
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1125                                   DONALD PLUMMER,                                 Plaintiff-Appellant,                                          v.                        SPRINGFIELD TERMINAL RAILWAY COMPANY,                                 Defendant-Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                         Torruella and Selya, Circuit Judges,                                              ______________                            and Woodlock,* District Judge.                                           ______________                                _____________________               Jeremy R. Feedore, with whom McClung, Peters and Simon,  was               _________________            _________________________          on brief for appellant.               Glen L. Porter, with whom Eaton, Peabody, Bradford & Veague,               ______________            __________________________________          P.A., was on brief for appellee.          ____                                 ____________________                                  September 23, 1993                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    TORRUELLA,  Circuit  Judge.   Appellant  Donald Plummer                                ______________          sued    appellee    Springfield    Terminal    Railway    Company          ("Springfield") under the  Federal Employers'  Liability Act,  45          U.S.C.     51-60 (1986), for  injuries sustained as a Springfield          employee.    In Plummer's  complaint,  he  requested $650,000  in          damages.  After a four day trial, the jury  found Springfield 12%          at fault for the injuries and Plummer 88% at fault.                    At first,  the jury failed to  answer the interrogatory          that  asked the  amount  of damages  awarded.   After  two  bench          conferences,  the  court   sent  the  jury   back  to  make   the          determination.   The  relevant  interrogatory asked  the jury  to          determine the amount that would "fairly and adequately compensate          the  plaintiff  Donald Plummer  for  his injuries."    Under that          question,  the verdict  form also  stated, "[i]n  determining the          total amount of damages, do not make any reduction because of the          negligence,  if any,  of the  plaintiff."   Soon after,  the jury          returned  with a figure of  $78,000.  Because  $78,000 is exactly          12% of $650,000,  Plummer's counsel requested that  the court ask          the  jury if the figure was reduced for Plummer's own negligence.          The  court denied  the request,  discharged the  jury and,  after          reducing the $78,000 figure by 88%, ultimately entered a judgment          of $9,860 for appellant.                    Plummer contends that when  his attorney asked the jury          foreperson  later in the day  after the jury  had been discharged          whether the $78,000 figure  represented an amount already reduced          for  Plummer's  negligence,  the  juror  conceded  that  it  had.                                         -2-          Plummer also  contends that he immediately informed  the court of          this  conversation and  requested  a voir  dire  of the  jury  to          determine their  true intention,1 but  that the court  refused to          reconvene the jury.                    Several days later, Plummer formally moved to alter the          judgment.  The district  court denied the motion, see  Plummer v.                                                            ___  _______          Springfield Terminal Ry.  Co., No. 91-0114-B  (D. Maine Jan.  20,          _____________________________          1993), and Plummer appealed.  We affirm.                                      DISCUSSION                                      DISCUSSION                                      __________                    Plummer's principal argument  is that the court  should          have  either  conducted a  voir dire  of  the jury,  or permitted          Plummer  to  obtain  affidavits  from  the  jurors  in  order  to          determine whether the damage award was reduced to account for his          negligence.                      Under Federal Rule of  Evidence 606(b), when questioned          about the  validity of a verdict,  a juror may not  testify about          the jury's  deliberations or the juror's  mental processes during          deliberation with two exceptions:  a juror may testify to (1) the          deliberations  with   respect  to  outside   influence;  and  (2)          "extraneous prejudicial information."2  The   advisory  committee                                        ____________________          1  The record contains no indication of this request.          2  Rule 606(b) provides:                      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                                         -3-          notes for Rule  606(b) explain  that "[t]he values  sought to  be          promoted   by  excluding   the   evidence   include  freedom   of          deliberation, stability and finality of  verdicts, and protection          of jurors  against annoyance  and embarrassment."   Similarly, we          have observed  that "the  unbridled interviewing of  jurors could          easily  lead to  their harassment,  to the exploitation  of their          thought processes, and to diminished confidence in jury verdicts,          as  well as to unbalanced  trial results depending  unduly on the          relative resources  of the parties."   United States  v. Kepreos,                                                 _____________     _______          759 F.2d 961,  967 (1st Cir.), cert. denied, 474 U.S. 901 (1985).                                         ____________          At  the same time, of  course, courts must  avoid "simply putting          verdicts  beyond  effective  reach  [, which]  can  only  promote          irregularity  and  injustice."   Fed.  R.  Evid. 606(b)  advisory          committee note.                    A  number of  circuits hold,  and we agree,  that juror          testimony regarding an alleged clerical error, such as announcing          a verdict different than that agreed upon, does not challenge the          validity of the verdict or  the deliberation or mental processes,          and therefore is not subject to Rule 606(b).  See,  e.g., Karl v.                                                        ___   ____  ____                                        ____________________                      to assent  to or dissent from the verdict                      or indictment or  concerning the  juror's                      mental processes in connection therewith,                      except that  a juror may  testify on  the                      question  whether extraneous  prejudicial                      information  was  improperly  brought  to                      bear upon  any juror.  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.                                         -4-          Burlington  Northern Ry. Co., 880 F.2d 68, 73-74 (8th Cir. 1989);          ____________________________          Eastridge Development  Co. v.  Halpert Associates, 853  F.2d 772,          __________________________     __________________          783  (10th Cir. 1988);  see also Robles v.  Exxon Corp., 862 F.2d                                  ________ ______     ___________          1201, 1207-08  (5th  Cir.  1989), cert.  denied,  490  U.S.  1051                                            _____________          (1989).                    In the present case,  Plummer similarly argues that the          rendered  verdict was  not the one  agreed upon by  the jury, and          therefore that his requested inquiry does not invoke Rule 606(b).                    Several circuits  might find this  argument acceptable.          In Eastridge Development Co., for example, the jury, contrary  to             _________________________          the court's  instructions, reduced its verdict  by the percentage          of  the   plaintiff's  own   negligence.    The   district  court          interrogated the jury,  accepted affidavits from  the jury as  to          their  damages calculation,  and  amended the  ultimate award  to          reflect the  jury's decision.   The  Tenth  Circuit accepted  the          district court's rationale that  the jury made a  clerical error,          and that the inquiry therefore did not violate Rule  606(b).  See                                                                        ___          also Attridge v.  Cencorp Div.  of Dover Tech.  Int'l, Inc.,  836          ____ ________     _________________________________________          F.2d 113, 116-17 (2d Cir. 1987).                    By contrast,  the Eighth Circuit  in Karl, 880  F.2d at                                                         ____          73-74, reversed  similar actions by  a district court  judge when          the jury made  the same mistake.   The court  in that case  found          that  the inquiry  was improper  because it  went to  the thought          processes  underlying  the  verdict,  rather than  the  verdict's          accuracy in capturing what the jurors had agreed upon.                    We agree  with the district court  that Karl's approach                                                            ____                                         -5-          better  reflects  the goals  of Rule  606(b)  and our  opinion in          Kepreos because it  better insulates jury deliberations.   In the          _______          present  case, the verdict form,  which the judge  went over with          the  jury,3 instructed the jury not to reduce the damages verdict          based  on Plummer's  negligence,  and Plummer  never objected  to          these  instructions.4   Plummer's  current allegations,  however,          suggest that the jurors believed that  the rendered verdict would          have  a  different   effect  on  the  parties,  based   on  their                                        ____________________          3  Specifically, the  judge stated the following with  respect to          the relevant interrogatory:                        And  then finally, if  you have reached                      this, what amount  of money would  fairly                      and  adequately compensate  the plaintiff                      should - plaintiff Donald Plummer for his                      injuries.    That's   the  full   amount,                      irregardless  of  what  your   answer  to                      number five is.                        Determine the total amount  of damages.                      Do not make any  reductions.  If you have                      answered  three, four,  and five,  you do                      not change this figure at all.          4   At  oral argument,  Plummer stated  that his  appellate brief          implicitly assigns error to  the instructions on that issue.   We          can find no such argument in his brief.  Although Plummer's brief          states  that he  appeals from  his motion  to alter  the district          court's  judgment  which  complained  that the  court  failed  to          instruct  the  jury on  the disputed  issue,  the brief  does not          mention a failure to instruct.   Nor does the brief request a new          trial  on the issue  of damages.   Thus, we need  not address the          issue.  See Ryan v. Royal Ins.  Co. of America, 916 F.2d 731, 734                  ___ ____    __________________________          (1st Cir. 1990) ("issues  adverted to on appeal in  a perfunctory          manner, unaccompanied by some developed argumentation, are deemed          to  have been abandoned").  Moreover, even if Plummer's brief had          made this  argument, our review of instructions and verdict forms          that were  not challenged  before jury  deliberation is  only for          plain  error.  Phav  v. Trueblood, Inc.,  915 F.2d  764, 769 (1st                         ____     _______________          Cir. 1990).    Although  the  instructions might  not  have  been          ideally  formulated, they were given  to the jury  on the verdict          form, and we observe no plain error.                                         -6-          understanding of the  court's instructions.5   Karl, 880 F.2d  at                                                         ____          73-74; see also Robles,  862 F.2d at 1207-08.   Plummer does  not                 ________ ______          contend  that the jurors never agreed upon the rendered verdict -          the number that the  jury chose is not in  dispute.  Accordingly,          the  requested inquiry went to what the jurors were thinking when          they  chose the number that  they did and  whether their thinking          was sound.6            See Karl,  880 F.2d at 73-74;  Robles, 862 F.2d at  1205; Fed. R.          ___ ____                       ______          Evid. 606(b),  advisory committee note ("testimony  or affidavits          of   jurors  have   been  held   incompetent  to   show  .   .  .          misinterpretations  of instructions)  (citing Farmers  Coop Elev.                                                        ___________________          Ass'n v. Strand, 382 F.2d 224, 230 (8th Cir.), cert. denied,  389          _____    ______                                ____________          U.S.  1014   (1967));  but   see  Attridge,   836  F.2d  at   117                                 _________  ________          (characterizing similar  inquiry as  "ascertaining what the  jury          decided and not why they did so").                    Plummer asked the district  court to examine the jurors                                        ____________________          5  We construe the instruction on the verdict form as part of the          court's instructions to the jury.          6  We are  unpersuaded by Plummer's argument that  permitting him          to obtain  affidavits from the  jurors would have  alleviated the          Kepreos  and  Rule  606(b)   concerns.    Like  testimony,  juror          _______          affidavits would diminish the stability of  jury verdicts and the          jury's  freedom to deliberate, and  could just as  easily lead to          harassment.     Additionally,  through   affidavits,  as  through          testimony, "the  'secret thought  of one  juror' would have  'the          power  to disturb the express conclusions of twelve.'"  Karl, 880                                                                  ____          F.2d at 74 (quoting  Mattox v. United  States, 146 U.S. 140,  148                               ______    ______________          (1892)). Of course, Plummer's counsel is ill positioned to  argue          that his proposed procedure would alleviate the Kepreos concerns.                                                          _______          Plummer's  counsel  already had  spoken to  at  least one  of the          jurors ex parte.  In Kepreos, 759 F.2d at 967, this court set out                 ________      _______          a  clear rule  forbidding  "post verdict  interview of  jurors by          counsel."   By discussing  the verdict with  the jury foreperson,          Plummer's attorney violated this rule.                                         -7-          after the jury had already been discharged. This was too late.7            We  cannot conclude  that the  district court  erred in  refusing          further inquiry.                    Finally,  Plummer argues, in  the alternative, that the          district  court should have  stricken the jury's  finding that he          was 88%  at fault because  it was excessive  and contrary  to the                                        ____________________          7   We note  that on the  two occasions the jury  returned with a          verdict before it was discharged, Plummer's counsel  successively          intimated  and requested  that the  court should  inquire of  the          jurors regarding whether they were reducing the  damage figure to          reflect  Plummer's own  negligence.   At  oral argument,  Plummer          characterized   his   pre-discharge   efforts  in   this   regard          alternatively   as  requests  for   inquiries  or   requests  for          supplemental  jury instructions,  depending  on  the question  he          faced from the panel.  Because Plummer did not develop his  vague          assertions  at oral argument, we  consider the issue  of the pre-          discharge efforts at jury inquiry only as it is explicated in his          brief.   See Ryan, 916 F.2d at 734.  And his brief fails to argue                   ___ ____          that the court erred in disregarding them.             Plummer's brief frames the issue he is presenting to us as the          court's  refusal "to  conduct a  voir dire  of the jury  panel to          clarify their verdict  in light of  the patently mistaken  amount          recorded  .  .  . ."    Yet,  however  characterized, neither  of          Plummer's  pre-discharge efforts at inquiry sought a voir dire to          clarify the  recorded amount in the  verdict. Plummer's counsel's          first  intimation of  concern,  when the  jury  returned with  an          incomplete verdict slip, did not seek clarification in light of a          recorded  amount.   When  the  concern  ripened into  a  specific          request after the jury  returned on the second occasion  with the          $78,000 figure, the court properly described the request, without          objection by Plummer, as  seeking a "further written  question to          the jury."   Such an  interrogatory would not  constitute a  voir          dire.  More fundamentally, Plummer mentions in his brief only the          later  effort  at pre-discharge  inquiry  and then  simply  as an          explanation for why he did not request a poll of the jury.             While we recognize that the trial court is under an obligation          "with appropriate  instructions, [to] afford[] the  jury a timely          opportunity  to  straighten  out   both  apparent  and   possible          mistakes," Poduska v. Ward, 895 F.2d 854, 857 (1st Cir. 1990), we                     _______    ____          can find  no sufficient argument  that the district  court abused          its discretion  in meeting  that obligation with  respect to  the          pre-discharge efforts at inquiry made by plaintiff here.                                         -8-          weight of the  evidence.   However, Plummer failed  to provide  a          transcript  of the  evidence offered  at trial  on the  liability          issue.                    Under Federal Rule of Appellate Procedure 10(b),                      [i]f the  appellant  intends to  urge  on                      appeal  that a  finding or  conclusion is                      unsupported   by   the  evidence   or  is                      contrary to the  evidence, the  appellant                      shall  include in the record a transcript                      of all evidence  relevant to such finding                      or conclusion.          See also Syncom  Capital Corp. v.  Wade, 924 F.2d  167 (9th  Cir.          ________ _____________________     ____          1991).  Accordingly, "[w]here an appellant raises issues that are          factually  dependent yet  fails to  provide a  transcript of  the          pertinent  proceedings in  the district  court, this  circuit has          repeatedly  held that we will not review the allegations."  Mu iz                                                                      _____          Ram rez  v. Puerto Rico Fire  Services, 757 F.2d  1357, 1358 (1st          _______     __________________________          Cir.  1985); see  also Farrar  v. Cain, 756  F.2d 1148  (5th Cir.                       _________ ______     ____          1985).  Because  Plummer failed  to provide a  transcript of  the          relevant evidence, we do not reach the merits of his argument.8                    Similarly, Plummer's assertion that the court  erred in          instructing the  jury on contributory negligence in  light of the          lack  of evidence  on  the  issue  also must  fail.    Without  a          transcript  of the evidence presented on  the liability issue, we          cannot  determine  whether   evidence  of  Plummer's   negligence                                        ____________________          8  Although we  have considered claims when feasible  without the          transcript  of  the  relevant  proceedings, Valed n  Mart nez  v.                                                      _________________          Hospital Presbiteriano, 806  F.2d 1128, 1135 (1st  Cir. 1986), we          ______________________          can  find no fair or meaningful method to review this evidentiary          issue without a transcript of the evidence presented.  Of course,          the  transcript of  the  trial's closing  statements provided  by          Plummer cannot be considered evidence.                                         -9-          existed.                    Affirmed.                    ________                                         -10-
