Opinion
CV146020782
05-26-2016
Maureen Scott v. Lisa Donovan
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO SET ASIDE THE VERDICT AND MOTION FOR NEW TRIAL
James J. Devine, J.
The above-entitled civil jury trial went to verdict on April 4, 2016. The jury unanimously found in favor of the plaintiff, Maureen Scott, in the amount of $206, 953.53 with the plaintiff 10% comparative negligent in causing her injuries and the defendant 90%. The jury awarded $41, 953.53 economic damages and $165, 000.00 in noneconomic damages. After the 10% deduction, the jury's award was $186, 258.17.
The defendant, Lisa Donovan, pursuant to Connecticut Practice Book § 16-35, filed a motion to set aside the verdict on the ground that " it is against the law in the evidence and more particularly, the following reasons:"
1. The court erred by permitting the plaintiff to disclose Expert Witness, Mark Tebbets, to testify at trial concerning expert opinions upon which he was not disclosed;
2. The court erred by permitting the plaintiff's Expert Witness, Mark Tebbets, to testify despite the absence of a reasonable basis for his opinion;
3. The court erred in permitting the plaintiff's Expert Witness, Mark Tebbets, to testify as to a cause of the plaintiff's fall which required speculation as to the location of a handrail;
4. The absence of a handrail was a condition existing at the subject location and not a legal cause of the plaintiff's fall;
5. The jury's verdict was erroneous in that it was against the great weight of the evidence and was not consistent with the evidence presented at trial.
The defendant moves the court to set aside the verdict and moves for judgment in its favor notwithstanding the verdict. In the alternative, the defendant moves the court for an order for a new trial.
I. Legal Standard
Litigants have a constitutional right to have issues of fact decided by a jury. Connecticut Constitution, Art. I. § 21; see also Ginsberg v. Fusaro, 225 Conn. 420, 425, 623 A.2d 1014 (1993). " [T]he constitutional right of a trial by jury includes the right to have issues of fact as to which there is room for reasonable difference of opinion among fair-minded men passed upon the juror and not by the court." Caciopoli v. Acampora, 30 Conn.App. 327, 332, 620 A.2d 191 (1993). " The credibility and weight to be attributed to any evidence offered [at trial] is solely within the province of the jury." Murteza v. State, 7 Conn.App. 196, 208-09, 508 A.2d 449 (1986). Thus, the evidence at trial must be afforded the most favorable construction to which it is reasonably entitled in support of the verdict. Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999), quoting Fink v. Golenbock, 238 Conn. 183, 208, 680 A.2d 1243 (1996).
A motion to set aside or open a civil judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. " A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied." Deas v. Diaz, 121 Conn.App. 826, 841, 998 A.2d 200, cert. denied, 298 Conn. 905, 3 A.3d 69 (2010). A verdict may also be set aside if its result justifies a suspicion that a juror or jurors were influenced by prejudice, corruption or partiality." (Citation omitted.) Novak v. Scalesse, 43 Conn.App. 94, 97-98, 681 A.2d 968, cert. granted, 239 Conn. 925, 682 A.2d 1004 (1996). Where, however, it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion, the verdict should not be set aside. Deas, 121 Conn.App. at 841.
" The role of the trial court on a motion to set aside the jury's verdict is not to sit as [an added] juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did." Marciano v. Kraner, 126 Conn.App. 171, 177, 10 A.3d 572, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011). " If there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will." Jacobs v. Goodspeed, 180 Conn. 415, 419, 429 A.2d 915 (1980).
The defendant claims that the court erred in permitting the plaintiff's building code expert, Mark Tebbets, to testify at trial concerning expert opinions upon which he was not disclosed. Evidence in this case began on March 29, 2016. That morning, prior to jury preliminary instructions and the commencement of evidence, the defendant filed a motion in limine seeking to preclude the plaintiff's expert at trial and asserting, for the first time, that Mark Tebbets, who had been described as a building code expert in a timely name, should not be permitted to testify as to the 2005 State Building Code. The defendant claimed that Mark Tebbets was disclosed as to his opinions of the 1999 Building Code and should, therefore, be precluded from testifying as to the 2005 code.
This issue, expert preclusion, was discussed with counsel at the end of evidence on March 29, 2016. The court excused the jury for the following day so that the court could conduct a " Porter " -type hearing. The parties were in dispute as to what building code revision and for revisions applied to the present controversy. On March 30, 2016, in a hearing that lasted the majority of the day, the plaintiff produced Mr. Tebbets who offered his testimony and was cross-examined by defense counsel. The defendant had previously deposed Mr. Tebbets as to the applicability of the 2000 and 2005 revisions to the code. The reasons for his changes in opinion were also fully discussed on cross examination by defense counsel at the hearing.
The defendant claimed prejudice as a result of the modification of Mr. Tebbets' application of code revisions to this case. He claimed his expert would need to review his report and potentially view the property. In lieu of granting the motion in limine, the court issued a sanction requiring the plaintiff to pay for the preparation costs to review his report, make a new visit to the subject property and amend his report and/or trial testimony accordingly.
The trial court has wide discretion in ruling on the admissibility of expert testimony, unless that discretion has been abused or the ruling involves a clear misconception. Coughlin v. Anderson, 270 Conn. 487, 514-15, 853 A.2d 460 (2004). While the parties or the court may have referred to the motion in limine exclusion hearing or a " Porter " -type hearing, the subject matter did not involve junk science or novel field of mathematical and/or scientific discovery. The issue is whether the defendant, who had previously deposed the expert witness, was prejudiced in any change of opinion concerning the applicability of one or more of the State Building Code revisions. The court concluded that the sanction imposed was the appropriate remedy to the dispute in question.
The defendant's expert did revisit the subject real estate and testified with the knowledge of Mr. Tebbets' prior testimony before the jury. The court exercised its discretion mindful of the policy to have a case tried on the merits whenever possible so the litigants have their day in court. The defendant had the opportunity to question Tebbets at the hearing concerning his opinion revisions. The court is not required to preclude expert testimony when there is a discrepancy between previously disclosed subject matter of an expert testimony and the proffered testimony at trial. Kemp v. Ellington Purchasing Corp, 9 Conn.App. 400, 405, 519 A.2d 95 (1986). The court must view the matter in determining what remedy, if any, is appropriate to prohibit undue prejudice to the opposing party. Furthermore, the sanction imposed permitted the costs of the defendant's expert to revisit the subject property and knowledge of Tebbets' opinion revisions avoids any prejudice to the defendant.
The defendant next claims that Mark Tebbets had no reasonable basis for his expert opinion. Expert opinion should be admitted when (1) the witness has a special skill or knowledge directly applicable to a matter in issue; (2) that skill or knowledge is not common to the average person; and (3) the testimony would be helpful to the court or jury in considering the issues. State v. West, 274 Conn. 605, 629, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S.Ct. 775, 163 L.Ed.2d 601 (2005). Mr. Tebbets has extensive experience with the Connecticut State Building Codes and testified as to his educational background, job history, planning and consulting experience and construction experience. He took measurements of the subject property and consulted the applicable state residential building codes and arrived at his opinions as testified to in court.
The defendant had deposed Mr. Tebbets before trial and cross examined him at the hearing on March 29, 2016 outside the presence of the jury and again at trial. The court concludes that the sanctions imposed on the plaintiff avoided any prejudice to the defendant and it did not err in permitting Mr. Tebbets to give his expert opinions to the jury.
The defendant next claims that the court erred in allowing Mr. Tebbets to testify as to the cause of the fall. At trial, Mr. Tebbets testified as to his opinion did not comply with the 2005 Building Code in all ways required. His measurements of the riser heights resulted in a noncompliance with the code in his opinion. He opined that the necessity of a fourth riser would require a hand rail located on at least one side of the staircase in question, either on the side closest to the house or the side further from the house ending a post at the landing. He further opined that the handrail would give a person knowledge of the existence of a staircase going in a certain direction. He further stated that in his opinion that a post on the landing would have indicated which way the staircase went. His testimony on direct examination was limited to the opinion that a handrail would have alerted the plaintiff to the presence of the stairs. This direct testimony the defendant did not raise any objection to his testimony.
On cross examination, defense counsel asked Mr. Tebbets his opinion realed to causation:
Q: Okay. And it is your opinion that the absence of a handrail is a substantial factor leading to the plaintiff's fall, correct?
A: I believe so.(Cross Examination of Mr. Tebbets, p. 55.)
The jury heard from Mr. Tebbets that in his opinion, on direct examination, the handrail omission failed to alert the plaintiff as to the direction of the staircase and further on cross examination, that the lack of the handrail was a substantial factor in causing the plaintiff's fall.
It is important to note that the jury charge, agreed to by counsel, did not include any specific language regarding cause and/or condition which was discussed with counsel at the charging conference. Furthermore, the jury charge included common-law claims of negligence in Section 7a, b and c on page 16 of the jury charge. The plaintiff claimed that the defendant (a) failed to keep the premises, including all stairway and handrails in a reasonably safe and in proper condition; (b) lack of handrails around the aforementioned stairway resulted in an unreasonably safe condition; and/or (c) the defendant, in the exercise of due care and inspection should have known of the defective condition aforesaid. The jury charge was given to the jury with no exceptions taken by counsel with a general verdict returned without any interrogatories submitted, with none requested by counsel. While reasonable minds could differ as for the percentage of responsibility attributed to each party, this is a question answered by the jury, not to be set aside by the court.
The defendant next claims that the jury could not have reasonably concluded as they did based upon the facts and testimony in evidence. The defendant contends that the absence of a handrail was a condition existing at the subject location and was not a legal cause of the plaintiff's fall. As previously stated, no jury charge was requested by either party regarding cause versus condition. Mr. Tebbets and the defendant's expert both gave their expert opinions as to legal responsibility imposed on the plaintiff and/or the defendant for the fall in question. The defendant questioned Mr. Tebbets in cross examination as to whether the cause of the fall could be attributed to the lack of a handrail. The credibility and weight to be attributed to any evidence offered at trial is solely within the province of the jury. Murteza v. State, 7 Conn.App. 196, 209-09, 508 A.2d 449 (1986). The court concludes that the jury could have reasonably found the defendant maintained her property at common law in a dangerous condition or in violation of the Connecticut Building Code. The amount of the responsibility allocated between the parties is also a duty for the jury to decide. Conclusions of a jury which is honest, acting fairly and intelligently might arrive reasonably, must stand. Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940).
ORDER
The defendant's motion to set aside the verdict and motion for a new trial is hereby denied.