Imagine a remake of “12 Angry Men” where instead of fidelity to the principle of innocent until proven guilty, Henry Fonda’s Juror No. 8 is motivated by spite against the law firm that represented his wife in their divorce. That’s essentially what one plaintiff in Florence County claims happened at her trial, but the South Carolina Court of Appeals ruled March 26 that the allegations don’t entitle her to a new trial.
The plaintiff, Susan Ann Bell Lynch, had suffered a deep cut to her Achilles tendon while moving furniture out of a storage, and she sued the storage company for negligence. The jury ruled in her favor and awarded her $246,068.42 — the exact amount of the medical expenses she claimed resulted from her injury — but no other damages. Lynch asked the court for a new trial on the question of damages, arguing the jury failed to consider evidence of noneconomic damages, but the circuit court denied that motion.
At trial, Carolina Self Storage argued that most of Lynch’s medical expenses resulted from her ignoring her physician’s advice to stay off her foot and keep her cast dry. (Shortly after the injury, Lynch had ruptured the tendon while climbing stairs and required surgery. The wound later became infected, requiring more surgeries.) The jury agreed and found Lynch 50 percent at fault for her injuries, and the court reduced the verdict accordingly.
So although Lynch nominally won her case, the award was a disappointment. Her attorneys soon had reason to suspect that the jury’s stinginess may have had causes that went beyond the evidence presented at trial, however.
Then we’ll sit here till Doomsday
After the trial, the jury foreperson told Lynch’s attorney that the jury was biased and used improper information to reach its decision. According to the foreperson’s affidavit, “One of the jurors stated she could not stand [Lynch’s attorney] and Ms. Sue Lynch was getting nothing. I told her she could not punish [Lynch] for not liking [her attorney]. She said she did not care we would sit there until doomsday [because Lynch] wasn’t going to get anything and it would end up in a hung trial and she still would not get anything.”
At trial, Lynch testified that she had a friend who was a doctor’s wife. The foreperson said that some jurors complained that Lynch “could afford to live beside a doctor,” and that she therefore must be wealthy, and that this prejudiced the jury against Lynch. “The only thing they were concerned about was Ms. Lynch not getting anything,” the affidavit read.
The affidavit didn’t name the jurors who made the comments, but Lynch’s attorneys discovered that their firm, Ballenger, Barth, Hoefer & Lewis, represented one juror’s ex-husband in her divorce. A partner at the firm, Nicholas Lewis, submitted an affidavit stating his belief that the juror who expressed her intense dislike for Lynch’s lawyer was the one involved in the divorce. Lynch requested a new trial based on the affidavits, alleging juror misconduct that affected deliberations and a juror’s intentional concealment of information during the questioning of potential jurors.
The court denied the motion, finding the foreperson’s affidavit was inadmissible and no intentional concealment occurred. The court also denied Lynch’s request to take juror testimony. On appeal, the Court of Appeals affirmed all of those rulings.
‘Beside’ the point, you could say
Under Rule 606(b) of the South Carolina Rules of Evidence, a juror’s affidavit describing deliberations is not admissible to challenge the validity of the verdict, but can be used to determine if extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. The trial court ruled that the affidavit didn’t allege misconduct because it didn’t allege that the jury received evidence or influence from outside sources.
The Court of Appeals said there was evidence in the record to support that ruling. Because Lynch testified about her friend, the jury could readily have concluded they lived “beside” each other, the court said. As such, the foreperson’s affidavit was inadmissible.
“In this case, the foreperson’s affidavit demonstrates nothing more than a generalized bias against a party unconnected to any specific facts about Lynch or the accident that are not in the record. Rule 606(b) requires the exclusion of testimony or affidavits by jurors that claim other jurors expressed generalized bias against a party during jury deliberations,” Chief Judge John Few wrote for the court’s 2-1 majority.
Lynch argued that the juror was biased for a reason outside the record because she was the adverse party in previous lawsuit, but the Court of Appeals disagreed, finding that Lewis’ affidavit provided only speculation that the same juror made the comments, or if so, to connect the juror’s bias to the previous litigation.
I don’t care what everyone else does
In South Carolina, a juror’s failure to disclose information during the questioning of potential jurors warrants a new trial only if a juror intentionally conceals information that would have been a material factor in one party’s use of its juror challenges. The Court of Appeals agreed with the trial court that none of the questions put to potential jurors unambiguously required a juror to disclose that her ex-husband had been represented in divorce proceedings by another member of Lynch’s attorney’s law firm.
The trial judge asked potential jurors if any of them had any type of business relationship with the law firms involved in the case. The Court of Appeals agreed that since the juror’s interaction with Lewis was adversarial, it wasn’t what an average juror would characterize as a “relationship,” and her failure to volunteer the information wasn’t unreasonable given the question’s ambiguity. The appeals court said it’s not a juror’s responsibility to anticipate what an attorney might be seeking by asking a particular question.
“We do not doubt the disclosure of this information would have given Lynch valuable information to use in exercising peremptory challenges. However, the responsibility for obtaining such information falls on the attorneys to request precise voir dire questions that are reasonably comprehensible to the average juror,” Few wrote.
Lynch had argued that two other jurors’ responses to the questions proved they were reasonably comprehensible. One juror said Lynch’s attorney represented him in his divorce, and another said his wife had a lawsuit against a partner of Lynch’s attorney’s firm. Both were dismissed by the trial judge.
The Court of Appeals again disagreed, finding no authority “that one juror’s response to an ambiguous question with the same information not disclosed by another juror renders the question comprehensible, or the juror’s silence intentional concealment. Rather, a court should focus on the voir dire question—not on answers given by other jurors—to determine whether it unambiguously calls for the challenged juror to answer,” Few wrote.
The trial court had also asked if any member of the jury panel knew of any reason “whatsoever” why they should not sit on a jury in the case, “with particular emphasis being placed upon your ability to be fair and impartial to both the plaintiff and the defense?” The Court of Appeals said that question also did not unambiguously call upon a juror to disclose such information.
A dissent, and lessons learned
Because the foreperson’s affidavit was not admissible and there was no evidence that a juror intentionally concealed information, the Court of Appeals said the trial court was correct in not taking juror testimony regarding the allegations of misconduct. On that issue, Judge Daniel Pieper dissented from the rest of the court, arguing that Lynch presented sufficient information to the trial court to warrant an evidentiary hearing to allow the parties to further develop the allegations of juror misconduct.
Kirby Shealy III of Adams and Reese in Columbia represented Carolina Self Storage. Kevin Barth and Brendan Barth of Ballenger, Barth, Hoefer & Lewis in Florence represented Lynch.
Kevin Barth said he was disappointed and surprised by the outcome. He said that in his 31 years of practicing, the question asked of potential jurors had consistently elicited responses like the one he believed the juror should have provided.
“The lesson for future lawyers is, you better pay very close attention to the voir dire questions and ask directly what it is you want to know from potential jurors,” Barth said. “I guess the [other] lesson we’ve learned is, don’t let a layperson draft her own affidavit.”
Barth said his client was still evaluating her options, but said an appeal of the ruling was unlikely. Shealy declined to comment on the case.
The 14-page decision is Lynch v. Carolina Self Storage Centers (Lawyers Weekly No. 011-031-14). The full text of the opinion is available online at sclawyersweekly.com.
Follow David Donovan on Twitter @SCLWDonovan