Karl v. Burlington Northern R. Co., 88-1092

• Citation: 880 F.2d 68
• Decision Date: 06 September 1989
• Docket Number: No. 88-1092,88-1092
• Parties: 28 Fed. R. Evid. Serv. 865 Betty KARL, Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 68

880 F.2d 68

28 Fed. R. Evid. Serv. 865

Betty KARL, Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, Appellant.

No. 88-1092.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 17, 1988.

Decided July 11, 1989.

Rehearing and Rehearing En Banc Denied Sept. 6, 1989.

Lawrence D. Kudej, Susan A. Peters and Paul D. Lundberg, Sioux City, Iowa, for appellant.

Thomas J. Culhane, Omaha, Neb., for appellee.

Before LAY, Chief Judge, JOHN R. GIBSON, Circuit Judge, and NICHOL, ^* Senior District Judge.

JOHN R. GIBSON, Circuit Judge.

Burlington Northern Railroad Company appeals from a judgment entered upon a jury verdict for $273,750 in favor of Betty Karl for injuries sustained in a railroad intersection collision. This case presents two troublesome issues concerning the way in which the district court handled the jury. First, the court orally instructed the jury after it returned inconsistent answers to several special interrogatories, and proceeded to resubmit the case to the jury. Second, the district court amended the damage amount rendered in the jury verdict because juror testimony and affidavits, submitted after the jury had been discharged, indicated that the amount set out in the verdict form did not reflect the jury's true intentions. Burlington Northern alleges the district court erred with respect to this conduct and raises additional questions concerning the sufficiency of the evidence, and the admissibility of certain expert testimony and videotaped evidence. We conclude that the district court erred in amending the amount of damages after the verdict was entered, but affirm its judgment in all other respects. We therefore remand this case to the district court with instructions to reinstate the original verdict.

I.

Betty Karl was severely injured when her automobile collided with a Burlington Northern locomotive. She filed this action against the railroad, alleging that its negligence was the proximate cause of the accident. ¹

After the case was tried, it was submitted to the jury for deliberation on a number of special interrogatories. The lawyers that had tried the case informed the court that they were not planning to be in the courtroom while the jury deliberated. The district court informed the parties that it did not require them to be present in a civil case, and stated, "If you want to be called and we can get you in 15 or 20 minutes time, we will wait for you." The parties were asked to leave several telephone numbers where they could be reached. The court specifically referred to the possibility of receiving a note from the jury, indicating that for this reason it would prefer to have the parties available, so that they could "have some input" in answering the jury's questions.

That evening, in the absence of counsel, the jury returned to the courtroom and informed the court that it had reached a verdict. The district court distributed copies of the special verdict forms to each of the six jurors, and addressed them at some length concerning their answers to special interrogatories. In Part 1 of the interrogatories, which inquired as to whether defendant was negligent under any of plaintiff's six theories of liability, the jury answered "yes" as to the sixth theory (failure to upgrade the warning devices), but "no" as to the other five theories. ² Part 2 asked the jury to determine with regard to each of the six theories of negligence, "if the defendant was negligent, was that negligence a proximate cause of the collision * * * ?" As to the sixth theory of failure to upgrade the warning devices, the jury answered "no." In Part 5, where the jury was asked to determine the percentage of fault attributable to the plaintiff and the defendant which was a proximate cause to plaintiff's injuries, the jury found Karl 75 percent at fault and Burlington Northern 25 percent at fault. ³ Finally, in Part 6A the jury found the amount of damages sustained by the plaintiff, without taking into account any reduction for plaintiff's negligence, to be $273,750. ⁴ The judge told the jury that based upon their finding that Burlington Northern's negligence did not proximately cause Karl's injuries, they "can't give the plaintiff any money" and accomplish what they thought they had accomplished by awarding monetary damages to Karl. ⁵

Because the district court found the verdicts to be inconsistent, it allowed the jury to reconsider its answers to the interrogatories. Later that evening, the jury returned with one answer changed, now finding that Burlington Northern's negligence was the proximate cause of Karl's injuries. Before dismissing the jury, the court polled each juror, and confirmed that the verdict read was the verdict of the jury and that the change in their answer regarding proximate cause was one made of free choice. The district court postponed entering judgment pending resolution of whether it should use the first or the second verdict form in entering judgment.

The next morning, at a meeting with the district court, Karl's counsel asked the court to recall the jury foreman to be interviewed concerning the amount of damages awarded to Karl. In its answer to the damage interrogatory, which asked the jury to decide the total amount of damages sustained by Karl without considering any reduction of Karl's claim due to her own negligence, the jury found the amount to be $273,750. Karl's attorney suspected that this figure, which was approximately 25 percent of the amount requested by Karl at trial, was the result of the jury applying the 25 percent comparative figure to the total amount requested rather than figuring the gross amount of Karl's actual damages. The district court decided to interview the foreman, and discussed on the record the procedures it would follow and the line of questioning it would pursue in interviewing the foreman. Burlington Northern's counsel objected to the propriety of conducting such an interview, as it involved an improper inquiry into a "juror's mental processes" under Fed.R.Evid. 606(b). Neither party objected to the court conducting the inquiry in camera without the presence of counsel.

That afternoon, the district judge interviewed the jury foreman. In response to questions, the foreman explained that the amount of $273,750 was 25 percent of the amount asked for by Karl and represented the actual amount that the jury intended to award Karl. He testified that the jury agreed that Karl's total damages were $1,095,000, and that the amount set out in the interrogatory answer was "the amount we thought she should get." After this testimony, Karl's counsel filed affidavits from all of the other jurors confirming that their impression was the same, and filed a motion to correct the verdict and to enter judgment in Karl's favor in the amount of $273,750.

Burlington Northern filed motions objecting to the jury's reconsideration of its special interrogatories, and to the court's amendment of the verdict and use of affidavits to inquire into the validity of the verdict. The district court determined that its oral instructions to the jury were required because the answers to special interrogatories were inconsistent. The court rejected arguments made by Burlington Northern that it had subtly encouraged the jury to resolve any inconsistency in favor of Karl, and entered judgment on the basis of the second interrogatory form which found Burlington Northern's negligence to be the proximate cause of Karl's injury.

Turning to the issue of amending the verdict, the court concluded that Rule 606(b) allowed it to consider testimony of jurors aimed at clarifying, as opposed to impeaching, the verdict. If the juror's testimony indicated that through inadvertence, oversight, or mistake, the verdict announced was not the verdict on which the jurors had agreed, the court recognized that it could consider such testimony to amend the verdict. In analyzing the circumstances, the court concluded that the jury had erred in transmitting the verdict, rather than in reaching the verdict itself. Accordingly, Karl's motion was not considered as an attempt to impeach the verdict, and the foreman's testimony and jurors' affidavits could be considered. It then determined that the jury's true answer to the interrogatory concerning plaintiff's actual damages was $1,095,000 and that Karl was entitled to 25 percent of this sum, or $273,750. This appeal followed.

II.

Burlington Northern challenges the district court's decision to address the jury concerning its inconsistent verdicts and then to allow the jury to reconsider its answers. It first argues that the court should have given the parties and their counsel notice before it questioned the jury or gave the jury additional instructions. Burlington Northern contends that its counsel would have objected to the procedure followed by the court.

We find no error in the district court's actions. When attorneys voluntarily absent themselves from the courtroom and the court necessarily communicates with the jury in their absence, the court has not committed reversible error. See Dickerson v. Pritchard, 706 F.2d 256, 259 (8th Cir.1983). In this case, before the attorneys left the courtroom, the district court warned them of the possibility of receiving a note from the jury during its deliberations, and advised them to leave telephone numbers. Both attorneys chose not to be in the courtroom when the jury returned the verdict. Burlington Northern's counsel concedes that it received notification that the jury was returning. Counsel cannot now complain. Furthermore, all of the judge's communications with the jury were in open court and on the record, and such communications were not erroneous as a matter of law. See id. at 259; cf. Chicago, Rock Island & Pac. R.R. Co. v. Speth, 404 F.2d 291, 294 (8th Cir.1968). We conclude that the district court did not act improperly in further instructing the jury and resubmitting the case in the...