Welbig v. City of Brookings et al

Filing 87

MEMORANDUM OPINION AND ORDER denying 65 Motion for New Trial; denying 82 Motion for Hearing. Signed by U.S. District Judge Lawrence L. Piersol on 2/14/17. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
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CIV 15-4085

TAMRA WELBIG,

Plaintiff,
MEMORANDUM OPINION AND
ORDER DENYING PLAINTIFF'S
MOTION FOR NEW TRIAL AND

JORDAN HANSEN;
JORDAN McCASKILL; and

*
*

JUSTINA HILMOE,

MOTION FOR
MOTION FOR

*

EVIDENTIARY HEARING
EVIDENTIARY HEARING

*

Defendants.

*
*

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The Plaintiff, Tamra Welbig, has filed a Motion for New Trial pursuant to Federal Rule of

Civil Procedure 59 (doe. 65), and a Motion for Evidentiary Hearing Regarding Potential Juror
Misconduct(doc. 82). Defendants Jordan Hansen, Jordan McCaskill and Justine Hilmoe oppose
both motions. For the reasons stated below, the motions will be denied.

BACKGROUND

On June 5, 2012, Welbig was arrested by Defendant police officers. In the course of the

arrest, Welbig suffered injuries to her face and toe. Welbig alleges that Defendants violated 42
U.S.C. § 1983 by I) conspiring to deprive her of her Fourth Amendment right to be free from
unlawful arrest, 2) unlawfully arresting her in retaliation for exercising her First Amendment right
to freedom of speech, 3) depriving her of her Fourth Amendment right to be free from the use of
excessive force,and 4)using excessive force in retaliation for exercising her First Amendment right
to freedom of speech. A jury trial was held from June 29,2016 to July 1,2016. The jury returned
a verdict in favor of Defendants on all of Welbig's claims.

Welbig has now filed a Motion for New Trial. In support of her request for a new trial,
Welbig argues that I) the verdict was against the clear weight of the evidence, and 2) improper

character evidence was admitted into evidence and referenced by defense counsel in closing

argument. In addition to her motion for new trial, Welbig has moved for an evidentiary hearing
regarding potential juror misconduct, asserting that a juror may have presented extraneous
information to the jury during deliberations.

DISCUSSION

Federal Rule of Civil Procedure 59 states in relevant part:

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or
some of the issues—and to any party—as follows:

(A) after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal eourt.

Fed.R.Civ.P. 59(a)(1)(A). Pursuant to Rule 59, the Court may grant a new trial when the first trial
resulted in a miscarriage ofjustice,through a verdict against the weight ofthe evidence,an excessive

damage award, or legal errors at trial. Trickey v. Kaman Indus. Technologies Corp.,705 F.3d 788,
807(8th Cir. 2013)."With respect to legal errors,a'miscarriage ofjustice' does not result whenever
there are inaecuracies or errors at trial; instead, the party seeking a new trial must demonstrate that

there was prejudicial error." Id. Whether or not to grant a new trial is almost entirely at the
discretion of the trial court. Allied Chem. Corp. v. Daiflon, Inc.,449 U.S. 33, 36(1980); Tedder v.
Am. Railcar Indus.,/«c.,739F.3d 1104,1110(8thCir.2014). The question is not whether the Court
would have reached the same verdict on this evidence. "The key question is whether a new trial

should have been granted to avoid a miscarriage ofjustice." Michigan Millers Mut. Ins. Co. v.
Asoyia, Inc., 793 F.3d 872, 878(8th Cir. 2015)(citation omitted).

A.

New Trial Based on Sufficiencv ofthe Evidenee

"When reviewing a jury verdiet to decide whether it is against the weight of the evidence,
the district court conducts its ovm review of the evidence to determine whether a miscarriage of

justice has occurred. However,the trialjudge may not usurp the functions ofthejury, whieh weighs
the evidence and credibility of witnesses." Boesing v. Spiess, 540 F.3d 886, 890 (8th Cir. 2008)
(intemal citations and quotations omitted).

On this issue, Welbig focuses on her excessive force claim, which is against defendants
Hansen and McCaskill only. According to her testimony, on the night ofJune 4,2012, Welbig took
a mixture of medications that had the effect of making her unable to function when she woke up on

the morning of June 5,2012. She asked her 13-year-old daughter, C.W.,to find a neighbor in the
apartment building where they lived who could drive her to the doctor. C.W.'s testimony supports
Welbig's account that she had taken a mix ofmedications and could not dress herselfor walk on her
own. C.W.called Arlene Mathiesen, who tried to help Welbig out to the car. Mathiesen said that she

and C.W. had to almost carry Welbig to Mathiesen's car and place her on the passenger side front

seat. (Video Dep. 11:7-16.) Mathiesen, who had training and experience as a nurse, decided to call
an ambulance for Welbig. She described Welbig's condition as they were waiting for the ambulance
to arrive:

A. I - by that time Tamra was unresponsive. I couldn't get her to talk to me.In fact,
she was turning almost ashen, and I was scared. I was afraid I was losing her, and I
slapped her.

Q. All right. Let me ask you a little bit about that. Arlene, do you have any medical
training in your background?
A. Yes, I do.

Q. What kind of training have you had? A I'm a retired LPN and Q. That's a licensed practical nurse, correct?
A. Yes. And ages ago I drove ambulance at Lake Norden.
Q. Were you trained as an EMT in those days?
A. Yes.

Q. So you've been around people who are losing consciousness, who have substance
problems, and that sort of thing?
A. Yes.

Q. And when you say you thought you were losing her, regarding Tamra, what do
you mean?

A. I thought — actually, I thought she was going to die just beeause the pulse was
so slow and the way she was turning ashen and she wasn't responding at all.
Q. Were her eyes open?
A. No.

Q. And when you say responding, were you asking her questions?
A. I was asking her questions. I was trying to get her to talk to me.
Q. Did she verbalize anything at all?

A. No. Nothing.
Q. And then you slapped her?
A. Yes, 1 did.

Q. And with an open hand?
A. I believe so, yes.

Q. And your purpose in doing that was just to revive her or A. Yeah,to wake her up, to see ifshe was still with me.
Q. Did you have your cell phone with you then?
A. Yes.

Q. What did you do?
A. Well,in the hallway I had called 911, and I do not remember what C.W. said Q. Why did you call 911? Did you think you were unable to drive her yourself?
A. I thought she was getting worse and we needed an ambulanee.
(Video Dep. 12; 5-25; 13:1-25.)

When dispatch alerted the ambulance serviee,the ehiefcomplaint was "possible overdose."
(TT 337.) It is the praetiee that Brookings police officers respond to ambulance calls as well. (TT
338.) Jordan McCaskill and Monique Dorrow were the first officers on the scene after reeeiving a
call for a possible overdose. (TT 276.) Mathiesen flagged McCaskill down and he found Welbig
sitting in the passenger seat of the vehicle. (TT 276-77.) McCaskill testified that Welbig did not

respond to him, and "[s]he looked tired, unresponsive, kind of slouched in the chair." (TT 278.)
Officer Jordan Hansen arrived and he spoke to Welbig. (TT 279.) McCaskill described the
encounter:

Q. Well, what did you observe when Jordan Hansen talked to her, and what did you
observe her response to be?

A. It appeared that she beeame agitated by something,and she attempted to possibly
get out ofthe vehicle. Kind of made a forward motion towards Officer Hansen,and
that's when I noticed that his head moved backwards while her arm was coming
forward.
That's when he must have made the reasonable belief that he was assaulted and

became hands-on with Ms. Welbig.

(TT 279.) McCaskill testified further:
Q. When you say Officer Hansen initiated physical contact, describe that for us and
what happened.
A. Once I saw his head move backwards and he must have made the determination

that he was assaulted, he went ahead and went hands-on by grabbing her, I believe,
rear shoulder, right shoulder possibly, and that's when he gained control of her, and
I assisted him by placing her on the ground.

(TT 282.) McCaskill described the arm bar take-down that they decided to use to "gain control" of
Welbig: "You gain control ofthe wrist, and with some application to the back side oftheir arm, you
try and attempt to place them on the ground."(TT 284.) Welbig's arms were handcuffed behind her
back.(TT 284-85.) Officers McCaskill and Hansen were able to stand her up,and they testified that

they walked Welbig to the ambulance.(TT 285.)

Defendant Hansen testified that he knew Welbig from talking to her on other cases and

thought he had a good rapport with her, so he attempted to talk to Welbig but was also unable to get

a response from her.(XT 307.) When, however. Officer Borrow said something about getting the
pills from the possible overdose,according to Hansen, Welbigjumped out ofthe vehicle and started

yelling expletives at Officer Borrow. (XT 308.) Hansen said he thought Welbig "wasjumping out
ofthe vehicle to go after Officer Borrow."(XX 309.) He tried to get Welbig to sit back down. (XX
309.) Hansen testified that Welbig's hand went back,a fist was being made,her arm came forward
and Hansen realized she was going to hit him. (XX 310.) He turned his head and was struck but not

injured. (XX 310.) Hansen described the process oftaking Welbig to the ground where he could
control her aggression or resistance better:

A. As her arm came forward and I turned my head and struck me,I moved a little
more off to the side, placed my hand on her shoulder, and moved my other hand on
her arm to go into what they call the arm bar take-down.
When you do that, you kind of roll and sweep off to the side. Xhat will cause a
person's center balance to be thrown off, and you do fall to the ground.
Q. And that's what happened here?
A. Yes.

Q. Bid you see her face bounce off the concrete?
A. I don't recall her face bouncing off the concrete.

Q. Xhen were you and Officer McCaskill able to put restraints on her?
A. Yes.

Q. What kind of restraints?
A. Handcuffs.

(XX 312.) On the recording ofthe 911 call, officers stated that Welbig was fighting with them and
that they had her on the ground.(Defendants' Ex. 217.) Xhe takedown of Welbig occurred within
about 30 seconds of Hansen's arrival on the scene. (XX 320.)

In addition to the officers' testimony,Defendants presented the testimony ofMathiesen, who
was standing beside the front passenger door ofthe vehicle when the incident occurred. Mathiesen

testified that when a female officer was walking toward the apartment with C.W., Welbig jumped
out of the car and screamed profanities at the officers. (Video Dep. 17-19.) Welbig was "hitting
out," "flailing her arms," and the officers tried to calm her but it did not work. {Id.) Mathiesen

filled out a report to that effect right after the incident. The last couple of lines state: "Tammy got
very violent and struck out at officers cursing at them. She fought officers and landed on the ground
cutting the top of her nose." (Video Dep. 22 and Defendants' Exhibit 201.) (Defendant Hilmoe

arrived on the scene when Mathiesen was completing her witness statement. (TT 236, 238.))

In contrast, Welbig testified that when she heard Officer Dorrow say she was going to take
C.W. into her apartment, she tried to get up out of the seat but she couldn't lift herself, so instead

she told officers Hansen and McCaskill that she did not give Dorrow permission to enter her
apartment. (TT 123.) Welbig described what happened as she was attempting to lift herself up:
Jordan McCaskill grabbed me by the shoulder. Jordan Hansen grabbed me by
this one, and they yanked me up out ofthe Durango, and they had my hands behind
my back, and they slammed me into the cement, and 1 felt my head bounce.
Jordan Hansen said,"Give her a simple assault." They both got on top of me.
1 thought 1 was dead at first. Then 1 could feel the blood running down.
Then they were arresting me, holding me down, and 1 seen the ambulance,
and at the same time 1 seen Justina Hilmoe pull up in a pickup right in front of me.

1 thought,okay,the ambulance are going to get out,and they're going to come
pick me up and put me on the bed so 1 don't have to hurt anymore. And they drug me
to the ambulance, and they got me up. Then they put me in a chair, and then they
left.

(TT 123-24.) Welbig also presented testimony from two witnesses, Tamara Schafnitz and Monica

Tebeest, who lived on the second floor ofsame apartment complex as Welbig, and claimed to have

seen the incident from their apartment windows. They testified that they did not see Welbig resist
or attempt to strike officers. (TT 89,105.) On cross-examination defense counsel pointed out some
possible limitations on the views these witnesses had of the scene.

As indicated earlier, Welbig's insufficiency of the evidence argument relates solely to her
exeessive foree claim against defendants Hansen and MeCaskill. She points to the instruction that
was given to the jury on exeessive foree:

INSTRUCTION NO. 13

Plaintiff also elaims that Offieer Jordan Hansen and Offieer Jordan

McCasskill used exeessive foree when arresting Plaintiff. The right to be free from
excessive foree is a clearly established right under the Fourth Amendment's
prohibition against unreasonable seizures ofthe person. Moreover,officers are liable
for the use ofexcessive force when they use force that is not objectively reasonable
in light ofthe facts and circumstances confronting them. Your verdict must be for the
Plaintiff and against Offieers Hansen and MeCaskill on Plaintiffs excessive force

elaim if all the following elements have been proved:

(1)

Offieers Hansen and MeCaskill forced Plaintiff to the ground while

handcuffing her, causing her head to hit eonerete;

(2)

The force used was excessive because it was not reasonably neeessary to

restrain Plaintiff; and

(3)

As a direet result. Plaintiff was injured.

You must determine the degree offorce that a reasonable and prudent police
officer would have applied in effecting the arrest under the eircumstances shown

from the evidence received in this case. In determining whether the defendant poliee
officers used excessive force, you may consider:

1.
The extent ofthe injury suffered. To the degree the injury tends to show the
amount and type of force used is also relevant to your determination of whether
excessive force was used,

2.

The need for the application of force,

3.

The relationship between the need and the amount offorced used,

4.

The threat reasonably perceived by the responsible officials, and

5.

Whether a reasonable officer on the scene, without the benefit of hindsight,

would have used that much force under similar eircumstances.

In considering whether the use offoree was reasonable, you should consider
the totality ofthe eircumstances, including the severity ofthe erime, the danger the
suspect poses to the officer or others, and whether the suspeet is actively resisting

arrest or attempting to flee. You should bear in mind that the decision about how

much force to use often must be made in circumstances that are tense, uncertain, and

rapidly changing. You should further bear in mind that injuries resulting from, for
example, an officer's use offorce to overcome resistance to arrest does not involve

constitutionally protected interests. The use of force by officers simply because a
suspect is argumentative or contentious, however, is not to be condoned. Force can
only be used to overcome physical resistance or threatened force.

The reasonableness inquiry is an objective one. The question is whether

Officers Hansen and McCaskill's actions were objectively reasonable in the light of
the facts and circumstances confronting them, without regard to their own state of
mind, intention, or motivation.

Ifany one ofthe three elements I detailed moments ago has not been proved,
then your verdict must be for the Defendants.

(Doc. 48, pp. 16-17.) It is the second element that is in dispute. Welbig asserts that the evidence

at trial supports finding only that the force used was excessive because it was not reasonably
necessary to restrain her.

In her brief, Welbig goes through each ofthe five factors listed in Instruction No. 13 for the

jury to consider in determining whether excessive force was used. The first is the extent ofthe injury
suffered. Welbig argues that what appeared to have been minor abrasions which might occur during
any routine takedown was, in fact, a major injury, i.e., a broken nose. Defendants point out that
Welbig submitted no medical documentation to support her claim that she suffered a broken nose

on June 5, 2012, and no medical witnesses testified on her behalf. The only medical witness who

testified at trial is Wendy Long, the ambulance paramedic who treated Welbig at the scene and
transported her to the hospital. Long testified about her observations of Welbig's injuries;
Q. Did you observe anything about her person when you were assessing her in the
ambulance?

A. Yes. She had a few abrasions. She had an abrasion to the bridge of her nose,
with bleeding controlled; an abrasion under her right eye, no bleeding with that; an
abrasion to the top of her big toe on her left foot with no bleeding.

(TT 342.) The three abrasions did not require treatment. (TT 346.) Long testified that she has
treated patients with a broken nose and normally sees it bleeding through the nostrils. (TT 352.)She
was asked and gave further details about treating broken noses:

Q. Well, how do you observe a broken nose when you've seen one due to impact?
A. Usually there's swelling ofthe tissues around the nose and the face,the orbits of

the eyes. Sometimes there s black eyes, too, depending on how hard the person's
nose is broken.

There's also - there's bleeding usually along with that, either down the back of the
throat or out the nares.

Q. "Nares" being nostrils?
A. Yes.

Q. Did you notice any of those symptoms present on Miss Welbig when you
examined her in the ambulance or transported her to the hospital?
A. Not that I recall.

(TT 353.) Long also testified that Welbig was on the ground when Long arrived in the ambulance,
and Long walked Welbig to the ambulance with the assistance of the officers. (TT 341, 344.)
Additionally, Long asked Welbig why she was fighting with the police, and Welbig responded that
she just wanted to go into her apartment. (TT 349.)

Welbig addresses the second,third and fourth considerations together in her brief,' arguing
that there was "no reason to believe she was armed, dangerous, had committed any crime or
presented any reasonable threat to two well-trained law-enforcement officers, over twice her size,"
who "with unrestrained force threw her to the ground."(Doc. 81 at 6.) Welbig's argument rests on
the jury finding her and her witnesses more credible than the defendants and their witnesses. The

jury plainly decided that the defense witnesses and their version of the events were more credible.

'These factors are: 1)the need for application offorce,2)the relationship between the need and
the amount of force used, and 3) the threat reasonably perceived by the responsible officials. See
Instruction No. 13.

Defendants presented sufficient evidence at trial for thejury to find that Hansen and McCaskill did

not use excessive force. This Court concludes that the outcome was not against the great weight of
the evidence so as to constitute a miscarriage ofjustice. Therefore, Welbig's motion for a new trial
based on sufficiency of the evidence will be denied.

B. New Trial for Improper Closing Argument

Welbig next takes issue with defense counsel's use of character evidence during closing
argument. Welbig's argument is that counsel appealed to the passions of the jury and may have

influenced the issue of liability by depicting Defendants "as unblemished heroes, steeped in
community service and family values"through use ofinadmissible character evidence. See Doc.81
at 13. She complains about the following statements:

MR.TH1MSEN:

Well,you've got Jordan McCaskill;a college graduate, fitness

trainer,assumes extra duties with his department,family man,
gets a Medal of Valor forjumping into a burning car, saving
MR.RAMSTAD:

Objection. Judge of character.

THE COURT:

Overruled. But move on.

MR. THIMSEN:

For saving somebody he doesn't know. He's gotten other
commendations.

Jordan Hansen, he's been recognized. He serves without blemish,
without problem. Think about it. If he had a bad record, if he was a
bad cop, you don't think the State of Iowa does a background
investigation that determines what kind ofpeople? What? Five out of
900 people applied for the job he now holds?

Justina Hilmoe, 13 years. Goes through college. Gets her degree.
Works her way up from patrolman, to Sergeant, to Lieutenant, the

highest I'm going to call it a street rank, before you get into
administration. Married, with a family.

I think I'm going to hold off before I go in there, because I can't risk

another lawsuit." Are they going to say there's maybe another person
in a burning car and say,"Not today,not today. Been down that road."

The collective years oflaw enforcement here,and no evidence they've
had one blemish on their record.

(Doc. 81 at p. 11-12; IT 401, 407-409.)

With certain exceptions not applicable here. Federal Rule of Evidence 404 prohibits the
introduction of character evidence to prove that on a particular occasion the person acted in
accordance with the character or trait. The Court first notes that Welbig did not object to the bulk
ofthe background or character evidence when it was introduced at trial.^ For example, counsel did
not object when McCaskill testified that he received the Medal of Valor "for pulling a young man
from a buming vehicle that was involved in an injury accident on the highway." (TT 272.) Three
more questions were asked by defense counsel about that incident before Welbig's counsel objected
to further discussion ofthe circumstances, and the objection was sustained.(TT at 273.) Welbig's
lawyer objected once during closing when defense counsel referred to McCaskill's Medal of Valor

for saving a man from a buming vehicle. (TT 401.) Although the Court overmled the objection, it
directed defense counsel to move on." (Jd.) As stated in United States v. Socony-Vacuum Oil Co.,
310 U.S. 150, 238-39(1940): "In the first place, counsel for the defense cannot as a rule remain
silent, interpose no objections, and after a verdict has been returned seize for the first time on the
point that the comments to the jury were improper and prejudicial."
Even if character evidence was erroneously admitted, the erroneous admission ofevidence

does not warrant a new trial unless the cumulative effect of the errors is to substantially influence
^Welbig did not object to any of the background questions defense counsel asked of Hilmoe.
(TT 233:11 - 235:3.) Welbig's counsel objected to only a few follow-up questions from defense
counsel to McCaskill and Hansen. The Court sustained those objections. (TT 272:8 - 273:16,301:2223,317:12-25.) Ifthere had been objections to the other character evidence,the Court would also have
sustained those objections.

thejury's verdict. Williams v. City ofKansas City, Missouri,223 F.3d 749,755-56(8th Cir. 2000).
In this case,thejury's verdict was safeguarded from any character evidence admitted during trial by
carefully worded instructions which directed the jury how to decide the case. A preliminary
instruction that the Court read to the jury before the trial started states, in part:
In deciding what testimony to believe, consider the intelligence of the
witness,the opportunity the witness had to see or hear the things testified about, the
memory of the witness, any motives the witness may have for testifying a certain
way,the manner ofthe witness while testifying, whether the witness said something
different at an earlier time, the general reasonableness of the testimony, and the
extent to which the testimony is consistent with other evidence that you believe.
Do not allow sympathy or prejudice to influence you. The law demands of

you ajust verdict, unaffected by anything except the evidence, your common sense,
and the law as I give it to you.

(Doe.45,Preliminary Instruction No.3.) The Court must assume thejury followed the instructions

because there is no evidence to the contrary. See United States v. Johnston,353 F.3d 617,623(8th
Cir. 2003)(referring to a curative instruction).

Welbig's main complaint here is that defense counsel used character evidence during closing
argument. Misconduct of counsel may be grounds for new trial, but the Court mustjudge whether
there has been an effect on the substantive rights ofthe parties, or whether the misconduct created

undue prejudice or passion tainting the proceedings,particularly in light ofwhether the district court
concludes that an effective curative instruction has been given. Hofer v. Mack Trucks, Inc.,981 F.2d

377,385(8th Cir. 1992). After presiding over the trial and reviewing the record again for purposes
ofthis motion, this Court finds no statements made by defense counsel in closing so prejudicial as
to require a new trial in this case. In addition, the horse was already out ofthe bam. No objection
was made during presentation of evidence to almost all ofthe character questions, so that evidence
was before thejury without objection. The objection then first made in final argument was too late.

Furthermore, a preliminary instmction read to the jury before trial states, in part:
After presentation of evidence is completed, the attorneys will make their

closing arguments to summarize and interpret the evidence for you. As with opening

statements, closing arguments are not evidence. I will then instruct you further on
the law. After that you will retire to deliberate on your verdict.

(Doc.45,Preliminary Instruction No. 10.) A final instruction that was read aloud and then given in
writing to thejury prior to deliberations explains that arguments ofthe lawyers are not evidence. It
provides, in part:

As I stated earlier, it is your duty to determine the facts, and in so doing you
must consider only the evidence I have admitted in this case. "Evidence" includes

the testimony ofwitnesses,documents and other things received as exhibits,any facts
that are stipulated -that is, formally agreed to by the parties-and any facts that are
judicially noticed — that is, facts which I say you may,but are not required to, accept
as true, even without evidence.

Certain things are not evidence. I will list those things for you now:
I. .Statements, arguments, questions and comments by lawyers
representing the parties in the case are not evidence.

(Doc. 48, Instruction No. 3.) This Court believes the jurors were able to separate the lawyers'
arguments from the evidence and follow what the Court told them to do in its instructions.

Finally,even ifit was improper for defense counsel to refer to the defendants' good character
during closing argument, Welbig has not established that the verdict was the result ofthat argument
as opposed to admissible evidence that was simply unfavorable to her case. For all ofthese reasons,
the Court does not find that Welbig was prejudiced by defense counsel's references to character in

closing argument, or that the character evidence calls the fairness of the verdict into doubt. Thus,
the motion for new trial made on this ground will be denied.

C. Motion for Evidentiary Hearing on Potential Juror Misconduct

Welbig does not claim that she should receive a new trial on this ground. Rather, she seeks
an evidentiary hearing to look into whether Juror #12, who was employed as a scheduler at the

Brookings Medical Clinic, may have presented extraneous evidence concerning Welbig's medical
history to the jury. Welbig admits she does not know if the jury was exposed to any extraneous

information. See Doc.83 at 3("[I]t is not known in this case whether thejury considered extraneous
matters.").

A district court has broad discretion in handling allegations ofjuror misconduct. See United

States V. Williams,97 F.3d 240,246(8th Cir. 1996);see also UnitedStates v. Vig, 167 F.3d 443,450
(8th Cir. 1999)("[W]e find no abuse ofthe district court's discretion in denying [defendant] a new
trial or an evidentiary hearing"about evidence ofjuror misconduct.). The Second Circuit has stated

that courts should hesitate "to haul jurors in after they have reached a verdict in order to probe for
potential instances of bias, misconduct or extraneous influences." United States v. Moon,718 F.2d

1210, 1234(2d Cir. 1983). As the Supreme Court has noted,"full and frank discussion in the jury
room,jurors' willingness to return an unpopular verdict, and the community's trust in a system that
relies on the decisions oflaypeople would all be undermined by a barrage ofpostverdict scrutiny of
juror conduct." Tanner v. United States, 483 U.S. 107, 120-21 (1987). A post-trial hearing is not
required whenever a party claims that extraneous evidence tainted their trial; rather,"a trial court is

required to hold a post-trial jury hearing only when reasonable grounds for investigation exist.
Reasonable grounds are present when there is clear, strong, substantial and incontrovertible

evidence,that a specific, nonspeculative impropriety has occurred which could have prejudiced the
trial ofa defendant."Id. (citation omitted). The Eighth Circuit has stated that the more speculative
or unsubstantiated the allegation ofmisconduct,the less the burden to investigate. See UnitedStates
V. Tucker, 137 F.3d 1016, 1031 (8th Cir. 1998)(quoting United States v. Caldwell, 776 F.2d 989,
998(11th Cir. 1985)). "A district court's investigation ofjuror misconduct or bias is a delicate and
complex task." United States v. Peterson, 385 F.3d 127,134(2d Cir. 2004)(citing United States v.
Cox, 324 F.3d 77, 86 (2d Cir. 2003)). The trial court has broad flexibility, especially when the
alleged prejudice results from statements by the jurors themselves, rather than from the media or
other outside influences. Id. (citing Cox,324 F.3d at 86).

In support ofher allegation that thejury may have considered extraneous information during
deliberations and that an evidentiary hearing should be held, Welbig submitted her own affidavit
stating in relevant part:

The first call which came to my home phone on July 1, 2016 was from a female
identified on my phone as "private caller" who stated that a girl from Elton had all
my information and shared it with thejury that 1 do drugs and that I drink. She stated
that "this was a joke" and that the jury would be insane to side with me because I
only wanted money. She stated that there was a note in my medical record that I was
just seeking drugs. The caller would not identify herself.

Doc. 84 at If 6? Welbig does not say what time she received the call on July 1, 2016. The jury
verdict was issued around noon that day. See Doc.55 at 6. Welbig admits she recognized Juror #12
during voir dire. See Doc. 84 at 2,3. Welbig asserts that since the trial she has confirmed that
Juror #12 is employed as a receptionist at Brookings Medical Clinic and that she has access to
Welbig's medical records at the clinic. See id. at

10, 11.

The Court is troubled by the timing of the motion for an evidentiary hearing based on
potential jury misconduct. The motion was not filed until November 18, 2016. See Doc. 82. It is

not clear why Welbig waited over four months after the verdict was returned to raise the allegations
ofjuror misconduct ifshe recognized Juror #12 during voir dire, and ifshe received the anonymous
phone call the day the verdict was returned on July 1, 2016. The Supreme Court has said that

"[ajllegations ofjuror misconduct, incompetency, or inattentiveness, raised for the first time days,
weeks, or months after the verdict, seriously disrupt the finality ofthe process." Tanner,483 U.S.
at 120.

The quality and sufficiency of the evidence submitted in support of the motion is also

troubling. The allegation ofmisconduct came from an anonymous caller to Welbig on July 1,2016.
There is nothing to suggest the anonymous caller's identity. This is unreliable. There is no affidavit

ofajuror, and there is no allegation that ajuror has been interviewed or has stepped forward to talk
about a potential external influence on the jury. It is pure speculation that extraneous information

reached ajuror. This is not the clear,strong,substantial and incontrovertible evidence ofa prejudicial

^Welbig also attests that she received a second anonymous call on July 13, 2016, with the
caller saying an officer named Joey Collins was at the scene of her arrest and was wearing plain
clothes, but this information does not appear to be relevant to Welbig's juror misconduct claim.
Doc. 84 at f 8.

impropriety that would require a jury hearing. The allegations ofjuror misconduct that have been

presented by Welbig's affidavit do not merit a hearing to question the jurors regarding their
deliberations in this case.
e.g., Caldwell, 776 F.2d at 999 (district court properly handled
allegation ofjuror misconduct by questioning the allegedly offending juror outside presence of
lawyers and parties after anonymous telephone call to defense counsel and to chambers; the
anonymity ofthe call "simply creates no burden to investigate," particularly"when the court has no
basis whatsoever to adjudge the reliability ofthe initial accusation.").
Furthermore, whether Welbig drinks or seeks and does drugs has nothing to do with the

liability issues in this case,/. e., whether the defendants' actions violated Welbig's civil rights, which
makes the Court hesitate even more to bring the jurors in for questioning when sufficient evidence
exists to support the verdict in this case. The jury was instructed to decide the ease based solely on

the evidence presented, and there is no reason to doubt that the jury based its decision only on
evidence formally presented at trial.

CONCLUSION

There is a legally sufficient basis for the verdict rendered by the jury, and Welbig's
substantial rights were not prejudiced by the closing argument at trial. Additionally, Welbig's
allegations ofjuror misconduct do not warrant an evidentiary hearing. Accordingly,
IT IS ORDERED that Plaintiffs Motion for New Trial (doc. 65) and Motion for
Evidentiary Hearing (doe. 82)are denied.
Dated this 14th day of February, 2017.
BY THE COURT:

Aajt3JUJUuuL

I^wrence L. Piersol
District Court Judge

Deputy