Opinion
HHDCV0950308755S
08-01-2017
Brandon Scott v. CCMC Faculty Practice Plan, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION IN ARREST OF JUDGMENT, TO SET ASIDE VERDICT, AND FOR A NEW TRIAL #263
Kevin G. Dubay, J.
On June 9, 2016, the jury returned a verdict in favor of the defendants, CCMC Faculty Practice Plan, Inc. (CCMC) and Paul Kanev, a neurosurgeon, in this complex medical malpractice action commenced by the plaintiff, Brandon Scott. Presently before the court is a motion filed by the plaintiff that seeks a new trial. For the following reasons, the plaintiff's motion is denied.
It is undisputed that Kanev, at all relevant times, acted as an agent for CCMC. See, e.g., Tr. 6/1/16 (afternoon session), p. 16. The defendants will be collectively referred to as " the defendants" unless otherwise necessary.
I
FACTS AND PROCEDURAL HISTORY
The plaintiff commenced this action on June 9, 2009. In his two-count, second amended complaint (#224), the plaintiff alleged that, while in the defendants' care, he suffered various injuries due to the defendants' negligence. The plaintiff alleged that his injuries stemmed from a surgical procedure performed by the defendants on his spine, and that the defendants failed to exercise reasonable care when they: " (a) inserted the needle at T10-11 which unnecessarily increased the risk of spinal cord injury; (b) inserted the needle at T11-12 which unnecessarily increased the risk of spinal cord injury; (c) failed to enter the epidural space below the level of the spinal cord; (d) utilized an angle of approach with the needle which unnecessarily increased the risk of spinal cord injury; and (e) attempted retrograde placement of the electrode which was unlikely to be successful and unnecessarily increased the risk of spinal cord injury." The plaintiff further alleged that, as a result of the defendants' negligence, he now suffers from paraplegia, among other injuries.
Second amended complaint (#224), para. 5. Both count one, directed against CCMC, and count two, directed against Kanev, make the same substantive allegations.
The defendants answered the plaintiff's second amended complaint with a general denial (#248). Trial commenced on May 12, 2016, and the introduction of evidence continued over noncontinuous days until June 3, 2016. Multiple witnesses testified, including Robert Levy and Alon Mogilner, who are both neurosurgeons. Levy and Mogilner testified as expert witnesses for the defense. Following closing remarks, the jury began deliberations on June 7, 2016. On June 9, 2016, the jury returned a verdict in favor of the defendants, which this court accepted (#262).
Subsequently, the plaintiff filed a motion in arrest of judgment, to set aside verdict, and for a new trial on June 17, 2016 (#263). See Practice Book § 16-35. The plaintiff filed his accompanying memorandum of law on September 14, 2016 (#270). The arguments contained in his memorandum of law fall into three categories. First, the plaintiff claims that juror misconduct tainted the verdict. Second, the court erred when it admitted into evidence the opinions of Levy and Mogilner regarding a reduction in the plaintiff's pain. And lastly, the court erred when it did not provide the jury with certain instructions. The defendants filed their objection on December 5, 2016 (#273), and the plaintiff filed his reply on January 9, 2017 (#276).
On March 28, 2017, this court heard argument on the plaintiff's motion. After oral argument, this court held a hearing on April 12, 2017, at which time the parties had the opportunity to question Albert Shiu, the temporary assistant clerk assigned to the trial. The April 12, 2017 proceeding focused on the events that took place in and around the jury rooms during deliberations. Following that proceeding, the court reserved its decision. Additional facts will be set forth as necessary.
II
DISCUSSION
" A trial court has the inherent power to set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict." (Internal quotation marks omitted.) Melo v. Spencer, 62 Conn.App. 727, 730, 774 A.2d 217 (2001); accord Hamernick v. Bach, 64 Conn.App. 160, 163, 779 A.2d 806 (2001). " The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion . . . It is proper for a trial court, using due caution, and in the exercise of its discretion, to set aside a verdict when satisfied that . . . its rulings on evidence were erroneous and that those erroneous . . . rulings were consequential enough to have had a substantial effect on the verdict." Internal quotation marks omitted.) Holmes v. Hartford Hosp., 147 Conn.App. 713, 719-20, 84 A.3d 885 (2014); see also Practice Book § 16-35.
A
The plaintiff first claims that juror misconduct tainted the verdict and, therefore, a new trial is warranted. Specifically, the plaintiff claims that the " ill health" of a juror impermissibly affected the jury's deliberations. The plaintiff also claims that the jury's failure to return a verdict without completing the initial set of interrogatories was highly prejudicial juror misconduct warranting a new trial.
The following additional facts are relevant to the plaintiff's claim. The jury began deliberations on June 7, 2016, at 95 Washington Street in Hartford. During the morning of June 9, 2016, deliberations continued at 95 Washington Street until breaking for lunch at approximately 1 p.m. Following lunch, Attorney Shiu advised the court and counsel that Victoria Brunson, one of the jurors, was feeling ill. At approximately 2:30 p.m., the court and counsel were advised that Brunson wished to continue deliberating, but was unable to walk to the 95 Washington Street courthouse. In an effort to decrease the amount of walking needed, both parties and the court agreed that deliberations would resume in the courthouse at 101 Lafayette Street in Hartford.
See Exh. A (affidavit from Christopher D. Bernard, trial counsel for plaintiff), para. 6, of the plaintiff's memorandum in support.
See Exh. A, para. 7.
See Exh. A, para. 8.
See Exh. A, para. 8.
At approximately 3 p.m., the jury submitted a note, asking for the definition of a particular word. While the court and counsel discussed how to respond to this inquiry, Attorney Shiu advised the court and counsel that " I'm going to go back and check on Ms. Brunson. She asked for an ice pack." In a courtroom at 101 Lafayette Street at approximately 3:30 p.m., the court advised the jurors that it could not provide them with a definition for the particular word that they wanted defined. At this time, it became apparent that Brunson had difficulty standing and needed assistance walking.
Exh. A, para. 9; see also Tr. 6/9/16, pp. 50-51.
Tr. 6/9/16, p. 57.
Tr. 6/9/16, pp. 58-59.
See Exh. A, para. 11 and 13; see also Tr. 6/9/16, p. 59.
Shortly thereafter, at approximately 3:40 p.m., the jury provided the court with a single page verdict form without completed interrogatories. Counsel for the plaintiff requested that the court break for the afternoon because " it seems clear that they're just trying to protect our juror, who is ill, and they want to go home. They want her to be able to go home." Following this exchange, the court provided the jury with a reprinted copy of the interrogatories and instructed the jury that the interrogatories must be completed. Additionally, the court informed the jurors that " you've been here, you've put a lot of time into this. If there's any reason anybody needs a break, I understand there may be some doctor's appointments tomorrow, I just don't want anybody to feel rushed. Okay? We'll stand in recess." At approximately 4:10 p.m., the jury returned a completed set of interrogatories and rendered a verdict for the defendants.
See Exh. C (timestamps); Tr. 6/9/16, pp. 59-60.
Tr. 6/9/16, p. 60.
Tr. 6/9/16, p. 64.
Tr. 6/9/16, pp. 64-65.
See Exh. C (timestamps); Tr. 6/9/16, pp. 65-69.
On April 12, 2017, this court held a hearing in order to afford both parties the opportunity to question Attorney Shiu about what transpired in and around the deliberation rooms at 95 Washington Street and 101 Lafayette Street. During that hearing, Attorney Shiu testified that, on June 7, 2016, he provided the jurors with a copy of the interrogatories and knew that the interrogatories were in the deliberation room. Attorney Shiu further testified that, after the jury rendered its verdict, he found a blank interrogatory form in one of the defense's exhibit folders.
Tr. 4/12/17, pp. 13-15.
Tr. 4/12/17, pp. 52-53; see also #280 (blank set of interrogatories).
Specifically regarding his recollection of the morning of June 9, 2016, he testified that " Ms. Brunson appeared to be struggling walking over. It took a lot longer to get from Lafayette Street from the skywalk to courtroom 300." Attorney Shiu further testified that, after breaking for lunch on June 9, Brunson's " condition at that time was just as it was that morning. She was still walking slower than normal so we took it slower." The jurors did not express concern about Brunson's difficulty walking, and Attorney Shiu did not recall having discussions with Brunson or the other jurors about Brunson's condition before lunch.
Tr. 4/12/17, p. 19. As Attorney Shiu testified, the courthouses at 101 Lafayette Street and 95 Washington Street are connected by a skywalk. Id., p. 3.
Tr. 4/12/17, pp. 25-26.
Tr. 4/12/17, pp. 19-20, 26.
Attorney Shiu testified that, at approximately 2 p.m. on June 9, he inquired into Brunson's status. In response, " Ms. Brunson told me that she has issues with diabetes and that it was potentially that problem. I recall asking her: Do you feel well enough to continue deliberations? I remember telling her that she didn't have to continue deliberating. We could postpone it to another time. She was insistent that she wanted to deliberate, so I said okay. I told her let me see what we can do to accommodate you in your situation." The other jurors were surrounding Brunson during this exchange, and some asked similar questions.
See Tr. 4/12/17, pp. 26-27.
Tr. 4/12/17, pp. 27, 55.
Tr. 4/12/17, p. 28.
After the court and both parties agreed to permit the jurors to deliberate at 101 Lafayette Street, Attorney Shiu testified that he observed other jurors helping Brunson into the deliberation room located at 101 Lafayette Street. He also observed Brunson with her legs up on some chairs in the deliberation room at 101 Lafayette Street, but did not recall any discussions with the jurors or Brunson about Brunson's condition. He also recalled that a marshal needed to assist Brunson with entering the courtroom at 101 Lafayette Street. Although one juror inquired about the possibility of starting deliberations later the next day in order to accommodate Brunson's scheduled doctor's appointment, Attorney Shiu testified that the other jurors did not express any additional concerns regarding Brunson's condition. Just prior to the court providing the jury with reprinted interrogatories, Attorney Shiu observed Brunson and " didn't notice her condition improving or decreasing" since lunch.
Tr. 4/12/17, p. 33.
Tr. 4/12/17, pp. 34-35.
Tr. 4/12/17, p. 38.
Tr. 4/12/17, pp. 40-41.
Tr. 4/12/17, pp. 48-49.
" [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 . . . Although juror misconduct may provide the substantial grounds necessary to grant such a motion, not every instance of juror misconduct requires a new trial." (Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 104, 956 A.2d 1145 (2008). When faced with an allegation of juror misconduct, the court must conduct a preliminary inquiry into those allegations. See, e.g., State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) (en banc); Harrison v. Hamzi, 77 Conn.App. 510, 522, 823 A.2d 446, cert. denied, 266 Conn. 905, 832 A.2d 69 (2003). " The extent of an inquiry into alleged juror bias is within the court's discretion." O'Briskie v. Berry, 95 Conn.App. 300, 306, 897 A.2d 605 (2006). Such an inquiry can range from an on the record " preliminary inquiry of counsel" to " a full evidentiary hearing." State v. Brown, supra, 526.
" The burden is on the moving party in a civil proceeding to establish that juror misconduct denied him a fair trial." (Citations omitted; footnote omitted; internal quotation marks omitted.) Williams v. Salamone, 192 Conn. 116, 120, 470 A.2d 694 (1984); accord Connecticut Light & Power Co. v. Gilmore, supra, 289 Conn. 104-05. " The question is whether the misconduct is of such a nature as to make it probable that the misconduct resulted in prejudice and an unfair trial." (Internal quotation marks omitted.) Harrison v. Hamzi, supra, 77 Conn.App. 523; see also Williams v. Salamone, supra, 122 n.7. " In reviewing juror misconduct, [courts] use an objective standard in which the focus is on the nature and quality of the misconduct, rather than the mental processes of the jurors." (Internal quotation marks omitted.) Harrison v. Hamzi, supra, 523. " [A] trial judge is generally in the best position to evaluate the critical question of whether the [misconduct] . . . has prejudiced [the moving party]." (Internal quotation marks omitted.) Sawicki v. New Britain General Hospital, 302 Conn. 514, 521, 29 A.3d 453 (2011). Finally, " [t]o succeed on a claim of bias the [complainant] must raise his contention of bias from the realm of speculation to the realm of fact." (Internal quotation marks omitted.) O'Briskie v. Berry, supra, 95 Conn.App. 306-07.
It is significant that Attorney Shiu's testimony during the April 12, 2017 proceeding substantively corroborated the representations contained in the affidavit of Christopher D. Bernard, trial counsel for the plaintiff. See, e.g., Harrison v. Hamzi, supra, 77 Conn.App. 522-23 (court may accept plaintiff's representations as true and address whether alleged misconduct probably rendered jury unfair or partial). The parties' extensive post-trial briefing, oral argument, and the April 12, 2017 proceeding provided this court with a sufficient record to assess the potential impact that Brunson's condition might have had on the trial.
The court appreciates that Brunson's condition on June 9, 2016, was noticeable. Nonetheless, it is not probable that the jury's consideration of her condition, if any, resulted in prejudice and an unfair trial for the plaintiff. Following its observation of Brunson needing assistance, this court informed the jurors that they should not feel rushed in their deliberations. Notably, the jurors were informed that they could come back to continue deliberations if needed; the purpose of this statement was directly connected to the court's observation of Brunson. At no point did the jurors suggest that they felt rushed for any reason, or that they needed more time to deliberate. Attorney Shui also testified that he specifically asked Brunson if she felt well enough to continue deliberations. She was " insistent that she wanted to deliberate." Although the other jurors assisted Brunson at times and observed her condition, Attorney Shiu did not recall any concerns being expressed regarding Brunson's condition. Under these circumstances, it is not probable that Brunson's concern for her own condition, or any other juror's consideration of her condition, resulted in prejudice and an unfair trial for the plaintiff. See Williams v. Salamone, supra, 122 n.7; Harrison v. Hamzi, supra, 77 Conn.App. 523. In light of the court's statements that the jurors should not feel rushed for any reason, the plaintiff's claim is speculative.
The court informed the jurors that " you've put a lot of time into this. If there's any reason anybody needs a break, I understand there may be some doctor's appointments tomorrow, I just don't want anybody to feel rushed. Okay? We'll stand in recess." (Emphasis added.) Tr. 6/9/16, pp. 64-65. This court made these statements to the jury after it provided the jury with reprinted interrogatories, which took place minutes before the jury ultimately returned the completed interrogatories. See Exh. C (letter providing timestamps). Moreover, towards the end of its charge to the jury on June 7, the court informed the jurors: " No one is going to hurry you . If you are not able to reach a verdict today, you will resume your deliberations tomorrow. You may have as much time as you need to reach a verdict ." (Emphasis added.) Tr. 6/7/16, p. 112.
The plaintiff's argument that a new trial is warranted based on the jury's failure to return a verdict without completing the initial set of interrogatories is similarly unpersuasive. This was a complex medical malpractice case involving thousands of pages of documents and was accompanied by extenuating circumstances that both the court and counsel agreed required that the jury deliberate in different courthouses on June 9. The potential for misplacing documents was apparent and understandable. Attorney Shiu further testified that he provided the jurors with the initial set of interrogatories on June 7 and that he subsequently found a blank set of interrogatories in an exhibit folder for the defense.
In his reply memorandum, the plaintiff argues that the jury disregarded the court's instructions to " not begin your deliberations until the . . . interrogatories are delivered to you by the clerk." See plaintiff's reply # 276, p. 4; see also Tr. 6/7/16, p. 111. He argues that the jury's violation of the court's instructions is clear and, therefore, the verdict must be set aside. Attorney Shiu's credible testimony that he provided the jurors with a copy of the interrogatories on June 7 establishes that the jury did not violate the court's instructions in this regard.
Additionally, it is difficult to comprehend how delivering a verdict form without interrogatories under the circumstances of the present case tainted the verdict and evinces juror misconduct that probably resulted in prejudice and an unfair trial for the plaintiff. This court did not accept the jury's verdict until the jury completed the interrogatories. See Practice Book § 16-18 (" [t]he judicial authority will not accept a verdict until the interrogatories which are essential to the verdict have been answered"); see also Van Nesse v. Tomaszewski, 265 Conn. 627, 635, 829 A.2d 836 (2003) (" until a verdict is accepted, there is no valid verdict"). In order to accept the jury's verdict, this court reprinted the interrogatories and directed the jury to complete them. Although the jurors completed the reprinted interrogatories in roughly fifteen minutes, the duration that it took to complete them does not suggest juror misconduct. See Baldwin v. Jablecki, 52 Conn.App. 379, 384, 726 A.2d 1164 (1999) (" [court] cannot infer misconduct from the duration of the jury's deliberation"). Accordingly, the initial failure to complete the interrogatories before returning the verdict form does not amount to juror misconduct that probably resulted in prejudice and an unfair trial for the plaintiff.
Under the circumstances of the present case, the plaintiff has failed to carry his burden of demonstrating that the alleged juror misconduct denied him a fair trial. It is not probable that the jury's consideration of Brunson's condition or its failure to complete the initial set of interrogatories resulted in prejudice and an unfair trial for the plaintiff.
The plaintiff's alternative argument that this court's inherent authority to manage the proceedings; see, e.g., Weinberg v. Weinberg, 89 Conn.App. 649, 656-57, 874 A.2d 321 (2005); required it to suspend the proceedings to ensure that the juror was able to continue deliberations is similarly unpersuasive. See plaintiff's memorandum #270, pp. 11-12. As previously discussed, neither Brunson nor any other juror expressed a desire to suspend deliberations after this court informed the jurors that they should not feel rushed in their deliberations. Brunson also expressly indicated her desire to continue deliberating notwithstanding her condition. Under such circumstances, this court saw no reason to suspend deliberations.
B
The plaintiff next argues that certain evidentiary rulings require a new trial. Specifically, the plaintiff argues that it was improper to admit the testimony of Levy and Mogilner that a " syrinx" in the plaintiff's spinal cord caused his reduction in pain. The plaintiff claims that such evidence was outside the pleadings and not admissible under a general denial because the defendants' general denial of damages did not put causation of the pain reduction in issue. The plaintiff additionally argues that the introduction of the " pain-cure evidence" and arguments based thereon were not permitted by Connecticut law. In response, the defendants argue that the pain-cure evidence was properly admitted because the plaintiff sought damages for pain and suffering and the loss of enjoyment of life's activities. This evidence was, therefore, inconsistent with the plaintiff's prima facie case. Additionally, the defendants argue that the defendants' defense based on the pain-cure evidence was in accord with Connecticut tort law.
In his memoranda, the plaintiff refers to the testimonies of Levy and Mogilner regarding the syrinx causing a reduction of the plaintiff's pain as " pain-cure evidence." See, e.g., #276, p. 5. For purposes of this memorandum of decision, " pain-cure evidence" refers to evidence regarding the syrinx causing a reduction in the plaintiff's pain.
The defendants also argue that the plaintiff had advanced notice of the defendants' defense, " opened the door" to the rebuttal pain-cure evidence, and that any error in admitting the pain-cure evidence was harmless because the jury did not reach the issue of causation or damages. Because the court concludes that such evidence was properly admitted under a general denial, it does not address these additional arguments.
The following additional facts and procedural history are relevant. On May 8, 2007, Kanev performed a surgical procedure on the plaintiff that attempted to insert a " spinal cord stimulator" on the plaintiff's spine in order " to relieve severe bilateral pudendal neuropathic pain." After this procedure, a " syrinx" manifested within the plaintiff's spinal cord. The plaintiff had this syrinx drained on June 24, 2009. Approximately two years after draining the syrinx, the plaintiff's pudendal pain improved enough that he no longer needed opioid medication to control his pain.
See #227, p. 4.
A " syrinx" is a fluid filled cyst within the spinal cord and usually develops at the site of trauma or injury to the spinal cord. See Tr. 5/13/16, pp. 53-54.
See, e.g., Tr. 5/24/16 (afternoon session), pp. 32-33.
Tr. 5/13/16, pp. 57-59.
See Tr. 5/24/16 (afternoon session), pp. 36-38; see also Tr. 5/13/16, pp. 50-51.
In his second amended complaint, the plaintiff alleged that he suffered various injuries as a result of the defendants' negligence and, due to these injuries, he " [had] been permanently deprived of his ability to carry on and enjoy life's activities . . ." In their answer, the defendants provided a general denial to the injuries allegedly suffered by the plaintiff. They also claimed " insufficient knowledge and information upon which to form a belief, and therefore [left the] plaintiff to his proof" regarding his inability to carry on and enjoy life's activities.
Second amended complaint (#224), para. 6-7. Both count one, directed against CCMC, and count two, directed against Kanev, make the same substantive allegations.
Answer to second amended complaint (# 248), para. 6-7.
Prior to trial, the defendants disclosed that they intended to call Levy and Mogilner as expert witnesses (see ##179, 194, 212). After deposing Levy and Mogilner, the plaintiff filed a motion in limine, seeking to preclude the introduction of evidence and argument offered to establish that the defendants' conduct caused an improvement in the plaintiff's condition and/or entitled them to a damages credit (see #227). In opposition to the plaintiff's motion in limine, the defendants argued that evidence tending to demonstrate that their conduct improved the plaintiff's condition was in accordance with a recognized " mitigation theory" under Connecticut law and the Restatement (Second) of Torts § 920. They also argued that, because such mitigation of damages evidence did not defeat the plaintiff's prima facie cause of action, they did not need to plead it as a special defense (see #238). On May 12, 2017, this court noted its inclination that Section 920 was not implicated, but that the plaintiff's ability to engage in and enjoy life's daily activities was at issue.
In his present motion in arrest of judgment, to set aside verdict, and for a new trial, the plaintiff incorporates by reference the arguments he made in his motion in limine. See #270, p. 25.
Section 920 of the Restatement (Second) of Torts provides: " When the defendant's tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable."
See Tr. 5/12/16 (morning session), pp. 6-10; see also Tr. 6/6/16, pp. 21-22 (court ruling that pain-cure evidence was in case in terms of damages and loss of enjoyment of life's activities).
During the trial, Levy testified that the plaintiff's " neuropathic component of [his] pain was treated by the syrinx, " as the syrinx was the functional equivalent of a " midline myelotomy." Mogilner similarly testified that the plaintiff's relief from neuropathic pain was attributed to the syrinx that developed within the plaintiff's spinal cord. When asked what the plaintiff's status would have been if the syrinx had not resolved his pain, Mogilner further testified that " [the plaintiff] would have been the same he was the day before the spinal cord stimulator procedure." Counsel for the defendants also argued in closing remarks that the plaintiff was currently pain free because of the syrinx that developed in his spine.
See Tr. 5/24/16 (afternoon session), pp. 34-38. A traditional " midline myelotomy" is a procedure where the spinal cord is cut in order to relieve pain. See Tr. 5/13/16, pp. 60-61.
See Tr. 5/27/16 (afternoon session), pp. 14-15, 25.
Tr. 5/27/16 (afternoon session), pp. 15-16.
See Tr. 6/7/16, pp. 75-76.
1
General Denial
Practice Book § 10-46 provides in relevant part that " [t]he defendant in the answer shall specially deny such allegations of the complaint as the defendant intends to controvert, admitting the truth of the other allegations, unless the defendant intends in good faith to controvert all the allegations, in which case he or she may deny them generally." Practice Book § 10-50 provides in relevant part that " [n]o facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged."
" Admittedly the rules concerning what evidence may be introduced under a denial are somewhat complex . . . The purpose of pleading, is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way . . . The issues to be tried may be framed in several ways. A denial of a material fact places in dispute the existence of that fact. Even under a denial, a party generally may introduce affirmative evidence tending to establish a set of facts inconsistent with the existence of the disputed fact . . . If, however, a party seeks the admission of evidence which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the 'new matter' must be affirmatively pleaded as a special defense . . . The distinction is significant since pleading is more than a mere procedural formality. Generally, it allocates the burden of proof on a particular issue." (Citations omitted; emphasis added; internal quotation marks omitted.) Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 6-7, 327 A.2d 583 (1973); see also Mulcahy v. Hartell, 140 Conn.App. 444, 451, 59 A.3d 313 (2013) (noting clarification announced by Pawlinski ).
The plaintiff here claims that the defendant's pain-cure evidence should have been pleaded as a special defense. The plaintiff's argument is unpersuasive, however, because the pain-cure evidence was inconsistent with the plaintiff's allegations in his second amended complaint that the defendants' conduct caused an " exacerbation of pudendal nerve pain." In their answer, the defendants generally denied this allegation. Thus, the extent of the plaintiff's pudendal nerve pain was in dispute. See, e.g., Mulcahy v. Hartell, supra, 140 Conn.App. 452-53 (facts inconsistent with plaintiff's allegations admissible under general denial).
Second amended complaint (# 224), para. 6(l).
Answer to second amended complaint (#248), para. 6.
Additionally, " [w]hen damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646, 904 A.2d 149 (2006); see also Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 813, 945 A.2d 955 (2008) (medical malpractice action requires plaintiff to prove: " (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury"). In the present case, the plaintiff alleged that he suffered noneconomic damages, namely, being " permanently deprived of his ability to carry on and enjoy life's activities." The pain-cure evidence tended to establish a factual scenario that was inconsistent with these allegations. This evidence provided the jury with a possible explanation as to why the plaintiff eventually became pain free, specifically with regard to his neuropathic pain.
Second amended complaint (#224), para. 7.
As the evidence revealed, and as previously argued by the plaintiff, the principal reason for the plaintiff undergoing the subject procedure was because he suffered from immense pain that severely impacted his life. See #270, Exh. F, p. 4 (" Here, the goal of the plaintiff's treatment with Dr. Kanev was the relief of his pudendal pain syndrome."); see also #242, p. 4.
Contrary to the plaintiff's argument, the pain-cure evidence was not consistent with his prima facie case of medical malpractice and would not destroy his cause of action. The pain-cure evidence was, therefore, admissible under a general denial. See Pawlinski v. Allstate Ins. Co., supra, 165 Conn. 6. Accordingly, this court did not commit an evidentiary error that had a substantial effect on the verdict. See, e.g., Holmes v. Hartford Hospital, supra, 147 Conn.App. 719-20; Melo v. Spencer, supra, 62 Conn.App. 730.
2
Connecticut Law
" [T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required . . . An equally compelling function of the tort system is the prophylactic factor of preventing future harm . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 235-36, 905 A.2d 1165 (2006). Additionally, " the purpose of compensatory damages . . . is to restore an injured party to the position he or she would have been in if the wrong had not been committed." (Internal quotation marks omitted.) Id., 248.
The defendants' pain-cure evidence in the present case was not contrary to Connecticut tort law. Its introduction permitted the jury to consider materially relevant evidence in assessing the actual extent of the plaintiff's claimed injuries and damages, specifically those noneconomic damages he claimed. Its introduction also did not preclude liability as a matter of law and, therefore, it was in accord with the prophylactic factor of preventing future harm and admonishing the wrongdoer. Thus, such evidence and the defendants' arguments based thereon were in harmony with the goals of Connecticut tort law.
The plaintiff's reliance on Scott v. Brooklyn Hospital, 125 Misc.2d 765, 480 N.Y.S.2d 270 (1984), does not persuade this court to reach a different result. Scott involved the application of Section 920 of the Restatement (Second) of Torts, which this court previously determined was not implicated in the present case. Additionally, that case does not stand for the proposition that defendants are precluded, as a matter of law, from introducing evidence that disputes the extent of a plaintiff's claimed injuries or damages.
C
The plaintiff's final claim relates to certain alleged errors in this court's charge to the jury. Specifically, the plaintiff argues that this court should have instructed the jury to disregard the testimonies of Levy and Mogilner because their opinions were speculative, failed to satisfy State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998), and failed to express their opinions " to a reasonable degree of medical probability." He further argues that the court should have instructed the jury that the defendants bore the burden of proving that the syrinx caused the plaintiff's reduction in pain. In response, the defendants argue that the testimony of Levy and Mogilner satisfied Porter because they employed the well-accepted methodology of differential diagnosis. They also argue that Levy and Mogilner expressed their opinions to a reasonable degree of medical probability because, apart from the testimonies from the plaintiff's experts, their opinions conveyed the only other probable explanation for the plaintiff's reduction in pain. Finally, they argue that the plaintiff properly bore the burden of proof when they denied the extent of his claimed damages.
In making these arguments, the plaintiff incorporates by reference arguments that he previously made in connection with his request to charge (see #250).
The following additional facts and procedural history are relevant. As previously noted, Levy testified that the plaintiff's " neuropathic component of [his] pain was treated by the syrinx, " as the syrinx was the functional equivalent of a " midline myelotomy." He also testified that published medical literature documents numerous patients obtaining pain relief from midline myelotomy procedures. Mogilner similarly testified that the plaintiff's pain relief was attributed to the syrinx that developed within the plaintiff's spinal cord. Mogilner also testified that " evidence from other types of nervous system procedures" supported his opinion that the syrinx " got rid of the neuropathic component to the [plaintiff's] pain."
See Tr. 5/24/16 (afternoon session), pp. 34-38.
See Tr. 5/25/16, pp. 78-79.
See Tr. 5/27/16 (afternoon session), pp. 14-15, 25.
Tr. 5/27/16 (afternoon session); pp. 14-15, 25.
During his case in chief, the plaintiff called Giancarlo Barolat and Konstantin Slavin, both neurosurgeons, to testify. Barolat testified that the syrinx in the plaintiff's spine was " completely irrelevant" to his reduced neuropathic pain. He also testified that he did not believe that the syrinx could have acted like a midline myelotomy to alleviate the plaintiff's neuropathic pain and, apart from this analogy, the only other possibility was that the pain spontaneously went away on its own. Slavin similarly testified that the plaintiff's diminished pain was " all related to [a] natural healing process more than anything else." Regarding the possibility that the syrinx cured the plaintiff's neuropathic pain, Slavin testified that, although it was possible, " I don't think that it would be a plausible explanation."
Tr. 5/13/16, p. 59.
See Tr. 5/13/16, pp. 59-62.
Tr. 5/18/16, pp. 63-64; see also Tr. 5/19/16, pp. 3.
Tr. 5/20/16 (morning session), p. 64.
Tr. 5/20/16 (morning session), p. 66.
Prior to trial, the plaintiff filed a motion in limine challenging the introduction of the pain-cure evidence (see ##227 and 242). This pretrial challenge was not based on Porter . Additionally, during trial, the plaintiff did not object to the admissibility of the pain-cure evidence from Levy and Mogilner based on Porter . On June 3, 2016, the plaintiff filed a motion for order requesting that the court charge the jury to disregard the testimonies of Levy and Mogilner (see #250). The plaintiff principally based this request to charge on the fact that the pain-cure opinion evidence failed to satisfy the dictates of Porter . On June 6, 2016, this court ruled that the testimonies of Levy and Mogilner satisfied Porter and, therefore, denied the plaintiff's request to charge. The court did not explicitly address the plaintiff's alternative argument that Levy and Mogilner failed to express their opinion based on a reasonable degree of medical probability.
On June 2, 2016, the plaintiff filed proposed jury instructions. The first proposed instruction asked the jury to disregard evidence and argument that the defendants' negligence caused the 2011 reduction in the plaintiff's pain (see #249).
Tr. 6/6/16, p. 21.
" In reviewing a challenge to jury instructions, [courts] must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law." (Internal quotation marks omitted.) Sola v. Wal-Mart Stores, Inc., 152 Conn.App. 732, 745, 100 A.3d 864, cert. denied, 314 Conn. 941, 103 A.3d 165 (2014).
" The purpose of a request to charge is to inform the trial court of a party's claim of the applicable principle of law . . . A request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given . . . It follows rom this principle, however, that a request to charge must be an accurate statement of the law . . . Indeed, it is axiomatic that a trial court should not instruct the jury in accordance with a request to charge unless the proposed instruction is a correct statement of the governing legal principles." (Internal quotation marks omitted.) Doe v. Saint Francis Hospital & Medical Center, 309 Conn. 146, 173-74, 72 A.3d 929 (2013).
1
Admissibility of Testimonies from Levy and Mogilner
The plaintiff's first instructional claim is contingent on evidentiary standards. If the testimonies from Levy and Mogilner satisfied governing evidentiary standards, the plaintiff's request to charge would not have been based on an accurate statement of the law.
" In Porter, [our Supreme Court] followed the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and held that testimony based on scientific evidence should be subjected to a flexible test to determine the reliability of methods used to reach a particular conclusion . . . A Porter analysis involves a two part inquiry that assesses the reliability and relevance of the witness' methods . . . First, the party offering the expert testimony must show that the expert's methods for reaching his conclusion are reliable. A nonexhaustive list of factors for the court to consider include: general acceptance in the relevant scientific community; whether the methodology underlying the scientific evidence has been tested and subjected to peer review; the known or potential rate of error; the prestige and background of the expert witness supporting the evidence; the extent to which the technique at issue relies [on] subjective judgments made by the expert rather than on objectively verifiable criteria; whether the expert can present and explain the data and methodology underlying the testimony in a manner that assists the jury in drawing conclusions therefrom; and whether the technique or methodology was developed solely for purposes of litigation . . . Second, the proposed scientific testimony must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid in the abstract . . . Put another way, the proponent of scientific evidence must establish that the specific scientific testimony at issue is, in fact, derived from and based [on] . . . [scientifically reliable] methodology . . .
" Additionally, [our Supreme Court] recognized in Porter that, [t]he actual operation of each [Porter] factor, as is the determination of which factors should be considered at all, depends greatly on the specific context of each case in which each particular [threshold admissibility] analysis is conducted . . . There is, however, a critical postulate that underlies the Porter factors and indeed underlies the entire Porter analysis: in order for the trial court, in the performance of its role as the gatekeeper for scientific evidence, properly to assess the threshold admissibility of scientific evidence, the proponent of the evidence must provide a sufficient articulation of the methodology underlying the scientific evidence. Without such an articulation, the trial court is entirely ill-equipped to determine if the scientific evidence is reliable upon consideration of the various Porter factors. Furthermore, without a clear understanding as to the methodology and its workings, the trial court also cannot properly undertake its analysis under the fit requirement of Porter, ensuring that the proffered scientific evidence, in fact, is based upon the reliable methodology articulated." (Citations omitted; internal quotation marks mitted.) Fleming v. Dionisio, 317 Conn. 498, 506-07, 119 A.3d 531 (2015); see also Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 179-81, 847 A.2d 978 (2004).
This court reiterates its June 6, 2016 ruling and provides the following explanation as to why the testimonies of Levy and Mogilner, both leaders in their fields, satisfied Porter . Levy and Mogilner based their diagnoses of how and why the plaintiff now has reduced pain on the accepted methodology of differential diagnosis. See, e.g., Milliun v. New Milford Hospital, 310 Conn. 711, 732-33, 80 A.3d 887 (2013) (deductive process of ruling out possible causes of injury " is a proper method on which to base an opinion as to causation"); Klein v. Norwalk Hospital, 299 Conn. 241, 252, 9 A.3d 364 (2010) (" differential diagnosis is a method of diagnosis that involves a determination of which of a variety of possible conditions is the probable cause of an individual's symptoms, often by a process of elimination"). They ruled out a miracle and opined that the syrinx caused the plaintiff's reduced neuropathic pain. They testified that the medical literature supported the pain reducing effects that a midline myelotomy has on a patient and that the unchecked growth of a syrinx could destroy or kill nerves in the plaintiff's spinal cord over a period of time. Such destruction could be the functional equivalent of a midline myelotomy. " Although there may be other possible causes that the physicians did not consider, such matters go to weight, not admissibility." Milliun v. New Milford Hospital, supra, 733.
As previously noted, the plaintiff did not challenge the admissibility of the pain-cure evidence from Levy and Mogilner in accordance with Porter until he filed his request to charge on June 2, 2016 (see ##249 and 250). This court did not hold a formal Porter hearing. See, e.g., State v. Torres, 85 Conn.App. 303, 327, 858 A.2d 776, cert. denied, 271 Conn. 947, 861 A.2d 1179 (2004) (Porter imposes " a flexible burden focused not on the form of the hearing, but rather on the goal, i.e., to determine whether the methodology is sound"); see also Doe v. Thames Valley Council for Community Action, Inc., 69 Conn.App. 850, 875, 797 A.2d 1146, cert. denied, 261 Conn. 906, 804 A.2d 212 (2002).
See, e.g., Tr. 5/24/16 (afternoon session), pp. 32-38; Tr. 5/25/16, pp. 70-72, 78-79. Barolat testified that the chance of neuropathic pain resolving on its own was roughly 2 to 4 percent. Tr. 5/13/16, p. 51. Levy testified that " the medical data would say that it's less than one percent"; Tr. 5/24/16 (afternoon session), p. 31; and Mogilner testified that the chance of a spontaneous resolution to chronic pain was approximately 1 percent. Tr. 5/27/16 (afternoon session), p. 13. Slavin agreed that the chances of the plaintiff's pain resolving on its own were between 1 and 2 percent. Tr. 5/20/16 (afternoon session), p. 47.
The testimonies of Levy and Mogilner sufficiently explained their differential diagnosis methodology. That the syrinx caused the plaintiff's reduced neuropathic pain derived from this methodology. And their special knowledge helped the jury resolve issues related to the extent of the plaintiff's alleged damages. The plaintiff's request to charge the pain-cure evidence out of the case was, therefore, not based on an accurate statement of the law. See Doe v. Saint Francis Hospital & Medical Center, supra, 309 Conn. 173-74 (trial court should not instruct in accordance with request to charge unless proposed instruction is correct statement of governing legal principles).
Additionally, both Levy and Mogilner expressed their opinions to a reasonable degree of medical probability. " An expert opinion cannot be based on conjecture or surmise but must be reasonably probable . . . Any expert opinion that describes a 'condition' as possible or merely fifty-fifty is based on pure speculation . . . Although we approve generally of the 'reasonable medical probability' standard, we also note that no 'talismanic' words are mandatory." (Citations omitted.) Aspiazu v. Orgera, 205 Conn. 623, 632, 535 A.2d 338 (1987). " Although we acknowledge that an expert opinion need not walk us through the precise language of causation, there must be more than mere speculation or conjecture . . . To be reasonably probable, a conclusion must be more likely than not . . . Whether an expert's testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert's testimony." (Citations omitted; internal quotation marks omitted.) Rosa v. Lawrence & Memorial Hospital, 145 Conn.App. 275, 304, 74 A.3d 534 (2013).
It is undisputed that the circumstances surrounding the plaintiff's condition are extremely unique. The experts who testified at trial--who are among the world's leading experts in their respective fields--testified that they had not heard of similar circumstances. Although not couched in talismanic words, substantively, the defendants' experts testified that the syrinx more likely than not caused a reduction in the plaintiff's neuropathic pain. According to Levy and Mogilner, the midline myelotomy analogy was more likely the cause of the plaintiff's neuropathic pain reduction, rather than the statistical improbability that the plaintiff's neuropathic pain resolved on its own. Indeed, Levy testified on cross examination that " it is the most logical conclusion to make, as opposed to as I've said, a miracle." Mogilner similarly testified that it was reasonable to say that the syrinx reduced or eliminated the plaintiff's neuropathic pain, and that it was his best and only explanation. Accordingly, both Levy and Mogilner expressed their opinions to a reasonable degree of medical probability.
See, e.g., Tr. 5/27/16 (afternoon session), p. 21.
See, e.g., Tr. 5/24/16 (afternoon session), pp. 32-38; Tr. 5/25/16, pp. 70-72, 78-79. See also footnote 66, supra, of this memorandum.
Tr. 5/25/16, p. 71.
Tr. 5/27/16 (afternoon session), pp. 22, 25.
2
Burden of Proof
" [W]hen damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, supra, 279 Conn. 646. Moreover, a general denial does not impose a burden on the denier. See, e.g., Eastern Consolidators, Inc. v. WL McAviney Properties, Inc., 159 Conn. 510, 510-11, 271 A.2d 59 (1970) (defendant's denial of specific allegations put such allegations in dispute, so plaintiff bore burden of proving such allegations).
The plaintiff's argument relies heavily on his position that the defendants' pain-cure evidence was premised on either a failure to mitigate or Section 920 of the Restatement (Second) of Torts and, therefore, the defendants bore the burden of proof. As previously noted, this court indicated that Section 920 of the Restatement (Second) of Torts was not implicated by this case. Additionally, the defendants did not argue to the jury that they sought to be benefitted by their conduct; see, e.g., Preston v. Keith, 217 Conn. 12, 22, 584 A.2d 439 (1991) (where individual seeks benefit by particular matter, he should prove matter alleged by him); rather, they relied on the testimonies of Levy and Mogilner to explain the reason for the plaintiff's diminished pain. The defendants generally denied the plaintiff's damages allegations and, therefore, the burden of proof did not shift to them. Under the circumstances of the present case, it would not have been an accurate statement of the law to have provided an instruction that the defendants bore the burden of proving that the plaintiff's pain was reduced in accordance with the pain-cure evidence. It was the plaintiff's burden to prove the actual extent of his claimed damages. Accordingly, this court did not commit a palpable error that probably brought about a different result in the verdict when it declined to instruct the jury that the defendants bore the burden of proof with regard to the reduction in the plaintiff's pain. See, e.g., Holmes v. Hartford Hospital, supra, 147 Conn.App. 719-20; Melo v. Spencer, supra, 62 Conn.App. 730.
Joyce Lagnese, trial counsel for the defendants, argued: " You know, they keep telling you that I'm trying to get credit. I'm trying to get credit for some benefit from the fact that Brandon is pain free and leading a productive life today? No, no, no, ladies and gentlemen, it's Brandon who derived the benefit from being pain free. I'm just trying to expose the truth. The reality of why that is. The reality is as explained by Dr. Levy and Dr. Mogilner was that the small syrinx, that was initially seen--Dr. Kanev didn't come up with this theory. That small syrinx was ignored for fourteen months while Brandon was in New York . . . And while it was persisting in Brandon, it was stretching and damaging the nerves, fibers, and the spine day-in and day-out to the point where the cells started dying off. And Dr. Levy analogized the physiologic process to the process that occurs when they do a midline--a midline myelotomy, they cut the spinal cord. They cut these fibers. Okay. Here they were deadened because of the persistence of the compression of the syrinx." Tr. 6/7/16, pp. 75-76.
The plaintiff also argues that the court did not advise the jury that the pain-cure evidence was only relevant to damages and, therefore, " it is impossible to know whether the jury considered the evidence as bearing on liability or a general sense of the equities of the case, in addition to bearing on damages." See #270, p. 33; #276, pp. 8-9. The plaintiff did not specifically request, at the time Levy or Mogilner testified or after the court delivered its charge, an instruction limiting the pain-cure evidence to the issue of damages. See Conn. Code Evid. § 1-4; see also Tr. 6/7/16, pp. 117-19. Additionally, in his proposed request to charge (#249), the plaintiff did not request such an instruction, and his arguments with respect to the pain-cure evidence urged the court to charge it out entirely, to charge out the issue of what caused the plaintiff's pain reduction, or to instruct the jury that the defendants bore the burden of proof on what caused the plaintiff's pain reduction. See #250; Tr. 6/6/16, pp. 21-30.
III
CONCLUSION
For the foregoing reasons, the plaintiff's motion in arrest of judgment, to set aside verdict and for a new trial is denied.
Furthermore, the plaintiff asks the court to conclude that the jury might have used evidence that bore no logical and rational relationship to the defendants' actual conduct vis-à-vis breaching the requisite standard of care in concluding that the defendants had not breached the standard of care. How and why the plaintiff experienced a reduction in pain relates to the plaintiff's condition after the surgical procedure; it does not bear a logical and rational connection to the defendants' alleged negligent conduct . This court instructed the jury that liability can only be established based on a breach of the prevailing professional standard of Care, as established by expert testimony. See Tr. 6/7/16, pp. 102-04. " The jury is presumed to follow the court's instructions absent a clear indication to the contrary." (Internal quotation marks omitted.) Rosa v. Lawrence & Memorial Hospital, 145 Conn.App. 275, 301, 74 A.3d 534 (2013). This court's instructions cannot reasonably be interpreted to suggest that the plaintiff's improved condition vis-à-vis his reduced pain, which might have stemmed from the alleged negligence, was evidence of the standard of care. Accordingly, this court is not convinced that it committed an instructional error requiring a new trial. See, e.g., Holmes v. Hartford Hospital, supra, 147 Conn.App. 719-20; Melo v. Spencer, supra, 62 Conn.App. 730.