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Civil Litigation No. 01-02-00353-CV, 5/8/2003. Click here for the full text of this decision FACTS: Laura Mercado and Penny Litzman brought wrongful-death and survival actions against Warner-Lambert Co., the appellee, for damages arising from the death of Mercado’s mother, Norma Culberson. After a three-week trial, the jury returned a 10-2 verdict, finding Warner-Lambert was not negligent in causing Culberson’s death. The jury also found that the diabetes drug, Rezulin, manufactured by Warner-Lambert, was neither defective in its design nor in the way it was marketed. The trial court rendered judgment on the verdict, and Mercado filed a motion for new trial alleging, among other things, juror misconduct. The appellants, Laura Mercado and Penny Litzman, individually and on behalf of Norma Culberson, deceased, argue that the trial court erred in not granting their motion for new trial, which was based on jury misconduct. HOLDING: Affirmed. In her sole point of error, Mercado argues that the trial court abused its discretion by failing to grant a new trial based upon jury misconduct because the undisputed evidence establishes an exchange of favors between a juror and a shadow juror working for Warner-Lambert and additional prohibited contacts between the jurors and shadow jurors. Mercado contends that the alleged juror misconduct entitled her to a new trial. Warner-Lambert urges the court to find that Mercado waived her complaint of juror misconduct because Mercado’s attorneys observed the conversation between the shadow juror and the juror, but failed to move for mistrial. Warner-Lambert’s waiver argument does not address Mercado’s point of error which focuses onlyon the shadow juror’s solicitation of a cigarette and money from Juror Martinez. Neither of these exchanges was observed by Mercado’s counsel; therefore, she has not waived her right to complain of this alleged jury misconduct. Traditionally, juror misconduct will warrant a new trial if the moving party establishes the misconduct 1. occurred; 2. was material; and 3. probably caused injury. In this case, however, Mercado suggests that, because the shadow juror’s request for a cigarette and a quarter constitutes improper exchanges of favors, Mercado is not required to prove probable injury. Rather, Mercado encourages the court to presume injury. Texas courts recognize that inferences of prejudice and unfairness from an overt act directed at the jury may be so highly prejudicial that the burden of establishing harm is met with nothing more. Tex. Employ. Ins. Assoc. v. McCaslin, 317 S.W.2d 916 (Tex. 1958). In McCaslin, the plaintiff sought out a juror and engaged the juror in a conversation, which concluded with the plaintiff’s request to “be sure and do all you can to help me.” The court recognized that such requests make it “difficult and often impossible for [a] juror to maintain an impartial attitude as between the litigating parties.” The court concluded that plaintiff’s overt act was probable prejudice as a matter of law. In every case cited by Mercado, the juror was aware of the solicitor’s relationship to the party. The presumption of harm established in McCaslin is rebuttable. Here, the trial court conducted an evidentiary hearing during which the trial court was able to evaluate the severity of the alleged jury misconduct and to determine what, if any, harm resulted therefrom. During the hearing, juror Martinez testified that the misconduct was limited to the shadow juror’s request for a cigarette and a quarter. Martinez testified that he did not know the shadow juror was associated with either party, but thought he might be associated with Mercado because he was sitting on her side of the courtroom. Also, Martinez testified that no one had attempted to discuss the case with him outside the jury’s deliberations. These facts do not rise to the high standard set forth in McCaslin; the court will not presume injury. The intent of the special favors rule is to presume harm when favors have been exchanged. For example, even if they did not discuss the case during dinner, it would be presumed harmful for a party to take a juror to dinner. Over 100 years ago, the Texas Supreme Court stated that “jurors and parties should keep strictly aloof from each other pending the trial, and, if they do not, but meet under circumstances from which injury to the other party may be reasonably apprehended, a verdict for the party engaging in the intercourse with the juror cannot be sustained.” This is obviously an effort to avoid situations where the juror testifies he was not influenced, but it is impossible to prove if he was subconsciously influenced. These are simply not the facts in this case. The contact by the shadow juror did not rise to the level of impropriety found in the cases cited by Mercado. Furthermore, neither the shadow juror nor the juror knew with whom the shadow juror was affiliated. As such, there could be no conscious or subconscious influence. The trial court did not abuse its discretion when it denied Mercado’s motion for new trial. OPINION: Hanks, J.; Radack, C.J., Nuchia and Hanks, JJ.

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