Rathe Salvage, Inc. v. R. Brown & Sons, Inc., and Brown
46 A.3d 891
Vt.2012Background
- Rathe Salvage and hauler had a long-running scrap-transport arrangement with per-ton pricing.
- Rathe Salvage alleged hauler submitted low weigh slips; after switching to another carrier, Rathe Salvage observed heavier loads and payments.
- Litigation followed over breach of contract, fraud, trespass, and CFA consumer fraud; jury found for Rathe on most claims but not CFA.
- Discovery sanction earlier had granted a default on mill records; this was reversed on appeal.
- Closing argument referenced the mill records and alleged counsel's withholding of evidence; trial court did not instruct curatively.
- The trial court ultimately found hauler owed no CFA liability; on appeal, the court affirmed in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for common law fraud | Rathe Salvage presented circumstantial proof of deception | Hauler contends evidence is insufficient | Evidence adequate to support the verdict |
| Curative instruction for closing argument accusations | Rathe Salvage's closing implied counsel’s misconduct was probative | Argument was fair comment, no prejudice | No abuse of discretion; no curative instruction required |
| Admissibility of polygraph evidence under Rule 403/Daubert | Polygraph evidence could aid credibility without deciding issues | Polygraph unreliable and prejudicial | Per se exclusion under Rule 403; no Daubert hearing required |
| Rathe Salvage CFA consumer status | Rathe was a consumer of hauler’s services | No consumer relationship; hauler bought scrap, yard not consumer | No CFA consumer status; judgment for hauler on CFA affirmed |
Key Cases Cited
- Turgeon v. Schneider, 150 Vt. 268 (Vt. 1988) (standard for reviewing sufficiency of evidence on appeal)
- Reiss v. A.O. Smith Corp., 150 Vt. 527 (Vt. 1988) (no expert can offer opinions on ultimate legal questions or credibility)
- Lamell Lumber Corp. v. Newstress Int’l, Inc., 2007 VT 83 (Vt. 2007) (UCC applicability when transaction mixes goods and services)
- Town of Brighton v. Griffin, 148 Vt. 264 (Vt. 1987) (exclusion of legal-issue testimony; credibility considerations)
- 3Com Corp. v. Electronic Recovery Specialists, Inc., 104 F. Supp. 2d 932 (N.D. Ill. 2000) (services vs. sale of goods; consumer status analysis)