Isabelle v. Proctor Hospital, 145-70

• Docket Nº: No. 145-70
• Citation: 282 A.2d 837, 129 Vt. 500
• Case Date: October 05, 1971
• Court: United States State Supreme Court of Vermont

Page 837

282 A.2d 837 129 Vt. 500 Gene ISABELLE and St. Elmo Ferrara, Trustee
v.
PROCTOR HOSPITAL and Dr. William A. O'Rourke, Jr., et al. No. 145-70. Supreme Court of Vermont. Oct. 5, 1971.

[129 Vt. 501]

Page 838

Bloomer & Bloomer, Rutland, for plaintiff.

Black & Plante, White River Junction, for Proctor Hospital.

Richard E. Davis, Barre, O'Neill, Valente & Carroll, Rutland, for Dr. O'Rourke.

Before [129 Vt. 500] HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

[129 Vt. 501] HOLDEN, Chief Justice.

This is an appeal before final judgment in a medical malpractice action. The plaintiff Gene Isabelle instituted the action against the defendant O'Rourke, her former physician, and the Proctor Hospital where she was confined under Dr. O'Rourke's care. An extended trial by jury resulted in a verdict for both defendants. The trial court withheld entry of judgment on the verdicts and granted the plaintiff permission to present this appeal for our review of four questions of law arising from the plaintiffs' motion for a new trial.

It is a long established and salutary rule that a cause of action is not to be taken to the appellate court in fragments. Beam v. Fish, 105 Vt. 96, 99, 163 A. 591. And the Court has often said we will not review a case piecemeal. In re Estate of Webster, 117 Vt. 550, 553, 96 A.2d 816; Ricci v. Bove's Admr., 116 Vt. 406, 411, 78 A.2d 13. 12 V.S.A. § 2386 affords room for some exceptions to the rule according [129 Vt. 502] to the discretion of the lower court. And the court's discretion in this respect should be guided by consideration of whether appellate review preliminary to final judgment will materially advance the course of the litigation. See, State v. Blondin (Vt. 1970), 270 A.2d 165, 166; Powers v. State Highway Board, 123 Vt. 1, 5, 178 A.2d 390; V.R.A.P., Rule 5.

In the questions certified, there are two of serious dimension which, in our judgment, deserve attention although the full record is not available at the present stage of the proceedings. The first is: Does the expression of an opinion on the merits of the case by a juror to one not a fellow juror, made during the course of the trial, disqualify that juror? The other question is similar and related. Is the violation of that part of the oath prescribed by 12 V.S. A. § 5803, administered to petit jurors, namely 'you will say nothing to any person about the business and matters you may at any time have in charge, but to your fellow jurors, nor will you suffer any one to speak to you about the same but in court'-sufficient to invalidate the verdict? Both questions arise from the same alleged acts of juror misconduct. But as will appear, the facts have not been sufficiently settled to permit definitive answers to the questions proposed. To avoid further delay and procedural confusion, we think it appropriate to point out the considerations involved.

One of the jurors impaneled to try the case was Frank Woodbury. During the course of the trial and before the plaintiffs had rested their case, counsel presented the affidavit of one Thomas J. Woodbury to the court.

'1. I am the step brother of Frank Woodbury, who is a juror in the case of Gene Isabelle vs Proctor Hospital el (sic) al, which is presently in progress.

2. I work with Frank Woodbury for Lane Construction at Fair Haven, Vermont, and have seen him during the course of trial, both on the job and off the job.

3. Frank Woodbury has discussed with me, and, to my knowledge, with several other fellow employees of Lane

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Construction, the case of Gene Isabelle vs Proctor Hospital et al and has told me that he has made up his mind that Gene Isabelle should not get any kind of amount of money like that; and that she had three children before [129 Vt. 503] and that nothing happened and that this was just one of those things....