2013 VT 59


McCormack v. Rutland Hospital
d/b/a Rutland Regional Medical Ctr and DiMuzio (2012-104)
 
2013 VT 59
 
[Filed 02-Aug-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 59

 

No. 2012-104

 

Gilbert E. McCormack and Shelagh
  McCormack


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Rutland Unit,


 


Civil Division


 


 


Rutland Hospital, Inc. d/b/a
  Rutland Regional Medical Center and Henry B. DiMuzio, Jr., M.D.


September Term, 2012


 


 


 


 


Mary
  Miles Teachout, J.


 

John H. Bloomer, Jr. of McClallen & Bloomer, P.C., Rutland,
and Michael J. Regan of 
  Duffy & Duffy, Shelburne, for
Plaintiffs-Appellants.
 
Allan R. Keyes and John J. Zawistoski of Ryan Smith &
Carbine, Ltd., Rutland, for 
  Defendants-Appellees.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and Robinson,
JJ.
 
 
¶ 1.            
BURGESS, J.  Plaintiffs appeal the superior court’s denial
of their motion for a new trial based on allegations of juror bias.  The
issues presented are whether (1) plaintiffs’ motion for a new trial was timely,
(2) the trial court erred in denying the motion under the test for juror bias
set forth in In re Nash, 158 Vt. 458, 614 A.2d 367 (1991), and (3) the
trial court erred in denying the motion under the doctrine of implied
bias.  We affirm.  
¶ 2.            
The undisputed facts maybe be summarized as follows and additional
relevant facts are stated as necessary.  In April 2008, Plaintiffs Gilbert
McCormack and Shelagh McCormack filed a civil action against Dr. Henry R.
DiMuzio, Jr. and Rutland Regional Medical Center (RRMC) under theories of
medical malpractice and vicarious liability, respectively.  Plaintiffs
founded their claims on a purportedly negligent diagnosis of plaintiff Gilbert
McCormack’s appendicitis condition at the Emergency Department of RRMC in April
2005, claiming it led to the rupture of his appendix, emergency surgery, and
numerous post-operative complications.  After extensive discovery, voir
dire and empaneling of the jury took place on October 11, 2011.  Trial
commenced on December 5, 2011, and the jury returned a verdict in favor of
defendants on December 12, 2011.  
¶ 3.            
Events transpiring at and after the October 11, 2011 jury selection are
the subject of this appeal and an account of those proceedings is
revealing.  Following some opening remarks, the trial court explained to
the panel the need to select “fair and impartial” jurors.  To illustrate,
the court posited several situations which would call into question a juror’s
partiality, such as a case involving a juror’s neighbor, a matter with which
the juror was personally familiar, or a factual scenario very similar to one in
the juror’s own life.  
¶ 4.            
Before either parties’ counsel began questioning the jury panel, the
trial court stated:
[T]he
case, in a very general way, is about medical care received at the Rutland
Regional Medical Center in April of 2005.
 
 
[D]o any of you know that you know something about the case or something about
the parties or the attorneys or that you have some sort of prescheduled, prepaid
travel or surgery or something like that during that period?  
 
Two jurors reported conflicting
school schedules and another responded “I’m familiar with the names of the
attorneys but [do] not personally have knowledge of either of the attorneys, just
to acknowledge that.”  Like twenty other prospective jurors, one Juror R
remained silent.  
¶ 5.            
Plaintiffs’ counsel then questioned the panel.  After inquiring
about scheduling conflicts, plaintiffs’ counsel stated, in relevant part:
I’m Michael Regan,
and my office is in Waitsfield, Vermont up near Sugarbush, and John Bloomer
will serve as co-counsel.  He’s . . . from here in
Rutland.  [Plaintiffs] are both Rutland residents.  Mr. Zawistoski
and his firm, Ryan Smith & Carbine, are here in Rutland.  His client
is [defendant], who is an emergency room physician at Rutland Regional Medical
Center.  
 
  Initially is
there anybody here who knows any of us or any of the parties so as to prevent
you from being fair and impartial in this case?  
 
Several jurors
responded to this question by recounting relationships potentially affecting
their partiality while, again, Juror R remained silent.  
¶ 6.            
It was Juror R’s silence in the face of the court’s question “do any of
you know that you know something about the case or something about the parties
or the attorneys” and plaintiffs’ counsel’s question “is there anybody here who
knows any of us or any of the parties so as to prevent you from being fair and
impartial in this case” that prompted plaintiffs’ complaints of juror bias
below and now on appeal.  In the weeks after the verdict it came to
plaintiffs’ counsel’s attention that, for several years leading up to the
instant case, Juror R worked in public relations for the area’s electric
utility, Central Vermont Public Service Corporation (CVPS), and was publically
involved in promoting community food and blood drives.  Counsel also
learned that RRMC and its law firm, Ryan Smith & Carbine, had been generous
contributors to these charitable efforts.    
¶ 7.            
On this basis, on January 9, 2012, plaintiffs filed a “Motion For a New
Trial Based Upon Newly Discovered Evidence of Juror Misconduct.”  The
motion asserted that it “came to light” that, as a CVPS communications
representative, Juror R had a “long-term symbiotic” relationship with RRMC and
Ryan Smith & Carbine.  Plaintiffs pointed to two[1] fundraising efforts in which Juror R had
some involvement as establishing both Juror R’s actual and implied bias. 
Included with the motion were exhibits comprised of various website printouts,
apparently the product of an internet search conducted on December 21-22, 2011,
which form the record on appeal.  
¶ 8.            
The first set of exhibits relied upon by plaintiffs consists of
publicized snippets from the 2007, 2010, and 2011 CVPS “Fill the Cupboard
Challenge,” coordinated by or otherwise associated with Juror R.  The
“Fill the Cupboard Challenge” “challeng[es] businesses, schools, clubs and
other organizations to organize food collections from customers, employers,
students and members . . . with a goal of collecting at
least 25,000 [food] items” to benefit the Community Cupboard.  In a 2007
press release listing Juror R as the contact person for the collection, CVPS
announced it would “donate $500 in the name of the company or group that
collects the most food during the Challenge” and that there was “no cost to a
business or organization to participate.”  The press release also noted
that “[t]he matching dollars provided by CVPS
are . . . critical to the [Community] Cupboard remaining
open all year.  The Cupboard buys food with these funds in the summer when
donations are at their lowest point.”  RRMC was listed as one of the first
twenty-one participants in the food drive in 2007 and one of sixty-five overall
donors in 2011; Ryan Smith & Carbine was among the sixty-seven contributors
to the 2010 food drive.  
¶ 9.            
The second set of exhibits offered by plaintiffs reveals information
pertaining to the “Gift-of-Life Marathon,” an annual blood drive organized by
CVPS and two radio stations.  The blood drive benefitted the American Red
Cross, and apparently participating blood donors were given bags that “include
special coupons from local businesses as a gift to the donors, and to support
the business community.”  According to the record, in 2008, Juror R was
listed as a contact person in a promotion for the blood drive in the Rutland
Region Chamber of Commerce Courier.  The 2008 promotion also listed Juror
R as the point person for businesses including coupons in the gift bags. 
In 2009, Juror R was photographed by the Rutland Herald stuffing gift bags for
blood donors.  In 2010, a documentary entitled “The Blood in This Town”
featured the blood drive, and the documentary’s website included a “Donor Wall
of Honor” listing RRMC as giving “a stellar donation of $5000 supporting the
making of the film,” along with Ryan Smith & Carbine’s name and some
sixty-four other contributors.  Finally, in 2011, RRMC was among the
dozens of local businesses and organizations that donated items to include in
gift bags given to blood donors, and its logo was listed among the numerous
businesses and organizations that supported the blood drive.  Aside from
these printouts, plaintiffs’ motion for a new trial relied on no other evidence
or affidavits.  Defendants filed a motion in opposition.  The
superior court denied the motion for a new trial “for the reasons set forth in
[d]efendants’ counsel’s opposition” without further explanation.  
¶ 10.        
Plaintiffs contend that Juror R’s failure to disclose in voir dire her
above-described business contacts with Ryan Smith & Carbine and RRMC
requires a new trial under the standard for juror bias set forth in In re
Nash, 158 Vt. 458, 614 A.2d 367.  Under In re Nash, “[t]o
warrant a new trial, ‘a party must first demonstrate that a juror failed to
answer honestly a material question on voir dire, and then further show
that a correct response would have provided a valid basis for a challenge for
cause.’ ”  Id. at 466, 614 A.2d at 371 (quoting McDonough
Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984)). 
Plaintiffs also invoke the doctrine of implied bias as a basis for a new trial,
citing the charitable activities of Juror R’s employer CVPS with RRMC and Ryan
Smith & Carbine as an inherent reason for Juror R’s disqualification from
the case.  
I.
¶ 11.        
Before addressing the merits of this appeal, defendants’ challenge to the
timeliness of plaintiffs’ motion must be considered.  Their motion for new
trial was filed twenty-eight days after the verdict.  Defendants
characterize the motion as filed under Rule 60, which allows a retrial based on
“newly discovered evidence” only when such information was not discoverable
through “due diligence . . . in time to move for a new
trial under Rule 59(b)” within ten days of entry of judgment.  V.R.C.P.
60(b)(2); V.R.C.P. 59(a)-(b).  Noting that the time for a Rule 59 motion
expired after plaintiffs’ December 21-22 internet search, defendants argue that
the fruits of this search were available before the running of Rule 59’s
ten-day limit.  Alternatively, defendants claim that if the motion does
not fall outside of the Rule 59(b) and 60(b)(2) ten-day deadline, then Rule
60(b)(6) applies, and plaintiffs’ motion was not made within “a reasonable
time” as required by that rule.  Plaintiffs maintain that post-verdict
discovery of evidence of juror misconduct is not newly discovered evidence under
Rule 60(b)(2), so that neither the ten-day limit of Rule 59(b) nor the due
diligence considerations of Rule 60(b)(2) apply.  In plaintiffs’ view, the
motion for a new trial was filed within a reasonable time under Rule
60(b)(6).  
¶ 12.        
While this Court has not previously considered whether juror bias
constitutes newly discovered evidence in the context of Rule 60, the question
was answered in the negative under Vermont Rule of Criminal Procedure 33. 
Criminal Rule 33 provides that “[a] motion for a new
trial based on the ground of newly discovered evidence may be made only before
or within two years after final judgment . . . .”  State
v. Sheppard outlined the four factors dictating whether evidence of juror
bias is newly discovered under Rule 33:  “the evidence must (1) be
material and discovered after the trial, (2) be truly new and not undiscovered
merely through a lack of diligence, (3) give reasonable assurance that it will
lead to a different result upon retrial, and (4) not be merely cumulative or of
impeaching effect.”  155 Vt. 73, 75, 582 A.2d 116, 118 (1990).  The
Court in Sheppard held that the defendant’s allegation of juror bias did
not constitute newly discovered evidence, reasoning that such evidence does not
meet the four general criteria recited above because “it is not material to the
merits of the accused’s innocence or guilt, nor can the trial court determine
from such evidence whether a different result would likely follow if a new
trial were granted.”  Id. at 76, 582 A.2d at 118.  The
reasoning in Sheppard applies by analogy here.  
¶ 13.        
Moreover, notwithstanding that their new trial
motion is labeled as “Based Upon Newly Discovered Evidence of Juror
Misconduct,” plaintiffs assert that the motion is properly evaluated under Rule
60(b)(6)’s “catch-all” interests-of-justice grounds rather than the Rule
60(b)(2) new evidence basis.  On the claim specified, then, the ten-day
limit of Rule 59 and due diligence requirement of Rule 60(b)(2) for new
evidence are inapposite and irrelevant.[2] 

¶ 14.        
Having decided that plaintiffs filed the motion for a new trial under
Rule 60(b)(6), the question becomes whether plaintiffs filed the motion within
“a reasonable time” as required by that rule.  Rule 60(b) “is intended to
provide the sole means of obtaining relief from a judgment after the time for a
motion under Rule 59 has run.”  Reporter’s Notes, V.R.C.P. 60.  The “general catch-all provision” of 60(b)(6), providing relief
for “any other reason justifying relief from the operation of the judgment” not
addressed by parts 60(b)(1) through (5) is “designed to give the court the
flexibility to see that the rule serves the ends of justice.”  Reporters
Notes, V.R.C.P. 60(b)(6).  “Although the grounds for relief
authorized under Rule 60(b)(6) are broad and the rule must be interpreted
liberally to prevent hardship or injustice, there are necessarily limits on
when relief is available.”  Richwagen v. Richwagen, 153 Vt. 1, 4,
568 A.2d 419, 421 (1989).  Accordingly, plaintiffs’
motion for a new trial within less than a month after verdict, and absent any
claimed prejudice by defendants, was timely under Rule 60(b)(6).[3]            

II.
¶ 15.        
The first substantive issue for review is whether the trial court erred
in declining to hold an evidentiary hearing and denying plaintiffs’ motion for
a new trial based on the test for juror bias established in In re Nash,
158 Vt. 458, 614 A.2d 367.  The court’s ruling is examined for abuse of
discretion.  State v. Mayo, 2008 VT 2, ¶ 25, 183 Vt. 113, 945
A.2d 846 (reviewing trial court’s decision for abuse of discretion when “court
declined to hold an evidentiary hearing on these claims [of juror bias], and
denied defendant’s motion for a new trial”).  The trial court was well
within its discretion to deny plaintiffs’ motion here.
¶ 16.        
It is beyond cavil that juror bias deprives parties of a fair
trial.  Plaintiffs would be entitled to a new trial upon proof of juror partiality. 
Id. ¶ 23.  To prove juror bias, plaintiffs “ ‘must first
demonstrate that a juror failed to answer honestly a material question on voir
dire, and then further show that a correct response would have provided a valid
basis for a challenge for cause.’ ”  In re Nash, 158 Vt. at
466, 614 A.2d at 371 (quoting McDonough, 464 U.S. at 556).  
¶ 17.        
Plaintiffs claim that Juror R’s silence to the trial court’s question
“do any of you know that you know something about the case or something about the
parties or the attorneys” constitutes failure to answer honestly a material
question on voir dire under the first prong of In re Nash.  Honest
answers and good faith silence, even if arguably incorrect, generally do not
meet this standard.  McDonough, 464 U.S. at 555.  The United
States Supreme Court considered the honesty of a juror’s silence in McDonough,
a case involving a defective lawnmower.  The “critical question” posed to
the jury panel was whether the jurors or members of the jurors’ families sustained
“injuries . . . that resulted in any disability or
prolonged pain and suffering.”  Id. at 550.  Post verdict, the
plaintiffs moved for a new trial based on a juror’s silence to this question
after discovering that an exploding tire broke the leg of one juror’s
son.  Id. at 551 n.3.  In evaluating whether the juror’s
silence was equivalent to a dishonest answer, the Court noted that the juror
“apparently believed that his son’s broken leg sustained as a result of an
exploding tire was not such an injury.”  Id. at 555.
 Regarding the responses of other jurors to the critical question and
similar queries, the Court observed that “another juror related such a minor
incident as the fact that his six-year-old son once caught his finger in a bike
chain,” and that “[y]et another juror failed to respond to the question posed
to [the juror], and only the subsequent questioning of petitioner’s counsel
brought out that her husband had been injured in a machinery accident.”  Id. 
Reconciling these wide-ranging responses, the Court explained that “varied
responses to respondents’ question on voir dire testify to the fact that jurors
are not necessarily experts in English usage.  Called as they are from all
walks of life, many may be uncertain as to the meaning of terms which are
relatively easily understood by lawyers and judges.”  Id.  
¶ 18.        
As in McDonough, the “know that you know something” question was
sufficiently ambiguous that the trial court was within its discretion to find that
Juror R’s silence did not constitute a failure to answer honestly.  The
trial court’s question did not make clear what it meant to “know” RRMC. 
Inquiring whether one “knows” an entity is an indistinct question, particularly
where, as plaintiffs’ counsel acknowledged later during voir dire, “It’s a
small town.  It’s hard to not know.”  See Dennis v. Mitchell,
354 F.3d 511, 521 (6th Cir. 2003) (upholding determination that juror was not
intentionally deceitful during voir dire when she denied ever being victim of
violent crime because juror believed that sexual abuse she suffered as child
was not violent crime and question was ambiguous); Sanchez v. State,
2011 WY 77, ¶¶ 33-36, 253 P.3d 136 (concluding juror’s silence in response
to whether he “knew” defendant was honest answer, even though juror knew of
defendant and that defendant was incarcerated, but did not feel he “knew”
defendant personally).  
¶ 19.        
All members of the Rutland-based jury panel may have had familiarity
with RRMC in some capacity.  Plaintiffs’ counsel recognized as much, and
accordingly tailored his later voir dire examination as follows:
 
Now, I presume that some of you have had children [at RRMC], some of you may
have been born there.  Is there anybody of the twenty-four here that has
any misgiving, any reluctance, any reason to think that they will not be fair
and impartial based solely on the fact that the hospital where they would go in
the event of an emergency is a defendant in the case?  
 
¶ 20.        
Moreover, to the extent Juror R “knew” the firm Ryan Smith &
Carbine, the trial court’s question regarding knowledge of the attorneys
was not sufficiently precise to elicit that information, even if such a
response would be “relatively easily understood by lawyers and judges” as
necessary.  McDonough, 464 U.S. at 555.  The trial court asked
the jury: “[D]o any of you know that you know something about the case or
something about the parties or the attorneys or that you have some sort of
prescheduled, prepaid travel or surgery or something like that during that
period?”  Plaintiffs view this question as asking: “[D]o any of you
‘know’ any of the attorneys, their firms, or any of the parties in this case or
do you ‘know something about’ the attorneys, their firms, or the parties?” 
The trial court did not ask the jurors if they knew “the attorneys and by
extension the attorneys’ law firms.”  See United States v. Kerr,
778 F.2d 690, 694 (11th Cir. 1985) (“While the
parties in this or any other case are of course entitled to an impartial jury
and to an honest and straightforward response from potential jurors on voir
dire in order to obtain such a jury, we cannot put upon the jury the duty to
respond to questions not posed.”).  
¶ 21.        
Additionally, the fact that another juror responded to the trial court’s
question by disclosing that he was “familiar with the names of the attorneys
but [did] not personally have knowledge of either of the attorneys, just to
acknowledge that,” carries little to no weight in ascertaining whether Juror R
knew the attorneys, and the record does not support that contention.  The
varied responses here are no different from those in McDonough, and
reflect nothing more than the fact that jurors are “called . . . from
all walks of life,” bringing with them their own personalities and
experiences.  McDonough, 464 U.S. at 555.  Juror R’s silence
to the trial court’s question does not satisfy the first part of In re Nash
for a showing of juror bias.  
¶ 22.        
Plaintiffs also claim that Juror R’s silence to plaintiffs’ counsel’s
question “is there anybody here who knows any of us or any of the parties so as
to prevent you from being fair and impartial in this case” constitutes failure
to answer honestly a material question on voir dire under In re Nash. 
“The courts put great—albeit not absolute—faith in
the juror’s statement at voir dire that he or she will give the [parties] a
fair and impartial trial.”  2 C. Wright & P. Henning, Federal Practice
& Procedure § 382, at 599-601 (4th ed. 2009).  The trial court
did not abuse its discretion in finding that Juror R answered this question
honestly.  No evidence in the record—apart from plaintiffs’
speculation of self-serving motives on Juror R’s part—suggests that Juror R
doubted her ability to be fair and impartial.  Mayo, 2008 VT 2, ¶ 26 (“[Defendant’s] affidavits provided
at best speculative or merely conclusory claims of the juror’s knowledge, and
thus did not demonstrate that the juror ‘failed to answer honestly a material
question on voir dire.’ ” (quoting McDonough, 464 U.S. at 556)); cf.
BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1473
(1992) (“The first prong of the McDonough test
requires a determination of whether the juror’s answers were honest, that is,
whether he was aware of the fact that his answers were false.” (quotation
omitted)).  Even if we were to accept the veracity, but doubt the
accuracy, of Juror R’s belief, to invalidate the result of the trial because of
Juror R’s “mistaken, though honest response to a question, is to insist on
something closer to perfection than our judicial system can be expected to
give.”  McDonough, 464 U.S. at 555.[4]  Thus, the trial court did
not err in denying plaintiffs’ motion for a new trial under In re Nash
because plaintiffs failed to establish that Juror R dishonestly answered
plaintiffs’ counsel’s question.  
III.
¶ 23.        
Plaintiffs’ remaining arguments invoke the doctrine of implied
bias.  Plaintiffs allege this Court should presume bias because Juror R
deliberately concealed material information, i.e., that a pecuniary
relationship existed between Juror R, RRMC, and Ryan Smith & Carbine, and
that Juror R had a “powerful trust” relationship with the participants in the
trial.[5] 
These arguments are unavailing.    
¶ 24.        
“Traditionally, challenges for cause have been divided into two
categories: (1) those based on actual bias, and (2) those grounded in implied
bias.”  State v. Sharrow, 2008 VT 24, ¶ 7, 183 Vt. 306, 949
A.2d 428 (quoting United States v. Torres, 128 F.3d 38, 43 (2d Cir.
1997)).  “The law infers bias when, irrespective of the answers given on
voir dire, the prospective juror has such a close relationship with a
participant in the trial—a witness, a victim, counsel, or a party—that the
potential juror is presumed unable to be impartial.”  Id.
¶ 14.  The doctrine of implied bias, however, is appropriate only in
“exceptional situations in which objective circumstances cast concrete
doubt on the impartiality of a juror.”  State v. McCarthy, 2012 VT
34, ¶ 35, 191 Vt. 498, 48 A.3d 616 (quotation omitted); see id.
¶ 38 (ruling no implied bias where prosecutor and juror were acquaintances
and exchanged pleasantries during trial); Sharrow, 2008 VT 24, ¶ 17
(declining to imply bias where juror was police officer and former teacher of
testifying police officers); State v. Percy, 156 Vt. 468, 477-81, 595
A.2d 248, 253-55 (1990) (finding potential juror in sexual assault case had no
implied bias though juror’s granddaughter was sexually assaulted); Jones v.
Shea, 148 Vt. 307, 309-310, 532 A.2d 571, 573 (1987) (stating implied bias
not automatically appropriate for former patient of defendant-doctor).[6]   
¶ 25.        
Plaintiffs first argue that Juror R’s “deliberate concealment of
material information” raises substantial questions as to her bias and that United
State v. Columbo, 869 F.2d 149 (2d Cir. 1989), dictates a new trial
here.  In Columbo, the magistrate made several inquiries as to the
potential jurors’ contacts during voir dire, specifically asking the jury
panel: “Do any of you know anyone on the staff of the United States Attorney’s
Office of the Eastern District of New York?” and “Do any of you work with
lawyers or have close friends, relatives who are lawyers?”  Id. at
150 (brackets omitted).  The potential juror told the magistrate she did
not have a “yes” answer to either question, but during the course of the trial
the juror stated that her brother-in-law was a government lawyer and that she
“did not mention this during the voir dire because she wanted to sit on the
case.”  Id.  The court found the potential juror “reflected an
impermissible partiality,” not because her brother-in-law was an attorney, but
because “her willingness to lie about it exhibited an interest strongly
suggesting partiality.”  Id. at 151-52.  
¶ 26.        
For the same reasons that plaintiffs failed to demonstrate Juror R
dishonestly answered the trial court’s general “know that you know something”
inquiry and plaintiffs’ counsel’s imprecise “fair and impartial” question,
plaintiffs cannot show implied bias stemming from any deliberately concealed
information.  The record does not support the necessary inference. 
Plaintiffs point to no evidence of purposeful concealment or dishonesty by
Juror R to support a new trial.  
¶ 27.        
Plaintiffs next point to implied bias based on a pecuniary relationship
between Juror R, RRMC, and Ryan Smith & Carbine, citing Turner v. Roman
Catholic Diocese of Burlington, Vt., 2009 VT 101, ¶ 65, 186 Vt. 396,
987 A.2d 960.  Turner involved claims of negligent hiring,
training, supervision, and retention of a priest who sexually assaulted a
sixteen-year-old boy.  Id. ¶ 3.  Following a verdict, the
plaintiff requested a new trial on the theory that it was reversible error not
to excuse for cause a juror who was a member of the parish involved in the
suit.  Id. ¶ 5.  The Court noted that finding implied
bias for a nonprofit member selected as a juror in a suit involving the
nonprofit “turns on whether the possible effect of the litigation on the
economic viability of the nonprofit corporation is substantial.”  Id.
¶ 64.  Determining it was error not to excuse the juror for cause,
the Court explained that it did “not know the financial risk of the litigation
for the diocese or the parish, but [it did] know that the bishop found that
risk to be substantial, and specifically conveyed his assessment of the risk
and its possible adverse consequences for diocese property to members of the
parishes.”  Id. ¶ 65.  Moreover, the Court noted that the
juror at issue was very familiar with media coverage of the litigation against
the defendant as well as the fact that “Catholic churches, including hers,
could be lost.”  Id.  
¶ 28.        
Plaintiffs’ analogy of this case to Turner is unpersuasive. 
First, Juror R has no membership, stockholder, or equivalent interest in RRMC
or Ryan Smith & Carbine.  See id. ¶ 63 (“The decisions
generally support the conclusion that if a person were a stockholder in a
for-profit corporation that was a party in a civil
suit . . . the person would be disqualified from sitting as
a juror in the case because of an economic interest in the
outcome. . . . [D]ecisions involving membership in
not-for-profit corporations are more divided because the personal economic
interest is generally absent.” (citations omitted)).  More importantly,
Juror R’s role in CVPS’ organization and collection of food and blood to
benefit third parties does not constitute an exceptional situation meriting the
doctrine of implied bias.  CVPS solicited items such as peanut butter,
jelly, canned tuna, and pasta to donate to local food shelves.  It also
organized a blood drive for the American Red Cross, and rewarded blood donors
with gift bags filled with coupons and the like from local businesses. 
The trial court was within its discretion to find that this evidence, suggesting
no personal stake on the part of Juror R, did not warrant further evidentiary
hearings or a new trial.  
¶ 29.        
Finally, plaintiffs allege that Juror R had a “powerful trust”
relationship with the participants in the trial, relying on Jones, 148
Vt. at 310, 532 A.2d at 573, and State v. Kelly, 131 Vt. 358, 306 A.2d
89 (1973).  In Jones, the Court “recognize[d] [the] powerful trust
that a patient may have in his physician’s professional judgment and h[e]ld
that, where a juror is a current patient of a defendant-doctor in a malpractice
suit, it is reversible error to deny a challenge for cause made against that
juror.”  148 Vt. at 310, 532 A.2d at 573.  In Kelly, the
defendant was accused of assaulting a guard at the Vermont State Prison. 
During voir dire, a potential juror disclosed that she was the mother of a
secretary at the prosecutor’s office and the aunt of a guard at the same state
prison where the assault occurred.  131 Vt. at 360, 306 A.2d at 90. 
The Court suggested it was error not to excuse the juror for cause, reasoning
that although the juror stated she could judge the case in a fair and impartial
way, “human nature being what it is, the trial court could have well presumed
that she might be unconsciously influenced by her relationships with those
involved in law enforcement agencies.”  Id. at 361, 306 A.2d at
90.  
¶ 30.        
Neither case supports plaintiffs’ contention.  Juror R acted as a
communications representative at an organization that coordinated and
publicized the receipt and direction of food and blood to other charitable
organizations.  This type of position is not commonly associated with a
powerful “trust and confidence” between organizer and donor as is traditionally
cultivated between physician and patient, and alone cannot imply bias here.
 See Jones, 148 Vt. at 310, 532 A.2d at 573 (quotation omitted).
 Absent evidence of a more particular personal investment in the
charitable enterprises, her position also does not necessarily carry a
“potential for substantial emotional involvement, adversely affecting
impartiality,” United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977),
as would logically arise in the case of an aunt whose guard-nephew worked at a
prison where an assault allegedly took place against another facility employee.
 Kelly, 131 Vt. at 360, 306 A.2d at 90.  The trial court here
was not presented with an equivalent risk of personal or emotional connection,
or both, sufficient to support a claim of exceptional circumstances required to
support plaintiffs’ invocation of implied juror bias.   
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
In addition to plaintiffs’ two principal arguments in this regard, plaintiffs
point to various other tangential connections between RRMC, Ryan Smith &
Carbine, and CVPS.  Such evidence includes the fact that RRMC has a
“CVPS/Leahy Community Health Education Conference Center” which hosts events;
that one board member of CVPS is also a board member of Rutland Regional Health
Services; and that a CVPS organizer served as director on the Rutland Regional
Chamber of Commerce with a different Ryan Smith & Carbine attorney than the
attorneys in this case.  Despite plaintiffs’ attempts to impute the
relationships of other CVPS affiliates to Juror R, these facts shed little
light on Juror R’s honesty, knowledge, and ability—real and perceived—to be a
fair and impartial juror and therefore are not addressed.  


[2] 
As it is not material to the disposition of this case, the Court need not
decide what constitutes “due diligence” in the context of internet research of
jurors under Rule 59 and Rule 60(b)(2).  


[3] 
Defendants assert that this Court “must affirm because the trial court
reasonably could find the motion made January 9, 2012, was not within a
reasonable time.”  Presumably, defendants refer to “[t]he test for determining whether the trial
court could properly find that a motion for relief had been filed within a
reasonable time [which] is whether the trial court exercised sound discretion
on this matter given all the factors and circumstances of the particular
case.”  Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 149
Vt. 365, 369, 543 A.2d 1320, 1323 (1988).  The record does not support
defendants’ contention.  The trial court denied plaintiffs’ motion “for
the reasons set forth in [d]efendants’ counsel’s opposition.”  Defendants’
opposition challenged plaintiffs’ characterization of juror bias as newly
discovered under Rule 60(b)(2), but did not analyze whether the motion was
timely under Rule 60(b)(6).  Absent a ruling from the trial court on the
issue of 60(b)(6) timeliness, there is no suggestion the trial court exercised
its discretion in deciding the issue.


[4]  It is noteworthy that plaintiffs’
counsel also had an opportunity to directly confront Juror R regarding her ability
to be fair and impartial:
 
PLAINTIFFS’
COUNSEL:  Is there anything that you’ve heard so far that gives you any
reason to think you may not be able to participate in this jury in a fair,
impartial way?
 
JUROR
R:  (Inaudible)
 
PLAINTIFFS’
COUNSEL:  Okay. 
 
Plaintiffs’ counsel
did not follow up on Juror R’s response and instead moved on to questioning
other jurors.  In the event of an ambivalent or negative answer to this
question, it was incumbent upon plaintiffs’ counsel to further question Juror
R.  In re Nash, 158 Vt. at 467, 614 A.2d at 372 (“The right to
challenge a juror is waived by a failure to object before the jury is impaneled
if the basis for the objection is known or might, with reasonable diligence,
have been discovered during voir dire.”).  Drawing the obvious inference
from this exchange—that Juror R provided an answer acceptable to plaintiffs’
counsel—no evidence demonstrates that Juror R dishonestly answered this
question.  
 


[5] 
Plaintiffs also assert that Ryan Smith & Carbine represented CVPS for
almost sixty-five years, and contend that this attorney-client relationship
extends to Juror R.  Based on a “relationship of powerful trust”
plaintiffs question “whether that relationship should have been disclosed to
the trial court and plaintiffs’ counsel before the jury was impaneled.” 
Plaintiffs did not raise the issue of attorney-client relationship in their
motion for a new trial.  Issues not raised at the trial court are
unpreserved and generally not considered on appeal.  Follo v. Florindo,
2009 VT 11, ¶ 14, 185 Vt. 390, 970 A.2d 1230.  Plain error review in civil cases is allowed “only in limited circumstances, i.e., when an appellant
raises a claim of deprivation of fundamental rights, or when a liberty interest
is at stake in a quasi-criminal or hybrid civil-criminal probation
hearing.”  Id. ¶ 16 (citations omitted).  This case does
not present such circumstances.
 


[6] 
Plaintiffs assert that “[a]ny question of bias must be resolved against the
juror,” citing United States v. Mitchell, 568 F.3d 1147, 1154 (9th Cir.
2009).  Mitchell is inapposite and plaintiffs’ proposition is
incorrect.  In Mitchell, the defendant challenged his conviction and
sentence for possession with intent to distribute cocaine and possession of
marijuana because one member of his jury had an uncle murdered by a drug
dealer.  568 F.3d at 1148-49.  The court declined to reverse his
conviction on the basis of actual or implied bias, cautioning that “bias should
be presumed only in extreme or extraordinary cases.”  Id. at 1151
(quotations omitted).  Absent evidence to the contrary, jurors are
presumed impartial.  See Irvin v. Dowd, 366 U.S. 717, 723 (1961) (“To hold that the mere existence of any preconceived notion
as to the guilt or innocence of an accused, without more, is sufficient to
rebut the presumption of a prospective juror’s impartiality would be to establish
an impossible standard.”).



