Opinion
No. CV04-4001161S
November 25, 2009
MEMORANDUM OF DECISION RE #193 MOTION/ADDITUR #194 MOTION/SET ASIDE DAMAGES ONLY
Also filed was a Motion for Reduction re Collateral Sources. The parties were unprepared to argue the same when the captioned motions were argued on October 26, 2009. It is to be hoped that, once the appropriate information is made available to defendants, the parties will be able to reach an agreement without further resort to the court.
This medical malpractice case was tried to conclusion before a jury which, on June 22, 2009, returned a verdict in favor of the named plaintiff. The action was originally brought against Dr. Antonio Macatol, the surgeon who performed the plaintiff's gastric bypass surgery, and these defendants (Dr. Ferrante, the attending anesthesiologist and his anesthesiology group, Waterbury Anesthesiology Associates, Inc. [hereinafter, "Ferrante"]). The claim against Dr. Macatol was withdrawn prior to trial by plaintiff's counsel; Dr. Macatol was brought in by Ferrante for apportionment purposes. The jury was submitted interrogatories regarding medical expenses only; on June 22, 2009, the jury returned a verdict finding Dr. Macatol seventy percent (70%) liable in negligence to the plaintiff and Dr. Ferrante thirty percent (30%) liable.
A discussion in greater detail hereinafter follows.
The returned verdict form read:
SECTION TWO: DAMAGES
Economic: 2a. $137,424.50 Non-economic 2b. $95,000.00 Total: 2c. $232,424.50SECTION THREE: ALLOCATION AND AWARD OF DAMAGES
Reduction in damages attributable to Dr. Ferrante and Waterbury Anesthesiology Assoc., Inc. (if any)
(Multiply line 2c by the percentage on line 1a.)
Line 1a (on p. 1 of the plaintiff's verdict form) read "30%."
The verdict form, appropriately signed and dated by the Jury Foreperson, was published, accepted, and recorded.
Subsequently, the plaintiff filed two motions on which argument was heard on October 26, 2009.
#193 — Motion for Additur
C.G.S. § 52-216a reads in applicable part, "If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial." Our Supreme Court, in Wichers v. Hatch, 252 Conn. 174 (2000), had the following to say regarding a court's setting aside of a jury verdict (whether for purposes of an additur or remittitur):
[I]f in the exercise of all of his knowledge 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 . . . A mere doubt of the adequacy of the verdict is an insufficient basis for such action. A conclusion that the jury exercised merely poor judgment is likewise insufficient . . . Id., at 187.
More recently, it has been said, "The ultimate test which must be applied to the verdict . . . is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption . . ." Saleh v. Ribeiro Trucking, LLC, 117 Conn.App. 821, 825 (2009). The Court in Wichers, supra, continued:
Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury . . . the court's action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined. Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand even though the opinion of the trial court and this court be that a different result should have been reached. (Citations omitted.) If there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will. (Citations omitted.) 252 Conn., at 189.
The plaintiff, at the hearing on these motions, had no evidence to offer that the verdict was based on corruption, partiality, or prejudice. The argument was that there was a mistake — next to be addressed. Citation was made, on pages 2-3 of his memorandum, to a number of Supreme Court and superior court cases — none of which are persuasive because in all of them all of the evidence was uncontroverted that the damages were proximately related to the claimed medical negligence. That was decidedly not the case here. Here, the defendants claimed significant damages sustained were proximately caused not by the negligence of either Macatol or Ferrante but were instead the not unanticipated consequences of this plaintiff's size (This gentleman was, at more than four hundred [400] pounds, the largest patient ever to undergo gastric bypass surgery at Saint Mary's Hospital in Waterbury.) and the nature of this surgery. The defendants' surgical expert, Dr. Robert Bell, was the only expert to testify at trial who was presently practicing in the area of bariatric surgery; he started the weight loss program at Yale in July of 2002. He serves now as the Director of Bariatric Surgery at Yale, is board certified in surgery, has written fifty-sixty (50-60) published articles on weight loss surgery, has done hernia surgery, etc. He testified the general risks of this plaintiff's surgery included blood loss, infections, and blood clots — all of which this plaintiff experienced. He further stated that where, as here, the procedure performed involved an open incision (as opposed to its being done laparoscopically) and the patient was morbidly obese, the well-known risk of a hernia (which this patient developed) was 20-25% and that the most recent study put that number at 50% when a panniculectomy was performed (as here). He stated the bigger the patient and the larger the incision, the more likely the chance of developing an incisional hernia and that, when the infection was deep through the layers of fascia and along the entirety of an incision that here went hip to hip, there was a 100% chance of developing a hernia. He testified that the risks of this open gastric bypass procedure on a morbidly obese patient included (general) post-operative infections, pulmonary embolisms, skin fold infections, infections of the panniculectomy incision site, and internal gastric bleeding due to a failure of the anastomosis site. There was therefore credible evidence from the only practicing surgeon to testify at trial that many of the plaintiff's post-operative complications were likely to occur even absent malpractice. Dr. Bell stated — and Dr. Dudrick, plaintiff's treating expert with prior general surgical experience (He is recently retired.) agreed — that most patients who lose weight following this surgery ultimately require panniculectomy surgery to remove excess skin folds and are at great risk for the development of various other post-operative infections given their obesity and the extremely large incision (this patient's incision was 24" long and 45 pounds of skin and fat were removed). The jury was free to credit the testimony of Dr. Bell over Dr. Cullen, a now retired anesthesiologist who testified on behalf of the plaintiff. Interestingly — and relevant to the jury's assessment of negligence vis-a-vis Macatol and Ferrante, Dr. Dudrick testified as to Macatol's breach of the standard of care in a variety of ways (which, Dudrick, as a former surgeon who had in fact performed surgery on this plaintiff was qualified to do) but did not testify as to any breach of the standard of care by Ferrante (for whom he had "a great deal of respect") because Dudrick was not an anesthesiologist. Thus, this jury was presented with a great deal of conflicting evidence not only as to proximate causation but as to damages resulting from the claimed negligence of either Macatol or Ferrante. As in Mazzacane v. Elliott, 73 Conn.App. 696 (2002), which affirmed the trial court's denial of additur, it is true here that "[T]he existence of conflicting evidence limits the court's authority to overturn a jury verdict. The jury is entrusted with the choice of which evidence is more credible and what effect it is to be given . . ." (Citation omitted.); Id., at 699-700.
While Dr. Cullen testified to Ferrante's breach of the applicable standard of care, the jury was free to believe instead the testimony of Dr. Bell.
The plaintiff's claim of "mistake" is premised upon the argument there was a "double apportionment" applied to the verdict. The interrogatory to the jury listed a total of $822,858.36 in medical expenses. The instruction to the jury read, "Place an `X' to the right of each medical expense you conclude was reasonably and necessarily incurred as a proximate result of Dr. Ferrante's and/or Dr. Macatol's medical negligence." The jury placed an "X" to the right of an entry for Gaylord Hospital, Inc. and wrote in the sum "$15,000" (the total Gaylord bill was $92,658.84). They placed an "X" to the right of an entry for Saint Mary's Hospital for charges incurred from 10/17/02 to 12/7/02 and wrote in the number $122,424.50 (the total charge incurred for that period was $244,848.99). Thus, they found the total economic damages "as a proximate result of Dr. Ferrante's and/or Dr. Macatol's medical negligence" to be $137,424.50 (the number indicated on line 2a — for economic damages awarded — on P. 2 of their verdict form). The plaintiff, at P. 5 of his memorandum in support of the motion for additur states, "Since the jury reduced the medical bills incorrectly, excluding those relating to Dr. Macatol's negligence, the additur should include all of Mr. Olivero's economic losses of $822,858.36." The plaintiff continues, "The jury's award for economic damages is approximately 16% of the total economic damages that should have been awarded." Thus, he states, the same percentage should be applied to the non-economic damage award and that figure before apportionment should be $593,750; additionally, he posits the figure for economic damages before apportionment should have been $822,858.36 ( all of the medical expenses as attributable to Dr. Ferrante's and/or Dr. Macatol's medical negligence) — for a total award of $1,416,608.36, thirty percent of which is attributable to Dr. Ferrante. An additur of $192,300.50 is requested (the difference between the plaintiff's proposed verdict of $424,725.00 and the jury's verdict of $232,424.50).
There are multiple problems with the plaintiff's argument:
1. There is no evidence to support the conclusion that the jury reduced the medical bills incorrectly;
2. There is no evidence the jury ignored the instructions and excluded medical bills relating to Dr. Macatol's negligence; and
3. It ignores the evidence offered by Dr. Bell — which in numerous instances was corroborated by plaintiff's expert, Dr. Dudrick — regarding the well known risks of complications to a morbidly obese patient with an open surgical incision of 24 inches.
Though Mr. Olivero's counsel had spoken to some jurors on the day of the verdict, no testimony was offered at the hearing on these motions to support any of the plaintiff's conclusions as above stated. Further, defense counsel had requested that, with regard to this interrogatory, the jury be instructed to place an "M" next to a medical expense found to have been incurred as a proximate result of Dr. Macatol's negligence and an "F" next to any medical expense awarded and found to have been incurred as a proximate result of Dr. Ferrante's negligence. Plaintiff's counsel objected to that request and this court did not include the proposed directive because it ignored that some medical expenses awarded could conceivably have been found to be the proximate result of both physicians' medical negligence and because there was evidence that some damages incurred were — or could have been incurred — as a proximate result of no provider's negligence. For plaintiff's counsel now to argue that the jury had to have excluded expenses attributable to Dr. Macatol's negligence is to ignore that, when counsel had the opportunity not to object to defense counsel's suggestion — which could conceivably have eliminated the argument here advanced, she declined to do so. Nor did counsel raise an objection to the interrogatory or the instruction on how to complete the same after the interrogatory had been explained to the jury. To now premise a motion for additur — or a motion to set aside — on a claim of "double apportionment" that is premised upon an alleged "mistake" is improper when counsel could have objected to the given instruction at a time when the court could have taken corrective action and to do so now when counsel had objected to defense counsel's further instruction is to give new meaning to the "second look" doctrine. There is simply no evidence to support the conclusion the jury twice reduced the plaintiff's damages.
When determining whether to grant an additur, the court is not to assume that the jury made a mistake in the absence of clear evidence such mistake occurred; contrarily, the court should assume the jury did exactly what it intended to do. See Schettino v. Labarba, 82 Conn.App. 445, 449 (2004). To assume now, as the court is asked to do, that all of the damages had to have been causally connected to the medical negligence of either Macatol or Ferrante is not only to ignore the very strong evidence to the contrary at trial but is also to ignore that the numbers offered to support an additur are entirely speculative.
#194 — Motion to Set Aside as to Damages Only
The plaintiff raises many of the arguments raised and discussed above as applicable to the Motion for Additur. The court here considers only those arguments not previously addressed.
At oral argument, plaintiffs' counsel advised the court she believed the recently decided case of Earlington, et al. v. Anastasi et al., 293 Conn. 194 (2009), was on point regarding this motion. It is not. In Earlington, there had been expert testimony regarding an award of economic damages. One expert had testified that, as a proximate result of defendants' medical negligence in delivering a baby with Erb's Palsy, the minor plaintiff had lost earnings of $565,519 over the course of his life expectancy and that the discounted cost of his life care plan was $524,355. The discounted after tax economic loss, the expert testified, was $1,045,874; the plaintiffs asked for $1,089,874 in final argument and the jury awarded $1,588,000. The defendants filed a post-trial motion for remittitur which the trial court denied. Our Supreme Court reversed on that issue and ordered a new trial unless the plaintiffs, within (10) days, filed a remittitur of $542,126 plus offer of judgment interest. It found there was evidence to support a verdict of $1,045,874 and an award of $1,588,000 was speculative — thus, a remittitur of $542,126 was in order. In the case before the court, the medicals awarded were supported by medical bills in evidence and plaintiffs' argument that the medical treatment and bills "were so complicated, it was unclear what deviations from applicable standards of care caused Mr. Olivero's injuries" misses the mark in that: a) the jury had ho questions regarding either the jury forms or the interrogatory; and b) counsel waived her right to argue any alleged lack of clarity in those forms which might have been cured had she not opposed any change to the submitted interrogatory.
Also at issue in Earlington was a prior agreement between the court and counsel that one interrogatory would be amended before submission to the jury and two others would be deleted entirely. Instead, all three interrogatories went to the jury and in their original form. The Supreme Court concluded that the submission of these interrogatories, though improper, was harmless because: a) the jury had followed the court's instructions and thus had demonstrated no confusion; and b) regarding the two additional interrogatories, their submission was not harmful because the defendant to whom the interrogatories were directed had not been found liable in either of the ways described in the interrogatories. If this issue of interrogatories is of any relevance to the subject case, it is that the jury in Olivero followed both the court's and the written instructions and demonstrated no confusion.
A verdict should not be set aside where it is apparent there was some evidence on which the jury might reasonably have reached its conclusion. Marcell v. Whelchel, 66 Conn.App. 574, 582 (2001). See also Business Alliance Capital Corp. v. Fuselier, 88 Conn.App. 720, 731 (2005) (citations omitted). Only if the jury could not reasonably and legally have reached their conclusion should its verdict be set aside. Cohen v. Yale-New Haven, 260 Conn. 747, 761 (2002).
This plaintiff asks the verdict be set aside and a new trial be had as to damages only. "A motion to set aside the verdict should be granted if the jury reasonably and legally could not have reached the determination that [it] did in fact reach . . ." Macchietto v. Keggi, 103 Conn.App. 769, 773 (2007), citing to Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646 (2006). The plaintiff argues, "As the jury found Drs. Ferrante and Macatol negligent, it can only mean that either Dr. Ferrante or Dr. Macatol caused the sum total of economic damages suffered by Mr. Olivero." Memorandum, at P. 4. He concludes that "every medical expense should have had an X next to it." Id. The logic of this argument escapes the court when the jury very clearly found Macatol to be seventy percent (70%) liable for the damages assessed and Ferrante to be thirty percent (30%) liable. Further, it ignores the very considerable testimony regarding the frequent consequences of this kind of surgery when performed on patients who presented as did Mr. Olivero.
More persuasive is the defense argument that where, as here, the award of damages is a reflection of how vigorously contested was the issue of liability, there ought not be ordered a new trial on the issue of damages alone. Recognizing there are situations where that result is appropriate, our Supreme Court has said that grant of authority is clearly confined to situations "[w]here the error as to one issue or issues is separable from the general issues . . . [and] such . . . limitation does not work injustice to the other issues or the case as a whole." Fazio v. Brown, 209 Conn. 450, 455 (1988), citing to Murray v. Krenz, 94 Conn. 503, 507 (1920). The court in Fazio continued, "[W]here the retrial of the single issue may affect other issues to the prejudice of either party, the court [can] not exercise its discretion in limiting the new trial but [rather should] grant it de novo." Id., citing to Murray, supra, at 508. Such a decision "should never be made unless the court can clearly see that this is the way of doing justice in [a] case. As a rule the issues are interwoven, and may not be separated without injustice to one of the parties. Therefore, an order restricting the issues [of a new trial] is the exception, not the rule." (Citations omitted.) Id. Where, as here, there were highly contested standard of care and proximate causation issues, the issue of damages alone cannot be separated out without likely resulting in severe prejudice to the defendants. Further, if as defense counsel has stated, jurors advised him this was a compromise verdict (four jurors who desired a defendants' verdict agreed to acquiesce to a plaintiff's verdict with the agreement there was to be limited responsibility assessed against defendants (Defense memorandum, at p. 9), that is precisely the case described by the Court in Murray, supra, at 508, as one to be avoided. "[A] liability verdict that by its very nature acts to reduce the amount of damages one side must pay means that the issues of liability and damages are inextricably interwoven." Niles v. Evitts, 16 Conn.App. 696, 699-700 (1988). Lastly, our Supreme Court has said that where the defendants are not the sole entity found negligent, the issues of both liability and damages must be retried to avoid injustice to the defendants. Fazio v. Brown, 209 Conn., at 457.
Finally, plaintiff has argued that this court's charge regarding settlement was both "factually" and "legally" incorrect. Some history is necessary. In opening statement to the jury, plaintiff's counsel told the jury: a) Dr. Macatol had been sued by Mr. Olivero; b) Dr. Macatol was no longer a party except for the defendants having brought him in solely for apportionment purposes; and c) plaintiff agreed Dr. Macatol was professionally negligent in his care and treatment of the plaintiff. Thus, the jury knew all this within minutes of the trial having begun — and before any evidence was taken. No objection (understandably) was then taken by defendants. The jury heard days of evidence — from multiple medical witnesses and from the plaintiff himself — regarding Macatol's negligence. To blunt the effect of what the jury had been told, the court included the following instruction in her charge:
Now, you've heard reference to the fact this plaintiff's claim against Dr. Macatol has been settled. Regardless of what you may have concluded regarding the extent of his liability under the apportionment claim brought by Dr. Ferrante and his anesthesiology group, the earlier settlement of the claim against Dr. Macatol should not have any effect on your consideration of the apportionment claim. Do not speculate on how much may already have been paid this plaintiff since, as I have already told you, Dr. Macatol will not be required to pay more regardless of what you may have found was his proportionate share of liability — and therefore damages — under the apportionment claim. Any payments already made are not your concern and this applies as well to medical bills that may have already been paid. If necessary, once the case is over and you have returned your verdict, I will later make any adjustments that may be necessary to take into account payments received from collateral sources.
Prior to the charge having been given, the parties were presented with the written charge and the court made herself available to the parties for any changes, deletions, or additions they might request. One (of two) plaintiff's counsel and defense counsel availed themselves of that opportunity and neither remarked on the above charge. At the conclusion of the charge, however, one of the two lawyers for plaintiff vociferously objected to that portion of the charge. The court met with the parties and offered to declare a mistrial if the plaintiff felt that, despite the jury having earlier been told plaintiff had sued Macatol who was no longer a party, there was prejudice to him in the giving of the charge. When, on the second day of deliberations, the court had not yet received an indication whether plaintiff wished a mistrial be declared, the court again inquired and was told the plaintiff did not want a mistrial declared. The court, then believing the delay in responding to the court's offer may have indicated the plaintiff had been considering it, canvassed the plaintiff on the record. Suffice it to say, Mr. Olivero strongly expressed having no interest in a mistrial and, despite being given the opportunity to change his mind, indicated he did not wish to do so and did not feel he had been prejudiced by this charge to the jury that they ought not to speculate on any amount that may have been paid and that no consideration should be given to their having learned that the plaintiff's claim against that doctor was no longer in the case.
Plaintiff's counsel clearly misspoke when he later indicated in court he had not had sufficient time to read the charge since he had returned to the courtroom from chambers where the charge had been discussed and more time had elapsed before the court took the bench. There was no request for additional time by counsel because he felt he had not the need for any.
Nevertheless, the plaintiff here resurrects the issue and states such charge was prohibited by C.G.S. § 52-216b. The plaintiff references the "risk of prejudice" and states, "While it is impossible to determine with certainty how the jury used that information, it is certainly likely, given the verdict, that it affected their deliberations to the plaintiff's detriment." Plaintiff's counsel, having spoken to jury members after the verdict had been returned, had the opportunity to inquire whether that charge — as opposed to the information shared with them during opening statements — influenced their verdict but evidently did not. Thus, any such claim now is mere speculation.
It is clear the reference was intended to be with regard to § 52-216a.
The court's charge which informed the jury the claim against Macatol had been settled was, contrary to the claim here made, factually correct. It is also true that the giving of this charge — following as it did the information shared during plaintiff's opening statement — was not a violation the prohibitions of C.G.S. § 52-216a since no agreement of the plaintiff to release Macatol was read or "introduced" nor was any reference made to a sum of money received. Nothing in the statute prevents the court from referencing a "settlement" when the jury knew all that it knew from the plaintiff's opening statement and was specifically told not to consider the fact Macatol had been sued but was no longer a party. That instruction, in this court's view, was necessary under the circumstances.
CONCLUSION
Motion #193 (Additur) is denied as is Motion #194 (Set Aside Verdict and Order New Trial on Damages Only) for all of the above stated reasons.