A woman who served on the jury that this week awarded Rachel Barton nearly $30 million in damages failed to acknowledge during jury selection that she had a pending personal injury lawsuit filed in Cook County Circuit Court, an omission that could result in a defense request for a mistrial.
In a lawsuit filed Dec. 10, 1998, juror Alina Andrzejewski, 64, of Chicago, charged Kohl’s Department Stores Inc. with carelessness and negligence after she injured her right index finger in a door at the North Riverside Mall store in 1996. The suit seeks $50,000 in damages.
Barton’s suit stemmed from a 1995 accident in which she was injured after her violin case became entangled in a Metra train door.
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While courts usually are reluctant to undo verdicts, attorneys on both sides of the Barton trial called the revelation about the juror’s undisclosed lawsuit a serious issue that deserves to be studied.
Asked about the Kohl’s lawsuit Thursday and why she had not disclosed it at the start of the Barton trial, Andrzejewski said so much time had passed that she had forgotten about it and that she thought the matter might have been settled out of court.
“As far as I know, my attorney told me he was trying to settle, but I don’t know anything,” Andrzejewski said. “It happened so long ago I really don’t remember. I haven’t talked to my attorney in about a year.”
Jurors rarely are accused of failing to disclose a potential conflict or bias, and it’s even rarer for such an allegation to result in a new trial. That happens only if a judge determines the juror’s alleged bias actually prejudiced the trial’s outcome–an inquiry that can require the highly unusual step of penetrating the jury’s secret deliberations.
At issue is whether Andrzejewski took with her into the trial and jury room a bias that was forged from her own experience and which wound up skewing the Barton trial’s outcome.
“It could be a big nothing or a big something,” Barton’s attorney, Robert Clifford, said of Andrzejewski’s failure to disclose her status as a plaintiff. “It is very fact dependent.”
Under Illinois law, parties to pending lawsuits can be excluded from sitting on a jury that is charged with deciding some dispute among other litigants. Such potential jurors are almost always immediately removed from service.
In the Barton case, prospective jurors were asked to raise their hands if they were involved in any lawsuit, a standard procedure. They also filled out juror questionnaires that included the question, “Are you presently a party to any case now pending in the Circuit Court of Cook County?”
Andrzejewski circled “no” to the question and signed the card. She also did not raise her hand when the question was posed, according to Metra attorney C. Barry Montgomery, who called the news of her lawsuit “a major revelation.”
Still, the Illinois Supreme Court previously has held that when a juror does not provide correct or truthful answers during jury selection, it does not automatically provide grounds for a new trial. The trial judge must determine if the juror unfairly influenced other panel members in deliberations.
“It is very, very serious,” said Montgomery, who added that a date to discuss the matter with Cook County Circuit Court Judge Allen Freeman has not yet been set. “We are looking into it, and at this point don’t know what action we are going to take. But it is of great concern.”
Andrzejewski, who said she received stitches from the accident at Kohl’s, said Thursday: “They were asking everyone (the question about pending litigation) and just like I told you, I didn’t even remember. I just didn’t pay any attention to it anymore. I think (my attorney) was just trying to settle with (Kohl’s) to pay the hospital bill. My insurance refused to pay because there was a third party involved.”
While Clifford agreed the matter should be looked into, he added that Andrzejewski’s attorneys could have filed papers without her knowing because in Illinois the injured party doesn’t have to sign the court papers.
“It’s obviously a matter for the trial court to examine but at the end of the day it could be much ado about nothing,” he said.
Andrzejewski’s lawyer, Telly Nakos, could not be reached for comment. A partner with the firm, Bruce Kohen, confirmed that they do represent her but would not discuss her lawsuit.
Attorneys for Kohl’s did not return phone calls, but court files show the case is active. Andrzejewski is scheduled for a deposition March 22.
“I don’t think it’s an earthquake, but I think people will make some noise,” said Stephan Landsman, a DePaul University law professor.
Both attorneys involved in the Barton trial dismissed the parallels between Barton’s case and Andrzejewski’s–both were injured as a result of a door–as insignificant. What is important, they said, is the juror’s actions and motives.
In general, courts are reluctant to invade the privacy of a jury’s deliberations, resisting efforts to recreate what role, if any, a particular juror may have played. But in cases where a juror is accused of not disclosing a potential conflict or bias, courts in Illinois have carved out an exception to that rule and have been willing to gather affidavits and testimony from jurors concerning what happened during their deliberations.
A case involving circumstances similar to the Barton trial was the subject of a 1942 ruling by the Illinois Appellate Court. During jury selection in a Cook County trial involving a personal-injury lawsuit, potential jurors were asked if they or any family members had ever filed suit to recover damages from an accident.
A panel member, identified in the appellate opinion only as Mrs. Young, remained silent and was placed on the jury. Later, it was discovered that Mrs. Young’s husband had previously sued and received a $500 settlement for injuries suffered when he was struck by a truck.
Rather than throw out the verdict, the trial judge questioned Mrs. Young and reconstructed what role she played during deliberations. It turned out that Mrs. Young had actually argued for a smaller award than other jurors. She felt $5,000 in damages was appropriate, while other jurors wanted to award $10,000 or $15,000.
The trial judge let the verdict stand, and the appeals court affirmed his decision.
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In the Barton case, jurors Charlene Wright and Lisa Dixon both said Andrzejewski never mentioned her lawsuit and did not exert undue influence–although several jurors said she was “very vocal” during the deliberations. Dixon said she and Andrzejewski had both argued for a punitive damages award of at least $1 million, which was slightly more than the figure ultimately decided upon by the jury.
“She was outspoken in a way that livened the place up,” Dixon said. “She kept us laughing and always said something funny.”
“I had no idea (she had filed a lawsuit),” Wright said. “None at all. And I don’t want to discredit anyone in that group. We made the best decision and we worked very hard.”
Andrzejewski, a retired grandmother who was born in Poland, faced the media pack following the verdict. After reading comments in the newspaper by defense attorney Montgomery that criticized the jury’s decision, she was so angry she called a reporter to defend her colleagues.
“Sympathy had nothing to do with it,” Andrzejewski said. “We all tried to imagine ourselves in (Barton’s) position. If we had been driven by sympathy, she would have been rewarded three times as much.”