United States District Court, Southern District of New York
May 15, 1990
DOMINICK FERRANTE, PLAINTIFF,
METRO-NORTH COMMUTER RAILROAD, DEFENDANT.
The opinion of the court was delivered by: Tenney, District Judge.
MEMORANDUM AND ORDER
This case involves a claim brought by plaintiff under the
Federal Employers' Liability Act ("FELA"). Plaintiff was injured
in a fall after being ordered into a smoky tunnel to investigate
damage to signal equipment from a track fire. Defendant denied
liability and raised the affirmative defense of contributory
negligence. On May 8, 1990, after a one-week trial, a jury
rendered a verdict in favor of plaintiff. Questions subsequently
arose about a possible mistake in interpretation about what the
jury intended to award. Therefore, the court stayed entry of
judgment pending further proceedings.
With the exception of the issues surrounding the verdict, this
case was unremarkable. The jury had been supplied with a special
verdict form that is commonly used in FELA cases. The first
question asked the jury to indicate whether defendant had been
negligent. The second asked it to decide whether that negligence
played any part in causing plaintiff's injury. The third asked it
to determine whether any negligence by plaintiff contributed to
his injury. The jury answered each of these questions in the
The fourth question required the jury to specify the relative
percentages of negligence of the plaintiff and defendant. In the
fifth question, the jury was asked to determine the damages
sustained by the plaintiff. These two questions appeared on the
verdict form as follows:
4) What were the relative percentages of fault
of the plaintiff and defendant? (Your total
must equal 100%.)
Go on to Question 5.
5) How much, if any, is plaintiff entitled to
a) Past lost income?
b) Future lost income?
(Discounted to present value)
c) Past pain and suffering?
d) Future pain and suffering?
TOTAL DAMAGES: $________
(In computing these figures, do not reduce the award to reflect
any negligence on the part of the plaintiff. This reduction will
be made by the court based upon any percentages entered in
Foreperson, please sign this verdict form and report to the
The jury answered question four by indicating that plaintiff
had been forty percent negligent, and defendant sixty percent
negligent. It did not answer all the subparts in question five,
however. Instead of indicating any breakdown of the categories of
damages, the jury left these entries blank. It simply indicated
the figure $300,000 in the space designated "TOTAL DAMAGES."
Before taking the verdict, the court inquired as to why the
jurors had not provided these figures:
THE COURT: I notice that there is no breakdown of
the damages. It is just a round figure.
THE FOREMAN: Yes sir.
THE COURT: You are unable to break it down; is that
A JUROR: We just wanted to give a lump sum.
THE FOREMAN: A lump sum.
The clerk then proceeded to take the verdict, after which the
jury was polled and discharged.
Since the court had instructed the jury not to reduce the size
of its award to account for contributory negligence, the court
would normally have entered judgment in the amount of $180,000,
or sixty percent of $300,000. As one of the jurors was on the
street leaving the courthouse,
however, counsel for plaintiff approached her and began
informally discussing the case. The juror indicated that the jury
had intended the plaintiff to recover $300,000. The other jurors
had all departed but counsel alerted the court to the discussion
and entry of judgment was stayed.
The jurors were eventually reassembled a week later and
questioned by the court on this issue. In the presence of
counsel, the jurors were asked individually what their
understanding of the verdict was. Each indicated that they
understood the plaintiff would recover $300,000.
Rule 606(b) of the Federal Rules of Evidence provides:
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 deliberation or to the effect of anything upon
that or any other juror's mind or emotions as
influencing the juror to assent to or dissent from
the verdict or indictment or concerning the juror's
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 a juror's affidavit or evidence of
any statement by the juror concerning a matter about
which the juror would be precluded from testifying be
received for these purposes.
In Attridge v. Cencorp Div. of Dover Tech. Int'l Inc.,
836 F.2d 113 (2nd Cir. 1987), the appellate court had occasion to
address a situation similar to that presented here. In
Attridge, as in this case, the trial judge had instructed the
jury in a personal injury case that he would reduce the amount of
any verdict by the amount of plaintiff's negligence. The jury
proceeded to find plaintiff eighty percent negligent, and awarded
him $100,000. This would mean that he would have recovered only
$20,000. After the jury was discharged, two jurors stated to a
courtroom deputy that the jury had intended the plaintiff to
recover $100,000. All the jurors were brought back to the court
house the next morning. As in this case, the court questioned
each of the jurors individually, asking them only: "What was your
understanding as to what the verdict was?" Each of the six
unambiguously stated that they intended the plaintiff to recover
$100,000. Over the defendant's objection, judgment was entered in
favor of plaintiff for $100,000.
The Second Circuit affirmed, observing that the rule against
impeaching a jury's verdict is intended "to promote free and
uninhibited discourse during deliberations, to protect jurors
from attempts to influence them after trial, and to preserve the
finality of verdicts." Id. at 116. Noting that Fed.R.Evid.
606(b) permits jurors to testify about extraneous prejudicial
information reaching them during deliberations, the appellate
court decided that Rule 606(b) "reflects a cautious propensity to
expand jurors' competence to testify, while avoiding wholesale
divergence from centuries of practice. But it is silent regarding
inquiries designed to confirm the accuracy of a verdict." Id.
By affirming the procedure employed in that case, the court
recognized that a limited inquiry did not frustrate the policies
underlying the general rule. Rather, the court concluded:
the interviews were intended to resolve doubts
regarding the accuracy of the verdict announced, and
not to question the process by which those verdicts
were reached. Accordingly, we affirm the district
court's use of juror interviews to ascertain whether
a mistaken verdict had been announced.
Id. at 117.
The Second Circuit's reasoning in Attridge has been
questioned by the courts of at least two other circuits. See,
e.g., Karl v. Burlington Northern R.R. Co., 880 F.2d 68, 75 n. 6
(8th Cir. 1989); Robles v. Exxon Corp., 862 F.2d 1201, 1206 n.
5 (5th Cir. 1989). It also appears difficult to reconcile with
the observation in the advisory committee notes to Rule 606(b)
or affidavits of jurors have been held incompetent to show . . .
misinterpretations of instructions [or] mistake in returning
verdict." Fed.R.Evid. 606(b) advisory committee notes (citations
omitted). As adopted, Rule 606(b) expresses a preference for
certainty and freedom from post-verdict inquiries, even when it
is manifestly clear that the jury did not understand or follow
the court's charge. The Rules Committee certainly must have
realized that such an approach would cause some hardships, but,
as adopted, Rule 606(b) reflects the reasoned judgment of the
Committee that this was a necessary result.
Nevertheless, Attridge controls this court's actions. Under
that case, the court is permitted to take notice of a jury's
unanimous post-discharge statement that it did not intend the
court to follow previously-announced procedures concerning the
reduction of any award. In light of the criticism of Attridge,
the court has considered whether it should be limited to the
specific facts of that case. Indeed, the Attridge opinion does
not indicate whether the verdict form in that case had a notation
of the type that followed question five in this case. Nor does it
reveal the details of the post-verdict conversation between the
courtroom deputy and the jurors, or who initiated it. However,
the reasoning in Attridge suggests that such distinctions would
not be controlling, and this court, therefore, has not considered
them in reaching its decision.
On the other hand, there is an additional fact supporting an
award of the full amount on the verdict form that was not present
in Attridge. The jury in this case made some indication prior
to its discharge that it intended the plaintiff to recover the
entire sum indicated on the verdict form. Admittedly, were it not
for the post-discharge questioning, the court would have
difficulty determining whether the two jurors' pre-verdict
indications that they intended the plaintiff to be "give[n] a
lump sum" meant they contemplated an award of $300,000 or
$180,000. Attridge confers the authority for the court to
consider the further evidence now part of the record. With the
benefit of these statements, it would appear that the jurors
unanimously intended to award plaintiff the full amount of
Under the authority of Attridge, and based on the record
developed subsequent to the jury's discharge, the clerk is
directed to enter judgment in favor of plaintiff in the amount of
$300,000. This order is made without prejudice to defendant's
rights under the Federal Rules to move to amend or modify the
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