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October 2, 1986


The opinion of the court was delivered by: LEISURE

LEISURE, District Judge :

In this action, the United States Football League and certain of its member clubs (hereinafter collectively referred to as the "USFL") have brought suit against the National Football League, its commissioner and certain of its member clubs (hereinafter collectively referred to as the "NFL") for the NFL's alleged violations of Sections 1 and 2 of the Sherman Anti-Trust Act, 15 U.S.C. ยงยง 1 and 2, and of the common law. After ten weeks of trial, the jury unanimously rendered a series of general verdicts and answered numerous special interrogatories by entering their responses on a jury verdict sheet, Court Exhibit 16, which had been prepared by the Court after consultation with the parties and due consideration of their respective objections.

 With regard to the USFL's claim of actual monopolization, the jury found the NFL liable, concluding that defendants had willfully acquired or maintained monopoly power in a relevant market consisting of major league professional football in the United States. See Court Exhibit 16 at 3 (Question No. 4). *fn1" The jury also found that the NFL's unlawful monopolization of a relevant market had caused injury to plaintiffs' business or property. Id. (Question No. 5). Despite these findings, the jury chose to award plaintiffs only nominal damages, concluding that the USFL had suffered only $1.00 in damages as a result of the NFL's unlawful conduct. See id. at 11 (Question No. 17).

 Plaintiffs were less successful on the remainder of their antitrust claims. The jury found that none of the defendants had violated Section 2 of the Sherman Act by attempting to monopolize a relevant market, id. at 5 (Question No. 7), or by conspiring to monopolize. See id. at 8-9 (Questions Nos. 12-14). In addition, the jury found that even though one or more of the defendants had participated in a contract, combination or conspiracy to exclude competition within major league professional football, id. at 12 (Question No. 20), that combination did not constitute an unreasonable restraint of trade in violation of Section 1 of the Sherman Act. See id. (Question No. 21). The jury also found that the NFL's contracts with all three television networks for the right to broadcast the league's regular season and championship games through the 1986-87 season were not an unreasonable restraint of trade violative of Section 1. See id. at 14 (Question No. 24). Finally, the jury rejected plaintiffs' "essential facilities" claim, specifically finding that defendants did not have the ability to deny actual or potential competitors access to a national broadcast television contract. Id. at 17 (Question No. 33).

 None of the defendants were found liable on plaintiffs' common law claims, see id. at 20, 23, 26, a result to which the USFL has not objected. The USFL has, however, moved for judgment notwithstanding the verdict with respect to each of the antitrust claims which were rejected by the jury. *fn2" In addition, the USFL has moved, pursuant to Fed. R. Civ. P. 59, for a new trial. The USFL has specifically requested that the new trial be limited to the issue of damages, since plaintiffs see no error in the jury's determination that the NFL unlawfully monopolized professional football in the United States.

 The NFL opposes the USFL's motions in all respects, and has itself moved for judgment n.o.v. with respect to the jury's verdict on the USFL's claim of actual monopolization.

 Having carefully considered all issues raised by counsel's extensive submissions, I have concluded that there is no justification for disturbing any of the jury's verdicts in this case. Accordingly, plaintiffs' and defendants' post-trial motions are denied in their entirety. The explanation for this ruling set forth below is not meant to be an exhaustive discussion of the plethora of arguments raised by counsel in their papers and on oral argument of the motions. To the extent that a specific objection to the verdicts or to the Court's jury instructions is not discussed herein, it may be presumed that the argument has been considered and found to be without merit.



 Plaintiffs argue that a new trial is warranted on several grounds, including: 1) jury confusion, manifested by the jurors' public statements and by the inconsistency of the verdicts; 2) the compromise nature of the verdict; 3) the inadequacy of the award; and 4) the trial court's failure to give correct instructions, particularly with respect to damages.

 A. Jury Confusion

 Under Fed. R. Civ. P. 59(a), "[a] new trial may be granted . . . in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law." The NFL does not dispute the proposition that "[a] trial judge may order a new trial if he suspects that the jury verdict reflects confusion." Nissho-Iwai Co. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1538 (5th Cir. 1984). Defendants do, however, take issue with the admissibility of certain evidence offered in support of plaintiffs' claim of jury confusion, as well as to plaintiffs' insistence that the jury's verdicts are so irreconcilable that a new trial must be granted.

 1. Post-Trial Statements by Jurors

 The USFL's lawsuit against the NFL attracted an extraordinary amount of public attention through the media. The trial was covered on a daily basis by many newspapers throughout the country, and was the subject of analysis on several network and cable television programs. Following the verdict, those jurors courageous enough to exit the courthouse by the front door were immediately surrounded by swarms of reporters eager to develop a story. Although an experience to which they were obviously unaccustomed, a few jurors did choose to subject themselves to interviews, both on that afternoon and the following day. The comments elicited from two jurors in particular, Miriam Sanchez and Margaret Lilienfeld, were widely publicized. In moving for a new trial, the USFL has cited the public comments of Mrs. Sanchez, Mrs. Lilienfeld, and two other jurors, in response to the reporters' various inquiries, as clear evidence that the verdict in this case was the result of jury confusion. See generally Plaintiffs' Memorandum of Law in Support of Motions for New Trial and for Judgment N.O.V. on Certain Claims ("Plaintiffs' New Trial Memorandum") at 53-56; Affidavit of Harvey D. Myerson ("Myerson Aff.") and Exhibits ("Ex.") 1-40 annexed thereto (newspaper articles; transcripts of television and radio broadcasts; videotaped and audiotaped segments of television and radio broadcasts).

 Specifically, the USFL asserts that the jurors' post-trial statements demonstrate: 1) that at least one juror, Mrs. Sanchez, agreed to award the USFL a single dollar in damages based upon her belief that the Court could increase the amount of damages; and 2) that the jurors were generally confused, both by the Court's instructions and by their own notions of the possible consequences of their verdict.

 The USFL's desire to impeach the verdict by what plaintiffs have described as the "public record of confusion" raises a threshold issue -- whether this Court may properly consider any evidence of post-trial statements by jurors in deciding plaintiffs' motion for a new trial.

 At common law, it was well-settled that "a juror cannot impeach his own verdict," and that courts should not disturb "verdicts solemnly made and publicly returned . . . on the testimony of those who took part in their publication." McDonald v. Pless, 238 U.S. 264, 267, 59 L. Ed. 1300, 35 S. Ct. 783 (1915). According to the United States Supreme Court, a general rule of juror incompetency was necessary to avoid "mak[ing] what was intended to be a private deliberation, the constant subject of public investigation -- to the destruction of all frankness and freedom of discussion and conference." Id. at 267-68 (emphasis added); accord Ohanian v. Avis Rent A Car System, Inc., 779 F.2d 101, 110 (2d Cir. 1985).

 In McDonald, the Court declined to adopt an "inflexible rule" barring post-trial testimony by a juror, since "there might be instances in which such testimony . . . could not be excluded without 'violating the plainest principles of justice.'" Id. at 268-69. The Court declined, however, to enumerate the exceptions to the general rule. See id. Eventually, Congress enacted Federal Rule of Evidence 606(b), which set forth the rule of McDonald and codified its exceptions. That rule 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 anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection 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 his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

 Fed. R. Evid. 606(b).

 Plaintiffs insist that Rule 606(b) does not render the post-trial statements of Mrs. Sanchez and other jurors incompetent for purposes of impeaching the jury's verdict. First, plaintiffs argue that Rule 606(b) does not apply because the statements were made spontaneously to courtroom observers and were in no sense prompted by the importuning or harassment of jurors by the disappointed parties or their counsel. While there is little doubt that Rule 606(b) was designed in part to prevent the latter egregious conduct, see 120 Cong. Rec. 2374-75 (1974); cf. McDonald v. Pless, 238 U.S. at 267, nothing in the rule's language even remotely suggests that the mere absence of improper conduct by the parties or their counsel opens the floodgates to the admission of juror statements concerning the jury's decisional process. Moreover, federal courts have consistently applied Rule 606(b) to exclude juror statements voluntarily made to third parties, see Scogin v. Century Fitness, Inc., 780 F.2d 1316, 1318-20 (8th Cir. 1985) (court bystander), or to the press, see United States v. Friedland, 660 F.2d 919, 927-28 (3d Cir. 1981), cert. denied, 456 U.S. 989, 73 L. Ed. 2d 1283, 102 S. Ct. 2268 (1982) (juror interview published in newspaper).

 Second, plaintiffs argue that statements by Mrs. Sanchez to the effect that she agreed to award the USFL one dollar only because she believed the Court would then calculate appropriate damages, see, e.g., Myerson Aff., Ex. 15, are admissible to prove jury confusion because such a belief could only have been based on extraneous information, a circumstance which renders Rule 606(b) inapplicable. Indeed, Congress specifically provided that "a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention." Fed. R. Evid. 606(b). However, in the absence of any substantive proffer regarding juror exposure to extraneous information, plaintiffs' argument does not warrant serious consideration. Moreover, even if Mrs. Sanchez's notion that the jury's damages award could be judicially increased were traced to an unacceptable source, it is doubtful whether her testimony could be used to impeach the verdict unless the Court were also convinced that she had shared her misconceptions with the rest of the jury. See United States v. Eagle, 539 F.2d 1166, 1170 (8th Cir. 1976), cert. denied, 429 U.S. 1110, 51 L. Ed. 2d 563, 97 S. Ct. 1146 (1977) ("A central purpose of the rule of juror incompetency is the prevention of fraud by individual jurors who could remain silent during deliberations and later assert that they were influenced by improper considerations."). Plaintiffs' own "evidentiary" submissions, however, suggest that this juror may have kept her thoughts to herself. See Myerson Aff., Ex. 5 (newspaper article quoting juror Lilienfeld's statement that "there was never any notion in my mind that we were tossing the issue of damages back into the lap of the court").

 Finally, plaintiffs make the sweeping argument that Rule 606(b) should not be applied to render juror statements incompetent when those statements concern a verdict that has been "publicly impeached," by the widespread dissemination of the jurors' post-trial comments, see Plaintiff's New Trial Memorandum at 60-61, and by the "public . . . furor over an incomprehensible and unjust verdict." Plaintiffs' Reply Memorandum of Law in Support of Motions for New Trial and for Judgment N.O.V. on Certain Claims ("Plaintiffs' New Trial Reply Memorandum") at 22. In making this argument, the USFL is asking this Court to do nothing less than negate a rule of competency enacted by Congress on the fortuitous grounds that the harsh glare of publicity has descended upon a jury which has faithfully executed its civic obligation to discharge a verdict. Yet the USFL insists that such an approach would be consistent with the Second Circuit's analysis in United States v. Moten, 582 F.2d 654 (2d Cir. 1978), in which the Court declared that "[t]he exclusionary rule [of Fed. R. Evid. 606(b)] is not absolute . . ., but yields to the need for juror testimony in situations where there is a reduced potential for harassment or embarrassment of jurors." Id. at 664. Plaintiffs fail to recognize, however, that the Court in Moten was specifically concerned with the admissibility of juror testimony regarding extraneous information improperly brought to the jury's attention, see Moten, 582 F.2d at 665, an issue which is not before this Court.

 Under the circumstances of this case, I do not hesitate to find that the post-trial statements by jurors offered by plaintiffs for the purpose of impeaching the jury's verdicts are inadmissible under Fed. R. Evid. 606(b) and may not be considered as evidence of jury confusion. *fn3"

 2. Inconsistency of Verdicts

 Plaintiffs contend that jury confusion in this case is demonstrated by inconsistencies among the separate verdicts, and by numerous inconsistencies in the special interrogatories that accompanied the general verdict. In response, the NFL argues that the verdicts are not inconsistent, and that any superficial anomalies in the jury's findings can and must be reconciled by this Court.

 a. Inconsistency among Verdicts

 The first question to be considered is whether an inconsistency among the verdicts, even if proven, would constitute sufficient grounds for a new trial. Defendants' position, that inconsistent verdicts on separate claims in a civil action are fully permissible, appears to be consistent with the law of this Circuit. See Globus v. Law Research Service, Inc., 418 F.2d 1276, 1290 n. 17 (2d Cir. 1969), cert. denied, 397 U.S. 913, 25 L. Ed. 2d 93, 90 S. Ct. 913 (1970) ("consistent verdicts are not, in themselves, necessary attributes of a valid judgment [in a civil action]"). Indeed, the Second Circuit has specifically indicated that it will tolerate inconsistent verdicts in seaman injury cases even when the jury's findings are apparently in conflict. See Henry v. A/S Ocean, 512 F.2d 401, 405 (2d Cir. 1975) (citing cases). In the words of Judge Weinfeld, "[i]nconsistent verdicts upon different counts or claims are not an anomaly in the law, which at times recognizes a jury's right to an idiosyncratic position, provided the challenged verdict is based upon the evidence and the law." Malm v. United States Lines Co., 269 F. Supp. 731, 731-32 (S.D.N.Y.), aff'd per curiam, 378 F.2d 941 (2d Cir. 1967).

 Plaintiffs have attempted to distinguish the foregoing authority by arguing that in a case such as this, in which the jury has rendered general verdicts and answered special interrogatories, Fed. R. Civ. P. 49(b) expressly authorizes new trials based on inconsistent verdicts or answers. See Merchant v. Ruhle, 740 F.2d 86, 88-89 (1st Cir. 1984) (if Rule 49(b) applies, the court is obligated to scrutinize the jury's findings for irreconcilable inconsistency). The problem with this argument is that Rule 49(b) speaks to the procedure to be followed when a general verdict is inconsistent with the special interrogatories; it does not expressly enact a procedure for reconciling inconsistencies among verdicts. *fn4"

 Nonetheless, even if Rule 49(b) is not directly applicable, this Court does not doubt its inherent authority to order a new trial in the face of verdicts which are wholly inconsistent. Cf. Diamond Shamrock Corp. v. Zinke & Trumbo, Ltd., 791 F.2d 1416, 1430 n.5 (10th Cir. 1986) (McKay, J., concurring in part and dissenting in part) (even where a party waives its right to object to inconsistencies in the verdicts under Rule 49(b), the trial court retains broad discretion under Rule 59 to grant a new trial sua sponte on the same grounds). At the same time, the Seventh Amendment imposes upon courts a constitutional obligation to search for an interpretation of the case which reconciles the verdicts, see Gross v. Black & Decker (U.S), Inc., 695 F.2d 858, 867 (5th Cir. 1983), and which respects the principle that "juries are not bound by what seems inescapable logic to judges." Morissette v. United States, 342 U.S. 246, 276, 96 L. Ed. 288, 72 S. Ct. 240 (1952). See also Machleder v. Diaz, 801 F.2d 46, 57 (2d Cir. 1986) ("The role of the appellate court is to adopt a view of the case -- if there is one -- that resolves any seeming inconsistency in the jury's verdict.").

 The USFL's basic argument is that the jury's finding that the NFL willfully acquired or maintained monopoly power is wholly incompatible with its verdicts absolving defendants of liability on the rest of plaintiffs' antitrust claims. Plaintiffs have, in effect, adopted a "domino theory" of antitrust law -- if the defendants are liable on one count, they must be liable on all.

 Plaintiffs have made several specific arguments of verdict inconsistency. The first of these arguments relates to the jury's finding that none of the defendants were liable on the USFL's conspiracy to monopolize claim. The jury reached this verdict despite finding that there was a conspiracy among one or more of the defendants to acquire or maintain monopoly power in all or portions of the business of professional football, Court Exhibit 16 at 8 (Question No. 12), and that each defendant who was a member of that conspiracy joined it with the specific intent of acquiring or maintain monopoly power. See id. at 9 (Question No. 13). Nonetheless, defendants were found not liable on the USFL's conspiracy to monopolize claim because the jury also found that no member of the conspiracy had committed any overt act in furtherance of the conspiracy. See id. (Question No. 14).

 The USFL argues that if, as the jury found, the NFL willfully acquired or maintained monopoly power, see id. at 3 (Question No. 4), it necessarily follows that defendants must have committed some overt act in furtherance of a conspiracy to monopolize. Although this argument has an appealing symmetry, it obscures the possibility that the jury may have been directing its attention to a conspiracy unrelated to the conduct that the jury did conclude was unlawful under Section 2 of the Sherman Act. In this regard, it should be noted that in a portion of this Court's charge on conspiracy to monopolize to which plaintiffs did not object, see Court Exhibit G at 80, the jury's attention was specifically directed to plaintiffs' claim that "a conspiracy among the defendants is evidenced by the Porter presentation, attended by representatives of the NFL and [its] member clubs." Charge at 85. *fn5" In light of this instruction -- and in light of the emphasis placed by plaintiffs on the Porter presentation during trial and in summation -- it is not inconceivable that, in rendering its verdict on the USFL's claim of a Section 2 conspiracy, the jury focussed on the question of whether or not the NFL had actually implemented certain aspects of the Porter presentation. Thus, it is also possible that, upon determining that defendants had in fact never carried out the Porter strategy to "conquer the USFL," the jury further decided that no "overt act" had been committed, and absolved the NFL of liability on plaintiffs' conspiracy to monopolize claim. Under the circumstances, since a plausible explanation exists for the purported inconsistency in the jury's verdicts, the trial court's obligation is to accept that explanation rather than leap to the conclusion that the jury was hopelessly confused. As the Second Circuit has observed:

 [W]ith the Seventh Amendment as an august guide and limitation, we must struggle to avoid the finding of inconsistency and "attempt to reconcile . . . by exegesis if necessary," the specific responses and the jury's overall judgment as to who should win and who should lose.

 Julien J. Studley, Inc. v. Gulf Oil Corp., 407 F.2d 521, 526-27 (2d Cir. 1969) ...

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