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Cancer Patient's Bid for New Trial Cites Simpson Verdicts : Courts: Lawyer charges that jurors in civil suit, which has much lower burden of proof, were wrongly influenced by standard applied in the murder case.

November 01, 1995|TONY PERRY | TIMES STAFF WRITER

SAN DIEGO — Charging that jurors were misled by fellow panelists' comments about the O.J. Simpson case and reasonable doubt, attorneys for an engineer who says he contracted cancer at the San Onofre nuclear power plant filed Tuesday for a new trial in the engineer's damage lawsuit against the plant's operators.

Attorneys for Glen James, 63, of Dominguez Hills say the eight-person federal jury was improperly influenced by jurors who insisted that the burden of proof faced by James' attorneys was the same that prosecutors faced in the Simpson case--proof "beyond a reasonable doubt."

A plaintiff in a civil trial need only prove his or her case "with a preponderance of evidence," a much lower burden.

After a nine-week trial, a jury Oct. 12 rejected James' lawsuit against Southern California Edison, San Diego Gas & Electric and Combustion Engineering.

Initially, the jury voted 5-3 in favor of James, who was seeking compensatory and punitive damages. But after further deliberations, the jury voted 8-0 in favor of the defendants.

Donald Howarth and Suzelle Smith, attorneys for James, who is dying of chronic myelocytic leukemia, allege that juror Genevieve Fitzwater and other jurors who initially favored the defendants convinced their fellow jurors that the burden of proof was the same as in the Simpson murder case.

Their allegation is based on a post-verdict affidavit by a juror who said he favored the plaintiff but was prevailed upon to change his mind.

"The far-reaching implications of the Simpson trial, which has without doubt influenced all aspects of our legal system, are a matter of concern at all institutional levels," said Howarth and Smith in a petition to U.S. Judge Napoleon Jones, seeking a new trial.

Fitzwater, in a telephone interview, denied giving misleading advice to fellow jurors about the burden of proof.

"We definitely talked about O.J. because we had been watching it during every recess," she said. "But there never was any confusion about the difference between 'beyond a reasonable doubt' and 'a preponderance of evidence.' We knew what our judge's instructions were."

The Simpson jury reached its verdicts as James' trial was nearing completion. Jurors in the James trial were given a recess during the trial in San Diego federal court so they could watch the Simpson verdicts on television.

In his signed affidavit, juror Gregory Hafen, a tile installer, said that when deliberations began the talk soon turned to the Simpson acquittal:

"There was talk about the O.J. Simpson verdict and reasonable doubt. When I and other jurors favoring the plaintiffs admitted we had doubts, we were told by those for the defense that they had legal experience for the government, and that since we had doubt, we had to switch our vote and eventually we did so."

Fitzwater works for the Department of Motor Vehicles as an administrative hearing officer. After the verdict, she was interviewed by newspapers and local television and explained that James had simply not proved his case.

In those interviews, she explained that she is not afraid of radiation because she once had life-saving radiation treatments for a thyroid problem. "I'm alive today because of radiation," she told reporters.

Howarth and Smith, based on the affidavit by juror Hafen, allege that Fitzwater made similar statements during deliberations, including an assertion that she received a far higher dose of radiation than James and still did not contract cancer.

The plaintiff's attorneys say this constitutes an improper "vouching for" the defense claims by a juror using personal experiences. But Fitzwater noted that she told attorneys from both sides during the jury selection process that she had had radiation treatment.

Attorneys for Southern California Edison, operators and majority owners of the coastline plant north of Oceanside, declined to comment on the request for a new trial.

In 1994, Edison settled out of court with another client of Howarth and Smith rather than face a retrial on allegations that sloppiness at San Onofre caused the client to develop cancer. The first trial in that case ended with a jury deadlocked in favor of the plaintiff.

"The O.J. Simpson murder trial and closing arguments on the subject of reasonable doubt had a significant influence on this jury and their understanding of the burden of proof required to render a proper verdict," Howarth said of the James trial. "Only a new trial can remedy this total misconception of the law."

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