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Jeffrey Leibstein and Elena v. Lafarge North America

February 14, 2011

JEFFREY LEIBSTEIN AND ELENA LEIBSTEIN,
PLAINTIFFS,
v.
LAFARGE NORTH AMERICA, INC., LAFARGE BUILDING MATERIALS, INC., ONE OR MORE OF WHICH ARE D/B/A/ LAFARGE CORP., AND THE HOME DEPOT,INC., DEFENDANTS.



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

MEMORANDUM AND ORDER

Presently before the Court is a motion by plaintiffs Jeffrey Leibstein and Elena Leibstein, brought pursuant to Fed. R. Civ. P. 59, seeking a new trial.

BACKGROUND

Jeffrey Leibstein purchased twelve ninety-four pound bags of portland cement (the "Product") from Home Depot on November 28, 2004. After mixing the portland cement with other elements, and while using the resulting concrete to lay a radiant-heat floor in his basement on December 5, 2004, he sustained third-degree burns to his knees. Suit was commenced based on those injuries against Home Depot and the other defendants listed in the caption under a series of theories, including the purported misbranding of the Product by the manufacturer LaFarge North America, Inc. In addition, Elena Leibstein asserted a loss of consortium claim.

The case was tried for several weeks in November 2010, with the jury reaching a verdict in favor of Jeffrey Leibstein on November 29, 2010 in the amount of $125,400.00.*fn1 Judgment was entered on November 30, 2010. The current motion for a new trial - presumably triggered by plaintiffs' disappointment as to the size of the award - was timely filed six days thereafter. See Fed. R. Civ. P. 59(b).

MOTION FOR NEW TRIAL 1. Basis for Plaintiffs' Motion In support of plaintiffs' motion for a new trial, Elena

Leibstein explains:

Following the discharge of the jury, my husband and I spoke with four of the eight jurors. During those conversations, I was informed that, during the deliberations, two jurors disclosed facts that were unknown to me and my attorneys. Nor were these facts disclosed by the jurors during the selection process held on November 15, 2010.

Specifically, juror number four, David Donlon ["Donlon"], disclosed that a member of his family had been burned while using a Portland Cement product. Additionally, juror number five, John Bunchuck ["Bunchuck"], disclosed that he had been or was a defendant in a civil lawsuit. Neither of these facts were mentioned or disclosed in jury selection, although I recall that such questions were asked of the people who comprised the prospective panel of jurors.

I am advised my attorney that had he been aware or advised of these facts, that he would have sought what is called a 'challenge for cause' or exercised what is called a 'peremptory challenge' as to one or both of these gentlemen. He also advised me that these non-disclosed facts may very well have entered into the deliberation or the thought processes of these two or other jurors in rendering the verdict.

I strongly feel, given these non-disclosures, that we did not receive a fair deliberation of the issues in the case by an impartial jury.

Dec. 2, 2010 Aff. of Elena Leibstein, ¶¶ 4, 5, and 6.

Plaintiffs' basis for seeking a new trial as outlined above is supplemented by the comment that an "analysis of the verdict sheet . . . leads to the inescapable conclusion that it was a result of a compromise verdict." (Pl.'s Mem. Law at 2.) Plaintiffs venture the view that Jurors Donlon and Bunchuck "very well might have been the catalyst[s]" for the perceived compromise verdict. (Id. at 3.)*fn2

2. Defendants' Position

In opposing the requested relief, defendants argue (1)

plaintiffs do not have standing to seek the requested relief given the "high-low" agreement entered into between the parties during jury deliberations, and (2) even if plaintiffs' argument is addressed on the merits, the proffered ...


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