UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KENDILE M. STEWART,

Plaintiff-Appellee,

v. No. 96-1537

AMUSEMENTS OF AMERICA,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

David C. Norton, District Judge.

(CA-94-2671-2-18)

Argued: May 8, 1998

Decided: July 15, 1998

Before WIDENER and HAMILTON, Circuit Judges, and

FRIEDMAN, United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Charles Elford Carpenter, Jr., RICHARDSON, PLOWDEN, CARPENTER & ROBINSON, P.A., Columbia, South Carolina, for Appellant. George J. Kefalos, GEORGE J. KEFALOS, P.A.,

North Charleston, South Carolina, for Appellee. ON BRIEF: Deborah Harrison Sheffield, RICHARDSON, PLOWDEN, CARPENTER

& ROBINSON, P.A., Columbia, South Carolina, for Appellant. Tim-
othy D. McCoy, MCCOY & TAYLOR, Charleston, South Carolina,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The principal dispute in this appeal is whether certain statements

allegedly made by a juror during jury deliberations in a negligence

action constitute "extraneous prejudicial information" within Federal

Rule of Evidence 606(b), such that another juror's affidavit attesting

to the fact that her fellow juror made the statements is admissible to

impeach the jury's verdict. The alleged prejudicial statements made

by the juror during deliberations are: (1) that the juror was a lawyer;

(2) that the jury could not send the judge a note stating that it could

not agree as to the percentage of fault or that it could not agree or

reach a decision; and (3) that the jury needed to compromise and

reach an agreement. For reasons that follow, we hold that these statements do not constitute extraneous prejudicial information within the

meaning of Federal Rule of Evidence 606(b).

I.

The plaintiff in this action, Kendile Stewart (Stewart), was injured

on April 6, 1993 in an accident that occurred near St. Augustine, Florida when the tractor-trailer rig in which he was a passenger collided

with another tractor-trailer rig that was pulling onto the highway. The

rig in which Stewart was a passenger was owned by his employer,

Wetterau, Inc., and was driven by one of Stewart's co-workers. The

rig that was pulling onto the highway was owned by the defendant

Amusements of America, Inc. (Amusements of America).

At the time of the accident, Stewart was a long-haul truck driver,

and, as a result of the accident, Stewart suffered a compression frac-

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ture to one of the vertebrae in his back, leaving him with a ten-percent

whole-man impairment. According to Stewart's treating physician,

this impairment prevented Stewart from performing heavy labor jobs

and from continuing to work as a long-haul truck driver.

Stewart filed a complaint against Amusements of America in South

Carolina state court on August 5, 1994. Amusements of America subsequently removed the case to the United States District Court for the

District of South Carolina and proceeded to defend on the merits. On

December 11, 1995, the case proceeded to trial, with the parties

agreeing that the law of the State of Florida applied to all substantive

issues in the case.

Prior to jury selection, all potential jurors in this case completed a

juror questionnaire. Potential juror Frank Clement stated in his juror

questionnaire that he had practiced law in Houston, Texas for about

five years approximately twelve years ago and that he had been

"swindled out of a law license ten years ago." (J.A. 28). Despite this

information, neither party attempted to strike Frank Clement as a

potential juror prior to final jury selection. Amusements of America,

however, made a motion prior to the actual start of trial to have Frank

Clement (Juror Clement) excused from jury service on the ground that

his statement about being swindled out of a law license misrepresented the fact that he was actually disbarred. The district court

denied the motion. In denying a renewed version of this motion made

during trial, the district court stated that a reasonable person would

infer from Juror Clement's questionnaire that he had been disbarred.

During the first day of trial, Juror Clement was found wandering

the halls of the courthouse in defiance of the district court's instruction that jurors should remain in the jury room when not in the courtroom. On the third day of trial, the district court commented outside

the presence of the jury that Juror Clement was a"loose cannon," who

did not pay attention to what the court security officers or the clerks

asked him to do, and that the court was probably going to excuse him

for that reason, not for the statement in his juror questionnaire. (J.A.

475). During trial, Amusements of America twice renewed its motion

to remove Juror Clement, but to no avail. Juror Clement was ultimately elected foreperson of the jury.

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On December 15, 1995, the jury returned a verdict in favor of

Stewart, finding Amusements of America ten percent at fault. The

jury also found that Stewart had sustained $600,000.00 in economic

damages and $150,000.00 in non-economic damages. 1 In response to

a request by Amusements of America for a poll of the jury, each juror

stated on the record in open court that the verdict as read in the courtroom was his or her true and correct verdict.

After the jury announced its verdict and was released from duty,

the district court spoke with the jurors, as is its custom, to thank them

for their service and to answer any questions. At this time, one of the

jurors asked the district court how much Stewart would actually

recover. The district court answered that he would probably recover

$350,000.00 to $400,000.00 after attorney's fees and costs.

Amusements of America subsequently filed a motion for a new

trial nisi remittitur, or in the alternative, for a new trial on various

grounds, including juror misconduct by Juror Clement and excessiveness of the jury's award of economic damages. On the subject of juror

misconduct, Amusements of America submitted an affidavit by

another juror, Lillian Linder (Juror Linder), which stated, in pertinent

part, that during jury deliberations, Juror Clement: (1) represented

that he was a lawyer; (2) told the jury that it could not send the judge

a note stating that the jury could not agree as to percentage of fault

or that it could not agree or reach a decision; (3) told the jury that it

needed to compromise and reach an agreement; and (4) misled the

jurors as to how much money Stewart would receive. The district

court denied Amusements of America's motion, and Amusements of

America noted a timely appeal.

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1 The parties agree that under applicable Florida law on comparative

negligence, Amusements of America is liable for only ten-percent of the

$150,000.00 in non-economic damages, but that it is liable for onehundred percent of the $600,000.00 in economic damages, notwithstanding that the jury found Amusements of America only ten-percent at fault.

The parties also agree that the district court properly instructed the jury

not to make any reduction for the negligence, if any, of Stewart's coworker in determining the amount of Stewart's damages, because the

court, in entering judgment, would make an appropriate reduction to the

total amount of damages awarded.

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II.

Amusements of America first contends that the district court

abused its discretion by denying its motion for a new trial predicated

on juror misconduct. According to Amusements of America, the district court should have excused Juror Clement after he wandered the

halls against the district court's instructions, because such conduct

coupled with the alleged misleading statement in his juror questionnaire demonstrated disrespect for the court and his oath as a juror.

Furthermore, according to Amusements of America, the four statements in Juror Linder's affidavit as set forth above are competent to

establish that Juror Clement introduced extraneous prejudicial information to the jury, thereby precluding it from receiving a fair trial.

The denial of a motion for a new trial predicated on alleged juror

misconduct is reviewed for abuse of discretion. See Knowlton v.

Greenwood Indep. Sch. Dist., 957 F.2d 1172, 1177 (5th Cir. 1992).

For reasons that follow, we affirm the district court's denial of

Amusements of America's motion for a new trial predicated on

alleged juror misconduct.

A. The Juror Questionnaire and Wandering the Halls

The district court rejected Amusements of America's argument that

Juror Clement's juror questionnaire misled the parties into believing

that he had a valid license to practice law. According to the district

court, a common sense reading of the questionnaire leads a reasonable

person to believe that Juror Clement had been disbarred. We fully

agree, and further note that Amusements of America had an opportunity during voir dire of the jury to clear up any possible confusion

regarding whether Juror Clement had a valid law license, but failed

to take advantage of that opportunity. Accordingly, the district court

properly determined that Juror Clement's questionnaire could not

serve as a basis for granting Amusements of America a new trial.

Next, the district court rejected Amusements of America's argument that Juror Clement's initial refusal to stay in the jury room so

that he could wander the halls of the courthouse warranted a new trial,

because the district court found that Amusements of America failed

to offer any evidence that it was prejudiced by his conduct. On this

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point, the district court noted that "[w]hile it is true that Mr. Clement

left the jury room during the first day of the trial, after he was cautioned by the court to remain in the jury room, this activity ceased."

(J.A. 698 n.1). The district court obviously believed that despite Juror

Clement's initial improper wandering from the jury room, he stayed

true to his oath as a juror at all times critical to the fairness of the trial.

Because the district court observed the jury on a day-to-day basis, the

district court was in a much better position than this court to judge the

demeanor of Juror Clement and the atmosphere of the courtroom in

general. See United States v. Barnes, 604 F.2d 121, 144 (2d Cir.

1979) ("Appellate courts have given, and should give, broad discretion to trial judges to pass upon charges of juror misconduct . . . made

visible in a tangible way. Other cases presented under other circumstances in other courtrooms may provide guidelines, but each case is

actually Sui generis."). Accordingly, we see no reason to second

guess the district court's judgment on this score.

B. Alleged Extraneous Information

The district court held that in considering the merits of Amusements of America's motion for a new trial, Federal Rule of Evidence

606(b) prohibited it from considering the four statements in Juror

Linder's affidavit that Amusements of America offered in support of

that motion. Rule 606(b) generally excludes testimony of a juror

impeaching the verdict:

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 . . . . 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.

Fed. R. Evid. 606(b). Rule 606(b) contains an exception allowing

jurors to testify "on the question whether extraneous prejudicial information was improperly brought to the jury's attention . . . ." Id. On

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appeal, Amusements of America contends that the district court erred

in failing to conclude that Juror Linder's statements fell within this

exception, a contention which is without merit.

Rule 606(b) does not define the phrase "extraneous prejudicial

information." However, the phrase suggests a natural distinction

between information that every juror brings to the jury room based

upon his life experience on the one hand, and personal knowledge of

facts specific to the litigation on the other hand. Other courts have

recognized this natural distinction. For instance, in Silagy v. Peters,

905 F.2d 986 (7th Cir. 1990), the Seventh Circuit held that a juror's

erroneous statements during deliberations in the sentencing phase of

a capital murder prosecution to the effect that under Illinois law the

defendant would serve no more than five to seven years if sentenced

to life and would never be executed if sentenced to death, but would

serve more than seven years, were merely a juror's erroneous ideas,

and therefore, did not constitute extraneous prejudicial information

under Rule 606(b). Id. at 1008-09. Furthermore, in Hard v. Burlington

N. R.R. Co., 870 F.2d 1454 (9th Cir. 1989), the Ninth Circuit held that

a juror's assertion during jury deliberations in a personal injury case

of some special knowledge of x-ray interpretation, which the juror

had acquired during military service, did not constitute extraneous

prejudicial information under Rule 606(b), because the juror did not

impart personal knowledge of facts specific to the litigation. Id. at

1462.

Here, Juror Clement's alleged statements during deliberations in

which he: (1) identified himself as a lawyer; (2) expressed his view

that the jury was not allowed to send notes to the judge indicating that

it was deadlocked; and (3) expressed his view that the jury needed to

reach a compromise fall squarely within the category of the type of

general knowledge that every juror brings into the jury room by reason of the juror's life experience. Conversely, none of the information

in these statements fall within the category of personal knowledge of

facts specific to the litigation. Accordingly, the district court properly

determined that Rule 606(b) prohibited it from considering these

statements in Juror Linder's affidavit as competent evidence to

impeach the jury's verdict.

As to Juror Linder's general statement that Juror Clement misled

the jury regarding the amount of Stewart's potential recovery, the dis-

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trict court properly determined that Rule 606(b) prohibited it from

considering the statement as competent evidence of misconduct by

Juror Clement. Because Juror Linder did not identify any information

imparted by Juror Clement regarding the amount of Stewart's potential recovery, Rule 606(b)'s "extraneous prejudicial information"

exception is obviously inapplicable. In an apparent attempt to avoid

this conclusion, Amusements of America would have us read into

Juror Linder's statement that Juror Clement erroneously informed the

jury that under Florida law, Stewart would only be able to recover ten

percent of any economic damage award that the jury returned.

Because the record contains no evidence to this effect, any attempt to

have us read Juror Linder's statement for any more than what it says

must fail.

In sum, the district court correctly determined that none of the

statements in Juror Linder's affidavit offered by Amusements of

America in support of its motion for a new trial were competent to

impeach the jury's verdict.

III.

Amusements of America next contends that the jury's award of

$600,000.00 in economic damages is excessive, and therefore, the

district court abused its discretion in refusing to grant it a new trial

on that basis.2 See Gasperini v. Center for Humanities, Inc., 518 U.S.

415, 438-39 (1996) (holding that federal appellate review of a district

court's denial of a motion for a new trial predicated on the excessiveness of the jury's damage award is for abuse of discretion). Once

again, Amusements of America's contention is without merit.

After the district court denied Amusements of America's motion

for a new trial predicated on the alleged excessiveness of the jury's

economic damage award, the Supreme Court definitively established

that a district court sitting in diversity must apply state law standards

to determine whether a verdict is excessive. See Gasperini, 518 U.S.

at 436-38. Accordingly, Florida law was applicable in determining

whether the jury's economic damage award was excessive. Under

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2 On appeal, Amusements of America does not challenge the district

court's denial of its alternative motion for a new trial nisi remittitur.

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Florida law, a jury's award is considered excessive only if the award

"is so extravagant that it shocks the judicial conscience, is manifestly

unsupported by the evidence, or otherwise affirmatively indicates that

the jury has been unduly influenced by passion, prejudice, or other

matters outside the record . . . ." Tobias v. Osorio, 681 So. 2d 905,

907 (Fla. Dist. Ct. App. 1996).

Here, the district court did not specifically test the jury's economic

damage award against Florida law. However, it did conclude that the

jury's economic damage award was not against the clear weight of the

evidence and was not so excessive as to be a miscarriage of justice.

In this circumstance, we believe that a remand for the district court

to test the jury's award against Florida law would be an exercise in

futility, because the district court, having found the jury's

$600,000.00 economic damage award not to be against the clear

weight of the evidence or a miscarriage of justice, would certainly

find on remand the same award not to be: (1) so extravagant that it

shocks the judicial conscience; (2) manifestly unsupported by the

evidence; or (3) otherwise affirmatively indicating that the jury has

been unduly influenced by passion, prejudice, or other matters outside

the record.

After carefully reviewing the record, we hold that the jury's award

of $600,000.00 in economic damages is not excessive under Florida

law.3 First, the record contains competent evidence that Stewart

incurred $4,468.00 in pretrial medication expenses. Specifically,

economist Dr. Perry Woodside (Dr. Woodside) testified that he calculated Stewart's pretrial medication expenses at $4,468.00 based upon

information that Stewart gave him regarding the type of medications

that Stewart was taking and for how long Stewart had been taking

them. Second, the record contains competent evidence that Stewart

incurred medical expenses, including physicians' charges, in the

amount of $11,848.06, which Amusements of America does not challenge.

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3 The parties agree that under Florida law, Stewart's economic damages

constitute his past medical expenses, any medical expenses that he would

incur in the future, an amount equal to his lost wages from the time of

the accident until the day of trial, and any loss of future wages attributable to Amusements of America's tortious conduct.

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Finally, the bulk of the damage award is attributable to competent

evidence of Stewart's past and future lost wages. The record contains

competent evidence that Stewart's past and future lost wages amount

to between $538,279.00 and $758,300.00, depending upon the

amount of Stewart's mitigating earnings. Stewart's evidence of lost

wages is in the form of testimony by his treating physician, Dr. Mike

Tyler, a vocational expert, Jean Hutchinson, and an economist, Dr.

Woodside. Prior to the accident, Stewart was a long-haul truck driver.

According to Dr. Tyler, a diagnostic surgeon, because Stewart continues to suffer pain from his compression fracture, he should avoid

heavy work and truck driving. In addition, Dr. Tyler opined that

Stewart could not bend or stoop for long periods of time. In all, Dr.

Tyler estimated Stewart's permanent impairment at"[t]en percent of

the whole man." See (J.A. 71).

Relying on Dr. Tyler's testimony as to Stewart's physical limitations, vocational expert Jean Hutchinson opined that Stewart's

employment potential was limited to low or minimum wage paying

jobs, requiring only very light work. In this regard, she testified that

Stewart does not meet the true qualifications for medium work. She

also testified that any appropriate job for Stewart"would have to be

very, very light work with the ability to sit and stand as necessary, not

a lot of carrying, no repetitious bending or stooping, or something like

that." (J.A. 610). In terms of Stewart's expected pay scale under these

conditions, Hutchinson testified that "[i]t's much lower," and that

"[t]he jobs we're talking about are going to be entry level positions

because he's essentially starting over, so we're looking at probably--

minimum wage is currently four twenty-five an hour, so we are probably looking at four twenty-five to five twenty-five an hour." (J.A.

610-11).

Economist Dr. Woodside calculated the difference between the

amount of money that Stewart would have earned as a long-haul truck

driver from the time of the accident until the age of sixty-five and the

amount of money that he would likely earn at a low paying job ($4.25

to $5.00 per hour) of the type he physically could fill to be between

$538,279.00 and $758,300.00, depending upon the amount of Stewart's mitigating earnings. Dr. Woodside's estimate also took into consideration earnings that Stewart had accrued during two different jobs

that he held between the time of the accident and the time of trial.

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Amusements of America acknowledges all of this evidence, but

argues that it should be disregarded, primarily because Stewart did

not have a valid driver's license at the time of trial due to a conviction

for driving while intoxicated. Obviously, the jury did not believe that

the loss of Stewart's driver's license was permanent such that it alone

would have prevented him from ever returning to his past work as a

long-haul truck driver. Accordingly, we reject Amusements of America's argument.

In summary, the jury's award of $600,000.00 in economic damages

in favor of Stewart is certainly not excessive under Florida law.

IV.

In conclusion, we affirm the district court's denial of Amusements

of America's motion for a new trial predicated on alleged juror misconduct and the alleged excessiveness of the jury's award of economic damages as a valid exercise of the district court's discretion.

AFFIRMED

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