Starbuck v. R.J. Reynolds Tobacco Co. (102 F. Supp. 3d 1281, 2015)

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF’S MOTION FOR NEW TRIAL AND DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I. INTRODUCTION........................................... 1284

A. Procedural Background................................ 1284

B. Factual Background............... 1285

1. Evolution of the jury instruction on “addiction”...................1285

2. Evidence on “addiction”...........:............................. 1287

3. Juror access to dictionary deñnitions of “addiction”...............1290

II. LEGAL ANALYSIS..........................................-...........1292

A. . Starbuck’s Motion For New Trial.........................!..........1292

1. Overview of grounds for a new trial...............................1292

2. Juror misconduct...............................................1294

a. Arguments of the parties................. 1294

b. The need for, an evidentiary hearing..........................1295

c. The merits of the contention .......... .1297

/. Applicable standards..................................1297

ii. Analysis..............................................1301

3. Verdict against the great weight of th e evidence ...................1303

a. Arguments of the parties................................ 1303

b. Applicable standards.........................................1303

c. Analysis.....................................'...:........... 1304

4. Improper jury instruction on “addiction” .........................1307

a. Arguments of the parties'..... 1307

b. Analysis....................................................1307

5. Summary ......................................................1308

B. The Defendants ’ Motion For Attorneys ’ Fees find Costs................1308

III. CONCLUSION ..:...................:..................................1309

APPENDIX: VERDICT FORM

Is the plaintiff smoker in this “Engle progeny” ease against cigarette makers entitled to a new trial where the jury answered “no” to the initial question of whether he was addicted to cigarettes' containing nicotine on or before November 21, 1996, thus ending their deliberations? The plaintiff contends that- he is entitled to a new trial, because the jurors were exposed to extrinsic evidence, in the form of dictionary definitions of “addiction”; because the jury’s verdict was against the great weight of the evidence; and because my addition of a timeframe for his addiction in the jury instructions heightened his burden and likely confused the jury. The defendant cigarette makers deny that the plaintiff is entitled to a new trial on any of these grounds. They also seek an award of attorneys’ fees and costs as prevailing parties and pursuant to a Florida offer-of-judgment statute.

This jury trial, really a courtroom battle extraordinaire, was exceptionally hard fought by extremely talented, industrious, skilled, and zealous trial lawyers for the plaintiff and the two tobacco company defendants. Many hundreds, if not thousands, of objections were lodged, primarily by the two tobacco companies, throughout the trial. Double-digit mistrial motions were made by the defense during the trial, and motions and other filings by the defendants were made virtually around the clock, with voluminous filings every evening after mere mortals went to sleep. This is partially explained by the high stakes in the case, as well as the thousands of other tobacco cases pending in the federal and state courts of Florida, and by the plethora of legal issues not yet resolved by appellate courts.

I. INTRODUCTION

A. Procedural Background

I was designated as a visiting judge for the December 2014 retrial of this “Engle progeny case,” after a mistrial was declared in the first trial, in the- early summer of 2014, because the jury could not reach a verdict. At trial, plaintiff William Starbuck sought damages for his lung cancer from defendants R.J. Reynolds Tobacco Company - (RJR), individually and as successor 'by merger to The Brown & Williamson Tobacco Corporation, and Philip Morris USA Inc. (PM USA). Starbuck asserted two “product liability” claims: “negligence” and “strict liability”; and two “fraud” claims: “fraudulent concealment” and “conspiracy to fraudulently conceal.” RJR and PM USA denied . Starbuck’s claims and asserted, as a specific defense to his “product liability”, claims, that Star-buck was at fault and, thus, responsible for his injury.

The retrial was scheduled for December 1, 2014, and was to be bifurcated. In Phase 1, the jurors would hear evidence and decide whether or' not Starbuck had proved his claims for damages, and, if so, what compensatory damages, if any, to award him. Also, if Starbuck had proved one or both of his “fraud” claims, the jurors would also decide whether punitive damages were justified on those claims. If the jurors' decided that punitive damages were justified, then, in Phase 2, the parties would present additional evidence, and the jurors would decide what amount of punitive damages, if any, to award Starbuck.

The trial began on December 1, 2014, with jury selection. See Trial Minutes (Day 1) (docket no. 179), and continued with the presentation of evidence on December 2, B, 5, and 8-12, 2014. The case was submitted’to the jury on December 15, 2014, and the jury returned a defense verdict the following,day, December 16, 2014. Trial Minutes (Day 11) (docket no. 226). Specifically, the jurors answered “no” to the initial question of whether Starbuck was addicted to cigarettes containing nicotine on or before November 21, 1996, thus ending their deliberations'. See Verdict Form (docket no. 228). A blank copy of the Verdict Form is attached to this decision as an appendix.

By Order (docket no. 255), filed January 22, 2015, I denied as moot the defendants’ December 12, 2014, Motion For Judgment As A Matter Of Law On Plaintiffs Fraudulent Concealment And Conspiracy Claims (docket no. 210) and the defendants’ December 12, 2014, Motion For Judgment As A Matter Of Law [On All Claims] (docket no. 211). In that Order, I also denied, on the merits, Starbuck’s December 30, 2014, Motion' To Permit Juror Interviews (docket no. 252). On February 10, 2015, I entered Judgment (docket no. 257) on the jury’s verdict.

On February 24, 2015, the defendants filed their Motion For' Attorneys’ Fees And Costs (docket no. 258), which is one of the motions now before me. The defendants amended that request on February 25, 2015. See Notice (docket no. 259). On March 13, 2015, Starbuck filed his Opposition (docket no. 261) to the defendants’ Motion For Attorneys’ Fees And Costs. By Order (docket no. 264), filed April 8, 2015, I granted the defendants’ Motion For Leave To File A Reply In Support Of Defendants’ Motion For Attorneys’ Fees And Costs (docket no. 262). The defendants filed their Reply (docket no. 265) on April 10, 2015. On March 10, 2015, Star-buck filed his Motion For New Trial (docket no. 260), which is the second motion now before me. On March 24, 2015, the defendants filed their Opposition (docket no. 263) to that motion. Starbuck did not request leave to file any reply in further support of his motion.

I do not find that oral arguments are necessary on either motion, in light of the parties’ briefing and submission of supporting documents. Therefore, I will resolve both motions on the parties’ written submissions.

B. Factual Background

This factual background focuses on three aspects of the trial pertinent to Star-buck’s Motion For New Trial. The first aspect is the evolution of the part of the jury instructions concerning “addiction.” The second aspect is the evidence presented at trial concerning1 “addiction” and whether or not Starbuck was “addicted” to cigarettes. The third aspect concerns the jury foreperson’s investigation of dictionary definitions of “addiction” and my subsequent attempt to determine whether other jurors had also been exposed to those dictionary definitions.

1. Evolution of the jury instruction on “addiction”

Prior to trial, on November 18, 2014, see Order (docket no. 138), and again on November 25, 2014, see Order (docket no. 164), I provided the parties with my draft jury instructions for Phase 1 of the trial and, on November 29, 2014, see Order (docket no. 173), I provided the parties with what I believed to be the “final” version of those jury instructions. In an annotation to the November 18, 2014, draft of the Phase 1 jury instructions, I advised the parties that I do not give separate preliminary and final instructions. Instead, I give “front-end loaded” instructions, which meant that, subject only to the rare instance when “supplemental” instructions might be appropriate, all instructions — except;-for instructions on deliberations, and, in this case, Phase 2 instructions on punitive damages — would be given to the jurors before opening statements.

Also in the November 18, 2014, draft of my Proposed Jury Instructions, I took up the matter of the initial elements that Starbuck had to prove to establish his membership in the “Engle class” and, consequently, his entitlement to rely on certain common liability findings in the “En gle class litigation.” More specifically, in its decision otherwise decertifying the class for determination of individual claims, the Florida Supreme Court concluded that “the. appropriate cut-off date” for class membership is November 21, 1996. See Engle, 945 So.2d at 1255. Thus, the Florida Supreme Court defined the class as all Florida residents, and their survivors, who have suffered, presently suffer, or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine as of November 21,1996. Id. at 1274 (stating the trial court’s class description as “All United States citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.”); id. at (concluding, “The class consists of all Florida residents fitting the class description as of the trial court’s order dated November 21, 1996.”). An individual who proves membership in this class is entitled to the res judicata effect of certain findings by the jury in Phase I of the class trial. Id. at 1254-55,' 1269, 1276-77. Those findings included that smoking cigarettes causes lung cancer, among other diseases, and that cigarettes that contain nicotine are addictive or dependence producing. See id. at 1277; see also Engle v. R.J. Reynolds Tobacco Co., No. 94-08273 CA-22 (FI. 11th Cir.Ct.), Verdict Form For Phase-1 (questions 1 (generic causation) and 2 (addiction/dependence)).

In the November 18, 2014, Proposed Jury Instructions, I instructed that' Star-buck must first prove that he “was addicted to cigarettes containing nicotine on or before November 21, 1996.” 11/18/14 Proposed Jury Instructions (docket no. 138-8), 16 (Instruction No. 6 — Starbuck’s “Eligibility”'To Assert His Claim). In a'!pertinent annotation, I explained,

I find it odd that this element has not previously been stated with a required timeframe. As I understand Engle and its progeny, a plaintiff would not have been a member of the now decertified class, nor entitled to rely on the findings in the class action trial, unless he was addicted to cigarettes containing nicotine from some time before November 21, 1996, the “end date” for the class. See Engle v. Liggett Group, Inc., 945 So.2d 1246, 1274-76 (Fla.2006). A plaintiff cpuld not have suffered from a disease caused by. addiction by the “end date” for the class, unless that plaintiff was, in fact, addicted by that “end date.” I will use this time period, unless the parties convince me that some other date or time period is appropriate.

Id. at n. 36 (emphasis in the original).

I also included’ in the pertinent Instruction a definition of “addiction,” id. at 16-17, and I explained my reason for doing so, in a pertinent annotation, as follows:

I understand that numerous federal judges have been uncomfortable with not instructing on a definition of “addiction,” but still have opted not to give any definition. Not only am I uncomfortable with leaving such a critical term undefined for the jurors, I specifically join with Judge Rakoff and Judge Carr in concluding that such a definition should be given. See Davis v. R.J. Reynolds Tobacco Co., 30 F.Supp.3d 1353, 2014 WL 2885964 (M.D.Fla. June 25, 2014); Berger v. Philip Morris USA, Inc., 2014 WL 5780189 (M.D.Fla. Nov. 5, 2014). Furthermore, I agree with Judge Rakoff that the appropriate definition of “addiction” is a “dictionary” definition. See Davis, 30 F.Supp.3d at 1356-57, 1358, 2014 WL 2885964 at *1, *3.

Id. at 17 n. 37.

After receiving the parties’ comments on the November 18, 2015, Proposed Jury Instructions, I made the changes, that I deemed appropriate and provided the parties with the November 25, 2014, revised version of the Proposed Jury Instructions. In an annotation to the November 25, 2014, Proposed Jury Instructions, -I explained,

In the face of objections from both the plaintiff and the defendants, I have deleted any definition of “addiction.” On the other hand, I stand by my prior conclusion that the plaintiff had to be addicted by the closure date for the Engle class to take advantage of the Engle class findings.

11/25/14 Revised Proposed Jury Instructions (docket no. 164 — 4), 13 and n. 8 (Instruction No. 6 — Starbuck’s Initial Elements). My positions on these two issues did not change through subsequent revisions of the jury instructions.

Thus, the jury instructions ultimately read to the jurors did not contain any definition of “addiction,” but did include a required timeframe for “addiction,” that is, on or before November 21, 1996. See Instructions To The Jury (docket no. 221) (Phase 1 Instructions), 11 (Instruction No. 6 — Starbuck’s Initial Elements).

2. Evidence on “addiction”

“Addiction” was a hotly contested issue during the trial. Starbuck called, as one of his experts, Dr. Michael Cummings, Ph. D., a behavioral scientist and addiction expert, who, among other things, opined on the definition of “addiction” and how “addiction” works. Based on his years of treating patients, research, and review of documents and literature, Dr. Cummings opined that the reason that people persist in smoking despite the knowledge of harm is nicotine addiction. Trial Transcript, December 2, 2014 (Afternoon) (docket no. 232), 28:14-21. He opined that the definition of nicotine addiction was the same as the definition of addiction for other drugs, see id. at' 36:2-7, that is, the definition of “addiction” published by the National Institute on Drug Abuse (NIDA). According to Dr. Cummings, the NIDA definition is the following: . .

Addiction is defined as a chronic, relapsing brain disease that’s characterized by compulsive drug seeking and use, despite harmful consequences. It is eonsidered a brain disease because drugs change the brain. They change its structure and how it works.

Trial Transcript, December 2, 2014 (Afternoon), 37:2-10. Dr. Cummings opined that this was the definition used in “modern science,” in his practice, and in the NIDA textbook on drug abuse for health profes-, sionals. Id. at 39:11-23.

Dr. Cummings also opined, “[Ajddiction is not free will. Addiction is a constrained choice.” Id. at 35:5-6. He explained that nicotine addiction ;is a “brain disease,” because the receptors in the brain, and the connections .in the brain, which he described as “neuroplasticity,” are altered by nicotine, and that the younger a person starts smoking, the more their neuroplasticity changes-and the harder it is for them to stop smoking. Id. at 37:15-39:10. Furthermore, he explained how nicotine is absorbed into the body by smoking, the physiological mechanism that makes it both enjoyable and addictive, the symptoms and effects of withdrawal, that Star-buck’s statements that he enjoyed smoking were “an indication probably he was addicted,” and that Starbuck’s negative symptoms when he quit smoking were consistent with him having nicotine, withdrawal. Id. at 38:20-38:12, 39:19-10, 41:2-42:18, 43:1-46:19. Dr. Cummings also explained how nicotine enters the bloodstream and how quickly a smoker will feel the effects. Id. at 47:9-49:7.

Finally, Dr. Cummings discussed factors that are helpful in determining whether and to what degree an individual is addicted to nicotine, and he applied those factors to Starbuck. Id. at 49:11-74:8. More specifically, Dr. Cummings applied a “Heaviness of Smoking Index” to Starbuck’s smoking. He found that Starbuck smoked first thing when he got up in the morning. Id. 'at 54:9-15. He found that Starbuck started smoking a pack a day, increased to about a pack and a half a day when he was in the Air Force, increased to a pack and a half to two packs a day when he moved to Florida, and was smoking two to two-and-a-half packs and sometimes 3 packs a day in the 1980s. Id. at 54:23-55:10. He concluded that Starbuck’s scores using the Index placed Starbuck “in the high dependence category.” Id. at 55:17-19. Dr. Cummings then looked at the following seven criteria to assess whether or not Starbuck was an “addicted” smoker: “whether the smoker is smoking on a persistent, daily basis”; the “amount smoked”; “time to first cigarette”; “age of initiation”; “difficulty controlling their smoking”; “[ejvidence of withdrawal”; “continued use, despite knowledge of harm.” Id. at 55:20-56:15. He applied those criteria to Starbuck, finding that Starbuck’s “age of initiation” was early, around 13 or 14,.when his brain was still developing.' Id. at 59:11-23. He also concluded that Starbuck was “a persistent daily user over decades, four decades”; that “[h]e smoked first thing in the morning”; he smoked “anywhere from one to three packs” per day, “[b]ut in the 1980s, he was up over two packs per day”; he had “difficulty refraining from smoking” and had “withdrawal symptoms”; and “he had some pretty serious health problems, including pneumonia and some other health problems, and yet he persisted in smoking despite, you know, those harms,” so that “he met every one of these criteria in my assessment.” Id. at 60:14-61:10. Ultimately, Dr. Cummings concluded that Starbuck “was addicted to nicotine in the cigarettes that he smoked, and I would rate him as “heavily addicted.” Id. at 61:24-25.

Starbuck aiso called, as another expert witness, Dr. David Burns, who has worked on every United States Surgeon General’s Report on Smoking and Health since 1975, to provide medical opinions on addiction. Starbuck points out that Dr. Burns testified that the public health community, and, in particular, physicians who diagnose and treat nicotine addiction, rely on the NIDA definition of “addiction” and use certain related criteria to assess nicotine addiction. See Trial Transcript, December 10, 2014 (Morning) (docket no. 241), 28:8 — 13; 33:21-36:25. On the other hand, Dr. Burns testified that the Diagnostic and Statistical Manual of Mental Disorders (DSM), either DSM-IV or DSM-V, is a manual for psychiatrists to classify behaviors, but hot a manual providing definitions of addiction used by medical professionals for the purposes of diagnosing and treating addiction. Id. at 32:11-33:25. On cross-examination, Dr. Bums admitted that not all smokers are addicted and that even some daily smokers are not addicted. See id. at 129:22-130:2.

Starbuck also presented testimony by Dr. Jeffrey Gentry of RJR and Richard Jupe of PM USA, both of whom acknowledged that, over time, their companies had come to admit that cigarettes are addictive. Trial Transcript, December 11, 2014 (docket no. 243), 229:10-13; Trial Transcript, December 12, 2014 (Afternoon) (docket no. 246), 8:13-14, 22:15-18.

In addition to expert testimony, Star-buck presented his own testimony at trial concerning his cigarette smoking. Star-buck testified that he started smoking as an adolescent, at around age 13 or 14, see, e.g., Trial Transcript, December 5, 2014 (Afternoon) (docket no. 236), 43:21-25, which Dr. Cummings had explained was when Starbuck was particularly susceptible to nicotine’s addictive effects. -Trial Transcript, December 2, 2014 (Afternoon) (docket no. 232), 59:11-23. Starbuck became a regular smoker at age 14. See, e.g., Trial Transcript, December 5, 2014 (Afternoon), 43:21-25. Starbuck smoked thirty to forty cigarettes per day for over 40 years, smoking from when he woke up, throughout his waking hours while working, with breaks of no more than 20 to 30 minutes, until he went to bed at night. Id. at 60:14-61:22. The work in question was Starbuck’s work as a “glass artist,” making “glass sculpture of figurines” from “solid glass” heated over a flame, which is different from “glass blowing.” Id. at 27:12-28:9. He also smoked when he woke up in the middle of the night. Id. at 65:8-15. Also, for years, Starbuck suffered withdrawal symptoms whenever he tried to quit. Id. at 66:19-22, 76:2-77:24. As to his efforts to quit smoking, Starbuck testified, “It was the hardest thing I probably — well, not harder than having cancer, but one of the hardest things I’ve ever had to do.” Id. at 77:25-78:6. His inability to quit caused significant disruptions in his home life, resulting in fights with his wife and conflicts with his stepdaughter. Id. at 66:1-67:10. Despite trying numerous cessation aids, including patches, gum, candy, and nicotine gum, Starbuck was unable to quit smoking until doctors diagnosed him with lung cancer, removed a portion of his lung, and kept him in an induced coma for three weeks because of complications from his surgery. Id. at 74:1-78, 84:9-14.

All of this evidence was consistent with the jury’s finding in Phase I of the “Engle class litigation” that smoking cigarettes causes lung cancer, among'other diseases, and that cigarettes that contain nicotine are addictive or dependence producing. See Engle, 945 So.2d at 1277; see also Engle v. R.J. Reynolds Tobacco Co., No. 94-08273 CA-22 (FI. 11th Cir.Ct.), Verdict Form For Phase 1 (questions 1 (generic causation) and 2 (addiction/dependence)).

The defendants point to specific portions of Starbuck’s testimony as supporting their arguments against a new trial. First, the defendants point to Starbuck’s testimony that he enjoyed smoking, the feeling it gave him, the taste, and being a part of a group of smokers. Trial Transcript, December 8, 2014 (Afternoon) (docket no. 238), 28:7-15. They also point to his testimony that smoking cigarettes helped him deal with stress and improved his mood. Id. at 28:16-19. The defendants cite Starbuck’s testimony that, after his cancer surgery in 1995, he tried a cigarette, because he was curious, but he found that it tasted awful, that he got no euphoria from it, and that he has not had a cigarette since, that is, for nearly 20 years. Id. at 28:20-29:7. Finally, they cite testimony of Starbuck’s family members about Starbuck’s ability to refrain from smoking. Specifically, they point to testimony of Starbuck’s stepdaughter that Starbuck was able to refrain from smoking while he was making glass items, for as much as an hour at a time, Trial Transcript, December 12, 2014 (Afternoon) (docket no. 245), 150:1-18. They also point to testimony of Starbuck’s brother that Starbuck did not smoke while he was actually working glass, possibly for as long as two hours, and could go without smoking for as long as eight hours, when he was asleep. Id. at 148:20-149:13.

In response to Starbuck’s expert testimony, the defendants presented the, expert testimony of Dr. Christopher Tick-nor, a board certified psychiatrist, based on his review of the evidence and his medical examination of Starbuck. Dr. Ticknor testified that the DSM-V, developed by the American Psychiatric Association, does not use the term “addiction,” because of its negative connotation and the lack of an agreed-upon definition, but that “addiction” would' be a “pretty extreme presentation” of “a tobacco use,.disorder,” as defined in the DSM-V. Trial Transcript, December 12, 2014 (Afternoon), 65:23-66:9. Dr. Ticknor opined that, in his office practice, “well below 50 percent” of people met the criteria for tobacco use disorder and, in fact, “sometimes it’s [only] as high as 20 or 30 percent of the smokers in my practice,” while “probably closer to 10 percent or 20 percent” would fit a “description of truly an addiction.” See id. at 66:22-67:5.

Dr. Ticknor also testified that, using the diagnostic criteria in the DSM-V, his review of the relevant literature, his review of the deposition testimony of Star-buck arid members of his family, and his examination of Starbuck, it was his opinion that Starbuck “did not meet the criteria for a tobacco use disorder, that he was not addicted to nicotine.” Id. at 67:6-24. Dr. Ticknor also testified that, in his opinion, “most people can quit smoking when they are motivated and determined to do so,” although there were some who could not, even if motivated to do so. He identified examples of people who could not quit as people who were “mentally retarded,” “severely mentally ill,” “psychotic,” “schizophrenic,” “dependent,” “emotionally fragile,” or who had been “physically and sexually traumatized.” Id. at 72:12-73:10. He also testified that, in his view, only about a third of the- people who came to see him “really do want to quit, and they are motivated to do so,” while another third are “ambivalent,” and the remaining third “really have no desire to quit,” because “for one reason or. another — they like smoking.” Id. at 73:13-74:3. On cross-examination, however, Dr. Ticknor testified that he understood that medical doctors — at least those not practicing psychiatric medicine — do not use the DSM-V for their determinations of nicotine dependence, that' they use the NIDA definition, and that there is “nothing wrong” with using the NIDA definition of “addiction.” Id. at 93:21-94:6; see also id. at 94:12-15 (stating, “[T]here are differences about what the word addiction means depending on your organization' [arid] I personally believe that the NIDA reference to addiction is a very good one,” even if he did not fully agree with all of the elements of the NIDA definition).

3. Juror access to dictionary definitions of “addiction”

As-mentioned, above, I read all of the Phase 1 jury instructions, except the last one on deliberations, to the jury before opening statements., The jurors each received a complete copy of the jury instructions, including the Verdict Form, just before I read them, so that they could follow along, and they were allowed to keep those copies in the courtroom or in the jury room -throughout the trial. The jury instructions read to the jurors at the begin* ning of the trial included instructions that “[t]he law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these Instructions,” Instructions To The Jury (docket no. 221) (Phase 1 Instructions), 1 (Instruction No. 1 — Introduction); that “[e]vidence is not ... [a]nything that you see or hear about this case outside the courtroom,” id. at 5 (Instruction No. 3— Definition of Evidence) (emphasis in the original); and, more specifically, “[d]o not do any research — on the Internet, in libraries, in the newspapers, in dictionaries or other reference books, or in any other way — or make any investigation about this case, the law, or the people involved on your own,” id. at 39 (Instruction No. 18— Conduct Of The Jurors During Trial) (emphasis'added).

The parties made their closing arguments on December 15, 2014, then I read the remaining instruction on “deliberations.” That instruction included the following reminder: “Base your verdict solely on the evidence and on the law as I have given it to you in my Instructions.” Id. at 42 (Instruction No. 19 — Deliberations). The case was submitted to the jury at 2:25 p.m., and the jurors began their deliberations. Approximately an hour later, the jurors adjourned their deliberations for the day.

Notwithstanding the various cautions in the jury instructions quoted above, on the morning of December 16, 2014, about half an hour before the jurors had indicated that they would resume their deliberations, I received a note from the foreperson of the jury asking the following question:

Can the jury úse a definition from a medical dictionary (Taber’s) and two (2) regular dictionaries (Webster’s New World Dictionary + The American Heritage Dictionary) for a better definition of

Addiction

or

could you give us your definition for

Addiction[?]

Juror Question (docket no. 224), 2 (formatting as found in the juror’s note). After consulting the parties, I provided the jurors with a response to that note at about 9:32 a.m! That response stated, in pertinent part,

You are correct the jury instructions did not define addiction. That was intentional, thus it is for the jury to decide what addiction means, but because you are not allowed to do any independent research you may not use a dictionary definition or other outside resource.

Response To Question From Jury (docket no. 224) at 1.

At approximately 1:20 p.m., the jury returned to the courtroom and rendered a dfefense verdict. Trial Minutes (Day 11) (docket no. 226). Specifically, the jurors answered “no” to the initial question on the Verdict Form asking’ whether Star-buck was addicted to cigarettes containing nicotine on or before November 21, 1996, thus ending their deliberations. See Verdict Form (docket no. 228), blank copy attached as an Appendix to this ruling.

I excused the jurors to the jury room, before releasing them, so that I could consult with the parties about the issue of the possibility that the jury foreperson had looked up one or more dictionary definitions of “addiction,” in light of the first question from the jury. After discussions with the parties, I interviewed the jury foreperson, individually, in open court. I read the foreperson the note quoted above, then had the following colloquy with him:

THE COURT: Did you consult any dictionary definitions regarding addiction in this case?”

[Defense, objection omitted]

FOREPERSON: I had trouble sleeping last night. I thought of .the word addiction. I have what Dr. Cummings had as his definition of addiction. I couldn’t clarify in my mind, so I did look up in my wife’s medical dictionary. She is a registered nurse.

And I looked up in two other dictionaries, which did not have the word addiction. It [sic] just had the word addict. Those were the three that I looked up.

I did not bring those books with me. I wrote on a — I made a copy of á page from those dictionaries. And when I got your note back, I ripped them up and threw them in the trash can.-

THE COURT: Did you share your knowledge of what you learned by looking at the dictionary [sic] with any other jurors during the deliberation process?

FOREPERSON: I had told them that I looked it up. I do not recollect showing them to them, because one of them said, I don’t think you’re allowed to bring that in here. That’s why I wrote you the note and asked.

THE COURT: I appreciate that. Thank you very much.

Trial Transcript, December 16, 2014 (docket no. 247), 38:21-22, 39:1-21. I then excused the foreperson back to the jury room.

Following my colloquy with the jury foreperson, I had an extended discussion with the parties concerning whether any further inquiry was appropriate, recognizing that I could address Starbuck’s challenge to the verdict based on the foreperson’s conduct on post-trial motions. I determined, over vociferous and prolonged objections by defendants, including that I was violating the rights of the jurors by detaining them after they had rendered a verdict, that a very limited further inquiry was permissible. Therefore, I asked each of the other jurors, separately, in open court, the following question or a slight variation of the question,, “Did any juror describe a dictionary definition of addiction to the jury during deliberations?” Id. at 55:10-11, 56:1-2, 56:16-17, 57:7-8, 57:17-18; see also id. at 58:4-5 (“Did any juror describe a dictionary definition of addiction to you during deliberations?”); id. at 58:19-21 (“Did any juror describe a dictionary definition of addiction to you — sorry, to the jury during deliberations?”). The first juror answered, “I don’t remember that,” id. at‘55:12, and each of the other jurors answered “No,” id. at 56:3, 57:9, 57:19, 58:6, or “No, sir,” id. at 58:17, or “No, sir. They did not,” id. at 56:18. I excused the jury at approximately 2:07 p.m. without making any further inquiries.

II. LEGAL ANALYSIS

The disposition of Starbuck’s Motion For New Trial may affect the disposition of the defendants’ Motion For Attorneys’ Fees And Costs. Therefore, I will begin my legal analysis with Starbuek’s Motion, even though it was filed after the defendants’ Motion.

A. Starbuck’s Motion For New Trial

As mentioned at the outset of this opinion, Starbuck seeks a new trial because the jurors were exposed to extrinsic evidence, in the form of dictionary definitions of “addiction”; because the jury’s verdict on “addiction” was against the great weight of the evidence; and because my addition of a timeframe for his addiction in the jpry instructions heightened his burden and likely confused the jury. I will consider these three grounds in turn. First, however, I will briefly consider the authority of the district court to grant a motion for a new trial.

1. Overview of grounds for a new trial

Rule 59 of the Federal Rules of Civil Procedure expressly authorizes a new trial, on a party’s motion, after a jury trial. Fed.R.Civ.P. 59(a)(1)(A). The rule is less helpful on the grounds for doing so, however: The rule provides only that such a motion may be granted “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Id. The Eleventh Circuit Court of Appeals has clarified matters, at least to the extent that it has recognized that a new trial may be appropriate on each of the grounds asserted by Starbuck. See, e.g., BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1471-72 (11th Cir.1992) (explaining the circumstances in which a juror’s misconduct in considering extrinsic evidence requires a new trial (citing United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990))); Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1312-13 (11th Cir.2013) (explaining that a new trial may be granted if “the verdict is against the great — not merely the greater — weight of the evidence” (internal quotation marks and citations omitted)); Gowski v. Peake, 682 F.3d 1299, 1310 (11th Cir.2012) (“Motions for new trial on the basis of erroneous and prejudicial jury instructions are within the district court’s discretion.”). The specific standards for granting a new trial vary, depending upon the ground asserted, so I will address the standards for a new trial applicable to each of Starbuck’s grounds in more detail, when I consider those claims in turn. Nevertheless, those specific standards seem to me to be variations on a theme that a new trial should not be granted, unless the error or circumstance at issue affected substantial rights or caused substantial prejudice, so that it was not merely harmless. See, e.g., Coquina Inv. v. TD Bank, N.A., 760 F.3d 1300, 1309 (11th Cir.2014) (stating this standard in reference to allegedly erroneous evidentiary rulings).

A district court’s decision on a motion for a new trial is reviewed for abuse of discretion. Compare Finnerty v. Stiefel Labs., Inc., 756 F.3d 1310, 1322 (11th Cir.2014) (“We review a district court’s denial of a motion for new trial only for an abuse of discretion.”, (quoting Myers v. Too Jay’s Mgmt. Corp., 640 F.3d 1278, 1287 (11th Cir.2011))); mth Aronowitz v. Health Chem Corp., 513 F.3d 1229, 1242 (11th Cir.2008) (stating that the appellate court reviews a district court’s grant of a motion for new trial for “abuse of discretion”). Yet, in the Eleventh Circuit, the “abuse of discretion” standard varies in the degree of deference paid to the district court’s resolution depending on the circumstances. Thus, the appellate court has stated that “deferential]” review “for an abuse of discretion ... is particularly appropriate where a new trial is denied and the jury’s verdict is left undisturbed.” St. Luke’s Cataract and Laser Inst., P.A. v. Sanderson, 573 F.3d 1186, 1200 n. 16 (11th Cir.2009) (quoting Rosenfield v. Wellington Leisure Prods., Inc., 827 F.2d 1493, 1498 (11th Cir.1987)). On the other hand, “[t]he range of discretion afforded to the district court is smaller ... when ... the district court orders a new trial because the jury verdict was contrary to the great weight of the evidence.” Hardin v. Hayes, 52 F.3d 934, 938 (11th Cir.1995). As the court explained,

When “the trial involves simple issues, highly disputed facts, and there is an absence of pernicious occurrences,” [Williams v. City of Valdosta, 689 F.2d 964,] 974 [ (11th Cir.1982) ], application of [a] rigorous standard of review “protects] a party’s right to a jury trial,” and ensures that the district court does not simply substitute its own credibility choices and inferences for the reasonable choices and inferences made by the jury. Redd v. City of Phenix City, 934 F.2d 1211, 1215 (11th Cir.1991).

Hardin, 52 F.3d at 938 (footnote omitted); accord Aronowitz, 513 F.3d at 1242 (“Our review for abuse of discretion is ‘more rigorous when the basis’ of the grant was the weight of the evidence.” (quoting Williams v. City of Valdosta, 689 F.2d 964, 974 (11th Cir.1982))). Apparently, there is some middle level of deference, as well: While the district court’s discretion is smaller to grant a motion for a new trial because the verdict was “contrary to the great weight of the evidence” than it is to deny a motion for new trial, “[a]- more deferential standard of review is appropriate ... if the district court’s new trial order is precipitated by jury misconduct or other prejudicial trial events that contaminate the jury’s deliberative process.” Id. at 938 & n. 6.

Keeping in mind the' varying degrees of deference that may be applicable to my ruling, depending on the issues presented and how I resolve them, I turn to specific consideration of each of the grounds on which Starbuck seeks a new trial'.

2. Juror misconduct

Starbuck argués, first, that the jury’s exposure to extrinsic evidence, in the form of the foreperson’s consultation' of dietionary definitions of' “addiction,” posed a reasonable probability of prejudice, such that he is entitled to a new trial. The defendants oppose a new trial on this ground. '•

a. Arguments of the parties

Starbuck argues that the meaning of “addiction” was not merely collateral, but highly material, because proof that he was “addicted” was a prerequisite to “Engle class membership.” He also argues that the extrinsic influence, here, went straight to the heart of the trial and “appears” to have improperly influenced the jury’s verdict that he was not addicted. Starbuck argues that the law presumes prejudice when a jury has come into contact with extraneous information, such as a dictionary definition, and that, unless the defendants can demonstrate that the jurors’ consideration of that extrinsic information was harmless, a new trial is required. He argues that the defendants cannot show that the extrinsic evidence was harmless in this case, based on consideration of several pertinent factors. First, he ai’gues that the meaning of “addiction” was undoubtedly important to resolution of the case. Next, he argues that the dictionary definition provided the only “neutral” definition of the contested term, so that the dictionary definition carried undue weight with the jurors. Starbuck also argues that he is entitled to a .new trial if even a single juror’s impartiality was ' overcome. by an extraneous influence, so that, even if the foreperson did not share the specific dictionary definitions that he had looked up, a new trial is.still warranted. Starbuck also argues that, here, the other jurors were aware that the foreperson had extrinsic evidence of the meaning of the key term, which, may have influenced them to follow the foreperson’s, lead. Finally, Starbuck argues that the evidence did not strongly support a verdict in the defendants’ favor on vvhether or .not he was “addicted.” Thus, he argues that these factors weigh in favor of granting his motion for new trial. . In the alternative, Starbuck argues that I should now hold, an evidentiary hearing to measure the level of prejudice resulting from the foreperson’s consultation of extrinsic sources for a definition of “addiction.”

In response, the defendants argue that I took prompt and proper' actions to ensure that there was no prejudice to Starbuck. They argue that this is so, because I informed the jurors that they could not consider dictionary definitions of “addiction,” the foreperson then destroyed the copies of the dictionary definitions that he had found, and the other jurors all stated on the record that no "one had described a dictionary definition to them. The defendants contend that prejudice is not presumed in these circumstances, but, even if a rebuttable presumption of prejudice arises, no new trial is justified in this case. The defendants reiterate that the record shows that the dictionary definitions had no effect on any of the jurors, even the foreperson, where, the other jurors did not hear any such definitions, and the foreperson ripped up his copies of the dictionary definitions before proceeding with deliberations. The defendants also point out that there is no evidence that the jurors were deadlocked prior to the foreperson’s consultation of dictionary definitions, such that the extrinsic information might have effectively pushed the jurors’ verdict one way or the other. The defendants also contend that'no evidentiary hearing is required, because I have previously denied Starbuck’s request for nearly identical relief — -the opportunity to interview jurors— and I have already made the only proper inquiries. The defendants point out that Starbuck does not now offer any more evidence that the foreperson’s conduct prejudiced him than Starbuck did when he sought leave to interview jurors.

b. The need for an evidentiary hearing

Although it is Starbuck’s “alternative” argument, I will consider, first, his argument that I should conduct an evidentiary hearing to determine whether any prejudice arose from the foreperson’s consultation of dictionary definitions of “addiction.” The Eleventh Circuit Court of Appeals recently observed, albeit in a criminal case,

To be sure, where “a colorable showing of extrinsic influence is made, a trial court ... must make sufficient inquiries or conduct a hearing to determine whether the influence was prejudicial.” United States v. Barshov, 733 F.2d 842, 851 (11th Cir.1984) (citation omitted). But “there is no per se rule: requiring an inquiry in every instance. The duty to investigate arises only when the party alleging misconduct makes an adequate showing of extrinsic influence to overcome the presumption of jury impartiality.” .Id. (citations omitted). Where allegations are “speculative or unsubstantiated,” the “burden to investigate” does not arise. See United States v. Caldwell, 776 F.2d 989, 998 (11th Cir.1985). “In other words, there must be something more than mere speculation.” Barshov, 733 F.2d at 851.

United States v. Alexander, 782 F.3d 1251, 1258 (11th Cir.2015).

Here, there is certainly “a color-able showing of extrinsic influence,” because the foreperson admitted looking up dictionary definition's of “addiction” and “addict.” Id. Even in these circumstances, however, an evidentiary hearing is not necessarily required, because the Eleventh Circuit Court of Appeals has stated that the required responses by the district court encompass alternatives, that is, that the distnct court must “make sufficient inquiries or conduct a' hearing to determine whether the influence was prejudicial.” Id. (emphasis added) (quoting Barshov, 733 F.2d at 851). Here, I have already made, “sufficient inquiries,” because, before releasing the jurors, I interviewed- the foreperson and each of the other jurors, individually, to determine whether they had been exposed to an extrinsic influence, that is, dictionary definitions of “addiction.” Id. Indeed, United States v. Gabay, 923 F.2d 1536 (11th Cir.1991), one of the authorities on which Starbuck relies for his contention that I should conduct an evidentiary hearing, did not involve such an evidentiary, hearing in response to a new trial motion based on juror misconduct. Rather, that case involved the district court’s immediate investigation of juror misconduct, when that misconduct came to the district court’s attention during deliberations. 923 F.2d at 1542-13.

Starbuck contends that my inquiry just after the jurors reached their verdict was inadequate, however. Starbuck contends that an adequate inquiry would result in detailed factual findings about what the foreperson said to his fellow jurors about his research into the definition of “addiction”; to whom he spoke; how other jurors responded, and which ones; how many and which jurors were present at the time of this exchange; how many and which jurors overheard his remarks; whether these comments occurred in the context of deliberations; how many jurors knew throughout the remainder of deliberations that their foreperson had performed outside research on the question of addiction; and any other related topics. As I explained in the part of my January 22, 2015, Order (docket no. 255), denying Star-buck’s December 30, 2014, Motion To Permit Juror Interviews (docket no. 252),

Rule 606(b)(1) [of the Federal Rules of Evidence] provides, “During an inquiry into the validity of a verdict or indictmént, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the.effect of anything on that jurors or another jurors vote; or any jurors mental processes concerning the verdict or indictment.” Fed.R.Evid. 606(b)(1). The lone exception to this prohibition, relevant here, is that '“[a] juror may testify about whether ... extraneous prejudicial information was improperly brought to the jury’s attention.” Fed. R.Evid. 606(b)(2)(A). The Supreme Court has explained, “As enacted, Rule 606(b) prohibited the use of any evidence of juror deliberations, subject only to the express exceptions for extraneous information and outside influences.” Warger v. Shauers, — U.S. -, -, 135 S.Ct. 521, 527 [190 L.Ed.2d 422] (2014) (emphasis added). I believe that it is clear that I have already made the only permissible inquiry here, that is, “whether ... extraneous prejudicial information was improperly brought to the jury’s attention.” Fed.R.Evid. 606(b)(2)(A); Warger, — U.S. at -, 135 S.Ct. at 527.

Order (docket no. 255), 3. Thus, I concluded, and I now reiterate my conclusion, that I already made the only permissible inquiry under Rule 606(b).

Starbuck points out that I conducted a much broader inquiry concerning juror misconduct in United States v. Honken, 381 F.Supp.2d 936 (N.D.Iowa 2005), a federal death-penalty case. . In that case, I examined applicable case law and Rule 606(b), and noted, inter alia, that there was “tension” between Rule 606(b) and the need to investigate alleged juror misconduct. 381 F.Supp.2d at 1039-46. In that case, I took the following steps:

(1) questioning of [Juror 523] who had allegedly suffered the [improper] contacts to determine the nature of those contacts; (2) questioning that juror to determine what, if anything, the juror had said to other jurors about the allegedly improper contacts to determine the extent of any potential “taint”; (3) reassembling the trial jurors, with instructions cautioning that they were not to continue deliberations until further .order of the court and explaining the investigatory process; (4) conducting voir dire of the jurors to determine the circumstances of the secondhand contacts through Juror 523, the effect, if any, of those secondhand contacts upon the jurors, and the jurors’ ability to be fair and impartial and to decide the case despite any such secondhand contacts; and (5) determining the effectiveness of curative procedures and implementing those procedures found to be required, which in this case, required removal of the affected juror and substitution of an unaffected alternate.

Honken, 381 F.Supp.2d at 1041.

In Starbuck’s case, however, I only-questioned the jury foreperson to determine the nature of his contact with extrinsic information, that is, the dictionary definitions of “addiction,” and then questioned the other jurors about whether anyone had described dictionary definitions of “addiction” to them. In Honken, one juror had conveyed extrinsic information or had described an improper contact to other jurors, but there was no need to make further inquiries in Starbuck’s case, where none of the other jurors had any contact with the extrinsic information. In other words, there was no need to ask about the other jurors’ ability to be fair and impartial, despite extrinsic information, because none of the other jurors had that extrinsic information. Also, my answer to the foreperson’s note about use of dictionaries, explaining that- the jurors could not use such definitions, was an effective curative procedure — at least to the extent of preventing other jurors from learning the dictionary definitions and causing the foreperson to destroy the copies of the definitions that he had discovered. This is so, because the other jurors’ statements confirmed that no one had described any dictionary definitions to them. Thus, the circumstances at the time of my inquiry did not warrant further inquiry, and Starbuck has not demonstrated any basis, other than speculation, for believing that further inquiries are permissible or appropriate. See Alexander, 782 F.3d at 1258 (explaining that “there must be something more than mere speculation” to warrant inquiry into alleged juror misconduct (internal quotation marks and citations omitted)).

Starbuck’s request for an evidentiary hearing on his juror miseonduct/extrinsie information ground for a new trial is denied.

c. The merits of the contention

i. Applicable standards

The Eleventh Circuit Court of Appeals has observed, “In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is ... deemed, presumptively prejudicial.” Alexander, 782 F.3d at 1258 (emphasis added) (quoting Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954)). Although Starbuck contends that this same presumption of prejudice applies in a civil case, Eleventh Circuit case law is to the contrary. Rather, as I noted, above, the Eleventh Circuit Court of Appeals explained in BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467 (11th Cir.1992), the circumstances in which a juror’s misconduct in considering extrinsic evidence in a civil case requires a new trial pursuant to Rule 59(b). 955 F.2d at 1471-72 (citing United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990)). Specifically, the court explained, “A juror’s consideration of extrinsic evidence requires a hew trial if the evidence poses a reasonable possibility of prejudice to the [aggrieved party].” BankAtlantic, 955 F.2d at 1471-72 (emphasis. in the original) (quoting Rowe, 906 F.2d at 656). • Still more specifically, .

The [aggrieved party] must first establish prejudice by a preponderance of credible evidence. If and when [the aggrieved party] makes this showing, the burden shifts to the [opposing party] to prove that the juror’s consideration of the extrinsic evidence was harmless. [United States v. Rowe, 906 F.2d 654,] 657 [ (11th Cir.1990) ]. The factual determination of whether consideration of extrinsic evidence caused the defendant prejudice is committed to the • trial court’s “large discretion.” Id. (quoting Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959)). '

BankAtlantic, 955 F.2d at 1472. Because, in a civil case, the aggrieved party must first establish prejudice from alleged juror misconduct, involving contact with extrinsic information, by a preponderance of credible evidence, there is clearly no presumption of prejudice.

In BankAtlantic, a savings in loan, which had lost at jury trial on its claims against a financial advisor, sought a new trial, inter alia, on the ground that that “jury foreman Anthony Lippert had read, in violation of an express court order, an article that contained] extraneous information about BankAtlantic and its chairman, Alan Levan.” 955 F.2d at 1471. The court explained further,

..The article included.a discussion of Mr. Levan’s income in the context of BankAtlantic’s poor earnings. The article also contained information on BankAtlantic’s litigation with a minority shareholder which had been excluded as evidence from trial.

BankAtlantic, 955 F.2d at 1471.

In BankAtlantic, the court considered one of its prior cases, United States v. Bolinger, 837 F.2d 436 (11th Cir.), cert. denied, 486 U.S. 1009, 108 S.Ct. 1737, 100 L.Ed.2d 200 (1988), in which a new trial had been sought on the basis of a jury’s exposure to a. newspaper article, and a Fifth ' Circuit • case, United States v. Williams, 568 F.2d 464 (5th Cir.1978), in which several jurors had been exposed to a television news report that the criminal defendant in their case had previously been convicted of the same offenses. BankAtlantic, 955 F.2d at 1472. The court then resolved the question of whether a new trial was required in the case before it, on the ground that the jury foreperson had read a newspaper article, as follows:

In light of this precedent, we conclude that the district court properly determined that the extrinsic evidence did not pose a “reasonable possibility of prejudice.” Rowe, 906 F.2d at 656. As in Bolinger, only one juror read the newspaper article in question; none of the other jurors had any knowledge of the contents of the article. Also, the information regarding Mr. Levan’s income and BankAtlantic’s litigation with a minority shareholder was not nearly as inflammatory as the news report in Williams about the defendant’s previous conviction on the same charges. The district court’s determination that the evidence was not prejudicial is supported as well by its finding that the facts reported in the article would have been merely cumulative of facts already in evidence. Finally, the district court found credible the jurors’ testimony that the information had no effect on their impartiality. . ,

The trial evidence, along, with the .jurors’ post-trial testimony, supports the district court’s determination that BankAtlantic was not prejudiced. Accordingly, the district court did not abuse its “large discretion” in concluding that the jurors’ consideration of the extrinsic evidence did not taint the jury’s deliberations and require a new trial. Rowe, 906 F.2d at 657.

BankAtlantic, 955 F.2d at 1472-73.

I will consider out-of-circuit authorities for guidance, as well. The only decision involving review by a federal court of appeals of a district court’s ruling on a new trial motion in a civil case involving juror exposure to extrinsic dictionary definitions that the parties have cited is Mayhue v. St. Francis Hospital of Wichita, Inc., 969 F.2d 919 (10th Cir.1992). Mayhue was a “civil rights action,” in which the Tenth Circuit Court of Appeals “examine[d] whether the district court’s decision to grant the defendant’s motion for a new trial because of the jury’s unauthorized use of dictionary definitions during its deliberations constitutes reversible error.” 969 F.2d at 920. The district court in that case had denied the jurors’ request for a dictionary during their deliberations. After the jury returned its verdict, however, “the court’s staff found a handwritten note in the jury room that contained definitions of the words ‘discriminate,’ ‘p[re]judice,’ ‘administer,’ ‘clinical,’ and ‘hypertension/ ” Id. at 921. ■

“In accordance with Federal Rule of Evidence 606(b),” the district court in May-hue held an evidentiary hearing to determine the effect of two of the dictionary definitions in the- note, “p[re]judice” and “discriminate.” Id. The district court then granted the defendant’s motion for a new trial for the following reasons:

The [evidentiary] hearing revealed that the foreperson of the jury wrote the note and read the definitions aloud to the jurors the day they rendered their decision. This timing is important because the-jury had reported twice during its preceding day of deliberations that it had reached a stalemate and was plagued by irreconcilable differences: Yet- within hours after the foreperson read'the definitions on the note, the jury was able to reach a verdict. Although some jurors testified that they did not remember having seen or heard these definitions, the district court found that /‘at least four members of the jury were in possession of evidence not offered at trial.”

Mayhue, 969 F.2d at 921 (footnotes omitted).

In its review in Mayhue, the Tenth Circuit Court of Appeals stated, “The law in the Tenth Circuit is clear. A rebuttable presumption of prejudice arises whenever a jury is exposed to external information in contravention of a district court’s instructions.” 969 F.2d at 922. As I observed, above, however, the law in the Eleventh Circuit does not clearly require such a presumption. See, supra, beginning at page 1297. What is of greater interest, here, is that the court in Mayhue listed the following considerations as “relevant in an analysis of whether the presumption of prejudice ought to be rebutted when a jury consults a dictionary or dictionary definition without authorization”:

(1) The importance of the word or phrase being defined to the resolution of the case.

(2) The extent to which the dictionary definition differs from the jury instructions or from the proper legal .definition.

(3) The extent to which the jury discussed and emphasized the definition. '

(4) The strength of the evidence and whether the jury had difficulty reaching a verdict prior to introduction of the dictionary definition.

(5) Any other factors, that relate to a determination of prejudice.

Mayhue, 969 F.2d at 924. I find that these considerations are equally relevant to the ultimate determination of whether or not a juror’s unauthorized consultation of a dictionary definition was prejudicial to the party moving for a new trial. See also Chums, Ltd. v. Snugz/USA, Inc., 64 F.3d 669 (10th Cir.1995) (unpublished op.) (concluding that the presumption of prejudice from a juror’s unauthorized consultation of a dictionary had been rebutted; and the district court had properly denied a motion for a mistrial, based on considerations similar to those identified in Mayhue, where the district court had found “that (1) only one juror had seen the dictionary; (2) the dictionary was confiscated by a marshal; (3) the jury was re-instructed- not to use or refer to extraneous sources of information; (4) the dictionary definition at issue comported with common-sense meaning; and (5) Chums’ counsel argued only that the jury should be re-instructed to rely on ordinary and common meaning.”).-

In Mayhue, these considerations led the appellate court to affirm the district court’s conclusion that the jury’s unauthorized consultation of a dictionary had been sufficiently prejudicial to warrant a new trial. 969 F.2d at 924-26. Specifically, the court concluded, first, that “the meanings of ‘discriminate’ and ‘prejudice’ [we]re of c