Archive for March 2007

Proctor & Gamble case – Jurors admit their verdict was not unanimous and that they averaged out their verdict

March 30, 2007

Proctor & Gamble v. Randy L. Haugen, et al


Judge Ted Stewart

United States District Court for the District of Utah, Northern Division

For those unfamiliar with this case, Proctor & Gamble sued several defendants for spreading the rumor that Proctor & Gamble was somehow affiliated with the Church of Satan.  P&G claimed lost profits due to the rumor. The case was originally filed in 1995 and has been in the pre-trial stage since that time.

On March 20, 2007, the court signed a $19,250,000 judgment in favor of P&G after the jury’s verdict for that same amount.

On March 26, 2007, various defendants filed a “Motion for Immediate Inquiry into Possible Jury Misconduct.”  According to the Motion (which was supported by three affidavits by three separate jurors — affidavits were attached to the motion), one of the jurors contacted one of the defendants, “to discuss, among other things, the manner in which damages had been calculated.”  Defense lawyers talked with this juror, and with at least two other jurors. The three jurors agreed that “the jurors had awarded no damages to P&G other than ‘out of pocket’ expenses,” such as attorney fees, that had accumulated over the last 12 years.

According to the motion, the jurors were apparently unaware that the judge (not the jury) was to determine attorney fees in this particular case.  Jurors also were never requested during the case by plaintiff’s counsel to reimburse their client for out-of-pocket attorney fees. Accordingly, there was no evidence presented during the trial regarding reasonableness, necessity, or amount of the attorney fees.

However, according to the motion, it appears that the majority of the jury (which consisted of 11 members), felt that although P&G wasn’t entitled to direct economic damages, P&G was entitled to reimbursement of attorneys’ fees (despite no request by plaintiff’s counsel or instruction by the court to consider attorneys’ fees).

Since the jury had no evidence on how to compute attorneys’ fees, a few juror members offered their opinion in the jury room as to what attorneys charge per hour.  Some said $300/hr., others ventured that it was $350/hr. or even $600/hr.  The jurors continued in their estimation of total attorney’s fees by looking at “the number of lawyers around P&G’s counsel table.”  All of this alleged jury banter is supported by the three juror affidavits presented in the motion.

In trying to come to an agreement as to how much to reimburse, all 11 jurors gave their separate opinion to each other as to the amount of attorneys fees that should be awarded.  “Ultimately, the jurors agreed to add up all of their various guesses (including two ‘zero’ verdicts) and divide by the number of jurors.” The average was calculated to $19,250,000, and the jury returned a verdict for that amount.

This scenario is frankly a nightmare for trial attorneys.  It confirms (again) a long-held belief by many, that despite the lawyers’ best efforts: (1) juries often don’t understand what they are supposed to do; (2) juries often don’t follow the jury instructions; and (3) juries often compromise or “average” their disagreements into what the jury later declares to be a “unanimous” verdict.

As a side note, District of Utah Local Rule 47-2(b) states: “The court will instruct jurors that they are under no obligation to discuss their deliberations or verdict with anyone, although they are free to do so if they wish. The court may set special conditions or restrictions upon juror interviews or may forbid such interviews.”  I have no information as to whether the court set any “conditions” or “restrictions” for the jurors in this case.

Remember that although the motion is supported by three affidavits from three separate jury members, the plaintiff has not had a chance to respond.  We eagerly await such response and I will report upon it when it is filed with the court.

Motion for Inquiry

Jury instructions

Verdict form


Judge Tena Campbell – “You should always follow your doctor’s orders, except in legal matters.”

March 20, 2007

Ronnie Lee Gardner was sentenced to die for killing an attorney during an attempted 1985 courthouse escape. 

On Monday, March 19, 2007, he told Judge Tena Campbell that since he is suffering so much pain from rheumatoid arthritis, he wants to drop his legal appeals and face execution.  Gardner claims that a physician at the prison gave him the idea.  This prompted  Judge Campbell to state, “You should always follow your doctor’s orders, except in legal matters.”

The judge asked Gardner not to drop his appeal until she rules on an ongoing appeal issue in his case, which will come within weeks. Judge Campbell also said she would have a civil attorney contact Gardner about getting the treatment he needs – part of a new federal bar program designed to provide free legal services to inmates with meritorious civil rights cases.


Funding for new federal courthouse

March 15, 2007

The Salt Lake  Tribune reports that sufficient funds have been appropriated to build a new federal courthouse in Salt Lake City. The new 330,000 sq. ft. courthouse building will sit west of the Frank E. Moss U.S. Courthouse, which is at 350 S. Main St.

Magistrate David O. Nuffer – “Making a Magistrate Happy”

March 14, 2007

I know this was put together several years ago, but I would imagine Magistrate Judge Nuffer would still endorse many of these same recommendations he gave back in 2002:

Don’t mess with timestamps

March 14, 2007

Several federal courthouses have dropboxes outside the courthouse that allow after-hour filings.  The dropbox has both a weather-protected timestamp and a separate slot to slip in the document.

In the District of Utah, if a document is time-stamped, and immediately placed in the dropbox, the document is considered timely filed, even if its after regular courthouse hours.

What one should NOT do, is time-stamp the document and put it in the dropbox several days later, attempting to pass off the document as having been “filed” on the date reflected by the time-stamp.

See the following articles:,1249,660202375,00.html

Judge Nuffer also had the following comments regarding this issue on his March 5 blog entry:

Judge Tena Campbell – post-verdict motions denied

March 13, 2007


Case No. 2:05-cv-59 TC

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 16291

March 7, 2007

This case went to trial in November 2006. The jury returned a verdict for Mr. Russo against Ballard, finding no liability for co-Defendant Kimberly-Clark Corporation.  The jury awarded Mr. Russo $ 17 million for misappropriation of his trade secret, and $ 3 million for breach of a Confidential Disclosure Agreement.

Post-verdict, Mr. Russo requested prejudgment interest from the date of the verdict, exemplary damages, and attorneys’ fees. Ballard moved for judgment as a matter of law, remittitur of damages, and for a new trial.

“Mr. Russo is not entitled to prejudgment interest on the verdict because the award is not definitely calculable and is based on unjust enrichment.”

Exemplary damages were denied since “the court does not find a public objective would be served by awarding exemplary damages.”

Attorney fees were denied since “the court does not deem this matter extraordinary to justify awarding attorneys’ fees.”

The Court also denied Ballard’s Motion for Judgment as a Matter of Law, Motion for New Trial and Motion for Remittitur.

Judge Dale A. Kimball – Motion for Summary Judgment granted

March 13, 2007

CHRIS WILLIAMS, Plaintiff, vs. TIM DAHLE IMPORTS, INC., a Utah corporation et al., Defendants.

Case No. 2:03CV46 DAK

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 16298

March 7, 2007

Plaintiff filed suit against Tim Dahle for alleged violations of the Equal Pay Act.  As stated by the Court: “to establish a prima facie case under the Equal Pay Act, Plaintiff must show (1) that she was performing work that was “substantially equal” to that of male coworkers, with “equality” being measured on the basis of the skills, duties, supervision, effort, and responsibilities of the jobs; (2) the conditions where work was performed were basically the same; and (3) male employees were paid more.”

The Court found that Plaintiff did not establish a prima facie case.  “Plaintiff has not offered any evidence to demonstrate that she and the other male managers worked under similar working conditions or that the same effort was required.”

Motion for Summary Judgment granted.  Case dismissed.