Eyler, Deborah S., Nazarian, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.
There is a venerable body of law, of which Wernsing v. General Motors Corp., 298 Md. 406, 470 A.2d 802 (1984), is the avatar, seeking to preserve the advantages of finality and repose in jury verdicts once rendered. There is a counter body of law, of which Jenkins v. State, 375 Md. 284, 825 A.2d 1008 (2003), is the more recent avatar, dedicated to rooting out jury verdicts that are tainted. There is unquestioned merit in both philosophies. At times, however, they meet in tectonic collision.
There is an understandable tendency in those moving for new trials on the basis of tainted verdicts to wrap themselves in the mantle of Jenkins (and several criminal cases in its slip stream) and to pay faint heed to the long procession of opinions in the Wernsing v. General Motors tradition. There is a counter tendency, as the State opposes the retrial motions, to exalt the pedigree of Wernsing and to give scant, if not disdainful, notice to Jenkins. Opposing advocates sometimes challenge an appellate court to flip a coin between conflicting and seemingly irreconcilable approaches. There has to be a better way.
A Plague of Bedbugs
The appellant, Debra Cooch, a public school custodian and a grandmother, was a longtime resident of the River Front Apartments in Savage, Maryland. She rented her apartment, in a 12-unit apartment building, from one of the appellees, S&D River Island, LLC. The other appellee, Rolling Park Management, LLC, managed the apartment complex. Between March and July of 2010, bedbugs that had initially appeared on the third floor of the building found their way into the appellant's apartment.
The appellant promptly reported the infestation to the appellees. On three occasions over the next four weeks, a pest control company treated the appellant's apartment with pesticides. The human counterattack was to no avail. The appellant stopped sleeping in her bed and retreated to a couch. The bedbugs followed. The appellant made numerous complaints to the Howard County Code Enforcement Office. Ultimately, under a barrage of complaints the appellees terminated the appellant's lease. Concerned that her personal belongings were actually or potentially infested but unable to secure a treatment that would give her a 100% guarantee that her belongings would be free of bedbugs, the appellant left her furniture in the apartment when she moved out. She discarded many other belongings before moving in with her daughter. Her daughter incidentally forbade the appellant to bring any of her furnishings into the daughter's home.
On November 12, 2010, the appellant filed suit in the Circuit Court for Howard County against the appellees, claiming that she had suffered both personal injury and property damage as a result of the appellees' negligence in failing to rid her apartment of the bedbugs. A three-day trial followed before Judge Richard S. Bernhardt and a jury on August 20-22, 2012. At the trial, the core of the controversy was over the property damage. Judge Bernhardt instructed the jury, inter alia, that the plaintiff has a duty to make reasonable efforts to reduce the damages. On August 22, the jury returned its verdict. The jury found 1) that the appellees owed a duty of reasonable care to the appellant; 2) that the appellees breached that duty of care; but 3) that there was no causative connection between that breach and the injury suffered by the appellant. Having found no liability, the jury did not consider the question of damages. With respect to the third question, that of "causation, " the Verdict Sheet in its entirety showed:
Was there a direct and substantial connection between the actions or omissions of S&D River Island, LLC and Roland Park Management, LLC, Inc. and the injuries to Debra Cooch?
Yes____ No ___x___
The Motion For A New Trial
The trial was adjourned and the jury dismissed. Daniel W. Whitney, Esq., attorney for the appellant, was, shortly after the trial adjourned, standing near the stairs in the parking lot in front of the court house entrance. He noticed a group of jurors walking in his direction. He asked the group if they were willing to talk to him, reminding them that they were under no obligation to do so. Most continued walking to their cars, but one, known to us only as A.B., was willing to discuss the case.
It is through the affidavit of Daniel Whitney in support of the new trial motion that we know what A.B. said. It is skimpy, indeed. When Whitney asked, "What can you tell me?, " A.B. replied that the jury had found both a duty and a breach thereof, but that "Debra Cooch shouldn't have discarded her property." A.B. further volunteered that he "did some online research" and "found out that there are companies that provide fumigation services." A.B. concluded that "it wasn't necessary to throw her stuff away." With respect to the appellant's claim for bodily injury, A.B. said that he did not believe her injuries were "life threatening." Whitney thanked A.B. for speaking to him and then walked to his own car. He had no contact with A.B. after August 22, 2012. That brief exchange is the sum total of the appellant's case that the jury verdict, finding no causation and awarding no damages, was the result of the impropriety on the part of juror A.B. in conducting online research.
On August 30, 2012, the appellant filed a Motion for Partial New Trial "as to damages only." Two paragraphs of the motion bore on the allegedly improper conduct of juror A.B.
1. At least one juror's decision not to award any property damages was based on Internet research he performed during trial concerning mitigation of a bed bug infestation through fumigation. This egregious misconduct prejudiced Plaintiff. Such information was not presented in Court as a mitigation option available to the Plaintiff. Elimination of bed bugs by fumigation would have been inadmissible at trial without foundational testimony that such a process was reasonably available in Howard County in 2010, approved by a County Code Enforcement Officer, allowed by the landlord and economically feasible.
3. Plaintiff's motion for a partial new trial must be granted because at least one juror improperly obtained information from the Internet, which improperly influenced the jury, and therefore unfairly prejudiced Plaintiff.
The appellant filed a Memorandum in Support of Plaintiff's Motion for Partial New Trial. On September 15, 2012, the appellees filed their Defendant's Opposition to Plaintiff's Motion for Partial New Trial. On October 15, 2012, Judge Bernhardt issued his Order denying the partial new trial motion. This appeal followed.
An Insignificant Nuance
There is a procedural nuance in this particular case that makes no difference to the ultimate outcome, but is unusual and may, therefore, be worthy of note. The information being proffered to establish a juror's impropriety was, directly at least, from the affidavit of a non-juror, the attorney Daniel Whitney. Whitney, however, had no direct knowledge of the alleged impropriety. He was simply the conduit for knowledge from the juror A.B. A.B. was the source of the allegedly verdict-impeaching evidence.
That the actual source of the allegedly impeaching evidence was a hearsay declarant rather than an actual or proffered witness is, however, immaterial. The source of the evidence, direct or indirect, was a juror. Our analysis will proceed, therefore, on the basis of a juror's offering evidence to impeach the jury's verdict. See Dorsey v. State, 185 Md.App. 82, 110, 968 A.2d 654 (2009) ("Asking the jurors directly about their deliberations, or asking a third-party to provide hearsay testimony about the jury deliberations, would have constituted an inquiry into the validity of the verdict.").
A Doctrine of Creditable Vintage
The body of law controlling this case is, if not ancient, at least unimpeachably venerable. It did not begin with the Court of Appeals decision in Wernsing v. General Motors. Judge Rodowsky simply picked up the torch from Lord Mansfield. It was William Murray, first Earl of Mansfield and Lord Chief Justice of the King's Bench, who decided the case of Vaise v. Delaval, 1 T.R. 11, 99 Eng. Rep. 944, in 1785. There was an affidavit there, on a motion to set aside a verdict, from two jurors "who swore that the jury, being divided in their opinion, tossed up (presumably flipping a half crown or at least a farthing), and that the plaintiff's friends won." Lord Mansfield declined to receive the affidavit, pointing out that any juror who even offered such information would be guilty of "a very high misdemeanor" and further observing that "in every such case the Court must derive their knowledge from some other source: such as from some person having seen the transaction through a window, or by some such other means." It is now a time-honored principle that is with justification still called Lord Mansfield's Rule.
In McDonald v. Pless, 238 U.S. 264, 268, 35 S.Ct. 783, 59 L.Ed. 1300 (1915), the United States Supreme Court described the origin and impact of Lord Mansfield's Rule.
Prior to 1785 a juror's testimony in such cases was sometimes received, though always with great caution. In that year Lord Mansfield, in Vaise v. Delaval, 1 T.R. 11, refused to receive the affidavit of jurors to prove that their verdict had been made by lot. That ruling soon came to be almost universally followed in England and in this country.
The first appellate decision in Maryland to recognize Lord Mansfield's Rule was Browne v. Browne, 22 Md. 103 (1864). After a verdict had been rendered, four separate jurors submitted affidavits stating that one of the jurors had been suffering during the course of the trial from a painful disorder of the bowels. That juror swore that he voted for a verdict with which he disagreed only "in order to obtain his release from the confinement of the jury room." Three other jurors swore that they voted for the verdict with which they disagreed "for the purpose of relieving" their ailing colleague. The Court of Appeals was adamant that such juror impeachment of their verdict should not be allowed.
To allow a verdict of a jury solemnly rendered, to be afterwards impeached upon such testimony, would, we think, be setting a dangerous precedent, tending in most cases to the defeat of justice. Although in some of the States a different practice has been allowed, we think the law in Maryland is well settled, that "the testimony of jurors cannot be heard to impeach their verdict, whether the conduct objected to in the jury be misbehaviour or mistake."
22 Md. at 113 (emphasis supplied). The Court further pointed out that the exclusion of such testimony "is supported, not only by the authority of adjudged cases in England and in this country, but by sound reason and public policy." 22 Md. at 114. The Court of Appeals concluded emphatically:
To permit [the verdict] now to be impeached, by an inquiry into the motives of jurors for assenting to it, would be clearly against public policy, tending to overthrow the safeguards of trial by jury, and in most cases defeat justice by exposing every verdict to impeachment.
Id. (emphasis supplied).
The next reported Maryland decision to deal with the subject was Brinsfield v. Howeth, 110 Md. 520, 73 A. 289, in 1909. A juror in that case submitted an affidavit charging that he had only voted for a verdict with which he disagreed because other members of the jury had threatened him, cursed at him, and otherwise pressured and intimidated him. The Court of Appeals affirmed the decision of the trial judge not to receive the evidence at a hearing on a motion for a new trial. "The rule, which obtains in nearly all the states, is that a juror will not be permitted to impeach his verdict. It prevails both in England and in the federal courts." 110 Md. at 530. Quoting with approval from 14 Ency. Pleading & Practice 906, the Court of Appeals explained the policy behind the rule.
Such evidence is forbidden by public policy, since it would disclose the secrets of the jury room, and afford an opportunity for fraud and perjury. It would open such a door for tampering with weak and indiscreet men that it would render all verdicts insecure, and therefore the law has wisely guarded against all such testimony and has considered it unworthy of notice. It would be a most pernicious practice, and in its consequences dangerous to this much-valued mode of trial, to permit a verdict, openly and solemnly declared in the court, to be subverted by going behind it and inquiring into the secrets of the jury room.
110 Md. at 530-31 (emphasis supplied).
The hard core of Lord Mansfield's Rule has consistently been that a juror will not be permitted to impeach his own verdict. Over the decades, Maryland routinely applied that core principle. In Kelly v. Huber Baking Co., 145 Md. 321, 125 A. 782 (1924), the charge was made by a juror that he had been improperly approached by a friend of the defendant. In rejecting the evidence, the Court of Appeals held:
In that affidavit Todd attempted to impeach his own verdict. For that purpose it was clearly inadmissible, and while the facts which it embodies, if true, would be sufficient to warrant appropriate proceedings to punish the persons who attempted to discredit the administration of justice by improperly influencing the verdict of the jury, under no circumstances could the affidavit be considered for the purpose for which it was offered at the hearing of the motion for a new trial.
145 Md. at 328-29 (emphasis supplied).
In Oxtoby v. McGowan, 294 Md. 83, 101, 447 A.2d 860 (1982), the charge was that a medical book had been improperly brought into the jury room and had been examined by the jurors. In rejecting the evidence, the Court of Appeals noted:
Regardless of the rule in other jurisdictions, in Maryland it is well settled that a juror cannot be heard to impeach his verdict, whether the jury ...