Opinion
No. X08 CV 000177475S
August 28, 2008
Memorandum of Decision on Plaintiffs' Motion to Set Aside Verdict and/or for a New Trial
This case was tried to conclusion before a jury over a period of some 26 trial days. The procedural and factual background of the case is summarized in this court's Memorandum of Decision on Plaintiffs' Motion for Mistrial, dated August 25, 2008. For further background on this case see also the Supreme Court's opinion reversing a summary judgment which had entered for the defendant Medtronic, Inc., and remanding this case for trial. Hurley v. Heart Physicians, P.C., 278 Conn. 305 (2006).
On January 18, 2008 the jury returned its verdicts for the defendant, which verdicts were received and accepted by the court. From its answer "No" to Jury Interrogatory No. 1, it is clear that the verdict was based entirely on the jury's finding that there was no liability of the defendant Medtronic, Inc. to the plaintiffs under the product liability claim of inadequate warning or labeling, which was the sole liability issue in the case. In other words, the verdict was not at all based on the causation or alternate causation or damages issues which were extensively litigated at trial.
Interrogatory No. 1 asked the jury: "Has the plaintiff proven by a fair preponderance of the evidence that Frank Kling, by his oral communications to Dr. Landesman that turning down the pacemaker was an option, accompanied by his physical adjustment of the pacemaker to forty paces per minute actually contradicted The Technical Manual, thereby vitiating and nullifying the manual's warnings?" — which was the triable liability issue per the remand from the Supreme Court. Hurley, supra, 278 Conn. at 321-22. As instructed, upon answering "No" to this interrogatory, the jury returned defendants' verdict forms and did not proceed to answer any of the other interrogatories.
The Plaintiffs have now timely moved post-trial pursuant to Practice Book § 16-35 to set aside the jury's verdict and/or for a new trial, stating twenty-nine grounds. Aside from the claims that the verdict lacked unanimity and was the product of juror misconduct, which have been adjudicated by the court's denial of Plaintiffs' Motion for Mistrial based on the same claims, plaintiffs claim that the jury's verdict was ". . . against the weight of credible evidence" (¶ 2) and "contrary to law" (¶ 3), and then challenge the propriety of six rulings made by the court in response to motions in limine filed by the plaintiffs or the defendants (¶ 4 a-f), some twenty-two rulings on evidence made by the court during the trial (¶¶ 5-26), and the court's failure to charge as requested by the plaintiffs or erroneously charging as stated by the plaintiffs in their exceptions to the charge. (¶¶ 27, 28.) Finally, the plaintiffs claim that the court erred in allowing the defendant a brief period to file a reply memorandum to plaintiff's motion for mistrial (¶ 29). Plaintiffs have not briefed their motion and have by letter to the court expressly waived oral argument as "the course of greatest judicial efficiency," relying instead on the briefs submitted and oral arguments made during the trial. The defendant has submitted a memorandum of law in opposition to the plaintiffs' motion.
Practice Book § 16-35 provides, in part "Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict, motions for new trials . . . must be filed with the clerk within ten days after the day the verdict is accepted, provided that for good cause the judicial authority may extend this time . . . Such motions shall state the specific grounds upon which counsel relies."
For the reason stated herein the Plaintiffs' Motion to Set Aside Verdict and/or for New Trial is denied.
The majority of the claims of the plaintiffs' motion go to issues of causation or damages, neither of which was a basis of the jury's verdict for the defendant. The court believes that those rulings were legally correct for the reasons stated in the court's written and verbal rulings and orders made before and during the trial, and the plaintiffs, having waived briefing and argument, advance no reasons why those rulings on causation and damages were erroneous. Even if there were some rulings on causation or damage issues that were in error, however, that error cannot be a ground for setting aside the jury's verdict or granting a new trial since any such error would be totally harmless.
It is now clearly established that the trial court, on motion of a party or its own motion, "has the inherent power to set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict . . ." Stephenson's Civil Procedure, 3d Ed. § 197b. p. 410.
The plaintiff has appealed from the judgment, assigning error in the denial of her motion to set aside the verdict as unsupported by the evidence, in rulings of the court, and in the charge relating to the issues of liability and damages. Since the jury found in favor of the defendant, absolving him from liability, unless we find error in that conclusion it is not necessary to consider the claimed errors relating to damages. Any such errors would be harmless. Murphy v. Soracco, 174 Conn. 165, 166 (1978).
Since any erroneous rulings on causation, alternate causation, or the plaintiffs' damages could not possibly have brought about a different result in the jury's verdict based completely on its finding for the defendant as to the product liability warning/labeling issue, the court will not further address those causation/damage claims as grounds for granting this motion, but will limit its discussion to those claims that plaintiff has identified as having a bearing on the liability issue.
A. Insufficiency of the Evidence (¶ 2)
The trial court should sustain a jury's findings "where there was some evidence upon which the jury could reasonably have based its verdict." Purzycki v. Town of Fairfield, 244 Conn. 101, 106-07 (1998) (reversing the trial court's decision to set aside and reinstating the jury's verdict). And in deciding whether or not a verdict is reasonably supported by the evidence the court ". . . must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial." Id. at 107. It is irrelevant whether the jury could have reached a different verdict because a "verdict must stand if it is one that the jury reasonably could have returned and the trial court has accepted." Ravenswood Construction, LLC v. F.L. Merritt, Inc., 105 Conn.App. 7, 21-22 (2007). See also Gladu v. Sousa, 252 Conn. 190 (2000) (holding that even a dubious verdict or the use of poor judgment by the jury is an insufficient basis for setting aside a verdict). It is the jury's specific function "to sort out from the evidence that [is] in considerable conflict, those facts that would form the basis for its verdict and . . . to reconcile evidentiary inconsistencies." Pagnato v. Ippoliti, 245 Conn. 640, 654 (1998).
The sole factual issue decided by the jury in this case is that the plaintiff had not proven by fair preponderance of the evidence that Medtronic's representative, Frank Kling, by his oral communications to plaintiff Nicole Burley's cardiologist Dr. Landesman that turning down her pacemaker was an option, accompanied by his physical adjustment of the pacemaker to forty paces per minute, actually contradicted the FDA-approved Technical Manual for her Medtronic pacemaker, thereby vitiating and nullifying the manual's warnings. The relevant context, which is undisputed, is that Nicole's pacemaker had signaled "ERI" or elective replacement indicator prior to Mr. Kling's statements to Dr. Landesman, The Technical Manual for Nicole's "Legend II" pacemaker (Exhibit 1) does state in § 5-6 that "the physician should schedule an immediate replacement of the pacemaker once ERI is exhibited", but also states in § 6-8 that "rates lower than 40ppm are intended primarily for diagnostic purposes." There is no provision in the manual which prohibits or recommends against lowering the rate of the pacemaker after ERI has been exhibited, and there was evidence from which the jury could reasonably have found that the lowering of Nicole Burley's pacemaker to 40ppm was for diagnostic purposes and therefore authorized per § 6-8. Plaintiff's own expert witness Frank Cecchin, M.D. testified that the lowering of the pacemaker to 40ppm at Dr. Landesman's direction was for "diagnostic purposes" and Dr. Landesman's own office records (Exhibit 3) confirm that "After discussing the situation with both Nicole and her mother, it was elected to leave her pacemaker set as a VVI pacemaker at a rate of 40 per minute to observe her status" (which the jury could reasonably infer to mean for diagnostic purposes). Defendant's expert electrophysiologist Dr. Paul Gillette testified to the jury that Mr. Kling's statements and conduct were consistent with the technical manual, and another electrophysiologist expert witness Dr. David Benditt testified that "Mr. Kling's actions were perfectly appropriate." Defendant's expert witness, Larry Pilot, Esq., a former Associate Director for Compliance in the FDA's Bureau of Medical Devices testified that Mr. Kling acted professionally responsibly, and appropriately under the circumstances, and ". . . did nothing, by way of performance, again in the context of deposition and trial testimony, that would misbrand the device."
Although there was contrary evidence adduced by the plaintiff, the foregoing evidence, in the court's opinion, affords a reasonable basis for the jury's finding that Mr. Kling did not contradict the technical manual and therefore did not misbrand or mislabel the pacemaker, and the verdict for defendant Medtronic on liability should not be set aside as contrary to the evidence or lacking a sufficient basis in the evidence.
B. Verdict Contrary to Law (¶ 3)
The plaintiffs' whole argument in this regard is "the jury's verdict was contrary to law." (Motion to Set Aside, ¶ 3.) Without citation of authority or further articulation or analysis or substantive discussion the point is deemed to be abandoned. Lefebre v. Zarka, 106 Conn.App. 30 (2008) n. 5. The court will only state that it can think of no reason why the jury's verdict would be contrary to law.
C. Rulings on Motions in Limine (¶ 4c, d, e f)
The only rulings that relate to liability are the rulings granting Defendant's Motion in Limine No. 1 (excluding evidence that Ms. Hurley's pacemaker was defective or otherwise "bad" or dangerous); granting Defendant's Motion in Limine No. 6 (precluding evidence regarding any alleged duty to report on the part of Frank Kling and/or Medtronic); granting Defendant's Motion in Limine No. 8 (precluding evidence that Dr. Richard Landesman is not a learned intermediary or that the Connecticut Supreme Court reversed the trial court regarding Medtronic's defense); and granting Defendant's Motion in Limine No. 9 (precluding evidence that Frank Kling was not properly trained or qualified). The court's reasoning for ruling as it did are set forth in writing in the "Summary of Rulings on Motions in Limine" (No. 436.10). The court has reviewed those rulings and adheres to the rulings as made at or before trial for the reasons stated.
The numbering of motions in limine conforms to the numbering on the list of motions in limine dated November 8, 2007, prepared by counsel for the defendant.
D. Method of Selection of Alternate Juror Before Start of Evidence (¶ 5)
After the jury of six plus four alternates had been selected but before the start of evidence and before the jury panel had been sworn, the juror selected as Juror No. Six was excused for hardship. There was an issue as to the method of selection of an alternate juror to replace the excused regular juror. The court ordered the alternate juror to be selected by lot drawn by the clerk. The plaintiff objected, claiming that the first alternate juror selected (the person first selected after the selection of the excused regular juror) should be selected. The court's ruling is consistent with Conn. Gen. Stat. § 54-82h(c) and with the dictum in State v. Samuels, 273 Conn. 541, 573, note 20 (2005). In Samuels, as here, a selected juror had to be replaced by an alternate before the jury was impaneled. The trial court replaced the excused juror with the first alternate selected (order of selection). The Supreme Court assumed that the method used was contrary to the statute, but that the error was harmless, but then stated in dictum, by footnote: "We nonetheless emphasize that, if a juror is excused for any reason, the trial court is required to follow the procedures set forth in § 54-82h(c) to replace the excused juror with an alternate juror."
§ 54-82h(c) provides in relevant part: "[i]f, at any time, any juror shall, for any reason, become unable to further perform the duty of as juror, the court may excuse such juror and, if any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become part of the regular panel . . ."
This claim is not a valid ground to set aside the verdict or grant a new trial.
E. Allowing Medtronic to Argue in the Alternative re Consistency with Technical Manual (¶ 7)
The argument seems to be that it was error to allow Medtronic, in the absence of a special defense, to argue that Mr. Kling's failure only to advise Dr. Landesman that § 5-6 of the technical manual required the physician to schedule an immediate replacement when the battery was in ERI was still consistent with § 6-8 of the technical manual because Kling's advice and conduct comported with that diagnostic purpose section of the manual. The liability issue that plaintiff had the burden of proving, as defined by the Supreme Court in Hurley, supra, included consistency with the technical manual of Mr. Kling's conduct as well as his statements, and the Supreme Court specifically recognized the relevance of the diagnostic purposes provision (§ 6-8 of the manual) in deciding the liability issue of this case:
"What is at issue, however, is whether, notwithstanding the approved written pacemaker warnings, by his oral communications to Landesman that turning down the pacemaker was an option, accompanied by his physical adjustment of the pacemaker to forty paces per minute, actually contradicted the manual . . ." (Emphasis in original.) 278 Conn. at 321-22.
. . . [A]lthough the manual provides that rates below forty paces per minute may be used for "diagnostic purposes," whether the discussion between Kling and Landesman and the adjustment actually made were consistent with that purpose when the electric replacement indicator on Nicole's pacemaker signaled the need for immediate replacement as in this case (emphasis in original), raised disputed factual issues meant for consideration by a fact finder at trial (emphasis added) . . . 278 Conn. at 322-23.
The Supreme Court did not link the relevance of the diagnostic purpose provision of the manual to any special defense filed by Medtronic, nor does this court find that a special defense is necessary to permit argument of consistency based on § 6-8 as well as § 5-6. "Facts which are consistent with such [plaintiff's] statements, but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." Practice Book § 10-50. An argument that Mr. Kling's words and action do not contradict the manual because of diagnostic purpose is inconsistent with — not consistent with — plaintiffs' position that Kling did contradict the manual. The diagnostic purpose argument is therefore properly raised under a general or special denial. Practice Book § 10-50.
F. Failure to Admit Programmer Manual (¶ 10)
The Medtronic Legend II Pacemaker is controlled and set by another device called a programmer which was used by Frank Kling at Dr. Landesman's office on September 14, 1998 to interrogate the pacemaker and then set the pace of Nicole Hurley's pacemaker down to 40ppm. There is a separate FDA-approved Technical Manual for the programmer, which was offered in evidence by the plaintiff and excluded by the court as irrelevant. The ruling was correct in the court's view. The programmer manual has nothing to do with the liability issue as framed by the Supreme Court in Hurley v. Heart Physicians, P.C., supra. There is no claim of programming error. It was undisputed at trial that the pacemaker was signaling ERI and that Mr. Kling, at Dr. Landesman's direction, successfully reduced the rate of the pacemaker to 40ppm.
G. Restriction of Use of Hypothetical Questions to Plaintiffs' Expert Witnesses (¶ 13)
This objection is based on the court's rulings on hypothetical questions initially posed by plaintiffs' counsel "in his examination of his experts, including Dr. Cecchin." The plaintiff has failed to identify any particular question to any particular expert, and this claim could very well be deemed to be abandoned under the rule of Lefebre v. Zarka, supra, for lack of articulation, analysis, or substantive discussion. Only rulings as to liability experts could possibly be prejudicial. All of plaintiffs' liability experts were allowed to answer lengthy comprehensive hypothetical questions. In the court's view the rulings on such hypothetical questions were within the discretionary authority of the judicial authority under the Connecticut Code of Evidence § 7-4 and the common law of Connecticut.
H. "Cumulative Testimony" of Dr. Benditt (¶ 19)
The plaintiff claims only that "the trial court incorrectly failed to preclude Dr. Benditt's testimony which was cumulative" without any articulation or analysis or statement as to which other testimony Dr. Benditt's testimony cumulated, or which of his answers were cumulative. With the very limited transcript available to the court, the court nonetheless recalls that Dr. Benditt's testimony did not relate to the basic liability issue decided by the jury but rather went to the issue of the cause of Nicole Hurley's cardiac arrest. In that case, the court's ruling to permit Dr. Benditt to testify could not have been prejudicial because it could not have changed the jury's verdict on liability. In any event the court recalls that, although Dr. Benditt's testimony may have overlapped to some extent the testimony of another defense witness, there was not a cumulation of their testimony such that the defendant would have obtained an unfair advantage from his testimony. ". . . [T]he court should exercise care to avoid precluding evidence merely because of an overlap with the evidence previously presented." Glaser v. Pullman Comley, LLC, 88 Conn.App. 615, 627 (2005).
The plaintiffs have provided no transcripts or excerpts of Dr. Benditt's testimony or that of any other witness. The defendant has provided but a single page (Exhibit G to defendants' memorandum in opposition) of Dr. Benditt's testimony which seems to confirm that Dr. Benditt testified as to defendant's theory of alternate causation — that Nicole Hurley's cardiac arrest was caused by the negligence of her cardiologist, Dr. Landesman.
I. Exclusion of Certain Rebuttal Testimony of Dr. Kleinman ¶ 23(7)
The only claim of improper exclusion of Dr. Kleinman's deposition testimony that relates to the jury's verdict on liability is claim no. 7 which is that the court "refused to allow Dr. Kleinman to testify that he believed Kling's words and actions contradicted the technical manual and that Medtronic's words and actions contradicted the technical manual and that Medtronic's instructions/warnings to Dr. Landesman were inadequate." The court's ruling was not in error. There was not an adequate foundation for Dr. Kleinman to render those opinions. He was not an electrophysiologist. He had no experience in dealing with sales representatives like Mr. Kling over the previous twenty years. And, most significantly, he admitted that at the time of his testimony (by deposition) that he had not reviewed the Medtronic Legend II Technical Manual. See "Practice Book § 13-31(a)(5) Rulings on Defendant's Testimonial Use of the Four Depositions of Dr. Charles S. Kleinman," dated January 11, 2008. This argument is not a reason to set aside the verdict or order a new trial.J. Allowing Defense Counsel to Refer to "Two Phases" of the Trial (¶ 24)
Although plaintiff has provided no specification or articulation or explanation of this claim, the defendant admits in its memorandum in opposition to this motion that defense counsel did, in cross examining plaintiff's expert witness Dr. Frank Cecchin, refer to a Phase One and a Phase Two of this case. Defendant has provided the court with a transcript excerpt of the colloquy regarding this questioning which took place on December 12, 2007 (Exhibit J to defendant's memorandum in opposition). Although plaintiffs' counsel had requested a sidebar conference (later summarized on the record) during which she raised as a "little anecdote" a question whether or not the reference to "two phases" violated an earlier ruling of the court on a motion in limine, the court expressed the view that this testimony did not run afoul of that earlier order, and plaintiff's counsel, Atty. Reilly, responded "Okay, Thank You, your honor." (Transcript Excerpt, 12/12/07, p. 29.) Furthermore, in summarizing the sidebar conference, Atty. Reilly commenced her remarks by stating specifically that "There was no objection." Id., p. 9. It therefore appears that there was no objection to this questioning, and therefore no ruling which could possibly form the basis of setting aside the verdict or granting a new trial. In any event, the questioning was a fair characterization of the history of the case and Dr. Cecchin's separate opinions at various stages of the litigation.
The case was originally brought by the plaintiffs against Nicole Hurley's cardiologist Dr. Landesman and his medical group, Heart Physicians, P.C. as the only defendants. Then, by an amended complaint, Medtronic, Inc. was brought into the case. The initial complaint was an exhibit in the case. Dr. Cecchin had been noticed as an expert witness in the original case against Dr. Landesman and then was later noticed as an expert witness in the case against Medtronic, Inc.
K. Failure to Charge as Requested (¶ 27) and Exceptions to the Charge (¶ 29).
Although plaintiffs has enumerated (by number only) some twenty requests to charge which they claim were erroneously not given or included in the court's charge to the jury, and has in blanket fashion asserted error in the charge as given "as set forth in the plaintiffs' written exceptions to the charge dated January 18, 2008 and incorporated herein by reference" they have totally failed to elaborate or articulate in their motion the claimed legal error in not giving those requested charges or the error in the charge as given. The court will therefore stand on the record made during the charge conference and at the time of plaintiff's exception to the charge. The court believes that the charge as given "considere[d] in its entirety and judge[d] by its total effect rather then its individual components" gave the jury "a clear comprehension of the issues presented for their determination under the pleadings and upon the evidence . . ." and was "suited to guide them in the determination of those issues." Brown v. Robishaw, 282 Conn. 628, 644, n. 18 (2007).
L. Allowing the defendant an Additional Period to File a Memorandum in Reply to Plaintiffs' Motion for Mistrial Filed January 23, 2008 (¶ 29)
The plaintiff's motion for mistrial was first made verbally in open court on January 18, 2008 shortly after the jury had been excused. The only ground of the verbal motion was that the jury verdict for the defendant was not unanimous because of a certain initial response by one juror during the individual polling of the jurors. The court reserved decision on the motion and ordered simultaneous briefs to be filed by January 23, 2008. When plaintiffs' brief came in however, it was not limited to the issue of lack of unanimity, but also added and briefed the new ground of jury misconduct based on plaintiffs' counsel's post-trial interview with a juror. The juror's written answers to counsel's out-of-court questioning signed under penalty of perjury were attached to plaintiffs' brief. Since this whole new ground of the motion for mistrial came up for the very first time in plaintiffs' brief, the court sua sponte amended the briefing schedule to give the defendant an opportunity to reply to the new argument and the supporting written juror statement. Not to have done so would have violated every notion of fairness and would have given the plaintiff the unprecedented and unjust right to have the only access to the court on a matter of great significance to the outcome of the case. The court acted in accordance with its inherent authority to administer and supervise the litigation before the court so as to prevent unfairness and to preserve access to the court, and within the spirit if not the letter of Practice Book § 1-8: "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." There is certainly no basis for setting aside the jury's verdict because of the court's post-trial amendment to the briefing schedule under these circumstances.
ORDER
For the foregoing reasons — or to the extent not discussed herein, for the reasons stated by the court verbally or in writing before and during the trial — the Plaintiffs' Motion to Set Aside Verdict and/or for a New Trial is denied.