Opinion
HHDCV156059064S
03-25-2019
Kenneth Gilbert v. Victoria Pietrzak et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Gordon, Matthew D., J.
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION FOR REMITTITUR OR TO SET ASIDE VERDICT
Matthew Dallas Gordon, J.
In this personal injury action, the defendants, Victoria Pietrzak and Adele Pietrzak, move the court to order a remittitur of the jury’s November 30, 2018 verdict in favor of the plaintiff, Kenneth Gilbert, in the total amount of $280,925.24, or to set the jury’s verdict aside. The defendants assert that the jury’s verdict is excessive and contrary to the evidence presented at trial insofar as the verdict included $71,400 for future medical expenses. For the reasons set forth below, the defendant’s motion is denied.
I
BACKGROUND
On April 30, 2015, the plaintiff commenced this action alleging that the defendants are liable for the injuries and damages the plaintiff suffered as a result of a motor vehicle accident that occurred on May 1, 2013. On June 16, 2015, the defendants filed the operative answer denying causation. On November 27, 2018, the case was tried to the jury. The parties stipulated that the plaintiff has a life expectancy of twenty-one years. At trial, the plaintiff presented testimonial evidence of Dr. Arpad S. Fejos, M.D., as well as medical bills, records, and reports concerning the plaintiff’s medical treatment.
Within the deposition testimony, Dr. Fejos testified, based on a reasonable degree of medical probability, that the plaintiff would require future medical treatment in the form of two epidural injections a year to help maintain the plaintiff at his current level of functioning. Additionally Dr. Fejos testified that if the epidural injections maintain their same positive effect, the plaintiff will require these injections for the rest of his life. Dr. Fejos clarified that this hypothetical scenario almost never occurs, however, because "in a condition like this and like any musculoskeletal condition things worsen with time. So in this case he has edema around his spinal cord. So he doesn’t really have much room for worsening. If he does get any worse he will require surgery. So the natural course of this condition is to worsen with time ... If he gets surgery there’s no more epidurals to be done." Furthermore, Dr. Fejos testified that in his opinion, based on a reasonable degree of medical probability, the plaintiff’s condition will worsen over time, the injections the plaintiff is receiving will become less effective over time, and that the plaintiff will eventually require cervical surgery at some point in the future.
In addition to Dr. Fejos’ testimony, the plaintiff submitted medical reports completed by Dr. Fejos concerning the plaintiff’s treatment for cervical spine pain. Within the report, Dr. Fejos indicated that he began seeing the plaintiff on August 10, 2017, and the plaintiff has since undergone three cervical epidural steroid injections that resulted in a significant improvement of his symptoms. Dr. Fejos indicated in the report that in his opinion, based on a reasonable degree of medical probability, the plaintiff will require cervical epidural steroid injections twice a year to help maintain his current level of functioning. Dr. Fejos provided that each injection and the corresponding appointments cost approximately $1,700. Lastly, Dr. Fejos indicated that the plaintiff’s symptoms will worsen and that the injection therapy will become less effective over time because of the nature of the plaintiff’s condition.
On November 30, 2018, the jury returned a verdict for the plaintiff in the total amount of $280,925.24. The verdict form itemized $17,525.24 for past medical expenses, $192,000 for noneconomic damages, and $71,400 for future medical expenses. On December 7, 2018, the defendants filed the present motion for remittitur or to set aside the verdict. The defendants contend that the jury’s award of future medical expenses was improper because it was not based upon evidence presented at trial. Specifically, the defendants argue that there was no evidence presented for the jury to reasonably conclude that the plaintiff would incur future medical expenses in the form of injections for the rest of his life. In support, the defendants contend that the jury was speculating when it awarded the plaintiff $71,000 in future medical expenses by multiplying $3,400 (the cost of two injections per year) by twenty-one years (the plaintiff’s stipulated life expectancy) without any evidence presented as to how long the plaintiff would receive these injections to a reasonable degree of medical probability.
On December 10, 2018, the plaintiff filed an objection and memorandum in opposition to the defendants’ motion arguing that the jury’s award of future medical expenses was supported by the evidence, and that the award is not excessive as a matter of law. On January 8, 2019, the defendants filed a reply to the plaintiff’s objection to the motion for remittitur or to set aside the verdict. On January 14, 2019, the court heard argument regarding the defendants’ motion and the plaintiff’s objection.
II
DISCUSSION
A trial court has discretion, under limited circumstances, to order a remittitur of the jury verdict, or to set the verdict aside entirely. See Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 280, 32 A.3d 318 (2011); General Statutes § 52-216a; Practice Book § 16-35; see also Chief Information Officer v. Computers Plus Center, Inc., 310 Conn. 60, 98, 74 A.3d 1242 (2013). General Statutes § 52-216a provides in relevant part: "If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial."
"A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion ... This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury ... An appellate court ... in reviewing whether a trial court abused its legal discretion, must review the entire record and [all] the evidence ... Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached ... [I]f there is a reasonable basis in the evidence for the jury’s verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work [its] will." (Internal quotation marks omitted.) Madigan v. Housing Authority, 156 Conn.App. 339, 348-49, 113 A.3d 1018 (2015). "[T]he role of the trial court on a motion to set aside the jury’s verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did ... A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear ... A verdict will be deemed intelligible if it clearly manifests the intent of the jury." (Internal quotation marks omitted.) Weihing v. Preto-Rodas, 170 Conn.App. 880, 884, 155 A.3d 1278 (2017).
"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." (Internal quotation marks omitted.) Munn v. Hotchkiss School, 326 Conn. 540, 575-76, 165 A.3d 1167 (2017), aff’d, 724 Fed.Appx. 25 (2d Cir. 2018); see § 52-216a; Practice Book § 16-35. "[T]he ruling of the trial court on the motion to set aside the verdict as excessive is entitled to great weight and every reasonable presumption should be given in favor of its correctness ... Likewise, in ordering a remittitur, a fair appraisal of compensatory damages, and not the limit of legitimate generosity, is the rule ... 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." (Internal quotation marks omitted.) Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 33-34, 60 A.3d 222 (2013).
"It is well established that [i]n assessing damages in a tort action, a trier is not concerned with possibilities but with reasonable probabilities ... [A]s to future medical expenses, the jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities ... The obvious purpose of this requirement is to prevent the jury from awarding damages for future medical expenses based merely on speculation or conjecture. Because, however, [f]uture medical expenses do not require the same degree of certainty as past medical expenses ... it is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date ... when there is also a degree of medical certainty that future medical expenses will be necessary." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Marchetti v. Ramirez, 240 Conn. 49, 54-55, 688 A.2d 1325 (1997).
"Damages for the future consequences of an injury can never be forecast with certainty. With respect to awards for permanent injuries, actuarial tables of average life expectancy are commonly used to assist the trier in measuring the loss a plaintiff is likely to sustain from the future effects of an injury ... Moreover, [t]he cost and frequency of past medical treatment ... may be used as a yardstick for future expenses if it can be inferred that the plaintiff will continue to seek the same form of treatment in the future." (Citations omitted; internal quotation marks omitted.) Id., 56. "[W]e are not persuaded that testimony by a medical expert that the plaintiff might need future treatment, coupled with the plaintiff’s assertion that he still suffers pain, necessarily removes the issue of future medical expenses from the realm of conjecture. In such circumstances, the jury still must speculate as to the likelihood that future medical expenses will be incurred." (Emphasis omitted.) Id., 55. Evidence that a plaintiff may or might undergo future medical treatment is insufficient to establish a reasonable probability that a plaintiff would incur future medical expenses to support an award for such expenses. See Madsen v. Gates, 85 Conn.App. 383, 396-97, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004); see also Calvi v. Agro, 59 Conn.App. 732, 736-37, 757 A.2d 1260 (2000). "Accordingly, [t]he evidence at trial must be sufficient to support a reasonable likelihood that future medical expenses will be necessary." (Internal quotation marks omitted.) Lingenheld v. Desjardins Woodworking, Inc., 105 Conn.App. 163, 174, 936 A.2d 723 (2008). Connecticut courts have ordered remittiturs or granted motions to set aside verdicts when the evidence presented at trial, viewed in the light most favorable to the plaintiff, could not support an award of future medical expenses. See Smallridge v. Tramantozzi, Goldblatt & Fabry Surgical Associates, Superior Court, judicial district of Middlesex, Docket No. X04-CV-03-4001300-S, 2006 WL 3290398, *5-9 (October 25, 2006, Beach, J.) (finding jury speculated in awarding future medical expenses due to lack of evidence concerning cost of plaintiff’s future medical procedure and treatment); See Veloccia v. Cruz, Superior Court, judicial district of New Britain, Docket No. CV-02-0518141-S, 2004 WL 2898167, *1-2 (November 5, 2004, Burke, J.) (finding insufficient evidence to support award of future medical expenses when medical reports fail to discuss plaintiff’s need for future medical treatment); Babbitt v. Winkle Bus Co, Inc., Superior Court, judicial district of New Haven, Docket No. CV-00-0446938-S, 2002 WL 31015518, *1 (August 2, 2002, Zoarski, J.T.R.) (finding insufficient evidence to support award of future medical expenses when there was no evidence based upon a degree of medical certainty that future medical expenses would be incurred).
Applying these principles to the case at hand, the court concludes that the defendants’ motion should be denied because the jury’s award of future medical expenses is supported by the evidence and is not so excessive as to shock the conscience, or the court’s sense of justice. The jury could have reasonably concluded that the plaintiff would require significant, future medical treatment in the form of cervical epidural steroid injections. At issue in the present motion is whether the plaintiff presented sufficient evidence of the duration in which he would require this future medical treatment for the jury to have awarded future medical expenses. The evidence presented at trial included testimony by Dr. Fejos and multiple medical bills, records and reports concerning the plaintiff’s medical treatment. Dr. Fejos testified that in his opinion, based on a reasonable degree of medical probability, the plaintiff would require future medical treatment in the form of two injections a year to help maintain the plaintiff at his current level of functioning. Additionally, Dr. Fejos states in his medical report that in his opinion, under a reasonable degree of medical probability, the plaintiff will require injections twice a year to help maintain his current level of functioning. Dr. Fejos also states in the report that each injection and the corresponding appointments cost approximately $1,700. The plaintiff’s prior medical bills for these injections were admitted into evidence, and the parties stipulated to the plaintiff’s life expectancy as twenty-one years.
Based upon a combination of this evidence, the court finds that the jury could have reasonably concluded that the plaintiff would require future medical treatment in the form of cervical epidural steroid injections for the rest of his stipulated life based on Dr. Fejos’ report indicating that the plaintiff would require these injections in order to maintain his current level of functioning. See Betkoski v. Albini, Superior Court, judicial district of Waterbury, Docket No. CV-09-5012058-S, 2010 WL 4352722, *7 (October 8, 2010, Sheedy, J.). In Betkoski v. Albini, the court found that there was sufficient evidence that the plaintiff would require future medical treatment to support the jury’s award of future medical expenses. Id. The evidence included a medical report by Dr. James Albino in which he recommended the plaintiff continue a "maintenance" program of care at least once a month to treat her frequent episodes of exacerbation from a spinal injury, along with past medical expenses and bills, the cost for future treatment, and the plaintiff’s stipulated life expectancy of roughly thirty-eight years. Id. In the present matter, the plaintiff submitted comparable evidence to the jury in order to support an award for future medical expenses. Dr. Fejos’ use of the word "maintain" in the medical report provided the jury with sufficient evidence as to the duration in which the plaintiff would require future medical treatment in the form of injections. Thus, the jury could have reasonably used the plaintiff’s prior medical expenses and bills relating to the injections, Dr. Fejos’ testimony and report pertaining to the probability of future injections, and the plaintiff’s stipulated life expectancy of twenty-one years to arrive at a reasonable calculation of the future medical expenses the plaintiff would incur from the injections.
Although Dr. Fejos testified that in his opinion, based on a reasonable degree of medical probability, the plaintiff’s condition will worsen over time, that the injections will become less effective over time, and that the plaintiff will require cervical surgery at some point in the future, Dr. Fejos’ report and testimony does not indicate that the plaintiff would ever have to cease receiving the injections during the course of his life because of his worsening condition or the lessening effectiveness of the injections. Dr. Fejos testified that the plaintiff would only be precluded from receiving these injections if he elected to have surgery. The court notes that Dr. Fejos’ report indicates that surgery was one of many viable treatment options recommended by Dr. Fejos to the plaintiff along with injections, conservative treatment, and living with the symptoms. Thus, the jury could have reasonably concluded from the evidence that the plaintiff would continue electing to receive injections for the rest of his stipulated life in order to maintain his current level of functioning despite any worsening of his condition or the lessening effectiveness of the injections.
CONCLUSION
For the foregoing reasons, that the defendants’ motion for remittitur or to set aside the verdict is denied and judgment may enter for the plaintiff in the amount of $280,925.24 in accordance with the verdict.