Appeal from the United States District Court for the Eastern District of Wisconsin. No. 890 C 428-Thomas J. Curran, Judge.
Cudahy and Eschbach, Circuit Judges, and Brown, Senior District Judge.*fn*
Laurie Delvaux brought this action against Ford Motor Company for negligence in the design of a Mustang convertible, and under a theory of strict liability for the unreasonable dangerousness of the design. She appeals from jury verdicts for Ford. We affirm.
Appellant Laurie Delvaux was a passenger in a 1968 Ford Mustang convertible when it overturned at a road construction site in Green Bay, Wisconsin on May 21, 1977. As a result of the accident, Delvaux is paraplegic. Delvaux commenced this product liability action against Ford Motor Company in the United States District Court for the Eastern District of Wisconsin on May 14, 1980. She alleged that the convertible was defective and unreasonably dangerous, and that it was negligently designed in not being provided with a roll bar.
The case went to trial on March 22, 1984; on March 31, 1984, the jury returned a special verdict finding that Ford was not negligent and that the Mustang was not "in such defective condition as to be unreasonably dangerous."
The first issue raised by the appellant is whether the trial court erred in not allowing appellant's counsel to interrogate jurors about improper contacts by defendant-appellee's representatives. Delvaux alleges that the wife of one of the jurors, a Mrs. Seivert, was present during the trial, and that Mrs. Seivert engaged in conversation with the wife of an investigator for the defendant. Delvaux also alleges that during closing argument Mrs. Seivert reacted loudly and inappropriately to argument of counsel for the defendant. Finally, Delvaux alleges that immediately after closing argument and instructions, and before the recess after which the jury was to commence its deliberations, Mrs. Seivert was observed speaking "furtively" with one of the defendant's attorneys. After trial, Delvaux's counsel requested permission to speak with the jury to determine whether extraneous information was improperly brought to the jury's attention, or whether any outside influence was brought to bear. See FED. R. EVID. 606(b). Delvaux argues that it was error for the court to deny this request.
Delvaux's counsel first brought the conversation between Mrs. Seivert and Ford's counsel to the court's attention before the jury began its deliberations. The court then gave counsel three choices: the first was to call in the juror whose wife was involved and question him about the allegations to determine if he should be replaced by one of the alternatives; the second was to allow the jury to continue as originally selected; and the third was to submit the case to all eight jurors, the six regular and the two alternate. Counsel for the parties agreed to the last of these, and the matter was submitted to an eight person jury. Counsel for Delvaux gave as his reason for not wanting to question the juror at that time that such a procedure would create a risk of upsetting and prejudicing the juror against the defendant.
After trial, plaintiff was free to interview jurors in an attempt to secure affidavits that would support a new trial. In March 1984 the verdict was returned; in April 1984 plaintiff filed a motion for a new trial; in May 1984 she filed her notice of appeal. On June 7, 1984, Local Rule 8.06 of the Eastern District of Wisconsin, prohibiting communication with jurors except by leave of the court, went into effect. On June 20, 1984, plaintiff made her first request to interview jurors, a request which the court denied. Citing the requirement of good cause under Rule 8.06, the district court found that Delvaux had not made a sufficient showing of cause to justify examination of the juror.*fn1
Whether to allow the jury to be questioned after trial is within the discretion of the trial judge. Clarkson Co. Ltd. v. Shaheen, 660 F.2d 506, 514 (2d Cir. 1981), cert. denied, 455 U.S. 990, 71 L. Ed. 2d 850, 102 S. Ct. 1614 (1982). Considerations of some weight favor allowing such questioning when appropriate. See, e.g., Budoff v. Holiday Inns, Inc., 732 F.2d 1523, 1525-27 (6th Cir. 1984) (mere suggestion that contact was improper may warrant a new trial). But because equally imposing considerations weigh against jury examination after trial, see, e.g., Miller v. United States, 403 F.2d 77 (2d Cir. 1968),*fn2 we will not lightly overturn a decision not to allow such questioning.
In this case, it is clear that the district judge did not abuse his discretion in denying plaintiff the right to question the juror. For all the plaintiff has shown, the wife of a juror apparently had casual conversation with the wife of an investigator for the defendant, and with counsel for both sides.*fn3 No direct contact with a juror has been shown. While any contact, even with relatives of jurors, is cause for suspicion, the seriousness of suspicion raised must be weighed against the disruption caused by the questioning in determining the appropriate response. Here, although the judge did not offer to simply disqualify Mr. Seivert, as plaintiff requested, he did offer to allow plaintiff to question Mr. Seivert before deliberations began. And when plaintiff refused, for tactical reasons, the judge allowed the two alternates to take part in the deliberation as a way of offsetting any possible outside influence. Both parties agreed to this change (although plaintiff did not thereby give up her objection to the judge's failure to disqualify Mr. Seivert).
While we concede that plaintiff is entitled to decline, for tactical reasons, to interrogate the juror, such calculations involve a risk; one risks losing the jury's good will by questioning the juror; but one risks losing the chance to interrogate him if one chooses to keep the good will of the jury. While plaintiff has not given up her right to object, we think that there would have at least to be some direct evidence of outside influence on the jury itself to warrant allowing such questioning after trial, since plaintiff gambled on not questioning him during trial, since plaintiff gambled on not questioning him during trial, when the effect of any possible influence could have been minimized. Some significant justification would be necessary for us to permit two bites at this particular apple, and such justification ...