Sharon PRATT, Mother, Michael Nesmith, Sr., Father, Individually and in Their Own Right as Parents and Natural Guardians for Michael Nesmith, Jr. v. ST. CHRISTOPHER‘S HOSPITAL, Ronald Souder, M.D., Margaret Fisher, M.D., Covenant House Health Services, Covenant House, Inc., Germantown Hospital Emergency Physician(s) Associates, Inc., Stephen Raphael, M.D. and Nellie Novak, M.D.
Supreme Court of Pennsylvania
Decided Jan. 19, 2005
866 A.2d 313 | 524 Pa. 524
Argued Oct. 18, 2004.
Sharon PRATT, Mother, Michael Nesmith, Sr., Father, Individually and in Their Own Right as Parents and Natural Guardians for Michael Nesmith, Jr. v. ST. CHRISTOPHER‘S HOSPITAL, Ronald Souder, M.D., Margaret Fisher, M.D., Covenant House Health Services, Covenant House, Inc., Germantown Hospital Emergency Physician(s) Associates, Inc., Stephen Raphael, M.D. and Nellie Novak, M.D.
Appeal of: Ronald Souder, M.D. and Margaret Fisher, M.D.
William F. Sutton, Esq., Philadelphia, for St. Christopher‘s Hospital for Children.
Gayle Lewis, Esq., Philadelphia, for Sharon Pratt and Michael Nesmith, Sr.
OPINION
SAYLOR, Justice.
Appeal was allowed in this case to consider the application of the “no-impeachment rule,” governing the admissibility of post-verdict testimony by jurors.
The civil case underlying the appeal is a medical malpractice action in which Appellees, on behalf of their minor son, sought to recover monetary damages from Appellants based on an alleged failure on their part to timely diagnose a rare but pernicious infection, which ultimately led to brain damage.1 At the conclusion of trial, the jury returned a defense verdict, with polling confirming that ten of the twelve jurors supported the verdict. See
The court provided copies of the letter to counsel. Plaintiff‘s counsel then filed post-trial motions, nunc pro tunc, which the trial court permitted,3 limited solely to the question of whether a hearing and/or a new trial was warranted on account of the allegation of taint relative to the jury deliberations.
Subsequently, the trial court denied the post-trial motions without a hearing and entered judgment on the verdict. In its opinion under Appellate Procedural Rule 1925(a), the court relied on Carter by Carter v. United States Steel Corp., 529 Pa. 409, 604 A.2d 1010 (1992) (plurality), and Orndoff v. Wilson, 760 A.2d 1 (Pa.Super.2000), as reflecting a common law “no-impeachment” rule precluding jurors from testifying about their mental processes connected with deliberations. Accord Pittsburgh Nat‘l Bank v. Mutual Life Ins. Co. of NY, 493 Pa. 96, 100, 425 A.2d 383, 385 (1981) (“Pennsylvania follows the majority rule in providing an evidentiary prohibition against the admissibility of testimony of a discharged juror as to what occurred among jurors in the jury room.“). The court recognized that this general precept does not foreclose jurors from testifying about the fact or existence of outside influences, see Carter, 529 Pa. at 415, 604 A.2d at 1013 (“[I]n order to accommodate the competing policies in this
On appeal, in a divided opinion, the Superior Court determined that the trial court abused its discretion by failing to conduct a hearing and reversed and remanded for accomplishment of the hearing. See Pratt, 824 A.2d at 305. Writing for the majority, President Judge Del Sole agreed with the trial court‘s recitation of the governing standards, namely, the prevailing no-impeachment rule foreclosing, as a general proposition, juror testimony concerning deliberations, and the exception permitting post-verdict testimony regarding the fact or existence of extraneous influences that might have prejudiced the deliberations (but not the effect that such influence may have had on the deliberations). President Judge Del Sole also emphasized that the testimony that Appellants sought to develop by way of a hearing fell squarely within the exception. See id. at 302 (“Testimony that jurors sought outside information regarding the standard of care to be followed by health professionals and discussed it during deliberations is not testimony of the jury‘s reasoning processes; rather it is testimony of overt conduct.“). The majority departed from the trial court, however, on the question of potential prejudice arising from the alleged, extraneous communications. In this regard, the Superior Court majority relied on Carter‘s advancement of an objective test for prejudice, taking into account the facts and circumstances of the particular case and focusing on how a typical juror would be affected by the influence. See id. at 303 (citing Carter, 529 Pa. at 420-22, 604 A.2d at 1016–17). Further, the majority endorsed Carter‘s suggested guidelines entailing consideration of:
(1) whether the extraneous influence relates to a central issue in the case or merely involves a collateral issue; (2) whether the extraneous influence provided the jury with information they did not have before them at trial; and (3) whether the extraneous influence was emotional or inflammatory in nature.
Applying these considerations to the present circumstances, President Judge Del Sole framed the central question that was before the jury as whether Appellees were negligent in failing to timely order a CAT scan. See id. at 303, 824 A.2d 299. Since Juror 10 asserted that there had been improper juror solicitation of extraneous information going directly to this central issue, see supra note 2 (reflecting Juror 10‘s description of the outside information gathered by jurors as pertaining to “whether a CAT scan should have been performed at the same time and whether this was the [appropriate] standard of care“), the majority concluded that potential prejudice was implicated under prong one of the Carter guidelines. With regard to Carter‘s prongs two and three, the Superior Court majority recognized that, during trial, both sides presented extensive expert testimony relative to the question of whether and when a CAT scan was implicated. The majority found it significant nonetheless that the jurors were alleged to have obtained extraneous information from individuals in whom they placed particular trust, explaining:
The jurors, by seeking an opinion from an outside source, sought an opinion from someone whom they found to be personally credible, on the core issue in the case. In essence, the jurors at issue sought out a third party‘s opinion on which testimony presented at trial to accept. Human experience dictates that an individual will more heavily weight an opinion from an individual known to them, than an opinion given by a complete stranger. In this case, the two jurors in essence sought out their own expert testimony, which necessarily served to support one of the two sides at trial.
Pratt, 824 A.2d at 305. President Judge Del Sole also distinguished decisions of this Court and of the Superior Court which have found no prejudice on the ground that the information improperly obtained by jurors already had been presented at trial, because, in the present case, the jurors purportedly consulted outside sources for opinions bearing on the trial
Judge Cavanaugh dissented, as he would have affirmed the decision of the trial court based on its reasoning. See Pratt, 824 A.2d at 305 (Cavanaugh, J., dissenting).
Presently, in support of their position that the Superior Court erred in requiring further proceedings to determine whether the verdict should be disturbed, Appellants’ essential arguments parallel the trial court‘s reasoning. Appellants also contend that the Superior Court‘s reliance on the lead opinion in Carter was misplaced, since that opinion failed to garner a majority vote, and therefore, does not represent binding precedent. While Appellants appear to accept Carter‘s basic propositions in terms of its framing of the no-impeachment rule and exceptions, their principal complaint concerning Carter centers on the objective test for prejudice. According to Appellants, this approach requires unwarranted and unprincipled speculation on the part of the trial judge. See, e.g., Brief of Appellants at 14 (“Such a process is only arguably better than reading tea leaves.“). In this regard, Appellants highlight that no jury composed of ordinary human beings ever reaches a verdict solely based on the evidence presented in the courtroom, since each juror bring his or her own experiences, knowledge, and beliefs, some of which may be faulty, to bear on the deliberations. Accord State v. Kociolek, 20 N.J. 92, 118 A.2d 812, 816 (1955). Without subjective information (which is simply not available in light of the no-impeachment rule), Appellants posit that a prejudice assessment is inherently a
Appellees, on the other hand, while frankly acknowledging the proscription against juror testimony concerning subjective aspects of decision making, observe that the exception to the no-impeachment rule, by its very nature, is directed at information that was not subjected to judicial screening for admissibility or tested by the adversary process. According to Appellees, such information inherently raises the potential for prejudice, and an evaluative assessment is therefore implicated, which must begin with a hearing to develop, in the first instance, details concerning the precise character of the outside information infecting the deliberations. Once this is accomplished, Appellees contend that the trial judge must engage in a thoughtful comparison of the information in relation to the evidence presented within the courtroom. Accord State v. McKnight, 2000 WL 122682, at *3, 2000 Wash. App. LEXIS 188, at *7 (Wash.Ct.App.2000) (“In assessing
Applying these principles to the present circumstances, Appellees highlight that Juror 10‘s letter, at a minimum, gave clear notice of potentially prejudicial discussions between several jurors and outside medical professionals, which discussions related to the central issue debated in this case (i.e., the standard of care to be exercised by defendants). Parallel to the assessment of the Superior Court majority, Appellees also emphasize that the extra-record input is alleged to have been obtained from trusted individuals having great potential influence over juror decision making. See Brief of Appellees at 14 (“[I]t stems to reason that any opinions from the jurors’ friends, family, and relatives engaged in the medical profession pertaining to which expert opinion to believe were never covered in court and is, on its face, prejudicial.“). Since the trial court failed to investigate what extraneous information the jurors had garnered, Appellees argue that it simply was unable to make any rational determination concerning the presence or absence of bias or prejudice so as to ensure that Appellees had received a fair trial. In particular, Appellees criticize the trial judge‘s holding that the subject matter of the extraneous communications was “well covered by both sides at trial,” since this decision lacked the predicate of an informed factual comparison. Additionally, Appellees posit that the inaction by the trial court, coupled with the several-year delay associated with the appeal process, has now effectively foreclosed any reasonably accurate assessment, given the fading of memories that occurs with the passage of time. Therefore, it is contended that the only effective remedy that remains is a new trial.
As both parties recognize, the general framework concerning the admissibility of post-verdict juror testimony is fairly well settled and is, in fact, embodied in
Upon an inquiry into the validity of a verdict, ... 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 in reaching a decision upon the verdict or concerning the juror‘s mental processes in connection therewith, and a juror‘s affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury‘s attention or whether any outside influence was improperly brought to bear upon any juror.
Where ... jurors’ testimony goes, not to the motives or methods or processes by which they reach the verdict, but merely to the existence of conditions or the occurrence of events bearing upon the verdict, that basis of policy [i.e., protection of deliberative processes] does not exist, and this whether the condition happens or the event occurs in or outside of the jury room. Evidence of the actual effect of the extraneous matter upon jurors’ minds can and should be excluded, as such evidence implicates their mental processes, but receiving their evidence as to the existence of the condition or happening of the event, particularly when the consequences are governed according to whether capacity for adverse prejudice inheres in the condition or event itself supplies evidence which can be put to the test of other testimony (and thus sound policy is satisfied) and at the same time the evidence can serve to avert, as here, a grave miscarriage of justice, which is certainly the first duty of a court of conscience to prevent if at all possible.
Kociolek, 118 A.2d at 816; United States v. Moten, 582 F.2d 654, 664-65 (2d Cir.1978) (explaining that the general exclusionary principle “yields to the need for juror testimony in situations where there is a reduced potential for harassment or embarrassment of jurors, such as when evidence concerning objective facts is sought“). See generally United States v. Hall, 85 F.3d 367, 370 (8th Cir.1996) (“The familiar rubric that a juror may not impeach his own verdict ... is a gross oversimplification.“); Annotation, Admissibility, in a civil case, of juror‘s affidavit or testimony relating to juror‘s misconduct outside jury room, 32 A.L.R.3d 1356 (1970) (“Perhaps the most salient and striking feature of the general [anti-impeachment] rule is that despite the sweeping simplicity of the statement, the general rule is neither so generally applied nor are jury verdicts so generally unimpeachable in cases of jurors’ evidence of misconduct outside the jury room“).
The primary difference between the approaches of the Superior Court majority and the trial court pertain to the prejudice dynamic.10 The trial court essentially adopted Appellants’ position that the inability to conduct a post-verdict inquiry into the mental processes of the jurors forecloses a meaningful prejudice assessment; the appellate tribunal, on the other hand, found that the trial court abused its discretion by failing to hear juror testimony and evaluate it according to the objective test for prejudice advanced in Carter‘s lead opinion.
On this point as well, we agree with and adopt President Judge Del Sole‘s analysis, which strikes the most appropriate balance between the competing policies of fairness and finality that are involved. Appellants’ arguments and the trial court‘s reasoning essentially would put verdicts beyond effective reach, even in instances in which jury deliberations are alleged to have been tainted by outside sources. Such irregularities, however, are verifiable without undue inquiry into the actual deliberative processes of jurors. Thus, as other courts have noted, the degree of insulation advocated by Appellants is unnecessary to serve the salient policy objectives and leaves too great a possibility for substantial irregularities and injustices to go uncorrected. See Hall, 85 F.3d at 370.
Since inquiry into the actual, subjective mental processes of the jurors is not permitted, the limited-scope, objective inquiry furnishes the most reasonable methodology for evaluating the impact of extraneous information and outside
We also reject Appellees’ invitation to direct a new trial at this juncture, thus obviating the hearing. In this regard, it is noteworthy that Appellees did not file a cross-petition for allowance of appeal, and therefore, it is questionable whether such relief is presently available to them. In any event, most of the decisions cited by Appellees in furtherance of their attempt to circumvent a hearing concern instances in which extraneous information and/or outside influence was discovered prior to the entry of the verdict, and the trial court erred in failing to conduct an adequate investigation at that juncture. See, e.g., Waldorf v. Shuta, 3 F.3d 705 (3d Cir.1993); United States v. Resko, 3 F.3d 684 (3d Cir.1993); Government of Virgin Islands v. Dowling, 814 F.2d 134 (3d Cir.1987). In the post-verdict setting, we believe that the interest in finality weighs substantially in favor of evidentiary development and factual determination, with the burden of proof allocated to the party contesting the verdict, even in the face of the passage of time that has occurred in the present circumstances.
Finally, our only difference with the Superior Court majority pertains to its directive that prejudice is to be deemed established on remand in the event that Juror 10‘s allegations are confirmed as such. As noted, further development regarding at least the character and extent of any information conveyed, and whether recipients were majority or minority jurors, is essential to even-handed application of the objective inquiry.
In summary, in instances of post-verdict allegations of extraneous information and/or outside influence affecting jury
The order of the Superior Court is affirmed, with the further proceedings to follow to be accomplished in accordance with this opinion. Jurisdiction is relinquished.
Justice NEWMAN files a dissenting opinion.
NEWMAN, Justice, dissenting.
The citizen jury is the bedrock upon which the edifice of the American System of Justice is constructed. Thomas Jefferson, its chief proponent, described the jury system as “the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.” 15 Papers of Thomas Jefferson 269 (1958). Justice Scalia, in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2539, 159 L.Ed.2d 403 (2004), noted:
Just as suffrage ensures the people‘s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. See Letter XV by the Federal Farmer (Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed.1981) (describing the jury as “secur[ing] to the people at large, their just and rightful controul in the judicial department“); John Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of John Adams 252, 253 (C. Adams ed. 1850) (“[T]he common people, should have as complete a control in every judgment of a court of judicature” as in the legislature)....
Two well-established principles of law govern this case. First, and foremost, is the longstanding rule that courts must protect jurors and their verdicts from unwarranted intrusions. The rule that jurors may not impeach their verdict was formulated to discourage harassment of jurors by losing parties, encourage free and open discussion among jurors, reduce incentives for jury tampering, promote verdict finality, and maintain the viability of the jury as a judicial decision-making body. Carter by Carter v. U.S. Steel Corp., 529 Pa. 409, 604 A.2d 1010, 1013 (1992). The reluctance to probe into jury decision-making must give way only in the face of a showing sufficient to undergird genuine doubts about impartiality. Unlike some of our sister states,1 Pennsylvania has never adopted a per se rule finding prejudice whenever there is juror misconduct. Moreover, it is axiomatic that inquiry into the motives of individual jurors and conduct during deliberations is never permissible; any investigation must focus solely on
The second relevant proposition of law is that trial judges have broad discretion in determining how to respond to allegations of extraneous influence on jurors. Hostetler v. Kniseley, 322 Pa. 248, 185 A. 300, 302 (1936). The rule is justified by the fact that the trial judge is in a better position than the appellate court to decide the question of prejudice because of his or her first-hand knowledge of the relevant facts and evidence. When jurors conduct their own experiments or seek advice from those outside the presence of the court, the result is the introduction of facts that have not been subject to the rules of evidence or to cross-examination by either party. This is broadly defined as juror misconduct. However, when allegations of misconduct arise, it is the responsibility of the trial court to determine if the misconduct resulted in a reasonable possibility of prejudice. Carter, 604 A.2d at 1016.
When viewed in the light of the two longstanding principles of law applicable to the case sub judice, the request set forth by the appellant physicians cannot stand. Juror No. 10‘s oblique reference to a claimed prejudicial effect of an outside influence upon the jury‘s deliberation sheds no light on the ultimate question of potential prejudice. While the letter from the juror is signed, it lacks the indicia of authenticity and the reliability of an affidavit. In previous situations in which an evidentiary hearing was held, allegations of juror misconduct have been supported by affidavits prior to the hearing. See, e.g., Pittsburgh National Bank v. Mutual Life Ins. Co., 493 Pa. 96, 425 A.2d 383 (1981). In this case, the letter does not indicate which jurors sought the extraneous information,
Although a criminal, not a civil, case, Commonwealth v. Pierce, 453 Pa. 319, 309 A.2d 371 (1973), is instructive. In Pierce, the defendant sought a new trial after learning that a juror took notes of testimony that were utilized during deliberations. The defendant submitted the affidavit of a discharged juror stating that notes of testimony were taken and utilized during deliberations. In denying the request of the defendant for a new trial, this Court recognized that Pennsylvania law prohibits a juror from using notes in the jury room. Nevertheless, we refused to accept the testimony of a discharged juror pursuant to the no impeachment rule. In addressing the affidavit of a discharged juror this Court specifically stated that the affidavit “was not competent evidence to show that notes were used in the jury room.” Id. at 372.
In Pittsburgh National Bank, supra, this Court refused to permit the appellants’ post-trial questioning of a juror who, during jury deliberations, had visited a car dealership and examined an automobile similar to the vehicle driven by the decedent at the time of a fatal crash. That juror had communicated his findings to the jury. This Court concluded that, even though the juror had acted improperly, he would not be subject to post-trial questioning. In so finding, we relied on our decision in Friedman.
The case sub judice presents the same scenario we faced in Friedman and Pittsburgh National Bank, supra. In all three instances, jurors conducted their own investigations and communicated the results to their fellow jurors. In both Friedman and Pittsburgh National Bank, this Court concluded that, while we do not condone the misconduct of the jurors, there was insufficient evidence of prejudice to proceed further.
A few other jurisdictions, except those that consider any juror misconduct or outside influence prejudicial per se, have examined the issue and require a strong showing of prejudicial conduct. For example, in Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993), the Arkansas Supreme Court heard a case in which the trial judge denied a motion for a new trial based on two jurors’ unauthorized view of an accident scene. Juror affidavits indicated that two unnamed members of the jury went to the scene of the accident, performed an experiment, and reported their observations to the jury during deliberations. The experimenters said that, because they were able to stop their automobiles before striking the defendant‘s forklift that the plaintiff should have been able to do so as well. The Diemer court was especially troubled by the fact that the affidavits failed to name the jurors or give any details of their experiment, leaving the trial judge to speculate as to what the jurors did and whether it resulted in a reasonable possibility of prejudice, not unlike the instant matter. In finding that there was no abuse of discretion in the conclusion of the trial judge that no reasonable possibility of prejudice existed, the court found that the affidavits were insufficient to establish an evidentiary basis for the allegations of misconduct. See also Norton v. Great Northern Railway Co., 78 Mont. 273, 254 P. 165 (1927); Paul v. Salt Lake City Railroad Co., 34 Utah 1, 95 P. 363 (1908).
In Cassamasse v. J.G. Lamotte & Son, Inc., 391 Mass. 315, 461 N.E.2d 785 (1984), a trial court was presented with a Motion for a New Trial based on a post-verdict affidavit of juror misconduct. The affidavit noted that an extraneous matter “caused the deliberations of the jury to be improperly reported” and the Motion requested a hearing by the court to question one or more jurors. Id. at 787. The court denied the motion. On appeal, the Supreme Judicial Court of Massachusetts held that “the plaintiffs failed to give the judge
In Foster v. Camelback Management Co., 132 Ariz. 462, 646 P.2d 893 (Ariz.Ct.App.1982), the trial court received a letter indicating that one or more of the jurors had produced extrinsic evidence not adduced at trial that was detrimental to the plaintiff in the case. The trial court denied the motion for a new trial. The Arizona Court of Appeals determined that, even though the juror‘s letter was unsolicited, it was neither sworn testimony nor an affidavit and would not suffice to call into question the jury‘s verdict on the grounds of misconduct. The court stated that such extraordinary relief should not be granted upon evidence other than testimony or affidavit. In Ten Hagen v. DeNooy, 563 N.W.2d 4, 10 (Iowa Ct.App.1997), the court held that the extraneous information obtained by jurors was supported by the testimony of two witnesses at trial and no new trial was warranted. This should have been the decision reached by the Superior Court in this matter. These cases demonstrate that a hearing is not required every time a juror has been placed in a potentially compromising situation. It is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.
With regard to the case before us, there is no first-hand knowledge contained in this letter; it consists entirely of second-hand information and impressions coupled with the assumption that whatever information was provided could have influenced some juror or jurors in some way. The trial judge noted that, if he were to provide a hearing, there was little testimony from Juror No. 10 that would add anything of substance. Jurors may not testify as to discussions that occur in the jury room. I believe that accepting the content of this letter as establishing sufficient grounds for a hearing will ultimately undermine the finality of verdicts. No verdict will
I cannot agree with the Majority that this letter is sufficient to prolong the process of this case even further. Instead, I would hold that Juror No. 10‘s letter contains insufficient information of the extraneous influence to which the jury was exposed. I do not believe that this Court is able to say with any degree of assuredness that there was a reasonable likelihood of prejudice. Accordingly, I would reverse the Superior Court and affirm the decision and Order of the Court of Common Pleas of Philadelphia County.
Notes
I served as Juror No. 10 in a medical malpractice trial in your courtroom that began on January 29, 2001 and ended with a verdict in favor of the defense on February 7, 2001. I am distressed by the conduct of some of my fellow jurors and feel an obligation to tell you what occurred.
I want to stress that I believe that my fellow jurors worked hard to reach what they believed was a proper verdict, but I think that they relied inappropriately on information they gathered from sources outside the courtroom to reach that verdict. Beginning during the trial and continuing through deliberations, some of the jurors reported that they had spoken to various people such as relatives and friends involved in the medical profession and their own personal physicians to get their opinions regarding whether a CAT scan should have been performed earlier, whether a meningitis test and CAT scan
should have been performed at the same time and whether this was the standard of care in 1989. Two of the jurors reported conversations with multiple medical professionals that occurred on the first evening of deliberations. I believe that the opinions these jurors obtained from the outside sources influenced the verdict because the jurors discussed these outside opinions during deliberations and stated that their conversations with the medical professionals either confirmed the jurors’ own opinions or changed the jurors’ minds. I have been troubled about the manner in which the verdict was reached because I am aware that jurors are supposed to decide cases based only upon the evidence that comes in during trial and not conduct their own research into the issues presented. I regret that I did not report this to you during the trial.R.R. at 17a.
See, i.e., Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346 (1999) (refusing to grant new trial where allegations of juror misconduct occurred eight years after verdict).The issue raised in the letter involved when the CAT scan should have been performed to determine the existence of the brain infection. There was ample testimony, presented at trial, by experts for both the plaintiffs and defendants, as to what period in time during the child‘s treatment, it was reasonable to order the CAT scan. Under the case law cited, if the subject of the so-called outside influence amply had been covered at trial, then any information a juror might have acquired outside the trial itself is irrelevant and moot.
Pratt v. St. Christopher‘s Hosp., 1991 Nos. 1576, 3126, 3446, Oct.-Dec. Terms, slip op. at 5 (C.P. Phila. May 11, 2001).
The court must attempt to draw inferences as to the probable effects of the extraneous information or outside influence in light of objectively apparent facts about the context in which those matters came to the jury‘s attention. Thus, probable effect is estimated in light of the importance of the issue to which the information or influence related, the nature of the information or influence, the strength of the admitted evidence supporting the verdict, the number of jurors exposed to the information or influence, when the jury was exposed to the information or influence, how long the jury discussed these matters during deliberations, the manner in which the court dealt
with the information at trial, and any other matters which logically might have a bearing on the effect of the information or influence on the jury.27 WRIGHT & MILLER FEDERAL PRACTICE & PROCEDURE § 6075 (footnotes omitted).