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OMI HOLDINGS6/7/1996
The opinion of the court was delivered by
This case is before the court on three questions certified by the United States Court of Appeals for the Tenth Circuit pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. The questions are:
I. "Whether Kansas law recognizes a civil cause of action for embracery against an expert witness who causes a civil jury case to end in a mistrial as a result of his contacts with jury members."
II. "Whether Kansas law recognizes a civil cause of action for negligence against an expert witness who causes a civil jury case to end in a mistrial as a result of his contacts with jury members."
III. "Whether Kansas law recognizes a civil cause of action for fraud against an expert witness in a civil jury case who has contacts with jury members and who either fails to reveal those contacts to, or attempts to conceal those contacts from, the court or the opposing party."
The questions basically ask whether Kansas recognizes a civil cause of action for embracery, negligence, or fraud against an expert witness who causes a mistrial as a result of contacts with jury members. Embracery is " he crime of attempting to influence a jury corruptly to one side or the other, by promises, persuasions, entreaties, entertainments, douceurs, and the like." Black's Law Dictionary 522 (6th ed. 1990).
The facts are set forth in the certification order as follows:
"Plaintiff OMI Holdings, Inc., was the defendant in Manildra Mill Corp. v. Ogilvie Mills, Inc., Case No. 86-2457-S, a complex and protracted case in the
United States District Court for the District of Kansas involving patent issues, alleged antitrust violations, and pendent state law claims. On March 4, 1991, a combined bench and jury trial commenced in the Manildra matter. After 18 days of testimony, a mistrial was declared due to conversations overheard between John M. Howell, one of plaintiff Manildra Milling Corporation's expert witnesses, and several members of the jury. OMI subsequently filed a motion for reimbursement of attorney fees incurred in the aborted trial. OMI's motion was denied by the trial court, which concluded that `the conversation which resulted in a mistrial was partially the fault of the expert witness and partially the fault of the jurors who disregarded th [trial] court's admonitions . . . ., Manildra Mill. Corp. v. Ogilvie Mills, Inc., 782 F. Supp. 102, 103-04 (D. Kan. 1991).
"On March 25, 1993, OMI filed this action against Howell in the District Court of Shawnee County, Kansas. In Count I of its petition, OMI asserted a cause of action for embracery against Howell, alleging that Howell `owed a duty to OMI to refrain from influencing or attempting to influence the acts of Manildra jurors in any manner other than through sworn testimony given in the presence of Court and the parties in the courtroom,' and further alleging that Howell violated this duty by participating in contacts with the jurors with the intention to influence or attempt to influence their decision. Appellant's append. at 4. In Count II of its petition, entitled "Negligence." OMI asserted that Howell violated a duty to use reasonable care to avoid contacting the Manildra jurors by participating in contacts with the jurors `with knowledge or reason to know that his contacts would harm OMI, with the intention to influence or attempt to influence the decisions of the Manildra jurors to adopt Manildra's positions and with knowledge or reason to know that his acts would violate the rules prohibiting contact between witnesses or attorneys and the Manildra jurors.'
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Kansas Personal Injury Attorneys
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