Opinion
No. X04 CV 03 4000146 S
August 8, 2006
RULING ON POST-VERDICT MOTIONS
1. Motion for Collateral Source Deduction (# 190).
The defendant submitted a motion for collateral source deduction and requested a hearing in the body of that motion. The motion was not pursued at the hearing. The plaintiff represented that there were no collateral source payments, because all such payments were made through the workers' compensation system. The motion, for purposes of the record, is denied.
2. Motion to Set Aside the Verdict (#191).
The defendant Forward has advanced five reasons to set aside the verdict, three of which were briefed. The first claim is that there was insufficient evidence to satisfy the elements of a product liability action. I believe there was sufficient evidence of the existence of a design defect at the time of the sale to survive a motion to set aside and the first claim is unavailing.
The second claim is that the plaintiffs' expert witness Jeffrey Croteau was not qualified to express expert opinions. I see no reason to revisit trial rulings in that regard.
The third reason is the most substantial. Forward asserts that evidence to the effect that mechanics customarily lifted Jeep Wranglers by positioning the lift arms where the leaf springs attach to the frame supports was used improperly by the plaintiffs' attorney. Croteau, the plaintiffs' expert, testified that raising Wranglers in this manner was a common practice. Evidence that he himself so lifted Wranglers, and that mechanics in his firm's Phoenix facility so lifted Wranglers, was admitted without objection. Also without objection Croteau testified that that was the method used by the local Jeep dealership, and that he conducted interviews with people to determine the common practice "throughout the United States." There was at this point an objection and the matter was not pursued further.
The evidence was admitted for the purpose of providing a basis for the opinion of the witness rater than for the truth of the statement. See, e.g., Rule 7-4(b) of the Connecticut Code of Evidence. Nonetheless, the plaintiff's attorney appeared to argue the issue substantively in final argument, and wondered where the defendant's evidence was regarding common practice. There was no objection to the argument nor any request for a curative instruction. The defendant argues that improper argument ought to result in a new trial.
Ordinarily, of course, the failure to object or to request instructions Waives the ability to pursue the claim later. See, e.g., State v. Paolella, 211 Conn. 672 (1989). It is also true that where trial conduct is improper and highly prejudicial, a verdict may be set aside even in the absence of objection. See State v. Ubaldi, 190 Conn. 559 (1983); Yeske v. Avon Old Farms School, 1 Conn.App. 195 (1984).
I have concluded, after reading portions of the transcript and considering the arguments of counsel, that the conduct in this case was neither so egregious nor so highly prejudicial to require a new trial in the absence of objection. The argument does appear on its face to be improper, in that counsel appeared to argue that the plaintiff and his employees lifted the Wrangler the way that everyone lifted it. In one sense, however, the dispute borders on being an exercise in semantics, because counsel could have argued properly that Croteau's opinion was credible because it was based on his understanding of a common lifting practice. The fact that there is a proper argument that is similar does not justify the argument used, but it ought to be considered on the issue of egregiousness. The argument was most likely not highly prejudicial, partly because the jury did reduce the verdict by a factor of 35% because of misuse of product. A major thrust of the defendant's argument was that any claimed product defect could not have caused the fall in any event.
The jury verdict was somewhat confusing on this point, but at trial counsel agreed on the record to this interpretation.
I find as well that the reference in the plaintiff's argument to the defendant's not presenting evidence of how mechanics lift Wranglers does not compel a new trial. The reference was not explicitly a reference to a specific witness; compare State v. Smith, 91 Conn.App. 133, 140-41 (2005); and in context I do not believe that the reference probably affected the outcome of the trial. Compare the far more egregious argument, found not to constitute plain error sufficient to cause reversal in the absence of objection, in Shapiro v. Hillside Village Condominium Ass'n., 85 Conn.App. 729 (2004).
The fourth and fifth claims, that the failure to find misuse was contrary to law and against the evidence and that the court erred in not admitting the entirety of a financial document offered by the defendant, were not briefed. The court relies on its prior rulings. The motion to set aside the verdict is denied.
3. Plaintiff's Motion for Interest (#192).
I find the defendant's arithmetic to be correct. If judgment were entered on July 16, 2006, the amount of the judgment in favor of the plaintiff Mark Raynock would be $2,429,232.00. Interest of 12%, calculated on a net amount of $1,786,200.00 equals $587 per day. An additional 23 days, assuming judgment is entered on August 8, 2006, amounts to $13,501. The total amount of the judgment in favor of Mark Raynock, then, is $2,452,733.00. The judgment in favor of the plaintiff Ersilia Raynock is $650. Judgment shall enter accordingly.
At argument, the court raised the question of whether judgment should be entered in favor of the workers' compensation carrier and whether any offer of judgment interest would be reduced accordingly. The plaintiffs sent a letter to the file dated August 4, 2006, in which they supported their position as to the workers' compensation issue. They also suggested that taxable costs plus a $350 attorney fee should be added to the verdict.
Following the mandate of General Statutes § 52-192a(b), I have examined the file to ascertain from the record "the amount [that the plaintiff has] recovered." I do not see a bill of costs in the file, nor am I convinced that costs are included for the purpose of determining the interest award.
The case of Cardenas v. Mixcus, 264 Conn. 314 (2003) is instructive. There, the court held that amounts of the verdict payable to the employer are not to be deducted for the purpose of determining whether the plaintiff's offer of judgment was effective. This court's holding is consistent with Cardenas. In Cardenas, Justice Borden also stated, though apparently in dicta, that the benchmark for comparison is the jury verdict. Id., 320.
The court will consider a $350 attorney fee; see § 52-192a(b); on any motion to reconsider. It may be significant that the General Assembly specifically authorized a discretionary "cost," but did not mention the inclusion of taxable costs in the equation. If either side chooses to present to the court appellate authority regarding whether costs should be included in the computation of offer of judgment interest, it may file a motion to reconsider.