Opinion
No. CV 05-5000747S
July 7, 2009
MEMORANDUM OF DECISION
This matter was a wrongful termination claim, tried to a jury and verdict was rendered on April 4, 2008 with a verdict in favor of the plaintiff as follows: (1) Past Economic damages $1,369,633.00; (2) Future Economic Damages $2,609,404.00; (3) Loss of Enjoyment Past/Future $225,425.00 (4) Interest $35,749.00.
This court previously issued a Memorandum of Decision dated May 1, 2009 which directed, pursuant to case law, that a hearing be held in regards to the defendant's claim that the plaintiff made a false statement when he testified at trial that he "would like to work for five more years."
A hearing was held on June 12, 2009. Both counsel had agreed that portions of transcripts of depositions be provided to the court as evidence at that hearing. Therefore, portions of the transcripts from the depositions of Dr. Hervey Weitzman, Dr. Daniel Wollman, Dr. Stuart Marcus were provided, which this court has reviewed. Arguments were made at the hearing regarding the information which the doctors provided to the plaintiff, G. Berry Schumann. Both sides have pointed out to the court pages and lines which they indicate support their positions. However, the burden of proof is on the defendant and the burden is clear and convincing evidence.
"The setting aside of a judgment on the basis of fraud `will only be granted if the [movant] is not barred by any of the following restrictions: (1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence . . . in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different.'" Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983), quoting Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980); Grayson v. Grayson, 4 Conn.App. 275, 286-87, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987).
Having reviewed all of the transcripts presented, the court cannot find, by clear and convincing evidence, that the plaintiff, G. Berry Schumann, now deceased, made a statement which rises to the level of perjury. The transcripts provide court with the information which the doctors relayed to their patient and they contained the doctors' presumptions as to what was in the plaintiff's mind. Nowhere in the transcripts is there a statement made by the plaintiff which indicates that he accepted the doctor's prognosis. The doctors even testified that they rarely give time frames for the end of life since they rarely know the answer to that question. And it was a question which the plaintiff appears not to have asked.
The defendant argues that as a doctor the plaintiff knew or should have known of his own condition and knew or should have known what his life expectancy was from the information provided to him by his doctors. What the defendant failed to prove was that the plaintiff was an impartial, detached physician receiving clinical data from fellow physicians, and not a lay patient processing the information which he wished to hear and disregarding the rest, as it often the case with the lay patient. The arguments by counsel are not evidence, the evidence was the portion of the transcripts provided to the court and it was not the quantity of the evidence but the quality of the evidence which was controlling. The burden of proof required more than mere suppositions, it required a higher level of proof than what the defendant thinks the plaintiff knew or should have known. The defendant wishes the court to find in his favor based upon what it considers to be the overwhelming nature of the circumstantial evidence.
Further, the statement that was made needs to be a statement of fact which the plaintiff knew was false. In this case, the plaintiff expressed a hope and a desire that he be able to work for 5 years. The defendant failed to prove, by clear and convincing evidence, was that the plaintiff knew that he had less a short time to live and that the statement he made was a factual misrepresentation of that fact. This is not the case where the fraud or perjury was by silence nor was it a fact which was known to the plaintiff to be false. A hope and a wish is not a statement subject to a claim of perjury. It would have been however, subject to cross examination.
The defendant failed to cross examine the plaintiff at trial when he made the statement in question. This was the result motions in limine which the defendant filed (which were granted by the court) to exclude any evidence or testimony regarding the plaintiff's cancer. This is similar to the case of Andrews v. Olaff, 99 Conn. 530, 537, 538, 122 A. 108 (1923), "Where a plaintiff testified that he had a motor vehicle license, but was not cross-examined upon that point and defendant's counsel made no effort to ascertain the truth of the statement by consulting the office of the motor vehicle commissioner, and after judgment for the plaintiff, defendant secured an injunction against levy of execution and brought action for a new trial on the ground of perjury by the plaintiff, a new trial was denied. In affirming the action of the trial court, MR. JUSTICE KEELER remarked: "We have to observe at the outset that the trial judge has found a lack of diligence as an ultimate fact, which must stand if reasonably supported by the subordinate facts appearing in the record . . . The fact assumed great importance in the mind of Andrews' counsel directly after judgment in the action. That he did not realize its importance before, is a clear indication of negligent preparation, and an example of wisdom after the event. Due diligence is manifested by foresight, and a want of it is not excused by activity following disaster." Meriden v. Rogers, 111 Conn. 115, 118-19, 149 A. 406 (1930). The defendant knew at the time of trial that the plaintiff had had cancer surgery. For whatever tactical reason, the defendant moved to have any and all references of said condition excluded from the jury. Therefore, the defendant cannot now claim that it was precluded from asking the plaintiff questions regarding his health.
The defendant has not met its burden of proof that there is clear proof of the perjury or fraud. Therefore, the motion to reopen and set aside the verdict is denied and the motion for a new trial is denied.