in Re: Zimmer, Inc., 451 S.W.3d 893

Background

Gustafson sued Zimmer, Inc. for product liability, alleging Zimmer’s distal medial tibial locking plate was defectively designed and caused permanent disability after two implanted plates failed.
Jury trial produced a 10–2 verdict for Zimmer; trial court entered take-nothing judgment. Juror Young was on the panel and voted with the majority.
Gustafson moved for new trial alleging juror misconduct (based on affidavits from the two dissenting jurors) and that the verdict was against the great weight and preponderance of the evidence.
At the new-trial hearing Gustafson argued the affidavits but did not introduce them or present live testimony; Zimmer offered no counter-evidence at the hearing.
The trial court granted a new trial, citing juror misconduct and factual insufficiency; the court of appeals reviewed by mandamus and concluded the trial court abused its discretion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court properly granted new trial based on juror misconduct	Affidavits from two dissenting jurors showed jurors discussed the case before deliberations and a juror (Young) revealed his mother-in-law lost use of her legs and could still work, which prejudiced the verdict	Affidavits alone are not competent evidence at a Rule 327 hearing; movant must present admissible evidence/live testimony to prove misconduct and probable harm	Court held affidavits alone were insufficient; trial court abused discretion in granting new trial based solely on those affidavits
Whether juror nondisclosure during voir dire constituted concealment warranting new trial	Young failed to disclose a family member’s serious disability on the questionnaire/voir dire, which would have led to striking him and changed verdict	Questioning was limited to serious bodily injury; record did not show concealment because nature/cause of mother-in-law’s condition was unknown; plaintiff’s counsel never proved he would have struck Young	Court held record did not support finding of concealment or that nondisclosure probably caused harm
Whether violations of court admonitions (discussing case before close of evidence / without all jurors present) warranted new trial	Jurors discussed merits and a juror’s anecdote outside deliberations; such misconduct likely influenced outcome	Violations of admonitions alone do not establish probable injury; plaintiff must show conduct probably caused a juror to change a vital vote	Court held affidavits did not show probable injury; speculation is insufficient to overturn verdict
Whether the verdict was against the great weight and preponderance of the evidence (factual sufficiency)	Trial court found Zimmer’s own testing admissions uncontroverted and that product failed Zimmer’s validation criteria, showing design defect and causation	Substantial conflicting expert testimony supported Zimmer: testing methodology, identification of weakest point, causation (fatigue due to prolonged loading), and that plate performed as intended; jury could credit Zimmer’s witnesses	Court held trial court improperly substituted its view for the jury; evidence was sufficient for reasonable minds to differ; granting new trial on factual sufficiency was an abuse of discretion

Key Cases Cited

In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012) (mandamus review of new-trial orders and standards for abuse of discretion)
In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746 (Tex. 2013) (trial court must state legally appropriate and specific reasons for new trial; record must support reasons)
In re Whataburger Restaurants, LP, 429 S.W.3d 597 (Tex. 2014) (speculative attorney testimony insufficient to prove juror concealment; compare counsel's actual conduct)
In re Health Care Unlimited, Inc., 429 S.W.3d 600 (Tex. 2014) (Rule 327 protects integrity of jury verdicts; burden to prove misconduct and probable injury)
Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex. 2000) (juror testimony about deliberations generally prohibited; caution about disgruntled jurors seeking to overturn verdict)
Columbia Medical Center of Las Colinas v. Hogue, 290 S.W.3d 204 (Tex. 2009) (review of orders granting new trials and protecting jury factfinding)
Dow Chemical Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (standard for factual sufficiency review: verdict set aside only if contrary to overwhelming weight of evidence)
Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986) (factual sufficiency standard and reviewing conflicts in evidence)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (appellate review must give deference to jury's role as factfinder)