                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                                   NEWS RELEASE #027


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 26th day of June, 2019, are as follows:




PER CURIAM:

2019-C-0030       TERRY GOTCH   v.   SCOOBY'S   ASAP   TOWING,   LLC,   ET    AL.   (Parish   of
                  Lafayette)

                  In this case, we are called upon to determine whether the
                  district court erred in denying plaintiff's request for a
                  mistrial based on evidence that the jurors violated their
                  instructions by discussing the case prior to deliberations. For
                  the reasons that follow, we conclude the district court did not
                  abuse its discretion in denying plaintiff's motion for a
                  mistrial. Accordingly, we reverse the judgment of the court of
                  appeal and reinstate the district court's judgment.

                  REVERSED.

                  JOHNSON, C.J., dissents and assigns reasons.
                  HUGHES, J., dissents with reasons.
                  GENOVESE, J., dissents and assigns reasons.
06/26/19


                       SUPREME COURT OF LOUISIANA

                                   No. 2019-C-0030

                                  TERRY GOTCH

                                       VERSUS

                   SCOOBY'S ASAP TOWING, LLC, ET AL.

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             THIRD CIRCUIT, PARISH OF LAFAYETTE

PER CURIAM

      In this case, we are called upon to determine whether the district court erred in

denying plaintiff's request for a mistrial based on evidence that the jurors violated

their instructions by discussing the case prior to deliberations. For the reasons that

follow, we conclude the district court did not abuse its discretion in denying plaintiff's

motion for a mistrial. Accordingly, we reverse the judgment of the court of appeal

and reinstate the district court's judgment.



                     FACTS AND PROCEDURAL HISTORY

      Plaintiff, Terry Gotch, filed this suit for damages against defendants, Joseph

Derousselle and his employer, Scooby’s ASAP Towing, LLC (“Scooby’s”). Plaintiff

alleged he was a guest passenger in a vehicle driven by Alydia Menard. According

to plaintiff, Mr. Derousselle, an employee of Scooby’s, backed his vehicle out of a

private driveway, causing Ms. Menard to make an evasive maneuver to avoid a

collision. Ms. Menard’s vehicle subsequently left the roadway and struck a ditch,

causing injury to plaintiff.

      The suit was tried before a jury. Prior to trial, the district court instructed the

jury, “[y]ou may only discuss the case with the other members of the jury when you
begin deliberations on your verdict and all other members of the jury are present.”1

       At trial, the parties presented conflicting versions of the events. Ms. Menard

testified that she swerved to avoid Mr. Derousselle’s truck, which she noticed

partially in the roadway as she rounded a turn. Ms. Menard also testified that fog

obstructed her view of the roadway.

       Mr. Derousselle testified that he had backed his vehicle from his driveway, but

immediately pulled back into the driveway upon seeing Ms. Menard’s vehicle coming

around the curve. He noted that the fog, together with the excessive rate of speed at

which Ms. Menard was traveling on the wet highway, likely contributed to her

inability to slow down or stop, and caused her to instead veer off the road.

           After the close of evidence and argument, the jury began deliberations. The

alternate juror, who had been excused prior to deliberations, remained in the

courtroom. In response to a question by plaintiff’s counsel about her impression of

the trial, the alternate juror suggested that the jurors may have discussed the case

among themselves prior to deliberations.

       Following deliberations,2 the jury returned its verdict. In a unanimous verdict,

the jury found defendants were not negligent.

       After receiving the verdict, the district court, with the consent of the parties and

on the record, questioned the jurors. The district court asked the foreperson, Mr.

McClelland, “were there any discussions during breaks, and after we recessed, or

whatever amongst yourselves about the case?” Mr. McClelland replied, “yes, sir.”

He further stated:



       1
          The opening jury instructions are not contained in the record. However, both parties agree
the district court gave this instruction, which is taken from the model “Plain Civil Jury Instructions.”
       2
         The exact length of the deliberations is not set forth in the record. In argument before this
court, counsel for both parties indicated they recalled deliberations lasted approximately fifteen to
twenty minutes.

                                                   2
             I don't think any of us were under the impression that we
             were not allowed to speak about it inside the jury
             deliberation room. So, actually, I felt that that was our
             duty, is to speak about it and discuss it amongst each other
             to, I mean, come up with a verdict.

      Another juror, Ms. Hennigan, testified that while some of the jurors had

feelings about the case at the beginning, she did not believe any of the jurors made

a decision until deliberations. She stated:

             I will say some, from the beginning, did feel one way or the
             other. Nobody made - - I don't know that anyone made a
             hundred percent decision one way or the other until - -
             because we all have lots and lots of notes that we took. We
             took - - every - - I don't want that to look like we did not
             look at all the information. We looked at all the
             information, I mean, from percentages to how they backed
             out, drove in to - - and I know about - - I know a lot about
             spines and - - Anyway, so there was - - it was a good
             discussion, it was, and to the point of the benefit of the
             doubt and everything. But to be able to say that this was -
             - that any pain and suffering could be caused by the
             gentlemen backing out of his driveway on a foggy
             morning, we could not see that. And so - -

      After hearing the jurors’ testimony, the district court made the following

remarks:

             So the issue will be whether or not the discussions that you
             had - - I mean, you came to a verdict, you did it, obviously,
             with discussion amongst yourselves. No one swayed one
             person from doing it or the other. The issue is just that - -
             And the reason that we have that charge is so that starting
             from opening statement and then when you just hear the
             plaintiff's case that you all aren't affecting other jurors by
             your thoughts and whatever on - - from opening through
             close. Because the defendant - - in this case, the
             defendants only had one witness, but in many cases
             defendants may have a day and a half of witnesses, and if
             you all have been discussing about the case after just
             hearing what the plaintiff said, you may be forming an
             opinion during that time that may not be able to be
             rebuffed now because the defendants haven't put on their
             case yet. That's the purpose behind it. I don't know, in this
             case, that it was that effect or not, but - okay.

                                         ***


                                           3
             I know, but what I want to make clear is what I got from
             their discussion is that they didn't make a decision at
             opening statements, that they discussed the case throughout
             the time they were here and made their decision based on
             what they believed was good law. I can't fault their
             decision. And it sounds to me that they had a lot of
             discussion, it's just that they had the discussion before they
             were charged with the law.

      Thereafter, plaintiff filed a motion for a mistrial. In support, he argued the

jurors disregarded the district court’s instruction to refrain from making any

determinations until the end of the trial.

      After hearing, the district court denied the motion for mistrial. In oral reasons

for judgment, the court stated:

             So, anyhow, I just don't see how this is manifest error, that
             this is, certainly, not something that they did that I think
             had an effect on their verdict . . . I don't think there's
             grounds for a new trial based on what I heard in terms of
             other than this discussion. I think, clearly, reasonable
             minds on a jury could have decided the way they decided.

      The district court then entered an amended judgment which denied plaintiff's

motion for a mistrial and adopted the jury's verdict. Plaintiff appealed.

      The court of appeal reversed, finding the district court erred in denying

plaintiff’s motion for mistrial. Gotch v. Scooby’s ASAP Towing, LLC, 18-355 (La.

App. 3 Cir. 12/6/18), 259 So.3d 1107.

      Upon defendants’ application, we granted certiorari to review the correctness

of the judgments below. Gotch v. Scooby’s ASAP Towing, LLC, 19-C-0030 (La.

3/6/19), 266 So.3d 905.

                                   DISCUSSION

      Prior to 1995, the Code of Civil Procedure did not expressly provide for

mistrials in civil cases. However, our jurisprudence recognized that “this device is

not precluded when no other remedy would afford relief.” Spencer v. Children's



                                             4
Hosp., 432 So.2d 823, 825 (La. 1983). In 1995, the legislature codified this

jurisprudence in La. Code Civ. P. art. 1631(C), which provides, “[t]he court on its

own motion, or on the motion of any party, after hearing, may grant a mistrial.”

      The case law, both before and after the enactment of La. Code Civ. P. art.

1631(C), has consistently held that a trial court is afforded vast discretion in

determining whether to grant a mistrial, since mistrials are not a matter of right. See,

e.g., Boutte v. Kelly, 02–2451 (La. App. 4 Cir. 9/17/03), 863 So.2d 530, 549; Searle

v. Travelers Ins. Co., 557 So.2d 321, 323 (La. App. 4 Cir. 1990). An appellate court

may not disturb a trial court's denial of a motion for mistrial absent a showing of an

abuse of that discretion. Beaumont v. Exxon Corp., 02–2322 (La. App. 4 Cir.

3/10/04), 868 So.2d 976, 985.

      Because a mistrial is a drastic remedy, it should be granted only when the error

results in substantial prejudice sufficient to deprive a party of any reasonable

expectation of a fair trial. See Succession of Houston, 52,181 (La. App. 2 Cir.

8/15/18), 253 So.3d 836, 845, writ denied, 2019-0458 (La. 5/20/19); see also Estate

of Cristadoro ex rel. Jones v. Gold-Kist, Inc., 2001-0026 (La. App. 4 Cir. 1/23/02),

819 So.2d 1034, writ denied, 2002-1325 (La. 9/13/02), 824 So.2d 1171. Although

misconduct of jurors may be a cause for granting a mistrial, the misconduct must be

such that it is impossible to proceed to a proper judgment. Jordan v. Intercontinental

Bulktank Corp., 621 So.2d 1141, 1150 (La. App. 1 Cir. 1993), writ denied, 623 So.2d

1335-36 (La. 1993).

      In the analogous area of mistrials in criminal law, we have emphasized that a

party seeking a mistrial must make a “clear showing of prejudice” and have

consistently held “a mere possibility of prejudice is not sufficient.” State v. Ducre,

2001-2778 (La. 9/13/02), 827 So.2d 1120, 1120. We have further recognized the



                                           5
determination of whether prejudice has resulted lies within the sound discretion of the

trial judge. State v. Smith, 430 So.2d 31, 44 (La. 1983).

       In the instant case, the district court, after hearing the testimony of the jurors,

determined that plaintiff was not prejudiced because the jurors did not make a

decision prior to hearing all the evidence. Specifically, the district court explained,

“what I got from their discussion is that they didn't make a decision at opening

statements, that they discussed the case throughout the time they were here and made

their decision based on what they believed was good law.”

       The district court’s findings are supported by the testimony of one of the jurors,

Ms. Hennigan. She testified that while some of the jurors may have had feelings

about the case from the beginning, there was no indication they disregarded the

evidence presented at trial. To the contrary, she testified she did not believe “that

anyone made a hundred percent decision one way or the other” until hearing the

evidence. She pointed out the jurors took “lots and lots of notes” and “looked at all

the information. . . .” Clearly, this testimony refutes any suggestion that the jurors

pre-judged the case prior to hearing all the evidence or that their early discussions

prejudiced their consideration of plaintiff’s evidence in any significant way.3

       In summary, we find the district court did not abuse its great discretion in

denying plaintiff’s motion for mistrial. The court of appeal erred in reaching a

contrary conclusion. Accordingly, we must reverse the judgment of the court of

appeal and reinstate the judgment of the district court.4




       3
          Moreover, as the district court noted, any prejudice that might result from discussing the
case at an early stage of the proceeding would tend to affect the defendants rather than plaintiff, as
defendants’ evidence is presented last.
       4
           Because of our holding, we pretermit consideration of defendants’ arguments regarding
whether the court of appeal erred in failing to apply the provisions of La. Code Evid. art. 606(B) to
the juror testimony in this case.

                                                  6
                                     DECREE

      For the reasons assigned, the judgment of the court of appeal is reversed. The

judgment of the district court denying the motion for mistrial filed by Terry Gotch is

hereby reinstated.




                                          7
      06/26/19



                         SUPREME COURT OF LOUISIANA

                                     No. 2019-C-0030

                                     TERRY GOTCH

                                         VERSUS

                      SCOOBY'S ASAP TOWING, LLC, ET AL.

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                THIRD CIRCUIT, PARISH OF LAFAYETTE

JOHNSON, Chief Justice, dissents and assigns reasons.

      I agree with the court of appeal that the district court abused its discretion in

denying Mr. Gotch’s motion for mistrial. Therefore, I respectfully dissent.

      It is well established in our law that a motion for a mistrial in a civil case

should be granted under the following circumstances: (1) when the trial judge

determines that it is impossible to reach a proper judgment because of some error or

irregularity and (2) where no other remedy would provide relief to the moving party.

Gable v. Verrett, 628 So.2d 146, 147 (La. App. 4 Cir. 1993) (citing Spencer v.

Children's Hospital, 432 So. 2d 823 (La.1983)). Motions for mistrial should also be

granted upon proof of prejudicial misconduct occurring during a jury trial which

cannot be cured by admonition or instructions to the jury. Id. I find the jurors’

misconduct in this case prevented it from reaching a proper judgment. See Spencer,

432 So. 2d at 826 (internal citations removed). As a result, the jury’s verdict was

tainted and a mistrial should have been granted by the district court.

      There is no dispute that the jury was instructed by the district judge not to talk

about the case before the deliberation process began. There is also no dispute that

the jury violated this instruction. After reviewing the record, there is no question in


                                              1
my mind that the jury’s misconduct in violating the court’s instruction was

prejudicial, necessitating a mistrial.

      In this case, shortly after the jury retired to begin deliberations, the alternate

juror advised plaintiffs’ counsel that the jury had discussed the case throughout the

trial and had decided from the beginning that defendant was not at fault. The district

judge was present at the time and overheard the statement by the alternate juror.

With the approval of all counsel, the district judge informally questioned the

alternate juror who confirmed that the jury had discussed the case during the course

of the trial and had decided defendant was not at fault from the time of the opening

statements. The jury returned a verdict in favor of defendant. Although the record

does not reflect the exact length of time the jury was out, comments by the court

indicate the jury spent only a few minutes deliberating, which suggests to me that

the verdict was predetermined. While the district judge and counsel were having a

discussion on the record regarding how to handle the jury issue raised by the

alternate juror, the following colloquy occurred:

             DEPUTY SHERIFF:                  They’re [the jury] ready.
             THE COURT:                       So now we’ve got a problem.
             PLAINTIFF’S COUNSEL:             I have to request a mistrial.
                                            ***
             THE COURT:         But I’m now going to have to talk to them. I
             think I’m - - Clearly, I have to explore. Listen, this case could
             have ended in five minutes. I might have decide this case in five
             minutes and it wasn’t in the plaintiff’s favor. But having said
             that, five minutes doesn’t give them a chance to [use the
             restroom] and go talk.

      After receiving the verdict, and with the consent of the parties, the trial court

questioned the foreperson, Mr. McClelland, on the record. Mr. McClelland admitted

that the jurors had discussed the case among themselves during the proceedings.

Another juror, Ms. Hennigan, admitted that some of the jurors “did feel one way or

                                              2
the other” from the beginning, but stated that she “[didn’t] know that anyone made

a hundred percent decision one way or the other ….” The district court ultimately

determined there was no prejudice because the jurors had not made a decision prior

to hearing all of the evidence.

      In finding no error in the district court’s ruling, the majority focuses on Ms.

Hennigan, reasoning her testimony refutes any suggestion that jurors pre-judged the

case prior to hearing all the evidence. I cannot agree. Ms. Hennigan admitted that

some of the jurors had an opinion from the beginning, yet she tried to suggest that

the jury had not made a definite decision and that the jury had a “good discussion”

about liability and damages. Given the admittedly abbreviated deliberations, as

documented by the district judge on the record, it was impossible for the jury to have

a “good discussion” and consider all of the evidence presented at trial during the

mere five minutes of deliberations. There is no question in my mind that the jury’s

decision was based on the argument defense counsel presented in the opening

statement, rather than on the evidence and testimony presented during the course of

the trial. Prejudice must be implied when the jury made up its mind that defendant

was not at fault following opening statements and before any evidence or testimony

was presented. Preconceived judgment equates to prejudice.

      For these reasons, I find a mistrial should have been granted by the district

court. I respectfully dissent.




                                             3
06/26/19

                       SUPREME COURT OF LOUISIANA


                                   No. 2019-C-0030

                                   TERRY GOTCH

                                        VERSUS

                   SCOOBY’S ASAP TOWING, LLC, ET AL.


        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             THIRD CIRCUIT, PARISH OF LAFAYETTE


Hughes, J., dissenting.

       The Louisiana Supreme Court has gone to great effort to implement Plain

Civil Jury Instructions, and has established same by Supreme Court Rule. The

cavalier treatment these rules receive in this case, especially by this court, is very

disappointing.

       Every civil jury is instructed (or should be) at the outset that they are not to

deliberate until they have heard all the evidence and only then with each other when

all the other members of the jury are present. After the trial, they are specifically

instructed that the restriction on deliberating during the trial is removed, and that

they may now deliberate. They are further advised not to announce a position

immediately upon entering the jury room, as they may hesitate to change an

announced position after they have had an opportunity to deliberate with the other

jurors, again emphasizing that deliberation is a group effort that should only occur

at the end of the trial with all jurors present.

       These rules were blatantly violated in this case. It appears that some jurors

had made up their minds immediately after opening statements, and said so, and that

discussions continued between various jurors throughout the trial. The reasoning

that there was no real harm because plaintiff put on its case first is self-serving, lame,
and ignores the rules violations. It seems the jury deliberated from five to perhaps

15- 20 minutes. As the trial court admitted, that wasn’t even enough time for them

to go to the restroom. The court of appeal decision was correct and should be

affirmed.




                                         2
06/26/19

                       SUPREME COURT OF LOUISIANA

                                     NO. 19-C-0030

                                    TERRY GOTCH

                                         VERSUS

                    SCOOBY’S ASAP TOWING, LLC, ET AL.

         ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
              THIRD CIRCUIT, PARISH OF LAFAYETTE


GENOVESE, J., dissents and assigns the following reasons:

       The issue presented in this case is whether the trial court abused its discretion

in finding that the jury misconduct in discussing the matter prior to deliberation did

not cause prejudice to plaintiff sufficient to warrant a mistrial. I agree with the court

of appeal’s reversal of the trial court and find plaintiff was prejudiced by said jury

misconduct and that a mistrial is the only available remedy.

       The record clearly indicates that the alternate juror informed the trial court,

and the jury foreman acknowledged same, that there were discussions amongst all

jurors about the case during breaks and recesses and before the case was given to the

jurors for deliberation at the end of the case.

       Crucial is the statement of the alternate juror to the court when asked about

premature jury deliberations wherein she stated: “Pretty much from the opening

statement, we had decided that the defendant wasn’t at fault.” Now, how can there

be a fair trial after this revelation?

       First, the jurors are not to be preliminarily deliberating or discussing the case

prior to the case going to the jury at the end of the case. Second, the seed being

planted and the mindset initiated by the jury after opening argument, and without
there being even the first bit of evidence presented, taints the jury and evidences a

pre-judgment of the case. The jury is not supposed to be discussing the case much

less arriving at any preliminary decision prior to its official deliberation at the end

of the case. This is precisely why jurors are instructed not to discuss the case until

all of the evidence has been presented, closing arguments had, and jury instructions

given. This was not done in this case, and, thus, this constituted jury misconduct.

Unquestionably, in my view, the jury’s discussions and preliminary finding after

opening statements that defendant was not at fault manifested a prejudice sufficient

to warrant a mistrial.

      I would affirm the judgment of the court of appeal.




                                          2
