CHERYL BYNUM V THE ESAB GROUP INC
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STATE OF MICHIGAN
COURT OF APPEALS
CHERYL BYNUM, a/k/a SHERYL BYNUM,
UNPUBLISHED
March 23, 2001
Plaintiff-Appellee,
v
No. 218309
Kent Circuit Court
LC No. 91-071284-NP
THE ESAB GROUP, INC.,
Defendant-Appellant,
and
CAMCO INC., a/k/a COMMERCIAL CAM
DIVISION, GENERAL ELECTRIC CO., ASEA
BROWN BOVERI INC., a/k/a ASEA INC., AND
MICHIGAN ARC PRODUCTS CORP.
Defendants.
Before: Doctoroff, P.J., and Holbrook, Jr., and Smolenski, JJ.
PER CURIAM.
Defendant-appellant (hereinafter ESAB), appeals by leave granted from the March 3,
1999 order of the lower court granting plaintiff’s motion for new trial based on juror misconduct.
We affirm.
Plaintiff was severely injured when the welding robot machine on which she was
performing routine maintenance unexpectedly turned on. Plaintiff’s pelvis was crushed when
one of the robot’s mechanical arms grabbed plaintiff about her midsection. The case first went to
trial in January 1993, resulting in a damage award to plaintiff in the amount of $50,000. Plaintiff
was found to have been fifty percent comparatively negligent, thereby reducing her award to
$25,000. Plaintiff then moved for a partial new trial on the issue of comparative negligence and
damages, or alternatively on the issue of damages alone. In the event the trial court concluded
that a partial new trial was inappropriate, plaintiff asked for a new trial on all issues. The trial
court ordered a judgment notwithstanding the verdict on the issue of comparative negligence.
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Further, citing MCR 2.611(E)(1),1 the trial court granted additur to plaintiff in the amount of
$850,000. When defendant ESAB rejected additur, the case was set for new trial on the issue of
damages alone.
The second trial resulted in a jury verdict for plaintiff in the amount of $2,211,549.
Defendant then appealed to this Court. In an unpublished opinion, this Court reversed the grant
of JNOV. Bynum v The ESAB Group Inc., unpublished opinion per curiam of the Court of
Appeals, issued June 4, 1996 (Docket No. 173473), p 2 (hereinafter Bynum I). Additionally,
while agreeing that the damage award from the first trial was against the great weight of the
evidence, this Court held that “under the circumstances of this case a new trial as to all issues is
in the interest of justice.” Id. at 3.2 The case was remanded for a new trial.
The third trial resulted in a jury vote of 6 to 2 in favor of ESAB. Immediately following
trial, plaintiff’s counsel was contacted by one of the jurors, Sandra Tuinstra, regarding what she
perceived as inappropriate bias on the part of some of the jurors. Plaintiff’s subsequent motion
for JNOV or in the alternative a new trial was based, in part, on these allegations. After an
evidentiary hearing, the trial court concluded that a new trial was warranted because of jury
misconduct. MCR 2.611(1)(b). Specifically, the court found “that some members of the jury’s
majority harbored a racial animus against plaintiff and her attorney, both of whom are AfricanAmerican.” The court was particularly impressed by the testimony of Tuinstra.
ESAB’s sole argument on appeal is that the trial court abused its discretion when granting
plaintiff a new trial. As a threshold issue, ESAB first argues that the trial court erred in receiving
and considering Tuinstra’s affidavit, which was offered in support of plaintiff’s motion. We
disagree. ESAB correctly observes that as a general rule, “jurors may not impeach their own
verdict by subsequent affidavits showing misconduct in the jury room.” People v Budzyn, 456
Mich 77, 91; 566 NW2d 229 (1997).3
1
The court rule reads in pertinent part:
If the court finds that the only error in the trial is the inadequacy . . . of the
verdict, it may deny a motion for new trial on condition that within 14 days the
nonmoving party consent in writing to the entry of judgment in an amount found
by the court to be the lowest . . . amount the evidence will support.
2
The Court reasoned, in part, that “in view of the vast difference in the damage awards between
the first and second trials, it appears that the issue of comparative negligence significantly
influenced the determination of plaintiff’s damages.” Bynum I, supra at 3.
3
The purpose of this nonimpeachment rule is to insulate the deliberative process of the jury. See
Budzyn, supra at 91; People v Pizzino, 313 Mich 97, 108; 20 NW2d 824 (1945). In so doing, the
rule promotes the integrity of judicial system by supporting the finality of jury verdicts,
encouraging open discussion in the deliberative process, and impeding the post-trial harassment
of jurors by the parties. Hoffman v Monroe Public Schools, 96 Mich App 256, 258; 292 NW2d
542 (1980); United States v Dioguardi, 492 F2d 70, 79-80 (CA 2, 1974). However, the
nonimpeachment rule is not absolute and should not be dogmatically applied, especially when it
conflicts with other important policy considerations. Hoffman, supra at 258. First and foremost
among these is “the guarantee that every litigant receive a fair trial.” Tobias v Smith, 468 F Supp
(continued…)
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However, it is clear from the trial court’s written opinion that it did not consider the
affidavit and subsequent testimony pursuant to an attempt to impeach the verdict. Rather, the
court approached the admissibility of the evidence in terms of an allegation of jury misconduct
during voir dire:
“There is no question that a litigant is entitled to a truthful answer from a
prospective juror during his [or her] voir dire examination,” . . . and that a new
trial is in order when a juror conceals information during voir dire which would
lead a party to challenge the juror, provided the evidence of misconduct is not
proffered for the purpose of impeaching the verdict. Litigants have an “absolute
right to a fair and impartial jury,” and voir dire, which means to “speak the truth,”
is the only safeguard a litigant has for protecting that right. Therefore, a lack of
candor is an inherently prejudicial lapse which must be corrected.
Juror Tuinstra’s testimony convinces this Court that other jurors had both
a closed mind toward plaintiff’s case and a lack of respect for her lawyer solely
because she and he are African-Americans. The contrary testimony was not
persuasive. . . .
In its introductory comments, this Court unequivocally told the entire jury panel
that it needed to know, so that it could determine whether they might get in the
way, of any biases and prejudices, and that it expected them to reveal any such
attitudes. Nothing of that sort was disclosed by anyone, although we now know
that some harbored racial prejudices. Thereafter, plaintiff’s counsel twice
discussed “biases” in general with the prospective jurors. . . . No one said
anything in response. Then, near the end of his voir dire, plaintiff’s counsel
discussed specifically with the jurors the fact that he and his client were AfricanAmericans. Again nothing was disclosed by anyone. . . . Had [racial bias] been
disclosed by those who harbored it, that bias would have prompted their dismissal
from the jury.
Finally, contrary to defendant’s contention, plaintiff is not attempting to
impeach the verdict. . . . Ms. Tuinstra’s testimony establishes that a matter of
considerable significance, a matter which would have led to dismissal from the
jury, was concealed on voir dire. That is evidence of misconduct which warrants
(…continued)
1287, 1289 (WD NY, 1979). See also Mattox v United States, 146 US 140, 148; 13 S Ct 50; 36
L Ed 917 (1892)(recognizing that cases can arise where it would be impossible to refuse to
receive such juror affidavits “without violating the plainest principles of justice”). We find
persuasive those cases that have determined that to ignore evidence of racial bias in the jury room
would effectively undermine the very notion of fundamental fairness. See, e.g., Tobias, supra at
1291; Smith v Brewer, 444 F Supp 482, 490 (SD Iowa, 1978). While the unexpressed personal
biases of each juror cannot be explored, given that such innermost thoughts truly do inhere in the
verdict rendered, once those biases are expressed, they become an overt act that can be examined,
albeit without attempting to explore the thought processes employed by the jurors when reaching
a verdict. Such behavior is an improper extraneous prejudicial influence. Tobias, supra at 1291.
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a new trial, not the impeachment of a verdict . . . . [Citations and footnotes
omitted.]
In this context, Tuinstra’s affidavit and subsequent testimony are not encumbered by the
nonimpeachment rule. United States v Henley, ___ F3d ___ (CA 9, 2001).
We also reject ESAB’s contention that the trial court erred in ordering a new trial. “A
trial court’s decision regarding a motion for new trial is reviewed for an abuse of discretion.”
Meyer v City of Center Line, 242 Mich App 560, 564; 619 NW2d 182 (2000).
The rule in this State is that the judge has a wide discretion in either granting or
refusing a new trial . . . .
“Even greater latitude is allowed the trial court in granting than in refusing
new trials, and the appellate court will interfere more reluctantly where the new
trial is granted than where it is denied.” [Hoskin-Morainville Paper Co v Bates
Valve Bag Corp, 268 Mich 443, 449-450; 256 NW 477 (1934).]
The trial court obviously considered Tuinstra’s testimony that racial bias existed to be
highly credible. It also found contrary testimony offered by three other jurors to be unpersuasive.
Recognizing the trial court’s unique opportunity to observe the witnesses and to assess their
credibility, see Zeeland Farm Services, Inc v JBL Enterprises, Inc, 219 Mich App 190, 195; 555
NW2d 733 (1996), we find nothing in the record that persuades us that the trial court’s crediting
of Tuinstra’s testimony was erroneous. Therefore, accepting the court’s conclusion on the
existence and demonstration of racial prejudice by some jurors, we agree with the court’s
judgment that had the jurors revealed their bias, the court would have been justified in dismissing
them from the jury. See McDonough Power Equipment, Inc v Greenwood, 464 US 548, 556;
104 S Ct 845; 78 L Ed 2d 663 (1984)(observing that to obtain a new trial, “ a party must first
demonstrate that a juror failed to answer honestly a material question on voir dire, and then
further show that a correct response would have to provide a valid basis for cause”); People v
Clear, 242 Mich App 158, 167; 618 NW2d 91 (2000). We do not believe that the record
supports a conclusion that the trial court abused its broad discretion in this matter.
Affirmed.
/s/ Martin M. Doctoroff
/s/ Donald E. Holbrook, Jr.
/s/ Michael R. Smolenski
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