DuPont Says Holdout Juror Was 'Visibly in Tears' Prior to $50M Verdict
DuPont's lawyers have moved for a mistrial, insisting that a holdout juror questioned by the judge had "tears in her eyes" prior to the verdict for an Ohio couple suing over chemical C8 dumped in the Ohio River. A lawyer for the plaintiffs, and the judge, have disagreed.
March 06, 2020 at 06:24 PM
4 minute read
DuPont's lawyers, in court filings this week, have insisted that Juror No. 54 was "visibly in tears" after the judge questioned her about a note he received from the jury raising concerns about her willingness to deliberate. In moving for a mistrial, defense lawyers wrote, "the circumstances surrounding the jury deliberations had an unconstitutionally coercive effect and a mistrial should be granted."
But, in a Monday order allowing DuPont to file its mistrial motion under seal, U.S. District Judge Edmund Sargus of the Southern District of Ohio cast doubt on whether the juror was crying, stating he took "strong issue with the unsupported claim."
"This court saw no such conduct," he wrote in a portion of the order called a "correction of the record."
"The court also interviewed all of the staff who were present in the courtroom: the court reporter, courtroom deputy, career law clerk, three term law clerks, and the court security officer who walked the jury to and from the jury room on that occasion. None saw the juror crying."
Yet in separate declarations filed Wednesday, DuPont's attorneys at Squire Patton Boggs, Damond Mace, a partner in Cleveland, and Katherine Spicer, a senior associate in Washington, D.C., pushed back on their version of events involving Juror No. 54. They insisted that they witnessed "tears in her eyes" as the jury returned to the courtroom to receive an Allen charge.
"Prior to the court entering the courtroom, Juror 54 removed her glasses and wiped her eyes," Mace wrote.
Neither Mace nor Spicer responded to requests for comment.
Plaintiffs attorney Jon Conlin said DuPont's lawyers have nothing to cry about.
"They made it up out of whole cloth," said Conlin, of Cory Watson in Birmingham, Alabama, who represented plaintiffs Travis Abbott, a testicular cancer patient, and his wife, Julie Abbott. "This is a desperate attempt by them to try to undo what the jury found in the Abbott case, because the jury got it right."
On Monday, the jury awarded $50 million to the Abbotts but deadlocked as to another couple, Angela and Teddy Swartz. Both Ohio couples had alleged they got cancer from exposure to C8 chemicals that DuPont dumped into the Ohio River. C8 is part of a family of "forever chemicals" increasingly flooding the courts.
After six weeks of trial, the jury got the case Feb. 27, Conlin said. Jurors passed several notes to the judge asking for trial materials. "And one said they were deadlocked and indicated one of the jurors was refusing to deliberate or follow the instructions," he said.
On Feb. 28, Sargus questioned Juror No. 54 about the note. He later gave the jury an Allen charge, encouraging them to continue deliberations to reach a verdict.
It was after that, but prior to this week's verdict, that DuPont filed its original mistrial motion under seal.
"Based on the timing and content of the jury notes and subsequent questioning of Juror 54, Juror 54 apparently disagreed with her fellow jurors regarding whether specific causation was established on the Abbotts' claims," Mace wrote in a renewed mistrial motion, filed Tuesday. "DuPont respectfully submits that these facts and chronology further confirm that the modified Allen charge and surrounding circumstances amounted to undue coercion of the jury and prejudiced DuPont."
The verdict is the largest involving C8, used to make Teflon and other household items and linked to cancer and other illnesses. Three other verdicts ended in awards totaling less than $20 million before DuPont reached a $670.7 million settlement in 2017. The latest trial is among dozens filed after the settlement.
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