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

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

Explore posts in the same categories: Civil, Craig's commentary, Judge Ted Stewart, Local rules

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