McCormack v. Rutland Hospital, Inc. d/b/a Rutland Regional Medical Center and DiMuzio

2013 VT 59, 79 A.3d 864, 194 Vt. 242, 2013 WL 3957586, 2013 Vt. LEXIS 54
CourtSupreme Court of Vermont
DecidedAugust 2, 2013
Docket2012-104
StatusPublished
Cited by1 cases

This text of 2013 VT 59 (McCormack v. Rutland Hospital, Inc. d/b/a Rutland Regional Medical Center and DiMuzio) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCormack v. Rutland Hospital, Inc. d/b/a Rutland Regional Medical Center and DiMuzio, 2013 VT 59, 79 A.3d 864, 194 Vt. 242, 2013 WL 3957586, 2013 Vt. LEXIS 54 (Vt. 2013).

Opinion

Burgess, J.

¶ 1. Plaintiffs appeal the superior court’s denial of their motion for a new trial based on allegations of juror bias. The issues presented are whether (1) plaintiffs’ motion for a new trial was timely, (2) the trial court erred in denying the motion under the test for juror bias set forth in In re Nash, 158 Vt. 458, 614 A.2d 367 (1991), and (3) the trial court erred in denying the motion under the doctrine of implied bias. We affirm.

¶ 2. The undisputed facts may be summarized as follows and additional relevant facts are stated as necessary. In April 2008, plaintiffs Gilbert McCormack and Shelagh McCormack filed a civil action against Dr. Henry R. DiMuzio, Jr. and Rutland Regional Medical Center (RRMC) under theories of medical malpractice and vicarious liability, respectively. Plaintiffs founded their claims on a purportedly negligent diagnosis of plaintiff Gilbert McCormack’s appendicitis condition at the emergency department of RRMC in April 2005, claiming it led to the rupture of his appendix, emergency surgery, and numerous post-operative complications. After extensive discovery, voir dire and empaneling of the jury took place on October 11, 2011. Trial commenced on December 5, 2011, and the jury returned a verdict in favor of defendants on December 12, 2011.

' ¶ 3. Events transpiring at and after the October 11, 2011 jury selection are the subject of this appeal and an account of those proceedings is revealing. Following some opening remarks, the trial court explained to the panel the need to select “fair and impartial” jurors. To illustrate, the court posited several situations which would call into question a juror’s partiality, such as a case *245 involving a juror’s neighbor, a matter with which the juror was personally familiar, or a factual scenario very similar to one in the juror’s own life.

¶ 4. Before either parties’ counsel began questioning the jury panel, the trial court stated:

[T]he case, in a very general way, is about medical care received at the Rutland Regional Medical Center in April of 2005.
[D]o any of you know that you know something about the case or something about the parties or the attorneys or that you have some sort of prescheduled, prepaid travel or surgery or something like that during that period?

Two jurors reported conflicting school schedules and another responded “I’m familiar with the names of the attorneys but [do] not personally have knowledge of either of the attorneys, just to acknowledge that.” Like twenty other prospective jurors, one Juror R remained silent.

¶ 5. Plaintiffs’ counsel then questioned the panel. After inquiring about scheduling conflicts, plaintiffs’ counsel stated, in relevant part:

I’m Michael Regan, and my office is in Waitsfield, Vermont up near Sugarbush, and John Bloomer will serve as co-counsel. He’s . . . from here in Rutland. [Plaintiffs] are both Rutland residents. Mr. Zawistoski and his firm, Ryan Smith & Carbine, are here in Rutland. His client is [defendant], who is an emergency room physician at Rutland Regional Medical Center.
Initially is there anybody herb who knows any of us or any of the parties so as to prevent you from being fair and impartial in this case?

Several jurors responded to this question by recounting relationships potentially affecting their partiality while, again, Juror R remained silent.

¶ 6. It was Juror R’s silence in the face of the court’s question “do any of you know that you know something about the case or something about the parties or the attorneys” and plaintiffs’ counsel’s question “is there anybody here who knows any of us or *246 any of the parties so as to prevent you from being fair and impartial in this case” that prompted plaintiffs’ complaints of juror bias below and now on appeal. In the weeks after the verdict it came to plaintiffs’ counsel’s attention that, for several years leading up to the instant case, Juror R worked in public relations for the area’s electric utility, Central Vermont Public Service Corporation (CVPS), and was publically involved in promoting community food and blood drives. Counsel also learned that RRMC and its law firm, Ryan Smith & Carbine, had been generous contributors to these charitable efforts.

¶ 7. On this basis, on January 9, 2012, plaintiffs filed a “Motion For a New Trial Based Upon Newly Discovered Evidence of Juror Misconduct.” The motion asserted that it “came to light” that, as a CVPS communications representative, Juror R had a “long-term symbiotic” relationship with RRMC and Ryan Smith & Carbine. Plaintiffs pointed to two 1 fundraising efforts in which Juror R had some involvement as establishing both Juror R’s actual and implied bias. Included with the motion were exhibits comprised of various website printouts, apparently the product of an internet search conducted on December 21-22, 2011, which form the record on appeal.

¶ 8. The first set of exhibits relied upon by plaintiffs consists of publicized snippets from the 2007, 2010, and 2011 CVPS “Fill the Cupboard Challenge,” coordinated by or otherwise associated with Juror R. The “Fill the Cupboard Challenge” “challeng[es] businesses, schools, clubs and other organizations to organize food collections from customers, employers, students and members . . . with a goal of collecting at least 25,000 [food] items” to benefit the Community Cupboard. In a 2007 press release listing Juror R as the contact person for the collection, CVPS announced it would “donate $500 in the name of the company or group that collects *247 the most food during the Challenge” and that there was “no cost to a business or organization to participate.” The press release also noted that “[t]he matching dollars provided by CVPS are . . . critical to the [Community] Cupboard remaining open all year. The Cupboard buys food with these funds in the summer when donations are at their lowest point.” RRMC was listed as one of the first twenty-one participants in the food drive in 2007 and one of sixty-five overall donors in 2011; Ryan Smith & Carbine was among the sixty-seven contributors to the 2010 food drive.

¶ 9. The second set of exhibits offered by plaintiffs reveals information pertaining to the “Gift-of-Life Marathon,” an annual blood drive organized by CVPS and two radio stations. The blood drive benefitted the American Red Cross, and apparently participating blood donors were given bags that “include special coupons from local businesses as a gift to the donors, and to support the business community.” According to the record, in 2008, Juror R was listed as a contact person in a promotion for the blood drive in the Rutland Region Chamber of Commerce Courier. The 2008 promotion also listed Juror R as the point person for businesses including coupons in the gift bags. In 2009, Juror R was photographed by the Rutland Herald stuffing gift bags for blood donors.

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Bluebook (online)
2013 VT 59, 79 A.3d 864, 194 Vt. 242, 2013 WL 3957586, 2013 Vt. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccormack-v-rutland-hospital-inc-dba-rutland-regional-medical-center-vt-2013.