Pcolar v. Casella Waste Systems and Smith, 192 Vt. 343

Background

Plaintiff Stephen J. Pcolar was struck by Casella’s gripper arm during a truck-assisted incident while Cardboard sheets were placed atop the arm for disposal.
The May 26, 2005 incident occurred while plaintiff helped a condo resident; the driver agreed to accept the cardboard.
A single gripper arm lifted a 96-gallon container; cardboard sheets were placed on the arm and fell; plaintiff moved to recover fallen sheets and was struck.
Plaintiff sued for negligence; after a two-day trial, the jury allocated 70% fault to plaintiff and 30% to defendants, rendering recovery barred by comparative fault.
The trial court denied plaintiff’s post-trial motions; the verdict and judgments were appealed to the Vermont Supreme Court.
The court affirms the verdict and rulings below.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for verdict	Pcolar argues the verdict is not adequately supported by the evidence.	Casella argues the jury could reasonably assign fault to plaintiff given conflicting testimony.	Evidence supports the verdict; credibility and weight for the jury.
Pretrial discovery and work product	Plaintiff seeks to depose CEO, counsel, and others; questions about work product.	Court properly limited depositions and protected work product.	Rulings affirmed; work-product protection upheld and some depositions denied as discretionary.
Daubert/malingering testimony	Sought to exclude malingering testimony as non-scientific.	Neuropsychologist’s testimony falls within expert knowledge and is admissible.	Admission of neuropsychologist testimony was proper; trial court did not abuse discretion.
Preservation of jury instructions objections	Plaintiff contends the comparative negligence instruction and other instructions were improper.	Defendants’ instructions and comparative negligence were appropriate; plaintiff failed to timely object.	Issue not preserved for appeal; plain-error review applies only in limited circumstances.

Key Cases Cited

B&F Land Dev., LLC v. Steinfeld, 184 Vt. 624 (2008 VT) (credibility and weighing evidence are jury functions)
State v. Morrill, 127 Vt. 506 (1969 VT) (no requirement for lengthy deliberations if verdict possible on evidence)
Jackson v. Rogers, 120 Vt. 138 (1957 VT) (jury may decide based on the evidence presented)
State v. Lumbra, 122 Vt. 467 (1962 VT) (adequacy of deliberation time relates to deliberative process)
Quirion v. Forcier, 161 Vt. 15 (1993 VT) (trial court has broad Rule 403 discretion to exclude redundant evidence)
State v. Percy, 158 Vt. 410 (1992 VT) (Rule 403 considerations for admissibility)
State v. Simonds, 108 Vt. 60 (1936 VT) (court may exclude evidence as cumulative)
Hartnett v. Med. Ctr. Hosp. of VT., 146 Vt. 297 (1985 VT) (work-product protection under Rule 26(b)(3))
Hickman v. Taylor, 329 U.S. 495 (1947) (protects mental impressions in work product; qualified privilege)
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) (testimony must be scientifically reliable unless admissible under Rule 702)
985 Assocs., Ltd. v. Daewoo Elecs. Am., Inc., 183 Vt. 208 (2008 VT) (Rule 702 and expert testimony admissibility; non-scientific expertise permitted)
In re Vermont Supreme Court Admin. Directive No. 17, 154 Vt. 392 (1990 VT) (docket management; broad discretion in scheduling)
Quirion v. Forcier, 161 Vt. 15 (1993 VT) (Rule 403 balancing and admissibility)
Follo v. Florindo, 2009 VT 11 (2009 VT) (plain error review limited for civil cases)
Sandgate Sch. Dist. v. Cate, 2005 VT 88 (2005 VT) (pro se litigants receive some leeway; appellate standards)