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.


                                        2015 VT 128

                                        No. 2014-463

Amy Labate & Robert Labate, Individually and                 Supreme Court
On Behalf of Minor Daughter, J.L.
                                                             On Appeal from
   v.                                                        Superior Court, Rutland Unit,
                                                             Civil Division
Rutland Hospital, Inc. d/b/a Rutland Regional Medical
Center and Santiago Cancio-Bello, M.D.
                                                             May Term, 2015


William D. Cohen, J.

Anthony Z. Roisman, Weathersfield, and Mark R. Mueller of Muller Law Offices, Austin, Texas,
 for Plaintiffs-Appellants.

Peter B. Joslin and Keith Aten of Theriault & Joslin, P.C., Montpelier, for Defendant-Appellee
 Santiago Cancio-Bello, M.D.

Allan R. Keyes of Ryan Smith & Carbine, LTD., Rutland, for Defendant-Appellee Rutland
 Hospital, Inc. d/b/a Rutland Regional Medical Center.


PRESENT: Dooley, Robinson and Eaton, JJ., and Morse, J. (Ret.) and Davenport, Supr. J. (Ret),
         Specially Assigned


        ¶ 1.   EATON, J. This is an appeal of a jury verdict in favor of Rutland Hospital, Inc.,

d/b/a Rutland Regional Medical Center, and related entities (“RRMC”)1 and Dr. Santiago Cancio-

Bello arising from injuries due to claimed medical malpractice in connection with the birth of

Amy and Robert Labates’ daughter on August 3, 2007. A jury trial was held in Rutland Superior

Court, Civil Division, between August 11 and August 22, 2014. Following the return of the jury

        1
          Although suit was brought against several entities related to Rutland Hospital, for ease
of reference they are jointly considered as RRMC, with the exception of Dr. Cancio-Bello.
verdict in favor of RRMC and Cancio-Bello, the Labates moved for a new trial on several

different grounds, many of which concerned alleged juror misconduct, including a claim that a

juror read an e-mail sent by RRMC to its employees during the trial and therefore tainted the

verdict. The trial court denied the motion without a hearing and this appeal followed. The only

issue before this Court concerns that e-mail. For the reasons stated herein, we affirm.

       ¶ 2.    On July 30, 2010, the Labates filed a complaint against RRMC and Cancio-Bello

for medical malpractice, see 12 V.S.A. § 1908, alleging that the care they rendered in delivering

the Labates’ child was negligent. Defendants answered individually, each denying all claims of

malpractice and asserting various affirmative defenses, and the case proceeded through discovery

to trial. On May 20, 2014, the parties drew a jury. During the voir dire, a prospective juror made

the following disclosure: “Just to put it out there to the court, I have worked there [RRMC] for 10

years, also, with the doctor. I pride myself—I’m pretty objective. I just want to put that out

there, the fact that I do objectively work there.”

       ¶ 3.    In follow-up questioning, the prospective juror disclosed that he did security work

at RRMC.2 The capacity in which he did the security work, whether as an employee of RRMC or

otherwise, was never established. At the conclusion of the voir dire, the parties exercised for-

cause and peremptory challenges to exclude certain jurors. The above-mentioned prospective

juror was neither challenged for-cause nor the subject of a peremptory challenge by any party.

None of the parties exhausted the entirety of their allotted peremptory challenges and the above-

mentioned prospective juror ultimately sat on the case through verdict.



       2
          As the transcript of the voir dire reflects, the prospective juror attempted to clarify what
he meant by “I do security there.” The record provided by the Labates indicates that the juror
said: “So I hold the people down while [Cancio-Bello] takes care of them.” The transcript
provided by Cancio-Bello recites that the juror said: “So I know the people (indiscernible).”
These discrepancies in the transcript, which were provided by two independent transcript
companies, reveals that the juror’s statements of “I do security there” is susceptible to at least two
interpretations.
                                                   2
       ¶ 4.    The trial began on August 11, 2014, nearly three months after the jury had been

selected. Before opening statements, the trial judge asked the jury panel: “And has anyone heard

anything about this case or done any outside research since the jury draw which was—which was

a few months ago?” None of the jurors indicated having heard anything about the case during the

interim.

       ¶ 5.    At the conclusion of the first day of testimony, the trial judge gave a cautionary

instruction to the jury as follows:

               The Rutland Herald reporter was here this morning. There might be
               an article in tomorrow’s newspaper. If there is, I would just instruct
               you not to read it, and I’ll ask—if it is in the paper, I will ask you
               tomorrow morning if you saw it and if you viewed it. I don’t expect
               it to be on any other type of—any other type of media, but most
               important is that you don’t utilize any outside research. The
               decision that you make in this case is going to be solely based on
               the testimony from the witnesses and the evidence that’s been
               produced in the trial. So with that, we’ll see you tomorrow.

Each day of trial, before the testimony commenced, the judge asked the jurors if they had heard or

read anything about the trial from outside sources, and each day, no juror indicated having heard

or read anything about the trial from any outside sources. At the conclusion of each day, before

discharging the jurors, the judge cautioned the jurors not to do outside research or to read

anything about the trial.

       ¶ 6.    On August 22, 2014, following deliberations, the jury returned a verdict in favor of

defendants, finding that the Labates had failed to prove the standard of care applicable to each

defendant. See 12 V.S.A. § 1908(1) (requiring, in a medical-malpractice suit, that plaintiff prove

“[t]he degree of knowledge or skill possessed or the degree of care ordinarily exercised by a

reasonably skillful, careful, and prudent health care professional engaged in a similar practice

under the same or similar circumstances whether or not within the state of Vermont”). Therefore,

in accordance with the verdict form, the jury never considered whether any defendant had



                                                 3
deviated from the appropriate standard of care or whether any deviation was a proximate cause of

any injury. See id. §§ 1908(2), (3).

       ¶ 7.    During the trial, an article did appear in a local newspaper. In response to the

article, RRMC sent an e-mail to two different e-mail groups,3 one labeled “RRHS All RRMC

Physicians,” the other “RRHS All RRMC Staff (no physicians),”4 which read:

               A special “Monday Update” given the article in today’s Herald
               about a trial going on involving [RRMC]. The suit is over the
               outcome of an [sic] birth which occurred in 2007. At the end of the
               process the child ended up having cerebral palsy. As I can
               personally attest this truly is incredibly unfortunate.

               As we all know, we do high risk work at [RRMC] just like every
               other hospital. From time to time things go wrong. If we feel we
               are at fault, we will apologize, take corrective action and, if
               appropriate, reach a settlement with the other party. In this case we
               did not feel we did anything wrong. We did not feel the physician
               did anything wrong. Outside experts, our insurance company and
               our attorneys all concurred. In these cases we will allow the case to
               come to court and let a jury decide.

               We clearly believe in this case that something tragic happened and
               we feel terrible for the family. The world is not always fair. Bad
               things sometimes happen. It does not always mean someone is at
               fault.




       3
            The trial court referred to the e-mail groups named as recipients in the e-mail as
“listservs.” The term “listserv” is apparently subject to a range of definitions, from being simply
a “group in which the sender can send one email and it will reach a variety of people,” see Idaho
State Univ. Faculty Ass’n for the Pres. of the First Amendment v. Idaho State Univ., 857 F. Supp.
2d 1055, 1058 n.2 (D. Idaho 2012) (quotation omitted), to being an automated mailing list that
allow users to subscribe to particular topics and can be either managed automatically or by a
human moderator, see Barrett v. Catacombs Press, 44 F. Supp. 2d 717, 721 n.1 (E.D. Pa. 1999)
(citation omitted). It is unclear from the record which, if either, of these definitions might apply
to “RRHS All RRMC Physicians” and “RRHS All RRMC Staff (no physicians),” the only named
recipients of the e-mail. As a matter of simplicity and to avoid confusion, we refer to these
recipients simply as “e-mail groups.”
       4
         The record reveals nothing about these e-mail groups other than the name assigned to
them, which is reflected in the e-mail header information. There is no information about who or
what owns them, i.e., are they personally or institutionally maintained, how often they are
updated, whether they are as all-inclusive as their naming convention suggests, the quantity of e-
mail addresses contained within each, or even specifically what e-mail addresses are included.
                                                 4
There is no indication that any party was aware of this e-mail during the trial. The Labates first

raised a concern about this e-mail about two weeks after the jury returned their verdict, as part of

a motion for new trial filed on September 8, 2014.

          ¶ 8.    The Labates’ motion for a new trial references the e-mail under a section header

labeled “Attorney Misconduct.” This initial reference states, in relevant part, that “[a]ny potential

for jury misconduct, confusion, or failure to follow instructions was increased by . . . an email

sent by RRMC’s CEO to all doctors, staff and employees during the trial stating that RRMC had

done nothing wrong and that their insurance, consultants and counsel had all agreed.” The motion

points out that at least one juror worked for RRMC and that the “email was calculated to impact

jurors’ opinions by comments that are not evidence but imply that the evidence supports

Defendants’ case” and that the e-mail “essentially says that Plaintiffs do not have a meritorious

case.” The vast majority of the motion, however, concerns issues that are not the subject of this

appeal.

          ¶ 9.    After defendants filed their opposition to the motion, but before the court ruled on

the motion, the Labates filed an amended motion for a new trial, moving the reference to the e-

mail from the section entitled “Attorney Misconduct” to a section entitled “Improper Juror

Influence.” This amended motion again makes only the same very short reference to the e-mail as

the original post-trial filing and argues the same point that the e-mail “essentially says that

Plaintiffs do not have a meritorious case” and that “[t]he email was calculated to impact jurors’

opinions by comments that are not evidence but imply that the evidence supports Defendants’

case.” A supplemental filing made in further support of the motion for a new trial does not even

mention the e-mail.

          ¶ 10.   The Labates, in their amended motion, as relates to the e-mail, asserted that “[a]t

least one juror on the jury worked at the hospital as a security guard and thus would have received

this email or at least overheard conversations about it at work.” The Labates, however, never

                                                   5
produced any specific information that the juror ever actually saw the e-mail or heard any

conversations about it. Nothing in the record indicates that the Labates, following the return of

the jury verdict, made any attempt to discuss the e-mail with the juror following the end of the

juror’s term of service, obtain a court order granting permission to do so prior to the expiration of

the term, or subpoena RRMC’s e-mail group information to discern which members of the RRMC

community received the e-mail, regardless of whether they read it. During the trial, the juror

never acknowledged nor disclosed receipt of the e-mail or acknowledged that he read it, despite

numerous specific inquiries by the trial judge to the jury panel regarding outside information

concerning the trial.

       ¶ 11.   On November 17, 2014, without holding a hearing on the motion, the court issued

a written decision denying the Labates’ amended motion for a new trial. The court noted that the

evidence before it concerning the e-mail did not include any indication that the juror had

knowledge of the e-mail—there was no evidence that he was attending work when the e-mail was

circulating; was attending work or checking work e-mail during the trial; was part of one of the e-

mail groups to whom the e-mail was sent; or was normally in contact with those who were part of

the e-mail groups. Given that evidentiary record, the court found it was entirely speculative that

the e-mail was ever sent to the juror or that he read it at any time during the trial.

       ¶ 12.   Despite the court’s findings about the lack of any actual knowledge that the juror

may have had about the e-mail, the court denied the motion as it pertained to the content of the e-

mail, finding that the e-mail “contains only that which the jury already knew: that [RRMC] was

denying liability and that it had found experts and attorneys who agreed with its decision to do

so.” Whether the security guard in fact received this e-mail was irrelevant because the content

was not disclosing any new information.

       ¶ 13.   On appeal, the Labates assert that the court erred in: (1) concluding that the e-mail

was incapable of influencing the jury’s verdict, and (2) insisting that the Labates had the burden

                                                   6
of proving facts within RRMC’s “peculiar” control while relieving RRMC of its obligation to

reveal what it knew.

       ¶ 14.   Whether an irregularity occurred is a question of fact for the trial court. See

Losier v. Ravi, 362 S.W.3d 639, 647 (Tex. App. 2009). “[T]he test is not whether the irregularity

actually influenced the result, but whether it had the capability of prejudicing the verdict.”

Bellows Falls Vill. Corp. v. State Highway Bd., 123 Vt. 408, 414, 190 A.2d 695, 699 (1963)

(emphasis added).

       ¶ 15.   The Labates urge this Court to apply the test and burdens of proof for establishing

juror misconduct utilized in criminal cases:

               Once a defendant sets forth sufficient evidence that an irregularity
               occurred and that it had the requisite capacity to affect the verdict,
               the State bears the burden of demonstrating that the irregularity did
               not actually prejudice the jurors against defendant, generally but not
               exclusively by demonstrating that the error was harmless beyond a
               reasonable doubt.

State v. Mead, 2012 VT 36, ¶ 13, 192 Vt. 1, 54 A.3d 485. “This protection flows from the Sixth

Amendment guarantee that the evidence developed against a defendant shall come from the

witness stand in a public courtroom where there is full judicial protection of the defendant’s right

of confrontation, of cross-examination, and of counsel.” Id. ¶ 12 (quotation omitted). In contrast,

“[t]he right to trial by jury in civil cases is guaranteed by the Vermont Constitution, Chapter I,

Article 12, and the United States Constitution, Seventh Amendment.” Harrington v. Decker,

134 Vt. 259, 261, 356 A.2d 511, 512 (1976) (per curiam). When it comes to juror misconduct in

the civil context, we have not yet had occasion to address the allocation of the burden of proof,

and we find it unnecessary to do so here as our resolution of the issues on appeal does not turn on

who had the burden to establish capability of prejudicing the verdict. Cf. Markee v. Biasetti,

575 N.E.2d 1083, 1085-86 (Mass. 1991) (Wilkins, J., concurring) (arguing that majority’s

adoption of criminal allocation of burden of proof in civil context is inappropriate, but


                                                 7
nonetheless concurring with the decision because “[t]he difference in the placing of the burden

concerning prejudice makes no difference in the conclusion the court and I reach” because jury

“went so far beyond their proper role . . . that the likely prejudice to the plaintiffs is established as

a matter of law”). For this reason, we find the Labates’ reference to the United States Supreme

Court decision in Mattox v. United States, 146 U.S. 140, 150 (1892) for the proposition that

“[p]rivate communications, possibly prejudicial, between jurors and third persons, or witnesses,

or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their

harmlessness is made to appear” to be unavailing.

        ¶ 16.   We note, however, that the states that have addressed the issue of burden of proof

in the civil context have not reached a unanimous conclusion on the proper allocations—some

states place the burden on the moving party to establish prejudice, see, e.g., D.B. & J. Holden

Farms Ltd. P’Ship v. Ark. State Highway Comm’n, 218 S.W.3d 355, 357 (Ark. Ct. App. 2005)

(“Following allegations of juror misconduct, the moving party bears the burden of proving that a

reasonable possibility of prejudice resulted from any such juror misconduct.”), while others place

the burden on the nonmoving party to establish no reasonable likelihood of prejudice, see, e.g.,

Markee, 575 N.E.2d at 1085 (finding “no reason to depart from reasoning” underlying burden-

shifting scheme for establishing juror misconduct in a criminal case for civil cases, and thus

holding that once moving party establishes that jury was exposed to outside influence, “the

burden shifts to the nonmoving party to demonstrate that there is no reasonable likelihood that the

party was prejudiced by what occurred”). See also Cooch v. S & D River Island, LLC, 85 A.3d

888, 898-902 (Md. 2014) (providing very detailed and thorough historical analysis of

development of law in Maryland underlying motions for new trials in context of juror misconduct

and recognizing that establishing proof of prejudice in civil context is separate and distinct from

establishing prejudice in criminal context); Fitzpatrick v. Allen, 575 N.E.2d 750, 797 (Mass.

1991) (Abrams, J., concurring) (citing cases from various jurisdictions and indicating preference

                                                   8
for rule that “the moving party show that he was prejudiced by the extraneous material before the

jury” but recognizing observation from Markee, 575 N.E.2d at 1085 that “place[s] the burden on

the nonmoving party to demonstrate that there was no reasonable likelihood that the jury were

influenced by the extraneous material”).

       ¶ 17.   In this case, the trial court suggested there was insufficient proof an irregularity

had occurred but nevertheless concluded that even if it had, the content of the e-mail was such

that it could not have affected the verdict. Whether alleged juror misconduct has prejudiced the

trial process is a matter for the discretion of the trial judge. See, e.g., D.B. & J Holden Farms,

218 S.W.3d at 357 (“Whether prejudice occurred is . . . a matter for the sound discretion of the

trial court.”); Smith v. State, 432 N.E.2d 1363, 1367 (Ind. 1982) (“It is well settled that juror

misconduct is in the first instance a question for the trial court and the decision to grant or deny a

mistrial is a matter committed to the trial court’s discretion, reviewable solely on the issue of

abuse of discretion.”). Our review is, therefore, to determine whether the trial court has abused its

discretion. See Bellows Falls, 123 Vt. at 414, 190 A.2d at 699 (finding no abuse of discretion in

trial court’s granting motion for new trial where jurors had received information outside of trial);

see also State v. Savo, 141 Vt. 203, 208, 446 A.2d 786, 789 (1982) (explaining that discretionary

rulings will be upheld “if there is a reasonable basis for the court’s action” and that error will be

found only where the court either failed to exercise its discretion or “exercised it for reasons

clearly untenable or to an extent clearly unreasonable”).

       ¶ 18.   Vermont Rule of Evidence 606(b) follows the long-established Vermont practice

of protecting the jury’s deliberative process from disclosure while still allowing juror testimony

on whether improper information had been presented to the jury. See Reporter’s Notes, V.R.E.

606 (explaining that Vermont case law and Rule 606 recognize distinction “between the facts of

outside influence or information and their effect”); Bellows Falls, 123 Vt. at 411-12, 190 A.2d at

697-98 (recognizing that “[t]he expressions of the jurors, their arguments and motives, their fears

                                                  9
and hopes, the individual juryman’s state of mind are communicated with confidence that they

will be kept secret beyond the jury room” and that “[t]he preservation of this confidence is vital to

the constitutional function of the jury system, and is entitled to cautious protection” but that

“misbehavior, even though it may have been the subject of comment among the jurors, is not

entitled to the privileged secrecy of the jury room”). Rule 606(b) provides:

                Upon an inquiry into the validity of a verdict or indictment, 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
               that or any other juror’s mind or emotions as influencing the juror
               to assent to or dissent from the verdict or indictment or concerning
               the juror’s mental processes in conjunction therewith. But a juror
               may testify about (1) whether extraneous prejudicial information
               was improperly brought to the jury’s attention, (2) whether any
               outside influence was improperly brought to bear upon any juror,
               (3) whether there was a mistake in entering the verdict onto the
               verdict form, or (4) whether any juror discussed matters pertaining
               to the trial with persons other than fellow jurors. A juror’s affidavit
               or evidence of any statement made by the juror may not be received
               on a matter about which the juror would be precluded from
               testifying.

Thus, courts will not consider attempts through the jurors themselves to establish misconduct

occurring during the jury deliberations concerning the mental processes or arguments of jurors.

Jurors may, however, properly testify in response to inquiries as to whether extraneous prejudicial

information was brought before them. See id.; Bellows Falls, 123 Vt. at 411-12, 190 A.2d at 697-

98.

       ¶ 19.   Here, the claim of juror misconduct involves the potential consideration of

extraneous information, and inquiry of jurors themselves would be proper under V.R.E. 606(b) to

the point of determining whether such information had been brought before the jury. The impact

of such information on the jury deliberations, however, would not be a proper area of inquiry into,

or testimony by, a juror as that would invade the jury’s deliberative process. If misconduct were

established, the impact of the consideration of that information, and its effect on a fair trial, would

be solely for the trial court’s determination.

                                                  10
       ¶ 20.   Accordingly, the trial court here was partially incorrect in its interpretation of the

two-step process discussed in Bellows Falls and articulated in V.R.E. 606(b). The trial court

erroneously stated that evidence of whether outside influence occurred must be produced by

“non-juror evidence.” As noted above, whether there has been an outside influence or whether

extraneous prejudicial information has been brought before the jury are proper areas for which

inquiry of the jurors is specifically allowed under our case law and Rule 606(b).5

Notwithstanding that erroneous statement of the law, the trial court was correct that the second

prong—whether the information had the capacity to affect the jury’s verdict—is a matter upon

which inquiry may not be made of the jurors.

       ¶ 21.   In a medical-malpractice action, the plaintiff bears the burden of proof to establish

the appropriate standard of medical care and that a departure from that standard occurred.

Senesac v. Assocs. in Obstetrics and Gynecology, 141 Vt. 310, 313, 449 A.2d 900, 902 (1982).

The trial judge submitted this case to the jury using a verdict form with special interrogatories to

be answered. Contained within the interrogatories were questions asking if the jury found that the

Labates had proven the appropriate standard of care to be used by RRMC and Cancio-Bello, both

of which the jury answered in the negative.

       5
           Vermont Rule of Professional Conduct 3.5 expressly contemplates the idea that counsel
may seek to communicate with jurors either before their term of service has been completed or
thereafter. If the juror’s term of service has yet to be completed, counsel may not communicate
with said juror “except by leave of court for good cause shown and under such terms as the court
shall determine.” V.R.P.C. 3.5(b)(2); Reporter’s Notes 2009 Amendment, V.R.P.C. 3.5(b)(2) (“A
juror’s term of service is concluded when that juror has been summoned for voir dire three times
within a two-year period pursuant to Rules 6 and 9 of the Rules for Qualification, List, Selection
and Summoning of All Jurors.”). If, on the other hand, the juror’s term has been completed,
counsel may seek to communicate with the juror unless such communication is prohibited by law
or court order; the juror has made known that he or she does not wish to speak with counsel; or
the communication “involves misrepresentation, coercion, duress, or harassment.” V.R.P.C.
3.5(c). In this sense, counsel for the Labates was free to seek to communicate with any juror that
counsel believed may have received the e-mail underlying this appeal, subject to the
aforementioned limitations. Had the jurors’ terms of service not been up, counsel could have
moved for leave of court for good cause shown to seek to speak with any juror regarding receipt
of the e-mail.

                                                 11
        ¶ 22.   Even assuming, as the trial court did, that the e-mail at the heart of this appeal was

ever read by the juror, it contained no discussion of the standard of care required of either

defendant.6 A matter of dispute in the case was the standard of care required of a local hospital

such as RRMC in response to a developing situation arising after normal-business hours. Broadly

construed, the e-mail asserted that RRMC “had done nothing wrong”—in other words, that they

had met the applicable standard of care, whatever that may be. Subsequent interrogatories to the

jury requested that they determine if either defendant had deviated from the appropriate standard

of care, a question not reached by the jury.7

        ¶ 23.   The Labates’ failure to establish the requisite standard of care is quite a different

matter than failing to establish that either defendant deviated from that standard. Had the jury

determined that the Labates had established the proper standard of care but that there had been no

deviation from that standard, a potentially stronger argument might be made that the e-mail, if

read, may have had an influence on at least one of the jurors. The jury, however, never reached

that question in their deliberations. Because the e-mail contained nothing regarding the nature of

the standard of care, it had no capacity to influence the jury on the questions on which they found

a failure of proof, i.e., what constituted the standard of care in the first instance.

        ¶ 24.   The jury in this case was painstakingly reminded by the trial judge not to read

anything from outside sources and to base its verdict solely on the evidence presented in court.

Additionally, they were questioned daily about whether they had received any outside

        6
          Because we assume arguendo that the e-mail was received and read by the juror, we
need not and do not address the applicability of the “mailbox rule” to an e-mail.
        7
          When the jury initially returned its verdict, the foreperson had improperly filled out the
verdict form indicating that Cancio-Bello had not deviated from the appropriate standard of care
but had left the establishment of the standard of care question blank as to him. The judge
questioned the foreperson concerning this issue and gave the jury an opportunity to discuss its
verdict further. Upon its return, the foreperson indicated that he had made a mistake initially and
had placed a check mark in the wrong question (question 5 instead of 4). The revised verdict
form indicated that the Labates had not established the appropriate standard of care as to either
defendant and the response to question 5 was deleted.
                                                 12
information. At every inquiry, the response was uniformly that they had not. We cannot presume

that the jury disregarded these instructions and inquiries from the trial judge. In fact, quite to the

contrary, the rule is that “ ‘juries are presumed to follow their instructions.’ ” Zafiro v. United

States, 506 U.S. 534, 540-41 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 211 (1987)).

Although not the basis for the court’s denial of a new trial, the evidence in the existing record of

whether an irregularity occurred at all was far from convincing and well short of the assumption

that it was read by the juror as urged by the Labates.

        ¶ 25.   As noted, the argument raised below concerning the e-mail was extremely narrow,

asserting only that the e-mail “was calculated to impact juror’s opinions by comments that are not

evidence but imply that the evidence supports Defendants’ case.” On appeal to this Court, the

Labates raise several new theories concerning the potential impact of the e-mail, including various

claims under the Vermont Constitution that the e-mail impacted the right to an impartial jury and

constructions of the e-mail as improperly introducing character evidence, none of which were

raised in their arguments below. This Court has long recognized that the trial court may not be

put in error by an appellant advancing a theory on appeal that was not raised before the trial court.

See, e.g., Roberts v. Chimileski, 2003 VT 10, ¶ 14, 175 Vt. 480, 820 A.2d 995 (“As is so often the

case, plaintiffs fully stated their new theory for the first time only in this Court, after their initial

theory failed in the trial court. Therefore, we find that plaintiffs failed to raise below and offer

sufficient proof for their . . . [new] theory, and we will not address this issue here.”); Robillard v.

Tillotson, 118 Vt. 294, 302, 108 A.2d 524, 529 (1954) (“A question not raised below is not for

consideration here. Neither may a trial court be put in error on a point not made below.”),

abrogated on other grounds by Demag v. Better Power Equip., 2014 VT 78, 197 Vt. 176, 102

A.3d 1101. The broad statement in the motion below concerning the e-mail did not put the trial

court on notice of the arguments the Labates now make. The trial court had no opportunity to



                                                   13
consider the various theories now advanced concerning the e-mail and therefore those theories are

not properly before this Court and we shall not address them.

       ¶ 26.   Considering the e-mail in light of the arguments properly raised by the Labates, the

trial court was correct that the e-mail did not have the capacity to affect the verdict. The trial

court was also correct that the e-mail’s content was primarily a denial of any wrongdoing, a point

squarely before the jury throughout the trial. In addition, the jury’s verdict—that the Labates had

failed in establishing the applicable standards of care—had nothing to do with anything contained

in the e-mail. Although our prior case law has established a two-prong test in cases of alleged-

juror misconduct or extraneous-outside information, it was not necessary for the trial court to

determine whether the irregularity had occurred in this instance. Even if the irregularity had

occurred, the court’s determination that it had no capacity to affect the verdict was not an abuse of

discretion.

       Affirmed.

                                               FOR THE COURT:



                                               Associate Justice




                                                 14
