Cooch v. S & D River Island, LLC

CHARLES E. MOYLAN, JR., J. (Retired, Specially Assigned). There is a venerable body of law, of which Wernsing v. General Motors Corp., 298 Md. 406 , 470 A.2d 802 (1984), is the avatar, seeking to preserve the advantages of finality and repose in jury verdicts once rendered. There is a counter body of law, of which Jenkins v. State, 375 Md. 284 , 825 A.2d 1008 (2003), is the more recent avatar, dedicated to rooting out jury verdicts that are tainted.

There is unquestioned merit in both philosophies. At times, however, they meet in tectonic collision. There is an understandable tendency in those moving for new trials on the basis of tainted verdicts to wrap themselves in the mantle of Jenkins (and several criminal cases in its slip stream) and to pay faint heed to the long procession of opinions in the Wernsing v. General Motors tradition. There is a counter tendency, as the State opposes the retrial motions, to exalt the pedigree of Wemsing and to give scant, if not disdainful, notice to Jenkins .

Opposing advocates sometimes challenge an appellate court to flip a coin between conflicting ²⁷⁹ and seemingly irreconcilable approaches. There has to be a better way. A Plague of Bedbugs The appellant, Debra Cooch, a public school custodian and a grandmother, was a longtime resident of the River Front Apartments in Savage, Maryland. She rented her apartment, in a 12-unit apartment building, from one of the appellees, S & D River Island, LLC.

The other appellee, Rolling Park Management, LLC, managed the apartment complex. Between March and July of 2010, bedbugs that had initially appeared on the third floor of the building found their way into the appellant’s apartment. The appellant promptly reported the infestation to the appellees. On three occasions over the next four weeks, a pest control company treated the appellant’s apartment with pesticides.

The human counterattack was to no avail. The appellant stopped sleeping in her bed and retreated to a couch. The bedbugs followed. The appellant made numerous complaints to the Howard County Code Enforcement Office.

Ultimately, under a barrage of complaints the appellees terminated the appellant’s lease. Concerned that her personal belongings were actually or potentially infested but unable to secure a treatment that would give her a 100% guarantee that her belongings would be free of bedbugs, the appellant left her furniture in the apartment when she moved out. She discarded many other belongings before moving in with her daughter. Her daughter incidentally forbade the appellant to bring any of her furnishings into the daughter’s home.

On November 12, 2010, the appellant filed suit in the Circuit Court for Howard County against the appellees, claiming that she had suffered both personal injury and property damage as a result of the appellees’ negligence in failing to rid her apartment of the bedbugs. A three-day trial followed before Judge Richard S. Bernhardt and a jury on August 20-22, 2012. At the trial, the core of the controversy was over the property damage. Judge Bernhardt instructed the jury, inter alia, that the plaintiff has a duty to make reasonable efforts to reduce ²⁸⁰ the damages.

On August 22, the jury returned its verdict. The jury found 1) that the appellees owed a duty of reasonable care to the appellant; 2) that the appellees breached that duty of care; but 3) that there was no causative connection between that breach and the injury suffered by the appellant. Having found no liability, the jury did not consider the question of damages. With respect to the third question, that of “causation,” the Verdict Sheet in its entirety showed: 3.

Causation: Was there a direct and substantial connection between the actions or omissions of S & D River Island, LLC and Roland Park Management, LLC, Inc. and the injuries to Debra Cooch? Yes_No_x_ The Motion For A New Trial The trial was adjourned and the jury dismissed. Daniel W. Whitney, Esq., attorney for the appellant, was, shortly after the trial adjourned, standing near the stairs in the parking lot in front of the court house entrance. He noticed a group of jurors walking in his direction.

He asked the group if they were willing to talk to him, reminding them that they were under no obligation to do so. Most continued walking to their cars, but one, known to us only as A.B., was willing to discuss the case. It is through the affidavit of Daniel Whitney in support of the new trial motion that we know what A.B. said. 1 It is skimpy, indeed. When Whitney asked, “What can you tell me?,” A.B. replied that the jury had found both a duty and a breach thereof, but that “Debra Cooch shouldn’t have discarded her property.” A.B. further volunteered that he “did some online research” and “found out that there are companies that provide fumigation services.” A.B. concluded that “it wasn’t necessary to throw her stuff away.” With respect to the ²⁸¹ appellant’s claim for bodily injury, A.B. said that he did not believe her injuries were “life threatening.” Whitney thanked A.B. for speaking to him and then walked to his own car.

He had no contact with A.B. after August 22, 2012. That brief exchange is the sum total of the appellant’s case that the jury verdict, finding no causation and awarding no damages, was the result of the impropriety on the part of juror A.B. in conducting online research. On August 30, 2012, the appellant filed a Motion for Partial New Trial “as to damages only.” Two paragraphs of the motion bore on the allegedly improper conduct of juror A.B. 1. At least one juror’s decision not to award any property damages was based on Internet research he performed during trial concerning mitigation of a bed bug infestation through fumigation.

This egregious misconduct prejudiced Plaintiff. Such information was not presented in Court as a mitigation option available to the Plaintiff. Elimination of bed bugs by fumigation would have been inadmissible at trial without foundational testimony that such a process was reasonably available in Howard County in 2010, approved by a County Code Enforcement Officer, allowed by the landlord and economically feasible. 3. Plaintiffs motion for a partial new trial must be granted because at least one juror improperly obtained information from the Internet, which improperly influenced the jury, and therefore unfairly prejudiced Plaintiff.

(Emphasis supplied). The appellant filed a Memorandum in Support of Plaintiffs Motion for Partial New Trial. On September 15, 2012, the appellees filed their Defendant’s Opposition to Plaintiffs Motion for Partial New Trial. On October 15, 2012, Judge Bernhardt issued his Order denying the partial new trial motion.

This appeal followed. ²⁸² An Insignificant Nuance There is a procedural nuance in this particular case that makes no difference to the ultimate outcome, but is unusual and may, therefore, be worthy of note. The information being proffered to establish a juror’s impropriety was, directly at least, from the affidavit of a non juror, the attorney Daniel Whitney. Whitney, however, had no direct knowledge of the alleged impropriety. He was simply the conduit for knowledge from the juror A.B. A.B. was the source of the allegedly verdict-impeaching evidence.

That the actual source of the allegedly impeaching evidence was a hearsay declarant rather than an actual or proffered witness is, however, immaterial. The source of the evidence, direct or indirect, was a juror. Our analysis will proceed, therefore, on the basis of a juror’s offering evidence to impeach the jury’s verdict. See Dorsey v. State, 185 Md.App. 82, 110 , 968 A.2d 654 (2009) (“Asking the jurors directly about their deliberations, or asking a third-party to provide hearsay testimony about the jury deliberations, would have constituted an inquiry into the validity of the verdict.”).

A Doctrine of Creditable Vintage The body of law controlling this case is, if not ancient, at least unimpeachably venerable. It did not begin with the Court of Appeals decision in Wernsing v. General Motors. Judge Rodowsky simply picked up the torch from Lord Mansfield. It was William Murray, first Earl of Mansfield and Lord Chief Justice of the King’s Bench, who decided the case of Vaise v. Delaval, 1 T.R. 11, 99 Eng.

Rep. 944, in 1785. There was an affidavit there, on a motion to set aside a verdict, from two jurors “who swore that the jury, being divided in their opinion, tossed up (presumably flipping a half crown or at least a farthing), and that the plaintiffs friends won.” Lord Mansfield declined to receive the affidavit, pointing out that any juror who even offered such information would be guilty of “a very high misdemeanor” and further observing that “in every such case the Court must derive their knowledge from some other source: such as from some person having seen the transaction through a window, or by some ²⁸³ such other means.” It is now a time-honored principle that is with justification still called Lord Mansfield’s Rule. In McDonald v. Pless, 238 U.S. 264, 268 , 35 S.Ct. 783 , 59 L.Ed. 1300 (1915), the United States Supreme Court described the origin and impact of Lord Mansfield’s Rule. Prior to 1785 a juror’s testimony in such cases was sometimes received, though always with great caution.

In that year Lord Mansfield, in Vaise v. Delaval, 1 T.R. 11, refused to receive the affidavit of jurors to prove that their verdict had been made by lot. That ruling soon came to be almost universally followed in England and in this country. (Emphasis supplied). The first appellate decision in Maryland to recognize Lord Mansfield’s Rule was Browne v. Browne, 22 Md. 103 (1864). 2 After a verdict had been rendered, four separate jurors submitted affidavits stating that one of the jurors had been suffering during the course of the trial from a painful disorder of the bowels.

That juror swore that he voted for a verdict with which he disagreed only “in order to obtain his release from the confinement of the jury room.” Three other jurors swore that they voted for the verdict with which they disagreed “for the purpose of relieving” their ailing colleague. The Court of Appeals was adamant that such juror impeachment of their verdict should not be allowed. To allow a verdict of a jury solemnly rendered, to be afterwards impeached upon such testimony, would, we think, be setting a dangerous precedent, tending in most cases to the defeat of justice. Although in some of the States a different practice has been allowed, we think the law in Maryland is well settled, that “the testimony of jurors cannot be heard to impeach their verdict, whether the conduct objected to in the jury be misbehaviour or mistake.” 22 Md. at 113 (emphasis supplied).

The Court further pointed out that the exclusion of such testimony “is supported, not ²⁸⁴ only by the authority of adjudged cases in England and in this country, but by sound reason and public policy.” 22 Md. at 114 . The Court of Appeals concluded emphatically: To permit [the verdict] now to be impeached, by an inquiry into the motives of jurors for assenting to it, would be clearly against public policy, tending to overthrow the safeguards of trial by jury, and in most cases defeat justice by exposing every verdict to impeachment. Id. (emphasis supplied).

The next reported Maryland decision to deal with the subject was Brinsfield v. Howeth, 110 Md. 520 , 73 A. 289 (1909), in 1909. A juror in that case submitted an affidavit charging that he had only voted for a verdict with which he disagreed because other members of the jury had threatened him, cursed at him, and otherwise pressured and intimidated him. The Court of Appeals affirmed the decision of the trial judge not to receive the evidence at a hearing on a motion for a new trial. “The rule, which obtains in nearly all the states, is that a juror will not be permitted to impeach his verdict. It prevails both in England and in the federal courts.” 110 Md. at 530 , 73 A. 289 .

Quoting with approval from 14 Ency. Pleading & Practice 906, the Court of Appeals explained the policy behind the rule. Such evidence is forbidden by public policy, since it would disclose the secrets of the jury room, and afford an opportunity for fraud and perjury. It would open such a door for tampering with weak and indiscreet men that it would render all verdicts insecure, and therefore the law has wisely guarded against all such testimony and has considered it unworthy of notice.

It would be a most pernicious practice, and in its consequences dangerous to this much-valued mode of trial, to permit a verdict, openly and solemnly declared in the court, to be subverted by going behind it and inquiring into the secrets of the jury room. 110 Md. at 530-31 (emphasis supplied). The hard core of Lord Mansfield’s Rule has consistently been that a juror will not be permitted to impeach his own ²⁸⁵ verdict. Over the decades, Maryland routinely applied that core principle. In Kelly v. Huber Baking Co., 145 Md. 321 , 125 A. 782 (1924), the charge was made by a juror that he had been improperly approached by a friend of the defendant.

In rejecting the evidence, the Court of Appeals held: In that affidavit Todd attempted to impeach his own verdict. For that purpose it was clearly inadmissible, and while the facts which it embodies, if true, would be sufficient to warrant appropriate proceedings to punish the persons who attempted to discredit the administration of justice by improperly influencing the verdict of the jury, under no circumstances could the affidavit be considered for the purpose for which it was offered at the hearing of the motion for a new trial. 145 Md. at 328-29 , 125 A. 782 (emphasis supplied). In Oxtoby v. McGowan, 294 Md. 83, 101 , 447 A.2d 860 (1982), the charge was that a medical book had been improperly brought into the jury room and had been examined by the jurors. In rejecting the evidence, the Court of Appeals noted: Regardless of the rule in other jurisdictions, in Maryland it is well settled that a juror cannot be heard to impeach his verdict, whether the jury conduct objected to be misbehavior or mistake.

(Emphasis supplied). See also Christ v. Wempe, 219 Md. 627, 642 , 150 A.2d 918 (1959) (“The proffered testimony [of] jurors in the instant case as to what took place in the jury room was properly not received.”); Aron v. Brock, 118 Md.App. 475, 512-27 , 703 A.2d 208 , cert. denied, 346 Md. 629 , 697 A.2d 913 (1997); Dixon v. State, 27 Md.App. 443, 447-49 , 340 A.2d 396 , cert. denied, 276 Md. 741 (1975) (“Maryland, however, has not deviated from the rule that what occurs in the jury room, generally, remains in the jury room.”); Dorsey v. State, 185 Md.App. 82, 100-11 , 968 A.2d 654 (2009). Lord Mansfield’s Rule: Procedural Fine-Tuning In pristine form, Lord Mansfield’s Rule is simply that a juror will not be permitted to impeach the jury verdict of ²⁸⁶ which he had been a part. In application, of course, the simple rule is not always so simple.

Would someone other than a juror, for instance, be permitted to impeach a jury’s verdict? Would the juror himself be prohibited from testifying about the improprieties of himself or other jurors that occurred outside the courtroom or would the prohibition be limited to conduct in the jury room or in the course of deliberations? How about the possible impact that an outside impropriety might have had on the vote the juror himself cast? Suppose, moreover, the impropriety had been trivial and inconsequential.

From the predicate of an impropriety, may dispositive prejudice be presumed or must it be proved by the party seeking to impeach the verdict? Quite obviously, the basic instrument of the rule called for some procedural fine-tuning. For Maryland, Wernsing v. General Motors, supra, was the seminal case for retrofitting the venerable principle with up-to-date procedures. In Wemsing, the jury impropriety in issue was that a dictionary had been improperly introduced into the jury room by the court bailiff at the request of the jury foreman.

The dictionary’s definitions of “proximate,” “proximately,” and “legal” were out of sync with the trial judge’s definition of “proximate cause” and that was the key issue in the case. A. What Sources of Information Are Permissible? In Wemsing, information about the introduction of the dictionary into the jury room came from four types of source: 1) affidavits from four separate jurors; 2) testimony by a bystander who heard the foreman and two other jurors conversing, post-verdict, about the dictionary and the role it played in securing a unanimous verdict; 3) the testimony of the bailiff who delivered the dictionary to the jury; and 4) certain notes made by several of the jurors during their deliberations. The Court of Appeals carefully distinguished permissible sources from impermissible sources.

The Court ruled that the four affidavits from jurors themselves could not be received. ²⁸⁷ The post-verdict affidavits in the instant case are a particularly gross example of soliciting a reconstruction of a juror’s mental processes in reaching the verdict. This is precisely the type of attempted undermining of verdict finality which Maryland law does not permit. 298 Md. at 411-12 , 470 A.2d 802 . The affidavit from the bystander also could not be considered. Albeit not a juror himself, he quoted what jurors said about their deliberative process, making them the indirect sources of impeaching information.

The affidavit by the participant in the post-verdict conversation between certain jurors attempts to prove the truth of the content of the statements made by the foreman in that conversation. Even if we assume the affidavit is otherwise admissible, it falls within the prohibition described above. 298 Md. at 412 , 470 A.2d 802 . The testimony of the bailiff, by contrast, was completely admissible. He was not a juror and he was not revealing anything about jury deliberations.

On the other hand, the testimony of the bailiff presents “a different situation” and is competent. 298 Md. at 413 , 470 A.2d 802 . The admissibility of the notes left in the jury room is also interesting. Similarly, the jury notes ... are competent proof. As documents generated during the jury’s deliberations, they do not suffer the taint of possible post-verdict importuning.

Id. See also Christ v. Wempe, 219 Md. 627, 642 , 150 A.2d 918 (1959). In Harford Sands, Inc. v. Groft, 320 Md. 136 , 577 A.2d 7 (1990), the Court of Appeals engaged in the same meticulous sorting of those sources permitted to offer evidence of jury infractions and the sources not so permitted. The infraction in that case was that a juror, Carroll O’Keefe, on a luncheon break and in violation of an instruction not to do so, had talked to workers at a construction site near the courthouse and had discussed "with them the capabilities of concrete pumping ²⁸⁸ machines.

Four additional affidavits were proffered from persons other than the juror. Affidavits from two construction workers about the lunchtime conversation were permitted. They dealt with an extraneous matter occurring outside the jury room, to wit, a conversation at the construction site. One affidavit from trial counsel describing a post-trial conversation with the juror O’Keefe, on the other hand, was not permitted.

In that conversation, O’Keefe had described himself as “the strongest proponent of the defendants’ position on the jury.” The Court of Appeals also did not countenance an affidavit from a spectator at the trial who swore she had discussed the trial with O’Keefe after it was over and he had told her that he was “the strongest member of the jury.” Those forbidden conversations described O’Keefe’s role in the jury deliberations. The cordon sanitaire of Lord Mansfield’s Rule insulated from review anything that a juror may have been thinking in the course of deliberating a verdict. The information offered by the juror himself was partly in and partly out, as -will be discussed infra in the next sub-section. B. The Precise Nature of A Juror’s Testimony As the implementing procedures are more finely tuned, even the prohibition on verdict-impeaching testimony from a juror himself loses its apparent simplicity.

It is sometimes in and sometimes out. More precisely, it is sometimes partly in and partly out. If the juror’s testimony is about an extraneous infraction, even one by the juror himself, that took place outside the jury room, the court is willing to receive such evidence from the juror. It is deemed to be “extraneous matter.” What is absolutely prohibited is testimony from a juror that bears directly on the deliberative process itself.

The juror is, therefore, barred from testifying as to what effect any information learned in the course of the infraction may have had on the juror’s own decision as well as on the decisions of other jurors. ²⁸⁹ In Harford Sands, Inc. v. Groft, the juror who committed the infraction by going, during a luncheon break, and talking to a construction worker about issues in the case was Carroll O’Keefe. The Court of Appeals held that the testimony from O’Keefe that “he had talked to workers at the construction site during the lunch break ... and that he had discussed with them the capabilities of concrete pumping machines” was receivable at the hearing on the new trial motion. That, even from the juror himself, was extraneous matter and, therefore, admissible. 320 Md. at 141 , 577 A.2d 7 . His testimony, by contrast, about what “we debated in the jury room” was prohibited. 320 Md. at 142 , 577 A.2d 7 .

In Smith v. Pearre, 96 Md.App. 376 , 625 A.2d 349 , cert. denied, 332 Md. 454 , 632 A.2d 151 (1993), the infraction occurred when the jury foreman disobeyed the order of the court and watched on television a segment on “60 Minutes” that bore on the subject matter at issue in the trial. Although the jury foreman was barred from testifying about anything that was said during jury deliberations and even about any effect that “60 Minutes” exposure may have had on his own decisional process, he was not barred from testifying about the infraction itself which had occurred outside the jury room. The jury foreman’s observance of the program, constitutes extraneous material that occurred outside the sanctity of the jury room. Therefore, evidence of the foreman’s observance of the program may be properly considered by the trial court, but the court may not consider what occurred during jury deliberations. 96 Md.App. at 390 , 625 A.2d 349 (emphasis supplied).

C. The Proof of Prejudice It was also with respect to the proof of prejudice that Wemsing firmly established the prevailing procedure—at least in civil cases. An infraction is not enough. Christ v. Wempe, 219 Md. at 642 , 150 A.2d 918 (“Every act on the part of a juror (or court official) during the course of a trial, even though irregular, may not amount to such misconduct as ²⁹⁰ requires a new trial.”). Wemsing was firm that prejudice will not be presumed but must be proved.

We reject the rule which presumes prejudice solely from delivery of a dictionary into the jury room without the consent of the court and all parties. The result of such a rule in Maryland would be to overturn verdicts automatically in nearly all cases where this irregularity occurs. The reason is that the party opposing a new trial would almost never be able to demonstrate the absence of harm from the presence in the jury room of the extraneous material, because jurors may not be interrogated concerning their deliberations in order to impeach the verdict. It is true that some courts permit juror affidavits for the purpose of sustaining a verdict; but that is not Maryland practice. 298 Md. at 416 , 470 A.2d 802 (emphasis supplied).

Judge Rodowsky’s opinion then elaborated on why Maryland does not indulge a presumption of prejudice. Further, a presumption of prejudice from the unauthorized presence of a dictionary is inconsistent unth the rule we apply when, in the course of trial and before the jury retires, it is learned that a juror has received information concerning the case from a source outside of the record. In those circumstances prejudice is not presumed; rather the test is “whether the conversations were ‘of such a nature that their effect must fairly be held to have been to deprive the injured party of a fair and impartial trial.’ ” Id. (emphasis supplied).

On a new trial motion based on jury misconduct, it is the trial judge who must decide whether the admissible evidence establishes a probability of prejudice. The trial judge’s decision will then be assessed on an abuse of discretion standard. The Court of Special Appeals clearly identified the problem in the instant case. It is to balance the right to a fair trial with the policy prohibiting impeachment by a juror of the verdict.

Where, as here, the precise extraneous matter is known but direct evidence as to its effect on the delibera ²⁹¹ tions is not permitted, a sound balance is struck by a rule which looks to the probability of prejudice from the face of the extraneous matter in relation to the circumstances of the particular case. It is the function of the trial judge when ruling on a motion for a new trial to evaluate the degree of probable prejudice and whether it justifies a new trial. That judgment will not be disturbed but for an abuse of discretion. Id. at 419-20 , 470 A.2d 802 (emphasis supplied).

In Smith v. Pearre, a medical malpractice case, the jury foreman, in direct violation of the court’s order not to do so, on an overnight recess during the trial listened to a television segment on “60 Minutes” that could have had a direct bearing on the issue before the court. On the issue of prejudice, this Court held that there is no presumption of prejudice. It must be proved. [W]e conclude that while it was possible that the “60 Minutes” segment influenced the jury foreman we are not convinced that it probably resulted in prejudice. We find no abuse of discretion in the trial court’s decision to deny a motion for new trial. 96 Md.App. at 391 , 625 A.2d 349 (emphasis in original).

It was here, on the proof of prejudice, that there ultimately developed the rift between Lord Mansfield’s Rule in a civil trial and Lord Mansfield’s Rule in a criminal trial that has become essentially unbridgeable. The criminal cases have taken off on a path of their own. Maryland Rule 5—606(b) The substance of Lord Mansfield’s Rule has been, as of July 1, 1994, encapsulated in Maryland Rule 5-606(b), which provides: (b) Inquiry into Validity of Verdict. (1) In any inquiry into the validity of a verdict, a sworn juror may not testify as to (A) any matter or statement occurring during the course of the jury’s deliberations, (B) the effect of anything upon that or any other sworn juror’s mind or emotions as ²⁹² influencing the sworn juror to assent or dissent from the verdict, or (C) the sworn juror’s mental processes in connection with the verdict.

(2) A sworn juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes. (3) Notes made under Rule 2-521(a) or Rule 4-326(a) may not be used to impeach a verdict. Inapt Analogies A particularly treacherous analytic snare that should be carefully avoided is easy reliance on cases that share the alluring common factor of a jury infraction but that do not truly engage the gears of Lord Mansfield’s Rule. When a jury infraction is