Opinion
No. CV 00-0440817
December 15, 2003
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE THE VERDICT AND FOR A NEW TRIAL
The plaintiff pursuant to Practice Book § 16-35 has moved for an order setting aside the jury's verdict in favor of the defendants, dated June 9, 2003. The date of the plaintiff's motion is June 18, 2003, and the motion was filed in the court clerk's office on June 19, 2003. The plaintiff additionally requests that the court grant her a new trial. The plaintiff alleges that (1) the verdict was against the weight of the credible evidence; (2) the court erred in precluding the plaintiff from adducing expert testimony on informed consent; in limiting the testimony of Dr. Quinn, the plaintiff's expert, on the specific alternatives to arthroscopic surgery; and in disallowing testimony from Dr. Quinn concerning alternatives to the use of arthroscopy to biopsy the mass; (3) in allowing the defendants to amend their answer to include the special defense of the plaintiff's contributory and comparative negligence; (4) in charging the jury on comparative and contributory negligence; (5) in charging the jury on mitigation of damages; and (6) in allowing defense counsel to argue an adverse inference from the plaintiff's failure to call the plaintiff's friend as a witness.
The court first reviews the standard for setting aside a verdict and granting a new trial. The trial court must view the evidence offered at trial in the light most favorable to sustaining the verdict. Gaudio v. Griffin Health Services, 249 Conn. 523, 534, 733 A.2d 197 (1999). The ultimate test is whether given the evidence offered at trial, viewed in the light most favorable to sustaining the verdict, the jury reasonably could have concluded as it did. Id.; Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983). The facts must be viewed in the light most favorable to sustaining the verdicts. Gaudio v. Griffin Health Services, supra.
There are serious constitutional issues posed by setting aside a jury verdict. This is so because litigants have a constitutional right to have issues of fact decided by the jury. A trial court's decision to set aside a jury verdict can implicate a party's constitutional right to a trial by jury. Young v. Data Switch Corp., 231 Conn. 95, 100-01, 646 A.2d 852 (1994); Zarelli v. Barnum, 6 Conn. App. 322, 326, 505 A.2d 25 (1986); Bambus v. Bridgeport Gas Co., 148 Conn. 167, 169, 169 A.2d 265 (1961). "The right to a jury trial is fundamental in our judicial system, and . . . the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of a trial by jury includes the right to have issues of fact as to which there is room for reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court." Zarelli v. Barnum, supra; Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970); Jacobs v. Goodspeed, 180 Conn. 415, 429 A.2d 915 (1980); Berry v. Loiseau, 223 Conn. 786, 807, 614 A.2d 414 (1992); Gosselin v. Perry, 166 Conn. 152, 168, 348 A.2d 623 (1974); Barbieri v. Taylor, 37 Conn. Sup. 1, 2, 426 A.2d 314 (1980). Accordingly, a court should move cautiously in deciding to set aside a jury's verdict.
"However, it is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence . . ." State v. Chin Lung, 106 Conn. 701, 704, 139 A. 91 (1927); Labbe v. Hartford Pension Commission, 239 Conn. 168, 192, 682 A.2d 490 (1996). A verdict that is inconsistent or ambiguous should be set aside. Ginsberg v. Fusaro, 225 Conn. 420, 425-26, 623 A.2d 1014 (1993). A verdict can be set aside "only if . . . the jury could not reasonably and legally have reached their conclusion . . ." Fleming v. Garnett, 231 Conn. 77, 83, 646 A.2d 1308 (1994); Foley v. Huntington Co., 42 Conn. App. 712, 725, 682 A.2d 1026 (1996).
"The trial court's refusal to set aside [a] jury verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness." Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981); Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 (1974). This is so because "[f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than [an appellate court] can, on the printed record, what factors, if any, could have improperly influenced the jury." Zarelli v. Barnum, supra, 6 Conn. App. 322, quoting Birgel v. Heintz, CT Page 13986 163 Conn. 23, 26, 301 A.2d 249 (1972).
The grounds for a motion for a new trial include newly discovered evidence; Davis v. Fracasso, 59 Conn. App. 291, 296 (2000); jury bias or misconduct; State v. Myers, 242 Conn. 125, 139 (1997); LoSacco v. Young, 210 Conn. 503, 509 (1989) or other substantial grounds. "Any motion for a new trial is addressed to the sound discretion of the trial court and will not be granted except on substantial grounds." Burr v. Lichtenheim, 195 Conn. 351, 355 (1983).
I
While the plaintiff claimed through Dr. Quinn, her expert, that the standard of care was to proceed with treatment in a conservative manner by way of physical therapy and injections, there was substantial evidence to support several approaches to diagnose and treat the plaintiff's knee pain in 1998. There was testimony from Dr. Henderson and Dr. Aversa, as well as, several medical articles that supported using arthroscopic surgery for diagnostic purposes, especially given the plaintiff's reported symptoms. The jury could have reasonably found that Dr. Aversa's use of arthroscopy for a diagnosis of the plaintiff's problems was a reasonable practice and conformed to the standard of care.
II
Connecticut courts have held that where, as here, there is only one physician defendant, not only is it not necessary to establish through expert testimony that the physician had a duty to inform the patient prior to a surgical procedure, but it is improper. See Goodwin v. Danbury Eye Physicians and Surgeons, P.C., 254 Conn. 131, 757 A.2d 516 (2000). In Goodwin, the court upheld the lay standard, where a physician is obligated to provide a patient with that information which a reasonable patient would have found material about whether or not to embark upon a contemplated course of treatment. Id. at 142. See also Logan v. Greenwich Hospital Ass'n, 191 Conn. 282, 292, 465 A.2d 294 (1983). Goodwin precludes a plaintiff from producing expert testimony on the issue of informed consent.
The plaintiff claims that she had not been apprised of alternatives to arthroscopic surgery to biopsy the mass, and if she had, she would not have proceeded with the arthroscopy. The argument ignores the evidence, and the plaintiff testified that even if she had been apprised of the risks, complications, benefits and alternatives, she would have consented to the surgery anyway. The evidence, the plaintiff's testimony, and the informed consent form signed by the plaintiff the day of the surgery is fatal to the plaintiff's claim regarding her conformed consent claim.
III
Trial courts have wide discretion in granting or denying amendments before, during and even after trial. Safire v. Neustadt, 177 Conn. 191, 206, 413 A.2d 843 (1979). The instant special defenses claimed that the plaintiff was responsible in whole or in part for her claimed injuries. This was a subject matter that had been broached during the discovery and deposition process and the plaintiff cannot now claim surprise. The amended special defenses were filed prior to the start of the evidence. The plaintiff was not unduly prejudiced by the allowance of the amended special defenses by the court.
IV
The court's charge on the comparative and contributory negligence of the plaintiff was proper in the context of a medical malpractice case. The jury could have reasonably concluded that the plaintiff failed to act as a reasonably prudent post-surgical patient under the circumstances prevailing and therefore contributed to her own decreased range of motion for which she was claiming damages against the defendants. The jury could have reasonably believed that the plaintiff did not follow the post-surgical course of treatment prescribed for her by Dr. Aversa, and that this was a substantial factor in the decreased range of motion experienced by the plaintiff after surgery and to the present day.
V
Regarding the court's charge on the plaintiff's obligation to mitigate her damages, where there are facts in evidence that indicate that a plaintiff may have failed to promote her own recovery and do what a reasonably prudent person would be expected to do under the same circumstances, the court, where requested, is obliged to charge on the duty to mitigate damages. Kearns v. Bottiarelli, 35 Conn. App. 239, 243, 645 A.2d 1029 (1994) (citing Jancura v. Szwed, 176 Conn. 285, 407 A.2d 961 (1978)). A failure to mitigate damages need not be specially pleaded. Kearns v. Szwed, supra at 243. See also, Practice Book § 10-50.
VI
The court feels that defense counsel satisfied the statutory prerequisites for getting the court's permission to argue an adverse inference during the defendants' closing arguments. General Statutes § 52-216c reads as follows:
No court in the trial of a civil action may instruct the jury that an inference unfavorable to any party's cause may be drawn from the failure of any party to call a witness at such trial. However, counsel for any party to the action shall be entitled to argue to the trier of fact during closing arguments, except where prohibited by section 52-174, that the jury should draw an adverse inference from another party's failure to call a witness who has been proven to be available to testify.
The evidence shows that the plaintiff's friend "Cynthia" was present during the plaintiff's visit to Dr. Aversa's office on February 25, 1998. This office visit was the subject of a dispute regarding whether or not Dr. Aversa had obtained informed consent from the plaintiff during this visit, on the subject of whether he informed her about the two separate surgical procedures he had recommended. The jury could have reasonably concluded from the evidence that "Cynthia" was a direct witness to the conversations between the plaintiff and Dr. Aversa on the subject of the two surgical procedures. The plaintiff could not recall whether Dr. Aversa advised her of the risks and complications of the arthroscopy during that visit. She testified that he only advised her he would perform one procedure, not two to rule out a cancerous growth. While Dr. Aversa could not recall the specifics of his conversation with the plaintiff on that date, he testified that it is always his procedure to tell patients of the risks, benefits, complications and alternatives at the office visit prior to surgery. He testified that he recommended two procedures, not one, and that his office records verify that fact.
The plaintiff testified that she and "Cynthia" remain friends to this day, and that Cynthia lived in East Haven, Connecticut. It was demonstrated to the court's satisfaction that Cynthia was available to testify if called by the plaintiff as a witness. The plaintiff was aware of the trial date in advance, and even if Cynthia had been unavailable to testify in court at trial, the plaintiff had ample advance notice to take measures to preserve her testimony for presentation at trial. It was natural for the plaintiff to call Cynthia as a witness based on her superior and material information and her friendship with the plaintiff. It was thus, permissible for the defendant's counsel to argue to the jury that an unfavorable inference could be drawn from the plaintiff's failure to call Cynthia as a witness to the conversation between the plaintiff and the defendant, Dr. Aversa, on February 25, 1998.
Accordingly for the reasons set forth herein, the plaintiff's motion to set aside the jury verdict and for a new trial is hereby denied.
THE COURT
By ARNOLD, JUDGE.