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 t o 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 tr ial, or in the alternative an additur. We deny both motions.

This is a personal injury action, in which plainti ff presentedevidence of a permanent shoulder injury resulting f rom 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 t ime for a local supermarket, as a bagger. At trial, plaintiff made an excellent appearance, giving a charming and candid explanation of the eff ects of his injury. The jury’s award of $15,000 was very disappointing to p laintiff. He seeks a new trial, or additur. In addition, plaintiff seek s to have the court conduct an inquiry of two jurors regarding the possible rec eipt of information from an excused juror, which may have affected the delib erations and verdict.

At the start of trial, one juror, George Henry, in dicated to the bailiff that he wished to speak with the judge. In chamber s, Mr. Henry indicated that he had seen the plaintiff at a college hockey game, and during the excitement of the game, had noticed plaintiff freel y 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 t o leave without telling the other jurors the reason for his prematu re 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 t his response, indicated that he understood what the court was doing, and wo uld comply. Plaintiff now reports that Mr. Henry returned to the jury roo m, presumably to

retrieve his coat, and said “I‘m out of here.” Whe n 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 co unsel, 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 explai ned the sudden departureof their colleague by saying he was excused for hav ing accidentally seen

something over the weekend, relating to a party.

Plaintiff seeks to have two jurors questioned by t he court about these facts—the jury foreman and juror Lloyd Bachan d. He presumably

selects the foreman ex officio, not because she has any particular knowledge. Mr. Bachand is apparently selected on t he basis of two facts. First, during plaintiff’s cross-examination of the defense examining physician, Bachand requested a break, presumably t o use the bathroom. Plaintiff suggests this request was improper, harmf ul because it cut up the cross-examination and permitted the witness to reor ganize his thoughts or testimony. Second, Bachand apparently stated durin g 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 verd ict. The juror who related this statement to plaintiff’s counsel clear ly implied that she, and presumably others, wanted to award plaintiff a grea ter 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 in quiry 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 co urt upon delivering the verdict. A careful reading of Peterson , however, reveals that the Supreme Court did anything but sanction the trial court’s a ctions 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 thecourse 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 ve rdict ... or concerning his mental processes in connection there with, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be preclud ed 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 rej ects appellant’s arguments that the inquiry was wrong, but only because appellant had requested and obtained the inquiry in the first ins tance. Peterson , 157 Vt. at 552. The correct reading of Peterson must be that both appellant and the Supreme Court recognized that the inquiry of th e foreperson was improper—“Plaintiff’s maneuvering with the forepers on 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 pr ejudicial information was improperly brought to the jury’s attention....” Plaintiff attempts to couch his argument in this exception, but we conclu de that such efforts misconstrue the Rule and its proper application to the situation now before the court. As previously indicated, we accept as t rue 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 ad d 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 b eing necessarily relatedto plaintiff, as fault was not at issue in the case . But this restrictive

inference is unwarranted. Henry might well have se en the defendant drunk, or abusive, or driving carelessly, or displa ying 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. Ad ding the two together does not support a jury inference that “our colleag ue must have seen the plaintiff acting inconsistently with his claimed di sability.” There is neither evidence that this speculative addition act ually occurred nor reason suggestive of its likelihood. See State v. Hudson , 163 Vt. 316, 324–25 (1995) (rejecting an inference of extraneous influe nce as insufficient). Were the court to engage in the sort of inquiry pla intiff seeks, it could presumably ask if the foreman or Bachand heard any juror put the two comments together in the way plaintiff suggests. T hat connection of the two could have occurred prior to the start of delib erations, 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 inqu ire as to whether the two “Henry statements” were discussed during delibe rations, 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 th at 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 whollydifferent character than that of the “inflammatory newspaper editorial”

introduced into the jury room which was held to jus tify 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 sim ilarly lead to the conclusion that they provide no basis for disca rding the verdict. Asking for a bathroom break is certainly not miscon duct by a juror. If anything, it permits quite the opposite conclusion, suggesting as it does that the juror was experiencing interference with h is concentration on the ongoing examination. We think it promotes both con sideration for the rights of jurors and improved functioning in terms of concentration to sanction their requesting a bathroom break in the m idst of evidence. Certainly one such request is not the basis for neg ative 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 disqu iet over the possibility of his verdict buying the plaintiff a new BMW const itutes 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 ju ry 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, p erhaps conditioned on acceptance of an additur, to be a cl ose one. There is no doubt that verdict was parsimonious at best. Plain tiff’s candid good

attitude about what he can still do should not obsc ure the fact that he isapparently suffering a long-standing loss of functi on 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 pr oper compensation for soft-tissue injuries from everyday auto accidents o r the unfortunate effect of Vermont’s continued adherence to the minority re quirement of unanimity in order to secure a verdict in civil cas es. 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 vacat e the verdict. See

Peterson , 157 Vt. at 551 (discussing trial court’s discreti onary power to grant new trials). There is no such thing as the p erfect trial. The interaction of diverse parties, lawyers, judges and twelve jurors almost always results in something out of the ordinary. S light deviations from the pattern are not a proper basis for discarding t he product. Moreover, the plaintiff’s issues do not overcome the evidence , taken in a “light most favorable to the jury’s verdict,” which supports th e award. Shaw , 166 Vt. at 611. Despite plaintiff’s disappointment, the aw ard covers all of plaintiff’s stated medical expenses with some addit ional for his pain and suffering, which defendant contested. With such fa ctual support, we are

loathe to disturb the verdict. Id

.

The motion for a new trial is denied.

Dated at Burlington, Vermont, _________________, 2 00__.__________________________ Judge