Opinion
No. CV 05 5000354
February 17, 2010
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE THE VERDICT OR FOR ADDITOR MOTION FOR REMITTUR MOTION FOR COLLATERAL SOURCE REDUCTION
On November 4, 2009, the jury in this case returned a verdict in favor of the plaintiff on the issue of liability. The jury determined that the plaintiff suffered economic damages in the amount of $38,350.59 and non-economic damages in the amount of $121,649.41 for a total of $160,000.00. This amount was reduced by 50% for the comparative responsibility that the jury assigned to the plaintiff, Heidi Laudenat. This resulted in a plaintiff's verdict in the sum of $80,000.00.
Subsequent to the court's acceptance of the verdict, parties have filed a number of post-trial motions which the court will address in this memorandum. The court heard argument on these post-trial motions on December 7, 2009. At that time, during the course of argument, defense counsel indicated that they were withdrawing their claim for a collateral source reduction. Thus, it remains for the court's resolution, the plaintiff's Motion to Set Aside the Verdict And/or for Additur (dated November 13, 2009) and the defendant's Motion for Remittitur (dated November 13, 2009).
The plaintiff has filed a Motion to Set Aside the Verdict and/or For Additur. She asserts that the verdict is inadequate as a matter of law. The plaintiff identifies eight alleged errors made by the court during the course of the trial that would warrant the granting of her motion for a new trial and two allegations of error that are addressed to the jury's verdict and which would support the granting of a motion for Additur.
The defendant filed a Motion for Remittitur and a Motion for Collateral Source Reduction pursuant to Practice Book § 16-35. The defendant has withdrawn its claim for a collateral source reduction. The defendant continues, however, to argue that the verdict in this case should be reduced by the sum of $35,000, which sum reflects the settlement that the plaintiff obtained from a former co-defendant, Warren Equities, Inc.
Standard of Review
Trial courts are frequently presented with post-trial motions challenging the adequacy or findings of a jury verdict or trial court rulings. The seminal case of Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000), provides guidance to the trial court. In Wichers the Supreme Court overruled prior precedent which held that a verdict in a personal injury case which awarded the plaintiff economic damages for medical treatment but zero non-economic damages was per se inadequate. A trial court in reviewing a jury's verdict is constrained by several principles. "The right to a jury trial is fundamental in our judicial system, and . . . 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. Because in setting aside the verdict, the trial court deprives the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, our role generally is to examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion." Internal citations omitted, Wichers, supra at 188. "(T)he trial judge must do just what every juror ought to do in arriving at a verdict. The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly . . . The trial judge in considering the verdict must do the same . . . and if, in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial . . ." Wichers, supra, 187-88. "(T)he trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue. That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do." Wichers, supra, 188-89.
In Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), the court held that an award limited to nominal or special damages necessarily and logically required an award of non-economic damages, and that, therefore, an award limited to economic damages is inadequate as a matter of law and should be set aside.
In Lombardi v. Cobb, 99 Conn.App. 705, 708-09 (2007) the court surveyed cases addressing these issues. "In cases in which it was appropriate to set aside the verdict and to order an additur, the jury reasonably could not have declined to award non-economic damages. See, e.g., Schroeder v. Triangulum Associates, 259 Conn. 325, 332-34, 789 A.2d 459 (2002) (jury inconsistently found defendant liable for plaintiff's surgery expenses but not liable for pain attendant to that surgery and clearly did not credit evidence of plaintiff's unrelated injuries); Fileccia v. Nationwide Property Casualty Ins. Co., 92 Conn.App. 481, 488-89, 886 A.2d 461 (2005) (jury necessarily found plaintiff had experienced pain, and there was no evidence plaintiff had preexisting condition), cert. denied, 277 Conn. 907, 894 A.2d 987 (2006); Snell v. Beamon, supra, 82 Conn.App. 146-47 (jury's failure to award noneconomic damages Page 709 palpably against evidence); Elliott v. Larson, 81 Conn.App. 468, 477, 840 A.2d 59 (2004) (jury necessarily found plaintiff suffered pain and could not work). In cases in which it was not appropriate to set aside the verdict and to order an additur, the jury reasonably could have chosen not to award noneconomic damages. See, e.g., Medes v. Geico Corp., 97 Conn.App. 630, 638-39, 905 A.2d 1249 (conflicting evidence as to extent of injuries and their effect on plaintiffs' daily lives), cert. denied, 280 Conn. 940, 912 A.2d 476 (2006); Smith v. Lefebre, 92 Conn.App. 417, 423-27, 885 A.2d 1232 (2005) (conflicting evidence as to nature and extent of injuries); Turner v. Pascarelli, 88 Conn.App. 720, 728-31, 871 A.2d 1044 (2005) (conflicting evidence as to severity and duration of pain and extent to which plaintiff recovered from prior injuries); Schettino v. Labarba, 82 Conn.App. 445, 449-50, 844 A.2d 923 (2004) (conflicting evidence as to cause of injuries).
It is not the function of this court to "sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we 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 . . . Moreover, in reviewing the jury verdict, it is well to remember that jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life . . ." (Citation omitted; internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 112-13, 708 A.2d 937 (1998). Stated another way, "[I]f the jury could reasonably have reached its conclusion, the verdict must stand," even if this court disagrees with it. Donner v. Kearse, 234 Conn. 660, 681-82, 662 A.2d 1269 (1995).
Further, the court has the authority "using due caution, and in the exercise of its discretion, to set aside a verdict when satisfied that its rulings on evidence were erroneous and those erroneous rulings were consequential enough to have had a substantial effect on the verdict." Ardoline v. Keegan, 140 Conn. 552, 555-56 (1954).
CT Page 5645
Plaintiff's Motions.
The plaintiff has filed a Motion to Set Aside the Verdict and/or For Additur. She asserts that the verdict is inadequate as a matter of law. The plaintiff identifies eight alleged errors made by the court during the course of the trial that would warrant the granting of her motion for a new trial and two allegations of error that are addressed to the jury's verdict and which would support the granting of a motion for additur.Specifically, the plaintiff claims that the court a) erred in refusing to grant the plaintiff's motion in limine regarding the proposed expert testimony of Mark Hopkins; b) erred in allowing the defendant to allege the comparative responsibility of the plaintiff despite the defendant's failure to properly plead this special defense at the outset of the litigation; c) erred in precluding Dr. Frank Maletz from testifying regarding the likely cost of future surgery; d) erred in failing to instruct the jury to consider the feasibility of alternative designs; e) erred in allowing the jury to consider evidence of an absence of other accidents; f) erred in allowing the defendant to introduce the plaintiff's original complaint in this action; g) erred in allowing the defendant to introduce the vehicle door handle without laying a proper foundation; and h) erred in allowing the defendant to utilize two enlarged excerpts from the plaintiff's trial testimony during closing arguments.
In addition to the arguments that the court erred in certain rulings, the plaintiff also asserts that the jury erred in finding that the plaintiff was 50% responsible for her injuries because such a finding was against the weight of the evidence, and further, that the jury's verdict of non-economic damages was unreasonably low and inadequate as a matter of law.
The court has reviewed the plaintiff's arguments with regard to rulings that the court made during the course of the trial. This review reveals that the plaintiff has put forward substantially the same arguments that were made during the course of the trial. The sole area where the plaintiff has brought additional material to the attention of the court relates to the court's ruling which prohibited the plaintiff's physician from testifying as to the costs of her probable future medical procedures. Here the plaintiff argues that the defendant was not prejudiced by her failure to disclose an estimated cost of future medical treatment because in earlier pretrial proceedings the plaintiff asserted a claim for future economic damages and assigned a specific dollar value ($30,000) for that loss. The court did allow testimony by the plaintiff's physician as to the probability of future surgical interventions, the type of procedure that would be involved and the amount of time that would be required for recouperation. There is no dispute, however that a specific dollar estimate of these future costs was not disclosed. The court does not believe that it erred in its sustaining of the defendant's objection to this testimony. With regard to the remaining allegations of erroneous trial court rulings, the court has not been given any reason to revise its prior decisions.
The last two arguments that the plaintiff makes with regard to its motion for setting aside the verdict or for an additur requests that the court invade the province of the jury as the trier of fact. The plaintiff asserts that the jury erred in finding that the plaintiff was 50% responsible for her injuries because such a finding was against the weight of the evidence, and further, that the jury's verdict of non-economic damages was unreasonably low and inadequate as a matter of law.
The plaintiff and the defendant in this case advanced different theories of how the injuries suffered by the plaintiff were caused. The plaintiff posited that the car wash brush mechanism caused the front door of the plaintiff's vehicle to open and thereafter the door became engaged with the gantry of the car wash machine. Once the door of the plaintiff's vehicle was engaged with the gantry, the machine continued to move forward and broke the door hinges such that the door was pushed against the front fender of car. As the door was engaged by the gantry the plaintiff attempted to close the door. As she was engaged in the effort of closing the door, her foot slipped off the door sill and became entrapped between the carwash machine and the door of her vehicle. The plaintiff made further arguments that even if the brushes did not open the car door that the car wash machine was defective because it did not have a slip clutch mechanism. If such a mechanism had been in place the machine would have stopped once it meet the resistance of the car door hinges.
The defendant posited that its car wash brushes did not open the car door. The defendant further questioned the plaintiff's memory of how the accident actually happened and whether the plaintiff acted reasonably when she attempted to close the car door.
The jury was thus presented with differing theories of how the car door became open and what was a reasonable person to do once they discovered that their car door was engaged with a large machine. The gantry machine moved at a relatively slow speed and there was likely a period of several seconds between when the car door initially engaged the machine and when the machine started to deform the drivers side door and push the car door forward against the front fender of the car.
The jury, as the trier of fact, was and is free to accept all, a part or none of the trial testimony. Here the jury resolved questions of fact created by the proffered testimony and assigned the plaintiff fifty percent of the comparative responsibility. The jury in essence found that the product manufactured by the defendant was defective and unreasonably dangerous in one or more of the ways alleged by the plaintiff. The jury was within is province to review the conduct of the plaintiff both prior to the time the car door and the machine became engaged and after the car door became engaged and the plaintiff attempted to close her car door. Was the plaintiff's memory accurate that she completely and securely closed her car door prior to driving her car into the car wash bay? Was it reasonable for the plaintiff to try and close her door and risk placing her hands and her feet outside vehicle while the car wash machine was in the middle of a cycle? Should the plaintiff at some point in time have realized that she could not close the door and that she should desist in her efforts? These are some of the questions that were presented to the court's mind as it listened to the evidence in this case. In this context the court cannot find that the jury's assignment of comparative responsibility was "clearly against the weight of the evidence . . . as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or [was] governed by ignorance, prejudice, corruption or partiality."
The plaintiff further asserts that the jury's verdict of non-economic damages was unreasonably low and inadequate as a matter of law. The court agrees that the plaintiff received a significant injury in this action and that the injuries are permanent in nature. The court notes that the jury awarded non-economic damages in this case in the amount of $121,649.41. This is not an insignificant award, even though it was not what was requested by the plaintiff in closing argument. The court cannot substitute its judgment for that of the jury in this instance. The jury's assessment of non economic damages does not shock the conscience of the court.
Defendant's Motions
The defendant filed a Motion for Remittitur and a Motion for Collateral Source Reduction pursuant to Practice Book § 16-35. The defendant has withdrawn its claim for a collateral source reduction. The defendant continues, however, to argue that the verdict in this case should be reduced by the sum of $35,000, which sum reflects the settlement that the plaintiff obtained from a former co-defendant, Warren Equities, Inc.
The court is not persuaded by this argument. The court is of the opinion that even if the amount of the settlement with Warren Equities, Inc. is added to the verdict rendered by the jury, the amount of such an award, given the nature and severity of the injuries suffered by the plaintiff, does not shock the conscience of the court.
Summary
The plaintiff's Motion to Set Aside the Verdict And/or Additur is denied. The defendant's Motion for Remittitur is denied. The Motion for a Collateral Source Reduction has been resolved without the involvement of the court.