Opinion
No. CV 05-5000747S
May 1, 2009
MEMORANDUM OF DECISION
The defendant has filed the above captioned motions. The court will first address the arguments in the May 27, 2008 motions and then the supplemental arguments in the March 6, 2009 motions.
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.
Both the plaintiff and the defendant filed post-verdict motions. The motions were scheduled to be heard on July 1, 2008. However, due to the death of the plaintiff, G. Berry Schumann on June 30, 2008, the hearing on the motions was postponed.
AS TO MAY 27, 2008 MOTIONS.
As to the Motion for Remittitur, the court denies the motion. The standard for granting such a motion is as follows: "The amount of a damage award is a matter peculiarly within the province of the . . . jury . . . The size of the verdict alone does not determine whether it is excessive. The only practical test to apply to [a] verdict 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." (Internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 323, 852 A.2d 703 (2004). [I]n ruling on the motion for remittitur, the trial court was obliged to view the evidence in the light most favorable to the plaintiff in determining whether the verdict returned was reasonably supported thereby . . . A conclusion that the jury exercised merely poor judgment is an insufficient basis for ordering a remittitur . . . The plaintiff need not prove damages with mathematical exactitude; rather, the plaintiff must provide sufficient evidence for the trier to make a fair and reasonable estimate." (Citations omitted; internal quotation marks omitted.) Johnson v. Chaves, 78 Conn.App. 342, 346-47, 826 A.2d 1286, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003)." Embalmers' Supply Co. v. Giannitti, 102 Conn.App. 20, 54-55, 929 A.2d 729 (2007). This court finds that the jury's verdict was supported by the vast weight of the evidence presented during the trial, was not influenced by any bias or prejudice and does not shock the conscience. As to the Motion for New Trial, Motion to Set Aside and Motion for Judgment Notwithstanding the Verdict the court finds in favor of the plaintiff.
In those motions specific claims were made by the defendant: (1) the plaintiff was not terminated as a result of constitutionally protected speech in violation of C.G.S. section 31-51Q; (2) the defendant has an equally, if not more, compelling first amendment right to speak on the use of diagnostic codes; (3) the defendant is entitled to judgment on count two because the availability of statutory remedies for plaintiff's wrongful discharge claim precludes him from pursuing a common-law wrongful discharge claim; (4) the admission of irrelevant evidence confused the jury, caused prejudice and resulted in an improper verdict; (5) the jury instructions were confusing, contrary to applicable case law and caused prejudice to the defendant; (6) the verdict was so excessive as to shock the conscience and compel the conclusion that the jurors were influenced by partiality, prejudice, mistake or corruption. The court finds that the motions should be denied. The court finds the verdict is not contrary to the law, that at best the issues raised in the motions are issues that may properly be raised on appeal.
The litigants have a right to have factual issues resolved by the jury. A trial court is not to sit as a seventh juror, but rather to decide whether viewing the evidence in the light most favorable to the prevailing party the jury could reasonably have reached the verdict it did. The court finds the jury could reasonably have reached this verdict. The court finds there was no error in any of the items claimed by the defendant in its motion as to the law, the charge, the jury instructions and the court can not conclude that the jury was biased, mistaken, partial or corrupt.
AS TO MARCH 6, 2008 MOTIONS
The gravamen of the defendant's motions are (1) that the plaintiff failed to comply with requests for discovery regarding the nature of his health; (2) that the plaintiff committed fraud; (3) that the plaintiff committed perjury by making a false statement; and (4) that there is newly discovered evidence. The defendant argues that for all the above reasons the verdict should be set aside and a new trial granted.
As to the claim of fraud, the defendant is entitled to an evidentiary hearing on the issue of fraud and perjury. "[C]ourts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate any judgment obtained by fraud, duress or mutual mistake. (Internal quotation marks omitted.) In re Salvatore P., 74 Conn.App. 23, 27, 812 A.2d 70 (2002), cert. denied, 262 Conn. 934, 815 A.2d 135 (2003). "Allegations such as misrepresentation and fraud present issues of fact . . . Moreover, [w]hether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact." (Internal quotation marks omitted.) Jaser v. Fischer, 65 Conn.App. 349, 358, 783 A.2d 28 (2001). "When a court's exercise of discretion depends on disputed factual issues, such as the existence of fraud, due process requires an evidentiary hearing." Davis v. Fracasso, 59 Conn.App. 291, Page 688, 299-300, 756 A.2d 325 (2000)." Tyler E. Lyman, Inc. v. Lodrini, 78 Conn.App. 684, 687 (2003). Therefore, although neither the plaintiff nor the defendant requested a hearing on this issue, and knowing that extensive discovery was done on this issue since the death of the plaintiff, the court will set this matter down for hearing on the issue of fraud and perjury, the date to be determined by civil case flow. The sole issue to be heard at that time is whether or not the plaintiff perpetrated a fraud on the court and or committed perjury when he testified at trial that he "hoped to work 5 more years." The question being, had he been told by his doctors that he was terminal and in the last stages of his life and that he would not survive for 5 more years and that his testimony at trial that he hoped to work for five years was contrary to all the advise he was receiving from his doctors.
As to the claim of newly discovered evidence and failure to disclose and/or the continuing duty to disclose the court finds on these issues in favor of the plaintiff.
Prior to trial, the plaintiff disclosed to the defendant that the plaintiff had undergone cancer surgery. The plaintiff provided bills and records to the defendant. In fact, the defendant successfully moved in a motion in limine to preclude the plaintiff from any testimony or introducing any evidence about his cancer surgery. The defendant did not pursue any discovery on these issues.
"A motion to open in order to permit a party to present further evidence need not be granted where the evidence offered is not likely to affect the verdict. Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 462 A.2d 1037 (1983) `Newly-discovered evidence which is merely cumulative, or which impeaches the credibility of a witness, will not suffice ordinarily to grant a new trial, and never unless it appears reasonably certain that injustice has been done in the judgment rendered, and that the result of a new trial will probably be different.' (Internal quotation marks omitted.) Dick v. Dick, 167 Conn. 210, 227, 355 A.2d 110 (1974). When a party seeks to open and vacate a judgment based on new evidence allegedly showing the judgment is tainted by fraud, he must show, inter alia, that he was diligent during trial in trying to discover and expose the fraud, and that there is clear proof of that fraud. See Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980); see also 2 Restatement (Second), Judgments § 70(2), p. 179 (1982)." Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 107-08, 952 A.2d 1 (2008).
This court's role in a motion for a new trial is to determine whether "the evidence presented at the hearing considered with the evidence presented at the original trial warrants the granting of a new trial." Kubeck v. Foremost Foods Co., 190 Conn. 667, 669 (1983). In its determination here, the court is further guided by the following law: "[A] party is entitled to a new trial on the ground of newly discovered evidence if such evidence is, in fact, newly discovered, will be material to the issue on a new trial, could not have been discovered and produced, on the trial which was had, by the exercise of due diligence, is not merely cumulative and is likely to produce a different result . . . (Citations omitted.) Davis v. Fracasso, 59 Conn.App. 291, 296 (2000). It is the defendant's burden to prove the above by a preponderance of the evidence. Jacobs v. Fazzano, 59 Conn.App. 716, 723 (2000)." Terracino v. Fairway Asset Management, Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV 00 0082928, (Mar. 8, 2001, DePentima, J.) 2001 Ct.Sup. 3197, 3199.
Since the defendant knew prior to trial that the plaintiff had had cancer surgery this is not within the scope of any newly discovered evidence. The defendant failed to pursue this issue and sought to have any reference to the issue precluded from the trial.
As to the continuing duty to disclose, the defendant relies on five (5) questions from its First Request for Production of Documents served on the plaintiff on or about January 27, 2006 and the continuing duty to disclose thereafter. The questions are as follows:
9. All documents concerning your claims for monetary damages, including, but not limited to, documents that establish or tend to establish the amount of damages you claim for back pay, lost bonuses or other benefits, other compensatory damages, including, but not limited to, any sums expended or anticipated to be expended.
The plaintiff provided the necessary information regarding his claims for monetary damages due to his back pay, lost bonuses. His medical condition had no impact on this interrogatory.
42. All documents that relate to, concern, support or refute the allegations that "As a result of Dianon's violation of Connecticut General Statutes § 31-51q, Dr. Schumann has suffered the loss of income, harm to reputation and loss of enjoyment of life's pleasurable activities," as set forth in paragraph 44 of the Complaint.
The plaintiff provided the necessary information regarding his losses as a result of the violation of 31-51q. The witnesses who testified at trial used a timeframe of before the cancer surgery.
49. All documents that relate to, concern, support or refute the allegations that "As a result of Dianon's wrongful termination of Dr. Schumann, plaintiff has suffered the loss of income, harm to reputation and loss of enjoyment of life's pleasurable activities," as set forth in paragraph 55 of the Complaint.
The plaintiff provided the necessary information regarding his losses as a result of the wrongful termination. The witnesses who testified at trial used a timeframe of before the cancer surgery.
50. All documents concerning plaintiff's efforts to obtain employment or otherwise secure income after plaintiff's separation from Dianon Systems, Inc. up to the present time, and all such materials reflecting the results of such efforts, including, but not limited to:
A. correspondence between you, your representatives or agents, and employment agencies;
B. resumes, applications or background information forms, whether submitted to an employment agency or a potential employer;
C. correspondence between you, your representatives or agents, and potential employers;
D. contracts of employment;
E. offers of employment;
F. rejection of applications for employment;
G. income tax returns for the year of your termination and for each year thereafter, including federal, state and local returns;
H. W-2 forms received by you for the year of your termination and for each year thereafter;
I. unemployment insurance applications and benefit receipt stubs;
J. Social Security applications and benefit receipt stubs;
K. Workers' Compensation applications and benefit receipt stubs; and
L. all other documents concerning your efforts to secure, or your receipt of, income, whether taxable or nontaxable.
The plaintiff provided information on his efforts to obtain employment and he provided information on his inability to obtain employment during the time of his surgery and recovery therefrom, in compliance with the requests of interrogatory number 50.
51. To the extent, if any, the plaintiff seeks damages for mental anguish or emotional distress, produce authorizations for records from treating physicians, psychologists, hospitals or any other professionals consulted by plaintiff.
Since the plaintiff made no claim for mental anguish or emotional distress, there is no failure to comply as to interrogatory number 51.
Therefore, none of the information sought in these interrogatories related to the issue of the plaintiff's health. All the interrogatories (except number 51 — which was not claimed) related to the plaintiff's damages due to the wrongful termination. The court finds that the plaintiff properly answered the interrogatories and provided the requested discovery. Further, the court finds that the plaintiff provided information to the defendant as to the plaintiff's cancer surgery and that the defendant did not file any motions to compel any further discovery on that issue.
The only issue that the court must resolve is whether the plaintiff committed a fraud upon the court and/or committed perjury, if the answer after a hearing is yes, then the defendant may be entitled to a new trial if the outcome of the trial would have been different, but for that fraud or perjury and if the question is answered that there was no fraud or perjury, then the verdict would stand in accordance with the rulings on the May 27, 2008 motions. Then the court would address the plaintiff's motions for punitive damages, attorneys fees and the like.