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City of Neodesha v. BP Corp. North America, Inc.

Court of Appeals of Kansas

August 22, 2014

CITY OF NEODESHA, KANSAS, Individually and as Representative of Those Persons and Entities Similarly Situated, Appellants,
v.
BP CORPORATION NORTH AMERICA, INCORPORATED, f/k/a BP AMOCO CORPORATION, et al., Appellees

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Appeal from Wilson District Court; DANIEL D. CREITZ, judge.

SYLLABUS

BY THE COURT

1. K.S.A. 2012 Supp. 60-250(a) allows a trial court to enter judgment as a matter of law against a party when the court finds there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. When ruling on such motions the trial court must resolve all facts and inferences reasonably drawn from the facts in favor of the party against whom the ruling is sought. If reasonable minds could reach different verdicts based on the evidence, the motion must be denied. An appellate court must undertake a similar analysis when reviewing the ruling on such a motion.

2. Under Supreme Court Rule 181 (2013 Kan. Ct. R. Annot. 277), a juror may be called to testify at a hearing on a posttrial motion only if the court--after a hearing to determine whether all or any jurors should be called--grants a motion to call the juror.

3. K.S.A. 2012 Supp. 60-259(a)(1)(C) grants the trial court authority to order a new trial when the jury verdict was given under the influence of passion or prejudice.

4. An appellate court reviews the trial court's decision on a motion for a new trial for an abuse of discretion.

5. If jury misconduct causes a fundamental failure of the trial process that is substantially prejudicial to the complaining party, the trial court may order a new trial.

6. An appellate court will use a two-step process in determining whether a challenged jury instruction is clearly erroneous. First, the court must determine whether there was any error at all by considering whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record. If the court finds error, it must assess whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming error in the instruction has the burden to prove the degree of prejudice necessary for reversal.

7. The trial court is required to properly instruct the jury on a party's theory of the case. Errors regarding jury instructions will not require reversal unless they result in prejudice to the appealing party. Instructions in any particular case are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct and the jury could not reasonably have been misled by them, the instructions will be approved on appeal.

8. It is the appellant's burden to designate the record to establish any claim of error. Without a record, this court will not presume error.

9. When the trial court denies a motion in limine and the subject evidence is introduced later at trial, the moving party must object at trial to the admission of the evidence in order to preserve the issue for appeal.

10. K.S.A. 60-404 generally precludes an appellate court from reviewing an evidentiary challenge unless there appears of record an objection to the evidence, timely interposed, and so stated as to make clear the specific ground of objection.

11. Under K.S.A. 2012 Supp. 60-226(b)(4), documents prepared in anticipation of litigation or for trial by or for a party are not discoverable by another party in the absence of some specific showing of need. The work-product rule is not an absolute privilege but rather a limitation on discovery.

12. K.S.A. 60-456(a) states that if a witness is not testifying as an expert, his or her testimony in the form of opinions or inferences is limited to such opinions or inferences the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clear understanding of his or her testimony. This statute permits opinion testimony by a nonexpert witness if the opinion is incidental to the witness' actual knowledge of the facts and circumstances of the case.

13. The qualification of an expert witness and the admission of that witness' testimony are matters within the broad discretion of the trial court.

14. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue.

15. Sanctions should be designed to accomplish the objectives of discovery rather than for the purpose of punishment. The dismissal or granting of a default judgment is a drastic remedy to impose as a discovery sanction and should be used as a last resort when other lesser sanctions are clearly insufficient to accomplish the desired outcome.

David W. Edgar, of Edgar Law Firm LLC, of Denver, Colorado, John M. Edgar, John F. Edgar, and Matthew J. Limoli, of Kansas City, Missouri, and James P. Frickleton, of Bartimus, Frickleton, Robertson & Gorny, P.C., of Leawood, for appellants.

Richard C. Hite, Arthur S. Chalmers, and F. James Robinson, Jr., of Hite, Fanning & Honeyman, L.L.P., of Wichita, and Richard C. Godfrey, Andrew B. Bloomer, Catherine L. Fitzpatrick, Michael Chu, and Megan M. New, of Kirkland & Ellis, LLP, of Chicago, Illinois, for appellees.

Before HILL, P.J., ATCHESON and BRUNS, JJ.

OPINION

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Hill, J.:

Everything in our world moves. This means the pollutants and poisons produced by a century of oil refining rarely stay in one place, safely secured in some snug unseen underground cell. Instead, such noxious compounds slowly migrate, leaching from one substratum to another. No neighbor is safe from this march of toxins. These moving subsurface fields of pollution, euphemistically called " plumes" by some, are dangerous for these feathers are toxic.

Fortunately, what is done by human effort can be, for the most part, undone by human effort. Messes can be cleaned up. Pollutants, even those buried deep below the surface, unseen but nonetheless lethal, can be diverted, contained, and reduced. When engaged in such efforts, questions arise. Is there pollution at this site? If so, what are the pollutants and how extensive is the danger? What can be done to protect the public? Finally, who is going to pay for these measures?

When a group of citizens, some businesses, and two local governments sued BP Corporation North America (BP), a company that owns a closed oil refinery in Neodesha, Kansas, they sought answers to those questions. After a 17-week jury trial, the jury determined that BP was not legally responsible to do more than what it was already doing.

In an interlocutory appeal of the trial court's posttrial order granting a new trial to the Plaintiffs on the theory of strict liability, the Kansas Supreme Court reversed, holding the Plaintiffs were not entitled to a new trial on that theory. Upon the case's return to the district court, the Plaintiffs moved for a new trial for many reasons. This appeal arises from the trial court's denial of that motion.

Historical Background

When the Supreme Court reviewed this case, the court offered a detailed history, beginning in 1897, of the background of this growing environmental problem. We need not repeat all of those facts here. See City of Neodesha v. BP Corporation, 295 Kan. 298, 300-02, 287 P.3d 214 (2014) ( Neodesha I ).

In late 2002, certain city officials began questioning BP's remediation efforts. Several officials and citizens visited Sugar Creek, Missouri, another site where BP had been remediating wastes from a former refinery. It was at this time the City of Neodesha (the City) retained the services of the Technical Outreach Services for Communities (TOSC) group, an advisory group from Kansas State University, to review BP and Kansas Department of Health and Environment materials and educate the City about the issues.

In the summer of 2003, an advisory group composed of various representatives of Neodesha industry, citizenry, and governmental

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entities held meetings with BP and Department of Health and Environment officials concerning the environmental conditions around the old refinery. The group unanimously approved BP's proposed " Corrective Action Study" that created a detailed cleanup plan. About that same time, Neodesha's mayor and city administrator requested that BP provide financial " reinvestments" within the City that did not directly tie into the ongoing remediation work. In light of the City's request, BP formed a working group in an effort to negotiate a settlement. When subsequent negotiations failed, this lawsuit followed.

This Lawsuit Was Large in Scope.

In March 2004, the City filed this action on behalf of itself and all other real property owners in Neodesha. The trial court granted the Plaintiffs' motion for class certification, defining the class as " [a]ll persons and entities who owned real property on or after March 19, 2004, which has been exposed to or otherwise suffered economic harm from the hazardous wastes released from the [BP] operations in and around Neodesha, Kansas." Although the Plaintiffs' petition was amended several times, the allegations against BP ultimately included claims of negligence, strict liability, nuisance, trespass, violation of K.S.A. 65-6203 (a statute creating legal liability for accidental release or discharge of materials detrimental to water or soil), unjust enrichment, fraudulent concealment/fraud by silence, breach of fiduciary duty, and breach of contract. The Plaintiffs also sought declaratory and injunctive relief.

The Plaintiffs based their claims on allegations that BP and its predecessors released petroleum, petroleum products, and hazardous substances into the soil and groundwater from the refinery which was located within the city. The Plaintiffs also claimed that BP had failed to adequately remediate the damages created by its contamination.

The trial court granted summary judgment to BP on some issues. It ruled that the Plaintiffs could not pursue an unjust enrichment claim and that the statute of repose barred any claims regarding what had occurred when the refinery was operational.

After a 17-week trial, the jury returned a verdict in favor of BP on all counts. The Plaintiffs alleged many trial errors and jury misconduct. They sought a new trial. The trial court denied these motions. But, the trial court did grant the Plaintiffs' motion for judgment as a matter of law on their strict liability claim. Our Supreme Court later overturned this ruling in Neodesha I, 295 Kan. 298, 287 P.3d 214. The Court ruled: " Strict liability claims in tort alleging water contamination require application of the abnormally dangerous activity tests set forth in Restatement (Second) of Torts § § 519 and 520 (1976). Language to the contrary in Koger v. Ferrin, 23 Kan.App.2d 47, 926 P.2d 680 (1996), is disapproved." After the mandate from the Supreme Court arrived at the district court, the court entered judgment in favor of BP on the strict liability claim and affirmed its prior denials of the Plaintiffs' other posttrial motions.

We see three categories of attack by the Plaintiffs on the trial court's judgments. First, the court made many errors in its legal rulings. Next, the court failed to fully investigate the Plaintiffs' claims of jury misconduct. And finally, the court abused its discretion in many ways during and after the trial.

Naturally, after such a long trial, we must cope with a huge record on appeal and many allegations of error. There are 203 volumes in the record on appeal, with 70 volumes of transcripts of the jury trial and more than 1,000 exhibits. We will first examine the various legal rulings that the Plaintiffs complain about. Next, we will review the question of possible jury misconduct. Finally, we will look at the many discretionary rulings made by the trial court that are the grounds for the Plaintiffs' request for a new trial. We cannot conclude that this was a perfect trial, but we see no good reason to conclude that the court should have granted a new trial.

The Plaintiffs Argue that Bp Is Strictly Liable.

Citing the " abnormally dangerous activity" standard mentioned by the Supreme Court in

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Neodesha I, the Plaintiffs contend the undisputed facts establish that BP's ongoing storage of hazardous and carcinogenic pollutants on its property is abnormally dangerous. Therefore, the Plaintiffs claim the trial court erred in not granting their motion for judgment as a matter of law on this theory.

Indeed, K.S.A. 2012 Supp. 60-250(a) allows a trial court to enter judgment as a matter of law against a party when the court finds there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. When ruling on such motions the trial court must resolve all facts and inferences reasonably drawn from the evidence in favor of the party against whom the ruling is sought. If reasonable minds could reach different verdicts based on the evidence, the motion must be denied. We, as an appellate court, must undertake a similar analysis when reviewing the ruling on such a motion. Neodesha I, 295 Kan. at 319.

In its response, BP argues that the law-of-the-case doctrine prevents our review of this issue. The law-of-the-case doctrine prevents relitigation of the same issues within successive stages of the same lawsuit. Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1212, 308 P.3d 1238 (2013). This doctrine is similar to collateral estoppel. Collateral estoppel prevents parties from relitigating an issue a court has decided on the merits in another action. Estate of Belden v. Brown County, 46 Kan.App.2d 247, 266, 261 P.3d 943 (2011). The law-of-the-case doctrine serves essentially the same function within a single case on issues a court has considered and decided. State v. West, 46 Kan.App.2d 732, 735-36, 281 P.3d 529 (2011).

In order to rule on this matter, we must review some case history. Each of the Plaintiffs' petitions and amended petitions contained a strict liability count. Essentially, the petitions alleged that BP allowed contamination from its property to escape and that because the treatment and storage of the contaminants were not matters of common usage and the activity was inappropriate for the location, it was an abnormally dangerous activity and thus BP was strictly liable. The final pretrial order contained a strict liability claim based on BP's alleged pollution of ground water and for engaging in abnormally dangerous activities in the storage and treatment of the refinery contamination.

Prior to trial, BP argued that the 2-year statute of limitations and the 10-year statute of repose barred the Plaintiffs' strict liability claims. BP argued that any claims based upon activities relating to plant operations which terminated in 1970 or for other events prior to March 19, 2002, were legally barred. BP also argued in the alternative that the disposal of wastes on the plant's property was not an abnormally dangerous activity as defined by the Restatement (Second) of Torts § § 519-520 as adopted in Kansas.

Just before trial, the trial court partially granted BP's summary judgment motion on these issues. The court rejected BP's assertions that the statute of repose and the statute of limitations completely barred the Plaintiffs' strict liability claims. The court held that the statute of repose barred a portion of the Plaintiffs' claims--to the extent they related to discontinued refinery operations. But the court ruled that it was a question for the jury to decide whether BP was strictly liable for its management of the remediation project and that such liability would be " 'limited to the kind of harm the possibility of which makes the activity abnormally dangerous.' [Citation omitted.]." The trial court also found that there were questions of fact on whether BP was estopped from asserting the 2-year statute of limitations with respect to its remediation efforts. Finally, the court held that a " strict liability" analysis was still applicable in cases involving contamination of water.

Accordingly, the trial court instructed the jury on the strict liability claim. In the general claims instruction, the court told the jury that the Plaintiffs claimed BP was strictly liable " for [its] clean up of the refinery contamination." The court gave a special instruction on strict liability that stated the Plaintiffs were required to prove BP's remediation constituted an " abnormally dangerous activity" and listed the various factors used to consider whether an activity is abnormally dangerous.

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It is important at this point to review what the Supreme Court stated on this issue in Neodesha I :

" [T]he general rule imposing strict liability in tort law for abnormally dangerous activities stated in the Restatement (Second) of Torts § 519 provides: (a) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he or she has exercised the utmost care to prevent the harm; and (b) this strict liability is limited to the kind of harm the possibility of which makes the activity abnormally dangerous.
" In determining whether an activity may be determined abnormally dangerous, the Restatement (Second) of Torts § 520 sets forth the following factors: (a) existence of a high degree of risk of some harm to the person, land, or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes." 295 Kan. at 318-19.

Of course, after hearing all of the evidence the jury returned a verdict finding BP was not liable to the Plaintiffs under a strict liability claim or any other claim.

With all of this in mind, the Plaintiffs are precluded from asserting they are entitled to judgment as a matter of law under an abnormally dangerous activity theory. The Plaintiffs never sought judgment as a matter of law in the district court under the abnormally dangerous activities standard. Both in their pre- and postverdict motions their arguments were based solely on their perception that Kansas law created a per se liability for contamination of groundwater. Neither motion addressed the Restatement (Second) of Torts factors for abnormally dangerous activities. We cannot say the trial court erred in denying a motion under K.S.A. 2012 Supp. 60-250 on a theory that the Plaintiffs never asserted.

We must also point out that after the trial court received the mandate in Neodesha I, the Plaintiffs did not file a new motion based upon the abnormally dangerous standard. We can find nothing in the record that reveals the Plaintiffs filed any motion reiterating the alternative basis for strict liability in applying the trial evidence to the Restatement (Second) of Torts standards. It appears the Plaintiffs have improperly tried to raise this issue for the first time on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011).

Finally, the Supreme Court reviewed the trial evidence and found that disputed facts existed with regard to the abnormally dangerous activity issue. As a result, the court found the jury's verdict rejecting the strict liability theory should not be disturbed. Neodesha I, 295 Kan. at 325. Thus, the Supreme Court's determination that the facts on the issue were disputed is the law of the case, and that determination cannot be challenged in this appeal. The Plaintiffs fail to cite any explicit testimony from the trial that established, as a matter of law, that the factors relating to the abnormally dangerous activity were proved as a matter of law.

We see no reason to reverse on this issue.

The Trial Court Did Not Need to Recall the Entire Jury.

The Plaintiffs contend that the trial court failed to properly investigate their claims of jury misconduct by refusing to recall the entire jury panel. The Plaintiffs also claim the trial court abused its discretion in denying their motion for a new trial as a result of jury misconduct.

Indeed, under Supreme Court Rule 181 (2013 Kan. Ct. R. Annot. 277) a juror may be called to testify at a hearing on a posttrial motion only if the court--after a hearing to determine whether all or any jurors should be called--grants a motion to call the juror. And K.S.A. 2012 Supp. 60-259(a)(1)(C) grants the trial court authority to order a new trial when the jury verdict was given under the influence of passion or prejudice. In fact, jurors cannot be called for hearings

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on posttrial motions without an order of the court that is entered after a motion and a Rule 181 hearing. Williams v. Lawton, 288 Kan. 768, Syl. ¶ 10, 207 P.3d 1027 (2009).

We review the trial court's decision on a motion for a new trial for an abuse of discretion. Duncan v. West Wichita Family Physicians, 43 Kan.App.2d 111, 114, 221 P.3d 630 (2010), rev. denied 291 Kan. 911 (2011). A judicial act constitutes an abuse of discretion if the action is: (1) arbitrary, fanciful, or unreasonable-- i.e., if no reasonable person would take the view adopted by the trial court; (2) based on an error of law-- i.e., if the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact-- i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).

Recalling jurors after their service has ended is not common and should be undertaken only for just cause. Williams, 288 Kan. at 788.

In 1915, the United States Supreme Court explained the important policy considerations that made shielding jury deliberations from public scrutiny a necessity.

" [L]et it once be 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 and 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." McDonald v. Pless, 238 U.S. 264, 267-68, 35 S.Ct. 783, 59 L.Ed. 1300 (1915).

Later, the Supreme Court described the well-established common-law rule.

" By the beginning of this century, if not earlier, the near-universal and firmly established common-law rule in the United State flatly prohibited the admission of juror testimony to impeach a jury verdict. . . .
" Exceptions to the common-law rule were recognized only in situations in which an 'extraneous influence' [citation omitted] was alleged to have affected the jury." Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987).

If jury misconduct causes a fundamental failure of the trial process that is substantially prejudicial to the complaining party, the trial court abuses its discretion if it fails to order a new trial. See Bell v. State, 46 Kan.App.2d 488, 490-91, 263 P.3d 840 (2011), rev. denied 296 Kan. 1129 (2012).

When ruling on motions such as this, a court must follow two statutes, K.S.A. 60-441 and K.S.A. 60-444. The first, K.S.A. 60-441, bars the receipt of evidence that shows the effect of any statement, conduct, event, or condition upon the mind of a juror as an influence on his or her verdict or as it concerns the mental processes by which the verdict was determined. In other words jurors cannot be compelled to relate their thought processes. But the second, K.S.A. 60-444, permits a juror to testify about the conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict. This would permit evidence of any " extraneous influence," as mentioned by the United States Supreme Court, to come to light. See Tanner, 483 U.S. at 117.

How This Issue Arose

These concerns came to the trial court's attention when the Neodesha city administrator filed an affidavit that stated he had been approached shortly after the trial by Juror No. 11 who disagreed with the verdict and asserted that some of the jurors denied others the ability to review the exhibits during deliberations. Another representative of the Plaintiffs met Juror No. 2 at a local store,

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and Juror No. 2 told the representative that the jury did not discuss or review the evidence during deliberations and the votes on one of the claims changed over the holiday break from a verdict for the Plaintiffs to a defense verdict.

Over BP's objections, the trial judge interviewed Juror No. 11 in the presence of a court reporter. Juror No. 11 mostly confirmed the administrator's affidavit and told the judge that she believed four jurors bullied others by wanting to constantly vote on the claims, " shoot[ing] down" anyone who expressed a different viewpoint, and rushing jurors who wished to look at exhibits during the discussions. Juror No. 11 told the judge she simply told them to shut up and leave her alone while she was looking at the exhibits. Juror No. 11 stated she was bolder than others and did what she thought was right. Juror No. 11 also reported that on the first 2 days of deliberations they had gone through the verdict form down to the nuisance claim; at that time, a poll of the jurors resulted in a majority voting to award the Plaintiffs damages on that claim. When the jurors returned from the holiday break several days later, one or more jurors expressed uncertainty over that claim, and they decided to go back over the question. The vote then changed to a 10-2 verdict for BP. Still, Juror No. 11 indicated that the verdict affirmed at the end of the trial was correct and that 10 or more persons voted in favor of BP on every claim.

After all of this came to light, the trial judge conducted similar interviews with Jurors Nos. 1, 2, and 7. All three of those jurors told the judge they remembered being polled after the verdict was announced and agreed that 10 or more jurors agreed on the verdicts. Although not every issue was unanimous, they still affirmed during the interviews that the verdict read was a correct reflection of their votes.

These three jurors all agreed that every juror had the opportunity to look at the exhibits, although other jurors did not want them to take too long and stall the process. The three jurors agreed that several jurors had agreed in favor of the Plaintiffs on the nuisance or trespass issue, but some of the jurors' views changed after the holiday break. After the break, the vote was 10 or more again voting for a defense verdict on that claim. All three agreed the jurors discussed the evidence and any juror who wanted to say something was allowed to do so. Further, the jury panel discussed the instructions and the verdict form during this process, even though they did not always agree. No one in the jury room used abusive language or personally attacked another juror. None of these jurors had any reason to believe other jurors ignored the judge's admonishment not to discuss the issues over the break. No matters outside the evidence were discussed.

Finally, none of these jurors felt coerced, although Juror No. 1 asserted that whatever viewpoint she raised, the majority always seemed to reject it and she believed other jurors were very strong in their viewpoint and could have overpowered weaker jurors. Some of the jurors made negative remarks about the Plaintiffs' counsel, seeing him as a bully.

The trial court provided copies of the transcripts from the juror interviews to counsel for both sides, and counsel had the opportunity to review those transcripts before the scheduled hearings on the Plaintiffs' posttrial motions when this issue was argued.

On the day before the hearing on the Plaintiffs' posttrial motion, the Plaintiffs filed a motion seeking to withdraw their motion to recall the entire jury. The Plaintiffs gave no reason why they were withdrawing the motion. At the hearing, the Plaintiffs' counsel was asked if this was a waiver of the entire issue. In response he stated:

" Your Honor, the pleading is as the pleading states, we are withdrawing our 181 motion. We recognize the Court's admonition in which the Court indicated it would not grant a motion on--based on the affidavits and things that had gone before without a pursuit of a 181 motion. So we were acknowledging that section II-E of our amended new trial motion goes to that issue. Just acknowledging for the benefit of the Court and benefit of the other side that we therefore would not burden the Court with any argument on that issue, the

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Court having already indicated its intent. But that is the extent of what we intended to do by that sentence."

Accordingly, the Plaintiffs did not argue jury misconduct during that hearing. After the hearing, even though the Plaintiffs had withdrawn their motion to recall the jury, the trial court addressed that issue in its order. The court denied any relief, finding the Plaintiffs did not carry their burden of proving just cause to recall the entire jury in light of the jurors' affidavits presented by both parties. Although the court noted that it did not consider the transcripts of the ex parte interviews with the jurors, the judge indicated he would have reached the same conclusion even if he had considered the interviews. The court also separately addressed and rejected the concerns of juror misconduct in connection with Juror No. 9.

To us, the Plaintiffs contend the trial court erred in failing to carry out its duty to fairly investigate allegations of jury misconduct. They base their contention on three points: (1) Juror No. 9 and perhaps others prejudged the case; (2) the jury suddenly changed directions after the holiday recess; and (3) dissenting jurors were bullied into submission to a defense verdict.

Our review of the record does not support any of the Plaintiffs' assertions. We note that there are no allegations of any outside influence on this jury. All of these complaints are about how this jury conducted its deliberations and not some outside interference or extraneous matter that would influence their verdict.

The trial court did conduct ex parte interviews with four of the jurors and later accepted juror affidavits from both parties. Significantly, the Plaintiffs withdrew their motion to recall the jury on the eve of the arguments on posttrial motions. We can only view this as a deliberate trial strategy chosen by counsel after consulting with the Plaintiffs. Even though the court addressed the Rule 181 motion in its ruling, the Plaintiffs cannot complain the trial court erred in failing to recall the jury when they withdrew that request. A party may not invite error and then complain of that error on appeal. Thoroughbred Assocs., 297 Kan. at 1204. For this reason, we reject this point on appeal.

Besides, the trial court here found that there was simply not enough evidence to conclude the Defendants' verdict was impeached by these allegations. A panel of this court noted that, especially in long trials, jurors will continue to act as human beings:

" '[T]he jury being what it is, jurors will act like human beings in the jury room, and will indulge in bluster and hyperbole and animated irrelevancies. Not only does the law presume a juror respects the obligation of his oath and votes his convictions, but generally he in fact does so; and due allowance must be made for some exuberance in jury-room discussion or the court must keep on granting new trials in important cases until a perfectly spiritless jury can be secured.' [Citation omitted.]" Butler v. HCA Health Svcs. of Kansas, Inc., 27 Kan.App.2d 403, 412, 6 P.3d 871, rev. denied 268 Kan. 885 (1999).

Further on this point, " [a]n attempt to persuade a person to vote differently than he or she feels may seem somewhat coercive, but an attempt to convince a minority member of the jury of the error of a position, while perhaps uncomfortable for the minority member, does not constitute juror misconduct." State v. Jones, 29 Kan.App.2d 936, 940, 34 P.3d 82 (2001), rev. denied 273 Kan. 1038 (2002).

Based on this record and the trial judge's firsthand experience during the trial and its aftermath, there is no clear evidence for us to conclude that there was any misconduct by the jurors that was prejudicial to the Plaintiffs. We see no reason to order a new trial based on jury misconduct. We see no fundamental failure in the trial based on jury misconduct. There is no substantial prejudice here to the Plaintiffs' right to a fair trial.

We Turn to Claims of Jury Instruction Errors.

The Plaintiffs pursued eight different legal theories on behalf of a broad assortment of subclasses in this trial. The Supreme Court in Neodesha I commented that the jury instructions

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in this case were somewhat inconsistent and confusing. We agree. Overall, most of the objections concerning the instructions that the Plaintiffs now raise in their brief were not lodged at trial. This means, ultimately, we must review this issue under a clearly erroneous standard. After careful consideration we are not persuaded that a new trial is called for based upon errors in the instructions.

Caselaw instructs that for jury instruction issues, the standards of review on appeal differ as our analysis progresses:

o First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, ...

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