LOIS TANZER, JUDGE.

I. BACKGROUND

This product liability action was filed by Thomas Roome and his mother, Anne Roome, on June 21, 2002. In the complaint the plaintiffs allege that the defendant, Shop-Rite Supermarkets, Inc. d/b/a Shop-Rite of West Haven (a/k/a West Haven Markets) manufactured, sold and distributed a blueberry bread product which was defective in that the label did not list nuts as an ingredient. It is further alleged that as a result of ingesting some of the bread, Thomas Roome, who was allergic to nuts, suffered an anaphylactic shock and nearly expired. Anne Roome brought a claim for bystander emotional distress as a result of witnessing her son's anaphylactic reaction. The case was tried before a jury in April and May of 2005. On May 2, 2005, the jury returned a verdict in favor of plaintiff Thomas Roome against the defendant and awarded economic damages in the amount of $4,241.43 and non-economic damages in the amount of $50,000.00. The jury also indicated in response to an interrogatory that the plaintiff had proven his punitive damages claim under the product liability act pursuant to General Statutes § 52-240b.

The defendant has filed Motion to Set Aside the Verdict and for a New Trial, and Motion for Judgment Notwithstanding the Verdict. The plaintiff objects. Both parties filed memoranda.

II. STANDARD OF REVIEW A. MOTION TO SET ASDE A VERDICT AND FOR NEW 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." Palomba v. Gray, 208 Conn. 21, 23-24 (1988). The court must view the evidentiary record most favorably toward sustaining the verdict. Douglass v. 95 Pearl Street Corp., 157 Conn. 73, 77 (1968). "[I]f there is a reasonable basis in the evidence for the jury's verdict . . ., the trial court should let the jury work their will." Business Alliance Capital Corp. v. Fuselier, 88 Conn.App. 720, 731 (2005). Only if the jury could not reasonably and legally have reached their conclusion should its verdict be set aside. Cohen v. Yale-New Haven Hosp., 260 Conn. 747, 761 (2002).

B. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

In its consideration of a Motion for Judgment Notwithstanding the Verdict the court must consider the evidence in a light most favorable to sustaining the verdict. Tragakiss v. Dowling, 183 Conn. 72 (1981). "The verdict will be set aside and judgment directed if . . . the jury could not reasonably and legally have reached their conclusion." Edwards v. Tardif, 240 Conn. 610, 622 (1997). Cohen v. Yale-New Haven Hospital, 260 Conn. 747, 761, 800 A.2d 499 (2002).

III. MOTION TO SET ASIDE THE VERDICT AND FOR NEW TRIAL A. THE PUNITIVE DAMAGES CLAIM WAS CONTRARY TO THE EVIDENCE AND THE LAW.

General Statutes § 52-240b provides that punitive damages may be awarded in a product liability action "if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others . . ."

The defendant contends that the jury's finding of reckless conduct was contrary to the evidence and the law. The cases relied on by the defendant in which the issue of determining punitive damages was removed from the jury when the evidence required for a showing of recklessness has not been produced are inapposite and distinguishable from the present case. For instance, in Wagner v. Clark Equipment Co., 243 Conn. 168, 200-01 (1997), the Supreme Court upheld the trial court's refusal to submit the issue of punitive damages to the jury because, although evidence was presented that Clark was aware of the general dangers posted by forklifts to pedestrians, the plaintiff failed to present sufficient evidence to demonstrate that Clark's failure to install a standardized system of safety devices rose to the level of reckless conduct, when such devices were not universally accepted by the industry and were not required under applicable safety standards at the time the forklift was distributed. Similarly, in Ames v. Sears, Roebuck Co., 8 Conn.App. 642, 651 (1986), the defendant's failure to install a deadman's control on its lawnmower, when such devices were not universally accepted by the industry and were not required under applicable safety standards at the time the defendant's machine was distributed, did not rise to the level of reckless conduct. In this case, however, there was evidence that the listing of nuts as an ingredient in a product containing nuts was required by the defendant's own safety standards as well as by applicable federal regulations, 21 CFR 101-4.

Likewise, those cases cited by the defendant involving failure to warn of foreign objects such as a chicken bone in soup; Johnson v. Stop Shop Supermarkets, Superior Court, judicial district of New Haven at New Haven, Docket No. 358057 (June 10, 1994, Hartmere, J.); or a hard piece of dough in an hors d'oeuvre; Angiolillo v. Stanwich Club, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. 020191905 (January 23, 2004, D'Andrea, JTR) ( 36 Conn. L. Rptr. 442); are quite different from this case involving failure to warn of a known ingredient, known to pose a specific, not general, risk of injury to consumers of the defendant's nut containing products. There was evidence by which a jury could find that the defendant had knowledge of the specific and substantial risk of danger from improperly labeling products containing nuts and that the defendant acted in reckless disregard for the safety of its "consumers" of its blueberry nut bread when it failed to remove from its packaging system a label for blueberry bread which did not list nuts as an ingredient, in light of evidence that all blueberry bread sold by the defendant was "Blueberry Nut Bread" and contained nuts.

B. THE JURY MISAPPLIED THE LAW AS GIVEN TO THEM BY THE COURT RE PUNITIVE DAMAGES

The discussion set forth in IIIA supra is incorporated herein.

C. THE COURT ERRED IN ITS CHARGE TO THE JURY RE PUNITIVE DAMAGES CLAIM CT Page 15071

The discussion set forth in IIIA supra is incorporated herein.

2. In charging as it did on punitive damages in failing to charge as requested.

The plaintiff argues that the court failed to include in its charge on "recklessness" the following language: "[I]t is at least clear that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention."

"As a general matter, `[p]unitive damages, applying the rule in this state as to torts, are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights. In a products liability action, `[p]unitive damages may be awarded if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product.' General Statutes § 52-240b." Ames v. Sears, Roebuck Co., 8 Conn.App. 642, 655 (1986).

The charge, as given, was consonant with the evidence and allegations in this product liability case, which included the defendant's knowledge and appreciation of the risk of physical harm to consumers in failing to label properly its nut-containing products, violation of the defendant's own safety standards, violation of federal regulations pertaining to labeling, and failure to remove from its packaging and labeling system an inaccurate and superfluous label.

D. THE COURT ERRED IN ALLOWING THE INTRODUCTION OF INADMISSIBLE EVIDENCE

1. The court has reviewed the testimony of Mark D. Lichtman, M.D., an allergy specialist who treated the plaintiff, and the court's rulings expurgating portions of Dr. Lichtman's deposition testimony in light of the defendant's objections and arguments. There is no basis for requiring the court to set aside the verdict and order a new trial.

2. The court has reviewed the portions of the trial testimony submitted by the defendant as to questions concerning carrot cake, walnut bags and labels not in evidence and concludes there is no basis for requiring the court to set aside the verdict and order a new trial.

E. THE VERDICT IS CONTRARY TO THE EVDENCE AND LAW.

In addition to claiming that the issue of punitive damages should not have gone to the jury, the defendant claims that there is insufficient evidence of causation. General Statutes § 52-572q(c) governs the issue of causation in warnings cases. That statute provides in part that the claimant shall prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the claimant would not have suffered the harm. "Questions regarding the existence of a causal link classically are reserved for determination by the trier of fact. Proximate cause `becomes a question of law only when the mind of a fair and reasonable person could reach only one conclusion . . . The question should be submitted to the trier of fact if there is room for a reasonable disagreement.'" (Citation omitted; internal quotation marks omitted.) Hall v. Winfrey, 27 Conn.App. 154, 158, cert. denied, 222 Conn. 903 (1992).

The main thrust of the defendant's argument is that the blueberry nut bread ingested by the plaintiff contained walnuts but not peanuts, that the plaintiff was allergic to peanuts but not to walnuts, ergo, there was insufficient evidence to show that the cause of the plaintiff's anaphylactic shock was the presence of walnuts in the blueberry nut bread ingested by the plaintiff. (That claim is also related to the defendant's claims of error in admitting portions of Dr. Lichtman's deposition testimony.) The court has carefully reviewed the testimony of the experts and treating doctors including the opinions of Dr. Paul Monaco, and has carefully reviewed the exhibits. There is evidence from Dr. Monaco that the cause of Roome's anaphylactic reaction was nuts. Dr. Lichtman reports in Exhibit 8 that Thomas Roome "has had a series of anaphylactic reactions after eats (sic) nuts in the past. Cap RAST testing in the clinic showed a positive reaction to peanuts. It was strongly recommended that he carefully avoid all nuts." (Emphasis supplied). In Exhibit 29, there is evidence that plaintiff "allergic to nuts." In Exhibit 26, there is evidence that the bread at issue contained nut fragments most of which were identified as walnuts but other pieces might be other types of nuts, most were probably walnuts.

From the evidence and all reasonable inferences that flow from the evidence, the trier of fact could reasonably have found that it is reasonably probable the blueberry nut bread product was the proximate cause of the plaintiff's claimed injuries.

IV. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

In its motion for judgment notwithstanding the verdict, the defendant moves the court to vacate the jury finding of punitive damages and enter judgment on the remainder of the verdict because the punitive damages finding portion of the verdict was contrary to the evidence and the law and/or the jury misapplied the law as given them by the court. Those arguments have been addressed in IIIA supra in discussing and denying the defendant's motion to set aside and for a new trial on the same grounds. For the same reasons, the motion for judgment notwithstanding the verdict is denied.

Having denied the defendant's motions, the court now turns to the issues of collateral source reduction, the imposition of punitive damages and the plaintiff's request for attorneys fees and costs.

V. COLLATERAL SOURCE REDUCTION

The jury awarded economic damages in the amount of $4,241.43. The parties have stipulated that the economic damages award should be reduced by collateral sources in the amount of $3,000.00 leaving a net economic damages award of $1,241.43.

VI. PUNITIVE DAMAGES

Punitive damages may be awarded if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product. If the trier of fact determines that punitive damages should be awarded, the court shall determine the amount of such damages not to exceed an amount equal to twice the damages awarded to the plaintiff. General Statutes § 52-240b. The jury indicated in its interrogatories and on its verdict font that punitive damages should be awarded. Pursuant to General Statutes § 52-240b, the court awards punitive damages in the amount of $25,000.00 to the plaintiff

VII. ATTORNEYS FEES AND COSTS:

Prior to the hearing on the defendant's post-verdict motions, the plaintiff submitted Affidavit Re Attorneys Fees. The plaintiff advances the following two grounds for an award of attorneys fees: (1) General Statutes § 52-240a which provides that in a products liability action, if the court determines that the claim or defense is frivolous, the court may award reasonable attorneys fees to the prevailing party; and (2) Practice Book Section 13-25. Expenses on Failure to Admit, which provides that if a party fails to admit the genuineness of any document or the truth of any matter as requested herein, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, such party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorneys fees. The judicial authority shall make the order unless it finds that such failure to admit was reasonable.

The plaintiff filed Requests for Admission dated January 23, 2003. The pertinent requests for admission are the following:

1. That the blueberry bread at issue in this case contained walnuts.

2. That the ingredient section of the label on the blueberry bread at issue in this case failed to identify that it contained walnuts.

3. That the label on the blueberry bread at issue in this case failed to identify any information that the bread contained walnuts.

Although the procedural history regarding the objections and responses to the requests to admit filed by the plaintiff is not entirely clear, it is clear that the defendant denied each of those requests on February 14, 2004. On April 20, 2005, after jury selection had been completed and presentation of evidence was about to commence, the defendant filed Amended Responses to Requests for Admission in which it admitted the three requests it had previously denied.

Denial by the defendant in its responses to requests for admission that the blueberry bread at issue contained walnuts and that the ingredient section of the label on the blueberry bread at issue failed to identify that it contained walnuts was frivolous and unreasonable. The plaintiff is entitled to reasonable attorneys fees incurred as a result of that denial. Because the denial related to only one and to only a limited, albeit significant, element of the plaintiff's product liability claim in this vigorously contested case, it would be unreasonable to award all of the fees requested by the plaintiff. In consideration of all the circumstances, attorneys fees are awarded in the amount of $30,000.00.

VIII. ORDERS

The clerk of the court is ordered to enter judgment for the plaintiff in the amount of $51,241.43. (Economic damages of $1,241.43 and Non-economic damages of $50,000.) Plus punitive damages in the amount of $25,000; attorneys fees in the amount of $30,000 plus costs in the amount of $2,247.47.