$14.7 million verdict is thrown out because of jury problem

This personal injury case went to trial in New York County. After the jury found the New York Transit Authority was liable for the plaintiff's injuries, a separate trial was held on damages. The jury awarded $14.7 million dollars. There will have to be a new trial on damages because something went wrong in the process involving an alternate juror.

The case is Caldwell v. New York City Transit Auth., a Second Department decision issued on December 29. A terrible new year for the plaintiff and her trial attorneys. What happened was that, after the jury began deliberating, one juror had to leave, so the trial court had an alternate juror take his place. When the jurors reached a verdict on damages, they were polled (where each juror stands up and publicly announces agreement with the verdict). "After reading the verdict, the Supreme Court thanked the jury and was about to discharge the jurors when defense counsel interjected with a request that the jurors be polled. Polling revealed that the announced verdict included the votes of the discharged juror as to questions one through four, and that the substituted juror only voted on questions five and six. As to questions one through four, the substituted juror was 'not there.'" 

In other words, the jury did not start its deliberations all over again when the alternate juror because a real juror. Instead, the jury kept the votes of the original (but dismissed juror) and wrapped up deliberations with the new juror. So the verdict was actually the product of two different juries.

The CPLR says that "where the parties to a civil case have not agreed to a trial by fewer than six jurors, a valid verdict requires that all six jurors participate in the underlying deliberations The parties are entitled to a process in which each juror deliberates on all issues and attempts to influence with his or her individual judgment and persuasion the reasoning of the other five." In this case, the alternate juror did not deliberate on all the issues relating to damages. That violates the fundamental rule detailed above. It also violates the rule that a losing party has the right to have the jury polled on the verdict. Without the original juror present (who deliberated and ruled on some of the damages issues), there was no such poll. A verdict sheet is no substitute for the poll. Here is the rule the Second Department articulates, having analyzed the statutes governing issues like this:

we hold that to reconcile CPLR 4106 with the constitutional right to a civil jury trial, a trial court permitting, upon adequate inquiry, a substitution of a regular juror with an alternate juror once deliberations have begun, must instruct the jury: (1) that one of its members has been discharged and replaced with an alternate juror as provided by law; (2) that the parties are entitled to a verdict reached only after full participation of the six jurors who will ultimately return the verdict; and (3) in order to assure the parties of that right, the jury must start their deliberations on each issue from the beginning, and must set aside and disregard all past deliberations. Further, where the trial court has provided the jury with a verdict sheet, the court should substitute it with a clean verdict sheet in order to ensure that past deliberations do not infect the new deliberation process.

A new trial on damages is warranted because "[t]he Supreme Court's failure to give the jury an instruction, inter alia, to begin deliberations anew resulted in an invalid verdict that included the votes of the discharged juror, and did not include votes of the juror who replaced him."