                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE


  PHYLLIS SCHWARTZ v. LOOKOUT MOUNTAIN CAVERNS, INC., ET
                           AL.

             Interlocutory Appeal from the Circuit Court for Hamilton County
                       No. 96CV1876     W. Neil Thomas, III, Judge



                     No. E1999-01142-COA-R9-CV - Decided May 8, 2000




Following entry of judgment on a jury verdict, the Trial Court granted Defendants a new trial based
upon allegations in the affidavit of one of the jurors. Plaintiff was granted interlocutory appeal
limited to whether or not the Trial Court erred in granting Defendants’ Motion For New Trial based
on the information contained in the juror’s affidavit submitted by Defendants in support of their
Motion For New Trial. Because the affidavit does not fall under any of the three exceptions to
exclusion of juror testimony found in T.R.E. 606(b), the Trial Court erred in accepting the affidavit
into evidence on the issue of a new trial. No other evidence supported Defendants’ motion for new
trial. Because no admissible evidence was properly before the Court, the Order for new trial is
reversed and this lawsuit remanded for enforcement of the judgment previously entered on the
verdict of the jury.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed and
Remanded

SWINEY , J., delivered the opinion of the court, in which FRANKS and SUSANO, JJ. joined.

Richard A. Schulman, Chattanooga, Tennessee, for the appellant, Phyllis Schwartz.

Samuel R. Anderson, Chattanooga, Tennessee and Lisa E. Ferraro, Chattanooga, Tennessee, for the
appellees, Lookout Mountain Caverns, Inc. and Ruby Falls.

                                            OPINION

              Plaintiff/Appellant Phyllis Schwartz (“Plaintiff”) prevailed in a jury trial of her tort
claims against Defendants/Appellees Lookout Mountain Caverns, Inc. and Ruby Falls
(“Defendants”). After entry of judgment on the verdict of the jury awarding $20,000.00 damages
and apportioning comparative fault forty-nine percent to Plaintiff and fifty-one percent to
Defendants, Defendants filed a motion for new trial. The motion for new trial was based upon
allegations in the affidavit of one of the jurors, who indicated that the verdict included amounts for
particular damages not offered into evidence. Based upon this affidavit, the Trial Court granted
Defendants’ motion for new trial. We granted Plaintiff’s Interlocutory Appeal under T.R.A.P. 9 and
limited the issue to whether or not the Trial Court erred in granting Defendants’ Motion For New
Trial based on the information contained in the juror’s affidavit submitted by Defendants in support
of their Motion For New Trial. The decisive factor in resolving this issue is the admissibility of the
juror’s affidavit under T.R.E. 606(b). Because the affidavit does not contain evidence admissible
under any of the three exceptions to exclusion of juror testimony under T.R.E. 606(b), Defendants’
motion for new trial is unsupported by admissible evidence, and the Order of the Trial Court
granting a new trial is reversed.

                                             Background

                Plaintiff filed suit September 16, 1996, alleging tort damages from a fall on the
premises of Defendants in Hamilton County, Tennessee. Trial was held May 12 - 14, 1999, with a
jury verdict returned in favor of Plaintiff in the amount of $20,000.00, allocating comparative fault
forty-nine percent to Plaintiff and fifty-one percent to Defendants. The Trial Court entered judgment
on this verdict May 27, 1999.

                Defendants filed a motion for new trial June 29, 1999, attaching the affidavit of Gwen
B. Payne, a juror in the trial of the lawsuit. The affidavit, after establishing Ms. Payne’s identity and
stating facts of the trial date and verdict, stated that Plaintiff’s award included sums for items not
entered into evidence at trial, “. . . her airline ticket, existing medical bills, and attorney fees.”
Following hearing on the motion, the Trial Court granted Defendants’ motion for new trial by
memorandum opinion and order filed August 2, 1999.

               Plaintiff filed a motion for permission to apply for interlocutory appeal under
T.R.A.P. 9 on August 30, 1999, and the Trial Court granted this motion by order filed October 4,
1999. Interlocutory appeal was granted by this Court by order filed October 28, 1999 to resolve the
issue of admissibility of the juror affidavit under T.R.E. 606(b), the affidavit being the only evidence
that supports Defendants’ motion for new trial.

                                              Discussion

                 The only issue before us is whether the Trial Court erred in granting Defendants’
motion for new trial based upon the information contained in the juror’s affidavit submitted by
Defendants. Neither Plaintiff nor Defendants suggested a standard for our review of this issue. The
Trial Court’s order granting interlocutory appeal to Plaintiff stated the issue to be decided as
“whether the facts set forth in the Juror’s Affidavit in this case . . . involves [sic] extrinsic matters
that render the jury verdict improper,” and further states, “[t]here needs to be a more complete body
of law established on what is an improper jury verdict.” The threshold question of admissibility of
the juror affidavit as evidence of grounds for a new trial governs our standard of review.
“Admissibility of evidence rests within the sound discretion of the trial court and will not be
disturbed on appeal in the absence of an abuse of that discretion.” Patton v. Rose, 892 S.W.2d 410,

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415 (Tenn. Ct. App. 1994). Therefore, our review of Plaintiff’s allegation of error by the Trial Court
in considering the juror’s affidavit in granting Defendant’s motion for new trial is under the abuse
of discretion standard.

                Contrary to the declaration of the Trial Court, we find the appellate opinions of this
state adequate to address the issue posed on appeal under the undisputed facts concerning
Defendants’ motion for new trial. The order of the Trial Court was based upon the affidavit of one
juror, Gwen B. Payne. The rule governing the procedure when the issue of jury misconduct has been
raised is well established.

       Although jurors are permitted to weigh the evidence in light of their own knowledge
       and experience, their verdict must be based on the evidence introduced at trial.
       Caldararo v. Vanderbilt University, 794 S.W.2d 738 (Tenn. Ct. App.1990).
       Obviously, a verdict of a jury based on something other than the evidence introduced
       at trial is improper and should not be allowed to stand. However, in order to be
       granted a new trial due to such jury misconduct, there must be admissible evidence
       on the issue. Admissibility of evidence from jurors is controlled by Tenn.R.Evid.
       606(b), which states:

               (b) Inquiry into Validity of Verdict or Indictment.--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
               emotion as influencing that juror to assent to or dissent from the
               verdict or indictment or concerning the jury'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.

       Patton v. Rose, 892 S.W.2d at 413-414.

                 This analysis provides three exceptions to the rule that jury deliberations are not
subject to later scrutiny by the courts: (1) extraneous prejudicial information improperly brought to
the jury’s attention, (2) outside influence improperly brought to bear on a juror, and (3) an agreement
among the jurors in advance of deliberations to be bound by a quotient or gambling verdict. The
statement in the affidavit relied upon by Defendants as grounds for a new trial based on jury
misconduct is, “[t]he amount we eventually awarded Ms. Schwartz was calculated to compensate
her for her airline ticket, existing medical bills and attorney fees.” Defendants argued, and the Trial
Court agreed, that these items were not admitted in evidence, and were, therefore, “[m]atters

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extrinsic to (the) deliberations,” thus proper for consideration by the Trial Court under T.R.E. 606(b).
The Trial Court quoted the above-cited opinion in Caldararo v. Vanderbilt University, 794 S.W.2d
at 742 for the statement that “matters constituting an external influence that could warrant a new trial
include ‘consideration of facts not admitted in evidence.’” While the descriptive phrasing used by
the Trial Court and the cited opinions varies, only the first two exceptions to exclusion of juror
testimony under T.R.E. 606(b), concerning extraneous information and outside influence, are
material to this appeal as there is no allegation of the third exception, quotient verdict.

                The Trial Court stated, “[a]s evidenced by the Payne affidavit facts not admitted in
evidence were considered and did operate to increase the amount of damages awarded by the jury.”
First, it is questionable whether the subjective statement of one juror is sufficient to establish
grounds for a new trial. “The law in this state is clear that evidence of a juror’s subjective thought
processes is not legally sufficient grounds for a new trial.” Arcata Graphics Co. v. Heidelberg
Harris, Inc., 874 S.W.2d 15, 23 (Tenn. Ct. App. 1993) (citing Caldararo, 794 S.W.2d at 743-744
in finding that supportive comments made by a juror to defense counsel during trial did not form
legal grounds for a new trial). Second, in order to be “extraneous information,” the information must
come from an extraneous source, not from a jury member.

        The Supreme Court has also recently held that "extraneous information" is
        information from a source outside the jury. Thus, intra-jury pressure or intimidation,
        premature jury deliberations contrary to the trial court's instructions, and speculation
        about a verdict's consequences, have been found to be internal matters that do not
        involve extraneous information or outside influence.

        Caldararo, 794 S.W.2d at 742 (citations omitted).

While the Caldararo opinion does recognize as external influence, “consideration of facts not
admitted in evidence,” 794 S.W.2d at 742, the Trial Court erred by relying upon this quotation as
support for finding jury misconduct under one of the three exceptions. As noted above, the
Caldararo court clarified that the first exception, extraneous information, “is information from a
source outside the jury.” The affidavit of juror Gwen B. Payne does not reference any influence or
information from a source outside the deliberations of the jury, making any alleged influence or
information “internal” to the discussions held among the jurors, and thus not covered by the first or
second of the three exceptions. “Internal influences that are not grounds to overturn a verdict
include: (1) discussions among jurors, (2) intimidation or harassment of one juror by another, (3)
a juror's personal experiences not directly related to the litigation, and (4) a juror's subjective
thoughts, fears, and emotions.” Id. (emphasis added). Further, nothing in the juror’s affidavit at
issue indicates anything outside deliberations “calculated to compensate” Plaintiff based upon the
knowledge and experience brought to the panel by the individual jurors. “Normal jury deliberations
that include discussions based upon the jurors' generalized knowledge and experience do not
constitute grounds for overturning a verdict.” Id. at 743. There is no allegation of quotient verdict
on appeal, making the third of the three exceptions to the exclusion of juror testimony irrelevant to
our discussion.


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                In addition to the broad discussion of policy and procedure found in Caldararo, this
Court has previously addressed this issue under remarkably similar facts. In affirming the trial
court’s denial of a motion for new trial supported by affidavits of three jurors,

       each of whom stated that the jury “discussed the fact that the [plaintiffs] would have
       to pay their attorney fees out of any judgment we awarded [sic] [defendant]. These
       discussions affected the amount of the verdict and the verdict was increased by the
       amount we thought would be sufficient to pay the [plaintiffs’] attorneys.”

       Strawn v. SCOA Industries, Inc., 804 S.W.2d 80, 82 (Tenn. Ct. App. 1990).

               After quoting and discussing Federal Rules of Evidence 606(b), which had been
adopted by the Tennessee Supreme Court and therefore determined the standard for admissibility
of juror testimony in Tennessee prior to the adoption of T.R.E. Rule 606(b) effective January 1,
1990, Judge Goddard analyzed the affidavits and found that the testimony was not admissible.

       Several cases have been cited by the [plaintiffs] holding under various circumstances
       that the influence was not extraneous. In Caldararo v. Vanderbilt University, 794
       S.W.2d 738, (1990), the jury foreman related to the other jurors information
       presumably acquired from his wife, a surgical nurse. In State v. Higdon, an
       unreported case of the Court of Criminal Appeals, filed March 15, 1990, in
       Nashville, 1990 WL 26772, one juror commented to the others that, "A shot naturally
       travels upward when it enters the body." In State v. Hailey, 658 S.W.2d 547
       (Tenn.Cr.App.1983), one juror commented that, "the defendant has been tried and
       convicted of murder once before and he shouldn't have a second chance."

       We conclude, based on the foregoing authority, that the statements of the jurors are
       not extraneous and, therefore, not competent evidence.

       Id. at 83.

We find that the analysis in Strawn applies to the juror affidavit at issue in this appeal. The
information or influence was not extraneous. The affidavit of Gwen B. Payne was improperly
admitted into evidence by the Trial Court upon inquiry into the jury’s verdict under T.R.E. 606(b).

               The reason for both the rule and its exceptions set forth in T.R.E. 606(b) excluding
the testimony, or affidavits, of jurors concerning deliberations has been stated previously by this
Court.

       This Rule has been said to be a compromise between important public policies,
       enabling the Court to protect litigants from verdicts tainted by extraneous prejudicial
       information or outside influence, while at the same time recognizing the importance
       of the inviolate nature of a jury's deliberations.


                                                -5-
        Id.

        The rule precludes inquiries into the jury's deliberative process while allowing juror
        testimony concerning objective incidents or events that constitute external or
        extraneous influences on the jury. Thus, it insures that jurors will not be guarded in
        their deliberations for fear of later scrutiny by others. It also prevents jurors whose
        views are in the minority from manipulating the system by repudiating the verdict
        and thereby requiring a new trial.

        Caldararo, 794 S.W.2d at 742 (citations omitted).

                 This “compromise” is necessary to protect the continuing viability of trial by jury.
If Defendants’ position was adopted, every jury verdict, and particularly the jury deliberations,
would be subject to unfettered examination. For example, what if the jury either increased or
decreased the amount of its verdict based upon the jurors’ opinion that one of the parties or his
attorney was obnoxious? That would not be a “fact” that was admitted in evidence, and under
Defendants’ position would be a basis for setting aside the jury verdict. Likewise, what if a
plaintiff’s counsel discovered after the jury verdict that the jury felt the plaintiff would throw away
any money they awarded him and, therefore, awarded him less than they would have otherwise?
Again, under Defendants’ position this would be sufficient to set aside the jury verdict. What if a
plaintiff was able to show that the jurors kept the amount of the verdict down because they were
afraid a larger verdict would cause their taxes to increase, or the cost of a particular product they buy
to increase? These are not facts admitted in evidence, but they would to be a basis, under
Defendants’ position, to attack the jury verdict. These are but a few examples of potential attacks
on jury verdicts, attacks that would be limited only by the attorney’s imagination, if Defendants’
argument is accepted. T.R.E. 606(b) and Tennessee appellate decisions interpreting T.R.E. 606(b)
prohibit such attacks. This limitation and compromise is necessary to protect the continuing viability
of trial by jury in Tennessee.

               We hold that the affidavit of juror Gwen B. Payne is inadmissible to establish grounds
under any of the three exceptions to the exclusion of juror testimony under T.R.E. 606(b). As a
matter of law, the Trial Court erred in admitting the affidavit into evidence under T.R.E. 606(b).
There being no admissible evidence to support Defendants’ motion for new trial, the Order of the
Trial Court granting new trial is reversed, and this lawsuit remanded for enforcement of the
judgment on the verdict of the jury previously entered by the Trial Court.

                                              Conclusion

               The judgment of the Trial Court granting Defendants’ motion for new trial is
reversed, and this lawsuit remanded for enforcement of the judgment on the verdict of the jury
previously entered. Costs of this appeal are taxed to the appellees, Lookout Mountain Caverns, Inc.
and Ruby Falls.



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