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A Philadelphia Common Pleas judge has refused to grant a new trial to Rohm and Haas in the company’s suit against two insurance companies after the judge decided that the lawyers waited too long before telling the court of “newly discovered” evidence that a juror was influenced by reading the book “A Civil Action” during the trial. Judge John W. Herron found that Philadelphia-based Rohm and Haas knew of the alleged juror misconduct soon after it lost an appeal before the Superior Court but failed to make any mention of it when it filed three subsequent appellate briefs. By sitting on their hands, Herron said, the lawyers for Rohm and Haas waived any right they had to raise the issue now. “If the court were to excuse the delay based on the fact that [Rohm and Haas] was battling before the commonwealth’s appellate courts, after-discovered evidence could be held as a party’s ace-in-the-hole for years while the potentially lengthy appeals process continued,” Herron wrote in Rohm and Haas Co. v. Continental Casualty Co. “This would undermine the obvious interest in preserving the sanctity of a judgment,” Herron wrote. In its motion, Rohm and Haas urged Herron to grant a new trial on the basis of revelations that juror Sharon Dennison was reading “A Civil Action” by Jonathan Harr and had commented to the judge during the trial that the litigation in the book was “just like this case” — referring to the case she was serving on in which Rohm and Haas sued two insurance companies to recover the costs of cleaning up two Superfund sites. Attorneys Robert N. Feltoon, William J. O’Brien and Nancy J. Gellman of Philadelphia-based Conrad O’Brien Gellman & Rohn said Dennison also told the judge that one of the witnesses in the Rohm and Haas trial was discussed in the book. The trial judge, now-retired Philadelphia Common Pleas Judge Paul L. Jaffe, didn’t tell the lawyers at the time, and the jury went on to render a verdict in favor of the two insurers, Lloyd’s of London and the Home Insurance Co. Jaffe later set the jury’s 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 and Haas $21 million in December 1997. But in May 1999, the Pennsylvania Superior Court reinstated the jury’s verdict and held that Jaffe was wrong to set aside its finding that Rohm and Haas had failed to disclose the Whitmoyer site contamination when it purchased the policies. The jury had found in favor of the insurers on the basis of the “known loss” doctrine, which holds that “one may not obtain insurance for a loss that either has already taken place or is already in progress.” The Superior Court decision that reversed Jaffe’s verdict was legally significant because it marked the first time a Pennsylvania appellate court had recognized the known loss doctrine. Originally, Rohm and 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 and Home should pay Rohm and Haas almost $16 million for its efforts to clean up the industrial site in Myerstown, 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 also awarded a declaratory judgment to Rohm and Haas for future Superfund cleanup costs the company would incur at the site, a former veterinary products manufacturing facility where the disposal of hazardous substances resulted in arsenic-contaminated groundwater. Lloyd’s was hardest hit, being held responsible for nearly $19 million and the majority of the future costs of cleanup. But the Superior Court tossed out Jaffe’s entire verdict, finding that he failed to give proper deference to the fact-finding of the jury. By that time, Jaffe had retired from the bench. But as a courtesy, Feltoon called the judge to inform him. When Jaffe returned the call, he told Feltoon that something had occurred during the trial and he wanted to “get it off [his] chest,” the motion for new trial stated. Feltoon, in an affidavit, said Jaffe informed him then of the juror’s remarks about the book “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 companies’ plants and claimed that contamination of the town’s groundwater had caused a rash of leukemia cases among their children. Feltoon said he 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. After the justices denied a Rohm and Haas petition for reargument, the Conrad O’Brien team filed the motion for a new trial before Herron, citing jury misconduct. “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 argued in the motion. But Lloyd’s of London’s lawyers — Jerome J. Shestack and William G. Frey of Philadelphia-based Wolf, Block, Schorr and Solis-Cohen — argued that Rohm and Haas had waived any right to raise the jury misconduct issue since the lawyers learned of it during the appeals process, but opted not to inform the courts. Judge Herron agreed, saying, “If [Rohm and Haas] were entitled to have the motion considered, it would render a judgment meaningless and would permit a party’s investigation into procedural and substantive issues to continue long after the trial had been completed.” In 1933, Herron said, the Pennsylvania Superior Court held in Hornick v. Bethlehem Mines Inc. that “newly discovered evidence may be brought to the attention of an appellate court while the matter is on appeal to preserve the discovering party’s right to present the issue.” Herron said Rohm and Haas offered “several excuses” for its delay in raising the issue but that none of them was valid. Feltoon said that presenting new issues on appeal would have led to judicial inefficiency and distracted the appellate courts from the important questions on appeal. Herron disagreed, saying “any purported benefit to judicial efficiency is negated by the fact that raising the motion now has the potential to impose a second appeals process in this case.” By allowing the appeals to conclude before raising the issue, Herron said, Rohm and Haas created the vexing problem of challenging a final judgment. “The court cannot construct a rule that would allow [Rohm and Haas] to present the motion while preserving a final judgment,” Herron wrote. “If [Rohm and Haas] were entitled to have the motion considered, it would render a judgment meaningless and would permit a party’s investigation into procedural and substantive issues to continue long after the trial had been completed.” Herron also found that Rohm and Haas’ arguments ignored “the effect on the administration of justice and the court system as a whole.” Pennsylvania courts, Herron said, have held that an improper influence on a jury “is a blow not only to the specific party affected, but also to the integrity of the fact finding process and the function and role of the jury. “ As a result, Herron said, “a party that is aware of but fails to present evidence of an improper influence on a juror may therefore be breaching its obligations to the tribunal, regardless of whom the improper influence benefited.” If the court were to grant a new trial to Rohm and Haas, he said, it would “send the message that a party has no immediate obligation to disclose improper conduct that may have bent a jury’s verdict in its favor. In the final section of the opinion, Herron said that even if the court considered the motion, it wouldn’t grant it, since Rohm and Haas could not meet its heavy burden of proving that the juror’s exposure to the book was prejudicial. “Although Ms. Dennison’s reading of “A Civil Action” constitutes an influence that was not presented at trial, it is not central to the issues in dispute. Moreover, it is clearly open to speculation and heated disagreement between the parties as to whether the content of the book is so highly emotional and inflammatory as to have had an effect on Ms. Dennison or to have caused her to disregard the instructions directing her to decide the case on the merits,” Herron wrote. “Moreover, granting a new trial because one juror read a book that maligns an entity vaguely similar to a litigating party would require either that a court screen all outside influences to which a juror could be subjected or that orders granting new trials be issued more frequently. Neither of these options is particularly appealing,” Herron wrote.

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