Opinion
CV136019426
04-15-2016
Chetan Vaid et al. v. Equinox Greenwich Old Track Road, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO SET ASIDE THE VERDICT (#271)
Hon. Charles T. Lee, J.
On or about August 8, 2013, plaintiffs commenced this action for negligence against Joseph Dominguez, a personal trainer, and against Equinox Old Track Road, Inc., the owner of a fitness facility in Greenwich, Connecticut and Equinox Holdings, Inc., the parent company, for vicarious liability, negligent retention and supervision, and recklessness, as well as loss of consortium against all defendants. The complaint alleges that plaintiff Dr. Chetan Vaid suffered a carotid artery dissection while using a Concept2 rowing machine at defendants' facility as a result of Dominguez's negligent instructions and improper response to Dr. Vaid's complaints, which were in turn the result of the corporate defendants' poor training and negligent retention of Dominguez. Dr. Vaid suffered a massive stroke a few hours later at Greenwich Hospital, which caused the loss of use of forty percent of his brain and permanent injuries and seizures dramatically interfering with his medical practice and enjoyment of life. The case went to trial before a jury on January 26, 2016. On February 23, 2016, the jury returned a verdict of $14,500,000 in favor of the plaintiffs, reduced to $10,875,000 upon a finding of twenty-five percent comparative negligence by Dr. Vaid.
On March 4, 2016, the defendants filed this motion to set aside the jury verdict, with a memorandum in support attached. Plaintiffs filed an opposition on March 31, 2016, and defendants filed a reply memorandum on April 5, 2016. Argument was heard on April 7, 2016.
Defendants' motion to set aside the verdict is based on the following grounds:
1. The court improperly permitted Jonathan Near, a rowing coach, to offer expert testimony about the standard of care applicable to a personal trainer when giving instruction on a rowing machine;
2. The court improperly admitted evidence of the handling and destruction of the notes of Mr. Dominguez's supervisor, Patrick Freeman;
3. The court improperly charged the jury as to negligence, permitting the use of either a professional or a layman's standard of care;
4. The evidence did not support the verdict as to causation; and
5. The evidence did not support the verdict as to foreseeability of Dr. Vaid's injuries.
As more fully set forth below, the court denies defendants' motion to set aside the verdict in its entirety.
DISCUSSION
A trial court should not set a verdict aside where there was some evidence upon which the jury could reasonably have based its verdict, but 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. Purzycki v. Fairfield, 244 Conn. 101, 106-07 (1998). The court must consider the evidence and all inferences drawn therefrom in a light most favorable to the successful party. Craine v. Trinity College, 259 Conn. 625, 635 (2002); Gaudio v. Griffin Health Services, 249 Conn. 523, 534 (1998). A motion to set aside should not be granted unless the jurors could not reasonably and legally reach the verdict they reached. Craine, supra, 259 Conn. 636. A court is empowered to set aside a jury verdict when it is contrary to law or unsupported by the evidence; however, recognizing that it may impinge on the parties' rights to a jury trial, the verdict should not be set aside where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. Carusillo v. Associated Woman's Health Specialists, P.C., 72 Conn.App. 75, 83 (2002).
" [T]he role of the trial court on a motion to set aside the jury's verdict is not to sit as a seventh 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 . . . A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear . . . A verdict will be deemed intelligible if it clearly manifests the intent of the jury." (Citation omitted; internal quotation marks omitted.) Hall v. Bergman, 106 Conn.App. 660, 680 (2008), aff'd, 296 Conn. 169 (2010). Overall, " [a] party challenging the validity of the jury's verdict on grounds that there was insufficient evidence to support such a result carries a difficult burden . . . [I]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it." (Citation omitted; internal quotation marks omitted.) Broadnax v. New Haven, 294 Conn. 280, 299 (2009).
ANALYSIS
1. Mr. Near's Expert Testimony Was Properly Admitted
Mr. Near is a rowing coach and instructor who has taught hundreds of novices and athletes in proper rowing techniques using, among other things, the Concept2 rowing machine. Mr. Near testified as to the proper setting to be employed on the rowing machine, which was much lower than that used by Mr. Dominguez. He also testified that Equinox was negligent in not providing Mr. Dominguez with instruction as to how to use the machine properly.
Defendants assert that the verdict should be set aside because Mr. Near was not qualified to opine as to the standard of care for a personal trainer on the use of a rowing machine, because Mr. Near did not work as a personal trainer in a gym. In making this argument, defendants rely on cases dealing with expert testimony in medical and legal malpractice.
Defendants' argument is mistaken, perhaps because they conceive this case in the context of professional malpractice where provisions such as Gen. Stat. § 52-184c require that standard of care testimony be adduced as provided by a " similar health care provider." Here, however, defendants' expert, Professor Thompson, testified that there was no professional standard of care in the personal training industry.
Accordingly, the appropriate test for admissibility of expert testimony is simple: Does the witness " possess knowledge beyond the ken of the average juror that would be of assistance in the fact-finding function." Gois v. Asaro, 150 Conn.App. 442, 451 (2014). Here, Mr. Near had years of experience in training people on the Concept2 machine, which is the heart of the case.
Additionally, plaintiffs supplemented Mr. Near's testimony with that of another expert witness, Mr. Charles DeFrancesco, who is a certified personal trainer and gym owner, and author of a best practices manual, who testified about that defendants were negligent in their instructions to Dr. Vaid and training of Mr. Dominguez. Further, the instruction manuals for the Concept2 machine were admitted into evidence, which prescribed settings diametrically at odds with those used by Mr. Dominguez with Dr. Vaid. As a result, the court rejects defendants' contentions relating to Mr. Near's testimony.
2. Defendants' Challenge to the Adequacy of Evidence of Spoliation is Improper and Invalid
Defendants claim that there was insufficient evidence of intentional destruction of Mr. Freeman's notes concerning Mr. Dominguez's training methods to allow admission of any evidence of spoliation or to support such a charge to the jury. The court disagrees.
First, defendants did not move for a directed verdict on this matter, which is a necessary prerequisite to a motion to set aside on the grounds of insufficiency of evidence. Practice Book § 16-37, in relevant part, provides: " After the acceptance of a verdict and within the time stated in Section 16-35 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict . . ." In other words, perhaps because " [t]he purpose of the motion for directed verdict with respect to the [motion] to set aside . . . is to give notice to the trial court"; Salaman v. Waterbury, 246 Conn. 298, 309, 717 A.2d 161 (1998); " [a] motion for a directed verdict is a prerequisite to the filing of a motion to set aside the verdict." Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 49, 717 A.2d 77 (1998); accord Bauer v. Pounds, 61 Conn.App. 29, 35, 762 A.2d 499 (2000).
In all but one situation, this is the accepted rule. Only when " a party [can] not raise an issue in a motion for a directed verdict during trial because the issue [does] not arise until after the jury return[s] its verdict" (emphasis omitted), Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 565 n.9, 845 A.2d 417 (2004), is a motion for a directed verdict not a necessary prerequisite. In this one instance, " the [trial] court ha[s] the inherent authority to set aside the verdict without the prior filing of a motion for a directed verdict." Id. " The trial court may, for example, set aside the verdict in the exercise of its inherent power when that verdict is inconsistent, as a matter of law, with the jury's answers to interrogatories." Id. Accordingly, defendants may not raise this issue, and two others discussed below, in a motion to set aside.
Even if it were proper to raise the spoliation issue in the present motion, defendants' argument is without merit. First, it is illogical to argue that a party may not introduce evidence of an issue because there is insufficient evidence supporting the claim. A party obviously has the right to introduce such evidence as it possesses to satisfy its burden of proof. Second, there was evidence in the record, i.e., Trial Exhibit 61, that Equinox had a policy regarding the disposal of managers' notes. Third, the handling of a supervisor's notes regarding the training of Dr. Vaid was plainly relevant to plaintiff's claim of negligent supervision. Fourth, the spoliation charge given by the court was precisely the charge requested by the defendants. They will not be heard to claim error now, having supplied the charge at issue.
3. The Court's Instructions Relating to the Standard of Care Were Proper
Defendants next claim that the court's charge to the jury regarding the standard of care was improper. Initially, both parties submitted draft charges which invoked the standard of care to be used by a reasonable person. The court included this language in its charge to the jury. However, after the close of evidence, defendants changed their requested charge to one applying a professional standard of care, despite the fact that their expert had testified that there was no standard of care accepted by the fitness industry with the respect to the use of rowing machines. Defendants then seemed to make the argument that, therefore, any conduct would be acceptable. After discussion, the parties and the court agreed that, in the event no such standard existed, then common sense should prevail and a reasonable person charge be applicable. This was the sum total of the charge given by the court, with complete, explicit agreement of the defendants.
As a result, the court rejects defendants' argument. If the charge was incorrect, the error was induced by defendants. As the Appellate Court held in State v. Martone, 160 Conn.App. 315, 328 (2015),
When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal . . . Thus, [w]aiver . . . involves the idea of assent, and assent is an act of understanding." (Internal quotation marks omitted.) State v. Reddick, 153 Conn.App. 69, 85, 100 A.3d 439, appeal dismissed, 314 Conn. 934, 102 A.3d 85, and cert. denied, 315 Conn. 904, 104 A.3d 757 (2014).
Moreover, " [t]his court routinely has held that it will not afford review of claims of error when they have been induced." (Internal quotation marks omitted.) State v. Grant, 149 Conn.App. 41, 57, 87 A.3d 1150, cert. denied, 312 Conn. 907, 93 A.3d 158 (2014). " As we previously have explained, the term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the [alleged] erroneous ruling . . . It is well established that a party who induces an error cannot be heard to later complain about that error . . . This principle bars appellate review of induced nonconstitutional error and induced constitutional error." (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v. Brunetti, 279 Conn. 39, 59 n.32, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007). " The invited error doctrine rests [on principles] of fairness, both to the trial court and to the opposing party." (Internal quotation marks omitted.) State v. Grant, supra, at 57, 87 A.3d 1150.
Although the principle of induced error would apply here, the court believes the charge to have been correct in light of the proof adduced at trial.
4. There was Sufficient Evidence to Support the Jury's Finding of Causation
As discussed above, defendants cannot properly raise a challenge to the sufficiency of the evidence as to causation by the present motion, having failed to raise the issue in a motion for directed verdict. See Willow Springs Condominium Assn., Inc., supra, 246 Conn. 49 (" A motion for a directed verdict is a prerequisite to the filing of a motion to set aside the verdict").
Nevertheless, the court finds that there was sufficient evidence to find the jury's finding that the defendants' negligence " was the cause in fact and proximate cause of the injuries claimed by plaintiffs." See Answers to Jury Interrogatories 2 and 4. Defendants point to expert testimony at trial establishing that there is no minimum threshold of exertion sufficient to cause a dissection of the carotid artery, and that a sneeze may be sufficient.
However, defendants ignore the testimony of one of their own experts, Dr. Isaac Silverman, that the rowing machine activity " probably did . . . cause the carotid artery dissection." Further, defendants presented the expert testimony of three medical professionals, Drs. Skudder, Zhou and Richter, that the extension of the neck caused by the use of the rowing machine by Dr. Vaid as instructed by Mr. Dominguez could cause such a dissection. Accordingly, there was sufficient evidence from which the jury could reasonably have concluded that Dr. Vaid's dissection and subsequent stroke were caused by defendants' negligence.
5. There was Sufficient Evidence to Support a Conclusion of Foreseeability as to Plaintiff's Injuries
Finally, defendants assert that no witness testified that " a stroke was a contemplated risk from exercising on the Concept2 rower, let alone a carotid dissection, " and, therefore, there was insufficient evidence to support the jury's necessary conclusion of foreseeability. The court rejects this contention for a number of reasons.
First, the argument as to insufficiency of evidence is again precluded by defendants' failure to make it in a motion for a directed verdict, under the holding of Willow Springs Condominium Ass'n, supra .
Second, the defendants seek to apply the incorrect standard of foreseeability by arguing that the specific risk of a stroke arising from the improper use of a rowing machine must have been foreseeable. Defendants cited the proper standard in their proposed jury charge, dated February 5, 2016 at 10-11: " The inquiry fundamental to all proximate cause questions is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence . . . This does not mean that you must find that Mr. Dominguez actually foresaw the probability of the exact harm that Plaintiffs allege befell Dr. Vaid." This statement is consistent with our Supreme Court's holdings on the issue. See Ruiz v. Victory Properties, LLC, 315 Conn. 320, 335 (2015) (the harm suffered must be of the same general nature as that foreseen); Allen v. Cox, 285 Conn. 603, 610 (2008) (" [T]he test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?").
Plaintiffs adduced substantial evidence in addition to the doctors' testimony that excessive exercise, especially with bad form, can cause serious injury. Reference material was admitted identifying stroke as a risk of exercise. Messrs. Near and DeFrancesco testified that neck injury was a foreseeable risk on a rowing machine, especially if the damper setting was too high. Evidence was also admitted to the effect that persons inexperienced with the use of rowing machines were especially at risk. Accordingly, the proof at trial adequately supported the jury's finding of foreseeability as to the type of harm suffered by Dr. Vaid at the Equinox facility.
CONCLUSION
For the reasons set forth above, defendants' motion to set aside the verdict of the jury in this case is denied.