A New Twist on the “Same Nine” Jury Rule

In Kennedy v. Wheeler, 356 Or 518 (2014), the Oregon Supreme Court recently revisited the “same nine” rule for jury decision-making, with a surprising result. The Oregon Constitution provides that “[i]n civil cases three-fourths of the jury may render a verdict.” Article VII (Amended), section 5(7) of the Oregon Constitution. The same rule is found in ORCP 59G(2). But what does “three-fourths of the jury” mean? Conventional jury verdict forms instruct jurors, for example, that the same nine who voted in favor finding negligence and causation must also agree on the amount of economic and noneconomic damages. The Kennedy case upended that conventional wisdom.

In Kennedy, the defendant drove through a stop sign and crashed into another car. The plaintiff made a personal injury claim. The defendant admitted liability. At trial, all twelve jurors agreed that the defendant’s negligence was a cause of damage to the plaintiff. But on the issue of damages, one set of nine jurors agreed on the amount of economic damages, and a different set of nine jurors agreed on the amount of noneconomic damages.

At the conclusion of the trial, the defendant pointed out that there were not the same nine jurors on the questions answered in favor of the plaintiff, and on appeal argued that was not a proper verdict. After a long romp through law of the case and preservation doctrines, Oregon history, and policy considerations,the Oregon Supreme Court concluded that “logic does not require a connection between the amount of economic damages and the amount of noneconomic damages awarded.” The trial court verdict was accordingly upheld.

The lessons of Kennedy are of course not limited to personal injury cases, but should apply to any Oregon jury decision.