Peterson v. Chichester

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-499


Patricia Peterson                            Supreme Court

     v.                                      On Appeal from
                                             Windsor Superior Court
Lee R. Chichester
                                             September Term, 1991


Ellen H. Maloney, J.

Mark W. Roberts of Barron & Stadfeld, P.C., Boston, Massachusetts, for
   plaintiff-appellant

Sheila C. Files of Douglas Richards, P.C., Springfield, for defendant-
   appellee


PRESENT:  Allen, C.J., Gibson, Morse and Johnson, JJ.


     MORSE, J.   In this personal injury case, plaintiff asks that we
reverse and remand for a new trial on the grounds that the jury verdict was
compromised and that a post-judgment interview with the foreperson of the
jury was improper.  Plaintiff also seeks a reversal of the order denying her
costs.  We affirm.
                                    I.
     Plaintiff was injured when defendant collided with her on a ski trail
at a commercial ski resort.  At trial, the jury concluded defendant was 51%
negligent and plaintiff 49% negligent.  Finding that plaintiff suffered
total damages of $18,388, the jury awarded her $9,377 based on comparative
negligence.
     When she gave the verdict form to the court clerk, the jury foreperson
told the clerk that she was not sure the jury understood.  The court
related this to counsel at the bench, saying:
          [W]hen the foreperson gave Jane the envelope, she said
          I'm not sure we understood.  She had the charge in her
          hand.  They have filled this out . . . they have come up
          with a Defendant's verdict, but they've . . . awarded
          damages. . . . I don't want to let them go if anything's
          wrong. . . .

After some discussion, the court stated "I'm going to say [to the fore-
person] what did you intend to do, and we'll start with that."  Plaintiff's
counsel then said, "Actually I think what they did is consistent because
it's not a Defendant's verdict. . . .  I mean, the Defendant was fifty-one
percent negligent, and the Plaintiff is forty-nine percent negligent, so
it's not a Defendant's verdict."  After more discussion to determine if the
calculations were correct, the court thanked and discharged the jury.
     Following entry of judgment for plaintiff, she moved, under V.R.C.P.
59, for an order increasing the verdict ("additur"), or in the alternative,
a new trial.  She subsequently requested a new trial on the ground that the
jury verdict was compromised.  Plaintiff also requested that the presiding
judge recuse herself from deciding the motion.  The judge declined to
recuse herself, denied the Rule 59 motion and plaintiff's motion for costs.
     While the Rule 59 motion was pending, plaintiff's counsel telephoned
and interviewed the jury foreperson.  Defendant's counsel, learning that
plaintiff's counsel intended to contact the foreperson, filed an objection
with the trial court.  By order, the court granted plaintiff's request to
interview the foreperson and scheduled it at the courthouse with counsel and
the court present.  At the interview, the foreperson expressed nothing
unusual to indicate that the jury acted improperly or misunderstood the
proceedings in any respect.
                                    II.
      Focusing on the minimal amount found as damages, plaintiff claims the
verdict was compromised and the judgment should be reversed.  Plaintiff
incurred "special damages" of $5,160 in medical expenses and $10,350 in lost
wages.  Given the finding of $18,388 total damages, the amount attributable
to pain and suffering and permanent injury was less than $3,000.  Plaintiff
had broken her arm, received several cuts on her face requiring stitches,
received bruises on her body, and strained her neck and jaw.  Plaintiff's
doctor testified that she would permanently suffer a 20% disability to her
right shoulder, problems with her back, neck and jaw, and periodic
headaches.  Plaintiff was bedridden two months and out of work five.
     Plaintiff relies primarily on Kerr v. Rollins, 128 Vt. 507, 513, 266 A.2d 804, 808-09 (1970), in which this Court held that inadequate damages
for pain and suffering and permanent injury (an amount "below the limits of
the broad discretionary judgment entrusted to the jury") "coupled" with
"symptoms of compromise and misunderstanding," by the jury, undermined the
entire verdict and warranted reversal of the judgment and a new trial.
     There will often be "symptoms" that a jury may have compromised a
verdict whenever liability is contested.  The "symptoms" in this case are
less apparent than in Kerr because here the jury expressly split the
liability 51%/49% between defendant and plaintiff. The foreperson's comment
about misunderstanding is similar to the "symptom" in Kerr about
misunderstanding, but here, unlike in Kerr, the foreperson's explanation
expressed no jury confusion about the damages issue.
     Although the award of damages for pain and suffering and permanency was
low, the trial court was within its broad discretion in allowing it to
stand.  Further, we do not find any error by the court under V.R.C.P. 59(a).
That rule, which came into effect after Kerr was decided, mandates only
that, where a court would overturn a verdict and call for a new trial on the
ground of inadequate damages, it must first offer the defendant the opportu-
nity to accept an additur.  Since here the court found the damages suffic-
iently adequate to allow the verdict to stand, Rule 59(a) is not
implicated.
                                   III.
     Because the court allowed and participated in an inquiry into the
deliberative process of the jury, plaintiff argues a new trial should be
granted.  This is indeed  curious, because it was plaintiff who sought to
demonstrate a compromise verdict by proving it with the words of the jury
foreperson.  In fact, plaintiff's counsel himself spoke on the telephone
with the foreperson, who apparently conversed freely and answered his
questions.  Despite this, plaintiff has not sought relief because of
anything the juror told his counsel in private.
     Plaintiff claims that the juror interview on the record violated V.R.E.
606 (upon inquiry into validity of verdict, juror may not testify about any
statement during jury's deliberations or any mental process connected with
reaching the verdict).  While this may be true, plaintiff cannot now
complain since her counsel instigated the procurement of the foreperson's
views and participated in the interview on the record, rather than objecting
to it.
     Plaintiff asserts that the judge's denial of her motion to recuse,
after presiding over the on-record interview with the foreperson, is reason
for us to withhold "deference" to the denial of her motion for a new trial.
This claim was likewise waived when plaintiff did not object to the judge's
presence at the interview.
     Plaintiff further contends that the court should have permitted more
questioning of the juror.  But plaintiff's counsel invited the error that
the juror be interviewed at all.  Plaintiff should not profit from accept-
ance of her invitation to participate in an event she now claims should
never have occurred in the first place.
     Plaintiff's maneuvering with the foreperson points out the wisdom
behind V.R.E. 606(b), which forbids a juror to testify about the deliber-
ation process except
          on the question whether extraneous prejudicial
          information was improperly brought to the jury's
          attention, whether any outside influence was improperly
          brought to bear upon any juror, or whether any juror
          discussed matters pertaining to the trial with persons
          other than his fellow jurors.

See Bellows Falls v. State Highway Board, 123 Vt. 408, 411-12, 190 A.2d 695,
697-98 (1963).
                                     IV.
      Finally, plaintiff argues she should have been awarded her litigation
costs, including the filing fee, costs of depositions, and witness fees.
      The trial court has discretion in awarding costs.  V.R.C.P. 54(d)
(costs allowed, "unless the court otherwise specifically directs"); V.R.C.P.
54(g) (taxing of deposition costs subject to court's discretion).  We find
no abuse of discretion here, especially given that plaintiff put defendant
through the time and effort to resist the effect of the juror's interview.
       Affirmed.



                                             FOR THE COURT:


                                             _________________________________
                                             Associate Justice