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United States District Court, Southern District of New York

June 25, 2001


The opinion of the court was delivered by: Haight, Senior District Judge:


Plaintiffs Nancy Cocconi, Susan Green, Marilyn Roberts, and Gloria Trujillo brought this action against the Pierre Hotel for gender-based discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a), Section 296 of the New York State Human Rights Law, and Section 8-107(a) of the New York City Human Rights Law. The case was tried before a jury from February 6 to February 15, 2001, and the jury returned a verdict in defendant's favor on all claims. Plaintiff Nancy Cocconi now moves the court to set aside the judgment and grant a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure on the ground that the jury received extraneous information that was highly prejudicial to plaintiff. For the reasons that follow, plaintiffs motion is denied.


At trial, plaintiffs endeavored to prove that the Pierre Hotel did not hire them as banquet servers because of their gender. In late summer of 1998, the Pierre Hotel interviewed 37 applicants, 30 men and 7 women, for six banquet waiter positions. From that group, six men were hired. Plaintiffs presented evidence at trial intended to show that the Pierre Hotel had hired very few women as banquet servers in the past, that plaintiffs were treated differently in their interviews and were evaluated by different standards than their male counterparts, and that plaintiffs had significantly more experience as banquet servers than the male applicants who received job offers. Defendant presented evidence purporting to show that plaintiffs were treated similarly to male applicants in their interviews, that the successful applicants presented themselves better than plaintiffs did in their interviews, and that the interviewer generally gave great weight to prior experience at the Pierre Hotel, even in positions other than banquet server. At the end of the trial, the jury returned a verdict for defendant.

Following the verdict, counsel for plaintiffs and counsel for defendant approached the jurors and talked with some of them. Juror Number 1 and Juror Number 6 told counsel for plaintiffs that Juror Number 9, characterized by counsel as a "corporate travel consultant," communicated her personal knowledge of the New York hotel industry to the jury. In particular, they said that Juror Number 9 told the jury that the hotels in which Cocconi had worked, including the Roosevelt Hotel, the Algonquin Hotel, and the Hilton Hotel, were not of the same quality as the Pierre Hotel. The jurors also discussed with counsel for plaintiffs their level of familiarity with the hotel industry and the extent of their reliance on the information communicated by Juror Number 9.*fn1

Counsel for plaintiff called these events to the Court's attention in a letter. Upon learning of counsels' conversations with jurors, the Court on February 28, 2001, ordered the parties to refrain from further contact with jurors without special permission from the Court. In its order, the Court withheld judgment as to whether any post-verdict relief would be warranted. Soon thereafter, plaintiff Cocconi filed this motion to set aside the verdict and grant a new trial on the grounds that extraneous, prejudicial information was communicated to the jury. Plaintiff's motion was filed within ten days of the entry of judgment, as required by Rule 59(c).


Courts have the responsibility to ensure that parties to litigation are afforded a fair trial, with a verdict based only on properly admitted evidence. See Bulger v. McClay, 575 F.2d 407, 408 (2d Cir. 1978) ("[O]ne of the precepts of our system is that the "conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print."'), quoting Patterson v. Colorado, 205 U.S. 454, 462 (1907) (Holmes, J.). Courts are ordinarily reluctant, however, to probe a jury's deliberative process to examine the basis for a jury's verdict. See Ohanian v. Avis Rent A Car System, Inc., 779 F.2d 101, 110 (2d Cir. 1985) (noting that courts should not "make what was intended to be a private deliberation, the constant subject of public investigation"), quoting McDonald v. Pless, 238 U.S. at 264, 267-68 (1915); 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 influences."); see also United States v. Shakur, 723 F. Supp. 925, 935-36 (S.D.N.Y. 1988) (Haight, J.), aff'd, 888 F.2d 234, 237 (2d Cir. 1989).

Rule 606(b) of the Federal Rules of Evidence strikes a balance between the responsibility to ensure a fair trial and the policy against interference with jury deliberations. A court may consider testimony from trial jurors "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." Fed. R. Evid. 606(b). Furthermore, if a court is aware of clear evidence that the jury was exposed to extraneous prejudicial information, the court can authorize limited investigations or hearings to confirm exactly what information was communicated to the jury so that it may determine whether a new trial is warranted. Moon, 718 F.2d at 1234 ("[A] trial court is required to hold a post-trial jury hearing only when. . . . there is clear, strong, substantial and incontrovertible evidence, that a specific non-speculative impropriety has occurred which could have prejudiced the trial of a defendant.")(citations omitted). On the other hand, trial jurors may not testify as 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 concerning the juror's mental processes in connection therewith," nor may evidence from any other sources on that point be considered. Fed. R. Evid. 606(b). If it is shown that extraneous information was brought to jurors' attention, the court assesses the prejudicial impact of the information by an objective standard. Bibbins v. Dalsheim, 21 F.3d 13, 17 (2d Cir. 1994)("Where an extraneous influence is shown, the court must apply an objective test, assessing for itself the likelihood that the influence would affect a typical juror.") (citation and internal quotation marks omitted); see also United States v. Greer, 223 F.3d 41, 55 (2d Cir. 2000)(finding that extrinsic information would not have influenced "hypothetical average juror").

Therefore, I will consider evidence submitted by plaintiff regarding information communicated by Juror Number 9 to the jury, but I will not consider evidence submitted by plaintiff regarding the effect of that information on the mental processes of other jurors. See Bibbins, 21 F.3d at 18 ("Petitioner argues that a finding of no actual prejudice is incompatible with Mr. Urban's affidavit, which expressly states that he was swayed by the introduction of extraneous information. This argument is necessarily grounded in state evidentiary rules, as the Federal Rules of Evidence preclude consideration of a juror's mental processes."). Plaintiff necessarily presents hearsay evidence, the affidavit of counsel, because the Court did not give her permission to contact the jurors again to obtain affidavits. Since I find that the extraneous information that plaintiff alleges reached the jury was not prejudicial, there is no need to hold a hearing or otherwise obtain direct testimony from jurors to confirm plaintiffs allegations.

The determination whether to grant a new trial because of the jury's exposure to extraneous information depends not on "the mere fact of infiltration of some molecules of extra record matter. . . but the nature of what has been infiltrated and the probability of prejudice." United States ex rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir. 1970); see also Bibbins, 21 F.3d at 17; Greer, 223 F.3d at 55*fn2 The assessment of prejudice is highly dependent on the particular facts of the trial at issue, but decisions in prior cases offer some guidance. See Moon, 718 F.2d at 1234 ("Although the circumstances in the decided cases are instructive, each situation in this area is sui generis.").

The opinion in Owen v. McMann, written by Judge Friendly, is frequently cited on the subject of extraneous information in the jury room. In that case, several jurors were familiar with the reputation of one of the defendants and shared their knowledge with the other members of the jury. The court summarized the extraneous information communicated to the jury as follows:

In substance, the jurors or some of them were told by other jurors during the trial and the deliberations: that the defendant had been in trouble all his life; that he had been suspended from the police force in connection with the unauthorized use of a prowl car; that he had been involved in a fight in a tavern; that one of the juror's husband was an investigator and that he knew all about plaintiffs background and character, which was bad; and that petitioner's father was always getting him out of trouble.

435 F.2d at 815. The court noted that while the modern juror must reach a verdict based on evidence presented at trial, the traditional role of the juror as the voice of the community still has some validity, and due process would not be violated just because "jurors with open minds were influenced to some degree by community knowledge that a defendant was 'wicked' or the reverse." Id. at 817. The court distinguished general experience from specific facts and then concluded:

Owen's case falls on the impermissible side of this by no means bright line, although perhaps not by much. On the basis of the judge's findings, the jurors' statements went beyond Owen's being something of a ne'er-do-well; they included allegations of at least two specific incidents which had not been and probably could not have been received in evidence, and which Owen had had no opportunity to refute.

Id. at 818-19.

Bibbins v. Dalsheim involved a state prisoner's habeas corpus petition under 28 U.S.C. § 2254. "A few minutes after a street sale of cocaine to an undercover agent, police spotted Bibbins across the street and arrested him because he fit the description of the seller." 21 F.3d at 14. Following his conviction, Bibbins argued to the state court and later on habeas corpus that "[o]ne juror told the others that she was a resident of the area in which the transaction and arrest took place and that there were no open places of business there." Id. Bibbins offered proof, in the form of juror affidavits, "that this statement influenced at least one other juror to render a guilty verdict on the theory that the absence of other people made the street identification of the defendant more compelling." Id.

The district court denied relief. On appeal, the Second Circuit applied Rule 606(b) and disregarded the jurors' descriptions of the effect the extraneous statement had upon them. "Even when a juror attests to receiving information outside the record, the juror may not go on to testify about the effect of that information on the juror's mental processes or the jury's deliberations." Id. at 17. Instead, the court applied the objective test and affirmed the denial of habeas relief.

It is instructive to consider the Bibbins court's rationale in some detail. First, the Second Circuit concluded that "there was no juror misconduct." Id. at 14. The court explained that general knowledge about the community is not the sort of extraneous information that must be excluded from the jury room:

Ms. Krainak's observation concerning the life of this community is part of the fund of ordinary experience that jurors may bring to the jury room and may rely upon, in the same way that another juror may know that Times Square is busy all night or that there are doormen along stretches of Park Avenue.

Id. at 17 (citing McMann, 435 F.2d at 817).

Second, the court held that the information about the scene of the crime "would have had no substantial and injurious influence on a reasonable jury." Id. at 14. First, the information was cumulative; there was a photograph in evidence showing that shops in the vicinity were boarded up. Id. at 17 ("We think this information insufficiently prejudicial to warrant a writ of habeas corpus. To begin with, the extra-record information provided by Ms. Krainak was cumulative. The State introduced into evidence a photograph showing that the shops in the vicinity were boarded up. Ms. Krainak's personal observation to the same effect revealed little that could not be seen in the photograph."). Furthermore, the information was not likely to affect a reasonable juror's assessment of any critical issue in the case. Id. at 17-18 ("Finally, the extra record information was relevant only to Rodrick's identification of Bibbins. . . . [which was not] essential to the government's case. . . . The strength of the State's case against Bibbins thus precluded the possibility that the extra-record information provided by Ms. Krainak would have a substantial and injurious effect on the verdict of a reasonable jury.").

McMann and Bibbens instruct that jurors may permissibly share their knowledge and experiences regarding the community in general and the reputations of institutions, entities, or members of the community. See also Bulger, 575 F.2d at 412 ("It would be naive to suggest that individual jurors leave all their preconceptions, values and insights on the doorstep when they enter the jury room. Indeed, we encourage jurors to bring their experiences to bear during deliberation. The line between this permissible activity and the consideration of improper evidence is seldom clear. Yet, where specific facts enter the crucible of decision without appropriate safeguards, the constitutional role of the jury is undermined. . . .")

Any statements made by Juror Number 9 regarding the relative quality of New York City hotels were not improper. Such information concerns the general reputations of well-known public places in New York City. Plaintiffs could not have expected that no jurors had heard of these hotels or were aware of their relative degrees of prestige. The fact that Juror Number 9 was a "corporate travel consultant" does not change the nature of the information imparted.*fn3 Jurors are entitled to bring their own general experiences to bear. Bulger, 575 F.2d at 412. It may certainly be true, as plaintiff contends, that most New Yorkers and presumably most members of the jury are not wealthy enough to frequent establishments such as the Pierre Hotel. But particular information need not be known by all or even most members of the jury for it to be acceptable as part of their combined common knowledge about their community. As the court in Bibbens stated, "the life of this community is part of the fund of ordinary experience that jurors may bring to the jury room and may rely upon, in the same way that [a] juror may know that Times Square is busy all night or that there are doormen along stretches of Park Avenue." 21 F.3d at 17; see also Datskow v. Teledyne Continental Motors Aircraft Prod., 826 F. Supp. 677, 689 (W.D.N.Y. 1993) (finding that information about verdict in unrelated case was just "tone more component of the jurors' body of common knowledge and experience which they brought to the deliberations, but. . . it was not prejudicial information "improperly brought to bear' upon the jury").

Even if it were improper for Juror Number 9 to convey her impressions of the relative qualities of New York hotels to the other jurors, and I hold that it was not, that information was nonprejudicial for the reason that it was cumulative of trial testimony and did not bear on any disputed issues of fact. See Bibbins, 21 F.3d at 17 (holding that information was not prejudicial, because it was cumulative and not relevant to any critical issue); see also United States v. Simmons, 923 F.2d 934, 944 (2d Cir. 1991)(holding that admission of disputed testimony was harmless because it was cumulative of other testimony); United States v. Calbas, 821 F.2d 887, 894-96 (2d Cir. 1987) (finding that information related to defendant's home address was not prejudicial, because it bore no relevance to count on which defendant was convicted); Bulger, 575 F.2d at 411 (finding that information about defendant's home address was prejudicial, because it tended to discredit defendant's excuse for being near scene of crime); Shakur, 723 F. Supp. at 936-44 (conducting extensive review of caselaw on prejudice and finding that juror's familiarity with defense witness was not prejudicial).

A perusal of the trial transcript readily demonstrates that the statement by Juror Number 9 was cumulative of undisputed evidence. There was testimony by witnesses both for defendant and for plaintiffs that the Pierre Hotel was of a higher quality than other NYC hotels. Plaintiffs did not attempt to prove otherwise. On the contrary, plaintiff Cocconi identified the Pierre's superior qualities as the reason why she wanted to work there.*fn4 The assistant director of human resources at the Pierre Hotel, Laura O'Neill, who interviewed plaintiffs, described the commitment to high-quality service at the Pierre.*fn5 She said that the service standards at the Pierre Hotel were higher than those at other hotels and stated that the Pierre was the only hotel in New York to receive a certain award for service.*fn6 She also explained how she evaluated the quality of service at other hotels and establishments where job applicants had worked.*fn7 Plaintiffs themselves acknowledged the high quality of service at the Pierre and never stated that other hotels or establishments were of the same or higher quality.*fn8 Nor did counsel for plaintiffs attempt in her closing argument to challenge characterizations of the Pierre Hotel as being of the highest quality; if anything, counsel contributed to that characterization.*fn9

Plaintiff argues that O'Neill admitted that the service at the Pierre was similar to that at other hotels; but plaintiff takes O'Neill's statement out of context. O'Neill was referring to the structure of the hotel business, not the quality of service. *fn10

Plaintiff also argues that the statements by Juror Number 9 conflicted with testimony by plaintiffs that other hotels where they had worked were comparable to the Pierre Hotel. The testimony cited by plaintiff deals with type of service, not quality of service. Some hotels employ French service at their banquets, and others employ "à la Russe," or pre-plated, service. In French service, pairs of waiters bring platters of food to the tables and serve the food onto plates while the guests are seated.*fn11 In "à la Russe" service, waiters bring individually covered plates to the tables.*fn12 The Pierre employs French service. *fn13 In describing their work experience, plaintiffs stated whether the hotels and other establishments where they had worked employed French or "à la Russe" Service.*fn14 This testimony by plaintiffs did not even touch on the relative quality of service at the hotels. The statements made by Juror Number 9 do not contradict plaintiffs' testimony. Plaintiffs never testified that the quality of service at other hotels, or other establishments, was comparable to the quality of service at the Pierre; if anything, they indicated just the opposite.

Plaintiff contends that the statements made by Juror Number 9 regarding the relative quality of hotels where plaintiff had worked and the Pierre Hotel were directly relevant to plaintiffs qualifications, a critical issue in the case. It may be true that plaintiffs qualifications, or more precisely the credibility of O'Neill's assessment of those qualifications, was a central issue at trial. Plaintiff never attempted to prove, however, that the hotels where plaintiff had worked provided the same quality of service as the Pierre Hotel, and plaintiff never endeavored to challenge testimony characterizing the Pierre Hotel as superior to other New York hotels in the service department. Therefore, statements by Juror Number 9 regarding the quality of New York hotels did not bear on a contested issue.

Extraneous information is nonprejudicial if it is cumulative of properly admitted evidence or if it has no significant relevance to any critical issue. See Bibbins, 21 F.3d at 17; Simmons, 923 F.2d at 944. Any statements made by Juror Number 9 regarding the quality of the Pierre Hotel in comparison to other New York hotels were cumulative of testimony at trial, did not bear on any issue in controversy, and therefore were not prejudicial.


Because the extraneous information imparted to the jury was not improper, and in any event was cumulative and not prejudicial, I deny plaintiff's motion for a new trial.


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