Anthony CALDARARO, by his guardian Virginia CALDARARO and Virginia Caldararo, Plaintiffs/Appellants, v. VANDERBILT UNIVERSITY, Defendant/Appellee.
Court of Appeals of Tennessee, Middle Section, at Nashville.
April 25, 1990.
Application for Permission to Appeal Denied by Supreme Court July 30, 1990.
794 S.W.2d 738
We are of the opinion that
Smith also relies on Stinson v. Brand, 738 S.W.2d 186 (Tenn.1987), and Collins v. Binkley, 750 S.W.2d 737 (Tenn.1988). The only issue in either of these cases was whether the plaintiffs had standing to sue an attorney in the absence of privity. They are inapposite to the facts here.
We have considered each of Smith‘s arguments and find them to be without merit. The Contract in this case and the facts clearly show that the relationship between Ticor and Smith was that of principal and agent and not attorney and client.
The one-year statute of limitations set forth in
The judgment of the trial court is affirmed with costs assessed to defendant-appellant Milton W. Smith and the cause remanded to the trial court for the collection of costs, the enforcement of its judgment, and any further necessary proceedings.
TODD, P.J., and CANTRELL, J., concur.
H. Lee Barfield, III and William L. McCarty, Bass, Berry & Sims, Nashville, for defendant/appellee.
OPINION
KOCH, Judge.
This appeal involves a nursing malpractice action against Vanderbilt University. It was filed in the Circuit Court for Davidson County by the wife of a patient who suffered severe brain damage while hospitalized at the Vanderbilt University Medical Center. The jury returned a defendant‘s verdict, and the patient‘s wife has appealed, insisting that the jury foreman‘s misconduct tainted the verdict. We affirm the denial of the motion for new trial because of the lack of competent evidence that either extraneous information or outside influence affected the verdict.
I.
Anthony Caldararo, a chronic, insulin-dependent diabetic, injured his left foot in early July, 1986. He developed a severe infection that went undetected until his wife noticed redness in his foot several days later. Mr. Caldararo was admitted to the Goodlark Hospital in Dickson on July 9, 1986, where his physicians debrided the wound and administered intravenous antibiotics. They were able to stabilize Mr. Caldararo but were unsuccessful in treating the infection in his foot.
On July 18, 1986, Mr. Caldararo was transferred by ambulance to the Vanderbilt University Medical Center to receive hyperbaric oxygen treatments for his foot. His wound was debrided soon after his admission, and he was treated in the hyperbaric oxygen chamber later that evening. He came through these procedures well. The events occurring after he was returned to his room are what gave rise to this lawsuit.
Mr. Caldararo went into cardiopulminary arrest within minutes after being returned to his room. His physicians were able to restore his circulation and breathing within five to ten minutes after being summoned but not before Mr. Caldararo‘s brain was severely injured due to the lack of oxygen. He was completely debilitated following his release from the hospital, requiring his wife‘s constant care and attention.
Mrs. Caldararo sued Vanderbilt in May, 1987, alleging that her husband‘s brain damage had been caused by his attending nurses’ misdiagnosis of his condition after he had been returned to his room and by their failure to render him timely, proper assistance. On November 11, 1988, after eight days of trial, the jury returned a verdict in favor of Vanderbilt University.
Mr. and Mrs. Caldararo filed a motion for new trial insisting that the jury foreman had acted improperly during the jury‘s deliberations. The trial court denied the motion for new trial, and the Caldararos perfected this appeal.1
II.
The Caldararos’ motion for new trial was based on two jurors’ affidavits stating that the foreman read from his trial notes and also described his understanding of how a nurse would examine a patient with a suspected diabetes problem. The trial court determined that the foreman‘s
A.
David Hicks was one of the jurors who decided the Caldararos’ case. He was chosen even though he revealed during voir dire that his wife had been a surgical nurse at Vanderbilt when Mr. Caldararo was a patient there. Mr. Hicks also stated that his wife had received CPR training and that they had occasional discussions at home concerning the resuscitation of surgical patients.
Even though his wife was a registered nurse, Mr. Hicks stated that he could be “extremely fair” because people ought to be responsible for what they do. He also added that he would not necessarily believe a nurse‘s testimony over other witnesses and that he knew he could not discuss the case with his wife while he was serving on the jury.
Mr. Hicks’ fellow jurors elected him foreman. After the trial, two of his fellow jurors signed affidavits stating that Mr. Hicks disregarded the trial court‘s admonitions against reading trial notes aloud and that he made repeated references to the fact that his wife was a nurse. They also stated that Mr. Hicks argued that nurses know to check a diabetic‘s breath for the smell of “acid” or “cucumbers” and thus that the Vanderbilt nurses would have determined whether Mr. Caldararo was breathing even if they thought his difficulties were diabetes-related.
B.
Parties seeking a new trial because of alleged jury misconduct must at the outset satisfy the court that they have admissible evidence on the issue. When the evidence comes from the jurors themselves, its admissibility, prior to January 1, 1990,2 is governed by
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury‘s deliberations or to the effect of anything upon that or any other juror‘s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror‘s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury‘s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror‘s affidavit or evidence of any statement by the juror concerning a matter about which the juror could be precluded from testifying be received for these purposes.
The rule precludes inquiries into the jury‘s deliberative process while allowing juror testimony concerning objective incidents or events that constitute external or extraneous influences on the jury. Martinez v. Food City, Inc., 658 F.2d 369, 373 (5th Cir. Unit A Oct.1981). Thus, it insures that jurors will not be guarded in their deliberations for fear of later scrutiny by others. It also prevents jurors whose views are in the minority from manipulating the system by repudiating the verdict and thereby requiring a new trial. In re Beverly Hills Fire Litig., 695 F.2d 207, 213 (6th Cir.1982).
This court has not had many occasions to apply
The Supreme Court has also recently held that “extraneous information” is information from a source outside the jury. State v. Coker, 746 S.W.2d 167, 171 (Tenn.1987). Thus, intra-jury pressure or intimidation, State v. Hailey, 658 S.W.2d 547, 553 (Tenn.Crim.App.1983), premature jury deliberations contrary to the trial court‘s instructions, State v. Frazier, 683 S.W.2d 346, 353 (Tenn.Crim.App.1984), and speculation about a verdict‘s consequences, State v. Workman, 667 S.W.2d 44, 51-52 (Tenn.), cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984); State v. Estes, 655 S.W.2d 179, 185 (Tenn.Crim.App.1983), have been found to be internal matters that do not involve extraneous information or outside influence.
Like our federal counterparts, Tennessee‘s courts now recognize a distinction between extrinsic and intrinsic influence when reviewing a motion for new trial based on alleged juror misconduct. External influences that could warrant a new trial if found to be prejudicial include: (1) exposure to news items about the trial, (2) consideration of facts not admitted in evidence, and (3) communications with non-jurors about the case. Government of Virgin Islands v. Gereau, 523 F.2d at 149-50; United States v. Blackston, 547 F.Supp. at 1217. Internal influences that are not grounds to overturn a verdict include: (1) discussions among jurors, (2) intimidation or harassment of one juror by another, (3) a juror‘s personal experiences not directly related to the litigation, and (4) a juror‘s subjective thoughts, fears, and emotions. United States v. Norton, 867 F.2d 1354, 1366 (11th Cir.1989); United States v. Krall, 835 F.2d 711, 716 (8th Cir.1987); Carson v. Polley, 689 F.2d 562, 581 (Former 5th Cir.1982); United States v. Duzac, 622 F.2d 911, 913 (5th Cir.1980).
C.
The trial court permitted the jury to take notes during the trial. Recognizing that several jurors had taken notes, the trial court included the following charge in its instructions:
Once you retire to the jury room you may refer to your notes but only to refresh your own memory. You may not read from your notes to your fellow jurors or otherwise inform them of what you have written. The notes may contain errors. They may be understood or taken out of context since they could only pertain to part of the testimony and are not an exact account of what was said by a witness. You are free to discuss the testimony of the witnesses with your fellow jurors but each juror must rely on his or her own memory as to what a witness did or did not say.
After the trial, two jurors signed affidavits stating that Mr. Hicks repeatedly read his notes to the other jurors during their deliberations despite the trial court‘s instructions. One of the jurors also stated that he admonished Mr. Hicks not to read from his notes.
Tennessee has joined the great majority of the states in rejecting the common law rule against jurors taking their notes into
In Watkins v. State, the Supreme Court also discounted concerns that jurors’ notes would be inaccurate and incomplete and that note-taking jurors would be able to exert undue influence over the jurors who did not take notes. On rehearing, the Court reasoned that jurors using notes to refresh their memories were no more prejudicial than jurors with “a more retentive mind.” Watkins v. State, 216 Tenn. at 564, 393 S.W.2d at 149-50. Other courts have agreed, noting that there is no analytical difference between telling other jurors about testimony one remembers and telling them about testimony with the aid of one‘s notes. State v. Collins, 130 Ariz. 280, 635 P.2d 873, 875 (Ct.App.1981).
A juror‘s notes regarding testimony received during the trial have consistently been found to be intrinsic, rather than extrinsic, information. United States v. Bassler, 651 F.2d 600, 602 (8th Cir.1981); Winters v. United States, 582 F.2d 1152, 1154 (7th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 332 (1978). Thus, courts applying
We agree with this interpretation of
D.
Mrs. Caldararo also asserts that she is entitled to a new trial because Mr. Hicks repeatedly told his fellow jurors that he was married to a nurse and also because he opined that the nurses would have checked Mr. Caldararo‘s breathing even if they thought his difficulties were caused by his diabetes. We disagree. Normal jury deliberations that include discussions based upon the jurors’ generalized knowledge and experience do not constitute grounds for overturning a verdict.
Jurors must render their verdict based on the evidence introduced at trial. See Citizens’ St. Ry. v. Burke, 98 Tenn. 650, 653, 40 S.W. 1085, 1085 (1897); Stone v. O‘Neal, 19 Tenn.App. 512, 519, 90 S.W.2d 548, 552 (1936). However, they are permitted to weigh the evidence in light of their own knowledge and experience. See High v. Lenow, 195 Tenn. 158, 168, 258 S.W.2d 742, 746 (1953). Thus, trial courts routinely instruct juries, as the trial court did in this case, that “you are not required to set aside your common knowledge ... as you have the right to weigh the evidence in light of your own observations and experiences.” See 8 Tenn.Prac. Tennessee Pattern Jury Instructions—Civil 1.15.
It is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.
Accordingly, jurors are not required to be completely ignorant about a case, and a verdict will not be overturned because of jurors’ generalized knowledge of the parties or of some other aspect of the case. Government of Virgin Islands v. Gereau, 523 F.2d at 151; Garcia v. State, 777 P.2d 603, 608 (Wyo.1989). A juror‘s personal experiences unrelated to the litigation are not external information. Martinez v. Food City, Inc., 658 F.2d at 374; United States v. Duzac, 622 F.2d at 913.6 However, a juror‘s personal experiences directly relating to the parties or events directly involved in the litigation may be. Hard v. Burlington Northern R.R., 870 F.2d 1454, 1462 (9th Cir.1989).
None of the statements attributed to Mr. Hicks indicate that he had any prior or extraneous knowledge of the parties or of the events that gave rise to this suit. At most, he claimed to have some specialized knowledge about diabetics and proper resuscitation procedures, presumably because he was married to a nurse. This is not the type of extraneous information that requires us to overturn a verdict.
Mr. Hicks disclosed his wife‘s profession during voir dire, and both parties inquired freely into his prior experience with diabetes and resuscitation procedures. There is no evidence that Mr. Hicks was untruthful during the voir dire questioning or that he ignored the trial court‘s admonition not to talk about the case with his wife.7 The jurors were properly instructed to base their decision on the evidence presented and were properly admonished to base their understanding of the evidence on their own memories. Mr. Hicks’ comments do not involve extraneous information and were made during the jury‘s deliberations. Accordingly, the affidavits concerning Mr. Hicks’ statements are incompetent and do not provide grounds for overturning the verdict.
III.
We affirm the trial court‘s denial of Mrs. Caldararo‘s motion for new trial and remand the case for whatever other proceedings may be required. We also tax the costs of this appeal to Virginia Caldararo and her sureties for which execution, if necessary, may issue.
TODD, P.J., concur.
CANTRELL, J., files separate dissent.
CANTRELL, Judge, dissenting.
I respectfully dissent from the opinion of the majority.
It is my opinion that the statements of the jury foreman were both extraneous and prejudicial. The affidavits of the other jurors are, therefore, admissible and the cause should be remanded for a new trial.
The plaintiff‘s theory for the recovery of damages for the injuries to Mr. Caldararo was that the attending nurses negligently delayed efforts to resuscitate Mr. Caldararo because they thought he was suffering from a problem related to his diabetes. Eyewitnesses testified that the nurses reacted to Mr. Caldararo‘s symptoms by obtaining chemstrips and lance sets with which to check the patient‘s blood glucose level.
I do not see how we could call that type of information generalized knowledge. In my opinion it amounts to unsworn expert testimony.
I would then adopt the objective test suggested by some of the Federal courts, see United States v. Brooks, 677 F.2d 907 (D.C.Cir.1982), and in our prior unpublished opinion of Michetti v. Arrowsmith (Tenn. Ct.App., filed in Nashville, Aug. 30, 1989). The question then becomes one for the court to answer: Would a reasonable juror be prejudiced or influenced by the extraneous evidence?
In this case, I would decide the issue in favor of the plaintiff and remand the case for a new trial.
Notes
Section 56-35-131 provides as follows:
Additional requirements for license or certificates—Violation of agreements.—(a) Except as provided by §§ 56-35-201 and 56-35-204, the commissioner shall refuse to issue any new license or certificate to any title insurance company, title insurance agent, or title insurance agency, unless the applicant therefor shall agree to abide by any one (1) of the following terms and conditions:
- The gross operating revenues for any fiscal year attributable to the placement or issuance of policies or contracts of title insurance derived from all sources of controlled business shall not exceed forty percent (40%) of the gross operating revenues of such company, agent, or agency;
- The company, agent, or agency will be operated as a subsidiary of a financial institution with its primary business being that of accepting deposits and making real estate loans and subject to regulation, inspection, and supervision of the United States government or an agency thereof; or
- The title insurance agency or agent is to be operated by an attorney, a single partnership of attorneys, or a single professional corporation of attorneys as an ancillary part of the general practice of law.
(b) Any violation of the terms and conditions of such agreement shall serve as grounds for the commissioner to suspend or revoke the license or certificate to which the agreement pertains and to assess a civil penalty as provided by § 56-35-127.
Id.
The Court of Criminal Appeals held recently that a juror‘s statement that he did not vote his convictions because another juror opined that “a shot naturally travels upward when it enters the body” was incompetent because it did not involve external information or outside influence. State v. Higdon, App. No. 89-41-111, 1990 WL 26772 (Tenn.Crim.App. Mar. 15, 1990).