Evans et al v. Alfa Laval Inc. et al

Filing 356

REPORT AND RECOMMENDATIONS re 350 Motion for New Trial, or in the Alternative, Motion for Hearing and Permission to Interview Jurors filed by Icom Henry Evans, Johanna Elaine Evans. Please note that when filing Objections pursuant to Federal R ule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. (*Objections to R&R due by 7/8/2020). Signed by Judge Jennifer L. Hall on 6/24/2020. (ceg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOHANNA ELAINE EVANS,
Individually and as Personal Representative
of the Estate of ICOM HENRY EVANS,
Deceased, and on Behalf of All Wrongful
Death Beneficiaries,
Plaintiff,
v.
JOHN CRANE, INC.,
Defendant.

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C.A. No. 15-681-MN

REPORT AND RECOMMENDATION
The trial in this case concluded with a jury verdict for Defendant John Crane, Inc. After
the jury was discharged, one of the jurors emailed the trial judge about the conduct of another
juror. As a result of that email, Plaintiff Johanna Evans has now moved for new trial or, in the
alternative, an evidentiary hearing or permission to interview the jurors. (D.I. 350.) Because
Federal Rule of Evidence 606(b) restricts the kinds of evidence that can be considered on a motion
for a new trial after a jury verdict, and because the evidence the Court can consider is insufficient
to warrant a new trial or an evidentiary hearing, I recommend that Plaintiff’s motion be DENIED.
I.

BACKGROUND
This is a personal injury case that was removed to federal court from Delaware Superior

Court. Plaintiff Johanna Evans (“Plaintiff”) sued multiple defendants asserting several claims
related to her husband’s exposure to asbestos. (D.I. 1, Ex. A; D.I. 235.) By the time the case got
to trial in 2019, the only defendant remaining was John Crane, Inc. (“Defendant” or “John Crane”).
Jury selection began on October 28, 2019. During voir dire, Judge Noreika asked the
venire a number of questions proposed by the parties, including “Question Two”:

Two. This is a personal injury and wrongful death case. The
Plaintiff is Johanna Elaine Evans, individually and on behalf of the
Estate of Icom Henry Evans. I will refer to her as Ms. Evans or
Plaintiff. Ms. Evans has sued the Defendant, John Crane, Inc. I will
call it Defendant or John Crane. Ms. Evans contends that John
Crane is liable for wrongful death and personal injury of her
husband, Icom Henry Evans, as a result of exposure to asbestos
products that were manufactured and sold by John Crane.
Defendant denies those claims. Have any of you heard or read
anything about this case?
(Trial Tr. 10/28/2019 at 4:12-5:1; D.I. 330 at 2.)
One prospective juror, Juror 22, answered “yes” to Question Two. Judge Noreika then
questioned Juror 22 outside of the presence of the rest of the venire:
THE COURT:

We already knew that you answered yes to
[question] number two because I saw you
raise your hand.

JUROR 22:

Sorry about that.

THE COURT:

That’s okay. So we just wanted to explore a
little bit more what you heard about the case.

JUROR 22:

Well, I got notified about the jury duty. I just
looked at -- on the calendar, and I went
online, and I just read a little bit about it. So I
saw it was the only jury trial for today, so I
just figured that was the case.

THE COURT:

Did you read anything about the substance of
the case?

JUROR 22:

Just a little bit about the -- what the claim was
as far as how the plaintiff or the police
officer’s wife is claiming how her husband
got cancer.

THE COURT:

And can you tell us what you recall about
that?

JUROR 22:

Something to do with the -- what he was
working on, the piece of equipment. It was
some type of piping.

2

THE COURT:

And do you think that having looked into
that, that that would affect your ability to be
impartial in this case?

JUROR 22:

No, I don't think it would affect it.

(Trial Tr. 10/28/2019 at 33:22-34:21.)
Judge Noreika allowed the parties’ attorneys to ask Juror 22 additional questions (while
still outside the presence of the rest of the venire). Plaintiff’s counsel asked the following:
MR. WATHEN:

Sir, do you recall what document or source
documents you may have read online in
connection with the case?

JUROR 22:

They were just motions. And I read the
motion that got it transferred from state to
federal.

(Id. at 36:24-37:4.) Plaintiff’s attorneys did not ask if Juror 22 had done other online research or
any other follow-up questions. (Id. at 37:18-19.) Defendant’s counsel did not ask Juror 22 any
questions. Neither side moved to strike Juror 22 for cause. (Id. at 37:23-25.) Neither side used
their peremptory challenges to strike Juror 22. (Id. at 63:5-64:12.) Juror 22 was subsequently
sworn in as a member of the jury. (Id. at 64:18-65:4.) None of the other jury members had
answered “yes” to Question Two.
At the start of the trial, the Court instructed the jury members that “[a]nything [they] see
or hear outside the courtroom is not evidence and must be disregarded” and that they were “to
decide this case solely on the evidence presented here in the courtroom.” (Id. at 68:7-10; D.I. 331
at 4.) On October 31, 2019, the parties finished their closing arguments, and the Court charged
the jury. In accordance with the Third Circuit’s model jury instructions, the Court instructed the
jury to “make [its] decision based only on the evidence that [it] saw and heard in court” and to
“not let rumors, suspicions, or anything outside of court influence [its] decision in any way.” (D.I.

3

342 at 3.) Later that afternoon, the jury returned a unanimous verdict in favor of Defendant. (D.I.
345; D.I. 346.) The Court excused the jury.
The next day, one of the jurors (“Juror X”) sent an email to Judge Noreika. (D.I. 350, Ex.
A; D.I. 351, Ex. A.) The email read as follows:
Dear Judge Noreika,
I was juror [redacted] who attended the Crane case.
I thought you did a great job. Congratulations!
This was the first court case I have ever attended. [Juror X discusses
a state court case in which he/she was not selected as a juror.]
I think the myriad of attorneys who tried this case were good. I
thought the plaintiff’s attorneys “cherry picked” much of the data
and had an uphill challenge. I thought the self proclaimed expert
witness, who bills out at $830/hour, was an arrogant idiot. Most of
the other experts were smart. I thought the expert witness on
Wednesday afternoon was well organized, had easy to understand
charts, and was very good.
I [sic] my opinion, I suspect that one of the jurors may have been
tainted. Through publicly available information, he knew Monday
morning what the case was all about, had done research about other
prior Crane cases, and had made up his mind well before he walked
into the courtroom. Furthermore, he was not shy about expressing
his findings or opinions to the other jurors.
In my case, I knew nothing about the Crane situation. I think the six
other jurors had not either. My 48 pages of notes, which I tore up
upon leaving the jury room, pretty much mirrored the summary that
you had distributed. And, in the jury room on Thursday afternoon,
questions were raised and opinions were voiced. I think all eight of
us had reached their individual conclusions based upon the facts.
I also think that it is important that going forward, judges should
question potential jurors about information they had researched or
otherwise were exposed to prior to going into court. This would
probably alleviate any sort of bias.
In closing, it was a good experience and one that I enjoyed.

4

Thanks again for the opportunity.
(Id.) The Court promptly shared the email with the parties’ counsel.
On November 11, 2019, Plaintiff filed a motion for a new trial or, in the alternative, for an
evidentiary hearing or permission to interview the jurors. (D.I. 350.) Defendant filed an answering
brief on November 22, 2019. (D.I. 351.) Plaintiff did not file a reply brief. The motion was
referred to me on April 1, 2020. (D.I. 352.) I held oral argument on June 17, 2020. (“Tr.”)
II.

LEGAL STANDARDS
Under Federal Rule of Civil Procedure 59, “[t]he court may, on motion, grant a new trial

on all or some of the issues . . . after a jury trial, for any reason for which a new trial has heretofore
been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). Among the reasons
that may warrant a new trial are that a juror was dishonest during voir dire or that the jury was
exposed to extraneous information.

The rationale for granting a new trial under those

circumstances is that the parties are entitled to an “impartial trier of fact”: if a juror lies about
information relevant to his biases during voir dire or is exposed to extraneous prejudicial
information, there is a risk that the jury will not decide the case solely on the evidence before it.
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984); United States v. Lloyd,
269 F.3d 228, 237 (3d Cir. 2001).
A party seeking a new trial on the basis of juror dishonesty during voir dire “must first
demonstrate that a juror failed to answer honestly a material question on voir dire, and then further
show that a correct response would have provided a valid basis for a challenge for cause.”
McDonough, 464 U.S. at 556; United States v. Claxton, 766 F.3d 280, 301 (3d Cir. 2014).
A party seeking to obtain a new trial on the basis that the jury was exposed to extraneous
information must show that the party “likely suffered substantial prejudice” as a result of the

5

exposure. 1 Lloyd, 269 F.3d at 238; United States v. Gilsenan, 949 F.2d 90, 95 (3d Cir. 1991). To
examine for prejudice, the court should conduct “an objective analysis by considering the probable
effect of the allegedly prejudicial information on a hypothetical average juror.” Gilsenan, 949
F.2d at 95. Factors relevant to that analysis may include “(1) whether the extraneous information
relates to an element of the case decided against the moving party; (2) the extent of the jury’s
exposure to the extraneous information; (3) the time at which the jury receives the extraneous
information; (4) the length of the jury’s deliberations and the structure of its verdict; (5) whether
the district court properly instructed the jury to consider only evidence presented at trial; and (6)
[in a criminal case,] whether there is a heavy volume of incriminating evidence.” United States v.
Fumo, 639 F. Supp. 2d 544, 554 (E.D. Pa. 2009) (citing United States v. Flemming, 223 F. App’x
117, 124 (3d Cir. 2007); United States v. Urban, 404 F.3d 754, 778 (3d Cir. 2005); Lloyd, 269
F.3d at 242; United States v. Youngblood, 56 F. Supp. 2d 518, 523 (E.D. Pa. 1999)). The ultimate
decision to grant or deny a new trial is committed to the sound discretion of the district court. See
McDonough, 464 U.S. at 556; Lloyd, 269 F.3d at 237.
A district court confronted with a post-verdict motion for a new trial based on jury
irregularities must also comply with Federal Rule of Evidence 606(b). That rule significantly
restricts the kinds of evidence that the court may consider. It provides:
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an
inquiry into the validity of a verdict or indictment, a juror
may not testify about any statement made or incident that
occurred during the jury’s deliberations; the effect of
anything on that juror’s or another juror’s vote; or any juror’s
mental processes concerning the verdict or indictment. The
court may not receive a juror’s affidavit or evidence of a
1

Although many of the cases discussing the standards for ensuring an impartial jury involved
criminal trials, the Third Circuit has suggested that the same procedures and standards are
applicable in civil cases. Waldorf v. Shuta, 3 F.3d 705, 712 n.7 (3d Cir. 1993).
6

juror’s statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information
improperly brought to the jury’s attention;

was

(B) an outside influence was improperly brought to
bear on any juror; or
(C) a mistake was made in entering the verdict on the
verdict form.
Fed. R. Evid. 606(b).
Rule 606(b) traces its roots to the common law prohibition on admitting juror testimony to
impeach the jury’s verdict. Tanner v. United States, 483 U.S. 107, 121 (1987). While the Rule
permits inquiry into whether the jurors were exposed to “extraneous prejudicial information” or
subject to “an outside influence,” it categorically bars consideration of the jury’s “internal
processes.” Id. at 120-21. Thus, the Rule bars juror testimony about things that happened during
a jury’s deliberations, including, for example, that another juror or jurors ingested cocaine, smoked
marijuana, drank alcohol, were asleep, had a hearing impairment, could not understand English,
made up their minds before the start of the trial, decided the case through “a game of chance,” or
admitted that they lied during voir dire. Warger v. Shauers, 574 U.S. 40, 44-45, 50-51 (2014);
Tanner, 483 U.S. at 115-16, 121, 127.
The purpose of Rule 606(b) “is to promote finality of verdicts, encourage free deliberations
among jurors, and maintain the integrity of the jury as a decision-making body.” Wilson v.
Vermont Castings, Inc., 170 F.3d 391, 394 (3d Cir. 1999). “[I]f courts were to permit a lone juror
to attack a verdict through an open-ended narrative concerning the thoughts, views, statements,
feelings, and biases of herself and all other jurors sharing in that verdict, the integrity of the
American jury system would suffer irreparably.” Lloyd, 269 F.3d at 237 (quoting United States v.

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Gonzales, 227 F.3d 520, 527 (6th Cir. 2000) (marks omitted)).
The Rule does permit inquiry into the jury’s potential exposure to “extraneous
information.” But the Court “may not inquire into the subjective effect of such information on the
particular jurors.” Wilson, 170 F.3d at 394 (citations omitted). “Instead, the court must make an
objective assessment of how the information would affect the hypothetical average juror.” Id. The
party seeking a new trial bears the burden of showing that the extraneous information would have
impacted a hypothetical juror. Lloyd, 269 F.3d at 238.
Moreover, courts in the Third Circuit and elsewhere have “established a general reluctance
to conducting post-verdict hearings to interrogate jurors regarding outside influences.” Fumo, 639
F. Supp. 2d at 549-52 (collecting cases reflecting “a general disenchantment for post-verdict
hearings, absent extraordinary circumstances”); see also United States v. Moon, 718 F.2d 1210,
1234 (2d Cir. 1983) (“It hardly bears repeating that courts are, and should be, hesitant to haul jurors
in after they have reached a verdict in order to probe for potential instances of bias, misconduct,
or extraneous influence.”).
An evidentiary hearing is warranted only where the party seeking a new trial presents
“clear, strong, substantial and incontrovertible evidence that a specific, non-speculative
impropriety has occurred” that could have prejudiced the trial. Claxton, 766 F.3d at 301 (quoting
United States v. Stewart, 433 F.3d 273, 302-03 (2d Cir. 2006)); United States v. James, 513 F.
App’x 232, 233 (3d Cir. 2013); United States v. Anwo, 97 F. App’x 383, 387 (3d Cir. 2004). The
decision about whether to hold an evidentiary hearing is committed to the discretion of the district
court. Anwo, 97 F. App’x at 387.

8

III.

DISCUSSION
Plaintiff argues that a new trial is warranted on two bases: (1) Juror 22’s alleged dishonesty

during voir dire; and (2) the jury’s alleged exposure to extraneous prejudicial information. (D.I.
350 at 2.) In the alternative, Plaintiff argues that the Court should recall the jurors and hold an
evidentiary hearing to question them about the allegations in Juror X’s email. (Id. at 9-10.)
A.

Alleged Dishonesty During Voir Dire

According to Plaintiff, the Court should grant a new trial because Juror X’s email
demonstrates that Juror 22 lied during voir dire about his ability to be impartial and the fact that
he had done research about cases involving John Crane.
The most obvious problem with Plaintiff’s argument is that Federal Rule of Evidence
606(b) prevents the Court from considering Juror X’s email to demonstrate that Juror 22 lied
during voir dire. In Warger v. Shauers, the Supreme Court held that the rule “precludes a party
seeking a new trial from using one juror’s statement of what another juror said in deliberations to
demonstrate the other juror’s dishonesty during voir dire.” 574 U.S. at 42. Plaintiff does not even
attempt to distinguish Warger, and it clearly applies here. As Plaintiff’s only evidence of Juror
22’s alleged dishonesty comes from Juror X’s email, I recommend that the Court deny Plaintiff’s
request for a new trial on that basis.
I also reject Plaintiff’s request to recall the jurors to question them on the issue of Juror
22’s dishonesty. There is no point in holding such a hearing because juror testimony on the issue
of Juror 22’s dishonesty during voir dire is also plainly barred by Rule 606(b). 2 Id. at 44-48; Fed.
R. Evid. 606(b).

2

While I don’t need to reach the issue, I also reject Plaintiff’s contention that Juror X’s email
demonstrates that Juror 22 “provided dishonest and misleading answers” about his online research.
(D.I. 350 at 8.) During voir dire, Juror 22 self-disclosed that he had done online research about
the case before appearing for jury duty. Plaintiff’s counsel then asked Juror 22 “what document
9

B.

Alleged Extraneous Information

Plaintiff alternatively argues that the Court should grant a new trial because Juror X’s email
demonstrates that the jurors were exposed to extraneous information. Under Rule 606(b)(2)(A),
the Court can consider juror testimony about whether “extraneous prejudicial information was
improperly brought to the jury’s attention.” Fed. R. Evid. 606(b)(2)(A).
Juror X’s email does not demonstrate that any extraneous prejudicial information was
brought to the jury’s attention, much less that it was done so improperly. The only evidence
relating to extraneous information are Juror X’s statements that another juror had knowledge
obtained from “publicly available information” of “what the case was all about” and had done
“research about other prior Crane cases.” (D.I. 350, Ex. A.)
But it was no secret to counsel that one juror had been exposed to extraneous information.
Juror 22 self-reported during voir dire (outside the presence of Juror X) that he had done online
research and that he viewed case documents. 3 Counsel for both sides were given the opportunity
to ask Juror 22 follow-up questions, and Plaintiff’s counsel did. Despite the fact that both sides
knew about Juror 22’s exposure to motions filed in this case, neither side moved to strike Juror 22
for cause. Under these circumstances, Plaintiff cannot meet her burden to show that she “likely

or source documents [he] may have read online in connection with the case.” (Trial Tr. 10/28/2019
at 36:25-37:1-2 (emphasis added).) It would have been entirely reasonable for an honest juror to
believe that counsel’s reference to “the case” meant “this case,” and to limit his response to
documents filed in this case (which Juror 22 did). Plaintiff’s counsel never asked Juror 22 if he
researched other John Crane cases or any other asbestos cases, despite having had the opportunity
to do so.
3

See 27 C. Wright & V. Gold, Fed. Prac. & Proc. Evid. § 6075, n. 18 (2d ed. 2007) (listing
cases recognizing court documents as a source of as extraneous information).

10

suffered substantial prejudice” as a result of Juror 22’s exposure to case documents. 4 Lloyd, 269
F.3d at 238. If there was a motion filed in this case that is so prejudicial to Plaintiff that mere
exposure to it would render a juror incapable of rendering a fair verdict based on the evidence,
Plaintiff has not identified it. And if such a document existed, one would have expected that
Plaintiff’s counsel would have asked about it during voir dire or moved to strike Juror 22.
Nor does the record demonstrate that Plaintiff likely suffered substantial prejudice in
connection with Juror X’s belief that another juror “had done research about other prior Crane
cases.” (D.I. 350, Ex. A.) Assuming for the sake of argument that Juror X was telling the truth,
and that Juror 22 also researched other cases involving John Crane, it is likely that the only reason
it did not come out during voir dire is because neither side asked Juror 22 the right question.
More importantly, nothing in the record before me suggests that whatever extraneous
information Juror 22 looked at was even prejudicial to Plaintiff. “‘[N]ot every exposure to extrarecord information about the case will require a new trial.’” Gilsenan, 949 F.2d at 97 (quoting
Gov’t of the Virgin Islands v. Dowling, 814 F.2d 134, 139 (3d Cir. 1987)). Plaintiff has not
provided the Court with a document or even an example of a publicly-accessible document from
another John Crane case that is so prejudicial that mere exposure to it would render a hypothetical

4

Plaintiff cites United States v. Stoehr, 196 F.2d 276, 283 (3d Cir. 1952) for the proposition
that she need only show a “reasonable possibility of prejudice” in order to obtain a new trial. (D.I.
350 at 2; Tr.) Plaintiff is incorrect. Stoehr does not set forth the standard for ordering a new trial.
Id. (noting that the movant in that case did not “show a reasonable possibility of prejudice”). Cases
since Stoehr confirm that a party seeking a new trial must show that it “likely suffered substantial
prejudice” as a result of the exposure to extraneous evidence. Lloyd, 269 F.3d at 238; Gilsenan,
949 F.2d at 95.

11

juror incapable following the Court’s instructions to render a verdict based solely on the evidence
at trial. 5
Moreover, the record does not demonstrate that Juror 22 actually shared anything he saw
with the other jurors. Juror X’s email stated that the suspected biased juror “was not shy about
expressing his findings or opinions to the other jurors.” (D.I. 350, Ex. A.) According to Plaintiff,
that sentence suggests that Juror 22 shared extraneous prejudicial information with the other jurors.
But that is far from clear. Juror X may very well have been referring to Juror 22’s “findings or
opinions” about the evidence at trial. The email does not say that the “not shy” juror shared any
extraneous information with the rest of the jury. Moreover, the thrust of the email is Juror X’s
concern that the other juror was biased as a result of his own exposure to extraneous information.
Juror X’s statement that the other juror “was not shy about expressing his findings or opinions”
may merely reflect Juror X’s concern that a biased juror with a strong personality (as opposed to
a wallflower) might be more likely to influence other jurors.
In the briefing and at oral argument, Plaintiff’s counsel stressed the fact that Juror X
believed that Juror 22 was affected by whatever it was that he read online and “had made up his
mind well before he walked in the courtroom.” (D.I. 350 at 6-7; Tr.) But, again, the Court is not
permitted to consider one juror’s complaint that another juror was biased. And, while the Court

5

During oral argument, Plaintiff’s counsel suggested that Juror 22 may have uncovered
through online research that John Crane has successfully defended some cases brought by other
individuals alleging injuries related to asbestos exposure. (Tr.) Putting aside the fact that Plaintiff
has not made any attempt to demonstrate to the Court that such information exists, the mere fact
that a juror knew that John Crane won some of the cases brought against it is insufficient to
demonstrate that Plaintiff likely suffered substantial prejudice.
The same goes for Plaintiff’s speculation that Juror 22 may have learned that John Crane
previously sued the law firm that represented Plaintiff in this case. (Tr.) Nothing in Juror X’s
email suggests that any juror knew that fact. Plaintiff has not made any attempt to demonstrate
that prejudicial information related to that fact is publicly available, for example, by submitting to
the Court a prejudicial document that Juror 22 might have been exposed to. Regardless, the mere
fact that a juror knew that John Crane sued counsel’s law firm would be insufficient to demonstrate
that Plaintiff likely suffered substantial prejudice.
12

can consider evidence that a juror was exposed to extraneous prejudicial information, it may not
consider evidence of the subjective effect that the extraneous information had on that juror.
Flemming, 223 F. App’x at 124 (citing Lloyd, 269 F.3d at 237); Wilson, 170 F.3d at 394. The
proper analysis is to consider “the probable effect of the allegedly prejudicial information on a
hypothetical average juror.” Gilsenan, 949 F.2d at 95.
Because the record is insufficient to make a finding about the nature of any extraneous
information that any jury members might have been exposed to, the factors used by courts to assess
prejudice on a hypothetical average juror are challenging to apply. See Fumo, 639 F. Supp. 2d at
554 (listing factors). Nor has Plaintiff made any attempt to do so. At best, the record suggests that
a juror who was not shy about expressing himself learned extraneous information prior to the trial
and might have verbally shared it with the other jury members during deliberations. See Fumo,
639 F. Supp. 2d at 554 (court can consider “the time at which the jury receives the extraneous
information” and “the extent of the jury’s exposure”). The jury deliberated for less than a day, but
it was a short trial and there was ample evidence supporting the defense verdict. Id. (court can
consider “the length of the jury’s deliberations”). But see United States v. Roy, 819 F.3d 998, 1000
(7th Cir. 2016) (Posner, J.) (reasoning that short deliberations may simply indicate that the
evidence for one side was compelling).
Most importantly, Judge Noreika instructed the jurors—at the beginning and at the end of
the trial—to only consider the evidence presented at trial. (D.I. 331 at 4; D.I. 342 at 3.) Fumo,
639 F. Supp. 2d at 554 (court should consider whether it “properly instructed the jury to consider
only evidence presented that trial”); see also Lloyd, 269 F.3d at 241 (relying, in part, on district
court’s jury instructions in concluding that there was no prejudice resulting from jury’s exposure
to extraneous information). Looking at the full picture, the record does not demonstrate that

13

whatever extraneous information Juror 22 might have verbally reported would have impacted a
hypothetical average juror to the extent that they were incapable of rendering a fair verdict.
Accordingly, I conclude that Plaintiff has not shown that she “likely suffered substantial
prejudice.” Lloyd, 269 F.3d at 238.
The cases cited by Plaintiff are unhelpful. In United States v. Jackson, the Third Circuit
held that a district court did not abuse its discretion by declining to question sitting jurors in camera
about their exposure to trial publicity. 649 F.2d 967, 974-76 (3d Cir. 1981). Likewise, in Marshall
v. United States and Waldorf v. Shuta, the district courts learned during trial that the jury had been
exposed to prejudicial information. Marshall v. United States, 360 U.S. 310, 312-313 (1959);
Waldorf, 3 F.3d at 707. None of those cases sheds light on the standard for ordering a new trial
based on information brought to light after the jury is discharged.
Plaintiff requests, in the alternative, that the Court recall the jurors so it can question them
about (1) what information they were exposed to and (2) how it affected their vote. (Tr.; D.I. 350
at 10.) As explained above, however, questions about the latter are clearly prohibited. Nor is there
“clear, strong, substantial and incontrovertible evidence that a specific, non-speculative
impropriety has occurred” such that a hearing is warranted to ask about the former. 6 Claxton, 766
F.3d at 301. It is not “clear” that Juror 22 saw any “specific” information relevant to the issues
the jury was asked to decide. 7 Nor is it “clear” that whatever Juror 22 saw was “incontrovertibl[y]”

6

Plaintiff cites United States v. Boone for the proposition that courts should “conduct
comprehensive investigations in response to serious allegations of jury impropriety.” 458 F.3d
321, 327 (3d Cir. 2006) (citing United States v. Resko, 3 F.3d 684, 686 (3d Cir. 1993)). But that
case (and the cases it relies on) dealt with irregularities discovered before the jury rendered its
verdict. It does not articulate the standard for deciding whether to hold a post-verdict evidentiary
hearing.
7

That makes this case unlike Georges v. Government of Virgin Islands, cited by Plaintiff,
where the court was confronted with concrete evidence that jurors in a criminal case had been
exposed to a specific newspaper article stating that one of the defendants “shot at” his codefendant. 986 F. Supp. 323, 328 (D.V.I. App. Div. 1997).
14

prejudicial. It is not at all “clear” that he shared anything he saw with the other jurors, and there
certainly is no “strong” evidence that he did.
While it might be tempting to order a hearing just so that the matter can be put to rest, there
are very good reasons not to recall a jury under these circumstances. Gilsenan, 949 F.2d at 97-98.
Recalling a jury for a post-verdict hearing whenever a juror has alleged misconduct might
discourage people from serving on juries. Roy, 819 F.3d at 1001. It might also “embolden
disgruntled jurors to complain about the other jurors’ behavior in the jury room.” Id. It could
undermine public confidence in the integrity of the jury system. Tanner, 483 U.S. at 120; Lloyd,
269 F.3d at 237; Gilsenan, 949 F.2d at 97-98. And it would be contrary to the interest of finality.
Tanner, 483 U.S. at 120; Gilsenan, 949 F.2d at 98. As the Supreme Court has stated,
[t]here is little doubt that postverdict investigation into juror
misconduct would in some instances lead to the invalidation of
verdicts reached after irresponsible or improper juror behavior. It is
not at all clear, however, that the jury system could survive such
efforts to perfect it. Allegations of juror misconduct, incompetency,
or inattentiveness, raised for the first time days, weeks, or months
after the verdict, seriously disrupt the finality of the process.
Tanner, 483 U.S. at 120.
The decision about whether to order a hearing is left to the district court’s discretion. I
believe that holding a hearing would likely do more harm than good. Accordingly, I do not
recommend one.
IV.

CONCLUSION
“[A] litigant is entitled to a fair trial but not a perfect one for there are no perfect trials.”

McDonough, 464 U.S. at 553 (internal marks omitted). Not all juror improprieties are prejudicial,
and not all allegations of error should be investigated. For the reasons set forth above, I
recommend that Plaintiff’s motion be DENIED in its entirety.

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This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B),(C),
Federal Rule of Civil Procedure 72(b)(1), and District of Delaware Local Rule 72.1. Any
objections to the Report and Recommendation shall be filed within fourteen days and limited to
ten pages. Any response shall be filed within fourteen days thereafter and limited to ten pages.
The failure of a party to object to legal conclusions may result in the loss of the right to de novo
review in the district court.
The parties are directed to the Court’s “Standing Order for Objections Filed Under Fed. R.
Civ. P. 72,” dated October 9, 2013, a copy of which can be found on the Court’s website.

Dated:

June 24, 2020

___________________________________
Jennifer L. Hall
UNITED STATES MAGISTRATE JUDGE

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