ARGUING THE IMPOSSIBLE ARGUMENT IN APPEAL OF $3 MILLION VERDICT

July 30, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

"Quotient verdicts" are prohibited, but the Illinois Appellate Court -- rejecting a 1985 case -- decided you may not use juror affidavits to prove the jury agreed to use this forbidden procedure. Carroll v. Preston Trucking Co., 2004 WL 1335754 (1st Dist., June 15).

Also answering two important questions involving surveillance tapes, the Appellate Court ruled that:

• You do not need testimony from the camera operator to authenticate a surveillance tape. Testimony from people who were secretly videotaped -- including the plaintiff -- can authenticate the recording.
• But, if the tape was edited, and the defendant cannot provide the outtakes, the tape is irrelevant and inadmissible because it would be prejudicial to show the edited video to the jury.

John Carroll filed a personal-injury claim against Preston Trucking Co. and one of its drivers, Ron Trieb.

At trial, the defendants wanted to play a surveillance tape showing Carroll doing some yard work. In addition to Carroll, the tape showed some of his relatives in the same scenes.

By the time the case went to trial, the surveillance company had ceased operating, and the camera operator couldn't be found. Refusing to permit the defendants to use the surveillance tape, the trial judge apparently concluded that testimony from the camera operator was required to authenticate the tape.

The jury returned a verdict of more than $3 million for Carroll. Moving for a new trial, the defendants provided affidavits from several jurors admitting that, during deliberations, the jury agreed to use the average of their individual damage calculations as the amount of the verdict for Carroll.

After the trial judge struck the affidavits and denied the motion for a retrial, the defendants appealed.

Here are some highlights of Justice Robert Cahill's opinion on the surveillance tape and juror affidavits (with various omissions not noted in the quoted text):

"During discovery, defendants served A&G [Carroll's employer] with a notice to produce all relevant photographs and video surveillance. After discovery was completed but before trial, A&G produced a surveillance videotape of plaintiff taken in the summer of 1999. A&G's workers' compensation carrier had hired a company to conduct the surveillance in connection to a related workers' compensation claim.

"The videotape spans several days and appears to have been edited.

"The part at issue was recorded in the late morning and afternoon hours of July 1, 1999. The recording shows plaintiff in the front and back yards of his home, walking without the assistance of a cane, moving a ladder, bending over, operating a chain saw, using his weight as leverage to remove a tree stump, walking up and down stairs, swinging an ax, picking up and carrying tree branches and pushing a wheelbarrow.

"Plaintiff's wife, nephew and niece are also shown in the video. The date and times appear in the recording.

"Plaintiff moved to exclude the videotape. He argued it was produced after the discovery deadline, defendants could not establish an adequate foundation because the surveillance company went out of business, and the cameraman could not be identified."
In excluding the surveillance tape, "the trial court relied on its belief that the videotape presented a foundational hurdle that defendants could not overcome."

Disagreeing, Cahill explained:

"A videotape recording may be introduced as demonstrative evidence if it is properly authenticated and relevant to a particular issue in the case. To establish authenticity, a foundation must be laid by someone having personal knowledge of the filmed object. The foundation may be established through testimony of a competent witness who has sufficient knowledge to testify that the videotape accurately represents what it purports to show.

"Plaintiff argues the trial court correctly excluded the videotape because defendants did not offer foundation evidence from the cameraman. We disagree.

"The cameraman is not necessary where a foundation can be laid by another competent witness who has sufficient knowledge to testify that the videotape fully represents what it purports to show. Because plaintiff was shown in the videotape doing the various tasks alleged, he qualifies as a competent witness with sufficient knowledge to testify that the videotape fully represents what it purports to show.

"We also note that plaintiff's wife, nephew and niece, who were also in the film, could provide competent foundational testimony sufficient for admission of the videotape into evidence.

"We believe, however, that the videotape was properly excluded on relevance grounds. A videotape is relevant as long as its probative value is not substantially outweighed by the danger of unfair prejudice.

"While the videotape here is probative to show the extent of plaintiff's incapacitation and to rebut plaintiff's testimony that he experienced constant pain, the danger of unfair prejudice to plaintiff outweighs the probative value because the videotape was edited. It showed only those short periods of time when plaintiff was actively participating in yard work. The recording stops when plaintiff goes inside his house or leaves the cameraman's range of sight, and gives the impression that plaintiff's activity is constant.

"Without an unedited span of footage, the jury could be left with the impression that plaintiff can sustain labor-intensive activities over a period of time without rest or without experiencing pain. We conclude it was not an abuse of discretion to exclude the videotape under these circumstances."

Juror Affidavits

"We next consider," Cahill noted, "whether the trial court improperly struck juror affidavits in support of defendants' assertion that the jury reached its verdict through an impermissible quotient process. Because the sufficiency of the affidavits can be decided as a matter of law, we review the trial court order de novo.

"In 1871, our Supreme Court held quotient verdicts to be an impermissible method by which a jury may reach its verdict. Illinois Central Railroad Co. v. Able, 59 Ill. 131 (1871). The juror affidavit in Able outlined the method the jury used to decide damages. Each juror wrote an amount of damages he believed the plaintiff was entitled to receive on a piece of paper. The numbers were then added and the sum divided by the number of jurors to yield a quotient that became the verdict.

"The court held that while jurors may resort to such a process for experimentation purposes, an advance agreement to be bound by the result will invalidate the verdict.

"The rule announced in Able surfaced more recently in Department of Transportation v. Graham, 130 Ill.App.3d 589 (1985), on which defendants rely. The defendant in Graham moved for a new trial based on the defendant's own affidavit in which he said he was told by three jurors that the jury reached its verdict by averaging a cumulative damage award and comparing the average to the damages alleged by each party. The jury then rendered its verdict for the party whose estimate of damages was closest to the juror average.

"The defendant also submitted an affidavit by a juror who described the process of reaching the verdict as averaging the awards reached by each juror, discussing the averages and reaching an agreed verdict. The defendant's motion for a new trial based on these affidavits was denied, and he appealed.

"Citing Able, the Appellate Court remanded the case for an evidentiary hearing to decide whether the jury verdict was reached through an improper quotient method. The court rejected the argument that the affidavits constituted an improper attempt to impeach the jury verdict.

"Our research has not uncovered Illinois precedent outside Able and Graham that would support consideration of juror affidavits to decide whether the jury arrived at a quotient verdict through the deliberative process. While other appellate courts have recognized the impermissibility of quotient verdicts, none has held that a quotient verdict is subject to collateral attack through juror affidavits describing the method by which the jury reached a verdict."
Cahill pointed out that the courts in People v. Holmes, 69 Ill.2d 507 (1978), and Heaver v. Ward, 68 Ill.App.3d 236, 240 (1979), "relied on by Graham, support an opposite conclusion. While neither case concerned quotient verdicts, both dealt with juror affidavits offered to impeach verdicts.

"Holmes distinguished juror testimony concerning the motive, method or process by which a jury reaches its verdict and testimony concerning conditions or events brought to the jury's attention. The court held the former category of testimony is inadmissible to impeach a jury verdict.

"Because the affidavits in Holmes were offered to show extraneous information improperly brought to the jury's attention and not the method by which the jury reached its verdict, the court found the affidavits could be used to impeach the verdict.

"Our Supreme Court continues to hold that juror affidavits showing the motive, method or process by which a jury reaches its verdict cannot be used to impeach the verdict.

"The court has said: '[If it is] established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication, [then] all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation -- to the destruction of all frankness and freedom of discussion and conference.' People v. Hobley, 182 Ill.2d 404, 457 (1998).

"Under this policy, juror affidavits will not be considered to impeach a verdict unless they are offered to show improper extraneous influences on the jury.

"In light of these more recent Supreme Court cases, our inquiry is whether the affidavits here were offered to show the motive, method or process by which the jury reached its verdict or whether they show improper extraneous influences.

"Hobley illustrates the difference between inquiries into the deliberative process and extraneous influences on the jury. The court in Hobley found the defendant was entitled to an evidentiary hearing on his claim that some of the jurors were subjected to intimidation by nonjurors during their deliberation. The alleged intimidation happened as the jurors were dining in a hotel restaurant and were confronted by patrons of the restaurant who shouted that the defendant was guilty and should be executed.

"The court reasoned the incident was a prejudicial outside influence on the jury and juror testimony about it could be used to attack the verdict. But the court rejected the defendant's second argument that alleged intimidation by the jury foreman was an improper extraneous influence on the other jurors.

"The defendant alleged the foreperson told other jurors he was a police officer, showed the jurors his gun and persuaded some of the jurors to find the defendant guilty. The court held the defendant's argument addressed the motive, method or process by which the jury reached its verdict and could not be used to impeach the verdict.

"It is clear the affidavits in this case also relate to the motive, method or process by which the jury reached its verdict. Each affidavit describes what took place as the jurors deliberated with no one else present.

"We believe that under current Supreme Court cases, juror affidavits cannot be used to impeach a jury verdict on the ground that it was reached through an impermissible quotient method unless it can be shown that the decision to employ it was the result of extraneous influences.

"The affidavits in this case were properly stricken."

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