                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-2077
                               Filed April 1, 2020


TROY RANDALL, Individually and as administrator of the ESTATE OF
TRISTON RANDALL and THE ESTATE OF TRISTON RANDALL,
     Plaintiffs-Appellees/Cross-Appellants,

vs.

DENNIS ARY and SANDRA ARY, Co-Administrators of the ESTATE OF
QUENTIN RAY ARY; and THE ESTATE OF QUENTIN RAY ARY,
     Defendants-Appellants/Cross-Appellees.

and

JACK YOUDE and VAN-HOF TRUCKING, INC.,
     Defendants.
________________________________________________________________


      Appeal from the Iowa District Court for Benton County, Lars G. Anderson,

Judge.

      Parties to a wrongful death lawsuit appeal the order granting a new trial on

damages. AFFIRMED.

      Joel T.S. Greer of Cartwright Druker & Ryden, Marshalltown, for appellants.

      Vernon P. Squires and Jeremiah D. Junker of Bradley & Riley PC, Cedar

Rapids, for appellees.

      Kimberly S. Bartosh (until withdrawal), Stephen E. Doohen, and Zachary J.

Hermsen of Whitfield & Eddy, P.L.C., Des Moines, for Jack Youde and Van-Hof

Trucking, Inc.

      Considered by Vaitheswaran, P.J., and Doyle and Ahlers, JJ. Greer, J.,

takes no part.
                                          2


DOYLE, Judge.

       Parties to a wrongful death lawsuit appeal the order granting a new trial on

damages after the trial court found the jurors considered documents that were

outside the record in determining damages. The defendants contend the court

abused its discretion in granting a new trial on damages because the damage

award was supported by the evidence rather than influenced by the extrinsic

documents. On cross-appeal, the plaintiffs contend the court erred by denying

their request for additur.

       Seventeen-year-old Triston Randall was a passenger in a truck driven by

Quentin Ary. The truck was struck by a tractor-trailer when Ary tried to cross

Highway 150 without stopping at a posted stop sign. All five people in the truck

were killed in the collision.

       Triston’s father, Troy, filed a wrongful death lawsuit against Ary’s estate,

both individually and as administrator of Triston’s estate.1 At trial, the parties

presented expert witness evidence on the amount of the plaintiffs’ damages. The

plaintiffs called a forensic economist who calculated Triston’s lost accumulation

damages between $1,197,277 and $1,458,492. The defendants’ expert witness,

a retired professor of economics, calculated Triston’s lost accumulation damages

between $51,971 and $155,853. The jury found Ary at fault for Triston’s death,

and it awarded $59,205 in damages to Triston’s estate for loss of accumulation but

no damages to Troy for loss of consortium.


1 The lawsuit also named the driver of the tractor-trailer and his employer as
defendants. Because the jury found no fault on their part and they do not
participate in this appeal, we refer only to Ary’s estate and its administrators as the
defendants.
                                         3


       After the jury returned its verdict, the court attendant found documents in

the jury room that were not part of the record. The district court described the

documents:

              There were two documents found. One is a type written
       document consisting of two pages that appears to have been
       prepared by one of the jurors. In general terms, it contains various
       calculations of future valuations of present sums of money using
       different assumptions. The second document consists of one page
       and appears to be a photocopy from a book with a chart containing
       rates of return for different asset types for various holding periods.

The plaintiffs moved for new trial, arguing the jury committed misconduct by

viewing and considering extrinsic evidence during their deliberations. The plaintiffs

asked the court to condition a new trial upon a damages additur, suggesting an

additur of $311,706 for lost accumulation and $300,000 for lost consortium. The

defendants resisted, arguing the plaintiffs could not show the misconduct likely

impacted the jury’s decision. The trial court granted a new trial on damages and,

on that basis, stated it “need not address” the request for additur.

       We review a grant of new trial based on jury misconduct for an abuse of

discretion. See Ten Hagen v. DeNooy, 563 N.W.2d 4, 10 (Iowa Ct. App. 1997).

An abuse of discretion occurs if the trial court’s actions were clearly unreasonable

under the circumstances. See id. To impeach a verdict based on jury misconduct,

“it must appear the misconduct was calculated to, and with reasonable probability

did influence the verdict.” Id. (quoting State v. Arnold, 543 N.W.2d 600, 605 (Iowa

1996)).

       The trial court determined that the documents found in the jury room appear

to be have been intended to help the jury calculate the plaintiffs’ damages. It noted

that the jury’s award did not correspond neatly to any of the numbers provided by
                                         4


the experts.2 On this basis, the court determined that “the jury performed their own

calculations” of damages and that there was “a reasonable probability that these

calculations were influenced by the documents.”

       The defendants argue the plaintiffs fail to show a reasonable probability that

the extrajudicial documents influenced the verdict.      They note that the jury’s

damage award “is within the range” provided by their expert witness. But the

question is not whether the jury’s verdict aligns with the evidence presented, but

whether outside evidence influenced its decision.

       In reaching its conclusion, the court cited State v. Whited, No. 00-1333,

2002 WL 180362, at *1-2 (Iowa Ct. App. Feb. 6, 2002), in which a jury verdict in a

criminal prosecution for sexual abuse was questioned when the court learned that

the jurors had consulted evidence outside the record.3 The defendant moved for

new trial based on jury misconduct, which the district court denied after

determining the extrajudicial evidence was not prejudicial because it was

“consistent with the other information available and provided during the course of


2 The defendants’ expert calculated three different projections for lost accumulation
based on average earnings: one based on Triston only graduating high school,
one based on completion of an associate degree, and one based on completion of
a bachelor degree. Although the jury’s award of $59,205 falls between the lowest
and highest figures the defendants’ expert gave, it does not fit within any of the
three individual ranges calculated by the expert. The closest range is based on
high school graduation, with the expert calculating lost accumulation to be between
$51,971 and $54,838.
3 In Whited, the jury consulted both dictionary and medical dictionary definitions of

“trichomonas,” which the complaining witness had been diagnosed with. 2002 WL
180362, at *2. Both definitions described trichomonas as a “sexually transmitted
disease.” Id. During trial, the complaining witness’s doctor testified that
trichomonas is sexually transmitted and, “if there’s a positive, that means there has
been some sexual contact.” Id. But on cross-examination, the doctor admitted
trichomonas can also be transmitted from contact with inanimate objects, like toilet
seats. Id.
                                             5

the trial.” Whited, 2002 WL 180362, at *2-3. On appeal, this court acknowledged

that the extrajudicial evidence “was consistent” with the evidence presented at trial

and did not contradict it. Id. at *3. But we concluded the jury’s misconduct

warranted reversal because the outside evidence “did not present a full description

of the information elicited at trial.” Id. Instead, it “reinforced” the opinion of a

medical expert who testified at trial on whether the sexual abuse occurred and

likely influenced the jury’s verdict. Id.

       For the same reasons, we find the trial court acted within its discretion in

granting a new trial on damages.            The jury was confronted with two expert

witnesses who provided vastly different calculations of lost accumulation

damages. The jury went outside the record in consulting documents to help it

decide damages. Those documents appear to have provided a calculation that fell

within the range of damages provided by one expert but conflicted with the

damages calculated by the other expert. Although the jury could have reached the

same verdict without consulting outside evidence, there is a reasonable probability

that the documents influenced its verdict. See King v. Barrett, 185 N.W.2d 210,

213 (Iowa 1971) (holding that where a juror went to the scene of an automobile

collision and made observations that varied from those of witnesses, “the collecting

of the data and the reporting of it during deliberations constituted such jury

misconduct as to vitiate the verdict”); Harden v. Illinois Cent. R. Co., 112 N.W.2d

324, 326 (Iowa 1961) (holding that new trial was warranted based on jury’s

examination of chart not in evidence that showed the average stopping distance

for a vehicle on dry surfaces and “showed a different distance at a certain speed,

than that testified to by witnesses”).
                                          6


       The plaintiffs ask us to remand to the district court for entry of an additur

instead of a new trial on damages. See Pexa v. Auto Owners Ins. Co., 686 N.W.2d

150, 162 (Iowa 2004) (“If the damages are inadequate, the trial court must either

grant a new trial or, if appropriate, grant an additur.”). But the court granted a new

trial based on juror misconduct, not inadequate damages. As noted, the jury’s

damage award was within the range of the evidence. Although juror misconduct

may have influenced the jury’s damage award, there is no basis for finding the

award itself was inadequate. See Triplett v. McCourt Mfg. Corp., 742 N.W.2d 600,

602 (Iowa Ct. App. 2007) (noting the court must not set aside a verdict merely

because it would have reached a different conclusion; to set aside the verdict, the

award must be “(1) flagrantly excessive or inadequate; (2) so out of reason as to

shock the conscience; (3) a result of passion, prejudice, or other ulterior motive; or

(4) lacking in evidentiary support”).

       We affirm the order granting a new trial on the damages issue.

       AFFIRMED.
