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Kazan v. Wolinski

decided: November 18, 1983.

CHARLES W. KAZAN AND HELEN F. KAZAN, HIS WIFE
v.
MELVIN WOLINSKI AND ANCHOR MOTOR FREIGHT, INC., JOINTLY, SEVERALLY OR IN THE ALTERNATIVE, CHARLES W. KAZAN, APPELLANT



Appeal From the United States District Court For the District of New Jersey - Camden

Adams, Hunter and Garth, Circuit Judges.

Author: Hunter

Opinion OF THE COURT

HUNTER, Circuit Judge:

I. INTRODUCTION

1. This appeal is taken by plaintiff Charles W. Kazan ("Kazan") from a judgment of the United States District Court for the District of New Jersey. Kazan prevailed in a jury trial in which the jury returned a $150,000 verdict against defendants Melvin Wolinski and Anchor Motor Freight, Inc. ("defendants"). The district court ordered a new trial when Kazan refused to remit $90,000. During the second trial, the court excluded certain evidence based on statements contained in a mid-deliberation jury communication in the first trial. The second jury returned a verdict of $50,000. Kazan appeals from the final judgment entered on the $50,000 verdict, contending that the district court erred by ordering a remittitur or new trial after the first jury verdict and by giving binding effect to the first jury's mid-deliberation note for purposes of the second trial. Because we reluctantly conclude that the district court erred in its treatment of the jury's mid-deliberation note, we will vacate the judgment of the district court entered on the second jury verdict and remand for a new trial.

II. Discussion

A. Facts and Proceedings Below

2. This case arose out of an automobile collision. Kazan sued in federal court, claiming permanent and total disability as a result of injury to his back, neck and left arm.*fn1 Federal jurisdiction was based on diversity of citizenship. See 28 U.S.C. ยง 1332(a)(1976). Defendants did not contest liability and the case was tried to a jury on the issue of damages only. The jury received conflicting testimony regarding the extent of Kazan's injuries, the degree of his disability, if any, and the cause of his apparent back injury. [App. at 6a]. At the conclusion of the trial the jury retired with instructions to deliver a general verdict.

3. After one hour the jury sent a note to the trial judge. The note, which was hand-written by the jury foreman, stated in its entirety:

We have determined that the back injury is not the result of the accident. We, however, feel that compensation should be granted but we are undecided as to how to work out a formula for settlement. [App. at 14a-15a].

The trial judge conferred with counsel for all parties regarding the appropriate response to the jury's note. Counsel did not request that a record be made of that conference. The court thereafter made the following response to the jury:

I have discussed your communication to counsel and exhibited to them your note and in response thereto I just want to say this without repeating my entire charge on damages to you.

You have indicated that you feel compensation should be awarded -- should be granted, but we are undecided as how to ...


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