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Second trial set for man paralyzed in crash

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Following accusations of juror misconduct and judicial bias, a lawsuit brought by a man paralyzed when his pickup hit a retaining wall will go to trial again -- with a new jury and a different judge.

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A second St. Croix County civil trial has been set for February 2014 in the lawsuit filed by William Blaine Sandoval, 63, New Richmond, against Ayres Associates of Madison and its insurer, Continental Casualty Company.

Last September a jury found that Sandoval, who was not wearing a seatbelt, was 100 percent responsible for injuries he suffered Aug. 3, 2010, when his pickup apparently hydroplaned, left the road and hit a retaining wall. The jury determined that Ayres Associates of Madison, which did the design work when the St. Croix County rebuilt County Road I, was not at all negligent.

While the jury found that $4 million would fairly compensate Sandoval for pain and suffering and set $500,000 as the value of loss of consortium for his wife, Jacki Gordon, neither would receive anything because Ayres was not found responsible for the accident.

Responding to a motion from Sandoval's attorneys, Judge Eric Lundell found that several instances of jury misconduct -- including three brief Facebook comments posted by a juror during the trial and outside information offered by another juror in the jury room -- justify a new trial.

Then in another twist, Ayres Associates and its insurance company asked for a new judge, claiming Lundell's comments to the jury after the first trial offer proof that he isn't impartial in this case.

Following the trial, Sandoval attorneys, C.M. Bye and Steven Goff, asked for a new trial. They said at least two jurors, a man and a woman, were "strongly biased."

The lawyers offered evidence that the man, Corey Bruneau, was sleeping during testimony. The attorneys also provided copies of Facebook posts showing that -- in violation of the judge's instructions forbidding computer communications during the trial -- Bruneau used his mobile phone to inform his friends that he was on jury duty. He told one friend on Facebook, "I did fall asleep; I got a kick in the leg (from another juror)."

Also, according to the attorneys, before being chosen for the jury, Bruneau and Emily Gregerson failed to reveal their lack of impartiality and their negative attitudes toward injured parties.

Two fellow jurors, Rebecca Hailey and Jill Grant, who dissented on all the jury questions, provided very similar affidavits alleging misconduct.

In her affidavit, Hailey said she saw Bruneau sleeping "during much of the trial" and then lobbying to be chosen jury foreman.

"Corey Bruneau was extremely adamant that injured persons such as the Sandovals do not deserve anything, that it is wrong that people can now sue anybody for anything, and that there are plainly and simply too many lawsuits," alleged Hailey.

She said Gregerson, who works for 3M, said that if a big company is responsible for injuring someone, it will settle rather than let the case go to trial.

"(Gregerson) stated that the fact that this case had gone to court without settling was evidence that Ayres did not do anything wrong, because otherwise they would have settled it," claimed Hailey.

After returning its verdict as to negligence, the jury convened again to assign dollar amounts for damages suffered by Sandoval and his wife. They took less than nine minutes to determine those figures.

Hailey said the process went so fast because the foreman told jurors to each write down the figure they felt was fair and reasonable and he would divide by 12 for a number to give the judge. Hailey said the total came to $40.5 million and she suggested that if the number was going to be so random, it should be $48 million to make dividing easier.

"That's what we did," said Hailey, who also said she saw both Bruneau and Gregerson write zero for the amount of damages for each Sandoval and Gordon.

In a responsive affidavit, Bruneau admitted updating his Facebook in the courthouse parking lot on the first three days of the trial but said he didn't mention any specifics of the case. He said he was joking about falling asleep and doesn't recall sleeping.

Bruneau said he did remember that on the first day of the trial, he was breathing loudly through his nose because his adenoids need to be removed and the juror next to him kicked him.

"I determined my verdict based on the evidence that if Mr. Sandoval had not driven off the road, his injuries would not have occurred," claimed Bruneau, who said he changed his mind during the trial.

Gregerson said her remark that a large company "doesn't fight trials unless it knows it has a chance to win" was made only once and was not offered as evidence but as her opinion.

"My comment was only an opinion based on second-hand stories that I had heard throughout my adult life," she claimed.

In reaching his decision about ordering a new trial, Lundell said he had to ask himself: "At what point must a judge stop ignoring juror misconduct and do something about it?"

He said that while each instance of misconduct might not be enough to justify a new trial, "the cumulative effect of the collective misconduct of a few jurors in this case," provides enough evidence that Sandoval didn't get a fair trial.

Judge's remarks

In asking that a different judge preside over the second trial, defense attorney Michael D. Hutchens offered affidavits from Gregerson and the jury foreman. Both reported that when Lundell met with jurors privately after the trial, he said if he had been making the decision, he would have made sure Sandoval got some money.

"We were taken aback when he told us that he would not have decided the case the way we did. He would have gone the other way," said jury Foreman Ken Eno. "He told us that a verdict against Ayres would not have been a big deal for them. He said that it would not have hurt Ayres to pay a verdict in favor of Mr. Sandoval."

Gregerson said the impression the judge left was that Sandoval should receive some compensation and that money wasn't an issue because Ayres had insurance.

"While (Lundell) has not specifically declared (he) cannot be impartial toward the defendants, the statements made to the jurors after they reached their verdict, all but announce that this is indeed the case," argued Hutchens. He said Lundell's comments to jurors left "the unmistakable impression" that Ayres should pay "simply because it has insurance proceeds available to it and because it 'made a lot of money off the county.'"

As of press time, Lundell hadn't returned a phone call asking for comment.

A judge shouldn't recuse himself simply because of a "subjective belief" that he was partial to one side, argued Sandoval's attorney Steve Goff.

"A defendant is denied due process only if the judge, in fact, treats him unfairly....," Goff argued. He said an appearance of a judge's impartiality or speculation as to impartiality isn't enough to support allegations that the trial was not fair.

Lundell has transferred the case to Judge Howard Cameron.

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Judy Wiff
Judy Wiff has been regional editor for RiverTown’s Wisconsin newspapers since 1996. She holds a bachelor’s degree in journalism and sociology from UW-River Falls. She has worked as a reporter for several weekly newspapers in Wisconsin.
(715) 426-1049
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