Opinion
FBTCV076001633S
09-03-2019
Emily BYRNE v. AVERY CENTER FOR OBSTETRICS AND GYNECOLOGY, P.C.
UNPUBLISHED OPINION
WELCH, J.
I.
PROCEDURAL HISTORY
The plaintiff commenced this action by service of process on the defendant on October 4, 2007. The operative complaint is dated November 3, 2010, and consists of four counts sounding in breach of contract, negligence, negligent misrepresentation, and negligent infliction of emotional distress.
On October 9, 2018, the defendant filed an amended answer wherein the defendant admitted liability. Specifically, the defendant admitted that it was negligent and/or at fault in that it breached its duty to keep the plaintiff’s medical records confidential. The defendant, however, denied that its negligence and/or fault were the cause of the plaintiff’s injuries. The defendant did not file any special defenses or file an apportionment complaint against any third-party actor. The plaintiff did not proceed with her third count claiming negligent misrepresentation.
Without objection, the court advised the jury prior to opening arguments and during the jury charge as follows: "This proceeding is what we refer to as a hearing in damages. Trials such as this generally involve three issues, liability, causation and damages. In this trial, you will only be concerned with the issues of causation and damages because the defendant has admitted liability. Specifically, the defendant admits that the defendant was negligent and/or at fault in that it breached its duty to keep the plaintiff’s medical records confidential. Therefore, the issue of liability has been determined by the agreement of the parties and you will not consider the issue in your deliberations. The only remaining issues for your consideration are whether the plaintiff proved that the actions of the defendant were a proximate cause of her claimed injuries, and what are her damages."
The case was tried to a jury. After the jury was selected, evidence commenced on November 27, 2018, and was completed on December 4, 2018. Following closing arguments, the court instructed the jury on the law on December 5, 2018. On December 5, 2018, the jury rendered a verdict in favor of the plaintiff and awarded non-economic damages in the amount $853,000.
The plaintiff did not make a claim for economic damages.
In a motion and memorandum of law in support thereof dated March 7, 2019, the defendant moved for a new trial, to set aside the verdict, and/or for a remittitur pursuant to Practice Book § § 16-35, 17-2A, and 17-4A and General Statutes § § 52-270 and 52-228b. The defendant’s memorandum was also submitted in support of its motion for directed verdict. The plaintiff filed an objection to the defendant’s motion dated March 19, 2019. The defendant filed a reply on March 26, 2019. The motion and the objection thereto were heard by the court on July 8, 2019, at which time the court reserved judgment.
The defendant moved for a directed verdict at the end of the plaintiff’s case-in-chief. The court reserved judgment. Practice Book § 16-37 provides in relevant part: "Whenever a motion for a directed verdict made at any time after the close of the plaintiff’s case-in-chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. After the acceptance of a verdict and within the time stated in [Practice Book § ]16-35 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict ..."
The defendant contends that the requested relief is the appropriate remedy because the court’s evidentiary rulings and jury charge deprived the jury of the evidence and guidance needed to consider the negligence of persons other than the defendant. The defendant further claims that the jury was inappropriately presented with a report from David J. Brosell, Ph.D., a psychotherapist who testified as the plaintiff’s expert witness; that the jury was incorrectly permitted to consider an award of future non-economic damages; that the court failed to properly instruct the jury relative to "false testimony"; that the instruction on negligent infliction of emotional distress was confusing; and that the jury was not provided with a verdict sheet that differentiated between past and future damages. Finally, the defendant asserts that the jury was inappropriately permitted to consider inflammatory and cumulative testimony of the plaintiff’s past which, when combined with the other errors, caused an inflated verdict which should be reduced.
The plaintiff’s objection centers on the fact that the defendant admitted that it failed to fulfill its contractual and common-law duties imposed by law and/or HIPAA regulations to ensure that the plaintiff was notified of the subpoena of her medical chart and that the only appropriate focus on causation is the harm that flowed from that conduct. The plaintiff asserts that each of the specifications of negligence, admitted by the defendant, do not implicate or recite any act or omissions of nonparties. Therefore, since there was no apportionment or special defenses asserted, no evidence to contradict the admitted allegations was permissible.
Health Insurance Portability and Accountability Act of 1996, Pub. L. No . 104-191, 110 Stat. 1936.
II.
DISCUSSION
A. Motion for a New Trial and Motion to Set Aside the Verdict
As to the defendant’s motion for a new trial, motion for a directed verdict and motion to set aside the verdict, the court will set forth the appropriate standard of review.
"A motion for a new trial is addressed to the sound discretion of the trial court and will never be granted except on substantial grounds." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 98, 956 A.2d 1145 (2008). The trial court has "broad discretion ... to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial." (Internal quotation marks omitted.) State v. Ouellette, 110 Conn.App. 401, 416, 955 A.2d 582 (2008), aff’d, 295 Conn. 173, 989 A.2d 1048 (2010).
Likewise, "[t]he trial court possesses inherent power to set aside a jury verdict [that], in the court’s opinion, is against the law or the evidence ... [The trial court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside [when] the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles ... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion ..." (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006).
"[A] trial court may set aside a verdict on a finding that the verdict [was] manifestly unjust because the jury, on the basis of the evidence presented, mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case can be applied." (Internal quotation marks omitted.) Sargis v. Donahue, 142 Conn.App. 505, 511, 65 A.3d 20, cert. denied, 309 Conn. 914, 70 A.3d 38 (2013). A verdict may also "be set aside if its result justifies a suspicion that a juror or jurors were influenced by prejudice, corruption or partiality." (Citation omitted.) Novak v. Scalesse, 43 Conn.App. 94, 97-98, 681 A.2d 968, cert. granted, 239 Conn. 925, 682 A.2d 1004 (1996).
"When reviewing ... a motion to set aside the verdict ... the trial judge must review the evidence from the viewpoint of sustaining the verdict." Levine v. 418 Meadow Street Associates, LLC, 163 Conn.App. 701, 712, 137 A.3d 88 (2016).
As to the defendant’s motion for a direct verdict, Practice Book § 16-37 provides in relevant part: "Whenever a motion for a directed verdict made at any time after the close of the plaintiff’s case-in-chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion." "Directed verdicts are not favored ... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion ... In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff ... Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation ... A directed verdict is justified if ... the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party." (Internal quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007). "A verdict may be directed ... where the claim is that there is insufficient evidence to sustain a favorable verdict." (Internal quotation marks omitted.) Beale v. Yale-New Haven Hospital, 89 Conn.App. 556, 566, 874 A.2d 259 (2005).
The court first notes that, without objection from either party, the court advised the jury as to the nature of the case prior to opening statements and during the charge to the jury as follows:
"This proceeding is what we refer to as a hearing in damages. Trials such as this generally involve three issues, liability, causation and damages. In this trial, you will only be concerned with the issues of causation and damages because the defendant has admitted liability. Specifically, the defendant admits that the defendant was negligent and/or at fault in that it breached its duty to keep the plaintiff’s medical records confidential. Therefore, the issue of liability has been determined by the agreement of the parties and you will not consider the issue in your deliberations. The only remaining issues for your consideration are whether the plaintiff proved that the actions of the defendant were a proximate cause of her claimed injuries, and what are her damages."
In this case, the defendant argues that the preclusion of testimony concerning the negligence of non-parties prevented the jury from fully considering the legal cause of the plaintiff’s injuries.
The plaintiff has objected and asserts that the defendant’s argument is contrary to law since the defendant has admitted negligence and failed to allege intervening cause as a special defense or apportion in any third-party actor.
First, the court notes that actions of non-parties were admitted into evidence. For example, by agreement of the parties the jury was advised that the following facts were agreed to and stipulated:
On October 11, 2018, the court, Kamp, J., issued a ruling regarding the actions of nonparties, which this court read into the record prior to the offer of proof regarding Judge Killian, discussed infra:
1. On July 5, 2005, an attorney, Paul Garlinghouse, issued a subpoena to Avery Center.
2. The subpoena sought the production of "All medical records of Emily Byrne."
3. Paul Garlinghouse represented Andro Mendoza, who was a former boyfriend of Emily Byrne.
4. In response to that subpoena, Avery Center copied and sent the records by 1st class mail to 873 State Street, New Haven, CT, the location identified on the subpoena.
5. The New Haven Regional Children’s Court is located at that address.
6. The Avery Center mailed the plaintiff’s records to the New Haven Children’s Probate Court, and those records were placed into the publically accessible file.
7. The medical records never left the courthouse.
8. For the purposes of this case, Exhibit 2 contains all of the medical records were sent by Avery Center to the New Haven Children’s Probate Court.
Further, extensive testimony was offered by Attorney Joseph Gegeny, a fact witness, who represented the plaintiff during the period in which the disclosure of medical records occurred. Attorney Gegeny testified at length regarding the aforementioned subpoena and his interactions with Attorney Garlinghouse and the New Haven Regional Children’s Probate Court. The court did not permit Attorney Gegeny, a fact witness, to opine that Attorney Garlinghouse violated the Rules of Professional Conduct, violated his duty of candor to the tribunal, committed judicial misconduct, or violated a state statute.
Next, the defendant asserts that the court improperly precluded Robert J. Killian, a retired probate judge, from testifying that the clerk of the New Haven Probate Court was negligent in handling the plaintiff’s medical records. The plaintiff contends that the exclusion of Judge Killian’s testimony was proper because the issue to be determined by the jury was whether the admitted breach in failing to notify the plaintiff of the subpoena before disclosure was made was a substantial factor in bringing about the harm.
The court notes that Judge Killian provided extensive testimony as to how probate courts should handle confidential medical records. His testimony was limited based upon the offer of proof presented to the court. The court noted that Judge Killian could testify as to his general knowledge of probate courts and how probate courts manage confidential medical records, but he could not testify as to specific procedures of the New Haven Regional Children’s Probate Court since there were no statewide rules of procedure in effect in 2005, and he did not know the specifics of how the New Haven Regional Children’s Probate Court "handled things that day" and was not familiar with the procedures in the New Haven Regional Children’s Probate Court in 2005.
Further, in addition to the standard instructions regarding proximate cause, the court instructed the jury on "multiple causes" as follows.
"Under the definitions I have given you, negligent conduct can be a proximate cause of an injury if it is not the only cause, or even the most significant cause of the injury, provided it contributes materially to the production of the injury, and thus is a substantial factor in bringing it about. Therefore, when a defendant’s negligence combines together with one or more other causes to produce an injury, such negligence is a proximate cause of the injury if its contribution to the production of the injury, in comparison to all other causes, is material or substantial.
"When, however, some other cause/causes contribute so powerfully to the production of an injury as to make the defendant’s negligent contribution to the injury merely trivial or inconsequential, the defendant’s negligence must be rejected as a proximate cause of the injury, for it has not been a substantial factor in bringing the injury about.
"As I instructed you during the course of the trial, the [defendant] called Robert Killian as a witness. He is a retired probate judge that testified as to certain probate court procedures in general. He was offered by the defense only to provide testimony as to the cause of the plaintiff’s injuries. I remind you that the New Haven Regional Children’s Court and its staff nor are any other parties ... nor any other parties or entities are parties to this action and are not liable to the plaintiff for any of her damages claimed in this action. The defendant has admitted liability. This testimony was offered only on the issue of proximate cause."
As set forth in Snell v. Norwalk Yellow Cab, Inc., 332 Conn. 720, 742 (2019), "few other areas of tort law have consistently proven as challenging for courts to explain and for juries to apply as the principles underlying the doctrines of proximate cause and superseding cause ...
"In light of the significant changes to our tort system implemented by tort reform, however, this court determined in [Barry v. Quality Steel Products, Inc., 263 Conn. 424, 436-39, 820 A.2d 258 (2002)] ‘that the doctrine of superseding cause no longer serves a useful purpose in our jurisprudence when a defendant claims that a subsequent negligent act by a third party cuts off its own liability for the plaintiff’s injuries. [In such] circumstances, superseding cause instructions serve to complicate what is fundamentally a proximate cause analysis ... [B]ecause our statutes allow for apportionment among negligent defendants; see General Statutes § 52-572h; and because Connecticut is a comparative negligence jurisdiction; General Statutes § 52-572o ; the simpler and less confusing approach to cases ... [in which] the jury must determine which, among many, causes contributed to the [plaintiff’s] injury, is to couch the analysis in proximate cause rather than allowing the defendants to raise a defense of superseding cause.’ (Footnote omitted.) ... [S]ee also id., 443 n.18 (‘[T]he doctrine of superseding cause is already incorporated into the test for proximate cause. Repeating the test for superseding cause, then, merely adds confusion to an already confusing subject, and serves no meaningful purpose in a jurisdiction, such as ours, [in which] a defendant will be liable only for his or her proportion of the plaintiff’s damages.’)
"Under this approach, ‘the fact finder need only determine whether the allegedly negligent conduct of any actor was a proximate cause, specifically, whether the conduct was a substantial factor in contributing to the plaintiff’s injuries. If such conduct is found to be a proximate cause of the plaintiff’s foreseeable injury, each actor will pay his or her proportionate share pursuant to our apportionment statute, regardless of whether another’s conduct also contributed to the plaintiff’s injury. Put differently, the term superseding cause merely describes more fully the concept of proximate cause when there is more than one alleged act of negligence, and is not functionally distinct from the determination of whether an act is a proximate cause of the injury suffered by the plaintiff.’ Id., 440.
"In reaching our determination in Barry, we expressly limited our holding to cases in which ‘a defendant claims that its tortious conduct is superseded by a subsequent negligent act or there are multiple acts of negligence,’ stating that our decision did ‘not necessarily affect those cases [in which] the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortious conduct.’ Id., 439 n.16. Later, we made clear that our holding in Barry did not affect those types of cases. E.g., [Sapko v. State, 305 Conn. 360, 377, 44 A.3d 827 (2012) (‘the superseding cause doctrine was largely abandoned in Barry in favor of comparative and contributory negligence ... subject ... to certain narrow exceptions, namely, situations in which an unforeseeable intentional tort, force of nature or criminal event supersedes the defendant’s tortious conduct’ [citation omitted; internal quotation marks omitted] ); [Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 167, 971 A.2d 676 (2009)] (Barry ‘specifically limited our abolishment of the doctrine to the situation in cases ... [in which] a defendant claims that its tortious conduct is superseded by a subsequent negligent act or there are multiple acts of negligence’ [internal quotation marks omitted] )." (Citation omitted.) Snell v. Norwalk Yellow Cab, Inc., supra, 332 Conn. 748-50.
The court finds that the evidentiary rulings and the charge to the jury in the present matter were in accordance with the law as set forth in Snell.
The defendant next claims that the court erred when it failed to instruct the jury that the defendant could rely on others to act appropriately. The court disagrees. The defendant admitted that it was negligent and/or at fault in releasing the medical records. The jury was instructed on the issue presented to them: was the negligence and/or fault as admitted by the defendant a proximate cause of the plaintiff’s injuries? Further, the court charged the jury as to multiple causes as set forth above.
The defendant next claims that Dr. Brosell’s opinions lacked proper basis and foundation and were speculative. In Dr. Brosell’s report, he opined that "[I]t is my opinion, based on a reasonable degree of medical certainty, that the release of the client’s medical records was responsible for 75% of the client’s experience of trauma and the development of Posttraumatic Stress Disorder." The defendant argues that this causation opinion appears nowhere in Dr. Brosell’s treatment records and there is no indication that during his treatment of the plaintiff he ever considered what percentage of her post-traumatic stress disorder was caused by the disclosure.
The court, Kamp J., determined: "I’m going to allow that report ... I mean if- if that was something that was- that was sprung on you last week or last month and the doctor was unavailable to be deposed or to testify, then you’d have a persuasive argument. But it was ten years ago or however many years ago it was, it was a long time ago that you were or both the percentage, you had an opportunity to depose him and it’s not like it’s a late disclosure. It happened years ago. So, I’m going to allow it to come in." In addition, the court notes that the defendant deposed Dr. Brosell on September 17, 2010, at which time the defendant questioned Dr. Brosell extensively regarding his opinions. By agreement, the relevant portions of the deposition transcript were read to the jury.
As to the claim of future non-economic damages, the defendant claims that Dr. Brosell’s opinion was speculative in that he stated that the plaintiff would experience post-traumatic stress disorder symptoms again "should the client be again faced with events similar to those which originally triggered the Posttraumatic Stress Disorder symptoms ... I am not qualified to predict the existence and extent of a permanent disability beyond that."
The plaintiff, however, asserts that Dr. Brosell’s report, along with the testimony of Michele Reed, a licensed clinical social worker who treated the plaintiff in 2013, were together sufficient for the jury be instructed on future non-economic damages. Further, the plaintiff contends that the defendant did not object to the court taking judicial notice of the plaintiff’s life expectancy and the fact that, since the present trial was held over thirteen years after the disclosure at issue, the defendant cannot now argue that future damages were not appropriate for the jury to consider. The court further notes that the plaintiff testified, in response to the question of "How have you been damaged by having confidential private health information released by the Avery Center and used by [the plaintiff’s former boyfriend Andro] Mendoza against you" as follows: "I mean, it’s hard to describe all the emotional harm. I mean, it caused a lot of suffering, a tremendous amount of anxiety and hurt and sadness." The plaintiff further testified that she "didn’t go for medical care unless it was absolutely necessary to ... I was afraid that anything would be released, you know- I didn’t feel- I no longer felt safe as a patient."
The court further notes that it instructed the jury as to expert witnesses: "We have had in this case the testimony of expert witnesses. There also has been evidence introduced in this case through medical records involving expert witnesses. In other words, some of the medical records may contain expert opinions by health care professionals.
"Expert witnesses, such as doctors, are people who, because of their training, education, and experience, have knowledge beyond that of the ordinary person. Because of that expertise in whatever field they happen to be in, expert witnesses are allowed to give their opinions.
"Ordinarily, a witness cannot give an opinion about anything, but rather is limited to the facts in that witness’s personal knowledge.
"However, the fact that the witnesses may qualify as experts does not mean that you have to accept their opinions. You can accept or reject them.
"It is then up to you to decide whether or not to accept the opinion. You may believe all, some or none of the testimony of an expert witness. In other words, an expert’s evidence is subject to your review like that of any other witness."
Further, without objection by the defendant, the court instructed the jury as to the plaintiff’s life expectancy: "If you find that the plaintiff has suffered permanent injury of the kind I have indicated there has been evidence about, you should consider the evidence that the plaintiff has a future life expectancy of 39.7 years from this date according to mortality tables in evidence. The parties agree on the plaintiff’s life expectancy, and you are to find that fact as proven without the need for evidence. That future life expectancy is an average for a female person of the plaintiff’s present age. With respect to that expected life, bear in mind that individuals may reasonably be expected to live longer or shorter than the average for any person, according to whether or not the person’s health or physical stamina is greater or less than the average person. Also, keep in mind that these averages are also subject to the normal incidents and circumstances which occur in life."
The court further notes that based upon the evidence presented, including the length of time from the admitted negligence and/or fault of the defendant to the verdict, "[a] trier of facts can conclude, by inference, that an injury will be permanent even though there is no medical testimony expressly substantiating permanency." Royston v. Factor, 1 Conn.App. 576, 577, 474 A.2d 108, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984); accord Hammer v. Posta, 170 Conn.App. 701, 712, 155 A.3d 801 (2017).
"This principle is based on the recognition by Connecticut courts that jurors are able to evaluate for themselves the testimony of the plaintiff, as well as the nature and duration of the injury, the likelihood of its continuance into the future, and the lack of total recovery by the time of trial. Trani v. Anchor Hocking Glass Corp., 142 Conn. 541, 543-44, 116 A.2d 167 (1955); Boland v. Vanderbilt, 140 Conn. 520, 523, 102 A.2d 362 (1953). If a jury has the opportunity to appraise the condition of a plaintiff and its probable future consequence, an award of damages for permanent injury and for future pain and suffering is proper. [Id.], 523." Parker v. Supermarkets General Corp., 36 Conn.App. 647, 650-51, 652 A.2d 1047 (1995).
"It is well established that [a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given ... [A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence ..." (Internal quotation marks omitted.) Wasko v. Farley, 108 Conn.App. 156, 169, 947 A.2d 978, cert. denied, 289 Conn. 922, 958 A.2d 155 (2008).
The defendant next argues that the jury should not have been permitted to hear cumulative, inflammatory, and irrelevant testimony about information that Mendoza knew prior to the defendant’s disclosure. Further, the defendant argues that the court erred in failing to strike the plaintiff’s testimony regarding her bankruptcy filing as same was irrelevant.
The court finds that this evidence was relevant to material issues in the case including the credibility of witnesses. "Relevant evidence is evidence that has a logical tendency to aid the trier of fact in the determination of an issue." Hall v. Burns, 213 Conn. 446, 473, 569 A.2d 10 (1990). The court further notes that as to the bankruptcy issue, the bankruptcy trustee is a party plaintiff.
The defendant next claims that the court failed to properly instruct the jury regarding "false testimony" and negligent infliction of emotional distress. The court found no basis in the evidence for a "false testimony" charge but did charge the jury on the credibility of witnesses as follows: "The credibility of witnesses and the weight to be given to their testimony are matters for you as jurors to determine. However, there are some principles that you should keep in mind. No fact is, of course, to be determined merely by the number of witnesses who testify for or against it; it is the quality and not the quantity of testimony that controls.
"In weighing the testimony of each witness you should consider the witness’ appearance on the stand, and whether the witness has an interest of whatever sort in the outcome of the trial. You should consider the opportunity and ability of a witness to observe facts correctly and to remember them accurately, and you should test the testimony by your own knowledge of human nature and the motives that influence and control human actions. You may consider the reasonableness of what the witness says, and the consistency or inconsistency of their testimony. You may consider the testimony of a witness in relation to facts that you find to have been otherwise proven. You may believe all of what a witness tells you, some of what a witness tells you, or none of what a witness tells you. You may reject testimony, even if not contradicted by other evidence, if you find it reasonable to do so. In short, you are to apply the same considerations and use the same sound judgment and common sense that you use for questions of truth and veracity in your daily life."
Further, as to the defendant’s claim that the negligent infliction of emotional distress charge was confusing, this issue was addressed by the court prior to the jury charge. In response to the defendant’s request, in addition to providing Jury Instruction 3.12-2, which pertains to negligent infliction of emotional distress, the court revised the charge, explaining: "I’m going to add, as we have talked about before, the defendant has admitted liability on all three counts. So the issue before you is causation and damages which I’m now going to explain to you. So with- again, the defendant has admitted liability on those three counts and we’re going to go to causation and damages."
The defendant also asserts that its request for a jury interrogatory specifying the awards for future and past emotional harm was rejected. The record indicates that the defendant requested the interrogatory after the court had completed the vast majority of the jury charge. Practice Book § 16-22 provides in relevant part: "[W]ritten requests for jury interrogatories must be filed with the clerk [of the court] before the beginning of arguments or at such an earlier time as the judicial authority directs ..." Accordingly, the defendant’s request for a jury interrogatory was not timely filed.
Based upon the foregoing analysis, the court finds that the court’s evidentiary rulings and the charge to the jury were in accordance with applicable law. Accordingly, a new trial, a directed verdict and/or setting aside the jury verdict are each unwarranted.
B. Remittitur
The defendant also has moved for a remittitur. "In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict ... Upon completing that review, the court should not interfere with the jury’s determination except when the verdict is plainly excessive or exorbitant ... The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption ... The court’s broad power to order a remittitur should be exercised only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court’s explicit and unchallenged instructions ... This court has upheld a remittitur order only when we have laid before us a very clear and striking case of indubitable wrong, so clear and striking as to indicate the influence of undue sympathy, prejudice or corruption on the verdict." (Citation omitted; internal quotation marks omitted.) Munn v. Hotchkiss School, 326 Conn. 540, 575-76, 165 A.3d 1167 (2017). See also General Statutes § 52-216a (providing statutory authority for a court’s order of a remittitur); Practice Book § 16-35 (addressing, inter alia, motions for a remittitur).
"The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury ... The evidence offered at trial must be given the most favorable construction to which it is reasonably entitled in support of the verdict ... Only under the most compelling circumstances may the court set aside a jury verdict because to do so interferes with a litigant’s constitutional right in appropriate cases to have issues of fact decided by a jury ... The amount of damages to be awarded is a matter particularly within the province of the jury." (Internal quotation marks omitted.) Harrell v. 5 L, LLC, Superior Court, judicial district of Hartford, Docket No. CV-17-6074830-S (July 3, 2019, Gordon, J.) (quoting Shea v. Paczowski, 11 Conn.App. 232, 233-34, 526 A.2d 558 (1987).
The court concludes that there was sufficient evidence to permit a jury to reach its verdict and there is nothing to suggest that the jury was influenced by prejudice, corruption, mistake or partiality.
CONCLUSION
Based upon the foregoing, the defendant’s motion for a new trial, motion to set aside the verdict, motion for a directed verdict, and motion for a remittitur are denied.
"If- if I’m going to allow this, which I’m- which I was inclined to allow you to do, it was only for the purpose of arguing that the conduct of your client was not a substantial factor under proximate cause analysis because that’s- you’ve admitted liability already. You’ve admitted that your conduct was negligent."But I do think you’re entitled to make the break in causation argument, but you can’t do it in a way that you’re really seeking to apportion liability to nonparty. And that might be threading a needle, but I think it’s an important distinction. Okay." (Transcript pp. 44, 46, October 11, 2010.)