American Power Products, Inc. v. CSK Auto, Inc. (8/5/2014)

August 26, 2014

Arizona Court of Appeals Division One Holds That Trial Court Abused Its Discretion by Failing to Hold Evidentiary Hearing on Alleged Improper Bailiff Communication with Jury.

After a three-week trial involving 24 witnesses and 164 exhibits, the jury began deliberations on a Friday afternoon before a three-day weekend.  After less than three hours of deliberations, the jury returned a 6-2 verdict for American Power Products but awarded only $10,733 of American’s $5 million requests.  American hired a private investigator to interview the jurors, which resulted in two affidavits attesting that the deliberations were not fair, that most of the jurors refused to consider the evidence because they wanted to go home, and other jurors felt pressured to go along.  During the deliberations, a juror asked the bailiff how long deliberations typically lasted, and the bailiff allegedly responded that “an hour or two should be plenty.”

American filed a motion for a new trial, requesting at a minimum an evidentiary hearing to ascertain whether the bailiff’s communications were improper and prejudicial.  The court considered the affidavits, the accuracy of which were not disputed by CSK, but denied the motion without holding an evidentiary hearing.  American timely appealed.

The Court of Appeals reversed the decision and remanded the case with instructions to consider the prejudicial effect of the bailiff’s communications.  Although Rule 606(b) of the Arizona Rules of Evidence generally bars testimony by jurors regarding events during deliberations, the rule does not bar testimony regarding extraneous prejudicial information.  Rule 39(e) of the Arizona Rules of Civil Procedure, as interpreted by the Arizona Supreme Court, bars bailiff communications that have not been ordered by the court except to ask the jury whether they have agreed upon a verdict or to convey minor administrative details.  The bailiff’s statement was therefore improper, but an evidentiary hearing was necessary to determine whether the statement was prejudicial as interpreted by the jurors.  The opinion instructs the trial court to consider the factors set forth in Perez v. Community Hospital of Chandler, Inc., 187 Ariz. 355, 929 P.2d 557 (1997) and Kilgore v. Fuji Heavy Industries, Ltd., 240 P.3d 648 (N.M. 2010).

Presiding Judge Norris authored the opinion, which Judge Thumma joined.  Judge Cattani dissented, writing that the undisputed juror affidavits contained adequate facts for the trial court to conclude that the bailiff’s statement was not prejudicial without holding an evidentiary hearing.

Posted by: Shane Ham