Stupid juror tricks: Anti-Semitic slurs give employer a second shot
She said what?
Yep, it’s time to be appalled by the fact that there are still jurors out there whose ugly beliefs can make a train wreck out of a perfectly good trial.
These are the sorry facts.
A Missouri jury slapped Pepose Vision Institute (PVI) with a $130,000 wrongful discharge verdict.
Michelle Fleshner had sued PVI, a refractive surgery practice, alleging that she was fired because she spoke with a U.S. Department of Labor investigator concerning alleged overtime violations at the company.
After the jury was dismissed, one juror approached PVI’s attorneys complaining about anti-Semitic comments made during the course of deliberations.
According to the juror’s affidavit, another juror described the wife of PVI’s president — who testified for the company — as a “Jewish witch,” “Jewish bitch” and “penny-pinching Jew.” This foul-mouthed juror allegedly said that the witness “was such a cheap Jew that she did not want to pay Plaintiff unemployment compensation.”
The trial judge denied PVI’s request for a new trial, following the general rule that a juror’s testimony about jury misconduct affecting deliberations may not be used to impeach the jury’s verdict.
But the Missouri Supreme Court on Tuesday concluded that the allegations of juror misconduct in the case against PVI were so over the top that the general rule did not apply.
“The alleged anti-Semitic comments made during deliberations in this case are ‘not simply a matter of “political correctness” to be brushed aside by a thick-skinned judiciary,’” the court said.
Instead, the court held that “if a juror makes statements evincing ethnic or religious bias or prejudice during jury deliberations, the parties are deprived of their right to a fair and impartial jury and equal protection of the law.”
So the court decided that the trial judge goofed by overruling PVI’s motion for a new trial without first holding a hearing to determine whether the anti-Semitic comments were actually made. (Fleshner v. Pepose Vision Institute)
This is the second recent decision in which state courts have seemingly adopted a zero tolerance policy when it comes to the expressions of bigotry in the jury room.
In December, the Washington Court of Appeals decided that jurors’ racially insensitive remarks against a plaintiff’s Japanese-American lawyer justified overturning a defense verdict rendered in a medical malpractice case.
The juror misconduct alleged in Fleshner v. PVI would appear to be more extreme, with particularly ugly anti-Semitic statements directed against a witness who in essence was a party in the case.
In the Washington case, the racially insensitive remarks seemed to be more in the line of ham-fisted attempts at humor.
In any event, the lesson seems clear: If you’re dissatisfied with a verdict, the whiff of bigotry in the jury room may be just enough for your client to get a second bite at the apple.
— Pat Murphy
patrick.murphy@lawyersusaonline.com
Check out the Circuit Blitz on Twitter!
The Blitz is a daily review of the noteworthy decisions issued by the U.S. Circuit Courts of Appeals.
To follow the Blitz, go to:
