/>iDuring voir dire, counsel for Union Pacific inquired:
"As you understand this is a claim by Mr. Larsen against Union Pacific for some injuries. This is not a labor dispute. But it is a dispute between an individual who happens to be the member of a labor union and a railroad company. Is there anyone else out here who is a member of a labor union? Okay, I see a few hands. Anybody in the front row? I don’t see any hands in the front row or the second row. Third row, okay? Let’s go ahead and stick with the third row..."
Two panel members raised their hands. After questioning them, counsel for Union Pacific followed up and asked to confirm that there were no further hands re labor union membership, broadening the inquiry to include significant others. At no time during this process did Juror LS raise his hand or otherwise indicate that he was a member of a labor union--Juror LS ultimately became a member of the jury.
After timely filing a motion for new trial, Union Pacific engaged a jury researcher/consultant to assist Union Pacific in learning from the jurors what influenced their decision. Union Pacific later filed an additional "Motion for New Trial and/or Review for Plain Error Based on the Discovery of Juror Nondisclosure, and Suggestions in Support" alleging that Union Pacific's consultant had spoken with Juror LS and he volunteered, "Look, I am a union guy" and that Plaintiff Larsen "had my vote right off."
Court Summary:
Mark Larsen appeals the circuit court’s grant of Union Pacific Railroad Company’s Motion for New Trial and/or Review for Plain Error Based on the Discovery of Juror Nondisclosure. Larsen contends that the court erred in granting Union Pacific’s motion for new trial alleging that: (1) there is no competent evidence that Juror LS intentionally failed to disclose his union membership in that it is unclear what Union Pacific was seeking in its voir dire question, was not established that Juror LS did not attempt to respond, and Larsen was prevented from adducing testimony of Juror LS regarding his understanding of the question; (2) Union Pacific’s claim of juror nondisclosure was untimely in that it was made well after the deadline for raising a claim of error and encourages post-trial witch hunts; (3) the testimony of David A. Giles, Ph.D. is demonstrably not credible in that it is internally inconsistent and self-contradictory, and; (4) the alleged nondisclosure by Juror LS was not prejudicial in that his union membership had little connection to the case and no bearing on his qualifications to act as a juror. Union Pacific crossappeals contending that the circuit court erred in denying Union Pacific’s motions for directed verdict and judgment notwithstanding the verdict because Larsen failed to make a submissible case for negligence under FELA.
AFFIRMED
Division One holds:
(1) The circuit court did not abuse its discretion in granting Union Pacific’s motion for new trial in that the record supports the court’s conclusion that Juror LS intentionally failed to disclose his union membership.
(2) The circuit court did not abuse its discretion in granting Union Pacific’s motion for new trial in that the record supports the court’s determination that plain error review was appropriate under Rule 78.08.
(3) The circuit court did not abuse its discretion in granting Union Pacific’s motion for new trial in that the record supports the court’s credibility determinations.
(4) The circuit court did not abuse its discretion in granting Union Pacific’s motion for new trial in that the record supports the court’s finding that prejudice resulted from Juror LS’s intentional nondisclosure.
(5) The circuit court did not err in denying Union Pacific’s motions for directed verdict and judgment notwithstanding the verdict as Larsen made a submissible case for negligence under FELA.
8/23/2016
