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FRIEDMAN v. F.E. MYERS CO.

March 20, 1989

BARRY FRIEDMAN, ET AL.
v.
F.E. MYERS CO. v. GENERAL ELECTRIC COMPANY AND MONSANTO COMPANY



The opinion of the court was delivered by: NEWCOMER

 CLARENCE C. NEWCOMER, UNITED STATES DISTRICT JUDGE.

 The matter is before the court on defendant F.E. Myers Co.'s (Myers) post-trial motions for new trial on jury issue, new trial on other issues, and judgment notwithstanding the verdict.

 I. Background

 This is a personal injury action arising out of plaintiffs' alleged exposure to polychlorinated biphenyls (PCBs). As alleged by plaintiffs, a submersible water pump manufactured by Myers and installed in a water well at their home in 1974 malfunctioned in 1987. Plaintiff Carol Pearl was exposed to PCBs after ingesting and showering in water from the well.

 Jury selection occurred on January 24, 1989. Trial commenced on the same day and continued until January 31, 1989, at which time the jury commenced deliberations. As presented to the jury, plaintiffs' claims against Myers were based on strict liability and negligence. The jury returned its verdict on February 2, 1989. By its verdict, the jury concluded that the Myers pump was not a defective product, but that Myers had been negligent and that such negligence was the proximate cause of Pearl's injuries and Friedman's property damage. The jury awarded Pearl compensatory damages of $ 1,000 and punitive damages of $ 750,000, and awarded Friedman compensatory damages of $ 15,000.

 As a result of a conversation between plaintiffs' counsel and the court's law clerk later in the day on February 2, 1989, and after return of the verdict and discharge of the jury, the court learned that the jury and Pearl had discussed the case in the hallway outside the courtroom after the trial. Specifically, plaintiffs' counsel told the law clerk that jury foreman Edward Zell had told Pearl that Zell discovered, during the trial, that he had a Myers pump.

 After learning of this information, the court held a telephone conference with counsel for the plaintiffs and Myers on February 3, 1989. See Transcript of Telephone Conference Call, February 3, 1989, at 1-12. During the conference, Myers' counsel was told of what had transpired, and then plaintiffs' counsel recounted the conversation between Pearl and the jury foreman. Later in the day, a second conference call occurred. See Transcript of Telephone Conference Call, February 3, 1989, at 12-23. During the second conference, Myers stated that the juror's conduct constituted "clear grounds for a new trial." Id. at 13.

 II. Conduct of the Juror

 A. Background

 As a result of the second conference and at Myers' request, see Motion of Defendant F.E. Myers for New Trial and Request for Hearing, the court held a hearing on the juror's conduct on February 6, 1989. After being sworn, jury foreman Edward Zell was questioned initially by the court, and then briefly by counsel, in accordance with Fed.R.Evid. 606(b). *fn1"

 With regard to voir dire, Zell testified that in response to a question from the attorneys, he told them that: he had a well pump; and he did not know who manufactured the pump, but he had owned it for approximately twenty-five years and "it was a good one."

 With regard to his discovery that his pump was a Myers pump, Zell testified that: he went into his basement over the weekend of January 28-29, 1989 (while the trial was still in progress) and discovered that his well pump had a label or some other insignia indicating that it was made by F.E. Myers Company; and on Monday, January 30, 1989, he told the other members of the jury that he had a Myers pump and that he planned to remove it.

 With regard to his conversation with Pearl in the courtroom hallway after the trial, Zell testified that he told Pearl that: he hoped she lived a healthy life in the future; he had a Myers pump that was about twenty-five years ...


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