Opinion
No. CV07-5006277S
April 15, 2009
MEMORANDUM RE MOTION TO SET ASIDE VERDICT, REMITTITUR AND MOTION FOR A NEW TRIAL
This action arises out of a rear end motor vehicle collision which occurred on November 22, 2005, in Brookfield Connecticut. The plaintiff, Valeria Decastro, claimed that as a result of the accident, she suffered physical injuries, in particular a herniated disc at C5-6 of the cervical spine. This matter was tried to the jury on March 10 and 11, 2009. On March 12, 2009, the jury returned a verdict in favor of the plaintiff awarding her past economic damages of $11,732.40, future economic damages of $50,000.00, and for past and future pain and suffering and permanent partial disability $315,000.00 for a total of $376,732.40.
The defendant now moves the court to set aside the verdict and order a new trial or in the alternative to reduce the verdict in accordance with the law.
The defendants first argument is that the court should have precluded the testimony of Dr. Robert Nolan, the plaintiff's expert on the grounds that his disclosure as an expert was untimely and prejudiced the defendant. The record reveals that on November 5, 2008, the defendant moved for an Independent Medical Exam (IME) by a Dr. Bazos. On November 14, 2008, the plaintiff objected to Dr. Bazos pursuant to Practice Book Section 13-11 and General Statute § 52-178a. The plaintiff then provided a list of six orthopedic surgeons, including Dr. Nolan, who were acceptable to the plaintiff to perform an IME. The court (Agati J.), on December 18, 2008 ordered that the IME be done by Dr. Robert Nolan by January 30, 2009. The defendant scheduled the exam for January 14, 2009, and then canceled it. The plaintiff's attorney upon learning this sent the plaintiff to be examined by Dr. Nolan and filed a Notice of Disclosure of an Expert Witness on February 23, 2008. This occurred after five jurors had been chosen by the parties. On February 24, 2008, this court denied a motion by the defendant to preclude the testimony of Dr. Nolan. Subsequently, due to the unavailability of two jurors, the court, Agati, J., dismissed the jury panel and allowed the parties to pick a new jury. The parties then conducted a deposition of Dr. Nolan and evidence commenced on March 10, 2009. The defendant's contention is that the untimely disclosure of Dr. Nolan prejudiced the defendant. The return date in this file was October 23, 2007. Jury selection started on February 19, 2009. Evidence was scheduled for February 23, 2009. The defendant did not decide to do an IME until October 2008. The defendant was aware of Dr. Nolan in early December 2008. The preclusion of an expert witness is a sanction that should only be used as a last resort. In this case, the defendant had more than ample time to have an IME done, he chose not to. The defendant was given an opportunity to depose Dr. Nolan, and in addition, was allowed to pick a whole new jury. The court finds the disclosure of Dr. Nolan on February 23, 2009, was timely under the circumstances of this case. In addition, the testimony of Dr. Nolan did not introduce new information, as his testimony corroborated the opinions of the treating physician that surgery was needed to correct the plaintiff's condition.
The defendant's second reason for a new trial is the denial of a Motion in Limine dated February 23, 2009, seeking to preclude a letter from Dr. Mintz, one of the plaintiff's treating physicians, dated September 4, 2008, wherein Dr. Mintz, indicates that the plaintiff will need a cervical disc excision at C5/6, and the cost will be approximately $50,000.00. The defendant's objection to this letter, is that it was prepared for litigation, does not causally connect this surgery to the accident. Thus, this letter is not admissible pursuant to § 52-174a of the Connecticut General Statutes. This court after hearing argument, denied the defendants motion in limine. The court finds from the records in this case that Dr. Mintz was one of the plaintiff's treating physicians. In Bruneau v. Seabrook, 84 Conn.App. 667, 672, (2004), the Appellate Court held that for a letter of this type to be admissible, it must be consistent with the entire treatment of the plaintiff. In this action, Dr. Mintz's medical record of August 18, 2006, (plaintiffs' exhibit 14,) states "Due to the longevity of the problem, it is a recommendation that surgery may be the only correction to her problem." The court finds from a review of the medical records of Dr. Mintz that this letter is consistent with the entire treatment plan of the plaintiff and is thus admissible.
The defendant's third and last argument is that the jury's verdict was against the weight of evidence and shocks the conscience.
A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence . . . A Verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. Marchell v. Whelchel, 66 Conn.App. 547, 582, 785 A.2d 253 (2001).
"Litigants have a constitutional right to have factual issues resolved by the jury . . . This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded . . . 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." (Internal quotation marks omitted.) Ham v. Greene, 248 Conn. 508, 536, 729 A.2d 740, cert. denied, 528 U.S. 929, 145 L.Ed. 254 (1999). "A conclusion that the jury exercised merely poor judgment is an insufficient basis for ordering a remittitur . . . Proper compensation for non economic damages cannot be computed by a mathematical formula, and there is no precise rule for the assessment of damages . . . The plaintiff need not prove damages with mathematical exactitude; rather, the plaintiff must provide sufficient evidence for the trier to make a fair and reasonable estimate . . . A generous award of non economic damages should be sustained if it does not shock the sense of justice." (Citations omitted.) Johnson v. Chaves, 78 Conn.App. 342, 346-47, 826 A.2d 1286, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003).
In deciding a motion to set aside a verdict, the court must stand in the shoes of the jury and determine if the verdict was unfair, unreasonable and in contradiction of the evidence. The court must determine if the jury's findings were so manifestly unjust that it shocks the conscious. Accordingly, in evaluating the sufficiency of the evidence, the court should not act as a "seventh Juror" Purzycki v. Fairfield, 244 Conn. 101, 112 (1998) but rather, must determine "whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict." Ormsby v. Frankel, 54 Conn.App. 98, 110 (1999). Our courts have consistently held that a trial 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." Salaman v. City of Waterbury, 246 Conn. 298, 304 (1998). 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 (1998). "If the jury could reasonably have reached its conclusion, the verdict must stand. Gaudio v. Griffin Health Services Corp. CT Page 6815 249 Conn. 523, 534 (1999). In this case, the court agrees with the findings of the jury. The jury had more than sufficient evidence to have reasonably found that the plaintiff was injured in the accident and that surgery on her cervical spine is the only procedure that will provide relief to her condition.
The court finds the jury's award of economic and non-economic damages in this case based on the evidence to be fair, just and reasonable. For the reasons stated, the defendant's motion to set aside the verdict, order a new trial or in the alternative to order a remittitur of the jury's award of damages is denied.