The Vermont Supreme Court recently issued an opinion in a Vermont medical malpractice case where a juror, who performed security work at the defendant hospital, received an email from the defendant hospital during the medical malpractice trial in which the hospital denied that it had done anything wrong in treating the medical malpractice plaintiff. Perhaps most astonishing is that neither the plaintiffs’ attorney nor the defendants’ attorney made any attempt to preclude the juror from serving on the medical malpractice jury.
After the Vermont medical malpractice jury returned its verdict in favor of the defendants, the plaintiffs, who had brought the medical malpractice lawsuit on behalf of their child who was injured during birth and allegedly suffered cerebral palsy as a result, filed a motion for new trial that alleged juror misconduct, including a claim that the juror read an e-mail sent by the defendant hospital to its employees during the trial, and therefore arguing that the verdict was tainted. The trial court denied the motion for new trial and the plaintiffs appealed.
The Trial Judge’s Admonishment To The Jury
At the conclusion of the first day of testimony, the trial judge gave a cautionary instruction to the jury to refrain from reading or hearing about the trial from outside sources, including the newspaper, and further instructed the jury that “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.” Thereafter, before testimony commenced on each day of the trial, 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 again cautioned the jurors not to do outside research or to read anything about the trial.
During the trial, an article appeared in a local newspaper regarding the medical malpractice trial, and the defendant hospital responded to the newspaper article by sending an e-mail to two different e-mail groups, which may have included the juror as a recipient. The email included the statement, “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.”
The parties’ respective attorneys apparently knew nothing about the defendant hospital’s email during the medical malpractice trial, and the plaintiffs’ attorney first became aware of the email approximately two weeks after the jury found in favor of the defendants. The plaintiffs’ motion for new trial argued, in part, 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 email essentially says that plaintiffs do not have a meritorious case.
However, the plaintiffs failed to produce any specific information that the juror ever actually saw the email or heard any conversations about it, and the plaintiffs’ attorney never made any attempt to discuss the email with the juror following the end of the juror’s term of service, to obtain a court order granting permission to do so prior to the expiration of the term, or to subpoena the defendant hospital’s email group information to discern which members of the hospital community received the email, regardless of whether they read it. Furthermore, during the trial, the juror never acknowledged nor disclosed receipt of the email or acknowledged that he read it, despite numerous specific inquiries by the trial judge to the jury panel regarding outside information concerning the trial.
In denying the plaintiffs’ motion for new trial, the trial court concluded that there was insufficient proof an irregularity had occurred but nevertheless concluded that even if it had, the content of the email was such that it could not have affected the verdict.
The Juror Misconduct Issue
The Vermont Supreme Court stated that 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, but jurors may properly testify in response to inquiries as to whether extraneous prejudicial information was brought before them.
The Vermont Supreme Court explained that the claim of juror misconduct in the present case 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.
During the medical malpractice trial, the parties disputed the standard of care required of the defendant hospital in response to a developing situation arising after normal business hours. The jury found that the plaintiffs had failed to establish the standard of care under the circumstances. The Vermont Supreme Court stated that because the email 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.
The Vermont Supreme Court further noted that the jurors were questioned daily about whether they had received any outside information and the response was uniformly that they had not. Therefore, the Vermont Supreme Court could not presume that the jury disregarded these instructions and inquiries from the trial judge (the rule is that juries are presumed to follow their instructions) – the Vermont Supreme Court stated that 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.
The Vermont Supreme Court held: “Considering the e-mail in light of the arguments properly raised by the [plaintiffs], 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 [plaintiffs] 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.” Therefore, the Vermont Supreme Court affirmed the lower court’s denial of the plaintiffs’ motion for a new trial.
Source Labate, et al. v. Rutland Hospital, Inc., et al., 2015 VT 128, No. 2014-463.
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