APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA, HONORABLE JANINE KERN Judge.
The opinion of the court was delivered by: Gilbertson, Chief Justice
[¶1.] In this wrongful death action, a juror performed a Google search after receiving a juror summons but before voir dire and being seated on the jury. During deliberations the juror's Google search was made known to five other jurors. The jury returned a defense verdict. Plaintiffs filed a motion for new trial claiming juror misconduct and extrinsic information was revealed to the jury during a critical stage of the deliberations. The motion was granted, the verdict was vacated, and an order for new trial was entered. Defendants Takata and TK Holdings appeal. Finding no abuse of discretion, we affirm.
[¶2.] On April 15, 1999, Natasha Pendergrass (Natasha), age sixteen at the time, was driving her mother's 1996 Geo Tracker to school with her then ten-year-old sister Jessica Russo (Jessica). While traveling on Highway 385 near Hill City, South Dakota, the vehicle crossed the centerline, traveled back into its lane of traffic, slid sideways off of the shoulder of the road, and rolled almost three times down a steep ravine before hitting a tree. Natasha was thrown across the front seat, partially ejected from the vehicle, and pinned under the Tracker. She briefly survived but died at the scene. Jessica was thrown into the back seat but was not physically injured in the crash.
[¶3.] Sharon Russo, individually and as administratrix of Natasha's estate, and Jessica (Plaintiffs) filed suit against General Motors Corporation, Suzuki Motor Corporation, and the seatbelt and buckle manufacturer Takata Corporation and its American subsidiary, TK Holdings, Inc., (collectively "Takata"). Plaintiffs alleged Natasha and Jessica buckled their seatbelts before the crash but that the seatbelts simultaneously unlatched due to inertial forces acting on the buckles during the rollover. General Motors Corporation and Suzuki Motor Corporation settled their respective claims before trial.
[¶4.] Takata, the manufacturer of the model TK-52 seatbelts installed in Russo's Geo Tracker, denied Plaintiffs' claims. Takata proceeded to trial under the theory that the girls did not buckle their seatbelts before the crash, and that Natasha failed to maintain control over the vehicle. Takata also denied that simultaneous inertial unlatching of the model TK-52 seatbelts was possible in real world accidents.
[¶5.] Plaintiffs brought separate claims for negligent design on behalf of Natasha's estate and on behalf of Jessica. Plaintiffs also brought claims for strict liability.
[¶6.] On May 4, 2007, Shawn Flynn (Flynn) and other prospective jurors received a summons and a questionnaire. The summons stated in part: "Do not seek out evidence regarding this case and do not discuss the case or this Questionnaire with anyone." The questionnaire did not ask prospective jurors whether they knew anything about Takata or other lawsuits against it. It also did not ask if jurors had performed any internet searches or other investigation related to the case.
[¶7.] Upon receiving his jury summons, Flynn did not recognize Takata by name or product line and wondered "what they did." He conducted two Google searches on his home computer. His first search term of "Takata" returned its home page that revealed it "was a seat belt and airbag manufacturer." The second search term "TK Holdings" revealed it "was the American subsidiary of Takata."
[¶8.] On July 16, 2007, almost two months after the questionnaires were received and Flynn conducted his internet searches, jury selection began. Jurors were asked during voir dire to "make a mental note of the answers that you would have made had you been asked the questions posed by counsel." Plaintiffs' counsel questioned the panel extensively about their knowledge of the Plaintiffs, whether they were acquainted with the family, and how. Panel members who claimed knowledge or past relationships with the family or their witnesses were asked whether that prior knowledge would affect the panel member's ability to be impartial or listen to the evidence.
[¶9.] Plaintiffs' counsel asked Flynn during voir dire whether any questions posed to other prospective jurors caused him to want to disclose anything. This question was posed before counsel for Takata had asked any questions, any information specific to Takata had been discussed, or questions specific to Takata had been posed. Flynn answered in the negative.
[¶10.] Takata also questioned the panel extensively about past and current relationships with and knowledge of Sharon Russo, Natasha, and Jessica. The only question asked specific to Takata and any prior knowledge panel members might already possess was posed by counsel for Takata: "Okay. Before you got here this morning had anyone ever heard of Takata?" No one, including Flynn responded positively to the inquiry. After concluding Flynn's brief questioning with this general question posed to him and to all prospective jurors, Takata's counsel immediately asked a question of another panel member as to whether he had ever taken apart a car seatbelt or other car component.
[¶11.] After Flynn's voir dire questions had been asked and answered, Takata's counsel asked whether it would surprise anyone that people other than Sharon Russo had claimed that a Takata seatbelt had malfunctioned in a crash. Takata's counsel also asked if jurors would wait until hearing all evidence by both sides on other malfunctions claims before deciding that the Takata seatbelts in the Russo Geo Tracker were defective. Finally, Takata's counsel asked if anyone thought that evidence of other seatbelt malfunction claims automatically meant that the seatbelt in this case was defective. None of the panel members replied in a manner that indicated evidence of other claims would cause the juror to conclude before all evidence was presented that the seatbelt in this case was defective.
[¶12.] The last question posed by counsel for Takata was if there was "anything that we haven't asked you about that you think was important for us to know or important for the [P]laintiffs to know about you and the way that you're approaching your job potentially as a juror in this case that we haven't talked about already? Anything at all?" Again, no one answered in the affirmative.
[¶13.] The trial court then excused all but the twenty-two panel members from which the jury would be chosen. Each side exercised its peremptory challenges. Flynn was named as a jury member and sworn in. Flynn testified during the hearing on the jury misconduct that he did not conduct any additional Google searches on Takata after being sworn in.
[¶14.] Takata filed a motion in limine seeking to exclude or limit evidence on alleged prior seatbelt failures. The trial court determined that such evidence was "relevant solely to the issue of notice regarding the alleged defect" and irrelevant to whether a defect actually existed in the seatbelt involved in this case. It then limited the evidence of prior alleged accidents, claims, and lawsuits to the issue of notice.
[¶15.] Trial lasted nineteen days. Plaintiffs presented evidence that four other Geo Tracker drivers or passengers had experienced seatbelt failures in the past. Some of these witnesses did not press claims against Takata as a result of the alleged seatbelt failures and injuries. Some of the witnesses were uncertain whether their seatbelt was manufactured by Takata, or whether notification given to General Motors was passed on to Takata. Evidence was also presented to the jury that ten other lawsuits had been filed against Takata alleging seatbelt malfunctions. Some of these seatbelt malfunctions were not related to the TK-52. The jury was instructed that evidence of other lawsuits and complaints was "only for the purpose of establishing whether Takata had notice of the alleged defect."
[¶16.] On August 1, 2007, the case was given to the jury. An exchange between Flynn and another juror, Jack Schock (Schock), occurred approximately four and one half to five hours into the deliberations. At that time, the jury was discussing the case in small splinter groups. The discussion was about whether Takata had notice of any defects as it related to the product manufactured by Takata.
[¶17.] Flynn was looking at another juror, Kent Hersey, who asked out loud whether Takata had ever been sued. Flynn responded that he had done a Google search and had learned that Takata manufactured seatbelts and airbags but did not find any lawsuits during his search. Juror Schock told Flynn in a loud and stern voice that jurors were not to take into consideration outside information. Flynn tried to retract what he had said. At that point, jury foreman Michael McMeekin's (McMeekin) attention was drawn to the exchange and the matter was dropped. Three jurors heard the exchange and were aware of what Flynn said: Hersey, Schock, and Adam Holzer (Holzer). The entire exchange lasted approximately three to five minutes. Schock did not ask McMeekin to do anything about the comments, and no report was made to the trial court concerning Flynn's remarks.
[¶18.] After the disclosure of Flynn's Google search, the jury deliberated for approximately another one and one-half hours before reaching a verdict. The jury returned a verdict for Takata on both Natasha and Jessica's claims. Juror Holzer was the lone juror who did not agree with the defense verdict and who voted in favor of the Plaintiffs.
[¶19.] Nineteen days later, Plaintiffs filed a Motion for New Trial alleging juror misconduct. Affidavits from ten jurors were filed with the motion. Schock and Holzer stated in their affidavits that they believed other jurors heard the exchange between Flynn and Schock. Six jurors including McMeekin, Flynn, Angelique Collins, Michael Ogren (Ogren), Kelli Wold and Angie Walter, swore that the jury did not discuss Flynn's remark or his Google search. Collins stated that she heard a remark by Flynn during deliberations that he had done a Google search on Takata. Juror Ogren's affidavit stated he remembered Flynn telling other jurors he had done a Google search of Takata prior to the start of deliberations. Jurors Gail Dedic and Joni Peterson stated in their affidavits that they did not remember any such remarks by anyone. Juror Walter stated she recalled hearing someone say "you can't do that," and asking about the comment. She ...