Conditionally Grant and Opinion Filed November 21, 2014




                                             SIn The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-14-00940-CV

                                 IN RE ZIMMER, INC., Relator

                  Original Proceeding from the 366th Judicial District Court
                                    Collin County, Texas
                            Trial Court Cause No. 366-03111-2011

                                             OPINION
                          Before Justices FitzGerald, Francis, and Brown
                                    Opinion by Justice Francis
       Zimmer, Inc. filed this petition for writ of mandamus after the trial court granted a

motion for new trial in this product liability suit. Because we conclude the trial court abused its

discretion in ordering a new trial, we conditionally grant mandamus relief.

       This case arises from a product liability suit brought by real party in interest Don

Gustafson against Zimmer, Inc. for injuries allegedly sustained as a result of the failure of the

Zimmer Periarticular Distal Medial Tibial Locking Plate, a metal plate used by orthopedic

surgeons to provide temporary internal stabilization for severe fractures of the lower leg.

Gustafson alleges the product was defectively designed. The Zimmer plate was implanted in

Gustafson’s leg following a serious motorcycle accident. The first Zimmer plate failed roughly a

year after it was implanted, and another Zimmer plate was then implanted. This second plate

also failed after a similar period of time. Gustafson contends he is permanently disabled as a

result of the failure of the two implants.
           The case was tried to a jury. The jury selection process included a written questionnaire

asking, “If you or a family member ever had a serious bodily injury, describe what happened.”

Zimmer’s attorney also questioned the venire about any experience they or their family members

may have had with serious injuries. He asked, “Has anyone here had a bad injury which caused

fractures or some real significant injury, or have you had a very close family member that has

had a very, very significant injury?” Several jurors responded affirmatively to this question, and

Zimmer’s attorney included follow-up questions regarding their experiences. Although there

were a number of challenges for cause, neither party challenged any juror for cause based on his

or her disclosure of any experiences with injuries. Venireman Young was among the jurors

seated. Young answered “None” to the inquiry on the juror questionnaire regarding serious

bodily injury and did not respond to Zimmer’s question during voir dire regarding injuries,

although he did respond to other questions during voir dire about the burden of proof and his

ability to be fair to a veteran of the armed services.

           The jury returned a 10-2 verdict in Zimmer’s favor and the trial court rendered a take-

nothing judgment based on the jury’s verdict as requested by Zimmer. Young voted with the

majority. Gustafson then moved for new trial, asserting: (1) the jury had engaged in misconduct

and (2) the jury’s finding the Zimmer plate was not defective was against the great weight and

preponderance of the evidence. In support of his motion, Gustafson provided affidavits from the

two dissenting jurors alleging several incidents of purported juror misconduct.1                                                     Zimmer

responded to the motion for new trial but did not attach any counter-affidavits to its response.




     1
        Much of the content of the affidavits concerns statements made during jury deliberations. Such statements cannot form the basis of a
motion for new trial. Both the Texas Rules of Civil Procedure and Texas Rules of Evidence prohibit a juror from testifying as to any matter or
statement occurring during the course of the jury’s deliberations for the purpose of impeaching the verdict. TEX. R. CIV. P. 327(b); TEX. R. EVID.
606(b); Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 370 (Tex. 2000) (“Rule 327(b) operates to prohibit jurors from testifying about
matters and statements occurring during deliberations.”). The trial court properly refused to consider the statements made during the course of
deliberations.



                                                                      –2–
       The trial court conducted a hearing on the motion for new trial.             At the hearing,

Gustafson’s counsel argued his affidavits alleging juror misconduct warranted a new trial, but he

did not offer any live testimony or other evidence and did not attempt to introduce the juror

affidavits as evidence. Zimmer also did not offer evidence and did not argue Gustafson’s motion

should fail because Gustafson did not offer evidence at the hearing.

       The trial court granted Gustafson’s motion for new trial. The trial court found “that the

juror misconduct detailed in the two affidavits probably caused injury to Plaintiff and rendition

of an improper verdict.” The trial court further found “the jury’s verdict was contrary to the

great weight of the evidence.” The trial court elaborated:

       [T]here was uncontroverted evidence that the design of the Zimmer tibia plate at
       issue in this litigation had failed the design validation criteria in Defendant
       Zimmer’s 510k submission to the FDA due to the weakest point of the Zimmer
       tibia plate being located in the shaft of the plate. In addition, there was
       uncontroverted evidence that the results of a bending stiffness test conducted by
       Defendant Zimmer demonstrated inadequate stiffness of the Zimmer tibia plate.

       A trial court’s order granting a new trial may be reviewed by an appellate court in a

mandamus proceeding. See In re United Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012)

(orig. proceeding).   A writ of mandamus will issue to correct a clear abuse of discretion

committed by a trial court in granting a new trial. In re Whataburger Rests. LP, 429 S.W.3d 597,

598 (Tex. 2014) (per curiam) (citing In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746,

756–57 (Tex. 2013) (orig. proceeding)). The supreme court has stated:

       A trial court does not abuse its discretion so long as its stated reason for granting a
       new trial (1) is a reason for which a new trial is legally appropriate (such as a
       well-defined legal standard or a defect that probably resulted in an improper
       verdict); and (2) is specific enough to indicate that the trial court did not simply
       parrot a pro forma template, but rather derived the articulated reasons from the
       particular facts and circumstances of the case at hand.




                                                –3–
Toyota, 407 S.W.3d at 756–57 (emphasis in original) (quoting United Scaffolding, 377 S.W.3d at

689–90). A new trial order “cannot stand,” however, when the “trial court’s articulated reasons

are not supported by the underlying record.” Toyota, 407 S.W.3d at 757.

       The order in this case cites juror misconduct and factual sufficiency of the evidence as its

bases for granting new trial. Both juror misconduct and factual sufficiency of the evidence to

support the jury’s verdict, if established, are legally proper reasons for granting a new trial.

Thus, the order complies with the first requirement. See Toyota, 407 S.W.3d at 759.

       The trial court’s order also satisfies the second requirement, specificity. It recites the

specific facts and circumstances of the case that led the trial judge to conclude the jury had

engaged in misconduct. The order is specific enough both to permit Zimmer to attack it and to

enable our review.    See In re United Servs. Auto. Ass’n, No. 01-13-00508-CV, 2014 WL

4109756, at *12 (Tex. App.—Houston [1st Dist.] Aug. 21, 2014, orig. proceeding). The order

explains, with reference to the evidence adduced at trial, the basis on which the trial judge found

the jury’s verdict to be against the great weight and preponderance of the evidence. See United

Scaffolding, 377 S.W.3d at 688. It is clear the trial court did not simply “parrot a pro forma

template” in drafting its order. See Toyota, 407 S.W.3d at 759.

       However, “[s]imply articulating understandable, reasonably specific, and legally

appropriate reasons is not enough; the reasons must be valid and correct.” Id. Thus, we must

undertake a “cumbersome review” of the trial court’s forty-one volume record to determine

whether it supports the trial court’s conclusion the jury engaged in misconduct and the jury’s

verdict was against the great weight and preponderance of the evidence. See id.

       To warrant a new trial based on jury misconduct, the movant must establish (1) the

misconduct occurred, (2) it was material, and (3) it probably caused injury. TEX. R. CIV. P.

327(a); In re Health Care Unlimited, Inc., 429 S.W.3d 600, 602 (Tex. 2014) (citing Golden

                                               –4–
Eagle Archery, 24 S.W.3d at 372). The complaining party has the burden to prove all three

elements before a new trial can be granted.           Healthcare Unlimited, 429 S.W.3d at 602.

Gustafson failed to meet this burden.

        In attempting to meet his burden, Gustafson obtained the affidavits of the two dissenting

jurors. The first affidavit, from the foreman of the jury, stated some jurors discussed the award

of money to Gustafson “during the trial and prior to the close of evidence.” The foreman’s

affidavit noted “one juror stated that the juror’s mother-in-law lost both of her legs and that she

was working as a reason why Mr. Gustafson should not be awarded the money damages he was

seeking.”    The juror who made this statement about his mother-in-law was subsequently

identified in the foreman’s amended affidavit as juror Young.

        The affidavits also attempted to establish the jury disregarded the trial court’s admonitory

instructions. Specifically, the foreman’s affidavit further stated that during the trial and before

the close of evidence “one of the jurors discuss[ed] how awarding Mr. Gustafson the money for

his damages would change Mr. Gustafson’s social class and would be more than he could have

earned at work.” The juror who allegedly voiced this concern was never identified. The second

dissenting juror’s affidavit stated the concern about elevating Gustafson in social class was

raised by “multiple jurors,” although the second dissenting juror did not note whether these sorts

of comments occurred during deliberations or outside of deliberations. In addition, the second

dissenting juror’s affidavit stated:

         [M]ultiple jurors were deliberating the facts and sharing their opinions prior to
        the end of trial while the case was still ongoing and before the commencement of
        jury deliberations. Among other things, these jurors discussed whether the
        Zimmer plate was defective and whether Plaintiff or Defendant Zimmer was
        correct. At least some of these discussions occurred when not all jurors were
        present.

        Neither of the dissenting jurors testified live at the hearing on the motion for new trial.

The trial court heard only argument and did not receive evidence. Thus, these two affidavits
                                                –5–
formed the sole basis upon which the trial court concluded jury misconduct occurred. Gustafson

argues the trial court appropriately determined the motion for new trial based on these two

affidavits and argument alone.

           Relying on case law governing motions for new trial following entry of a default

judgment, Gustafson first argues “the affidavits attached to a motion for new trial can be

considered evidence without being offered at a hearing.” See, e.g., Dir. State Emps. Workers’

Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994) (affidavits attached to the motion for

new trial “do not have to be offered into evidence in order to be considered by the trial court for

the meritorious defense element or any other element of the Craddock test”). Neither the case

law nor any procedural rule mandates an evidentiary hearing when a party seeks a new trial

following a default judgment.2 The decisions permitting determination of a motion for new trial

following default judgment based on affidavits reflect a preference for an adjudication of cases

on their merits rather than dismissal based on procedural default. Sutherland v. Spencer, 376

S.W.3d 752, 756 (Tex. 2012). They are not pertinent to our construction of rule 327.

           Rule 327, unlike the case law developed concerning motions for new trial following a

default judgment, plainly states the trial court “shall hear evidence [of misconduct of the jury or

the officer in charge of them] from the jury or others in open court . . . .” TEX. R. CIV. P. 327(a).

Gustafson argues this evidentiary requirement applies only when one of the parties seeks to offer

live testimony. He contends it exists solely so jurors or other persons who are not willing to sign

affidavits may be subpoenaed and compelled to testify. We disagree this is the sole purpose of

the evidentiary hearing requirement. Such an interpretation of rule 327 is at odds with both the


     2
       In fact, “not every hearing called for under every rule of civil procedure necessarily requires an oral hearing. Unless required by the
express language or the context of the particular rule, the term ‘hearing’ does not necessarily contemplate either a personal appearance before the
court or an oral presentation to the court.” Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). The supreme court
discourages oral presentation of testimony and evidence where motions can fairly be submitted in writing. Michiana Easy Livin’ Country, Inc. v.
Holten, 168 S.W.3d 777, 782 (Tex. 2005). However, a hearing on a motion for new trial based on juror misconduct is not such a case.



                                                                      –6–
recent development of new trial case law and the long history of rule 327 and its predecessors in

cases denying motions for new trial.3

           The recent evolution of Texas jurisprudence regarding motions for new trial has been

driven largely by a desire to protect the right to a jury trial free from the possibility that the jury’s

verdict will be set aside simply because the trial judge sees the evidence differently. See

generally In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 210–15 (Tex. 2009) (orig.

proceeding). Rule 327 is an integral part of the scheme to preserve jury verdicts from being set

aside arbitrarily. As the supreme court has noted, rule 327 seeks to protect the integrity of jury

verdicts “by giving due consideration to the right to a jury trial in an effort to best protect the

trial process.” In re Health Care Unlimited, Inc., 429 S.W.3d at 603–04 (admonishing trial court

for presuming harm based on the appearance of impropriety arising from communications among

juror and person associated with party).

           There is basis for a “significant concern” that “a disgruntled juror whose view did not

prevail in the jury room” might seek “vindication by overturning the verdict.” Golden Eagle

Archery, 24 S.W.3d at 36. Indeed, Zimmer contends that is the situation in this case. Thus, to be

entitled to a hearing on a motion for new trial alleging juror misconduct, the party raising such a

claim must first “afford assurance to the court that the proponent of a motion [will] probably be

able to support by proof the allegations of his motion” by providing the trial court with affidavits

that tend to establish misconduct. Estep v. Bratton, 24 S.W.2d 465, 468 (Tex. Civ. App.—

Eastland 1929, no writ); accord Elston v. Sherman Coca-Cola & Dr. Pepper Co., 596 S.W.2d

215, 217 (Tex. Civ. App.—Texarkana 1980, no writ) (“The party asserting jury misconduct must

show good faith by demonstrating that such allegation is based upon knowledge rather than

     3
       Texas law until recently has prohibited review of most orders granting new trial. See In re Columbia Med. Ctr. of Las Colinas, 290
S.W.3d 204, 208 (Tex. 2009) (orig. proceeding). (“[O]ur decisions preclude, for the most part, appellate review of orders granting new trials.”).
Thus, Texas courts have not had the opportunity to review cases in which trial courts have granted new trial based on juror misconduct.



                                                                     –7–
hope.”). The affidavit requirement is a “remedy against ‘fishing expeditions.’” Moran Utils. Co.

v. McHaney, 325 S.W.2d 712, 722 (Tex. Civ. App.—Beaumont 1959, writ ref’d n.r.e.) (quoting

Freedman Packing Co. v. Harris, 160 S.W.2d 130, 134 (Tex. Civ. App.—Galveston 1942, writ

ref’d w.o.m.)).

       A proceeding under rule 327 is not complete, however, upon the filing of the affidavits.

Once a party has come forward with affidavits or an “equivalent explanation of the attendant

circumstances” tending to support the claim of jury misconduct, the trial court “must make an

initial determination as to whether material misconduct occurred from the motion and its

attachments.” Elston, 596 S.W.2d at 217. If the party raising the issue of jury misconduct meets

its initial burden to produce affidavits that satisfy the trial court that the party alleging

misconduct will probably be able to support its allegations with “competent proof,” rule 327

“imposes a mandatory duty upon the trial court to receive evidence of jury misconduct if it is

properly presented.” Id. The trial court has no discretion to refuse to conduct an evidentiary

hearing when a party comes forward with affidavits supporting a cognizable claim of material

jury misconduct. Hatton v. Highlands Ins. Co., 631 S.W.2d 787, 788 (Tex. App.—Tyler 1982,

no writ); Elston, 596 S.W.2d at 217.

       Gustafson argues, however, that because here neither party sought an evidentiary hearing,

the trial court was entitled to decide the question of jury misconduct on the basis of affidavits

and argument alone. We disagree. The primary question to be determined when considering a

rule 327 motion is whether misconduct occurred, which is a question of fact. Tex. Emp. Ins.

Ass’n v. Moore, 549 S.W.2d 37, 39 (Tex. Civ. App.—El Paso 1977, no writ). “[I]t is the

province and duty of the trial judge [considering a motion for new trial based on juror

misconduct] to pass upon the credibility of witnesses and the weight to be given the testimony

and to find the facts . . . .” Estep, 24 S.W.2d at 469. A trial judge ruling on a motion for new

                                              –8–
trial based on affidavits of juror misconduct alone cannot perform the critical function of

assessing the credibility of the affiants, who are making serious charges about the manner in

which their fellow jurors have discharged their duties.

       For that reason, both this Court and numerous other courts of appeals have concluded in

upholding trial court orders denying new trial when a party moving for new trial has rested on

affidavits alone, that affidavits attached to a motion for new trial alleging juror misconduct are

“neither evidence nor admissible as such on the hearing for a new trial on the ground of jury

misconduct.” Downing v. Uniroyal, Inc., 451 S.W.2d 279, 284 (Tex. Civ. App.—Dallas 1970,

no writ); accord Allison v. Gulf Liquid Fertilizer Co., 381 S.W.2d 684, 686 (Tex. Civ. App.—

Fort Worth 1964, no writ). “Affidavits alleging jury misconduct do not constitute evidence of

the facts therein stated.” Innes v. Greiner, 449 S.W.2d 83, 85 (Tex. Civ. App.—Amarillo 1969,

no writ). As a result, a trial court may properly deny a motion for new trial when a party alleging

jury misconduct relies only on affidavits and fails to request a hearing on his motion and offer

live testimony proving misconduct. See, e.g., McNutt v. Qualls, 433 S.W.2d 521, 524 (Tex. Civ.

App.—Dallas 1968, no writ) (trial court did not err in refusing to grant new trial where

complaining party offered only affidavits); see also Innes, 449 S.W.2d at 85 (plaintiff waived

any objection he may have had to jury misconduct by failing to request a hearing, relying instead

on affidavits); Hernandez v. Braddock, 641 S.W.2d 359, 363 (Tex. App.—Corpus Christi 1982,

no writ) (record established trial court’s compliance with rule 327 where trial court offered

defendants opportunity to present evidence and offer was refused). Similarly, a trial court

properly denies a new trial when it holds a hearing and the party asserting misconduct discusses

the affidavits but never attempts to admit the affidavits into evidence or present any other

evidence of juror misconduct through live testimony. Hagood v. Fishborn, Inc., No. 05-07-

00690-CV, 2009 WL 264627, at *2 (Tex. App.—Dallas Feb. 5, 2009, pet. denied) (mem. op.).

                                               –9–
In such a situation there is no evidence to support the complaining party’s allegations of juror

misconduct. Id. We see no reason why the evidentiary requirements of rule 327 should be

interpreted any less stringently when the trial court grants new trial and sets aside the jury

verdict.

       Here, Gustafson argued below that his motion for new trial was “factually

uncontroverted” because his motion “was on file . . . [m]ore than a month before today’s hearing,

two affidavits, no contrary evidence,” and Gustafson repeatedly referred to his affidavits as

“evidence.” But Gustafson made no attempt to actually offer any sort of competent proof of his

claims of juror misconduct nor did he attempt to introduce the affidavits themselves into

evidence. Cf. Golden Eagle Archery, 24 S.W.3d at 364-65 (affidavits offered and admitted as

evidence in addition to live testimony on hearing on juror misconduct). Similarly, the trial court

did not announce it would rely on the affidavits as evidence and Zimmer did not agree to the use

of the affidavits as evidence of Gustafson’s claims. Cf. Garrett v. United States Fid. & Guar.

Co., 77 S.W.2d 1066, 1069 (Tex. Civ. App.—Dallas 1934) (“[T]he court announced that all

affidavits on the issue of misconduct of the jury, attached to the pleadings, would be considered

as evidence, and this action of the court was acquiesced in by the attorneys for the parties, so the

attached affidavits thereby became evidence at the hearing on the motion.”), rev’d on other

grounds, 105 S.W.2d 868 (Tex. 1937). As a result, there was no competent evidence of juror

misconduct in the record on which the trial court could base its order granting new trial.

       Gustafson asserts that although he failed to offer testimony or other admissible evidence

at the hearing in support of his allegations of jury misconduct, this failure was cured by

Zimmer’s lack of objection to the consideration of the issue based on affidavits and on its failure

to seek a ruling on its evidentiary objections to his affidavits. He argues “[Zimmer] never

objected that the affidavits attached to Gustafson’s motion for new trial do not constitute

                                               –10–
evidence upon which the trial court could rely.” In so arguing, Gustafson ignores his obligation

to satisfy his affirmative burden of proving jury misconduct.           The party asserting jury

misconduct must prove in an evidentiary hearing in open court that misconduct occurred and that

it was material. See TEX. R. CIV. P. 327. Gustafson offered no evidence at the hearing on the

motion for new trial. The juror affidavits served only to demonstrate Gustafson had sufficient

evidence of jury misconduct to warrant an evidentiary hearing. See Elston, 596 S.W.2d at 217.

Until Gustafson made a prima facie evidentiary showing at the hearing on juror misconduct,

however, Zimmer had no burden to carry and no obligation to object that Gustafson had not

carried his burden of proof. Cf. TEX. R. APP. P. 33.1(d) (in nonjury case, complaint of legal

insufficiency may be made for first time on appeal). We conclude the trial court abused its

discretion in granting new trial based only on affidavit evidence of juror misconduct.

        Moreover, even if this Court were to conclude affidavit evidence is sufficient to carry the

complaining party’s burden on a motion for new trial to prove juror misconduct, the affidavits in

this case are not sufficient. Gustafson asserted two forms of jury misconduct: Young’s failure to

reveal his mother-in-law lost the use of her legs and the jury’s general disregard of the trial

court’s instruction not to discuss the case outside of deliberations, including discussions

concerning Young’s mother-in-law’s ability to work. Neither constituted misconduct under the

facts of this case.

        An erroneous answer by a juror during voir dire warrants a new trial only if there is

concealment by the juror. Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 851 (Tex. App.—

Houston [1st Dist.] 1987, writ ref’d n.r.e.) (citing Dunn v. Sears Roebuck & Co., 371 S.W.2d

731, 735 (Tex. Civ. App.—Houston 1963, writ ref’d n.r.e.)). Before concealment can be found,

the questions asked must be direct and specific and call for disclosure. Id. The questions

Gustafson complains Young answered incorrectly related only to injury. The record before the

                                               –11–
trial court did not establish whether Young’s mother-in-law lost the use of her legs by injury, by

disease, or in some other fashion. Because the record did not establish how Young’s mother-in-

law lost the use of her legs, the record did not support a conclusion that Young failed to properly

respond to the questions asked in voir dire or in the jury questionnaire. Accordingly, the trial

court could not properly conclude Young engaged in jury misconduct by concealing a relevant

fact during voir dire.

       In addition, a trial court may grant new trial based on juror misconduct only if “it

reasonably appears from the evidence both on the hearing of the motion and the trial of the case

and from the record as a whole that injury probably resulted to the complaining party.” TEX. R.

CIV. P. 327(a). The trial court concluded Young’s non-disclosure was material and probably

caused injury because the verdict in the case was 10–2. The trial court reasoned that if Young

had reported that his mother-in-law had lost both her legs, Gustafson’s counsel would have

struck Young and the jury seated without Young would have ultimately been a hung jury. The

record before the trial court does not support this conclusion.

       Gustafson’s counsel never testified he would have struck Young if he had learned of his

mother-in-law’s condition. Instead, Gustafson’s counsel argued “[i]f this juror had disclosed

during voir dire that there was an issue of a family member who had lost both their legs, but was

still working, that would have been explored further either here at the bench, or we may have

exercised a strike for cause [or] a peremptory strike.” The equivocal statement that Gustafson’s

legal team “may have exercised a strike for cause or a peremptory strike” cannot lead to the

conclusion that a different jury would have been seated had Young revealed his mother-in-law’s

condition.

       Moreover, even if Gustafson’s counsel had testified positively and without qualification

he would have struck Young, that testimony alone would have been insufficient to establish

                                               –12–
injury in the face of his contrary conduct with respect to other jurors who had disclosed they or a

family member had suffered a serious bodily injury. At the conclusion of voir dire, Gustafson’s

counsel sought to exercise challenges for cause for a variety of reasons but did not challenge any

potential juror based on the fact the juror or a family member ever had a serious bodily injury.

       The supreme court’s recent decision in In re Whataburger Restaurants is instructive. In

that case, a juror failed to disclose she had previously been involved as a defendant in a lawsuit.

Whataburger, 429 S.W.3d at 599. The moving party’s attorney testified at the jury misconduct

hearing that if the juror had made such a disclosure, he would have questioned her about those

suits and would have struck her as a juror. The supreme court found this evidence insufficient on

its own to establish the composition of the jury panel would have been different absent

concealment by the potential juror.        Id. at 599–600.   The court concluded the attorney’s

testimony was speculative and insufficient when the actual conduct of the attorney at trial

showed he did not strike other jurors who disclosed participation in lawsuits. Id. Just as in

Whataburger, no evidence shows Young would have been struck from the panel had he

disclosed his mother-in-law’s condition.

       The trial court also concluded a new trial was warranted because the jurors violated the

court’s admonitions:

       [T]o refrain from discussing the case prior to deliberations; to refrain from
       discussing the case at any time without all jurors present; to refrain from
       discussing, considering, or sharing any special knowledge or experiences with the
       other jurors; and to not discuss any evidence that was not admitted in the
       courtroom during the course of the trial.


The trial court found Young’s discussion of his mother-in-law’s ability to work even though she

had lost the use of her legs and “repeated discussions regarding the merits of the case prior to the

close of evidence and without all jurors present” constituted violations of its admonitions.



                                                –13–
Neither of these bases sufficed to allow the trial court to disregard the jury’s verdict and order a

new trial.

       “The fact that jurors violated a trial court’s admonitory instructions is not alone sufficient

to warrant a new trial.” Holland v. Lovelace, 352 S.W.3d 777, 786 (Tex. App.—Dallas 2011,

pet. denied).   A party seeking new trial based on the jury’s failure to follow admonitory

instructions must establish probable injury. Health Care Unlimited, 429 S.W.3d at 602–03. To

show probable injury from failure to follow the trial court’s admonitory instructions, “there must

be some indication in the record that the alleged misconduct most likely caused a juror to vote

differently than he would otherwise have done on one or more issues vital to the judgment.” Id.

at 603 (quoting Redinger v. Living, Inc., 689 S.W.2d 415, 419 (Tex. 1985)). Neither this Court

nor the trial court may speculate about the impact of conduct outside of deliberations on the

outcome of the case. See Medistar Corp. v. Schmidt, 267 S.W.3d 150, 161 (Tex. App.—San

Antonio 2008, pet. denied) (“Medistar did not produce any evidence at the motion for new trial

hearing regarding the impact of the bailiff’s communications on the jurors. Thus, we are left to

speculate as to whether the bailiff’s comments actually caused a juror to vote differently than he

or she would otherwise have done absent the comments.”). “We cannot manufacture injury by

supposition or conjecture.” Doucet v. Owens-Corning Fiberglas Corp., 966 S.W.2d 161, 164

(Tex. App.—Beaumont 1998, writ denied).            Unless the conduct shown was “so highly

prejudicial and inimical to fairness” that it is facially harmful, the court may not presume that the

jury misconduct alleged actually caused harm. See Davis v. Damge, 328 S.W.2d 203, 207 (Tex.

Civ. App.—Houston 1959, writ ref’d n.r.e.) (discussing repeal of prior statute under which harm

was presumed upon misconduct being proven); see also Bell v. State, 724 S.W.2d 780, 798 (Tex.

Crim. App. 1986) (“Appellant effectively asks us to presume misconduct, as well as harm, which

we decline to do.”).

                                               –14–
       Gustafson attempted to meet his burden of establishing injury by arguing his inability to

work was undisputed and the only “evidence” the jury heard that Gustafson was able to work

came from juror Young’s statements about his mother-in-law’s ability to work. Gustafson thus

reasoned a verdict that failed to award him damages must have been the result of Young’s

improper comments. The affidavits do not establish any particular juror was influenced to vote

as he or she did on the liability questions as a result of the conversations described in the

affidavits. Thus, they do not establish the verdict would have likely been different had the

conduct alleged not occurred. In sum, the affidavits, even if permitted to be used as evidence on

the motion for new trial, did not establish a basis for an order granting new trial premised on

juror misconduct. Accordingly, the trial court clearly abused its discretion in granting new trial

based on juror misconduct.

       The trial court also concluded the jury’s finding the Zimmer plate was not defective was

against the great weight and preponderance of the evidence. A trial court has considerable

discretion in granting a new trial, but that discretion has limits. Columbia Med. Ctr., 290 S.W.3d

at 210. Its “discretion should not, and does not, permit a trial judge to substitute his or her own

views for that of the jury without a valid basis.” Id. at 212. Although factual sufficiency review

on mandamus following the grant of new trial is new to Texas and there are few cases in which

such a review has been conducted, we see no reason to believe the standards for factual

sufficiency review in new trial mandamus proceedings should differ from the standards of

review on appeal. We may grant mandamus only where we find the trial court clearly abused its

discretion, but the incorrect application of the law is an abuse of discretion. Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Thus, when a trial court incorrectly

determines the evidence is factually insufficient and orders a new trial on that basis, it abuses its

discretion and mandamus is appropriate.

                                               –15–
       In evaluating the factual sufficiency of the evidence, a court must examine the entire

record, considering the evidence in favor of and contrary to the challenged finding, and set aside

the jury’s verdict only if it is so contrary to the overwhelming weight of the evidence as to be

clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Pool v.

Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). When a party attacks the factual sufficiency

of an adverse finding on an issue on which it had the burden of proof, as Gustafson did in his

motion for new trial, the party must demonstrate the adverse finding is against the great weight

and preponderance of the evidence. Francis, 46 S.W.3d at 242. The amount of evidence

necessary to support the jury’s verdict is far less than that necessary to warrant disregarding the

jury’s verdict. See Bright v. Addison, 171 S.W.3d 588, 595–96 (Tex. App.—Dallas 2005, pet.

denied).

       Evidence is factually sufficient to support the jury’s verdict if the evidence is such that

reasonable minds could differ on the meaning of the evidence or the inferences and conclusions

to be drawn therefrom. Cendant Mobility Servs. Corp. v. Falconer, 135 S.W.3d 349, 352 (Tex.

App.—Texarkana 2004, no pet.). We must be mindful that the jurors are the sole judges of the

credibility of the witnesses, the weight to give their testimony, and the resolution of conflicts in

the evidence. See United Servs. Auto. Ass’n, 2014 WL 4109756, at *7 (citing City of Keller v.

Wilson, 168 S.W.3d 802, 819–21 (Tex. 2005)). Appellate courts are not fact-finders and, like

trial judges considering sufficiency as a part of a motion for new trial, may not assess the

credibility of the witnesses or substitute their judgment for that of the trier of fact, even if a

different conclusion could be reached on the evidence. See Herbert v. Herbert, 754 S.W.2d 141,

144 (Tex. 1988). We must review all the evidence in a light favorable to the verdict and must

assume the jurors resolved all conflicts in the evidence in accordance with that verdict. City of

Keller, 168 S.W.3d at 821.

                                               –16–
       The trial court concluded the great weight of the evidence demonstrated the design of the

Zimmer tibia plate was defective. To establish a design defect, a party must show the product

involved in the case was defectively designed so as to be unreasonably dangerous taking into

account the utility and risk involved in the use of the product, this defective design was a

producing cause of the plaintiff’s injuries, and a safer alternative design existed that would have

prevented or significantly reduced the risk of injury and would have been economically and

technologically feasible at the time the product left the defendant’s control. See Hernandez v.

Tokai Corp., 2 S.W.3d 251, 256 (Tex. 1999). Generally, proving the existence of a design defect

requires competent expert testimony and objective proof that the defect the plaintiff has

identified caused the injury. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 137

(Tex. 2004). Gustafson argues the trial court’s determination that the great weight of the

evidence demonstrated the Zimmer plate was defective is supported by the admissions of

Zimmer’s own witnesses, which he characterizes as offering uncontroverted proof the Zimmer

plate did not meet Zimmer’s own criteria for validating the design.

       In the process of developing the plate, Zimmer established design validation criteria.

Zimmer’s design validation criteria required the shaft of the plate to be stronger than the

metaphyseal/transition area of the plate. These criteria became the basis for the Food and Drug

Administration’s approval of the marketing and sale of the plate. Gustafson argues the evidence

at trial conclusively established the weakest point of the Zimmer plate was actually located in the

shaft. The trial court determined this evidence to be uncontroverted.

       Whether the weakest point of the Zimmer plate was located in the shaft area of the device

was a subject of significant dispute in the case and was perhaps the single most extensively

discussed topic during the trial. Gustafson supported his argument that the weakest point of the

device was located in the shaft by using edited deposition testimony of Zimmer personnel

                                              –17–
concerning an early drawing of the device not submitted to the FDA and which the Zimmer

personnel stated was not used in the analysis or testing of the product. Gustafson argued the

drawing showed, and the Zimmer employee deposition excerpts confirmed, the area that all

conceded was the weakest point of the device was located in the shaft of the plate.

       In contrast, these same Zimmer personnel when testifying live at the trial all said the

actual analysis and testing of the product properly included the weakest point in the

metaphyseal/transition area rather than in the shaft. They supported their explanations with

detailed discussions of the process used to determine how the product would be analyzed and

tested and what would be considered acceptable testing results. The Zimmer witnesses discussed

in exhaustive detail the testing protocol for the plate. They expounded on the data the analysis

and testing process produced. All testified the statement that the shaft of the plate was stronger

than the metaphyseal/transition area was true based on the extensive analysis and testing of the

product. The jury was entitled to believe their explanation of the apparent discrepancy between

the early drawing and the actual results of the testing procedure and to determine Zimmer’s

statements to the FDA were truthful.

       Gustafson also faulted the product as defectively designed based on its strength and

bending stiffness. Gustafson’s expert, Dr. Marthinus van Schoor, opined the Zimmer plate was

defectively designed based on these characteristics. Dr. van Schoor supported his conclusion, in

part, using a computer model he designed that compared the Zimmer plate to a tibial plate

manufactured by a competitor. Dr. van Schoor’s testimony was rebutted by the expert testimony

of Dr. Brad James, an expert metallurgist engineer, who criticized Dr. van Schoor’s analysis as

“very, very inaccurate,” Dr. van Schoor’s calculations as “absolutely not” correct, and Dr. van

Schoor’s conclusions as “completely, totally wrong” because the test procedure Dr. van Schoor

claimed to have used was not the methodology Dr. van Schoor actually used. Dr. James testified

                                              –18–
that when he reran the tests Dr. van Schoor claimed to have performed using the test procedure

as described by Dr. van Schoor, the Zimmer plate and the competitor’s plate were found to be

essentially equally strong. Dr. James further stated it was “ridiculous to take one plate compared

to another, and say, because this is not as strong or not as stiff [as the other] that it’s defective.”

        Dr. van Schoor’s methodology was also criticized by Kevin Greig, the engineering lead

on the project, who told the jury Dr. van Schoor’s analysis was based on an improper

methodology using average strength.           Greig said the proper methodology required the

identification and testing of the weakest point of the device because the average strength did not

identify the point of likely failure. Greig also pointed out that the bending stiffness test that was

a centerpiece of Dr. van Schoor’s opinion was antiquated, not required by the FDA, and did not

yield particularly useful information because it failed to take into account the sorts of loads the

plate would experience in the human body. He explained the sort of testing and analysis actually

conducted by Zimmer took into account a greater number of factors and yielded results that more

accurately predicted the performance of the product in the human body. Numerous witnesses

also pointed out that strength was not the only relevant characteristic in determining whether a

device such as Zimmer’s had utility because a device could be designed in such a fashion that it

was strong and rigid, but unusable because it was too stiff or too thick, which would impede

bone healing and cause tissue irritation. The evidence showed one of the reasons the Zimmer

plate was commercially attractive was precisely because it was less stiff than the competitor’s

product that van Schoor contended was superior in terms of strength.

        Based on all of this testimony, the jury was entitled to conclude the Zimmer plate was

adequately strong and possessed sufficient bending stiffness for its intended use. It could

reasonably conclude the design of the product was not unreasonably dangerous taking into




                                                 –19–
account the utility of the product. Thus, there was sufficient evidence for the jury to conclude

the product was not defectively designed.

           The jury could also have reasonably concluded the failure of the Zimmer plate was not

the producing cause of Gustafson’s injuries.4 Numerous witnesses, including two of Gustafson’s

treating physicians, also offered evidence that was at odds with Gustafson’s theory that the

defective design of the Zimmer plate caused his injury. Gustafson’s orthopedist, Dr. Henry

Hendrix, categorized Gustafson’s initial injury as a limb-threatening injury that could result in

amputation.          He testified that healing of this kind of injury would be difficult under any

circumstances due to the nature of the fracture and an extensive healing time would be required,

noting the limb-threatening nature of the injury “says there’s going to be potentially multiple

procedures and less optimal functional outcome.”

           Dr. Hendrix’s treatment notes made immediately after the accident stated, “With this

soft-tissue injury, the scarring, the stiffness, and the muscle change that occurs, his gait pattern

will be permanently altered as will his functional capability. . . . Certainly this is a significant

injury for an individual his age and activity level.” The notes identified potential risks of the

injury discussed with Gustafson at the time of his injury as “infection, injury to nerves and

vessels, scarring, stiffness, weakness, need for further surgery, compartment syndrome, need for

hardware removal, and failure to heal.” Dr. Hendrix further testified any sort of stabilization

device was a “time-buying agent” that is “meant to go into place until the fracture heals and then

the stress is to be taken off of the implant. There’s not really any metal in the body that has been

made to have permanent stress put across it without the fracture healing and then taking the

stress off that implant that won’t fail.” The neurologist Gustafson saw after the second plate

     4
       The jury answered “no” to the question, “Was there a design defect in the Zimmer Plate at the time it left the possession of Zimmer that
was a producing cause of the occurrences in question?” The jury could have answered this question “no” either by determining the Zimmer plate
was not defectively designed or it was not the producing cause of Gustafson’s injuries.



                                                                   –20–
broke attributed the nerve pain Gustafson currently experiences to the initial trauma of the

motorcycle accident rather than failure of the Zimmer plate.

       Dr. James testified that, like any bone plate, the Zimmer plate was intended to be a

temporary measure to provide support while the bone healed and was “not intended to withstand

the loads from the human body forever.” He told the jury the American Society for Testing and

Materials standards required the plate to withstand cyclic loading for “two to three months,”

while each of the Zimmer plates remained in place for roughly a year. He stated, “[t]here are no

bone plates that are incapable of breaking.” It was Dr. James’ opinion that both Zimmer plates

broke due to fatigue as a result of extended weight bearing because the bone had not healed

sufficiently to remove the load from the plates rather than due to the Zimmer plate being

defectively designed.

       Dr. Charles Clark, a physician who specializes in orthopedic surgery and has an

engineering background, testified that based on Gustafson’s x-rays and medical records there

was no indication the Zimmer plate was not the right strength or stiffness for the purposes it was

used; rather, he concluded the Zimmer plates failed because Gustafson’s bone had not healed,

causing the plate to have to continue to carry all of the load that would normally be on the bone.

Clark said there was no reason to fault the plate because it broke under those circumstances. As

Clark said, “If bone doesn’t heal any hardware is going to break.” Clark stated that the Zimmer

plate had performed its job as intended by providing stability while Gustafson’s body attempted

to heal the severe fracture Gustafson endured and that Gustafson’s disability is related to his

original injury rather than to the failure of the Zimmer plate.       Specifically, he explained

Gustafson’s present condition is a result of both the continuing effect of the original injury and

the atrophy of Gustafson’s muscles during the healing process.




                                              –21–
       The jury was entitled to believe either party’s explanation of the evidence both with

regard to the design of the product and whether the product caused Gustafson’s injuries. Here,

the evidence was sufficient for the jury to find the Zimmer plate was not defectively designed,

but rather taking into account the severity of Gustafson’s injury, the product properly performed

the function for which it was intended. The jury could also reasonably conclude the producing

cause of Gustafson’s injuries was not the defective design of the Zimmer plate, but rather the

consistent application of an excessive load to the device as a result of the failure of Gustafson’s

injury to heal during the reasonable lifespan of the plate. The trial court incorrectly substituted

its credibility decisions for those of the jury and weighed the evidence differently than the jury

weighed the evidence. As a result, it improperly applied the law in granting new trial and abused

its discretion in doing so. Zimmer is entitled to mandamus relief.

        Gustafson argues if this Court concludes his failure to offer evidence of juror misconduct

in support of his motion for new trial was fatal to his motion for new trial, the Court should

remand the case to the trial court to allow it to conduct an evidentiary hearing on the question of

jury misconduct. The supreme court has remanded mandamus proceedings to the trial court

when the trial court’s reasons for granting new trial are unclear. Columbia Med. Ctr., 290

S.W.3d at 215 (“We conditionally grant relief. We direct the trial court to specify the reasons it

refused to enter judgment on the jury verdict and ordered a new trial.”). When, however, a trial

court’s reasons for granting a new trial are clear but invalid, ordering the trial court to enter

judgment on the verdict, rather than remanding to the trial court, is proper. United Servs. Auto.

Ass’n, 2014 WL 4109756, at *16. Parties who fail to meet their burden of proof are not entitled

to repeated attempts to meet their burden. See Brannen v. City of Houston, 153 S.W.2d 676, 678

(Tex. Civ. App.—Galveston 1941, writ ref’d) (affirming denial of bill of review where party

asserted it did not know of alleged juror misconduct until judgment was final). “The remedy for

                                              –22–
setting aside a jury’s verdict for misconduct is to allege the facts constituting such misconduct in

the motion for a new trial, and at the time the motion for a new trial is presented the hearing is

had on the alleged misconduct of the jury.” Id.; see also Hernandez, 641 S.W.2d at 362

(“Although the defendants, at the second hearing [on the motion for new trial alleging juror

misconduct], indicated an intention to offer evidence at a future date, it was their burden to

present evidence at that time.”). Where, as here, a party loses because it fails to carry its burden

of proof, it should not be entitled to a second attempt. See Design Trends Imports v. Print

Source, Inc., No. 05-93-01643-CV, 1994 WL 728870, at *6 n.8 (Tex. App.—Dallas Dec. 22,

1994, no writ) (mem. op., not designated for publication) (discussing briefing waivers).

       While it is understandable a trial court would seek to enforce compliance with its

instructions to the jurors, granting a new trial for reasons not supported by the record or the law

is an abuse of discretion. We conditionally grant Zimmer’s petition for writ of mandamus. A

writ will issue only in the event the trial court fails to vacate its April 15, 2014 “Order Granting

Plaintiff’s Motion for New Trial.”



140940F.P05                                         /Molly Francis/
                                                    MOLLY FRANCIS
                                                    JUSTICE




                                               –23–
