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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Cheryl Prasol,

Plaintiff, Case No. 09-10248

v. Honorable Sean F. Cox

Cattron-Theimeg, Inc., et al.

Defendants.

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OPINION & ORDER DENYING PLAINTIFF’S

MOTION FOR MISTRIAL

Plaintiff Cheryl Prasol brought this product liability action against Defendants for an

injury allegedly caused by the defective design of a crane remote control. Defendants are

Cattron-Theimeg, Inc. (“Cattron”) and other related manufacturers of remote controls for the

operation of overhead cranes. Trial began on Tuesday, June 28, 2011. On July 8, 2011, during

jury deliberations, Plaintiff’s counsel made an oral motion for a mistrial. The Court heard oral

argument on Plaintiff’s motion the same day. For the reasons set forth below, the Court shall

DENY Plaintiff’s motion for a new trial.

BACKGROUND

In this negligent design case, it is undisputed that Plaintiff was injured during the course

of her employment while operating a crane used to transport a bundle of steel tubes. It has been

Plaintiff’s theory during the course of this trial that, while lifting a bundle of steel tubes with a

crane, excess chain from the load of steel struck her chest and landed on the crane remote control

box, causing the controls to inadvertently activate the crane and drop the steel tubes on her legs. 

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See trial transcript for Wednesday, July 6, 2011. 1

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Plaintiff alleges that the remote control for the crane was negligently designed by Defendant

because the remote control toggles were not sufficiently shielded from falling objects.

On Wednesday, July 6, 2011, while the jury was deliberating, the Court received a note

from Juror # 6, Mr. Neil McClain. The note stated, “Judge Cox, I don't know if it makes any

difference, but juror number one told us all that he went to a train yard and investigated the

operation of a similar remote control. He used this knowledge to influence the rest of the jury.” 

A few minutes later, the jury indicated that they had received a verdict. As a result of the note

from Mr. McClain, the Court did not receive the verdict from the jury.

Upon receiving Mr. McClain’s note, the Court interviewed Mr. McClain regarding the

extraneous information that was improperly brought to the jury's attention, pursuant to Federal

Rule of Evidence 606(b). Mr. McClain stated that while the jury was examining the remote

control, which was introduced as an exhibit by Defendant, Juror # 1, Mr. Leo Denomy, began

telling the other juror members that he had recently stopped at a train stop while in traffic and

noticed that an employee from the train yard was using a remote control to move a locomotive

engine. Mr. Donemy questioned the employee about the operations of the remote control. Mr. 1

McClain testified that Mr. Denomy stated that the remote control was similar to the remote used

by Plaintiff during the time of her accident. The Court also learned that Mr. Denomy questioned

the employee at the train station about the operation and safety features of the remote control. 

Mr. Denomy also relayed information to the other jurors that the levers of the remote control had

to be pushed all the way down for the crane to operate. Of course, this information was not

presented to the jury during the course of the trial. 

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See rough draft Transcript of Testimony of Neil McClain on July 6, 2011. 2

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Mr. McClain also volunteered:

Juror # 6: And there was a question amongst the jurors of how the

controller operated and he insinuated that it operated one way, which

we didn’t have any proof to, but he said that he learned that from the

train yard and that influenced the jury to make a decision – well, six

of the eight.

The Court: He insinuated that?

Juror # 6: That the levers had to be pushed all the way down for the

crane to operate instead of just upright position, which we didn’t

know. Once he presented that, the last juror, to swing the vote,

decided.2

Shortly thereafter, the Court conducted voir dire on each individual juror, with the

exception of Mr. Denomy. The Court questioned each juror as to what he or she heard Mr.

Denomy state regarding his out-of-court, independent research. The Court found that some of

the jurors heard Mr. Denomy’s statements, some only partially heard Mr. Denomy’s statements,

and at least one juror did not hear Mr. Denomy’s statements at all. The Court also learned that at

least one juror cautioned Mr. Denomy that his statements were improper and that he should not

be discussing his independent findings.

During the individual voir dire, the Court asked each juror whether they would disregard

Mr. Denomy’s statements and serve as fair and impartial jurors. Each juror responded that they

could and would do so. Additionally, the Court asked each juror whether they would base their

decision solely on what they had seen and heard in the courtroom. Each juror responded that

they could and would do so.

After individually interviewing each juror, the Court gathered the entire jury as a whole. 

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See Trial Transcript for July 6, 2011. 3

See Trial Transcript for July 8, 2011 at approximately 9:15 A.M.. 4

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The Court then excused Mr. Denomy as a juror in this case, and conducted voir dire on the entire

remaining panel. Again, the Court gave cautionary instructions to the jury. The Court asked for

a second time whether the jury would disregard any statements made by Mr. Denomy about his

out-of-court research. Each juror responded that he or she would, and again committed to

deciding the case based solely on what they had seen and heard in the courtroom. The Court 3

then directed the jury back to the jury room to continue with deliberations.

By the end of the day on Wednesday, July 6, 2011 the Jury had not yet reached a verdict. 

The Court adjourned the trial until Friday, July 8, 2011. When the jury reconvened, the Court

conducted a third voir dire before allowing the jury to continue with deliberations. The Court 4

asked the jury, “As you continue with deliberations, members of the jury, will you again commit

to deciding this case solely on the evidence presented at trial in this courtroom, solely on what

you’ve seen and heard in this courtroom only? And I need an answer, an individual answer. . .” 

Each juror individually responded “yes” to this question. Next, the Court asked, “Will you again

commit to disregarding any statements made to you Wednesday, July 6, during deliberations by

juror one, Mr. Denomy, regarding his observations regarding the remote control at a train stop

last week?” Each juror individually responded “yes” to this question. Finally, the Court asked,

“Is there anyone of you who feels, believes that you cannot disregard, set-aside juror number

one’s statement to you last Wednesday regarding his observations, conversations of a remote at a

train stop last week and decide this case solely, again solely, on what you’ve seen and heard in

this courtroom only? If so, please raise your hand.”

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None of the jurors raised their hand in response to this question and the Court then

directed the jury to return to deliberations.

ANALYSIS

While the jury continued deliberating on Friday, July 8, Plaintiff’s counsel moved for a

mistrial.

With regard to extraneous information interjected to the jury, “[a]n investigation is

improper where it ‘amounts to additional evidence supplementary to that introduced during the

trial.’” Womble v. J.C. Penney, 431 F.2d 985 (6th Cir. 1970). A trial court’s decision on whether

to grant a mistrial because of jury misconduct is reviewed on an abuse of discretion standard

because the “trial judge is in the best position to determine the nature of the alleged jury

misconduct.” United States v. Copeland, 51 F.3d 611, 613 (6th Cir. 1995); See generally United

States v. Turner, 936 F.2d 221, 227 (6th Cir. 1991). Furthermore, the Sixth Circuit has stated

that “[t]he district court is also in the best position to determine appropriate remedies for any

demonstrated misconduct.” Copeland, 51 F.3d at 613.

Furthermore, many circuits have held that when a party moves for a new trial “[i]n a civil

case, the exposure of jurors of materials not admitted into evidence mandates a new trial only

upon a showing that the materials are prejudicial to the unsuccessful party.” Peterson v. General

Motors Corp., 904 F.2d 436, 440 (8th Cir. 1990); Benna v. Reeder Flying Serv., Inc., 578 F.2d

269, 270-71 (9th Cir. 1978).

Plaintiff contends that she has been prejudiced by Mr. Denomy’s interjection of

extraneous information. Plaintiff’s counsel insists that Mr. Denomy’s statements are a “bell than

cannot be un-rung” and that, according to Mr. McClain’s testimony, at least one juror has been

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swayed by Mr. Denomy’s statements. 

In support of her motion, Plaintiff directs the Court to In re Beverly Hills fire Litig., 695

F.2d 207 (6th Cir. 1982). In that case, plaintiffs brought a concerted action claim against several

manufacturers of “old technology” aluminum branch circuit wiring, alleging that the aluminum

wiring caused a fire which destroyed the Beverly Hills Supper Club in Southgate, Kentucky. Id.

at 210. Plaintiffs theory at trial was that the fire began in a portion of a room with an electrical

outlet connected to aluminum branch circuit wiring. Id. Plaintiffs claimed that heat developed at

the connection of the aluminum branch circuit wiring to the electrical socket, causing wooden

studs in the wall to ignite and set fire to the wall. Id. at 211. A major aspect of plaintiffs’ theory

was that the aluminum wiring was more likely than copper wiring to cause a fire because

aluminum wiring degenerates over a period of five to ten years, leading to overheating. Id.

Sometime during the trial, one of the jurors performed an independent experiment and

investigated the condition of the aluminum wiring in his own home. Id. The juror found nothing

wrong with his aluminum wiring, and found that although his aluminum wiring had been

installed at least eleven years earlier, there was no evidence of degeneration. Id. at 211-12. This

information contradicted plaintiffs’ theory at trial. The juror relayed this information to the other

jurors, and after the jury returned a verdict for defendants and the jurors were discharged, the

juror wrote an anonymous letter to the Kentucky Enquirer, describing his independent

investigation. Id. at 212.

The district court denied plaintiffs’ motions for a mistrial and for a new trial because the

“action by the juror appears to be of minor consequences” and did not require the setting aside of

the verdict Id. The Sixth Circuit reversed the district court’s decision and held:

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[T]he juror's letter made clear that the results of his investigation were

a factor in his decisionmaking. While influence on a single juror may

be enough to necessitate reversal and remand, see Loveday, supra,

273 F.2d at 500, the error is particularly grievous because a

unanimous verdict was required and the juror communicated his

findings to other jurors. We conclude that the controlling law permits

no alternative to reversal.

Id. at 214.

The instant case, however, is distinguishable from In re Beverly Hills. First, a

unanimous verdict is not needed in this case. An agreement of six of the eight jurors is needed

for a verdict. Second, unlike the court in In re Beverly Hills, this Court received notice of the

juror’s misconduct prior to receiving a verdict. After receiving the note from Mr. McClain, the

Court took a number of corrective measures, including dismissing Mr. Denomy as a juror, and

giving cautionary instructions to the remaining jurors on three separate occasions.

The Court finds that this case is more similar to Altman v. Bobcat Co., 349 Fed.Appx.

758 (3rd Cir. 2009). In Altman, the Third Circuit Court of Appeals affirmed a district court’s

judgment denying defendant’s motion for a mistrial when the Court discovered juror misconduct

before receiving a verdict and gave the jury cautionary instructions. The plaintiff in Altman sued

Bobcat Company, a manufacturer of construction equipment, for injuries resulting from the

negligent design of the operator compartment of a Bobcat loader. The plaintiff was injured after

he inadvertently activated the Bobcat’s backhoe when he hit the control lever with his knee. The

plaintiff claimed that the control lever in the compartment was negligently designed because it

did not have a safety guard to prevent inadvertent activation.

During deliberations, one of the jurors, Juror 73, revealed to the other jurors that she had

conducted independent research during the trial by locating a Bobcat machine and sitting in the

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operator compartment. She reported to the jurors that the cabin of the machine was “tight” and

the foreperson notified the court of the incident.

 The court dismissed Juror 73 and conducted voir dire of the remaining jurors. After voir

dire, the judge determined that the jurors were not “biased, prejudiced, or unable to render an

impartial verdict based on the statements of juror 73". The remaining jurors continued

deliberations and returned a verdict in favor of the plaintiff. The trial court then denied

defendant’s motion for a mistrial.

On appeal, the Third Circuit Court prefaced its determination by stating:

When jurors obtain extrinsic information during jury deliberations, a

new trial is warranted if the objecting party likely suffered substantial

prejudice as a result of the jury's exposure to the extraneous

information. Nevertheless, a new trial is not required if the jury can

remain impartial and unprejudiced and can confine its deliberations

to the record evidence. Thus, when the trial court learns that [the jury]

may have received extra-record information with a potential for

substantial prejudice, [it] must determine whether the members of the

jury have been prejudiced. We have long expressed a preference for

individual voir dire questioning of each potentially tainted juror.

Id. at 761 (internal quotations and citations omitted).

The Court further stated that the “district court need not pursue any line of questioning on

voir dire” and that “‘any method is sufficient provided it is probative on the issue of

impartiality.’” Id. (quoting Waldorf v. Shuta, 3 F.3d 705, 709 (3d Cir. 1993). The jurors

individually testified that Juror 73's statements would not influence their decision, that they

would remain impartial, and that they would completely disregard Juror 73's statements. As a

result, the court held that the district court did not abuse its discretion in concluding the juror’s

misconduct would not prejudice the proceedings.

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Here, the Court similarly concludes, after very careful consideration, that the jury will

disregard any extraneous information presented to them, will remain impartial, and will base its

verdict solely on the evidence that has been presented them in the courtroom. Accordingly, the

Court also concludes that Plaintiff has not met her burden of showing that she will be prejudiced

by the jury’s exposure to the extraneous information.

CONCLUSION

For the reasons set forth above, the Court DENIES Plaintiff’s motion for a mistrial.

IT IS SO ORDERED.

S/Sean F. Cox 

SEAN F. COX

UNITED STATES DISTRICT JUDGE

Dated: July 8, 2011

I hereby certify that a copy of the foregoing document was served upon counsel of record on July

8, 2011, by electronic and/or ordinary mail.

S/Jennifer Hernandez 

Case Manager

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