in Re: Zimmer, Inc.

Conditionally Grant and Opinion Filed November 21, 2014
SIn The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00940-CV
IN RE ZIMMER, INC., Relator
Original Proceeding from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-03111-2011
OPINION
Before Justices FitzGerald, Francis, and Brown
Opinion by Justice Francis
Zimmer, Inc. filed this petition for writ of mandamus after the trial court granted a
motion for new trial in this product liability suit. Because we conclude the trial court abused its
discretion in ordering a new trial, we conditionally grant mandamus relief.
This case arises from a product liability suit brought by real party in interest Don
Gustafson against Zimmer, Inc. for injuries allegedly sustained as a result of the failure of the
Zimmer Periarticular Distal Medial Tibial Locking Plate, a metal plate used by orthopedic
surgeons to provide temporary internal stabilization for severe fractures of the lower leg.
Gustafson alleges the product was defectively designed. The Zimmer plate was implanted in
Gustafson’s leg following a serious motorcycle accident. The first Zimmer plate failed roughly a
year after it was implanted, and another Zimmer plate was then implanted. This second plate
also failed after a similar period of time. Gustafson contends he is permanently disabled as a
result of the failure of the two implants.
The case was tried to a jury. The jury selection process included a written questionnaire
asking, “If you or a family member ever had a serious bodily injury, describe what happened.”
Zimmer’s attorney also questioned the venire about any experience they or their family members
may have had with serious injuries. He asked, “Has anyone here had a bad injury which caused
fractures or some real significant injury, or have you had a very close family member that has
had a very, very significant injury?” Several jurors responded affirmatively to this question, and
Zimmer’s attorney included follow-up questions regarding their experiences. Although there
were a number of challenges for cause, neither party challenged any juror for cause based on his
or her disclosure of any experiences with injuries. Venireman Young was among the jurors
seated. Young answered “None” to the inquiry on the juror questionnaire regarding serious
bodily injury and did not respond to Zimmer’s question during voir dire regarding injuries,
although he did respond to other questions during voir dire about the burden of proof and his
ability to be fair to a veteran of the armed services.
The jury returned a 10-2 verdict in Zimmer’s favor and the trial court rendered a take-
nothing judgment based on the jury’s verdict as requested by Zimmer. Young voted with the
majority. Gustafson then moved for new trial, asserting: (1) the jury had engaged in misconduct
and (2) the jury’s finding the Zimmer plate was not defective was against the great weight and
preponderance of the evidence. In support of his motion, Gustafson provided affidavits from the
two dissenting jurors alleging several incidents of purported juror misconduct.1 Zimmer
responded to the motion for new trial but did not attach any counter-affidavits to its response.
1
Much of the content of the affidavits concerns statements made during jury deliberations. Such statements cannot form the basis of a
motion for new trial. Both the Texas Rules of Civil Procedure and Texas Rules of Evidence prohibit a juror from testifying as to any matter or
statement occurring during the course of the jury’s deliberations for the purpose of impeaching the verdict. TEX. R. CIV. P. 327(b); TEX. R. EVID.
606(b); Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 370 (Tex. 2000) (“Rule 327(b) operates to prohibit jurors from testifying about
matters and statements occurring during deliberations.”). The trial court properly refused to consider the statements made during the course of
deliberations.
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The trial court conducted a hearing on the motion for new trial. At the hearing,
Gustafson’s counsel argued his affidavits alleging juror misconduct warranted a new trial, but he
did not offer any live testimony or other evidence and did not attempt to introduce the juror
affidavits as evidence. Zimmer also did not offer evidence and did not argue Gustafson’s motion
should fail because Gustafson did not offer evidence at the hearing.
The trial court granted Gustafson’s motion for new trial. The trial court found “that the
juror misconduct detailed in the two affidavits probably caused injury to Plaintiff and rendition
of an improper verdict.” The trial court further found “the jury’s verdict was contrary to the
great weight of the evidence.” The trial court elaborated:
[T]here was uncontroverted evidence that the design of the Zimmer tibia plate at
issue in this litigation had failed the design validation criteria in Defendant
Zimmer’s 510k submission to the FDA due to the weakest point of the Zimmer
tibia plate being located in the shaft of the plate. In addition, there was
uncontroverted evidence that the results of a bending stiffness test conducted by
Defendant Zimmer demonstrated inadequate stiffness of the Zimmer tibia plate.
A trial court’s order granting a new trial may be reviewed by an appellate court in a
mandamus proceeding. See In re United Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012)
(orig. proceeding). A writ of mandamus will issue to correct a clear abuse of discretion
committed by a trial court in granting a new trial. In re Whataburger Rests. LP, 429 S.W.3d 597,
598 (Tex. 2014) (per curiam) (citing In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746,
756–57 (Tex. 2013) (orig. proceeding)). The supreme court has stated:
A trial court does not abuse its discretion so long as its stated reason for granting a
new trial (1) is a reason for which a new trial is legally appropriate (such as a
well-defined legal standard or a defect that probably resulted in an improper
verdict); and (2) is specific enough to indicate that the trial court did not simply
parrot a pro forma template, but rather derived the articulated reasons from the
particular facts and circumstances of the case at hand.
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Toyota, 407 S.W.3d at 756–57 (emphasis in original) (quoting United Scaffolding, 377 S.W.3d at
689–90). A new trial order “cannot stand,” however, when the “trial court’s articulated reasons
are not supported by the underlying record.” Toyota, 407 S.W.3d at 757.
The order in this case cites juror misconduct and factual sufficiency of the evidence as its
bases for granting new trial. Both juror misconduct and factual sufficiency of the evidence to
support the jury’s verdict, if established, are legally proper reasons for granting a new trial.
Thus, the order complies with the first requirement. See Toyota, 407 S.W.3d at 759.
The trial court’s order also satisfies the second requirement, specificity. It recites the
specific facts and circumstances of the case that led the trial judge to conclude the jury had
engaged in misconduct. The order is specific enough both to permit Zimmer to attack it and to
enable our review. See In re United Servs. Auto. Ass’n, No. 01-13-00508-CV, 2014 WL
4109756, at *12 (Tex. App.—Houston [1st Dist.] Aug. 21, 2014, orig. proceeding). The order
explains, with reference to the evidence adduced at trial, the basis on which the trial judge found
the jury’s verdict to be against the great weight and preponderance of the evidence. See United
Scaffolding, 377 S.W.3d at 688. It is clear the trial court did not simply “parrot a pro forma
template” in drafting its order. See Toyota, 407 S.W.3d at 759.
However, “[s]imply articulating understandable, reasonably specific, and legally
appropriate reasons is not enough; the reasons must be valid and correct.” Id. Thus, we must
undertake a “cumbersome review” of the trial court’s forty-one volume record to determine
whether it supports the trial court’s conclusion the jury engaged in misconduct and the jury’s
verdict was against the great weight and preponderance of the evidence. See id.
To warrant a new trial based on jury misconduct, the movant must establish (1) the
misconduct occurred, (2) it was material, and (3) it probably caused injury. TEX. R. CIV. P.
327(a); In re Health Care Unlimited, Inc., 429 S.W.3d 600, 602 (Tex. 2014) (citing Golden
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Eagle Archery, 24 S.W.3d at 372). The complaining party has the burden to prove all three
elements before a new trial can be granted. Healthcare Unlimited, 429 S.W.3d at 602.
Gustafson failed to meet this burden.
In attempting to meet his burden, Gustafson obtained the affidavits of the two dissenting
jurors. The first affidavit, from the foreman of the jury, stated some jurors discussed the award
of money to Gustafson “during the trial and prior to the close of evidence.” The foreman’s
affidavit noted “one juror stated that the juror’s mother-in-law lost both of her legs and that she
was working as a reason why Mr. Gustafson should not be awarded the money damages he was
seeking.” The juror who made this statement about his mother-in-law was subsequently
identified in the foreman’s amended affidavit as juror Young.
The affidavits also attempted to establish the jury disregarded the trial court’s admonitory
instructions. Specifically, the foreman’s affidavit further stated that during the trial and before
the close of evidence “one of the jurors discuss[ed] how awarding Mr. Gustafson the money for
his damages would change Mr. Gustafson’s social class and would be more than he could have
earned at work.” The juror who allegedly voiced this concern was never identified. The second
dissenting juror’s affidavit stated the concern about elevating Gustafson in social class was
raised by “multiple jurors,” although the second dissenting juror did not note whether these sorts
of comments occurred during deliberations or outside of deliberations. In addition, the second
dissenting juror’s affidavit stated:
[M]ultiple jurors were deliberating the facts and sharing their opinions prior to
the end of trial while the case was still ongoing and before the commencement of
jury deliberations. Among other things, these jurors discussed whether the
Zimmer plate was defective and whether Plaintiff or Defendant Zimmer was
correct. At least some of these discussions occurred when not all jurors were
present.
Neither of the dissenting jurors testified live at the hearing on the motion for new trial.
The trial court heard only argument and did not receive evidence. Thus, these two affidavits
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formed the sole basis upon which the trial court concluded jury misconduct occurred. Gustafson
argues the trial court appropriately determined the motion for new trial based on these two
affidavits and argument alone.
Relying on case law governing motions for new trial following entry of a default
judgment, Gustafson first argues “the affidavits attached to a motion for new trial can be
considered evidence without being offered at a hearing.” See, e.g., Dir. State Emps. Workers’
Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994) (affidavits attached to the motion for
new trial “do not have to be offered into evidence in order to be considered by the trial court for
the meritorious defense element or any other element of the Craddock test”). Neither the case
law nor any procedural rule mandates an evidentiary hearing when a party seeks a new trial
following a default judgment.2 The decisions permitting determination of a motion for new trial
following default judgment based on affidavits reflect a preference for an adjudication of cases
on their merits rather than dismissal based on procedural default. Sutherland v. Spencer, 376
S.W.3d 752, 756 (Tex. 2012). They are not pertinent to our construction of rule 327.
Rule 327, unlike the case law developed concerning motions for new trial following a
default judgment, plainly states the trial court “shall hear evidence [of misconduct of the jury or
the officer in charge of them] from the jury or others in open court . . . .” TEX. R. CIV. P. 327(a).
Gustafson argues this evidentiary requirement applies only when one of the parties seeks to offer
live testimony. He contends it exists solely so jurors or other persons who are not willing to sign
affidavits may be subpoenaed and compelled to testify. We disagree this is the sole purpose of
the evidentiary hearing requirement. Such an interpretation of rule 327 is at odds with both the
2
In fact, “not every hearing called for under every rule of civil procedure necessarily requires an oral hearing. Unless required by the
express language or the context of the particular rule, the term ‘hearing’ does not necessarily contemplate either a personal appearance before the
court or an oral presentation to the court.” Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). The supreme court
discourages oral presentation of testimony and evidence where motions can fairly be submitted in writing. Michiana Easy Livin’ Country, Inc. v.
Holten, 168 S.W.3d 777, 782 (Tex. 2005). However, a hearing on a motion for new trial based on juror misconduct is not such a case.
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recent development of new trial case law and the long history of rule 327 and its predecessors in
cases denying motions for new trial.3
The recent evolution of Texas jurisprudence regarding motions for new trial has been
driven largely by a desire to protect the right to a jury trial free from the possibility that the jury’s
verdict will be set aside simply because the trial judge sees the evidence differently. See
generally In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 210–15 (Tex. 2009) (orig.
proceeding). Rule 327 is an integral part of the scheme to preserve jury verdicts from being set
aside arbitrarily. As the supreme court has noted, rule 327 seeks to protect the integrity of jury
verdicts “by giving due consideration to the right to a jury trial in an effort to best protect the
trial process.” In re Health Care Unlimited, Inc., 429 S.W.3d at 603–04 (admonishing trial court
for presuming harm based on the appearance of impropriety arising from communications among
juror and person associated with party).
There is basis for a “significant concern” that “a disgruntled juror whose view did not
prevail in the jury room” might seek “vindication by overturning the verdict.” Golden Eagle
Archery, 24 S.W.3d at 36. Indeed, Zimmer contends that is the situation in this case. Thus, to be
entitled to a hearing on a motion for new trial alleging juror misconduct, the party raising such a
claim must first “afford assurance to the court that the proponent of a motion [will] probably be
able to support by proof the allegations of his motion” by providing the trial court with affidavits
that tend to establish misconduct. Estep v. Bratton, 24 S.W.2d 465, 468 (Tex. Civ. App.—
Eastland 1929, no writ); accord Elston v. Sherman Coca-Cola & Dr. Pepper Co., 596 S.W.2d
215, 217 (Tex. Civ. App.—Texarkana 1980, no writ) (“The party asserting jury misconduct must
show good faith by demonstrating that such allegation is based upon knowledge rather than
3
Texas law until recently has prohibited review of most orders granting new trial. See In re Columbia Med. Ctr. of Las Colinas, 290
S.W.3d 204, 208 (Tex. 2009) (orig. proceeding). (“[O]ur decisions preclude, for the most part, appellate review of orders granting new trials.”).
Thus, Texas courts have not had the opportunity to review cases in which trial courts have granted new trial based on juror misconduct.
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hope.”). The affidavit requirement is a “remedy against ‘fishing expeditions.’” Moran Utils. Co.
v. McHaney, 325 S.W.2d 712, 722 (Tex. Civ. App.—Beaumont 1959, writ ref’d n.r.e.) (quoting
Freedman Packing Co. v. Harris, 160 S.W.2d 130, 134 (Tex. Civ. App.—Galveston 1942, writ
ref’d w.o.m.)).
A proceeding under rule 327 is not complete, however, upon the filing of the affidavits.
Once a party has come forward with affidavits or an “equivalent explanation of the attendant
circumstances” tending to support the claim of jury misconduct, the trial court “must make an
initial determination as to whether material misconduct occurred from the motion and its
attachments.” Elston, 596 S.W.2d at 217. If the party raising the issue of jury misconduct meets
its initial burden to produce affidavits that satisfy the trial court that the party alleging
misconduct will probably be able to support its allegations with “competent proof,” rule 327
“imposes a mandatory duty upon the trial court to receive evidence of jury misconduct if it is
properly presented.” Id. The trial court has no discretion to refuse to conduct an evidentiary
hearing when a party comes forward with affidavits supporting a cognizable claim of material
jury misconduct. Hatton v. Highlands Ins. Co., 631 S.W.2d 787, 788 (Tex. App.—Tyler 1982,
no writ); Elston, 596 S.W.2d at 217.
Gustafson argues, however, that because here neither party sought an evidentiary hearing,
the trial court was entitled to decide the question of jury misconduct on the basis of affidavits
and argument alone. We disagree. The primary question to be determined when considering a
rule 327 motion is whether misconduct occurred, which is a question of fact. Tex. Emp. Ins.
Ass’n v. Moore, 549 S.W.2d 37, 39 (Tex. Civ. App.—El Paso 1977, no writ). “[I]t is the
province and duty of the trial judge [considering a motion for new trial based on juror
misconduct] to pass upon the credibility of witnesses and the weight to be given the testimony
and to find the facts . . . .” Estep, 24 S.W.2d at 469. A trial judge ruling on a motion for new
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trial based on affidavits of juror misconduct alone cannot perform the critical function of
assessing the credibility of the affiants, who are making serious charges about the manner in
which their fellow jurors have discharged their duties.
For that reason, both this Court and numerous other courts of appeals have concluded in
upholding trial court orders denying new trial when a party moving for new trial has rested on
affidavits alone, that affidavits attached to a motion for new trial alleging juror misconduct are
“neither evidence nor admissible as such on the hearing for a new trial on the ground of jury
misconduct.” Downing v. Uniroyal, Inc., 451 S.W.2d 279, 284 (Tex. Civ. App.—Dallas 1970,
no writ); accord Allison v. Gulf Liquid Fertilizer Co., 381 S.W.2d 684, 686 (Tex. Civ. App.—
Fort Worth 1964, no writ). “Affidavits alleging jury misconduct do not constitute evidence of
the facts therein stated.” Innes v. Greiner, 449 S.W.2d 83, 85 (Tex. Civ. App.—Amarillo 1969,
no writ). As a result, a trial court may properly deny a motion for new trial when a party alleging
jury misconduct relies only on affidavits and fails to request a hearing on his motion and offer
live testimony proving misconduct. See, e.g., McNutt v. Qualls, 433 S.W.2d 521, 524 (Tex. Civ.
App.—Dallas 1968, no writ) (trial court did not err in refusing to grant new trial where
complaining party offered only affidavits); see also Innes, 449 S.W.2d at 85 (plaintiff waived
any objection he may have had to jury misconduct by failing to request a hearing, relying instead
on affidavits); Hernandez v. Braddock, 641 S.W.2d 359, 363 (Tex. App.—Corpus Christi 1982,
no writ) (record established trial court’s compliance with rule 327 where trial court offered
defendants opportunity to present evidence and offer was refused). Similarly, a trial court
properly denies a new trial when it holds a hearing and the party asserting misconduct discusses
the affidavits but never attempts to admit the affidavits into evidence or present any other
evidence of juror misconduct through live testimony. Hagood v. Fishborn, Inc., No. 05-07-
00690-CV, 2009 WL 264627, at *2 (Tex. App.—Dallas Feb. 5, 2009, pet. denied) (mem. op.).
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In such a situation there is no evidence to support the complaining party’s allegations of juror
misconduct. Id. We see no reason why the evidentiary requirements of rule 327 should be
interpreted any less stringently when the trial court grants new trial and sets aside the jury
verdict.
Here, Gustafson argued below that his motion for new trial was “factually
uncontroverted” because his motion “was on file . . . [m]ore than a month before today’s hearing,
two affidavits, no contrary evidence,” and Gustafson repeatedly referred to his affidavits as
“evidence.” But Gustafson made no attempt to actually offer any sort of competent proof of his
claims of juror misconduct nor did he attempt to introduce the affidavits themselves into
evidence. Cf. Golden Eagle Archery, 24 S.W.3d at 364-65 (affidavits offered and admitted as
evidence in addition to live testimony on hearing on juror misconduct). Similarly, the trial court
did not announce it would rely on the affidavits as evidence and Zimmer did not agree to the use
of the affidavits as evidence of Gustafson’s claims. Cf. Garrett v. United States Fid. & Guar.
Co., 77 S.W.2d 1066, 1069 (Tex. Civ. App.—Dallas 1934) (“[T]he court announced that all
affidavits on the issue of misconduct of the jury, attached to the pleadings, would be considered
as evidence, and this action of the court was acquiesced in by the attorneys for the parties, so the
attached affidavits thereby became evidence at the hearing on the motion.”), rev’d on other
grounds, 105 S.W.2d 868 (Tex. 1937). As a result, there was no competent evidence of juror
misconduct in the record on which the trial court could base its order granting new trial.
Gustafson asserts that although he failed to offer testimony or other admissible evidence
at the hearing in support of his allegations of jury misconduct, this failure was cured by
Zimmer’s lack of objection to the consideration of the issue based on affidavits and on its failure
to seek a ruling on its evidentiary objections to his affidavits. He argues “[Zimmer] never
objected that the affidavits attached to Gustafson’s motion for new trial do not constitute
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evidence upon which the trial court could rely.” In so arguing, Gustafson ignores his obligation
to satisfy his affirmative burden of proving jury misconduct. The party asserting jury
misconduct must prove in an evidentiary hearing in open court that misconduct occurred and that
it was material. See TEX. R. CIV. P. 327. Gustafson offered no evidence at the hearing on the
motion for new trial. The juror affidavits served only to demonstrate Gustafson had sufficient
evidence of jury misconduct to warrant an evidentiary hearing. See Elston, 596 S.W.2d at 217.
Until Gustafson made a prima facie evidentiary showing at the hearing on juror misconduct,
however, Zimmer had no burden to carry and no obligation to object that Gustafson had not
carried his burden of proof. Cf. TEX. R. APP. P. 33.1(d) (in nonjury case, complaint of legal
insufficiency may be made for first time on appeal). We conclude the trial court abused its
discretion in granting new trial based only on affidavit evidence of juror misconduct.
Moreover, even if this Court were to conclude affidavit evidence is sufficient to carry the
complaining party’s burden on a motion for new trial to prove juror misconduct, the affidavits in
this case are not sufficient. Gustafson asserted two forms of jury misconduct: Young’s failure to
reveal his mother-in-law lost the use of her legs and the jury’s general disregard of the trial
court’s instruction not to discuss the case outside of deliberations, including discussions
concerning Young’s mother-in-law’s ability to work. Neither constituted misconduct under the
facts of this case.
An erroneous answer by a juror during voir dire warrants a new trial only if there is
concealment by the juror. Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 851 (Tex. App.—
Houston [1st Dist.] 1987, writ ref’d n.r.e.) (citing Dunn v. Sears Roebuck & Co., 371 S.W.2d
731, 735 (Tex. Civ. App.—Houston 1963, writ ref’d n.r.e.)). Before concealment can be found,
the questions asked must be direct and specific and call for disclosure. Id. The questions
Gustafson complains Young answered incorrectly related only to injury. The record before the
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trial court did not establish whether Young’s mother-in-law lost the use of her legs by injury, by
disease, or in some other fashion. Because the record did not establish how Young’s mother-in-
law lost the use of her legs, the record did not support a conclusion that Young failed to properly
respond to the questions asked in voir dire or in the jury questionnaire. Accordingly, the trial
court could not properly conclude Young engaged in jury misconduct by concealing a relevant
fact during voir dire.
In addition, a trial court may grant new trial based on juror misconduct only 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.” TEX. R.
CIV. P. 327(a). The trial court concluded Young’s non-disclosure was material and probably
caused injury because the verdict in the case was 10–2. The trial court reasoned that if Young
had reported that his mother-in-law had lost both her legs, Gustafson’s counsel would have
struck Young and the jury seated without Young would have ultimately been a hung jury. The
record before the trial court does not support this conclusion.
Gustafson’s counsel never testified he would have struck Young if he had learned of his
mother-in-law’s condition. Instead, Gustafson’s counsel argued “[i]f this juror had disclosed
during voir dire that there was an issue of a family member who had lost both their legs, but was
still working, that would have been explored further either here at the bench, or we may have
exercised a strike for cause [or] a peremptory strike.” The equivocal statement that Gustafson’s
legal team “may have exercised a strike for cause or a peremptory strike” cannot lead to the
conclusion that a different jury would have been seated had Young revealed his mother-in-law’s
condition.
Moreover, even if Gustafson’s counsel had testified positively and without qualification
he would have struck Young, that testimony alone would have been insufficient to establish
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injury in the face of his contrary conduct with respect to other jurors who had disclosed they or a
family member had suffered a serious bodily injury. At the conclusion of voir dire, Gustafson’s
counsel sought to exercise challenges for cause for a variety of reasons but did not challenge any
potential juror based on the fact the juror or a family member ever had a serious bodily injury.
The supreme court’s recent decision in In re Whataburger Restaurants is instructive. In
that case, a juror failed to disclose she had previously been involved as a defendant in a lawsuit.
Whataburger, 429 S.W.3d at 599. The moving party’s attorney testified at the jury misconduct
hearing that if the juror had made such a disclosure, he would have questioned her about those
suits and would have struck her as a juror. The supreme court found this evidence insufficient on
its own to establish the composition of the jury panel would have been different absent
concealment by the potential juror. Id. at 599–600. The court concluded the attorney’s
testimony was speculative and insufficient when the actual conduct of the attorney at trial
showed he did not strike other jurors who disclosed participation in lawsuits. Id. Just as in
Whataburger, no evidence shows Young would have been struck from the panel had he
disclosed his mother-in-law’s condition.
The trial court also concluded a new trial was warranted because the jurors violated the
court’s admonitions:
[T]o refrain from discussing the case prior to deliberations; to refrain from
discussing the case at any time without all jurors present; to refrain from
discussing, considering, or sharing any special knowledge or experiences with the
other jurors; and to not discuss any evidence that was not admitted in the
courtroom during the course of the trial.
The trial court found Young’s discussion of his mother-in-law’s ability to work even though she
had lost the use of her legs and “repeated discussions regarding the merits of the case prior to the
close of evidence and without all jurors present” constituted violations of its admonitions.
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Neither of these bases sufficed to allow the trial court to disregard the jury’s verdict and order a
new trial.
“The fact that jurors violated a trial court’s admonitory instructions is not alone sufficient
to warrant a new trial.” Holland v. Lovelace, 352 S.W.3d 777, 786 (Tex. App.—Dallas 2011,
pet. denied). A party seeking new trial based on the jury’s failure to follow admonitory
instructions must establish probable injury. Health Care Unlimited, 429 S.W.3d at 602–03. To
show probable injury from failure to follow the trial court’s admonitory instructions, “there must
be some indication in the record that the alleged misconduct most likely caused a juror to vote
differently than he would otherwise have done on one or more issues vital to the judgment.” Id.
at 603 (quoting Redinger v. Living, Inc., 689 S.W.2d 415, 419 (Tex. 1985)). Neither this Court
nor the trial court may speculate about the impact of conduct outside of deliberations on the
outcome of the case. See Medistar Corp. v. Schmidt, 267 S.W.3d 150, 161 (Tex. App.—San
Antonio 2008, pet. denied) (“Medistar did not produce any evidence at the motion for new trial
hearing regarding the impact of the bailiff’s communications on the jurors. Thus, we are left to
speculate as to whether the bailiff’s comments actually caused a juror to vote differently than he
or she would otherwise have done absent the comments.”). “We cannot manufacture injury by
supposition or conjecture.” Doucet v. Owens-Corning Fiberglas Corp., 966 S.W.2d 161, 164
(Tex. App.—Beaumont 1998, writ denied). Unless the conduct shown was “so highly
prejudicial and inimical to fairness” that it is facially harmful, the court may not presume that the
jury misconduct alleged actually caused harm. See Davis v. Damge, 328 S.W.2d 203, 207 (Tex.
Civ. App.—Houston 1959, writ ref’d n.r.e.) (discussing repeal of prior statute under which harm
was presumed upon misconduct being proven); see also Bell v. State, 724 S.W.2d 780, 798 (Tex.
Crim. App. 1986) (“Appellant effectively asks us to presume misconduct, as well as harm, which
we decline to do.”).
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Gustafson attempted to meet his burden of establishing injury by arguing his inability to
work was undisputed and the only “evidence” the jury heard that Gustafson was able to work
came from juror Young’s statements about his mother-in-law’s ability to work. Gustafson thus
reasoned a verdict that failed to award him damages must have been the result of Young’s
improper comments. The affidavits do not establish any particular juror was influenced to vote
as he or she did on the liability questions as a result of the conversations described in the
affidavits. Thus, they do not establish the verdict would have likely been different had the
conduct alleged not occurred. In sum, the affidavits, even if permitted to be used as evidence on
the motion for new trial, did not establish a basis for an order granting new trial premised on
juror misconduct. Accordingly, the trial court clearly abused its discretion in granting new trial
based on juror misconduct.
The trial court also concluded the jury’s finding the Zimmer plate was not defective was
against the great weight and preponderance of the evidence. A trial court has considerable
discretion in granting a new trial, but that discretion has limits. Columbia Med. Ctr., 290 S.W.3d
at 210. Its “discretion should not, and does not, permit a trial judge to substitute his or her own
views for that of the jury without a valid basis.” Id. at 212. Although factual sufficiency review
on mandamus following the grant of new trial is new to Texas and there are few cases in which
such a review has been conducted, we see no reason to believe the standards for factual
sufficiency review in new trial mandamus proceedings should differ from the standards of
review on appeal. We may grant mandamus only where we find the trial court clearly abused its
discretion, but the incorrect application of the law is an abuse of discretion. Walker v. Packer,
827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Thus, when a trial court incorrectly
determines the evidence is factually insufficient and orders a new trial on that basis, it abuses its
discretion and mandamus is appropriate.
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In evaluating the factual sufficiency of the evidence, a court must examine the entire
record, considering the evidence in favor of and contrary to the challenged finding, and set aside
the jury’s verdict only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Pool v.
Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). When a party attacks the factual sufficiency
of an adverse finding on an issue on which it had the burden of proof, as Gustafson did in his
motion for new trial, the party must demonstrate the adverse finding is against the great weight
and preponderance of the evidence. Francis, 46 S.W.3d at 242. The amount of evidence
necessary to support the jury’s verdict is far less than that necessary to warrant disregarding the
jury’s verdict. See Bright v. Addison, 171 S.W.3d 588, 595–96 (Tex. App.—Dallas 2005, pet.
denied).
Evidence is factually sufficient to support the jury’s verdict if the evidence is such that
reasonable minds could differ on the meaning of the evidence or the inferences and conclusions
to be drawn therefrom. Cendant Mobility Servs. Corp. v. Falconer, 135 S.W.3d 349, 352 (Tex.
App.—Texarkana 2004, no pet.). We must be mindful that the jurors are the sole judges of the
credibility of the witnesses, the weight to give their testimony, and the resolution of conflicts in
the evidence. See United Servs. Auto. Ass’n, 2014 WL 4109756, at *7 (citing City of Keller v.
Wilson, 168 S.W.3d 802, 819–21 (Tex. 2005)). Appellate courts are not fact-finders and, like
trial judges considering sufficiency as a part of a motion for new trial, may not assess the
credibility of the witnesses or substitute their judgment for that of the trier of fact, even if a
different conclusion could be reached on the evidence. See Herbert v. Herbert, 754 S.W.2d 141,
144 (Tex. 1988). We must review all the evidence in a light favorable to the verdict and must
assume the jurors resolved all conflicts in the evidence in accordance with that verdict. City of
Keller, 168 S.W.3d at 821.
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The trial court concluded the great weight of the evidence demonstrated the design of the
Zimmer tibia plate was defective. To establish a design defect, a party must show the product
involved in the case was defectively designed so as to be unreasonably dangerous taking into
account the utility and risk involved in the use of the product, this defective design was a
producing cause of the plaintiff’s injuries, and a safer alternative design existed that would have
prevented or significantly reduced the risk of injury and would have been economically and
technologically feasible at the time the product left the defendant’s control. See Hernandez v.
Tokai Corp., 2 S.W.3d 251, 256 (Tex. 1999). Generally, proving the existence of a design defect
requires competent expert testimony and objective proof that the defect the plaintiff has
identified caused the injury. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 137
(Tex. 2004). Gustafson argues the trial court’s determination that the great weight of the
evidence demonstrated the Zimmer plate was defective is supported by the admissions of
Zimmer’s own witnesses, which he characterizes as offering uncontroverted proof the Zimmer
plate did not meet Zimmer’s own criteria for validating the design.
In the process of developing the plate, Zimmer established design validation criteria.
Zimmer’s design validation criteria required the shaft of the plate to be stronger than the
metaphyseal/transition area of the plate. These criteria became the basis for the Food and Drug
Administration’s approval of the marketing and sale of the plate. Gustafson argues the evidence
at trial conclusively established the weakest point of the Zimmer plate was actually located in the
shaft. The trial court determined this evidence to be uncontroverted.
Whether the weakest point of the Zimmer plate was located in the shaft area of the device
was a subject of significant dispute in the case and was perhaps the single most extensively
discussed topic during the trial. Gustafson supported his argument that the weakest point of the
device was located in the shaft by using edited deposition testimony of Zimmer personnel
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concerning an early drawing of the device not submitted to the FDA and which the Zimmer
personnel stated was not used in the analysis or testing of the product. Gustafson argued the
drawing showed, and the Zimmer employee deposition excerpts confirmed, the area that all
conceded was the weakest point of the device was located in the shaft of the plate.
In contrast, these same Zimmer personnel when testifying live at the trial all said the
actual analysis and testing of the product properly included the weakest point in the
metaphyseal/transition area rather than in the shaft. They supported their explanations with
detailed discussions of the process used to determine how the product would be analyzed and
tested and what would be considered acceptable testing results. The Zimmer witnesses discussed
in exhaustive detail the testing protocol for the plate. They expounded on the data the analysis
and testing process produced. All testified the statement that the shaft of the plate was stronger
than the metaphyseal/transition area was true based on the extensive analysis and testing of the
product. The jury was entitled to believe their explanation of the apparent discrepancy between
the early drawing and the actual results of the testing procedure and to determine Zimmer’s
statements to the FDA were truthful.
Gustafson also faulted the product as defectively designed based on its strength and
bending stiffness. Gustafson’s expert, Dr. Marthinus van Schoor, opined the Zimmer plate was
defectively designed based on these characteristics. Dr. van Schoor supported his conclusion, in
part, using a computer model he designed that compared the Zimmer plate to a tibial plate
manufactured by a competitor. Dr. van Schoor’s testimony was rebutted by the expert testimony
of Dr. Brad James, an expert metallurgist engineer, who criticized Dr. van Schoor’s analysis as
“very, very inaccurate,” Dr. van Schoor’s calculations as “absolutely not” correct, and Dr. van
Schoor’s conclusions as “completely, totally wrong” because the test procedure Dr. van Schoor
claimed to have used was not the methodology Dr. van Schoor actually used. Dr. James testified
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that when he reran the tests Dr. van Schoor claimed to have performed using the test procedure
as described by Dr. van Schoor, the Zimmer plate and the competitor’s plate were found to be
essentially equally strong. Dr. James further stated it was “ridiculous to take one plate compared
to another, and say, because this is not as strong or not as stiff [as the other] that it’s defective.”
Dr. van Schoor’s methodology was also criticized by Kevin Greig, the engineering lead
on the project, who told the jury Dr. van Schoor’s analysis was based on an improper
methodology using average strength. Greig said the proper methodology required the
identification and testing of the weakest point of the device because the average strength did not
identify the point of likely failure. Greig also pointed out that the bending stiffness test that was
a centerpiece of Dr. van Schoor’s opinion was antiquated, not required by the FDA, and did not
yield particularly useful information because it failed to take into account the sorts of loads the
plate would experience in the human body. He explained the sort of testing and analysis actually
conducted by Zimmer took into account a greater number of factors and yielded results that more
accurately predicted the performance of the product in the human body. Numerous witnesses
also pointed out that strength was not the only relevant characteristic in determining whether a
device such as Zimmer’s had utility because a device could be designed in such a fashion that it
was strong and rigid, but unusable because it was too stiff or too thick, which would impede
bone healing and cause tissue irritation. The evidence showed one of the reasons the Zimmer
plate was commercially attractive was precisely because it was less stiff than the competitor’s
product that van Schoor contended was superior in terms of strength.
Based on all of this testimony, the jury was entitled to conclude the Zimmer plate was
adequately strong and possessed sufficient bending stiffness for its intended use. It could
reasonably conclude the design of the product was not unreasonably dangerous taking into
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account the utility of the product. Thus, there was sufficient evidence for the jury to conclude
the product was not defectively designed.
The jury could also have reasonably concluded the failure of the Zimmer plate was not
the producing cause of Gustafson’s injuries.4 Numerous witnesses, including two of Gustafson’s
treating physicians, also offered evidence that was at odds with Gustafson’s theory that the
defective design of the Zimmer plate caused his injury. Gustafson’s orthopedist, Dr. Henry
Hendrix, categorized Gustafson’s initial injury as a limb-threatening injury that could result in
amputation. He testified that healing of this kind of injury would be difficult under any
circumstances due to the nature of the fracture and an extensive healing time would be required,
noting the limb-threatening nature of the injury “says there’s going to be potentially multiple
procedures and less optimal functional outcome.”
Dr. Hendrix’s treatment notes made immediately after the accident stated, “With this
soft-tissue injury, the scarring, the stiffness, and the muscle change that occurs, his gait pattern
will be permanently altered as will his functional capability. . . . Certainly this is a significant
injury for an individual his age and activity level.” The notes identified potential risks of the
injury discussed with Gustafson at the time of his injury as “infection, injury to nerves and
vessels, scarring, stiffness, weakness, need for further surgery, compartment syndrome, need for
hardware removal, and failure to heal.” Dr. Hendrix further testified any sort of stabilization
device was a “time-buying agent” that is “meant to go into place until the fracture heals and then
the stress is to be taken off of the implant. There’s not really any metal in the body that has been
made to have permanent stress put across it without the fracture healing and then taking the
stress off that implant that won’t fail.” The neurologist Gustafson saw after the second plate
4
The jury answered “no” to the question, “Was there a design defect in the Zimmer Plate at the time it left the possession of Zimmer that
was a producing cause of the occurrences in question?” The jury could have answered this question “no” either by determining the Zimmer plate
was not defectively designed or it was not the producing cause of Gustafson’s injuries.
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broke attributed the nerve pain Gustafson currently experiences to the initial trauma of the
motorcycle accident rather than failure of the Zimmer plate.
Dr. James testified that, like any bone plate, the Zimmer plate was intended to be a
temporary measure to provide support while the bone healed and was “not intended to withstand
the loads from the human body forever.” He told the jury the American Society for Testing and
Materials standards required the plate to withstand cyclic loading for “two to three months,”
while each of the Zimmer plates remained in place for roughly a year. He stated, “[t]here are no
bone plates that are incapable of breaking.” It was Dr. James’ opinion that both Zimmer plates
broke due to fatigue as a result of extended weight bearing because the bone had not healed
sufficiently to remove the load from the plates rather than due to the Zimmer plate being
defectively designed.
Dr. Charles Clark, a physician who specializes in orthopedic surgery and has an
engineering background, testified that based on Gustafson’s x-rays and medical records there
was no indication the Zimmer plate was not the right strength or stiffness for the purposes it was
used; rather, he concluded the Zimmer plates failed because Gustafson’s bone had not healed,
causing the plate to have to continue to carry all of the load that would normally be on the bone.
Clark said there was no reason to fault the plate because it broke under those circumstances. As
Clark said, “If bone doesn’t heal any hardware is going to break.” Clark stated that the Zimmer
plate had performed its job as intended by providing stability while Gustafson’s body attempted
to heal the severe fracture Gustafson endured and that Gustafson’s disability is related to his
original injury rather than to the failure of the Zimmer plate. Specifically, he explained
Gustafson’s present condition is a result of both the continuing effect of the original injury and
the atrophy of Gustafson’s muscles during the healing process.
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The jury was entitled to believe either party’s explanation of the evidence both with
regard to the design of the product and whether the product caused Gustafson’s injuries. Here,
the evidence was sufficient for the jury to find the Zimmer plate was not defectively designed,
but rather taking into account the severity of Gustafson’s injury, the product properly performed
the function for which it was intended. The jury could also reasonably conclude the producing
cause of Gustafson’s injuries was not the defective design of the Zimmer plate, but rather the
consistent application of an excessive load to the device as a result of the failure of Gustafson’s
injury to heal during the reasonable lifespan of the plate. The trial court incorrectly substituted
its credibility decisions for those of the jury and weighed the evidence differently than the jury
weighed the evidence. As a result, it improperly applied the law in granting new trial and abused
its discretion in doing so. Zimmer is entitled to mandamus relief.
Gustafson argues if this Court concludes his failure to offer evidence of juror misconduct
in support of his motion for new trial was fatal to his motion for new trial, the Court should
remand the case to the trial court to allow it to conduct an evidentiary hearing on the question of
jury misconduct. The supreme court has remanded mandamus proceedings to the trial court
when the trial court’s reasons for granting new trial are unclear. Columbia Med. Ctr., 290
S.W.3d at 215 (“We conditionally grant relief. We direct the trial court to specify the reasons it
refused to enter judgment on the jury verdict and ordered a new trial.”). When, however, a trial
court’s reasons for granting a new trial are clear but invalid, ordering the trial court to enter
judgment on the verdict, rather than remanding to the trial court, is proper. United Servs. Auto.
Ass’n, 2014 WL 4109756, at *16. Parties who fail to meet their burden of proof are not entitled
to repeated attempts to meet their burden. See Brannen v. City of Houston, 153 S.W.2d 676, 678
(Tex. Civ. App.—Galveston 1941, writ ref’d) (affirming denial of bill of review where party
asserted it did not know of alleged juror misconduct until judgment was final). “The remedy for
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setting aside a jury’s verdict for misconduct is to allege the facts constituting such misconduct in
the motion for a new trial, and at the time the motion for a new trial is presented the hearing is
had on the alleged misconduct of the jury.” Id.; see also Hernandez, 641 S.W.2d at 362
(“Although the defendants, at the second hearing [on the motion for new trial alleging juror
misconduct], indicated an intention to offer evidence at a future date, it was their burden to
present evidence at that time.”). Where, as here, a party loses because it fails to carry its burden
of proof, it should not be entitled to a second attempt. See Design Trends Imports v. Print
Source, Inc., No. 05-93-01643-CV, 1994 WL 728870, at *6 n.8 (Tex. App.—Dallas Dec. 22,
1994, no writ) (mem. op., not designated for publication) (discussing briefing waivers).
While it is understandable a trial court would seek to enforce compliance with its
instructions to the jurors, granting a new trial for reasons not supported by the record or the law
is an abuse of discretion. We conditionally grant Zimmer’s petition for writ of mandamus. A
writ will issue only in the event the trial court fails to vacate its April 15, 2014 “Order Granting
Plaintiff’s Motion for New Trial.”
140940F.P05 /Molly Francis/
MOLLY FRANCIS
JUSTICE
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