Opinion
No. CV 07-5015334
November 10, 2010
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO SET ASIDE VERDICT AND FOR A NEW TRIAL, OR FOR REMITTITUR
On May 5, 2010, the defendants, Woo Young Chi, Kyung Chi and Tach Chi, filed post-trial motions after a jury awarded Erica Esposito $336,081.94 on March 11, 2010 for injuries she sustained in an automobile collision with Woo Young Chi. The defendants filed a Motion to Set Aside the Verdict and For a New Trial or For Remittitur along with an accompanying Memorandum of Law and several volumes of exhibits. (#s129, 130, 131, 132, 133, and 134, respectively.) The defendants posit three grounds supporting their request to set aside the jury verdict: (1) the court erred in failing to give a curative instruction following plaintiff's counsel's arguments regarding defendant Woo Young Chi's admission of negligence; (2) the court erred in failing to allow defense counsel to cross examine the plaintiff regarding the availability of health/medical insurance to cover treatment for her injuries; and (3) the verdict was excessive. The plaintiff filed a Memorandum in Opposition (#135) on June 14, 2010, arguing that the defendants did not properly preserve their claim for a curative instruction; that all of his closing arguments were within the acceptable bounds; that the court properly prevented defense counsel from cross-examining the plaintiff regarding health/medical insurance; and that the verdict was not excessive given the facts of the case. Finally, on July 8, 2010, the defendants filed a Reply to the plaintiff's Memorandum in Opposition. (#137.) The court heard oral argument on July 14, 2010. For reasons more fully set forth herein, this court denies the defendants' motion.
The defendants filed a Motion for Collateral Source Reduction (#128), which the court will address in a separate proceeding.
"The setting aside of a verdict can occur . . . for two general reasons. First, a trial court may set aside a verdict on a finding that the verdict is manifestly unjust because the jury, on the basis of the evidence presented, mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case can be applied . . . Second, a verdict may be set aside if its result justifies a suspicion that a juror or jurors were influenced by prejudice, corruption or partiality." (Citation omitted.) Foley v. Huntington Co., 42 Conn.App. 712, 724-25, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).
I.
Defendant's First Argument:
The Verdict Should be Set Aside Because the Court Erroneously "Fail[ed] to Give a Curative Instruction After the Plaintiff's Inflammatory Closing and Rebuttal Arguments"
Before addressing the defendants' first legal argument, this court must first address an issue that was not forwarded as the specific basis for the defendants' motion, but one which repeatedly becomes intertwined with the defendants' first argument. The court allowed the plaintiff to examine defendant Woo Young Chi on his admission of negligence, both its timing and its substance. Then, the court allowed the plaintiff to introduce into evidence as a Full Exhibit a copy of the original Answer filed by the defendants, denying negligence. That answer was amended during the trial, after defendant Woo Young Chi testified, to admit one claim of negligence. Although defense counsel argued during the trial that the original answer was irrelevant, and should not be admitted because his clients had admitted negligence, he made clear during oral argument in support of his motion to set aside the verdict that the admission of the pleading was not the basis for his motion. Even though he devoted a number pages in his briefs to argue "the significant impact of the Admission of liability on the proper issues and evidence before a jury," during his oral argument and upon questioning by the court, defense counsel clarified that the admission of the original answer was not the legal basis for his motion to set aside. Rather, his request to set aside the verdict was predicated upon his argument that the Court erred in failing to give a curative instruction regarding plaintiff's counsel's argument regarding the filing of the Admission. If plaintiff's attorney had not made such argument, which the defendants characterize as improper, then the defendants would not file this motion to set aside the verdict on the first ground.
In addition to spending several pages to argue why the issue of the timing of the Admission is irrelevant, the defendants cite and rely upon several court cases addressing this issue, including an out of state decision and a couple of older Connecticut Appellate Court decisions, Baker v. Paradiso, 117 Conn. 539, 545, 169 A.272 (1933); and Dreier v. Upjohn, 196 Conn. 242, 494 A.164 (1985). The defendants had an opportunity to submit a Request to Charge on superceded pleadings or the effect of filing an Amended Answer admitting negligence and chose not to do so.
Based upon this representation, there is no need for the court to articulate its reasons for allowing the plaintiff to introduce into evidence the original Answer; nor is there a need to explain why the court believes this was not evidentiary error. However, the court will note that the defendants did not admit negligence until after evidence had commenced; they did not concede the manner in the collision occurred (most notably, they disputed that the defendant Woo was in a rush and pushed the plaintiff's car when he negligently struck it); and they hotly contested the extent of the plaintiff's claimed injuries, the amount of damages to which the plaintiff is entitled, and the reasons for the trial.
In his opening statement, despite the fact that he did later file an Amended Answer admitting negligence, defense counsel stated to the jury that "[Mr. Chi] did not see Ms. Esposito's vehicle coming, and pulled out, and a collision occurred. That's a very human mistake. It's a mistake that you should consider in applying the law as the judge instructs you and decide whether that constitutes negligence under our law, whether that is conduct of a reasonably prudent or not. That's the issue for you to decide." The defendants' counsel then went on to say to the jury "[n]obody in this case denies that Erica Esposito sustained an injury . . . What we are asking is that in evaluating that injury that Ms. Esposito sustained that you apply common sense and common fairness. It's our position that Ms. Esposito's injuries while real are relatively minor on the general scale of events." (Vol. I, Tr. p. 20.)
When asked by plaintiff's counsel whether or not he was going fast enough to push the plaintiff's car, defendant Chi stated: "I'm not sure that is correct." Plaintiff's counsel then asked: "You're not sure that's correct." The defendant answered "because if you look at the damage . . ." (Vol. II, Tr. pp. 32-33.)
"And we are not here because Erica Esposito is seeking what's fair and just and reasonable compensation for a relatively minor injury. We are here because she's seeking a big payoff." (Vol. III, Tr. p. 93.)
Therefore, this court turns to address the defendants' first legal argument: that it erred in failing to instruct the jury regarding plaintiff's counsel's argument regarding the admission of liability.
Following the closing arguments of both sides, to which neither side objected, and during which both sides argued about the other's motives in litigating/defending the case, the court took a luncheon recess. After the luncheon recess, when asked whether either counsel had any issues to put on the record before the jury was brought into the courtroom to receive the Jury Instruction, Attorney Meade made his verbal request for a curative instruction, for the first time. He stated:
As is cited in defendants' briefs, plaintiff's attorney argued that the defendants were attempting to avoid fully and fairly compensating the plaintiff for her injuries. Memorandum of Law in Support of the Motion to Set Aside, dated May 5, 2010, pp. 5-9. The defendants, through their attorney, argued that the plaintiff was seeking a windfall. See footnote 5 and Vol III, Tr. p. 83. "The medical evidence you have, the hard evidence that you have from the medical perspective all says one thing. All of it says that Ms. Esposito's injury is relatively minimal injury." Vol. III, Tr. p. 89. He also stated that the award of damages is ". . . not anything to punish me, to punish Mr. Chi, to give Ms. Esposito a windfall. This isn't the lottery. This is just a proceeding to decide what is fair and what is just and what is reasonable for a relatively minimal injury. Don't make this case more than it is. Make the right call. And I trust that you will." Vol. III, Tr. p. 95.
During final argument as well as during the trial of this case counsel has made repeated references to and arguments concerning both the nature and timing of the admissions of liability made by — on behalf of my client as well the conduct of myself and my firm in defending this case. I would ask for a curative instruction that the jury should not take into account such things in assessing what are fair, just and reasonable damages in this case. That's particularly important in light of the fact that the jury is actually being provided with the pleadings. My concern is that the jury is going to be confused and think that they have to take those things into account in assessing damages in this case which would be improper.
Though these facts are not determinative of the issues raised by the defendants, it is noteworthy that the defendants did not request any specific language for the curative instruction; nor did they take exception to the Jury Instruction which was given or request a specific supplemental instruction.
(Emphasis added.) Tr. Pp 108-09.
The court took the defendants' motion to be a request for clarification to remedy possible confusion. The defendants' attorney clearly knew before closing arguments that the pleadings had been marked as full exhibits. At no time prior to this verbal request did defense counsel alert the court to the fact that he believed any specific Charge was needed regarding the Answer or Amended Answer. Nor did he file a motion in limine or request that the plaintiff's counsel be cautioned about making any specific references to or arguments about the pleadings. Further, during plaintiff's counsel's arguments and immediately following his arguments, defense counsel did not state that he believed such arguments were improper, inflammatory or exceeded the acceptable and appropriate pounds for proper summation. In fact, the defendants' attorney addressed the arguments made by plaintiff's counsel himself in his closing summation.
"As I stated in the beginning of this case, and I told you, we are not arguing here today that Woo Chi didn't make a mistake. It's — it's never been an issue. Woo Chi has admitted fault here. But, I admitted it before we even put on a single bit of evidence in this case. And despite all the time that Attorney Secola spent on this case attempting to establish that Mr. Chi was somehow reckless and deliberately intended to try and hurt his client, um that's not an issue in this case either . . .
"But you should ask yourself, why did Attorney Secola spend so much time on that issue? Why did he spend so much time haranguing Mr. Chi and going — and then talking to you about what Mr. Chi's lawyers, me and Attorney Gelston did, whether we admitted liability on his behalf, whether we admitted the double damages claims that Mr. Secola asserted against Mr. Chi and the lawsuit not only against Mr. Chi but against Mr. Chi's parents?' Mr. Chi didn't do any of that. He stood up here before you and he admitted liability. That shouldn't be an issue in this case. The only issue that you have to decide at this point is: What are Ms. Esposito's injuries? And what is fair, just and reasonable compensation for those injuries?
"Why did Attorney Secola spend so much time on these things? Why — why does he talk about what we, in his imagination, did to his client? . . . Well, I'll tell you why. He wants you to be angry. He wants you to be emotional. He wants you to be to the point where awarding his client a lot of money is something that seems reasonable because it's — it's something that you are looking at, not from the perspective of what the evidence is in this case and what the facts are and what is clear about the evidence and facts, but you are focusing on what were these attorneys doing, and why didn't — why wasn't this — this allegation of negligence formally admitted at any point in time? . . .
"Don't decide this case because you are angry at me. And don't decide this case because you are angry at Mr. Chi. Don't decide this case because of the NFL. Don't decide it because of anything but the facts and the evidence that you've heard in the courtroom. It's an appeal to sympathy and anger. Don't bite." Vol. III, Tr. pp 82-84.
The court declined to give a curative instruction because the Jury Charge, copies of which had been provided to both counsel prior to their summations and a copy of which was given to the jury before their deliberation, adequately addressed the appropriate considerations regarding the issue of damages. Following the charge, the defendants did not request any additional charge regarding damages; the arguments of plaintiff's counsel; or the exhibits.
As will be explained further in this Memorandum of Decision, this court does not conclude that the defendants needed to do so in order to preserve their request for a curative instruction. However, the absence of such requests assists the court in evaluating the seriousness and egregiousness of the claimed misconduct. A flagrant and serious act of misconduct during summation usually yields a prompt response from seasoned counsel (which defense counsel was or seemed to be), in the form of an objection, a motion for a specific curative instruction or a motion for a mistrial.
"The trial court is invested with a large discretion with regard to the arguments of counsel." Skrzypiec v Noonan, 228 Conn. 1, 5, 633 A.2d 716 (1993). The appellate courts are permitted to interfere with the exercise of that discretion only where it clearly exceeds the court's authority or results in manifest injustice to some party. Id. 16. "In fact, the court must allow counsel . . . a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel . . . In argument before the jury, counsel may comment upon facts properly in evidence and upon reasonable inferences drawn therefrom . . . It is, thus axiomatic that the advocate may also entreat the jury to draw reasonable inferences and conclusions from the evidence." Id.
"The burden is on the [defendant] to establish that, in the context of the proceedings as a whole, the . . . arguments were so prejudicial that they deprived him of a fair trial." Nevers v. Van Zuilen, 47 Conn.App. 46, 51-52, 700 A.2d 726 (1997).
A.
Whether the Defendants' Claim For a Curative Instruction is Preserved
The defendants claim that they properly preserved their request for a curative instruction. In their Reply to the Plaintiff's Memorandum in Opposition, the defendants claim that they made a clear and specific request for a curative instruction to address plaintiff's counsel's remarks relating to the defendants' admission of negligence. The plaintiff counters that the claim of error based upon improper, prejudicial closing argument is unpreserved. The court finds that both parties are partially correct. The defendants did, in fact preserve their claim for a curative instruction to clarify the proper factors for the jury to consider when deciding the issue of damages. And, the court finds that the defendants also preserved their claim for a curative instruction to clarify that the timing of the filing of an Admission of Negligence is not a factor the jury should consider in determining the issue of damages. But, the defendants did not make a sufficiently clear request for a curative instruction related to plaintiff's counsel's allegedly inflammatory and improper remarks.
Specifically, the defendants claim that "[a]fter the conclusion of Esposito's rebuttal argument, the defendants' attorney expressly requested that the Court give a curative instruction to address the inflammatory comments made by Esposito's attorney during this closing and rebuttal arguments."
Notwithstanding all of their arguments, the defendants' request was hardly the model of clarity that they claim it to have been in their briefs. Of course, by definition, a request for a curative instruction seeks to remedy something that counsel claims is improper. But, in this case, the defendants never put the court on notice, nor did they preserve their broader claim, that they believed plaintiff's counsel crossed the line of propriety during his closing and rebuttal arguments. Unlike he did in the defendants' briefs, the defendants' attorney never used the words "improper arguments" or "unduly prejudicial" or "inflammatory." At no time did defense counsel request, as was his right, that the court admonish plaintiff's counsel for improper argument; that the court advise the jury to disregard certain arguments of plaintiff's counsel as improper; or that the court specifically caution the jury against considering or relying upon the Answer or Amended Answer.
Instead, the defendants' request seemed to address issues of confusion that may have been created by plaintiff's counsel's argument. The defense wanted the court to instruct the jury that the issues related to credibility of the defendant, which would allow them to consider the Answer, Amended Answer and the timing of their filing, were separate and apart from their determination of the appropriate amount of damages to award to the plaintiff. As noted earlier, because the court believed that its Charge adequately instructed the jury on these issues (credibility and damages), it declined to give the requested curative instruction.
Specifically, with regard to the issues to be decided by the jury, the court instructed: "Because negligence has been admitted in this case, that issue does not need to be decided by you. Instead the first issue you must decide is whether or not the plaintiff has proven to you, by a preponderance of the evidence, that the collision proximately caused her to incur damages and sustain injuries. To do this, you must decide whether the plaintiff has sustained her burden of proving by a preponderance of the evidence not only the existence of damages and injuries, but also that those damages and injuries were proximately caused by the collision . . ."
Regarding credibility the court charged: "It is your job to evaluate the credibility of witnesses. To do that you should consider . . . any interest he or she has in the outcome of the case . . . the inherent probability and improbability of the witness's testimony, its consistency or lack of consistency and whether or not the witness's testimony is supported by or contradicted by other credible evidence . . . If you find that a witness has deliberately lied on any material point, any important point, it is natural that you may be suspicious of the witness' testimony on all points."
Regarding damages, the court instructed that: "Remember, the purpose of damages is not to punish or penalize the defendants, but to compensate the plaintiff."
The precise issue raised by the defendants in their Motion to Set Aside the Verdict in May 2010 and in their Reply Brief July 8, 2010, formulated well after the verdict had been rendered and with the assistance of time and careful, studied review of the trial transcripts, was not the issue that was raised with this court by the defendants' attorney on March 11, 2010. Defense counsel did not request a curative instruction to address specific "improper, overly prejudicial arguments" as he is doing now. Rather, defense counsel requested a curative instruction to "clarify" potentially misleading statements of plaintiff's counsel. This is a noteworthy distinction.
Defense counsel had the opportunity to hear the arguments of counsel, as did the court. Defense counsel further had the opportunity to sit and reflect upon the closing and rebuttal arguments before the court gave its Jury Instruction because the court took a luncheon recess between the closings and the charge. And, defense counsel had the opportunity to formulate a clear, and thoughtful request for the specific curative charge if he wished the court to make one. Had the defendants' attorney, after the lunch break, stated that he believed plaintiff's counsel had exceeded the bounds of proper argument with reference to specific statements or had the defense counsel requested a specific charge, this court would have considered and addressed such request before delivering the Jury Charge. However, that specific issue was not raised by the defendants — though it is being raised now.
Accordingly, this court does not believe that the defendants properly preserved the request they are forwarding now for a specific curative instruction related to specific improper arguments of plaintiff's counsel. Defense counsel did request and thereby preserve his request for a more general curative instruction to explain that the reason for and the timing of the filing of the Amended Answer should not be considered in determining the issue of damages. Such an instruction was unnecessary because these issues were adequately addressed by the Jury Instructions that were given.
B.
Whether the Plaintiff's Attorney's Closing/Rebuttal Arguments Were So Improper and Unduly Prejudicial As to Have Deprived the Defendants of a Fair Trial
Nonetheless, even though this court does not believe the defendants actually requested the specific curative instruction that they claim in their briefs, it next considers the defendants' claims that they are entitled to a new trial because of the improper and prejudicial arguments of the plaintiff's attorney. "While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider . . . However, [as was noted earlier] in addressing the jury, counsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument . . . [W]e must review the comments complained of in the context of the entire trial." (Citations omitted; internal quotation marks omitted.) Durso v. Aquilino, 64 Conn.App. 469, 476, 780 A.2d 937 (2001).
The law is, when there has been an objection to remarks or a motion for a curative instruction or a motion to set aside the verdict or for a new trial, the court must determine whether or not the party making the request has suffered "manifest injury." Palkimas v. Lavine, 71 Conn.App. 537, 544, 803 A.2d 329 cert denied 262 Conn. 919, 812 A.2d 863 (2002).
In support of their contention that this court should set aside the jury verdict, the defendants cite McKee v. Erikson, 37 Conn.App. 146, 654 A.2d 1263 cert. denied 233 Conn. 908 (1995). In McKee, the trial court sustained objections to references to skid marks and ordered defense counsel to desist from arguing that the jury could consider skid marks in determining the speed at which a vehicle was traveling. Not only did the defendant's attorney disobey this order by continuing to make references to skid marks, but he also accused the plaintiff of being "suit happy," and "looking for a handout," when the facts in the case did not support these claims. The appellate court upheld the court's decision to set aside the Defendant's Verdict, holding that "[t]he trial court did not abuse its discretion in basing its decision, in part, on the defendant's argument regarding speed of the plaintiff's vehicle." Id. at 151. The court also upheld the trial court's determination that the references to the plaintiff were overly prejudicial, concluding that there was a lack of any evidence to support the claim that the plaintiff's claim was fraudulent, that she had brought many lawsuits before or that she was looking for a handout.
The factual scenario in McKee is vastly different from the one in the instant matter. Plaintiff's counsel was certainly zealous in his advocacy for his client as was defense counsel. But, the court does not agree that plaintiff's counsel's counsel exceeded the accepted bounds or violated any court order about the proper boundaries for closing argument.
In their briefs, the defendants refer to numerous excerpts from the transcript in which they claim that plaintiff's counsel crossed the line. They refer to these as accusations by the plaintiff's counsel that the defendants and their lawyers engaged in a pattern of wrong-doing. Specifically, the defendants refer to the plaintiff's attorney's repeated references during his arguments to the timing of the admission of liability. The defendants claim that these arguments obviously improperly influenced the jury because of the size of the award.
A review of the trial transcripts confirms that plaintiff's counsel did repeatedly refer to the timing of the admission of negligence. The transcripts further establish that plaintiff's counsel alluded to the motives of the defendants and their attorneys in failing to admit negligence earlier, as a desire to escape accountability for negligence. And, plaintiff's counsel certainly came quite close to the line, especially when he repeatedly referred to the failure to admit negligence as related to the desire to not fully and fairly compensate the plaintiff. But, tempting though it might be, this court declines to make its ruling based upon isolated comments or statements taken out of context of the entire summations and the entire trial. Each lawyer said things that, standing alone, could cause one to raise one's eyebrow and say "hm." Given the totality of the circumstances, including the overall conduct of both counsel during the trial, the hotly contested nature of the issue of causation and damages, the issues related to the credibility of the parties, and the relevant case law, this court concludes that even if certain of the plaintiff's counsel's arguments were overly zealous, they were not so highly prejudicial as to have denied the defendants of a fair trial. Sitting through the entire trial, including the summations, this court did not view the conduct of either counsel to have been so improper as to require that the jury verdict be set aside.
During his closing, plaintiff's counsel argued that if one makes a mistake, like a kid who hits a ball through a window, "[s]o there are two ways you can handle that. You can do the right thing when you[r] mom and dad come home . . . Or you can lawyer up. You can start putting a spin on everything. You get your handlers to take care of it . . ." (Vol. III, pp. 61-62.) Later addressing the filing of the amended answer, he said "Now, once again, it's part of this pattern. You've heard — you heard the testimony on the stand the other day. I — I turned it over to my lawyers. I let lawyers do what they have to do to protect me. So even if that means you file a pleading that's inaccurate, that's ok. And this is all part of the same pattern." (Vol. III, Tr. p. 66.)
"Closing argument in civil cases, deemed improper upon appellate review, but not sufficiently improper to warrant the granting of a motion to set aside the verdict and to order a new trial, includes calling the opposing side's arguments a combination of `sleaze, slime and innuendo,' and characterizing the testimony of a defendant as `weasel words' (internal quotation marks omitted); Rizzo Pool Co. v. Del Grosso, 232 Conn. 686-87 n. 33, 657 A.2d 1087 (1995); or arguing that the defendants provided testimony to `save their filthy money' (internal quotation marks omitted); Weller v. Fish Transport Co., 123 Conn. 49, 60, 192 A.2d 317 (1937); or asking the jurors to imagine that they had suffered the same injury when assessing damages, and discussing the defendant's country club's lack of insurance and the impact on the jury decision if one of the juror's children had visited the country club and was injured; Murray v. Taylor, 65 Conn.App. 300, 320-21, 782 A.2d 702 cert denied 258 Conn. 928, 783 A.2d 1029 (2001); or arguing that the defense counsel used tactics like criminal defense lawyers in sexual assault cases. Nastri v. Vermillion Bros, Inc., 46 Conn.Sup. 285, 292, 747 A.2d 1069 [ 23 Conn. L. Rptr. 536] (1998)"; Palkimas v Lavine, 71 Conn.App. 537, 547, 803 A.2d 329 cert denied 262 Conn. 919, 812 A.2d 863 (2002).
In fact, the court complimented both counsel on their advocacy skills after the trial.
There is a reason the Appellate Courts vest the trial court with discretion in reviewing the propriety of trial conduct and closing arguments. The trial court is accorded deference in determining the propriety of counsel's argument because the "trial judge can sense the atmosphere of a trial and can apprehend far better than [the Appellate] court, limited to a printed record, what factors, if any could have improperly influenced the jury." McKee v Erickson, supra, 37 Conn.App. 148-49, cert denied 233 Conn. 908 (1995). This is absolutely true in this case. The transcript, though an accurate record of the words that were spoken during the trial, does not adequately capture the essence, flavor and tone of the entire trial or the closing arguments.
Listening to the plaintiff's arguments, at the time, in the overall context of the entire trial, they did not seem so unduly prejudicial to the defendants as to deprive them of a fair trial. During the trial, defense counsel apparently felt no need to address the comments other than to ask that the court clarify to the jury that the filing of the Amended Answer should not be considered in determining the amount of damages. Additionally, as was noted earlier, defense counsel did not object to plaintiff's counsel's closing argument; take an exception to the court's Jury Instruction or the court's failure to give a curative instruction; or request a mistrial based upon the plaintiff's closing argument. See, Nastri v Vermillion Bros., Inc., 46 Conn.Sup. 285, 288, 747 A.2d 1069 (1998) (The court reasoned that, "[w]hile this court does not consider that the defendants have waived their right to raise these issues, it will consider their failure to move for a mistrial as one factor in determining the necessity of a new trial to remedy the injury of which they complain").
As Judge Shortall noted in Nastri only arguments which go "far beyond the boundaries of legitimate comments made during the heat of forensic warfare . . . [which are] flagrantly prejudicial . . . [and for which] no curative instruction by the court could remedy their maliciousness" should result in a setting aside of a verdict. Such was not the case, here.
The court believed then, as it does now, that the arguments of plaintiff's counsel were passionate and zealous, but not improper. It evaluated the arguments in the context of the trial, the summations and the Jury Instructions. Therefore, this court denies the defendants' motion to set aside the verdict on this ground.
II.
Defendants' Second Legal Argument:
Whether the Court Erred in Prohibiting the Defendants from Cross Examining the Plaintiff About her Medical Insurance
The defendants claim that the verdict should be set aside because they were not allowed to cross examine the plaintiff about her medical/health insurance. The plaintiff counters that this evidence was properly excluded. Upon review of the trial transcript and the applicable law, this court denies the defendants' motion on this ground.
During the trial, the jury heard evidence that the chiropractors who treated the plaintiff were given letters of protection. The plaintiff testified that regardless of the outcome of the jury trial, she would have to pay these two health care providers for their treatment of her. The plaintiff also testified that she did not return to treatment with Dr. Luchini, who was an orthopedic surgeon, but instead pursued chiropractic treatment.
A central part of the defendants' defense was that the chiropractic treatment the plaintiff received was unnecessary and unrelated to the collision caused by Woo Young Chi's negligence.
The defendants wanted to examine the plaintiff about her access to health/medical insurance apparently to challenge her claim that she would do anything and did anything to get better. The defendants wanted to elicit information about medical/health insurance, they claim, to challenge the plaintiff's assertion that she actively pursued medically necessary treatment and did not have the money to pay for such treatment (hence the issuance of the letter of protection to the chiropractors). The court sustained the plaintiff's objection to these questions. And, the defendants claim that this was harmful error.
The defendants make broad and general legal arguments about the latitude a party must be given to elicit relevant information. But, they do not provide this court with a single legal authority which supports their proposition that this generous latitude includes reference to health or medical insurance in this context.
It is well settled that "the trial court has broad discretion in ruling on the admissibility . . . of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion . . . We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion. Desrosiers v. Henne, 283 Conn. 361, 365, 926 A.2d 1024 (2007)" (internal quotation marks omitted). Duncan v. Mill Management Co. of Greenwich, 124 Conn.App. 415, 418 (October 12, 2010). Even if the trial court makes an error in an evidentiary ruling, a party is not entitled to a new trial unless the ruling "was so harmful as to require a new trial . . . In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful . . . [T]he standard in a civil case for determining whether an improper ruling was harmful is whether the ruling [likely] would [have] affect[ed] the result . . . Ryan Transportation, Inc. v. M G Associates, 266 Conn. 520, 530, 832 A.2d 1180 (2003)." Id., at 423-4.
The defendants claim that the court erred when it prevented them from eliciting testimony from the plaintiff about her health/medical insurance. They also claim that this error was harmful because it result in a higher economic damages award. The defendants provide no support for their assertions, not by way of legal precedent nor by a proper offer of proof. The defendants did not examine the plaintiff outside the presence of the jury to establish whether she did, in fact, have health/medical insurance that would cover her medical treatment. Nor did the defendants establish that she did not return to Dr. Luchini solely for pecuniary reasons. Therefore, the defendants did not establish that this was relevant information. Even if they had, and it was error for the court to preclude the defendants from introducing evidence about health/medical insurance, the defendants failed to establish that this affected the outcome of the case (ie that the error was harmful).
The defendants state in their brief that "[t]he court's barring the defendants' attorney from asking the questions affected the evidence before the jury and therefore, likely affected the verdict. If Esposito had answered affirmatively to a question regarding medical insurance, any damage award would have been for a lower amount." (Emphasis added.) Memorandum of Law in Support of the Motion to Set Aside, p. 19.
The defendants' attorney set forth an "offer of proof" when he made his argument that he should be entitled to examine the plaintiff about her medical insurance. "The reason I asked that the jury be excused is because I believe that the door has been opened for me to inquire as to whether Ms. Esposito has health insurance and whether she could have sought treatment with other providers to be covered by her health insurance, including Dr. Luchini . . . The probative value has to do whether the chiropractor treatment was pursued because it was feasible and medically necessary. She's testified that she would do anything to make herself better, and yet she has never gone back to see Dr. Luchini at all, her orthopedic surgeon. Attorney brought out on re-direct that the chiropractor treatment she had to pay out of her own pocket or she will have to pay our her own pocket because she can't pay for it otherwise, it seems to me that that has opened the door to the question of whether she has available insurance." Vol. II, pp. 61-62. After the court sustained the plaintiff's objection, defense counsel said "I've made my offer of proof."
The plaintiff testified, without contradiction, that she sought chiropractic care because she did not like taking pills (Tr. Vol. I, p. 51) and that Dr. Luchini had told her she could return, but that there was nothing more he could do for her (Tr. Vol. II, p. 31). She also testified that she wanted to try anything that would relieve her pain.
Reference to medical or health insurance is generally prohibited in a civil trial whose purpose is to determine the amount of damages the plaintiff is entitled to as a result of the defendant(s) negligence. Capozziello v. Robinson, 102 Conn.App. 93, 94, 924 A.2d 876 (2007) ("It is well established that the existence of collateral sources should not be revealed to the jury"). Of course, there are exceptions to this general rule. Capoziello is, in fact, a case in which the Appellate Court refused to set aside a verdict despite the fact that the issue of insurance was presented to the jury. However, the accepted legal principle is that, generally, the issue of insurance is not one which should come before the jury in a civil case.
The defendants sought to introduce the evidence of medical/health insurance for impeachment purposes. As such, the court weighed the probative value of such information against its prejudicial effect. The court found that any probative value (which was speculative, at best) was outweighed by the prejudicial effect the evidence would have on the plaintiff. Further, the defendants failed to establish that the exclusion of the evidence actually harmed them. Therefore, this court finds that the defendants are not entitled to have the verdict set aside on the basis of the claimed evidentiary error.
III.
The Defendants' Third Legal Argument:
Whether the Verdict is Excessive
The defendants' final arguments relate to the size of the verdict. First they argue that the verdict should be set aside because it is excessive. Second, they argue that the verdict should be reduced because it is excessive. Both of these arguments fail.
"The fact that the jury returns a verdict in excess of what the trial judge would have awarded does not alone establish that the verdict is excessive . . . [T]he court should not act as the seventh juror with absolute veto power. Whether the court would have reached a different [result] is not in itself decisive . . ." Wichers v. Heath, 252 Conn 174, 188, 745 A.2d 789 (2000). "[T]he court should not interfere with the jury's determination except when the verdict is plainly excessive or exorbitant . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury's 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 were influenced by partiality, prejudice, mistake or corruption." (Internal quotation marks omitted. Citations omitted.) Tomczuk v. Alvarez, 184 Conn. 182, 187, 439 A.2d 935 (1981).
To be sure, the jury's award of non-economic damages in this case was large. In addition to awarding her all of her claimed economic damages, the jury also awarded the plaintiff three hundred thousand dollars ($300,000) in non-economic damages. But, the fact that the verdict was large, standing alone, does not entitle the defendants to either have the verdict set aside or reduced.
In the instant case the motor vehicle collision took place on November 1, 2005. At the time of the collision the plaintiff was twenty years old. The jury trial commenced on February 25, 2010. The jury rendered its verdict on March 11, 2010. At trial the jury learned that the plaintiff, now in her mid-twenties, had a life expectancy of 56 years. The plaintiff testified during the trial that she was in continual pain and discomfort and had been in continual pain since the date of the collision. The plaintiff worked as a teacher's aide, which required her to bend and move. The plaintiff also testified that although she did not limit her activities, she suffered increased pain with increased activity. The plaintiff testified that she used a moist heating pad about one hour per day every day; and an electrical nerve stimulation machine about three times a week. Both the plaintiff's experts and the expert retained by the defendants to conduct an Independent Medical Examination (IME), opined that the plaintiff sustained permanent injury. They also agreed that the plaintiff's complaints of pain and discomfort were consistent with their diagnosis. The plaintiff's orthopedic surgeon rated the plaintiff more highly than the IME doctor. But, both concurred that the plaintiff's condition was chronic, permanent and not amenable to surgery. Therefore, although the defendants vigorously disputed damages, there was no real dispute about whether or not the plaintiff suffered a permanent and painful injury. The only issue was what the value of that injury.
If the jury credited the plaintiff's testimony that she was in continual pain, as they apparently did, and if they credited the expert testimony that her condition was permanent, then following the court's instructions would require them to place a dollar value on pain and suffering that continues for over a 60-year period. Viewing the noneconomic damages award from this vantage point, that amount is not excessive, or unsupported by the evidence. It would be purely arbitrary and wholly improper for this court to substitute its judgment of what a "fair" verdict would be given the evidence in this case.
For all the foregoing reasons, this court denies the defendants' Motion to Set Aside the Verdict and for a New Trial or Remittitur.