Opinion
No. CV 05-4015715-S
June 8, 2007
In this negligence action, tried to a jury, a verdict in favor of the Plaintiff Michael E. Greci was rendered on February 15, 2007. The jury awarded the Plaintiff $117,795 in economic damages and $100,000 in noneconomic damages. The jury entered a verdict in favor of the Defendant as to the claims of the Plaintiff, Margaret A. Greci. By motions dated February 22, 2007 the Plaintiffs have moved for a new trial, to set aside the verdict, and for additur as to Michael Greci. The Defendant filed objections to the motions on March 2, 2007. Oral argument on the motions was heard by the court on April 16, 2007.
Although Margaret Greci joins in the motion for a new trial, the claims of error relate only to the claims of Michael Greci. The court has previously denied a motion for additur as to Margaret Greci since no verdict was entered in her favor. Therefore the reference to the Plaintiff herein is to Michael Greci.
The following evidence was presented at trial. On November 25, 2003 the Plaintiffs were driving on Route 84 westbound in Cheshire when they stopped because traffic had stopped ahead of them. After they were stopped, the Defendant's car hit their car from behind pushing it into the car in front of them. The Plaintiffs' car was towed from the scene. Although the Plaintiff Michael Greci did not complain of pain at the scene he did go to the hospital and he began to develop pain and discomfort later that day as he resumed the drive home to North Carolina. On November 28th the Plaintiff visited his local physician, Dr. Campbell, complaining of right arm and shoulder pain. Dr. Campbell subsequently diagnosed him in December with a herniated or ruptured disc in his neck. He referred the Plaintiff to a neurosurgeon, Dr. Deskmukh, who diagnosed him with cervical radiculapathy and disc herniation. He opined that the accident caused the Plaintiff's condition or at least exacerbated an asymptomatic condition. However, Dr. Deskmukh had not reviewed Dr. Campbell's notes or records prior to his treatment of the Plaintiff. By March 2004 Dr. Deskmukh felt the Plaintiff was a candidate for a discetomy and fusion since the Plaintiff had not responded to nonsurgical treatments. The surgery was performed on April 12, 2004. By September, Dr. Deskmukh determined that the Plaintiff had reached maximum medical improvement and gave him a 15% disability rating. In May 2005 the Plaintiff saw Dr. Deskmukh again complaining of neck pain. Over the next several months the Plaintiff continued to complain of pain and was diagnosed with cervical spondylosis after surgery with persistent unremitting radicular pain and his prognosis was poor to good. Dr. Deskmukh predicted that he had a 30% chance of future surgery within the next five years and over a 50% chance of surgery for a further fusion in the next 10-15 years, although as of January 2007 surgery was not clinically indicated. The Plaintiff continued to complain of pain and discomfort at the time of trial and loss of movement in his neck.
The basis for the Plaintiff's motion for a new trial and motion to set aside the verdict are the court's allowance of the late disclosure of experts by the Defendant and the use of medical evidence which the Plaintiff claims the Defendant did not relate to the Plaintiff's claimed injuries as a result of the accident, and the reference by the defense counsel in closing argument to a lottery ticket and retirement plan.
The Plaintiff's first claim is addressed to the court's allowance of the use by the defense of the Plaintiff's medical reports contained in the files of Dr. Campbell that were disclosed shortly before or during trial. Those reports indicated treatment of the Plaintiff by various doctors between 1997 and 2002 for right hand, forearm, elbow and shoulder pain, weakness in his grip, rotator cuff tendinitis, and insomnia. The court allowed the Defendant to identify the authors of the reports as experts, submit their reports in evidence, and cross examine the Plaintiff regarding their content. The Plaintiff claims that he was severely prejudiced by his impeachment with the use of these prior medical treatments which he claims were immaterial and irrelevant to the case and were not correlated to his current condition by any medical doctor. The court disagrees. The court allowed the late disclosure of the authors of the reports as experts because of the Plaintiff's late disclosure of this information to the Defendant. The information in the reports also related to the same body parts claimed to be involved in the Plaintiff's injuries from the accident here. The Plaintiff cannot now claim prejudice from such a late disclosure where his actions contributed to the failure to have the material disclosed earlier to counsel. See, Mojica v. Benjamin, 64 Conn.App. 359 (2001).
As to the Plaintiff's second claim, during the Defendant's closing argument, counsel stated to the jury: "I will say that since it's not a complicated case, that the case is not worth anywhere near a million dollars. I'm also going to suggest to you that with those figures, it's the equivalent of lotto, and what plaintiff's counsel thinks is that it's easier for him to pick six of you who will award a million dollars than it is to get a lotto ticket and win a million dollars. I suggest to you if he wants a million dollars or anything near that, go buy a lotto ticket, but lotteries and lotto have nothing to do with fair, just, and reasonable awards and to be in courthouses." Later, in his argument, defense counsel stated to the jury: "The last thing I wanted to say to you was that the judge is going to tell you that the award is not to punish the defendant nor is it to reward the plaintiff. And the figures Mr. Brignole are talking about is just that: it's something to punish the defendant and something to reward the plaintiff. I made an analogy a minute ago to say that this is not lotto, it's not a lottery, nor should it be a retirement plan. What Mr. Brignole is asking for, essentially, is more money than most people end up with in their retirement plan after a lifetime of working, and I suggest to you Mr. Parks, by virtue of being in this accident, should not be asked to fund, he should not be asked to pay for a retirement plan for Mr. Greeci" The Plaintiff claims that the verdict should be set aside because the court failed to give a curative charge regarding these remarks. The Plaintiff also claims that the remarks of defense counsel were severely prejudicial and were done for the sole purpose of floating the biases and prejudices of large verdicts to the top of the jurors' minds and the remarks involved the mention of matters outside the evidence.
As to the court's failure to give a curative instruction, closing arguments occurred on Friday, February 9, 2007. The court does not recall the Plaintiff voicing any objection to defense counsel's remarks or requesting a curative charge at that time. Subsequently, on February 13, 2007, the Plaintiff filed a motion for a request to charge the jury regarding the allegedly improper remarks by defense counsel. Because of intervening holiday and weather events, the jury did not return for deliberations on this matter until Thursday, February 15, 2007. At that time the court denied the Plaintiff's request, finding that because of the lapse of time, such a curative instruction would serve more to highlight the alleged improper remarks than to lessen their prejudicial impact, if any.
As to the prejudicial effect of the remarks, they were made by defense counsel in response to the Plaintiff's articulation to the jury of a claim for an award of $145,900 for economic damages, including past medicals, lost wages and future medicals, and noneconomic damages of over $1.7 million consisting of specific sums for pain and suffering, future pain, mental and emotional suffering, loss of enjoyment of life's pleasures, permanency, scarring, and fear of future surgery. Based on the standards set forth by our appellate courts, the court does not believe that such comments warrant a new trial. As the court stated in Medes v. Geico Corporation, 97 Conn.App. 630, 636-7 (2006): "A trial court is invested with a large discretion with regard to arguments of counsel, and appellate courts should only interfere with a jury verdict if the discretion has been abused to the manifest injury of a party. . . Moreover, we note that [i]n addressing the jury, [c]ounsel 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. . . In reviewing whether the court abused its discretion in allowing the argument, our task is twofold. First, we must determine whether the remarks were improper. . . If we determine that the remarks were improper, we must then determine whether a new trial is necessary." (Internal quotation marks and citations omitted.) In Palkimas v. Lavine, 71 Conn.App. 537, 545-48, cert. denied, 262 Conn. 919 (2002), cited by the court in Medes, the court discussed the standards to be applied in determining whether a new trial is warranted because of 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. . . In civil cases, however, the harmed party must show `manifest injury'; . . . or that the remarks were `unreasonable'; . . . or `flagrantly prejudicial.'. . . 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.'. . . 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. . . 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; `. . . or arguing that the defendants provided testimony to `save their filthy money; `. . . 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; . . . or arguing that defense counsel used tactics like criminal defense lawyers in sexual assault cases. . . A verdict should be set aside and a new trial ordered, however, if counsel has misstated the law, despite a court's prior ruling; . . . 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. . . 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. . . 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. . . `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.'. . ." (Internal citations omitted.) 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.
"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 and citations omitted.)" Palkimas v. Lavine, 71 Conn.App. 537, 544 (2002). Here the comments of defense counsel in response to the Plaintiff's counsel articulation of his damages claim to the jury did not go beyond the zeal of advocacy or introduce material not in evidence, but only referenced the lottery and retirement in relation to the size of the award requested by Plaintiff's counsel and not as evidence. In addition, the court admonished the jury, both at the beginning of the case and before closing arguments, that the arguments of counsel were not evidence. It also charged the jury that it was up to them to determine what amount of damages was fair, just and reasonable without regard to the amounts suggested by counsel. In light of the verdict in this case, the court cannot say that the remarks were so improper and prejudicial to the Plaintiff that a new trial is warranted. Therefore the Plaintiff's Motion to Set Aside the Verdict and Motion for New Trial are denied and the Defendant's objections thereto are sustained.
As to the Plaintiff's Motion for Additur, the Plaintiff claims that the award of noneconomic damages is far below what is fair, just, and reasonable based on what two judges evaluated the case for purposes of settlement and on what was offered by the Defendant before trial, and since the economic damages awarded included future medical bills. The Plaintiff claims that the jury did not properly evaluate the elements of his noneconomic damages. In Campbell v. Gould, 194 Conn. 35, 41 (1984), the trial court ordered a remittitur based in part on a settlement figure the court had proposed at a pretrial. The Supreme Court, in reversing the trial court's decision, stated: "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 was excessive. In considering a motion to set aside the verdict as excessive, the 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. . . The court's proper function is to determine whether the evidence, reviewed in a light most favorable to the prevailing party, reasonably supports the jury's verdict." (Internal quotation marks and citations omitted.) In Schettino v. Labarba, 82 Conn.App. 445, 448-9 (2004), the court stated: "[I]t is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is. . . palpably against the evidence. . . The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption. . . Although the court has broad discretion in setting aside a verdict, its discretion is not boundless. Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury. . . the court's action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined. Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached. . . [I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work [its] will. . . When determining whether to order an additur, the court should not assume that the jury made a mistake, but should suppose that the jury did exactly what it intended to do." (Citations and internal quotation marks omitted.) Here the jury awarded the Plaintiff $100,000 in noneconomic damages, not an insubstantial amount. Also the evidence was conflicting as to the existence of similar physical and emotional complaints, prior to and subsequent to the accident sufficient to raise in the minds of the jury whether the physical and emotional pain and suffering of which the Plaintiff complained was totally caused by the injuries he sustained in the accident. Therefore the Motion for additur is denied and the Defendant's objection thereto is sustained.