Unit Drilling Co. v. Gilmore, No. 13-17-00594-CV, 2019 WL 5089763 (Tex. App. Oct. 10, 2019).
Summary: In Episode #26 of the SM JUROR Podcast, Juror Misconduct Law in Review, Attorney Nilgün Aykent Zahour analyzes the juror misconduct issues in Unit Drilling Co. v. Gilmore, No. 13-17-00594-CV, 2019 WL 5089763 (Tex. App. Oct. 10, 2019). Issue: Does the jury’s inadvertent consideration of the defendant’s insurance policy result in prejudicial juror misconduct?
Hi everyone! This is Nilgün Zahour from SM JUROR and in Episode 26 of our podcast, Juror Misconduct Law in Review, we’re going to examine the juror misconduct issues in the case of Unit Drilling Co. v. Gilmore, which is out of Texas. This case was decided on October 10, 2019 and I’ll be sure to put the full citation of the case in our episode notes.
Now in today’s episode, we’re going to analyze whether the jury’s inadvertent consideration of the defendant’s insurance limits results in prejudicial juror misconduct.
This case involved a civil action where Michael Gilmore, a certified valve technician, was called to repair a seal on a blowout preventer in one of Unit Drilling Company’s oil fields. During that repair process, Gilmore injured his hand and he sued Unit Drilling Company for damages. The trial last two weeks and the jury rendered a verdict awarding Gilmore over $1 million in actual damages and $8 million in exemplary damages. Pursuant to the statutory cap, the trial court reduced the damage awards.
After the verdict, when attorneys for Unit Drilling Company spoke with the jury, they were informed that the jury received an unredacted insurance certificate in the jury room which indicated that Unit Drilling had $9 million in insurance coverage. Unit Drilling moved for a mistrial and new trial arguing that the jury was exposed to an outside influence, the unredacted insurance certificate, which caused Unit Drilling substantial harm. Attached to its motion were juror affidavits with a request to elicit juror testimony. In opposition, Gilmore moved to quash the affidavits and opposed the request to elicit juror testimony.
The trial court granted Gilmore’s motion to quash the juror affidavits and denied all of Unit Drilling’s motions. Unit Drilling then filed an emergency motion for reconsideration, which the trial court granted. The trial court vacated its prior orders and set a hearing date for Unit Drilling’s motion for new trial. Unit Drilling subpoenaed witnesses to appear for the hearing, but the trial court sua sponte quashed those subpoenas. Unit Drilling also requested an evidentiary hearing, but that request was also denied. Ultimately the trial court denied Unit Drilling’s motion for new trial.
So let’s get to our analysis. When we talk about outside influences that have reached the jury, it makes no difference whether the jury’s exposure to that outside influence was inadvertent or intentionally caused by someone or something. That’s because, for whatever reason, the jury has been exposed to extraneous evidence, and now the trial court has to deal with that problem to make sure that the parties receive a fair trial. That’s from the juror misconduct perspective. However, if a party or a party’s attorney was responsible for the juror misconduct occurring, then there certainly can be adverse consequences which may result, such as waiver of the issue and denial of a new trial, allegations of ineffective assistance of counsel or attorney malpractice, contempt or even professional disciplinary actions. Juror misconduct is not a game. Remember that if you’re thinking you can create some sort of unfair advantage through juror misconduct because it won’t work.
Now here, with respect to the unredacted insurance certificate making its way back into the jury room, please note that there is no suggestion in the opinion that this was some sort of intentional act done by Gilmore’s attorney so that the jury could discover how much liability insurance Unit Drilling had. It was a mistake. That document was supposed to be redacted, but it wasn’t. So now the jury was exposed to outside information, evidence about the amount of insurance Unit Drilling had, and it didn’t matter whether that exposure was intentionally or inadvertently created. The only thing that mattered was that the jury was exposed to this new extraneous evidence.
During trial testimony, Gilmore’s attorney asked a trial witness about a certain contract, Exhibit 51. That document contained a statement showing that Unit Drilling had $9,000,000 in insurance coverage. Defense counsel asked that the parties approach the bench and indicated that they had no objection to the exhibit, but that a number of provisions had to be redacted. In response, Gilmore’s attorney stated that he was not going to publish the exhibit, meaning it was not going to be seen by the jury without being redacted. The exhibit was admitted into evidence without any objection, but for reasons unknown, Exhibit 51 went back into the jury room without being redacted.
Now, I want to stop right here for a second and talk about issue preservation. Here we’re talking about whether the juror misconduct issue, meaning the jury’s exposure to Unit Drilling’s insurance certificate showing $9 million in insurance coverage, was properly preserved, such that Unit Drilling would be entitled to a new trial.
During trial testimony, when the issue of Plaintiff’s Exhibit 51 came up, defense counsel asked to approach the bench saying that certain provisions from the exhibit had to be redacted. When we look at that conversation in the record, we don’t actually see anything mentioned about insurance coverage or the amount of the liability policy. As such, Gilmore’s attorney argued that the issue was not properly preserved because Unit Drilling did not make a specific objection when Exhibit 51 was offered into evidence such that the trial court knew or was on notice of the information expected to be redacted.
Now the record is definitely a little sketchy here, but the reviewing court will look at the “record as a whole” to make the determination of whether the issue was preserved. Here, the trial court made it clear during the hearing on Unit Drilling’s motion for new trial that it understood that the insurance information was to be redacted at the end of trial before the exhibit reached the jury room. As such, Gilmore’s argument that the issue was not properly preserved fails because the trial court was on notice of what information was expected to be redacted.
If you find yourself in a similar situation, make the proper objection to preserve the issue on appeal. Before trial testimony begins, present a motion in limine barring the jury from hearing any information about the existence of your client’s insurance information or the amount of the insurance coverage your client has and get this standard motion granted. Then demonstrate on the record that the offered exhibit contains information about the insurance coverage, information which was specifically barred by your motion in limine, and then indicate that the information needs to be redacted before the jury sees the exhibit. Of course, make sure that a court reporter is transcribing this side-bar conference. Next, get the judge’s clear ruling on your objection about what needs to be redacted, and then finally, examine all exhibits which may be viewed by the jury in the jury room and make sure that the subject exhibit was, in fact, redacted.
Now at this point, we have an exhibit with insurance coverage information which inadvertently made its way into the jury room. In order to obtain a new trial based on jury misconduct, Unit Drilling has the burden of proving (1) that misconduct occurred, (2) that it was material, and (3) that Unit Drilling probably suffered injury as a result.
We can see that the first prong is satisfied. The document contained statements of Unit Drilling’s insurance coverage of $9 million. Now specifically, I want you to understand that this document was not admitted into evidence. The jury was never supposed to see or hear that Unit Drilling had $9 million in liability insurance coverage. The inadvertent admission of this document was misconduct.
Now, going back to the burden of proof, the second requirement is that Unit Drilling shows that the jury’s viewing of the insurance information was material. Unit Drilling provided four juror affidavits which swore that the jury considered the $9 million in insurance coverage when it awarded $8 million in punitive damages. The Court of Appeals took judicial notice “of the fact that a jury is more apt to render a judgment against a defendant, and for a larger amount, if it knows that the defendant is protected by insurance.”
Now remember, Unit Drilling presented its first motion for mistrial and motion for new trial and attached the affidavits of four jurors who swore that they considered the $9 million in insurance coverage. The trial court quashed those juror affidavits pursuant to Gilmore’s motion to quash. After Unit Drilling’s motion for reconsideration, the trial court vacated that ruling. Even though Unit Drilling was not allowed to elicit juror testimony or have an evidentiary hearing, those four juror affidavits were part of the record and part of its motion for new trial. Those affidavits demonstrated that the jury considered the extraneous evidence of the insurance coverage amount.
That being said, the misconduct was material and caused Unit Drilling to suffer injury. Unit Drilling has met its burden of proof in moving for a new trial. As such, the trial court abused its discretion in denying their motion for new trial.
And that’s it for today’s analysis of the juror misconduct issues in this case. If you like what you hear and want more, please subscribe to our podcast and leave us a review.
And also check out our latest CLE on juror misconduct called: “Facebook & Today’s Juror: 2017’s 10 Biggest Juror Misconduct Events,” and use the code “podcast25” for $25 off our regular CLE price exclusively for our podcast listeners. This CLE is accredited/approved for 1.5 general credit hours in multiple states and I’ll put the link to the registration page in our episode notes.
That’s it for today. This is Nilgün Zahour from SM JUROR, and remember, don’t let juror misconduct taint your verdict. See you next time.
Don’t let juror misconduct taint your verdict…