Derosia v. Verboom

Derosia v. Verboom (98-358); 169 Vt. 593; 736 A.2d 775

[Filed 25-Jun-1999]
                 
                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-358

                               JUNE TERM, 1999


Vicky Derosia           	       }	APPEALED FROM:
	                               }
	                               }
     v.                                }	Windham Superior Court
	                               }	
	                               }
Patricia Verboom                       }	


             In the above-entitled cause, the Clerk will enter:

       Defendant Patricia Verboom appeals from a jury verdict of $190,723.52
  compensating plaintiff Vicky Derosia for personal injuries arising from a
  1995 automobile accident. Defendant raises three claims of error on appeal:
  (1) the trial judge erroneously denied defendant's request to instruct the
  jury regarding the lack of tax liability on any monetary damages awarded,
  (2) the court officer contaminated the jury by telling a juror that the
  jurors could not leave until they reached a unanimous verdict, and (3) the
  verdict was so excessive it indicates improper jury passion or prejudice,
  and the court therefore erred by not granting either a new trial or
  remittitur. We affirm.

       At the May 1998 trial, plaintiff's expert witness specializing in
  rehabilitative medicine testified that plaintiff suffered a seventeen
  percent whole-person, permanent impairment as a result of the accident.
  Plaintiff's neurosurgeon also testified, stating that the nerve blocks and
  nerve-root decompression surgery he performed on her were necessary and
  related to the accident. In response to plaintiff's evidence on lost wages,
  defendant entered into evidence plaintiff's tax returns for 1994, 1995, and
  1997, omitting 1996 because she had no earned income. Plaintiff made no
  claim for loss of future income. Neither party presented expert or other
  evidence raising taxation issues. Defendant submitted proposed jury
  instructions requesting that the court advise the jury it should not
  include a sum to compensate for taxation because any damages awarded would
  not be subject to federal or state income tax. When the court did not
  include the instruction, defendant objected. By special verdict, the jury
  awarded plaintiff monetary damages in the categories of: past pain,
  suffering and disability; medical bills and expenses; past lost wages; and,
  future, pain, suffering and disability. The jury awarded the precise amount
  plaintiff requested for medical bills and past wages, but it awarded
  $39,000.00 less than plaintiff had requested for past and future pain and
  suffering.

       Defendant moved for a new trial on all three grounds raised in this
  appeal or for remittitur because of an excessive verdict. With respect to
  the jury contamination grounds for new trial, defendant submitted an
  affidavit from defendant's attorney relating an alleged conversation
  between the attorney and the court officer after the conclusion of the
  trial. According to the affidavit, the following exchange occurred. A juror
  turned to the court officer and asked him how long the jury had to remain.
  The court officer replied that the jury had to remain until it had reached
  a unanimous verdict. The juror then asked whether they could go home. The
  court officer responded that the judge would not allow the jury to go home
  until it had reached a verdict. The trial judge denied the motion without
  hearing, and defendant appealed.

                                     I.

       We first address defendant's argument against the court's decision not
  to include an instruction to the jury on tax liability. Defendant contends
  that Stowell v. Simpson, 143 Vt. 625, 470 A.2d 1176 (1983), sets forth a
  general rule applying to all personal injury cases. 

       The rule we announce today derives from the facts and
       circumstances of the instant appeal. We note, however, the
       possibility that juries may erroneously conclude that all
       personal injury awards are subject to income taxes. When this
       possibility is balanced against the extremely small
       likelihood that any prejudice will result from the requested
       instruction, we are convinced of its salutary effect. 

  Id. at 630, 470 A.2d  at 1179. This language serves, not--as defendant
  believes--to establish a bright line rule that trial courts must apply, but
  rather to guide the court's discretion. In Stowell, the record revealed
  "discussion of income taxes by plaintiff's expert on several occasions."
  Id. at 627, 470 A.2d  at 1177. We therefore concluded that the trial court
  had abused its discretion in refusing to give the requested instruction.
  Here, by contrast, there were no taxation issues raised at trial that
  required clarification. We therefore find no error. 

                                     II.

       As for defendant's remaining two claims, we likewise find no error.
  The situation described in the affidavit does not create a reasonable fear
  of contamination of jury deliberations. Therefore, no inquiry into the
  alleged exchange between defendant's attorney and the court officer was
  necessary. See, e.g., State v. Gorbea, 169 Vt. 57, ----, 726 A.2d 68, 70
  (1999) (in reviewing claim jury's verdict was improperly affected by
  extraneous influences, trial court's ruling accorded every reasonable
  presumption in its favor because trial judge develops relationship with
  jury during course of trial); State v. Wool, 162 Vt. 342, 353, 648 A.2d 655, 662 (1994) (defendant must demonstrate statement had capacity to
  influence jury and such proof must be more than mere speculation). And the
  damages awarded by the jury are in accord with the evidence presented. See,
  e.g., Turgeon v. Schneider, 150 Vt. 268, 272, 553 A.2d 548, 551 (1988) (to
  overturn jury award appellant must demonstrate verdict was entirely
  excessive when viewed in light most favorable to jury's finding); Addison
  County Automotive, Inc. v. Church, 144 Vt. 553, 560, 481 A.2d 402, 407
  (1984) (where action does not allow exact computation of damages, verdict
  stands unless grossly excessive).

       Affirmed.





	                               BY THE COURT:



	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
	                               James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice
	
	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice
 
	                               _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned