Opinion
No. HHD-CV-06-6000866S
October 4, 2010
MEMORANDUM OF DECISION RE POST-TRIAL MOTIONS
Introduction
This product liability action, involving injuries that the plaintiff, Jaroslaw Ostapowicz, sustained when the rough terrain mobile forklift he was operating tipped over, was tried to a jury on numerous dates between May 11th and May 18th, 2010. On May 19, 2010, the jury rendered a verdict in favor of both defendants, J.M. Equipment Transportation, Inc. and Terex Corporation. In answer to interrogatories posed to it, the jury found that the plaintiff was one hundred percent at fault for his injuries.
Before the court are various post-trial motions filed by each party. The court heard oral argument on the motions on May 20th and June 22nd, 2010.
Plaintiff's Motion to Set Aside Verdict and for New Trial (#231 and #238) and Defendants' Objections (#239, #240 and #241)
The plaintiff has moved to set aside the verdict enumerating thirty-six grounds on which he claims the verdict should be set aside and a new trial ordered. In response to the court's order that the plaintiff provide a memorandum of law setting forth the legal basis for his claims, the plaintiff subsequently filed a memorandum of law in support of his motion. The court will address the plaintiff's claims as set forth in his memorandum.
"It is proper for a trial court, using due caution, and in the exercise of its discretion, to set aside a verdict when satisfied that its instructions to the jury or its rulings on evidence were erroneous and that those erroneous instructions or rulings were consequential enough to have had a substantial effect on the verdict." (Citation omitted.) Ardoline v. Keegan, 140 Conn. 552, 555-56 (1954).
The plaintiff moves for a new trial on the grounds that the court erroneously admitted evidence introduced by the defendants and erroneously precluded evidence introduced by the plaintiff. The plaintiff claims that the court made numerous, in fact he lists approximately thirty, errors in admitting and excluding certain evidence. The plaintiff, however, has not provided any support as to why certain admitted evidence was, in fact, not legally admissible, or how the alleged erroneous admission of such evidence affected the outcome of the case. "[E]ven if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm . . . The harmless [impropriety] standard in a civil case is whether the improper ruling would likely affect the result . . . In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless . . . Moreover, an evidentiary impropriety in a civil case is harmless only if we have a fair assurance that it did not affect the jury's verdict . . . A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial . . . Thus, our analysis includes a review of: (1) the relationship of the improper evidence to the central issues in the case, particularly as highlighted by the parties' summations; (2) whether the trial court took any measures, such as corrective instructions, that might mitigate the effect of the evidentiary impropriety; and (3) whether the improperly admitted evidence is merely cumulative of other validly admitted testimony . . . The overriding question is whether the trial court's improper ruling affected the jury's perception of the remaining evidence." (Citations and internal quotation marks omitted.) Dow-Westbrook v. Candlewood Equine Practice, 119 Conn.App. 703, 722 (2010). The plaintiff has not provided the court with any bases on which to conduct the foregoing analysis regarding his claims of error in the admission of evidence.
Likewise, the plaintiff has failed to establish why certain evidence was not properly excluded and how its admission would have affected the outcome. The offering party has the burden of establishing the relevance of the offered evidence. Drea v. Silverman, 55 Conn.App. 107, 109 (1999). "Evidence is admissible only if it is relevant . . . Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable . . . It is well settled that questions of relevance are committed to the sound discretion of the trial court." (Citations and internal quotation marks omitted.) Deas v. Diaz, 121 Conn.App. 826, 844 (2010). The plaintiff has been unable to provide the court with a reasoned analysis of how evidence he proffered, and the court rejected, would have assisted the jury in reaching its decision. The plaintiff was unable to articulate for the court, at trial or in connection with this motion, what was defective about the forklift or what warnings should have been provided and were not, and how these failures led to the plaintiff's injuries. In the absence of such an explanation the court cannot determine that the evidence offered by the plaintiff and excluded by the court was relevant. For example, absent evidence of a defect in the forklift, the court could not determine the relevance of evidence regarding subsequent repairs.
The plaintiff also claims that the court erred in not giving the jury a charge on spoliation of evidence. The court did not do so because the evidence did not support such a charge. The Supreme Court, in Beers v. Bayliner Marine Corp., 236 Conn. 769, 777-79 (1996), held "that an adverse inference may be drawn against a party who has destroyed evidence only if the trier of fact is satisfied that the party who seeks the adverse inference has proven the following. First, the spoliation must have been intentional . . . By this, we do not mean that there must have been an intent to perpetrate a fraud by the party or his agent who destroyed the evidence but, rather, that the evidence had been disposed of intentionally and not merely destroyed inadvertently . . . Second, the destroyed evidence must be relevant to the issue or matter for which the party seeks the inference. For example, the spoliation of a machine may raise an adverse inference with respect to a claim that that particular machine was defective, but such an inference may not be drawn with respect to a claim based upon design defect when the destruction would not hinder the defense . . . Third, the party who seeks the inference must have acted with due diligence with respect to the spoliated evidence. For example, the spoliator must be on notice that the evidence should be preserved . . . If the spoliated evidence was necessary for inspection or testing, the party who seeks the inference must have taken all appropriate means to have the evidence produced. This may include, if necessary, an attempt to obtain a court-ordered inspection . . . Finally, the jury, if it is the trier of fact, must be instructed that it is not required to draw the inference that the destroyed evidence would be unfavorable but that it may do so upon being satisfied that the above conditions have been met." (Citations omitted.) Here the evidence did not support the first and third criteria for a spoliation charge. As to the first requirement, there was no dispute that the forklift had not been destroyed, although it had been sold to a third party. The plaintiff did not establish that the forklift was, in effect, destroyed by its sale to a third party. In fact, the defendants were able to inspect the forklift. As to the third requirement, there was no dispute that the plaintiff had not sought, despite being advised of its location through a court order, to inspect the forklift and the defendants were unable to comply. Although the plaintiff had made informal requests for such inspection, he had not pursued such an inspection through the formal discovery process.
The plaintiff also argues that the court erred in not instructing the jury regarding his claims of breach of implied or expressed warranty. The court did not so charge because the evidence did not support a determination by the jury of the parameters of such warranties and therefore there would be no basis on which the jury could determine whether or not any breach had occurred. "The plaintiff bears the burden of proving the existence of an express warranty." Web Press Services Corporation. v. New London Motors, 203 Conn. 342, 351 (1987). Similarly, the plaintiff had the burden of establishing the existence of implied warranties. As the court stated in Vezina v. Nautilus Pools, Inc., 27 Conn.App. 810, 817 (1992), regarding the plaintiffs' claim in that case of breach of implied warranties,: "They have pointed to no evidence that would persuade the trial court that the seller had reason to know of the particular purpose for which the goods are required and that they were relying on the seller's skill or judgment; General Statutes 42a-2-315; or that the goods are not fit for the ordinary purpose for which such goods are used. General Statutes 42a-2-314. Thus, they have not proven an implied warranty of fitness pursuant to General Statutes 42a-2-315, nor an implied warranty of merchantability pursuant to General Statutes 42a-2-314."
The plaintiff also objects to the court's instructions and interrogatories, claiming that they "lead to confusions of the law and its application by the jury through the application of joint and several liabilities in a products action" and that under our "system of joint and several liability, a plaintiff has the right to recover the entire amount of damages awarded from any defendant found to have proximately caused the plaintiff's injuries, regardless of how comparatively small that defendant's degree of fault." Memorandum of Law in Support of Plaintiff's Motion to Set Aside the Verdict and a New Trial, p. 9. Here the jury found that neither of the defendants caused the plaintiff's injuries. In any event, the court charged consistent with our product liability statutes. General Statute § 52-572o provides that: "(b) In any claim involving comparative responsibility, the court may instruct the jury to give answers to special interrogatories, or if there is no jury, the court may make its own findings, indicating (1) the amount of damages each claimant would receive if comparative responsibility were disregarded, and (2) the percentage of responsibility allocated to each party, including the claimant, as compared with the combined responsibility of all parties to the action. For this purpose, the court may decide that it is appropriate to treat two or more persons as a single party . . . (d) The court shall determine the award for each claimant according to these findings and shall enter judgment against parties liable on the basis of the common law joint and several liability of joint tortfeasors. The judgment shall also specify the proportionate amount of damages allocated against each party liable, according to the percentage of responsibility established for such party."
In Barry v. Quality Steel Products, Inc., 280 Conn. 1, 11-12 (2006), the Court explained: "Subsection (b) of § 52-572o sets forth a two part process. First, the fact finder must calculate the total amount of damages that `each claimant would receive if comparative responsibility were disregarded . . .'General Statutes § 52-572o(b)(1). Second, subsection (b) provides for the allocation of responsibility as between the claimant and the defendants. Specifically, in any claim involving comparative responsibility, the court may instruct the jury to answer special interrogatories, or, if there is no jury, the court may make findings, indicating `the percentage of responsibility allocated to each party, including the claimant, as compared with the combined responsibility of all parties to the action.' . . . General Statutes § 52-572o(b)(2). This provision ensures that no defendants are held liable for any portion of responsibility attributable to the plaintiff and requires the fact finder, in addition to determining whether the plaintiff bears a percentage of the total responsibility, to allocate a percentage of liability to each of the remaining `parties' in the action. Subsection (c) provides further guidance to the fact finder in quantifying the percentage of responsibility, if any, to allocate to the plaintiff and the remaining parties, providing that `[i]n determining the percentage of responsibility, the trier of fact shall consider, on a comparative basis, both the nature and quality of the conduct of the party.' General Statutes § 52-527o(c). At this point, the fact finder's task is accomplished. What remains is for the court to enter judgment in accordance with the findings made pursuant to subsections (b) and (c) of § 52-572o. Subsection (d) outlines this process. That section provides: `The court shall determine the award for each claimant according to these findings and shall enter judgment against parties liable on the basis of the common law joint and several liability of joint tortfeasors. The judgment shall also specify the proportionate amount of damages allocated against each party liable, according to the percentage of responsibility established for such party.' . . . General Statutes § 52-572o(d). The first sentence of this provision requires the court to enter judgment against each liable defendant for the full amount of the plaintiff's net recovery, namely, the plaintiff's total proven damages discounted by his own degree of responsibility. That consequence follows from the mandate that the court `enter judgment against parties liable on the basis of the common law joint and several liability of joint tortfeasors.' . . . General Statutes § 52-572o(d). Under a system of joint and several liability, a plaintiff has the right to recover the entire amount of damages awarded from any defendant found to have proximately caused the plaintiff's injuries, regardless of how comparatively small that defendant's degree of fault . . . The second sentence of § 52-572o(d) requires the court then to `specify the proportionate amount of damages allocated against each party liable, according to the percentage of responsibility established for such party.' This provision requires the court to allocate the plaintiff's net award among the defendants according to their respective degree of responsibility. In effect, then, the court must enter a two part judgment against each liable defendant: (1) a judgment for the entire amount of the plaintiff's net award; and (2) an allocation of that judgment against each defendant based on each defendant's degree of responsibility." (Footnote omitted.) Here the court gave to the jury, as the fact finder, the task of determining the percentage of responsibility of each of the parties for the plaintiff's injuries. Since the jury found neither defendant responsible in any amount for the plaintiff's injuries, the court did not have occasion to apply the principles of common-law joint and several liability of joint tortfeasors the plaintiff claims. In any event, it is clear from the statute that that job is one for the court and not the jury and the court did not err in not charging the jury on the principles of common-law joint and several liability.
The plaintiff also claims that the admission of expert testimony was contrary to the Practice Book disclosure rules and that opinions were offered that were beyond the scope of the expert's knowledge and training. However the plaintiff fails to point the court to the identity of the expert or the testimony he is referring to.
The plaintiff also makes numerous claims that the court's charge and interrogatories were not proper and did not include certain of the plaintiff's claims. The plaintiff has failed to properly brief these arguments and therefore the court will not consider them.
For all the reasons set forth above, the plaintiff's motion to set aside the verdict and for a new trial is denied.
Defendants' Motions for Special Finding of Bad Faith and Absence of Merit as to Prosecution of Claim (#210 and #212)
Both defendants have moved, pursuant to General Statutes § 52-226a, that the court make a special finding, to be incorporated in the judgment, that the product liability claim asserted by the plaintiff against the defendants was without merit and not asserted in good faith. The statute provides: "In any civil action tried to a jury, after the return of a verdict and before judgment has been rendered thereon, or in any civil action tried to the court, not more than fourteen days after judgment has been rendered, the prevailing party may file a written motion requesting the court to make a special finding to be incorporated in the judgment or made a part of the record, as the case may be, that the action or a defense to the action was without merit and not brought or asserted in good faith. Any such finding by the court shall be admissible in any subsequent action brought pursuant to section 52-568." The only appellate court case addressing this statute, Beverly v. State, 44 Conn.App. 646, 648-9 (1997), states: "`[W]e have declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes." (Citation and internal quotation marks omitted.) Trial courts have held that: "A special finding under General Statutes § 52-226a can be made only when two elements have been shown: (1) `the action was without merit' and (2) `the action . . . was not brought or asserted in good faith.' Both must be found in order for `the court to make a special finding.' Trial courts have upheld the denial of a motion for special finding in which the plaintiff's action was determined to be commenced without merit but the court had insufficient evidence to make a finding that it was not brought or asserted in good faith.' Shea v. Chase Manhattan Bank, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0149647 (June 15, 2000, Tierney, J.). `[I]n common usage, it (good faith) has a well defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and generally speaking means being faithful to one's duty or obligation . . .' (Internal quotation marks omitted.) Id." Strom v. Curtiss, Superior Court, Judicial District of Middlesex at Middletown, Docket No. CV 00 0092123 S (Shapiro, J., Nov. 8, 2002).
Here the court does not have sufficient evidence to make a finding that this action was not brought in good faith, that is, that it was initiated and pursued for reasons of harassment, delay or for some other improper purpose.
Therefore the Defendants' motions for a special finding are denied.
Defendants' Motions for Award of Attorneys Fees to Defend Frivolous Product Liability Claim #228 and #229
The defendants have also moved for the award of attorneys fees pursuant to General Statutes § 52-240a. That statute states: "If the court determines that the claim or defense is frivolous, the court may award reasonable attorneys fees to the prevailing party in a products liability action." Since there can be no dispute that the defendants were the prevailing parties in this action, the only issue for the court to consider in deciding the defendants' motions is whether the plaintiff's claim was "frivolous." Wallerstein v. Stew Leonard's Dairy, 258 Conn. 299, 307 (2001).In support of their motions the defendants claim: "1. Ostapowicz admitted in sworn testimony in the trial that he does not know what caused the forklift to tip over at the time of the incident which gives rise to this product liability claim; 2. Ostapowicz failed and neglected to present any expert witnesses to render opinion testimony establishing the existence of any design or manufacturing defects and/or inadequate warnings or instructions associated with the forklift in question, nor any opinions that those defects (if any) proximately caused the forklift to tip over and, therefore, failed to present any competent or credible evidence necessary to establish the two prima facie elements of his claim; 3. The only competent and credible evidence presented at the trial explaining the cause of the forklift tip over was that Ostapowicz's own unreasonable and unsafe operation of the forklift at the time was the sole cause of the incident . . ." Defendant Terex Corporation's Motion for Award of Attorneys Fee to Defend Frivolous Product Liability Claim, #228; Defendant J.M Equipment Transportation, Inc.'s Motion for Award of Attorneys Fee to Defend Plaintiff's Frivolous Product Liability Claim, #229.
The statute does not set forth a standard which the court can utilize to determine whether a product liability claim is frivolous. However the rules of professional conduct use similar language. Rule 3.1 states: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established." The commentary to the rule states: "The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients' cases and the applicable law and determine that they can make good faith arguments in support of their clients' positions. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law." Our Supreme Court has adopted a definition of a "frivolous action" set forth in an earlier version of the commentary to the rule. The commentary, in effect in 1988, stated: "The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law." Practice Book, 1986, Rule 3.1, Comment. In Texaco, Inc. v. Golart, 206 Conn. 454, 465 (1988), the Court held: "We hereby adopt this test, and further hold that the burden of proof lies on the moving party to establish the frivolity of the appeal. On the present record, we find that the plaintiff has not met that burden of proof. As to the first prong, the plaintiff has not established facts tending to show that the defendants brought this appeal for the purpose of harassing or maliciously injuring the plaintiff As to the second prong, we have concluded that the defendants' arguments on appeal did have some merit, even though they did not warrant a reversal." In Schoomaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 255-56 (2003), the Court extended this test to claims made at the trial level. The court held: "For purposes of awarding attorneys fees to a prevailing party, the Texaco, Inc., standard for determining frivolous appeals applies equally to the trial court's determination of whether a claim brought therein is frivolous. Gerhard v. Veres, 30 Conn.App. 199, 202 n. 3, 619 A.2d 890 (1993); accord CFM of Connecticut, Inc. v. Chowdhury, supra, 239 Conn. 394-95 (`[w]hether a claim is colorable . . . is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established' [internal quotation marks omitted])." There the Court concluded that the trial court did not abuse its discretion in awarding attorneys fees to the defendants, after a jury found in their favor on certain claims, where the trial court found that the plaintiffs' claims were not supported by a "scintilla of evidence." In Brunswick v. Statewide Grievance Committee, 103 Conn.App. 60, 614-15, cert. denied, 284 Conn. 929 (2007), the court pointed out that: "In Schoonmaker v. Lawrence Brunoli, Inc., CT Page 18784 265 Conn. 210, 255, 828 A.2d 64 (2003), the court indicated that the test is an objective one . . . Accord 2 G. Hazard W. Hodes, The Law of Lawyering (3d Ed. Sup. 2007) § 27.12 (`[r]ule 3.1 adopts an objective as opposed to a subjective standard'); J. MacFarlane, `Frivolous Conduct Under Model Rule of Professional Conduct 3.1,' 21 J. Legal Prof. 231 (1997) (same); 2 Restatement (Third), Law Governing' Lawyers § 110, comment (d), p. 172 (2000) (`frivolous position is one that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal would accept it')." (Footnote omitted.) "The objective `reasonable attorney' standard governs the determination of whether a lawyer's claim is frivolous." (Citations omitted.) O'Brien v. Superior Court, Judicial District of Hartford, 105 Conn.App. 774, 786, cert. denied, 287 Conn. 901 (2008).
Here the court cannot say that the plaintiff's claims, although very weak, were totally without merit. For example, the plaintiff argued that expert testimony was unnecessary to prevail on his claim citing Potter v. Chicago Pneumatic Tool Company, 241 Conn. 199, 218 (1997). There the Court held: "Connecticut courts, however, have consistently stated that a jury may, under appropriate circumstances, infer a defect from the evidence without the necessity of expert testimony. See, e.g., Standard Structural Steel Co. v. Bethlehem Steel Corp., 597 F.Sup. 164, 183 (D.Conn. 1984) (recognizing Connecticut law permits fact finder to draw inference of defect from circumstantial evidence); Living Learning Centre, Inc. v. Griese Custom Signs, Inc., 3 Conn.App. 661, 664, 491 A.2d 433 (1985) (`It is not necessary that the plaintiff in a strict tort action establish a specific defect as long as there is evidence of some unspecified dangerous condition. In the absence of other identifiable causes, evidence of malfunction is sufficient evidence of a defect under § 402A of the Second Restatement of Torts.'); Kileen v. General Motors Corp., 36 Conn.Sup. 347, 349, 421 A.2d 874 (1980) (`[t]he fact finder can find, where other identifiable causes are absent, that the mere evidence of a malfunction is sufficient evidence of a defect') . . ." The court here did not agree with the plaintiff's argument, and did not so charge the jury, because the court was not satisfied that the tip over accident was the result of a malfunction of the machine where the evidence indicated that the machine was a sophisticated piece of equipment, weighing somewhere between 18,000 and 20,000 pounds, and the plaintiff had made several adjustments to level the machine before the accident.
The court cannot state that the "plaintiff never produced one scintilla of evidence to support the product liability claims in its complaint" as the court found in Pontillo v. West Farms Associates, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. CV 89-0360344 (Aurigemma, J., April 13, 1994) [ 11 Conn. L. Rptr. 329]. There the court found that the plaintiff's action against a defendant was frivolous within the meaning of General Statutes § 52-240a where the plaintiff never produced, through discovery, any evidence to support its product liability claim against that defendant and withdrew his action against it after several days of trial.
The burden is on the defendants to establish that the plaintiff's claim was frivolous, that is, that a lawyer of ordinary competence would have recognized it as so lacking in merit that there was no substantial possibility that the court or a jury would accept it. The court cannot find that they have met this burden.
Therefore the defendants' motions for an award of attorneys fees to defend a frivolous product liability claim are denied.