Long v. Brusco Tug & Barge, Inc.

. ~ ._.. '

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

BRIAN LONG,

Petitioner,
NO. 90976-8
v.

BRUSCO TUG & BARGE, INC., a ENBANC
Washington corporation; BRUSCO
MARITIME CO., a Washington
corporation; and BO BRUSCO and his FEB 2 ~:; 2016
Filed - - -----
marital community,

Respondents.

STEPHENS, J.-Brian Long appeals the denial of his motion for a new trial

based on a claim of juror misconduct. The question before us is whether the juror

declarations Long submitted in support of his motion describe actual misconduct by

jurors or instead reveal matters that inhere in the verdict. We conclude the

declarations expose the jury's deliberative process behind closed doors and cannot

be considered to impeach the verdict. Accordingly, we affirm the trial court and the

Court of Appeals' conclusion that Long is not entitled to a new trial.
Long (Brian) v. Brusco Tug & Barge, Inc., eta!., 90976-8

FACTS AND PROCEDURAL HISTORY

Long sued his former employer, Bo Brusco and Brusco Tug & Barge Inc.

(Brusco), alleging wrongful termination in retaliation for opposing Brusco's

discriminatory conduct against another employee. The underlying facts were hotly

disputed and centered on Brusco's response to Long's having hired as a deckhand

Anthony Morgan, an individual who had a prosthetic leg. Morgan was not a party

to this lawsuit. As Judge William Downing explained in his order denying Long's

motion for a new trial, "It was repeatedly conveyed to the jury that whether or not,

in hindsight, Mr. Morgan was discriminated against was not their concern; rather,

their focus should begin with the question of whether or not Mr. Long, at that time,

had a reasonable belief that Mr. Morgan was being discriminated against." Clerk's

Papers (CP) at 1948.

The reasonable belief element of Long's claim was not strongly disputed.

Indeed, Brusco conceded that Long reasonably believed Morgan was discriminated

against. 19 Verbatim Report of Proceedings (VRP) (May 7, 2013) at 2329-30. "The

elements that developed as constituting the crux of the jury's work were (a) whether

the plaintiff engaged in opposition conduct (or did his support for Mr. Morgan cease

once the discriminatory act was done?), (b) whether the plaintiff suffered an adverse

employment action (or was he given a lateral transfer to a higher paying position?),

and (c) whether any such adverse employment action was taken with a retaliatory

motive (or was it because of his missing a ship assist job?)." CP at 1949. To

establish his claim, Long needed to prevail at trial on all of these disputed issues.

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Following a two-week trial and at the end of two days of deliberations, the

jury returned a verdict in favor of Brusco, by a vote of 10-2. Long's attorneys

thereafter interviewed jurors who were willing to talk, and secured declarations from

4 of the 12. In support of his motion for a new trial, Long submitted the 4 jurors'

declarations, which address various aspects of the trial and deliberations. CP at

17 68-79' 1780-92. 1
The trial court denied Long's motion, and the Court of Appeals affirmed in an

unpublished opinion. Long v. Brusco, noted at 182 Wn. App. 1052, 2014 WL

3937336, at *7. We granted Long's petition for review. 182 Wn.2d 1021,345 P.3d

785 (2015).

ANALYSIS

Central to our jury system is the secrecy of jury deliberations. Courts are

appropriately forbidden from receiving information to impeach a verdict based on

revealing the details of the jury's deliberations. Thus, in considering whether to

declare a mistrial based on alleged juror misconduct, the first question is whether the

facts alleged "inhere[] in the verdict"; this is a question of law we review de

1
All four declarations address statements made during deliberations by juror 12
(and two mention a second juror) regarding whether a person with a prosthesis could
lawfully and safely work on a boat deck. Additionally, three of the declarations address
statements made by jurors about what Long could earn as a firefighter or emergency
medical technician. CP at 1781, 1785, 1791. Two of the declarations also address the
jury's reaction to a photograph defense counsel displayed of Bo Brusco and his wife on
their honeymoon. CP at 1782, 1791. Although Long's argument now focuses solely on
juror statements concerning the first issue, the motion for new trial raised a separate
allegation of juror misconduct concerning damages, as well as issues of misconduct by
counsel. Long offered the juror declarations in support of all of these claims.

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novo. Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 768, 818 P.2d

1337 (1991).

Our case law recognizes two tests for determining whether facts in a juror

declaration inhere in the verdict. Under the first test, facts "linked to the juror's

motive, intent, or belief, or describ[ing] their effect upon" the jury inhere in the

verdict and cannot be considered. Gardner v. Malone, 60 Wn.2d 836, 841,376 P.2d

651 (1962). This includes facts touching on the mental processes by which

individual jurors arrived at the verdict, the effect the evidence may have had on the

jurors, and the weight particular jurors may have given to particular evidence. Cox

v. Charles Wright Academy, Inc., 70 Wn.2d 173, 179-80, 422 P.2d 515 (1967). A

second test asks whether facts alleged in juror declarations can be rebutted by other

testimony without probing any juror's mental processes. Gardner, 60 Wn.2d at 841.

Circumstances in which it is '"universally agreed"' that matters inhere in the

verdict include when "'one or more jurors misunderstood the judge's instruction; or

were influenced by an illegal paper or by an improper remark of a fellow juror; ...

or had miscalculated accounts by errors of fact or of law."' Id. at 841-42 (footnote

omitted) (quoting 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW

681 (McNaughton rev. ed. 1961)). The policy behind refusing to consider matters

that inhere in the verdict is to protect the sanctity of the jury room by '"prevent[ing]

the jury from divulging what considerations entered into its deliberations or

controlled its action[s]."' Id. at 843 (quoting Md. Cas. Co. v. Seattle Elec. Co., 75

Wash. 430, 436, 134 P. 1097 (1913)). At the same time, the rule "'does not close

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what is often the only avenue to a showing of actual facts constituting misconduct."'

Id. (quoting Md. Cas., 75 Wash. at 436).

Only if a court concludes that juror declarations allege actual facts constituting

misconduct, rather than matters inhering in the verdict, does it proceed to "decide

the effect the proved misconduct could have had upon the jury." Id. at 841. A trial

court's decision in this regard will not be reversed on appeal unless the court abused

its discretion. State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 631 (1994).

As noted, Long submitted declarations from 4 of the 12 empaneled jurors. He

argues that the "unrebutted juror declarations prove that two jurors instructed the

jury about outside Maritime and Coast Guard laws," and that their statements

introduced into the deliberations "definitive legal premises" comparable to

erroneous jury instn1ctions. Suppl. Br. ofPet'r Long at 8-9. We find the declarations

to be more equivocal than Long suggests. We conclude they reveal matters that

inhere in the verdict. Accordingly, there is no need to further consider the effect the

alleged statements may have had on the verdict.

We begin by noting that the four juror declarations are not uniform in their

description of the facts Long relies on to establish misconduct. For example, two of

the declarations omit any reference to the second juror alleged to have introduced

"definitive legal premises" into the deliberations. CP at 1783-89. With respect to

juror 12, who is mentioned in all the declarations, the characterization of his actual

statements varies among the four accounts. All give the impression that juror 12

was persuasive, opining that he "presented his position well," CP at 1781, that he

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was "very authoritative about the content of his presentation," CP at 1784, and that

he "persuasively commanded the floor," CP at 1788. And, they all note that he

mentioned he had spent many years in the navy and was familiar with maritime laws,

navy rules, boats, and boat safety. CP at 1780-92. But, exactly what juror 12 said

about any applicable laws is less clear. For one thing, a second juror, identified in

two of the declarations as "Robert P." or "Bob P.," reportedly offered his view that

coast guard law would not allow a person with a prosthesis to work on the deck of a

ship or boat. CP at 1781, 1791. This same juror is described as having "applied his

experience in construction" to offer opinions on "sending people home from job sites

if they didn't have their physical or [urinary analysis test] completed." CP at 1791.

Reading the declarations as a whole, it is difficult to ascertain the "definitive

legal premises" that were allegedly introduced into the deliberations. Was it that

navy and coast guard rules (or maritime law generally) disallow people with

prosthetic limbs from working on ship decks; or instead that juror 12, being familiar

with maritime laws generally, was unaware of any law that would have allowed

Long to hire Morgan as a deckhand; 2 or that it showed bad judgment to hire someone

2
One juror said juror 12 talked about "Navy laws, and that none of the Coast
Guard/Ocean/Maritime laws would allow anyone with prosthesis to work on the deck of
either a ship or boat," adding that "Robert P." agreed as to coast guard law. CP at 1781.
A second juror said juror 12 "talked at length about maritime laws, navy rules and repeated
multiple times that no laws existed that would allow a deckhand with a prosthetic leg to be
on a boat." CP at 1784. A third declared that juror 12 "started by telling us that he had
spent many years on ships and in the U.S. Navy and knew about the law, and about boats,
and about safety. He said that he did not know of any law on the books including the Coast
Guard laws that would every [sic] let someone [with a prosthesis] work as a deckhand on
a boat." CP at 1788. The fourth juror stated, "Dave [juror 12] mentioned that he spent
many years in the Navy and is quite familiar with the laws of the organization and stated
that there would be no way that theN avy (or other maritime organizations such as the Coast

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with a prosthesis to work on a deck; 3 or something else? Indeed, one declaration

states that the "point [juror 12] emphasized the most" was that "[h]e knew from

serving on ships that boats are very dangerous, and that someone like Anthony

Morgan should not be on a boat by law." CP at 1788. Although this statement
relates a general sense of "law," it also reflects juror 12' s (strongly held) view based

on his personal experience. 4

We conclude that the matters revealed in the declarations inhere in the verdict

and cannot be considered. Although portions of the declarations identify (in varying

accounts) statements made by fellow jurors touching on questions of fact or law,

these statements were expressions of personal belief based on life experiences.
During jury deliberations, jurors may "rely on their personal life experience to

evaluate the evidence presented at trial." Breckenridge v. Valley Gen. Hasp., 150

Wn.2d 197, 199 n.3, 75 P.3d 944 (2003). Juror 12's relevant life experiences were

Guard) would have let a man with a prosthetic leg work on the deck of a ship .... Bob P.
agreed." CP at 1791.
3
One juror described juror 12 as having stated that "[Long's] hiring Morgan showed
very bad judgment." CP at 1789.
4
Apart from their varying accounts of the facts, it is also notable that the four
declarations reveal more about each juror's impression of their fellow juror's statements
than the content of the statements. One juror observed that juror 12 "presented his position
well, and relied on notes that appeared organized and prepared in advance." CP at 1781.
She stated, "I felt the expectation from [juror 12] to not interrupt." I d. Another juror noted
that juror 12 was "very authoritative" about the content of his presentation, even describing
his manner as "very aggressive." CP at 1784. A third juror felt that juror 12 "very
persuasively commanded the floor," and was "very convincing," stating, "It really seemed
to turn things around and get things heated up when he was done." CP at 1788. With
respect to "Bob P.," whose statements on this and other issues are identified, one juror
declaration stated, "He became quite intense and vociferous several times which seemed
to dominate the attitude in the room." CP at 1791. These statements all describe the
declarants' perceptions of the other jurors' remarks, which unquestionably inhere in the
verdict.

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Long (Brian) v. Brusco Tug & Barge, Inc., et al., 90976-8

known to both parties, as he disclosed during voir dire that he was a retired member

of the navy and an avid boater. See 1 VRP (Apr. 22, 2013) at 172 (juror 12 stated:

"I'm retired from the U.S. Navy.... [M]y favorite activities are boating on Puget

Sound, motorcycling, backpacking, and being a grandfather.") Neither party

exercised a peremptory strike against him. Drawing from his personal experiences,

it is unsurprising that juror 12 opined about the legality and safety of allowing

someone with a prosthetic leg to work on a ship. We have been reluctant to find

juror misconduct when a juror injects personal knowledge and experience known to

the parties into deliberations. McCoyv. Kent Nursery, Inc., 163 Wn. App. 744,763-

64, 260 P.3d 967 (2011) (finding no misconduct when juror drew on disclosed

background in real estate and piping in tort action involving a failed pipe drainage

system); Richards v. Overtake Hasp. Med. Ctr., 59 Wn. App. 266, 274, 796 P.2d

737 (1990) (finding no misconduct when jurors applied specialized medical

knowledge during deliberations because that information was disclosed during voir

dire). 5

This case is similar to others in which we have rejected attempts to set aside

a jury verdict on the ground that a juror brought specialized experience to bear on

jury deliberations. In Breckenridge, the plaintiff sued her physician for medical

5
Had any jurors failed to disclose their relevant background, this may have been a
basis for finding misconduct. See Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 158-
59, 776 P.2d 676 (1989) (misconduct when venire member failed to disclose bias against
Californians in personal injury action by a California resident); Gordon v. Deer Park Sch.
Dist. No. 414,71 Wn.2d 119, 121,426 P.2d 824 (1967) (misconduct when venire member
failed to disclose prejudice in favor of schoolteachers in a personal injury action against a
schoolteacher).

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negligence after she suffered a brain aneurysm, alleging that he "should have ordered

a CT (computerized tomography) scan" during her emergency room visit. 150

Wn.2d at 198-99. Following a defense verdict, the plaintiff alleged juror misconduct

because one of the jurors "related his experience with his wife's migraines during

jury deliberations, comparing her symptoms to [the plaintiffs symptoms]." Id. at

199. The juror also opined that the defendant was not negligent in treating the

plaintiff because his wife received similar treatment. Id. at 206 ("Because [the juror]

felt that his wife's symptoms were similar to [the plaintiffs] and his wife had not

been given aCT scan, [the juror] believed that [the physician] was not negligent in

his diagnosis and treatment of [the plaintiff]."). We concluded that the juror's

statements inhered in the verdict because the juror used his experience with his

wife's migraine headaches to evaluate the evidence presented at trial. Id.

In State v. McJ(enzie, this court reversed an order granting a new trial

premised in part on juror misconduct. 56 Wn.2d 897, 355 P.2d 834 (1960).

Concerning an eminent domain claim, we held that the trial judge improperly

considered a juror declaration stating that "during the course of deliberations, one of

the other jurors had argued (despite the trial court's instruction to the contrary) that,

as the juror understood the law, respondent had no right of access to primary state

highway No. 18, for which compensation should be paid by the [S]tate." !d. at 900.

Finding the matter attested to inhered in the verdict, though clearly a statement of

the law, we "rather summarily dispose[ d)" of the claim of misconduct. Id.; see also

Johnston v. Sound Transfer Co., 53 Wn.2d 630, 631-32, 335 P.2d 598 (1959) (in

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action for injuries sustained while horseback riding, the fact that two jurors relayed

their experiences about horseback riding inhered in the verdict); Marvin v. Yates, 26

Wash. 50, 60,66 P. 131 (1901) (affidavit thatjuryused improper method to calculate

damages inhered in the verdict).

Like the juror statements at issue in these prior cases, the juror statements here

inhered in the verdict because they reflected personal beliefs based on life

experiences. It is true that juror 12 and Robert P. sometimes declared their views as

a matter of fact or law; their fellow jurors-or at least the four who signed

declarations-understood them to believe that a person with a prosthetic leg could

not lawfully work as a deckhand. But, attaching the word "law" to their remarks,

without more, does not change the fact that the jurors naturally used their life

experiences to evaluate Long's wrongful termination claim. We cannot know their

intent and are not allowed to probe any juror's thought processes. See Ayers, 117

Wn.2d at 768 ("[J]uror affidavits may not be used for the purpose of contesting the

thought processes involved in reaching a verdict.").

The circumstances here stand in contrast to those in which we have granted a

new trial on the ground that empaneled jurors improperly introduced extrinsic

evidence into jury deliberations. In such cases, the juror statements were plainly not

matters of opinion based on personal experience, but expressions oflaw or fact based

on outside sources. See, e.g., Bouton-Perkins Lumber Co. v. Huston, 81 Wash. 678,

680, 143 P. 146 (1914) (finding juror misconduct when, during deliberations, one

juror "produced a pamphlet which purported to contain the forest protection laws of

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this state, and that portions of the pamphlet were read and commented upon");

Adkins v. Alum. Co. of Am., 110 Wn.2d 128, 131, 750 P.2d 1257, 756 P.2d 142

(1988) (granting new trial due to misconduct of bailiff and jury, where bailiff

provided jury with Black's Law Dictionary to look up definitions of "negligence"
and "proximate cause"). Such misconduct warrants a new trial, just as surely as

when an empaneled juror introduces into deliberations extrinsic facts about one of

the parties. See, e.g., State v. Parker, 25 Wash. 405,410, 65 P. 776 (1901) (granting

new trial due to one juror's statements during deliberations that he knew the
defendant to be a member of a gang and to have been implicated in a murder; the

juror had falsely denied any knowledge during voir dire). Here, we have only the

somewhat conflicting declarations of four jurors, which characterize what one or two

of their fellow jurors said based on their disclosed experiences. To consider such

declarations would open the door to the impeachment of verdicts any time jurors

make categorical assertions about what they believe the law to be based on their
personal experience. This would undermine our "long held and cherished ambition

[of] rendering ... final and definitive judgments." Cox, 70 Wn.2d at 180; see also

Alger v. City of Mukilteo, 107 Wn.2d 541, 551, 730 P.2d 1333 (1987) (stating that
courts have a strong interest in upholding jury verdicts).

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CONCLUSION

Because the matters relayed in the juror declarations inhere in the verdict and

cannot be considered, Long's claim of juror misconduct fails. We affirm the lower

courts' denial of his motion for a new trial.

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WE CONCUR:

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Long v. Brusco Tug & Barge, et. a!., No. 90976-8 (Gonzalez, J., dissenting)

No. 90976-8
GoNzALEZ, J. (dissenting)-I respectfully dissent. Despite the trial judge's

instruction to follow the law as set forth in the jury instructions, one juror
forcefully inserted his own definitive statement of the law on a critical issue into
the jury's deliberations. I have grave doubts the juror was right about the law,
which, given it was not either parties' theory of the case, has not been tested by
them. At the very least, the juror's insistent statement of supposed law undermined
the instructions given by the judge and the case presented by the parties. I would
hold that it is misconduct for a juror to make a legal assertion during deliberations
that undermines the court's instructions. Since the court today countenances that
misconduct, I respectfully dissent.
Brian Long sued his former employer, Brusco Tug & Barge Inc., for
discrimination, claiming it had fired him for hiring Anthony Morgan, a man with a
prosthetic leg. If in fact Brusco had fired Long for hiring Morgan, it would likely
have violated Washington's Law Against Discrimination, chapter 49.60 RCW-
but only if Brusco had retaliated against Long for opposing what he reasonably
believed was unlawful discrimination. Rcw· 49.60.210(1); see also Renz v.
Spokane Eye Clinic, PS, 114 Wn. App. 611, 619, 60 P.3d 106 (2002) (quoting
Graves v. Dep 't of Game, 76 Wn. App. 705, 712, 887 P.2d 424 (1994)). The jury
was instructed consistently:
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Long v. Brusco Tug & Barge, et. al., No. 90976-8 (Gonzalez, J., dissenting)

[P]laintiffBrian Long has the burden of proving each one of the following
propositions by a preponderance of the evidence:

(1) That the plaintiff was opposing what he reasonably believed to
be discrimination on the basis of disability;
(2) That the plaintiff was subjected to an adverse employment
action by his employer; and
(3) That the plaintiff's opposition to discrimination was a
substantial factor in the defendant's decision-making in taking
the adverse employment action.

Clerk's Papers (CP) at 1756. Brusco conceded that Long reasonably believed

Brusco had discriminated against Morgan, but it vigorously defended against the

other two elements.

Fairly read, the juror declarations establish that one juror brought in a

prepared presentation on the law that gutted the jury instructions and Long's ability

to make his case according to the law as given to the jury. Taken together, these

declarations establish that one juror insisted, backed by his status as a navy

veteran, that naval laws "simply do not allow people to crew boats and act as Able

Bodied Seamen with prosthetics." CP at 1788; CP at 1780-92. If that juror was

correct and Morgan was not legally allowed to work as a deckhand, then Brusco

had a legitimate, nondiscriminatory reason to take adverse actions against Long for

hiring him.

This case could have been tried that way. Brusco could have insisted it had
the law on its side for not wanting Morgan on its boats and that Long was
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Long v. Brusco Tug & Barge, et. al., No. 90976-8 (Gonzalez, J., dissenting)

unreasonable in believing it was discriminating in so doing. But Brusco did not
make that argument. For whatever reason, it conceded that element of Long's

case. Perhaps its research suggested what mine did: that Washington law forbids
discrimination based on disability and that this civil rights protection is not
preempted by federal maritime law. Hoddevik v. Arctic Alaska Fisheries Corp., 94

Wn. App. 268, 282, 970 P.2d 828 (1999). Perhaps it did not want to call attention

to Morgan's federal Equal Employment Opportunity Commission complaint.

Perhaps it did not want to argue to this jury it had a right to discriminate. But the

simple fact is it conceded the issue, and thus Long had no cause to contest the legal

underpinnings of it.

I agree with the majority that there is much in these declarations that inheres

in the verdict and thus cannot be considered. I disagree, however, that the juror's
definitive statements about the content of naval law inheres. Washington common
law recognizes two tests for determining what inheres in a verdict. See Gardner v.

Malone, 60 Wn.2d 836, 841, 376 P.2d 651 (1962) (citing State v. Parker, 25 Wash.
405, 65 P. 776 (190 1)). First, when "that to which the juror testifies to can be

rebutted by other testimony without probing a juror's mental processes," it may not

inhere in the verdict. !d. The jurors' declarations that one of them definitively

declared that naval law would prohibit someone with a prosthetic limb from
working on a boat survives this test. These statements could have been (but were
not) rebutted by other jurors' testimony that no such statements had been made

without probing the jurors' mental processes. This does not inhere in the verdict.
Second, when "the facts alleged are linked to the juror's motive, intent, or belief,
or they describe their effect upon [the juror] ... , the statements cannot be
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Long v. Brusco Tug & Barge, et. al., No. 90976-8 (Gonzalez, J., dissenting)

considered for they inhere in the verdict." !d. While some of the material in the

declarations does not survive this test, the fact the juror made definitive statements

about alleged naval law does. It is a statement of supposed law. It does not inhere

in the verdict.

I also agree with the majority that it is entirely proper for jurors to bring their

life experience to bear on deliberations. See Breckenridge v. Valley Gen. Hasp.,

150 Wn.2d 197,204,75 P.3d 944 (2003). But these statements went beyond one

juror recounting his own life experience. The statements instead intruded into the

fundamental role of the judge: to say what the law is. WASH. CONST. art. IV,§ 6;

Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 506, 198 P.3d 1021 (2009)
(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803)).

Allowing jurors to substitute their potentially erroneous and untested views of the

law for the law set forth in the jury instructions undermines the constitutional

division of authority between judges and jurors. WASH. CONST. art. IV, § 6; Hale,

165 Wn.2d at 506; see also WASH. CONST. art. I, § 21. "[W]here a juror supplies

the jury with evidence. which was not admitted at trial, jury misconduct results.

Jury misconduct also results where a juror provides the jury with erroneous

statements of the law." Adkins v. Alum. Co. ofAm., 110 Wn.2d 128, 137-38, 750

P.2d 1257 (1988) (footnote omitted) (reversible misconduct for jurors to consult

Black's Law Dictionary); see also Bouton-Perkins Lumber Co. v. Huston, 81
Wash. 678, 683-84, 143 P. 146 (1914) (reversible misconduct for juror to bring in

a pamphlet on relevant law into the jury room). I would extend these cases and

hold that a juror who provides the jury with a statement of the law that undermines

the judge's instructions commits misconduct that does not inhere in the verdict.
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Long v. Brusco Tug & Barge, et. al., No. 90976-8 (Gonzalez, J., dissenting)

The juror's definitive, and likely incorrect, statements about naval law went
to the heart of Long's case. It was misconduct. I have little doubt it prejudiced
Long's ability to make his case. I would reverse the courts below and remand for a
new trial. Accordingly, I respectfully dissent.

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Long v. Brusco Tug & Barge, et. al., No. 90976-8

6