Free Reply to Response to Motion - District Court of Arizona - Arizona

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JOSEPH C. DOLAN, ESQ. (007376) 1650 North 1st Avenue Phoenix, Arizona 85003 (602) 266-7667 Fax (602) 277-9839 Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT IN AND FOR DISTRICT OF ARIZONA JERRY SIMMS, a single man, Plaintiff, vs STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation; ABC CORPORATIONS I-X; JOHN DOES I-X, Defendants. CV-03-1415-PHX-ROS PLAINTIFF'S REPLY RE: MOTION TO STRIKE EXHIBIT 4 TO THE AFFIDAVIT OF WILLIAM R. PHILLIPS IN SUPPORT OF DEFENDANT'S MOTION TO AMEND JUDGMENT

Plaintiff hereby replies to the points raised in defendant's "Response to Plaintiff's Motion to Strike" and requests that the Court enter its order granting plaintiff's motion. Plaintiff's motion should be granted because defendant does not establish that either exception to the rule of exclusion stated in FRE 606(b) applies; i.e., defendant cannot establish that "extraneous" information was brought to the jury's attention or that "outside influence" was brought to bear upon any juror; i.e., there is nothing in the affidavits to suggest that the mention of attorney's fees was anything other than a concept that the jurors themselves raised from their own consciousness. Further, defendant has completely failed to point out any significant distinction between its present argument and the argument which was rejected by this Court in TIG Insurance Co. v. Liberty Mut. Ins. Co., 250 F. Supp.2d 1197 (2003). Finally, defendant's last argument: that the Court should amputate the part of the verdict that awarded the plaintiff an unstated amount for attorney fees and then enforce the rest finds no support in the law. The defendant would rather reinstate a verdict that obviously considered damages that the Court did not allow in its instructions and then do surgery on the verdict to amputate

Case 2:03-cv-01415-ROS

Document 216

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out the part of the improper verdict that it does not like. Not surprisingly, defendant can find no law to support this proposition. The foregoing is more fully explained in the accompanying

Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES A. DEFENDANT HAS NOT ESTABLISHED "EXTRANEOUS" INFORMATION OR "OUTSIDE INFLUENCE" WITHIN THE MEANING OF RULE 606(B). Defendant has completely ignored the point that defendant must first establish that "extraneous" information was brought to the attention of, or "outside influence" was brought to bear on the jurors in reaching their verdict. There is no evidence whatsoever of either. This is, pure and simple, a case where the jurors ­ one or more of them ­ had it in their thought process or consciousness that attorney fees should be considered in rendering their verdict. There is no

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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suggestion that someone snuck a law book or statute into the jury room which discussed the compensability of attorney fees. There is no suggestion that a book or magazine discussing attorney fee awards was read by the jurors. Plain and simple, there is nothing to establish "extraneous information" was brought in or "outside influence" was brought to bear. Ironically, the case cited by defendant at p. 2 of its response, Sea Hawk Seafoods v. Alyeska Pipeline Service Co., 206 F.3d 900 (9th Cir. 2000) offers a telling illustration of just what is meant by the term "extraneous information" as used in FRE 606 (b). The court states: "Our precedents distinguish between introduction of `extraneous evidence' to the jury and ex parte contacts with a juror that do no include the imparting of any information that might bear on the case... Where extraneous information is imparted, as when papers bearing on the facts get into the jury room without having been admitted as exhibits, or when a juror looks things up in a dictionary or directory, the burden is generally on the party opposing a new trial to demonstrate the absence of prejudice..." (Emphasis supplied) Id., at 908
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But this is not an extraneous information case. The bailiff did not tell Juror B anything about the facts or the law. (Emphasis supplied) Id,.at 908.

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In Multiflex, Inc.v. Samuel Moore & Company, 709 F.2d 980 (5th Cir. 1983) the court considered the effect of affidavits of jurors which stated that they considered punitive damages in reaching their verdict. The affidavits also suggested that the jurors reached a "quotient" verdict. The court rejected the argument that the affidavits established "extraneous" influence which could be considered: "Punitive damages are impermissible in an antitrust award. The treble damage provisions accomplish, in part, a similar purpose. However, we are also cognizant of the need to respect the finality of a jury verdict. In general, it is unwise to leave open to doubt the propriety or finality of a jury's decision if there is any credible basis for supporting its verdict. Rule 606(b) of the Federal Rules of Evidence discusses the limited permissible inquiry into the validity of a verdict. An affidavit discussing the jury's decision-making process is cognizable only to discover 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). The court, therefore, properly could not consider Moore's charges that the jury awarded impermissible punitive damages or arrived at a `quotient verdict.' Wilkerson v. Amco Corp., 703 F.2d 184 (5th Cir.1983); O'Rear v. Fruehauf Corp., 554 F.2d 1304 (5th Cir.1977)." Id. at 998.

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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Similarly, in Michaels v. Michaels, 767 F.2d 1185 (7th Cir. 1985), the Court considered a challenge from a defendant based upon affidavits from jurors indicating that they had included prejudgment interest in their award without being instructed to do so. The court stated: The defendants also challenge the district court's refusal to consider a juror's affidavit that said the jury had included prejudgment interest in the $750,000 compensatory damages award. Defendants argue that, since an award of prejudgment interest is based on fairness and equitable considerations, the district court should have considered the affidavit. We disagree. Rule 606(b) of the Federal Rule of Evidence precludes a juror from testifying about jury deliberations. This rule was designed to protect the jury's deliberative process--including jurors' statements, mental and emotional reactions, and votes. Fed. R. Evid. 606(b); Wiedemann v. Galiano, 722 F.2d 335, 337 (7th Cir. 1983). As the Supreme Court stated, if jurors were competent to impeach their verdict, they `would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict.' McDonald v. Pless, 238 U.S. 264, 267-68, 59 L.

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Ed. 1300, 35 S. Ct. 783 (1915). We recognize that if the affidavit is true the plaintiff will receive an undeserved bonanza in the form of the district court's award of prejudgment interest. Nevertheless, we believe that allowing a juror's affidavit to influence a district court's opinion on prejudgment interest presents much the same problem as permitting an affidavit to support a motion for a new trial--context in which we have already held a juror's affidavit to be incompetent under Rule 606(b). See Wiedemann, 722 F.2d at 337. The defendants' attempt to characterize part of the $750,000 as prejudgment interest is in essence an attempt to impeach the award; therefore the district court properly refused to consider the affidavit. See Wilsmann v. Upjohn Co., 572 F. Supp. 242, 244-45 (W.D. Mich. 1983) (juror's affidavit not considered by court when awarding prejudgment interest)." In sum, the case authorities all establish that defendant has not come forth with evidence of

10 "extraneous information" or "outside influence" as those terms are used in FRE 606(b) and as applied 11

JOSEPH C. DOLAN

by the courts. Simply stated, defendant has sought to impeach the verdict based upon a suggestion
1650 North First Avenue Phoenix, Arizona 85003

12 that the jurors considered a concept which they engendered through their own consideration of the 13 case. This is clearly not permitted as the above cases attest. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 B. DEFENDANT'S SUBMISSION IS NOTHING MORE THAN AN ATTEMPT TO IMPEACH THE VERDICT Defendant protests that it is really not attempting to "impeach" the verdict with these affidavits. Yet, the defendant's "Motion to Amend" can be seen as nothing other than an attempt to do just that. For example, at p. 5 of its "Response" filed on August 31, defendant argues that the Court should reinstate the jury's first verdict, then amputate from it the part when the jury includes an award of attorney fees as damages for bad faith. This is not only an attempt to "impeach" the verdict, it is an attempt to flatly rewrite the verdict. The affidavits clearly cannot be used to support such a result under FRE 606 (b). Defendant cites cases at p. 5 of its "response" in an effort to support its attempt to "amputate and recreate" the verdict. The cases are inapposite. Defendant cites Floyd v Laws, 929 F.2d 1390 (9th Cir. 1991) which deals with a jury decision involving special interrogatories and inconsistencies therein. The case says merely that if the court can discern from the totality of the interrogatories and verdict forms the true intent of the jury then the forms should be harmonized so as to effectuate a

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verdict within the bounds of the guiding jury instructions. See Floyd v. Laws, 929 F.2d 1390, 13961397 (9th Cir. 1991). Wright v Grinfas, 809 F. 2d 1157, 1161 (5th Cir. 1987), is basically identical in its holding to that of Floyd, supra, and for that reason offers no support for defendant's argument. In Great Pines Water Co., Inc., v. Liqui-Box Corp., 203 F. 3d 920, 925 (5th Cir. 2000), the issue had to do with margin notes handwritten on the verdict form which was not known to be the majority's verdict and which were not "directly responsive to the jury charge and verdict form." Id. at 924. The court stated the marginalia must be treated as "surplusage." Id. at 924. In the present matter we are not dealing with non-responsive comments and additions by the jury. The present issue concerns the jury's direct response to the question of damages for the tort of bad faith. As such, Great Pines is not relevant. These cases are wholly irrelevant to the issue at hand. The present issue does not concern the discretion of the court when faced with inconsistent special verdict answers or non-responsive comments by the jury. The present issue has to do with the effort of a defendant to rewrite a verdict based upon affidavits which suggest nothing more than a moment when the jurors, of their own volition and without outside influence became involved for a second or a minute with the concept of attorney fees. The cases cited by defendant in no way justify its apparent effort to not only impeach but basically rewrite the verdict for bad faith. CONCLUSION For the foregoing reasons, it is respectfully requested that the Court enter its order striking the affidavits submitted by defendant as Exhibit 4 to its Motion to Amend. RESPECTFULLY SUBMITTED this 8th day of September, 2006.

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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By

s/Joseph C. Dolan 007376 JOSEPH C. DOLAN, ESQ. 1650 North 1st Avenue Phoenix, Arizona 85003 Attorney for Plaintiff

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 8, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: William Phillips, Esq. BROENING OBERG WOODS & WILSON 1122 East Jefferson Phoenix, Arizona 85036 Attorneys for State Farm

I HEREBY CERTIFY that on September 8, 2006 I served the attached document by mailing a copy of the following: Hon. Roslyn Silver United States District Court, Suite 624 401 W. Washington Street Phoenix, Arizona 85003-2158

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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s/Joseph C. Dolan, Esq. 007376 Attorney

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