Newman v. Hobbs, No. 1164-01 Cncv (Katz, J., Jan. 2, 2004)



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STATE OF VERMONT                                        SUPERIOR COURT
Chittenden County, ss.:                             Docket No. 1164-01 CnCv



NEWMAN

v.

HOBBS



                                   ENTRY



       Plaintiff files two post-verdict motions seeking to obtain a new trial
or an enhanced award of damages. First, plaintiff asks that the court
conduct an interview of two jurors, to see if there is a basis for attacking
their verdict. Second, plaintiff asks for a new trial, or in the alternative an
additur. We deny both motions.

       This is a personal injury action, in which plaintiff presented
evidence of a permanent shoulder injury resulting from an automobile
accident. Fault in the accident was never at issue. The extent of injury
and permanence were the issues at trial. Plaintiff suffers the results of
some early developmental problems. He works part time for a local
supermarket, as a bagger. At trial, plaintiff made an excellent appearance,
giving a charming and candid explanation of the effects of his injury. The
jury’s award of $15,000 was very disappointing to plaintiff. He seeks a
new trial, or additur. In addition, plaintiff seeks to have the court conduct
an inquiry of two jurors regarding the possible receipt of information from
an excused juror, which may have affected the deliberations and verdict.

        At the start of trial, one juror, George Henry, indicated to the bailiff
that he wished to speak with the judge. In chambers, Mr. Henry indicated
that he had seen the plaintiff at a college hockey game, and during the
excitement of the game, had noticed plaintiff freely waiving his arms
about. This movement was certainly pertinent in an action claiming
shoulder injury. The court then excused Mr. Henry, all outside the
presence of the remaining jurors, admonishing him to leave without
telling the other jurors the reason for his premature departure. Mr. Henry,
who mentioned that his father-in-law is a judge and that the latter had told
him to report what he had witnessed and to expect this response, indicated
that he understood what the court was doing, and would comply. Plaintiff
now reports that Mr. Henry returned to the jury room, presumably to
retrieve his coat, and said “I‘m out of here.” When another juror asked
why, Henry responded “I saw something I should not have seen.” This
information about what transpired in the jury room, when Henry was
leaving, is reported to the court by plaintiff’s counsel, based on what he
was told by another juror. We assume it to be true. The court then
brought the jury out to start the trial, and explained the sudden departure
of their colleague by saying he was excused for having accidentally seen
something over the weekend, relating to a party.

        Plaintiff seeks to have two jurors questioned by the court about
these facts—the jury foreman and juror Lloyd Bachand. He presumably
selects the foreman ex officio, not because she has any particular
knowledge. Mr. Bachand is apparently selected on the basis of two facts.
First, during plaintiff’s cross-examination of the defense examining
physician, Bachand requested a break, presumably to use the bathroom.
Plaintiff suggests this request was improper, harmful because it cut up the
cross-examination and permitted the witness to reorganize his thoughts or
testimony. Second, Bachand apparently stated during deliberations that
he did not want to drive by and see that plaintiff had a “BMW in his
driveway,” presumably the result of a generous verdict. The juror who
related this statement to plaintiff’s counsel clearly implied that she, and
presumably others, wanted to award plaintiff a greater sum, but
compromised with Bachand to reach a verdict. That other juror came to
feel bad about the outcome.

        Plaintiff supports the idea of a court-directed inquiry into these
issues by citing Peterson v. Chichester, 157 Vt. 548 (1991). In that case,
the trial judge did conduct an inquiry of the jury foreperson to learn why
she had expressed some doubt to the clerk of the court upon delivering the
verdict. A careful reading of Peterson, however, reveals that the Supreme
Court did anything but sanction the trial court’s actions there. Peterson,
157 Vt. at 552. Pursuant to Evidence Rule 606(b),

       Upon an inquiry into the validity of a verdict ... a juror may
       not testify as to any matter or statement occurring during the
       course of the jury’s deliberations or to the effect of anything
       upon his or any other juror’s mind or emotions as
       influencing him to assent to or dissent from the verdict ... or
       concerning his mental processes in connection therewith,
       nor may his affidavit or evidence of any statement by him
       concerning a matter about which he would be precluded
       from testifying be received....

V.R.E. 606(b). It is difficult to imagine what the trial court in Peterson
could have asked the unfortunate foreperson, which would not have
contravened the quoted Rule. The Supreme Court rejects appellant’s
arguments that the inquiry was wrong, but only because appellant had
requested and obtained the inquiry in the first instance. Peterson, 157 Vt.
at 552. The correct reading of Peterson must be that both appellant and
the Supreme Court recognized that the inquiry of the foreperson was
improper—“Plaintiff’s maneuvering with the foreperson points out the
wisdom behind V.R.E. 606(b), which forbids a juror to testify about the
deliberation process....” Id.

       This discussion of 606(b) omitted an exception to the Rule’s
proscription—“the question of whether extraneous prejudicial information
was improperly brought to the jury’s attention....” Plaintiff attempts to
couch his argument in this exception, but we conclude that such efforts
misconstrue the Rule and its proper application to the situation now before
the court. As previously indicated, we accept as true plaintiff’s assertion
that excused juror Henry explained that he was “out of here” because he
had seen something over the weekend. To this we add the court’s
explanation that Henry’s action somehow related to one party. Plaintiff
suggests that the two must be seen by the jury as being necessarily related
to plaintiff, as fault was not at issue in the case. But this restrictive
inference is unwarranted. Henry might well have seen the defendant
drunk, or abusive, or driving carelessly, or displaying wealth from which a
large verdict might easily be satisfied. Plaintiff’s after-the-fact inference
simply reads too much into the two statements which jurors heard, the one
by their excused colleague, the other by the court. Standing alone, both
were bereft of any significant factual content. Adding the two together
does not support a jury inference that “our colleague must have seen the
plaintiff acting inconsistently with his claimed disability.” There is
neither evidence that this speculative addition actually occurred nor reason
suggestive of its likelihood. See State v. Hudson, 163 Vt. 316, 324–25
(1995) (rejecting an inference of extraneous influence as insufficient).
Were the court to engage in the sort of inquiry plaintiff seeks, it could
presumably ask if the foreman or Bachand heard any juror put the two
comments together in the way plaintiff suggests. That connection of the
two could have occurred prior to the start of deliberations, and thereby not
run afoul of 606(b). But this jury was repeatedly admonished not to
discuss the case or its evidence during the day of trial, and we will not
assume that the instruction was disobeyed. To inquire as to whether the
two “Henry statements” were discussed during deliberations, or whether
they influenced the thinking of either the foreman or Bachand would
clearly violate 606(b).

       We do not dismiss, out of hand, the possibility that the Henry
statements were perceived by one or more jurors in the way plaintiff
suggests. It could have happened. But we conclude the record does not
support a probability or even a significant chance that it did. State v.
Bogie, 125 Vt. 414, 418 (1966) (party seeking corrective action has the
burden to establish sufficient facts). This benign record is of a wholly
different character than that of the “inflammatory newspaper editorial”
introduced into the jury room which was held to justify a new trial in
Bellows Falls Village Corp. v. State, 123 Vt. 408 (1968). For that reason,
we decline to order a new trial on the basis of the present record. We
decline to attempt to amplify this record by juror inquiry for the reasons
stated above.
        The question of Juror Bachand’s two statements similarly lead to
the conclusion that they provide no basis for discarding the verdict.
Asking for a bathroom break is certainly not misconduct by a juror. If
anything, it permits quite the opposite conclusion, suggesting as it does
that the juror was experiencing interference with his concentration on the
ongoing examination. We think it promotes both consideration for the
rights of jurors and improved functioning in terms of concentration to
sanction their requesting a bathroom break in the midst of evidence.
Certainly one such request is not the basis for negative inferences
sufficient to discard a verdict. See Bogie, 125 Vt. at 418 (noting that the
mere separation of a juror from jury was not enough to constitute juror
misconduct). Finally, Mr. Bachand’s asserted disquiet over the possibility
of his verdict buying the plaintiff a new BMW constitutes precisely the
kind of “statement during deliberations” or “mental process” toward
which Rule 606(b) provides impermeable prophylaxis. Its ultimate
purpose is to encourage candid discussion in the jury room, and we may
not erode the law’s promise to all jurors. Tanner v. United States, 483
U.S. 107, 117–25 (1987).

        We consider the question of whether a new trial, perhaps
conditioned on acceptance of an additur, to be a close one. There is no
doubt that verdict was parsimonious at best. Plaintiff’s candid good
attitude about what he can still do should not obscure the fact that he is
apparently suffering a long-standing loss of function and resulting
discomfort. Nevertheless, we cannot conclude that the verdict is so far
below what was rationally commanded by the evidence as to be
unacceptable. It is, rather, one in a long line of low verdicts that seem to
reflect either a change in the way society views proper compensation for
soft-tissue injuries from everyday auto accidents or the unfortunate effect
of Vermont’s continued adherence to the minority requirement of
unanimity in order to secure a verdict in civil cases. See Shaw v. Barnes,
166 Vt. 610, 611 (1997).

        Considering the asserted “juror misconduct” issues and the low
award together, we are still not persuaded to vacate the verdict. See
Peterson, 157 Vt. at 551 (discussing trial court’s discretionary power to
grant new trials). There is no such thing as the perfect trial. The
interaction of diverse parties, lawyers, judges and twelve jurors almost
always results in something out of the ordinary. Slight deviations from
the pattern are not a proper basis for discarding the product. Moreover,
the plaintiff’s issues do not overcome the evidence, taken in a “light most
favorable to the jury’s verdict,” which supports the award. Shaw, 166 Vt.
at 611. Despite plaintiff’s disappointment, the award covers all of
plaintiff’s stated medical expenses with some additional for his pain and
suffering, which defendant contested. With such factual support, we are
loathe to disturb the verdict. Id.

       The motion for a new trial is denied.

       Dated at Burlington, Vermont, _________________, 200__.
__________________________
                     Judge
