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Online Research By Juror Does Not Warrant New Civil Trial

Cooch v. S&D River Island LLC, et al.
No. 1800 (Maryland Court of Appeals, February 27, 2014)
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

The Plaintiff in this case filed a personal injury and property damage suit against her landlord Defendant relating to an alleged bedbug infestation caused by the negligence of the Defendant landlord and property manager. The Plaintiff claimed she was forced to leave her apartment due to the bedbugs. Concerned that her personal belongings were actually or potentially infested, but unable to secure a treatment that would give her a guarantee that her belongings would be free of bedbugs, the Plaintiff left her furniture in the apartment when she moved out. She discarded many other belongings before moving in with her daughter. The case went to trial and the court instructed the jury, inter alia, that the Plaintiff had a duty to make reasonable efforts to mitigate her damages. The jury found: 1) that the Defendants owed a duty of reasonable care to the Plaintiff; 2) that the Defendants breached that duty of care; but 3) that there was no causative connection between that breach and the injury suffered by the Plaintiff. Having found no liability, the jury did not consider the question of damages.

The trial was adjourned and the jury was released. The Plaintiff’s attorney interviewed one of the jurors, A.B., thereafter. A.B. reportedly told the Plaintiff’s attorney that the jury had found both a duty and a breach thereof, but that Plaintiff “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." Plaintiff filed a Motion for New Trial on the basis of the allegedly improper conduct of juror A.B.’s online research during trial. An affidavit by Plaintiff’s counsel as to the conversation with juror A.B. supported the Motion. Plaintiff argued that no fumigation mitigation evidence was presented at trial and that such evidence would have been inadmissible at trial without foundational testimony that such a process was reasonably available, approved by a County Code Enforcement Officer, allowed by the landlord, and economically feasible. The Court denied the post-trial motion, and Plaintiff appealed.

The Court of Special Appeals affirmed the trial court. One key problem with the affidavit supporting the Motion for New Trial was that it did not specify at what time the internet research by A.B. occurred. Assuming the internet research occurred during trial, did the research occur while the juror was at home, or on a smart phone during the deliberations? If during deliberations, then the information itself may have been inadmissible juror impeachment evidence under Lord Mansfield’s Rule and MD. RULE 5-606(b). The trial court also found that there was no basis to believe that the online research information was shared with other jurors, discussed during deliberations, or impacted the deliberations or verdict—the Plaintiff had to show that it probably did happen, not that it might possibly have happened. In assessing prejudice, a trial court must look to the probability of prejudice from the face of the extraneous matter in relation to the circumstances of the particular case. The record included mention of fumigation as a possible anti-bedbug measure and there was also evidence in the record of the Plaintiff’s “almost cavalier” abandonment of all her personal property, including items, such as metallic kitchen utensils, that could not have been infested with bedbugs. Even if, arguendo, the online research by the juror was a proper fact for consideration, the trial court found that the Plaintiff had not suffered sufficient prejudice to warrant a new trial. The appellate court did not find the trial court’s findings of fact to be clearly erroneous or an abuse of discretion, and therefore, the appellate court affirmed.