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

[The text of this Vermont trial court opinion is unofficial. It has been 

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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