Opinion
No. CV02-0077730 S
October 13, 2004
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT AND MOTION FOR NEW TRIAL ( #128)
In this action the Plaintiff sought money damages from the Defendant for injuries she allegedly sustained in a motor vehicle accident. The Plaintiff claimed that her injuries were caused by the carelessness and negligence of the Defendant. The Defendant claimed, by way of special defense, that the Plaintiff was herself negligent and that her negligence was a substantial factor in causing the accident and her alleged losses. The matter was claimed for a jury trial and a jury was selected. At the first day of trial, a juror brought to the court's attention that she had met the Plaintiff at a store during the interim between jury selection and the trial date. The juror was questioned by the court, outside of the presence of the other jurors but in the presence of counsel for both parties, as to the nature of the encounter. From the questioning of the juror it appeared that the encounter was an innocent one occasioned by the Plaintiff's notice of the juror's dog and that once each became aware as to whom the other was, that the Plaintiff was a party to a case in which the juror was a member of the jury panel scheduled to hear it, the encounter was ended. Although the juror did not indicate that the case was discussed nor did the court determine that the Plaintiff had acted improperly, the juror was uncomfortable with continuing as a juror. As a result, the Defendant asked that the juror be excused and the court excused her and placed an alternate on the panel. The case was then presented to the jury. During the Defendant's closing argument, Defendant's counsel stated to the jury: "There's another very small piece of evidence that I would ask you to think about in deliberating this case. We have an alternate juror sitting as a juror on this case, because Roberta Faltus approached one of the jurors at Christmas Tree Shops and talked to her . . ." The Plaintiff objected at this point and the court sustained the objection and advised the jury to disregard defense counsel's comments. Defense counsel also argued to the jury that, regarding the testimony of the Plaintiff's expert, the jury should consider that "he had performed several surgeries on her, and she is one of his best patients; but remember, ladies and gentlemen, Dr. Messenger has a business, and she's probably one of his best customers . . ."
The jury rendered a verdict for the Plaintiff on May 7, 2004 and awarded $3,015 in economic damages which included $950 in property damage, zero non-economic damages, and found the Plaintiff 40% contributory negligent for a net award to the Plaintiff of $1,809.
The Plaintiff has moved to set aside the verdict and for a new trial. The Plaintiff claims that the remarks of defense counsel were flagrantly prejudicial and effectively denied the Plaintiff a fair trial.
In Palkimas v. Lavine, 71 Conn.App. 537, 545-48, cert. denied 262 Conn. 919 (2002), the court discussed the standards to be applied in determining whether a new trial is warranted because of improper comments by counsel to the jury in closing arguments. "The phraseology to describe whether there has been an abuse of discretion in not setting aside a verdict and granting a new trial is somewhat different as between civil and criminal cases. It is unclear whether the different phraseology connotes a different level of egregiousness before concluding there was an abuse of discretion in not granting a new trial. In criminal cases, the defendant must prove `substantial prejudice' arising from the remarks. State v. Alexander, supra, 254 Conn. 303; State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990). In civil cases, however, the harmed party must show `manifest injury'; Skrzypiec v. Noonan, supra, 228 Conn. 16; or that the remarks were `unreasonable'; id., 15; or `flagrantly prejudicial.' Yeske v. Avon Old Farms School, Inc., supra, 1 Conn.App. 204 . . . In every case, both criminal and civil, involving improper argument, there are two questions. The first is whether the remarks were improper, and the second is whether, if the remarks were improper, a new trial is necessary. Under current case law, the test for whether there has been impropriety in the remarks of a prosecutor and whether a new trial must be ordered requires a more intense scrutiny in criminal cases than in civil cases because the duty of fairness on the part of a state's attorney `exceeds that of other advocates.' State v. Payne, supra, 260 Conn. 452. This does not excuse counsel, however, in civil cases from adhering strictly to the Rules of Professional Conduct regarding conduct during the trial and during closing argument. Comments of attorneys that are proscribed in both civil and criminal cases are (1) comments on the veracity of a witness's testimony, (2) personal expressions of opinion on evidence, (3) references to matters not in evidence, and (4) appeals to the emotions, passions and prejudices of the jurors. State v. Singh, supra, 259 Conn. 702. 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. 317 (1937); or asking the jurors to imagine that they had suffered the same injury when assessing damages, and discussing the defendant country club's lack of insurance and the impact on the jury's decision if one of the jurors' 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 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). A verdict should be set aside and a new trial ordered, however, if counsel has misstated the law, despite a court's prior ruling; Krupien v. Rai, 56 Conn.App. 247, 249, 742 A.2d 1270 (1999), cert. denied, 252 Conn. 931, 746 A.2d 793 (2000); or if counsel comments without evidence to support a statement that implies that if a verdict is rendered for a plaintiff, the financial burden on the defendant town will eliminate sports in that town. Fonck v. Stratford, 24 Conn.App. 1, 3, 584 A.2d 1198 (1991). If the trial court determines that the remarks of counsel did jeopardize the right of a party to a fair trial by commenting on opposing counsel's appearance or implying that he would resort to trickery to win his case, there is no abuse of discretion if the court grants a motion to set aside the verdict. Yeske v. Avon Old Farms School, Inc., supra, 1 Conn.App. 203-05; see also State v. Hammond, supra, 221 Conn. 288 (granting motion for new trial would not be abuse of discretion but denial of motion for new trial might be such an abuse). This is so because the trial court is in a better position than an appellate court to evaluate the damage done by remarks made in closing argument. Because it is difficult for an appellate court to view the remarks from the same vantage as the trial court, to divine on which side of the `impropriety line' the remarks fall, we give great weight to the trial court's assessment of the situation. Skrzypiec v. Noonan, supra, 228 Conn. 10-11. `A verdict should be set aside if there has been manifest injury to a litigant, and it is singularly the trial court's function to assess when such injury has been done since it is only that court which can appraise the atmosphere prevailing in the courtroom.' Yeske v. Avon Old Farms School, Inc., supra, 1 Conn.App. 205; see also Marko v. Stop Shop, Inc., 169 Conn. 550, 558-59, 364 A.2d 217 (1975)." In Palkimas, defense counsel made comments about his client calculated to induce sympathy and vouch for her credibility. The Appellate Court held that the trial court did not err in denying a motion for a new trial because the crux of the case was not the Defendant's credibility but the Plaintiff's credibility.
In Yeske v. Avon Old Farms School, Inc., 1 Conn.App. 195, 204-5 (1984) the court stated: "The trial judge is in the best position to determine whether the admonition given was a sufficient antidote for improper argument. Note, 10 A.L.R. 3d 1330, §§ 7 and 8. If a counsel's remarks so prejudice the ability of a party to obtain a fair trial, a new trial is mandated. Edwards v. Sears, Roebuck Co., 512 F.2d 276, 286 (5th Cir. 1975). There are occasions when there is no possibility that any instruction will be curative; see State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert. denied, 462 U.S. 1001, 104 S.Ct. 280, 78 L.Ed.2d 259 (1983); and in such exceptional cases, the verdict should be set aside and a new trial ordered, regardless of whether the opposing party took exception to the remarks. Hennessy v. Metropolitan Life Ins. Co., 74 Conn. 699, 710, 52 A. 490 (1902). A verdict should be set aside if there has been manifest injury to a litigant, and it is singularly the trial court's function to assess when such injury has been done since it is only that court which can appraise the atmosphere prevailing in the courtroom. Pisel v. Stamford Hospital, 180 Conn. 314, 322, 430 A.2d 1 (1980); Cavallaro v. Offen, 29 Conn.Sup. 20, 21, 269 A.2d 83 (1969). The trial judge has discretion as to the latitude of the statements of counsel made during argument. Practice Book 296." In Yeske the Court held the trial court acted properly in setting aside a verdict where counsel had commented, in argument to the jury, upon opposing counsel's appearance, the size of his firm, the position of his counsel table and the type of clients he represents.
"The question is whether the remarks at closing argument went beyond or fell short of `a generous latitude in argument' generated by the `zeal of counsel.' (Internal quotation marks omitted.) Skrzypiec v. Noonan, supra, 228 Conn. 16." Palkimas v. Lavine, 71 Conn.App. 537, 544 (2002). Here the comment of counsel regarding the Plaintiff's approach of a juror and the resulting substitution of an alternate was clearly improper. First, it was not "a piece of evidence" as counsel described it. It was the result of a hearing before the court outside the presence of the jury which was not to be shared with the other members of the jury. Therefore counsel's remarks clearly involved reference to evidence not in the record. "`A well established rule is that a statement by counsel, not under oath, of a material fact pertinent to the issues unsupported by evidence, and prejudicial to the opposing party, constitutes reversible error unless it appears that the prejudicial effect has been effectively averted by an instruction to disregard the statement, or otherwise . . . It is the duty of [this court] to weigh the probable effect of the statement upon the issues of the' case, then look to the action of the trial court in dealing with it, and if it is reasonably clear that the effect has not been eliminated, reversal is required.' (Citations omitted.) State v. Santello, 120 Conn. 486, 490-91, 181 A.2d 335 (1935). Counsel may not comment on or suggest inferences from facts not in evidence. State v. Huff, 10 Conn.App. 330, 341, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987)." Fonck v. Stratford, 24 Conn.App. 1, 3-4 (1991). Although the Defendant claims the jury knew of the juror's meeting with the Plaintiff, they had not been told of the reason why the juror was excused and the alternate placed on the jury.
Second, counsel's reference to the Plaintiff's encounter with a juror and the substitution of an alternate juror implied that the Plaintiff had done something improper, and as the Plaintiff argues, it bordered on a claim of juror tampering. General Statutes § 53a-154 provides that: "A person is guilty of tampering with a juror if he influences any juror in relation to any official proceeding to or for which such juror has been drawn, summoned or sworn." Tampering with a juror is a class D felony. "We adhere to the principle, however, that `[w]hile 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 to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.' (Citations omitted.) State v. Ferrone, 96 Conn. 160, 169, 113 A. 452 (1921); see State v. Kinsey, 173 Conn. 344, 351, 377 A.2d 1095 (1977) (Loiselle, J., concurring), quoting State v. Ferrone, supra, with approval." State v. Ubaldi, 190 Conn. 559, 575 (1983).
Third, the Plaintiff's credibility and character were significant issues in this case. The Defendant testified that while driving to her boss' house on the day of the accident someone was tailgating her and flashing their lights. The Defendant claimed she was afraid. She pulled over and let the car pass at which time the driver of the car gave her a hand gesture. The Defendant then followed the car in order to get the license plate and when she turned a corner she hit the Plaintiff's car. The Plaintiff testified that she pulled out behind the Defendant from a street at a point after the Defendant claimed she was already being tailgated. In addition, the Plaintiff's claims of damage were challenged as well based on her previous injuries.
The Defendant claims that the court deemed the comment improper and cured it immediately by its instruction to disregard it and therefore it is not sufficiently improper to warrant a new trial. Although the court instructed the jury to disregard Defense counsel's improper remark, the comment was egregious and the court's instruction was not sufficient to obviate its effect when viewed from the "prism of the trial court." Palkimas v. Lavine, supra, 71 Conn.App. at 550. The jurors were well aware that they should not discuss the case with anyone prior to deliberations. The court specifically noted in its introductory remarks to the jury that they were not to let anyone talk to them about the case and if someone tried to do so they should report it to the court. Thus, in the context of the trial and the court's previous instructions regarding their obligations as jurors, the allegation that the Plaintiff attempted to do something that they were previously admonished about, is clearly prejudicial. Even though the court had already determined that the Plaintiff had not engaged in any impropriety when she approached the juror, defense counsel sought to characterize the Plaintiff's conduct to the jury as not only "evidence" but as implying an attempt on the part of the Plaintiff to engage in an improper conversation with a juror which in fact resulted in the juror's being excused from the case.
Whether a new trial should be ordered is based on whether defense counsel's remarks so prejudiced the Plaintiff's ability to obtain a fair trial. Although the verdict here was for the Plaintiff, the jury found her 40% contributory negligent and awarded her only a small portion of the medical bills she claimed as well as zero non-economic damages. From this the court cannot say that the jury was not infected by the improper remarks of counsel such that the Plaintiff received a fair trial.
Lastly, counsel knew that the facts of the nature of the encounter between the Plaintiff and the juror were revealed at a hearing held outside the presence of the jury prior to the start of evidence. Such a proceeding was not part of the evidence on which the jury was to base its decision. The purpose of conducting a hearing outside the presence of the jury is just for that reason, to keep the information disclosed therein from the jury unless otherwise ordered disclosed. For counsel to ignore this well recognized and understood judicial procedure is disrespectful to the court and the litigants.
In conclusion, defense counsel's comments regarding the Plaintiff's encounter with a juror were clearly inappropriate and extremely prejudicial to the Plaintiff. The court's limiting instruction, in light of the verdict, was obviously insufficient to obviate their effect. As to defense counsel's comments regarding Dr. Messinger, they do not rise to the level of prejudice necessary to require a new trial and, in any event, the Plaintiff never objected to them at the appropriate time.
The Plaintiff's Motion to Set Aside the Verdict and Motion for New Trial is granted. In light of this ruling the court need not consider the Plaintiff's Motion for Additur.
Jane S. Scholl, J.