United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
November 23, 2016, the jury returned its verdict in this
matter in favor of Plaintiff Willie James Newman
(“Newman”). (Docket #62). On January 11, 2017,
pursuant to the briefing schedule established by the Court,
Defendants Michael Vagnini (“Vagnini”), Jeffrey
Cline, and Paul Martinez (“Martinez”)
(collectively, “Defendants”) filed a motion to
vacate the jury's verdict. (Docket #92). The motion is
now fully briefed, and for the reasons explained below, it
will be granted in part and denied in part.
STANDARD OF REVIEW
Rule of Civil Procedure (“FRCP”) 59 permits a
party to seek a new trial “for any reason for which a
new trial has heretofore been granted in an action at law in
federal court.” Fed.R.Civ.P. 59(a)(1)(A). In clearer
terms, this means that “[a] new trial is appropriate if
the jury's verdict is against the manifest weight of the
evidence or if the trial was in some way unfair to the moving
party.” Venson v. Altamirano, 749 F.3d 641,
656 (7th Cir. 2014). FRCP 60 allows the Court to vacate a
judgment based on, inter alia, a mistake, newly
discovered evidence, fraud by a party, satisfaction of the
judgment, or “any other reason that justifies
relief.” Fed.R.Civ.P. 60(b). Relief under FRCP 60 is an
“extraordinary remedy and is granted only in
exceptional circumstances.” Wickens v. Shell Oil
Co., 620 F.3d 747, 759 (7th Cir. 2010). Under both
rules, the Court's determination is constrained only by
its sound discretion. Venson, 749 F.3d at 651, 656.
offer two primary arguments in favor of vacating the
jury's verdict. First, they claim that a juror's
conduct tainted the jury's verdict, denying them a fair
trial. Second, they contend that even if the verdict stands,
both the compensatory and punitive damages awards are
excessive and must be reduced. The Court addresses these
arguments in turn.
challenge the verdict based on alleged juror misconduct,
namely that a juror, who will be identified as Juror Number
One, conducted internet research during the trial which
influenced the jury's deliberations. On December 8, 2016,
Defendants filed a motion requesting that the Court question
that juror. (Docket #67). The Court referred the motion and
evidentiary hearing to Magistrate Judge William E. Duffin,
who granted the motion to question the juror and issued a
report on his evidentiary findings after holding a sealed
hearing (the “Report”). (Docket #81). The Court
will first address the Report and then moves on to the
substance of the parties' arguments on the misconduct
Magistrate Duffin's Report
filed their motion to question Juror Number One in light of
information found by their attorneys on the juror's
publicly available Facebook postings. Id. at 2.
After receiving the verdict, Defendants' counsel directed
their staff to conduct internet research on the jurors.
Id. This included viewing Juror Number One's
public Facebook postings. Id. On November 26, 2016,
three days after jury's verdict was received, Juror
Number One posted a link to a local television station's
report on the verdict. Id. at 3-4. The next day, a
person commented on that post, stating:
Why don't you become a judge? If you can sit through that
ish [sic] and not lose your ish- you should just be the
judge. You researched the payouts of similar cases. You have
a psychology background and can tell when people are b.s.ing.
You could do a lot of good everyday. What if you made it to
the supreme court?
(Docket #69-1 at 21). Juror Number One replied to the
comment, “Maybe some day!” Id.
the content of the Facebook post, Defendants requested that
Juror Number One be questioned to determine “whether
extraneous prejudicial information was improperly brought to
[the jury's] attention.” (Docket #67 at 1).
Magistrate Duffin issued the Report on December 19, 2016, and
Newman submitted objections thereto on January 3, 2017.
(Docket #90 and #91). The Report is subject to de
novo review. 28 U.S.C. § 636(b)(1).
presents two objections. First, he suggests that Magistrate
Duffin erred in determining that Defendants' Facebook
research was appropriate. The Court agrees with Magistrate
Duffin. General Local Rule 47(c) prohibits parties or their
agents from “approach[ing], interview[ing], or
communicat[ing] with a venire member or juror, before, during
or after trial, except on leave of Court granted upon notice
to opposing counsel and upon good cause shown.” Gen. L.
R. 47(c). There is no evidence that Defendants or their
counsel communicated with any juror in conducting their
research. Further, Defendants accessed only what information
the jurors themselves made available by posting it to the
public portion of their Facebook profile. While the Court
recognizes Newman's concern regarding overly intrusive
post-verdict investigations, that simply did not occur here.
The undeniable fact that the internet makes so much
information so readily available does not render accessing
such information improper.
second objection is to Magistrate Duffin's finding on the
witnesses' credibility. Magistrate Duffin conducted a
sealed evidentiary hearing wherein he questioned Juror Number
One as well as the jury's foreperson. (Docket #81 at
5-6). In light of the strong policy reasons against intruding
on a jury's deliberations, Tanner v. U.S., 483
U.S. 107, 117-28 (1987), Magistrate Duffin limited his
questioning to the issue of “whether any matter not
presented as evidence at trial was nonetheless improperly
presented to the jury, . . . avoid[ing] any questions about
what role any such outside information played in the
jury's deliberations[.]” (Docket #81 at 4).
Magistrate Duffin found as follows:
The court questioned Juror Number One. Juror Number One
authenticated the posts contained in ECF Nos. 69-1 and 69-2
as coming from her Facebook page. She testified that she did
not conduct any outside research during the trial. However,
she testified she is a “researcher by nature”
and, therefore, immediately following the completion of the
trial on November 23, 2016, she researched what victims of
police misconduct, including victims of unlawful strip
searches, received in other cases. It was this research that
the commenter on her post, whom she characterized as her best
friend, was referring to on Facebook. When asked if she
shared with other jurors anything that she learned from any
outside research, she said she did not. She denied having any
knowledge of the actors in this case prior to trial or
conducting any research regarding any of them during the
The court then questioned the jury foreperson. The foreperson
denied that any juror provided the jury information as to
what compensation persons in similar cases received. However,
the foreperson testified that, on the second day of
deliberations, Juror Number One asked if the jury would like
to know what she learned by doing research about awards in
other civil actions. The jury members agreed they would and
Juror Number One provided information as to what she learned
in her research. The foreperson did not have a specific
recollection of what information Juror Number One provided
but did recall that the cases were not related to police
misconduct; they might have been employment discrimination
cases. The foreperson did not know when Juror Number One
undertook such research and did not know Juror Number
One's source, although the foreperson suspected it was
the internet. It was the foreperson's belief that Juror
Number One was not providing information based upon her
The court finds that the testimony of the two witnesses to be
in conflict. Based upon the court's observations of the
witnesses during the hearing, the testimony of the witnesses,
and evidence presented with the defendants' motion, the
court finds that the greater weight of the credible evidence
supports the finding that Juror Number One did do
research on payouts in other civil actions during the trial
and before the jury rendered its verdict. The court finds the
foreperson's testimony more credible to the extent that
it conflicts with that of Juror Number One.
Id. at 5-6.
contends that Magistrate Duffin's finding of conflict
between the two jurors' testimony is erroneous. Juror
Number One testified that she did not do any research during
the trial nor did she share that information with her fellow
jurors. (Docket #91 at 3-8). Defendants counter that this
testimony is contrary to that of the foreperson, as noted by
Magistrate Duffin. (Docket #94 at 4-8). In essence, according
to Defendants, Magistrate Duffin concluded that Juror Number
One's testimony was untruthful. Id. at 6.
objection on this point is overruled to the extent that he
asserts that there was no conflict between the testimony of
the witnesses. The Court has reviewed the transcript of the
sealed hearing and agrees with Magistrate Duffin that the
conflict is apparent. Juror Number One testified that she did
not share any of her research with her fellow jurors, while
the foreperson testified that she in fact volunteered such
information. (Docket #88 at 8-9, 13-14).
there remains the issue of the timing of Juror Number
One's research. This raises several interrelated
questions. Did Juror Number One do any research on research
on “the payouts of similar cases”? Yes, and the
juror confirmed as much, though as both witnesses testified,
the word “similar” meant other civil cases
generally, not strip search cases in particular. Id.
at 6-10, 12-13. Specifically, the foreperson testified that
the cases “may have been an employer/employee sexual
misconduct-type case, and they were not in Wisconsin; it was
like Florida or, you know, someplace else entirely[.]”
Id. at 13. Next, did Juror Number One do research on
Defendants at any time prior to the jury's verdict? No;
Juror Number One testified that she did not and the
foreperson confirmed that such research was never discussed
in the jury's deliberations. Id.
final question, then, is whether Juror Number One conducted
research on “similar cases” during the
trial (hereinafter, this is the “research” the
Court references). Magistrate Duffin says yes, finding that
“the greater weight of the credible evidence supports
the finding that Juror Number One did do research on
payouts in other civil actions during the trial and before
the jury rendered its verdict.” (Docket #81 at 6). This
Court finds that on the record before it, Magistrate
Duffin's conclusion was mistaken. Juror Number One
testified at various points that she did not do any research
during the trial:
THE COURT: Okay. Let me ask you, specifically during the time
period from when the trial started, so beginning on or about
9:00 a.m. on Monday morning --
[JUROR NUMBER ONE]: Uh-huh.
THE COURT: November 21st --
[JUROR NUMBER ONE]: Uh-huh.
THE COURT: -- and you guys reached a verdict, were done by
roughly noon on Wednesday --
[JUROR NUMBER ONE]: Correct.
THE COURT: -- during that time period, so from the beginning
of the trial to when the jury came back with its verdict, did
you do any research, investigation or search relating to what
compensation people received or should receive after being
subjected to illegal strip searches or other cases of police
[JUROR NUMBER ONE]: No.
. . .
THE COURT: Okay. I think you probably -- this is probably
encompassed within what you've already said, but did you
during the trial -- so between the beginning of the trial and
the reaching of a verdict, did you do any research in any way
whether it's internet research or otherwise related to
any person involved in the case?
[JUROR NUMBER ONE]: No.
. . .
THE COURT: So when [the Facebook post commenter] was talking
about the research she did -- that you did, you're
talking -- she's referencing what you told her about the
research that you did after the case was over?
[JUROR NUMBER ONE]: Well, she knows that I research
everything; but also I twice took the LSAT prep course, which
I did not complete; and so she knows that I'm already