                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-3443
                         ___________________________

                                      Ruby Hiser

                          lllllllllllllllll Plaintiff - Appellee

                                           v.

                                  XTO Energy, Inc.

                       lllllllllllllllllllll Defendant - Appellant
                                        ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                          Submitted: September 10, 2014
                             Filed: October 3, 2014
                                  ____________

Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       Ruby Hiser won a jury verdict against XTO Energy, Inc. XTO moved for a
new trial, alleging that extraneous, prejudicial information was brought to the jury’s
attention. The district court denied the motion and declined to subpoena the jury
foreperson. XTO appeals. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
                                        I.

       Hiser sued XTO, an oil-and-natural-gas producer, for damages caused by
vibrations from drilling operations. The jury heard no evidence about hydraulic
fracturing—a drilling method called “fracking.” During deliberations, the jury asked
the district court, “Were they drilling only or were they also fracking”. The court
instructed the jury: “You have all of the evidence in this case. You will have to make
your decision based on what you recall of the evidence, and the instructions
provided.” The jury returned a verdict for Hiser.

       XTO moved for a new trial, claiming the “jury verdict was tainted by the
consideration of extra-record evidence.” With the court’s approval, XTO submitted
two affidavits from juror Carrie Tranum. Hiser countered with affidavits from juror
Novella Watson and foreperson Michael Horn. Tranum and Watson later testified at
a hearing.

      The three jurors agreed: during deliberations, Horn asked whether XTO
fracked the well in question; one or more jurors expressed unfamiliarity with
fracking; Horn explained his understanding of it; and, the jury did not discuss it after
the court’s instruction.

       The jurors disputed the scope of the fracking discussion. According to
Tranum, “the jury discussed that ‘fracking’ causes earthquakes and vibrations,” and
that discussion “concerned the negative impact that ‘fracking’ might have had on
Plaintiff’s property.” Horn said he “did not make any negative comments about
fracking,” “did not imply or state to the jurors that fracking was actually used at
XTO’s well,” and “simply repeated common knowledge about this [fracking]
process.” Watson said that “there was a short discussion about fracking in general.”




                                             -2-
       The jurors disagreed whether, after the court’s instruction, the jury discussed
earthquakes. (At trial, the jury heard only three passing allusions to earthquakes.)
Horn denied hearing any post-instruction discussion of earthquakes. Watson could
not recall any post-instruction discussion of earthquakes, said no one told her such
a discussion occurred, and denied participating in any discussion about earthquakes.
Watson said, “Somebody may have mentioned earthquakes, but I think that was
earlier on,” and “It was just a little short sentence or something.”

       In her second affidavit, Tranum said she was “reasonably certain” that a
discussion of earthquakes occurred post-instruction. Questioned by the court,
Tranum admitted she was “not positive” whether the discussion occurred before or
after the court’s instruction. Later, during the same questioning, she said, “Once we
got the [court’s instruction], I do remember the earthquake discussion coming up . .
. .” Tranum said the discussion lasted “maybe a couple of minutes”; “It was more
than just a quick mention and then, you know, move on by one person.” She could
not “recall specifically” how many jurors participated in the discussion but said “it
could have been five or six maybe.” Asked about the context, Tranum said:

      At the time, I think there had been earthquakes maybe in the state that
      had been possibly related to gas well drilling and that that was just
      mentioned, just because I guess because it was in the news and it was
      something that people were familiar with.

Asked again about details, Tranum said:

      As far as the specifics, you know, I mean, it was mostly just anything
      that anyone could hear on the news or read in the paper, not any real
      scientific discussion, but just kind of a general mention of it.




                                         -3-
       The court denied XTO’s motion for a new trial, concluding “that the jury’s
verdict was not influenced by extraneous, prejudicial information.”1 The district
court also denied XTO’s request to subpoena Horn, noting he had not responded to
the court’s requests for a voluntary interview.

      XTO appeals, claiming an abuse of discretion in denying the new trial motion,
and declining to subpoena Horn.

                                           II.

                                           A.

       “This Court reviews a district court’s grant or denial of a motion for new trial
for abuse of discretion.” Anderson v. Ford Motor Co., 186 F.3d 918, 920 (8th Cir.
1999). This court “must affirm if a reasonable person could have reached a similar
decision, given the evidence before him, not that a reasonable person would have
reached that decision.” Wise v. Kind & Knox Gelatin, Inc., 429 F.3d 1188, 1190 (8th
Cir. 2005).

       A juror may not testify (including by affidavit) “about any statement made or
incident that occurred during the jury’s deliberations; the effect of anything on that
juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict
or indictment.” Fed. R. Evid. 606(b)(1). But: “A juror may testify about whether
extraneous prejudicial information was improperly brought to the jury’s attention.”
Fed. R. Evid. 606(b)(2)(A).

      1
        The district court did not make findings of fact, but a “court is not required to
state findings or conclusions when ruling on a motion under Rule 12 or 56 or, unless
these rules provide otherwise, on any other motion.” Fed. R. Civ. P. 52(a)(3). Rule
59 (new trial motion) does not provide otherwise, although “the better practice is for
the trial court to articulate its findings.” See W.L. Gore & Assocs., Inc. v. Int’l Med.
Prosthetics Research Assocs., Inc., 745 F.2d 1463, 1466 n.5 (Fed. Cir. 1984).

                                          -4-
       “Extrinsic or extraneous influences include publicity received and discussed
in the jury room, matters considered by the jury but not admitted into evidence, and
communications or other contact between jurors and outside persons.” United States
v. Swinton, 75 F.3d 374, 381 (8th Cir. 1996). “In a civil case, the exposure of jurors
to materials not admitted into evidence mandates a new trial only upon a showing that
materials are prejudicial to the unsuccessful party.” Moore v. Am. Family Mut. Ins.
Co., 576 F.3d 781, 787 (8th Cir. 2009). “The district court must consider relevant
testimony and other evidence as to what occurred to determine ‘whether there is a
reasonable possibility that the communication altered the jury’s verdict,’ and we
review the district court’s decision for an abuse of discretion.” Id., citing Anderson,
186 F.3d at 920-21.

        The jurors largely agreed about the jury’s pre-instruction fracking discussion
but disagreed about its scope. Even if the district court accepted Tranum’s
characterization of this discussion, the court’s instruction eliminated any risk of
prejudice. “It is certainly reasonable to believe, absent evidence to the contrary, that
the jury adhered to the judge’s instructions.” Yannacopoulos v. Gen. Dynamics
Corp., 75 F.3d 1298, 1305 (8th Cir. 1996). In this case, there is no evidence to the
contrary, as the three jurors agree that the jury did not discuss fracking after the
court’s instruction. See Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) (“[T]he
‘crucial assumption’ underlying the system of trial by jury ‘is that juries will follow
the instructions given them by the trial judge. Were this not so, it would be pointless
for a trial court to instruct a jury . . . .’”), quoting Parker v. Randolph, 442 U.S. 62,
73 (1979); United States v. Brown, 108 F.3d 863, 867 (8th Cir. 1997) (“[W]hen
Brown agreed to have the court give limiting instructions to the jury, he justifiably
presumed that the jury would follow the court’s instructions to disregard the extrinsic
evidence.”).

      As for the earthquake discussion, there is not a reasonable possibility that it
prejudiced XTO or altered the verdict. To the extent this discussion occurred pre-

                                          -5-
instruction, then, like the fracking discussion, there was no prejudice. Even if the
district court believed the earthquake discussion occurred post-instruction, there is
not a reasonable possibility of prejudice because, at most, some jurors briefly and
generally discussed news reports about gas drilling and earthquakes in Arkansas (not
specifically Hiser’s property, or XTO).2

       This case is not like two cases where this court approved a new trial due to
juror misconduct. (XTO does not cite a case where this court reversed a denial of a
new trial motion due to juror misconduct.) In Anderson, a juror conducted an
out-of-court test of the vehicle restraint system at issue. 186 F.3d at 920. The district
court found that the juror “himself was biased in his consideration of the issues, which
therefore resulted in prejudice to” the defendant. Id. at 921. This court said the
district court’s findings “support a conclusion that there was ‘a reasonable possibility
that the communication altered [the jury’s] verdict.’” Id., quoting Artis v. Hitachi
Zosen Clearing, Inc., 967 F.2d 1132, 1142 (7th Cir. 1992). In the other case, where
a doctor was convicted of receiving kickbacks from a home-health-care company, the
district court learned that, during deliberations, two jurors said the company had been
found guilty of the same crime and paid a $367 million fine. Brown, 108 F.3d at 864,
865. The district court issued a limiting instruction, but jurors later revealed that,
despite the instruction, the jury continued to consider the company’s guilt and fine.
Id. at 865-66.

        The jury’s conduct here is not like the prejudicial misconduct warranting new
trials in Anderson and Brown. Unlike Anderson, there is no evidence any juror “was


      2
        While there was no evidence about fracking at trial, one witness described the
vibrations as feeling “like a small earthquake,” and the plaintiff alluded in passing to
earthquakes. Because the extent and nature of any vibrations was the central issue
at trial, we question whether a juror’s characterization of the vibrations as
“earthquakes” is even admissible testimony under Rule 606(b)(1). Since that issue
has not been raised by the parties, we need not address it.

                                          -6-
biased in his [or her] consideration of the issues, which therefore resulted in
prejudice” to XTO. 186 F.3d at 921. Unlike Brown, there is inconclusive evidence
that the jurors disregarded the court’s instruction. 108 F.3d at 866. Plus, the
information discussed by the Brown jurors directly prejudiced the doctor; here,
nothing ties the jurors’ discussion of earthquakes to Hiser or XTO. Rather, this case
is like Moore, where this court affirmed the denial of a new trial when a juror
independently researched the defendant insurance company’s financial health and
informed other jurors that it “makes huge profits and can afford to pay.” 576 F.3d at
787, 788. This court found that the juror’s “misconduct . . . bordered on the
innocuous since people know that insurance companies can generally afford to pay
settlements.” Id. at 788. Here, too, the brief and general discussions by some jurors
about earthquakes borders on the innocuous.

      Even assuming the jury’s fracking and earthquake discussions included any
extraneous matters under Rule 606(b)(2)(A), XTO has not shown a reasonable
possibility that the discussions prejudiced it or altered the verdict. The district court
did not abuse its discretion in denying XTO’s motion for a new trial.3

                                           B.

       The district court’s refusal to subpoena Horn is reviewed for an abuse of
discretion. “The district court has broad discretion in handling allegations of juror
misconduct and its decision will be affirmed absent an abuse of discretion.” United
States v. Williams, 97 F.3d 240, 246 (8th Cir. 1996) (finding no abuse of discretion


      3
       The Supreme Court has granted certiorari in Warger v. Shauers, 134 S. Ct.
1491 (2014). It addresses a question not presented here: “Whether Federal Rule of
Evidence 606(b) permits a party moving for a new trial based on juror dishonesty
during voir dire to introduce juror testimony about statements made during
deliberations that tend to show the alleged dishonesty.” Petition for Writ of
Certiorari, (No. 13-517), 2013 WL 5765858.

                                          -7-
in the court’s handling of juror misconduct allegations and noting this court has
“previously found unsworn juror interviews like those conducted here to be an
adequate inquiry into allegations of juror misconduct”). See also United States v.
Vig, 167 F.3d 443, 450 (8th Cir. 1999) (“[W]e find no abuse of the district court’s
discretion in denying [defendant] a new trial or an evidentiary hearing” about
evidence of juror misconduct.).

      While XTO claims Horn’s testimony is “essential to determining whether jury
misconduct occurred,” XTO offers minimal legal authority, relying on Moore, 576
F.3d at 787, and In re Prempro Prod. Liab. Litig., 900 F. Supp. 2d 926, 932 (E.D.
Ark. 2012).

       Moore requires that district courts “consider relevant testimony.” 576 F.3d at
787. Moore does not require that district courts gather all relevant testimony. By
reviewing affidavits from three jurors, hearing testimony from two, and attempting
to schedule an interview with the third, the district court satisfied its obligation under
Moore.

       In the In re Prempro case, the district court denied a motion for a new trial after
jurors discussed a newspaper article about the case and similar cases. 900 F. Supp.
2d at 931. The court questioned each juror about any discussion of the article during
deliberations. Id. at 931, 933. The court quoted Moore but did not base its decision
to question each juror on Moore. See id. at 932.

      The district court did not abuse its discretion by declining to subpoena Horn.


                                      *******

      The judgment is affirmed.
                     ______________________________

                                           -8-
