concurring in part and dissenting in part: I agree with several of the conclusions reached by the majority, but I am in fundamental disagreement with the ultimate result reached by the majority and respectfully dissent therefrom.
My first choice would be, for the reasons hereafter stated, to hold the district court improperly certified the issues for an interlocutory appeal, our court should have denied permission for consideration of the interlocutory appeal, and we should hold that such permission was improvidently granted. See City of Manhattan v. Eriksen, 204 Kan. 150, 155, 460 P.2d 622 (1969).
The language of K.S.A. 60-2102(c) allows an interlocutory appeal to be considered “[w]hen a district judge ... is of the opinion that such order involves a controlling question of law . . . and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” By allowing the interlocutory appeal, we have not materially advanced the ultimate termination of this litigation, but only delayed the time which it is taking for Richard Williams to receive the judgment to which he may well be entitled.
The record below reflects that a motion was filed in the district court by Williams to declare K.S.A. 60-19a02 unconstitutional and for an evidentiary hearing on the question. And, a motion was filed by Dr. Steve Lawton to apply the provisions of K.S.A. 60-19a02 to the jury’s award and reduce Williams’ noneconomic damages to the sum of $250,000.
These questions have not been resolved by the district court, since a new trial was ordered. But, if the majority opinion herein becomes the law of this case, the questions regarding K.S.A. 60-19a02 remain to be resolved upon remand to the district court.
*587An appeal from the result of the determination of the damages cap issue is certainly not guaranteed. But if this issue is resolved adversely to Williams, his judgment will be reduced from $1,066,500 to $250,000, resulting in a decrease of $816,500 and making an additional appeal a distinct possibility.
In addition, upon remand, arguments of trial error remain which may be made by Lawton that are appealable as a matter of right.
By granting die interlocutory appeal in this case, we have set up the possibility of piecemeal appeals which have not been approved since we adopted the “new” Code of Civil Procedure, K.S.A. 60-101 et seq., in 1963. In an early opinion which involved a pretrial order being held to not be appealable, our Supreme Court stated in Connell v. State Highway Commission, 192 Kan. 371, 374, 388 P.2d 637 (1964): “The policy of the new code leaves no place for intermediate and piecemeal appeals which tend to extend and prolong litigation. Its purpose is to secure the just, speedy, and inexpensive determination of every action.”
I recognize that a valid argument can be made that by resolving the issues presented, no further appeals will be taken in this case, but a reading of the record in this hard-fought case indicates such is not likely. The interlocutory appeal should not have been allowed by the district court, and our court should not have granted permission for it to be taken. I would hold this appeal was improvidently granted and order it to be dismissed.
However, since a majority of this panel has held otherwise, I am required to further state my agreement in part and my dissent in part to the result reached by the majority herein.
If we consider this interlocutory appeal, the first issue is the extent and scope of the appeal. This was an issue upon which there were several hearings in district court, resulting in an order granting permission for the parties to seek an interlocutory appeal on the following three issues: “(a) The admission of Dr. Diggdon’s expert testimony; (b) the court’s authority to recall the jury; and (c) the questioning of the recalled jurors by the court, but not by counsel for the parties.”
During a telephonic conference with the district court on July 20, 2006, concerning the language of the journal entry on the re*588quests for permission to take an interlocutory appeal, counsel for Williams requested the court to certify an additional issue as to whether there was a quotient verdict rendered in this case.
The district judge specifically denied Williams’ request by stating he believed this to be a mixed issue of law and fact and then said, “And if it is a mixed issue of law and fact, it is not something for which I can make the interlocutory findings.”
While there is a real question as to the scope of review of an order granting a new trial because of improper jury actions, it is difficult to say since K.S.A. 60-2102(c) requires that “such order involves a controlling question of law upon which there is a substantial ground for difference of opinion.” (Emphasis added.)
It would be my preference to simply hold the granting of a new trial may not be the subject of an interlocutory appeal, but we are bound by the language of Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, Syl. ¶ 2, 997 P.2d 681 (2000), which said: ‘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.”
It is logical that when the issue of the expert witness testimony under K.S.A. 60-3412 was certified for an interlocutory appeal, the authority for jury recall and-the questioning of the jurors became inextricably intertwined with the additional issue of whether a new trial should have been granted. While I am uneasy with the precedent we are setting in this case of expanding the scope of an interlocutory appeal beyond that of the language certified, there are reasons to do so which are well stated in the majority opinion. I concur with the majority that we should consider all of the issues raised by the district court’s ruling as to K.S.A. 60-3412 and its entire ruling in regards to the motion for a new trial.
As to the district court’s ruling allowing Williams’ expert witness, Dr. Philip Diggdon, to qualify to testify under K.S.A. 60-3412. I agree with the ruling below and the majority that it was proper to allow Diggdon to testify. I understand Lawton’s legislative history arguments, but the language of the statute must be our primary *589consideration. I concur with the majority on this issue. It would, however, be my preference that this issue be presented only in an appeal from a final judgment, as was the case in Glassman v. Costello, 267 Kan. 509, 986 P.2d 1050 (1999).
I next turn to the consideration of the remaining issues relating to the trial court’s 28-page memorandum decision on Lawton’s motion for judgment as a matter of law and alternative motion for a new trial. The decision denied judgment as a matter of law, which was the K.S.A. 60-3412 question, but granted Lawton’s K.S.A. 60-259 motion for a new trial.
My review of the record indicates that after the jury’s verdict was accepted, the district judge, following Supreme Court Rule 169 (2006 Kan. Ct. R. Annot. 221), said the following:
“You’ve now completed your duties as jurors in this case and you’re discharged with my thanks. And remember, I previously admonished you to not discuss the case with anyone else. You are now free to discuss the case with anyone with whom you wish to do so. You may wonder about whether or not you need to or have to talk to the attorneys or the parties in this case. You can if you want to, you do not have to if you do not want to. And if they ask to talk to you and you do not want to, just tell them I don’t wish to talk to you and they will accept that as your answer and they will not bother you any more.”
I see nothing improper with the communications between counsel or representatives of Lawton with members of the jury. The jurors had the right to talk with counsel in the case, as well as the right to refuse to do so. I see no requirement, as our majority would require to procure the consent of the court prior to contact with a juror. A careful reading of the decisions and rationale of the two cases relied «pon by the majority, State v. Ruebke, 240 Kan. 493, 513, 731 P.2d 842 (1987), and State v. McDonald, 222 Kan. 494, 496-97, 565 P.2d 267 (1977), do not require the conclusion that contact with a juror after trial is to be allowed “only with the knowledge and consent of the court,” as indicated in the majority opinion. Such a requirement or rule would be an abandonment of longtime practice, severely limit counsel in their search for the truth and integrity of a jury’s verdict, and make misconduct of a jury unduly difficult to be discovered and rectified.
*590In this case, a motion for a new trial was timely filed pursuant to K.S.A. 60-259 and alleged statutory grounds under subsection (a) and, as required by subsection (c), specifically stated the alleged errors or other grounds relied upon. The new trial motion contained as an attachment the affidavit of juror A.S. who stated that the instructions were not read, the jury was dominated by the foreman, the verdict was reached by an average of the jurors’ opinions, improper areas of damages were considered, and the award included money to cover the plaintiff s attorney’s expenses.
Williams’ response to Lawton’s motion requesting a new trial countered Lawton’s allegations and included the affidavits of jurors B.B. and C.D.
My reading of the hearing on the motion for a new trial, which was held on March 3, 2006, shows the district court asked counsel to address the issue of whether either side was requesting recall. The court said it was being considered sua sponte, but counsel for Lawton immediately thereafter, as shown on page 11 of the transcript of the hearing, specifically requested and moved for the jury to be recalled for examination.
I would not hold that Supreme Court Rule 181 (2006 Kan. Ct. R. Annot. 227) was violated. In fact, an examination of the district court’s letter to the jury, dated March 7, 2006, would indicate that Rule 181 was followed. The order to recall the jury was a request, not an order to appear. The jury was to be questioned by the court, although the parties were allowed to submit proposed questions. Finally, the attorneys and related parties were ordered to have no further contact with the jurors.
My examination of the hearing where eight of the jurors appeared showed the court was courteous to the jurors and questioned each of them in basically the same manner. The questions included whether they discussed Williams’ ability to obtain medical insurance, attorney fees, whether the question of fault was determined by an average, and whether the jury agreed that the number which came out of the final average would be the verdict of the jury. The court’s final question related to the determination of the dollar amount of damages.
*591From my examination of the record, I would hold that as to issues (b) and (c) certified for interlocutoiy appeal, the court (1) had authority to recall the jury and properly and correctly did so, as statutorily allowed, following Supreme Court Rules, and (2) did not commit reversible error in questioning the recalled juiy and not permitting counsel for the parties to directly do so.
After questioning the eight juiy members on March 31, 2006, the trial court on June 5, 2006, issued its written decision on Law-ton’s motion for judgment as a matter of law and alternatively for a new trial.
The trial court in its memorandum decision stated it had followed K.S.A. 60-441, K.S.A. 60-444, and Supreme Court Rule 181. The court further stated it had considered the pleadings, the juror affidavits, the testimony of the jurors, and the testimony from the trial.
The trial court summarized the testimony of the eight jurors who responded to the request of the court. The trial court found Law-ton had not met his burden to be granted a new trial on the issue of attorney fees and whether the discussions of health, diabetes, future medical needs, and health insurance justified a new trial.
As to the question of whether the jury reached its decision based upon a quotient verdict, the court held there was no dispute that the jury reached the verdict on fault by the use of averaging. The issue was whether there was an advance agreement to be bound by the average. The trial court then stated:
“The issue is whether each juror gave their own independent agreement to the verdict. Given that some of the jurors believed in advance that they would be bound by the quotient, the court finds that not all the jurors gave their own independent agreement to the verdict after the second total, even though they were given an opportunity to say whether they disagreed with the tally. The court bases this finding after having closely looked at and listened to each juror as they testified.
“Accordingly, because the court has found that some of the jurors believed they had agreed before taking the average that the average would be the verdict of the jury, because the court has found that there was not an opportunity for full discussion and deliberation of the second total and because the court has found that not all the jurors gave their own independent agreement to the second tally, the court finds the jury’s verdict on the issue of percentage fault was an improper quotient verdict.”
*592The trial court further considered the claim by Lawton that prejudice existed because Williams contended he suffered $1,000,000 in future noneconomic damages, yet the jury awarded him $1,775,000 for future noneconomic damages which showed that the jury awarded damages beyond the evidence. After a brief discussion, the court held:
“The problem in this case is that, on the one hand, the jury almost doubled the amount requested in the juiy instructions for the special verdict on pain and suffering. On the other hand, the total amount was still within the total damages requested by [sic] the juiy. Given the other problems of juiy misconduct in this case, the court concludes the verdict was given under the influence of passion or prejudice.”
The trial court fully discussed claims of attorney misconduct in the case, concluded with a summary captioned “Cumulative Effect Of All Alleged Errors,” and in its concluding ruling finally stated:
“The court has already found Lawton was substantially prejudiced by the quotient verdict. In addition, the court has already found Lawton was substantially prejudiced by the cumulative effect of the juiy’s discussion of the quotient verdict, attorney fees, future medical problems and extrapolated verdict and the cumulative effect is sufficient to [prove] Lawton’s rights to fair and impartial trial were substantially prejudiced.
“With regard to the attorney misconduct, the chief difficulty is the lack of objections or, if there was an objection, the lack of a request for relief at the time. Independently, when the court considers just the attorney conduct that the court found to be prejudicial, the court finds the cumulative effect did not so permeate the trial to be sufficient to warrant a finding that Lawton was substantially prejudiced just by the attorney conduct. The evidence of attorney misconduct certainly did not approach the level of conduct in the [Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062 (1973),] decision that would warrant a finding of substantial prejudice.
“However, the court finds the court may consider the attorney misconduct evidence when it weighs the juiy misconduct evidence and add the weight of that evidence to the court’s findings on the prejudicial effect of the juiy misconduct. In this light, the court finds the cumulative effect of the prejudicial evidence relating to jury misconduct and relating to attorney misconduct warrant this court’s finding Lawton’s right to a fair and impartial trial was substantially prejudiced.
“. . . Therefore, the court grants Lawton’s Alternative Motion for New Trial.”
The standard of review in cases where a new trial is granted or denied and where a quotient verdict was reached is well stated in City of Ottawa v. Heathman, 236 Kan. 417, Syl. ¶ 1, 690 P.2d 1375 *593(1984), which states: “The granting of a motion for new trial rests in the judicial discretion of the trial court. The order granting or refusing the motion for a new trial will not be reversed by an appellate court unless a clear abuse of discretion is shown.”
However, in the recent case of State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006), Justice Luckert opined:
“Judicial discretion will vary depending upon the character of the question presented for determination. Generally, the trial court’s decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. However, an abuse of discretion may be found if the trial court’s decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. [Citations omitted.]”
In our case, testimony of jurors as to how the verdict was reached was heard by the trial court. In such a case where a determination was made as to whether an improper quotient verdict was reached, it was said in Jones v. Sigg, 261 Kan. 614, 618, 930 P.2d 1077 (1996):
“This court has previously held in Foster v. City of Augusta, 174 Kan. 324, 331, 256 P.2d 121 (1953):
‘It is a rule of this court that whether a verdict was or was not a quotient verdict is a question of fact for the trial court to determine (Fitch v. State Highway Comm., 137 Kan. 584, 587, 21 P.2d 318; Claggett v. Phillips Petroleum Co., [150 Kan. 191,] 201, 202), and the judgment having been entered and approved by the trial court in the instant case, this court will not disturb the judgment on that account.’ ”
In addition, since testimony of jurors was received in the hearing of Lawton’s motion for a new trial and the trial court below in reaching its decision stated that it based “this finding after having closely looked at and listened to each juror as they testified,” we are taught by Butler v. HCA Health Svcs. of Kansas, Inc., 27 Kan. App. 2d 403, 409, 6 P.3d 871, rev. denied 268 Kan. 885 (1999), that “[i]t is up to the trial court to determine the credibility of the witnesses in claims of juror misconduct. [Citation omitted.]”
There seems to always be an issue in appeals where an improper quotient verdict is alleged for an argument to be raised as to whether the mental processes by which the verdict was reached *594have been impermissibly considered. Such is the case in this appeal. The applicable statutes are K.S.A. 60-441 and K.S.A. 60-444(a), which read as follows:
“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 the 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 jmy room having a material hearing 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).
We are taught by Johnson v. Haupt, 5 Kan. App. 2d 682, Syl. ¶ 6, 623 P.2d 537 (1981), that “[u]pon an allegation that a jury returned a quotient verdict, narrow questions may be directed to the jurors to determine whether they agreed in advance to be bound by an averaging technique.” It was also observed in Butler, 27 Kan. App. 2d at 409, that “[t]he line of demarcation between when such evidence is proper under K.S.A. 60-444(a) and inadmissible under K.S.A. 60-441, however, is not a bright line. Verren v. City of Pittsburg, 227 Kan. 259, 260-61, 607 P.2d 36 (1980).”
The questions which were asked to the jurors by the trial court related to the issues discussed and became specifically directed as to whether there was a prior agreement to be bound by the average which was taken by the jury on the liability issue.
It is not necessary to probe each question asked by the court, but for an example, in questioning juror A.S., the court said, “Prior to your giving the number for the averaging, whether it was the first time or the second time, did the jury agree that the number that came out as the final average would be the verdict of the jury?” The answer was, “Yeah. Yes, sir.”
This type of question related to the action taken by the jury and not to the mental processes which were utilized. I would not hold that the mental processes of the jurors were impermissibly questioned. The limitations of K.S.A. 60-441 were not violated.
In reviewing Johnson, 5 Kan. App. 2d at 686, the following wording was utilized in describing a quotient verdict and the effect of the polling of the jury:
*595“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 verdict and subsequently return a verdict that is the direct product of such an agreement. Such a procedure subverts the deliberative process and is prohibited in Kansas. Foster v. City of Augusta, 174 Kan. 324, 329-30, 256 P.2d 121 (1953). Moreover, a subsequent polling of the jury does not diminish the harm already caused by the agreement.” (Emphasis added.)
The emphasized language confirms my basic disagreement with the conclusion of the majority that when a jury has been polled it must be weighed against a later challenge to the verdict. The two cases cited by the majority, State v. Franklin, 264 Kan. 498, 505, 958 P.2d 611 (1998), and State v. Kaiser, 260 Kan. 235, 251-52, 918 P.2d 629 (1996), both involved the polling of a jury in a criminal case. I would hold, as Johnson, 5 Kan. App. 2d at 686, states, that a subsequent polling of a jury does not diminish the harm caused by an agreement to reach an improper quotient verdict.
I do not dispute most of the statements of the majority as to general rules for jury recall in Kansas, except to note that the summary of policy decisions utilized by the majority is found in a case where the recall of the jury was based on an affidavit of one of the jurors, the court questioned the jurors, two of the six jurors testified there had been a prior agreement to be bound by an averaged amount, and the granting of a new trial by the trial court was affirmed on appeal. See City of Ottawa, 236 Kan. 417.
To the extent that Williams has argued that the entire jury panel must have agreed to be bound by the average, the City of Ottawa case is clear authority to the contrary, as there only two members of a six-member jury testified they were to be bound by the average and four did not; yet our Supreme Court did not deem this to be significant in approving an order for a new trial. In our case there was a clear finding that four of the eight jurors who testified stated positively that they were to be bound by the average number, which is a clear indication that the trial court’s findings and rulings in our case should be approved.
Every case involving a quotient verdict is of necessity different factually, and in the City of Ottawa case it was evident the jury had completely disregarded the trial court’s instructions as to how *596the amount of damages in a condemnation case should be determined. See 236 Kan. at 418. The City of Ottawa opinion cited various cases, several of which held that a new trial may be ordered when it is evident that a jury has not followed the court’s instructions, 236 Kan. at 421, and others where a new trial was denied. 236 Kan. at 422.
However, the City of Ottawa opinion ultimately looked to an earlier quotient verdict case, Verren, 227 Kan. 259, which discussed the conflict between K.S.A. 60-441 and K.S.A. 60-444(a) and held that for evidence to be admissible, it “must relate to extrinsic misconduct or to physical facts or occurrences within or without the jury room.” 227 Kan. at 260. The City of Ottawa opinion ultimately held, as I would in our case, that the trial court acted properly when it questioned the jurors. See 236 Kan. at 424-26.
It is clear that at least four of the jurors stated in response to the trial court’s questions that the number which came out of the final average would be the verdict of the jury. The question asked and answer given by juror A.S. (when the propriety of the questions was earlier discussed in this dissent) clearly shows that the juror believed he was bound by whatever figure the average that was taken revealed.
In addition, three other jurors testified as follows:
“THE COURT: Did you all agree — did you all agree before you averaged the percentage of fault that that would be the verdict of the jury?
“Juror [J.B.]: Yes.
“THE COURT: . . . When you all agreed to do the average, was that the method that you were going to try to come to a number and did you all agree ahead of time that would be the number of the verdict no matter what? Meaning is this just the process to get to number or was this going to be the final vote, final verdict of the jury?
“Juror [N.S.j: The final.
“THE COURT: — was that to be the final number of the jury or was that to be a number that you all were still going to discuss?
“Juror [M.G.]: It’s a final.”
When we look back to the standard of review which states that whether a verdict was an improper quotient verdict is a question of fact for the trial court’s determination, Jones, 261 Kan. at 618, it is clear that there was substantial competent evidence upon *597which the trial court in this case based its decision. As was said in Evenson Trucking Co. v. Aranda, 280 Kan. 821, 836, 127 P.3d 292 (2006): “ ‘Substantial evidence is that which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.’ [Citations omitted.]”
The evidence heard by the trial court clearly justified its findings that an improper quotient verdict was reached and that a new trial must be ordered.
I disagree with our majority’s conclusion that juror testimony was insufficient to show a quotient verdict was reached. The majority reaches a different legal conclusion, but I find it compelling that the trial court reached its decision to grant a new trial “after having closely looked at and listened to each juror as they testified.” The trial court was clearly in the best position to examine the credibility of the witnesses.
Ultimately, our decision on appeal on the issue of the propriety of granting of a new trial is based on the first syllabus of City of Ottawa, 236 Kan. 417, which we earlier quoted in full. The decision below rests on the judicial discretion of the trial court, which will not be reversed by an appellate court unless a clear abuse of discretion is shown.
The trial court’s comprehensive decision is soundly reasoned and based on factual findings supported by substantial competent evidence. It was not arbitrary, it was not fanciful, and it was not unreasonable. Reasonable persons could clearly differ as to the propriety of the ruling of the trial court. It cannot be said that the trial court abused its discretion.
For all of the reasons stated, I respectfully dissent from the ultimate result reached by the majority herein, and I would affirm the trial court.