Spoliation: mistaken destruction of independent blood sample is no statutory or constitutional grounds for dismissal of DUI charges.

State v. Gentes, 2013 VT 14 (21-Feb-2013) (mem.)   

Defendant entered a conditional guilty plea to the charge of driving while intoxicated (DWI). He argues on appeal that the superior court’s criminal division erred by denying his motion to dismiss both the criminal charge and the civil suspension of his license.  Defendant argued for dismissal based his claim that the Vermont Department of Health’s negligence deprived him of his statutory right to obtain an independent blood test result.  We affirm.

It was the Department that failed to correctly label the sample, resulting in it being misfiled and eventually destroyed.  Because defendant’s inability to obtain an independent test was not “prevented or denied by the enforcement officer,” there is no basis in the statute for suppression of the remaining evidence, and no call in the statute for dismissal.  21 V.S.A. § 1203a(a).

Defendant maintains that the department’s negligent handling of his blood sample deprived him of his constitutional right to “call for evidence in his favor” as set forth in Chapter I, Article 10 of the Vermont Constitution.  Under the applicable Bailey test, “if a defendant shows a reasonable possibility that the lost evidence would be exculpatory,” then the proper sanction for its absence depends upon a pragmatic balancing of the following three factors: “(1) the degree of negligence or bad faith on the part of the government; (2) the importance of the evidence lost; and (3) other evidence of guilt adduced at trial.”  Id. (quotation omitted).  Essentially, defendant argues that the trial court erred in failing to dismiss the charge against him based on an application of the Bailey test.  Having weighed the Bailey factors, we find no constitutional violation and agree with the trial court that dismissal of the charge against defendant was not an appropriate remedy for the mistakenly destroyed evidence in the context of this particular case.

Torts. Hospital had no duty to prevent assault on patient by police; but nurse committed battery if nurse drew blood at police request without patient consent.

O'Brien v. Synnott, 2013 VT 33 (17-May-2013)(Robinson, J.)  


Plaintiff Kelley S. O’Brien sued defendants Fletcher Allen Health Care (FAHC) and FAHC nurse Catherine Synnott for injuries he suffered when allegedly assaulted by police officers after defendants negligently allowed those officers unrestricted access to him in the hospital while he was recovering from surgery, and for drawing his blood at the request of law enforcement officers and without his consent. The trial court granted defendants summary judgment, concluding that it was not reasonably foreseeable that the police officers would harm plaintiff if allowed unsupervised access, and that nurse had plaintiff’s apparent consent to draw the blood. We affirm in part and reverse in part.

Defendants’ duty to protect plaintiff does not extend to protecting him from attacks by third parties that are not reasonably foreseeable. See also Restatement (Second) of Torts § 314A cmt. e (1965) (stating that defendant is “not required to take precautions against a sudden attack from a third person which [the defendant] has no reason to anticipate”); id. § 320 (explaining that actor has duty to control conduct of third persons only when actor “knows or should know of the necessity and opportunity for exercising such control”). Considering the facts in the light most favorable to plaintiff, a law enforcement officer requested an evidentiary sample of his blood in the emergency room, and plaintiff refused. The officer said he would get a warrant. Plaintiff was taken from the emergency room for emergency surgery. While he was in the post-anesthesia care unit (PACU) recovering from the surgery, his nurse left the area, allowing a group of police officers the opportunity to access plaintiff’s room. The officers asked plaintiff for a blood sample. When plaintiff refused, they held him down, covered his mouth, and tried, unsuccessfully, to take his blood by force. We agree with the trial court that plaintiff has not identified any evidence that defendants should have anticipated that the police officers would attack plaintiff if left unsupervised.

A provider commits battery if the provider performs a procedure without the patient’s consent. Christman v. Davis, 2005 VT 119, ¶ 6, 179 Vt. 99, 889 A.2d 746. Later, nurse returned and drew plaintiff’s blood. Nurse did not disclose to plaintiff her purpose for drawing blood, or that the blood draw was not in connection with medical treatment for plaintiff’s benefit. Nurse drew the blood for the purpose of providing a sample of plaintiff’s blood to the police. Plaintiff did not object to her drawing the blood, but also did not consent to her drawing his blood for a nonmedical purpose. In the absence of undisputed evidence that plaintiff knew or should have understood the nonmedical purpose of the blood draw, the fact that he did not object does not support the conclusion that his conduct amounted to apparent consent. Defendants argument relies on inferences in defendants’ favor that we cannot draw at the summary judgment stage.

We reject Defendant’s policy argument that medical providers should be immune from civil liability for battery when they draw a blood sample from an individual suspected of driving under the influence at the request of law enforcement officers without regard to whether the individual consents to the blood draw. The Legislature has expressly limited the liability of medical providers in certain circumstances related to blood draws and individuals suspected of driving under the influence, inapplicable here, but has not expressly required medical personnel to comply with law enforcement requests to draw blood, and has not immunized those providers from liability for complying. Without legislative action we conclude that when a patient is conscious and the authority to draw blood depends upon actual consent, the police officers’ request does not protect defendants from liability for drawing the blood without plaintiff’s consent.

Post Conviction Relief denied because “not in custody under sentence.” SCOVT divided whether in custody without bail on other charges counts.

In re Russo (2011-004)(24-May-2013)(Skoglund, J.)(Robinson, J., joined by Dooley J., dissenting.)
SKOGLUND, J.  Petitioner appeals a civil division order dismissing his post-conviction relief (PCR) petition for lack of jurisdiction.  Petitioner sought to attack convictions for which his sentences had been completed, and the court concluded that petitioner was not “in custody under sentence” as required by 13 V.S.A. § 7131.  Petitioner argued that he satisfied the custody requirement because, although his sentences were completed, they were used by the criminal division to hold him without bail pending trial on a different charge.  Because petitioner has failed to allege that his pretrial incarceration was sufficiently linked to the convictions he seeks to attack, we conclude that petitioner failed to meet the jurisdictional requirements of the PCR statute, and affirm.

ROBINSON, J., dissenting.   I don’t doubt that petitioner faces a steep uphill battle in showing the necessary causal relationship between the convictions he challenges and his hold-without-bail status, but I believe the court’s dismissal of his case on the pleadings, and prior to referral to counsel, was premature. Before closing the door to the possibility of post-conviction relief for petitioner, I believe we ought to allow for the possibility that petitioner may qualify for counsel and that counsel may present evidence or may identify and brief the issues more persuasively. For these reasons, I respectfully dissent.  I am authorized to state that Justice Dooley joins this dissent.

Statute of limitations. Foreclosure of judgment lien denied because, despite amended judgment, lien expired eight years from original judgment.

Ayer v. Hemingway, 2013 VT 37 (24-May-2013)(Burgess, J.)(Robinson, J., dissenting).

Plaintiffs appeal from the trial court’s order granting summary judgment to defendants in this judgment lien foreclosure case.  Plaintiffs argue that a 2001 judgment had been renewed or revived by a 2006 stipulated amended order, and that the court erred in concluding that their judgment lien had expired. We affirm.

The trial court correctly found that plaintiffs’ judgment lien was no longer effective because more than eight years had elapsed from the issuance of the original final judgment on which it was based.  See 12 V.S.A. § 2903(a). Revival required the filing of a “new and independent action” on the judgment, see 12 V.S.A. § 506, which did not occurred here.  Nelson v. Russo, 2008 VT 66, ¶ 6, 184 Vt. 550, 956 A.2d 1117 (mem.). (judgments cannot be renewed by motion, but only by the filing of a “new and independent suit commenced in accordance with Rule 3.” )      

Plaintiffs did not file a new complaint on the judgment.  Instead, they filed a motion for a possessory writ of attachment that led to a stipulated amended judgment order regarding payment of the 2001 debt. This was not a new “final judgment” for purposes of 12 V.S.A. § 2903(a).  The fact that this order might have been appealable does not change this result. Any other holding would create a continually moving statute of limitations. Were we to construe  such post-judgment orders as starting a new limitations period, a party could extend the life of a judgment lien indefinitely by filing motions.  The statute does not contemplate this result, and the need for certainty and predictability in the law compels us to reject such an approach.  The statute of limitations runs from a single ascertainable moment—the issuance of a final judgment on the merits.

Robinson, J. dissenting, cannot concur in the majority's conclusion that the 2006 order was not in fact a judgment for the purposes of the statute of limitations. The statute of limitations draws no distinction between "original" and "amended" judgments, and nothing in the language of the statute supports the notion that "judgment" has a different meaning for the purposes of the statute of limitations than for other purposes. See 12 V.S.A. § 2903 ("A judgment lien shall be effective for eight years from the issuance of a final judgment on which it is based . . . .").

Note:  See Flex-A-Seal, Inc. v. Safford, 2015 VT 40 

Professional Responsibility; actual and implied bias. Lawyer who had adopted child from DCF had no actual or implied personal-interest conflict of interest that precluded representing client adverse to DCF.

In re K.F. , 2013 VT 39 (07-Jun-2013)(Robinson, J.) 
Father appeals the termination of his parental rights on the grounds that the trial court erred in denying his motion for replacement counsel because his lawyer had a conflict of interest We affirm.

According to father, his lawyer’s prior adoption of a child made the lawyer sympathetic to DCF and unable to provide zealous representation to father, creating a “personal interest” conflict that mandated her removal. Counsel had not represented DCF in the past and had no current or past relationship to DCF beyond counsel’s adoption five years previously of a child who had been in DCF custody. This created no inherent bias that would prevent counsel from adequately representing father, and the findings shown no actual bias.

Vermont Rule of Professional Conduct 1.7. deals with a lawyer’s obligation to avoid concurrent conflicts of interest, including not representing a client when there is a “significant risk” that the representation is “materially limited . . . by a personal interest of the lawyer.” V.R.Pr.C. 1.7(a)(2). We have held that a judge who was an adoptive parent is not disqualified from adjudicating whether adoptees were entitled to disclosure of adoption information. In re Margaret Susan P., 169 Vt. 252, 733 A.2d 38 (1999). We explained “[personal and family circumstances are [not] appropriate considerations on which to presume bias or partiality.” Id. at 256-57, 733 A.2d at 42.

Similarly, here, the simple fact of counsel’s family circumstances without any showing of a current connection to DCF or this case is insufficient reason to presume counsel’s inability to represent father. Moreover, the record supports the trial court’s findings rejecting father’s suggestion that his lawyer’s lacked any zeal in representing him. The court did not abuse its discretion in denying father replacement counsel on this basis.

Workers Comp: SCOVT reverses DOL re PPD for CPRS; allows AMA Guide impairment rating without AMA diagnosis!

Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38 (21-Jun-2013)(Robinson, J.)
The central question in this case is whether the workers’ compensation laws preclude an impairment rating and associated award of permanent partial disability (PPD) benefits to an injured worker on account of impairment associated with a condition known as Complex Regional Pain Syndrome (CRPS) where a claimant is not diagnosed with CRPS under the criteria listed in Chapter 16 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides, or Guides), but where a qualified expert confirms the existence of the condition pursuant to other legally admissible standards sufficient to meet a reasonable medical certainty.  The Commissioner of the Department of Labor (DOL) and the trial court both concluded that 21 V.S.A. § 648(b) denies the Commissioner discretion to assign an impairment rating and thus award PPD benefits for impairment associated with CRPS where the CRPS diagnosis does not meet the diagnostic standards in Chapter 16 of the AMA Guides.  We reverse.