Opinion
HHDCV146052317S
09-18-2019
Richard VICHAS v. Timothy HECKMAN et al.
UNPUBLISHED OPINION
OPINION
Budzik, J.
Before the court are several post-trial motions. Defendant T&T Landscaping, LLC (T&T) moves for judgment notwithstanding the verdict, to set aside the verdict, and for a new trial. T&T also moves for a remittitur of the $1,851,075.00 jury verdict. Plaintiff Richard Vichas objects to T&T’s motions. For his part, Mr. Vichas asks the court to approve his bill of costs and moves for entry of judgment. T&T objects to Mr. Vichas’ motions.
For the reasons set for below, the court denies T&T’s motions for judgment notwithstanding the verdict, to set aside the verdict, and for a new trial. The court grants in part T&T’s motion for remittitur and enters judgment in favor of Mr. Vichas in the amount of $1,843,335.13. The court grants Mr. Vichas’ bill of costs in the amount of $22,301.42.
FACTS
This case was filed on July 14, 2014. After motion practice and numerous trial continuances, a trial was finally held from October 30 through November 8, 2018. The facts were hotly contested. Each side presented evidence and testimony that was frequently in direct conflict with the evidence and testimony presented by the opposing side. On critical factual issues, witnesses testified that certain events or conversations took place, while other witnesses flatly denied any such events or conversations ever occurred. This was particularly true on the central issue in this case- the parties’ knowledge of the presence of lead paint on defendant Timothy Heckman’s house. The parties filed more than 20 written motions in limine during trial. The jury heard from 9 witnesses, reviewed 80 exhibits, and deliberated for a day and a half. On November 8, 2018, the jury found by a preponderance of the evidence that Mr. Vichas had proven his claim of intentional tort against T&T and awarded total damages in the amount of $1,851,075.00. It was an attentive jury and a well tried case on all sides.
The jury found in favor of Mr. Vichas on his negligence claim against Mr. Heckman. Nevertheless, on August 28, 2019, Mr. Vichas withdrew his case as to Mr. Heckman.
The jury awarded $51,075.00 in past economic damages, $300,000.00 in past noneconomic damages, and $1,500,000.00 in future non-economic damages.
As the trier of fact, it is for the jury to weigh the evidence and determine the credibility of witnesses. Connecticut Light & Power Co. v. Proctor, 324 Conn. 245, 259, 152 A.3d 470 (2016). It is the exclusive province of the jury to weigh the conflicting evidence, determine the credibility of witnesses, and determine whether to accept some, all or none of a witness’ testimony. Palkimas v. Fernandez, 159 Conn.App. 129, 133, 122 A.3d 704 (2015). In deciding the instant post-trial motions, the court’s role is to view the evidence offered at trial in the light most favorable to sustaining the verdict. Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534 (1999). The trial court does not sit as a seventh juror, but should 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. Id. With these principles in mind, the court concludes that the jury could have reasonably found the following facts from the evidence presented at trial.
At the time of trial, Mr. Vichas was 54 years old. He is an experienced painter. Mr. Vichas is trained as a certified "lead renovator," which, generally, and as relevant to this case, means that Mr. Vichas has been trained on how to safely repaint houses that already contain lead paint. Mr. Vichas is not a certified "lead remediator," which, generally, and as relevant to this case, means someone who is trained on how to safely remove lead paint. Mr. Vichas is well aware of the health dangers of lead paint. The fact that lead paint is dangerous to human health and that special precautions must be taken when dealing with lead paint is common knowledge among painters and in the painting industry. The use of lead paint was banned in the 1970s because of the health risks associated with lead paint and lead poisoning. Prior to the 1970s, the use of lead paint was common and lead paint is still commonly found in homes built before the 1970s.
From 1984-1991, Mr. Vichas served in the United States Army, achieving the rank of corporal. While in the Army, Mr. Vichas was responsible for the storage and issuance of weapons to soldiers in his unit, among other duties. Mr. Vichas was awarded an "Iron Man Award" for his physical fitness in the Army and was honorably discharged.
In 2011, Mr. Vichas applied for a painting job with T&T and was hired. Mr. Vichas listed his certification as a "lead renovator" on his application to T&T. T&T is a business of approximately 60 employees. T&T is owned by David Tremblay and, during the relevant time period, had gross revenues of approximately $4-5 million. Mr. Tremblay also owns a construction company. David Thibodeau is the Operations/General Manager of T&T and is Mr. Tremblay’s second in command. T&T mainly does landscaping and grounds maintenance work for commercial clients, but it also does interior painting at apartment complexes. In an effort to expand the painting portion of its business, T&T hired Mr. Vichas. Despite somewhat limited experience with the painting business, both Mr. Tremblay and Mr. Thibodeau were aware of the health dangers posed by lead paint.
Mr. Thibodeau testified that he was not aware of the health dangers of lead paint. Nevertheless, Mr. Vichas testified that he told Mr. Thibodeau about the dangers of lead paint on a number of occasions and there was testimony at trial that the danger posed by lead paint was common knowledge in the painting industry. Therefore, the court concludes, consistent with its duty to view the facts in the light most favorable to sustaining the jury’s verdict, that the jury could have reasonably concluded that Mr. Thibodeau was in fact aware of the health dangers of lead paint.
Mr. Heckman’s home is located on Worthington Drive in Berlin, Connecticut and is a large, three-story, Victorian house. Mr. Beckman’s home was originally constructed in 1895 and has many of the architectural details, intricate woodwork, and broad front porch common to Victorian homes. Mr. Heckman’s home is located in a historic district which requires Mr. Heckman to maintain the house’s historic appearance. The local historical society president is a neighbor of Mr. Heckman’s.
Mr. Heckman is a professional painter of some 20 years’ experience. Mr. Heckman was aware of the health dangers posed by lead paint. When Mr. Heckman purchased his Berlin home, he received a State mandated lead paint disclosure form on which the seller’s checked "unknown." In addition to the Berlin house, Mr. Heckman owns a 70-year-old house in New Britain which he rents to tenants for income.
In 2012, Mr. Heckman hired T&T to partially rebuild the large front porch on his Berlin home. The work was fairly extensive and included replacing concrete footings and replacing rotted wooden railings and pillars. There was no written contract between Mr. Heckman and T&T for the porch reconstruction. Mr. Tremblay testified that T&T billed Mr. Heckman approximately $35,000 for the porch work, and an invoice for that amount was entered into evidence, but no evidence was presented at trial that the invoice was ever paid. Mr. Vichas did not work on the porch reconstruction. Although portions of the reconstructed porch received a coat of primer, most of the reconstructed porch was not repainted as part of this project.
T&T’s bill for the porch work was sent to Mr. Heckman and his wife, Joanne Heckman. Joanne Heckman is a Regional Manager with Simon Konover Company. T&T has received grounds maintenance contracts from Konover for 7-8 years. T&T considers Konover to be a good client. T&T received a large contract for lawn maintenance at Central Connecticut State University from Konover. Mr. Vichas testified that he believed T&T provided free services to the Heckmans so that Mrs. Heckman would use her influence to ensure T&T continued to get work from Konover. Mr. Vichas testified that he witnessed Mr. Thibodeau giving a $3,000 kickback to a Konover apartment manager (not Mrs. Heckman) so that T&T would continue to receive work at that complex. Mr. Vichas testified that based on his experience, a majority of T&T’s work comes from Konover managed or owned properties.
Safely removing lead paint from a house such as Mr. Heckman’s would be very expensive and time consuming. The house would have to be tented or otherwise covered to prevent lead dust and/or paint chips from being blown about. Painters would be required to use disposable jump suits, gloves, booties, and specialized breathing respirators to filter out lead dust and deal with the lead dust or particles that would settle on their clothes. Drop cloths would have to be put down to catch lead dust or paint chips that would otherwise settle in Mr. Heckman’s lawn, pollute the ground, and be tracked about as lead particles stuck to the bottom of painters’ shoes. The work site would have to be completely cleaned at the end of each day. There would have to be a decontamination area for workers to wash up. Signs would have to be posted notifying the public about the presence of lead.
Mr. Heckman initially contacted four painters to solicit bids to paint his house. Those painters drove by Mr. Heckman’s house to assess the job, but none expressed interest in taking the job.
There was no direct evidence presented at trial as to whether other painters declined to bid on repainting Mr. Heckman’s house due to the sheer size and complexity of restoring an old Victorian house located in a historical district, or the cost and difficulty of dealing with the likely presence of lead paint, or for some other reason, or combination of reasons. Nevertheless, because there was testimony at trial that lead paint is commonly found in old homes and the danger posed by lead paint is common knowledge in the painting industry, the court concludes, consistent with its duty to view the facts in the light most favorable to sustaining the jury’s verdict, that the jury could have reasonably concluded that other painters declined to paint Mr. Heckman’s house, at least in part, because of the difficulties associated with lead paint. Moreover, for the same reasons, the jury could have reasonably concluded that Mr. Heckman was aware that the danger posed by lead paint was the reason he was having trouble finding someone to paint his house.
In April of 2013, Mr. Vichas was assigned by T&T to paint the exterior of Mr. Heckman’s house. Before beginning work, Mr. Vichas testified that he visited the Heckman house for two hours with Mr. Thibodeau. Mr. Vichas testified that Mr. Thibodeau told Mr. Vichas that the Heckmans were dear friends of the Thibodeaus, that Mrs. Heckman (through Konover) had provided T&T millions of dollars of work, and that Mr. Vichas was to do a complete restoration of the exterior paint including sanding paint down to the original wood. To do such a large job, Mr. Vichas said he needed a crew of at least five painters. Mr. Thibodeau said that was fine.
During the initial site visit to Mr. Heckman’s house, Mr. Vichas immediately noticed the age of the house and told Mr. Thibodeau that he was concerned about the presence of lead paint. Mr. Thibodeau said he understood Mr. Vichas’ concern and promised to send T&T employee Chris Zduniak to the Heckman house to conduct a lead paint test. Lead paint testing kits can be purchased at paint stores and are easily administered. Mr. Vichas knew that Mr. Zduniak had previously conducted lead paint tests on houses in New Britain and Wethersfield (which tests came up positive) that T&T was considering painting. Prior to visiting Mr. Heckman’s house, Mr. Vichas testified that he told Mr. Thibodeau about the dangers of lead paint and that the difficulty in dealing with lead paint was not worth the health risk to painters and the cost and expense necessary to protect against lead paint. Mr. Vichas testified that it would cost approximately $50/hour to hire a painter to remove and remediate lead paint, as opposed to a rate of approximately $20/hour for standard painting. Mr. Vichas received $20/hour for his work on the Heckman house. T&T did not paint the New Britain and Wethersfield houses, though Mr. Vichas testified that he was not privy as to why.
During the initial site visit to Mr. Heckman’s house, Mr. Vichas spoke to Mr. Heckman and expressed his concern that the age of the house indicated there was lead paint. Mr. Heckman told Mr. Vichas that he had removed all the original paint when Mr. Heckman repainted the house 7-8 years ago. Mr. Vichas testified that he thanked Mr. Heckman for the assurance, but that Mr. Zduniak was still going to test the house for lead paint.
The defendants flatly deny that these conversations between Mr. Thibodeau, Mr. Heckman and Mr. Vichas regarding the presence of lead paint at Mr. Heckman’s house ever took place. T&T also denies telling Mr. Vichas that it would test Mr. Heckman’s house for lead paint. T&T argued throughout the trial that, as a lead paint renovator, it was Mr. Vichas’ responsibility to check for lead paint and that T&T depended on that expertise. Nevertheless, the court recites the evidence presented at trial in the light most favorable to the prevailing party and to sustaining the jury’s verdict. Of course, the jury is entitled to believe Mr. Vichas’ version of events, not the defendants.’
Mr. Vichas testified that he observed Mr. Heckman and Mr. Thibodeau socializing on Mr. Heckman’s front porch on several occasions. Mr. Vichas testified that Mr. Heckman and Mr. Thibodeau appeared to be good friends. Mr. Heckman admitted that his daughter and Mr. Thibodeau’s daughter were on the same cheerleading team.
Prior to starting work on the Heckman house, Mr. Vichas asked Mr. Thibodeau if Mr. Zduniak had performed the lead tests. Mr. Thibodeau told Mr. Vichas that Mr. Zduniak had tested several different areas on the Heckman house and that all the tests came back negative. Mr. Vichas also heard Mr. Zduniak assure Mr. Thibodeau that he had conducted the tests. Mr. Vichas testified that Mr. Heckman confirmed to Mr. Vichas that Mr. Zduniak had conducted the lead tests.
After being assured by his employer, T&T, and the home’s owner, Mr. Heckman, that there was no lead paint on the exterior of the Heckman house, Mr. Vichas began work on the Heckman house in April of 2013. Mr. Vichas worked on the Heckman house from approximately April of 2013 until October of 2013. Mr. Vichas spent approximately six months scrapping off and sanding the old (lead) paint, making any necessary small repairs with wood putty or caulking, and applying new paint. This process necessarily meant large amounts of lead paint dust and paint chips were produced by Mr. Vichas’ work on a daily basis. Mr. Vichas wore no protective clothing, or protective breathing apparatus. Mr. Vichas worked at the Heckman home nearly every working day, on some Saturdays, and late into the evening when summer sunlight allowed.
Despite the sheer amount of work involved in scraping, sanding, and repainting a large, three-story home, Mr. Vichas mostly worked alone, or, for a period of time, with one other T&T employee, Sergio Santos. Mr. Heckman complained to T&T about how long it was taking Mr. Vichas to complete the job. Mr. Vichas asked T&T for additional manpower, but was never given any meaningful help beyond that of Mr. Santos. Mr. Santos complained of feeling sick after a couple months of working at Mr. Heckman’s house. Mr. Santos started missing work and was eventually let go. Mr. Santos’ symptoms (fatigue, diarrhea) were consistent with lead poisoning. Mr. Vichas continued work on the Heckman project, continued to ask for more workers, but was never provided anything beyond very occasional help.
For the entire time that Mr. Vichas was working on the Heckman house, Mr. Heckman was at home. Mr. Heckman was home recovering from back surgery, but, nevertheless, was well enough to move about the house and yard and, on occasion, give Mr. Vichas directions as to how Mr. Vichas should perform his work. Mr. Vichas testified that he was not in charge of the project, but that it was Mr. Heckman who "called all the shots." At various times, Mr. Heckman directed Mr. Vichas where to paint and scrape, though Mr. Vichas noted that Mr. Heckman stayed inside his house while Mr. Vichas was sanding. While Mr. Vichas was working at the house, Mr. Heckman, an experienced painter, painted the down spouts and two small back porches, requiring Mr. Heckman to stand on a stepladder. Mr. Heckman used paint supplied by T&T for these activities. Mr. Heckman helped Mr. Vichas start a mechanical lift used to reach higher sections of the house. Mr. Heckman also put wood putty in numerous places on the large front porch to repair holes and gaps. Mr. Vichas was required to sand and repair this putty work to prepare the areas for painting. When Mr. Vichas complained that Mr. Heckman’s sloppy putty application was causing Mr. Vichas more work, Mr. Thibodeau deferred to Mr. Heckman and told Mr. Vichas to "just do whatever Timmy asks you to do." Mr. Vichas testified that he believed Mr. Heckman left the wood putty sanding to Mr. Vichas because Mr. Heckman was aware of the presence of lead paint. Mr. Heckman showed an employee of T&T how to use an airless paint spray gun belonging to T&T and how to use a masking machine that covered windows with paper so as to protect them from paint. Mr. Heckman complained to T&T that Mr. Vichas was taking too long to complete the project.
As with the porch work, there was no contract between T&T and Mr. Heckman for the painting done by Mr. Vichas. Two invoices both dated December 12, 2013 for approximately $12,000 and $10,000, respectively, were introduced at trial, but no evidence was presented showing either invoice was ever paid.
Eventually, Mr. Vichas began to feel unusually fatigued and ill. Mr. Vichas complained of joint pain throughout his body, severe headaches, and diarrhea. Initially, Mr. Vichas thought he was simply getting older and therefore more fatigued, but, as symptoms worsened, Mr. Vichas became suspicious that the exterior of the Heckman house did in fact contain lead paint. On October 30, 2013, at approximately 11:00 a.m., Mr. Vichas tested the exterior of the Heckman house for lead paint. Mr. Vichas videotaped the test with his smart phone and the test came up positive. Mr. Vichas immediately texted Mr. Thibodeau to inform Mr. Thibodeau of the positive test results. Mr. Vichas referenced Mr. Thibodeau’s and Mr. Heckman’s prior assurances regarding the lack of lead paint at the Heckman house in these initial texts when, Mr. Vichas testified, he was extremely upset at finding out that he had been working with lead paint for the last six months. Mr. Thibodeau (who was ill for reasons unrelated to this case) texted Mr. Vichas asking how to proceed given the presence of lead paint. Mr. Thibodeau did not deny having told Mr. Vichas that there was no lead paint, nor did he express any concern or surprise that a T&T employee had been exposed to lead paint. Mr. Vichas texted Mr. Thibodeau stating that a full clean up needed to be done (and told Mr. Thibodeau to take care of himself). Mr. Thibodeau texted Mr. Vichas asking him to handle the cleanup. Neither Mr. Thibodeau nor T&T sent any employees to assist Mr. Vichas in the cleanup. Mr. Vichas testified that on prior occasions, when there were heavy snows that needed to be cleared from roofs or parking lots for which T&T had a maintenance contract, T&T immediately called in 20-25 workers to get the job done. At no time did Mr. Thibodeau, Mr. Heckman, Mr. Tremblay, or anyone from T&T, ever inquire as to Mr. Vichas’ health, express any surprise or concern that Mr. Vichas had been exposed to lead paint for six months, or recommend that Mr. Vichas seek any medical attention.
Mr. Vichas was at the Heckman property until 7:00 p.m. on October 30, 2013 attempting to clean up the work area by himself. Mr. Tremblay dropped off a HEPA vacuum and some plastic sheeting to the site, but no one from T&T otherwise assisted Mr. Vichas in the cleanup in any way. Mr. Vichas vacuumed Mr. Heckman’s lawn in an attempt to collect what Mr. Vichas now knew was lead dust. Mr. Vichas vacuumed the gutters, porch, roof, and down spouts. Mr. Vichas performed this work in a disposable jump suit. Mr. Vichas used his own money to have his car cleaned and threw out all his work clothes because they were contaminated with lead dust. For six months, Mr. Vichas drank and ate food from containers that he now knew had been exposed to lead paint dust and chips.
After discovering the presence of lead paint at the Heckman house, Mr. Vichas asked to be assigned to another job. Mr. Tremblay told Mr. Vichas that he had to finish the Heckman job or be fired. Mr. Vichas went back to the Heckman job for a period of time with appropriate protective clothing. Mr. Vichas testified he felt he had no choice but to return to the Heckman house because he needed the job.
Eventually, Mr. Vichas confronted Mr. Heckman regarding the presence of lead paint because of Mr. Heckman’s prior representations that he had removed all the original paint. Mr. Heckman admitted there was lead paint present at his house, but only in the upper area of the house where Mr. Vichas’ test had confirmed its presence. After officials from the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) were contacted regarding Mr. Vichas’ lead exposure, Mr. Heckman threw Mr. Vichas off the Heckman property and threatened to have him arrested. Mr. Vichas was not permitted to retrieve some of his own personal painting equipment (ladders, heavy duty drop cloths, and extension cords) left at the Heckman property.
On November 2, 2013, Mr. Vichas went to the VA hospital in West Haven to be tested for lead poisoning. There is no "safe" level of lead; it is a poison. Nevertheless, a level of 5-10 mcd/dL (micrograms per deciliter of blood) is considered non-toxic or not elevated. On November 8, 2013, Mr. Vichas’ blood tests revealed Mr. Vichas had a lead blood level of 156 mcd/dL. On November 14, 2013, it was 95 mcd/dL. On November 26, 2013, it was 80 mcd/dL. Two experts testified at trial, Kimberly Sass, Ph.D., a neuropsychologist, and Robert Todd, M.D., a neurologist. Both Drs. Sass and Todd testified that any lead blood level over 80 mcd/dL could lead to "permanent health damage" and was "extremely dangerous." Dr. Todd testified that the level of lead in Mr. Vichas’ blood was not decreasing because it was leaving Mr. Vichas’ body. Instead, the lead was being absorbed into Mr. Vichas’ bones, where it would leach back out into Mr. Vichas’ body for the rest of his life.
Because Mr. Vichas’ lead contamination levels were so high, the VA was required by law to report the results to the EPA and to OSHA. The EPA and OSHA opened criminal investigations into the matter. OSHA charged T&T. Eventually, T&T agreed to pay a fine of $18,000 and agreed to certain other remedial measures.
T&T did not pay Mr. Vichas for the one day he took off to seek medical attention at the VA, or for any other days on which he was sick. By November-December 2013, Mr. Vichas’ symptoms included: foot drop, severe testicular and pelvis pain, severe joint pain, two of Mr. Vichas’ toes turned black, his tongue elongated, his face swelled, he had an abnormal growth on his arm, constant diarrhea and headaches, abdominal pain, and general fatigue. Eventually, T&T fired Mr. Vichas. Because Mr. Vichas was unable to work due to his symptoms, Mr. Vichas lost his apartment in January 2014. Mr. Vichas eventually became homeless for two years and ended up living in a VA homeless shelter in Hartford. T&T never inquired as to Mr. Vichas’ welfare in any way, even when one of T&T’s employees happened to run into Mr. Vichas near the VA shelter.
Nor did T&T reimburse Mr. Vichas for his lost work clothes or for the cleaning of his car.
Dr. Todd testified that Mr. Vichas is still suffering from the negative cognitive and neuropsychological effects caused by acute and chronic lead exposure. Dr. Sass testified that as a result of Mr. Vichas’ lead poisoning, Mr. Vichas had cognitive impairments, visual and verbal memory difficulties, and decreased function in the frontal lobe of his brain which controls thinking tasks. Dr. Sass estimated that Mr. Vichas had permanently lost 11 IQ points. On a test designed to test for active brain dysfunction, Dr. Sass described Mr. Vichas’ performance as "terrible." Dr. Sass testified that these issues were unlikely to abate, and, indeed would likely worsen over Mr. Vichas’ lifetime. Dr. Todd testified that Mr. Vichas would have decreased motor function, loss of memory, decreased vision, and cognitive and behavioral impairments throughout the remainder of his life. In effect, Dr. Sass testified, Mr. Vichas would age faster. Dr. Todd testified that Mr. Vichas was at radically increased risk for neurodegenerative diseases like Alzheimer’s disease and Parkinson’s disease. Mr. Vichas’ life would very likely be shortened. There is no cure or treatment for lead poisoning. The testimony provided by Drs. Sass and Todd was undisputed.
There was no evidence presented at trial that Mr. Vichas was exposed to lead anywhere except at the Heckman home.
LEGAL STANDARD
A jury verdict will stand unless unsupported by the evidence, or unless it is so palpably against the evidence as to indicate prejudice, partiality, corruption, confusion or a lack of understanding of the issues by the jury. Harris v. Clinton, 142 Conn. 204, 209 (1955). "Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion ... the conclusion of a jury ... must stand, even though the opinion of the trial court ... be that a different result should have been reached." Trzcinski v. Richey, 190 Conn. 285, 299 (1983). In viewing the claims of the plaintiff, the court must give the evidence the most favorable construction in support of the verdict. Shelnitz v. Greenbert, 200 Conn. 58, 67 (1986). A jury may except or reject all, part of, or none of the evidence and may believe or disbelieve any evidence and attribute to the evidence whatever weight it feels is merited. Birgel v. Heintz, 163 Conn. 23, 29 (1972); Murteza v. State, 7 Conn.App. 196, 209 (1986). Accordingly, the evidence offered at trial must be given the most favorable construction to which it is reasonably entitled in support of the verdict. Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983). While the ruling of the trial court on a motion to set aside a verdict is entitled to great weight because of the court’s familiarity with the facts and circumstances of the case; Nielson v. D’Angelo, 1 Conn.App. 239, 244, 471 A.2d 965 (1984); the parties are entitled to have issues upon which fair minded persons may differ decided by the jury. Balboni v. Stonick, 2 Conn.App 523, 529 (1984).
a. Motion To Set Aside The Verdict
The decision to set aside a verdict entails the exercise of discretion. Allison v. Manetta, 284 Conn. 389, 405 (2007). The exercise of discretion cannot infringe on the parties’ constitutional right to have the issues of fact determined by a jury. Young v. Data Switch Corp., 231 Conn. 95, 100-01 (1994). The court may set aside a jury verdict that, in the court’s opinion, is against the law or the evidence. The court should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, but should set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles. Monti v. Wenkert, 287 Conn. 101, 110 (2008); Auster v. Norwalk United Methodist Church, 286 Conn. 152, 159 (2008). The trial court must view the evidence offered at trial in the light most favorable to sustaining the verdict. Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534 (1999). The court’s determination is whether the evidence reasonably supports the verdict. Id.
b. Judgment Notwithstanding the Verdict
The filing of a motion for a directed verdict is a prerequisite for a motion for judgment notwithstanding the verdict. Preston v. Wellspeak, 62 Conn.App. 77, 80-81 (2001). A motion for a directed verdict, if denied, is considered renewed by a motion for judgment notwithstanding the verdict; the motion for judgment notwithstanding the verdict is made in accordance with the party’s motion for directed verdict. Salaman v. Waterbury, 246 Conn. 298, 309 (1998). The standards governing a motion for judgment notwithstanding the verdict are the same as those governing a motion for a directed verdict, because a motion for judgment notwithstanding the verdict is not a new motion but the renewal of a motion for a directed verdict. Gagne v. Vaccaro, 255 Conn. 390, 400 (2001). In considering a motion for judgment notwithstanding the verdict, the court "must consider the evidence, and all inferences that may be drawn from the evidence, in a light most favorable to the party that was successful at trial." Craine v. Trinity College, 259 Conn. 625, 635 (2002). "Judgment notwithstanding the verdict should be granted only if [the court finds] that the jurors could not reasonably and legally have reached the conclusion that they did reach ... If the jury, however, without conjecture could not have found established an element of the claim, the verdict on the claim cannot withstand a motion for judgment notwithstanding the verdict ... Consequently, the plaintiff must produce sufficient evidence to remove the jury’s function from the realm of speculation." (Citations omitted.) Id. at 636.
T&T meets this requirement.
c. Motion for Remittitur
Remittitur on the grounds of an excessive verdict should be ordered rarely and "only in the most exceptional of circumstances." Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 280 (2011). The evidence must be viewed in the light most favorable to sustaining the verdict. Wochek v. Foley, 193 Conn. 582, 587 (1994). The court is bound by the jury’s credibility determinations and all reasonable inferences the jury could have drawn from the evidence. Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 290 (2011). "The court should not interfere with the jury’s determination except when the verdict is plainly excessive or exorbitant." Johnson v. Pike, 136 Conn.App. 224, 231 (2012). The damages award must be an "extraordinary departure from reasonableness." Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 283 (2011). Awards that are generous but within the range of reasonable compensation should not be remitted. Damages not supported by the evidence; Harris v. Bradley Memorial Hospital and Health Center, 296 Conn. 315, 349 (2010); or contrary to law or "contrary to the court’s explicit and unchallenged instructions" are subject to remittitur. Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 662 (2007).
LEGAL ANALYSIS
a. T&T’s Motion to Set Aside the Verdict
T&T moves to set aside the verdict citing eight separate grounds. The court is not persuaded by any of the grounds cited by T&T. Nearly all of the issues cited by T&T were argued and decided by the court on the record during trial. After reviewing T&T’s post-trial papers, the court concludes that its reasoning as set forth on the record during trial adequately addresses T&T’s post-trial arguments, with the following additions.
The court first addresses T&T’s argument with respect to the adequacy of the court’s charge on intentional tort. "A jury instruction must 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 ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper ... Therefore, [o]ur standard of review on this claim is whether it is reasonably probable that the jury was misled." (Internal quotation marks omitted.) DeMatteo v. New Haven, 90 Conn.App. 305, 307-08, 876 A.2d 1246, cert. denied, 275 Conn. 931, 883 A.2d 1242 (2005).
T&T argues that the court erred in not including the entirety of the relevant instruction compiled by the Civil Jury Instruction Committee. The court disagrees. First, use of the Civil Jury Instructions is "entirely discretionary." Failure to use the entirety of the suggested instruction is not in and of itself error. Second, the specific jury instruction at issue (3-14.8) is particularly unwieldy because it is two pages, single spaced in length and is largely an undigested repetition of the relevant case law. As set forth on the record, the court concluded that such a lengthy instruction would only serve to confuse the jury. The court’s instruction was a correct statement of the law and the court added additional language at the request of T&T to emphasize certain principles. Moreover, the court stated twice in the instruction that the jury was to apply an intentional conduct standard to Mr. Vichas’ claims against T&T, as distinguished from the negligence standard to be applied to Mr. Vichas’ claims against Mr. Heckman. The jury is presumed to follow the court’s instructions. State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987).
Second, with respect to T&T’s contention that text messages between Mr. Vichas and Mr. Thibodeau should not have been admitted into evidence because they were not properly authenticated, the court notes that both Mr. Vichas and Mr. Thibodeau testified at length during trial about the text messages and no witness questioned the authenticity of the texts. To the extent that T&T questioned the authenticity of the texts, there was ample opportunity for T&T to make that showing. T&T did not.
Third, with respect to T&T’s argument that Mr. Vichas’ outburst at trial so prejudiced the jury against T&T that it could not get a fair trial, see Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 316-17 (2004), the court is unpersuaded. First, the court instructed the jury not to consider the outburst in their deliberations and a jury is presumed to follow the court’s instructions. State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987). Second, the outburst was not directed to or critical of T&T in anyway. Indeed, on balance, the court concludes that the outburst was more prejudicial to Mr. Vichas. One of the critical issues in this trial was Mr. Vichas’ credibility. For many of the key factual determinations, the jury was largely left with the choice of whether to believe the defense’s various witnesses, or Mr. Vichas alone. To the extent Mr. Vichas engaged in verbal outbursts or other erratic behavior in the courtroom, it can only tend to undermine Mr. Vichas’ credibility. The court concludes that T&T was not prejudiced by Mr. Vichas’ outburst.
To the extent that T&T argues that Mr. Vichas’ outburst improperly corroborated expert testimony that lead poisoning can cause a lack of impulse control (and thus Mr. Vichas’ actions were living proof of that testimony), the court notes that the fact that Mr. Vichas was exposed to lead paint was largely, if not entirely, undisputed at trial. Nor was there any dispute as to the possible health consequences of prolonged exposure to lead paint. Thus, to the extent Mr. Vichas may have exhibited certain symptoms of lead paint exposure in the courtroom, such actions were not unfairly prejudicial to the defendants.
Fourth, with respect to Mr. Vichas’ testimony regarding the physical symptoms experienced by Mr. Santos, the court concludes that any error was harmless. By far, the most important issue in this case was the parties’ respective knowledge, or lack thereof, of the presence of lead paint at the Heckman house. The trial evidence was undisputed that there was in fact lead paint at the Heckman house, that Mr. Vichas had no other exposure to lead other than at the Heckman house, and that Mr. Vichas was severely harmed by that lead exposure. T&T’s defense was simply that it was unaware of any lead at the Heckman house and that it was Mr. Vichas’ responsibility as a lead renovator to detect lead paint and take any necessary actions to protect himself. Mr. Santos’ symptoms corroborated Mr. Vichas’ descriptions of his own symptoms and the presence of lead paint generally, but because these facts were wholly unchallenged at trial, any additional weight provided by testimony of Mr. Santos’ symptoms was immaterial and could have no effect on the outcome of trial.
For clarity, the court concludes that the underlying decision to allow Mr. Vichas’ testimony was correct for the reasons stated on the record.
Fifth, with respect to plaintiff’s counsel’s reference to the OSHA report during closing arguments, because T&T did not object at the time, thus allowing the court to potentially give a correcting instruction, that argument is waived. The court also notes that both parties referenced the OSHA report during their closing arguments.
Finally, consistent with the court’s analysis in this memorandum of decision, the court rejects T&T’s argument that the court ought to have granted T&T’s motion for directed verdict.
b. T&T’s Motion for Judgment Notwithstanding the Verdict
T&T moves for judgment notwithstanding the verdict on the grounds that the evidence does not support the jury’s conclusion that T&T either actually intended to harm Mr. Vichas or that T&T intentionally created a dangerous condition that T&T actually believed would make Mr. Vichas’ injury substantially certain. The court disagrees. The court concludes that there was sufficient evidence presented at trial from which the jury could reasonably conclude that T&T intentionally created a dangerous condition. More specifically, the jury could have reasonably concluded that T&T lied to Mr. Vichas about the presence of lead paint and that T&T intentionally put Mr. Vichas in the position of sanding and scraping a house that T&T knew was contaminated with lead paint without any necessary health and safety precautions. Additionally, the jury could also have reasonably concluded that Mr. Vichas’ injury was substantially certain to occur because the only possible outcome of Mr. Vichas spending six months sanding and scraping a house contaminated with lead paint without any necessary health and safety protections is that Mr. Vichas would be exposed to and ingest catastrophic levels of poisonous lead.
"To bypass the exclusivity of the [Workers’ Compensation Act], the intentional or deliberate ... conduct alleged must have been designed to cause the injury that resulted." Lucenti v. Laviero, 327 Conn. 764, 775, 176 A.3d 1 (2018) citing Mingachos v. CBS, Inc., 196 Conn. 91, 102, 491 A.2d 368 (1985). "[T]he mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. Accordingly ... reckless misconduct differs from intentional misconduct, and that the employee must establish that the employer knew that injury was substantially certain to follow its deliberate course of action." Lucenti, supra, 327 Conn. at 775, 176 A.3d 1.
"[I]ntent refers to the consequences of an act ... [and] denote[s] that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to follow from it ... A result is intended if the act is done for the purpose of accomplishing such a result or with knowledge that to a substantial certainty such a result will ensue ... An intended or willful injury does not necessarily involve the ill will or malevolence shown in express malice, but it is insufficient to constitute such an [intended] injury that the act ... was the voluntary action of the person involved ... Both the action producing the injury and the resulting injury must be intentional ... [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances ... The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act ... The known danger involved must go from being a foreseeable risk which a reasonable man would avoid and become a substantial certainty ..." Lucenti, supra, 327 Conn. at 776, 176 A.3d 1. "[S]atisfaction of the substantial certainty exception requires a showing of the employer’s subjective intent to engage in activity that it knows bears a substantial certainty of injury to its employees ..." It is, however, well settled that "[i]ntent is clearly a question of fact that is ordinarily inferred from one’s conduct or acts under the circumstances of the particular case." Id. at 779-80 citing Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).
Here, viewing the evidence presented at trial in the light most favorable to Mr. Vichas and to sustaining the verdict, the jury could have reasonably concluded the following facts. First, that T&T knew lead paint was dangerous to human health. T&T knew that lead paint was dangerous to human health because that fact was common knowledge within the painting industry. Mr. Tremblay, T&T’s owner, also admitted he was aware of the health dangers of lead paint. Mr. Thibodeau, T&T’s Operations/General Manager, was aware of the health dangers of lead paint because Mr. Vichas told Mr. Thibodeau so. Mr. Vichas even told Mr. Thibodeau that the dangers of lead paint were not worth the risk to painters’ health even if proper precautions were taken. The jury could also have reasonably concluded that it was because Mr. Thibodeau was aware of the health risks of lead paint that Mr. Thibodeau asked Mr. Zduniak to test the Heckman’s house for lead paint in the first instance, as well as two other houses in New Britain and Wethersfield that T&T considered painting.
Second, the jury could have reasonably concluded that T&T was aware that Mr. Heckman’s house was contaminated with lead paint. T&T was aware that Mr. Heckman’s house was contaminated with lead paint because the jury is entitled to credit the testimony that Mr. Zduniak tested the house in several places. Because Mr. Vichas’ lead test of the Heckman house was positive, the jury could have reasonably concluded that Mr. Zduniak’s test came up positive as well. The jury could have further chosen to credit Mr. Vichas’ testimony that Mr. Thibodeau was aware of Mr. Zduniak’s lead tests. Finally, the jury could also have reasonably concluded that Mr. Thibodeau knew about the presence of lead paint at the Heckman house because the age of the Heckman house made it virtually certain that the house contained lead paint.
It was also undisputed at trial that Mr. Vichas was exposed to lead and the only evidence offered at trial as to where that exposure could have occurred was the Heckman house.
Mr. Zduniak testified at trial and denied testing the Heckman house for lead paint. Nevertheless, the jury is entitled to discredit Mr. Zduniak’s testimony. Mr. Zduniak still worked for T&T at the time of trial.
Third, the jury could have reasonably concluded that T&T lied to Mr. Vichas about the presence of lead paint so that he would paint the Heckman house without the hassle and expense of the protective measures necessitated by lead paint. The jury could have reasonably concluded that T&T lied to Mr. Vichas because the jury is entitled to credit Mr. Vichas’ testimony that he asked Mr. Thibodeau if Mr. Zduniak’s tests were negative for lead paint and that Mr. Thibodeau lied to Mr. Vichas by saying the tests were negative. The jury could have reasonably concluded that Mr. Thibodeau lied to Mr. Vichas because T&T wanted Mrs. Heckman to continue to use her influence to ensure that T&T continued to receive valuable business. This is particularly true given that the jury could have reasonably concluded that the Heckmans never paid T&T anything for either the front porch reconstruction or the painting done by Mr. Vichas.
Finally, the jury could have reasonably concluded that T&T intentionally put Mr. Vichas in a position where it was substantially certain that he would be poisoned by lead. Indeed, viewing the facts in the light most favorable to Mr. Vichas and to sustaining the jury’s verdict, the court concludes that there is no other possible outcome to this fact set other than that Mr. Vichas would be exposed to and ingest catastrophic levels of poisonous lead.
The court is conscious that "permitting an employee to sue an employer for injuries intentionally caused to him constitutes a narrow exception to the exclusivity of the [Workers’ Compensation Act]" and that "[w]hat is being tested is not the degree of gravity of the employer’s conduct, but, rather, the narrow issue of intentional versus accidental conduct." Lucenti, supra, 327 Conn. at 778-79. The court is also aware that the substantial certainty exception "requires employer conduct that so obviously and intentionally creates a danger to the employee that "the employer cannot be believed if it denies that it knew the consequences were certain to follow." Lucenti, at 790 quoting Sorban v. Sterling Engineering Corp., supra, 79 Conn.App. at 455, 830 A.2d 372. Nevertheless, on the basis of the facts that reasonably could have been found by the jury, the court concludes that Mr. Vichas has met that high standard.
Mr. Vichas sanded and scraped a house contaminated with lead paint nearly every working day for six months. The very nature of this activity means that Mr. Vichas’ work would necessarily and unavoidably produce large amounts of lead dust and lead paint chips. Because T&T lied to Mr. Vichas about the presence of lead paint and, therefore, Mr. Vichas had no reason to think that he ought to take safety precautions, there was no way for Mr. Vichas to avoid breathing in large amounts of lead dust for six months. Similarly, there was no way for Mr. Vichas to avoid having large amounts of lead dust and paint chips contaminate his skin, clothes, car, and the food and drink he consumed every day. Given the facts as told to Mr. Vichas by T&T, there is no amount of due care, or other safer means that could have been used by Mr. Vichas to avoid the injury he suffered. Mr. Vichas could not hold his breath every working day for six months or take any action to prevent having lead dust and paint chips settle all over his body, clothing, and work site. For Mr. Vichas to use the health and safety precautions associated with lead paint despite negative tests and explicit assurances by T&T that lead did not exist would have been illogical, and, more practically, cost prohibitive. There is no evidence that either T&T or Mr. Heckman would have permitted Mr. Vichas to take the onerous safety measures needed to protect against lead exposure (or paid for those measures) given their assurances that lead paint was not present and it strains credulity past the breaking point to conclude that either T&T or Mr. Heckman would have allowed Mr. Vichas to implement those safety measures on his own authority or against the wishes of T&T or Mr. Heckman. Mr. Vichas’ lead poisoning is the natural (and only) result of the work he was instructed to undertake by T&T. Once the fact set of six months of unprotected sanding and scraping of lead paint is established, there is only one outcome to that factual circumstance. Mr. Vichas was going to be exposed to and ingest large amounts of poisonous lead. On the facts that could reasonably be found by the jury, the injury to Mr. Vichas was not just "substantially certain" to occur, it was "certain" to occur.
Nor was there any reason for Mr. Vichas to think he ought to take any safety precautions because T&T told Mr. Vichas that they had tested for lead paint and the test was negative.
A party’s intent can be inferred from its actions. If a party points a loaded gun and pulls the trigger, that party can be said to intend the consequences of its actions. There is only one outcome to that fact set. Here, T&T deliberately and knowingly sent Mr. Vichas out to sand and scrape a house contaminated with lead paint for six months without any necessary health and safety precautions. There is only one outcome to that fact set. Similar to a party pointing a loaded gun and firing, T&T cannot now claim that it did not intend the obvious and only consequences of its actions.
c. Motion for Remittitur
T&T argues that the jury’s award of $51,075.00 in past economic damages is unsupported by the evidence and that the jury’s award of $1,800,000.00 in past and future noneconomic damages is excessive. It is undisputed that Mr. Vichas had $11,083.13 in past medical expenses. Mr. Vichas also introduced into evidence his tax returns for 2013-2016. The total difference between Mr. Vichas’ income in 2013 ($27,859.00) and Mr. Vichas’ income for 2014-2016 is $32,252.00. The jury is entitled to credit that evidence as a reasonable estimate of what Mr. Vichas would have earned absent T&T’s conduct. Thus, there is evidence in the record to support a finding of $43,335.13 ($11,083.13 + 32, 252.00) in past economic damages. Because the court can find no further evidence in the record establishing Mr. Vichas’ past economic damages with reasonable certainty, the court grants T&T motion for remittitur in the amount of $7,739.87 ($51,075.00 - $43,335.13).
The court denies T&T’s motion for remittitur to the extent that it is directed toward the jury’s $1,800,000.00 noneconomic damages award. By any measure, Mr. Vichas has sustained grievous harm that will affect him for the rest of his shortened life. Based on the facts that could reasonably be found by the jury and the undisputed medical evidence as to the severe, incurable, and lifelong damage done to Mr. Vichas’ health, the jury’s $1,800,000.00 noneconomic damage award is not excessive, unreasonable, or unsupported by the evidence.
d. Plaintiff’s Bill of Costs
The court grants Mr. Vichas’ bill of costs in the amount of $22,301.42. The court deducts the plaintiff’s claimed costs for in-state depositions, improper denial of liability in the Answer, and costs for a private investigator. The court finds the remainder of plaintiff’s costs reasonable and appropriate.
CONCLUSION
For all the reasons set forth above, the court denies T&T’s motions for judgment notwithstanding the verdict, to set aside the verdict, and for a new trial. The court grants in part T&T’s motion for remittitur in the amount of $7,739.87 and enters judgment in favor of Mr. Vichas in the amount of $1,843,335.13, plus any applicable statutory interest in accordance with the plaintiff’s offer of compromise. The court grants Mr. Vichas’ bill of costs in the amount of $22,301.42.