Summary
In Chamberland v. Physicians for Women's Health, LLC, supra, 40 Conn. L. Rptr., 737, 739 n. 2, the trial court granted the defendant's motion in limine to preclude evidence regarding the minor plaintiff's wrongful life claim.
Summary of this case from Rich v. FoyeOpinion
No. CV01-0164040S
February 8, 2006
MEMORADUM OF DECISION
This is an action brought against a physicians group by the parents of a child born with a congenital neural tube defect known as spina bifida. The parents claimed that the defendant was negligent in failing to properly, adequately, and timely inform the mother of the nature and purpose of a blood test available during pregnancy to determine the risk of the defect, and that, as a result of the defendant's negligence, the plaintiff wife did not have the test. The plaintiffs claimed that the defendants negligently deprived them of the right to make an informed decision regarding the continuation of the plaintiff wife's pregnancy and of the opportunity and ability to terminate the pregnancy. They sought damages for economic loss in connection with the medical and other expenses which have been and will be incurred as a result of their son's spina bifida. They also sought damages for extreme emotional distress and impairment of their ability to enjoy life's activities.
The particular blood test is known as an Alphafetoprotein test or Triple Marker Test.
The action was initially brought in three counts, including the child's claim for wrongful life. Prior to trial, the court granted the defendant's motion in limine precluding evidence regarding the wrongful life claim. The trial proceeded on the parents' claims only.
The parents did not seek damages for the ordinary expenses of raising the child.
The case was tried to a jury which rendered a verdict for the plaintiffs and awarded past and future economic damages in the amount of five million dollars ($5,000,000.00.). The jury also awarded five million dollars ($5,000,000.00.) in non-economic damages to the mother and two million dollars ($2,000,000.00.) in non-economic damages to the father.
The defendant filed motions to set aside the verdict, for judgment notwithstanding the verdict, for remittitur, to preclude an award of interest under Connecticut General Statutes § 52-192a, and to offset the verdict by collateral source payments.
For the reasons set forth herein, the defendants' motions to set aside the verdict and for judgment notwithstanding the verdict are denied. The defendants' motion for remittitur is denied. The motion to preclude an award of prejudgment interest is denied.
Motion to Set Aside the Verdict
A motion to set aside the verdict serves at least four useful functions: (1) it allows the trial court, in the less hectic atmosphere of a post trial proceeding, to reconsider its rulings and, if they are determined to have been erroneous as well as harmful, to grant a new trial without the necessity of an appeal; (2) it provides an opportunity for the court to explain and to justify the challenged rulings in a written memorandum far more effectively and clearly than is possible at trial; (3) after a verdict is rendered and before an appeal is taken it provides the only occasion for counsel to appear in court and to present arguments in support of their positions, which are ordinarily formulated much more clearly and persuasively than at trial; and (4) it induces counsel for the parties to reevaluate the strength of their positions in the light of a jury verdict and thus may lead to a settlement of the litigation. Saporoso v. Aetna Life Casualty Co., 221 Conn. 356, 363, 603 A.2d 1160 (1992).
The fundamental principle to keep in mind when deciding a motion to set aside a verdict is that "litigants have a constitutional right to have juries decide issues of fact. The right to a jury trial is fundamental in our judicial system, and this court has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court." (Citations omitted; internal quotation marks omitted.) Howard v. MacDonald, 270 Conn. 111, 128, 851 A.2d 1142 (2004).
The defendant moves to set aside the verdict on the grounds that it was contrary to the law, contrary to the evidence, and excessive as a matter of law. Specifically, the defendant claims that the verdict was contrary to law because (1) there is no legal ground to support the plaintiffs' recovery of damages for emotional distress; (2) the court "allowed a claim for `wrongful life' by proxy;" (3) the court admitted highly prejudicial evidence and excluded highly probative evidence; and (4) the court failed to properly instruct the jury. The defendant contends that the verdict was against the evidence because the plaintiff father did not testify. Finally, the defendant claims that the verdict is clearly excessive and was the result of sympathy and bias.
I Legal Grounds for the Verdict a. Non-economic damages
The defendant argues that there is no legal ground to support the plaintiffs' recovery of damages for emotional distress because (1) Connecticut law generally prohibits a plaintiff from recovering for emotional distress in the absence of physical injury or a risk of harm from physical impact; (2) bystander emotional distress is inapplicable to the plaintiffs' claim; (3) the plaintiffs did not meet the foreseeability requirement of a negligent infliction of emotional distress claim where there is no physical injury or harm from physical impact; and (4) Connecticut does not recognize a claim for loss of consortium outside of the spousal context. In addition, the defendant claims that the defendant owed no duty of care to the plaintiff father.
As indicated above, the parents sought damages for the extraordinary expenses in connection with their son's condition as well as damages for their own emotional distress and impairment of their ability to enjoy life. They did not claim that the defendant's negligence caused physical injury to either of them. There was no claim for "bystander emotional distress" or "loss of consortium" damages. There was no count sounding in "negligent infliction of emotional distress." At oral argument, the defendant argued that, because an action for wrongful birth is a medical malpractice case, the court must apply the same law that applies to other malpractice cases in Connecticut. The defendant concludes that the plaintiffs in this medical malpractice case cannot recover for emotional distress damages unless there are physical injuries attendant to a claim for emotional distress.
No appellate court in this state has explicitly held that parents who suffer no physical injury are entitled to damages for emotional distress in what is known as a "wrongful birth" case. The defendant contends that such damages are not permitted in Connecticut and urges the court to follow the decisions of jurisdictions which have disallowed such damages. In Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (1986), the New Hampshire Supreme Court did not allow non-economic damages for the parents of a child born with an unavoidable congenital defect resulting from the defendant physician's negligence but did permit them to recover economic damages for the pre-majority and post-majority costs of raising the child as well as the value of the parents' ministrations to the child. The New Hampshire court's reluctance to allow parents damages for emotional distress in wrongful birth cases stemmed from its concern that it would be "curious" to impose liability for the parents' emotional distress in a wrongful birth case but not in cases involving the wrongful death of the child. Smith v. Cote, supra, 247.
Other jurisdictions, such as New York, have denied recovery of emotional distress damages on the basis that, considering the mitigating factor of the love which the parents feel for the child, calculation of the damages would be too difficult and speculative: "To be sure, parents of a deformed infant will suffer the anguish that only parents can experience upon the birth of a child in an impaired state. However, notwithstanding the birth of a child afflicted with an abnormality, and certainly dependent upon the extent of the affliction, parents may yet experience a love that even an abnormality cannot fully dampen. To assess damages for emotional harm endured by the parents of such a child would, in all fairness, require consideration of this factor in mitigation of the parents' emotional injuries . . . Unlike [a case] . . . where the element of mitigation was not involved, and unlike plaintiffs' causes of action for pecuniary loss, in the instant cases, calculation of damages for plaintiffs' emotional injuries remains too speculative to permit recovery notwithstanding the breach of a duty flowing from defendants to themselves." Becker v. Schwartz, 46 N.Y.2d 401, 414-15, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978).
Connecticut recognizes a cause of action for wrongful birth. However, in the two Connecticut cases involving wrongful birth, the court did not address the issue of non-economic damages where the plaintiffs claimed no physical injury to themselves. Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982), involved a negligent sterilization procedure. The defendant appealed from the judgment on the verdict awarding damages which included the ordinary costs of raising a child until maturity as well as medical expenses associated with the child's orthopedic disability. The defendant argued that ordinary costs of raising a child should not be allowed because the joy that the child brings offsets those costs. The court stated: "In our view, the better rule is to allow parents to recover for the expenses of rearing an unplanned child to majority when the child's birth results from negligent medical care. The defendants ask us to carve out an exception, grounded in public policy, to the normal duty of a tortfeasor to assume liability for all the damages that he has proximately caused . . . But public policy cannot support an exception to tort liability when the impact of such an exception would impair the exercise of a constitutionally protected right." In Burns v. Hanson, 249 Conn. 809, 734 A.2d 964 (1999), the plaintiff, a mother of two, had multiple sclerosis and was advised that any future pregnancy could be detrimental to her. Upon being told by her gynecologist that she was sterile as a result of treatments for the MS, she and her husband discontinued using birth control. She became pregnant. The gynecologist then failed to diagnose her pregnancy when he examined her. Her pregnancy was not confirmed until she was twenty to twenty-one weeks pregnant. She gave birth to a healthy child. In addition to economic damages, the plaintiff sought damages for her own physical pain, including an exacerbation of the MS, and damages for emotional pain and suffering. In response to the defendant's argument on appeal that an award of the costs for raising a child was improper where the desire to not have another child was based on reasons other than economic ones, the Connecticut Supreme Court stated: "In our view, the defendant's argument is fundamentally inconsistent with our reasoning in Ochs. We declined to carve out any exception, grounded in public policy, to the normal duty of a tortfeasor to assume liability for all the damages that he or she has caused. We held that any such exception would improperly burden the exercise of a constitutionally protected right to employ contraceptive measures to limit the size of one's family . . . That constitutional right is similarly a part of the background in the present case. Moreover, unlike the cases upon which the defendant relies, the risk that the plaintiff sought to avoid in fact did come to pass in the present case. We are, therefore, not persuaded at this juncture to follow what may be contrary precedents in other state courts." (Emphasis added.) Burns v. Hanson, supra, 819-20.
See Ochs v. Borrelli, 187 Conn. 253, 258, 445 A.2d 883 (1982); Burns v. Hanson, 249 Conn. 809, 734 A.2d 964 (1999).
The plaintiffs argue that they should be entitled to recover non-economic damages sustained as a result of the wrongful birth of their son on the basis of Ochs and Burns. They assert that these cases recognize that the parents in a wrongful birth case are not bystanders, but are directly injured as a result of the defendant's negligence. Moreover, they point out that the Connecticut Supreme Court approved a jury instruction permitting an award of non-economic damages to the mother in Burns. In Burns, the mother alleged physical injury as well as emotional distress. The plaintiffs, however, argue that Burns supports their view that emotional distress damages are properly awarded under Connecticut law. They further contend that Connecticut is more in line with the jurisdictions that permit non-economic damages in wrongful birth cases such as this where the injury the parents suffer is emotional. The court agrees.
In Kush v. Lloyd, 616 So.2d 415 (Fla. 1992), the Florida Supreme Court carved out an exception to its rule precluding emotional distress damages without physical impact. Noting that the "impact doctrine" is generally inapplicable to recognized torts in which damages often are predominately emotional, such as defamation or invasion of privacy, the court concluded that "[t]here can be little doubt that emotional injury is more likely to occur when negligent medical advice leads parents to give birth to a severely impaired child than if someone wrongfully calls them liars, accuses them of unchastity, or subjects them to any other similar defamation." Id., 222. The Florida court reasoned: "A defamation may have little effect, may not be believed, might be ignored, or could be reversed by trial publicity. But the fact of a child's serious congenital deformity may have a profound effect, cannot be ignored, and at least in this case is irreversible." Id., 223. The Florida court also recognized that a "wrongful birth" case is unique. Citing Black's Law Dictionary 1612 (6th ed. 1990), the court described "wrongful birth" as "that species of medical malpractice in which parents give birth to an impaired or deformed child and allege that negligent treatment or advice deprived them of the opportunity or knowledge to avoid conception or to terminate the pregnancy." Id., 425, fn.2.
New Jersey recognizes that a wrongful birth claim is rooted in the same principles of self-determination as a cause of action for lack of informed consent: "The violation of the interest in self-determination that undergirds a wrongful birth cause of action consists of the parents' lost opportunity to make the personal decision of whether or not to give birth to a child who might have birth defects. The claim in a wrongful birth action can arise when a physician fails to provide adequate genetic counseling . . . fails to detect a discoverable fetal defect or to inform the parents thereof, fails to interpret test results properly . . . or fails to warn of a child being born with a defect, . . . Because the patient's protectable interest is the personal right of self-determination, the doctor's duty of disclosure must be sufficient to enable her to make an informed and meaningful decision concerning whether or not to continue the pregnancy. Compensable damages in a wrongful birth case include the emotional injury of the parents caused by the deprivation of the option to accept or reject a parental relationship with the child . . . The nature of the tort of wrongful birth has nothing to do with whether a defendant caused the injury or harm to the child, but, rather, with whether the defendant's negligence was the proximate cause of the parents' being deprived of the option of . . . making an informed and meaningful decision either to terminate the pregnancy or to give birth to a potentially defective child . . . Because the cognizable harm is the emotional and economic injury suffered by the parents, they must prove that these injuries were proximately caused by the doctor's negligence in depriving them of the opportunity to decide whether or not to become parents of a child with a congenital defect." (Internal quotation marks omitted; internal citations omitted.) Canesi v. Wilson, 158 N.J. 490, 501, 502, 503, 730 A.2d 805 (1999).
Virginia permits damages for the emotional distress of parents in wrongful birth cases. In Naccash v. Burger, 223 Va. 406, 416, 290 S.E.2d 825 (1982), the Supreme Court of Virginia held that the parents' emotional distress proximately caused by the negligence of the defendant justified the exception to the general rule: "We believe . . . that the circumstances of this case justify another exception to the general rule that damages for emotional distress are not allowable unless they result directly from tortiously caused physical injury. The restrictions upon recovery imposed by the provisos in [prior decisions] were designed to discourage spurious claims asserted by chance witnesses to physical torts involving others. The considerations prompting imposition of the limitations do not exist here; no one suggests that the [parents'] emotional distress was feigned or that their claim was fraudlent. Indeed, to apply the restrictions here, or to refuse to recognize an exception to the general rule, would constitute a perversion of fundamental principles of justice . . . Furthermore, we believe it would be wholly unrealistic to say that the Burgers were mere witnesses to the consequences of the tortious conduct involved in this case . . . [T]he evidence shows an unbroken chain of causal connection directly linking the erroneous Tay-Sachs report, the deprivation of the parents' opportunity to accept or reject the continuance of . . . [the] pregnancy, and the emotional distress the parents suffered following the birth of their fatally defective child."
Connecticut has determined that there are situations where recovery of emotional distress damages without the accompanying impact should be permitted. In an action for negligent infliction of emotional distress, where the plaintiffs suffered severe emotional distress as from being held hostage in their home for hours as a result of the negligent disclosure of their address by a telephone company employee, the Supreme Court reasoned that "there is no logical reason for making a distinction, for purposes of determining liability, between those cases where the emotional distress results in bodily injury and those cases where there is emotional distress only." Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 344, 398 A.2d 1180 (1978). The court then set out its rationale in permitting an award of damages for emotional distress where there was no evidence of impact or physical injury. Citing Magruder, "Mental and Emotional Disturbance in the Law of Torts," 49 Harv. L. Rev. 1033, 1059 (1936), the court noted "In a comment on Wilkinson v. Downtown, 2 Q.B. 57, a case cited in Urban v. Hartford Gas Co., 139 Conn. 301, 306, 93 A.2d 292 (1952), Judge (then Professor) Magruder wrote: `[S]uppose . . . [the plaintiff] had only suffered keen anguish of mind, for a few hours, with none of the ensuing bodily illness. A man from Mars would find it difficult to understand the denial of recovery for mental anguish in such a case, when a person is allowed to recover $1,200 for the indignity of being spit upon in the presence of others. Surely the law should afford [a plaintiff] a remedy for the outrageous aggression upon her mental and emotional tranquility; otherwise the tendency would be for the victim to exaggerate symptoms of sick head aches, nausea, insomnia, etc., to make out a technical basis for bodily injury, upon which to predicate a parasitic recovery for the more grievous disturbance, the mental and emotional distress she endured.' . . . [T]he rationale for not insisting that, as a condition precedent to liability, there be an ensuing bodily illness is clearly applicable also to cases where the emotional distress is unintentionally caused. Accordingly, we hold that recovery for unintentionally caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact." (Emphasis added.) Id., 344-45. The Montinieri court recognized that the "protection the law accords to `the interest in one's peace of mind' . . . must be limited so as not to `open up a wide vista of litigation in the field of bad manners, where relatively minor annoyances had better be dealt with by instruments of social control other than the law.'" In Montinieri, the court adopted what the defendant here terms "a heightened foreseeability" requirement. "In general, to prevail on such a claim, a plaintiff must prove that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003). The defendant argues that the plaintiffs have failed to meet this requirement. This case is not a case arising out of an intentional or negligent infliction of emotional distress but a wrongful birth case where the very harm caused by the negligence is clearly foreseeable. However, the Montinieri test would seem to be satisfied in a wrongful birth case such as this one. The evidence was that the Alphafetoprotein test was administered for the purpose of detecting the possibility of Down Syndrome or a neural tube defect. The plaintiff mother testified that, although she and her husband wanted a child, the choice would have been to terminate the pregnancy had they known that the fetus had a neural tube defect because she did not think that they could handle it. As the court said in Burns, "the risk that the plaintiff[s] sought to avoid in fact did come to pass in the present case." Burns v. Hanson, supra, 820. Moreover, the court is hard-pressed to find any legitimate concern, in cases such as this one, that the plaintiff could be feigning emotional distress without the accompanying bodily injury or impact.
Connecticut has adopted the so-called "benefit rule" which permits the trier of fact to deduct from the parents' damages the value of the joy which the child brings to the parents. In adopting the rule, the Connecticut Supreme Court stated: "Although we recognize that this balancing test requires the jury to mitigate economic damages by weighing them against non-economic factors, we reject the defendants' claim that such a weighing process is `impermissibly speculative' . . . We see no basis for distinguishing this case from other tort cases in which the trier of fact fixes damages for wrongful death or for loss of consortium." (Internal citations omitted.) Ochs v. Borrelli, supra, 260.
b. The parents' claim is not derivative
The defendant seeks to support its position by claiming that the parents' claim is derivative. This is the argument the defendant repeatedly made during the trial. The court does not agree. "A cause of action is that single group of facts that is claimed to have brought about an unlawful injury to the plaintiff and that entitles the plaintiff to relief . . ." (Citations omitted.) McCue v. Birmingham, 88 Conn.App. 630, 636, 870 A.2d 1126 (2005). As the court stated to the jury during the course of the trial, this is the parents' cause of action for wrongful birth. The parents brought an action in which they claimed that the defendant was negligent in its care and treatment of the plaintiff mother. They alleged that the defendant's negligence deprived them of their right to choose not to have a child with a neural tube defect. They claimed that the defendant's negligence was a proximate cause of both parents' emotional distress and dimunition of their ability to enjoy life.
On the basis of the Connecticut Supreme Court's decisions in Ochs and Burns, this court concludes that the law in Connecticut permits damages for emotional distress in wrongful birth cases where, as in this case, the emotional distress is a direct and proximate result of the defendant's negligence.
c. Duty to the father
"Emotional distress is a proper element of damages only when it results from the breach of a duty to the particular plaintiff." Lessard v. Tarca, 20 Conn.Sup. 295, 298, 133 A.2d 625 (1957). "Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care . . . [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . With respect to the second inquiry, namely, the policy analysis, there generally is no duty that obligates one party to aid or to protect another party. See 2 Restatement (Second), Torts § 314, p. 116 (1965). One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another. See W. Prosser W. Keeton, Torts (5th Ed. 1984) § 56, pp. 373-74; see also 2 Restatement (Second), supra, §§ 314A, 315 . . ." Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004).
As courts in other jurisdictions have pointed out, the wrong here is not the birth of the child but the deprivation of the plaintiffs' right to make a decision concerning whether to continue the pregnancy with the knowledge that it will result in the birth of a child with a neural tube defect or to have an abortion. The right to choose an abortion is one that is constitutionally protected. The Connecticut Supreme Court has expressly found a duty to both parents in circumstances similar to the instant case: "It is now clearly established that parents have a constitutionally protected interest located `within the zone of privacy created by several fundamental constitutional guarantees;' Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147, reh. denied, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973); to employ contraceptive techniques to limit the size of their family." Ochs v. Borrelli, supra, 258. Although Ochs v. Borelli involved a failed sterilization procedure, the court cannot find any reason based on public policy to distinguish the duty in that case from this one. The same constitutionally protected rights are involved. The court also notes that most of the wrongful birth cases from other jurisdictions cited by both parties make no distinction between the duty owed to the mother and the father. The court therefore finds that there is no support for the defendant's contention that it owed no duty to the father.
The fact that the father did not testify to his own emotional distress is not persuasive because the jury had sufficient evidence from the mother's testimony concerning the father's emotional distress. In addition, there was evidence from the medical records concerning the child's situation from which the jury could have reasonably inferred that the father suffers emotional distress as a result of having a child with a profound congenital defect.
II Evidentiary Rulings
The defendant's challenge to the several evidentiary rulings does not persuade the court that it committed any harmful error, and the verdict is not set aside on this ground.
a. evidence of the defendant's employee's licensing status and evidence probative of the plaintiffs' claim of negligent supervision was properly admitted."Under Connecticut law, an employer may be held liable for the negligent supervision of employees. See Gutierrez v. Thorne, 13 Conn.App. 493, 500, 537 A.2d 527 (1988) (recognizing independent claim of direct negligence against employer who failed to exercise reasonable care in supervising employee); Roberts v. Circuit-Wise, Inc., 142 F.Sup.2d 211, 214 (D.Conn. 2001) (in negligent supervision action, "plaintiff must plead and prove that she suffered an injury due to the defendant's failure to supervise an employee whom the defendant had duty to supervise")." Seguro v. Cumminskey, 82 Conn.App. 186, 192, 844 A.2d 224 (2004). The evidence of the employee midwife's licensing status was relevant to the duty of the defendant to supervise the employee. The court determined that the probative value of the evidence clearly outweighed any prejudice.
b. Evidence from the mother concerning the course she would have taken was properly admitted.
The negligence alleged in this wrongful birth case was the failure of the defendant to provide the plaintiff mother with correct and sufficient information concerning the AFP test so that she and her husband could make an informed decision regarding whether or not she would have the test. Testimony elicited from the plaintiff mother indicated that she would have taken the test, would have taken the follow-up definitive tests upon learning that the AFP test disclosed a possibility that the fetus had a neural tube defect, and would have elected an abortion upon learning that the fetus did in fact have the neural tube defect.
The defendant claims that the plaintiff mother was permitted to "speculate" as to what her choices would have been. The defendant's claim is without merit for two reasons. First, the defendant's physician employees testified that some women, after being counseled regarding the AFP/triple marker test, want the test and some do not. The issue was whether the information concerning the test was material to a reasonable person in making a decision. Second, the Connecticut Supreme Court has held that "testimony [concerning what a woman would have decided with respect to a particular medical procedure] was admissible because it was based on the plaintiff's personal knowledge and life experience, and therefore was not speculative." Dilieto v. County Obstetrics Gynecology Group, 265 Conn. 79, 108, 828 A.2d 31 (2003).
c. Deposition Statements of the plaintiff were properly excluded
The defendant sought to introduce into evidence a portion of the plaintiff mother's deposition testimony which the defendant claimed contradicted her testimony in court. The deposition testimony at issue was a response to the question posed by the defendant's attorney: "So knowing what you now know about Sean, you're not sure what you would have done?" The court excluded the evidence on grounds of relevance. The issue is not what the plaintiff would do after the child is born but at the time of the negligent conduct.
d. Evidence of the child's physical condition and the child's interaction with the parents was properly admitted.
The defendant argues that the court should have precluded any evidence concerning the child's condition or of the parent's interaction with him by way of videotape because the prejudice outweighed the probative value. The court disagrees.
The court admitted evidence of the child's physical condition by way of the medical records and expert testimony because it was relevant to the parents' claims of economic loss and emotional distress. The court admitted evidence of the child's condition and the child's interaction with the parents because it was relevant to the parents' claims of emotional distress and dimunition of their ability to enjoy life. "Questions of relevance must be determined in each case by reliance on reason and judicial experience as no exact test of relevancy is found in the law . . . Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case . . . A fact is relevant whenever its existence, either alone or in connection with other facts, makes more certain or probable the existence of another fact . . . [A]ny fact may be proved which logically tends to aid the trier in the determination of the issue . . . Relevant evidence is admissible if the trial court, in the exercise of its broad discretion, determines that the probative value of the evidence outweighs its prejudicial effect." (Citations omitted; internal quotation marks omitted.) Lynch v. Granby Holdings, Inc., 32 Conn.App. 574, 581, CT Page 2814 630 A.2d 609 (1993).
The court explained to the jury more than once that there was no claim by the child. It was made clear to the jury that there was no claim that the defendant caused the defect. Under the circumstances, the probative value of the evidence outweighed any possible prejudice to the defendant.
Motion for Judgment Notwithstanding the Verdict
The evidence was sufficient to support the jury's verdict as to liability and damages. The court, therefore, denies the defendant's motion for judgment notwithstanding the verdict.
Motion for Remittitur
The defendant moves for remittitur on the grounds that the verdict is excessive as a matter of law. The defendant contends that there was nothing in the record of this case supporting the award of economic damages and non-economic damages to the parents. The court has reviewed the evidence before the jury with regard to both types of damages.
Economic Damages
The defendant challenges the award of economic damages in the amount of $5 Million on the grounds that there was no evidence to support the award. This is simply not true. The defendant appears to be considering only the medical expenses and not the additional extraordinary expenses which the life care planner testified would probably be necessary. Based on the testimony of Larry Foreman, the economic damages, including past and future extraordinary expenses attributable to the spina bifada, could exceed $5 Million.
Foreman testified that the figures varied from a low of $3,495,806.70 to a high of $5,200,837.50.
Non-economic damages
The defendant maintains that the jury awarded non-economic damages to the parents based on a "wrongful life by proxy." It argues that the jury compensated the plaintiff mother as if her claim and the child's claim were the same. Moreover, it contends that the father should not have been compensated because there was insufficient evidence regarding his own emotional distress.
The court stated during the trial and in its charge that the child had no claim. The parents' claim for non-economic damages was based on the deprivation of their right to make a choice whether to continue with the pregnancy or to terminate it. The parents claimed non-economic damages to compensate them for their emotional distress and for the profound effect on their lives resulting from the defendant's negligence. As indicated above, the jury had sufficient evidence regarding the father's claim on which to base an award.
"The law concerning excessive verdicts is well settled. The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury . . . The size of the verdict alone does not determine whether it is excessive. The only practical test to apply to [a] verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." Margolin v. Kieban Samor, 275 Conn. 765, 783, 882 A.2d 653 (2005). The court has reviewed the evidence relevant to the issues of the parents' emotional distress and loss or dimunition of their ability to enjoy life. The evidence demonstrated that the parents have suffered anxiety and distress from the time their son was born up to the present time. Immediately after birth, the child had to be transported to the University of Connecticut Medical Center for surgery. The medical records and the testimony showed that the child has had many necessary medical procedures in the past and is expected to undergo several more during the course of his lifetime as a result of his birth defects. The jury heard evidence concerning the tracheostomy that their son had from April 1999 to November 2001. During those years, the mother had to suction the tracheostomy tube many times during the day. The plaintiff mother testified that that time was very stressful, very emotional to see him with the machines hooked up to him. The plaintiff mother testified to the fears and anxieties that she and her husband experience continuously regarding their son and his future. The child's physical problems are severe and permanent. Because of that, the freedom that his parents had to pursue the normal activities of adult life has been and will be severely curtailed.
The defendant correctly asserts that the mother clearly provided evidence that she and her husband love their son very much and that he brings them much joy. That fact was also clearly established in the videotaped evidence shown to the jury. The defendant claims that the fact that the award for the mother's non-economic damages was for five million dollars proves the jury's mistake, because in order to reach that award under the law, the jury would have had to conclude that the child brought his mother no joy whatsoever, only great hardship.
The court disagrees with the defendant's contention. The award is undoubtedly large, but the court cannot say that, when considering the evidence, it shocks the conscience. "In ruling on the motion for remittitur, the trial court [is] obliged to view the evidence in the light most favorable to the plaintiff in determining whether the verdict returned was reasonably supported thereby." (Internal quotation marks omitted; citations omitted.) Johnson v. Chaves, 78 Conn.App. 342, 346, 826 A.2d 1286 (2003). The evidence in this case was certainly sufficient to support the verdict.
Motion to Preclude Award of Interest
The court denies the defendant's motion based on its contention that Connecticut General Statutes § 52-192a is unconstitutional. The defendant argues that the statute is impermissibly arbitrary in that it allows for no judicial discretion.
Prior to amendment in 2005, C.G.S. section 52-192a provided: Sec. 52-192a. Offer of judgment by plaintiff. Acceptance by defendant.
Computation of interest.
** Update notice: This section has been amended by P.A. 05-275.
(a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may, not later than thirty days before trial, file with the clerk of the court a written "offer of judgment" signed by the plaintiff or the plaintiff's attorney, directed to the defendant or the defendant's attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant's attorney or, if the defendant is not represented by an attorney, to the defendant himself or herself.
Within sixty days after being notified of the filing of the "offer of judgment" and prior to the rendering of a verdict by the jury or an award by the court, the defendant or the defendant's attorney may file with the clerk of the court a written "acceptance of offer of judgment" agreeing to a stipulation for judgment as contained in plaintiff's "offer of judgment."
Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the "offer of judgment" is not accepted within sixty days and prior to the rendering of a verdict by the jury or an award by the court, the "offer of judgment" shall be considered rejected and not subject to acceptance unless re-filed. Any such "offer of judgment" and any "acceptance of offer of judgment" shall be included by the clerk in the record of the case.
(b) After trial the court shall examine the record to determine whether the plaintiff made an "offer of judgment" which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in the plaintiff's "offer of judgment," the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1, 1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the "offer of judgment" was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the "offer of judgment" was filed. The court may award reasonable attorneys fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorneys fees in accordance with the provisions of any written contract between the parties to the action. The amendment does not affect this case.
The standard for declaring a statute unconstitutional has been articulated by our Supreme Court: "We recognize that a party challenging the constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt . . . While the courts may declare a statute to be unconstitutional, our power to do this should be exercised with caution, and in no doubtful case . . . Every presumption is to be given in favor of the constitutionality of the statute." (Citations omitted; internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. EI Const., Inc., 239 Conn. 708, 754, 687 A.2d 506 (1997).
The defendant here challenges the statute on procedural and substantive due process grounds.
In Blakeslee, supra, Aetna Insurance Company raised the constitutionality of § 52-192a of the Connecticut General Statutes on, inter alia, substantive due process grounds. The Connecticut Supreme Court upheld the constitutionality of the statute, stating, with regard to the due process grounds raised: Aetna further argues that § 52-192a is fundamentally unfair, in violation of its constitutional right to due process.
Specifically, Aetna contends that § 52-192a "fails to satisfy due process requirements because it is not rationally related to the legislature's goal of encouraging early, fair and reasonable settlement." We disagree . . . We recently considered this precise claim in Black v. Goodwin, Loomis Britton, Inc., supra, 239 Conn. 166, in which we held: "Legislative efforts to structure and accommodate the burdens and benefits of economic life carry a presumption of constitutionality. One complaining of a due process violation flowing therefrom must establish that the legislature has acted in an arbitrary and irrational way . . . Even under this less exacting test of constitutionality, an economic regulation will survive a substantive due process test only if it is both rational and related to a legitimate state purpose . . . As we have indicated, § 52-192a furthers the legitimate public policy interest of encouraging the pretrial settlement of claims. Moreover, the legislature is not required to implement a public policy in a manner that is most narrowly tailored to achieve its end; its legislation will survive a substantive due process challenge so long as it is rationally related to a legitimate state purpose." (Citations omitted; internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. EI Const., supra, pp. 758-59
The defendant argues that the United States Supreme Court's decision in Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) amounts to a prohibition of an award of pre-judgment interest pursuant to § 52-192a because the interest awarded is not subject to judicial review. Honda Motor Co. v. Oberg dealt with punitive damages. The court held: "Punitive damages pose an acute danger of arbitrary deprivation of property. Jury instructions typically leave the jury with wide discretion in choosing amounts, and the presentation of evidence of a defendant's net worth creates the potential that juries will use their verdicts to express biases against big businesses, particularly those without strong local presences. Judicial review of the amount awarded was one of the few procedural safeguards which the common law provided against that danger. Oregon has removed that safeguard without providing any substitute procedure and without any indication that the danger of arbitrary awards has in any way subsided over time. For these reasons, we hold that Oregon's denial of judicial review of the size of punitive damages awards violates the Due Process Clause of the Fourteenth Amendment." Honda Motor Co. v. Oberg, 512 U.S. 415, 432 (1994).
This case does not involve a punitive damage award by a jury. The defendant correctly asserts that the nature of § 52-192a is punitive, but that fact alone does not equate that statute with a jury's or a court's award of punitive damages. In Black v. Goodwin, Loomis and Britton, Inc., 239 Conn. 144, 681 A.2d 293 (1996), the Connecticut Supreme Court rejected the defendant's contention that § 52-192a violated its due process rights and its claim that because the defendant's "[d]ue [p]rocess right is protected only by requiring the trial court to determine the reasonableness of the [o]ffer of [j]udgment at the time of filing." Id., 165-66. The Black court upheld the constitutionality of the statute.
Given the decisions of the Connecticut Supreme Court regarding Connecticut General Statutes § 52-192a, the court denies the defendant's motion to preclude an award of prejudgment interest under this statute.
Collateral Sources
The collateral source deductions are as follows:
193,319.18 Amount submitted to Anthem after deduction of premiums paid. 75,244.92 Amount submitted to Husky B CH Network 63,430.86 Amount submitted to Husky B Preferred. 96,942.70 Difference between $404,335.68 submitted to Title IXX and $307,392.94 paid by the State and subject to the State's lien. 428,937.70 Total
Conclusion
The defendant's motions to set aside the verdict, for judgment notwithstanding the verdict and for remittitur are denied. The defendant's motion to preclude an award of prejudgment interest is denied.
The total collateral source deduction from the verdict is $428,937.70.
Plaintiff is ordered to submit a Bill of Costs.