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Adams v. Hermann

United States District Court, S.D. Texas, Houston Division

August 29, 2019

DELISE ADAMS, et al, Plaintiffs,
v.
MEMORIAL HERMANN, et al, Defendants.

          ORDER

          ANDREW S. HANEN UNITED STATES DISTRICT JUDGE

         The Court has before it Plaintiffs' Motion for New Trial [Doc. No. 181] and Defendants' Response in Opposition [Doc. No. 183]. For the reasons set forth below, the motion is DENIED. Plaintiffs offer several grounds for their Motion for New Trial, and the Court will address them in turn.

         I. Voir Dire

         Plaintiffs allege that the Court did not permit them to strike certain jurors for cause who, according to Plaintiffs, said that they would require more than a preponderance of the evidence to find for Plaintiffs. Plaintiffs also allege that they were not permitted to ask those jurors follow-up questions. Defendants respond that the prospective jurors never swore that they would not follow the law. Defendants further assert that both the Court and Defendants asked follow-up questions sufficient to ensure that these prospective jurors could and would follow the Court's instructions. After considering the parties' arguments, the Court rejects Plaintiffs' alleged point of error.

         A brief narration of part of the voir dire in this case is required. During voir dire, Plaintiffs' counsel began asking whether any prospective jurors would need 60% proof in order to find for an employment-discrimination plaintiff. The Court interrupted counsel's questioning and instructed her not to try to commit the jury, especially to a concept that would be contrary to established law. Plaintiffs' counsel replied that she was not committing the jury. Despite the Court's ruling, Plaintiffs' counsel nonetheless continued with her question and continued recording which jurors raised their hands. Defense counsel objected that Plaintiffs' counsel was ignoring the Court's instruction, and the Court instructed Plaintiffs' counsel to move to a different topic of questioning. Plaintiffs' counsel then stated, "I understand, Your Honor. I am recording their answer for my peremptory strikes," and continued to ignore the Court's order by telling the prospective jurors, "Please raise your hand." When the proceedings shifted to Defense counsel's voir dire, Defense counsel asked if anyone would be unable to follow the Court's instructions to use a preponderance of the evidence burden of proof. One juror, Juror 2, raised her hand.[1]

         Later, after the potential jurors were excused into the hallway, Plaintiffs' counsel, going back on her word, moved to strike for cause en masse 13 recorded jurors who had initially raised their hands. The Court responded by asking Plaintiffs' counsel about her misrepresentation: she had told the Court that she was "recording their answer for my peremptory strikes" (after the Court repeatedly instructed her to move to a different line of questioning), yet she then moved to strike that group for cause. The Court stated, "I would have followed up with the jurors on that, had you told me the truth," and reiterated, "I would have gone back with those jurors and talked to them, but for your representation." The Court denied the group-based strikes for cause in question because Plaintiffs' counsel had clearly misled the Court.

         Despite the misrepresentations by counsel, the Court then took steps to ensure that any prospective juror selected for the jury could fairly apply the law and burden of proof as instructed by the Court. The Court called the prospective jurors back into the courtroom and explained that it would instruct them on the law at the conclusion of the case. The Court stated that it would instruct the jury to make a decision based on a preponderance of the evidence and stated what that standard means. The Court referenced some of the percentages mentioned during questioning by Plaintiffs' counsel and explained, "in life, wouldn't we all like to make decisions based on 100 percent information? I mean, of course, we would." The Court then asked: "is there anyone, if I instruct you like I just described, more likely than not, that cannot sit and listen to the evidence, and basically let the chips fall where they may? Is there anyone here who cannot follow my instructions on what the preponderance of the evidence means?" No. prospective jurors raised their hands.

         Plaintiffs now contend that "when jurors in this case swore to their inability to follow the law with respect to the 'preponderance of the evidence' standard, they qualified themselves for a 'for cause' strike."[2] Defendants respond that the jurors swore to no such thing. According to Defendants, "in connection with this line of inquiry, the jurors were provided with no context or clear guidance regarding what the law requires under the 'preponderance of the evidence' burden of proof. Rather, the question posed by Plaintiffs' counsel essentially asked the jury a general and overly broad question about what their preference would be for the burden of proof"[3]

         As an initial matter, the Court notes that 6 of these 13 potential jurors were excluded for cause for other reasons. Defendants unsuccessfully moved to strike a seventh (Juror 5) from the list, and Plaintiffs actually opposed that strike for cause, in part because "you asked the jurors if they would follow your instructions and they have said that they would." Clearly at trial Plaintiffs took the position that the Court's instruction and subsequent questioning cured the issue. Defendants later used a peremptory strike on that juror. Out of the six other prospective jurors, Plaintiffs exercised their peremptory strikes on four. The upshot is that, due to the Court's rulings on the strikes for cause, Plaintiffs could have excluded the entire list of 13 prospective jurors about which they now complain had they exercised their six peremptory strikes on the remaining jurors, given that six others were excluded for cause and Plaintiffs opposed Defendants' attempt to exclude a seventh juror for cause (a juror that Defendants later struck). In the end, only 1 juror out of the 13 that Plaintiffs moved to strike based on his or her burden-of-proof answer-Juror 25- sat on the jury. At the time that juror was seated, no objection was made, nor were there any requests for additional strikes. In their motion, Plaintiffs do not identify any particular juror as unfit to be seated based on his or her individual statements.

         The Court agrees with Defendants' contention that the prospective jurors did not "answer" that they would not follow the preponderance of the evidence standard and would hold Plaintiffs to a higher standard of proof. As Defendants state, "in connection with this line of inquiry, the jurors were provided with no context or clear guidance regarding what the law requires under the 'preponderance of the evidence' burden of proof."[4] In fact, when Defense counsel asked the potential jurors whether they would follow the Court's instructions to use a preponderance of the evidence burden of proof, one juror expressed his confusion: "It seems like you're asking a different question about the instructions that the Court will give than the plaintiffs' attorney, and so I am a bit unclear as to what instructions would we be given relative to burden of proof."

         When Defense counsel asked whether anyone would be unable to apply the Court's instructions on the burden of proof, only Juror 2 raised her hand (a juror that the Court excluded for cause).[5] When the Court subsequently clarified that the law required the jury to use a preponderance of the evidence standard, no jurors said that they could not or would not follow the law. The record, then, belies Plaintiffs' claim that 13 jurors "swore" that they could not follow a preponderance standard. With the additional context provided by the Court's clarification, no juror continued to state that he or she could not follow the legally required preponderance of the evidence standard. Indeed, Plaintiffs' position now is the exact opposite of the one they took at trial when they opposed Defendants' motion to strike Juror 5 for cause.

         Plaintiffs also argue that they should have been permitted to ask follow-up questions. The Court, in fact, conducted follow-up questioning regarding the burden of proof. The Court handled the follow-up questioning itself, in no small part because Plaintiffs' counsel had demonstrated an unwillingness to follow the Court's instructions. After the Court clarified how the jury would be instructed and that the jury would be required to follow the Court's instructions on the burden of proof, no jurors indicated that they would be unable or unwilling to follow the law as the Court explained it. More specifically, Juror 25 did not indicate that he would be unable or unwilling to follow the law as the Court explained it. The Court is satisfied that its clarification, follow-up questions, and eventual rulings on strikes for cause ensured that no juror who was in fact unable or unwilling to follow the law was seated on the jury.

         II. Testimony of Jacqueline Patterson

         A long running dispute throughout this case pertained to the testimony of Jacqueline Patterson, a former Memorial Hermann human resources employee. Plaintiffs' counsel communicated with Patterson about conversations Patterson had, while still a Memorial Hermann employee, with Memorial Hermann attorneys regarding Memorial Hermann's defense against Plaintiffs' allegations. Plaintiffs then offered Patterson's testimony in their opposition to Defendants' motion for summary judgment. Alleging that this conduct by Plaintiffs' counsel was highly inappropriate and unethical, Defendants moved to disqualify Plaintiffs' counsel. Plaintiffs then moved to disqualify Defense counsel. In its order on summary judgment, the ...


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