Unpublished Disposition, 911 F.2d 740 (9th Cir. 1990)

MEMORANDUM^*** 

The Zaks appeal the district court's denial of a mistrial for juror misconduct. The Zaks also allege error in the district court's use of an allegedly coercive Allen charge, denial of cross-examination on several occasions, and use of an allegedly erroneous jury instruction. We affirm.

DISCUSSION

(1) Jury Misconduct

The Zaks contend that the jury was prejudiced by the misconduct of the two jurors. Relying on California law, the Zaks argue that all instances of juror misconduct create a presumption of prejudice. We reject the argument. See Remmer v. United States, 347 U.S. 227 (1954); United States v. Boylan, 898 F.2d 230, 260-61 (1st Cir. 1990) (presumption not extended to juror's improper viewing of extraneous material).

A juror is not permitted to independently investigate matters relevant to the case or otherwise rely on evidence not admitted into court. There is no factual dispute. One juror performed an impermissible experiment and reported the result to the jury. Another juror made a comment based on extraneous information. Prior to the completion of jury deliberations the matter was brought to the attention of the trial judge who immediately conducted a reasonable inquiry. He polled the jurors and satisfied himself that all could disregard the misconduct in their deliberations. Nothing in the record reflects that his confidence was misplaced. He did not abuse his discretion in electing to use curative measures instead of declaring a mistrial.

We do not ignore the authority upon which the Zaks rely. It is simply not applicable. Where a jury has improperly received prejudicial or extraneous evidence a "timely instruction from the judge usually cures the prejudicial impact of the evidence unless it is highly prejudicial or the instruction is clearly inadequate." Bayramoglu v. Estelle, 806 F.2d 880, 888 (9th Cir. 1986). The judge accepted the jurors' indications that they could continue to be impartial. "When a wise and experienced judge, who presided at the trial and observed the jury, comes to such a conclusion, it is not for us to upset it." United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied, 419 U.S. 835 (1974); United States v. Armstrong, 898 F.2d 734, 740 (9th Cir. 1990) (trial judge is in "a better position than we are" to determine whether juror misconduct had prejudicial effect). The record does not support plaintiffs' suggestion that the district court abused its discretion.

(2) Allen Charge

We understand but reject the assigned errors to the giving of an Allen charge. Although the coercive potential of an Allen charge has prompted great caution in its use in criminal cases, little controversy exists over its use in civil cases. See 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2556 at 663 (1971); Modern Federal Jury Instructions p 78.01 (1989). We recognize, however, that even in civil cases the district court must avoid coercing unanimous jury agreement or otherwise obtaining a verdict that is contrary to the concientious belief of any juror. See Reazin v. Blue Cross and Blue Shield of Kansas, 899 F.2d 951, 978 (10th Cir. 1990). Having carefully reviewed the record and relevant precedent we hold that the district court's formulation of the Allen charge was not an abuse of discretion. See Ninth Circuit Pattern Jury Instruction No. 13.03; United States v. Nichols, 820 F.2d 508 (1st Cir. 1987) (charge not coercive even though verdict returned after only 30 minutes); United States v. Bonam, 772 F.2d 1449 (9th Cir. 1985) (establishing rule based on considerations unique to criminal trials).

(3) Evidentiary rulings

The Zaks contend that the district court erred in denying the admission of evidence of a competing manufacturer's use of a slip clutch design. The judge refused to allow the questioning because there had been no foundation laid to establish that the drills were intended to perform the same tasks. The Zaks fail to raise any argument to contradict the court's finding that the proffered evidence lacked foundation. Moreover, the judge expressly offered plaintiffs the opportunity to admit expert testimony on the effect of slip clutches. The Zaks were not deprived of an adequate opportunity to inquire into the feasibility of a slip clutch.

The trial judge sustained an objection to the Zaks' cross-examination inquiry into defendant's knowledge of prior accidents or law suits from use of the Hole Hawg. The questions were properly excluded as irrelevant. Strict product liability does not depend on knowledge of the danger. Vague questions about injuries generally or the existence of law suits generally were properly excluded.

Mr. Zak was also prohibited from questioning the adequacy of the adhesive of the warning label. The objections were properly denied on relevance grounds. There was no allegation that inadequate adhesive in any way affected the notice to Mr. Zak or was the cause of the injury.

The Zaks were not permitted to introduce photographs of demonstrations taken by defendant's expert or to ask questions concerning those demonstrations. The district court held that the pictures and questions were more prejudicial than probative. The exclusion of evidence under Fed.R.Evid. 403 is reversible only for a clear abuse of discretion. Coursen v. A.H. Robins Co., 764 F.2d 1329, 1333 (9th Cir. 1985). The Zaks offer nothing to overcome this highly deferential standard.

(4) Jury Instructions

The Zaks argue that the judge failed to adequately convey that the burden of proof shifted to the defendants once they proved that the design caused the injury. We reject the argument. The instruction was substantially similar to the instruction expressly approved in Catapillar Tractor v. Beck, 593 P.2d 871, 886 (Alaska 1979). Moreover, the entire instruction followed the Alaska pattern jury instructions Nos. 7.02-7.03A which were based, in part, on Beck.¹ 

The Zaks argue that Beck requires the burden of persuasion and production to shift to the defendant. While this may reflect Alaska law, the Zaks misquote the jury instructions actually given. The Zaks state that the instruction was that a product is defective if "defendant fails to provide " risk-benefit evidence. Op.Br. at 39. The instruction actually used the words "defendant fails to prove. " ER at 1028. The word "prove" adequately reflects defendant's duty to do more than merely "provide" some evidence to support its position. We reject the argument that the instructions were erroneous because they did not indicate that the burden also shifts on the causation issue. The instructions made clear that defendant had the burden to disprove that the product was defective. Nothing in Beck suggests that the burden of persuasion shifts on any issue other than product defectiveness. See Beck, 593 P.2d at 885-86. Moreover, because the jury reached only the question of whether the product was defective, any error concerning the burden of proving causation would be harmless.

The Zaks also argue that the "scientifically unknowable" instruction was not relevant to the case. Defendant argues that the instruction was relevant because it was scientifically unknowable that repeated striking from the Hole Hawg could cause occlusion of a popliteal artery. Defendant's position is supported by Alaska law. See Heritage v. Pioneer Brokerage & Sales, 604 P.2d 1059, 1061 n. 4, 1063 n. 11 (Alaska 1979) (defense available if "unique" danger to plaintiff is "scientifically unknowable").

The district court also gave an instruction stating that "where a warning is given, the manufacturer may reasonably assume that it will be read and heeded." The instruction is a verbatim quote from the Restatement (Second) of Torts adopted by numerous courts. Restatement (Second) of Torts, Sec. 402A comment j; see, e.g., Gauther v. AMF, Inc., 788 F.2d 634, 635 (9th Cir. 1986) (Montana law). Alaska courts have implicitly accepted the Restatement reasoning. See Prince v. Parachute, Inc., 685 P.2d 83, 87 (Alaska 1984) (citing comment j approvingly). The Zaks failed to show that the instruction was an inaccurate statement of Alaska law or an abuse of discretion.

AFFIRMED.