Opinion
CV136037713S
01-04-2016
Mechele M. Johnson v. Dana M. Proto
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR ADDITUR (#137), MOTION FOR SANCTIONS (#139), MOTION FOR NEW TRIAL (#140)
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Mechele Johnson commenced the present action by service of writ, summons and complaint on the defendant, Dana Proto on April 9, 2013. Jury selection began on this case on August 5, 2015 and evidence began on August 11, 2015. The plaintiff filed a one-count complaint on April 15, 2013, which alleges the following facts. On April 26, 2012, at approximately 8:32 a.m., the plaintiff, Mechele M. Johnson was operating her motor vehicle in a westerly direction on Route 68 in Wallingford, Connecticut when she came to a stop in a line of traffic for a red traffic light at the intersection of said road and Northrup Road. At said time and place, the defendant, Dana M. Proto was operating her motor vehicle on Route 68 directly behind the plaintiff. As the plaintiff was stopped in traffic, her vehicle was suddenly and violently struck from behind by the defendant's vehicle, thereby causing plaintiff to sustain serious and painful injuries. The complaint alleges a number of ways in which the defendant was negligent, including statutory negligence, and that as a result of the defendant's negligence the plaintiff sustained injuries to her neck, both shoulders, and physical and emotional pain and suffering. The plaintiff further alleged that as a result of the defendant's negligence she required medical treatment for her injuries, and incurred significant medical bills. The plaintiff also claimed that as a result of the defendant's negligence she was unable to fully resume all of her daily activities, and she continues to experience pain and discomfort on a daily basis.
The defendant filed an answer denying substantially all of the plaintiff's allegations. Although this was a rear end collision, the defendant denied liability claiming that the defendant exercised reasonable care and was not negligent. In addition, the defendant claimed that the injuries the plaintiff alleged to have suffered were not the result of the accident but rather were due to pre-existing injuries and/or conditions.
On August 12, 2015, the jury returned a verdict in favor of the plaintiff, and awarded the plaintiff $1,772 in economic damages and zero non-economic damages. The plaintiff's claimed economic damages were for past medical bills and expenses which totaled $9,508.49.
Pursuant to Practice Book § 16-35 and Connecticut General Statutes § 52-228b, the plaintiff moves the court to set aside the verdict as to damages, and that an additur be granted on the ground that the jury's verdict is inadequate as a matter of law. The plaintiff also moves this court to set aside the verdict and order a new trial on grounds that the court erred in its evidentiary rulings, erred by reprimanding plaintiff's counsel during closing argument, and on grounds that the jury's verdict was against the weight of the evidence and contrary to law. The defendant objects to the plaintiff's motion to set aside the verdict on grounds that the court's rulings were correct, but even if the court erred, such error was harmless, and that there was sufficient evidence from which the jury could conclude as it did. The plaintiff also filed a motion for sanctions against the defendant for denying liability in this case when, according to plaintiff's counsel liability was clear. The defendant filed an objection to plaintiff's motion for sanctions and, in addition, moved for sanctions against plaintiff's counsel for submitting medical bills that defendant claims were clearly not related to the accident in question. The court heard oral argument on the motions on September 28, 2015.
Practice Book § 16-35 provides in relevant part: " [M]otions to set aside a verdict . . . motions for additur, motions for new trial, unless brought by petition served on the adverse party or parties . . . 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 . . ."
Connecticut General Statutes § 52-228b provides: " No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable."
DISCUSSION
I
Motion for Additur
" The right of trial by jury is of ancient origin, characterized by Blackstone as the glory of the English law and the most transcendent privilege which any subject can enjoy . . . (Internal marks omitted.) Dimick v. Schiedt, 293 U.S. 474, 485, 55 S.Ct. 296, 79 L.Ed. 603 (1935)." Saleh v. Ribeiro Trucking, 303 Conn. 276, 280-81, 32 A.3d 318 (2011).
The court is mindful that litigants have a constitutional right to have factual issues tried to a jury. Young v. Data Switch Corp, 231 Conn. 95, 100-01, 646 A.2d 852 (1994). " This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair minded persons as to the amount that should be awarded . . . This right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fairminded men passed upon by the jury and not by the court . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury . . . Similarly, [t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury . . . In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict. (Citations omitted; internal quotation marks omitted.) Wallace v. Haddock, 77 Conn.App. 634, 636-37, 825 A.2d 148 (2003). 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 . . . (Internal quotation marks omitted.) Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 541, 792 A.2d 132 (2002). A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. (Citations omitted; internal quotation marks omitted.) Marchell v. Whelchel, 66 Conn.App. 574, 582, 785 A.2d 253 (2001). The court must view the evidence offered at trial in the light most favorable to sustaining the verdict. Gaudio v. Griffin Health Services Corporation, 249 Conn. 523, 534, 733 A.2d 197 (1999)." (Internal quotation marks omitted.) Lamkhantar v. Travisano, No. CV 03-48 08 35 S, 2009 WL 323718, at *1.
The court is also mindful, and agrees with Judge Bellis in Lamkhantar v. Travisano, No. CV 03-48 08 35 S, 2009 WL 323718, at *4 that cases where the jury has awarded some, but not all, of the claimed economic damages and no non-economic damages presents a less difficult picture in determining whether to award an additur, because in these cases, the juries have clearly rejected some of the plaintiff's medical treatment in their decision to also not make an award for noneconomic damages. Additionally, this court is well aware of cases where trial courts have refused additurs where the jury's award of economic damages was substantially less than the amount sought and where there had been evidence of overtreatment, exaggeration of injuries, and a prior injury. Indeed, such a scenario was presented in Santa Maria v. Klevecz, 70 Conn.App. 10, 800 A.2d 1186 (2002), where our Appellate Court affirmed the trial court's refusal of an additur where the jury awarded $2000 in economic damages only out of claimed economic damages of $11,394.71.
However, as the defendant in the present case correctly points out, the Supreme Court in the seminal case of Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000), determined that an award of only economic damages and no non-economic damages is no longer inadequate as a matter of law. Instead, when considering a challenge to a verdict, the court must carefully examine the evidence presented . (Emphasis added.) " Rather than decide that an award of only economic damages is inadequate as a matter of law, the jury's decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it. Accordingly, the trial judge should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue. That decision should be made not on the assumption that the jury made a mistake, but rather on the supposition that the jury did exactly what it intended to do." Id., 188-89. The court, in considering a challenge to a verdict, cannot substitute its own judgment for that of the jury but must instead determine whether the jury, based upon the evidence presented, could have reasonably arrived at the verdict it reached. Thus, this court must consider the evidence on damages in the light most favorable to the defendant. The jury was presented with the following evidence.
On April 26, 2012, the plaintiff was operating her vehicle in a westerly direction on Route 68 in Wallingford, Connecticut when she came to a stop in a line of traffic for a red traffic light at the intersection of said road and Northrup Road. At said time and place, the defendant, Dana M. Proto was operating her motor vehicle on Route 68 directly behind the plaintiff. On direct examination, the defendant testified that she was on her way to an interview, she got lost and had her GPS in her hand. At some point while she was lost, she came to a stop on the highway at a light, and while she was looking down at her GPS she was not watching where she was going and out of her peripheral vision she saw that the light turned green, she thought the traffic was moving forward, however the plaintiff was still stopped and when the defendant went forward, she struck the rear of the plaintiff's vehicle. The defendant admitted during her testimony that the accident was her fault and she apologized again, as she had done at the scene of the accident. The defendant described the impact as a " tap." She testified that no airbags went off. She observed no damage to her vehicle or the plaintiff's vehicle. The photographs admitted into evidence are consistent with the defendant's testimony that damage to the two vehicles was minimal. Photographs of the plaintiff's vehicle reveal scratches to the rear driver side bumper. The defendant testified that she observed the plaintiff at the accident scene, and talked to her, and that the plaintiff did not appear to be in any acute distress, and she was able to walk around the accident scene on her own. After the accident, both the defendant and plaintiff got back into their vehicles and drove away. The plaintiff was not transported to the hospital.
The plaintiff testified that she was stopped at a stop light at the intersection of Northrup Road and Route 68, in Wallingford. There was a bang on her car. She testified that she went forward a little bit. The plaintiff testified that she exited her vehicle and the defendant exited her vehicle. She testified that the defendant admitted that she was looking at her GPS and was not paying attention and that the accident was her fault and she apologized. The plaintiff complained of neck pain at the scene, however she refused transportation to a local hospital. She informed the police officer that she would follow up with medical treatment and evaluation. Pl. Ex. 1. The plaintiff testified that prior to the accident she did not have neck pain nor had she been treating with an orthopedic surgeon for neck pain. Indeed, no evidence was presented that the plaintiff had neck pain prior to the accident. The plaintiff further testified that when she left the scene of the accident she did go to work, however, when she arrived at work the pain got worse so she contacted her mother who works for Dr. Norman Kaplan at Connecticut Orthopedic Specialists, and she got her an appointment to see Dr. Kaplan that day.
The jury awarded the plaintiff $1,772 in economic damages. The interrogatories submitted to the jury and the evidence demonstrates that this amount is the cost of medical treatment the plaintiff received from Dr. Kaplan from April 26, 2012 through May 16, 2012. Jury Interrogatories, 8/12/2015, and Pl. Ex. 10. Although the jury did not award the plaintiff the entire amount of Dr. Kaplan's bill, which was $4,704, obviously, the jury found that the plaintiff did suffer an injury as a result of the accident and that, the medical treatment she received from Dr. Kaplan's office for that injury for the period from April 26, 2012 through May 16, 2012, was reasonable and necessary and related to the accident.
Among the treatment visits the plaintiff had with Dr. Kaplan, from April 26, 2012 through May 16, 2012, again, the cost of which was awarded by the jury, is Dr. Kaplan's initial evaluation on April 26, 2012, the day of the accident, in which he notes that his physical examination of the plaintiff revealed that " [n]eck motion was limited by 10% [and that] there was a lot of trapezius-rhomboid spasm ." (Emphasis added.) Pl. Ex. 3. He recommended physical therapy and an anti-inflammatory drug and a muscle relaxant. Dr. Kaplan also ordered x-rays of the plaintiff's neck which showed " severe old C5-6 and C6-7 spondylosis with foraminal encroachment and intervertebral space narrowing which [he attributed to] her injury years ago. What is new is spasm ." (Emphasis added.) Id. Dr. Kaplan also noted in his April 26, 2012 office note that the plaintiff " was hurt years ago but has been okay even though she hurt her neck at that point." (Emphasis added.) Id. There is no evidence to indicate that the plaintiff had neck pain prior to the accident, treated for a neck injury prior to the accident or was treating for her prior neck injury at the time of the accident.
Dr. Kaplan next saw the plaintiff on May 10, 2012, at which time he noted that the plaintiff was doing somewhat better but that she was still having a lot of cervical spasm, more on the right than on the left and that motion of the neck was still limited by 10%. He continued her with physical therapy, an anti-inflammatory drug, a muscle relaxant and a walking program. Also included in the bills awarded are five physical therapy visits for May 2, 4, 9, 10 and 16, 2012. Those physical therapy visits indicate that the plaintiff had treatment modalities that consisted of electrical stimulation therapy, hot or cold packs therapy, electrodes and manual therapy to relieve pain . (Emphasis added.) Id.
The court must also point out that the facts in Wichers are different from the facts in the present case. In Wichers, the plaintiff had been in two prior motor vehicle accidents, and at the time of the accident in question was under chiropractic treatment for pre-existing conditions. In reversing the trial court's award of additur, the Supreme Court held that " the jury could have accepted the evidence that it was advisable for the plaintiff to see his chiropractor more frequently than usual following the accident, but that the accident did not cause him actually to suffer greater pain than he already had experienced as a result of his pre-existing condition. Certainly, the jury reasonably could have found that the accident had not aggravated the plaintiff's condition, and that his pain was the same as what he had experienced before his accident with the defendant." Wichers v. Hatch, supra, 252 Conn. 189-90. Unlike the plaintiff in Wichers, although here, there is a documented prior neck injury, there is no evidence that the plaintiff had pain as a result of the prior injury or was treating for the prior neck injury at the time of the accident in question. In fact, Dr. Kaplan stated that the plaintiff " was hurt years ago but has been okay even though she hurt her neck at that point." Pl. Ex. 3.
In addition, " post- Wichers, trial courts have frequently granted additurs where for example, the treatment involved was for treatment of pain rather than pure diagnostic treatment." Lamkhantar v. Travisano, supra, No. CV 03-48 08 35 S, 2009 WL 323718, at *6. See Jones v. Gonzalez, Superior Court, judicial district of Hartford at Hartford, Docket No. 03 0825404, (January 17, 2006, Miller, J.) (jury award of $1,517.50, rejecting bill from orthopedic surgeon and $600.00 of the claimed physical therapy, noting that " some of [the medical treatment], most notably the $1,015.00 which the jury did award plaintiff toward the total cost of her physical therapy, was either palliative or curative in nature. In other words, a significant portion of the economic damages was for the treatment of injury, not for determination of whether or not plaintiff was injured ") (emphasis added); Calafiore v. Phelps, Superior Court, judicial district of Hartford at Hartford, Docket No. 04 0834639, (December 12, 2005, Miller, J.) (jury award of $4,953.58, compensating the plaintiff for bills from chiropractor, orthopedic surgeon, and physical therapist, and rejecting bills from two psychiatrists, for a " barium swallow" and for lost wages, in dog bite case where plaintiff claimed he was bitten and knocked to ground; the court granted the additur, noting that the jury found that the plaintiff underwent necessary, reasonable medical treatment); Grenier v. Dovitski, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 04 5000023, (December 12, 2005, Brunetti, J.) (jury award of $3,659.33 out of claimed $4,076.33, where expenses included treatment " for care associated with pain"); Showah v. Gardner, Superior Court, judicial district of Danbury at Danbury, Docket No. 99 0335563, (March 30, 2001, Adams, J.) (jury award of $9,791.51 of claimed $13,666.51"; [t]he jury awarded more than 70 percent of Showah's claimed medical bills as economic damages. Having found these damages as proximately caused by the Gardners' negligence, and recognizing that these were expenses, for the most part, if not entirely, addressed to the treatment of John Showah's back pain, the verdict awarding no non-economic damages for pain and suffering is not comprehensible, not logical and not in accordance with the law")." Lamkhantar v. Travisano, supra, No. CV 03-48 08 35 S, 2009 WL 323718, at *6.
Although the plaintiff had a similar documented prior injury to her neck resulting in degenerative changes, there was no evidence that the plaintiff had pain as a result of the prior neck injury or treated for the prior neck injury. The evidence did establish, however, that the April 26, 2012 collision caused plaintiff to suffer physical pain and discomfort. The plaintiff's medical visits for which the jury awarded economic damages were all to treat plaintiff's complaints of pain and discomfort. For those medical expenses to be properly attributable to defendant, as the jury found, then the defendant must have caused the pain that prompted plaintiff to incur those expenses; otherwise, the jury could not have found defendant liable for those expenses.
The jury was presented with evidence that the plaintiff's vehicle was struck from behind by the defendant's vehicle. The impact was an extremely mild one. The damage to plaintiff's car consisted of some scratches on the rear bumper. Plaintiff's testimony about her injuries was not particularly compelling, but it was not clearly incredible. Although the jury did not award the plaintiff most of the medical bills for which she sought treatment, the $1,772 which the jury did award plaintiff toward the total cost of her physical therapy, and treatment with Dr. Kaplan was either palliative or curative in nature. In other words, the portion of the economic damages awarded was for treatment of the injury, and for the pain plaintiff suffered as a result of the injury, not for determination of whether or not the plaintiff was injured. The verdict arrived at by the jury in the present matter tells us that the jury decided that the defendant was liable, that the plaintiff had reasonable and necessary medical expenses in the amount of $1,772 proximately caused by the defendant's negligence, which included the treatment for pain, and that while the treatment for pain was necessary and caused by the defendant's negligence, the plaintiff had no pain that was associated with that treatment. Under the evidence in this case, viewed in a light most favorable to the defendant, such a verdict is inconsistent as a matter of law. See Taft v. Zychowski, No. CV126033072S, 2015 WL 5136793, at *7. On the basis of the evidence presented in this matter, the court will award non-economic damages in the amount of $3,228.00, in addition to the economic damages awarded by the jury.
II
Motion to Set Aside Verdict and Motion For New Trial
The plaintiff moves the court to set aside the verdict and for a new trial on the basis of claimed errors of law. The plaintiff claims that the trial court erred in refusing to admit the defendant's answer, refused to allow the plaintiff to cross-examine the defendant on her refusal to accept responsibility for the accident when she answered the complaint, by precluding the testimony of Officer Evans, and by reprimanding plaintiff's counsel during closing argument.
" [A trial court may] 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." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 276, 828 A.2d 64 (2003). " The setting aside of a verdict because of an error of the trial court should be exercised with great caution and never done unless the reviewing court is satisfied entirely that the error is unmistakable and unquestionably must have been harmful." Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn.App. 401, 416, 857 A.2d 936 (2004). " A jury verdict should not be disturbed unless it is against [the weight of the] evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption or partiality . . . [T]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable." (Internal quotation marks omitted.) Kervick v. Silver Hill Hospital, 309 Conn. 688, 717, 72 A.3d 1044 (2013).
" A trial court's ruling on the admissibility of evidence is entitled to great deference . . . [T]he 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 . . . Moreover, evidentiary rulings will be overturned on appeal only where there was . . . a showing by the defendant of substantial prejudice or injustice." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 109, 956 A.2d 1145 (2008).
A
Prior Inconsistent Statement/Cross-Examination
The plaintiff argues that this court erred in refusing to allow her to admit the defendant's answer in which defendant denied liability when the defendant admitted during her testimony at trial, that she was at fault. " It is axiomatic that for a statement to be admissible as a prior inconsistent statement it must be inconsistent with the testimony of the party at trial . . . It is the province of the trial court to determine whether a prior statement is in fact inconsistent with statements advanced at trial . . . The inconsistent statement must also be 'substantial and related to a material matter.' . . . As in all evidentiary matters, the trial court has broad discretion in passing on the admissibility of prior inconsistent statements . . . (Citations omitted.) Drew v. K-Mart Corp., 37 Conn.App. 239, 249, 655 A.2d 806 (1995). In the present case, the defendant, during her testimony flat out admitted liability for the accident. In addition, she testified that at the scene she admitted the accident was her fault and she apologized at the scene and she apologized again during her testimony. Moreover, the police report, which was submitted into evidence, indicates that the defendant stated to the officer that " [s]he looked down for a second at her GPS and when looking ahead, realized [the plaintiff's vehicle] was stopped in front of her and she mistakenly struck the rear bumper of [the plaintiff's vehicle]." Pl. Ex. 1. This court determined that while the defendant had previously in her answer denied liability, and on the stand admitted liability, the admission by the plaintiff of the defendant's answer was nothing more but to inflame, prejudice and confuse the jury. The court found the admission of the answer irrelevant and prejudicial and thus precluded the admission of same. The denial of the allegations of negligence contained in the answer added no probative value as to any of the issues in the case and was clearly irrelevant, particularly since there was no bad faith claim made by the plaintiff. Accordingly, this court did not abuse its discretion in precluding such evidence. Furthermore, the plaintiff was not harmed by the preclusion of such evidence as the jury found in her favor.
Likewise, the plaintiff claims that the court impermissibly restricted her from cross-examining the defendant on the defendant's denial of responsibility contained in her answer. " The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion . . . Furthermore, [t]o establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial . . . In order to establish reversible error on an evidentiary impropriety, however, the defendant must prove both an abuse of discretion and a harm that resulted from such abuse." (Internal quotation marks omitted.) Kosiorek v. Smigelski, 138 Conn.App. 695, 715-16, 54 A.3d 564 (2012).
" In determining whether a defendant's right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial." (Internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 219-20, 690 A.2d 1370 (1997). " In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." (Internal quotation marks omitted, emphasis added.) State v. Beliveau, 237 Conn. 576, 585, 678 A.2d 924 (1996). On the other hand, the confrontation clause does not give the defendant the right to engage in unrestricted cross-examination. " The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable." (Internal quotation marks omitted.) State v. Kelley, 229 Conn. 557, 562, 643 A.2d 854 (1994). In other words, the right to confront witnesses does not imply a right to ask any question that will simply make the witness look bad, independent of the propensity of that question to shed light upon the issue of the witness's credibility. See, also State v. Valentine, 255 Conn. 61, 71, 762 A.2d 1278 (2000).
The issue before the jury was whether the defendant was negligent. She admitted on the stand and to the police officer at the scene of the accident that she was responsible for the accident. The court found such cross-examination irrelevant and prejudicial. Accordingly, the court again, for the same aforementioned reasons would not allow such cross-examination as it had determined, in light of the defendant's admission of liability on the stand, and as stated in the police report, plaintiff's sole purpose for such cross-examination was not to impeach the defendant, but rather to make her look bad and to inflame the jury. Accordingly, the court did not abuse its discretion in precluding such cross-examination. In addition, the preclusion of such cross-examination was not harmful to the plaintiff since the jury found in her favor.
B
Preclusion of Officer Evans Testimony
The Judicial Branch's civil jury trial management order provides in relevant part. " Counsel for a plaintiff or intervening plaintiff or a self-represented plaintiff must bring an updated pretrial memorandum (JD-ES-47) to the trial management conference. A joint trial management report must be filed with the court before the scheduled trial management conference . . . The trial management report must include the following: A witness list with an identifier for each witness (party, expert, fact witness, document custodian) including any anticipated scheduling problems. Witnesses not listed will not be permitted to testify at trial, except for good cause shown or if the witness will provide rebuttal evidence . (Emphasis added.) Civil Jury Trial Management Order, 2011.
The plaintiff attempted to call Officer Evans to testify during the plaintiff's case in chief. The defendant objected on grounds that Officer Evans was not listed on the civil jury trial management report as a witness in accordance with the civil jury trial management order. Plaintiff's counsel stated that he erroneously forgot to list Officer Evans on the trial management order. After listening to argument, this court determined that plaintiff's counsel did not demonstrate good cause for his error, and in addition, the officer's testimony would have been cumulative since plaintiff's counsel conceded that Officer Evans was going to testify in accordance with the police report which was already marked into evidence as a full exhibit. Officer Evans testimony would have added nothing more for the determination of the issues in this case. This court agrees with the defendant that such testimony would have instead lengthened the trial and exhaust the time and resources of this court. In addition, precluding the officer's testimony resulted in no prejudice to the plaintiff because everything that Officer Evans would have testified to was contained in his police report which was admitted as a full exhibit. Accordingly, this court appropriately acted within its discretion in precluding Officer's Evans testimony. For the foregoing reasons, the plaintiff's motion to set aside the verdict and for a new trial on this ground is denied.
C
Court's Admonition to Plaintiff's Counsel During Closing Argument
At the close of evidence, defendant's counsel made an oral motion in limine requesting this court to order plaintiff's counsel to refrain from commenting about defense counsel not admitting liability. Defendant's counsel argued in support of his oral motion, that since the plaintiff has the burden of proof, to suggest or argue to the jury that defendant's counsel has a burden to stipulate to liability or that he refused to take responsibility for the accident would be completely improper, rather than requiring plaintiff to prove her case.
This court granted the defendant's motion in limine and ordered that plaintiff's counsel would be allowed to argue the facts of the case, as supported by the evidence, to the jury. However, the court further ordered that plaintiff's counsel would only be allowed to rebut defendant's counsel's arguments on liability if such arguments were raised by defense counsel during his closing argument. During closing argument, plaintiff's counsel violated the court's order and the court admonished plaintiff's counsel to comply with the court's order.
" [T]he trial court is invested with a large discretion with regard to the arguments of counsel; Tomczuk v. Alvarez, 184 Conn. 182, 193, 439 A.2d 935 (1981); Levin v. Ritson, 179 Conn. 223, 226, 425 A.2d 1279 (1979); see also State v. Herring, 210 Conn. 78, 102, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 579 (1989) . . ." (Internal quotation marks omitted.) Bartholomew v. Schweizer, 217 Conn. 671, 678, 587 A.2d 1014 (1991). " [W]hile its action is subject to review and control, [the Appellate Court] can interfere only where the discretion was clearly exceeded or abused to the manifest injury of some party." (Internal quotation marks omitted.) Tomczuk v. Alvarez, supra . " In fact, the court must allow [c]ounsel . . . 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 . . ." State v. Plaza, 23 Conn.App. 543, 553, 583 A.2d 925 (1990), cert. denied, 217 Conn. 811, 587 A.2d 153 (1991), quoting State v. Laudano, 74 Conn. 638, 646, 51 A. 860 (1902).
" [I]n argument before the jury, counsel may comment upon facts properly in evidence and upon reasonable inferences drawn therefrom. State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977). It is, thus, axiomatic that the advocate may also entreat the jury to draw reasonable inferences and conclusions from the evidence." Skrzypiec v. Noonan, 228 Conn. 1, 15-16, 633 A.2d 716 (1993).
However, " [t]he trial judge may be under a duty to reprimand counsel [during closing argument] in order to protect the rights of litigants." 94 A.L.R.2d 826 (Originally published in 1964). " The question [for the court] 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.) Id., 16.
" Comments of attorneys that are proscribed in civil . . . 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 ." (Emphasis added.) State v. Singh, 259 Conn. 693, 702, 793 A.2d 226 (2002).
" In addressing the issue here, [the court considers] the limits of advocacy as the trial and jury system achieves resolution of disputes. Counsel's arguments are expected to be passionate, for indeed it is the duty of a trial attorney to advocate." Jackowitz v. Lang, 408 N.J.Super. 495, 505, 975 A.2d 531 (2009). At the same time, however, arguments should be fair and courteous, and, as this court previously noted, grounded in the evidence. Such arguments should be " free from any potential to cause injustice, such as unfair and prejudicial appeals to emotion and any insinuations of bad faith on the part of defendants who sought to resolve validly contested claims against them." Id. Suggesting that the defendant " refuses to take responsibility" for the accident is inappropriate. Such arguments suggest that the defendant should be punished for not accepting responsibility for her role in the accident, and suggest the need to punish the defendant who elects to go to trial to resolve a validly contested claim. See id.
Thus, this court agreed that to permit plaintiff's counsel during closing argument to comment on defendant's counsel's failure to stipulate and or admit to liability or his refusal to take responsibility for the accident would have been improper and prejudicial. It was therefore appropriate for this court, when plaintiff's counsel violated the court's order during closing argument, to remind counsel of the court's ruling and to refrain from such improper comment. " [T]he trial judge [is] vested with power and authority to exercise a sound discretion of supervision and direction in the trial of cases to the end that order might be secured, and disorder, confusion, [prejudice] and waste of time avoided." 94 A.L.R.2d 826 (Originally published in 1964). Accordingly, the court's admonishment to plaintiff's counsel was well within the court's authority and did not in any way prejudice plaintiff's case such that a new trial is warranted. Accordingly, plaintiff's motion to set aside the verdict and for a new trial on this ground is denied.
III
Motions for Sanctions
(i)
As to Defense Counsel
Pursuant to the provisions of Practice Book Section 10-5, the plaintiff seeks sanctions against defense counsel for denying liability in this case for two years even after as claimed by plaintiff's counsel, it was clear from the very beginning of this litigation that his client was at fault, and had apologized to the plaintiff for striking the rear of the plaintiff's vehicle while the plaintiff was at a complete stop. The plaintiff claims that the defendant further admitted to the investigating police officer that she was looking down at her GPS device in her lap when she proceeded forward and struck the rear of the plaintiff's car, and despite knowing that his client struck the rear of the plaintiff's vehicle at the alleged time and place set forth in the complaint, defense counsel filed an answer with the court indicating that he had insufficient knowledge with which to respond to the allegation that the plaintiff was operating her vehicle at said time and place. The plaintiff further claims that defense counsel also indicated in defendant's answer that defendant had insufficient knowledge to determine whether the defendant's vehicle struck the rear of the plaintiff's vehicle. Finally, the plaintiff further claims that the defendant denied all allegations with respect to negligence, and failed to file an amended answer even after his client testified under oath about these issues at her discovery deposition and later admitted fault for the subject accident while on the stand at the time of trial. Plaintiff's counsel argues that instead, defendant's counsel let the original answer stand, and required the plaintiff to submit evidence with respect to issues which should have been admitted, thereby prolonging the trial and creating additional legal issues for the jury to decide.
The defendant's counsel has objected to the motion for sanctions and has, in addition to his objection, filed a motion for sanctions against plaintiff's counsel. In support of his objection defense counsel argues that a trial by jury is a fundamental right, and it is the plaintiff's burden of proof regarding negligence, and it was therefore proper for the defendant to deny the allegations contained in the complaint regarding liability. Defense counsel argues that the responses contained in the defendant's answer to which the plaintiff challenged were all proper. More specifically, the plaintiff challenged the defendant's responses to the plaintiff's allegations contained in paragraphs 3, 5 and 6 of the complaint which essentially go to liability. Paragraph 3 of the complaint alleges that on April 26, 2012, the plaintiff was operating her motor vehicle in a westerly direction on Route 68 in Wallingford, Connecticut, when she came to a stop in a line of traffic for a red traffic light at the intersection of said road and Northrup Road. The defendant in her answer responded that as to the allegations contained in paragraph 3, she has insufficient information or knowledge upon which to form a belief and therefore, leaves the plaintiff to her proof. The defendant claims that the reasons the plaintiff came to a stop, namely that she stopped for a red traffic light, could not be precisely known to the defendant at the time the answer was filed, and therefore it was proper for the defendant to leave the plaintiff to her proof. However, this court notes that the police report which was prepared a year earlier, contains the plaintiff's statement to the police officer that she was stopped at a red traffic light. In addition, consistent with the statement she gave to the police officer, the plaintiff testified in her deposition, taken in August 2014, that she was stopped at a red traffic light. Also contained in the police report is the defendant's statement which indicates that " she was traveling westbound on Route 68 and was positioned in the right, straight thru travel lane and had stopped for the red traffic light at the intersection, with Northrup Rd." (Emphasis added.) Pl. Ex. 1. In addition, the defendant admits in her answer that she was traveling directly behind the plaintiff. The court is not totally persuaded by defense counsel's argument that the reason the plaintiff came to a stop could not be precisely known to the defendant at the time the answer was filed. However, given that the parties have a constitutional right to have disputed issues determined by a jury, and given the totality of the circumstances, as is more fully discussed infra, the court cannot conclude that defendant's responses and denials were made in bad faith. The court therefore cannot conclude that sanctions are warranted.
Paragraph 5 of the plaintiff's complaint alleges that as the plaintiff was stopped in traffic, her vehicle was suddenly and violently struck from behind by the defendant's vehicle, thereby causing her serious and painful injuries. The defendant responded to this allegation again by stating that she has insufficient information or knowledge upon which to form a belief and therefore, leaves the Plaintiff to her proof. The defendant denies that the collision occurred, " suddenly and violently." The defendant argues that her response to paragraph 5 was appropriate since the nature and extent of the collision and the nature of the impact and its affect on the plaintiff was hotly contested. The court agrees that, based upon the evidence submitted during the course of the trial, the nature of the impact was a hotly contested issue in the case. The plaintiff alleged in her complaint that the impact was sudden and violent and caused her serious injuries. The defendant denied that the impact was sudden and violent. Moreover, although the police report indicates that the plaintiff claimed she was suddenly struck from behind it does not mention that she claimed she was violently struck. The court is therefore persuaded that the defendant had a good faith basis for responding to paragraph 5 of the complaint as she did.
Plaintiff's allegations of negligence set forth in paragraph 6 of the complaint include the following. That the defendant (a) failed to keep a proper lookout; (b) she was following too closely in violation of General Statutes § 14-240; (c) she was texting or talking on her cell phone in violation of General Statutes § 14-296aa(b); (d) she failed to apply her brakes in a timely manner so as to avoid colliding with the rear of the plaintiff's stopped vehicle; (e) she was driving too fast, given the weather, road and traffic conditions, in violation of General Statutes § 14-218a; (f) she failed to keep her vehicle under proper control; and (g) she failed to swerve in order to avoid striking the plaintiff's vehicle. The defendant denied all of the allegations in paragraph 6. Defendant's counsel argues that several of the allegations of negligence contained in paragraph 6 were meritless. The defendant is correct that there was no evidence to prove several of the allegations contained in paragraph 6, and in fact, the court did not charge on paragraphs 6(c)(e) and (g) to which the plaintiff did not object. In addition, the defendant claims that, despite what the defendant testified to, it was still up to the jury to determine whether the defendant acted reasonably under the circumstances.
" Recovery of damages in negligence requires proof by a fair preponderance of the evidence that the actor owed a duty of care to the victim, which was breached by the actor's failure to meet the standard of care arising therefrom and that the breach was the proximate cause of actual harm suffered by the victim." Anderson v. Whitten, 100 Conn.App. 730, 734, 918 A.2d 1056 (2007). Given the very moderate impact of the collision, and given the jury's award of economic damages, there was a real dispute as to the nature and impact of the accident and whether, given the circumstances the defendant acted reasonably. Accordingly, the defendant's responses in her answer, notwithstanding her testimony at trial, was appropriate given the nature of the disputed issues in this case.
Practice Book § 10-5 provides: " Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the judicial authority, as may have been necessarily incurred by the other party by reason of such untrue pleading; provided that no expenses for counsel fees shall be taxed exceeding $500 for any one offense. Such expenses shall be taxed against the offending party whether that party prevails in the action or not."
" As a procedural matter, before imposing any such sanctions, the court must afford the sanctioned party or attorney a proper hearing on the . . . motion for sanctions . . . There must be fair notice and an opportunity for a hearing on the record . . . As a substantive matter, [t]his state follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys fee from the loser . . . That rule does not apply, however where the opposing party has acted in bad faith . . . This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation . . . It applies both to the party and his counsel . . . Moreover, the trial court must make a specific finding as to whether counsel's [or a party's] conduct . . . constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court's inherent powers to impose attorneys fees for engaging in bad faith litigation practices." (Internal quotation marks omitted.) McKeon v. Lennon, 131 Conn.App. 585, 602-03, 27 A.3d 436, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011).
" The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys . . . The court also has the inherent power . . . to discipline members of the bar, and to provide for the imposition of reasonable sanctions to compel the observance of its rules . . . (Citations omitted; internal quotation marks omitted.) Thalheim v. Greenwich, 256 Conn. 628, 653, 775 A.2d 947 (2001).
The court should " regard a sanctions order against an attorney as having both a compensatory and a deterrent purpose. It is designed both to compensate the adversarial side for its expenses in defending against the bad faith litigation conduct, and to deter the offending attorney from repeating his misconduct by requiring him to make that compensation." CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 402, 685 A.2d 1108 (1996), overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999).
" [T]he task of determining whether sanctions should be imposed is inherently fact bound, and requires carefully circumscribed discretion to be exercised by the trial court . . . Good faith pleading must be judged in the light of all the circumstances existing at the time the pleading was filed . . . Good faith has been defined variously as [h]onesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry . . . or being faithful to one's duty or obligation.
" Rule 3.1 of the Rules of Professional Conduct provides, in relevant part: 'A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous . . .' The commentary to that section provides that an action is frivolous if the lawyer cannot make a good faith argument regarding the merits of the action or for an extension, modification or reversal of existing law. Rule 3.3 of the Rules of Professional Conduct states that '[a] lawyer shall not knowingly . . . [m]ake a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer . . .'" Wise v. City of New London, No. CV116008564, 2012 WL 1219735, at *2.
" The sanctions of Practice Book § 10-5 apply when a denial made without reasonable cause and found to be untrue causes the opponent to have incurred 'reasonable expenses' by reason of the untrue pleading. In addition to such expenses, counsel fees shall be taxed." Herrington v. Sweet Briar, Ltd., Superior Court, judicial district of Fairfield, Docket No. CV-095007173-S (July 13, 2010, Danaher, J.) (50 Conn. L. Rptr. 284).
" [A]ttorneys must feel free to advocate vigorously on behalf of their clients." Wise v. New London, supra, Superior Court, Docket No. CV-116008564-S. The court is similarly aware of the " potential for chilling legitimate but difficult advocacy" and, consequently, caution must be used when sanctioning attorney conduct. See Brunswick v. Statewide Grievance Committee, 103 Conn.App. 601, 620, 931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007). However, " the parameters of zealous advocacy are not without limit." State v. Morgan, 70 Conn.App. 255, 289, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002).
As this court previously noted, Practice Book 10-5 states that " any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, . . ." Id. Given the circumstances of this case and the nature and extent of the hotly contested issues which required a jury determination, the court cannot conclude that the defendant's responses and denials contained in her answer were made in bad faith or without reasonable cause.
(ii)
Motion for Sanctions As To Plaintiff's Counsel
The defendant in its objection to the plaintiff's motion for sanctions has also moved for sanctions against plaintiff's counsel. Defendant's counsel argues that plaintiff's counsel submitted bills to the jury that had no reasonable basis and no relationship to the subject motor vehicle accident. Defense counsel argues that the plaintiff submitted bills for physical exams, a sick visit for a sore throat, and counseling that plaintiff conceded during cross-examination she did not attend as a result of the accident. Defense counsel further argues that the plaintiff also testified that she was not aware that the bills were being claimed as part of the subject accident. Defense counsel claims that the bills were submitted without any reasonable basis. Defense counsel further argues that plaintiff's counsel introduced counseling bills that added over an additional $3,000 in medical specials. He argues that plaintiff was very clear in her deposition that she had a prior anxiety condition and though her symptoms increased temporarily, she returned to baseline a few days later though she continued on with her treatment.
The plaintiff did submit Pro Health medical reports and bills for medical maintenance visits. Plaintiff admitted that her visits to Pro Health was for a physical and not for her neck injury, however the reports indicate that plaintiff's neck was examined and that it was normal. The last visit to Pro Health was not specifically due to the neck, but was because the plaintiff had a sinus infection. The Pro Health records in February 2013 mention the plaintiff's anxiety and that her anxiety was not well controlled and that she should get a " fresh set of eyes" regarding this anxiety condition. However, the records do not indicate whether this assessment of plaintiff's anxiety condition was as a result of the accident.
As to the counseling reports and bills, the plaintiff acknowledged during her testimony that she had a pre-existing anxiety condition and that she had a history of panic attacks. Plaintiff acknowledged that she always had anxiety while driving and also complained a month before the accident that she was anxious while driving. Plaintiff was also on medication due to her anxiety prior to the accident. Plaintiff testified that she did mention the accident to her counselors, and that she did have a temporary increase in anxiety immediately after the accident but that it went away. The plaintiff acknowledged on cross-examination that at the time of the accident she had an increase in anxiety but it went away after the first couple of days and that treatment thereafter was not related to the accident. Plaintiff testified that she was not aware that she was claiming bills for Behavioral Health or Spectrum Psychiatric, and she acknowledged that those bills were not related to the accident.
On redirect the plaintiff testified that she had to change medication to help her with her anxiety when driving. Also on redirect, plaintiff's counsel pointed out references in the reports, specifically the Behavioral Health and Spectrum Psychiatric records, to plaintiff's anxiety condition after the accident and that there was a change in the plaintiff's anxiety medication after the accident. In addition, the July 18, 2012 report from Behavioral Health, three months after the accident, makes reference to the accident and notes that the plaintiff had been in prior fender benders but that she was still able to drive, however after this accident, the plaintiff had anxiety when driving.
The Pro Health reports, however, are a closer call. It is clear that the reports do not contain any reference to the accident, and that the plaintiff attended the Pro Health medical examinations for reasons other than the accident. As previously noted, the reports do indicate that the plaintiff's neck was examined and found to be normal, but there is no specific reference in the reports that the plaintiff sought treatment at Pro Health specifically for her neck injury. However, given that there are references in the reports to the plaintiff's neck which was in fact examined, and, given that the Behavioral Health and Spectrum Psychiatric reports do specifically reference the accident, and that the plaintiff's anxiety condition appears to have temporarily changed thereafter, the court will not issue sanctions against plaintiff's counsel pursuant to § 10-5. In addition, the jury, decided that these bills were not related to the accident, and as such, did not award the plaintiff any of these bills.
After having carefully reviewed the pleadings and evidence in this case, this court concludes that both counsel engaged in vigorous advocacy on behalf of their clients, and to some extent, pushed the envelope, however, the court, given the hotly disputed issues in this case, and the fundamental right to have those disputed issues determined by a jury, cannot conclude that counsels' claims were not legitimate or that either counsel acted in bad faith. Accordingly, both counsels' motions for sanctions are denied.
CONCLUSION
For the foregoing reasons, the plaintiff's motion to set aside the verdict and for a new trial on grounds that the court erred in its evidentiary rulings, and admonishment to counsel is denied. The motions for sanctions are denied. The plaintiff's motion for additur is granted. An additur of $3,228 in non-economic damages is ordered, resulting in a total award of $5,000, representing $1,772 in economic damages and $3,228 in non-economic damages. The parties have twenty days from this date to file their written acceptance or rejection of the additur with the clerk's office. If the additur is accepted, judgment will enter for the plaintiff in the amount of $5,000, plus taxable costs. If the additur is not timely accepted by both parties, the verdict is set aside and a new trial is ordered on the issue as to damages only.