Opinion
CV116018306S
03-21-2016
Gregory Leigh v. Daniel Schwartz, M.D. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION FOR REMITTITUR (#236)
Robin L. Wilson, J.
PROCEDURAL AND FACTUAL BACKGROUND
The plaintiff, Gregory Leigh, commenced this medical malpractice action against the defendant, Daniel Schwartz, M.D., CBS Surgical Group, P.C., MidState Medical Center and MidState Medical Group, P.C. by service of writ, summons and complaint. The plaintiff alleged that on December 10, 2008, the defendant, a general surgeon, negligently caused injury to the spinal accessory nerve during surgical excision of a posterior cervical lymph node. As a result of the injury, the plaintiff claimed various problems with his left shoulder and the inability to raise his left arm above his head. At the conclusion of the plaintiff's case in chief; the defendant moved for a directed verdict which this court denied. On July 15, 2015, the jury returned a plaintiff's verdict and awarded non-economic damages in the amount of $4,250,000.
On June 15, 2015, in response to defendants' responses to plaintiff's Request to Admit, the plaintiff amended his complaint to withdraw the counts against MidState Medical Center and CBS Surgical Group, P.C.
On August 11, 2015, the defendant filed a motion for judgment notwithstanding the verdict or in the alternative a motion to set aside verdict/motion for new trial and a motion for remittitur. On October 20, 2015, the plaintiff filed objections thereto and on November 30, 2015, the court heard oral argument on the motions at short calendar. Additional facts will be presented as necessary.
On March 7, 2016, this court denied the defendants' motions for judgment notwithstanding the verdict, or in the alternative motions to set aside the verdict/new trial.
DISCUSSION
" Whenever in a civil action to recover damages resulting from personal injury or wrongful death, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, the jury renders a verdict specifying noneconomic damages, as defined in section 52-572h, in an amount exceeding one million dollars, the court shall review the evidence presented to the jury to determine if the amount of noneconomic damages specified in the verdict is excessive as a matter of law in that it so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. If the court so concludes, 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 . . ." General Statutes § 52-228c.
In support of the motion for remittitur, the defendants argue that the jury's award of $4.25 million in noneconomic damages for the plaintiff's injury is grossly excessive and shocks the conscience and sense of justice. In particular, the defendants contend that the evidence presented at trial was insufficient to support the verdict because the injury was not a severe one that caused substantial pain and suffering or left the plaintiff unable to engage in life's activities.
The defendants also argue that plaintiff's counsel relied on improper argument in the closing statement. The defendants did not object, however, to the purportedly improper statements made by plaintiff's counsel or request a curative instruction. " The failure to object to the remarks at the time they were made or at the close of argument constitutes a waiver of the . . . right to press this claim of error." Trumpold v. Besch, 19 Conn.App. 22, 30, 561 A.2d 438, cert. denied, 212 Conn. 812, 565 A.2d 538 (1989), cert. denied, 494 U.S. 1029, 110 S.Ct. 1476, 108 L.Ed.2d 613 (1990). Therefore, the defendants have waived the right to press a claim of error on this ground.
In opposition, the plaintiff argues that there is substantial evidence regarding the nature of his injury, how the injury affects his daily life, and how the damages should be calculated going forward. Moreover, the plaintiff argues that the defendants have failed to meet the high standard for remittitur in that there is no evidence of undue sympathy, prejudice, or corruption of the verdict.
" 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." (Citation omitted; internal quotation marks omitted.) Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 281, 32 A.3d 318 (2011).
" 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 . . . 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 . . . For a trial court's remittitur order to be justified . . . 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." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. 282-83.
" A conclusion that the jury exercised merely poor judgment is an insufficient basis for ordering 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 . . . [T]he court should not act as the seventh juror with absolute veto power. Whether the court would have reached a different [result] is not in itself decisive . . . The court's proper function is to determine whether the evidence, reviewed in a light most favorable to the prevailing party, reasonably supports the jury's verdict." (Internal quotation marks omitted.) First American Title Ins. Co. v. 273 Water Street, LLC, 157 Conn.App. 23, 52, 117 A.3d 857 (2015).
" [A]lthough the trial court has a broad legal discretion in this area, it is not without its limits . . . Litigants have a constitutional right to have factual issues resolved by the jury . . . This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury . . . Similarly, [t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury." (Internal quotation marks omitted.) First American Title Ins. Co. v. 273 Water Street, LLC, supra, 157 Conn.App. 52.
At trial, the jury was presented with ample evidence regarding the extent of the plaintiff's injury and damages. The plaintiff offered medical reports and expert testimony demonstrating that, prior to the posterior cervical triangle lymph node biopsy, the plaintiff was physically healthy and did not have any problems with his shoulder. In the course of his employment, he performed general maintenance and worked as a driver at a farm. In his spare time he would kayak, ride horses, and make fishing lures.
Dr. Schwartz admitted that before the surgery the plaintiff was otherwise healthy on December 9, 2008, other than an enlarged lymph node. Dr. Herbert Hermele's report of April 10, 2009, indicates that the plaintiff " has always been healthy, strong, [and] has not [had] any problems with either shoulder." Pl. Tr. Ex 4. Plaintiff's expert testified that the plaintiff had no signs of preexisting nerve injury and that the first time the plaintiff showed signs of nerve injury was when he complained of some shoulder pain immediately after the procedure, but really the first sign was the first post operative visit.
Following the lymph node biopsy the plaintiff began to experience pain and suffering in his left arm and left upper extremity. Schwartz's medical records indicate that two months following the procedure the plaintiff was still having weakness of the left upper extremity with instability to completely raise his left arm above his head. Dr. Herbert Hermele, an orthopedic surgeon who examined the plaintiff noted that " as far as his left upper extremity, he shows wasting in the supraclavicular area. Even at rest there is some winging of the scapula." Pl. Tr. Ex. 4. Dr. Feldman also noted during his testimony that as of February 24, 2009, the plaintiff was still having weakness with the left upper extremity with instability to completely raise his left arm above his head. There was also some extenuation of the upper back musculature at that time. The plaintiff also testified as to the nerve pain he experienced after the surgery.
The plaintiff also presented evidence of how the injury caused him physical damage and impacts his daily life, as shown by the plaintiff's testimony, expert testimony, testimony from his friends and coworkers, and a video of the plaintiff at work. In particular, there is evidence that the plaintiff experiences pain in his left arm and shoulder, and an inability to normally lift his left arm. The shoulder dysfunction prevents him from performing certain activities as part of his job and in his leisure time, and creates daily hardship because his left hand is unable to reach awkwardly-placed items or to hold items weighing more than a few pounds. As previously noted, there was also evidence presented of permanent disfigurement of the plaintiff's left upper extremity, described as " winging" of the scapula.
There is no dispute that the plaintiff's spinal accessory nerve was injured, and that the injury is permanent. The defendants, in their recitation of the evidence of damages adduced at trial, seek to downplay the significance of the evidence that the jury relied upon in arriving at a damages calculation. The court must, however, view the evidence in the light most favorable to the prevailing party. Overall, there is ample evidence that the injury to the plaintiff's spinal accessory nerve limits his ability to perform tasks at work and leisure activities, and causes other hardships in his daily life. Based on the evidence of damages presented to the jury, the defendants have failed to demonstrate that there exists an " indubitable wrong, so clear and striking as to indicate the influence of undue sympathy, prejudice or corruption on the verdict." See Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. 283. In turn, the jury's award of $4.25 million in noneconomic damages is supported by the evidence at trial and does not so shock the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. Therefore, the defendants' motion for remittitur is denied.
CONCLUSION
For the foregoing reasons, the defendant's motion for remittur is denied.