Opinion
No. CV06-5000893S
April 27, 2011
MEMORANDUM OF DECISION RE MOTION FOR COLLATERAL SOURCE REDUCTION
On August 9, 2005, the plaintiff, who was employed by R.C. Bigelow (intervening plaintiff in this action), lifted the cover of an industrial tea blender and inadvertently leaned against and activated the machine's limit switch, causing the motor to operate and to rotate the mixing blades. Her left arm was entrapped between the blades and the inside wall of the blender's tank. She sustained a significant injury to her arm, underwent five (5) surgeries, was assessed a 35% permanency to the arm, sustained significant scarring, and was out of work for approximately two (2) years.
Ms. Cavallo-Snyder proceeded to trial as against the seller of the blender, Wohl Associates, Inc., and asserted a violation of the Connecticut Products Liability Act, Connecticut General Statute § 52-572m et seq. The jury found for the plaintiff in returning a verdict in the total amount of $905,241.00 — $268,241.00 in economic damages and $637,000.00 in non-economic damages. The verdict was reduced to $588,906.65, the jury having found the plaintiff 35% comparatively at fault in causing her own injuries.
As a result of the plaintiff's injuries, her medical care and treatment, and her lost wages, Bigelow paid out $113,579.41 for medical bills and $135,227.42 for indemnity benefits. It intervened as a plaintiff in this action and has asserted a workers' compensation lien in the amount of $268,241.00.
Presumably, the difference lies in the payment for a permanency award.
Wohl Associates, Inc. has moved that the verdict be reduced "by the difference between the medical and lost wages awarded . . ." The plaintiff has objected.
The motion, dated Feb. 28, 2011, does not specify those amounts nor does it reference amounts paid out by the workers' compensation carrier (the intervenor) in medical or indemnity benefits.
[T]he defendant, as the party seeking to reduce the amount of economic damages awarded by the fact finder, bears the burden of proving that the verdict includes items of damages for which the plaintiff has received a collateral source benefit. Specifically, the defendant . . . must, at the conclusion of the evidence, submit interrogatories to the jury concerning the specific items of damages included within the verdict. Jones v. Kramer, 267 Conn. 350, 349-50 (2004)
The defendant in the instant matter requested no interrogatories; thus, the court cannot determine how much of the economic damages awarded were for medical bills, which medical bills were included in the $268,241 awarded for economic damages, or how much of that amount was for lost wages. "[T]he defendant should bear the burden of proving the items of damages corresponding with the desired collateral source reduction." Id. Because no interrogatories were submitted to the jury, it is not possible to know specifically which of the medical bills or other benefits paid by the intervenor were paid by collateral sources as that term is defined in § 52-225b. See also Pikulski v. Waterbury Hospital Health Center, 269 Conn. 1 (2004)
In pertinent part, § 52-225b defines collateral sources "as any payments made to the claimant, or on his behalf, by or pursuant to: (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others; or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services. `Collateral sources' do not include amounts received by a claimant as a settlement."
Of interest is the plaintiff's assertion, at p. 1 of her memorandum in opposition to the defendant's motion, that she "in theory, will have to reimburse the intervening plaintiff $248,806.83 from the verdict" so as to preclude a "possible double recovery." The issue whether, under the circumstances of this case, Ms. Cavallo Snyder is in fact obligated to reimburse the intervenor in that — or any other — amount is not before the court and, thus, the court does not today decide that issue. Should it arise, however, it may be helpful to the parties (plaintiff and intervenor) to note that Connecticut General Statute § 31-293, which is part of the Workers' Compensation Act, provides in part that, if the employer and the employee join as parties plaintiff in an action in which damages are recovered, "the damages shall be so apportioned that the claim of the employer . . . shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys fees incurred by the employee in affecting the recovery." Yet, Connecticut General Statute § 52-225c provides, "Unless otherwise provided by law, no insurer or any other person providing collateral source benefits as defined in 52-225b shall be entitled to recover the amount of any such benefits from the defendant or any other person or entity as a result of any claim or action for damages for personal injury . . . regardless of whether such claim or action is resolved by settlement or judgment." In Pajor v. Wallingford, 47 Conn.App. 365 (1997), our Court of Appeals addressed the issue whether the plaintiff's insurer (the intervenor here) was entitled to reimbursement for the medical expenses it paid on the plaintiff's behalf because of the subrogation provision of the insurance policy. Despite the insurance policy at issue in Pajor designating Rhode Island as the contract state, our Court, having determined there was no evidence to "provide a basis for determining in what state the contract was made" ( id., at 383) and that the plaintiff had resided in this state and had received all of his medical treatment here and thus that Connecticut was the place of performance "or operative effect" of the policy ( id.), concluded "the subrogation provision of the plaintiff's policy was ineffective because it conflicted with the prohibition against recovery of collateral source benefits in § 52-225c." Id. The issue with regard to whether, in the case before this court, the plaintiff is required to reimburse the compensation carrier (and in what amount) is neither raised by the parties here nor perhaps is it as easily resolved (as the plaintiff so suggests) in stating the plaintiff must reimburse the intervenor so as to preclude her from receiving a double recovery.
The insurer in Pajor was a health insurer — not a workers' compensation insurer — and thus the Court was not confronted with the interplay between 31-293 and 52-225c.
What is, however, clear is that this defendant cannot demonstrate its entitlement to a collateral source reduction.
The motion is denied.
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE AND/OR FOR REMITTITUR
On August 9, 2005, the plaintiff, who was employed by R.C. Bigelow (intervening plaintiff in this action), lifted the cover of an industrial tea blender and inadvertently leaned against and activated the machine's limit switch, causing the motor to operate and to rotate the mixing blades. Her left arm was entrapped between the blades and the inside wall of the blender's tank. She sustained a significant injury to her arm, underwent five (5) surgeries, was assessed a 35% permanency to the arm, sustained significant scarring, and was out of work for approximately two (2) years.
Ms. Cavallo-Snyder proceeded to trial as against the seller of the blender, Wohl Associates, Inc., and asserted a violation of the Connecticut Products Liability Act, Connecticut General Statute § 52-572m et seq. The jury found for the plaintiff in returning a verdict in the total amount of $905,241.00 — $268,241.00 in economic damages and $637,000.00 in non-economic damages. The verdict was reduced to $588,906.65, the jury having found the plaintiff 35% comparatively at fault in causing her own injuries.
Wohl has moved the verdict be set aside and/or that the court order a remittitur because: a) the verdict was contrary to the evidence in that the accident was caused by a prior owner's alteration/modification; b) the verdict was contrary to Connecticut General Statute § 52-572p ("A product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party unless" [citing three exceptions, none of which are here applicable]); c) the finding the blender was unreasonably dangerous and that the plaintiff was only 35% comparatively at fault was against the law and the evidence; and d) the award of non-economic damages (being almost six times the medical expenses) was unreasonably high and excessive as a matter of law. The plaintiff has denied each of these assertions.
While the trial court possesses inherent power to set aside a jury verdict, it "should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion . . ." Smart v. Corbitt, 126 Conn.App. 788, 813 (2011).
The obvious impediment to the defendant's assertion that this accident was the result of a prior owner's modification of the position of the emergency power cut-off "limit switch" (Memorandum of law, at 1) is that it is not known what specifically the jury found was unreasonably dangerous with regard to this blender as there was here a claim of inadequate warnings (none were placed on the machine by Wohl) and the plaintiff's expert, John Orlowski, testified on February 16, 2011, there was not an adequate warning to the user not to activate the limit switch when the cover of the blender was open so as to avoid the startup of the machine. It cannot therefore be said whether the jury found multiple defects or a single defect — and, if so, which one(s).
Orlowski also testified to the limit switch being improperly located and that the machine would not have started if the main power switch had been turned off.
Our Supreme Court has noted an absence of an express statutory basis for the defense of misuse in our product liability statute. The Court, in Elliot v. Sears, Roebuck Co., 229 Conn. 500 (1994), stated, "[A] partial recovery is allowed even if the claimant's injury is attributable mostly to his or her own conduct." Id., at 512. The statutory language of § 52-572o(a) provides the comparative responsibility of the claimant "shall not bar recovery but shall diminish the award of compensatory damages proportionately according to the measure of responsibility attributed to the claimant." The Court in Elliott concluded that, despite the absence in the statute of express language providing for misuse of the product as a defense, the legislature (in enacting § 52-572o[a]) "did not intend to abrogate this common law defense, but rather the act incorporates misuse as part of the consideration of pure comparative fault." Id., at 515. Thus, Cavallo-Snyder's damages were diminished to the extent of her comparative fault (35%). Had this jury determined she was 80% responsible for her own injuries, she would still have been able to recover 20% of the damages assessed.
The court cannot usurp the jury's function in assessing the comparative fault of the parties. The jury was clearly instructed that they should reduce the plaintiff's damages by the percentage which expressed her contribution to her injuries. They found her to be 35% comparatively responsible and it is not the court's function to second guess this assessment where the parties claimed the matter for a jury. As Wohl points out in its memorandum, the plaintiff did at one point testify to having forgotten to turn off the machine before putting her arm in it (though she also testified she could not remember having done so) and it is so that, without objection by plaintiff's counsel, a note from plaintiff's supervisor stating the plaintiff had told him after the accident that she had forgotten to turn the machine off was admitted. Yet, it cannot be said whether the jury found the blender unreasonably dangerous because of a) the location of the limit switch, b) the absence of adequate warnings, c) the absence of adequate operational instructions — or all of these. That is so because neither party requested — or prepared — interrogatories for the jury's completion. While it is so as defendant asserts that much of the evidence at trial centered upon two explanations for the blender's unexpected start (both of which focused on this switch), the fact is that the plaintiff asserted the blender was unreasonably dangerous because "defective" in five (5) ways — only two (2) of which focused on the switch. The plaintiff alleged the blender was defective because of inadequate warnings, because not accompanied by adequate operational instructions, and because the defendant failed to adequately inspect the blender before selling it to the plaintiff's employer. Because no interrogatories were sent to the jury, the defendant cannot look behind a general verdict to assert the jury must have found the position of the limit switch constituted the defect — particularly where there were multiple other allegations of a "defect."
At a charge conference, the court inquired whether either party wished interrogatories be sent to the jury and each responded he did not.
A total of seven (7) allegations were asserted, two (2) of which were generic descriptions.
Our Court of Appeals has said:
`Under the general verdict rule, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall . . . The rule rests on the policy of the conservation of judicial resources, at both the appellate and trial levels . . . On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review . . . Therefore, the general verdict rule is a rule of appellate jurisprudence designed to further the general principle that it is the appellant's responsibility to provide a record upon which reversible error may be predicated . . .
``Our Supreme Court has held that the general verdict rule applies to the following five situations:
(1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as "the case was tried but that should have been specially pleaded." (Internal quotation marks omitted.) D'Alesandro v. Clare, 74 Conn.App. 177, 180-81, 812 A.2d 76 (2002)
Diener v. Tiago, 80 Conn.App. 597, 600-01 (2003), citing to D'Alesandro v. Clare, 74 Conn.App. 177, 180-81 (2002).
By his Answer, the defendant denied the plaintiff's claim of negligence and asserted a special defense of the plaintiff's comparative negligence. See #170, Amended Answer, Special Defense, and Counterclaim electronically filed February 15, 2011. "The parties did not request that the court submit interrogatories to the jury and, consequently, we cannot determine the ground on which the jury's verdict rests. In applying the general verdict rule, we presume that every issue was found in favor of the prevailing part." 80 Conn.App., at 602.
Thus, this case falls under the fourth category to which the general verdict rule applies — denial of the complaint and the pleading of a special defense.
At the argument of the Motion to Set Aside and/or for Remittitur on March 28, 2011, the court raised the issue whether the general verdict rule, which neither party raised or argued, should here apply. As an example, the court inquired whether, if, for example, the jury found the defendant's failure adequately to warn of the blender's potential for harm, the verdict should stand under the general verdict rule where, as here, no interrogatories were submitted to the jury. The court's recollection is that the defendant's response was that any warnings which might have been (but were not) provided on the blender would necessarily have been related to the position of the limit and/or on-off switch, an alteration provided not by the defendant but by a third party and that alteration precluded a finding the defendant was liable. On March 31, 2011, the defendant provided the court a copy of Green v. H.N.S. Management, 91 Conn.App. 751 (2005), cert. denied, 277 Conn. 909 (2006), without analysis or explication except to note the case was relevant "on the issue of the applicability of the general verdict rule."
Green concerned a bus passenger's fall on what was claimed to be an aisle made wet and slippery by the accumulation of ice and slush. A one-count complaint in negligence was asserted against the transit company. The complaint provided several specifications of negligence — i.e., failure to warn of the dangerous condition of the aisle, failure to inspect the aisle, failure to provide a safe place to walk, failure to provide non-slip mats on the floor, etc. The Court in Green noted the application of the rule was limited to the five (5) situations here above set forth but also noted our Supreme Court had provided further guidance on when the rule was not applicable. Green indicates that, at page 787, the Court, in Curry v. Burns, 225 Conn. 782 (1993), stated "that the [general verdict] rule does not apply if a plaintiff submits to the jury several different specifications of negligent conduct in support of a single cause of action for negligence." Curry, however, did not reach that conclusion. What Curry says, at 787, is, "We acknowledged in Finley that the general verdict rule does not apply if `a plaintiff submits to the jury several different specifications of negligent conduct in support of a single cause of action. ` " It then went on to overrule Finley to the extent "that Finley expanded the application of the general verdict rule beyond its prior parameters . . ." 225 Conn., at 801. The Curry court did not, however, abandon "the rubric of a denial by the defendant of separate factual allegations in support of a single cause of action" — to which the "general verdict rule does not apply." Id. The Green court concluded that the "interlocking nature of the specifications of negligence and the plaintiff's general allegations regarding the factors that caused her fall would make it difficult to consider each separately." 91 Conn.App., at 757.
Finley v. Aetna Life and Casualty Co., 202 Conn. 190 (1987).
Because the instant case falls squarely within one of the five parameters to which the general verdict rule applies, the question then becomes whether the plaintiff's allegations regarding the blender's "defects" are of such an "interlocking" nature that would make it difficult for a jury to consider each separately. The plaintiff claimed the following defects:
1) inadequate warnings were provided by the seller;
2) the blender was not accompanied by adequate operational instructions;
3) the blender was defectively designed and sold with regard to the positioning of the limit switch on the machine;
4) the blender was defective and unreasonably dangerous in that the limit switch was installed in such a position that it was foreseeable and probable it would be inadvertently activated by an operator starting the machine;
5) the defendant failed to inspect or failed to adequately inspect the blender before selling it to R.C. Bigelow;
6) the defendant sold the said blender in the just discussed defective, unsafe and dangerous condition, thereby subjecting the plaintiff to unreasonable risk of injury; and
7) the defects in the blender existed when it was put into the stream of commerce by the defendant.
Allegations #3 and #4 both assert the position of the limit switch on the blender constituted a defect; they are duplicative. Allegations #6 and #7 are not in fact assertions of a "defect" but state elements of a product liability case to be established at trial. The remaining three (3) allegations assert distinctly different claims. Allegation #1 states the warnings on the machine were inadequate (not present); allegation #2 declares no operating instructions accompanied the blender; allegation #5 provides the defendant seller failed to do an adequate inspection of the machine before the sale to the plaintiff's employer. The court does not find these four allegations of defect to be either "interlocking" in nature or to be predicated on the same nucleus of facts or testimony by which they may be proven such as "would make it difficult to consider each separately." 91 Conn.App., at 757. It is unlikely the jurors had difficulty understanding the difference between inadequate operating instructions and a failure to inspect for defects. Unlike a negligence action in which a single theory of recovery is asserted, a product liability claim includes all applicable theories of recovery and the pleadings reflect that various theories are relied upon. Under Connecticut General Statute § 52-572m(b), a product liability claim "shall include, but is not limited to, all actions based on the following theories: strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent." All theories of recovery — to include all common law theories — fall within the penumbra of a "product liability claim." It is the exclusive remedy afforded persons claimed to have been harmed by sellers of allegedly defective products. See Winslow v. Lewis-Shepard, Inc. et al., 212 Conn. 462 (1989).
The court similarly rejects the defendant's argument that any warnings which might have been provided would be inextricably tied to the position of the limit switch on the blender. A warning which, for example, might have read "Never reach into the blender" or "Do not open the lid while the blender blades are moving" or, as defense counsel suggested during closing argument, "This machine has no brain. Use your own" might well have prevented the plaintiff's injuries. The duty to warn and the position of the limit switch on the machine present severable and dissimilar inquires which, unlike the Green scenario, do not stem solely from either the denial of factually similar allegations of negligent conduct or denials of the various factual allegations of the complaint.
In "a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fail." DeGennaro v. Tandon, 89 Conn.App. 183, 198, cert. denied, 274 Conn. 914 (2005). The plaintiff in the case before the court offered expert testimony (unrefuted by other expert testimony) both that the position of the limit switch and the adequacy of warnings constituted defects in violation of safety standards published by the American National Safety Institute (ANSI) and both claims constituted proper grounds for the jury's verdict.
Wohl has also claimed the jury verdict of non-economic damages in the amount of $637,000, "amounting to almost six times her medical expenses ($107,651.10) cannot be reconciled with any view of the evidence." Wohl post-verdict memorandum, at p. 10.
Exhs. #1, 2, and 4 at trial.
The plaintiff was single and thirty-seven (37) years old at trial. She testified to having had a great deal of pain at the time of the incident (Her left arm came into direct contact with the blade of this commercial blender.) and that paramedics were called and took her to St. Vincent's Hospital where Dr. Carolyn performed the first of five (5) surgeries — internal fixation of the left wrist by way of screws and a plate. She remained in the hospital for two (2) days and she had thirty-five (35) staples removed six (6) days later. She described her pain during that interim period as one she "couldn't describe" and to experiencing it then "24-7." She was unable to perform basic hygienic tasks alone — specifically, showering. On March 1, 2006, she had a second surgery — for removal of the plate and screws because her arm was not "healing" and she was experiencing "harsh and burning pain." The medical records documented radial nerve palsy. The second surgery afforded her some relief from pain though she was then taking Percocet for that pain. She testified to having developed a rash, to vomiting, and to having migraines as sequellae of the Percocet. On August 24, 2006, she underwent a third surgery — a tendon transfer to her left wrist to permit greater function of the left limb. On May 6, 2008, Dr. Rego did a cubital tunnel release. Three years post-accident, she described her arm as "bad looking" and said she had been undergoing physical therapy three (3) times per week for two (2) hours each session. On June 23, 2009, she had her fifth and last surgery for another removal of the plate and screws (the screws, she said, had been bothering her because so close to the surface of her skin that she "hurt" even when clothes touched her limb). She demonstrated her arm to the jury and thus it saw the multiple areas of scarring and the slight discoloration of her skin the length of her arm. Except for short periods of time (i.e., from 11/14/05-2/23/06), she missed the greater part of four (4) years from work (She returned on 10/19/10). She demonstrated to the jury her inability to completely turn her left arm though she can lift it above her shoulder. Ms. Cavallo stated she still has difficulty doing her laundry or folding clothes, dusting, mopping, or vacuuming; she cannot tie the laces on her tennis shoes, has difficulty putting on undergarments, tights, and socks, cannot ever professionally cook again, is required to do household tasks with her right hand only, has a lifting restriction of 5-10 lbs., and stated she would like to have children but worries about picking them up, changing their diapers, etc. She is left with a permanency of 35% of her left arm.
She testified that, when her arm was crushed between the blade and the tank of the blender, she experienced "the most excruciating pain." Feb. 15, 2011, a.m. testimony.
She is a 1998 graduate of the Culinary Institute in New York though she had little experience as a professional cook and was not so employed at the time of the incident. She was a Research and Development Technician and ran the testing laboratory at R.C. Bigelow when injured.
Putting aside the jury's finding the plaintiff was comparatively responsible for 35% of her damages, an award of non-economic damages of $637,000 spread over a life expectancy of forty-four (44) years amounts to $14,477.00 yearly, $1,206.41 monthly, $280.58 weekly, and $40.08 daily. Considering the number of surgeries with attendant pain and suffering, the scarring of the left arm, the continuing effects on her everyday life, and her life expectancy, this court cannot conclude the amount of non-economic damages awarded shocks the conscience of the court or is unfair, unreasonable, or manifestly unjust given the circumstances of this case. Nor can the court conclude that such an award was against the law or the evidence presented at trial.
"The amount of a damage award is a matter peculiarly within the province of the trier of fact (in this case, the jury). The size of the verdict alone does not determine whether it is excessive. The only practical test to apply . . . is whether the 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." (Citations omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 551 (1999). In ruling on the motion for remittitur, this court is obliged to view the evidence in the light most favorable to the plaintiff. See e.g., Eisenbach v. Downey, 45 Conn.App. 165, 184 (1997). A conclusion that the jury exercised merely poor judgment is an insufficient basis for ordering a remittitur. See Wochek v. Foley, 193 Conn. 582, 587 (1984). Proper compensation for non-economic damages cannot be computed by a mathematical formula, and there is no precise rule for their assessment. See Campbell v. Gould, 194 Conn. 35, 40 (1984). The plaintiff need not prove damages with exactitude; rather, the plaintiff must provide sufficient evidence for the trier to make a fair and reasonable estimate. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 65 (1998). A generous award of non-economic damages should be sustained if it does not shock the sense of justice. Campbell, op. cit., at 40. The court, in deciding a motion for remittitur, should not act as the seventh juror with absolute veto power. See Wichers v. Hatch, 252 Conn. 174, 188 (2000).
With regard to amounts paid out by plaintiff's employer (for medical treatment, lost wages, and permanency), the defendant agreed at oral argument that, under Connecticut General Statute § 31-293(a), where, as here, the employer and employee are joined as parties, ". . . the damages shall be so apportioned that the claim of the employer . . . shall take precedence over that of the injured employee in the proceeds of the recovery . . ." Thus, the plaintiff shall not recover a double windfall.
The defendant Wohl's motion to set aside the verdict and/or for remittitur is necessarily denied.