Weekly Law Resume - November 29, 2012: Juror Misconduct: Mere Mention of Insurance Not Grounds For New Trial

by Low, Ball & Lynch

[author: Michael Beuselinck]

Jean Barboni v. Fred Tuomi, et al.
Court of Appeal, Fourth District Division Three (October 1, 2012)

Juror misconduct can be demonstrated by establishing with substantial evidence that a jury improperly considered evidence of insurance in rendering its decision. This case addresses whether the trial court abused its discretion by denying a motion for new trial based on evidence of a mere mention of insurance in jury deliberations.

The Tuomis owned a home in Laguna Niguel since January, 2009. Although their primary residence was in Chicago at the time, they returned to Laguna Niguel a few days at a time for holidays and long weekends. The Tuomis hired Barboni as a pet and house sitter for the Laguna Niguel home. Some of Barboni’s tasks included retrieving mail, putting out the trash and checking on the home’s security. While walking to the mailbox on January 23, 2009, Barboni slipped on the slate border to the driveway and suffered a fractured ankle. Barboni filed suit and claimed medical damages of over $50,000 and total damages in excess of $500,000.

The Tuomis filed a motion in limine to exclude evidence of liability insurance coverage. The motion was granted and the court instructed the jury to ignore such evidence. At the conclusion of trial, the jury returned a unanimous verdict in favor of the Tuomis. Barboni moved for a new trial based upon a juror’s declaration indicating that she and all of the other jurors ignored the trial court’s instruction to not consider the issue of insurance. Barboni’s motion for a new trial was denied. Barboni appealed.

Barboni argued on appeal that the jury improperly considered the issue of insurance. Although no evidence of insurance was presented at trial, Barboni’s supporting juror declaration stated the jury believed and discussed the idea that Barboni already recovered money from insurance. The Tuomis countered with declarations of eight jurors supporting their position that the jury did not consider evidence of insurance as a factor in rendering their decision. Nearly all of these eight jurors’ declarations detailed their respective decisions based upon evidence presented at trial.

The Appellate Court found no abuse of discretion by the trial court in denying Barbon’s motion for new trial. The Appellate Court concluded that Barboni failed to demonstrate jury misconduct with substantial evidence. The cases cited by Barboni in support of her appeal only dealt with situations where just the appellant produced juror declarations. In contrast, here both sides produced declarations that flatly contradicted each other. In a battle of declarations, the trial court’s finding was supported by substantial evidence with the Tuomis’ eight juror declarations. Five of the jurors recalled no mention of insurance at all, one stated it was not discussed, and two recalled only brief mentions. The trial court properly noted that “[m]ere mention of insurance does not constitute consideration.” More importantly, all eight jurors stated that insurance was not a factor in their decision.

On another issue, the Appellate Court considered whether the trial court abused its discretion by permitting the Tuomis to late designate their expert witnesses and allowing expert testimony at trial. During a settlement conference after the disclosure deadline, the Tuomis’ counsel informed Barboni’s counsel that they intended to serve a late designation of expert witnesses. The designation was served with the explanation that “the time for this designation was miscalendared. We are providing you with the designation at the present time and will work with you to schedule any depositions of the [two] designated experts.” The Appellate Court found that the Tuomis’ late designation was not an intentional strategic move, but a result of error whose explanation the trial court accepted. While the exchange of designations here was not simultaneous, it was not crafted by the Tuomis to put Barboni at a disadvantage. The Appellate Court further found that Barboni ultimately had over four months to prepare for expert testimony at trial. Barboni had not established any prejudice to her, and no abuse of discretion by the trial court admitted expert witness testimony.


While previous referenced cases involved the appellant’s juror declarations, this case addressed circumstances where both sides submitted competing declarations about the substance of jury deliberations. The substantial evidence weighed strongly in favor of the Tuomis based upon the quantity and content of their eight declarations. Additional support that insurance was a factor in the jury’s decision would be required to demonstrate juror misconduct.

For a copy of the complete decision see:


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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