The opinion of the court was delivered by: TYLER
Plaintiff has moved to set aside the verdict and for an order granting a new trial. Rules 50 and 59, F.R.Civ.P. Plaintiff's counsel also moves for an order specifically permitting him to interview each trial juror in this case.
This suit for damages, pursuant to the Federal Employers' Liability Act, 35 Stat. 65 (1908), as amended, 45 U.S.C. § 51 (1964), was commenced before the court and a jury on December 6 and concluded with a verdict for plaintiff in the sum of $80,000 on the evening of December 19, 1967. Although the jury rendered a general verdict as instructed, the foreman at the time of announcing the verdict volunteered the information that the jury had found contributory negligence and applied the comparative negligence damage computation.
In his formal motion papers, affidavits and voluminous brief, plaintiff's trial counsel assigns twelve specific errors committed or effected during the trial. He also charges that the jury conspired to withhold and successfully withheld from the court and counsel certain pertinent information during the jury selection voir dire, that the judge sympathized with and unduly favored the defendant throughout the trial with its rulings and that his adversary was guilty of wilful misstatements to the court in connection with a certain evidentiary issue which arose during the trial.
As defendant points out, the bulk of the eight-day trial was devoted to the presentation of plaintiff's case. Five doctors testified as to plaintiff's condition from the date of the accident up to the trial; they also gave their detailed prognoses for plaintiff's future condition and claimed disability. The issues of liability and negligence were thoroughly explored both on direct and cross examination of plaintiff's witnesses and defendant's witnesses. The jury was fully informed of plaintiff's specific claims of damages by both witnesses and documentary evidence.
Of plaintiff's twelve specific assignments of error which, in the opinion of his counsel, required the setting aside of the verdict, two necessarily were not discussed and ruled upon at trial. A third claim or assignment of error was ruled upon during trial but deserves comment because of counsel's apparent misconception of what transpired at trial and because of his unwarranted and irrelevant accusations of his adversary in that area. The nine remaining specific points listed by plaintiff's counsel in his notice of motion need not be commented upon here, either because they were adequately discussed during trial or because the matters were plainly issues of fact resolved against plaintiff by the jury. A fourth contention, raised for the first time in counsel's brief, that of the alleged improper conduct of the judge, will also be briefly commented upon in this memorandum.
The claim that the verdict was against the weight of the evidence and grossly inadequate as a matter of law.
This assertion by counsel requires little discussion. The foreman's voluntary announcement that the jury had found contributory negligence and applied the comparative negligence damage computation as instructed for such an eventuality forecloses any serious legal claim of inadequate damages. Moreover, contrary to the voluminous arguments of plaintiff's counsel, there was evidence from which the jury could find carelessness on the part of Mr. Gilroy which played a part in bringing about the accident and his resultant injuries.
The claim of improper conduct by the jury.
Plaintiff's counsel contends that his client was denied a fair trial because the jurors failed to disclose that all or most of them had experienced in their lives "an enormous sickness or injury, which personal experience dominated and controlled their evaluation of the plaintiff's case and the existence of which experiences on the part of said jurors were completely and improperly withheld from the Court and counsel during the selection of the jury".
This startling assertion is based upon an allegedly chance meeting of associate trial counsel for plaintiff with juror No. 10 after the trial. It is said that this juror informed counsel that all or most of the jurors had been obliged to overcome significant handicaps in their own lives and thus they reasoned that their verdict for plaintiff was best for him under all the circumstances -- i.e., their verdict, in their judgment, was reasonably calculated to enable Gilroy to overcome his own handicaps.
On the basis of this interview as described in an affidavit of his associate, trial counsel presses for an order permitting him to interview all the other trial jurors and requiring a hearing before the court on the basis, presumably, of these interviews. Ultimately, of course, it would be the intention of plaintiff's lawyers to move for a new trial solely on the basis of the information obtained.
In my opinion, these arguments are plainly without merit. Although no transcript of the jury selection process has been made available to me, my notes fail to indicate that plaintiff's counsel asked the court to inquire of each venireman whether or not he or she had had significant "problem" or illnesses in his or her own life. Consequently, I am at a loss to see how counsel can responsibly accuse the jurors of not giving information for which they were not asked.
Beyond this, even if it be assumed that all of the jurors were to corroborate what juror No. 10 is said to have told associate trial counsel, I cannot conceive that the law would require the verdict to be set aside under such circumstances. Certainly counsel has cited no authority for such a proposition. Similarly, I cannot conceive of any jury selection method which would cast up ...