UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KENDILE M. STEWART,
Plaintiff-Appellee,

v.                                                                 No. 96-1537

AMUSEMENTS OF AMERICA,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CA-94-2671-2-18)

Argued: May 8, 1998

Decided: July 15, 1998

Before WIDENER and HAMILTON, Circuit Judges, and
FRIEDMAN, United States District Judge for the
Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Charles Elford Carpenter, Jr., RICHARDSON, PLOW-
DEN, CARPENTER & ROBINSON, P.A., Columbia, South Caro-
lina, for Appellant. George J. Kefalos, GEORGE J. KEFALOS, P.A.,
North Charleston, South Carolina, for Appellee. ON BRIEF: Debo-
rah Harrison Sheffield, RICHARDSON, PLOWDEN, CARPENTER
& ROBINSON, P.A., Columbia, South Carolina, for Appellant. Tim-
othy D. McCoy, MCCOY & TAYLOR, Charleston, South Carolina,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

The principal dispute in this appeal is whether certain statements
allegedly made by a juror during jury deliberations in a negligence
action constitute "extraneous prejudicial information" within Federal
Rule of Evidence 606(b), such that another juror's affidavit attesting
to the fact that her fellow juror made the statements is admissible to
impeach the jury's verdict. The alleged prejudicial statements made
by the juror during deliberations are: (1) that the juror was a lawyer;
(2) that the jury could not send the judge a note stating that it could
not agree as to the percentage of fault or that it could not agree or
reach a decision; and (3) that the jury needed to compromise and
reach an agreement. For reasons that follow, we hold that these state-
ments do not constitute extraneous prejudicial information within the
meaning of Federal Rule of Evidence 606(b).

I.

The plaintiff in this action, Kendile Stewart (Stewart), was injured
on April 6, 1993 in an accident that occurred near St. Augustine, Flor-
ida when the tractor-trailer rig in which he was a passenger collided
with another tractor-trailer rig that was pulling onto the highway. The
rig in which Stewart was a passenger was owned by his employer,
Wetterau, Inc., and was driven by one of Stewart's co-workers. The
rig that was pulling onto the highway was owned by the defendant
Amusements of America, Inc. (Amusements of America).

At the time of the accident, Stewart was a long-haul truck driver,
and, as a result of the accident, Stewart suffered a compression frac-

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ture to one of the vertebrae in his back, leaving him with a ten-percent
whole-man impairment. According to Stewart's treating physician,
this impairment prevented Stewart from performing heavy labor jobs
and from continuing to work as a long-haul truck driver.

Stewart filed a complaint against Amusements of America in South
Carolina state court on August 5, 1994. Amusements of America sub-
sequently removed the case to the United States District Court for the
District of South Carolina and proceeded to defend on the merits. On
December 11, 1995, the case proceeded to trial, with the parties
agreeing that the law of the State of Florida applied to all substantive
issues in the case.

Prior to jury selection, all potential jurors in this case completed a
juror questionnaire. Potential juror Frank Clement stated in his juror
questionnaire that he had practiced law in Houston, Texas for about
five years approximately twelve years ago and that he had been
"swindled out of a law license ten years ago." (J.A. 28). Despite this
information, neither party attempted to strike Frank Clement as a
potential juror prior to final jury selection. Amusements of America,
however, made a motion prior to the actual start of trial to have Frank
Clement (Juror Clement) excused from jury service on the ground that
his statement about being swindled out of a law license misrepre-
sented the fact that he was actually disbarred. The district court
denied the motion. In denying a renewed version of this motion made
during trial, the district court stated that a reasonable person would
infer from Juror Clement's questionnaire that he had been disbarred.

During the first day of trial, Juror Clement was found wandering
the halls of the courthouse in defiance of the district court's instruc-
tion that jurors should remain in the jury room when not in the court-
room. On the third day of trial, the district court commented outside
the presence of the jury that Juror Clement was a"loose cannon," who
did not pay attention to what the court security officers or the clerks
asked him to do, and that the court was probably going to excuse him
for that reason, not for the statement in his juror questionnaire. (J.A.
475). During trial, Amusements of America twice renewed its motion
to remove Juror Clement, but to no avail. Juror Clement was ulti-
mately elected foreperson of the jury.

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On December 15, 1995, the jury returned a verdict in favor of
Stewart, finding Amusements of America ten percent at fault. The
jury also found that Stewart had sustained $600,000.00 in economic
damages and $150,000.00 in non-economic damages. 1 In response to
a request by Amusements of America for a poll of the jury, each juror
stated on the record in open court that the verdict as read in the court-
room was his or her true and correct verdict.

After the jury announced its verdict and was released from duty,
the district court spoke with the jurors, as is its custom, to thank them
for their service and to answer any questions. At this time, one of the
jurors asked the district court how much Stewart would actually
recover. The district court answered that he would probably recover
$350,000.00 to $400,000.00 after attorney's fees and costs.

Amusements of America subsequently filed a motion for a new
trial nisi remittitur, or in the alternative, for a new trial on various
grounds, including juror misconduct by Juror Clement and excessive-
ness of the jury's award of economic damages. On the subject of juror
misconduct, Amusements of America submitted an affidavit by
another juror, Lillian Linder (Juror Linder), which stated, in pertinent
part, that during jury deliberations, Juror Clement: (1) represented
that he was a lawyer; (2) told the jury that it could not send the judge
a note stating that the jury could not agree as to percentage of fault
or that it could not agree or reach a decision; (3) told the jury that it
needed to compromise and reach an agreement; and (4) misled the
jurors as to how much money Stewart would receive. The district
court denied Amusements of America's motion, and Amusements of
America noted a timely appeal.
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1 The parties agree that under applicable Florida law on comparative
negligence, Amusements of America is liable for only ten-percent of the
$150,000.00 in non-economic damages, but that it is liable for one-
hundred percent of the $600,000.00 in economic damages, notwithstand-
ing that the jury found Amusements of America only ten-percent at fault.
The parties also agree that the district court properly instructed the jury
not to make any reduction for the negligence, if any, of Stewart's co-
worker in determining the amount of Stewart's damages, because the
court, in entering judgment, would make an appropriate reduction to the
total amount of damages awarded.

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II.

Amusements of America first contends that the district court
abused its discretion by denying its motion for a new trial predicated
on juror misconduct. According to Amusements of America, the dis-
trict court should have excused Juror Clement after he wandered the
halls against the district court's instructions, because such conduct
coupled with the alleged misleading statement in his juror question-
naire demonstrated disrespect for the court and his oath as a juror.
Furthermore, according to Amusements of America, the four state-
ments in Juror Linder's affidavit as set forth above are competent to
establish that Juror Clement introduced extraneous prejudicial infor-
mation to the jury, thereby precluding it from receiving a fair trial.

The denial of a motion for a new trial predicated on alleged juror
misconduct is reviewed for abuse of discretion. See Knowlton v.
Greenwood Indep. Sch. Dist., 957 F.2d 1172, 1177 (5th Cir. 1992).
For reasons that follow, we affirm the district court's denial of
Amusements of America's motion for a new trial predicated on
alleged juror misconduct.

A. The Juror Questionnaire and Wandering the Halls

The district court rejected Amusements of America's argument that
Juror Clement's juror questionnaire misled the parties into believing
that he had a valid license to practice law. According to the district
court, a common sense reading of the questionnaire leads a reasonable
person to believe that Juror Clement had been disbarred. We fully
agree, and further note that Amusements of America had an opportu-
nity during voir dire of the jury to clear up any possible confusion
regarding whether Juror Clement had a valid law license, but failed
to take advantage of that opportunity. Accordingly, the district court
properly determined that Juror Clement's questionnaire could not
serve as a basis for granting Amusements of America a new trial.

Next, the district court rejected Amusements of America's argu-
ment that Juror Clement's initial refusal to stay in the jury room so
that he could wander the halls of the courthouse warranted a new trial,
because the district court found that Amusements of America failed
to offer any evidence that it was prejudiced by his conduct. On this

                    5
point, the district court noted that "[w]hile it is true that Mr. Clement
left the jury room during the first day of the trial, after he was cau-
tioned by the court to remain in the jury room, this activity ceased."
(J.A. 698 n.1). The district court obviously believed that despite Juror
Clement's initial improper wandering from the jury room, he stayed
true to his oath as a juror at all times critical to the fairness of the trial.
Because the district court observed the jury on a day-to-day basis, the
district court was in a much better position than this court to judge the
demeanor of Juror Clement and the atmosphere of the courtroom in
general. See United States v. Barnes, 604 F.2d 121, 144 (2d Cir.
1979) ("Appellate courts have given, and should give, broad discre-
tion to trial judges to pass upon charges of juror misconduct . . . made
visible in a tangible way. Other cases presented under other circum-
stances in other courtrooms may provide guidelines, but each case is
actually Sui generis."). Accordingly, we see no reason to second
guess the district court's judgment on this score.

B. Alleged Extraneous Information

The district court held that in considering the merits of Amuse-
ments of America's motion for a new trial, Federal Rule of Evidence
606(b) prohibited it from considering the four statements in Juror
Linder's affidavit that Amusements of America offered in support of
that motion. Rule 606(b) generally excludes testimony of a juror
impeaching the verdict:

           Upon an inquiry into the validity of a verdict or indictment,
           a juror may not testify as to any matter or statement occur-
           ring during the course of the jury's deliberations or to the
           effect of anything upon that or any other juror's mind or
           emotions as influencing the juror to assent to or dissent from
           the verdict or indictment or concerning the juror's mental
           processes in connection therewith . . . . Nor may a juror's
           affidavit or evidence of any statement by the juror concern-
           ing a matter about which the juror would be precluded from
           testifying be received for these purposes.

Fed. R. Evid. 606(b). Rule 606(b) contains an exception allowing
jurors to testify "on the question whether extraneous prejudicial infor-
mation was improperly brought to the jury's attention . . . ." Id. On

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appeal, Amusements of America contends that the district court erred
in failing to conclude that Juror Linder's statements fell within this
exception, a contention which is without merit.

Rule 606(b) does not define the phrase "extraneous prejudicial
information." However, the phrase suggests a natural distinction
between information that every juror brings to the jury room based
upon his life experience on the one hand, and personal knowledge of
facts specific to the litigation on the other hand. Other courts have
recognized this natural distinction. For instance, in Silagy v. Peters,
905 F.2d 986 (7th Cir. 1990), the Seventh Circuit held that a juror's
erroneous statements during deliberations in the sentencing phase of
a capital murder prosecution to the effect that under Illinois law the
defendant would serve no more than five to seven years if sentenced
to life and would never be executed if sentenced to death, but would
serve more than seven years, were merely a juror's erroneous ideas,
and therefore, did not constitute extraneous prejudicial information
under Rule 606(b). Id. at 1008-09. Furthermore, in Hard v. Burlington
N. R.R. Co., 870 F.2d 1454 (9th Cir. 1989), the Ninth Circuit held that
a juror's assertion during jury deliberations in a personal injury case
of some special knowledge of x-ray interpretation, which the juror
had acquired during military service, did not constitute extraneous
prejudicial information under Rule 606(b), because the juror did not
impart personal knowledge of facts specific to the litigation. Id. at
1462.

Here, Juror Clement's alleged statements during deliberations in
which he: (1) identified himself as a lawyer; (2) expressed his view
that the jury was not allowed to send notes to the judge indicating that
it was deadlocked; and (3) expressed his view that the jury needed to
reach a compromise fall squarely within the category of the type of
general knowledge that every juror brings into the jury room by rea-
son of the juror's life experience. Conversely, none of the information
in these statements fall within the category of personal knowledge of
facts specific to the litigation. Accordingly, the district court properly
determined that Rule 606(b) prohibited it from considering these
statements in Juror Linder's affidavit as competent evidence to
impeach the jury's verdict.

As to Juror Linder's general statement that Juror Clement misled
the jury regarding the amount of Stewart's potential recovery, the dis-

                     7
trict court properly determined that Rule 606(b) prohibited it from
considering the statement as competent evidence of misconduct by
Juror Clement. Because Juror Linder did not identify any information
imparted by Juror Clement regarding the amount of Stewart's poten-
tial recovery, Rule 606(b)'s "extraneous prejudicial information"
exception is obviously inapplicable. In an apparent attempt to avoid
this conclusion, Amusements of America would have us read into
Juror Linder's statement that Juror Clement erroneously informed the
jury that under Florida law, Stewart would only be able to recover ten
percent of any economic damage award that the jury returned.
Because the record contains no evidence to this effect, any attempt to
have us read Juror Linder's statement for any more than what it says
must fail.

In sum, the district court correctly determined that none of the
statements in Juror Linder's affidavit offered by Amusements of
America in support of its motion for a new trial were competent to
impeach the jury's verdict.

III.

Amusements of America next contends that the jury's award of
$600,000.00 in economic damages is excessive, and therefore, the
district court abused its discretion in refusing to grant it a new trial
on that basis.2 See Gasperini v. Center for Humanities, Inc., 518 U.S.
415, 438-39 (1996) (holding that federal appellate review of a district
court's denial of a motion for a new trial predicated on the excessive-
ness of the jury's damage award is for abuse of discretion). Once
again, Amusements of America's contention is without merit.

After the district court denied Amusements of America's motion
for a new trial predicated on the alleged excessiveness of the jury's
economic damage award, the Supreme Court definitively established
that a district court sitting in diversity must apply state law standards
to determine whether a verdict is excessive. See Gasperini, 518 U.S.
at 436-38. Accordingly, Florida law was applicable in determining
whether the jury's economic damage award was excessive. Under
_________________________________________________________________
2 On appeal, Amusements of America does not challenge the district
court's denial of its alternative motion for a new trial nisi remittitur.

                    8
Florida law, a jury's award is considered excessive only if the award
"is so extravagant that it shocks the judicial conscience, is manifestly
unsupported by the evidence, or otherwise affirmatively indicates that
the jury has been unduly influenced by passion, prejudice, or other
matters outside the record . . . ." Tobias v. Osorio, 681 So. 2d 905,
907 (Fla. Dist. Ct. App. 1996).

Here, the district court did not specifically test the jury's economic
damage award against Florida law. However, it did conclude that the
jury's economic damage award was not against the clear weight of the
evidence and was not so excessive as to be a miscarriage of justice.
In this circumstance, we believe that a remand for the district court
to test the jury's award against Florida law would be an exercise in
futility, because the district court, having found the jury's
$600,000.00 economic damage award not to be against the clear
weight of the evidence or a miscarriage of justice, would certainly
find on remand the same award not to be: (1) so extravagant that it
shocks the judicial conscience; (2) manifestly unsupported by the
evidence; or (3) otherwise affirmatively indicating that the jury has
been unduly influenced by passion, prejudice, or other matters outside
the record.

After carefully reviewing the record, we hold that the jury's award
of $600,000.00 in economic damages is not excessive under Florida
law.3 First, the record contains competent evidence that Stewart
incurred $4,468.00 in pretrial medication expenses. Specifically,
economist Dr. Perry Woodside (Dr. Woodside) testified that he calcu-
lated Stewart's pretrial medication expenses at $4,468.00 based upon
information that Stewart gave him regarding the type of medications
that Stewart was taking and for how long Stewart had been taking
them. Second, the record contains competent evidence that Stewart
incurred medical expenses, including physicians' charges, in the
amount of $11,848.06, which Amusements of America does not chal-
lenge.
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3 The parties agree that under Florida law, Stewart's economic damages
constitute his past medical expenses, any medical expenses that he would
incur in the future, an amount equal to his lost wages from the time of
the accident until the day of trial, and any loss of future wages attribut-
able to Amusements of America's tortious conduct.

                    9
Finally, the bulk of the damage award is attributable to competent
evidence of Stewart's past and future lost wages. The record contains
competent evidence that Stewart's past and future lost wages amount
to between $538,279.00 and $758,300.00, depending upon the
amount of Stewart's mitigating earnings. Stewart's evidence of lost
wages is in the form of testimony by his treating physician, Dr. Mike
Tyler, a vocational expert, Jean Hutchinson, and an economist, Dr.
Woodside. Prior to the accident, Stewart was a long-haul truck driver.
According to Dr. Tyler, a diagnostic surgeon, because Stewart contin-
ues to suffer pain from his compression fracture, he should avoid
heavy work and truck driving. In addition, Dr. Tyler opined that
Stewart could not bend or stoop for long periods of time. In all, Dr.
Tyler estimated Stewart's permanent impairment at"[t]en percent of
the whole man." See (J.A. 71).

Relying on Dr. Tyler's testimony as to Stewart's physical limita-
tions, vocational expert Jean Hutchinson opined that Stewart's
employment potential was limited to low or minimum wage paying
jobs, requiring only very light work. In this regard, she testified that
Stewart does not meet the true qualifications for medium work. She
also testified that any appropriate job for Stewart"would have to be
very, very light work with the ability to sit and stand as necessary, not
a lot of carrying, no repetitious bending or stooping, or something like
that." (J.A. 610). In terms of Stewart's expected pay scale under these
conditions, Hutchinson testified that "[i]t's much lower," and that
"[t]he jobs we're talking about are going to be entry level positions
because he's essentially starting over, so we're looking at probably--
minimum wage is currently four twenty-five an hour, so we are prob-
ably looking at four twenty-five to five twenty-five an hour." (J.A.
610-11).

Economist Dr. Woodside calculated the difference between the
amount of money that Stewart would have earned as a long-haul truck
driver from the time of the accident until the age of sixty-five and the
amount of money that he would likely earn at a low paying job ($4.25
to $5.00 per hour) of the type he physically could fill to be between
$538,279.00 and $758,300.00, depending upon the amount of Stew-
art's mitigating earnings. Dr. Woodside's estimate also took into con-
sideration earnings that Stewart had accrued during two different jobs
that he held between the time of the accident and the time of trial.

                    10
Amusements of America acknowledges all of this evidence, but
argues that it should be disregarded, primarily because Stewart did
not have a valid driver's license at the time of trial due to a conviction
for driving while intoxicated. Obviously, the jury did not believe that
the loss of Stewart's driver's license was permanent such that it alone
would have prevented him from ever returning to his past work as a
long-haul truck driver. Accordingly, we reject Amusements of Ameri-
ca's argument.

In summary, the jury's award of $600,000.00 in economic damages
in favor of Stewart is certainly not excessive under Florida law.

IV.

In conclusion, we affirm the district court's denial of Amusements
of America's motion for a new trial predicated on alleged juror mis-
conduct and the alleged excessiveness of the jury's award of eco-
nomic damages as a valid exercise of the district court's discretion.

AFFIRMED

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