2015 VT 128
By Andrew Delaney
Juries are supposed to be free of outside influence. This appeal boils down to whether an email sent to hospital employees over the course of a trial influenced the jury. The trial court concluded that it did not and the SCOV concurs for the most part.
The Labates filed suit against Rutland Regional Medical Center (RRMC) (and related entities) and an individual doctor alleging medical malpractice associated with the birth of their daughter. Eventually, the case went to trial.
During voir dire—which translated from French means “to see to speak,” is pronounced differently all over the U.S., and just means “jury selection” but sounds a whole lot fancier—one of the prospective jurors disclosed that he worked for RRMC in security. He wasn’t kicked out of the jury pool by either side preemptively or for cause.
If you’re not familiar with the jury-selection process, each side has an opportunity to say that a potential juror should be removed from the venire—again, a fancy way to say “jury pool”—because the potential juror has some bias that means the juror is incapable of deciding the case fairly. For example, if Gargamel was in the pool on a Smurf case, he’d probably get booted for cause. Alternatively, lawyers have a number of “peremptory strikes” meaning that a lawyer can get rid of a jury-pool member (or venireman if you want to be fancy) just because the lawyer has a bad feeling about a jury-pool member or doesn’t like what the jury-pool member is wearing. As is often the case here, that’s the CliffsNotes version. To recap, neither of these things happened with the works-at-RRMC juror in this case and he ended up on the jury.
The jury was seated for the trial three months later, and the judge checked in with the jury members about whether they’d heard anything about the case. They had not. During the trial, the judge checked in every day with the jury about consulting outside sources and made sure that the jurors hadn’t done such things.
After deliberations, the jury found in favor of the doctor and RRMC, concluding “that the Labates had failed to prove the standard of care applicable to each defendant.” The SCOV accordingly opines that “the jury never considered whether any defendant had deviated from the appropriate standard of care or whether any deviation was a proximate cause of any injury.”
There was an article in the paper during the trial and RRMC sent out an email essentially saying that while it was terrible that the Labates’ child ended up with cerebral palsy, RRMC didn’t feel that it had done anything wrong and that its outside experts, its insurance carrier, and its attorneys agreed. Sometimes, when I write these summaries, I really, really have to bite my figurative tongue—this is one of those times.
At any rate, based on the juror’s prior disclosures and the email, about two weeks after trial, the Labates moved for a new trial. After the defendants responded, the Labates filed an amended motion. Though there was apparently a lot of other stuff going on, this appeal is just about the one email and its potential for spoiling the jury’s verdict. The SCOV points out that the Labates didn’t “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.”
The trial court eventually denied the motion without a hearing. The trial court reasoned that there was no evidence before it that the juror had actually received or seen the email during the trial and so the idea that the jury was tainted by it was wholly speculative. As far as the content of the email went, the trial court reasoned that it only contained what the jurors already knew—that RRMC was denying liability and that it had found experts and attorneys to agree with its position.
On appeal, the Labates argue that the trial “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 of proving facts within RRMC’s ‘peculiar’ control while relieving RRMC of its obligation to reveal what it knew.”
The SCOV begins its analysis by noting that whether an irregularity occurred is a question of fact for the trial court and that whether the irregularity was capable of influencing the jury is the most-important consideration.
The SCOV spends some time toying with what the burden of proof will be here. The Labates argue for the same standard as a criminal trial—that once an irregularity is established, the burden shifts to the state to establish that the error was harmless beyond a reasonable doubt.
The SCOV finally decides not to decide definitively, going to the abuse-of-discretion standard. In other words, whether the irregularity was established and whether it was capable of influencing the jury is a question left to the trial court. The SCOV isn’t going to dig too deep into it other than to give it a look-see for abuse of discretion.
Here, the trial court reasoned that there wasn’t enough evidence to establish an irregularity—and even if there was, it couldn’t have affected the verdict.
The SCOV looks at the governing Rule of Evidence (606(b) for you nerdy types), and concludes that the trial court was partially wrong in determining that evidence of outside influence needed to come from “non-juror evidence.” See, the rule allows for inquiry into “whether any outside influence was improperly brought to bear upon any juror” though you can’t get into deliberations or the mental processes or arguments of jurors. So the trial court was kind-of wrong.
But the SCOV concludes that the email couldn’t have affected the verdict because it doesn’t say anything about the standard of care, and that’s where the verdict landed—that the Labates’ failed to establish the standard of care.
The SCOV goes through the usual not-raised-below-so-not-considering recitation, concluding: “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.”
Read the email and decide for yourself. Personally? I think the email gives the jury the ability to say “mistakes happen,” standard of care be damned. Assuming it was read and made its way into deliberations, then I’d say there’s a problem. But, hey, I’m biased.