Opinion
No. X03CV984022301
December 27, 2006
MEMORANDUM OF DECISION MOTION TO SET ASIDE THE VERDICT
The present action arises out of the untimely death of Lisa Monti, the plaintiffs' decedent (the decedent), on November 21, 1996. While additional facts may be included where necessary, the basic underlying facts are as follows. On November 8, 1996, the decedent, a normally healthy seventeen year old, was seen by a physician's assistant at the office of her doctor, Mark J. Decker, M.D., a family physician. She was suffering from an apparent ear infection for which the physician's assistant prescribed an antibiotic. On November 14, 1996, the decedent returned to Decker's office where she was again seen by a physician's assistant who directed the decedent to continue the antibiotic, return home and rest. On November 15, 1996, she was admitted to Rockville General Hospital suffering from a rash, fever, earache, headache, and loss of appetite. It was thought that she was having an allergic reaction to the antibiotic, so she was taken off of that antibiotic and prescribed an alternative. She was subsequently discharged on November 16, 1996. Later that same day, the decedent returned to the hospital as her condition had worsened. In addition to the symptoms she had previously exhibited, she had throat tightness, difficulty swallowing and an increased respiratory rate. She was admitted into the intensive care unit of the hospital. On November 17, 1996, Decker took over her care and remained the attending physician until November 20, 1996, when he discharged her from the hospital.
On November 21, 1996, the day after the decedent was discharged from the hospital, her mother, Audrey Monti, contacted the decedent's psychiatrist, Naomi Wenkert, M.D., and scheduled an appointment for 3 o'clock that afternoon. When the decedent arrived for the appointment, she was in severe respiratory distress and collapsed to the ground. The decedent was able to regain her composure sufficiently to have a counseling session with Wenkert, who diagnosed her as suffering from a panic attack and prescribed Ativan, a sedative used to treat anxiety. The decedent passed away that evening at approximately 9:30 p.m. It was later determined that her death was a result of acute respiratory distress syndrome (ARDS) caused by a viral infection, a condition that went undiagnosed by both Decker and Wenkert.
On November 5, 1998, the plaintiffs, Audrey and Robert Monti, as co-administrators of the decedent's estate, filed a complaint against Wenkert alleging that her actions relating to the treatment, diagnosis and care of the decedent on November 21, 1996, were negligent and caused the decedent's injuries and death. Specifically, the plaintiffs alleged that Wenkert was negligent in failing to diagnose the decedent's true physical condition of respiratory dysfunction and instead diagnosing and treating for the psychological condition of a panic attack.
The complaint was also filed against The Institute of Living and The Institute of Living Medical Group, P.C. The complaint alleged that Wenkert was a servant, agent, employee and/or ostensible agent of The Institute of Living Medical Group, P.C. On November 15, 1999, the action was withdrawn as to The Institute of Living. Although the Institute of Living Medical Group, P.C. remained a defendant, this decision refers to Wenkert as representative of both defendants.
On March 26, 1999, Wenkert filed an apportionment complaint against Decker seeking apportionment of liability pursuant to General Statutes §§ 52-102b and 52-572h. In the apportionment complaint, Wenkert alleged that Decker was negligent in his treatment of the decedent during her hospitalization. Specifically, Wenkert claimed that Decker failed to appropriately evaluate, diagnose and treat the decedent for her true condition of respiratory dysfunction. On May 18, 1999, the plaintiffs filed a complaint against Decker pursuant to General Statutes § 52-102b(d).
Mark J. Decker, M.D., d/b/a Ellington Family Practice and Rockville General Hospital were also named as defendants in the apportionment complaint. The apportionment complaint was withdrawn as to Rockville General Hospital on April 29, 1999. This decision refers only to Decker as representative of both Decker and his practice.
Mark J. Decker, M.D., d/b/a Ellington Family Practice was also named as a defendant in this complaint filed by the plaintiffs.
The jury trial in this case began on February 23, 2005, and was held over the course of five weeks, with closing arguments being presented on March 29, 2005. On April 8, 2005, the jury returned a verdict in favor of Wenkert, finding in the special interrogatories that she had not breached the applicable standard of care. This verdict was accepted by the court. Also on April 8, 2005, the jury attempted to return a verdict in favor of the plaintiffs against Decker. The court did not accept this verdict and directed the jury to reconsider its award of damages. On April 11, 2005, the jury returned a verdict in favor of the plaintiffs against Decker and awarded $750,000 in economic damages and $1,000,000 in noneconomic damages. The court accepted this verdict.
Presently before the court is Decker's motion to set aside the verdict. Decker has raised and briefed four grounds in support of this motion. Decker claims that (1) the untimely filing of a good faith certificate requires that the verdict be set aside; (2) the trial court improperly instructed the jury in connection with its reconsideration; (3) the trial court erred in allowing the jury to reconsider its attempted verdict, which possessed indicia of a compromise verdict; and (4) an agreement between Wenkert and the plaintiffs was not disclosed to Decker and therefore prejudiced Decker's defense during trial. "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 . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . ." (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006).
Decker has asserted additional grounds on the face of his motion challenging several of the court's rulings throughout the trial, including evidentiary rulings. Decker has not briefed these additional grounds. Therefore, the court relies on its previous rulings and does not address those issues in this decision.
I Good Faith Certificate
On July 13, 1999, Decker filed a motion to strike the plaintiffs' complaint on the ground that it did not contain a good faith certificate as required by General Statutes § 52-190a, as in effect at the time of this case. On August 10, 1999, the court, Teller, J., denied the motion to strike. On December 26, 2001, Decker moved for summary judgment as to the plaintiffs' complaint on the ground that their claims were legally insufficient without a good faith certificate. On January 11, 2002, the plaintiffs filed a request to amend their complaint, which included an attached good faith certificate. On February 15, 2002, the court, Aurigemma, J., overruled Decker's objection and allowed the amended complaint. On January 6, 2003, this court denied the summary judgment on the ground that the complaint included a good faith certificate.
General Statutes (Rev. to 1999) § 52-190a(a) provides in relevant part: "No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. For the purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, 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. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith."
Section 52-190a has subsequently been amended by No. 05-275 of the 2005 Public Acts. This decision's discussion is limited to the law as it was under the statute prior to amendment.
Decker now argues that the court should set aside the verdict against him because the plaintiffs' original complaint against him did not contain a good faith certificate. This court rejects Decker's position. First, Decker has not cited, and this court has not found, any case in which a verdict was set aside on the ground that the good faith certificate was not filed timely. It is well established that a lack of a good faith certificate is a defect curable by amendment, as it is akin to an essential allegation of a cause of action. LeConche v. Elligers, 215 Conn. 701, 711, 579 A.2d 1 (1990). It is also well established that amendments to a complaint relate back to the original filing as long as additional claims are not raised. Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 775, 905 A.2d 623 (2006). As this court has previously ruled in connection with the motion for summary judgment, the filing of the good faith certificate cured any defect and ensured that the complaint was legally sufficient.
Decker also claims that the court's evidentiary rulings at trial related to the filing of the good faith certificate require the verdict be set aside. The court relies on its previous rulings with respect to these issues.
Decker contends, however, that the lack of the good faith certificate in this case evidences the absence of a precomplaint inquiry which is a separate and distinct requirement of § 52-190a. The court agrees that there is a distinction between the filing of the good faith certificate and the precomplaint inquiry. While the former is evidence of the latter, the absence of a certificate does not necessarily mean that the precomplaint inquiry requirement was not met. LeConche v. Elligers, supra, 215 Conn. 711.
The court rejects Decker's claim that the verdict should be set aside under the circumstances of this case. The plaintiffs filed an amended complaint containing a good faith certificate, certifying a good faith basis to bring an action against Decker. At oral argument on the motion presently before the court, counsel for the plaintiffs stated that the good faith as certified to related back to the filing of the complaint against Decker on May 18, 1999. The plaintiffs' counsel has also taken this position previously. In footnote 1 of its memorandum on a motion in limine (#227), filed on February 22, 2005, the plaintiffs' counsel states: "In fact, the plaintiffs have filed a certificate of good faith that asserts that an investigation was made and that a good faith basis did exist at the time the action was filed against defendant Decker." (Emphasis added.)
Decker, however, relies on two things in arguing that the plaintiffs' counsel lacked good faith supported by a precomplaint inquiry. First is the plaintiffs responses to requests for admission in November 2001, clearly indicating that the plaintiffs' had not obtained "a written opinion of a similar health care professional" that would give rise to a good faith basis to bring an action against Decker. Second, Decker cites to a comment made by the plaintiffs' counsel at the hearing on the motion to strike on August 9, 1999. At that time, the plaintiffs' counsel stated: "In this case to be frank with the court and with everybody present we did investigate a claim against [Decker] and were not able to have somebody who we could rely on file a good faith certificate."
Neither leads to the conclusion that the verdict against Decker should be set aside. First, in reviewing the transcript of the oral argument before Judge Teller on August 9, 1999, it is quite clear that the comment by the plaintiffs' counsel was in reference to the time period before the filing of the original complaint against Wenkert in October 1998. The court finds that this statement cannot be deemed a judicial admission that the plaintiffs lacked good faith in filing the complaint against Decker seven months later in May 1999. Additionally, "the statute permit[s] the plaintiffs . . . to establish a reasonable precomplaint inquiry by reference to factors beyond the certificate evidencing their good faith, and beyond any written expert opinion they may have secured." LeConche v. Elligers, supra, 215 Conn. 709. In other words, the statute contemplates an offer of proof of good faith other than a written opinion of a similar health care provider. See Yale Diagnostic Radiology v. Kluczinsky, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 95 0052811 (June 5, 1998, Corradino, J.) [ 22 Conn. L. Rptr. 221] In the present case, therefore, the requests for admission, which only address "written opinions of similar health care providers" did not conclusively establish the absence of good faith.
Furthermore, a challenge to the veracity of the good faith certificate should have been pursued under the statute. "If the court determines after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative, shall impose upon the person who signed such certificate, a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney submitted the certificate." General Statutes § 52-190a(a).
Although Decker challenged the lack of and/or sufficiency of the good faith certificate in a variety of ways including in a motion in limine filed on February 18, 2005 (#226) seeking to preclude expert testimony on the standard of care, there is no indication in the file that Decker requested the court to conduct an inquiry as provided for in the statute. The plaintiffs' counsel explicitly has stated in a memorandum of law filed on February 5, 2002 (#177), that he was prepared to offer proof of his good faith if, such a hearing was held. "Assuming without deciding that `an appropriate sanction' for filing a false certificate includes dismissal, it is clear that such a dismissal would be discretionary, rather than required . . ." LeConche v. Elligers, supra, 215 Conn. 712. After a full trial, the jury in this case reached a verdict finding Decker solely liable for the death of the decedent. Even assuming arguendo that Decker is correct and that the certificate of good faith was filed falsely, no authority has been cited which would indicate that "an appropriate sanction" in this case would be dismissal. This court declines to set aside the verdict on this basis. CT Page 23443
In footnote 10 of his memorandum of law in support of the motion to set aside the verdict (#249), Decker claims that on February 22, 2005, one day before the trial began, he moved this court to conduct an inquiry provided for in the statute. This court's review of the file reveals that no such motion was filed or otherwise presented to the court.
II Reconsideration of Verdict
Decker argues that the verdict should be set aside on the ground that the court's instructions related to the jury's reconsideration were improper. Additional facts relevant to this ground are as follows: On Friday, April 8, 2005, at 10:57 a.m., the jury indicated that they had reached a partial verdict, i.e., it had reached a verdict as to Wenkert, but were "hopelessly deadlocked at 5 to 1 on question 4" of the special interrogatories, which asked whether Decker's breach of the standard of care was the proximate cause of the decedent's injuries and death. In response, the court gave the jury a "Chip Smith" charge; see State v. Smith, 49 Conn. 376 (1881); and instructed the jury to continue its deliberations. At the end of that same day, the jury indicated that they had reached a verdict as to both defendants. Through the special interrogatories, the jury indicated that the plaintiffs had failed to prove that Wenkert was negligent, and accordingly, rendered a defendant's verdict in favor of Wenkert. The jury further indicated that it had found Decker liable and awarded $750,000 in economic damages and $0 in noneconomic damages. The court accepted the verdict as to Wenkert and informed the jury that "there is an issue that requires further instruction concerning the plaintiffs' verdict." The court concluded by directing the jury to return the following Monday.Upon reconvening on Monday, April 11, 2005, after extensive discussion with counsel on the record, the court provided the following instructions to the jury. "Ladies and gentleman . . . under the circumstances of this case, you essentially in completing the special interrogatories found liability as to Dr. Decker. And, so under that circumstance, and under the specific facts of this case, you could not have reasonably found no noneconomic damages. So, I'm going to reinstruct you . . . on a couple of things. The function of the court and the jury. And, I'm going to ask you to reconsider your finding on noneconomic damages, in light of the instructions that I'm about to give you." The court then read portions of the original instructions on the duty of the court and jury, as well as the wrongful death and noneconomic damage instructions. The court concluded by instructing the jury as follows. "Now, here's what we're going to do, that concludes my instructions . . . I'm going to send you back with the plaintiff's verdict form, a new one, we've got your other one, we're marking it as an exhibit to be maintained in the file. And, we'll give you back the interrogatories that you had, and I'm going to ask you to reconsider the issue of noneconomic damages . . . which may require an adjustment as to interrogatory number 5, if that's the case, then, just next to that line scratch out the original entry, and put in the new entry, and I'll ask the foreperson to sign and date that. It's the only thing you have to do with the special interrogatory form. The plaintiff's . . . verdict form, that is the same form, it's just a new form. So I'm going to return these items to you, and send you back at this point to continue your deliberations." The jury was returned to deliberate at 11:40 a.m.
Shortly after 12:00 p.m., the jury sent a note to the court that read as follows: "The jury is still very unclear regarding the `range' of noneconomic damages we should be considering that would be acceptable to the court. Currently there continues to be great disagreement as to what we should consider." (Emphasis in original.) The court recalled the jurors and instructed them as follows. "[W]hat you should consider are those elements of damages, just to be very brief, that I mentioned to you, and that are included in the charge. Physical pain and suffering, and loss of enjoyment of life, those are the elements for you to consider in weighing a noneconomic damage award. What I said to you, is that the fact that you came up with zero, under the facts and circumstances of this case, that is having found that Dr. Decker was negligent, having found that his negligence, or an aspect of his . . . or more than one aspect of his negligence proximately caused the death . . . the injury and death to Lisa Monti, that it was not in . . . in making an award of economic damages, in the amount of [$750,000], that under all the circumstances it was not reasonable for you, the jury, to conclude that there was zero noneconomic damages. That's what I was telling you. I wasn't suggesting to you, and I cannot suggest to you that there is a particular range that you should consider. And it doesn't matter what's acceptable to the court, it's what you the jury . . . what was unacceptable to me, was that as a matter of law, based on the other things we knew about what you concluded, and it was not reasonable for you to come up with zero. That's, from my perspective that's all that I needed to say about the subject. So, there is no . . . the issue for you, as I indicated to you before, is that it's up to you to . . . noneconomic damages, now you've heard me say this, and I, you know, it's like defining an orange as being an orange, it's round and it's orange. That it's . . . they're necessarily approximate and intangible, and there's no precise mathematical formula, there's no fixed rule, you are to consider the elements of noneconomic damages, that I outlined to you, and you have to do your best to make a fair estimate taking into account your common observation and experience in applying your common sense to do your very best, to come up with an award that is fair, just, and reasonable. And, that's the key, ladies and gentleman, under all the circumstances, looking at everything, considering all the evidence that you've heard, and based on the findings that you've already made, what is fair, just, and reasonable as a noneconomic damage award. And, that's the best I can do, except to wish you well, and thank you, again."
The jury deliberated further until 12:20 p.m., when they sent a note to the court indicating that they had reached a verdict. The jury then returned a verdict in favor of the plaintiffs and awarded $750,000 in economic damages and $1,000,000 in noneconomic damages.
Decker argues that the court acted improperly in that (1) the court limited the jury to reconsideration of noneconomic damages; (2) the court directed the jury to return an award of noneconomic damages instead of instructing them as to the relevant law and leaving the issue to their determination; and (3) the court failed to declare a mistrial when the jury inquired about what range of damages would be acceptable to the court. The court disagrees with Decker's characterization of the instructions and finds that the instructions were proper under the circumstances of the case.
General Statutes § 52-223 permits a trial court to return a jury for reconsideration of its verdict. See also Practice Book § 16-17. "The supervision which a presiding judge has over a verdict which may be rendered is an essential part of the jury system, and that supervision tends to make jurors more careful in reaching their conclusions . . . The control of the court over the verdict of the jury is limited but salutary . . . General Statutes § 52-223, which permits the court to return a jury to consider their verdict, appropriately employed, is a salutary and effective method of exercising judicial supervision over a verdict which may be rendered by a jury. The practice of returning the jury for further consideration has been followed since Russell v. Bradley, 4 Day [Conn.] 403, 406 [1810], by the authority of § 52-223 and its predecessors." Van Nesse v. Tomaszewski, 265 Conn. 627, 634, 829 A.2d 836 (2003).
Section 52-223 provides: "The court may, if it judges the jury has mistaken the evidence in the action and has brought in a verdict contrary to the evidence, or has brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for the same reason may return them to a third consideration. The jury shall not be returned for further reconsideration after a third consideration."
It is certainly true that a jury is permitted to reconsider and change aspects of their verdict other than the portions commented on by the trial court. Id., 635. It is, however, proper for a court to limit its reconsideration instructions to the aspect of the jury's verdict that the court believes necessitates reconsideration. Our Supreme Court has consistently held this to be a proper exercise of the trial court's supervision over the verdict. See, e.g., Cruz v. Drezek, 175 Conn. 230, 242, 397 A.2d 1335 (1978) ("[i]t was quite proper for the court in returning the jury to inform them why they were being returned"); Marini v. Wynn, 128 Conn. 53, 57, 20 A.2d 400 (1941) ("court could properly assume from the first verdict that the jury had finally settled the issue of the defendant's liability, and confine its instructions solely to the question of the adequacy of the damages awarded"); Black v. Griggs, 74 Conn. 582, 584, 51 A. 523 (1902) ("[i]nasmuch as the court may return the jury either because it judges that they have mistaken the evidence, or have misunderstood the directions of the court, it is proper for the court to inform the jury why they are so returned").
Although a court may focus a jury's attention on one particular aspect of the verdict, the court may not require the jury to change that part of the verdict. A jury retains the right to persist in its original verdict. The court's obligation to instruct the jury as to this right is largely dependent upon the particular facts of the case and the problematic portion of the verdict. "The extent to which a trial court shall instruct a jury as to its right to persist in a verdict after reconsideration depends upon the circumstances of each case. Where there may be a reasonable difference of opinion, the court should be careful not to give the impression to the jury that they must return a different verdict and should make it clear to them that it is their right to persist in that first returned. On the other hand, if the verdict first returned is so clearly unreasonable that the trial court would be bound to set it aside, the jury have failed to perform their duty and the court would be justified in pointing that out to them . . . For them in such a case to persist in their verdict, while within their power, would not be a proper exercise of it. In such a case a trial court is not under an obligation expressly to instruct the jury that after reconsideration they may return the same verdict, but it does its full duty if it leaves it open to them to do so." (Citation omitted.) Barbieri v. Pandiscio, 116 Conn. 48, 54-5, 163 A. 469 (1932).
In the present case, the jury attempted to return a verdict finding Decker liable for the decedent's death, and awarding $750,000 in economic damages, but zero noneconomic damages. Under the facts and circumstances of this case, this was not an acceptable verdict. The decedent was seventeen years old at the time of her death. There was substantial and uncontroverted evidence of ante-mortem physical pain and mental suffering and loss of enjoyment of life. Given these circumstances, the court narrowed its instructions to reconsideration of noneconomic damages. In so doing, the instruction indicated, "I'm going to ask you to reconsider the issue of noneconomic damages . . . which may require an adjustment to interrogatory number five, if that's the case, then, just next to that line scratch out the original entry, and put in the new entry, and I'll ask the foreperson to sign and date that." The court's instruction did not indicate that the jury must award noneconomic damages, just that they "reconsider the issue of noneconomic damages." In formulating this instruction, the court was guided by its assessment of the jury and the course of deliberations which had extended over eight days and included fourteen notes to the court. The jury was intelligent, conscientious and inquisitive whenever concerned or unsure of how to proceed or what they may properly consider. Given the length of the deliberations and the number of questions, there was a real concern that unless the instruction concerning reconsideration was narrow and direct, the jury might become confused or misperceive that they had done something wrong.
Since the court finds that the reconsideration instructions were proper under all the circumstances and did not unduly prohibit the jury, Deckers' motion to set aside the verdict on the basis of the reconsideration instructions is denied.
III Compromise Verdict
Decker argues that the jury's attempted verdict on April 8, 2005, represented an impermissible compromise verdict and, therefore, the subsequent verdict must be set aside because all further deliberations were inescapably tainted by the jury's improper conduct. "[A] verdict which is reached only by the surrender of conscientious convictions upon one material issue by some jurors in return for a relinquishment by others of their like settled opinion upon another issue and the result is one which does not command the approval of the whole panel, is a compromise verdict founded on conduct subversive of the soundness of trial by jury." (Internal quotation marks omitted.) McNamee v. Woodbury Congregation of Jehovah's Witnesses, 194 Conn. 645, 647-48, 484 A.2d 940 (1984), citing Murray v. Krenz, 94 Conn. 503, 109 A. 859 (1920). One such compromise verdict exists "where some of the jurors . . . conceded liability against their judgment, and some . . . reduced their estimate of the damages in order to secure an agreement of liability with their fellow jurors." (Internal quotation marks omitted.) Fazio v. Brown, 209 Conn. 450, 457, 551 A.2d 1227 (1988).
"Nonetheless, not every type of compromise made by jurors in reaching a verdict is inappropriate. While the jury cannot go to the extent of bartering their convictions in order to reach an agreement, the law contemplates that they shall by their discussions harmonize their views if possible. Therefore, a verdict which is the result of real harmony of thought growing out of an openminded discussion between jurors with a willingness to be convinced, a proper regard for the opinions of others, a reasonable distrust of individual views not shared by their fellows, and a fair yielding of one reason to a stronger one, each juror having in mind the great desirability of unanimity both for the parties and for the public, is not open to criticism." (Internal quotation marks omitted.) Meek v. Wal-Mart Stores, Inc., 72 Conn.App. 467, 491, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002).
Decker urges the court to conclude that the attempted verdict was based on an impermissible compromise by examining the "indicia of compromise" associated with the verdict. When ordering a new trial under rule 59(a) of the Federal Rules of Civil Procedure, federal courts will examine the circumstances of the jury's deliberations to determine whether it may properly be inferred that the Jurors had brokered their views on damages and liability in order to reach a verdict. While the federal courts differ slightly in formulating the factors to be examined as potential indicia of compromise, the following are typical: (1) inadequate damages award; (2) lengthy deliberations; (3) strongly contested liability; (4) jury notes requesting testimony related to liability; (5) expressions of deadlock from the jury; and (6) an attempt by the jury to qualify the verdict. See Pagan v. Shoney's, Inc., 931 F.2d 334, 339 (5th Cir. 1991); Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1445-46 (10th Cir. 1988); Burger King Corp. v. Mason, 710 F.2d 1480, 1488 (11th Cir. 1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984).
Rule 59(a) of the Federal Rules of Civil Procedure provides, in relevant part: "A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States . . ."
Decker relies on the following facts to support his argument that there is sufficient "indicia of compromise" in the present case. Decker's liability was a strongly contested aspect of the case. The jury deliberated for eight days. During these deliberations, the jury requested the read back of several witnesses' testimony, some of which was undoubtedly related to Decker's liability. Also, the jury indicated to the court that they were deadlocked as to Decker. Finally, the jury's attempted verdict awarding zero noneconomic damages was clearly inadequate under the facts of the case.
While federal courts may consider the length of deliberations under rule 59 of the Federal Rules of Civil Procedure, it is noted that in Connecticut, "we cannot infer misconduct from the duration of the jury's deliberations. The length of time that a jury deliberates has no bearing on nor does it directly correlate to the strength or correctness of its conclusions or the validity of its verdict." (Internal quotation marks omitted.) Judson v. Brown, 98 Conn.App. 381, 383, 908 A.2d 1142 (2006).
On April 1, 2005, the jury sent a note to the court that read: "The jury has made a decision regarding one physician but is deadlocked on the other; how should we proceed?" On April 7, 2005, the jury sent a note that read: "Since these two cases are linked are we permitted to render a verdict on one physician and be undecided/deadlocked on the other." Finally, on April 8, 2005, the jury sent a note that read: "The jury has a partial verdict. We have answers to questions 1-3 on the special interrogatories but are hopelessly deadlocked at 5 to 1 on question 4." (Emphasis in original.)
The court disagrees that the accepted verdict must be set aside on the ground that the attempted verdict was possibly the result of an impermissible compromise. This conclusion is reached on two independent grounds. First, there exist alternative explanations for the attempted verdict other than it being the result of an impermissible compromise. Second, the jury's reconsideration and subsequent verdict removed the possibility of attack on the attempted verdict.
A Alternative Explanation for Verdict Meek v. Wal-Mart Stores, Inc., supra, 72 Conn.App. 467 (2002), indicates that the standard to determine if a verdict should be set aside on the ground of impermissible compromise results in a heavy burden placed on the moving party. In Meek, the plaintiff suffered an injury while he was in the defendant's store and shelved items fell onto him. Id., 469. The jury returned a verdict for the plaintiff, awarded $182,827 in total damages, and found the plaintiff fifty percent comparatively negligent. Id., 471. Our Appellate Court set aside the comparative negligence portion of the verdict, finding that there was no evidence in support. Id., 490. The defendant then argued that, in light of the court's holding on comparative negligence, the only logical explanation was that the jury had reached a compromise verdict. Id., 491. The court rejected the argument that the verdict was an impermissible compromise, explaining that "[t]here is a presumption of regularity in civil proceedings including jury deliberations . . . A court cannot resort to assumptions and conjecture when analyzing the basis of a jury's verdict." (Citation omitted; internal quotation marks omitted.) Id., 490; see also Zarrelli v. Barnum Festival Society, 6 Conn.App. 322, 329 n. 4, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986) ("[w]e cannot speculate . . . on the possibility of a compromise verdict on liability affecting the damages portion of the verdict"). The court reasoned that it would not set aside the verdict as the result of an impermissible compromise where "[it] easily can conceive of alternate reasons for the jury's verdict." Meek v. Wal-Mart Stores, Inc., supra, 72 Conn.App. 491.This approach is similar to the approach taken under federal law by the United States Court of Appeals for the Second Circuit. In Ajax Hardware Mfg. Corp. v. Industrial Plants Corp., 569 F.2d 181 (2d Cir. 1977), which involved a contract dispute, the plaintiff and defendant agreed that if the plaintiff was entitled to recover at all, then it was entitled to the liquidated damages of slightly over $160,000. Id., 184. Yet, the jury awarded $70,000 after the first trial. Id., 183. The district court found that the verdict was a compromise verdict and ordered a new trial on all issues on that ground. Id., 184. On appeal after the second trial, the Court of Appeals held that the district court erred in ordering a new trial on the ground of a compromise verdict. Id. The court conceded that "[t]he facts as stated present the very situation out of which an inference of a compromise verdict most readily arises." Id., 184. The court held, however, that "[w]hile a compromise may have occurred, there is an equally reasonable and perhaps even better explanation which involves no jury misconduct. In short, we hold that the new trial cannot be sustained on the ground upon which the district court granted it." Id., 184.
It is noted that practically all of the federal cases cited by Decker address compromise verdicts within the context of deciding whether a new trial must consist of all issues as opposed to damages only. This is a different context than when a court must decide whether to set aside a verdict on the ground of impermissible compromise. Ajax Hardware Mfg. Corp. v. Industrial Plants Corp., supra, 569 F.2d 184-85, is illustrative of this distinction.
In moving to set aside the verdict on the ground of an impermissible compromise verdict, Decker is asking the court to conclude that an impermissible compromise is the only reasonable explanation of the verdict. The court cannot do this without resorting to speculation. More importantly, there are other alternative and more reasonable explanations for the jury's deliberations and verdict.
First, there is a possibility that the original instructions may have caused the jury initially to not consider noneconomic damages. See Ajax Hardware Mfg. Corp. v. Industrial Plants Corp., supra, 569 F.2d 184 (holding that possible misunderstanding of instructions may have led to inadequate damages award). The court's instructions provided that, "in addition to economic damages, you may also consider noneconomic damages." (Emphasis added.) The jury may well have misunderstood this to mean that they had a choice whether or not to consider noneconomic damages. The permissive language used in connection with noneconomic damages is in clear contrast to the instructions on economic damages, where the court explained: "If you find for the plaintiffs, then the plaintiffs are also entitled to recover economic damages . . ." While it is by no means conclusive of the reason for the jury's attempted verdict, these instructions may have confused the jury.
Second, as reflected in the last note to the court before the verdict against Decker was finally accepted, the jury may have struggled with the amorphous nature of noneconomic damages. The present case is not a case where the damages are liquidated or otherwise easily calculable, so that the inference of an impermissible compromise is more readily evident. See, e.g., Lucas v. American Manufacturing Co., 630 F.2d 291 (5th Cir. 1980) (jury award of $3,500 when plaintiff had stipulated to damages of $8,503). Because concepts such as pain and suffering and loss of enjoyment of life are intangible in nature, placing a dollar figure on these elements of damage can understandably lead to frustration and confusion.
Third, the jury may well have struggled with the idea that, although wrongful death damages are awarded for the pain and suffering and loss of enjoyment of life of the decedent, the reality is that the award goes to others who may have been regarded by the jury as less deserving. While the jury was explicitly instructed not consider to whom any such award would go, it is not unlikely that they may have inferred, and taken into consideration, the fact that the parents would receive the benefit of a noneconomic damages award. When viewed in the light of Decker's counsel's skillful and pointed cross-examination of Audrey Monti and his closing argument, where the finger of blame for the decedent's death was also directed at the plaintiffs, this, too, is a reasonable alternative explanation for the actions of the jury. Significantly, it was precisely this possibility that prompted this court to reinstruct the jurors on the role of the court and the jury and wrongful death in addition to the reinstructions on noneconomic damages generally.
For the foregoing reasons, the court concludes that there are reasonable alternative reasons for the jury's attempted award of zero noneconomic damages. Therefore, the court will not set aside the verdict on the ground of impermissible compromise.
B Remedied by Reconsideration
There is no verdict until a verdict is accepted by the court. Van Nesse v. Tomaszewski, supra, 265 Conn. 635; see also State v. Searles, 113 Conn. 247, 256, 155 A. 213 (1931). Even assuming that the attempted verdict is deemed an improper compromise verdict, the court finds that the reconsideration and subsequent verdict remedied any impermissible considerations on the part of the jury. Therefore, the court rejects Decker's claim that the jury's deliberations were irreparably tainted after the April 8, 2005 attempted verdict.
Our Supreme Court rejected a similar claim in Letsch v. Slady, 145 Conn. 401, 143 A.2d 642 (1958), where the plaintiff brought a negligence action for injuries sustained in an automobile accident. Id., 402. The jury attempted to return a verdict in favor of the plaintiff with an award of six cents. Id. The trial court reinstructed the jury on issues of liability and damages, and requested that the jury reconsider its verdict. Id., 403. The jury subsequently returned with a defendant's verdict. The plaintiff sought to have the second verdict set aside "because prior to rendering of the verdict for the defendant the jury had brought in a verdict for the plaintiff in the amount of six cents, and said verdict was, on its face, frivolous and a compromise verdict and a result of passion, prejudice, partiality or mistake and so tainted that the jury could not accomplish substantial justice when sent back to reconsider the case." (Internal quotation marks omitted.) Id., 402. Our Supreme Court squarely rejected this argument and held: "The fact that the jury had reported a verdict for the plaintiff in the amount of six cents did not require that the court set aside the verdict for the defendant rendered by the jury after they had been reinstructed on the issues of liability and damages and were returned to the jury room by the court for further consideration of the case." Id., 403.
Similarly, there is no basis for setting aside this verdict where, after reinstruction and reconsideration, the jury rendered a proper verdict that is not amenable to attack as a compromise verdict. This conclusion is in harmony with the purpose of § 52-223, which allows a trial court to direct the jury to reconsider a verdict contrary to the law or evidence.
The only case cited by Decker that holds a trial court errs by returning a jury for reconsideration after the jury attempted a compromise verdict was decided by the Superior Court of New Jersey, Appellate Division. See Elvin v. Public Service Coordinated Transport, 4 N.J.Super. 491, 67 A.2d 889 (1949). Beyond the controlling Connecticut case of Letsch v. Slady, supra, 145 Conn. 401, there is law from other jurisdictions indicating that returning a jury for reconsideration is proper after an attempted compromise verdict. See, e.g., Burger King Corp. v. Mason, supra, 710 F.2d 1486 (11th Cir. 1983) (noting that "[n]either party brought these inconsistent results to the district court's attention until after the jury had been discharged and it was too late to resubmit the damages question to the jury"); Pedigo v. Carey, 650 S.W.2d 256, 258 (Ky. 1983) ("trial court should have granted the timely motion to send the jury back for further deliberations on the issue of damages").
IV Agreement
Subsequent to the acceptance of the verdicts in this case, Decker became aware for the first time of an agreement between Wenkert and the plaintiffs. On May 23, 2005, this court ordered that the plaintiffs disclose the existence and terms of this agreement. Disclosure revealed that a high-low agreement was entered into by Wenkert and the plaintiffs on March 18, 2005. At this point in the trial the plaintiffs had rested their case and Wenkert had already testified. The agreement contained, inter alia, the following provisions: (a) The plaintiffs' recovery would come solely from Transatlantic, the reinsurance group, or the Connecticut Guaranty Fund; (b) the case would be tried to a verdict; (c) if the jury returned a verdict for Wenkert, or against Wenkert for less than $300,000, the plaintiffs would receive $300,000; (d) if the jury returned a verdict against Wenkert for between $300,000 and $1,000,000, the plaintiffs would receive that amount; (e) if the jury returned a verdict against Wenkert for more than $1,000,000, the plaintiffs would receive $1,000,000; (f) the agreement would be null and void in the event of a mistrial; (g) the terms of the agreement are confidential and shall not be provided to anyone; and (h) the parties shall take actions necessary to give effect to the terms and intent of the agreement.
Since Wenkert's malpractice carrier was in liquidation, the possibility of a reinsurer paying any verdict against her was a possibility.
Decker characterizes the agreement as a "Mary Carter agreement," and argues that the verdict as to himself and as to Wenkert should be set aside because his lack of knowledge about the agreement resulted in prejudice and prevented him from receiving a fair trial. In particular, Decker argues that he was unable to cross examine witnesses as to their bias; was disadvantaged with respect to negotiating a settlement; could not guard against collusion between the plaintiffs and Wenkert; and, that there was a distortion of the trial procedure. The court disagrees with Decker's assessment of the significance of this agreement. First, the agreement is not properly characterized as a "Mary Carter agreement" because it lacks an essential element of such agreements, i.e., the creation of an inverse relationship between the amount owed by Wenkert and the amount of the verdict against Decker. Second, and more importantly, the agreement did not result in unfair prejudice to Decker.
The term "Mary Carter agreement" is derived from the agreement in Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla.Dist.Ct.App.2d Dist. 1967), and is a generic term used to describe certain agreements in multidefendant litigation. Mary Carter agreements arise when one, but not all, of the defendants reach an agreement with the plaintiff. Although specific provisions of a Mary Carter agreement will vary, it is typically held that they contain certain basic features, including that (1) the agreeing defendant guarantees the plaintiff a minimum monetary recovery regardless of the outcome; (2) the agreeing defendant remains in the litigation; (3) the agreeing defendant's liability is decreased in some proportionate relationship to an increase in the nonagreeing defendant's liability; and (4) the agreement remains secret. Ward v. Ochoa, 284 So.2d 385, 387 (Fla. 1973); Carter v. Tom's Truck Repair, Inc., 857 S.W.2d 172 (Mo. 1993); see also Black's Law Dictionary (7th Ed. 1999).
In fact, the introduction to the A.L.R. annotation covering Mary Carter agreements, which also addresses similar agreements, has distilled the essential characteristics even further, stating that "agreements that are within the scope of the annotation have two essential characteristics: the defendant remains a party to the lawsuit, and the amount the defendant ultimately owes the plaintiff is affected by the amount of the plaintiff's recovery against the nonsettling defendant, thereby giving the defendant a financial interest in the outcome of the verdict." Annot., 22 A.L.R. 5th 483, 498.
The subject agreement does not contain the offensive third characteristic. The importance of this key characteristic cannot be minimized. The prejudice that it creates is clearly the disconcerting aspect of Mary Carter agreements. In Simpson v. Matthews, 339 Ill.App.3d 322, 790 N.E.2d 401, cert. denied, 205 Ill.2d 647, 803 N.E.2d 501 (2003), the court explained: "The danger the courts have seen in Mary Carter agreements is clear: they give one defendant a motive to help the plaintiff obtain a judgment against another defendant that is larger than the plaintiff might otherwise have obtained." Id., 328. This point is elaborated upon in the following discussion by a commentator urging the prohibition of all Mary Carter agreements. "In a Mary Carter settlement . . . the settling defendant remains as a defendant in the trial. More importantly, however, he has acquired through the agreement a financial stake in a large judgment for the plaintiff against the codefendant. Together, the plaintiff and the settling defendant acquire a vested interest in seeing that the nonsettling defendant is found liable [and] that the plaintiff is awarded a large total judgment . . . In order to minimize his own ultimate financial liability to the plaintiff, the settling defendant adopts a new role, unlike that of an ordinary defendant. The plaintiff and settling defendant concentrate their combined energies against the nonsettling defendant. Instead of disputing the plaintiff's damages, the settling defendant works to maximize the court's judgment for the plaintiff. Rather than cooperating with his codefendant to minimize the culpability of all defendants, he works to exaggerate their negligence. In contribution jurisdictions, he and the plaintiff attempt to shift liability to the nonsettling defendant. The plaintiff, assured of the settling defendant's cooperation, is free to focus all his efforts against the nonsettling defendant. In short, the settling parties strive to maximize both the total judgment and the nonsettling defendant's share of that judgment." J. Benedict, "It's a Mistake to Tolerate the Mary Carter Agreement," 87 Colum. L. Rev. 368, 371-72 (1987).
The vast majority of cases addressing Mary Carter agreements explicitly place similar emphasis on the provision of the agreement that gives the agreeing defendant an incentive to increase the liability of the nonagreeing defendant. See, e.g., Dosdourian v. Carsten, 624 So.2d 241, 246 (Fla. 1993); Ratterree v. Bartlett, 238 Kan. 11, 28, 707 P.2d 1063 (1985); Ziegler v. Wendel Poultry Services, Inc., 67 Ohio St.3d 10, 17, 615 N.E.2d 1022, rehearing denied, 67 Ohio St.3d 1425, 616 N.E.2d 933 (1993); Cox v. Kelsey-Hayes Co., 594 P.2d 354, 357-58 (Okla. 1978). In fact, insomuch as secrecy of an agreement is expressly condemned by the courts, it is on the basis of the secrecy masking the unexpected incentive for the agreeing defendant to increase the liability of the nonagreeing defendant. See, e.g., Ward v. Ochoa, supra, 284 So.2d 387-88.
Not only did the present case not include the most troubling provision of a Mary Carter agreement, it also did not result in the type of unfair prejudice that Mary Carter agreements often create. This is particularly so because Decker and Wenkert were never codefendants united in a common cause against the plaintiffs. Instead, they were in an adversarial posture to begin with and their interests continued to be aligned against each other as the trial progressed. Decker was brought into this action by way of apportionment complaint filed by Wenkert. Even where true Mary Carter agreements are involved, courts will consider an evident adversarial relationship between codefendants as a factor supporting a finding of no prejudice to a nonagreeing defendant. If the true alignment of the codefendants is apparent to the parties, the court and the jury, introduction of the agreement to the jury is unnecessary because there is no prejudice to be avoided. See, e.g., Riggle v. Allied Chemical Corp., 180 W. Va. 561, 378 S.F.2d 282 (1989) (presence of indemnity cross claim between codefendants indicated that "the potential harm of nondisclosure was relatively small because the basic alignment of the parties was not significantly altered by the agreement").
While immediate disclosure of agreements in multidefendant litigation may be the better practice so that the court may forestall any adverse consequences as the trial progresses, failure to immediately disclose an agreement does not mandate the verdict be set aside absent unfair prejudice to the nonagreeing defendant. See Gum v. Dudley, 202 W.Va. 477, 484-85, 505 S.E.2d 391 (1997); Reynolds v. Anchem Products, Inc., 32 A.D.3d 1268, 822 N.Y.S.2d 216 (2006).
From the outset of the case and well before the agreement, Wenkert took the position that she was justified in relying on Audrey Monti's representation that the decedent had been "medically cleared" upon discharge from the hospital. Because of this, Wenkert claimed that she was entitled to assume that the decedent's physical condition was properly evaluated and treated during her extended stay at the hospital and that Wenkert's attention was justifiably focused on the decedent's psychological condition. Furthermore, Wenkert asserted that Decker's administration of intravenous steroids masked the decedent's symptoms. The continuous adversarial relationship between the codefendants belies Decker's position that Wenkert used secrecy to accentuate Decker's liability. Also, where a true Mary Carter agreement is at issue, the timing of the agreement is a factor in considering the likelihood of potential prejudice. See Taylor v. DiRico, 124 Ariz. 513, 515-16, 606 P.2d 3 (1980) (where a Gallagher agreement was entered into after the close of evidence, but before closing arguments, Arizona Supreme Court held that trial court was correct in not permitting disclosure of the agreement to the jury as it would not have been useful for impeachment, or in raising issues of motive or credibility); Reager v. Anderson, 179 W. Va. 691, 702, 371 S.E.2d 619 (1988) (where the Mary Carter agreement was entered into after all the evidence was presented but before closing arguments, West Virginia Supreme held that trial court decision to not inform the jury of the agreement was correct after all or most of the evidence was in and the settling defendant did nothing in closing argument to suggest realignment of loyalties); see also Johnson v. Moberg, 334 N.W.2d 411 (Minn. 1983).
In Arizona, Mary Carter agreements are referred to as "Gallagher agreements," derived from City of Tuscon v. Gallagher, 108 Ariz. 140, 493 P.2d 1197 (1972).
The agreement between the plaintiffs and Wenkert was entered into late in the trial on March 18, 2005. Therefore, the agreement could not have possibly impacted discovery and jury selection, which are areas typically impacted by Mary Carter agreements. See Carter v. Tom's Truck Repair, Inc., supra, 857 SW.2d 17. Also, the agreement in the present case was entered into after the testimony of Audrey Monti, Wenkert and Decker was completed and after the plaintiffs rested their case. Only four expert witnesses remained, three of which were offered by Decker. Since the agreement was not yet in existence, it could not have been used to demonstrate motive and bias or impeach the credibility of the plaintiffs or Wenkert. Furthermore, contrary to Decker's claim, the agreement did not impact the settlement opportunities for Decker and the plaintiffs. Unlike Mary Carter agreements that hinge on the inverse relationship in amounts owed by codefendants, the agreement in the present case did not inhibit or prohibit Decker's ability to reach settlement with the plaintiffs.
The agreement shows that the plaintiffs signed the agreement on March 6, 2005, which is the day they rested their case. However, any argument that settlement negotiations, settlement offers and the like must be disclosed is an untenable position. The pivotal date of the agreement is the date that it is actually agreed to by both parties, which in this case is March 18, 2006.
Decker testified on February 25 and March 1, 2005. Audrey Monti testified on March 2 and 3, 2005. And, Wenkert testified on March 17, 2005.
Finally, since there was no change in trial strategy on the part of Wenkert or the plaintiffs post-agreement, there was nothing that happened that may have compelled the court to disclose the existence and/or terms of the agreement to the jury. Decker has not cited to evidence demonstrating a shift in alliances or a change in trial strategy occurring after the agreement was entered into. Nor did this court, at the time of trial or in hindsight, notice any change in strategy by Wenkert. In fact, although the codefendants were in an adversarial position from the beginning, it was clear that Wenkert's trial tactics did not revolve around merely shifting liability to Decker. Rather, Wenkert aggressively contested both breach of the standard of care and causation throughout the trial. Neither this court's recollection, nor review of the opening arguments, testimony, and closing arguments in the case, show anything other than consistency in the respective parties' theories of the case.
Ironically, Wenkert and Decker have also admitted to being party to an undisclosed agreement by which they would limit cross-examination of each other's witnesses.
In sum, the agreement entered into by the plaintiffs and Wenkert was not a Mary Carter agreement as it did not create an inverse relationship between the financial responsibility of Wenkert and the amount of Decker's liability. Further, it did not unfairly ally Wenkert and the plaintiffs against Decker to his surprise. Given the terms of the agreement, the timing of the agreement, the adversarial posture of the codefendants, and the unaltered trial strategies, this court concludes that the agreement did not result in unfair prejudice to Decker. The overriding negative aspect of Mary Carter agreements was avoided in this case, both by the terms of the agreement, as well as by the actions of the parties. Therefore, the motion to set aside the verdict on the ground that it constituted an unfair Mary Carter agreement is denied.
CONCLUSION
Accordingly, for all the foregoing reasons, Decker's motion to set aside the verdict is denied on all grounds.
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