Juror’s Failure to Disclose Family Member’s Similar Injury Involving Similar Product Did Not Warrant New Trial

Last month, a New York federal court ruled that a prospective juror’s alleged failure to disclose in a products liability suit that a family member of his had been injured under circumstances similar to the plaintiff’s, while using the same product, did not warrant a new trial. Leibstein v. LaFarge North America, Inc., — F. Supp. 2d—, No. CV-06-6460, 2011 WL 499952 (E.D.N.Y. Feb. 14, 2011). The case involved a plaintiff who allegedly suffered third-degree burns to his knees while laying a portland cement product in his basement. He filed suit on theories of strict liability and negligence, and his wife joined the suit with a claim for loss of consortium.

The jury returned a verdict in favor of the plaintiffs in the amount of $125,400. Interestingly, it was the plaintiffs who alleged that a new trial was warranted based on the juror’s alleged failure to disclose during voir dire a similar injury to a family member. The Court noted that the request “presumably was triggered by plaintiffs’ disappointment as to the size of the award.”

The plaintiffs’ motion for a new trial was based largely on information supplied in an affidavit authored by the injured plaintiff’s wife. According to her submission, she spoke with several jurors following the trial during which time she became aware of facts previously undisclosed. Specifically, she learned from these jurors that another juror, “juror number four,” had disclosed during deliberations that a member of his family similarly had been burned while using a portland cement product. The juror failed to disclose this information, in spite of the fact that this information was responsive to questions asked of the jury panel on voir dire.

One might initially wonder on what theory the plaintiffs would hang their hat. It certainly seems as though the defendant would be most prejudiced by the fact that a juror’s family member was injured in the same way as the plaintiff allegedly was. The plaintiffs’ theory was this: “Most probably, this person did not bring a lawsuit or receive any compensation” and, accordingly, the juror was unsympathetic to plaintiffs’ claims. Although it is unclear what damages were submitted by the plaintiffs to the jury, it certainly doesn’t seem that $125,400 was entirely “unsympathetic.” In any event, the court disagreed with the plaintiffs’ allegation that had this information been disclosed by the juror, there would have been valid basis for a challenge for cause.

Thus, the court held that a new trial was not warranted, and the verdict should stand. The court based its ruling on the fact that there was no dispute at trial that an improper use of portland cement could cause burns. This was therefore not an issue at trial. Rather, the “crux of the liability dispute” was whether the packages of cement purchased by the plaintiff contained adequate warnings of that hazard. Accordingly, the information was not sufficient to warrant a new trial. Furthermore, the court held the “sketchy, second- and third-hand information” provided by the plaintiffs did not warrant a post-verdict inquiry into the juror. The court concluded instead that the $125,400 “verdict fits comfortably within the realm of reasonableness.”

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