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Marion v. 396 Investment Co.5/17/2005
d to her, "I'm sorry to hear that you have gone through cancer." The attorney indicated that the following conversation ensued:
"And she said, well, thank you.
"He asked her if it was in remission.
"Her response was something to the effect, well, they say it's never in remission until you die of something else.
"He said his mother had passed away from cancer.
"At that point in time, an unknown female juror in this case approached [Juror No. 1] and said, you're not supposed to be talking to her.
"He said, we're not talking about the case or anything.
"And she said, it doesn't matter.
"As he started to leave, my client said to him, I'm sorry to hear about your mother.
"And that was the extent of the conversation."
Anaheim initially requested a voir dire of Juror No. 1. The court was unconvinced it would be helpful, and expressed concern the communication showed "a possible element of sympathy." Anaheim then requested that the juror be removed. The court was initially sympathetic to this request, stating, "Absent a waiver, the only thing I think we can do is replace the juror." Several of the plaintiffs' attorneys requested voir dire before replacing the juror. The court decided to address the issue the next day, and asked counsel to review the relevant case law before the next morning.
Before adjourning, there was a discussion between counsel and the court related to one of the alternate jurors being seated to deliberate. Apparently, this alternate juror and one of the seated jurors had previously demonstrated a personality conflict. The next morning, after a discussion of the case law on the subject, the court agreed to voir dire Juror No. 1. After establishing the exchange had indeed taken place, the court questioned the juror.
"The Court: What was the sense of the conversation?
Who spoke first; do you recall?
"Juror No. 1: I was actually just standing there.
Her and her husband were talking to the side of me. And she kind of briefly turned towards me.
"And I just asked, is your cancer in remission?
That's what I said.
"And she said, yes. I've been cancer free.
"The Court: Any other comments made, any other discussion between the two of you?
"Juror No. 1: I had just told her that my mother had recently died of cancer, complications of cancer . . . .
[ ] . . . [ ]
"The Court: . . . Was there any other conversation?
"Juror No. 1: No.
[ ] . . . [ ]
"The Court: One of the things that concerns me when that happens is whether or not the recent passing of your mother and from -- from cancer, and the fact that this witness has testified during the events involved in this trial that she was going through chemotherapy treatment, whether or not you might feel some empathy, some sympathy, some identification --
"Juror No. 1: No. I'm very capable of distinguishing the two and separating those emotions when it comes to this trial. I dealt with that, you know, with my mom's passing. It was tough.
"No, it doesn't lead me to have sympathy for another because of similar factors that my mom passed away.
People pass away of cancer every day. So, a fact of life. Just kind of piqued my curiosity when she had testified to it . . . ."
The court then gave counsel the opportunity to question the juror. The only question asked was whether the juror "[felt] that the conversation that had with Mrs. Stevens in any way prejudice
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