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The conduct of a “shadow juror” in a Texas Rezulin trial who asked an actual juror for a cigarette and a quarter didn’t get the losing plaintiffs a new trial. The Texas 1st District Court of Appeals in Houston has held that there would be no new trial because the shadow juror did not know for which side he worked and thus did not influence the actual juror by the contact. Mercado v. Warner-Lambert Co., No. 01-02-00353 (Tex. App. Houston [1st Dist.] 2003). Shadow jurors are persons hired by the litigants who are demographically similar to the actual jury members. The litigants gather information from the shadow jurors’ reactions to the trial. Laura Mercado and other members of Norma Culberson’s family sued Warner-Lambert Co., alleging that its diabetes drug, Rezulin, was defective and caused Culberson’s death. After a 10-2 verdict for Warner-Lambert, Mercado’s lawyer, Rand P. Nolen of Houston’s Fleming & Associates, discovered that a shadow juror retained by Warner-Lambert had made contact with an actual juror during a break in the trial. “As far as we know, the guy really just wanted to get a quarter and a cigarette,” Nolen said of the shadow juror’s contact with actual juror Ralph Martinez. Mercado moved for a new trial, arguing that the exchange of favors between the shadow juror and the real juror entitled her to a new trial, whether or not it was shown that the exchange influenced the verdict. The trial court denied her motion, and Mercado appealed. In affirming the trial court, the appellate court stressed the double-blind nature of the study. The court held that, since the shadow juror was unaware which side had hired him, he could not influence the actual juror. The court distinguished Mercado’s case from those in which giving a juror a soft drink, for example, was held to be prejudicial. In those cases, the court said, the juror knew which side the person represented. APPEAL IS PLANNED Mercado has died, but Nolen said the family plans to appeal. “Under this decision, my legal assistant could go out and have as much contact with the jury as I want,” Nolen said. “She could drive them home, talk to them, do anything, as long as the juror didn’t know which side she represented. That’s never been the law.” But Jennise Walker-Stubbs of Houston’s Beirne, Maynard & Parsons, who represented Warner-Lambert, countered by saying, “There was no right to a new trial because there was no influence.” “The shadow juror had no idea who the person was, and if he did, it wouldn’t have mattered because he didn’t know who had hired him,” Stubbs said.

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