Opinion
No. CV06-5005989 S
March 14, 2011
MEMORANDUM OF DECISION
PROCEDURAL HISTORY
On October 6, 2010, the defendant, Richard J. Abbate, filed a motion to set aside the verdict and for a new trial with an accompanying memorandum of law in support. The defendant posits six grounds supporting his motion to set aside the verdict: (1) the court failed to submit to the jury his proposed interrogatories filed on September 21, 2010; (2) the jury's award of economic damages was contrary to the evidence; (3) the jury's verdict was invalid and improper in that it failed to complete the verdict form by articulating the specific amount of economic damages awarded to the plaintiff; (4) the court improperly admitted expert testimony without the necessary foundation in doing so; (5) that the verdict was contrary to law because there was no evidence that the defendant had created the alleged defect or was on notice of the alleged defect; and (6) the court improperly charged the jury that it was entitled to award damages to the plaintiff for an aggravation of a preexisting injury when no such allegation was made and no evidence was produced to support an aggravation of a preexisting injury.
The plaintiff filed a memorandum in opposition on October 15, 2010, arguing the following: (1) the court submitted the defendant's proposed interrogatories to the jury on the plaintiff's verdict form exactly as the defendant proposed; (2) the verdict was supported by the evidence; (3) the defendant failed to object to the jury's verdict; (4) Dr. Michael Baumgaertner's report was properly presented to the jury; (5) there was sufficient evidence of defect and notice; and (6) the eggshell plaintiff charge was given properly by the court. The court heard oral argument on October 25, 2010.
DISCUSSION
"The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . ." (Internal quotation marks omitted.) Rossman v. Morasco, 115 Conn.App. 234, 241, 974 A.2d 1, cert. denied, 293 Conn. 923, 980 A.2d 912 (2009). "The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury . . . The evidence offered at trial must be given the most favorable construction to which it is reasonably entitled in support of the verdict . . . Only under the most compelling circumstances may the court set aside a jury verdict because to do so interferes with a litigant's constitutional right in appropriate cases to have issues of fact decided by a jury . . . The amount of damages to be awarded is a matter particularly within the province of the jury." (Internal quotation marks omitted.) Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 541-42, 792 A.2d 132 (2002).
I. Defendant's first argument: the court erred when it refused to submit to the jury his proposed interrogatories because he claims that as a result, he is without information necessary to determine which items of damages are subject to a collateral source reduction."[T]he purpose of interrogatories [is] to elicit a determination of material facts, [and] to furnish the means of testing the correctness of the verdict rendered, and of ascertaining its extent . . . The power of the trial court to submit proper interrogatories to the jury, to be answered when returning [its] verdict, does not depend upon the consent of the parties or the authority of statute law. In the absence of any mandatory enactment, it is within the reasonable discretion of the presiding judge to require or to refuse to require the jury to answer pertinent interrogatories, as the proper administration of justice may require . . . The trial court has broad discretion to regulate the manner in which interrogatories are presented to the jury, as well as their form and content." (Internal quotation marks omitted.) Nikiel v. Turner, 119 Conn.App. 724, 729-30, 989 A.2d 1088 (2010).
The Supreme Court concluded that "the defendant, as the party seeking to reduce the amount of economic damages awarded by the fact finder, bears the burden of proving that the verdict includes items of damages for which the plaintiff has received a collateral source benefit. Specifically, the defendant who is seeking a collateral source reduction must, at the conclusion of the evidence, submit interrogatories to the jury concerning the specific items of damages included within the verdict . . . [P]lacing the burden on the defendant to submit jury interrogatories is most consistent with the equitable balance that [General Statutes § 52-225a] seeks to strike between barring plaintiffs from recovering twice for the same loss, on the one hand, and preventing defendants from benefiting from reduced judgments due to collateral source payments, on the other. Morever, because it is the defendant who is seeking to reduce the award, the defendant should bear the burden of proving that the items of damages corresponding with the desired collateral source reduction actually are included in the award." (Internal quotation marks omitted.) Pikulski Waterbury Hospital Health Center, 269 Conn. 1, 6-7, 848 A.2d 373 (2004).
In the present case, the verdict form utilized by the jury was almost identical to the defendant's proposed interrogatories. In his proposed interrogatories, the defendant designated spaces for each health care provider separately for the jury to indicate medical expenses it found was necessary for the plaintiff's injuries. Additionally, the defendant provided a space for the total amount of medical expenses.
Likewise, the verdict form that the jury used listed each health care provider separately with designated spaces for the jury to specify the amounts of medical expenses. In addition, the form contained designated spaces for total economic damages, noneconomic damages, percentage of the plaintiff's negligence, if any, percentage of the defendant's negligence, if any, and total damages.
Because the defendant's proposed interrogatories stated that the plaintiff's injuries resulted from "the motor vehicle accident of 7/17/2004," the defendant was asked by the court to correct such error. The defendant, however, did not resubmit jury interrogatories. Therefore, although the defendant contends that the court erred in not submitting to the jury his proposed interrogatories, it is submitted that the court properly exercised its broad discretion in refusing to submit the defendant's interrogatories, which incorrectly characterized the nature of the present action.
Additionally, the parties have agreed on November 8, 2010, that the net award should be $200,038.30 after the application of the collateral source reduction. Therefore, it is submitted that the defendant's contention that he would be prejudiced in the absence of his proposed interrogatories is now moot.
II. The defendant's second argument: the jury's award of economic damages is contrary to the evidence.
"[T]he trial judge must do just what every juror ought to do in arriving at a verdict. The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly . . . The trial judge in considering the verdict must do the same . . . and if, in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial . . ." (Internal quotation marks omitted.) Wichers v. Hatch, 252 Conn. 174, 186-87, 745 A.2d 789 (2000).
It is not the court's function to "sit as the seventh juror when [it] review[s] the sufficiency of the evidence . . . rather, [it] must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict . . . Moreover, [i]n reviewing the jury verdict, it is well to remember that [j]urors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct." (Citation omitted; internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 112-13, 708 A.2d 937 (1998).
"When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous . . . Speculative evidence is not sufficient evidence for the trier to make a fair and reasonable estimate of the plaintiff's damages . . . however, [m]athematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate . . . Evidence is considered speculative when there is no documentation or detail in support of it and when the party relies on subjective opinion." (Citations omitted; internal quotation marks omitted.) Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 163, 976 A.2d 723 (2009).
"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 were influenced by partiality, mistake or corruption." (Internal quotation marks omitted.) Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990).
In the present case, the plaintiff submitted copies of medical bills and expenses he incurred at Yale New Haven Hospital and Montowese Health and Rehabilitation Center as Exhibits 17, 18, 19, 20, 21 and 22. The plaintiff testified to the amounts of medical bills, as demonstrated by these exhibits: $9,007.25, $26,231.66, $649.68, $13,075, $8,127.50, and $850, respectively. These amounts add up to $57,941.09 in actuality. He testified that the total amount of medical costs associated with the injuries he suffered was approximately $60,000. Therefore, it is submitted that the plaintiff's claims of economic damages were not speculative as he submitted documentation in support of damages. Thus, the jury's award of economic damages in the amount of $60,000 does not "shock the sense of justice as to compel the conclusion that the jury were influenced by partiality, mistake or corruption."
III. The defendant's third argument: the jury verdict was improper and invalid in that it failed to properly complete the verdict form by articulating the specific amount of economic damages awarded.The jury awarded $60,000 in economic damages and $190,000 in noneconomic damages, for the total of $250,000 for the plaintiff. The defense counsel failed to object to the verdict both in the courtroom and in the judge's chambers. He also did not request that the jury be polled or that the jury be returned for further consideration. Therefore, he failed to preserve his objections to the verdict.
IV. The defendant's fourth argument: the court improperly admitted medical opinion evidence without the necessary foundation.
"The trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the error is clear and involves a misconception of the law, its ruling will not be disturbed . . . In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion . . . Some facts must be shown as the foundation for an expert's opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence." (Internal quotation marks omitted.) Peatie v. Wal-Mart Stores, Inc., 112 Conn.App. 8, 20, 961 A.2d 1016 (2009).
"A trier is not concerned with possibilities but with reasonable probabilities." (Internal quotation marks omitted.) Struckman v. Burns, 205 Conn. 542, 554, 534 A.2d 888 (1987). "Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation . . . Whether an expert's testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert's testimony . . . As long as it is clear that the opinion of the expert is expressed in terms of probabilities, the opinion should be submitted into evidence for a jury's consideration." (Citations omitted; internal quotation marks omitted.) State v. Nunes, 260 Conn. 649, 672-73, 800 A.2d 1160 (2002). "For medical opinion testimony to have any probative value, it must at least advise the jury that the inference drawn by the doctor is more probably correct than incorrect. If probabilities are in balance, the matter is left to speculation." (Internal quotation marks omitted.) Id., 673.
In a case where a doctor could only testify that there was a fifty-fifty chance that the injury sustained would be permanent, the Supreme Court held that such evidence was insufficient for the jury to determine whether the plaintiff had suffered a permanent injury because such finding "afforded no basis for an award of damages . . . because the expert testimony was based on pure speculation." (Citation omitted; internal quotation marks omitted.) Id., 674. On the other hand, the Supreme Court concluded that there was sufficient evidence for the jury when one doctor testified that "there is a better than fifty percent chance that this [child's injury will be permanent] . . . and a second doctor testified to a better than sixty percent chance of a permanent injury . . . The fact that the experts testified as to odds and percentages was acceptable . . . because the testimony was clearly in terms of the probable permanence of the [plaintiff's] conditions." (Citations omitted; internal quotation marks omitted.) Id.
At trial, the plaintiff submitted Dr. Baumgaertner's expert testimony on the issue of the plaintiff's injuries as Exhibit 23. The defendant argues that the court improperly admitted a portion of the expert's report, which reads "[i]t is predicted that this number will increase potentially all the way up to approximately thirty-five percent if and when total joint becomes clinically necessary" because it was offered without further explanation from the expert or any other qualified medical expert, and expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture. The portion at issue immediately followed the expert's testimony that "[u]sing the AMA Guides for the Evaluation of Permanent Impairment (Fifth Edition), I would estimate his lower extremity impairment at approximately fifteen percent based on the displaced lateral plateau fracture with deformity in addition to the small loss of motion." Additionally, immediately following the portion at issue, the expert testified that he thought "there is a probability for joint replacement rather than a simple possibility given the factors described."
In looking at the entire substance of the expert testimony, because it was clear that the plaintiff's expert opinion was expressed in terms of probabilities, it was properly admitted for the jury's consideration. Thus, the court properly exercised its wide discretion in ruling on the admissibility of expert testimony.
V. The defendant's fifth argument: the jury verdict was contrary to the law in that there was no evidence that the defendant had created the alleged defect or was on notice of the alleged defect.The 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 . . ." (Emphasis added; internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006). "A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied." (Internal quotation marks omitted.) Card v. State, 57 Conn.App. 134, 138, 747 A.2d 32 (2000). "[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 their will." (Emphasis added; internal quotation marks omitted.) Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000).
At trial, the plaintiff testified that he went over the wall to look at the car on the defendant's property. He testified further that "[t]here's a depression that's hidden because of the tall grass and it goes down like this. So when [he] landed, instead of landing and being able to place both feet firmly, only [his] left foot touched." Additionally, he testified that if the depression was not hidden by the tall grass and was visible instead, he would not have hopped off of the wall like he did. He testified further that the depression was about "four to six, eight inches right in that area" but was not a gaping hole like a well. When the plaintiff's counsel asked "[i]s that depression that you stepped in, is it or is it not, the type of depression that would be left if someone were to take up a rock from a field and put it on a stone wall that they were building?" the plaintiff answered affirmatively.
During the defendant's cross examination, he testified that there were some dark spots on the ground near the wall, which were due to the weed killer. He testified further as to having used a sledge and a bucket loader in order to carry big stones and rocks over to the wall.
In light of these testimonies, it is apparent that there was some evidence upon which the jury might have reasonably reached its conclusion. Therefore, the jury's finding was not manifestly unjust given the evidence presented.
VI. The defendant's sixth argument: the court improperly charged the jury that it was entitled to award damages to the plaintiff for an aggravation of a preexisting injury when no such preexisting injury was alleged in the complaint, and no evidence was adduced to support any such aggravation of a preexisting injury."[A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible . . . The trial court has a duty not to submit any issue to the jury upon which the evidence would not support a finding." (Internal quotation marks omitted.) Umsteadt v. G.R. Realty, 123 Conn.App. 73, 79, 1 A.3d 243 (2010). "[J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . The trial court must adapt its instructions to the issues raised in order to give the jury reasonable guidance in reaching a verdict and not mislead them . . . Claims of error addressed to the [jury] charge are tested by the pleadings and by the evidence . . ." (Citation omitted; internal quotation marks omitted.) Iazzetta v. Nevas, 105 Conn.App. 591, 593, 939 A.2d 617 (2008).
In reviewing a challenged jury instruction, "[t]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . [the court] will not view the instructions as improper . . . Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues." Sutcliffe v. Fleet Boston Financial Corp., 108 Conn.App. 799, 808-09, 950 A.2d 544 (2008). "Moreover, [a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance." (Internal quotation marks omitted.) Umsteadt v. G.R. Realty, supra, 123 Conn.App. 79.
"Our law regarding the giving of an eggshell instruction was epigrammatically summed up in Olkowski v. Dew, 48 Conn.App. 864, 868, 713 A.2d 264, cert. denied, 246 Conn. 901, 717 A.2d 239 (1998), wherein Judge Dupont, writing for the court, stated: In this case, the plaintiffs concede that the aggravation of a preexisting injury was not a theory of the amended complaint, but rely on the case of Bruneau v. Quick, 187 Conn. 617, 633, 447 A.2d 742 (1982), in support of the position that they were entitled to the preexisting injury charge despite the fact that the aggravation of a preexisting injury was not a theory of the case. In Bruneau, the defendant claimed that the trial court improperly provided the jury with a preexisting injury or take the plaintiff as you find him charge because the aggravation of a preexisting injury was not a theory of the plaintiff's case and there had been absolutely no testimony which suggested that this condition . . . had been aggravated . . . In Bruneau, the trial court determined and our Supreme Court affirmed that there was, in fact, evidence from which the jury reasonably could find or infer that the effect on this particular [p]laintiff of some of the claimed injuries may be different in degree because she had a [preexisting] condition than if she didn't." (Citation omitted; internal quotation marks omitted.) Mojica v. Benjamin, 64 Conn.App. 359, 371, 780 A.2d 201 (2001).
In the present case, the medical expert testified that he "think[s] given the severity of this injury and [the plaintiff's] pre-existing joint alignment, [he] would expect further deterioration and ultimately the need for joint replacement. The risk on the involved side is certainly significantly higher than the uninvolved side given the additional trauma and damage." Exhibit 23. As a result, based on such evidence, the jury could have found or inferred that the effect on the plaintiff of the claimed injuries may have been different in degree because he had a preexisting condition than if he did not. Therefore, because a trial court should instruct the jury on every issue for which there is any foundation in the evidence, even if weak or incredible, the court properly charged the jury with the eggshell plaintiff instruction.
CT Page 7179