                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-8004
IN RE HIGH FRUCTOSE CORN SYRUP ANTITRUST LITIGATION.

                          ____________
       Petition to Appeal from the United States District Court
                   for the Central District of Illinois.
        No. 95 C 1477, MDL 1087—Michael M. Mihm, Judge.
                          ____________
    SUBMITTED FEBRUARY 27, 2004—DECIDED MARCH 18, 2004
                          ____________


  Before BAUER, POSNER, and KANNE, Circuit Judges.
   POSNER, Circuit Judge. This antitrust class action charges
Archer Daniels Midland Company (ADM), A.E. Staley
Manufacturing Company, Cargill, Inc., and American
Maize-Products Company with fixing the price of high
fructose corn syrup, in violation of section 1 of the Sherman
Act, 15 U.S.C. § 1. In a decision reported at 295 F.3d 651 (7th
Cir. 2002), we reversed the entry of summary judgment for
the defendants and remanded for trial. In the course of
preparation for the trial, the following problem arose. Very
damaging evidence arising from criminal proceedings
against ADM would be admissible against ADM but not
against the other defendants. The judge was concerned that
if the jury heard that evidence, it would not be able to put it
out of its mind when considering the culpability of those
defendants, even if instructed to disregard it. The idea
occurred to the judge of impaneling two juries to hear the
2                                                 No. 04-8004

case, one to decide ADM’s liability and the other to decide
the liability of the other defendants, and the second jury
would be excused when the damaging evidence was put in
against ADM. The judge concluded that he was not autho-
rized to do this, but he certified his ruling for an immediate
appeal under 28 U.S.C. § 1292(b), which permits such an
appeal from a ruling if the district judge and this court agree
that the ruling decides a controlling issue of law and
immediate resolution of the issue would expedite the
litigation. These criteria are satisfied, and, the merits of the
ruling having been fully briefed, we proceed to our deci-
sion, first noting however that two of the four remaining
defendants—Cargill and American Maize Products— have
negotiated a settlement with the plaintiffs (not yet approved
by the district court, however) and abandoned the appeal.
The only remaining appellant is thus Staley, which wants
the separate juries and is opposed in this by both ADM and
the plaintiffs.
   The parties agree that the criteria for severing claims or
parties for trial set forth in Fed. R. Civ. P. 21 are not satis-
fied, that no rule authorizes the procedure that the district
judge would like to employ, and that, despite the absence of
such a rule from the criminal rules of procedure as well,
judges may by virtue of their general authority to manage
litigation before them impanel separate juries in criminal
cases for just the reason that the judge would like to do so
here. E.g., Smith v. DeRobertis, 758 F.2d 1151, 1152 (7th Cir.
1985); Lambright v. Stewart, 191 F.3d 1181, 1185-86 (9th Cir.
1999) (en banc); United States v. Lewis, 716 F.2d 16, 19 (D.C.
Cir. 1983); United States v. Hayes, 676 F.2d 1359, 1366-67
(11th Cir. 1982).
  The power to do so in a civil case, if there is such power,
has, to our knowledge, been exercised only once, in Martin
v. Bell Helicopters Co., 85 F.R.D. 654 (D. Colo. 1980). But the
No. 04-8004                                                    3

existence of the power has not been denied, and we cannot
see what there is to bar it. No rule, principle, precedent, stat-
ute, regulation, or other source of limitations on the power
of district judges stands athwart the procedure that the
judge would like to employ. Fundamental to a judge’s role
as the presiding officer at jury trials is the administration of
the rules of evidence in a way that will minimize the
likelihood that the jury’s verdict will be a product of con-
fusion or inappropriate emotion. Imaginative procedures for
averting jury error, as long as they do not violate any legal
norm, are to be encouraged rather than discouraged. The
procedure the able and experienced district judge wants to
employ is orthodox in criminal cases; we cannot see why it
should be unacceptable in appropriate civil cases.
   We are mindful that if separate juries are empaneled, they
may render different verdicts, which may be inconsistent.
Suppose the ADM jury finds that ADM violated the
Sherman Act by conspiring to fix prices, but the other jury
finds that Staley (which, remember, will be the only other
defendant if the pending settlement is approved) did not
conspire with ADM. ADM cannot be guilty of conspiracy
unless it conspired with other firms, so the verdict against
ADM would entail a finding that at least one of the other
firms conspired with ADM, contrary to the verdict in favor
of Staley. The defendant that settled earlier, CPC
International, and the defendants that have now negotiated
a settlement, would be candidates to be other firms that had
conspired with ADM even if Staley had not, but no tenable
theory is offered whereby ADM conspired with other past
or present defendants, but not Staley.
  As pointed out in United States v. Lewis, supra, 716 F.2d at
22, however, an inconsistency such as just described would
not be fatal, since the juries would have heard different
evidence, and it is that difference that would (in all likeli-
4                                                No. 04-8004

hood) explain the inconsistency; the inconsistency would be
in result rather than in logic. Lewis was a criminal case, but
we do not see why the principle should not be equally
applicable to a civil one.
  We conclude that the district judge erred in thinking
himself forbidden to impanel separate juries.

A true Copy:
        Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




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