IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 11, 2005 Session

KELLI WHITESIDE v. MICHAEL A. HEDGE, ET AL.

 Appeal from the Circuit Court for Knox County

No. 1-15-02 Dale C. Workman, Judge

No. E2004-02598-COA-R3-CV - FILED MAY 26, 2005

The sole issue in this case is whether extraneous prejudicial information was improperly brought to

the attention of the jury.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

WILLIAM H. INMAN, SR. J., delivered the opinion of the court, in which D. MICHAEL SWINEY and

SHARON GAIL LEE, J.J., joined.

Clifford Wilson, Nashville, Tennessee, attorney for appellant, Kelli Whiteside.

James S. MacDonald, Knoxville, Tennessee, attorney for appellees, Michael A. Hedge and Paul

Hedge.

OPINION

This is an action for damages for personal injuries resulting from a rear-end collision on

January 15, 2001. Liability was admitted, and the proof focused on the nature and extent of the

plaintiff’s injuries.

The plaintiff was a nineteen-year-old student who was ambulatory immediately after the

accident. She missed two days of school throughout the winter/spring of 2001, worked for a bank

during the summer of 2001, and returned to school in 2002 taking an extraordinary amount of pain

medication.

At the time of the trial of this case, which was concluded on May 3, 2004, the plaintiff had

been seen by a veritable host of physicians for her complaints of pain. Her medical problems

perhaps began in her early teens when she suffered from depression which continued intermittently

to the time of the accident. The precise cause of her pain was elusive; although in her brief she

asserts that two of her physicians testified that they diagnosed her condition as syringomyelia, the

only physician who used this term, Dr. Fred Killeffer, a neurosurgeon, testified that the plaintiff was
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not suffering from syringomyelia, but had a benign congenital anomaly known as persistent

‘embryonic central canal.’ Several physicians believed that part of the pain the plaintiff suffers is

caused by syrinxs in her spine, a condition which involves pockets of cerebral spinal fluid which

forms on the spinal cord.

The plaintiff has incurred medical expenses amounting to $60,000.00 since the accident.

Two physicians testified that these expenses were related to the accident, one of these physicians said

that the plaintiff would require up to $5,000.00 per year of prescription medication for the remainder

of her life. Dr. Kelleffer testified that only the first few weeks of the plaintiff’s medical treatment

was related to the accident and that in his opinion she did not suffer from syringomyelia. The

plaintiff testified that she was following the advice of Dr. Killeffer and a different pain management

physician and had not taken any pain medication for several weeks prior to trial.

The jury returned a verdict for $25,000.00 and the plaintiff appeals the disallowance of her

motion for a new trial which alleged no grounds. The affidavit of juror Batchellor was submitted,

together with a memorandum of law in support of the motion, which, taken together, allege that the

foreman of the jury conducted his own research on the Internet about syringomyelia and shared this

information with the other jurors.

Discussion

We reproduce the affidavit:

AFFIDAVIT

_________________________________________________________________ 

Comes now Aaron Batchellor, who after first being duly sworn, says as

follows:

1. I was a member of the jury in the above captioned matter which was tried

on April 30, 2004 and concluded on May 3, 2004.

2. The foreman of our jury, Clifford Watson, during our deliberation, told

me and the other jurors that he had done some research on the Internet about syrinx’s.

He shared with us what he had learned on the Internet.

3. I am not sure what effect the information Mr. Watson shared with us had

on the ultimate outcome of this case.

Further Affiant Saith Not.

(Signature of Aaron Batchellor) 5/13/04

Aaron Batchellor
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The disposition of this case is governed byRule 606(b) of the Tennessee Rules of Evidence.

It provides:

(B) Inquiry Into Validity of Verdict or Indictment.

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 any

juror’s mind or emotions as influencing that juror to assent to or

dissent from the verdict or indictment or concerning the juror’s

mental processes, except that a juror may testify on the question of

whether extraneous prejudicial information was improperly brought

to the jury’s attention, whether any outside influence was improperly

brought to bear upon any juror, or whether the jurors agreed in

advance to be bound bya quotient or gambling verdict without further

discussion; nor may a juror’s affidavit or evidence of any statement

by the juror concerning a matter about which the juror would be

precluded from testifying be received for these purposes.

There are only three instances in which a juror may offer testimony, or, as here, an affidavit,

concerning the validity of a verdict:

1. If “ . . . extraneous prejudicial information was improperly brought to the

jury’s attention.”

2. If “any outside influence was improperly brought to bear upon any juror.” Or

3. If “ . . . a juror agreed in advance to be bound by a quotient or gambling

verdict.”

The only exception relevant to this case, is whether extraneous prejudicial information was

improperly brought to the jury’s attention.

In State v. Blackwell, 664 S.W.2d 686 (Tenn. 1984) the Supreme Court specifically adopted

Federal Rule of Evidence 606(b) (identical to current Tenn. R. of Evid. 606(b) with the exception

that the federal rule does not include a specific reference to quotient verdicts) as the rule governing

the exclusion and admissibility of evidence to impeach a jury verdict in Tennessee. Blackwell is

clear on the point that the “outside influence” element of 606(b) relates to third party contact with

the jury. The Blackwell court acknowledged that different rules might apply to sequestered and nonsequestered juries. The jury in this civil case was not sequestered. Even though the “outside

influence” test does not contain the same “prejudicial” qualifier as in the “extraneous prejudicial

information” test, the “outside influence” test provides “whether any outside influence was
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improperly brought to bear upon any juror.” In practical effect, the Blackwell court defined the

“outside influence improperly brought to bear upon any juror” test in terms of the prejudicial effect

of such outside influence, stating:

We agree with the Court of Criminal Appeals that something more

than a bare showing of a mingling with the general public is required

where the jury is not sequestered to shift the burden of proof to the

State of showing no prejudice. The additional requirement is that as

a result of a juror’s contact with a third person some extraneous

prejudicial information, fact or opinion, was imported to one or more

jurors or some outside improper influence brought to bear on one or

more jurors, Blackwell, p. 689.

The appellees argue that there is no “outside influence” claim involving third parties being

made by the plaintiff but rather that she only advances “extraneous prejudicial information” claim.

But under either test the burden of proof is on the appellant to prove prejudice. The affidavit of Mr.

Batchellor reveals that he was one of the jurors selected in this case who selected Clifford Watson

as foreman and who told Mr. Batchellor and the other jurors:

. . . that he had done some research on the Internet about syrinx’s

[sic]. He shared with us what he had learned on the Internet. I am

not sure what effect the information Mr. Watson shared with us had

on the ultimate outcome of this case.

We agree with the appellees that the precedential cases reveal that clear and convincing

evidence of prejudice is required to meet the standards of Tennessee Rules of Evidence 606(b). The

affidavit does not reveal the extent of the research, or what, if anything, Mr. Watson learned.

One of the cases relied on by the appellant, Caladaro v. Vanderbilt University, 794 S.W.2d

738 (Tenn. Ct, App, 1990), involved a nursing malpractice claim. The two basic holdings of the

Caladaro court are: (1) the affidavits of two jurors stating that one juror repeatedly read his notes

to the other jurors during their deliberations despite the instructions of the trial court to the contrary

were inadmissible, based on the fact that this information was deemed to be “intrinsic” rather than

“extrinsic” information, and as such, inadmissible for consideration by a reviewing court pursuant

to Tennessee Rules of Evidence 606(b), and (2) the fact that the same juror repeatedly told his fellow

jurors that he was married to a nurse, and therefore had specialized knowledge of what nurses would

do, was held to be part ofthe “normal jury deliberations that include discussions based on the jurors’

generalized knowledge and experience [that] do not constitute grounds for overturning a verdict.”

The court pointed out that the juror in question was not said to have had any prior or extraneous

knowledge of the parties or events that gave rise to the suit, and applying that principle to this case,

neither has it been suggested that the jury foreman in this case had any prior or extraneous

knowledge whatever of the parties or the events giving rise to the lawsuit. 
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The case of Cavalier Metal Corporation v. Johnson Metal Controls, 124 S.W.3d 122 (Tenn.

Ct. App. 2003) is instructive. In Cavalier the plaintiff corporation obtained a $2,029,294.00 jury

verdict against the defendant corporation for breach of contract. A juror who had been challenged

for cause by the defendant corporation who had fired her for absenteeism shared her opinions that

while she was working for the defendant, it breached the contract first and that the quality of the

parts provided by the plaintiff corporation were no worse than those furnished by other suppliers.

This was held to be “extraneous, prejudicial information.” The Cavalier decision is further

instructive in setting out the analysis to be followed in cases such as this: (1) the threshold inquiry

is whether or not the information is “extraneous” and, (2) if “extraneous, whether or not said

information was prejudicial, and (3) finally, if both extraneous and prejudicial, whether said

extraneous prejudicial information had an influence on the jury, citing Patton v. Rose, 892 S.W.2d

410, 414 (Tenn. Ct. App. 1994). In Patton the court found that a newspaper shared with the jury was

clearly extraneous information but that the information was not prejudicial to the plaintiff and that

there was no evidence that this newspaper article affected the jurors in their deliberations. Where

there has been no showing whatever concerning the specifics of the information shared with the jury,

we cannot conclude that this information was “prejudicial” or that it had an influence on the jury.

This determination is reinforced by reference to the affidavit of Mr. Batchellor who specifically

states that “I am not sure what effect the information Mr. Watson shared with us had on the ultimate

outcome of the case.”

The record does not reveal the reason(s) why juror Batchellor and foreman Watson were not

subpoenaed to testify. In her brief the appellant merely states:

Plaintiff does not know what internet articles the jury foreman, Mr.

Watson, reviewed during his internet research. Plaintiff does not

know what facts or information was shared by Mr. Watson with his

fellow jurors regarding the information he found during his outside

research.

We agree with the appellee that more than appellant’s admitted inability to provide any

specifics concerning the information shared with the jury is necessary to set aside the verdict in this

case. We also note that it was the appellant who initially rejected “articles off the Internet” into the

trial of the case by cross examining Dr. Fred Killeffer about an article he had seen on the Internet

from the National Institute of Neurologic Diseases and Stroke, and made this Internet article and

Exhibit to the Deposition of Dr. Killeffer. All concerned apparently agreed that this article from the

Internet was authoritative. The record does not reveal any specific information obtained by the

foreman, but if it may be inferred that the Internet information was similar to the information elicited

by the cross-examination of Dr. Killeffer, there can be no possible prejudice to the appellant. In any

event, we cannot agree with the appellant’s argument that the award of $25,000.00 “displays that

something happened in the juror room to sway the jury in favor of the defendant.” We can neither

infer nor presume prejudice resulted to the plaintiff, or for that matter, to the defendants, on account

of the foreman’s statements. As in Patton v. Rose, supra:
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It is clear from this record, however, that there is absolutely no

evidence that the juryconsidered this article in their deliberations, nor

is there any evidence that the article itself influenced deliberations of

the jury . . . and there is nothing in the record to indicate that the jury

used the extraneous information in anymanner in reaching its verdict.

The judgment is affirmed at the costs of the appellant, Kelli Whiteside.

___________________________________ 

WILLIAM H. INMAN, SENIOR JUDGE