Richard Williams, Appellee/Cross-appellant, v. Dr. Steve Lawton, Appellant/Cross-appellee, 38 Kan. App. 2d 565

Greene, J.: In this interlocutory appeal in a medical malpractice case, the district court certified three questions for review, all of which arise from its order granting a new trial after a verdict finding defendant Dr. Steve Lawton 54% at fault for injuries to plaintiff Richard Williams and awarding $200,000 for past and present pain and suffering and $1,775,000 for future pain and suffering.

We review and answer the certified questions, but we also view the certified questions as being inextricably linked to the entirety of the order granting a new trial, and we reverse that order and remand with directions to reinstate the verdict of the jury. Factual and Procedural Background Williams was an adult father of four upon becoming a patient of Lawton on January 24, 2002, complaining of a urological lesion that would not heal. The medical history form did not specifically request information about diabetes, and no urinalysis was ordered by Lawton.

On February 1,2002, Lawton performed an outpatient surgery on Williams. Thereafter, a host of severe problems developed including pain, an unusual protrusion, urination issues, a lack of sensation, and other unusual symptoms. Williams remained in Lawton’s care until May 2002, after which he sought advice from another physician. On August 11, 2004, Williams filed an action against Lawton alleging negligence in failing to order a urinalysis prior to the surgery, which would have alerted Lawton to undiagnosed diabetes.

Additionally, Williams alleged that when he did not heal properly after the surgery, Lawton was negligent in failing to treat the postoperative problems. After the district court concluded Williams’ standard of care witness qualified as an expert under K.S.A. 60-3412, Philip Diggdon, M.D., testified he had completed thousands of such surgeries, including hundreds on adults, and that Williams should have been checked for diabetes before surgery. Diggdon explained that diabetes left uncontrolled in any surgical patient “is fraught with many, many complications,” including fungal infections.

Diggdon testified Lawton’s failure to check for diabetes before surgery was a departure from the standard of care. Ultimately, the jury found Lawton 54% at fault for Williams’ injuries and Williams 46% at fault. The jury awarded $200,000 for past and present pain and suffering and $1,775,000 for future pain and suffering. The jury was polled, and each juror confirmed the verdict was that of 10 or more jurors. Lawton then filed a motion for the cap on damages be applied to the verdict, a motion for judgment not withstanding the verdict, and a motion to reconsider the decision qualifying Diggdon as an expert.

Lawton also filed a motion for new trial based upon the expert witness issue, juror misconduct, and attorney misconduct. The motion was supported with the affidavit of a juror, which counsel procured after a postverdict systematic telephone poll of all jurors. The affidavit stated, among other complaints, that “the verdict was reached by averaging all of the jurors’ opinions.” Based on this affidavit, the district court acted sua sponte in recalling all the jurors for postverdict interviews.

Eight of the 12 jurors appeared for the questioning and separately testified in response to the court’s questions; counsel were not permitted to directly participate in die questioning. The scope and result of these juror interviews will be discussed below. The district court ultimately granted Lawton’s motion for a new trial based on juror misconduct having “substantially prejudiced” Lawton’s rights. A new trial was scheduled for November 7, 2006, but the court granted the parties’ request to seek an interlocutory appeal on three issues only: (

i) the court’s admission of Diggdon’s expert testimony; (ii) the court’s authority to recall the jury sua sponte; and (iii) the court’s decision to question the jurors itself, without permitting direct participation by counsel during the recall. This court granted the defendant’s interlocutory appeal on September 7, 2006. A subsequent order granted the plaintiffs cross-appeal. Timely docketing followed. What is the Proper Scope of this Interlocutory Appeal?

The three questions certified by the district court were appealed respectively by the party aggrieved by each; i.e., Lawton appealed the court’s decision to permit the plaintiff s expert to testify, and Williams appealed the court’s decisions in connection with the jury recall. Lawton argues, however, that Williams has attempted to expand the scope of the appeal by raising other issues related to the order for new trial and seeking a reinstatement of the jury verdict.

Accordingly, Lawton suggests that the order granting a new trial was not itself appealed or appealable and that this court should refrain from addressing any issues beyond the specific questions certified. We disagree. First, we note that addressing the specific certified questions related to juiy recall without considering whether a new trial was warranted would require us to issue a mere advisory opinion, which would be prohibited. See Cady v. Cady, 224 Kan. 339, 345, 581 P.2d 358 (1978) (courts do not render advisory opinions on abstract questions of law absent actual controversy).

Surely the district court had no such naive expectation in certifying the questions related to the jury recall; it seems far more logical that the district court believed there was legitimate room for difference of opinion on the entire procedure employed for the jury recall and questioning, and the court expected us to review the key questions of law and determine whether jury recall and its outcome adequately supported the order for a new trial.

In fact, the district judge clearly expressed his understanding of the scope of this appeal by stating, “And it’s my understanding if I make interlocutory findings, that what goes up is the whole motion for new trial and not just whatever issue I say goes up.” Second, our Supreme Court has recognized that the proper scope of an interlocutory appeal is not necessarily restricted to the specific certified questions. In Cypress Media, Inc. v.

City of Overland Park, 268 Kan. 407, Syl. ¶ 2, 997 P.2d 681 (2000), the court held: “Where an appealable issue in an interlocutory appeal is inextricably intertwined with other issues that do not themselves meet the criteria for an interlocutory appeal, the latter issues may also be reviewed to allow meaningful review and promote judicial economy.” In so holding, the court considered federal authority, specifically Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1365 (11th Cir. 1997). It appears the federal courts are consistent on this principle of pendant interlocutory jurisdiction.

The federal courts recognize the permissible scope of an interlocutory appeal is not limited to the precise questions that may have been certified by the district court, but rather the appeal should be limited to the order or orders implicated by the certified questions. See, e.g., Paper, Allied-Industrial v. Continental, 428 F.3d 1285 (10th Cir. 2005) (appellate court can and should address a different legal question if it controls the disposition of the order from which the certified questions were taken); J. S. ex rel. N.S. v. Attica Cent.

Schools, 386 F.3d 107 (2d Cir. 2004), cert. denied 544 U.S. 968 (2005) (appeal is not necessarily limited to certified issue, and the court has discretion to consider any aspect of the order from which appeal was taken); McFarlin v. Conseco Services, LLC, 381 F.3d 1251 (11th Cir. 2004) (appellate jurisdiction is not tied to the particular questions formulated by the district court but rather applies to the order certified); Dailey v.

National Hockey League, 987 F.2d 172 (3d Cir.), cert. denied 510 U.S. 816 (1993) (review in interlocutory appeal is not constrained by question certified but may address any issue necessary to decide the appeal); Pinney Dock and Transport Co. v. Penn Cent. Corp, 838 F.2d 1445 (6th Cir. 1988), cert. denied 488 U.S. 880 (1988) (issues not properly certified for interlocutory appeal are subject to discretionary power of review if otherwise necessary to the disposition of the case); Ducre v.

Executive Officers of Halter Marine, Inc., 752 F.2d 976 (5th Cir. 1985) (district court articulation of certified issues of interlocutory appeal in effect certified entire order for review); In re Oil Spill by Amoco Cadiz, Etc., 659 F.2d 789 (7th Cir. 1981) (appellate court free to consider such questions as are basic to and underlie the orders supporting the appeal). Our discussion of the permissible scope of an interlocutory appeal should not be misunderstood. We adhere to the long-standing policy in Kansas to discourage interlocutory appeals and avoid piecemeal and fractionalized litigation. See McCain v.

McCain, 219 Kan. 780, 783, 549 P.2d 896 (1975). Notwithstanding certification of an interlocutory appeal by a district court, granting permission for such an appeal is solely within our sound discretion. K.S.A. 60-2102(c). Generally, an order granting a new trial would not be subject to interlocutory review. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 485, 15 P.3d 338 (2000). Our review of such an order in this case should be viewed as one of the narrow exceptions to the rule and solely due to our conclusion as to pendant interlocutory jurisdiction. See Noel v.

Pizza Management, Inc., 258 Kan. 3, 15-18, 899 P.2d 1013 (1995). We conclude that all three of the certified questions were derived from and were the lynchpins for the district court’s order granting a new trial to Lawton. Just as contemplated by the district court, we have no difficulty in reviewing that order in its entirety as within the proper scope of this interlocutory appeal. Did the District Court Err in Finding Plaintiffs Expert Witness Was Qualified to Testify Under K.S.A. 60-3412? As to the first certified question and subject of Lawton’s appeal, Lawton contends Williams’ expert, Dr.

Diggdon, did not meet the criteria set forth in K.S.A. 60-3412 and, thus, the district court erred in admitting his testimony and in rejecting this as a basis for a new trial. Williams argues the district court did not misinterpret the statute and applied it correctly. The amicus brief of the Kansas Association of Defense Counsel supports Lawton’s position. The

interpretation of a statute is a question of law over which an appellate court has unlimited review. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).

K.S.A. 60-3412 provides: “In any medical malpractice liability action, as defined in K.S.A. 60-3401 and amendments thereto, in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.” Williams’ surgery was performed on February 1, 2002; Williams first saw Lawton on January 24, 2002.

The district court concluded the incident, under the statute, occurred February 1, 2002.

Diggdon testified as to the following: - Diggdon was 74 years old when he testified. - When he practiced full-time, he saw up to 100 patients per week. - He was a board certified urologist since 1968, having been a physician since 1958, and had performed thousands of surgeries like that performed on Williams, including “probably in die hundreds, high hundreds” on adults. - Between January 24, 2000 and October 31, 2001, he saw patients in his office or a clinic. - In February 2000, he worked Mondays, Tuesdays, and half-days on Wednesdays, Thursdays, and Fridays. - In October of 2001, he saw six to eight patients per week. - His income for the 2 years between January 2000 and January 2002 was approximately $130,000 gross annually, with approximately 10% being for consultations on legal matters/cases. - He retired from his clinical practice entirely on October 31, 2001, approximately 4 months prior to Williams’ circumcision. - He testified as an expert in other cases prior to this case.

He forensically reviewed approximately 28 cases over a 2-year period prior to this trial. The district court concluded Diggdon qualified as an expert under K.S.A. 60-3412 and provided this explanation in its memorandum opinion: “From Januaiy 1, 1997 to October 31, 2001, Dr. Diggdon was engaged in clinical practice, seeing patients in his office. During this time period, Diggdon’[s] office was open all day on Mondays, and four hours per day on Tuesdays, Wednesdays, Thursdays, and Fridays. Diggdon testified, in trial or at deposition, that by February 2000, he was seeing approximately 6 to 12 patients per day.

Importantly, Diggdon testified that the drop in patients was due to the fact patients stopped coming. He said that the drop in patients was not due to any desire to see fewer patients. “Dr. Diggdon testified at trial that if one totaled all the hours he spent in clinical practice seeing patients in the office in the two years before February 1, 2002, even counting the months of no clinical patients form October 31, 2002 to February 1, 2002, he spent more than 50 percent of his time in actual clinical practice.

In addition, Diggdon testified that more than fifty percent of his total income during that same two-year period came from actual clinical practice.” Lawton’s argument is that Diggdon was not qualified because he had no clinical practice and practiced 100 percent as an expert witness for the 3 months preceding this incident and Diggdon was seeing patients only part-time for the remainder of the 2 years preceding October 31, 2002. Lawton argues that the statute requires that a physician witness be a full-time professional throughout the 2-year period and devote 50% of his or her time to clinical practice.

The statute clearly instructs the district court to look at the entire 2 years preceding the occurrence and determine if at least 50% of the witness’ professional time was spent on clinical practice. The record supports the district court’s finding that Diggdon did spend at least 50% of his professional time during the 2 years preceding the incident on his clinical practice, notwithstanding the fact of his retirement approximately 4 months immediately prior to the incident and his full-time consulting thereafter. Lawton relies heavily on legislative history.

We have examined Lawton’s argument carefully, and we are sensitive to the legislative history cited that would suggest that “hired guns” or “professional witnesses” who do not maintain a clinical practice may not have been intended to meet the eligibility standards of the statute. See Endorf v. Bohlender, 26 Kan. App. 2d 855, 864, 995 P.2d 896, rev. denied 269 Kan. 932 (2000). Before consulting legislative history, however, we examine the statutory language to see if it is capable of more than one meaning. See Gehring v. State Dept. of Transportation, 20 Kan.

App. 2d 246, 248, 886 P.2d 370 (1994), rev. denied 256 Kan. 994 (1995). Generally, courts employ a presumption that the legislature expressed its intent through the plain language employed within the statute. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 618, 132 P.3d 870 (2006). Where the legislature has unambiguously determined the size of the mesh in the net, the fact that unintended varieties of fish may pass through that mesh has little bearing on anything. See Colorado Interstate Gas Co. v. Board of Morton County Comm'rs, 247 Kan. 654, 662, 802 P.2d 584 (1990).

The fact is that there is no requirement within the express language of K.S.A. 60-3412 that the proposed expert witness devote any specific amount or percentage of his or her time to the professional practice of the healing arts at issue.

The clear thrust of the statutory language is that at least 50% of “such person’s professional time within the two-year period” must be “devoted to actual clinical practice.” If the legislature had desired to require as a second criterion that the proposed witness “have a full-time professional practice” or “be at all times within the period a full-time professional” or “devote at least [a certain] % of time to a professional practice,” any such language could easily have been employed to achieve the result argued by Lawton.

No such language appears in the statute, and we decline to judicially graft language onto the statute that is simply not there. We do not add something to statutory language that is clearly not present in the statute. See State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2,895 P.2d 1267 (1995). We conclude that the district court did not err in its

interpretation and application of K.S.A. 60-3412. Diggdon properly testified on behalf of plaintiffs, and his testimony properly played no role in determining whether Lawton was entitled to a new trial. Did the District Court Err in the Decision to Recall the Jury and the Procedure Utilized in Questioning the Jury Upon Recall?

On cross-appeal, Williams challenges the district court’s sua sponte decision to recall the jury, arguing that the recall procedure utilized was improper absent motion of a party, untimely, failed to include participation of counsel, invaded the mental processes of the jury, and failed to show sufficient misconduct to support the court’s order granting a new trial. Our standard of review is multifaceted. To the extent we are required to interpret a statute, appellate review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).

To the extent we examine the district court’s decision to order a new trial, we review for an abuse of discretion. Sterba v. Jay, 249 Kan. 270, 274, 816 P.2d 379 (1991). Judicial discretion must be exercised in accordance with established principles of law. Saucedo v. Winger, 252 Kan. 718, 731, 850 P.2d 908 (1993). General Rules for Jury Recall in Kansas We begin with an overview of relevant policy, statutes, rules, and procedures or practices governing the recall of a jury. The right to trial by jury is protected by the Kansas Constitution Bill of Rights, § 5.

This right is a substantial and valuable right, and it must be carefully guarded against infringement. Waggener v. Seever Systems, Inc., 233 Kan. 517, 520, 664 P.2d 813 (1983). As noted by the federal rules advisory committee, the original common-law rule prohibiting impeachment of a verdict was based on sound policy rationale: (

i) it discouraged tampering with the jury and harassment or annoyance of jurors; (ii) it protected the privacy and secrecy of jury deliberations; and (iii) it furthered a strong policy of finality of decisions by upholding verdicts. Concannon, Impeaching Civil Verdicts: Juror Statements as Prejudicial Misconduct, 52 J.K.B.A. 201 (Fall 1983). Public policy forbids the questioning of a juror on the mental processes used in reaching a verdict since “there is no possible way to test the truth or veracity of the answers.” Kincaid v. Wade, 196 Kan. 174, 178, 410 P.2d 333 (1966), as quoted in State v.

Franklin, 264 Kan. 496, 499, 958 P.2d 611 (1998). Our Supreme Court has summarized these policy considerations as follows: “It is a long established and generally accepted doctrine that testimony or affidavits of jurors impeaching their verdict will not be received where it is not evident that the jury had acted in contravention of the court’s instructions and of the evidence. This protection is to insure that the mental process of a juror in reaching a verdict or the factors which influenced the mental process cannot be inquired into for the purpose of impeaching a verdict.

The right to inquire into the jury’s basis for reaching a verdict would open the door to the most severely harmful methods for tampering with jurors and would allow a dissatisfied or corrupted juror to destroy a verdict to which that juror had given his assent under sanction of the juror’s oath. Jurors are to be afforded the right to have private, frank and free discussions of the questions under consideration.” City of Ottawa v. Heathman, 236 Kan. 417, 420, 690 P.2d 1375 (1984).

Kansas recognized a limited need to permit juror testimony in the enactment of two statutes, today embodied in K.S.A. 60-441 and K.S.A. 60-444(a). These statutes provide: “Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning die mental processes by which it was determined.” K.S.A. 60-441. “This

article shall not be construed to (

a) exempt a juror from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited by K.S.A. 60-441.” K.S.A. 60-444(a). Appellate courts since the early 1980’s have struggled with the inherent tension between guarding the integrity and finality of jury verdicts and protecting a party from juror misconduct.

The contours of the statutes have best been defined in the following cases: Where the jury is polled and each juror acknowledges that the verdict is his or her verdict, this consideration must be weighed against a later challenge to the verdict. Franklin, 264 Kan. at 505; see State v. Kaiser, 260 Kan. 235, 250-52, 918 P.2d 629 (1996). The “proper course” or better practice is to seek permission of the court to interview jurors after a verdict. See State v. McDonald, 222 Kan. 494, 496-97, 565 P.2d 267 (1977). Affidavits of counsel need not be considered in determining whether juror misconduct has occurred.

Butler v. HCA Health Svcs. of Kansas, Inc., 27 Kan. App. 2d 403, 408, 6 P.3d 871, rev. denied 268 Kan. 885 (1999). Evidence suggesting misconduct must be sufficiently detailed to demonstrate just what the jurors did to determine whether their actions could constitute misconduct. See Cornejo v. Probst, 6 Kan. App. 2d 529, 537, 630 P.2d 1202, rev. denied 230 Kan. 817 (1981). Supreme Court Rule 169 (2006 Kan. Ct. R.

Annot. 221) mandates the trial judge give the following instruction to the jury prior to discharge: “You have now completed your duties as jurors in this case and are discharged with the thanks of the court. The question may arise whether you may discuss this case with the lawyers who presented it to you. For your guidance the court instructs you that whether you talk to anyone is entirely your own decision. It is proper for the attorneys to discuss the case with you and you may talk with them, but you need not.

If you talk to them you may tell them as much or as little as you like about your deliberations of the facts that influenced your decision.

If an attorney persists in discussing the case over your objections, or becomes critical of your service either before or after any discussion has begun, please report it to me.” (Emphasis added.) This Rule and its mandatory instruction seems to contemplate an open exchange of information between willing jurors and counsel, but the statutory restrictions on formal use of such information demonstrates that any such exchange is primarily intended for the educational benefit of counsel and not for the purpose of “fishing” for grounds to impeach the verdict. See State v.

Blocker, 211 Kan. 185, 196, 505 P.2d 1099 (1973) (K.S.A. 60-444 “not intended to authorize broad hunting expeditions or fishing excursions.”). The posttrial calling of jurors for testimony is governed by Supreme Court Rule 181 (2006 Kan. Ct. R. Annot. 227), which provides: “Jurors shall not be called for hearings on post-trial motions without an order of the court after motion and hearing held to determine whether all or any of the jurors should be called.

If jurors are called, informal means other than subpoena should be utilized if possible.” Our Supreme Court has explained the importance of this rule in State v. Ruebke, 240 Kan. 493, 513, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987). “Jurors may be recalled for post-trial hearings only by order of the court after a hearing on a request to recall the jury. A recall of the jury is not a routine matter. Jury service is a public duty of citizens and recall of jurors after their service has ended to testify as to events occurring in the jury room during deliberations is a serious step.

That step is to be undertaken only for just cause. The procedure should never be utilized as a fishing trip upon a losing party’s hope that jury misconduct might surface if the jurors could be questioned under oath. The burden is upon the party seeking a order to recall the jurors to show the necessity for the order. [Citation omitted.]” Our extensive review of cases addressing allegations of jury misconduct demonstrates that the burden to support a jury recall, as well as the burden in demonstrating jury misconduct, are indeed heavy ones.

Our courts have consistently held that remarks by one or more jurors about outside matters do not vitiate the verdict absent an affirmative showing the remarks prejudicially affected the verdict. See the cases cited in Butler, 27 Kan. App. 2d at 411-12. A verdict may not be impeached by questions concerning a juror’s views or conclusions, the reasons for those views, the factors used in determining those conclusions, what influences those views, or the mental processes utilized in reaching those conclusions in the matter. Saucedo v. Winger, 252 Kan. 718, 728-29, 850 P.2d 908 (1992).

A juror may not impeach his or her verdict on any ground inherent in the verdict itself or divulge what considerations influenced him or her in arriving at the verdict; inquiry maybe made into the extrinsic matters of physical facts, conditions, or occurrences of juror misconduct, either within or without the jury room, which were material to the issues being determined. Franklin, 264 Kan. at 503-04. A new trial is to be granted only if required in the interest of justice. See K.S.A. 60-259; K.S.A. 22-3501(1); Franklin, 264 Kan. at 502, (quoting Kaiser, 260 Kan. at 250).

Juror misconduct is not grounds for a new trial unless it is shown to have substantially prejudiced a party’s rights. State v. Goseland, 256 Kan. 729, 735, 887 P.2d 1109 (1994); see K.S.A. 60-259(a). Examining appellate cases over the past 25 years, it is clear that a jury recall is generally to be discouraged. Jury recall issues have most often been discussed in the context of a quotient verdict.

A quotient verdict is one in which the jurors agree in advance to return as their verdict the amount obtained by averaging the figures each juror records as his of her verdict and subsequently return a verdict that is the direct product of such an agreement. Such a verdict is frequently called a “gambling verdict” because at the time the advance agreement is made no juror can possibly know the ultimate figure to which he or she has been committed. Foster v. City of Augusta, 174 Kan. 324, 331, 256 P.2d 121 (1953).

With respect to allegations of juror misconduct due to a quotient verdict, an affidavit may not be used to impeach the verdict unless it establishes that the jury entered into a conscious conspiracy to circumvent the deliberation process by engaging in conduct which produces a quotient verdict. See, e.g., Jones v. Sigg, 261 Kan. 614, 621-22, 930 P.2d 1077 (1997); Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 478-79, 856 P.2d 906 (1993). Mere allegations of “averaging” do not establish an impermissible quotient verdict. See Blevins v.

Weingart Truck & Tractor Service, 186 Kan. 258, 263-65, 349 P.2d 896 (1960). “The impropriety of a ‘quotient’ verdict, and the situation which the law abhors, consists not in the method or the result but in the advance agreement of the jurors to be bound by the quotient so determined, and then return the quotient as a verdict without further suitable deliberation. ... If, however, there is no antecedent agreement between the jurors, or commitment to be bound by the quotient so found, resort to the averaging process is entirely permissible.

The jurors are as much entitled to strike a quotient to see what their average thinking is, to serve as a working basis, as they are to let each juror give his suggested verdict orally and permit some member of the jury to strike a rough quotient by mental arithmetic. So long as there is opportunity for full discussion and deliberation concerning the question of damages, and so long as each juror gives his own independent agreement to the sum arrived at, after he knows what the sum is, there is no misconduct and no ground for a new trial.” 186 Kan. at 264.

Our appellate courts have refused to conclude that a quotient process should impeach the juiy verdict in numerous cases. See, e.g., Jones, 261 Kan. at 618-23 (affidavits insufficient); Cott, 253 Kan. at 478-79 (affidavits inadmissible); Siruta v. Hesston Corp., 232 Kan. 654, 669, 659 P.2d 799 (1983) (affidavits insufficient); Merando v. A.T. & S.F. Rly. Co., 232 Kan. 404, 407-10, 656 P.2d 154 (1982) (affidavits inadmissible); Hogue v. Kansas Power & Light Co., 212 Kan. 339, 344-46, 510 P.2d 1308 (1973) (juror testimony inadmissible); Blevins, 186 Kan. at 263-65 (juror testimony insufficient).

Our courts have upheld a new trial on a showing of jury misconduct related to a quotient verdict in City of Ottawa, 236 Kan. 417, and Verren v. City of Pittsburg, 227 Kan. 259, 607 P.2d 36 (1980). Analysis of the Jury Recall by the District Court Applying these principles to the facts before us, we are compelled to conclude that the district court abused its discretion in granting a new trial to the extent the decision was based on jury misconduct.

The abuse of discretion is inherent in the following actions of the court: Systematic juror by juror contact by counsel should not be undertaken without consent of court. As noted above, open exchange between willing jurors and counsel is permitted by the instruction required by Rule 169. Yet, case law also recognizes that the better procedure or practice is to seek permission of the court to interview jurors after a verdict. See McDonald, 222 Kan. at 496-97. Use of juror testimony to impeach a verdict is unquestionably to be discouraged. See K.S.A. 60-444; Ruebke, 240 Kan. at 513.

Construing these mandates in an effort to harmonize their apparent competing intentions and policy safeguards, we hold that the better practice dictates that the systematic contact of the entire jury, juror by juror, with the clear intention of exploring grounds to impeach the verdict be undertaken only with the knowledge and consent of the court. Moreover, where an affidavit results from such an effort without approval of the court, the affidavit should be viewed with a healthy amount of circumspection.

Where, as here, the verdict itself has no obvious impeachable qualities, the jury was polled and endorsed the verdict, there has been no reported juror misconduct, there has been no consent of the court to juror contact, the contact is initiated by counsel rather than a juror, and the affidavit results from a systematic attempt to contact all jurors by counsel with an obvious intent to challenge the verdict, the court must be cautious in considering and in giving credence to the affidavit. In the absence of significant corroboration of the averments in such an affidavit, recall of the jury must be discouraged.

Failure to seek corroboration prior to jury recall. Because jury recall should be avoided without strong suspicion of misconduct, we believe a single juror’s affidavit procured under these circumstances should be subject to further inquiry prior to any recall of further jurors. This could have been achieved here by having the single averring juror appear for such an inquiry before proceeding with any further jury recall. Because no such corroboration was achieved, recall was not warranted based solely on the affidavit. Sua sponte recall is contrarg to Supreme Court Rule. Rule 181 (2006 Kan. Ct. R.

Annot. 227) clearly prohibits jurors being called for hearings on posttrial motions without a court order “after motion and hearing” to determine whether any jurors should be recalled. We believe this rule is intended to protect the integrity and finality of the verdict from precipitative action of the court. As noted by the dissent, the district judge stated that he was addressing the matter sua sponte, but counsel apparently viewed this as an invitation for a motion and accommodated the court with an oral motion. If not expressly violated, Rule 181 was violated in spirit.

The questioning of jurors by the court was not an abuse of discretion, but it man have invaded the mental processes of the jury. Williams cites no authority and we are not aware of any in Kansas addressing the proper technique for questioning jurors in a recall, beyond the general rule that the mental processes of the jury not be invaded. Here, the district court decided to conduct the questioning itself without direct participation of counsel. We decline to hold that this approach to juror questioning was itself an abuse of discretion.

Our examination of the questioning, however, causes us to conclude that the questioning by the court may have invaded the mental processes of the jury.

In fact, the district judge commented he believed that “mental impressions are part of the quotient verdict issue” and “I can’t stay away from it completely.” Indeed, the court often asked questions such as: “[W]hy did you . . . ?”; “[D]id you believe that you still had the ability to disagree?”; “[Wjould that mean that when [the jurors] put their numbers down, some [jurors] didn’t understand . . .?”; “[D]idyou believe that the second time was going to still be a run-through, at which time you could still discuss and dissent or did you believe that that was going to be the number of the jury?”; and “[W]hy [did some jurors] disagree with the number?” Such questioning probes the thought processes of the jurors and is prohibited by our case law. furor testimony insufficient to show quotient verdict.

Although whether a verdict was a quotient verdict is a fact-based inquiry (Foster, 174 Kan. at 331) here, we are able to apply well-established legal principles to the undisputed evidence and the findings of the district court without reweighing the testimony of individual jurors. Focusing on the issue of whether there was an opportunity for discussion and deliberation on the question of damages, we conclude that the collective testimony of the jurors did not support jury misconduct.

Although the district court found that “some” of the jurors “believed that they were agreeing, in advance” to be bound to a second process of averaging comparative fault percentages, others “believed the average was a starting point for discussion.” Where jurors are not in complete agreement in advance to be bound by a quotient verdict and there is no collective understanding as to the effect of averaging, there simply is no “conscious conspiracy” to disregard and circumvent the instructions on the law given by the court.

Moreover, the jurors who were asked unanimously agreed that at least two if not more averages were sequentially discussed and considered; this approach defies the impermissible aspects of a quotient verdict. So long as averaging is merely a tool for discussion and not an exclusive and preordained formula, the result is not prohibited. Most importantly, the jurors who were asked unanimously stated that after the final averaging, the jurors voted on the result before returning the verdict. The collective testimony simply does not support a quotient verdict.

Consider, for example, this testimony of Juror B.B.: “THE COURT: So when you — when you decided to take the average — or decided on the procedure of the average, did you all decide ahead of time before you did the average that that was going to be the verdict of the jury? “Juror [B.B.]: I don’t think it was really stated that, but I mean I — I assume so. “THE COURT: After you took — or arrived at the second number but before you took the vote, did you believe that you still had the ability to disagree with the— “Juror [B.B]: sure. “THE COURT: — number? “Juror [B.B.]: Sure. “THE COURT: Okay.

And so you — what you’re telling me is the — the jury wasn’t going to be bound by that average number without discussion? “Juror [B.B.]: No, and actually we went around and asked, do you agree, does everybody agree, does anybody not agree. And I believe everyone agreed. “THE COURT: After the discussion? But they agreed on the procedure would be that you still had the ability to discuss the number after the second average came out? “Juror [B.B.]: Right.” Juror B.B.’s testimony was not unique; in fact, all but one juror who testified indicated that there was some discussion after the second vote was taken.

Although the dissent notes a lack of unanimity among jurors in City of Ottawa, other factors clearly required a new trial there, including a disregard for the court’s instructions and a lack of discussion after an improper approach to determining damages. 236 Kan. at 425-26. When the totality of these circumstances are considered, the district court abused its discretion in ordering and conducting the juiy recall and erred in determining there was juror misconduct as a result of the recall.

We are most offended by the systematic contact of jurors after the verdict in an attempt to impugn the integrity of the verdict. Whether this technically qualifies as a “fishing expedition,” this approach resulted in tampering with the jurors in an attempt to destroy the verdict. When the verdict is not itself inherently suspicious and there is no misconduct reported by jurors, counsel must not invade the sanctity of the jury process in the hope of discovering such misconduct.

If we were to endorse the conduct of defense counsel in this case, we believe it would indeed “open the door to the most severely harmful methods for tampering with jurors” and no verdict would be safe from the ravages of counsel for the losing party. See City of Ottawa, 236 Kan. at 420. We share the concern of the United States Supreme Court, which rejected a verdict challenge stating: “[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took

part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.” McDonald v.

Pless, 238 U.S. 264, 267-68, 59 L. Ed. 1300, 35 S. Ct. 783 (1915). Although the district court was not a part of this conduct, it became a participant when it failed to consider the polling of the jury after the verdict, considered the singular juror affidavit absent further corroboration, and then sua sponte ordered the jury recall. Although allegations of juror misconduct may properly provoke judicial action, the circumstances here were insufficient to set aside the jury’s verdict and to order a new trial.

To the extent that jury misconduct was the lynchpin of the court’s order granting a new trial, that order must be reversed.

We acknowledge that the district court discussed additional grounds in support of a new trial in the order granting a new trial, but the court specifically found that “the evidence of jury misconduct regarding insurance, attorney fees, and the extrapolated verdict is not enough to independently warrant a finding of substantial prejudice to the rights of Lawton to a fair and impartial trial.” Similarly, the court found that allegations of attorney misconduct “did not approach the level of conduct . . . that would warrant a finding of substantial prejudice.” For these reasons, we conclude our reversal of the district court’s conclusion of jury misconduct clearly warrants the reversal of the court’s order for a new trial.

Accordingly, we reverse and remand with directions to reinstate the verdict of the jury. In

summary, we have addressed and answered the certified questions as follows: (

i) The district court did not err in its

interpretation and application of K.S.A. 60-3412 in permitting Williams’ expert to testily; (ii) the district court erred in ordering a jury recall absent any motion of a party; and (iii) the district court did not abuse its discretion in questioning jurors without direct participation of counsel. Because our analysis has undermined the principal basis for the district court’s order of a new trial, we reverse that order and remand with directions to reinstate the verdict of the jury. Reversed and remanded with directions.