Opinion
Case No. 01-255-CIV-GRAHAM
May 22, 2002
ORDER
THIS CAUSE case before the Court upon Plaintiff's Motion for New Trial Based on Juror Misconduct and Improper and Prejudicial Closing Argument.
THE COURT has considered the motion, the pertinent portions of the record and is otherwise fully advised in the premises.
BACKGROUND
Plaintiff Elena Arango ("Plaintiff") filed this action against her former employer Defendant Ortho-McNeil Pharmaceutical, Inc. ("Defendant") alleging violations of the Pregnancy Discrimination Amendment to Title VII and the Florida Civil Rights Act of 1992 ("FORA"). Plaintiff's claims arose from her employment as a pharmaceutical sales representative with Ortho-McNeil. The cause was before the Court for trial by jury on March 12-19, 2002. On March 19, 2002, the jury rendered its verdict, finding for Defendant.
On April 2, 2002, Plaintiff filed her motion for new trial, alleging two grounds: 1) juror misconduct and 2) Defense counsel's "improper" comments during closing argument.
Juror Misconduct
Plaintiff's motion for new trial with respect to juror misconduct is based entirely on the affidavit of Rosie DeRosa ("DeRosa"), Plaintiff's friend and a witness in the case. According to DeRosa' s affidavit, on Friday, March 15, 2002, DeRosa received a call from her friend Christine Martinez ("Martinez) Martinez is a pharmaceutical representative for Eli Lily and Company ("Lily"), a competitor of Defendantu Martinez told DeRosa that she knew one of the jurors in Plaintiff's case, Johnny Bruno ("Bruno"). DeRosa claims that Bruno told Martinez that he was a juror in a pregnancy discrimination case against a pharmaceutical company and to "ten cuidado que no te cojan (be careful you don't get busted) because this girl got busted" for not working. Martinez also told Bruno about Lily's procedures with respect to sampling.
Although the case was still in trial, DeRosa did not inform Plaintiff's counsel about her March 15, 2002 conversation with Martinez. On March 20, 2002, one day after the jury returned its verdict, DeRosa once again spoke with Martinez. Martinez told DeRosa that Bruno called her that day and told her that he felt bad about the jury's verdict, but that he felt Plaintiff had not worked on the day in question because of the signature cards and the fact that he had personal knowledge about how pharmaceutical representatives really work. Bruno also told Martinez that he submitted a question requesting verification of Plaintiff's F151 cards for the work week prior to the day in question and request a change on the verdict form. DeRosa did not tell Plaintiff's counsel about her conversations with Martinez until after their second conversation.
In her motion for new trial, Plaintiff argues that the jury's verdict was tainted by the extrinsic evidence Bruno presented to the jury. Defendant has responded and argues that because Plaintiff's allegations of jury contamination are unsubstantiated, based on mere speculation and do not relate to the material issues in this case, Plaintiff has failed to make an adequate showing of extrinsic influence to overcome the presumption of jury impartiality.
Closing Argument
Plaintiff also argues in her motion for new trial that defense counsel's comments regarding Plaintiff's federal tax forms were improper and prejudicial because the Court had previously deemed the tax forms inadmissible. Defendant has responded and argues that because defense counsel referred to Plaintiff's tax form only on the issue on amounts earned, a subject which the Court permitted questioning, there is no impropriety and Plaintiff is not entitled to a new trial on that basis.
DISCUSSION
I. Extrinsic Evidence
"When jurors consider extrinsic evidence, [relief must be granted] if the evidence poses a reasonable possibility of prejudice to the defendant. Prejudice is not presumed[,] and [the movant) has the burden of demonstrating prejudice by a preponderance of credible evidence."United States v. Rowe, 906 F.2d 654, 656 (11th Cir. 1990) (citations omitted). A new trial is only warranted when the moving party makes an adequate showing that extrinsic evidence came before the jury and the extrinsic evidence poses a reasonable probability of prejudice. See United States v. Barshov, 733 F.2d 842, 851 (11th Cir. 1984). Indeed, "there is no per se rule requiring inquiry in every instance . . . [and] there must be something more than mere speculation" to overcome the presumption of jury impartiality. Id.
A. Colorable Showing
In support of her assertion that a new trial is warranted due to the jury's consideration of extrinsic evidence, Plaintiff relies exclusively on the affidavit of her friend and witness, DeRosa. DeRosa's affidavit details Martinez's conversations with Juror Bruno, conversations to which DeRosa was not a party. Therefore, before the Court even gets to the "truth of the matters asserted" in DeRosa's affidavit, it must rely on double hearsay. Plaintiff could have made a more credible showing by obtaining the affidavit of Martinez — eliminating one layer of unreliable hearsay — but instead chose to rely solely on DeRosa's affidavit. The Court does not think it would be appropriate to delve through two layers of unreliable hearsay to ascertain whether extrinsic evidence was before the jurors. This "double hearsay" is too unreliable to disturb the jury's verdict. See Hertzog v. Castle Rock Entertainment, 193 F.3d 1241, 125 (11th Cir. 1999) (finding double hearsay testimony unreliable); see also Barshov, 733 F.2d at 851 ("there must be something more than mere speculation" to overcome the presumption of jury impartiality.) Accordingly, the motion for new trial on the basis of juror misconduct must be denied.
B. No Reasonable Probability of Prejudice
Even if the Court had found DeRosa's affidavit reliable and determined that the communications between Juror Burno and Martinez occurred exactly as DeRosa reported, the Court finds that it is not reasonably probable that the extrinsic evidence was prejudicial to Plaintiff. "The factual determination of whether consideration of extrinsic evidence caused [a party] prejudice is committed to the trial court's `large discretion.'" Bank Atlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1471 (11th Cir. 1992). The Court must look at "the nature of the information learned by the jurors . . ." in determining whether a reasonable probability of prejudice exists. United States v. Rowe, 906 F.2d 654, 655 (11th Cir. 1990)
Plaintiff claims that Juror Bruno conducted a personal investigation into how other companies' — namely Lily — sales representatives sample and shared the results of his investigation with the jury. The Court finds that even if the jury heard that Lily sales representatives sample daily, this information has no bearing on the issues the jury was asked to decide. The jury determined that Plaintiff's pregnancy was not a substantial motivating factor that prompted Defendant to terminate her. Indeed, because of that decision, it never reached question the question of whether Plaintiff would have been discharged from her employment for other reasons. The jury's verdict makes it clear that the alleged "extrinsic evidence" had no bearing on the case. The jury simply found that the Defendant was not motivated to terminate Plaintiff because of her pregnancy. Defendant's motivation is entirely unrelated to Lily's sampling procedures. Without some relationship between the extrinsic evidence and the jury's verdict, there can be no reasonable probability of prejudice. Said plainly, even if the jury did hear the extrinsic evidence, the result, as evidenced by the jury's verdict, would have been the same.
On the verdict form, the jury had to answer either yes or no to the following questions: 1) Plaintiff was discharged from her employment; 2) Plaintiff's pregnancy was a substantial or motivating factor that prompted the Defendant to take that action? and 3) if questions one and two were answered as yes, whether Plaintiff would have been discharged from employment for other reasons even in the absence of consideration Of the Plaintiff's pregnancy?
Plaintiff also points to the jury's two questions to the Court during deliberations to bolster her argument that the jury considered extrinsic evidence that posed a reasonable probability of prejudice. The questions presented to the Court were as follows:
1) Is there any evidence/testimony to support [Plaintiff's] the jury's question to the court, during the week of January 3-7, 2000? Sample F151?
2) Can question #2 and 3 order be changed so that question #3 is now #2 on the verdict form?
The Court responded to question one by refusing to provide the jury with the requested information and instructing the jury to rely on its collective memory regarding the evidence produced at trial. The Court responded to question two by telling the jury that the order of questions on the verdict form could not be switched. These curative instructions clearly remedied any possible confusion over what the jury could and could not consider. Accordingly, even if the jury heard extrinsic evidence, the Court reiterated to the jury, before a verdict was reached, that it could not consider this information. The Court finds that its instructions prevented any possible prejudice that could have arisen due to the alleged extrinsic evidence.
II. Defense Counsel's Closing Argument
Plaintiff also contends that defense counsel stated in his closing argument that Plaintiff "lied to the IRS," and that this statement warrants a new trial. Upon review of the transcript of defense counsel's closing argument, the Court finds that defense counsel never stated that Plaintiff "lied to the IRS." In addition, the Court had already deemed inquiry into Plaintiff's income proper. During Plaintiff's direct examination of Plaintiff, Plaintiff's — counsel questioned her about her income for a period that overlapped the taxable year. Consequently, during Defendant's cross examination of Plaintiff, Defense counsel referred to Plaintiff's 1999 tax filings and began to inquire into her listed exemptions for that year. Upon Plaintiff's objection, the Court ruled that defense counsel could not inquire into Plaintiff's exemptions, but did allow defense counsel to use the numbers listed in the tax forms to cross examine Plaintiff on her income in 1999. As a result, defense counsel was entitled to raise Plaintiff' s purportedly inconsistent statements regarding her income in his closing argument. Therefore, defense counsel's statement was not improper and does not warrant a new trial.
CONCLUSION
Based on the foregoing, it is,
ORDERED AND ADJUDGED that Plaintiff's Motion for New Trial is DENIED. DONE AND ORDERED in Chambers at Miami, Florida, this 22nd of May 2002.
FINAL JUDGMENT
This cause was before this Court for trial by jury on March 12-19, 2002. Upon the jury's verdict rendered on March 19, 2002, and entered on March 25, 2002, and pursuant to Fed.R.Civ.P. 58, this Court hereby enters Final Judgment in favor of Defendant Ortho-McNeil Pharmaceutical, Inc., on all claims.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Final Judgment is entered in favor of Defendant Ortho-McNeil Pharmaceutical, Inc., on all claims raised in Plaintiff Elena Arango's Amended Complaint. It is further,
ORDERED AND ADJUDGED that this Court continues to retain jurisdiction over the taxation of costs and expenses recoverable as a matter of law. The Bill of Costs must be submitted to the Court by June 7, 2002.
DONE AND ORDERED in Chambers at Miami, Florida, this 22nd day of May 2002.