Opinion
FSTCV146023643
06-06-2017
Elizabeth Spalter Iino v. Diane Rogers Spalter, Executrix of the Estate of Harold F. Spalter
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR REMITTITUR (#276)
Hon. Charles T. Lee, J.
On or about October 14, 2014, plaintiff Elizabeth Spalter Iino commenced this action for sexual assault against the estate of her father, Dr. Harold F. Spalter. The complaint alleges that Dr. Spalter sexually abused his daughter on numerous occasions starting when she was six years old and continuing until she was seventeen. Ms. Iino claims that this abuse caused her to suffer emotional and psychological distress and pain and suffering throughout her life and continuing to the present, thirty years later, and that such injury is permanent.
The case went to trial before a jury on February 7, 2017. On March 10, 2017, the jury returned a verdict of $15,000,000 in favor of the plaintiff, with an award of common law punitive damages in an amount to be determined by the court after a hearing to assess reasonable fees and non-taxable costs. In its responses to the jury interrogatories, the jury found that plaintiff had " proven by a fair preponderance of the evidence that [Dr. Spalter] committed intentional sexual assault on her"; that she had " proven by a fair preponderance of the evidence that Dr. Spalter's sexual abuse of plaintiff was a material or substantial factor in causing the harm plaintiff claims"; and awarded the following compensatory damages: " a. Mental anguish and emotional distress--$5,000,000; b. Psychological trauma and injuries--$5,000,000; c. Permanency of injuries--$3,000,000; and d. Inability to pursue life's enjoyment--$2,000,000, " for a total amount of $15,000,000.
On March 20, 2017, the defendant filed a motion to set aside the jury verdict and for judgment notwithstanding the verdict. The court denied that motion and filed its memorandum of decision on May 31, 2017 (No. 275.03). Defendant also filed the present motion for remittitur on March 20, 2017. Plaintiff filed an objection on April 26, 2017, and argument was heard on May 1, 2017.
Defendant seeks a remittitur to $550,000, claiming that the verdict is excessive as a matter of law. In the alternative, defendant asks the court to reduce to zero the damages the jury awarded for psychological trauma and injuries ($5 million) and permanency of injuries ($3 million) because plaintiff failed to submit any expert testimony supporting plaintiff's claims for psychological trauma and injuries or for permanency of those injuries. As more fully set forth below, the court denies the motion for remittitur in its entirety.
DISCUSSION
I. Standard of Review
" In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict. Wochek v. Foley, 193 Conn. 582, 587, 477 A.2d 1015 (1984). 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.) Mahon v. B.V. Unitron Mfg., Inc., supra, 284 Conn. at 661-62, 935 A.2d 1004." Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 281, 32 A.3d 318, 322 (2011). Our Supreme Court explained the " shocks the sense of justice standard" as follows:
We acknowledge that the " shocks the sense of justice" standard provides vague guidance at best--due, in part, to the uncertain limits of noneconomic damages. The language is intended to convey the extraordinary departure from reasonableness that is required before a court properly may exercise its authority to set aside the jury's award of damages. We have in the past stated what will not be sufficient to support a trial court's decision to set aside the jury's damages award and order a remittitur: " The fact that the jury returns a verdict in excess of what the trial judge would have awarded does not alone establish that the verdict was excessive." Campbell v. Gould, 194 Conn. 35, 41, 478 A.2d 596 (1984). Regarding what will be sufficient to support an order of remittitur, we have stated that a trial court should exercise its discretion to order remittitur only in cases " where very clear, definite and satisfactory reasons can be given for such interference." Clark v. Pendleton, supra, 20 Conn. at 509. For a trial court's remittitur order to be justified, and upheld by this court, we have stated that " we must 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." Waters v. Bristol, supra, 26 Conn. at 405.Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. 282-83 (2011).
II. The Size of the Verdict is Within the Uncertain Limits of Just Damages
In its memorandum of decision dated May 31, 2017, this court found the evidence at trial sufficient to support the jury's verdict. In so doing, the court analyzed the relevant evidence in detail and that discussion is incorporated herein by reference. In summary, the evidence showed that plaintiff, Elizabeth Spalter Iino, had been abused by her father from age six to seventeen. The abuse occurred thirty to forty times between ages six and ten or eleven. Afterwards, until Elizabeth reached age seventeen, the frequency of the abuse increased, as did its intensity. The incidence of abuse was well over one hundred times. Elizabeth felt ashamed and dirty, and started to suffer from an eating disorder. Elizabeth engaged in psychotherapeutic and weight control counseling, incest support groups and other treatments throughout her twenties and thirties. She suffered from depression and contemplated suicide. At age 47, she still participates in a support group. She also suffered and continues to suffer from effects, such as violent flashbacks, identified by an expert witness psychologist as symptomatic of PTSD. Her world view is negative and fearful, and she does not enjoy intimate relations with her husband, which has strained her marriage.
Against this backdrop, defendant argues that the award of $15 million is so much greater than awards in other comparable cases that it must be reduced. Defendant relies heavily on the decision in Grisanti v. Cioffi, 2001 WL 777435 (D.Conn. 2001), aff'd on other grounds, 38 Fed.Appx. 653 (2d Cir. 2002), which involved the claims of an adult woman who had been assaulted by the estranged father of her child on four different occasions. The district court reduced the jury's award from $2,500,000 to $1,250,000 and added an award of punitive damages of $416,667 and costs of $3,956.27, for a total judgment of $1,670,623.27. Although plaintiff did not seek counseling, she suffered sleeplessness, nightmares, depression, shame and other maladies. The court said, " Given the lack of medical substantiation of serious medical condition and permanency of injury, particularly where no medical expenses or economic losses were proved, the court must conclude that the jury's award of $2.5 million in compensatory damages for the four assaults and for the intentional infliction of emotional distress was excessive." Id. at *7. The facts of that case are not comparable to those here, which involve the abuse of a child over a hundred times over a seventeen year period of time, resulting in mental suffering which has plagued her for decades.
In 2009, the ruling of another judge of the District of Connecticut provides a useful contrast to Grisanti . In Doe v. City of Waterbury, 2009 WL 3348314, at*2-*3 (2009), the court awarded damages to two girls who had been abused repeatedly, between November 2000 and July 2001, by the Mayor of Waterbury in his office, home and city-issued police cruiser. The court reasoned,
Sexual abuse victims are entitled to significant damages. See Walker v. Dickerman, 993 F.Supp. 101, 106 (D.Conn.1997); see also Grisanti v. Cioffi, No. 3:99CV490 (JBA), 2001 WL 777435 (D.Conn.2001), aff'd, 38 Fed.Appx. 653 (2d Cir. 2002) (an award of $1.6 million in compensatory damages for a woman raped four times by the defendant did not shock the conscience).
In fashioning this award, I look to the record and the awards in Grisanti and Walker. In Grisanti, the Second Circuit upheld the district court's revised jury award of $1,670,623.27 to an adult rape victim for four instances of forcible rape. Grisanti v. Cioffi, 38 Fed.Appx. at 656. On an incident-by-incident based analysis, the plaintiff in Grisanti recovered over $417,000 for each assault. Applying that per-incident amount, Roe and Doe would each receive over $26,000,000 for the 128 instances of sexual assault. The duration and frequency of the sexual abuse inflicted upon Doe and Roe, however, makes an incident-based analysis problematic.
In light of the duration of the abuse, the numerous occasions the plaintiffs were forced to engage in sexual activity with Giordano, and the young age of the plaintiffs, the total awards in Grisanti and Walker are inadequate here. The thin record of expected future damages, however, does not support the award that plaintiffs seek. Based upon the totality of the circumstances, I award each of the plaintiffs $8,000,000.00 (eight million dollars) in compensatory and punitive damages against Giordano.
In the present case, the assaults found by the jury continued over a much longer period than in the Doe case, eleven years versus nine months, and plaintiff had suffered their effects for a longer time, as trial occurred thirty years after the abuse ended versus eight years in Doe . As a result, the jury's higher award in the present case is not inconsistent with the court's award in the Doe case.
The other cases cited by defendant do not compel a contrary conclusion. In Viola v. Kenison, 2002 WL 652244 (Conn.Super., 2002), the court, after a bench trial, found that plaintiff had been forced to perform a sex act on her stepfather four or five times over a four week period when she was five to six years old and that she was subjected to groping and exposure thereafter, continuing until she was thirteen or fourteen years old. The court awarded $50,000 for future medical expenses, where plaintiff sought $90,240, and $100,000, where plaintiff sought $250,000. As will be noted, the continuing abuse in the present case is significantly more egregious than that in Viola .
In Perron v. Robert, 2002 WL 3158217 (Conn.Super., 2002), aff'd without opinion, 81 Conn.App. 903, 841 A.2d 290 (2004), after a one-day bench trial, the court found that the defendant, who was the grandfather of plaintiff's cousins and a retired police officer fifty-six years senior to plaintiff, engaged in inappropriate kissing and touching with plaintiff between the ages of six and fourteen, causing psychological injury. The court awarded plaintiff, then twenty years old, $100,000 for non-economic damages. Again, the nature of the abuse is not comparable to the conduct involved in the present case, and the number of occurrences is not discernible.
In Blair v. LaFrance, 2000 WL 1508232 (Conn.Super. Ct., 2000), the court found that plaintiff had been abused by her uncle once at the age of eight and again when she was twelve, and that she had suffered psychological and emotional damage therefrom. The court awarded plaintiff $75,200 for economic damages and $500,000 for non-economic damages. On a per-incident basis, this equates to $250,000, which substantially exceeds a comparable figure for the present plaintiff.
In Doe v. TVCCA, 2000 WL 254608 (Conn.Super. 2000), parents and four children sued a van driver and the Head Start agency which employed the driver for damages arising out of sexual molestation when the children were three or four years old. The opinion does not disclose the nature, frequency or duration of the abuse, but it does detail the mental and psychological damages the children suffered and were likely to face. The court refused to order remittitur of a total award of economic damages to the parents of $111,600 and of $195,000 to the children and $220,000 in non-economic damages to the children. The absence of specificity in the decision limits its utility in this discussion.
Finally, in Schneider v. National Railroad Passenger Corporation, 987 F.2d 132, 137 (2d Cir., 1993), the Second Circuit did not find an award of $1,000,000 in intangible damages to be so large that it shocked the conscience. In that case, plaintiff was a middle aged woman who was attacked outside Union Station in Hartford while leaving her job, was robbed and foiled an attempted rape, and suffered from post-traumatic stress disorder (PTSD). The amount of the verdict in this single-event case involving an adult is also not inconsistent with the verdict in the present case involving over one hundred assaults on a child, causing damages which have lasted for more than three decades.
More recent cases have substantial relevance to the evaluation of the verdict. In Doe v. Boy Scouts of America, Corp., 323 Conn. 303, 311, 147 A.3d 104 (2016), our Supreme Court noted that the jury had awarded $7 million in compensatory damages to a plaintiff who was sexually abused three times as a boy by a scout leader. The trial court refused to grant remittitur. On appeal, the Supreme Court did not determine whether the verdict was excessive because it reversed and remanded for a new trial, finding error in the jury instruction as to the negligence of the scouting organization.
In Mirlis v. Greer, Docket No. 3:16 cv 678 (MPS), (D.Conn., 2017), a jury recently awarded $15 million against a New Haven rabbi and the religious school he founded as compensation for the molestation of a student over one hundred times between 2002 to 2005. See Mirlis v. Greer, Docket No. 3:16 CV 00678 (MPS), 2017 WL 1380409, *1 (D.Conn., 2017); Connecticut Law Tribune, Judge Orders Rabbi to Pay $20 Million for Sex Abuse, May 29, 2017, p. 11. In other words, the jury awarded damages in the same amount as in the present case for comparable conduct, although occurring over a shorter time and more recently.
The title of this article is misleading because the jury awarded $15 million in compensatory damages and unspecified common law punitive damages. The court determined that the proper measure of punitive damages is the plaintiff's attorneys fees plus non-taxable costs. The court indicated its intention to apply a contingent fee agreement providing for recovery of fees in an amount of one-third of the damages, as in the present case. The trial court has not yet determined the appropriate award of non-taxable costs as of this writing. See Mirlis, supra, Docket No. 3:16 CV 00678, (MPS), Order No. 159 (May 30, 2017).
These cases are helpful in establishing a range of jury verdicts in cases for sexual abuse. In light of the proof of abuse in this case, its frequency, type and duration, and of the proof of the damages suffered by plaintiff, their severity, duration and continuation to present, the court cannot conclude that the verdict, although sizable, falls " outside the necessarily uncertain limits of fair and reasonable compensation." Riley v. Travelers Home & Marine Ins. Co., 173 Conn.App. 422, 446-47 (2017). Further, the court cannot find that 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.
III. Defendant's Other Arguments Are Without Merit
Defendant argues, " It is also evident that the jury was influenced by the improper arguments of Plaintiff's counsel that, in substance, they should act as the conscience of the community and send a message by their verdict--considerations which are impermissible in making an award of compensatory damages." Motion for Remittitur, at 5. However, defendant failed to raise this concern at trial. Presumably the offensive comments were contained in plaintiff's closing statement to the jury, but defendant did not object during or after the statement. Nor did defendant request any curative instruction to the jury before the court delivered its charge. Any prejudice from these remarks could have been addressed in an immediate fashion with the jury shortly after they were made. The failure to raise the issue then precludes reliance on it now.
Further, defendant asserts that the supposed lack of medical evidence renders the verdict invalid as to the award of damages for psychological trauma and injuries. Id., at 6. This argument was addressed at length in the court's memorandum of decision denying the motion to set aside, and reference thereto is made. In short, lay testimony is sufficient to establish mental injuries. Sufficient medical testimony was adduced, including from defendant's medical expert, which, along with the other extensive evidence in the record, is sufficient to support the jury's findings as to plaintiff's mental and psychological damages.
CONCLUSION
For the reasons set forth above, the motion for remittitur is denied.