This unpublished opinion addresses an issue we haven’t seen in a while.

A jury awarded a total of $932,000 in compensatory damages and $750,000 in punitive damages to two plaintiffs who claimed their employer retailed against them after they disclosed information to the FDA about the company’s practices.  (The defendant produces medical diagnostic tests and components.)

The trial was bifurcated under Civil Code section 3295: in phase one the jury decided the issue of liability and whether the defendant acted with malice, oppression, or fraud; in phase two the jury decided the amount of punitive damages.

On appeal, the defendant argued it was entitled to a new trial on punitive damages because the trial court seated an alternate juror during the second phase of trial.  The defendant argued that the use of the alternate juror violated section 3295’s requirement that both phases of trial be decided by the “same trier of fact.”

The Court of Appeal (Fourth District, Division One) rejected that argument, citing an earlier decision in Rivera v. Sassoon.  Rivera held that the use of an alternative juror in phase two does not violate the “same trier of fact” rule because alternate jurors hear the same evidence and are subject to the same admonitions as the regular jurors.

That reasoning is a little unsatisfying, because whatever instructions and evidence the alternate jurors may hear, they do not actually get to vote in phase one.  So when an alternative juror is seated for phase two, the two phases of trial are not literally being decided by the same trier of fact.  No other cases have followed Rivera‘s reasoning on this issue, but as the Court of Appeal pointed out, no cases have challenged that reasoning either.  So Rivera remains good law, at least for now.