No. 88-616 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

RONALD L. STANHOPE, Plaintiffand Appellant,-vsJOHN D. LAWRENCE,JR., FARMERS STATE RANK OF WORDEN, MONTANA, H. RICHARD HANSEN, LAMONTE W. WAGNER, HANSEN-LAWRENCE AGENCY, INC., Defendants,Respondents and Cross-Appellants.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The HonorableG. Todd Baugh, Judgepresiding. COUNSEL OF RECORD: ForAppellant: Stephen M. Rarrett argued,Holly B. Brown; Kirwan & Barrett, Bozeman,Montana For Respondent:

,- Michael G. Moses argued; Moses Law Firm,Billings,

t 3 Montana L, , 

### ; Calvin J. Stacey argued; Keefer, Royhal, Hanson,

7-- 3 4, Stacey & Walen, Billings,Montana

Submitted: December 14, 1989 Degided: February 28, 1990Justice R. C. McDonough delivered the Opinion of the Court.

This appeal involves causes of action that arose within the context of a closely-held corporation and alleged several claims including breach of fiduciary duty, breach of contract, negligent misrepresentation, fraud, conversion and bad faith. Plaintiff Ronald L. Stanhope appeals the order of the Thirteenth Judicial District, Yellowstone County, granting the individual defendants', John D. Lawrence, Jr., H. Richard Hansen, Lamonte W. Wagner, and Hansen-Lawrence Agency, Inc., and the separate defendant Farmer's State Bank ofWorden,motion for new trial. We affirm. Among the issues raised by appellant Stanhope is the following: Did the District Court err in granting the defendants' motion for new trial on the ground that the damages awarded by the jury were based on a prohibited quotient verdict? Stanhope is the former president of S & L Energy, Inc,a corporation organized in 1973 under the Montana Close Corporation Act and involved in purchasing and developing various oil properties. The defendants are various business entities and individual owners, shareholders and directors that transacted with both Stanhope and S & L Energy, Inc. Stanhope brought suit against the defendants and the

case was eventually submitted to the jury on two theories ofliability: negligence and bad faith. The jury returned a verdict of $1 million in compensatory damages and later determined that the defendants' conduct warranted punitive damages in the amount of $1,396,000.00. The jury was polled after returning the compensatory damageverdict. During this polling, one of the jurors indicated that the jury had agreed to use a quotient method---where the several amounts thought by the individual juror's to be proper are added up and divided by 12---as ameans of reaching the finalverdict. Affidavits from all the jurors regarding themanner used in reaching the verdict were submitted to the court. Also,

on September 8, 1988, after the jury hearing and verdict on the amount of punitive damages to be awarded, the Court conducted its own examination of the jury regarding the

manner used in reaching the compensatory damage verdict. The defendants then moved for a new trial or judgment n.0.v. on the grounds that the verdict was a result of the prohibited quotientmethod aswell as on several other grounds. The Court also reviewed both the compensatory verdict and the punitive damage award. On October 28, 1988, the Court reduced the medical expenses portion of the compensatory verdict from $200,000.00 to $35,000.00 based on a lack of evidence. Stanhope has not appealed this reduction. The District Court also reduced the punitive damage award from $1,396,000.00 to $224,000.00 pursuant to S 27-1-221, MCA.The total verdict was thus reduced by the trial judge from $2,396,000.00 to $1,059,000.00. On November 2, 1988, after consideration of the juror poll, its own examination, and juror affidavits supplied by both sides, the District Court granted defendants' motion for

new trialbased on 5 25-11-102(2), MCA, finding that the jury had reached a prohibited quotientverdict. The court did not rule on the defendants' othermotions. Stanhope's subsequent motion for reconsideration was then denied. Stanhope now appeals the order granting new trial and raises, among others, the quotient verdict issue. The defendants also

cross appealed on all issues not reached by the District Court to preserve those issues should this Court reverse the order granting new trial.

I. It is essential to our determination in this case for us to set forth a clear and concise statement of the scope of

our review regarding the grant of a new trial. The decision to grant a new trial is within the sound discretion of the trial judge and will not be overturned absent a showing of manifest abuse of discretion. Zeke's Distributing Co. v. Brown-Forman Corp. (Mont. 1989), 779 P.2d 908, 913, 46 St.Rep. 1678, 1682; Tope v. Taylor (Mont. 1988), 768 P.2d 845, 849-850, 45 St.Rep. 2242, 2248;Walter v. Evans ProductsCo. (1983), 207Mont. 26, 30-31, 672 P.2d 613, 616. Black's Law Dictionary defines manifest as: evident to the senses, especially to the sight, obvious to the understanding, evident to themind, not obscure or hidden, and is synonymous with open, clear, visible, unmistakable, indubitable, indisputable, evident, and self-evident. Black's Law Dictionary 867 (5th ed. 1979). The question of whether or not the jury agreed to be bound by a quotient verdict process is a question of fact. We may not set aside the trial judge's findings unless such findings are clearly

erroneous. Rule 52(a)

## ,M.R.Civ.P. Findings of fact are not clearly erroneous if they are supported by substantial credible evidence. In re Marriage of Obergfell (1985)

## , 218 Mont. 83, 87-88, 708 P.2d 561, 563-564. Substantial evidence is that evidence that a reasonable mind might accept as adequate to support a conclusion,and consistsofmore than a mere scintilla of evidence but may be somewhat less than a preponderance. Black's Law Dictionary 1281 (5th ed. 1979)

# . The evidence may be inherently weak and still deemed substantial;and although conflictsmay exist in the evidence presented, it is the duty and function of the trial judge to weigh such conflicts. His findingswill not be disturbed on appeal where they are based on substantial though conflicting evidence. Olson v. Westfork Properties, Inc. (1976), 171 Mont. 154, 157-158, 557 P.2d 821, 823. Thus, for us to reverse the trial court in this casewe must find either thatthe trial court's findings of fact are not supported by substantial evidence and thus are clearly erroneous, or that in applying the law to the facts there is amanifest abuse of discretion.

We now turn to a discussion of the applicable law regarding quotient verdicts. The trial court's grant of a

new trial in this case was based on S 25-11-102, MCA. The statuteprovides: Grounds for new trial. The formerverdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:

(2) misconduct of the jury. Whenever any one or more of the jurors have been induced to assent to any general or special verdict or to a finding on any question submitted to themby the courtby a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. Section 25-11-102(2), MCA. Utilization of the quotient method to reach a verdict,where the jurors agree to be bound by that verdict before the quotient is calculated, is such a resort to the determination of chance constituting grounds for a new trial under the statute. Haynes v. County of Missoula (1973), 163 Mont. 270, 517 P.2d 370; Bracy v. Great Northern Ry. Co. (1959), 136Mont. 65, 343 P.2d 848;enj jam inv. Helena Light & Ry. Co. (1927), 79 Mont. 144, 255 P. 20; Gordon 

### v. Trevarthan (1893), 13 Mont. 387, 34 P. 185. We note that a quotient verdict instructionwas not requestedby any party nor was one given in this case. Plaintiff contends that theverdict isnot objectionable even though the quotient process was used because there was no previous agreement to be bound by the quotient process. Plaintiff's argument is based on evidence showing that the jurors deliberated further after reaching an initial sum of between $830,000.00 and $880,000 through the quotient process and then later agreed to raise the amount to $1 million. Thus, plaintiff contends that the quotient process employed by the jurors was merely a mechanism for arriving at a starting point in determining damages; it was merely a part of the discussion and compromise used by all juries in arriving at a final agreement. The trial court disagreed with this contention. In his argument, plaintiff correctly points out that the vice of a quotientverdict is an agreement in advance to be bound by the quotient process; the verdict is not objectionable where there is no previous agreement to be bound by the quotient process. Haynes, 517 P.2d at 382; Bracy, 343 P.2d at 854. Thus, the distinction between good verdicts and bad verdicts wherein the quotient process was used is dependent upon the prior agreement to be bound:If the jurors previously agree to a particularmode of arriving at a verdict, and to abide by the contingent result at all events,without reserving to themselves the liberty of dissenting, such a proceeding would be improper; but if the means is adopted merely for the sake of arriving at a reasonable measure of damages,without binding the jurors by the result, it is not objection fsic] to the verdict. Gordon, 34 P. at 186. However, this does not mean that a final verdict is valid simplybecause it is not exactly equal to the original verdict sum arrived at by the quotient process. "It is generally held that, if the amount of the verdict is not exactly the quotient sum but is adopted as a result of the quotient process and grows out of the latter, the verdict is invalid." Benjamin, 255 P. at 24. Generally,

a slight discrepancy between the quotient sum and the verdict does not affect the invalidity of a verdict; on the other hand, there is no well-defined rule governing how large the discrepancy between the quotient sum and the final verdict must be before the verdict will be considered to be valid. Benjamin, 255 P. at 24. In determining the cause of such a discrepancy and its effect on the validity of the verdict, the trial judge has considerablediscretion: Much seems to rest on the basic facts that mathematical calculationwas resorted to and led up to the fixing of the amount of the verdict, even though not the same as the quotient. Each case seems to depend on its own facts and their relation to each other. Motives of jurors, as disclosed, are given much weight. Frequently the motive in agreeing upon a sum different than the quotient sumis to make it "even money," but that is held not a 

### ------ good reason. (Emphasisadded.) Benjamin, 255 P. at 24. Thus, the mere fact that the amount of the quotient and the amount of the finalverdict differ is not conclusive of whether the jurorswere in fact bound by a prior agreement.

111. Was the evidence sufficiently substantialto support the trial judge's findings? We conclude that the record contains substantial evidence to support the trial court's finding that the the jurors acted under an agreement to be bound and

were induced to assent to the verdict. The trial judge had the following substantial evidence to rely on in making his determination: the statements of the jurors--particularly Juror Sandberg--during polling, the statement of each of the jurors after the punitive damages verdict, and affidavits of the jurors supplied by both sides. The record indicates that eight jurors voted that the defendants had negligently injured Stanhope; four jurors voted against recovery. During polling of the jury regarding the specific amount of the compensatory verdict, there was some confusion among the eight jurors favoring the plaintiff as to the amount of their verdict and whether they individually concurred in that verdict. Jurors Bushman,Arnold, Kline, Yanchisin, and Scribner all stated that their verdict was for $1 million. Juror Allen stated: "I forgot what I put. Iwould say a total of one million, but I'm not

sure.

### " Juror Sandberg: "10,000, I think." Juror Scharnowske: "Total of three million." The clerk repeated the question and broke the verdict down into its individual categories: medical expenses, past, $200,000, physical injuries but limited to pain, $205,000, emotional distress, $115,000, economic and financial loss, $480,000. Juror Sandberg then stated: Could I clarify thiswhole mess? We don't agree on any of this. Iwill explainhowwe did this. What we did was--There were four with none. What we did on each category was then take the monetary damage that each person awarded, added it all up, including the four nones, zeros, and divided then by 12 to receive the amount of damages for each item. Plaintiff's counsel then asked if the eight jurors in the majority all agreed on the process used. Juror Sandberg replied: We all agreed--Yeah, 

### -- we all agreed on the process 

### -- and we did it unanimously. 

### ---- We used the same process through all four individual categories. We didn'tuse--vou know, if therewas --We iustdidn't 

### -- change the Locess

# . (~mphasis added.) As the trier of fact on the quotient verdict issue, the trial judge had discretion to assign a significant amount ofweight to Juror Sandberg's statement. Section 26-1-302, MCA; Emick

V. ~och(1987), 227 Mont. 365, 368, 739 P.2d 947, 949. Afinding that the jury had agreed to be bound by the quotient process based on this statement would not be clearly erroneous,particularly due to the immediacy of the statement with the renderingof the verdict. Subsequent to the hearing to determine the punitive damage award and verdict the court conducted its own examination of the jurors regarding the amount of the compensatory verdict. Again Juror Sandberg described the process: MS. SANDBERG: Okay. There were eight of us that decided there should be actual damages. The question was then divided into four subcategories, I guess: medical, physical, emotional, and economic. Some of us--and I see there was maybe another way around of deciding it, but some of us didn't feel that medical and physical warranted damages. So what we did then was, we put in a dollar figure, whether it was zero-- everybody did, whether itwas zero or whatever youwanted. We put it into the pool and thenwe divided by the number of jurors and came up with our--came up with a dollar amount for each category thatway. THE COURT: And that came out to a million dollars? MS. SANDBERG: And then we came up with the end number, it was a little under and we just rounded it and agreed to that. THE COURT: And how did you all come to hit upon this way of doing it? MS. SANDRERG: Yeah, we-- Well, like even today [in determining punitive damages]

## , just working other ways and what not, like instead of picking a figure out of the blue and all trying to decide on that, that was pretty hard, prettydifficult. So we just decided that if everybody had their own input and then just divided it equally, that everybody then had their say in what should be awarded. THE COURT: So you just went with whatever number--or is that how you did it the other night? MS. SANDBERG: Today? THE COURT: Not somuch-- MS. SANDBERG: Today we did it differently because it didn't--we couldn't agree today on that. It would not be clearly erroneous for the trial judge to infer from the above statement of Juror Sandberg that the jurors couldn't agree on how to arrive at an amount for a punitive damage award,whereas they had agreed in advance on how to arrive at the compensatory verdict, by resorting to the quotientmethod. Juror Arnold's testimony also indicates that the jurors agreed in advance tobe bound by the quotientmethod: THE COURT: 

# . .. if you have some comments with regard to how 

# . . . you arrived at those numbers. 

# . . . MS. ARNOLD: We took a vote on how we were 

### -------- going to do it. And then we took a vote on the 

### --- percentages ofwhat--what amountwe should have and what percentage each person was responsible for.

THE COURT: The manner of dividing it by 12, how did that come to be?

MS. ARNOLD: It was all in our--how we felt that the personwas responsible,and we took avoteon that and divided itup. And some of them didn't you know,agree to any of it. But we did divide it by twelve because they didn't agree on any number at all. 

# .. . Juror Allen's testimony is similar regarding whether the juror's had agreed in advance to be bound by the quotient

sum: THE COURT: And we want to get everybody's comments on the record with regard to how it was that you came to that method of arriving at the verdict. MS. ALLEN: Okay. THE COURT: So it's your turn to speak. MS. ALLEN: Well, it was just--we kind of threw different ideas around. And we just--you know, everybody took votes on ideas and we just came up with that one and it seemed to work out best for us. Actually, what I should say is, I had been up all that night and all that day, so some things I remember clearly and other things I'm a little foggy on,asyou can remember frommy answer. During the same subject examination by the Court on the subject of the verdict, Juror Scharnowske commented on whether there was further deliberation after calculation of the initial quotient sum:

MS. SCHARNOWSKE: None of us were happy, that s why we came down to the point of getting a 'igureand dividing it by 12,because everybody had an equal say thatway. THE COURT: Was that the end of it,or did the discussion go on from that point?MS. SCHARNOWSKE: Well, I don't know. There was a lot of discussionprior to thatpoint. THE COURT: Oh, yes, I'm sure. MS. SCHARNOWSKE: I think everybody had a different amount in theirmind. THE COURT: But onceyou divided by 12 and got a number, approximately the number that you-- Was that the number thatyouput on the verdict? MS. SCHARNOWSKE: Mm-hmm. THE COURT: Was there further discussion concerning those numbers? MS. SCHARNOWSKE: Not really. With respect to further discussions of the verdict after the quotient sum was reached, Juror Yanchisin's testimony is similar to Scharnowske's: MR. YANCHISIN: So we came up with the idea that if everybody would go along with voting on what they thoughtwould be a proper amount and then total those up and divide by 12, that would get the--and then we did that, came up with that amount then. And we voted on it and everybody agreed that was a reasonable amount. THE COURT: Okay. And was there any further discussions on it,or thatwas the end of it? MR. YANCHISIN: Thatwas it. Juror Scribner's testimony indicates that there may have been

some further discussion after the quotient sum was calculated: No, we discussed it. You know, we looked at it different ways and everything.On the other hand, Juror Kline's testimony indicates that there was little further discussion of the verdict amount after it was reached other than ro.undingoff of the verdict. Also, one of the dissenting jurors expressed dismay with the quotient process used by the majority, indicating that she felt that there was a high degree of chance involved: MS. KRUEGER: Because what--It boiled down to the point of what the damages were. Okay, for me to vote zero someone else would vote more, because we divided by twelve. That is my feeling. Maybe they didn't,but that wasmy feeling. Clearly, the testimony of the individual jurors upon the Court's own examination constitutes substantial evidence supporting the court's finding that the jury agreed to be bound in advance by the quotient method. In its order granting new trial, the District Court thoroughly discussed the applicable law, also noting that the quotient sum was between 83% and 88% of the total verdict. Even though the evidence could indicate there may have been some further deliberation after the initial quotient sum was determined, itwas not clearly erroneous for the trial judge to find that the jury was merely rounding off the sum "to make it 'even money.

### "' See Benjamin, 

### - 255 P. at 24. Regardless of the evidence in the record to the contrary, there is substantial evidence in the jurors' testimony to support such a finding. This finding is further supported by the trial court's reduction of the medical expenses portion of the verdict from$200,000.00 to $35,000.00 based on a lack of evidence. Use of the quotient method and a subsequent rounding up of the initial sum could have led to inflated figures in various damage categories, ashappened here on medical expenses. The trial court specifically found that only one or two of the four categories of damages was adjusted during the rounding off process. Not only does this indicate that the verdict

was determined by chance because it was arbitrarily rounded off, it also indicates that two or possibly three of the damage categorieswere determined by chance asthey must have been entered atthequotient amount. Finally, though some of the jurors may have believed that they were not bound by the quotient process, jury misconduct as a grounds for a new trial only requires that

### any one or more of the jurors are 

### --- induced to assent to a chance determination. Section 25-11-102(2), MCA. It would not have been clearly erroneous for the trialjudge tofind thatJuror Sandberg, forexample,

was induced to assent to the verdict, as well as several of the other jurors.

IV The affidavits of the juror's collected from the attorneys for both sides are conflicting as to whether the jurors in fact agreed in advance tobe bound by the quotient method and whether the jurors deliberated further after theinitial quotient sum was reached. There appears to be substantial evidence in the affidavits to support either proposition. Plaintiff maintains that the juror affidavits submitted by him, which are either written by each individual juror or

were transcribed in handwriting during the interview and immediately initialed,clearly indicate that the juror's were not bound by a prior agreement in the quotient process. Plaintiff argues that the affidavits submitted by the defendants, are somehow tainted because they were prepared by defendants1 attorneys and later submitted to the jurors for signatures. Specifically, plaintiff points to the three affidavits of Juror Hert. The first, taken on September 9by the plaintiff's attorney, is unclear but seems to indicate that the jurors were not bound by the quotient process and deliberated further on the amount of damages. The second affidavit, taken by defendants' attorneys on September 23, clearly states that the jurors agreed in advance to be bound by the quotient process. The third affidavit, taken by plaintiff's attorney on November 10 and written in Juror Hert's own hand, clearly states that the jurors were not bound by the quotient and that they deliberated further after the quotient was calculated. Juror Hert also states in this final affidavit that she must have erred when she gave the testimony contained in her second affidavit.Admittedly, the same reasons do not exist why there should be a strong presumption in favor of the trial court's ruling as exist in cases in which facts are determined upon conflicting oral testimony; however, we will not ignore the discretion of the trial court in granting a new trial upon affidavits of misconduct of the jury, although the presumption in favor of the court'sdiscretion is less strong than in matters determined upon conflicting oral testimony. Benjamin, 255 P. at 21. Thus, it was within the discretion of the trial court as the trier of fact to weigh and choose between the conflicting testimony contained in the affidavits. Benjamin, 255 P. at 21; see also 

### 5 26-1-302, MCA; Emick, 739 P.2d 949; Olson, 557 P.2d at 823. More importantly,the trial judge's exercise of discretion in this

case involved assigning weight to conflicting oral testimony. The trial judgewas in a far better position than a reviewing court to determine the credibility of the witnesses and to weigh the evidence as to whether or not the jurorshad agreed to be bound by the quotientprocess. "Findings of fact shall not be set aside unless clearly erroneous, and 

### - due regard - shall 

### - be given 

### -- to the opportunity -- of the trial court 

### - to judge of the credibility of the witnesses." Rule 52(a), M.R.Civ.P. 

### -- -- Here, the trial judge was present to directly observe the demeanor of the jurors while they gave testimony regarding the verdict. Such testimony was unquestionably given in thejurors' own words. It was given nearer in time to the deliberations in question and therefore is less susceptible to the inherent faults of human recollection. When the affidavits are considered in conjunction with this testimony

as awhole the evidence is clearly substantialto support the trial judge's finding that the jurors were bound by a prior agreement. Because there is substantial evidence in this testimony as well as the affidavits to support the District Court's findings that the jurors were bound by prior agreement, such findings cannot be held clearly erroneous. Nor canwe find anymanifest abuse of discretion in this case to warrant reversing the District Court's grant of a new trial.



### v The plaintiff raises other issues on appeal and the defendants also raise several issues on cross-appeal. We need not address these issues. A grant of a new trialby the trial court is a re-examination of issues of fact, 

### 5 25-11-101, MCA; it must be commenced fresh or anew. Zeke's Distributing Co. v. Brown-Forman Corp. (Mont. 1989), 779 P.2d 908, 913, 46 St.Rep. 1678, 1683; Town Pump v. Dist. Ct. (1979), 180 Mont. 358, 361-362, 590 P.2d 1126, 1128-1129. Inasmuch as the casewill be tried de novo, the parties will 

### -- have an opportunity to raise their appeal and cross appealissues, should they come up at the new trial, at the appropriate time. The District Court's grant of a new trial is AFFIRMED.

Justice F7e Concur:

b

Justices

### Justice John C. Sheehy,dissenting: In Thomas v. Whiteside (1966), 148 Mont. 394, 399-400, 421 P.2d 449, 452,this Court affirmed thepropriety of giving to the jury the long form verdict instruction from the then extant "Montana Jury Instruction Guide. That instruction read as follows: The law forbidsyou to determine any issue of this case by 

### resort to chance. You will understand thisprinciple of law better, perhaps, if I

### give you an illustration; suppose thatyou jurors,orat least eight ofyou,agree that the plaintiff in this case is entitled to recover damages and you then each setdown an amountwhich each juror thinks plaintiff should be awarded and that you further agree that the average so found will be the amount ofyourverdict. Suchamethod would be resorting to chance and if you do this I

### would have to set your verdict aside asbeing unlawful. The error of thismethod of arriving at averdict is in your agreeing in advance to use the average figure as your verdict. In this connection, however, you are advised that it isnot error orunlawful foryou to each set down a figure and find the average as a basis for further discussion of what your ultimate verdict might orwill be so long as youdo not agree in advance tobe boundby thataverage figure. Also,you areadvisedthat if you should follow a procedure along the lines just mentioned it is not necessary that all twelve of your number join inworking out somebasis fordiscussion as any eight of youmay agreeupon averdict in this case. In approving the giving of the foregoing instruction, this Court explained itsdecision: This long form of instruction appears to be a correct statement of the rule covering quotient verdicts as developed by the opinions in this Court. Section 93- 

### 5603(2) R.C.M. 1947, provides that a new trial may be granted upon a showing that a finding was made Ifbya resort to the determination of chance, such misconduct maybeprovedby theaffidavit ofanyoneof the jurors. Thisprovisionwas interpreted inGreatNorthernRy. Co. v. Benjamin, 51Mont. 167,172, 149 P.2d 968, 969,whereit was said: "It is only when the jurors acrree in advance thatthequotientthusobtained shall constitute theamount of theverdict,and such agreement is carried into effect, that theproceeding constitutesa resort to the determination of chance and is condemned by the statuteabove.I1 This rulehas been reaffirmed in [citing cases]. See also Annotation in 8 A.L.R.3d 335.

(Emphasisadded.) Thomas, 421 P.2d at 452. Under the foregoing discussion by this Court, there are two elements necessarytocreatean invalidquotient verdict: (1) the jurors must agree in advancethat theresultof the quotient shall be their verdict and (2) they must carry the agreement into effect. In this case there is an absolute lack of evidence that the jurorsagreed in advance tobebound by the result of thequotient and an absolute lack of evidence that they carried such agreement intoeffect. Becausethereof, the~istrict Court, in setting aside the jury verdict and granting 

### anew trial because of thepurported quotient committed manifest abuse of itsdiscretion. Inorder for thereadertoperceive this, and in fairness,it is necessary to set out in totidemverbis what the jurors related respecting themanner in which they arrived at theverdict. Taking the foreperson, Maxine 

### E. Kline, first: Wehad a lengthydiscussion,and came to anagreement to put a bid in and divide it by 12. Then we had more discussion and would come to an agreement. We went through all four categories like this, medical, lost wages, economics and emotional distress. When all four categories were finished, it totaled a little over a million dollars,and itwasdiscussed and agreed on that we would change it to a million. We all 12 voted on paper,with resultsof eightyesand fourno, sowe took that amount and were satisfiedwith it.

### JurorJ. 

### Philip Yanchisin: After determining liability, all 12 jurorswrote a total amount of damages which they wanted to award to Mr. Stanhope foractualdamages. Each jurorwrote an amount of damages on a piece of paper. The 12 

### amounts were totaled and dividedby 12. The total amount divided by 12 was approximately $880,000. Then there was a discussion about this amount. Several jurors objected to this amount because they felt it was not enough damages. After more discussion, one juror recommended $1,000,000 in damages. We all considered that amount. Several jurors reduced the amount they wanted to 

### award and several jurors raised the amount they wanted to award. All 12 jurors thenvoted on the proposed amount, and 8 

### jurorsvoted yes,and 4 

### jurorsvoted no. JurorRandall Martinson: On voting on thedamagesbeing a

## no voter,voted in all actual damages--I voted on the system used to get the total, and voting on the results of total. Everybody writing a damage amount on a piece of paper then adding all damage amounts together and dividing them by 12. This amount came through by 4 

### votes on 4 

### different categories. This number was approximately $833,000. Some jurorsdidn't agree with someof thedamageprices. Another votewas taken to change to a higher amount. A discussionwasheld forahigher amount. All votes were agreedupon for $1,000,000--all 12 jurorsvoted on this amountwith 8 

### for and 4 

### against this amount. JurorNancy Scharnowske: Because we were so greatly separated on our ideas of settlementmoney, we decided for each person to put in the amount they felt was just. We talked at great lengths about the spread and amounts. To come to a definite amount we decided to add the amounts up and divideby 12. Weargued furtherand finally admittedthe amount to $1,000,000settlement. Juror Chester B. 

### Scribner: Wehadageneral discussion of amountsand couldn't reach a number. To get things started we all wrote down a numberandaveragedthem. Theamountwasabout $880,000. We thenhad more discussion because some thought itwastoohigh and some thought itwas too low. After that we argued and finally we voted on a $1,000,000 amount. Everyone voted. After thatwe talked about breaking it down and we had a separate vote on each category. Everyonevoted on each category and all the votes were 8 to 4. Juror JaniceM. Kruger: To help reach a consensus on the amount of damages to award toMr. Stanhope,eachmember of the jurywrote an amount onapiece ofpaper. These amountswere totalled and divided by 12. This total amount was discussed. As a result of those discussions,the amountwas then changed to One Million Dollars. Thisamountwasvoted onby each juror,either yes orno. Eight jurorsvotedyesand four jurorsvoted no. Thisprocesswasdone for each category of damages. Juror Ellen K. Sandberg: For the actual damages the jury finally decided all 12 individuals should write down theamounthe/she believed Mr. Stanhope shouldreceive. We then talliedup a total dollar amount and divided this by 12 to obtain the average. After discussion and agreement by all, the average was adjusted to onemillion dollars. JurorJean

### H. Bushman: On determining the amount of damages, all 12 voted on a dollar amount. We thenadded themup and dividedby 12. We had discussion on thisnumber and took a finalvote. We used the same process for each category after the divisionwe discussedthisthoroughlyand finallyagreed upon an amended amount. JurorAlice Marie Allen: We discussed what damage Stanhope was entitled to. We all entered a figure and we discussed the amount and divided by 12. We talked and voted on every question.

JurorMyrtle P. Arnold: The juryhad many discussions concerning the damages to be awarded to Mr. Stanhope, and used an average method to arrive at a working figure from which an amount of damages could be discussed.We used this method for each of the four categories of damages, and there was discussion after each process. The total amount of theawardwas also discussed,and we decided on a total damage award of One Million Dollars after those discussions. Each juror voted on the final amount of each item of damages, with the result being eight in favor of the amounts and four against the amounts on each category, aswell as the grand total of One Million Dollars. JurorMary Parrishwasunwilling to submit an affidavit. She was interviewedby counsel for theplaintiff, StephenM. Barrett, who supplied an affidavitinherplace,concerningtheirinterview. Although no one disputes the veracity of Stephen M. Barrett's affidavit, Iwill not include it here,because it is not directly an affidavit of a juror. The general tenor of the affidavit, however, is in accord with the other jurors. Therewerethreedifferent affidavitsfromJurorClariceHert. In the first affidavit on September 9,1988, she stated: Every juror wrote out the amount of damages for each category separately and one person read them out loud. The numbers were totalled and put on a board and then divided by 12. For each category, after thenumberwas averaged,all 12 jurors voted on the total amount awarded to each category. The jurorswent throughthisprocess fourseparate times. After discussion all 12 jurors then voted on the grand total of One Million Dollars. 

### I always had the option to vote and did vote on each decision. The affidavit of Clarice Hert dated September 23, 1988, obtained by a representativeof one of the counsel for one of the defendants,stated: I take this opportunity to provide a complete and full explanation of theworkings of the jury in the Stanhopeverdict. That as a member of the jury, 

### Iwas present during the deliberations. That therewas a disparity of agreement between all of the jurorsas to each and every category with respect to the issues of damages in Question #3. None of the jurors could agree upon the amount of damages. As a result of this disagreement among the jurors, it was decided and agreed that everyone would write down on a piece of paper what they thought should be awarded in each and every category and those figures would be totaled and divided by 12 and rounded off to thenearest $100,000or $1,000. Itwasmy understanding that thisfigure,thatwouldberoundedoff,wouldbe the figurethatwould beput down ontheverdict slipand no one could or would dissent to this process. For instance, if 

### Iwould have been one of the eight people and under the first category of the past and future medical expensesIwanted toaward $400,000and afterthe numberswere tabulated anddividedby 12, it came out to be $200,000, 

### Idid not have the opportunity or right to dissent and say that, no, 

### Iwanted $400,000. Everyone had agreed in advance to livewith the figure that was averaged outby thetotaldividedby 12with nodissents. This agreementwas made before the figure was ever even divided out. After each categoryhad been gone through and rounded off and adjusted toaddup to $1,000,000the total figurewas voted on by all of the jurors and the jurors agreed 8to 4 that total $1,000,000figure. On November 10, 1988, Clarice Hert gave a handwritten statement ltclarifyingll her earlier affidavits: Ihave read the JudgelsOrder of November 2, 1988,and wish to clarifymy previous affidavits. Iwould like to clarify the sentence that did not have opportunity or right to dissent and say no, 

### I

## did have that right. I did vote no on each category as three others. We all agreed on the change in all of the figures on each category. Each time therewas a total wevoted on it. 

### Ivoted zeroorno. 

### Iwas not bound by the number agreed on. Thiswas written upwhen I spoke toJohn Lindsey. Then heput it all down on tape. When 

### Ireadthewritten statement

### Imusthavemissed the (&) in the sentence. Ididhave theopportunity todissent. Thisprocess took several hours untilwe finally cameup with the way of reaching a figure to start from. Each number was discussed and voted on time and time again until we came up with this way of reaching a figure. Everyone wrote a figure down. We added up and dividedby twelve. We discussed it and decided to make it an even $1,000,000. We all voted and it was agreed on. This was not a totalwe cameupwith. We all decided to make it an even $1,000,000. deciding grant new trial, the District Court relied upon the September 23, 1988 affidavit of Clarice Hert, and the affidavits of Scharnowske,Kruger, Sandberg and Kline. Based on these and other affidavits, the court found that the jurors had "agreed in advance to be bound by a quotient verdict." There is absolutely nothing in the affidavits which would warrant the conclusion of fact that the jurors had agreed in advance to be bound. Theconclusion of fact isclearlyerroneous. On thatpoint alone, without more, the District Court erred, and this Court compounds the error by disregarding the manifest abuse of discretion by the ~istrict Court and by clinging instead to the argument that the District Court's findings are not clearly

erroneous. The District Court made a further pertinent finding that has

no basis of fact:

The court finds that theadditionaldamages were not the resultof furtherevaluationanddiscussionbased on the evidence,but rather on an arbitrary adjustment to the quotient.. 

# .

# . Again, theaffidavits reveal nothingonwhichthat findingcan be based. Rather the opposite is true from the tenor of the affidavits. 

### I therefore dissent from the majority opinion. I would

reverse the order of the District Court granting a new trial,andproceed to a determination of the other issues which should have been decided in this appeal.

I 

## ;

(f--/bL Justice x

Justice William E. Hunt, Sr., dissenting: I join in the dissent of Justice Sheehy.