                                 NO. 07-00-0414-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                DECEMBER 20, 2001

                        ______________________________


             LINDA WILLIAMS AND JOHN W. WILLIAMS, INDIVIDUALLY
              AND AS REPRESENTATIVES OF THE ESTATE OF JOHN
                WESLEY WILLIAMS, JR., DECEASED, APPELLANTS

                                          V.

                  BALUSWAMY VISWANATHAN, M.D., APPELLEE


                       _________________________________

            FROM THE 72nd DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 97-560,756; HONORABLE J. BLAIR CHERRY, JR., JUDGE

                        _______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.


      In five issues, appellants Linda and John W. Williams, individually and as

representatives of the estate of John Wesley Williams, challenge a judgment against them

in their suit for medical malpractice against appellee Balluswamy Viswanathan, M.D.

Appellants were the parents of John Wesley Williams (John), a 14-year-old special
education student, who suffered near drowning in a swimming pool on May 22, 1995, and

was treated by appellee at Methodist Hospital in Lubbock. John died approximately 24

hours after being taken to the hospital.


       Initially, appellants challenge this court’s overruling of their motion for

disqualification and recusal of one of the justices of this court. They also contend that

reversible error exists because (1) the trial court submitted two unsupported and

cumulative jury instructions, (2) the jury’s failure to find that appellee’s negligence was a

proximate cause of John’s death was against the great weight and preponderance of the

evidence, (3) the trial court abused its discretion in overruling their motion for new trial

based on admitted juror misconduct, and (4) a new trial is required to investigate the

discovery of a new death certificate. Disagreeing that reversal is required, we affirm the

judgment of the trial court.


       In their first issue, appellants except to this court’s overruling of their motion for the

disqualification and recusal of Justice Quinn. Although they presented several bases for

disqualification or recusal in their motion, in this appeal they apparently only attempt to re-

assert one basis, i.e., that Justice Quinn has a financial interest in the outcome of this case

because he offices at Texas Tech University and serves as an Adjunct Professor there,

and appellants have another lawsuit pending against that university. In our opinion

overruling appellants’ motion, we found that Texas Tech University was not a party to this

lawsuit and therefore the issue was not relevant here. In the opinion, we also noted that



                                               2
the type of interest required for disqualification must be of a pecuniary nature so that the

judge would gain or lose by the judgment rendered in the case. That interest must not only

be capable of valuation, it must be direct, real, certain, and in the subject matter of the

case in question. We did not believe that Justice Quinn had a sufficient pecuniary interest

to warrant his disqualification. Williams v. Viswanathan, No. 07-00-0414-CV, 2001 WL

23151, at 4 (Tex.App.--Amarillo January 8, 2001).


       However, appellants assert that free office space is not valueless because,

otherwise, Justice Quinn would have to pay rent from his own resources for office space,

receive the same benefit from other private sources, or forego his convenience of having

a second office in Lubbock.      Therefore, they argue, it is in Justice Quinn’s financial

interest to protect the financial stability of Texas Tech University so he may continue to

receive the benefit of a free office. Appellants further posit that we erred in not making our

review by determining whether a reasonable member of the public at large, knowing all the

facts, could reasonably question the judge’s impartiality.


       Once again, we point out that Texas Tech University is not a party to this lawsuit.

We fail to see how a judgment for or against appellee, who is a physician practicing at

Methodist Hospital, would affect the financial stability of Texas Tech University. Even if

appellants have a lawsuit pending against Texas Tech University with respect to the death

of their son, those issues are not before us, and appellants specifically sought to exclude

any evidence at trial as to negligent acts on the part of any persons or entities prior to the



                                              3
time that John arrived at the hospital for treatment. Therefore, even assuming arguendo

that there is a pecuniary interest capable of valuation, that interest is not a direct interest

in the subject matter of the case in question, and we do not believe that a member of the

public would reasonably question Justice Quinn’s impartiality. Appellants’ first issue is

overruled.


       In their second issue, appellants complain of the submission of two instructions to

the jury which they contend were neither raised by the pleadings nor supported by the

evidence and together constitute cumulative instructions. In doing so, they posit that an

instruction pursuant to article 4590i of the Medical Liability and Insurance Improvement Act

was improper. The challenged instruction is as follows:


       A finding of negligence may not be based solely on evidence of a bad result
       to the patient in question, but such a bad result may be considered by you,
       along with other evidence, in determining the issue of negligence. You shall
       be the sole judges of the weight, if any, to be given to such evidence.


In a jury trial involving a health care liability claim, the court may provide the referenced

instruction if it determines the instruction is reasonably applicable to the facts. Tex. Rev.

Civ. Stat. Ann. art. 4590i § 7.02(c) (Vernon Supp. 2001). That determination is to be made

by the trial court in its sole discretion, and we review that determination under an abuse

of discretion standard. Id.


         Appellants rely on Irick v. Andrew, 545 S.W.2d 557 (Tex.Civ.App.--Houston [14th

Dist.] 1976, writ ref’d n.r.e.), overruled on other grounds by Haddock v. Arnspiger, 793


                                              4
S.W.2d 948 (Tex. 1990), for the proposition that where there is evidence that the physician

committed some acts of negligence, an instruction regarding a bad result is improper. In

Irick, the instruction given was as follows: “You are instructed that an unexpected result,

bad result, failure to cure, or any other circumstance showing merely a lack of success, is

not evidence of negligence on the part of the defendant physician; negligence cannot be

inferred solely from a failure to cure or unexpected result.” Id. at 558-59. In finding that

the submission of the instruction was error, the appellate court noted that there was some

evidence that the doctor there had administered an improper dosage of radiation.

Because the jury was entitled to consider the radiation burn along with the other evidence

in determining the question of the doctor’s negligence, and the instruction did not tell them

that, the appellate court held that it was “an improper statement of the law as applied to

this case.” Id. at 559. However, here, contrary to Irick, the instruction specifically

informed the jury they could consider a bad result along with other evidence in determining

negligence. That being so, the objectionable portion of the instruction in Irick has been

cured in the instruction given here.


       Appellants also contend there was no evidence to support the instruction because

it was undisputed that appellee committed negligent acts. We disagree. While appellants’

expert testified to a number of acts of negligence assertedly committed by appellee

including, among others, treating the patient with Dopamine, decreasing the dosage of

Lasix, failing to lower his positive end expiratory pressure (PEEP), difficulty in placing lines

in the patient causing pneumothoraxes, and puncturing the patient with a trocar, appellee


                                               5
called two expert witnesses who testified he was not negligent in his treatment.

Additionally, although appellee acknowledged that John’s condition worsened under his

care, he denied that he was negligent in his treatment. Thus, there was evidence to

support the submission of the instruction. Furthermore, appellee specifically pled that

John’s death was not caused by his negligence. Under this record, the trial court did not

abuse its discretion in submitting the instruction to the jury.


       Appellants also objected to the instruction on unavoidable accident. Once again,

they argue the instruction was not supported by the pleadings and the evidence. The

instruction read: “An occurrence may be an ‘unavoidable accident,’ that is, an event not

proximately caused by the negligence of any party to it.”


       The purpose of an unavoidable accident instruction is to inform the jury that,

although conduct may have been negligent, it must produce the outcome of which the

party complains. Crawford v. Hope, 898 S.W.2d 937, 941 (Tex.App.--Amarillo 1995, writ

denied). Further, the instruction has been historically used in medical malpractice cases

if there is some evidence first presented that the event was caused by some condition

other than the negligence of the parties. Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802,

803 (Tex. 1992); Crawford, 898 S.W.2d at 941; Wisenbarger v. Gonzalez Warm Springs

Rehabilitation Hosp., Inc., 789 S.W.2d 688, 692 (Tex.App.--Corpus Christi 1990, writ

denied).




                                              6
       Appellee specifically pled that John’s death was not caused by the negligence of

any party to the case, but that “[i]t was an accident.” At a pretrial hearing, the court ruled

that it would not permit evidence of unavoidable accident prior to the presentation of the

decedent to medical personnel. However, there was expert testimony at trial that John had

a “catastrophic lung injury” at the time he arrived at the hospital and that his chances of

living were about five percent. Further, there was testimony that the cause of death was

due to the severity of his lung injury and the inability to overcome the damage placed on

his entire body by that injury. Additionally, appellee’s medical experts went through

various alleged acts of negligence and testified the acts were not negligent and were not

the proximate cause of John’s death. Although appellants’ expert disagreed with some of

these statements, this is still some evidence that the death was caused by a condition or

other physical circumstances than the negligence of the parties.


       Even so, appellants contend that, even if the pleadings and proof support the

submission of the unavoidable instruction, the instruction was improper because it

impermissibly confused the jury by improperly commenting on the weight of the evidence.

They argue that such an instruction should only be used in situations “involving

instantaneous events or occurrences arising as a result of conditions or circumstances

which exist at a particular point in time.” See Wisenberger, 789 S.W.2d at 694. However,

we note that in Crawford, the court declined to find such an instruction was improper

merely because it may have constituted some comment on the evidence. Rather, the court

opined, although the submission of an instruction implicitly tells the jury that some


                                              7
evidence exists to support the proposition, if it does not inform the jury that one party’s

evidence is more credible than the other party’s evidence, it may be submitted. Crawford,

898 S.W.2d at 941-42.


       The Wisenbarger court found such an instruction to be unnecessary to aid the jury

because the expert witness testimony from both parties was that the standard of care

provided was equal to or above the standard of care provided in the community. However,

the court also intimated, without so finding, that if the evidence had not been so one-sided,

the unavoidable instruction could have confused or misled the jury. Wisenbarger, 789

S.W.2d at 694. The teaching of this discussion seems to be that if the evidence on

negligence is conflicting, such an instruction may be necessary to aid the jury, even though

it might possibly confuse or mislead them. In such instances, the submission of such

instructions are left to the discretion of the trial court.


       Furthermore, to constitute an improper comment on the weight of the evidence, the

instruction must suggest to the jury the trial court’s opinion on the matter. Whiteside v.

Watson, 12 S.W.3d 614, 624 (Tex.App.--Eastland 2000, pet. denied); Harris v. General

Motors Corp., 924 S.W.2d 187, 188 (Tex.App.--San Antonio1996, writ denied); City of

Amarillo v. Langley, 651 S.W.2d 906, 915 (Tex.App.--Amarillo 1983, no writ). In this

instance, the instruction did not direct the jury that one party’s evidence on negligence was

more credible than the other party’s evidence. Thus, the trial court’s action in submitting

the issue was not arbitrary or unreasonable, i.e., not an abuse of its discretion.



                                                8
       Finally, appellants contend that even if the submission of the instructions on “bad

result” and “unavoidable accident” were each individually proper, the cumulative effect of

the submission of both instructions, which rely on the same evidentiary support, resulted

in an impermissible comment on the weight of the evidence. Appellants cite no authority

with respect to that contention, nor have we found any such authority in a medical

malpractice case. However, the instruction on “bad result” is directed to the issue of the

existence of negligence, while the instruction on “unavoidable accident” is directed to the

issue of proximate cause. Thus, although some of the evidence supporting the two

instructions is overlapping, the exact same evidence does not necessarily support each

instruction.


       First, there was a dispute among the medical experts as to whether appellee was

negligent at all. Additionally, even in instances in which appellants’ medical expert

believed there was negligence, he also agreed that some of those instances, such as the

difficulty in inserting IV lines and the dosage of Lasix did not result in John’s death. There

was also no testimony that appellee’s alleged negligence in failing to give appropriate pain

medication resulted in John’s death.        Inasmuch as we have determined that the

submission of each issue individually was proper, and appellants cite no authority for their

proposition that the submission of both issues had a cumulative erroneous effect, we

decline to find any abuse of discretion on the part of the trial court. Appellants’ second

issue is overruled.




                                              9
       In their third issue, appellants contend the evidence is factually insufficient to

support the jury’s verdict. The jury failed to find that appellee’s acts were the proximate

cause of John’s death. In our review, we must examine the entire record to determine if

any evidence supports the jury’s finding and then determine if, in light of all the evidence,

the finding is manifestly unjust. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex. 1973).


       Appellants argue that the evidence was “undisputed that the acts and omissions of

Appellee would not have been proper under the same or similar circumstances in the

hands of a reasonably prudent physician.”            We disagree.   The issues of whether

appellee’s acts or omissions were negligent and whether they proximately caused John’s

death were strongly contested at trial. Because of the nature of appellants’ complaint, we

will set forth that testimony in some detail.


       Dr. Charles Landers, who is board certified in internal medicine, pulmonary

medicine and critical care, testified on behalf of appellants, and averred that appellee was

negligent in his treatment of John, which caused his death. This was the case, the doctor

reasoned, because John came in with one problem and when the care being provided him

was not effective, in the face of that failure, appellee failed to modify his strategies. Dr.

Landers did not believe the lung injury itself was a proximate cause of death. John arrived

in the emergency room awake, alert, and conscious with unlabored breathing. Further, his

vital signs were acceptable. Dr. Landers also discussed a study in which 121 near




                                                10
drowning patients were awake, alert, and oriented when they presented to hospitals, and

all of those patients survived.


       He reviewed John’s x-ray taken in the emergency room and opined that, although

John’s lungs had been injured, it did not mean he was going to die. When an x-ray is

abnormal, the oxygen is low and the lungs are stiff, indicating adult respiratory distress

syndrome (ARDS). A patient with ARDS needs supportive care. The doctor did not

believe that either the vomiting of material from John’s stomach or the fact that, when John

was taken off oxygen his oxygen saturation fell to 77%, meant that John was going to die.

Dr. Landers also opined that the fact the medical records show appellee came to the

emergency room 15 minutes before he actually saw John indicate appellee was negligent.

Moreover, a 35-minute delay before intubation would, in his opinion, constitute negligence

for a deteriorating patient. Further, because the medical records show that appellee

attempted intubation twice before being successful, appellee was negligent because there

should have been no difficulty in intubating him. Additionally, it was below the standard

of care to give a too low a dose of Lasix. John’s oxygen saturations remained at the level

desired by appellee most of the time, which was an appropriate level. However, they

decreased when appellee punctured both lungs trying to insert lines.


        The medical records also indicate there were multiple attempts to insert IV lines

in multiple locations, which Dr. Landers believed was below the standard of care, because

insertion of those lines is a routine motor skill. The fact that another doctor was able to



                                            11
place a central line on the first attempt indicated that someone with reasonable skills

should have been able to do so fairly easily. He further criticized appellee for sticking both

sides of the chest with needles unsuccessfully without taking a chest x-ray in between

those actions because of the need to make sure a lung had not collapsed. Dr. Landers

believed that appellee punctured the left lung first and then the right lung, which was below

the standard of care. He also opined that when appellee attempted to insert a chest tube

with a trocar to re-expand the lung, it caused further injury to the lung, resulting in bleeding

out through the tube. That action was also below the standard of care. Further, x-rays

indicated that John had a pneumomediastinum and, in spite of the chest tube, the

pneumothorax persisted. Dr. Landers believed that the chest tubes were too small. In

spite of all of these incidents, John was maintaining adequate oxygen saturation.

However, Dr. Landers criticized appellee for not giving pain medication to John early

enough, and when he finally prescribed Morphine, for giving too low of a dose, causing

John to suffer an extreme amount of pain.


       PEEP greater than 15 can cause pressure on the heart and lungs and decrease

venous return, which in turn decreases cardiac output and results in less oxygen to the

tissues and acidosis. Dr. Landers believed that is what happened to John. He agreed with

the death certificate that the immediate cause of death was cardiac arrest. The excessive

PEEP caused John’s blood pressure to be low. Cardiac output should have been

measured by insertion of a Swan-Ganz catheter to get repeated measurements. The risk

of insertion would have been small and, in Dr. Landers’s opinion, it was below the standard


                                              12
of care not to do so and was a proximate cause of death. Appellee chose to give John

fluid and Dopamine, neither of which kept his blood pressure up and, without the

monitoring provided by the catheter, he could not have known whether John needed more

fluid or not. However, the records indicate John did not need fluid. Dr. Landers is not

aware of any patient ever dying from a breathing problem who had oxygen levels and PO2

levels such as John. By the time John was close to death, he still had oxygen levels

sufficient to sustain life. If appellee had treated John appropriately, it was the doctor’s

opinion that he would have been supported through his acute injury and his lungs would

have recovered.


       On cross-examination, Dr. Landers admitted he did not know how many of the 121

patients from the study he cited had ARDS. He also agreed that John’s initial x-ray was

dramatically abnormal. He believed that John was in “dire straits” and in full respiratory

failure by the time he was intubated. He admitted he occasionally had trouble placing IV

lines and that the IV’s did not cause John major problems. He further admitted in his

deposition that he did not believe the Lasix given to John caused him any harm. One of

the things that can cause a pneumothorax is barotrauma, which can be caused by

mechanical ventilation. He admitted that it was possible that John’s pneumothorax was

caused by barotrauma. There was also no notation in the autopsy report of any injury to

John’s lungs caused by a trocar. Dr. Landers agreed that giving a narcotic can lower

blood pressure, and he additionally agreed that it is the treating physician’s responsibility

to determine the parameters for giving pain medicine.


                                             13
       In contrast, Dr. Thomas Petty, a specialist in internal and pulmonary medicine,

testified on behalf of appellee. He stated that the notes of the emergency medical

personnel showed that the decedent’s heart had stopped and he later started coughing up

bloody sputum. That symptom indicated a very severe lung injury, and John’s oxygen

saturations indicated the same thing. The x-ray taken after John arrived at the hospital

was characteristic of ARDS. It was the x-ray of a “catastrophic lung injury.” At that point,

John’s predictable outcome was less than a 5% chance of survival. John was also

suffering from pulmonary edema.


        Dr. Petty further testified that when the lungs are severely injured, a huge amount

of inflammatory processes are delivered throughout the body and they affect every organ

of the body. He believed that appellee raised the decedent’s PEEP to an appropriate

level in order to maintain as much oxygen transfer across the lungs as possible. He did

not agree that high PEEP caused decreased cardiac output leading to cardiac arrest. He

felt the heart problems were caused by ARDS.         He also did not believe that acidosis

caused death. He averred that the decedent died “as a consequence of drowning, near

drowning, which set forth a chain of events that led to the development of the acute

respiratory distress syndrome because of an overwhelming lung injury, and he died not

because of his medical management, but he died because of the severity of his lung injury

and the inability to overcome the damage that had been placed on John’s – not only John’s

lungs but John’s whole body.”




                                            14
      On cross-examination, Dr. Petty admitted that John was awake, alert, oriented, and

breathing on his own with the assistance of oxygen when he arrived in the emergency

room. He also admitted that John suffered a pneumothorax after appellee attempted to

place a subclavian line and had his intercostal artery hit during the insertion of a chest

tube with a trocar. He further agreed that when the PEEP is greater than 15, in some

circumstances there could be pressure placed on the heart which decreases venous return

and cardiac output. If the tissues do not get enough oxygen, they become acidotic,

leading to cardiac arrest, which was the final cause of death. Additionally, Dr. Petty

admitted that a reasonable physician could have concluded that John had low cardiac

output due to too high a PEEP.      However, he disagreed with that conclusion in this

instance. Dr. Petty denied that insertion of a Swan-Ganz catheter to measure cardiac

output was the appropriate standard of care. He also denied that there could not have

been a medical reason to increase the PEEP.


      On redirect, Dr. Petty testified that he believed the heart was suppressed by the

products of inflammation. Appellee was attempting to dry the heart by giving fluid to

improve the circulating blood volume and giving Dopamine to dry the heart, which was

appropriate. The PEEP was necessary to keep him alive. The pneumothorax was caused

by the underlying lung injury and, because of the necessary pressure to keep him alive,

the weak supports in his lungs blew out.




                                           15
       Dr. Brett Giroir, a pediatric intensive care specialist, also testified for appellee. He

stated that by the time that appellee saw John, he “was really in dire circumstances.” The

amount of oxygen in his body was very low and he had severe pulmonary edema. He

believed John was moments from death when appellee saw him. At that time, John

already had ARDS. He opined that appellee clearly operated within the standard of care

of a pediatric intensivist.


       In response to an allegation that more than one attempt was necessary to intubate

John, Dr. Giroir testified that the records show that when appellee first attempted to insert

the tube, there were fluids which had to be suctioned out of the airway prior to the tube

being placed. He also stated that, in his opinion, Lasix probably was not going to help

John, but many physicians do give Lasix because there is a slight chance it may help and

probably will not hurt the patient. In response to complaints that appellee had difficulty

placing some IV lines, Dr. Giroir said that many times a line cannot be inserted on the first

try. Furthermore, in emergency situations, there is no time to work on one particular vein,

so attempts are made with multiple sticks. He further averred that central lines are difficult

to insert and, while many times they can be inserted on the first try, many times it takes

multiple tries. Additionally, John was too sick to be placed in the best position for

insertion, which was with the feet above the head. It is within the appropriate standard of

care not to give the patient Morphine, which can lower blood pressure, as long as a

sedative such as Ativan is given, which was prescribed by appellee.




                                              16
       Dr. Giroir opined that it was appropriate for appellee to perform a bilateral needle

thoracostomy at the time he did. It was also mandated that he insert chest tubes, which

he did. The chest tubes were properly placed according to the chest x-ray. If the lung

had been injured by use of a trocar, it should have been noted on the autopsy report,

which it was not. Dr. Giroir further felt that appellee used an appropriate size of chest

tube. John had a pneumomediastinum, which means there is air tracking through the

injured lungs into the mediastinum which can evolve into a pneumothorax. Other causes

of a pneumothorax can be the placement of a central line or the existence of ARDS with

a very injured lung containing inflammation. He could not tell which of these was the

cause of John’s pneumothorax. The fact that, after the placement of chest tubes, John

continued to have a pneumothorax does not indicate an unsatisfactory standard of care,

because it is not uncommon not to be able to drain all of the air.


       It was appropriate for appellee to give fluid for John’s low blood pressure to

augment the circulation and to give Dopamine to help the heart contract better. Further,

he opined, it was appropriate to raise John’s PEEP to 18 in order to raise it to a point

where the lungs start to open so the amount of oxygen in the blood increases. Appellee

started with a low PEEP, which must be dialed up until the desired response is achieved.

At lower levels, John did not respond well. It is not the standard of care to place a Swan-

Ganz catheter in pediatric patients because it is high risk and it has never been shown that

placing the catheter improves the outcome. However, it is an option depending on the

circumstances. He did not believe that the level of PEEP decreased the cardiac output,


                                            17
causing acidosis and cardiac arrest. The PEEP should have helped the cardiac output in

this instance by causing the blood vessels in the lungs to relax. John died because of the

bad inflammation or poisons from his body circulating in the system.


       On cross-examination, Dr. Giroir stated that a reasonably prudent physician would

not have concluded that high PEEP led to cardiac arrest. However, he admitted he would

have treated John differently by inserting a pulmonary artery catheter, although it is not the

standard of care around the country. No patient in which he has inserted such a catheter

has died. He did not agree that the first priority upon appellee entering the hospital was

to necessarily see John. Appellee may have wanted to review the x-ray and talk to the

emergency room physician who treated John prior to seeing him. He admitted John’s low

blood pressure could have been caused by decreased cardiac output. One way to

increase venous return is to decrease high levels of PEEP; however, in other

circumstances, by increasing volume.


       On redirect, he stated that although John’s oxygen saturations were normal, that

fact does not mean the lungs are working well. He believed the high PEEP should have

helped increase the cardiac output in this instance, because an echocardiogram did not

show the heart was squeezed, the oxygen went up in the blood, and the lung mechanics

were improved. The first real signs of acidosis did not occur until about ten minutes before

John went into cardiac arrest. He opined that it is not uncommon to nick an intercostal

vessel when a chest tube is inserted, so the bleeding experienced by John probably



                                             18
resulted from that. If a pulmonary artery had been hit, John would have died within

moments.


       Thus, the evidence shows that contrary to appellants’ assertions of undisputed

testimony, the evidence was conflicting as to whether appellee acted negligently and as

to whether those actions, if any, resulted in John’s death. Given the conflicting testimony,

it was within the province of the jury to resolve those conflicts. The decision of the jury was

not against the great weight and preponderance of the evidence, and we overrule

appellants’ third issue.


       In their fourth issue, appellants contend the trial court abused its discretion by

overruling their motion for new trial because of admitted juror misconduct. The final

judgment was signed on June 9, 2000. Appellants’ motion for new trial was filed on July

10, 2000, which was within the required 30-day period. See Tex. R. Civ. P. 329b(a). In

that motion, appellants did not raise the issue of juror misconduct. However, one of the

basis of the motion was that the verdict was against the great weight and preponderance

of the evidence.


        On August 17, 2000, appellants filed a supplemental motion for new trial on the

basis of juror misconduct. Although appellee asserts that the supplemental motion was

not timely filed, appellants argue that the issue of juror misconduct was directly related to

the issue of lack of evidence in the record to support the verdict.




                                              19
       Amended motions for new trial must be filed before any preceding motion for new

trial has been overruled and within 30 days after the judgment is signed. Tex. R. Civ. P.

329b(b). Any motion or amendment filed after expiration of 30 days is untimely and cannot

be considered by the trial court or appellate court. Bell v. Showa Denko K.K., 899 S.W.2d

749, 757 (Tex.App.--Amarillo 1995, writ denied). To the extent that a supplemental motion

may be different from an amended motion for new trial, the same rule applies. Voth v.

Felderhoff, 768 S.W.2d 403, 412 (Tex.App.--Fort Worth 1989, writ denied). Furthermore,

an argument of insufficient evidence to support a verdict may be premised on factors other

than juror misconduct, and appellants contended in their supplemental motion for new trial

that the evidence of juror misconduct was newly discovered. Therefore, they argue, it

could not have formed a basis of their original motion for new trial.


       However, even if it could be said that appellants raised the issue of juror misconduct

in their original motion for new trial, we do not believe the trial court acted improperly in

overruling the motion on that basis. Juror Jane Doe testified that she is now in a romantic

relationship with one of appellants’ trial counsel. She did not tell appellants’ counsel about

her juror misconduct until after she began dating him. She averred that while serving on

the jury, she spoke by telephone to a friend of hers who is a doctor. Prior to that

conversation, she said she had determined she would find appellee negligent and that his

negligence proximately caused the death of John. She explained to her friend the main

points why she believed appellee was negligent, but in the telephone conversation, he

refuted each of her arguments. As a result of that conversation, she said, by the time the


                                             20
jury voted, she had reversed her previous position on negligence. Instead of basing her

decision on what was testified to at trial, she based her decision on the information

provided by her friend. At the hearing, when she attempted to go further and testify as to

what she had told the other jurors, in the hope they would not find appellee negligent,

appellee’s objection was sustained by the trial court.


         Rule 327 of the Rules of Civil Procedure provides:


         a. When the ground of a motion for new trial, supported by affidavit, is
         misconduct of the jury or of the officer in charge of them, or because of any
         communication made to the jury, or that a juror gave an erroneous or
         incorrect answer on voir dire examination, the court shall hear evidence
         thereof from the jury or others in open court, and may grant a new trial if
         such misconduct proved, or the communication made, or the erroneous or
         incorrect answer on voir dire examination, be material, and 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.

         b. 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 his or any
         other juror’s mind or emotions as influencing him to assent to or dissent from
         the verdict concerning his mental processes in connection therewith, except
         that a juror may testify whether any outside influence was improperly brought
         to bear upon any juror. Nor may his affidavit or evidence of any statement
         by him concerning a matter about which he would be precluded from
         testifying be received for these purposes.


Tex. R. Civ. P. 327. Furthermore, Rule 606(b) of the Rules of Evidence provides:


       (B) InquiryIntoValidityofVerdictorIndictment. Uponaninquiryintothevalidityofaverdictorindictment,ajurormaynottestifyastoany
matter or statement occurring during the jury’s deliberations, or to the effect of anything
on any juror’s mind or emotions or mental processes, as influencing any juror’s assent to
or dissent from the verdict or indictment. Nor may a juror’s affidavit or any statement by


                                                               21
a juror concerning any matter about which the juror would be precluded from testifying be
admitted in evidence for any of these purposes. However, a juror may testify: (1) whether
any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim
that the juror was not qualified to serve.


Tex. R. Evid. 606(b). Outside influences about which a juror may testify must originate

from sources other than the juror herself. Golden Eagle Archery, Inc. v. Jackson, 24

S.W.3d 362, 370 (Tex. 2000). Indeed, it has been held that information gathered by a juror

does not amount to an outside influence, even if introduced to other jurors specifically for

the purpose of prejudicing the jurors’ votes. Soliz v. Saenz, 779 S.W.2d 929, 932

(Tex.App.--Corpus Christi 1989, writ denied). That being so, the trial court did not err in

excluding Jane Doe’s testimony with respect to her relaying the information she obtained

to the other jurors during the jury deliberations.


       To obtain a new trial because of juror misconduct, it must be shown that the

misconduct occurred, it was material, and the misconduct resulted in harm. Tex. R. Civ.

P. 327(a); Redinger v. Living, Inc., 689 S.W.2d 415, 419 (Tex. 1985). To the extent that

Jane Doe’s conversation with her friend was an outside influence exerted on her, we do

not believe it resulted in harm. There is no probable injury when the jury in all probability

would have rendered the same verdict. Id. at 419. In this case there was a unanimous

verdict. Therefore, even if Jane Doe’s vote was not counted, there would have been 11

votes to support the verdict. A verdict may be rendered by the concurrence of ten

members of an original jury of 12. Tex. R. Civ. P. 292. Reversal is not required by jury




                                             22
misconduct when the verdict would be supported by the required ten jurors. See Redinger,

689 S.W.2d at 419. Therefore, appellants’ fourth issue is overruled.


       In their fifth and final issue, appellants argue that a new trial is required to allow a

thorough investigation of a newly discovered death certificate. They allege that, after

completion of the trial, they discovered appellee filed a fraudulent death certificate, which

had been replaced by the medical examiner. The use of that false death certificate at trial

“allowed for confusion of the jury on the issue of the cause of death of John.” Further, they

argue, appellee allowed appellants to rely on the death certificate in preparing their expert

testimony relating to the cause of death. The cause of death on the certificate signed by

appellee was “cardiac arrest” due to drowning, while the cause of death on the certificate

signed by the medical examiner was “complications of near drowning.”


       At the hearing on the motion for new trial, appellants offered the affidavit of Robert

Byers, the Chief Investigator for the Lubbock County Medical Examiner, in which he stated

that since October 1, 1994, Lubbock has operated under a medical examiner system in

which only physicians employed by the medical examiner’s office may sign a death

certificate when the manner of death is not natural.          Therefore, appellee was not

authorized to sign the death certificate. Appellants also admitted an affidavit from Dr.

Charles Landers, their trial expert, in which he stated that his “analysis of the actions of

Dr. Baluswamy Viswanathan were premised on the medical records provided to me,

including documentation that the cause of death was determined to be cardiac arrest.” He



                                              23
further stated that if “the cause of death noted on a valid death certificate had been listed

as ‘complications from a near drowning incident,’ my analysis and testimony for the jury

would have had a different focus.” Dr. Landers focused his analysis on the effects of high

PEEP on the heart since he believed the cause of death to be cardiac arrest. However,

he averred, if the cause of death was that shown on the medical examiner’s death

certificate, he would have focused his analysis on the effect of high PEEP on the lungs.




       Appellee testified at the hearing on the motion for new trial and stated that the death

certificate was mailed to him. He believed he was to fill it out and sign it. He did so and

sent it back in a self-addressed envelope. He had no knowledge that there was a problem

with the death certificate until after trial. Although he knew that an autopsy would be done,

he did not know that the medical examiner would fill out a death certificate.


       To obtain a new trial based on newly discovered evidence, appellants must show

that the evidence has come to their knowledge since trial, their failure to discover it prior

to trial was not due to the lack of diligence, the evidence is not cumulative, and it is so

material that it would probably produce a different result if a new trial was granted.

Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983). The matter is addressed to the

discretion of the trial court and will not be disturbed absent an abuse of discretion. Id.


       A death certificate is a public document and, if the second one was in fact the

official death certificate, it should have been available to appellants prior to trial. Although


                                              24
appellants fault appellee for not knowing that the death certificate he signed was not an

official document, if they had been aware of the law, they should have also known to obtain

a certificate signed by the medical examiner. Moreover, the cause of death, which

appellants contend is newly discovered, is cumulative. The autopsy report which was

admitted into evidence also shows the cause of death as complications of near drowning.

Therefore, the second death certificate does not add any information not already before

the jury.1 Furthermore, Dr. Landers not only reviewed the death certificate, he also

testified at trial he had reviewed the autopsy report. Additionally, he did not claim mere

reliance on the cause of death in the death certificate. At trial he stated he agreed with it.

That testimony indicated that the doctor had formed his own independent opinion based

on his review of the medical records, autopsy report, and deposition testimony. Therefore,

in spite of Dr. Landers’s assertions that he would have presented different testimony, we

fail to see why he should have an opportunity to do so when the same information was

available to him in the first trial. There was no abuse of discretion on the part of the trial

court in its denial of appellants’ motion for new trial on the basis of newly discovered

evidence, and appellants’ fifth issue is overruled.




       In final summary, all of appellants’ issues are overruled, and the judgment of the

trial court is affirmed.


       1
         While the first death certificate was discussed at trial, we do not find in the record
that it was admitted into evidence.

                                              25
                John T. Boyd
                 Chief Justice

Publish.




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