• Judge J. Scott Duncan has ruled that juror interviews can be held in Midway Water System case where juror misconduct is alleged.
• The judge ruled to continue despite a call to cancel the interviews based on text messages uncovered between Midway lawyers and two jurors.
• The jurors involved in the text exchange were among those who brought the alleged misconduct of a jury foreperson to attorneys for Midway Water System.

Circuit Court Judge J. Scott Duncan issued an order May 18 stating that juror interviews scheduled as part of an inquiry into whether juror misconduct occurred during the so-called "2021 Midway Water crisis" may proceed as planned.

Attorneys for Morgan and Morgan called on the judge to cancel the scheduled juror interviews after the law firm received an estimated 130 text messages that had gone back and forth between the jurors and lawyers for Cole, Scott and Kissane.

The order said the court will reserve ruling on whether the juror interview process had been tainted by text communications between two jurors and attorneys for Midway Water System "to the extent that plaintiffs have suffered unfair prejudice."

Morgan and Morgan is representing the plaintiffs in the case, 28 Gulf Breeze area residents who were exposed to sewage pumped into their homes for months after crews from Brown Construction mistakenly connected a Midway Water line to city of Gulf Breeze sewage line.

The juror interviews are scheduled to get underway at 2 p.m. May 19 with the times that the two jurors most deeply involved in texting with attorneys will be the last of the six interviewed by Judge Duncan.

The text messages between CSK lawyers and jurors started just hours after the same jurors had participated in handing down a $37 million award on behalf of 28 Gulf Breeze area residents against Midway, the city of Gulf Breeze and Brown Construction.

The lawyers, Richard Fillmore and Laura Puente, had represented Midway Water, which had been ordered to pay 59%, or $22 million, of the final verdict.

Following the verdict Fillmore and Puente called for the judge to conduct juror interviews. They told the court that a group of jurors had approached them on the night the $37 million verdict had been reached and outlined some disturbing actions on the part of the jury foreperson.

Allegations that the juror in question had conducted outside research regarding legal issues relevant to the case and that the research had led to "improper consideration by the jury" as it worked to reach its verdict, appeared most relevant to the judge. He ruled in March that he should conduct the juror interviews.

"The court finds it is compelled to conduct juror interviews," Duncan said in ruling in favor of conducting juror interviews.

But then the text messages came to light and shed a whole new light on the jurors who had approached Fillmore and Puente and how the lawyers had conducted themselves.

"Weird, this tequila tastes like a mistrial."

"My glass of mistrial."

These are among a list of comments purportedly made by the jurors.

The text messages, which included a host of upbeat responses from the Midway attorneys, were exhibits provided in an emergency motion filed May 12 by the Morgan and Morgan law firm.

The motion called for the cancellation of juror interviews, denial of Midway's request for a new trial and sanctions.

"Yes, these are real quotes," the motion, filed by Morgan and Morgan attorney Mitchell Schermer, states. "The text messages between Midway's lawyers and CSK are flagrantly inappropriate and have delegitimized the entire juror interview process."

A hearing on the Morgan and Morgan motion was conducted May 15 with the predominant question to be decided was whether or not to conduct the scheduled juror interviews. Duncan told the several attorneys who presented arguments that he would issue an order on the motion Monday morning.

Schermer argued that Midway's obvious attempts to manipulate the jurors, and in some cases local media, was a strategy adopted by water system administration and that Midway Water System should be punished for its efforts.

"Everything that was done on behalf of Midway was done to further the interests of Midway," he said at the hearing.

He pointed to texts in which the jurors heap praise on the Fillmore, Puente legal team.

"I legit cannot believe I can now say I know the two most badass attorneys around! Y'all=celeb status in my mind," read one.

"These messages make clear that after communicating with CSK, (the jurors) developed vendetta against plaintiffs, are motivated to provide the basis for Midway to be granted a "mistrial," and have developed a close relationship with Richard Fillmore and Laura Puente, who represented Midway throughout the case," the motion states.

It accuses the attorneys of working with the jurors to plot how to obtain a mistrial, coordinating a lunch before and after the jurors signed their affidavits, and discussing meeting up for "big kid drinks."

The texted conversations were occurring as Fillmore and Puente sought to have the two jurors come in to sign affidavits attesting to the misconduct they'd accused the foreperson of committing, according to the motion. Two other among the six jurors who heard the case had also participated to a limited extent in the text chatter.

The motion states that Fillmore and Puente had finally turned the eye-opening text exchanges over on May 7, following extensive efforts by the Morgan and Morgan team to obtain them.

The motion also alleged that, counter to what Fillmore had told Judge Duncan, there had been considerable conversation conducted between Midway counsel and the two jurors who agreed to sign affidavits attesting to what they'd told the attorneys.

It quotes Fillmore from a hearing conducted to decide whether the judge should interview the jurors. Fillmore told the court that in communicating with the jurors after the initial contact outside the courtroom he had told them "it would make us more comfortable if we don't have further communication until we get direction from the court about what is going to happen."

More than 130 total texts were generated between two jurors, Fillmore and Puente, Schermer testified at the Friday hearing.

"To put it mildly, plaintiffs were shocked to see the sheer volume of texts exchanged between these jurors and Midway's counsel and even more astonished by the contents of these messages," the motion said.

"We could have never fathomed in a million years these would be the communications we would receive after Midway told us there had been limited conversations," Schermer said at the hearing. "It seems clear cut to the plaintiff this was tampering with the very people they needed to get Midway to its stated goal of a mistrial in this case."

At the Friday hearing Fillmore defended the texted conversations by saying that when a witness is speaking regarding possible improper conduct, it is good strategy to keep them talking.

At least five texts from one juror and two from the second included speculation that a mistrial in the case, which would benefit Midway Water System greatly, was imminent.

"Current vibe, manifesting a mistrial," another of the group of juror text messages reads. Followed by a response of "YES" from the second juror.

New attorneys speaking on behalf of Midway Water System said at the May 15 hearing that the Water System as an agency had nothing to do with the text messages between attorneys and jurors and should be left out of all consideration of sanctions.

They argue the judge should agree to hold the witness interviews in hopes of getting to the real issue presently swirling around the Midway Water System case, that of whether the jury foreperson had tainted the four-week trial resulting from what was termed the "2021 Midway Water crisis." 

Duncan questioned Schermer about the attorney's request to cancel the juror interviews. He, like Partington, wondered how the court could get to the core issue of juror misconduct if the interviews were not conducted.

Grayton Miller, serving as attorney for Fillmore and Puente, called the text message conversations "more casual than anybody would have liked them to be" but argued the attorneys had done nothing wrong. He, too, called for the scheduled juror interviews to be held.

Schermer contested the reference to the text message conversations as "casual."

"Calling this untoward behavior is like calling an 18-vehicle car wreck on the freeway a minor accident," he said.