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Winslow v. Montana Rail Link9/6/2005
Did the District Court err in disallowing the jury to deliberate on the amount of punitive damages?
The jury returned a verdict regarding punitive damages which determined that MRL did not act with malice with respect to its termination of Winslow, but that punitive damages should be assessed. Immediately after the verdict was entered, one of the twelve jurors was excused by the District Court, precluding further deliberations unless undertaken by "less than twelve" jurors pursuant to § 3-15-106, MCA, which permits such deliberations only upon agreement between the parties and approval of the court. Subsequent to the dismissal of the juror, the following conversation occurred in camera:
THE COURT: The other issue is that I did release [the juror]. [The juror] told us when he started this three weeks ago that he had to be out of town . . . on the 12th and I believe I said at that time we were going to be done by the 12th. We are still not done, although it may be that the jury will not be asked to do anything tomorrow. That remains to be seen as to what happens. But in any event, I did excuse him because he said he would not be available from the 12th on. I understand that could possibly cause a problem, but that's what I did. Go ahead, Mr. Conner, you wanted to make a record of that--Mr. Thueson.
MR. THUESON: No, Your Honor, we're okay with it.
MR. CONNER: Just what is the defense position though? Did they consent to this?
MR. POTTER: We're going to take the Court's invitation and appear tomorrow morning and put our position on the --
MR. CONNER: Are they going to consent?
MR. COX: We don't have to state that right now and we're not going to.
MR. POTTER: We were not consulted, and we don't take a position. We'll let you know in the morning.
THE COURT: Okay.
Although Winslow's counsel did not object to the dismissal of the juror, MRL took the position the following morning that it would not consent to a jury of eleven members and noted that it was not consulted in the matter prior to the juror's dismissal.
Winslow argues that MRL used "offensive trial tactics" by sitting on its hands when the District Court informed the parties that it had dismissed one of the twelve jurors and objecting to the dismissal only after the juror was no longer available, and therefore, the loss of a juror should not bar his claim to a new trial on punitive damages. MRL contends that it lost the benefit of a full jury through no fault of its own, and that an eleven-person jury could not validly consider punitive damages because the requirements of § 3-15-106(1), MCA, including MRL's consent in open court to deliberation by less than twelve jurors, had not been established.
On appeal, Winslow does not take issue with the District Court's dismissal of the juror for the juror's pre-announced commitment. Although that position is consistent with his comments at trial, it would appear that Winslow had no timely opportunity to object because he learned of the dismissal only after it had occurred. That notwithstanding, we cannot accept Winslow's argument that MRL somehow waived its objection to the juror's dismissal by accepting the District Court's invitation to place its position on the record the next morning, when it objected. Under these circumstances, we cannot conclude that MRL either consented or acquiesced to the juror's dismissal.
Consequently, given the District Court's unchallenged dismissal of the juror, however troubling, the only way the trial could have continued was with less than twelve jurors pursuant to § 3-15-106(1), MCA. T
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