Wednesday, March 16, 2011
Federal Rule of Evidence 606(b) provides that
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. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
Moreover, the Advisory Committee's Note to Rule 606(b) indicates that it is derived from federal opinions in which "testimony or affidavits of jurors ha[d] been held incompetent to show a compromise verdict [or] a quotient verdict." Meanwhile, Tennessee Rule of Evidence 606(b) provides that
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 by a 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. (emphasis added)
So, what is a quotient or gambling verdict? Well, let's take a look at the recent opinion of the Court of Appeals of Tennessee in Cullum v. Baptist Hospital Systems, Inc., 2011 WL 553768 (Tenn.Ct.App. 2011).In Cullum,
Plaintiffs, parents of child who suffered severe, permanent brain injuries during the course of his labor and delivery, filed suit against their physician, physician's employer, and related hospitals. The physician and her employer settled prior to trial, leaving the related hospitals as the only defendants.
After a first trial, the jury found for the defendants, but the judge granted the plaintiffs a new trial pursuant to Tennessee's thirteenth juror rule (under which the judge independently weighs the evidence as a "thirteenth juror" and grants a new trial if he funds that the evidence preponderated in favor of the losing party and against the verdict of the jury). Thereafter, a "second trial resulted in a verdict for plaintiffs, with the jury assigning 3.75 percent of fault to the defendants and 96.25 percent of fault to the nonparty physician."
Thereafter, the plaintiffs filed a Motion for a New Trial and appealed to the Court of Appeals of Tennessee after the trial court overruled it. This Motion was accompanied by several juror affidavits, including this one by Juror Driscoll:
In an effort to avoid a hung jury we all agreed to individually assign a percentage of fault to each defendant. Each individual percentage was tallied and then divided by the number twelve (12)....It was my understanding that we were bound by this number and that we would move on to the next phase....It is my opinion that if we had not compromised as described above, we would have had a hung jury.
According to the court, "[w]hen a jury agrees in advance to be bound by a verdict reached through an averaging process, the resulting verdict is a 'quotient' or 'gambling' verdict." Importantly, the court then noted that not all quotient verdict are illegal; instead, "[i]t is only when there is an antecedent agreement, express or implied, to abide by the results that a quotient verdict will be vitiated."
Applying these principles, the court found that
The affidavits show that the members of the jury, in the course of contentious deliberations and in order to avoid a hung jury, agreed to use a mathematical computation to apportion liability among the tortfeasors and that they would return the result as their verdict. Defendants offered no evidence to the contrary. The process employed by the jury resulted in a quotient verdict. While the trial court denied a new trial upon its determination that "it is not possible to average the numbers as alleged by Plaintiffs and come up with a 3.75% verdict," it is the jury's antecedent agreement to abide by the results of the averaging process rather than the results of the process that vitiates the verdict.
The court thus reversed the jury's verdict and remanded for a new trial.