Opinion
FSTCV126013562S
01-03-2019
Judith KISSEL v. CENTER FOR WOMEN’S HEALTH P.C.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re POST-VERDICT MOTIONS
Not including filings that were memoranda in support of motions or objections, and not including exhibits supporting the parties’ respective arguments, the post-verdict motions and objections that are before the court appear to be docket entries # 396, # 399, # 402, # 403, # 404, # 424, # 426, # 429 and # 430. The court also was asked to revisit and consider the motions for directed verdict that had been presented to the court during the course of the trial.
POVODATOR, J.T.R.
Background
This action originally was commenced as a medical malpractice action, directed to the named defendant and a provider of acupuncture services at the named defendant’s facility, Dr. Wang. Product liability claims were later asserted against the distributor of a device that had been used by Dr. Wang in the course of treatment— the distributor was brought into the proceeding initially by defendant Wang for indemnification and then the plaintiff amended her complaint to assert a product liability claim for her injuries. After a trial, the jury found for the plaintiff on both theories of liability.
The core events are not in dispute. It was suggested to the plaintiff that she undergo acupuncture treatments, and she went to Doctor Wang for such a treatment. Dr. Wang worked within the offices of the Center for Women’s Health, with an affiliation that was initially in dispute. (The plaintiff had been a long-time patient at the Center.) For most of the life of the case, there was an issue as to whether the Center would acknowledge that Dr. Wang had been acting as an actual or apparent agent such that there would be respondeat superior liability. Prior to submission of the case to the jury, the Center acknowledged that it would be bound by any liability determination directed to Dr. Wang.
In 2013, defendant Wang had filed a cross complaint directed to defendant Center. The cross complaint was withdrawn/became moot when the Center acknowledged vicarious liability (to the extent defendant Wang might be found liable).
In addition to inserting acupuncture needles, Dr. Wang placed a heat lamp in some proximity to the plaintiff’s foot. After having inserted all of the needles and having placed the lamp in what he deemed to have been an appropriate location/orientation, he left the room for approximately five minutes (his standard practice). He claims that he was within earshot of the treatment room in which the plaintiff was located— he claimed to have heard nothing prior to his return to the treatment room, whereas the plaintiff claims to have called out without any response. When Dr. Wang returned to the room several minutes later, the head of the heat lamp was resting against the plaintiff’s foot, having caused serious injuries to her foot. He removed the lamp from her foot, and he (and the principal of the Center) transported the plaintiff to a hospital for treatment.
One of the core issues in this case was the precise mechanism/manner in which the head of the lamp came into contact with the plaintiff’s foot. No one observed whether the head of the lamp had descended (there was a joint allowing the head to me moved up and down) or whether the entire lamp assembly had tipped over. The plaintiff was unaware of what had happened, and when Dr. Wang entered the room, he did not notice or observe whether the lamp assembly had tipped over or whether the arm supporting the lamp head had descended. There was extensive testimony concerning the propensity of the head to descend on its own or with some level of external force having been applied (other than force intended to raise or lower the lamp head)— sometimes informally referred to as jiggling and referred to by experts as excitation or perturbation. There was substantial testimony concerning the effect of bumping or shaking the vertical post to which the pivoting support for the head of the lamp was attached.
The action was commenced in April 2012. In December of that year, defendant Wang sought to implead the distributor of the heat lamp that caused the injury to the plaintiff giving rise to this proceeding. After the motion was granted, and a third party complaint served on the product distributor, the plaintiff amended her complaint so as to assert a direct claim against the product distributor, defendant Health Body World Supply Inc. (generally referred to as WABBO). Early in the trial, defendant Wang withdrew his complaint directed to defendant WABBO.
As submitted to the jury, then, the case involved a claim of medical malpractice (acupuncture) directed to defendants Wang and Center, and a claim of product liability directed to defendant WABBO. The jury awarded the plaintiff $ 1 million as to each of the claim/theories of liability presented. With respect to the medical malpractice claim, the jury determined that the plaintiff was not comparatively negligent. With respect to the product liability claim, the jury determined that the plaintiff was not comparatively responsible for her injuries, but pursuant to General Statutes § 52-572o , the jury determined that Dr. Wang, as a party to this action, had been 20% responsible. The plaintiff had not made any claim for economic damages, so the full award was for noneconomic damages.
There is no dispute that for purposes of the motions before the court (if at all), the plaintiff was injured as a result of her foot coming into contact with a heat lamp that had been placed in general proximity to her foot, by Dr. Wang, as part of his acupuncture treatment. (The nature of that proximity— the actual distance from the heat lamp to her foot— very much was in issue during the case.) The primary focus of the motions for directed verdict and for judgment notwithstanding the verdict was on causation, particularly with respect to the medical malpractice claim and the general requirement of expert testimony in that regard. (Defendant WABBO made similar arguments with respect to the product liability claim.) The medical defendants dispute that there was proof of a breach of the appropriate standard of care. There also are claims that the verdict was excessive.
There actually were two "waves" of motions. The first set of motions and objections were filed shortly after the verdict was accepted. After argument on the first set of motions and objections, there was a second round of filings. The court was asked to consider the then-recently issued decision in Kuehl v. Koskoff, 182 Conn.App. 505, 190 A.3d 82; cert. denied, 330 Conn. 919, 194 A.3d 289 (2018), as it pertained to experts and causation.
A more "unusual" post-verdict topic in the second set of filings were motions to reargue two motions to dismiss that had been denied almost 6 years prior to the filing of the motions to reargue (# 105.86, filed on September 6, 2012, denying # 105.00 and # 109.00). The motions to reargue relied upon the then-recently issued decision in Peters v. United Community and Family Services, Inc., 182 Conn.App. 688, 191 A.3d 195 (2018). The court heard further argument on the second set of motions on September 6, 2018.
Discussion
1. Motions to Reargue
A. Procedural Issues
Although the motion to reargue relating to Peters (# 426.00) was filed relatively late in the post-verdict motion process (June 26, 2018), the court believes that it should be addressed at the outset. If the medical malpractice component of this proceeding should be (should have been) dismissed, even at this late juncture, then potentially there would be no need to address the merits of the other post-verdict motions filed by the medical malpractice defendants. Indeed, although generally framed in terms of subject matter jurisdiction (and the motions in question related to aspects of personal jurisdiction/process), the general rule is that when jurisdictional challenges are raised, they must be addressed first, prior to proceeding with other aspects of the dispute between the affected parties. Honan v. Dimyan, 85 Conn.App. 66, 69, 856 A.2d 463 (2004). In Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297-98, 441 A.2d 183, 184 (1982), the principle appears to have been applied in the context of claimed personal jurisdictional defects (a concern discussed in a dissenting opinion).
Technically, the motion was designated a motion for permission to file a motion to reargue/reconsider— to be discussed below.
During the second round of arguments, the parties urged the court not to adopt such an approach, but to consider the substantive issues even if the court were to conclude that the motions to dismiss should be granted at this late date.
The record reflects that in 2012, both of the medical malpractice defendants filed motions to dismiss, predicated on the absence of an opinion letter from a similar healthcare provider being attached to the complaint as served and filed, as required by General Statutes § 52-190a. In resisting the motions, the plaintiff had moved to amend so as to submit a letter claimed to have been in possession of counsel when the suit was commenced but which inadvertently had been omitted. In addition to the letter itself, there was an affidavit stating these supporting facts.
In denying both motions, the court concluded that the inadvertent failure to attach an existing opinion letter to the complaint was a curable defect, which had been cured by an amended complaint to which was attached a seemingly-adequate opinion letter. The court identified an absence of any clearly-controlling appellate authority and a division among trial courts on the issue. The court concluded that the circumstances warranted denial of the motions. (Although it had been contested, the court accepted the evidence that had been provided (via affidavit) relating to the existence of the opinion letter, at the time of service of process on the defendants.) At the time of the earlier decision, the sole relevant appellate authority was Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 585, 966 A.2d 813, cert, denied, 292 Conn. 911, 973 A.2d 661 (2009), which contained language— disputed as to whether it was dictum or controlling— relating to the propriety of belated filing of an already-existing opinion letter, and it was the significance of that language that was subject to disagreement by trial courts.
In Peters, the decision that was the basis for seeking reargument or reconsideration, the Appellate Court held that corrective action relating to an opinion letter from a similar healthcare provider had to be undertaken within the applicable statute of limitations.
The underlying events, according to the operative complaint, took place on April 22, 2010. On June 28, 2012, the plaintiff filed a request for leave to amend, seeking to correct the inadvertent omission of the letter, accompanied by an affidavit attesting to the existence of the letter at the time of service of process on the parties. Putting aside the existence of an objection to the request to amend (# 114.00) which was not overruled until September 6, 2012 (# 105.86), the request to amend was filed substantially more than two years after the date of the occurrence. (There does not appear to have been a request or a statutory ninety-day extension of time, pursuant to § 52-190a.) There is no claim that the corrective action taken by the plaintiff occurred prior to expiration of the statute of limitations.
Before addressing the actual merits of the substantive legal contention, the court needs to address two procedural issues: The propriety of addressing the substantive merits of reliance on Peters in the context of a motion for permission to file a motion to reargue, and whether it is proper for the court to address the motions to dismiss some six years after the motions originally were denied.
At the outset of argument on September 6, 2018, the court apologized for a probable lack of clarity when it had scheduled argument— initially for an earlier date, but eventually scheduled for September 6 in order to accommodate schedules of the parties. The court made it clear at the outset that it was intending to address (entertain) the merits of the argument relating to Peters, and inquired of counsel for the plaintiff as to whether he was prepared to argue the merits of that issue. The court offered to reschedule argument on that issue for approximately four weeks later, in order to allow counsel an opportunity to prepare for oral argument and/or submit a written memorandum. Counsel properly pointed out that the motion— as captioned/framed— was two steps removed from the substantive argument, as it was a motion for permission to file a motion, which seemingly would initially require granting permission, followed by an order allowing argument on the merits, before reaching the merits. The court recognized the technical issue, but indicated that it was important to address the merits in a timely fashion— but again, specifically offered counsel an opportunity to prepare for argument and/or an opportunity to submit a written opposition. Ultimately, counsel registered his objections to the procedures being followed, but indicated that he was prepared to argue, and did not wish to have an opportunity to submit any written opposition. On that basis, the court entertained substantive argument as to applicability of Peters .
An additional issue is whether the undersigned can entertain a motion to reconsider or reargue a decision made by another judge. The judge who had decided the motions in a thorough decision addressing the state of law in 2012, now is unavailable to reconsider that decision (recusal). The undersigned, as the judge who conducted the trial and most of the proceedings leading up to the trial, is the "obvious" candidate to step into the role of deciding this latest motion. To the extent that the motion is predicated on Peters as establishing controlling law, the issue does not require any reevaluation of the rationale of the earlier decision, but rather consideration of whether Peters now requires a contrary decision, as a matter of law. (Ordinarily, a motion to reargue is filed within days, not years, of the underlying decision, Practice Book § 11-12, such that there is minimal likelihood of a potentially-material change in the legal landscape.)
A somewhat more difficult question is whether some six years later, and especially after an intervening trial on the merits, the motion to dismiss can be revisited— especially in the trial court. There seems to be no identified impediment to the defendants raising the issue on appeal— notwithstanding the earlier denial of the motions to dismiss, Peters is claimed to represent the current accurate state of the law, and no reason has been identified why it would not be applicable prior to final judgment in this case, if in fact that decision controls the jurisdictional issue first raised more than six years ago.
The court recognizes that the concept of "law of the case" could be perceived as a "hurdle" to the court addressing this issue. The law of the case; however, is intended to be a flexible doctrine, not rigidly applied, recognizing that the court should not elevate deference to a prior decision over the goal of reaching the proper decision. (Res judicata would not apply, since no judgment has been entered; cf. Wells Fargo Bank, N.A., Trustee v. Tarzia (2019), where a prior ruling had been the subject of an appeal and therefore was given res judicata effect.
In City of Bridgeport v. Triple 9 of Broad St., Inc., 87 Conn.App. 735, 741, 867 A.2d 851, 855 (2005), the court discussed the interplay between the flexibility of the law of the case doctrine— generally a doctrine articulated in terms of interlocutory rulings— and a court’s general ability to revisit final decisions, including judgments. To the extent that a denial of a motion to dismiss is interlocutory in nature— it is not a judgment— the law of the case would be an appropriate framework. Even if not characterized as interlocutory, the court would still have the ability to revisit and especially correct any errors that may be identified.
The court’s ability to reconsider prior decisions on its own accord also supports our conclusion not to reverse the court’s decision to grant the fire company’s motion to reargue. Courts can reconsider a past decision in order to correct mistakes in prior judgments. United States v. Morgan, 307 U.S. 183, 197, 59 S.Ct. 795, 83 L.Ed. 1211 (1939). "It is a power inherent in every court of justice ... to correct that which has been wrongfully done by virtue of its process." Fiano v. Old Saybrook Fire Co. No. 1, Inc., 180 Conn.App. 717, 732, 184 A.3d 1218, 1227 (2018).
The issue was perhaps best framed in the seminal case of Breen v. Phelps, 186 Conn. 86, 99-100, 439 A.2d 1066 (1992):
The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912) ... Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.
A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge ... Nevertheless, if the case comes before him regularly and he becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment ... From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling. In an appeal to this court where views of the law expressed by a judge at one stage of the proceedings differ from those of another at a different stage, "the important question is not whether there was a difference but which view was right." (Citations omitted.)
A remarkably similar situation was addressed in Torres v. Carrese, 149 Conn.App. 596, 611-17, 90 A.3d 256, 267-70 (2014), where earlier (denied) motions to dismiss— also based on alleged noncompliance with the similar health care provider opinion requirement of § 52-190a— were revisited several years later, after issuance of an appellate-level decision (Bennett) indicated that the basis for the prior denials was not consistent with the requirements of the statute. One difference— perhaps ironic— is that in Torres, new motions to dismiss were filed. Addressing the claim that the motions were woefully late (filed years after expiration of the 30-day period in which to file a motion to dismiss addressing non-subject matter jurisdictional issues), the court treated the motions as the functional equivalents of late motions to reargue, which it was within the discretion of the trial court to consider. Here, there is no need to recharacterize the motions filed— they are explicitly designated as motions to reargue or for reconsideration.
Accordingly, the court concludes that it is appropriate to revisit the legal framework for the earlier decision. If controlling appellate authority since 2012 has not changed in any appreciable manner or if the court concludes that there is no other good reason to revisit the earlier determination, the earlier determination should stand. As discussed below, however, there have been significant appellate decisions in this area, and their impact must be assessed and applied as needed.
B. Substantive
1. Motions to Dismiss
In simplest terms, the court is being asked to reconcile, or determine the interplay between, two Appellate Court decisions, Peters and Votre . Votre was the linchpin of the earlier decision denying the motions to dismiss, based on language that seemingly was directly applicable to the situation at hand— an inadvertently omitted existing opinion letter from a similar healthcare provider.
In Votre, the court had not been presented with this precise issue or even a similar issue relating to curative action— in affirming dismissal of the case before it, the court was attempting to demonstrate that dismissal, as mandated by the statute, was not necessarily draconian in terms of ultimate results. In so doing, the court stated (as quoted in the memorandum of decision denying the motions to dismiss):
Given the fallibility existing in the legal profession ... it is possible that a written opinion of a similar health care provider, existing at the time of commencement of an action, might be omitted through inadvertence. In such a scenario, it certainly may be within the discretionary power of the trial judge to permit an amendment to attach the opinion, and, in doing so, deny a pending motion to dismiss. Such a discretionary action would not be at variance with the purpose of § 52-190a, to prevent groundless lawsuits against health care providers.
As reflected in the earlier decision in this case denying the motions to dismiss, in the interval between 2009 and 2012, trial court decisions were split as to whether Votre was controlling law, some trial court decisions concluding that the above-quoted language was dictum and other decisions treating it as authoritative. As noted in a footnote in the earlier decision, in Bennett v. New Milford Hospital, 300 Conn. 1, 30 n.17, 12 A.3d 865 (2011), the Supreme Court also noted (also in a footnote) the division of trial court authority on the issue and the associated question of its (continuing) vitality/authority, but declined to address the issue on the merits, as it was not properly before the court at that time.
In order to determine the binding effect, if any, of Votre, it is necessary to consider and appreciate the context for that decision. The plaintiff had sued medical care providers, but had attempted to characterize the claims being asserted as not implicating medical malpractice. The plaintiff had not made any attempt to comply with § 52-190a and its requirement of the attachment of an opinion letter from a similar healthcare provider. The Appellate Court specifically noted that no attempt had been made to amend the complaint to add such a letter as an attachment, 113 Conn.App. 584, the plaintiff instead arguing that no such letter was required.
To the extent that there had been some disagreement as to whether the discussion in Votre as quoted in part above was more than dictum, the court must note that that discussion was not directed to the merits of the issues before the court. Rather, it was at least one step removed— part of the explanation as to why the sanction of dismissal, while at least facially harsh, was both part of a legislative directive and potentially subject to cure. The court cannot help but note the highly conditional nature of the above-quoted language— if there were an inadvertently omitted required opinion letter, "it certainly may be within the discretionary power of the trial judge to permit an amendment to attach the opinion, and, in doing so, deny a pending motion to dismiss. Such a discretionary action would not be at variance with the purpose of § 52-190a, to prevent groundless lawsuits against health care providers" (emphasis added). In other words, the court did not say that it "is within the discretionary power of the trial judge to permit an amendment" and observed that such a practice would not inherently conflict with the purpose of the statutory provision ("would not be at variance"). Somewhat simplistically, the language in question related to curative action that hypothetically could be (could have been) taken, in the context of a case in which there had been no effort to take curative action.
The issue of whether the quoted language is dictum now appears to have been resolved by the Appellate Court. In footnote 10 of the Peters decision, the court described the relevant language from Votre and the split of authority among trial courts in the following manner: "In Gonzales v. Langdon, supra, 161 Conn.App. at 510, 128 A.3d 562, this court sanctioned the use of amended pleadings to correct a defect in an existing opinion letter, largely resolving a split in the Superior Court arising from dicta in Votre v. County Obstetrics & Gynecology Group P.C., 113 Conn.App. 569, 585, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009)." Gonzales v. Langdon, 161 Conn.App. 497, 128 A.3d 562 (2015), in turn, contained the following language: "In our view, the discussion in Votre was entirely dicta because the issue of whether a plaintiff can amend his or her complaint to cure a legally inadequate opinion letter was not before this court." 161 Conn.App. 512. Thus, on two occasions, the Appellate Court has characterized the focal language in Votre as dictum.
Thus, while at the time of the earlier decision, Votre was the only appellate-level decision appearing to discuss this issue, a number of appellate court decisions since then have indicated the appropriate standard while relegating the quoted language in Votre to status as dictum. The appropriate standard, as set forth in Gonzales and Peters — and see, also, Doyle v. Aspen Dental of Southern CT, P.C., 179 Conn.App. 485, 179 A.3d 249 (2018)— is that corrective action must be taken within the applicable statute of limitations period. If corrective action (filing an amended complaint to which is attached a proper opinion letter) is attempted within 30 days of the return date, then pursuant to Practice Book § 10-59, the amendment is as of right. If the corrective action is more than 30 days after the return date, then the provisions of Practice Book § 10-60 control, implicitly invoking the discretion of the court.
Technically, Practice Book § 10-60 authorizes amendment by three mechanisms, filing a request to amend, filing a motion to amend, or consent of adverse parties. Given the likelihood of an objection to a request or motion, and the even greater likelihood of a lack of affirmative consent, the practical effect is that the court will be asked to exercise its discretion with respect to a suitable objection to the proposed amendment, whether proposed by way of request or motion.
The requirement of compliance with the statute of limitations arguably was suggested in Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 30-31, 12 A.3d 865 (2011):
We agree that the remedy of dismissal may, standing alone, have harsh results for plaintiffs, particularly when the problems with the opinion letter are as relatively insignificant as they present in this case, given the apparently high and relevant qualifications of its author. Thus, we emphasize that, given the purpose of § 52-190a, which is to screen out frivolous medical malpractice actions, plaintiffs are not without recourse when facing dismissal occasioned by an otherwise minor procedural lapse, like that in this case. First, the legislature envisioned the dismissal as being without prejudice; see footnote 15 of this opinion; and even if the statute of limitations has run, relief may well be available under the accidental failure of suit statute, General Statutes § 52-592. For additional discussion of this particular relief, see the discussion in the companion case also released today, Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 12 A.3d 885 (2011).
Query whether the reference to the statute of limitations was directed to permitting a corrective amendment, or to the ability of a new action to be commenced, since the reference seems to be in the context of a motion to dismiss having been granted.
Of course, the fact that the discussion in Votre has been characterized as dictum does not mean that the logic of the discussion/analysis has been rejected or is otherwise not applicable. However, subsequent cases have imposed a "time limit" on corrective action— the applicable statute of limitations. The argument that an omitted but sufficient opinion letter, existing at the time of commencement of the litigation, should be allowed to be attached to an amended complaint, because the purpose of the statute and its requirement for such a letter has been satisfied— ensuring some level of screening of malpractice claims by virtue of the requirement that a similar healthcare provider provide an opinion attesting to the likelihood of negligence— has not been challenged or rejected. That that level of filtering is satisfied as soon as the letter is generated, independent of when the letter actually is made part of the record, also has not been challenged.
However sympathetic and appealing that argument may be, however, the same can be said of a letter actually attached, inadvertently omitting an assertion that the provider of the opinion is a similar healthcare provider as required by statute. That, however, was precisely the situation in Peters . In Peters, attached to the complaint had been an opinion letter, and the opinion letter had been prepared by a similar healthcare provider, and contained the necessary assertions relating to the probable existence of malpractice, but did not contain a recitation that the author of the letter was, in fact, a similar healthcare provider. That type of omission not only could be characterized as inadvertent, but even reasonably characterized as a scrivener’s error rather than a matter of substance. Nonetheless, the court concluded that there was a requirement of a timely amendment to cure the defect, which was not found to have been done in a timely manner. The statute of limitations was deemed to be the benchmark for timeliness— an overlay or condition to corrective action.
A letter only omitting the basis on which the author is a similar health care provider would seem to satisfy the language of the statute: "To show the existence of such good faith, the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." The court recognizes that appellate decisions uniformly require the credentials to be recited.
To the extent that the focus is on the filtering effect of a requirement of an opinion from a similar healthcare provider, the court perceives no material distinction between an inadvertently unfiled letter from a similar healthcare provider, and a filed letter from a similar healthcare provider that inadvertently omits recitation the basis on which the author is (claims to be) a similar healthcare provider. In both instances, prior to service of process, counsel has obtained the necessary threshold opinion of probable existence of medical negligence. In both situations, there is a defect in the process actually served upon the defendants. In both situations, there is technical noncompliance with § 52-190a, and at least with respect to the latter scenario, there is explicit direction from the Appellate Court that any corrective action must be taken within the statute of limitations.
The court must note that this appears to be contrary to a recent trend in Supreme Court decisions, favoring corrective action over dismissal, even in the context of subject matter jurisdictional defects (whereas the defect in this instance is not a matter of subject matter jurisdiction, but rather personal jurisdiction based on insufficiency of process). Thus, in Kortner v. Martise, 312 Conn. 1, 9-14, 91 A.3d 412 (2014), a conservator who may have lacked standing to bring suit on behalf of the conserved person was allowed to proceed as administratrix of the estate of the conserved person after the conserved person’s death (substituting the mother as administratrix for the mother as conservator). In Fairfield Merrittview Ltd. Partnership v. Norwalk, 320 Conn. 535, 554, 133 A.3d 140 (2016), the court allowed substitution— more accurately, addition— of a proper party when it was discovered that the wrong (if similarly named) entity had been named as the plaintiff— and the allowance of addition of the correct party (effectively retroactive to the commencement of the litigation) was largely responsible for the dissenting opinion. Given the leniency in allowing corrective action with respect to subject matter jurisdictional defects involving the wrong party commencing litigation, and with no apparent time limit for corrective action (other than perhaps that corrective action be attempted promptly after the problem is recognized), the failure to include an explicit recitation that the author of an opinion letter is a similar health care provide (when the author is, in fact, a similar health care provider) would appear to be a minimal transgression (Peters), and imposing the "hard" deadline of the statute of limitations for corrective action seems to be contrary to such a trend.
Nonetheless, that "hard" deadline has been enunciated in more than one Appellate Court decision. To the extent that these decisions control, they appear to be fatal. But can these decisions be harmonized with the reasoning in Votre ? Clearly, to the extent that Votre seems to suggest that the hard benchmark is whether an appropriate letter existed at the time of service, that has been rejected in favor of a statute of limitations-oriented benchmark. However, in the precise situation hypothesized by Votre, where a seemingly sufficient letter existed prior to the time of service and prior to the expiration of the statute of limitations, is it consistent with the liberality of curative action recognized in case law (Kortner, Fairfield Merrittview) and authorized by statute (General Statutes § § 52-123 and 52-128; see, also General Statutes § 52-72)? As noted by the court earlier, the "problem" in Peters could be characterized as a scrivener’s error, but to the extent that the Appellate Court treated it as a substantive matter, the opinion letter actually utilized was "defective." Here, however, the trial court credited evidence presented to it that the belatedly-filed opinion letter, facially sufficient, actually existed at the time of service of process, but as a pure matter of inadvertence, was not attached to the complaint as served and filed. Particularly given the circumstances presented here— six years after the initial motions had been denied based on the corrective action taken, and after a trial that had lasted several weeks resulting in a verdict for the plaintiff— is it unreasonable to characterize the belated filing of an existing opinion letter as allowable corrective action, notwithstanding the expiration of the statute of limitations prior to such filing?
Both Peters and Gonzalez frame the issue in terms of amending the opinion letter to conform to the statute; here, there was no need to amend the opinion letter.
Although it is a close call, the court concludes that, for the following reasons, the earlier denials of the motions to dismiss must stand. Although Peters and Gonzalez rejected an "existing at the time of service" standard for curative letters, in favor of a somewhat more widely applicable "prior to expiration of the statute of limitations" standard, they focus on correcting actually defective letters actually submitted (or non-existent letters). They do not address the pure inadvertence of a failure to attach an existing sufficient letter.
More troubling are the precise circumstances of this case. The defendants have relied upon Peters, a decision issued a number of months after the trial and verdict in this case. However, Gonzalez, decided two years prior to commencement of this trial, also utilized/articulated a statute of limitations benchmark for timeliness. Still earlier— although relying in part on Votre, footnote 14 in Torres also alluded to a statute of limitations deadline. ("Although the plaintiff may have obtained opinion letters from board certified obstetrician-gynecologists after the action commenced, after the defendants had filed their motions to dismiss, and after the statute of limitations had expired, the court may not consider those documents." Torres v. Carrese, 149 Conn.App. 596, 611 n.14, 90 A.3d 256, 266 (2014).) Thus, two years prior to this trial, there had been appellate characterization of Votre as dictum and appellate authority for a statute of limitations-based benchmark for timely amendments. The trial court in Peters expressly relied upon Gonzalez and its articulation of a statute of limitations benchmark for corrective action (and rejected the attempted distinction between an amended letter and an explanatory affidavit). Peters v. United Community & Family Services, Inc., No. KNLCV 166026050S, 2016 WL 4708525 (Aug. 8, 2016) .
The decision also is accessible at http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=10888841
The concept of "judicial economy" as mentioned in these cases, e.g., Gonzalez, 161 Conn.App. 521; would be turned on its head if, after a trial and verdict, a decision were to be rendered dismissing part of the case, in the face of a judicial determination that the opinion letter existed at the time suit was commenced and in the absence of any meaningful argument that the opinion letter was in some manner deficient. Again, this would run counter to the trend in allowing corrective action to be taken to cure jurisdictional defects— here, corrective action would be nullified based on what is arguably a change in the law that could have been brought to the court’s attention years earlier and years before the time and expense of a month-long trial.
The purpose for requiring an opinion letter from a similar healthcare provider was satisfied prior to commencement of this action, but due to inadvertence, it was not served and filed at the outset— screening to make sure that there is a reasonable basis to allow the case to proceed. It would be inequitable and highly wasteful to reverse the earlier decisions in such a belated fashion. Subject matter jurisdictional issues may be raised at any time, but other jurisdictional issues are subject to waiver— and inferentially subject to other equitable considerations. For all these reasons, the motions to reargue are (have been) granted with respect to entertaining reargument and reconsidering the earlier decision, but the equities overwhelmingly dictate against affording any relief.
2. Kuehl v. Koskoff
The other issue raised via motion to reargue was that Kuehl warranted revisiting of the issues as already argued and briefed relating to expert testimony and particularly causation.
Unlike Peters (and other recent Appellate Court decisions discussed above) which not only articulated "a" or "the" applicable standard for curative action relating to opinion letters from similar health care providers, but also characterized a prior claimed authority as dictum, there is nothing "new" in Kuehl . It certainly reinforces the importance of expert testimony as to causation— when needed— but does not address any point not adequately covered in prior authority as discussed by the parties. In Kuehl, the Appellate Court determined that there was a need for expert evidence— which it determined had been lacking— that but for the negligence of the defendants, the outcome of underlying legal proceedings would have been different, a topic that the court concluded was beyond the experience or knowledge of the average juror. As discussed below, there were expert opinions as to standard of care and causation, and at least some of the issues relating to causation do not require expert testimony, especially that contact of skin (the plaintiff’s foot) with a surface heated to almost 600° F. will cause severe burn-type injuries.
Accordingly, no further special attention to Kuehl is necessary.
II. Causation
A. Product Liability
Regardless of whether the court is correct as to the opinion letter discussed above, the court must address the issue of causation as relates to the product liability claim, framed in terms of a motion to set aside the verdict/motion for judgment notwithstanding the verdict.
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 supervision which a judge has over the verdict is an essential part of the jury system ... [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, 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, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality ... The court has a duty to set aside the verdict where the jury’s action is so unreasonable as to suggest that it was the product of such improper influences ...
We recognize that, [i]n determining whether to set aside the verdict, the trial court walks a thin line ...
Finally, in evaluating the exercise of the trial court’s discretion, we are mindful that litigants have a constitutional right to have juries decide issues of fact. The right to a jury trial is fundamental in our judicial system, and this court has said that the 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 fair-minded men passed upon by the jury and not by the court ... Cheryl Terry Enterprises, Ltd. v. City of Hartford, 270 Conn. 619, 637-38, 854 A.2d 1066 (2004) (internal quotation marks, omitted).See, also, Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 32, 761 A.2d 1268, 1275 (2000), applying a similar standard to motions for judgment notwithstanding the verdict.
The directed verdict standard, similar to the summary-judgment standard, requires the court to view the evidence in a light most favorable to sustaining the verdict. Further, the plaintiff need not prevail on more than one specification of negligence or product defect, in order to sustain the verdict.
Although the court has not attempted to quantify the amount of time devoted in written submissions and argument to the different sub-issues relating to causation, the courts sense is that a clear majority of time and effort has been devoted to the issue of causation in the context of medical malpractice. Thus, the claim that the decision in Kuehl was significant to this case, focused on the need for expert testimony both as to standard of care and causation in connection with (most) professional malpractice claims.
The product liability claim being asserted in this case, however, does not implicate professional malpractice per se, and further, the notion that if a device whose surface temperature substantially exceeds 500° comes in contact with human flesh, serious burns can result, such that protective features might be needed to make the device reasonably safe (not unreasonably unsafe) if the device is to be used in proximity to human flesh, is a matter that does not necessarily require professional input. Although many of the allegations in her complaint directed to WABBO address the issue of the supporting structure for the lamp— spontaneous lowering of the lamp head, the failure to use locking mechanisms at the joints, etc.— the plaintiff also alleges a failure to have any protective device over the heated surface of the lamp itself. See, e.g., If 22(a)(v) in amended complaint (# 238.00), and ¶ 15(a)(iii) and (iv) and ¶ 15(b)(iii)(B) in the final version of the complaint filed during trial (# 381.00). Defendant WABBO does not address whether the evidence was sufficient to allow the jury to conclude that the product was defective for failing to have sufficient protection over the heating element of the lamp, or whether a jury reasonably could conclude that such a defect was the proximate cause of the plaintiff’s injuries.
Context, of course, is important. A fan mounted in a wall or ceiling would not likely need any guards on the side not exposed to the room, but is there any question that if the side of a recessed fan facing the room, or both sides of a so-called box fan, did not have any screen or other device preventing contact with the moving blade, the fan likely would be considered unreasonably dangerous, should someone be injured by virtue of contact with the moving blade? Would there need to be an expert to opine that a space heater with exposed heating elements was unreasonably dangerous, or would that be a matter of common sense? (The issue is not whether an expert might be useful but rather whether an expert would be required.) This applies both to the existence of a defect and the proximate causal relationship of the defect to the injury sustained.
Note that these and other common safeguards— which if lacking might readily allow a product to be characterized as unreasonably dangerous— are intended to become operational or necessary precisely in the case of unexpected accidents or negligence. Therefore, the claimed lack of any specific mechanism for the lamp head to come into contact with the plaintiff’s foot would not undermine the causative link between failing to protect against a hot surface coming into contact with the skin of a user or a user’s client/patient. Accidents, prying fingers, misuse, etc., are all foreseeable, and the purpose of a safeguard is to prevent harm in just such situations. (Contributory responsibility is a separate issue, and in this instance, the plaintiff was exonerated of any such responsibility by virtue of the interrogatory responses and verdict.) Just as a claim of defective seat belt or airbag does not necessarily require a clear determination of the cause of the accident necessitating reliance on those protective features, how the lamp came into contact with the plaintiff’s foot is not the issue when there is a claim that there should have been a protective feature or device which would have prevented an injury however the lamp might come into contact with an individual such as the plaintiff.
WABBO’s principal acknowledged that the cost of adding protection over the face of the lamp would be small and it was stipulated that it was technically feasible in 2008, at around the time the device was manufactured and sold. The principal also acknowledged that locking mechanisms for the movable arm were in use in 2008 on other similar lamps.
This, of course, is in addition to the evidence that WABBO, as distributor of the product, was aware of the propensity for such lamps, over time, to lose tension such that the lamp head could spontaneously lower. (A spring piston mechanism holds the arm and lamp head in position, but over time and with usage, the spring loses some of its ability to maintain the position of the lamp as originally set.) As a progression of loss of ability to hold its position, there would be an intermediate loss of tension, whereby some (decreasing over time) disturbance would be sufficient to cause a lowering, which technically would not be "spontaneous." This is the claim that defendant WABBO almost— if not actually— exclusively addressed in connection with its post-verdict motions. A plaintiff need prove only one specification of negligence (or by analogy in a product liability claim, one specification of defect), Barrett v. Cent. Vermont Ry., Inc., 2 Conn.App. 530, 534, 480 A.2d 589, 592 (1984). A necessary corollary of that proposition, however, is that for a defendant to prevail in a motion to set aside the verdict, it must establish that there is no specification on which the plaintiff can prevail. Therefore, for the defendant to prevail, it is not enough to challenge the evidence as to one specification— if the challenge is specification-oriented, then it must negate all specifications. ("Since we conclude that he produced enough evidence to establish liability under the specification of unreasonable speed, we need not consider the defendants’ argument that the plaintiff failed to establish his other specifications of negligence." Id.)
The distributor’s principal testified that there were, or should have been, warnings on the arm about the possible loss of tension, but there was some question if the warning stickers were on the lamps as delivered to Dr. Wang. (He had ordered two lamps, one for the office where this accident occurred, and one for his Westport office.)
There was evidence that locking joints was a feasible alternate manner of construction of such lamps.
There could be a challenge to other requirements, requirements that might be applicable to multiple or all specifications, e.g., misuse or alteration, but the challenge here is focused on spontaneous lowering and causation arising from spontaneous lowering.
There was ample evidence that there was no guard or other safety mechanism on the opening of the head of the heat lamp, and that the temperature at the opening was well in excess of 500° . It is common knowledge that water boils at 212°, and it is only slightly less common knowledge— based on an eponymous book (and at least two movies based on the book)— that paper combust at Fahrenheit 451° . Less precisely, anyone who was touched a baking pan coming out of an oven (even at a moderate baking temperature of 350°) knows how quickly a blister can be formed. Here, the temperature was substantially higher and heat was continuously being generated as long as the lamp was "on" and plugged in.
With respect to the product liability claim, then, the jury was presented with sufficient evidence (lay and expert) that, combined with its own common sense and experience, was sufficient to support a finding that the lamp was defective, and that the defect caused the injuries to the plaintiff.
B. Medical Malpractice/Negligence
Although the court addressed, above, both the existence of a defect and causation in a combined manner, the court believes that in connection with the claims of medical malpractice, it is necessary to treat the breach of the standard of care separately from the issue of causation.
1. Standard of Care
The defendants advance a multi-pronged attack on the sufficiency of evidence relating to standard of care, relating to breach of standard of care, and as will be discussed later, causation.
The court reiterates that it is obligated to view the evidence in a manner favorable to sustaining the verdict, giving the plaintiff the benefit of all reasonable favorable inferences. Part of the challenge to the evidence relating to standard of care, however, asks the court to focus on the extent to which the defendants claim to have undermined the testimony of the plaintiff’s expert. Thus, for example they claim that the expert had a pre-determined opinion, even before being apprised of the precise nature of the lamp that had been used. It is not uncommon for additional information to come to the attention of an expert, and the focus is on the opinion actually given and the basis for proffering that opinion.
The defendants also claim that the fact that the opinion had been based on the expert’s use of a similar lamp, but with at least some arguably-distinguishing features, again wholly undermined the validity of her opinions. The differences were brought to the jury’s attention, and whether to credit the expert’s testimony was for the jury to decide. The court cannot conclude that the effect of the efforts to undermine the expert’s testimony was to eliminate the evidence from proper consideration by the jury.
The plaintiff also "adopted" the defendants’ acupuncture expert. During argument, the defendants contended that that testimony could not be considered in connection with revising the motion for directed verdict because it had not been presented during the plaintiff’s case in chief. In a historical sense, that is correct; however, when plaintiff sought to adopt that testimony, she framed it in terms of opening her case to allow such adoption. The court has discretion to allow corrective action to be taken even after granting a motion for directed verdict, Burton v. City of Stamford, 115 Conn.App. 47, 971 A.2d 739 (2009); that necessarily implies that corrective action can be permitted while the motion is under advisement (decision reserved). This is in addition to the fact that the court does not recall the defendants having raised this precise issue at the time that the plaintiff sought permission to open her case for this purpose— the court’s recollection was that objections were raised when the plaintiff initially stated that she wished to adopt the expert’s opinion, but not in the context of a request to open her case for that purpose. (This assumes that there was a need for the additional expert opinion to support the verdict.)
Against this backdrop, there was sufficient evidence to allow the jury to conclude that defendant Wang had breached the applicable standard of care. It was the opinion of the plaintiff’s expert that the lamp should have been checked before each use (each patient), rather than only once, at the beginning of the day, as was the practice of the defendant. (The plaintiff had been the fourth patient that day.) The defendants’ expert stated that the standard of care prohibited placement of the lamp head closer than 12 inches from the patient. There also was an expert opinion that if the lamp head had a known propensity to lower, it should not have been used at all.
As noted, Dr. Wang testified that he checked the lamp only at the beginning of the day and not immediately before each patient. The jury could conclude that that was a breach of the standard of care.
Aside from testimony relating to knowledge of a propensity for the lamp head to lower, the fact that defendant Wang engaged in the elaborate checking he described would allow an inference of knowledge. His procedure for checking the apparatus included checking the tightness of screws, even though the lamp he used did not have any locking mechanism or other feature whereby the tightness of the joint allowing movement of the lamp head would be affected by tightness of screws. There also was testimony from the distributor that it was generally known among its customers— acupuncturists— that over time and usage, the lamp head would eventually develop a propensity to lower. The continued use of a lamp known/believed to have been used to the point of propensity to lower would also be a breach of the standard of care.
Additionally, there is the issue of placement-distance. Dr. Wang did not seem to vary in his testimony that the lamp was placed 18" away from the patient or her foot. There was evidence, however, that it would have been impossible to have done so.
The impossibility of such a distance was based on measurements made by the plaintiff’s engineering expert. The lamp had a maximum height from the floor. The treatment table was either 30″ (2 1/2 feet) or 36″ (3 feet) high. Although the court does not recall the expert stating a precise figure for the maximum height of the heat lamp, it must have been approximately 51″, because when subtracting a hypothetical 8″ for the height of a patient’s foot resting on the table, he calculated the distance from the patient’s foot to the lamp as no more than 13″ if the table were 30″ high, and 7″ if the table were 36" high. The expert testified that it was his recollection that Dr. Wang’s testimony (deposition) seemed to lean towards the higher height for the table— more likely 36" high— which in turn would mean a probability that the separation between lamp and foot was approximately 7″ — below the standard of care testimony provided and below the closest distance recommended by the manufacturer.
Similarly, at one point in his testimony, he indicated that a 9″ drop lowered the lamp head to a height of 42″ .
The defendants have asked the court to reject or disregard such testimony. They claim that this was not encompassed by the expert disclosure filed by the plaintiff. It is well established, however, that an expert disclosure does not require detailed recitation of every aspect of an expert’s opinion. Vitali v. Southern New England Ear, Nose, Throat & Facial Plastic Surgery Group, LLP, 153 Conn.App. 753, 107 A.3d 422 (2014).
There also is an absence of opinion-quality to the measurements. It is simply a matter of one-dimensional geometry or just simple addition. The height of the table plus the length of a patient’s foot provide the elevation of the top of the foot from floor level. The lamp has a maximum height from floor level. The difference between those two figures is the maximum separation between the lamp head and the top of a patient’s foot, assuming that the lamp is at maximum height. There was no evidence (that the court recalls) that Dr. Wang actually measured the distance with a ruler when placing it in proximity to a patient, and again, unless the expert utilized an erroneous figure for the maximum height of the lamp, there is a substantial physical impossibility of an 18" separation, which does not require expertise to understand or recognize.
There still remains the issue of proximate cause. The defendants rely on Winn v. Posades, 281 Conn. 50, 913 A.2d 407 (2007). The plaintiff counters with Blados v. Blados, 151 Conn. 391, 198 A.2d 213 (1964).
Winn involves a motor vehicle accident, in which the surviving operator had been operating his vehicle at an excessive rate of speed. There was no evidence, however, as to how the accident actually occurred. The decision relied essentially exclusively on prior decisions also involving other motor vehicle accidents. Although not suggesting that motor vehicle accidents were to be treated as sui genesis, the court identified numerous variables that would need to be considered, and for which there was no evidence.
Blados, in contrast, involved a fall from a defective flight of stairs. There was no evidence concerning the actual manner in which the decedent had been ascending the stairs, but the court deemed it sufficient that there was evidence that he had been intending to go up the stairs to his living quarters, and that his death had been caused by a fall. The court also noted that when last observed, he appeared to have been sober, and it was no sign of any "scuffle."
The plaintiff has argued that a "rule out" approach such as is typically done in medical diagnosis is an approach that can and should be undertaken here. In Blados, that appears to have been part of the analytic approach taken— the cause of death had been established as a fall, and alternate scenarios had been at least partially addressed and negated (intoxication, a scuffle).
More recently, a similar "rule out" approach was taken in Paige v. Saint Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 734 A.2d 85 (1999). The court determined that there had been a lack of evidence to support a finding of proximate cause, but that was done after identifying numerous possibilities that had not been ruled out, as well as considering inculpatory possibilities that had been ruled out. Thus while the case is cited by the defendants for the result— causation not established— the court finds the decision more relevant in terms of methodology.
In all of these cases, there is a dearth of evidence relating to how the accident actually occurred, generally because the person or persons directly involved in the incident were unable to testify as to what actually happened. (In Winn, the surviving operator of the defendant vehicle was unable to testify as to what actually had happened at the time of collision.) The existence of at least some evidence as to what actually happened is or can be a determining factor; see, e.g., Terminal Taxi Co. v. Flynn, 156 Conn. 313, 240 A.2d 881 (1968).
In this case, there are only a limited number of possibilities as to what "actually happened." The entire lamp assembly could have tipped over, either spontaneously or as a result of some disturbance (excitation). The lamp head could have lowered, either spontaneously or as a result of some disturbance (excitation). Finally, at least in theory, the plaintiff intentionally could have caused either of those scenarios to have happened, intentionally bringing the lamp head into contact with her foot.
No one has suggested that the base of the lamp was sufficiently unstable that the lamp could have tipped over without some force having been applied. The plaintiff explicitly denied having come into contact with the lamp assembly while lying on the table, in a knowing/aware manner. That leaves only possibilities of the lamp head lowering spontaneously or due to some inadvertent (and unknowing) contact by the plaintiff, or the assembly itself tipping over due to some inadvertent (and unknowing) contact by the plaintiff.
There was no evidence or even suggestion that the lamp assembly was sufficiently unstable that an inadvertent bumping by a patient, lying on a treatment table, could cause the entire assembly to tip over. The plaintiff’s expert considered the various scenarios as to how the lamp head could have come into contact with the plaintiff’s foot, and concluded that the only probable— as opposed to possible but implausible— scenario was that there had been some perturbation or excitation applied to the lamp assembly, causing the head to lower. As the plaintiff was the only person in the room, any excitation would have been in the form of some bumping against the lamp assembly, notwithstanding the plaintiff’s denial of any awareness of any contact with the lamp assembly.
This scenario actually was confirmed by Dr. Wang himself. In his complaint directed to defendant WABBO, he explicitly stated that the lamp had come into contact with the plaintiff as a result of the lamp head lowering. While the original complaint simply had stated that the lamp had lowered, the three subsequent amended versions of the complaint (# 214.00, # 232.00, and # 241.00) all described the lamp as falling spontaneously (and a copy of that assertion was entered into evidence prior to the withdrawal of the claim against WABBO (Ex. 11)). (The complaint also asserted that the lamp was dangerous and defective, even as originally distributed/sold.) As an evidentiary admission, defendant Wang was free to explain the circumstances for the filing of that admission, but the fact that the claim against WABBO had been withdrawn at a later time, and that he had no personal involvement in the filing of any such complaint, did not preclude the jury from giving credence to that statement.
The third-party complaint was withdrawn the day after the excerpt from the third party complaint was admitted as an exhibit and after Dr. Wang was questioned extensively about the statements made in that pleading.
This in turn answers, at least in part, the question raised by the defendants as to what would have been discovered had Dr. Wang done an additional inspection, immediately before placing the heat lamp in proximity to the plaintiff’s foot. If at the time of use in connection with treatment of the plaintiff, the lamp head assembly was sufficiently precarious that some excitation or perturbation would cause it to lower several inches and come in contact with the plaintiff’s foot, that would have been discerned had there been an adequate test immediately before use. Note that to varying degrees this implicates both the standard articulated by the plaintiff’s expert and by Dr. Wang. If the lamp already was sufficiently precarious as of that morning to present a risk of spontaneous or near-spontaneous lowering, then each inspection that was or should have been performed would have revealed that tendency. The jury was not required to accept the defendant’s testimony as to the thoroughness of his inspection that morning. Given the generally acknowledged slow rate of deterioration of the stability of the joint in question, each inspection that morning would have provided an opportunity to detect the propensity of the lamp to lower with little or no outside force applied. Since there was no user-ability to adjust tension of the joint, the lamp should have been removed from service (as defendant Wang did immediately after this occurrence).
The routine described by Dr. Wang included hand-tightening the screws and occasionally tightening the screws with a screwdriver. The essentially undisputed expert testimony was that the screws on this particular device had no effect on the tightness of the joint— the ability to hold position was solely dependent upon the spring-based mechanism in the arm. Therefore, to the extent that he jiggled or shook the device to test for stability, the test would have been useful, but the tightening of screws (or checking the tightness of screws) was unrelated to any of the issues in this case.
So to the question as to what causative effect might be attributed to the failure to do an inspection immediately prior to treating the plaintiff, the somewhat oversimplified answer is that, given the determination/admission that the lamp was in a condition where it did lower with little or no outside force applied, each inspection would have been an opportunity to detect the problem and remove the lamp from service, and an additional inspection would have been a backup to what, in retrospect, may have been an inadequate inspection earlier in the day. Given the slow rate of deterioration, any defective condition would have been discoverable for some period of time prior to this accident.
Therefore, the jury reasonably could have concluded that Dr. Wang’s failure to test the lamp adequately and/or improper placement of the lamp too close to the plaintiff’s foot resulted in the lamp coming into contact with her foot, due to perturbed or spontaneous lowering. As with the claim against WABBO, once the lamp came into contact with the foot of the plaintiff, there is no further question relating to causation of the resulting injury from contact with the hot surface of the lamp. All that is necessary for proximate cause is to establish that the conduct of the defendant was a substantial factor in the lamp coming into contact with the plaintiff’s foot, and the plaintiff has established that linkage, by direct and circumstantial evidence.
This also addresses the claim that the court improperly charged the jury when it stated that expert testimony as to causation was required "unless the causative link is sufficiently obvious to a lay person that expert testimony is not required." First, that is not an incorrect statement of the law; see, e.g., Shegog v. Zabrecky, 36 Conn.App. 737, 746-47, 654 A.2d 771 (1995), identifying three situations in which expert testimony would not be required. Further— and assuming that the issue was properly presented and preserved— the evidence supports such an application here. The evidence was undisputed that the deterioration of stability of the arm supporting the lamp head (the joint between the arm and the supporting vertical structure) would be slow and use-related. If, as supported by the evidence and defendant Wang’s own admission in the pleadings, the lamp did lower spontaneously or with some perturbation/excitation at the time of the plaintiff’s acupuncture treatment, that condition virtually certainly did not arise immediately before her treatment. Therefore, any proper examination should have disclosed the problem and each additional test, assuming done properly, also would have disclosed the problem. Again, given the absence of any ability of a user to adjust tension, once a problem was identified, the only proper response would have been removal from service (and although arguably redundant, there was expert testimony to that effect).
The court appreciates that because acupuncture is deemed health care; a claim directed to an acupuncturist arising during treatment is treated as medical malpractice. As a result of that characterization and the existing body of law, everything is framed in terms of the standard of care. But is it a matter of professional expertise and expert-established standard of care to know that if a very hot heat-source is placed in proximity to someone lying down (and there will be no one else present in the room to monitor the situation for a period of time), there is an obligation to make sure that the device is stable? Is an expert needed to explain to a jury that an unstable heating device, in proximity to a prone individual, can and will cause injury if that instability results in direct contact of the hot surface and the prone individual’s body?
The defendants have not established any fatal flaw in the plaintiff’s evidence as to medical negligence and causation.
III. Remittitur
The standard for remittitur is well-established:
First, the amount of an award [of damages] is a matter peculiarly within the province of the trier of facts ... Second, the court should not interfere with the jury’s determination except when the verdict is plainly excessive or exorbitant ... The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption ... Third, the ruling of the trial court on the motion to set aside the verdict as excessive is entitled to great weight and every reasonable presumption should be given in favor of its correctness ... The court’s broad power to order a remittitur should be exercised only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court’s explicit and unchallenged instructions ... The relevant inquiry is whether the verdict falls within the necessarily uncertain limits of fair and reasonable compensation or whether it so shocks the conscience as to compel the conclusion that it was due to partiality, prejudice or mistake ... Furthermore, [t]he decision whether to reduce a jury verdict because it is excessive as a matter of law [within the meaning of General Statutes § 52-216a] rests solely within the discretion of the trial court ... [Consequently], the proper standard of review of a trial court’s decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is that of an abuse of discretion ...
[A]lthough the trial court has a broad legal discretion in this area, it is not without its limits ... Litigants have a constitutional right to have factual issues resolved by the jury ... 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 ... The award of damages for pain and suffering is peculiarly within the province of the trier [of fact] ... The fact that it is difficult to measure pain and suffering in terms of money does not prevent a recovery ... as long as there is a reasonable basis in the record for that recovery ... Furthermore, [t]he size of the verdict alone does not determine whether it is excessive ...
Thus, [i]n ruling on the motion for remittitur, the trial court was obliged to view the evidence in the light most favorable to the plaintiff in determining whether the verdict returned was reasonably supported thereby ... A conclusion that the jury exercised merely poor judgment is an insufficient basis for ordering a remittitur ... Proper compensation for noneconomic damages cannot be computed by a mathematical formula, and there is no precise rule for the assessment of damages ... The plaintiff need not prove damages with mathematical exactitude; rather, the plaintiff must provide sufficient evidence for the trier to make a fair and reasonable estimate ... A generous award of noneconomic damages should be sustained if it does not shock the sense of justice ...
The fact that the jury returns a verdict in excess of what the trial judge would have awarded does not alone establish that the verdict was excessive ... [T]he court should not act as the seventh juror with absolute veto power. Whether the court would have reached a different [result] is not in itself decisive ... The court’s proper function is to determine whether the evidence, reviewed in a light most favorable to the prevailing party, reasonably supports the jury’s verdict ... In determining whether the court abused its discretion, therefore, we must examine the evidential basis of the verdict itself ... [T]he court’s action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined. (Internal quotation marks and citations, omitted.) 150 Conn.App. 456-58.
A further overlay— a relatively recent development in remittitur jurisprudence— is that the court, in ordering remittitur, must be able to articulate its rationale for overwriting the determination of the jury:
Today we exercise our supervisory authority to require expressly what already has been implicit in our law. In all future cases, a trial court ordering a remittitur must set forth in the memorandum of decision clear, definite and satisfactory reasons for so ordering. Merely stating that an award shocks the conscience or the sense of justice of the court or that the award does not fall within the necessarily uncertain limits of fair and reasonable compensation will not be sufficient. The recitation of these generalities does little to aid appellate review of the trial court’s decision, a review that is complicated by the requirement that appellate tribunals must give deference to that decision, which itself was rewired to give deference to the jury’s verdict. In order for us to determine whether the trial court properly reviewed the evidence in the light most favorable to sustaining the verdict, and did not merely substitute its own judgment for that of the jury, a trial court ordering a remittitur must set forth the evidence, viewed in that light, and explain the specific reasons that led the court to conclude that the award shocked the conscience of the court. We set forth this requirement, not to discourage the trial court from granting remittitur in those cases where it is warranted, but rather to aid the reviewing court in its determination of whether the trial court properly exercised its discretion. Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 283-84, 32 A.3d 318, 323-24 (2011).
Although this discussion of remittitur is of general applicability, the court will focus on the arguments presented in Dr. Wang’s detailed submission.
The initial discussion of applicable law as cited by the defendants is generally unexceptional, except to the extent that the defendants rely on older cases, which lack any reference to the specificity required by Saleh . Rather, it is the discussion of specific cases in which remittitur has been ordered that is highly problematic. The general proposition that it is "of particular value to analy[ze] factors such as injuries, specials and permanency, in assessing whether an award falls somewhere within the necessarily uncertain limits of fair and reasonable compensation or whether the verdict so shocks the sense of justice as to conclude that the jury was influenced by partiality, mistake or corruption" (Dinardo v. Lashgari, No. 325946, 1991 WL 25786 *3-4, 1991 Conn.Super. LEXIS 250 *9-10 (Conn.Super.Ct. Feb. 4, 1991)), may be generally helpful, but the court must note that the nature of injuries sustained by the plaintiff are highly unusual, there were no claimed medical specials (although clearly there were bills incurred for the hospitalizations and surgeries), and there was no formal permanency evaluation, notwithstanding the obvious permanent nature of the injuries. The court notes that the amount of specials, and a permanency rating, may be of assistance in efforts to "quantify" the seriousness of an injury, but are in no way essential, and their absence in this case make those factors of negligible value.
*20 Before addressing specific cases cited by the defendants, the court will note some generalized observations. The most recent of the cases cited by the defendants reflects a decision more than 15 years ago. In addition to the need to adjust for, or make allowances for, the differences in the injuries sustained or claimed, any reference to specific dollar amounts in other cases would need to be adjusted to reflect likely differences in value over time (inflationary effects) as well as potential differences in prevailing values in different judicial districts. No attempt has been made, however, to suggest how or why the figures were cited in the various cases are meaningful to this case, whether in terms of comparing injuries, timing, or venue (to the extent that the defendants may be suggesting that the dollar amounts, themselves, lend guidance).
The court will not go through all of the cases cited by the defendants, but will discuss at least a few. The defendants cite and discuss Rodriguez v. Pickett, No CV- 88-0354189-S, 1993 WL 241763, 1993 Conn.Super. LEXIS 1625 (Conn.Super.Ct. Jun. 28, 1993). In that case, the court concluded that some numbness, diminished taste, and other symptoms resulting from extraction of a molar warranted reduction of a jury verdict to $ 265, 000. Since that amount reflected a reduction for comparative negligence, the court effectively concluded that a verdict just under $ 450, 000 was an appropriate value for the injury (without regard to comparative negligence). How does $ 450, 000 as full value for that injury in 1993, compare to the plaintiff’s injury award in 2017— the value of burning of flesh down to the bone, multiple skin graft procedures, etc.?
The defendants cite and discuss at length Cohen v. Yale-New Haven Hospital, 2000 Conn.Supp. 10701 (Conn.Super.Ct. Aug. 31, 2000). The defendants characterize the trial court decision as having been affirmed by Cohen v. Yale-New Haven Hospital, 260 Conn. 747, 800 A.2d 499 (2002). While that is true in a literal sense, the issue of propriety of remittitur was not an issue on appeal, end the appellate decision actually reflects that the plaintiff had accepted the remittitur. The Supreme Court dismissed the appeal taken by the plaintiff, seeking to obtain additional damages notwithstanding acceptance of the remittitur, and affirmed the judgment with respect to the appeal of the defendant (claiming that the trial court should have directed a verdict in its favor). The fact that the plaintiff accepted the remittitur suggests no issue as to excessiveness. The court must note that the focus was on an award of $ 1.4 million for what the court concluded was a temporary injury. (The court also found an element of claimed injury— increased risk of mortality— unproven.) There is nothing temporary about the permanent disfigurement of the plaintiff’s foot.
The defendants also cite and discuss Dinardo v. Lashgari, No. 325946, 1991 WL 25786, 1991 Conn.Super. LEXIS 250 (Conn.Super.Ct. Feb. 4, 1991). In that case, from more than a quarter of a century ago, the verdict was reduced to $ 285, 000, the court finding that at least some of the claimed injuries had not been proven. The course of treatment in that case was nowhere near as protracted, and although there was a life-threatening aspect which was claimed to be responsible for persistent mental issues, the only permanent physical effect was the plaintiff’s scar from her cesarean (which apparently would have occurred anyway). How does the court apply Dinardo to the current case, other than as a recognition that the court can order remittitur if a verdict is perceived to be excessive? What would that $ 285, 000, awarded in early 1991, be worth in 2018 dollars?
Yatsenick v. Himes, No. 64197, 1994 Conn.Supp. 1042, 1994 WL 34210 (Conn.Super.Ct. Feb. 1, 1994) can be distinguished due to its age— not quite a quarter of a century ago— as well as the absence of any physical injury and the court-identified paucity of evidence of any significant mental distress, resulting in the court concluding that the jury must have been swayed by the suicide of the plaintiff. Nonetheless, the court allowed compensatory damages of $ 100, 000 for a vexatious suit claim in which the legal expenses in the underlying action had been $ 3, 200.
*21 The court finds instructive a recent Appellate Court decision, Welsh v. Martinez, 157 Conn.App. 223, 114 A.3d 1231; cert, denied, 317 Conn. 922, 118 A.3d 63 (2015). In Welsh, the court affirmed the denial of a motion for remittitur where the plaintiff had been awarded $ 2 million in noneconomic damages in a case lacking any personal injury— the claims were based on invasion of privacy and intentional infliction of emotional distress.
In his motion for remittitur, the defendant argued that the plaintiff "failed to claim any economic damages, and instead claimed pain and suffering caused by post-traumatic stress disorder for the balance of her life." The defendant renews that claim in this appeal, and appears to suggest that noneconomic damages alone cannot justify a sizeable award of damages. We disagree. As our Supreme Court has explained, "[c]omparison of verdicts is of little value. No one life is like any other, and the damages for the destruction of one furnish no fixed standard for others.’ (Internal quotation marks omitted.) Katsetos v. Nolan, 170 Conn. 637, 658, 368 A.2d 172 (1976). The destruction in the present case primarily is psychological, rather than physical, in nature. That does not diminish its degree, as evidenced by [the psychologist’s] testimony.
There exists no precise formula on which a court can instruct a jury as to the computation of compensation for pain and suffering. A jury in such instances necessarily is tasked with quantifying something that is inherently difficult to quantify. In their closing arguments to the jury, the plaintiff requested an award of approximately $ 20 million in compensation in light of her thirty-seven and one-half year life expectancy; the defendant suggested that an award of $ 100, 000 was more appropriate. The jury rejected both suggestions, and instead concluded that $ 2 million was proper compensation for the plaintiff’s pain and suffering. (Citation and footnote, omitted.) 157 Conn.App. at 242-43, 114 A.3d 1231.
Although not in any way determinative, the court noted in footnote 10 (the footnote omitted from the passage above) that "[c]alculated in light of her life expectancy, the plaintiff’s request amounted to approximately $ 10, 000 per week as compared to the defendant’s suggestion of $ 50 per week. The jury’s award of damages amounts to approximately $ 1, 000 per week." While the court already has identified the non-productive nature of citing dollar amounts without adjustments for differences in situations (and Welsh explicitly makes that observation as well), the per-week figure awarded to the plaintiff, based on her statistical life expectancy, is comparable to that in Welsh — with the distinction that the plaintiff, here, sustained serious physical trauma, requiring multiple surgeries and a risk of amputation, as the source of her non-economic damages.
Based on the statistical life expectancy as of trial of just over 26 years, $ 1 million spread over that period of time comes to approximately $ 740 per week.
Again, the plaintiff sustained burns on her foot down to the bone, required hospitalization and multiple skin graft procedures. While the long-term functional effects of the injuries were arguably modest (except perhaps to the person who lives with the limitations), there can be no question as to the objective existence of a permanent injury with a permanent impact on everyday activities and recreational activities. Accordingly, the court finds that the defendants have not articulated an adequate basis for remittitur and the court cannot articulate a basis of its own to justify such an intrusion on the jury’s determination.
IV. Comparative Responsibility
*22 The Center, in its initial post-verdict brief, frames the issue as follows:
The seminal issue before the Court is whether the statutory requisite of Conn. Gen. Stat. § 52-184c that, "the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the healthcare provider represented a breach of the prevailing professional standard of care" applies with equal force to the jury’s consideration of the nature and quality of Dr. Wang’s conduct as it pertains to the evaluation and assessment of comparative responsibility for Ms. Kissel’s injuries under the Connecticut Product’s Liability Act (CPLA). See, Conn. Gen. Stat. § 52-572o(c).
At the outset, the court must note what is not an issue. There is no claim that the conduct of Dr. Wang was not a proper subject of the process of determining the respective responsibility of the parties in the context of the product liability claim. The medical defendants do not claim that there is any case law authority for the proposition that as a potentially responsible party in a product liability claim, his conduct must be measured by a malpractice standard.
Seemingly central to this argument is the defendants’ reliance upon the language of General Statutes § 52-184c(a). That statute is quoted in the Center’s brief, and the court will reproduce it as set forth in that brief, including the emphasis provided by the defendant:
In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider . The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
Relying on the emphasized language, the argument then proceeds to assert the need to have evidence of a breach of the prevailing professional standard of care. The problem, however, is the language that the defendant chose not to emphasize. In connection with the product liability claim, Dr. Wang and the Center were not parties to a civil action to recover damages in which it was alleged that the injuries were a result of the negligence of the healthcare provider. As to the product liability claim, their role arose solely as a defensive measure undertaken by defendant WABBO.
The position articulated by the medical defendants in this regard have far-reaching if unarticulated consequences. When WABBO filed its third special defense (# 259.00), asserting that Dr. Wang had inappropriately used the lamp, failed to heed warnings, etc., was it required to submit a good faith certificate accompanied by an opinion letter from a similar healthcare provider, as is required for medical malpractice claims (General Statutes § 52-190a)? Is a claim that Dr. Wang "used the subject heat lamp in a manner inconsistent with the normal use and application of the product as reasonably anticipated by the manufacturer or seller" to be governed by the standard of care of acupuncturists— even if manufacturers and distributors have no reasonable basis to anticipate such use in marketing a product? Some of the specifications asserted in the special defense do seem to tread into the area of professional standard of care ("failed to follow the ordinary and customary standards of the acupuncture profession with regard to the use of the subject heat lamp") but that hardly is true of all of the specifications. In a product liability context overlapping medical treatment, the medical treatment provides a context, but the defendant product distributor faces potential strict liability arising from the allegedly defective condition of the product, such that the user’s use is not measured by his professional standards but rather the standard of conduct expected of a user— with professional status a factor but not necessarily determinative. To put it bluntly— if it is the general practice (standard of care) to misuse a product, does that bar a manufacturer or distributor from alleging such misuse in connection with defending a personal injury product liability claim?
*23 However appealing the defendant’s argument might be in other contexts, there is almost a sense of absurdity in this case. WABBO was brought into the case as a result of actions taken by Dr. Wang — as between those parties, there was no claim at all for damages resulting from personal injury or wrongful death but rather a claim for indemnification. The special defenses asserted with respect to the product liability claims of the plaintiff were virtually identical to the defenses asserted with respect to Dr. Wang’s claims (compare # 259.00 and # 260.00). Prior to the withdrawal of the third-party complaint against WABBO, was it the expectation of the medical defendants that there would be differing standards of proof with respect to the virtually identical defenses asserted by WABBO?
An alternate approach has been proffered by WABBO. Treatment of a patient comes within the scope of medical negligence, but the manner in which defendant Wang examined his equipment, checking for problems such as looseness, is more a matter of ordinary negligence that professional negligence. Determining whether the lamp was stable or prone to lowering— spontaneously or with minimal outside force— does not implicate the exercise of medical judgment. WABBO has cited a number of trial court decisions addressing this perspective, and the court finds Cortes v. Visiting Nurse Ass’n of Cent. Connecticut, Inc., J.D. New Britain, CV106006066, 2011 WE 6004438 (November 10, 2011) to be particularly instructive. In that case, the focus was on proper use of a locking mechanism on equipment, which the court noted did not involve the exercise of any medical judgment.
Further in this regard, the court cannot ignore the fact that the jury found against the medical defendants, and as discussed earlier, based on satisfaction of the appropriate burdens placed on a personal injury plaintiff in connection with a medical malpractice case. The medical defendants have not articulated why WABBO, in its defense of the product liability claim, could not rely upon the plaintiff’s evidence, compliant with § 52-184c(a), to satisfy its burden in that same regard (assuming that it had such a burden with respect to its defense).
V. Miscellaneous
A. The plaintiff repeatedly disclaimed any intention of proceeding on her product liability claim based on a malfunction theory. The court need not address this issue as discussed by WABBO— the jury was not charged on malfunction and malfunction was not the basis for the plaintiff’s claim against WABBO.
B. The court rejects the contention that the verdicts are inconsistent. To an extent, the medical defendants conflate liability and damages. The verdicts are consistent— arguably, necessarily so— in determining that the damages sustained by the plaintiff amount to $ 1 million. She sustained the exact same injuries for purposes of both the negligence/medical malpractice claim and the product liability claim, and it would be hard to discern a basis on which the damages awards would be different.
The situation with respect to liability is different. There was a difference in the "universe" of parties in the two separate claims asserted by the plaintiff, and the jury acted appropriately. In the medical malpractice claim, where the only other party was, effectively, Dr. Wang (the Center having acknowledged derivative liability), the jury was required, pursuant to General Statutes § 52-572h, to allocate responsibility (negligence) as between the plaintiff and Dr. Wang. The provisions of subsection (o) of that statute explicitly forbid consideration of liability of parties who might be legally responsible on a theory of liability other than negligence, which would preclude consideration of product liability claims. Therefore, given that "universe" of parties, the jury allocated 100% responsibility to defendant Wang (and derivatively, against defendant Center).
*24 The parties do not dispute, however, that for purposes of a product liability claim, General Statutes § 52-572o is the governing statute. As in the case of negligence actions governed by § 52-572h, a plaintiff’s recovery is reduced by her own assigned percentage of responsibility, which as in the negligence case, was determined to be 0%. Section 52-572o requires consideration of the "nature and quality" of the conduct of each party, for purposes of assigning comparative responsibility in the realm of product liability, and with a "universe" of other parties that includes both WABBO and Dr. Wang, the jury undertook its responsibility in assigning responsibility as between those parties. There is nothing inconsistent in a determination that, as between the plaintiff and Dr. Wang, Dr. Wang bore 100% responsibility, but that determining that if WABBO was added to the list of parties whose conduct was to be considered, Dr. Wang was only 20% responsible as compared to the 80% responsibility of WABBO.
The court recognizes that § 52-572o likely was drafted with a more typical scenario in mind— a plaintiff suing multiple defendants, all under a product liability theory, e.g., suit against the manufacturer, distributor, and perhaps an end-seller. The parties have not disputed, however, the applicability of the statute to this scenario.
The court notes that WABBO has cited a number of cases for the proposition that it was proper to submit to the jury the issue of allocation of responsibility as among all parties, e.g., Ambro v. Inland Paperboard & Packaging, J.D. New Haven at Meriden, CV04 0287592-S, 2004 WL 3130537 (December 20, 2004) and Gazza v. Bandit Industries , Inc., J.D. New Britain (complex litigation docket) X03 CV 99 0499931S, 2001 WL 106828 (January 22, 2001) , whereas defendants Wang and Center have submitted no authority suggesting that the court should have adopted any approach other than the one taken.
Accordingly, the court rejects the contention that the verdict should be reduced on this basis.
C. Defendant Wang’s contention that "the verdict should be set aside because the jury could not have found in plaintiff’s favor on Dr. Wang’s special defense" was addressed during the course of argument, and for the reasons stated at the time, must be rejected. While the premise of the argument is reasonable, and indeed perhaps even probable— that the plaintiff, herself, may have come into contact with the lamp assembly, providing the outside force necessary for the lamp head to descend— it is a quintessential jury issue as to whether that constituted negligence— a lack of reasonable care for one’s own safety. It was for the jury to determine whether such movement (if it occurred) was unreasonable, given the circumstances of a patient, lying on a treatment table with needles inserted at various locations in her foot, being asked to remain totally immobile for several minutes. This argument depends not on a determination that the plaintiff probably moved and probably bumped against the lamp assembly, but the characterization of such a movement as unreasonable under the circumstances. The jury might have determined that she did not move, but if the jury determined that she had moved, it is clear they did not attribute any level of fault to such movement. The jury verdict cannot be disturbed on this basis.
Dr. Wang, in his testimony, stated that he did not blame the plaintiff for what happened.
D. Defendant Wang also argues that the jury could not have found for defendant WABBO on its special defense of contributory responsibility, with respect to the product liability claim. Part of this argument relies on the contention that with respect to the product liability claim, the burden on WABBO was the same as on the plaintiff in the medical malpractice claim (proof of breach of the relevant standard of care), an argument already rejected. To the extent that the defendant argues that even if that standard does not apply, there was inadequate proof, the discussion of adequacy of evidence in the negligence claim as to negligence and causation necessarily apply equally if not more so when there is no required framework of a standard of care.
*25 F. The defendants also claim that the plaintiff engaged in improper arguments. The parties did not submit any transcript of the offending argument, nor any transcript reflecting any objection of the parties and the court’s response, if any. The court will not guess as to what was or was not said, other than to note that the court generally is sensitive to any "send a message" argument, and does not recall such language being used. To the extent that the argument is, in part, that the plaintiff used subtler language to convey the same message, again, the court cannot address the issue without a record— including a record that the matter was brought to the court’s attention in a timely manner and that the court’s response was prejudicially inadequate. (As often observed by appellate courts in criminal cases in which the defendant claims that there was an improper argument by the prosecution, the fact that no objection was made during the course of argument or immediately thereafter (as far as the court recalls) suggests that the argument was not immediately perceived to be offensive or objectionable.) If truly objectionable, a timely objection could have elicited a suitable corrective instruction or admonition; based on the descriptions of the allegedly offensive language, however, the court cannot conclude that anything that might have been said so undermined the fairness of the proceeding as to warrant setting aside the results of the trial, even absent an objection.
Conclusion
The court has attempted to go through all of the issues raised by the parties in challenging the jury’s verdict.
With respect to the earlier decision denying the motions to dismiss relating to the opinion letter, it is not free from doubt as to whether Peters and earlier cases mandate dismissal in the event of an inadvertently omitted but otherwise sufficient opinion letter. Under the circumstances of this case, with decisions prior to Peters indicating the same statute of limitations benchmark, the court cannot ignore the untimeliness of raising the issue, after a month-long trial to a verdict, in turn after approximately 6 years of pre-trial proceedings. Given the probably-unique circumstances before the court, the court denies the requests that the motions to dismiss be granted at this late date.
The court rejects the argument that there was inadequate expert testimony as to the standard of care and causation with respect to the medical malpractice phase of the proceedings. There was expert testimony in both regards, and the issue of use of a device (heat lamp) and especially the process of ensuring that it was in safe condition, blends not only common experience but also raises the question of whether that truly is medical negligence— ensuring that the device is safe (not unreasonably unsafe or defective) is not part of the actual treatment of a patient.
The court believes the jury was properly charged with respect to the comparative responsibility of Dr. Wang with respect to the product liability claim. The medical defendants have cited no authority for the proposition that customary misuse of a product, if characterized as a standard of care, should immunize a product user from sharing responsibility when a third party is injured by such misuse.
As to the amount of the verdict, while the defendants may feel that the award was excessive, given the limited scope of injuries being claimed (e.g., no economic damages), they have not demonstrated that it was excessive within the meaning of the law— it did not "shock the conscience of the court." The court would be hard-pressed to come up with a rationale for reducing the verdict, however generous it may appear to be.
In sum, then, the defendants have not identified any basis on which the court should direct a verdict in their favor, set aside the verdict in favor of the plaintiff, order judgment in favor of the defendants notwithstanding the verdict, or reduce the verdict as excessive. Accordingly, all of the motions for directed verdict, motions to set aside the verdict, motions for remittitur, and motions for judgment notwithstanding the verdict, are denied.