Charitable Bias

By Nicole Killoran

McCormack v. Rutland Hospital, 2013 VT 59.

Today’s case is an example of how not to get a disfavorable verdict set aside for juror bias.  In 2005, Plaintiff went to the emergency room at the Hospital with appendicitis.  Hospital’s doctor misdiagnosed Plaintiff.  As a result his appendix ruptured, requiring emergency surgery, and Plaintiff suffered post-surgery complications.

Plaintiff tried to sue the pants off hospital and the doctor who misdiagnosed him.  Hospital hired a prominent local firm, to defend.  The case was eventually scheduled for a jury trial in December 2011. 

Among the eager citizens awaiting their chance to take unpaid time off work to be given a number and herded like so much reasonable cattle into the voir dire and jury empaneling in October 2011 was one taciturn Juror R, a public relations coordinator for Central Vermont Public Service (“CVPS”).  As we shall see, Juror R’s quietude, her occasional experience coordinating charitable food and blood drives for CVPS, and both Hospital’s and Hospital’s attorney’s tendency to give to charity, form the basis of this appeal.

During jury selection, the trial court asked potential jurors whether “any of you know that you know something about the case or . . . about the parties or the attorneys.”  Juror R remained silent.  Later on, Plaintiff’s counsel asked whether any of the potential jurors “knows any of us or any of the parties so as to prevent you from being fair and impartial in this case.”  Juror R again remained silent.

When the case went to trial, the jury returned a verdict in favor of hospital and the doctor.  Plaintiff, likely miffed, started googling, and discovered that between 2007 and 2011, Juror R was the public relations contact responsible for coordinating donations for CVPS’s “Fill the Cupboard Challenge” food drive and its “Gift-of-Life Marathon” blood drive.  Plaintiff found that both Hospital, and Hospital’s attorneys, were significant contributors to these drives most years, and that both were given honorable mentions some years for their charitable giving.

Plaintiff’s counsel printed off a bunch of “publicized snippets” from the advertisements and publications for these drives, and dropped a motion for new trial on the trial court’s desk 28 days after the verdict was entered.  Hospital’s counsel filed an opposition, and the trial court denied the motion, relying on the arguments made in hospital’s pleading.  Plaintiff appealed.

On appeal, Plaintiff cries both actual and implied bias in his attempt to set aside the verdict in hospital’s favor.  Hospital for its part quibbles about the timeliness of Plaintiff’s motion for new trial.

The SCOV takes up the easy part first.  Was Plaintiff’s motion timely?  It depends on which Rule of Civil Procedure you apply.  Hospital claims Plaintiff’s motion is based on “newly-discovered evidence,” under V.R.C.P. 59 and 60(b)(2), while Plaintiff claims his motion is more appropriately under V.R.C.P. 60(b)(6)’s catch-all interests-of-justice-if-made-within-a-reasonable-time standard.  Hospital retorts that, even if the latter rule applies, Plaintiff’s motion was not made within a reasonable time.

The SCOV rolls its eyes and decides that Plaintiff’s motion was timely, in the process digging into an analogy from the Rules of Criminal Procedure where the Court concluded that evidence of possible juror bias is not by itself newly-discovered evidence justifying a retrial.  At any rate, the SCOV says, even though Plaintiff’s motion included the phrase “newly-discovered evidence,” Rule 60(b)(6) applies, and less than a month after the verdict is a reasonable time for filing.  It’s a integrity of the jury question, and that’s just the way it is.

After clearing the timeliness air, the SCOV moves on to the first of the two substantive issues in this case: whether the trial court abused its discretion in denying Plaintiff’s motion for retrial on the grounds of actual juror bias.  For this, the SCOV relies on the standard it set up in In re Nash, and considers initially whether Juror R answered a material question dishonestly during voir dire.

Plaintiff argues that Juror R’s silence in the face of the Court’s “do you know if you know” question shows she was biased.  But the SCOV disagrees.  There is no indication that Juror R was trying to pull one over on Plaintiff’s counsel by remaining honestly silent when asked if she knew whether she knew anything about the case, the parties, or the attorneys.  Plaintiff’s counsel acknowledged that it would be hard, in a town as small as Rutland, Vermont, with Hospital as its only major health care facility, to find a juror with zero knowledge of the place or the hospital’s attorneys.  The courts have to trust jurors’ statements that they will decide a case impartially, and the trial court reasonably concluded that Juror R was being honest.

The SCOV also finds the trial court’s question to be confusingly vague, and not specific enough to elicit the information Plaintiff apparently thought Juror R should have provided.  Jurors span society, encompassing all “walks of life” and levels of education, not to mention comprehension of the subtleties of the English language.  Even if Juror R “knew” something about Hospital, or its counsel, in light of the vague question the SCOV concludes that Juror R’s silence doesn’t mean she was biased.  To find otherwise, the SCOV says, would be to impose an impossible standard of perfection on the jury trial system.  Lesson to attorneys: be bold and be clear in your voir dire.  Plaintiff loses on the actual bias question.

But Plaintiff has another card up his sleeve: Did the trial court abuse its discretion in refusing to find implied bias where Plaintiff thinks Juror R intentionally failed to disclose her “pecuniary” and “powerful trust” relationship with Hospital and its attorneys?  On this question, the courts may infer that a juror was biased if the juror had such a close relationship with a party or counsel that her impartiality is legitimately in question.  This type of bias analysis is reserved for “exceptional situations” in which a juror’s connections with a party or attorney falls under the “no *$&#” category.

Plaintiff’s argument on this point is split into three mini-questions.  First, was Juror R’s silence a deliberate concealment of material information entitling Plaintiff to a new trial?  For this, the SCOV peeks through the lens of United States v. Columbo, a case in which a juror did not disclose that her brother-in-law was a government lawyer (albeit a rumpled one) in response to a question whether the jurors had a close lawyer friend or family member.

But the Columbo case demonstrates precisely why Plaintiff is wrong and why the trial court was right: the juror in Columbo intentionally concealed the information about her brother-in-law because she wanted to sit on the jury.  Here, Plaintiff can’t point to anything indicating Juror R deliberately concealed anything.  The trial court got it right.

Second, should the trial court have found that Juror R’s “pecuniary relationship” with Hospital and its attorneys implied bias?  For this question, the SCOV has to dig into one of the Roman Catholic Diocese cases decided in the last decade after the Catholic priest sexual abuse scandal exploded.  In Turner, the juror was a member of the parish involved in the suit.  The SCOV created a standard in Turner to address this issue: implied bias depends on whether the litigation could have a substantial economic effect on economic viability of the organization.

Unlike in Turner, where there was a very real possibility of a financial impact of the suit on the defendant priest’s parish, here the SCOV finds no indication that Juror R had any personal or financial stake in the outcome of the suit.  She was neither a member nor a stockholder of hospital or its attorneys.  The fact that part of Juror R’s job involved encouraging people to donate cans of tuna and boxes of pasta, or blood in exchange for a gift bag of coupons from local businesses, does not mean that this is an “exceptional situation” justifying a finding of bias.  Where Juror R had no stake, let alone a personal one, in the financial success of hospital or its attorneys, the trial court again got it right.

Third, and finally, did Juror R’s relationship with hospital or its attorneys constitute a “powerful trust” relationship necessitating a finding of implied bias?  For this, the SCOV looks briefly at two cases, a medical malpractice case involving a juror who was a patient of the doctor being sued, and a prison-guard-assault case involving a juror who was the mother of the secretary at the prosecutor’s office and the aunt of a guard at the same state prison.

But Plaintiff loses here too.  The SCOV understands that human nature may, where there is a close relationship such as in these two cases, justify a finding of implied bias.  But Juror R’s relationship here was one of a public relations coordinator accepting donations from two local businesses, and did not involve nearly the same amount of trust and confidence as in the two examples.  Without some indication that Juror R had a personal stake in the charities, and the donations, the trial court got this one right too.

Perhaps the result would be the different if Juror R had been so impressed with hospital, or hospital’s counsel’s, charitable giving she had bought stock in the company or helped them coordinate their own charity drives in her “free time.”  But, alas, Plaintiff is out a verdict, a pretty penny in medical bills, and an appendix.  Oh well—he didn’t really need that organ anyway.