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UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND
Chambers of BENSON EVERETT LEGG United States District Judge 101 West Lombard Street Baltimore, Maryland 21201 410-962-0723

February 3, 2011

MEMORANDUM TO COUNSEL RE:

Jennifer R. Scott v. Merck & Company, Inc., Civ. No. L-09-3271

Dear Counsel: Pending is a motion filed by Defendant Merck & Company, Inc. ("Merck"). Merck has asked the Court to question Juror #4 regarding her jury service. Docket No. 81. The Motion is fully briefed, and no hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2010). For the reasons stated below, the Motion is hereby DENIED. I. Background

On January 14, 2011, the jury returned a verdict in favor of Plaintiff Jennifer R. Scott. The jury found that Merck breached its contract with Scott by terminating her in violation of Merck's non-retaliation policy. The jury also awarded compensatory damages to Scott. Approximately four days after the jury returned its verdict, counsel for Merck, Raymond C. Baldwin, advised the Court that Juror #4 had informed him that she felt that she had been "coerced" into returning a verdict in Scott's favor. Upon learning this fact, the Court scheduled a teleconference with counsel for Scott and Merck to discuss the matter. Mr. Baldwin related the following facts during the teleconference. He explained that Juror #4 had called Merck's corporate representative, Bill Liberato, and left a voicemail message requesting that he or one of Merck's attorneys return the call. Liberato shared this information with Mr. Baldwin, who then called Juror #4, identified himself, and stated that he was returning the message left for Liberato.1 According to Mr. Baldwin, Juror #4 told him the jury had rushed its deliberations and pressured her to return a verdict for Scott.
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By returning Juror #4's call, Mr. Baldwin violated Local Rule 107.16, which provides, "Unless permitted by the presiding judge, no attorney or party shall directly or through an agent interview or question any juror, alternate juror or prospective juror with respect to that juror's jury service." Local Rule 107.16 (D. Md. 2010). The proper procedure would have been for Mr. Baldwin to contact the Court and seek permission to contact the juror. Having spoken with counsel during the teleconference, the Court concludes that Mr. Baldwin acted in good faith. Nevertheless, the Court wishes to remind counsel of their obligation to adhere to the Local Rules and not to contact jurors to discuss their service without the permission of the presiding judge.
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The Court then ordered briefing to determine how it should proceed in light of Juror #4's comments. The Court further ordered that Juror #4 not be contacted by either side. On January 25, 2011, Merck filed the instant Motion, in which it requests that the Court interview Juror #4 regarding her jury service. Scott opposes the motion, contending that interviewing Juror #4 would be improper because she has only raised concerns about the jury's internal deliberations. The Court agrees with Scott. II. Discussion

As related by Merck's counsel, Juror #4 complained only of intra-jury pressure. The facts underlying her complaints are as follows. Closing arguments concluded at approximately 2:30 p.m. on Friday, January 14, 2011. The jury returned its verdict at 4:57 p.m. that same day. January 14, 2011 preceded a holiday weekend and was also the day before a Baltimore Ravens' playoff game.2 Juror #4 stated that the jury wished to finish deliberations as quickly as possible, that the foreperson refused to request certain exhibits, that Juror #4 believed that Scott had been terminated for her performance, and that the jury ignored Juror #4's vote. Merck has not made a showing that counsels the Court to make inquiry of Juror #4 or her colleagues. It is well settled that a verdict may not be impeached by a juror's testimony regarding "any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind." Fed. R. Evid. 606(b). A verdict may be impeached, however, by a juror's testimony as to "extraneous prejudicial information," "outside influence," or "a mistake in entering the verdict onto the verdict form." Id. As mentioned above, Juror #4's comments, as relayed to the Court by Merck's counsel, do not raise any allegations of external information, outside influence, or mistake. Were the Court to question Juror #4 regarding her complaints, Rule 606(b) is clear that her testimony would be incompetent to impeach the jury's verdict. The case-law establishes that courts adhere to the text of this rule with unwavering rigidity. For example, in United States v. Tanner, 483 U.S. 107 (1987), two jurors stated that other jurors had used marijuana and alcohol during the course of the trial, and that they believed this substance abuse impaired their and other jurors' ability to render a verdict. The Supreme Court held, however, that substance abuse was not an "outside influence" as contemplated by Rule 606(b). Id. at 122. The Court further recognized that only matters that pertain to the substance of the case and are interjected from outside of court proceedings are proper grounds for impeaching a verdict. Following the reasoning in Tanner, the Fourth Circuit has held that even where a jury's actions are clearly improper, Rule 606(b) bars inquiry into the jury's deliberations if the
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The Court was closed on January 17, 2011 in honor of Dr. Martin Luther King, Jr.'s birthday. January 15, 2011 was the date of the Baltimore Ravens' playoff game against the Pittsburgh Steelers.
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improper acts resulted from the jury's internal deliberations. See Robinson v. Polk, 438 F.3d 350, 365 (4th Cir. 2006) (citing Hyde v. United States, 225 U.S. 347 (1912)); see also United States v. Johnson, Nos. 98-4329, 98-4337, 98-4348, 1999 WL 543233 (4th Cir. July 27, 1999) (declining to consider juror's letter stating that she felt pressured to convict the defendant and that she "wanted a not guilty verdict"). Here, it would be improper to question Juror #4 regarding the jury's deliberations. Merck has raised only concerns of internal jury coercion, and there is no allegation that external forces improperly influenced the jury. Moreover, the jury deliberated for approximately three hours, the jury was polled following delivery of the verdict by the foreperson, and Juror #4 rose and stated that the verdict was her verdict individually. Although the case included many exhibits, they were discussed in great detail during the testimony. Finally, the Court was quite specific in repeatedly instructing the jury to have no contact or discussions of the case with anyone outside the jury at any time until the verdict was rendered. There is no evidence that the jury failed to heed this instruction. Therefore, Merck's Motion is DENIED. Despite the informal nature of this memorandum, it is an Order of this Court, and the Clerk is directed to docket it accordingly.

/s/ Benson Everett Legg United States District Judge

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