Volume 163 — Vermont Reports

<bold>1. Environment and Natural Resources — Environmental Protection —</bold> <bold>Hazardous or Toxic Waste</bold> Although <cross_reference>42 U.S.C. § 6928</cross_reference> does not explicitly authorize criminal enforcement of<page_number>Page 54</page_number> Resource Conservation and Recovery Act's (RCRA) underlying regulations, the case law makes clear that violations of RCRA regulations may constitute criminal violations of RCRA. <cross_reference>42 U.S.C. § 6928</cross_reference>. <bold>2. Environment and Natural Resources — Environmental Protection</bold> <bold>— Hazardous or Toxic Waste</bold> The Legislature's effort to mirror the Resource Conservation and Recovery Act and its enforcement provisions reflects a legislative intent to criminalize violations of Agency of Natural Resources rules. <cross_reference>42 U.S.C. § 6928</cross_reference>; <cross_reference>10 V.S.A. § 6612</cross_reference>. <bold>3. Environment and Natural Resources — Environmental Protection</bold> <bold>— Hazardous or Toxic Waste</bold> In the context of 10 V.S.A. chapter 159, phrase "rules promulgated herein" in § 6612(a) means rules promulgated pursuant to chapter 159. <cross_reference>10 V.S.A. § 6612</cross_reference>(a). <bold>4. Environment and Natural Resources — Environmental Protection</bold> <bold>— Hazardous or Toxic Waste</bold> Criminalizing violations of Agency of Natural Resources regulations gives 10 V.S.A. chapter 159 its intended effect — a comprehensive cradle-to-grave waste management system with guidelines and incentives to ensure individual responsibility. 10 V.S.A. §§ 6601, 6612. <bold>5. Environment and Natural Resources — Environmental Protection</bold> <bold>— Hazardous or Toxic Waste</bold> While legislature's frequent and distinctive references to "rules" within § 6612, and throughout chapter 159, suggests a distinctive interpretation, supreme court will not construe a statute in a way that renders a significant part of it surplusage; because there are no rules contained in 10 V.S.A. chapter 159, defendant's reading of "herein" makes the phrase wholly inoperative and leaves a gaping hole in the statute's enforcement. <cross_reference>10 V.S.A. § 6612</cross_reference>. <bold>6. Environment and Natural Resources — Environmental Protection</bold> <bold>— Hazardous or Toxic Waste</bold> Where defendant made constitutional challenges to attorney general's information and provisions of V.S.A. Title 13 in pretrial motions but made no constitutional challenge to <cross_reference>10 V.S.A. § 6612</cross_reference>(a), defendant could not introduce different constitutional challenge to § 6612(a) for first time on appeal on pretext that it made constitutional challenge below. <cross_reference>10 V.S.A. § 6612</cross_reference>. <bold>7. Environment and Natural Resources — Environmental Protection</bold> <bold>— Hazardous or Toxic Waste</bold> Where defendant cited case in pretrial motion for proposition that courts should construe criminal statutes narrowly and resolve ambiguities in favor of defendants, mere mention of fairness, especially when buried in an unrelated argument regarding statutory construction, lacked specificity and clarity necessary to preserve defendant's due process challenge on appeal. <bold>8. Environment and Natural Resources — Environmental Protection</bold> <bold>— Hazardous or Toxic Waste</bold> Defendant's claim that imposition of $20,000 fine for each count impermissibly exceeded $10,000 limit of civil sanctions under <cross_reference>10 V.S.A. § 6612</cross_reference>(b) was unavailing because <cross_reference>10 V.S.A. § 6612</cross_reference>(a) authorizes fines up to $25,000 for each violation. <cross_reference>10 V.S.A. § 6612</cross_reference>.<page_number>Page 55</page_number> <bold>9. Environment and Natural Resources — Environmental Protection</bold> <bold>— Hazardous or Toxic Waste</bold> Imposition of $20,000 fines for each violation was not excessive because defendant admitted that it knowingly and repeatedly stored hazardous waste in violation of Agency of Natural Resources regulations. <cross_reference>10 V.S.A. § 6612</cross_reference>.

<bold>1. Physicians and Surgeons — Malpractice — Standard of Care</bold> Although it is true that breach of standard of care cannot be based solely on a bad medical result, there was sufficient other evidence to permit a reasonable jury, drawing reasonable inferences from the evidence introduced, to conclude that defendant breached standard of care. <cross_reference>12 V.S.A. § 1908</cross_reference>. <bold>2. Physicians and Surgeons — Malpractice — Standard of Care</bold> Sufficient evidence introduced at trial fairly and reasonably proved that defendant breached the standard of care by improperly conducting follow-up exams and/or by improperly setting fracture of plaintiff's leg. <bold>3. Physicians and Surgeons — Malpractice — Standard of Care</bold> Jury reasonably could have concluded that x-rays taken by defendant were improper because, although expert did not specifically state that x-rays taken by defendant breached standard of care, he implied that they were improper because they were insufficient to determine rotational deformity. <bold>4. Physicians and Surgeons — Malpractice — Standard of Care</bold> Expert's testimony should not be interpreted to conclude that x-rays must be taken to determine rotation of every broken bone; instead, testimony merely asserted that if x-rays are relied upon to determine rotation, appropriate x-rays must be taken; thus, reasonable juror could have determined that defendant breached standard of care by not taking proper x-rays. <bold>5. Physicians and Surgeons — Malpractice — Standard of Care</bold> Where expert testified, in discussing standard of care for setting a fracture, that rotation within ten to fifteen degrees is acceptable, reasonable jury could have<page_number>Page 211</page_number> concluded that defendant breached standard of care because he improperly set plaintiff's leg at a rotational deformity of forty-five to fifty degrees. <bold>6. Physicians and Surgeons — Malpractice — Proximate Cause</bold> There was sufficient evidence to permit jury to find that breach of standard of care had proximately caused injury because if defendant had not breached standard of care, he would have been able to correct deformity and plaintiff would not have had to endure traumatic corrective surgery. <bold>7. New Trial — Generally — Power to Grant</bold> Trial court abused its discretion in conditionally granting motion for new trial because while evidence may be subject to multiple interpretations, trial court may not substitute its own judgment for judgment of jury, but court's rationale indicated that it did substitute its own judgment. <bold>8. Physicians and Surgeons — Malpractice Proceedings — Jury</bold> <bold>Instructions</bold> In medical malpractice case, trial court's instruction that negligence cannot be based on a bad result alone was proper because, although instruction contained slightly different language than defendant requested, it accurately conveyed same point of law. <bold>9. Physicians and Surgeons — Malpractice Proceedings — Jury</bold> <bold>Instructions</bold> Although trial court's inclusion of increased risk of harm language in its instruction on proximate cause was awkward way of differentiating multiple proximate causes, if anything, language made it more difficult for jury to establish proximate cause; therefore, language would likely have worked in defendant's favor.

<bold>1. Public Employees — Unions — Collective Bargaining Agreements</bold> Arbitrator's conclusion that a reference to a governing statute incorporated unrelated judicial or quasi-judicial doctrine developed anywhere within the statute was unsupported.<page_number>Page 241</page_number> <bold>2. Public Employees — Unions — Collective Bargaining Agreements</bold> Although union contended that because both <cross_reference>21 V.S.A. § 1726</cross_reference>(a)(5) and collective bargaining agreement used concept of good faith, all other common law principles in case law and statute were incorporated by reference, neither text of agreement nor history of negotiations leading up to execution of agreement supported rationale. <cross_reference>21 V.S.A. § 1726</cross_reference>(a)(5). <bold>3. Public Employees — Unions — Collective Bargaining Agreements</bold> The parties contemplated arbitration under specific circumstances; post-expiration negotiations was not one of them. <bold>4. Public Employees — Unions — Collective Bargaining Agreements</bold> § 1726(a)(5) does not impose on contracting parties who include an arbitration clause in their agreement a requirement that they submit post-agreement disputes to arbitration. <cross_reference>21 V.S.A. § 1726</cross_reference>(a)(5). <bold>5. Arbitration — Arbitrators — Extent of Authority</bold> Parties to collective bargaining agreement may not expand an arbitrator's authority to resolve disputes beyond the terms of the agreement simply because employees union and public employer bargain every contract under the umbrella of the bargaining law and all its interpretations. <cross_reference>21 V.S.A. § 1726</cross_reference>(a)(5). <bold>6. Public Employees — Practice and Procedure — Review of</bold> <bold>Arbitration Awards</bold> Arbitrator's theory of contractualization of § 1726(a)(5) was misplaced, and the oblique references to the Vermont Municipal Labor Relations Act in collective bargaining agreement did not imply a mutual agreement to extend any provision of the collective bargaining agreement beyond its expiration date, including an implied agreement to arbitrate disputes arising after that date; therefore, arbitrator lacked authority to hear question of post-expiration compensation and award had to be vacated. <cross_reference>21 V.S.A. § 1726</cross_reference>(a)(5).