Opinion
No. (X02) CV 94 0155265 S
May 9, 2003
MEMORANDUM OF DECISION ON MOTION FOR REMITTITUR
On December 12, 2001, the jury in this case returned verdicts for the plaintiff, Elaine Blake, against the defendants, Lawrence M. Beck, M.D. and his medical group, Neurological Specialists, P.C., on both of her pending claims against them. On the plaintiff's claim for wrongful death, which she brought in her representative capacity as administratrix of the estate of her late husband, Crafton Blake, under General Statutes § 52-555, the jury awarded her $1,004,492.00 — $4,492.00 in economic damages for funeral expenses and $1 million in non-economic damages — based on findings that the defendants committed medical malpractice in their case and treatment of Mr. Blake, and thereby proximately caused his death. On the plaintiff's claim of loss of consortium, which she brought in her individual capacity as Mr. Blake's surviving spouse under General Statutes § 52-555a, the jury awarded her $2 million, all in non-economic damages, based on findings that by negligently causing Mr. Blake's death, the defendants wrongfully deprived her of his companionship, services and support throughout what would otherwise have been the remainder of their married life.
The defendants have now moved this Court to order a remittitur as to the jury's $2 million verdict for loss of consortium. In support of that motion, the defendants insist that a verdict of that magnitude — twice as large as the jury's verdict on the plaintiff's underlying claim of wrongful death and ten times larger than the amount suggested by the plaintiff's own lawyer in his closing argument — is so excessive as to shock the sense of justice, and thus to require that it be set aside as a matter of law.
I. Rules For Deciding Motions For Remittitur
In ruling on a motion for remittitur, a trial judge must bear in mind that "[t]he amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case the jury." Gaudio v. Griffin Health Service Corp., 249 Conn. 523, 551 (1999). Accordingly, a jury's assessment of damages should only be set aside when the verdict is plainly excessive and exorbitant." Wochek v. Foley, 193 Conn. 582, 586 (1984). Proper compensation for many forms of loss or injury cannot be computed mathematically, and thus the law furnishes no precise rule for its assessment. Russakoff v. Stamford, 134 Conn. 450, 455 (1948). Accordingly, when a verdict is challenged for excessiveness, the test applied "is whether the award falls within the necessarily uncertain limits of just damages or whether the size of the award so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." Gaudio v. Griffin Health Services Corp., supra, 249 Conn. at 551.
Under this test, it is certainly not necessary to present independent evidence of juror mistake or misconduct to set aside a verdict. The focus, instead, is on the size of the verdict in relation to the evidence claimed to support it.
In determining if the evidence is sufficient to support the jury's award, the court must view the evidence in the light most favorable to sustaining that award. Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983). Instead of indulging its own subjective notions as to what the verdict should have been, the court must indulge every reasonable presumption in favor of sustaining the verdict as the jury returned it. Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666, 733 A.2d 197 (1988). "If the jury could reasonably have reached its conclusion, the verdict must stand." Gaudio v. Griffin Health Services Corp., supra, 249 Conn. at 534.
II. The Law Governing Loss of Consortium
The Connecticut Supreme Court first recognized the modern common-law claim for loss of spousal consortium in Hopson v. St. Mary's Hospital, 176 Conn. 485, 487, 408 A.2d 260 (1979). In that case, the Court
defined consortium "as encompassing the services of the [injured spouse], the financial support of the [injured spouse], and the variety of intangible relations which exist between spouses living together in marriage. Prosser, Torts (4th Ed. 1971) § 124, pp. 881-82. These intangible elements are generally described in terms of affection, society, companionship and sexual relations. Comment, `The Action of Loss of Consortium in New Mexico,' 2 N.Mex.L.Rev. 107, 108 (1972). These intangibles have also been defined as the constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage. Brown v. Kistleman, 177 Ind. 692, 98 N.E. 631 (1912); Lippman, `The Breakdown of Consortium,' 30 Colum.L.Rev. 651 (1930); Pound, `Individual Interests in the Domestic Relations,' 14 Mich.L.Rev. 177 (1916); Holbrook, `The Change in the Meaning of Consortium,' 22 Mich.L.Rev. 1 (1923)."
Jacoby v. Brinkerhoff, 250 Conn. 86, 90-91, 735 A.2d 347 (2001) (quoting Hopson v. St. Mary's Hospital, supra, 176 Conn. at 487).
At common law, a spouse's right to recover damages for loss of consortium was strictly limited to the period of the marriage itself. Once the injured person died from his injuries, the right of his spouse to recover damages for loss of consortium as a result of those injuries was cut off, in the sense that no damages could be awarded for any of her postmortem losses. Ladd v. Douglas Trucking Co., 203 Conn. 187, 192-97, 523 A.2d 1301 (1987). With the enactment of General Statutes § 52-555a, however, the bar to recovering damages for postmortem loss of consortium was abrogated. DeMarinis v. United States A. Assoc. Cas. Ins., 44 Conn. App. 172, 176-78, 687 A.2d 1305 (1997). Under the statute, the surviving spouse of an injured person who dies as a result of tortiously inflicted injuries can now recover damages from the tortfeasor for any loss of consortium she has suffered or will probably suffer as a direct and proximate result of her spouse's wrongful death. Logically, the only temporal limitation upon the surviving spouse's right to recover damages for postmortem loss of consortium is the period of time in which the plaintiff and her deceased spouse would probably have continued to live together as a married couple, enjoying each other's companionship, society and support, were it not for the defendant's tortious conduct. See, e.g., TM Invest., Inc. v. Jackson, 206 Ga. App. 218, 425 S.E.2d 300 (1992) (stating as a general proposition, albeit in a case involving a common-law claim for loss of antemortem consortium, that the right of consortium exists only during the "joint lives" of a husband and his wife).
III. Defendants' Challenges to Plaintiff's Loss-of-Consortium Verdict
In support of their claim that a remittitur should be ordered as to the jury's $2 million verdict for loss of consortium, the defendants do not argue that there was no factual basis in the record for any finding of loss of consortium. To the contrary, they impliedly concede that the record contains substantial evidence of loss of consortium, for they devoted nearly half of their original nine-page brief on this Motion to describing and discussing that evidence. Instead, their challenge is directed to the amount of the jury's verdict, both in absolute terms and in relation to the size of its verdict on the plaintiff's underlying claim for wrongful death.
The challenged verdict, claim the defendants, is the largest loss-of-consortium verdict in Connecticut legal history, yet the loss of consortium for which it was awarded was that of a man who, had he survived the stroke that first put him in the defendants' care, would have suffered from serious disabilities for which the defendants were in no way responsible. During the remainder of his life, for which he concededly had but a fifteen-year statistical life expectancy because he suffered from sickle cell disease, it was highly unlikely, claim the defendants, that he could or would have remained the same fine source of companionship, society and service for his wife as he had been and she had become accustomed to before his stroke. This, then, they argue, is not the right case in which to set the State record for loss-of-consortium verdicts.
Here, argue the defendants, the probable reason for the jury's large verdict is their mistaken belief that they could award damages for loss of parental consortium to the decedent's surviving children in addition to loss of spousal consortium to the plaintiff. They base this argument on the claim that "the majority of the evidence presented by family members at trial dealt with the relationship of Mr. Blake and his children." Defendant's Memorandum (1/18/02), p. 8.
Another major part of the defendant's challenge to the amount of the jury's loss-of-consortium verdict is that that verdict was nearly twice the size of their verdict for wrongful death. Here, they argue, it is simply inconceivable that the plaintiff's loss of her husband's consortium during what would otherwise have been the final years of their married life had any greater value to her than that of own loss, over that same period, both of her consortium and of all the other pleasures of life itself. Even without a specific explanation as to how the jury might have reached their verdicts, the defendants argue that in context, having awarded the plaintiff $1 million in noneconomic damages on her representative claim of wrongful death, they could not reasonably have awarded her $2 million in non-economic damages on her individual claim for loss of consortium arising from that wrongful death. Such a result, they insist, "so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." Gaudio v. Griffin Health Services Corp., supra, 249 Conn. at 551.
Finally, the defendants argue, under General Statutes § 52-216a, that the plaintiff's loss-of-consortium verdict should be reduced in light of monies she received, both in her individual capacity and in her representative capacity, as a result of pretrial settlements with other health care providers whom she also sued in this case.
IV. Plaintiff's Responses to Defendants' Challenges and Court's Disposition Thereof
A. Claim That Verdict Was Excessive Because It Failed to Reflect the True Value of the Plaintiff's Loss of Consortium in Light of Her Husband's Stroke
The defendants' first challenge to the size of the plaintiff's loss-of-consortium verdict is that the verdict is excessive in light of the likely deterioration of the Blakes' marital relationship, and the resulting diminution in value of Mr. Blake's consortium to the plaintiff, as a result of his stroke. Because Mr. Blake did not become the defendants' patient until after he had suffered the stroke, they argue that any damages awarded for loss of consortium in the post-stroke period should have been reflective of his diminished capacity to be a source of services, society and companionship for the plaintiff as a result of the stroke.
The plaintiff's response to this argument is that the defendants have improperly based it on a misapplication of the controlling standard for deciding motions for remittitur. She claims, in particular, that the defendants rely upon a misleading summary of the evidence that fails to view the evidence in the light most favorable to sustaining the challenged verdict. Where, in particular, the defendants suggest that, on this record, the Blakes' marital relationship would have significantly deteriorated in the aftermath of his stroke, thus lessening the value of his consortium to the plaintiff even if he had never became a victim of medical malpractice, the plaintiff insists that the defendants have ignored important evidence which this Court is obliged to credit.
The most favorable construction of the evidence in support of the jury's verdict, she argues, was provided by her expert, Stephen Goldman, M.D., who testified that, with proper post-stroke care and treatment, Mr. Blake would have ". . . returned to be able to walk, to ambulate, to speak conversantly, to understand, to interact with his family appropriately and to be independently functional in the house." The Court agrees with the plaintiff that if Dr. Goldman's optimistic prognosis for Mr. Blake was correct, as the jury was entitled to believe, there was ample evidence in the record to support a finding that Mr. and Mrs. Blake would probably have continued to enjoy the same kind of loving, trusting, mutually supportive relationship after the stroke as they had enjoyed before it. The Court concludes on this basis that the defendants' first argument in support of their Motion for Remittitur must be rejected.
B. Claim That Verdict Is Excessive Because It Is the Largest Loss-of-Consortium Verdict in Connecticut Legal History
As for the defendants' second argument — that the Court should order a remittitur as to the challenged verdict because it is the largest loss-of-consortium verdict in Connecticut legal history the plaintiff responds in three ways. First, she correctly reminds the Court of Connecticut case law which holds that there is no mathematical formula or ironclad rule for assessing damages in wrongful death cases. See, e.g., Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 (1974) (citing Fairbanks v. State, 143 Conn. 653, 661, 124 A.2d 893 (1956), for the proposition that, "It serves no useful purpose to compare a verdict in one death case with those in others. No life is like any other, and the damages for the destruction of one furnish no standard for others"). This important note of caution has been sounded with equal clarity in loss-of-consortium cases, where our Appellate Court has flatly stated that, "Since loss of consortium is incapable of precise measurement, considerable latitude is allowed a jury in estimating damages." Musorofiti v. Vlcek, 65 Conn. App. 365, 372-73, 783 A.2d 36 (2001) (quoting Shegog v. Zabrecky, 36 Conn. App. 737, 751, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995)).
Secondly, the plaintiff challenges the defendants' claim that her verdict is so large as to fall outside the range of verdicts actually returned for loss of consortium, in Connecticut or elsewhere. On this score, she first draws the Court's attention to the jury's verdict in Guthrie v. Town of Groton, where a plaintiff's total damages for loss of consortium were assessed at $1.7 million. See Jury Verdict reported at 1999 WL 33245319 JAS Conn. Jury. There, notes the plaintiff, the injured spouse did not die, but suffered a traumatic brain injury for which his wife's loss of consortium was assessed as aforesaid. The plaintiff also draws the Court's attention to the $800,000 in-state loss-of-consortium verdict returned in Talbot v. Nissanka; see Jury Verdict reported at 2000 WL 33245269 JAS Conn. Jury; and to several out-of-state loss-of-consortium verdicts in amounts approaching or exceeding $1 million. See, e.g., Wheat v. United States, 630 F.2d 699, 722 (W.D.Tex. 1986) (death award of $1.8 million and loss-of-consortium award of $900,000); Meek v. Dept. of Transportation, 240 Mich. App. 105, 121-22, 610 N.W.2d 250 (2000) (awards of $1.5 million for wrongful death and $1.5 million to decedent's wife for resulting loss of consortium after a 2-year marriage).
The defendants correctly note that the actual verdict in Guthrie was for less than $1 million because the jury's total damages finding of $1.7 million for loss of consortium was reduced by over 45% due to the injured spouse's comparative negligence. The fact remains that the Guthrie jury assessed the plaintiff's total damages for loss of consortium at $1.7 million, and that number was not reduced for excessiveness.
Third and finally, the plaintiff argues that her showing of loss of consortium was especially strong and convincing, as indeed it was. The evidence showed, and permitted the jury to find, that the plaintiff and her husband had an especially warm, supportive and loving relationship dating back many years, to when they first met in their native Jamaica. They moved to this country to obtain a better life for themselves and their family, and worked constantly together, with great love, affection and mutual respect, to build a life together here. Mrs. Blake testified that her husband was a loving, kind family man, for whom his family was the most important thing in the world. She testified that he worked hard to support the family as a porter at a New York hotel, but at all times played a singularly important role in helping her to raise and counsel their children. The Blakes eventually saved enough money to buy their own home in Bridgeport, which they purchased with great joy. Mr. Blake made great efforts at home improvement, which, though not always successful, betokened his love for the family and commitment to their home. Eventually, they hoped to retire to Florida.
While at home, the Blakes had a playful, affectionate relationship with one another, which they openly enjoyed in the presence of their children. In short, Mr. Blake was the consummate family man, living out the American dream with the plaintiff, his wife, while working together with her to raise a family of which any couple would be proud. When Mr. Blake died at the age of 45, it had a devastating emotional impact upon the plaintiff, who, according to her daughter Natalie, had never imagined being alone without her father. With his death, Mrs. Blake lost her constant helpmate and loving companion, and was forced to fill the roles of both mother and father in the lives of their children. She also lost the dream she shared with Mr. Blake of retiring to and living out their lives together in Florida.
In light of this evidence, which was presented with grace and feeling by the plaintiff, her daughter and Mr. Blake's niece, Marjorie Powell, who had lived with the family for several months, the plaintiff made a compelling case for a substantial award of damages for loss of consortium. On the basis of that evidence, the jury might well have concluded that the defendants, by their negligence, wrongfully deprived her of 15 years or more of love, support, caring and affection from, while sharing all the joys of a truly happy marriage with, an especially attentive, hardworking, proud and joyous man. Against that background, this Court cannot say that Mrs. Blake's damages award for loss of consortium should not be among the largest ever awarded by a Connecticut jury. It is not so far outside the range of loss-of-consortium verdicts in this or other states as to warrant setting it aside on that basis alone.
Indeed, it falls within that range, as evidenced by data collected by James L. Isham in his recent annotation, "Damages: Spousal Death or Injury," 61 ALR 4th 309. In that annotation, the author describes several out-of-state cases where large awards of damages for loss of spousal consortium due to wrongful death, all in excess of $750,000, were upheld on appeal over the objection that they were excessive. Id., § 3. Several such awards, like the award here challenged, were based solely upon the proven loss of society, services, companionship and other noneconomic benefits of the marital relationship. See, e.g., Sander v. Geib, Elston, Frost Professional Ass'n, 506 N.W.2d 107 (South Dakota, 1993) ($890,000 for loss of counsel, guidance, aid, society and protection to husband of woman who died of cancer due to defendants' medical malpractice); Deershake v. Du Quoin State Fair Asso., 185 Ill. App.3d 374, 133 Ill. Dec. 508, 541 N.E.2d 719 (5th District, 1989) ($1 million to widow of unemployed man who was killed in a drag race 2 weeks after they were married); Holston v. Sisters of the Third Order of St. Francis, 247 Ill. App.3d 985, 187 Ill. Dec. 743, 618 N.E.2d 334 1st District, 1993) ($1.2 million awarded to husband of 29-year-old woman who died during gastric bypass operation to relieve obesity negligently performed by defendant hospital); Pescatore v. PAN AM, 97 F.3d 1 (2d Cir. 1996) ($5 million awarded to wife of man who died when plane in which he was a passenger was destroyed by a bomb).
C. Claim That Verdict Was Improperly Based on Loss of Both Parental and Spousal Consortium
As for the defendants' third argument on this Motion — that the jury's large verdict for loss of consortium was probably based upon a misunderstanding that such damages could be awarded for loss of both spousal and parental consortium — the plaintiff responds that that argument is "nothing more than rank speculation utterly unsupported by the record in this case[.]" Plaintiff's memorandum (2/21/02), p. 8. For the following reasons, the Court agrees.
First, the claim for which loss-of-consortium damages were awarded was brought solely in the name of the plaintiff, Elaine Blake. Second, nothing in the Court's instructions gave the jury any indication that losses experienced by other members of the Blakes' family should be considered in assessing the extent of the plaintiff's own losses or the damages to be awarded therefor. Third, the testimony of Natalie Blake and Marjorie Powell actually focused on the losses suffered by Mrs. Blake, not on any losses they personally suffered as a result of Mr. Blake's untimely death. Fourth and finally, as previously indicated, the plaintiff presented an especially powerful, compelling case as to the losses she personally suffered as a result of Mr. Blake's death. The Court has no proper basis for inferring that the jury, by their loss-of-consortium verdict, sought to award damages to, or on account of losses suffered by, Mr. Blake's other surviving relatives.
D. Claim That Verdict Shocks the Sense of Justice in Light of Jury's Verdict for Wrongful Death
To the defendants' fourth argument in support of their Motion for Remittitur — that the jury's verdict for loss of consortium was so large as to shock the sense of justice in light of its markedly smaller verdict on the plaintiff's underlying claim for wrongful death — the plaintiff responds in two ways. First, she argues that there is no absolute rule in our case law prohibiting the awarding of greater damages to a surviving spouse for loss of consortium than to the representative of the deceased spouse's estate for wrongful death. Though a loss-of-consortium claim is derivative, in the sense that it is based upon and cannot be maintained without a parallel claim by the deceased spouse's representative for wrongful death; Jacoby v. Brinkerhoff, supra, 250 Conn. at 89-95; the claim is otherwise independent and subject to separate valuation because the losses for which damages may be awarded thereunder are district and different, both in kind and in impact upon the claimant, than those for which a recovery may be had for wrongful death. Accordingly, the individual losses of the decedent in a wrongful death action and of his or her surviving spouse in a derivative action for loss of consortium must be separately assessed in light of both of their nature and of their proven special impact upon the spouse in question. Theoretically, at least, concludes the plaintiff, there is no reason why the damages awarded to a surviving spouse for loss of her deceased spouse's consortium cannot exceed those awarded to the representative of her spouse's estate for wrongful death.
Having thus separated the jury's damages inquiry into two related but conceptually separate parts, the plaintiff concludes her argument on this aspect of the defendants' Motion for Remittitur by urging the Court to find that on the evidence presented at trial, the jury's $2 million verdict for loss of consortium is independently justifiable notwithstanding its smaller verdict on her underlying claim for wrongful death. The challenged verdict must assertedly be upheld because "it falls somewhere within the necessarily uncertain limits of just damages[.]" Champagne v. Raybestos-Manhattan, 212 Conn. 509, 556, 562 A.2d 1100 (1989).
This Court must agree with the plaintiff that the damages inquiry in a loss-of-consortium action is distinct and different from the damages inquiry in the underlying action for wrongful death. Though both require the jury to assess losses proximately caused by the deceased spouse's wrongful death, the former involves the surviving spouse's loss of the deceased spouse's consortium as she would have experienced it, whereas the latter involves the decedent's own loss of life itself and all the pleasures of living it as he would have experienced them had he not become the victim of the defendants' tortious conduct. Therefore, just as the Appellate Court, in Shegog v. Zabrecky, supra, 36 Conn. App. at 752-53, could uphold a loss-of-consortium verdict equal in amount to an underlying verdict for wrongful death based upon an independent assessment of the evidence tending to support the challenged verdict, this Court could lawfully uphold a loss-of-consortium verdict which exceeded an underlying verdict for wrongful death if the evidence adduced at trial so warranted.
Here, however, such theoretical possibilities aside, the Court concludes that there is no rational basis for sustaining the jury's $2 million verdict for loss of consortium while awarding just over $1 million to the plaintiff, in her representative capacity, for her husband's wrongful death. This is so, the Court believes, because the entire theory of the plaintiff's claim for loss of consortium was based upon the great joy, positivity and productivity with which the decedent, Crafton Blake, had lived and shared his life with the plaintiff and would likely have continued to do so, notwithstanding his stroke, had his life not been cut short by the defendants' negligence. There is simply no basis in this record, read in the light most favorable to sustaining a large verdict for the plaintiff on her individual claim for loss of consortium, for assigning any greater value to her loss of his companionship, services and society during what should have been the final years of their marvelously happy, successful marriage than to his own loss of life and all its pleasures, as he would have enjoyed them in the context of that marriage. In sum, though this Court was impressed throughout the trial by the attentiveness and apparent seriousness of purpose of the jurors who served in this case, the Court must conclude that on this record, in light of their smaller, $1 million award of noneconomic damages for the wrongful death of Mr. Blake, their $2 million award of noneconomic damages for Mrs. Blake's resulting loss of consortium "so shocks the sense of justice as to compel the conclusion that the jury was influenced by . . . mistake[.]" Gaudio v. Griffin Health Services Corp., supra, 249 Conn. at 551. Accordingly, the Court concludes that the defendants' Motion For Remittitur must be granted.
In determining the amount of the remittitur, the Court must initially be guided by the particular reasons which compelled it to conclude that a remittitur is appropriate despite the strength of the plaintiff's evidence of loss of consortium. The Court, to reiterate, was very impressed by the special quality of the plaintiff's marital relationship with her husband, which was marked at every turn by a complete sharing and intertwining, with deep love and affection, of every important aspect of their lives. Under the plaintiff's theory of the case, this relationship was the central focus, the sustaining feature and the essential source of pleasure and fulfillment in each of their lives. If the jurors were persuaded by this theory, they could fairly have found that the plaintiff's personal losses resulting from the defendants' malpractice and her husband's wrongful death amounted to the loss of all of life's pleasures for the duration of their marriage, as she would have experienced them in his company. By the same token, however, even such a plenary loss, if the jurors so assessed it, could not have been greater than that suffered by Mr. Blake, who plainly lost both life itself and all the pleasures of living it, including but not limited to enjoyment of and fulfillment in his extraordinary marital relationship with the plaintiff.
Against this background, the Court concludes that the largest verdict which the jury in this case could reasonably have returned on the plaintiff's individual claim of loss of consortium was one equal in amount to the noneconomic damages component of its verdict on her representative claim of wrongful death. Accordingly, the Court concludes that the jury's $2 million verdict for loss of consortium must be set aside and the case must be set down for a new trial on that claim unless the plaintiff files a remittitur of at least $1 million on or before May 30, 2003.
E. Claim That Verdict Should Be Further Reduced in Light of Plaintiff's Settlements With Other Parties
The defendants' final claim on this Motion is that the jury's verdict must be further reduced to take account of the plaintiff's pretrial settlements of her claims against other parties in this case. The settlements in question were for a total of $1.2 million, divided evenly between the plaintiff's individual claim for loss of consortium and her representative claim for wrongful death. The defendants argue, under General Statutes § 52-216a, that this Court must add the $600,000 paid to the plaintiff for loss of consortium to the $2 million loss-of-consortium verdict in this case, then evaluate her $2.6 million total recovery to determine if it is excessive "as a matter of law." Peck v. Jacquemin, 196 Conn. 53, 71, 491 A.2d 1043 (1985). If the Court finds that the plaintiff's total recovery is excessive, it must order that her jury verdict for loss of consortium be set aside and that this case be set down for a new trial on that claim unless she files a remittitur in an amount sufficient to reduce that total recovery to a level that is not excessive.
This allocation was expressly admitted by plaintiff's counsel at oral argument on this Motion. Transcript (4/25/02), p. 27.
To determine if a verdict is excessive "as a matter of law," a trial judge is required, under controlling Connecticut case law, to inquire "whether the award falls within the necessarily uncertain limits of just damages or whether the size of the award so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." Gaudio v. Griffin Health Services Corp., supra, 249 Conn. at 551. When, however, the plaintiff's total recovery is to be evaluated for excessiveness, and that recovery consists not only of the jury's award of damages but of amounts obtained in settlements of which the jurors had no knowledge when they made their damages award, it makes little sense to frame the inquiry in terms of likely juror mistake or misconduct because the jurors did not fix the amount of that total recovery. One possible way to frame the Court's inquiry in these special circumstances would be to ask, hypothetically, if the total recovery, had it been awarded by the jury, would have "so shock[ed] the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." More straightforwardly, however, without creating the artificial construct of a hypothetical verdict returned by a potentially corrupt or mistaken jury, the Court could frame the inquiry, as our Supreme Court has sometimes done it, as follows: Does the amount of the plaintiff's total recovery, including amounts received in settlement of other parties' claims, "convince the mind that it is unjust and entirely disproportionate to the loss suffered" in light of the evidence adduced at trial? Ratushny v. Punch, 106 Conn. 329, 337, 138 A. 220 (1927); Quackenbush v. Vallario, 114 Conn. 652, 655, 159 A. 893 (1932); Mulcahy v. Larson, 130 Conn. 112, 32 A.2d 161 (1943); Champagne v. Raybestos-Manhattan, supra, 212 Conn. 509, 557. If the answer to this inquiry is in the affirmative, then the Court must order the plaintiff to file a remittitur in an amount sufficient to reduce the plaintiff's total recovery to a level that is not excessive as a matter of law.
See generally, Part I of this Memorandum of Decision, supra, at 3.
In Part IV.B of this Memorandum of Decision, this Court decided that the absolute amount of the jury's $2 million loss-of-consortium verdict was not excessive as a matter of law simply because it is the largest reported loss-of-consortium verdict in Connecticut legal history. In reaching that decision, the Court relied upon the lack of fixed rules or standard measures for determining noneconomic damages in loss-of-consortium cases, the existence of other cases, in Connecticut and elsewhere, where verdicts of this magnitude have been returned for loss of spousal consortium, and particularly upon the special strength of the plaintiff's evidence of loss of consortium in this case. Each of these factors weighs in the plaintiff's favor on the defendants' present challenge, under General Statutes § 52-216a, to the claimed excessiveness of her $2.6 million total recovery for loss of consortium resulting from the wrongful death of her husband.
In Part IV.D of this Memorandum of Decision, however, the Court further decided that, on the facts of this case, there is no reasonable basis upon which the jury could have awarded greater damages to the plaintiff on her individual claim for loss of consortium than it awarded her as noneconomic damages on her representative claim for the wrongful death of her husband. On that basis it found that, in light of the jury's $1 million award of noneconomic damages for wrongful death, its $2 million award of noneconomic damages for loss of consortium so shocked the sense of justice as to require that it be set aside unless the plaintiff filed a remittitur in the amount of at least $1 million.
Applying that analysis to the defendants' challenge to the size of the plaintiff's total recovery for loss of consortium in this case, the Court begins by noting that the $1.2 million total of the plaintiff's pretrial settlements was evenly divided between the plaintiff's individual claim for loss of consortium and her representative claim for wrongful death into two separate payments of $600,000 each. Adding those amounts to the amounts of the plaintiff's jury verdicts on those claims, her total recovery for loss of consortium would be $2.6 million while her total recovery for wrongful death would be $1.6 million. Had such verdicts been returned by the jury in this case, they would have so shocked the Court's sense of justice, for all the reasons stated in Part IV.D of this Memorandum of Decision, as to compel the conclusion that the jury had been influenced by mistake. Otherwise stated, a $2.6 million loss-of-consortium verdict in this case, if returned by the jury along with a smaller, $1.6 million award of noneconomic damages for wrongful death, would have been "unjust and entirely disproportionate to the loss suffered" in light of the evidence adduced at trial. Because the largest award of noneconomic damages which this plaintiff could reasonably have been given for loss of consortium was no greater than that given to her as noneconomic damages on her underlying claim of wrongful death, a plaintiff's verdict of $2.6 million for loss of consortium, if returned along with a $1.6 million award of noneconomic damages for wrongful death, would have to be reduced to a sum not greater than $1.6 million to save it from a finding that it was excessive as a matter of law. Otherwise stated, such a verdict would have to be set aside, and the case would have to be set down for a new trial on the loss-of-consortium claim, unless the plaintiff filed a remittitur in the amount of $1 million.
In light of the foregoing analysis, the Court has no right or obligation under General Statutes § 52-216a to further reduce the amount of the plaintiff's loss-of-consortium verdict in order to bring her total recovery on that claim into line with her total recovery for wrongful death. The $1 million remittitur required to cure the excessiveness of the jury's $2 million loss-of-consortium verdict is also sufficient to reduce the plaintiff's $2.6 million total recovery for loss of consortium to the same size as her $1.6 million total recovery for wrongful death. Such a result is necessary, to reiterate, because there is no reasonable basis in the evidence to justify the awarding of greater noneconomic damages to the plaintiff on her individual claim of loss of consortium than on her representative claim of wrongful death.
CONCLUSION
For the foregoing reasons, the Court hereby ORDERS that on or about May 30, 2003, the plaintiff must file a remittitur in the amount of $1 million on her claim for loss of consortium or her verdict on that claim must be set aside and the case must be set down for a new trial on that claim.
IT IS SO ORDERED this 9th day of May 2003.
Michael R. Sheldon, J.