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Jurors in lengthy trials often tote books to court every day to beat the boredom during breaks and down time, but revelations about one juror’s choice of reading material in a 1997 trial has prompted a team of lawyers for Philadelphia-based chemical manufacturer Rohm & Haas to demand a new trial. According to the motion, juror Sharon Dennison was reading A Civil Action by Jonathan Harr and commented to the judge during the trial that the litigation in the book was “just like this case” — referring to Rohm & Haas Co. v. Continental Casualty Co. In the case Dennison was serving on, Rohm & Haas sued two insurance companies to recover the costs of cleaning up two Superfund sites. Dennison also told the judge that one of the witnesses in the Rohm & Haas trial was discussed in the book, the motion states. The judge, Paul L. Jaffe of the Philadelphia Court of Common Pleas, who is now retired, didn’t tell the lawyers at the time, and the jury went on to render a verdict for the insurers. Jaffe later set the verdict aside and held the insurers responsible for the costs of cleaning up one of the two sites. After a nonjury damages trial, Jaffe awarded Rohm & Haas $21 million in December 1997. But in May 1999, the Pennsylvania Superior Court reinstated the jury’s defense verdict and held that Jaffe was wrong to set aside the jury’s finding that Rohm & Haas had failed to disclose contamination at one of the sites when it purchased the policies. By that time, Jaffe had retired from the bench. But as a courtesy, one of Rohm & Haas’ lawyers, Robert N. Feltoon of Philadelphia-based Conrad O’Brien Gellman & Rohn, called the judge to inform him that his ruling and verdict had been overturned. When Jaffe returned the call, he told Feltoon that something had occurred during the trial and that he wanted to “get it off [his] chest.” Jaffe, who is now senior counsel at Philadelphia-based Schnader Harrison Segal & Lewis, was out of town Thursday and could not be reached for comment. Feltoon, in an affidavit filed last month, said Jaffe informed him then of the juror’s remarks about A Civil Action, a best-selling account of a toxic tort case against W.R. Grace Corp. and Beatrice Foods brought by residents who lived near the defendants’ plants and claimed that contamination of the town’s groundwater had caused a rash of leukemia cases among their children. Rohm & Haas didn’t move for a new trial immediately because the appeals were still being litigated. The Superior Court later refused to take the case en banc, and, in October 2001, the Pennsylvania Supreme Court voted 4-3 to uphold the Superior Court’s decision in favor of the insurers. In November, the justices denied a Rohm & Haas petition for reargument. Now Rohm & Haas is back before the Philadelphia Common Pleas Court with a motion that says it deserves a new trial because of the newly discovered evidence that the jury was exposed to “extraneous prejudicial information.” Feltoon’s partners, William J. O’Brien and Nancy J. Gellman, claim in the motion that A Civil Action depicts large corporations and their environmental practices in a “highly unfavorable” light. Included with the brief is an affidavit from an investigator who spoke with juror Dennison last week and said she confirmed that she told the judge that she was reading the book during the trial. Dennison, a librarian, told the investigator that she was “shocked” during the trial when George F. Pinder, a Princeton University geology professor, was called as an expert witness for Rohm & Haas because he also testified in the trial depicted in A Civil Action. In its motion for a new trial, Rohm & Haas included excerpts from the book that described Pinder’s testimony in that trial. O’Brien and Gellman argue that the book “paints an extremely unflattering picture of Dr. Pinder’s performance and credibility as a witness.” At one point in the book, the trial judge in the W.R. Grace case commented at sidebar that Pinder “has either got a very loose grasp of the language, or he will say anything that comes into his head.” The book also described Pinder as having his credibility “tarnished.” It said that he gave “convoluted” responses and offered what his own lawyer called a “cockamamie theory.” O’Brien and Gellman claim in the motion that Dennison’s exposure to the book during the trial “fundamentally undermined her ability to fulfill her duties as an impartial juror.” Dennison’s exposure was “especially significant,” they argue, because other jurors reported after the trial that Dennison was outspoken during deliberations and said she believed that Rohm & Haas did not deserve any insurance recovery. Originally, Rohm & Haas had sued nearly 40 insurers and settled with all but two prior to the trial, reaping more than $130 million in settlements. In his damages verdict, Jaffe ruled that Lloyd’s of London and the Home Insurance Co., the two insurers that didn’t settle, should pay Rohm & Haas almost $16 million for the company’s efforts to clean up the industrial site known as the Whitmoyer site, in Lebanon County, Pa. The opinion also ordered the insurers to pay defense costs of nearly $2 million for the company’s protracted litigation with a phalanx of insurance companies and other potentially responsible parties, including the SmithKline Beecham Corp., and more than $3.2 million in prejudgment interest. Jaffe’s order awarded a declaratory judgment to Rohm & Haas for future Superfund cleanup costs the company will incur at the site, which is a former veterinary products manufacturing facility where the disposal of hazardous substances resulted in arsenic-contaminated groundwater. Lloyd’s was hardest hit by Jaffe’s order, being held responsible for nearly $19 million and the majority of the future costs of cleanup. O’Brien and Gellman argue in the motion that the appellate court rulings that overturned the verdict were premised on the deference that was owed to the jury’s verdict. But since the jury’s integrity was compromised, they claim, the only cure now is to award Rohm & Haas a new trial. “Because the evidence of juror exposure to extraneous prejudicial information calls into question the jury’s impartiality and integrity, to permit the jury’s verdict to stand would be patently unjust,” they argue. Jaffe erred by not informing the lawyers of Dennison’s comments at the time, the motion states, making it impossible to cure the problem during the trial. Under Pennsylvania law, Rohm & Haas does not need to show “actual” prejudice, the lawyers argue, but only a “reasonable likelihood” that the extraneous influence prejudiced the verdict. “This is not a case where a juror may merely have glanced at a newspaper or magazine article or been briefly exposed to something on television,” O’Brien and Gellman wrote. “Rather, during trial, a vocal and outspoken juror chose to read a long, detailed and highly prejudicial book about a case — also involving groundwater contamination allegedly caused by large corporations — which she described as ‘just like this case.’ “ The juror, they argue, has also admitted that after she made the connection between the witness who testified both in the book and in the Rohm & Haas trial, she consulted the book to confirm it. “Ms. Dennison’s actions in consulting the book as a reference or research tool, both in confirming Dr. Pinder’s identity and in comparing the case to the one described in the book, are perfectly understandable for a librarian such as herself. Her actions, however, are absolutely improper for a juror,” they wrote. Lloyd’s of London’s lawyers — Jerome J. Shestack and William G. Frey of Philadelphia-based Wolf, Block, Schorr and Solis-Cohen — were out of town and could not be reached for comment. In addition, Elit R. Felix of Philadelphia’s Margolis Edelstein, who also represented Lloyd’s, could not be reached for comment.

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