Gilbert E. McCORMACK and Shelagh McCormack
RUTLAND HOSPITAL, INC. d/b/a Rutland Regional Medical Center and Henry B. DiMuzio, Jr., M.D.
[Copyrighted Material Omitted]
John H. Bloomer, Jr. of McClallen & Bloomer, P.C., Rutland, and Michael J. Regan of Duffy & Duffy, Shelburne, for Plaintiffs-Appellants.
Allan R. Keyes and John J. Zawistoski of Ryan Smith & Carbine, Ltd., Rutland, for Defendants-Appellees.
Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.
¶ 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 maybe 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 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 here 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, ...