nificantly, in Phillips the postverdict inquiry regarding

the alleged juror bias was conducted in state court. 455

U.S. at 217. Thus, Rule 606(b) was not implicated in

Phillips because the state court findings of fact are “pre-

sumptively correct” ana the legal issue in the habeas con-

text was restricted to whether the state court provided

the petitioner with an opportunity to prove prejudice con-

sistent with due process. See Neron v. Tierney, 841 F.2d

1197, 1199 (1st Cir.), cert. denied, 109 S. Ct. 90 (1988)

(“Section 2254(dX2) does not allow us to superimpose fed-

eral choices upon the state courts merely because we

think some ‘other’ procedure might have been ‘better’.’’).

In stark contrast to the state court proceeding at issue

in Phillips, there is no question that Rule 606(b) applied

to the judicial inquiry in this case.17 Thus, Phillips can-

not provide support for the Sixth Circuit’s approval of

‘the trial judge’s flagrant violation of Rule 606(b). Rather,

17 In fact, in overruling Petitioners’ objection to the question, the

District Court commented as follows:

THE COURT: .. . I’m going to do what you tell me I

shouldn’t do on 606. I’m going to bring all six jurors in

here and ask them if their verdict was a verdict that they

found under all of the evidence and the law I instructed

them, and if I shouldn’t do that, then the Sixth Circuit

will say it was error for me to do it and I’ve exercised

myself for nothing.

* * *

THE COURT: I’m fixing to ask these six jurors did they

decide this case on the evidence they heard in this-court-

room and on the law that I gave them and nothing else,

and I want to know what their answer is and if it’s error,

then we'll strike it from the record as though it didn’t hap-

pen and you can correct the error when you get up to

the Sixth Circuit, but if I don’t ask it they may send it

back for me to ask them.

(JA 554, 566).

=

the only rationale offered is the Sixth Circuit’s misappre-

hension of the Rule’s so-called extraneous prejudicial in-

formation exception. That exception expressly exempts

from the Rule’s general prohibition “‘a juror{’s testimony]

on the question [of] whether extraneous prejudicial infor-

mation was improperly brought to the jury’s attention or

whether any outside influence was improperly brought to

bear upon any juror.” Fed. R. Evid. 606(b). At first

glance, this exception might suggest, as the Sixth Circuit

has decided, that when testifying about extraneous infor-

mation a juror can also be questioned about the effect of

that information on the jury’s deliberations. That construc-

tion, however, cannot be reconciled with an examination

of the legislative history, case law or legal commentary.'®

Moreover, the Sixth Circuit’s application of Rule 606(b)’s

extraneous information exception is, like its interpreta-

tion of Phillips, in direct conflict with other circuits. See

Wiedemann v. Galiano, 722 F.2d 335, 337 (7th Cir. 1983)

— (“The Rule [606(b)] does allow jurors to testify as to

whether extraneous information or an outside influence

reached them. However, it prohibits jurors from giving

post-verdict testimony as to whether their deliberations,

in fact, were prejudiced by the extraneous information or

outside influence.’’); United States v. Bagnariol, 665 F.2d

877, 884-85 (9th Cir. 1981), cert. denied, 456 U.S. 962 (1982)

(“{Jurors] may not be questioned about the deliberative

process or subjective effects of extraneous information,

nor can such information be considered by the trial or

appellate courts.”); United States v. Bassler, 651 F.2d 600,

18 See, e.g., Tanner v. United States, 107 S. Ct. 2739 (1987); Fed-

eral Rules Of Evidence: Hearings On H.R. 5463 Before The Com-

mittee On The Judiciary, 93d Cong., 2d Sess. (1974); Note, Pre-

Deliberations Juror Misconduct, Evidential Incompetence, And

Juror Responsibility, 98 Yale L.J. 187 (1988).

= On

603 (8th Cir.), cert. denied, 454 U.S. 944 (1981) (“Rule

606(b) precludes the district court from investigating the

subjective effects of any extrinsic material on the jurors

...). Aecord United States v. Jonnet, 762 F.2d 16, 19

(3d Cir. 1985); United States v. Delaney, 732 F.2d 639,

643 n.6 (8th Cir. 1984); United States v. Brooks, 677 F.2d

907, 913 (D.C. Cir. 1982).

Without addressing the conflicting decisions of other cir-

cuits and without citation of any authority supporting its

position,,the Sixth Circuit attempted to rationalize its

holding’ as follows:

Presumably, under the Remmer rule, the party

seeking to preserve the judgment would be

allowed to demonstrate the absence of prejudice

by questioning the jurors, post-verdict, under the

authority of the Rule 606(b) exception. However,

the defendants assert that the post-verdict ques-

tioning of jurors to establish the existence of

prejudice under the Phillips/Pennell rule would

violate Rule 606(b). Plainly, if post-verdict ques-

tioning of jurors was permissible when the Rem-

mer presumption was applicable, such post-ver- -

dict questioning is permissible under Phillips and ~

Pennell.

(App. 12-13) (emphasis original). This statement reflects

two fundamental errors. First, it ignores the crucial dis-

tinction between questioning jurors about the fact of the

extraneous communication and questioning them about the

effect of the extraneous communication on their delibera-

tions. Second, the Sixth Circuit seemingly believes that

it is permissible to question jurors in order to establish

the absence of prejudice.1®

19 The Sixth Circuit also erroneously assumed that questioning

the jurors about the effect of the communication on their verdict

(Footnote continued on following page)

_

As the result of these errors, the Sixth Circuit’s appli-

cation of Rule 606(b) stands in sharp and irreconcilable

conflict with other circuits which have held that an in-

quiry into jurors’ mental processes is prohibited by Rule

606(b) irrespective of whether the result confirms or im-

peaches their verdict. See, e.g., United States v. Bassler,

651 F.2d 600, 603 (8th Cir. 1981); United States v. Greer,

620 F.2d 1383, 1389 (10th Cir. 1980). Accord United States

v. Jelsma, 630 F.2d 778, 779 (10th Cir. 1980). See also 3

J. Weinstein & M. Berger, Weinstein’s Evidence, 4606[04]

at 606-29-30 (1988).

In the final analysis, there is no question that Peti-

tioners would have been entitled to a new trial had

the Remmer presumption of prejudice test been applied

in this case. There is likewise no question that a new

trial would have followed had the courts below not con-

sidered the jurors’ affirmative responses to the trial

judge’s question with respect to whether their verdict was

based solely on the evidence admitted at trial. In fact,

had the Respondents’ dairy farm in this case been located

just 50 to 70 miles south, in Alabama or Georgia instead

of Tennessee, the result would not have been the same.

Rather, under Eleventh Circuit precedent, the Remmer

presumption would have been available to the Petitioners

and the judge would not have been permitted to ask the

19 continued

would have been permissible under Remmer, which was decided

before Rule 606(b) was enacted. However, limiting the inquiry of

jurors to the fact of an extraneous communication and not its im-

pact, if any, on the verdict, is also — by the common law

rule which preceded the adoption of the Federal Rules of Evi-

dence. See, e.g., Tanner v. United States, 107 S. Ct. 2739, 2745-48

(1987); Mattox v. United States, 146 U.S. 140, 149 (1892). See gen-

ona 3 J. Weinstein & M. Berger, Weinstein’s Evidence 4606[03])

1988).

ifn

question regarding the jury’s deliberative process. See

United States v. Heller, 785 F.2d 1524, 1528 (11th Cir.

1986). Hence, a new trial would have been mandated. It

is submitted that such disparate results in the federal

courts relating to the fundamental right of a fair trial

should be predicated on more than geography.

III. The Issues Presented Are Important To

Civil and Criminal Litigants And The Judiciary

The issues presented in this Petition are being con-

fronted by federal courts throughout the country on a

regular basis. The importance of a fair trial decided by

jurors free from extraneous contacts and communications

that may be prejudicial is obvious. Likewise, little need

be said about the importance of protecting the sanctity

of the jury room and the secrecy of the jurors’ delibera-

tions. Those goals not only provide the underpinnings to

Rule 606(b), but have been steadfastly followed since the

time of Lord Mansfield.2° Acknowledging the importance of

the policies affected by these issues, however, is far easier

than resolving them since their resolution necessarily in-

volves balancing equally laudable and competing policies.?!

20 See Vaise v. Delaval, 99 Eng. Rep. 944 (K.B. 1785). See gen-

erally Crump, Jury Misconduct, Jury Interviews, And The Fred.

eral Rules Of Evidence: Is The Broad i Exclusionary Principle Of

Rule 606() Justified?, 66 N. Car. L. Rev. 509, 513-20 (1988);

Thompson, supra p. 10, at 1189-95.

21 Qne commentator aptly observed that:

The attempt to effectuate significant policy considerations

affecting vital substantive rights by rules of competency

[Rule 606(b)] is like trying to eat soup with a fork. Al-

though by proper manipulation some nourishment can be

supplied, the process is hit or miss with substantial and

unacceptable side effects.

Thompson, supra p. 10, at 1221-22. See also Note, supra note 18,

at 187 (“Rule 606(b) seems designed to maximize tension between

preserving the jury and preserving justice.’’).

- oo

The resolution reached by the majority of the circuits

is that the price to be paid in order to preserve the in-

tegrity of the jury system is a lessening of the finality

of jury verdicts and a potential increase in posttriai liti-

gation.22 The Sixth Circuit, on the other hand, is resolute-

ly unwilling to pay that price and requires proof of ac-

tual prejudice even at the expense of invading the jurors’

mental processes.

In addition, other circuits have not yet directly con-

fronted the issue of juror misconduct in a postverdict

setting and/or will be faced with a choice between these

conflicting approaches.?* Alternatively, absent guidance

from this Court, these circuits may opt for their own vari-

ation of the required balancing of the competing public

policies.24

In sum, this Court’s decision in Phillips is being incon-

sistently interpreted and applied in cases involving juror

bias,25 juror statements on voir dire,?® extraneous com-

L

22 See cases cited at page 6 and note 8, supra.

23 The First and Third Circuits have not yet decided the issue

in an extraneous communication setting. And, the Fifth Circuit

expressly refused to decide the issue in a case where the extrane-

ous communication was caused by the defendant himself. See Abell

v. Potomac Insurance Co., 858 F.2d 1104, 1147 (5th Cir. 1988).

24 Congress, the only other alternative to a resolution of this con-

flict, is not particularly well suited to dealing with these issues.

A clarifying amendment, for example, of Rule 606(b) would not

be sufficient. Although such an amendment would prevent future

invasions of jurors’ mental processes regarding extraneous com-

munications, it would not, without more, reinstate the Remmer

rebuttable presumption in the Sixth Circuit and any other circuits

which may adopt its interpretation of Phillips.

25 See, e.g., United States v. Kabir, Nos. 87-3850/3851, slip op.

(6th Cir. . 28, 1988), cert. denied, 109 S. Ct. 1325 (1989).

26 See, e.g., Neron v. Tierney, 841 F.2d 1197 (1st Cir.), cert. de-

nied, 109 S. Ct. 90 (1988); Baca v. Sullivan, 821 F.2d 1480 (10th

Cir. 1987).

ilies

munications?’ in circumstances involving both preverdict?®

and postverdict?® hearings. Yet, in Phillips all this Court

had before it was an issue of juror bias in the context

of a habeas proceeding where the hearing had been con-

ducted in state court so that Rule 606(b) was not ap-

plicable. As a result, seven years later, clarification of

the rule in Phillips is now required, as well as guidance

regarding the appropriate presumptions and burdens of

proof in federal postverdict judicial inquiries involving in-

cidents of potential juror misconduct. This case affords

the Court with the opportunity to provide the requisite

guidance and clarification.

CONCLUSION

For the foregoing reasons, this Petition For Writ Of

Certiorari should be granted.

Dated: August 25, 1989

Respectfully submitted,

DonaLD E. EGAN

Lee ANN WartTSON

Counsel of Record

CyntTH1A Puotos ABBOTT

KaATTEN Mucuin & Zavis

525 West Monroe Street

Chicago, Illinois 60606

(312) 902-5200

Attorneys for Petitioners

27 See, e.g., United States v. Zelinka, 862 F.2d 92 (6th Cir. 1988);

United States v. Ramos, 861 F.2d 461 (6th Cir. 1988), cert. denied,

109 S. Ct. 1853 (1989).

28 See, e.g., United States v. Crane, No. 86-3917, slip op. (6th Cir.

hog an United States v. Williams, 822 F.2d 1174 (D.C.

ir. 1987).

29 See, e.g., United States v. Kabir, Nos. 87-3850/3851, slip op.

(6th Cir. Dec. 28, 1988), cert. denied, 109 S. Ct. 1325 (1989).

™ ae =i i aa caps gical 7 suite . ey ‘ a e

ae rh ae Oe bras o* es ate Sot ‘ rae — at del es de a Tae, Se

a8, : —" are eg ee Pe = sin ae al ie) } =a cs Ft, ge

: - : " J Ae "

=

=

a Se

~.

-

Se ae ee ia bs 8 ‘ * ath P ” a

4 Pat ato. —— va — 2 aims aie — ee aa el See an >

= = > oe lh ats — aa in in at A at

App. 1

[Filed April 26, 1989]

Nos. 87-5990/6002

88-5279/5314

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES SAYLOR and KAAREN SAYLOR

d/b/a UDDER NONSENSE DAIRY,

Defendants, Counterplaintiffs-

Third-Party Plaintiffs-Appellees,

v.

A. 0. SMITH HARVESTORE PRODUCTS, INC.,

(87-5990/88-5279); HERMITAGE HARVESTORE SYSTEMS,

INC., and CHUCK DOWDY (87-6002/88-5314),

Third-Party Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

Sixth Circuit Rule 24 limits citation to specific situations.

Please see Rule 24 before citing in a proceeding in a court

in the Sixth Circuit. If cited, a copy must be served on other

parties and the Court.

This notice is to be prominently displayed if this decision

is reproduced.

BEFORE: KEITH, JONES and GUY, Circuit Judges.

PER CURIAM. The third-party defendants appeal the

jury verdict for the third-party plaintiffs, including the

pre-judgment interest award, in this diversity action for

strict product liability and fraudulent misrepresentation.

App. 2

For the reasons that follow, we affirm the district court’s

judgment as to the liability and compensatory damages

issues. However, because the record reflects that the pre-

judgment interest award was improperly calculated, we

find it necessary to order a remittitur of a portion of that

award.

I.

At all times relevant to this lawsuit, the third-party plain-

tiffs-appellees, James and Kaaren Saylor (“the Saylors’’)

were the owners and operators of the “Udder Nonsense

Dairy” in New Bedford County, Tennessee. Third-party

defendant-appellant, A.O. Smith Harvestore Products, Inc.

(“AOSHPI’’), is a New York corporation engaged in the

design and manufacture of farm feed storage systems. Third-

party defendant-appellant Hermitage Harvestore Products,

Inc. (““Hermitage’’) is a Tennessee corporation engaged

in the business of selling and distributing Harvestore sys-

tems designed and manufactured by AOSHPI. Third-party

defendant-appellant Chuck Dowdy (““Dowdy’’) is a sales

agent for Hermitage.

In January or February of 1980, the Saylors were ap-

proached by Dowdy about purchasing Harvestore feed

storage structures and related equipment manufactured

by AOSHPI for use on their dairy farm. The Harvestore

system was represented through AOSHPI literature and

by Dowdy as an “oxygen limiting’”’ system which was de-

signed to keep stored feed virtually airtight, thereby pre-

venting spoilage and yielding better feed and increased

milk production. Dowdy showed the Saylors an AOSHPI

film and a book published by AOSHPI, both of which

touted the oxygen limiting capabilities of Harvestore struc-

tures. The promotional material defined “oxygen limiting”

App. 3

as “{a] feed storage system in which ensiled feeds are pro-

tected from the access of oxygen.”

In March of 1980, the Saylors signed an agreement with

Hermitage to obtain the Harvestore system. In May of

1980, the Saylors entered a long-term lease with AgriStor

Leasing Company (“AgriStor’’), which financed the arrange-

ment. The Harvestore structures were in place and oper-

ating on the Saylors’ farm by July of 1980. After the first

month, however, James Saylor began noticing problems

in the dairy herd, including decreased -milk production,

a lack of energy in the cows, and swelling in their joints.

During 1981 several veterinarians came to the Saylors’

farm and examined the dairy herd; however, none of them

could determine the source of the problem. Although the

Saylors stopped using the Harvestore structures in Febru-

ary of 1982, the health of the herd continued to decline,

resulting in lower milk productivity and the death of a num-

ber of cows. Eventually, the Saylors were forced to slaughter

the dairy herd and close down their farm. When they de-

faulted on their lease payments, AgriStor repossessed the

equipment.

On October 28, 1983, AgriStor filed suit against the Say-

lors in the United States District Court for the Eastern

District of Tennessee, seeking the balance due under the

lease. The Saylors answered and filed a third-party com-

plaint against Dowdy, Hermitage and AOSHPI, seeking

damages for manufacturing a defective product, and for

false and fraudulent misrepresentations about the product.

At the beginning of the trial, the Saylors confessed judg-

ment on the AgriStor claim, and the district court granted

summary judgment to AgriStor for the remaining pay-

ments under the lease. The case was tried to a jury on

the Saylors’ claims of a defective product and fraudulent

App. 4

misrepresentation. The jury found the defendants jointly

and severally liable to the Saylors, and awarded compen-

satory and punitive damages in the amount of $1 million.

The defendants appealed the judgment to this court,

arguing that the district court had erred in refusing to

give a jury instruction on the statute of limitations, and

in refusing to direct a verdict in defendants’ favor on the

fraudulent misrepresentation claims. Regarding the latter

issue, the defendants argued that certain language in the

lease agreement expressly disclaimed that the Saylors had

relied upon any representations made by the defendants

in purchasing the Harvestore equipment. The defendants

contended that this contractual language precluded the

Saylors from proving reliance, thereby foreclosing their

fraudulent misrepresentation claims.

This court reversed the district court’s judgment and

remanded, agreeing with the defendants that the jury should

have been instructed on the statute of limitations issue.

Agristor Leasing v. James Saylor, 803 F.2d 1401, 1405-06

(6th Cir. 1986) (“Saylor I’). However, we rejected the de-

fendants’ assertions regarding the force of the “‘disclaimer-

of-reliance’”’ language in the contract. Noting a split of au-

thority in Tennessee as to whether such disclaimers were

effective to shield a defendant from liability for fraud, this

court deferred to the district judge’s interpretation of

state law and concluded that “the district court did not

err in denying summary judgment and a directed verdict

on the basis of the disclaimers of reliance.” Jd. at 1407.

On remand, the defendants filed a motion in limine

seeking to prevent any reference to the prior proceedings

in the presence of the jury. This motion was granted. In

addition, the defendants sought to preclude the Saylors

from presenting evidence regarding pre-judgment interest

App. 5

damages. The district court ultimately granted this mo-

tion, stating that if the jury awarded compensatory dam-

ages, the court would decide whether pre-judgment in-

terest should be awarded and in what amount.

The second trial commenced on June 8, 1987. In the sec-

ond week of trial, during a brief recess in the proceedings,

one of the jurors was approached by an old acquaintance

who was a spectator at the trial. The spectator, who was

a blood relative of one of the Saylcrs’ expert witnesses,

greeted the juror in the restroom and told the juror that

she had “sat through this whole case two years ago.” The

juror promptly told the spectator that she was not allowed

to taik about the case and walked out of the restroom.

The juror then informed the court marshal about what

had taken place, and the marshal informed the court and

counsel for the parties. Counsel for the defendants ques-

tioned the spectator about the incident, but did not ask

that the juror be replaced, or request any other relief at

that time. According to the defendants, they did not learn

of the spectator’s relation to the Saylors’ witness until

the trial had concluded.

At the close of the evidence, the defendants moved for

a directed verdict on the fraudulent misrepresentation

claims, again asserting that the disclaimer language in the

lease contract precluded the Saylors from recovering on

those claims. This motion was denied. The defendants also

requested that the jury be given a special verdict form,

citing the fact that multiple claims were being asserted

against multiple defendants. The district court also denied

this request.

Despite his pre-trial evidentiary ruling concerning pre-

judgment interest, and despite reaffirming that ruling dur-

ing trial, the district judge decided at the close of the

-

App. 6

proofs to submit this issue to the jury. The district judge

therefore instructed the jury, in accordance with Tennes-

see law, that they possessed the discretion whether to

award pre-judgment interest, and that they could award

such interest on the amount of compensatory damages “‘at

any rate of interest [they found] to be appropriate up to

but not greater than 10 percent per annum.” J. App. at

484-85.

On June 24, 1987, the jury returned a general liabil-

ity verdict against all defendants, awarding the Saylors

$875,000.00 in compensatory damages and $490,000.00 in

pre-judgment interest. The latter figure represented in-

terest at the rate of 8 percent per year on $875,000.00

over seven years.

The defendants filed various post-trial motions, including

a motion for judgment notwithstanding the verdict and

a motion for a remittitur of the damages award. In addi-_

tion, the defendants filed a motion seeking to interview |

the jurors concerning the extraneous juror contact, as well

as a motion for a judicial inquiry into this matter. While

all of these motions were denied initially, the district

judge later decided to conduct an inquiry into the circum-

stances surrounding the extraneous juror contact.

On January 21, 1988, the district judge conducted an

inquiry at which each of the jurors was examined indi-

vidually. All of the witnesses to the incident, including

the juror, the spectator, and an employee of the court

who witnessed the contact, either testified or submitted

an affidavit. All stated that the juror promptly terminated

the conversation upon hearing that the spectator had at-

tended the prior trial. Moreover, none of the witnesses

to the incident. stated that the juror was informed of the

outcome of the prior trial. On questioning by the trial

App. 7

judge, each of the jurors stated under oath that her vote

was based solely on the evidence presented at trial and

the instructions provided by the court.

After the hearing, the defendants filed a motion for a

new trial pursuant to Rule 60(b) of the Federal Rules of

Civil Procedure. On February 8, 1988, the district judge

denied that motion, concluding that “there was absolute-

ly no juror misconduct, that any contact which occurred

was harmless, and that all jurors exhibited exemplary be-

havior at all times.” J. App. at 55.

Il.

In their first argument, the defendants assert that the

district court erred in denying their motion for a directed

verdict on the fraudulent misrepresentation claims. They

maintain that the disclaimer-of-reliance language in the

lease agreement forecloses recovery on these claims be-

cause reliance is an essential element of fraud. The de-

fendants also attempt to distinguish between contractual

provisions purporting to disclaim liability and those

purporting to disclaim reliance, asserting that Tennessee

law disfavors only the former. Finally, the defendants con-

tend that our decision in Saylor J does not squarely ad-

dress the effect of reliance disclaimers under Tennessee

law, and that the law-of-the case doctrine therefore is not

applicable.

The pertinent terms in the lease contract provide as

follows:

* * *

10. The Seller hereunder is an independent con-

tractor none of whose representations are

binding on the Manufacturer.

App. 8

—

* * *

14. Preamble — Buyer understands the condi-

tions of the use of the products and is not

relying on the skill or judgment of the Manu-

facturer or Seller in selecting them because

Buyer acknowledges that farming and live-

. stock feeding results are very much the

product of individual effort combined with

various climatic, soil, water, growing and

feeding conditions which are beyond the con-

trol of the Manufacturer and Seller. Buyer

recognizes that any advertisements, bro-

chures, and other written statements which

he may have read, including any farm profit

plan which may have been shown to him,

as well as any oral statement which may

have been made to him, concerning the po-

tential of the Harvestore and or Slurrystore

units and allied machinery and equipment,

are not guarantees and he has not relied

upon them as such because the products will

be under Buyer’s exclusive management and

control ....

* * *

ACKNOWLEDGEMENT AND RELIANCE

I HAVE READ AND UNDERSTOOD THE

TERMS AND CONDITIONS OF THIS PUR-

CHASE ORDER INCLUDING THE WARRAN-

TIES. DISCLAIMERS AND TERMS AND CON-

DITIONS HEREIN GIVEN TO ME, EITHER BY

THE MANUFACTURER OR THE SELLER. I

RELY ON NO OTHER PROMISES OR CONDI-

TIONS AND REGARD THAT AS REASONABLE

BECAUSE THESE ARE FULLY ACCEPTABLE

TO ME.

J. App. at 824a (emphasis added).

App. 9

The defendants assert that in Saylor I, we do not

squarely address the effect of such a reliance disclaimer

under Tennessee law. However, the contractual provisions

at issue in Saylor I are the identical provisions involved

in this case, and the Saylor I court held that “the dis-

trict court did not err in denying summary judgment and

a directed verdict on the basis of the disclaimers of re-

liance.” 803 F.2d at 1407 (emphasis added). Moreover, the

same issue was presented to this court in Agristor Leas-

ing v. William Dayon Taylor, 865 F.2d 1267 (6th Cir.

1989), wherein the court stated as follows:

AOSHPI argues [that] the district court erred in

failing to give effect to its “disclaimer of reli-

ance.” AOSHPI attempts to distinguish its “dis-

claimer of reliance”’ from the “disclaimer of lia-

bility” in the Agristor lease in Saylor [I]. We

find the claimed distinctions to be ineffective in

light of Saylor [I] and Tennessee law, which

gives no effect to disclaimers in the presence of

fraud or negligent misrepresentations.

Slip op. at 10. Gontrary to the defendants’ assertions, the

Saylor I court expressly held that the contractual dis-

claimer involved in this case was not effective to shield

the defendants from liability for fraudulent misrepresenta-

tion. Moreover, We have since held in the Taylor deci-

sion that the defendants’ claimed distinction between lia-

bility disclaimers and reliance disclaimers is not effective.

Given the decisions in Saylor I and Taylor, we are bound

to reject the defendants’ arguments concerning this issue.

III.

The defendants next contend that the district court erred

in denying their motion for a new trial, which was filed

eS

App. 10

after the judicial inquiry into the circumstances and ef-

fect of the outside juror contact. The defendants assert

that the juror’s contact with the spectator was presump-

tively prejudicial to them, and that a new trial was re-

quired because the plaintiffs did not rebut that presump-

tion of prejudice.

The defendants filed their motion for a new trial pur-

suant to Rule 60(b) of the Federal Rules of Civil Pro-

cedure. Rule 60(b) states, in pertinent part, as follows:

On motion and upon such terms as are just, the

court may relieve a P ow or a party’s legal rep-

resentative from a final judgment, order or pro-

ceeding for the following reasons: .... (2) new-

ly discovered evidence which by due diligence

could not have been discovered in time to move

for a new trial under Rule 59(b) .... (6) any

other reason justifying relief from the operation

of the judgment.

The decision whether to grant a Rule 60(b) motion is com-

mitted to the sound discretion of the trial court, and the

granting or denial of such a motion may not be reversed

unless the trial court abuses its discretion. In Re Salem

Mortgage Co., 791 F.2d 456, 459 (6th Cir. 1986).

The defendants rely on Remmer v. United States, 347

U.S. 227 (1954), for the proposition that unauthorized con-

tacts with jurors are presumptively prejudicial, and that

the burden is on the party seeking to preserve the judg-

ment to show lack of prejudice. In Remmer, the Supreme

Court stated that:

In a criminal case, any private communication,

contact, or tampering, directly or indirectly, with

a juror during a trial about the matter pending

before the jury is, for obvious reasons, deemed

App. 11

presumptively prejudicial, if not made in pur-

suance of known rules of the court and directions

of the court made during the trial, with full

knowledge of the parties. The presumption is not

conclusive, but the burden rests heavily upon the

Government to establish, after notice to and

hearing of the defendant, that such contact with

the juror was harmless to the defendant.

347 U.S. at 451. While Remmer was a criminal case, the

doctrine of “presumed prejudice” also has been applied

in the civil context. See, e.g., Krause v. Rhodes, 570 F.2d

563, 568 (6th Cir. 1977), cert. denied, 485 U.S. 924 (1978);

Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984), cert.

denied, 470 U.S. 1084 (1985). Therefore, if Remmer were

controlling law, the burden would have been on the Say-

lors to establish lack of prejudice from the unauthorized

contact. However, in United States v. Pennell, 737 F.2d

521 (6th Cir. 1984), cert. denied, 469 U.S. 1158 (1985), this

court interpreted a more recent Supreme Court decision,

Smith v. Phillips, 455 U.S. 209 (1982), as superseding the

Remmer rule. Although Phillips did not expressly over-

rule Remmer, the Phillips Court stated that the “rem-

edy for allegations of juror partiality is a hearing in which

the defendant has the opportunity to prove bias.” 455 US.

at 215 (emphasis added). Interpreting this language in

Pennell, we stated:

Thus, the Court held that Remmer does not gov-

ern the question of the burden of proof where

potential jury partiality is alleged. Instead,

Remmer only controls the question of how the

district court should proceed where such allega-

tions are made .... In light of Phillips, the

burden of proof rests upon a defendant to demon-

strate that unauthorized communications with

jurors resulted in actual juror partiality. Prej-

udice is not to be presumed.

App. 12

737 F.2d at 532 (emphasis added; footnote omitted). Ac-

cord United States v. Zelinka, 862 F.2d 92, 95 (6th Cir.

1988) (noting that Pennell provides the controlling rule

in this Circuit).

The defendants in this case argue that Phillips and Pen-

nell apply only to pre-verdict hearings for juror prejudice,

and that Remmer continues to govern post-verdict hear-

ings for juror prejudice. While admitting that nothing in

Pennell so limits its holding, the defendants assert that

applying Pennell to post-verdict hearings would violate

Rule 606(b) of the Federal Rules of Evidence. Rule 606(b)

provides, in pertinent part, as follows:

Upon an inquiry into the validity of a verdict

or indictment, a juror may not testify as to any

matter or statement occurring during the course

of the jury’s deliberations or to the effect of

anything upon that or any other juror’s mind or

emotions as influencing the juror to assent to or

dissent from the verdict or indictment or con-

cerning the juror’s mental processes in connec-

tion therewith, except that a juror may testify

on the question whether extraneous prejudicial

information was improperly brought to the

jury’s attention or whether any outside influence

was improperly brought to bear upon any juror.

(emphasis added).

Given the above-emphasized language, the defendants’

interpretation of Pennell must fail. Presumably, under the

Remmer rule, the party seeking to preserve the judgment

would be allowed to demonstrate the adsence of prejudice

by questioning the jurors, post-verdict, under the author-

ity of the Rule 606(b) exception. However, the defendants

assert that the post-verdict questioning of jurors to estab-

lish the existence of prejudice under the Phillips/Pennell

rule would violate Rule 606(b). Plainly, if post-verdict

App. 13

questioning of jurors was permissible when the Remmer

presumption was applicable, such post-verdict question-

ing is permissible under Phillips and Penneli. The inter-

pretation and application of Rule 606(b) does not turn upon

who has the burden -of proof.

Because the holding in Pennell applies equally well to

pre-verdict and post-verdict hearings for juror prejudice,

the defendants in this case bore the burden of proving

that the extraneous juror contact resulted in actual prej-

udice. Since the defendants failed to carry that burden,

the district court did not abuse its discretion in denying

their motion for a new trial on this ground.

IV.

The defendants’ final argument concerns the manner in

which the district court submitted the pre-judgment in-

terest issue to the jury. As stated earlier, the district

judge made a pre-trial ruling that the parties could not

introduce evidence on this issue because the court, not

the jury, would determine whether such damages should

be awarded and in what amount. The district court reaf-

firmed that ruling during trial. Nevertheless, at the close

of the evidence, the court decided to submit the issue to

the jury. The jury subsequently awarded $490,000.00 of pre-

judgment interest on compensatory damages of $875,000.00.

The jury applied an interest rate of eight per year [sic]

to the total compensatory damage award from July of

1980, when the Saylors purchased the Harvestore equip-

ment, to June of 1987, the date of the jury’s verdict. The

pre-judgment interest award thus represents $70,000 per

year for seven years.

The defendants contend that the pre-judgment interest

award is improper because the Saylors did not suffer all

App. 14

\

of their damages as soon as they leased the Harvestore

equipment. They argue that the Saylors suffered gradual

losses from 1980 until 1985, when they slaughtered the

herd and closed down the farm. The defendants further

assert that the jury’s error in this regard requires a new

trial, rather than a remittitur, because the absence of any

record evidence on this issue precludes a mathematical

computation of the proper amount of pre-judgment in-

terest. Moreover, the defendants assert that the district

court’s refusal to submit special interrogatories to the jury

forecloses a remittitur because the jury’s verdict does not

indicate what portion of the compensatory damage award

is for property losses (arising from the strict liability

claims) and what portion is for economic losses (arising

from the fraud claims). In the defendants’ view, this fact

precludes this court from determining when the vari-

ous losses were suffered, thereby preventing an accurate

determination of the. proper amount of pre-judgment in-

terest.

Tennessee Code Annotated § 47-14-123 (1980) states:

Pre-judgment interest, i.e., interest as an ele-

ment of, or in the nature of, damages, as per-

mitted by the statutory and common laws of the

states as of April 1, 1979 may be awarded by

courts or juries in accordance with the principles

of equity at any rate not in excess of a maxi-

mum effective rate of ten percent (10%) per

(emphasis added). Under this provision, courts and juries

possess wide discretion in the awarding of pre-judgment

interest, and their award should not be disturbed “ ‘unless

the record discloses a manifest and palpable abuse of

discretion.’ ”’ Schoen v. J.C. Bradford & Co., 667 S.W.2d

97, 101 (Tenn. App. 1984) (quoting Engert v. Peerless In-

surance Co., 382 S.W.2d 541, 550 (Tenn. App. 1964)). This

td

Te

App. 15

court has held recently that “[wJhere a jury grants a par-

ticular damage award and the district court refuses to dis-

turb that finding, an appellate court should be certain in-

deed that the award is contrary to all reason before it

orders a remittitur or a.new trial.” In Re Lewis, 845 F.2d

624, 635 (6th Cir. 1988).

Despite this deferential standard of review, we conclude

that the jury abused its discretion in calculating the pre-

judgment interest award. Under Tennessee law, “(plre-

judgment interest on a property damage award accrues

from the date that the defendant’s tortious conduct ef-

- fectively operates to destroy or diminish either the resale

value, the rental value, or even the personal use and en-

joyment of the plaintiff's property.” Sterling v. Velsicol

Chemical Corp., 855 F.2d 1188, 1213 (6th: Cir. 1988) (citing

cases). Likewise, pre-judgment interest on economic dam-

ages (e.g., lost profits) is “calculated from some specific

date or dates as found by the court that precede the date

of the judgment, and is computed from that date or dates

down to the date of the judgment at the prejudgment rate

....” American Buildings Co. v. DBH Attachments, Inc.,

676 S.W.2d 558, 566 (Tenn. App. 1984) (emphasis added).

In the instant case, the jury awarded pre-judgment inter-

est on the Saylors’ total compensatory damage award of

$875,000.00 from the time that they leased the Harvestore

equipment in July 1980, to the date of the jury verdict in

June 1987. This award constitutes a “manifest and palpa-

ble abuse of discretion” since it is clear from the record

that the Saylors did not incur all of their damages in 1980,

but instead suffered gradual losses from 1980 until 1985.

Therefore, the jury clearly erred in its calculation of pre-

judgment interest.

The defendants argue that the jury’s error requires a

new trial because, as they assert, there is no principled

App. 16

manner in which to calculate a remittitur on the present

state of the record. We disagree. Although the general

verdict in this case does not allow for a precise calcula-

tion on our part of the proper amount of pre-judgment in-

terest, the record permits us to fashion a minimum award.

Since it is clear from the record that the Saylors incurred

all of their damages (both property losses and economic

losses) by July 1985, we believe that the Saylors are en-

titled to at least two of .the seven years of pre-judgment

interest which the jury awarded. Therefore, applying the

jury’s chosen interest rate of eight percent per year to

the compensatory damage award of $875,000.00, we con.

clude that a pre-judgment interest award of $140,000.00

is permissible on the record presented. Accordingly, we

believe that a remittitur of $350,000.00 of the jury’s pre-

judgment interest award is required.

V.

For the reasons set forth above, the order of the dis-

trict court denying the defendants’ motion for a new trial

is REVERSED to the extent that it failed to direct a

remittitur of a portion of the pre-judgment interest award.

Accordingly, we REMAND this case to the district court

with instructions to grant a new trial limited to the dam-

ages issue, unless the plaintiffs file in the district court,

within thirty days of the filing of this opinion, a motion

requesting a remittitur of $350,000.00 of the pre-judgment

interest award.

-

App. 17

[Filed July 10, 1989]

No. 87-5990/6002

88-5279/5314

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AGRISTOR LEASING, A WISCONSIN PARTNERSHIP,

Plaintiff,

JAMES SAYLOR AND KAAREN SAYLOR d/b/a

UDDER NONSENSE DAIRY,

Defendants, Counter Plaintiffs,

Third Party Plaintiffs-Appellees,

| -

A.O. SMITH HARVESTORE PRODUCTS,

Third Party Defendants-Appellants.

ORDER

BEFORE: KEITH, JONES and GUY, Circuit Judges.

The Court having received a petition for rehearing en

bance, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this Court, and no judge of this Court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the original

hearing panel.

App. 18

The panel has further reviewed the petition for rehear-

ing and concludes that the issues raised in the petition

were fully considered upon the original submission and

decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ LEONARD GREEN

Leonard Green, Clerk ~

~ App. 19

[Filed February 8, 1988]

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

WINCHESTER DIVISION

No. CIV-4-83-94

JAMES SAYLOR and wife, KAAREN SAYLOR,

individually and d/b/a ““‘UDDER NONSENSE DAIRY”

V.

A. 0. SMITH HARVESTORE PRODUCTS, INC.,

HERMITAGE HARVESTORE SYSTEMS, INC.,

and CHUCK DOWDY

ORDER

The defendants in this case contended that an outside

communication was made to a juror and that a juror was

previously acquainted with a witness in this case. In order

to investigate these allegations, this Court held a full

judiciary inquiry on January 21, 1988. After conducting

the inquiry, this Court finds that there was absolutely no

juror misconduct, that any contact which occurred was

harmless, and that all jurors exhibited exemplary behavior

at all times. Accordingly, the defendant’s motion for a new

trial is hereby DENIED.

ENTER:

/s/ THomMAS G. HULL

Thomas G. Hull

United States District Court

Juror

Bell?

Lawwell

Posey

Davidson

Bradford

Scarbrough

Decker

App. 20

Summary Chart Of Judicial Inquiry Testimony

Knowledge Knowledge

of Contact Substance of Other Contact of Contact

During Trial Communication Jurors Told Reported! After Trial

Yes First Trial No To Marshal =

(JA 519) (JA 520) (JA 522) (JA 519, 521)

Yes Mr. Saylor Yes — _

(JA 512) (JA 514) (JA 512)

Yes Cannot Recall Yes Not Certain _

(JA 525) (JA 527) (JA 527) (JA 525)

No _ — — Yes, Mrs. Bell

(JA 531-32) told all jurors

on day of

judicial inquiry

(JA 534)

No — _ — No

(JA 535) (JA 535)

No ~ _ _ No

(JA 536-37) (JA 537)

Yes Cannot Recall Yes To Clerk -

(JA 538) (JA 539) (JA 539) (JA 539)

1 One of Respondents’ counsel stated that his partner initially reported the

incident to the court. (JA 507).

2 Bell was the juror who had the extraneous communication with the interested

spectator.

Seat i

MAR