Jury tampering: trial court did not abuse discretion in concluding party’s assumed contact with juror during trial did not have capacity to affect verdict.

Labate v. Rutland Hospital, Inc., 2015 VT 128 [10/2/2015] 

EATON, J. This is an appeal of denial of a motion for new trial following a jury verdict in favor of defendants hospital and doctor in a case that claimed medical malpractice in connection with the birth of plaintiffs’ daughter. The jury found that the plaintiffs had failed to prove the standard of care applicable to each defendant. The motion for new trial claimed the verdict was tainted because a juror read an e-mail sent by the hospital to its employees during the trial.  On appeal, the plaintiffs assert that the court erred in concluding that the e-mail was incapable of influencing the jury’s verdict.  We affirm.

Whether an irregularity occurred is a question of fact for the trial court. “[T]he test is not whether the irregularity actually influenced the result, but whether it had the capability of prejudicing the verdict.” Bellows Falls Vill. Corp. v. State Highway Bd., 123 Vt. 408, 414, 190 A.2d 695, 699 (1963) (emphasis added).

Whether alleged juror misconduct has prejudiced the trial process is a matter for the discretion of the trial judge. In this case, the trial court suggested there was insufficient proof an irregularity had occurred and concluded that even if it had, the content of the e-mail was such that it could not have affected the verdict. Our review is, therefore, to determine whether the trial court has abused its discretion on the issue of capacity to affect the verdict.

Broadly construed, the e-mail asserted that the hospital “had done nothing wrong”—in other words, that they had met the applicable standard of care, whatever that may be. The email stated in part, “From time to time things go wrong. If we feel we are at fault, we will apologize, take corrective action and, if appropriate, reach a settlement with the other party. In this case we did not feel we did anything wrong. 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. We clearly believe in this case that something tragic happened and we feel terrible for the family. The world is not always fair. Bad things sometimes happen. It does not always mean someone is at fault.”

The trial court was correct that the e-mail was primarily a denial of any wrongdoing that did not have the capacity to affect the verdict.   The email contained no discussion of the standard of care required of either defendant. Because the e-mail 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. 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.

SCOVT rules as a matter of first impression that anti-SLAPP statute does not apply unless there is a“public issue.”

Felis v. Downs Rachlin Martin, PLLC, 2015 Vt. 129 [10/16/2015]

DOOLEY, J. This case arises out of a divorce proceeding. Plaintiff claims fraud and breach of fiduciary duty by GFC, who was retained on behalf of plaintiff’s former wife to prepare business valuations related to the proceeding. GFC appeals the superior court’s denial of its motion to strike pursuant to 12 V.S.A. § 1041, Vermont’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law. We affirm.

This is our first opportunity to construe Vermont’s anti-SLAPP statute. The issue before us turns on whether plaintiff’s action is a SLAPP suit, as defined under § 1041. GFC contends that the plain language of § 1041(i)(1), which extends the protections of the statute to “any written or oral statements made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,” covers its testimony in the divorce proceeding.

Section 1041(a) provides that the statute applies to actions “arising from the defendant’s exercise, in connection with a public issue,” of free speech and petitioning rights. Section 1041(i), in turn, lists four specific types of activity. We conclude that the “in connection with a public issue” requirement of 12 V.S.A. § 1041(a) must be met in any motion to strike under the anti-SLAPP statute, regardless of the type of activity.

GFC presented expert testimony on the value of one of plaintiff’s businesses in order to support Ms. Felis’ proposed property distribution in a divorce order. The testimony was not “a matter of public significance.”

We reach this result as a matter of statutory interpretation in order to implement the intent of the Legislature in adopting the anti-SLAPP remedy and keeping that remedy within the bounds of the paradigm on which it was based.

How cited.

Expert opinion, “I think more likely than not [plaintiff] would have wound up with a better result,” is sufficient to preclude summary judgment in medical malpractice suit.

Tillson v. Lane, 2015 VT 121 [10/09/2015]

REIBER, C.J. Plaintiffs appeal from a decision granting defendants’ motion for summary judgment in a medical malpractice suit. The court based its decision on its determination that plaintiff’s expert testimony amounted to “loss-of-chance” evidence insufficient to prove that plaintiff’s injury was caused by defendants’ departure from the standard of care. We reverse and remand.

Defendant performed an elective procedure to remove a cataract in plaintiff’s left eye. Plaintiff alleged that within twenty-four hours of surgery, his left eye showed signs of infection. Within forty-eight hours of surgery, plaintiff was permanently blind in his left eye. Plaintiff alleged that Defendant should have consulted with a retinologist. Plaintiff’s expert testified at deposition that if plaintiff had undergone a vitrectomy and received antibiotics, “[h]e would have had a real chance versus no real chance of saving the sight in that eye.” In response to a clarifying question from plaintiff’s counsel, the expert stated, “I think more likely than not [plaintiff] would have wound up with a better result.”

In Smith v. Parrott, 2003 VT 64 we rejected the loss-of-chance doctrine as “fundamentally at odds with the settled common law standard . . . for establishing a causal link between the plaintiff’s injury and the defendant’s tortious conduct.” Id. ¶ 12 The elements of a medical malpractice action, “have traditionally included a requirement that the plaintiff adduce evidence of a reasonable probability or reasonable degree of medical certainty that the defendant’s conduct caused the injury.” Smith, 2003 VT 64, ¶ 11 (quotations omitted).

In Smith the patient relied upon statements from an expert witness who testified at deposition that an earlier consultation with a neurosurgeon might have yielded a “fifty-fifty chance of some recovery.” Unlike the expert in Smith, plaintiff’s expert ultimately testified that “more likely than not [plaintiff] would have wound up with a better result.” Reading the testimony in its entirety, plaintiff’s expert rendered the expert opinion that there was at least a fifty-one percent chance that plaintiff would have had some meaningful degree of vision in his left eye if he had received a timely referral to a retinologist. Although conflicting evidence exists, this is not a Smith opinion.

In other words, a factual assertion exists in the case that but for Defendant’s departure from the standard of care exercised by a reasonably skillful ophtalmologist, plaintiff would not have suffered an injury. Thus, the deposition testimony is sufficient evidence to withstand a motion for summary judgment.

Foreclosure. Duress does not void mortgage unless it was signed under immediate threat of imminent physical harm, but mortgage may be voidable if, as a result of improper threat, signor had “no reasonable alternative.” Defense is available against assignee of mortgagge with constructive notice.

EverBank v. Marini, 2015 VT 131 [filed 10/16/2015]

EATON, J. This is an appeal from an order granting summary judgment in favor of defendant Caroline Marini on plaintiff EverBank’s complaint for foreclosure on grounds Caroline signed mortgage under the threat of physical violence. On appeal, EverBank argues the trial court erred in concluding that the mortgage was void as to Caroline because she was not physically compelled to sign the mortgage documentation, and that the trial court erred in concluding that the bona fide purchaser doctrine was not available to EverBank. We reverse on the issue of whether the mortgage is void, and direct the trial court to enter judgment for EverBank on that issue. We remand for trial the issues of whether the mortgage is voidable and, if so, whether it is enforceable because it was ratified by Caroline, but affirm the trial court’s decision that the bona fide purchaser doctrine is not available to EverBank. 

There are two forms of duress —duress by physical compulsion, which renders an agreement void, and duress by improper threat, which results in an agreement that is voidable by the victim. Under Vermont law, improper conduct sufficient to render a contract void, as opposed to voidable, must consist of either the actual application of physical force that is sufficient to, and does, cause a victim to appear to assent to the execution of a document, or the threat of immediate application of physical force sufficient to place a person in the position of the signer in actual, reasonable, and imminent fear of death or serious personal injury.

On the evening prior to Caroline signing the mortgage paperwork, Gary removed a pair of large scissors from the knife drawer and waved them back and forth. This scared Caroline and, in an attempt to protect her children, she told Gary that she would sign the mortgage documents if he would leave the children alone, which she did the following day in front of a notary public. When the notary asked Caroline if her signature was her free act and deed, she replied, “it is what it is.”

Nothing in the record reveals any evidence of a threat of imminent physical violence upon Caroline such that she reasonably feared loss of life or serious physical injury at the time she signed the document in front of an independent person. Accordingly,we reverse the trial court’s decision that the mortgage was void. 

To constitute improper conduct such that an agreement can be held voidable, there must be both an inducement by an “improper threat” and the victim must have no “reasonable alternative” but to succumb. Construing the record in favor of EverBank as we must we also conclude that the undisputed facts do not establish as a matter of law that Caroline was without a reasonable alternative.  We therefore remand the matter of whether the mortgage is voidable to the trial court.

The trial court also concluded that EverBank was not a bona fide purchaser. We agree. It is undisputed that EverBank acquired its interest in the mortgage seven months after Caroline raised the duress claim in her answer. EverBank cannot now argue that was a bona fide purchaser when it had constructive, if not actual, notice of this defect. See 9A V.S.A. § 3- 305(a)(1) (holder of a negotiable instrument is not “holder in due course” where holder took instrument with notice that party had duress defense). We affirm the trial court’s conclusion and he that the bona-fide-purchaser doctrine is not available to EverBank should Caroline prove her duress claim.