Miller v. Breidenbach

• Decision Date: 24 August 1994
• Docket Number: No. 940023,940023
• Citation: 520 N.W.2d 869
• Parties: Roxann MILLER, Plaintiff and Appellee, v. Amanda BREIDENBACH, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 869

520 N.W.2d 869

Roxann MILLER, Plaintiff and Appellee, v. Amanda BREIDENBACH, Defendant and Appellant.

Civ. No. 940023.

Supreme Court of North Dakota.

Aug. 24, 1994.

Irvin B. Nodland, P.C. (argued), Bismarck, for plaintiff and appellee.

Zuger, Kirmis & Smith, Bismarck, for defendant and appellant, argued by Jerry W. Evenson, Bismarck.

MESCHKE, Justice.

Amanda Breidenbach appeals from denial of a new trial after a jury awarded Roxann Miller a $400,000 verdict for severe whiplash injuries from Breidenbach's car rear-ending Miller's car. We affirm.

Roxann Miller drove south on Washington Street in Bismarck. Miller stopped in the inside lane for oncoming traffic to clear before making a left turn. Behind her, sixteen-year-old Amanda Breidenbach was driving south in the left lane, as well. When Breidenbach dropped a glass of pop on the floor of her car and looked down, her car hit Miller's.

Miller's neck and back became very uncomfortable later that day, and she went to a hospital emergency room. After an examination that diagnosed neck strain, Miller was released the same day. Over the next two years, Miller was treated in turn by a chiropractor, an orthopedic specialist, and a physiatrist for neck and back pain. Miller engaged in extensive physical therapy under the supervision of a physician, who also administered a series of "trigger point" injections to relieve her pain.

Miller sued Breidenbach for her injuries. After a two-day trial, the jury agreed Breidenbach's negligence caused Miller's injuries, and awarded Miller $50,000 for past pain, discomfort, and mental anguish; $150,000 for future pain, discomfort, and anguish; and $200,000 for permanent disability, all with three percent interest. Miller got a judgment against Breidenbach for $426,878.75.

Breidenbach moved for a new trial on damages, arguing that "a juror ... improperly brought to the attention of other jurors extraneous prejudicial information" and that "the jury awarded excessive damages ... under the influence of passion or prejudice." Her motion was accompanied by the affidavit of a juror, who stated:

Prior to the trial, I was generally familiar with the coverage limits of my own automobile liability insurance policy.

During the course of jury deliberations, it was talked about and understood by members of the jury that any damage award to the plaintiff would be paid by the defendant's insurance company.

In light of the jury's understanding that insurance would cover the damage award, I volunteered to the jurors that the coverage limits of my liability policy provided for $100,000 per person and $300,000 per accident in coverage, or a total of $300,000. I suggested that because the plaintiff's attorney had asked for $400,000, it was likely the defendant's policy had a $400,000 per person coverage limit. I also explained my understanding that a person has to go to court to get the maximum amount of money under an insurance policy.

Also with Breidenbach's motion were copies of an exchange of correspondence between Miller's attorney and Breidenbach's a month before trial, each offering a settlement. Miller's attorney offered to "accept $40,000 and waive future PIP coverage with [Breidenbach's] company taking care of any subrogation rights on amounts paid out to date, or she will accept $30,000 with all subrogation rights on her PIP carrier taken care of by you and with the balance of those rights remaining open for her use in the future." Breidenbach's attorney replied: "My authority now goes to $25,000 cash with PIP coverage being left open." Breidenbach's motion also included reports by a research service on recent jury verdicts, labeled "Plaintiff Recovery Probabilities for Rear-End Collisions," and "Basic Injury Values for Claims Involving Cervical/Lumbar Strain, Cervical/Theracic [sic] Strain, Multiple Back Strains, and Aggravation of Preexisting Back Strains."

The trial court ruled that NDREv 606 barred the use of the juror's affidavit because jury discussion of automobile insurance was neither "extraneous prejudicial information," nor an "outside influence," but rather was an incompetent "statement occurring during the course of the jury's deliberations." The court rejected the evidence about settlement negotiations, too, reasoning:

Although this evidence is interesting for its showing of how badly [Breidenbach] and her insurance company misjudged the case, it is nevertheless excluded by [NDREv] 408 and I will not consider it as it has no relevancy.

The court ruled "that the verdict amount is neither without support in the evidence, so excessive as to appear clearly arbitrary and unjust, or such as to shock judicial conscience." The trial court refused a new trial.

Breidenbach appeals, renewing her requests for a new trial on damages. Breidenbach urges jury misconduct caused the jury to "return[ ] its verdict for $400,000 after being informed by one of its own of the likelihood of liability insurance coverage and policy limits of $400,000," and argues that the verdict was excessive, "influenced by prejudice, for $400,000 in non-economic damages for a whiplash injury." We disagree.

I. Invalid Verdict?

A rule of evidence directs that

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 the juror or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict ... or concerning the juror's mental processes in connection therewith....

NDREv 606(b). The rule, however, does allow

a juror [to] testify on the questions whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the verdict of the jury was arrived at by chance.

Id. The rule forbids use of a juror's affidavit, evidence, or testimony "concerning a matter about which the juror would be precluded from testifying." Id.

According to the Notes of the Advisory Committee on the 1972 Proposed Federal Rule of Evidence 606(b), the antecedent of NDREv 606(b), the "rule does not purport to specify the substantive grounds for setting aside verdicts for irregularity." Still, David W. Louisell & Christopher B. Mueller, Federal Evidence, Sec. 286, p. 118 (1979) clarify: "As a practical matter, however, the exclusionary principle [of rule 606(b) ] imposes what amounts to limits upon the ground of permissible impeachment of jury verdicts."

Breidenbach argues that the juror's affidavit was "not presented to show how the jury reached its verdict, but to demonstrate that extraneous prejudicial information was improperly brought to the jury's attention" about "limits of coverage and the method one must employ to obtain coverage limits (go to court)." We conclude, however, as we did in Andrews v. O'Hearn, 387 N.W.2d 716, 721 (N.D.1986), that this attempt to use a juror's affidavit to show how the jury reached its verdict is precisely within the rule's prohibition against impeachment of a jury verdict for a "matter ... occurring during the course of the jury's deliberations...."

The rule differentiates between the effect of a source external to the jury, on the one hand, and the effect of internal jury deliberations, on the other hand, "regardless of the potential of objectively ascertaining overt acts within the internal deliberations of the jury." Andrews, 387 N.W.2d at 721. As Louisell & Mueller, Federal Evidence, Sec. 285, p. 110, explain: "In many cases in which a juror brings to deliberations extrarecord information, the problem is to determine whether the information constitutes improper 'specific facts' rather than permissible 'general knowledge' presumably possessed by every juror."

An external influence or clearly extraneous information has prejudicially reached the jury in some of our cases. See State v. Brooks, 520 N.W.2d 796 (N.D.1994) (presiding juror told jury about newspaper account of prior drug conviction of drug defendant's business partner); Hoovestol v. Security State Bank, 479 N.W.2d 854 (N.D.1992) (deleted jury instruction mistakenly went to jury); State v. Abell, 383 N.W.2d 810 (N.D.1986) (dictionary used by jury); Keyes v. Amundson, 343 N.W.2d 78 (N.D.1983) (jurors investigated accident scene during recess); Demaray v. Ridl, 249 N.W.2d 219, 225-26 (N.D.1976) (law book in jury room). In each of these cases, it was something more than the general knowledge that a juror brought with him when seated on the jury; it was specific facts or information about the particular case, but not in the record, that reached the jury. That is not this case.

Our decisions have consistently rejected jurors' affidavits about the effect of internal deliberations. Erickson v. Schwan, 453 N.W.2d 765, 770 (N.D.1990) (to show jurors confused by instructions); Andrews v. O'Hearn, 387 N.W.2d at 718-23 (to show jury disregarded instructions on cause and relied on improper definition); Mauch v. Manufacturers Sales & Service, Inc., 345 N.W.2d 338, 343 (N.D.1984) (to show jury disregarded instructions); Kerzmann v. Rohweder, 321 N.W.2d 84 (N.D.1982) (to show jury confusion); Brauer v. James J. Igoe & Sons Construction, Inc., 186 N.W.2d 459, 474 (N.D.1971) (to show the jury misunderstood the evidence); Christensen v. Farmers State Bank of Richardton, 157 N.W.2d 352, 359 (N.D.1968) (to show compromise on damages); Grenz v. Werre, 129 N.W.2d 681 (N.D.1964) (to show jury did not believe defendant guilty of gross negligence but awarded damages anyway); State v. Forrester, 14 N.D. 335, 103 N.W. 625 (1905) (to show jurors misunderstood instructions). Unless the juror's evidence reflects an external source, our rule and precedents do not permit evidentiary use of a juror's generalizations made during jury deliberations to invalidate the verdict. As we explained thoroughly in Andrews, 387 N.W.2d at 718-23, strong policies protect most...