Opinion
No. CV 06-5004423
May 27, 2008
Memorandum of Decision
On December 6, 2007, the plaintiffs, Diane Charamut and Douglas Merrifield, filed a motion to set aside the verdicts rendered by the jury on November 28, 2007 in favor of the plaintiff, Charatmut, in the amount of $701.36 and in favor of the defendants, Robert and Kevin Brownell, with respect to Merrifield's claims. Following argument on January 14, 2008, the court denied said motion on February 27, 2008, and pursuant to Practice Book § 64-1(a), this court issues its memorandum of decision.
In this case, the defendant admitted liability in this motor vehicle collision but vigorously contested the issues on causation and damages. Charamut, in particular, had a significant history of pre-existing injuries, including severe degenerative spine disease, severe scoliosis, arthritis, a prior accident and previous left lumbar disc surgery. Her chiropractor assigned to Charamut a 10 percent partial permanent impairment of the cervical spine with 5 percent attributed to previous wear and tear and a 15 percent partial permanent impairment of the lumbar spine with 12 percent attributable to the previous lumbar spine condition. Evidence before the jury included testimony by the defendant driver, Robert Brownell, that he was traveling at a rate of five miles per hour in a parking lot when the collision occurred and that none of the parties required immediate medical attention.
The plaintiffs' motion to set aside the verdict was predicated on its challenge to defense counsel's statement in closing argument, following a recitation of Charamut's pre-existing medical history, that it would be "unfair to my client to make him pay for all of that." Defense counsel further argued that the plaintiffs were "very nice people and you want to help them, but you have to do what's fair, just and reasonable for everybody in this case and that includes my client. And it's not fair to ask someone to pay for things that would have happened anyway." The crux of the plaintiffs' concern was their claim that because of the undisputed existence of insurance, defense counsel's use of the word "pay" was essentially "the equivalent of a statement that he did not have liability insurance to make such payments."
Although plaintiffs' counsel made no objection either during or after closing argument on November 27, 2007, he raised this issue the next morning on November 28, 2007, just prior to the court's charge to the jury and thereafter. After consideration, this court declined to give a curative instruction and following further consideration upon hearing the motion to set aside, declined to set aside 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 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 . . ." (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006). "[Courts] must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict . . . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable . . . In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it." Id., 704. "Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb." (Internal quotation marks omitted.) Edmands v. CUNO, Inc., 277 Conn. 425, 453, 892 A.2d 938 (2006). "A verdict should be set aside if there has been manifest injury to a litigant, and it is singularly the trial court's function to assess when such injury has been done since it is only that court which can appraise the atmosphere prevailing in the courtroom." (Internal quotation marks omitted.) Palkimas v. Lavine, 71 Conn.App. 537, 548, 803 A.2d 329, cert. denied, 262 Conn. 919, 812 A.2d 863 (2002).
This court appreciates the concern that the existence or non-existence of insurance can play an improper role in a jury's deliberations. Geraty v. Kaufman, 115 Conn. 563, 576, 162 A. 33 (1932) (recognizing that "some judges have deemed it wise to warn the jury that that fact [of insurance] had no bearing upon the issues and should be dismissed from their consideration") For this court, however, "[t]he question is whether the remarks at closing argument went beyond or fell short of `a generous latitude in argument' generated by the `zeal of counsel'" such that the plaintiffs were deprived of a fair trial. Palkimas v. Lavine, supra, 71 Conn.App. 544. This court, however, is not convinced that the use of the word "pay" necessarily implicates the existence of a lack of insurance. Moreover, the prospect of a curative charge delivered the day after argument, in which the jury is told that the defendant was not personally responsible financially for the damages owed, could have improperly underscored the existence of insurance. Geraty v. Kaufman, supra, 115 Conn. 576. ("[M]any judges have felt it the part of wisdom to ignore it, since to warn the jury [of the fact of insurance] would only serve to call their attention to it and accentuate its importance.")
More significant to this court, however, is the extent to which its jury instructions, under the totality of the circumstances, mitigate the potential prejudicial effect of the word "pay." To the extent that the "unfair to pay" argument improperly attempts to stoke the sympathies of the jury, the court addressed on several occasions the issue of sympathy and the impropriety of its role in deliberations. Early in the charge, the court warned the jury that it must not find facts based on sympathy for any party or other person who stands to gain or lose as a result of its verdict. Subsequently, the court again reminded the jury that an award of damages to an injured person is not to be made or refused, or increased or decreased in amount, based on sympathy for or hostility towards any plaintiff or defendant. The court again noted that when assessing the amount of damages to which the plaintiffs are entitled, the jury was not to consider the effect of the award on the defendants and that the effect of the award on the defendants was not relevant to its determination. In its summary, the court again charged the jury with the reminder that it must coolly, considerately and with minds unswayed from its duty by any kind of passion or sentiment, determine its verdict from a careful consideration of the facts as disclosed by the evidence and the application of the law to those facts.
The plaintiff argues that these admonitions would be "unlikely to have a lasting impression on the jury and in any event would not have been effective in erasing the message that had already been delivered the previous day." The court, however, also delivered a brief charge just prior to closing argument which very specifically warned the jury of potential impropriety in closing argument.
Prior to the closing arguments of counsel, the court explained to the jury that there were certain legal principles that pertain to closing arguments: (1) that closing arguments of the attorneys are not evidence in the case; and (2) that the lawyers are also prohibited from presenting any statement to them which may unduly arouse their emotions or sympathies or distract them from their duty to consider the evidence in a dispassionate manner in accordance with their oath. Additionally, the court also instructed the jury members at that time that if, during the course of these statements, they at any time come to believe that any comment made by an attorney fails to comport with the rules of practice, they are instructed to disregard that particular comment. The court then told the jury that such a comment may not influence its deliberation or its verdict in any manner.
Given these charges and the evidence itself, the plaintiffs have failed to met their burden of demonstrating that they suffered "`manifest injury' . . . or that the remarks were `unreasonable' . . . or `flagrantly prejudicial'" to warrant setting aside the verdict." (Citations omitted.) Palkimas v. Lavine, supra, 71 Conn.App. 544.
The motion to set aside the verdict is denied.