Opinion
FSTCV126015703S
03-19-2018
Jeremiah VIZZO v. FAIRFIELD BEDFORD, LLC
UNPUBLISHED OPINION
POVODATOR, J.
Nature of the Proceeding
This is a premises liability case, in which the plaintiff claims to have been injured as a result of the defendant’s failure to clear snow from a common area walkway. The case is somewhat less " typical" to the extent that the plaintiff claims to have sustained a mild traumatic brain injury as a result of that fall. The case approaches categorization as " unique" insofar as the plaintiff, who had a history of Tourette’s syndrome (and associated co-morbidities), claims that his condition was substantially exacerbated from a claimed almost-dormant status, as a result of this fall. The defendant contested liability as well as virtually all aspects of the claims for damages.
After a trial that lasted approximately 6 weeks, the jury returned a verdict for the plaintiff, finding him to have been 15% comparatively negligent, awarding the plaintiff $51,926.95 in past economic damages, $38,000 in past noneconomic damages, for a net of $76,437.91 after adjustment for comparative negligence.
The plaintiff has moved to have the verdict set aside, or in the alternative for additur. The defendant has objected to the motion. The court entertained argument on the motion on November 27, 2017.
In his motion to set aside the verdict, the plaintiff identifies both substantive and procedural deficiencies that he claims warrant corrective action at this time. The procedural claims, in turn, can be broken up into two relatively distinct if rough categories relating to the events of September 13, 2017, when the verdict was accepted- mechanical (events/conduct) and the merits of procedural claims.
Legal Standards
The legal standards for setting aside a verdict and/or ordering additur were articulated in a recent case (a decision released after the parties argued their respective positions with respect to the current motion). In Cusano v. Lajoie, 178 Conn.App. 605, 610-11, 176 A.3d 1228, 1232 (2017), after characterizing additur as an extraordinary form of relief, the court described the applicable standards for setting aside a verdict (as an alternative to accepting an additur):
Furthermore, the court abused its discretion in ordering the additur because there existed conflicting evidence and credibility issues concerning the extent, if any, of the plaintiff’s pain and suffering. A court must view the evidence in the light most favorable to sustaining the jury’s verdict. Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury ... the court’s action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined. Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand ... Thus, the court should not assume that the jury made a mistake, but should suppose that the jury did exactly what it intended to do." (Internal quotation marks and citations, omitted.) 178 Conn.App. 611-12.
Discussion
1. The Mechanics of Accepting the Verdict
In somewhat distilled form, the essential events/conduct that form the basis of what the court is characterizing as mechanical objections, can be summarized as follows.
After the jury reported having reached a verdict and after the jury returned to the courtroom, the court briefly reviewed the verdict and interrogatory forms. The clerk called the role of jurors and then read the interrogatories and plaintiff’s verdict form. The court asked the parties if they would waive the second reading of the interrogatories, and counsel for the plaintiff asked for an opportunity to review the document itself. After agreeing to waive the reading of the interrogatories a second time, and after the clerk had read the jury verdict a second time, the court asked counsel in an open-ended fashion as to whether there was anything further they wished to say. (The court had in mind of the possibility that a party might wish to have the jury polled, but did not limit the inquiry in any such fashion.) Counsel for the plaintiff indicated that he wished to address the court in the absence of the jury without any specificity as to subject matter or timing. In particular, there was no mention of a need to address the court prior to the jury being discharged. (Based on the court’s review of available records, it appears that this request was made at approximately 4:57 P.M.) The court then proceeded to discharge the jury.
According to the transcript, the precise words used were " We would like to address something out of the presence of the jury, Your Honor."
After the jury had been discharged, counsel indicated that there was a problem with the interrogatories such that the jury needed to be reassembled, and given the hour and fact that the jury had been discharged, suggesting it be done the next morning. As recited by the plaintiff in his motion, the court indicated that it would not attempt to reassemble the jury and that recourse should be pursued via an appropriate post-verdict motion.
During argument on the motion, the court believes it alluded to the principle that once the jury has been discharged and disperses, the court cannot reassemble the jury. The court believes that it had in mind cases such as State v. Colon, 272 Conn. 106, 282-91, 864 A.2d 666 (2004).
The court recognizes that in hindsight, perhaps the court should have understood that the plaintiff wished to address the court prior to the jury being discharged. The plaintiff did not state his request to address the court in that fashion, and while counsel may have felt it would be improper to interrupt the court in the course of discharging the jury, nothing was said until after the jury had left the room about any sense of immediacy or about the need to have the jury reconsider its interrogatory responses. In other words, the plaintiff made no mention of the need to address the court prior to discharge of the jury before the jury was discharged, made no mention during the process of discharging the jury, and made no mention as the jury literally was exiting the courtroom.
As will be discussed more fully in the next section, the court did not perceive there to be an obvious problem with the responses to the interrogatories, of a nature that should/would have made it obvious to the court that the jury would need to reconsider its answers (and the court still is of that opinion, as discussed below). The plaintiff has cited Rendahl v. Peluso, 173 Conn.App. 66 (2017), and the court has firsthand knowledge of the problem/problems in that case, problems that are not at all comparable (in terms of substance or obviousness).
The court appreciates counsel’s presumed concern about not appearing to interrupt the court while addressing the jury. The court, however, cannot be put in a position of having to guess at the intended purpose of counsel addressing the court in the absence of the jury, upon peril of being charged with committing reversible error (or otherwise vitiating the validity of a verdict).
While anecdotes are no substitute for legal analysis, the court notes that at the conclusion of a case tried to a jury in January, counsel for the non-prevailing parties asked the court, after the jury had been excused/discharged, whether transcripts are necessary (would be necessary) in connection with anticipated post-verdict motions.
The court fully appreciates the problems associated with near-5 o’clock verdicts, and routinely advises counsel, on the first day of jury deliberations, that the court’s practice is to bring the jury in at 4:35 P.M. and tell them that they will have to return the next day. That is intended to minimize hurried verdicts and/or inadequate time to consider sending the jury back for further consideration (although as noted by counsel, they could come back the next day). That also allows for the occasional response from the jury that they are just finishing up and only need a couple of minutes to return a verdict- still leaving presumptively adequate time for accepting the verdict.
In this case, the court did advise counsel of that practice, and did attempt to assemble all participants at approximately 4:35 (or a few minutes thereafter). When the jury was informed that they were to return the courtroom, they reported to the clerk that they were finishing up their work and that it would take only a few minutes, and the court kept everybody in the courtroom to await that promised result.
The plaintiff has suggested some reasons why the court might have been especially rushed in the process of taking the verdict and discharging the jury. The court does not recall whether the parties or the jury were so advised, but the court is aware that the parking garage serving the courthouse closes at 5:30 P.M., presenting something of a hard deadline for getting everyone out of the courthouse. The practice of marshals checking every courtroom, around 5 o’clock, as part of their last security sweep of the day, is and was not perceived as of any particular concern.
The court’s recollection is that during argument on the motion, counsel suggested that the court might have been impatient insofar as the undersigned might have been trying to catch a nominal 5 o’clock van from the courthouse to the train station. The court did not have a calendar or other records available at the time of argument, and therefore could not respond in any detail with any level of assurance (other than knowledge that it is/was extremely rare for the undersigned not to take the van at a later time). Based on a subsequent review of available records, the court can state with assurance that that day, the undersigned did not commute by train, such that the van schedule could not have been an issue.
Accordingly, the court does not believe that the mechanics of the acceptance of the verdict and counsel’s comments thereafter, including the issues of timing, warrant any serious consideration of setting aside the verdict. The court attempted to take steps to minimize the likelihood of a prejudicially-late verdict, did not act in undue haste due to personal considerations, and was not alerted in sufficiently-specific terms of the need to hear from counsel prior to discharging the jury. The court cannot conclude that the court’s course of action, in itself, was prejudicial or otherwise warrants vacating the verdict.
2. Substance of the Claimed Improper Verdict/Interrogatory Responses
The claim of the plaintiff is that the court should not have accepted the jury’s verdict, in turn based on the jury’s answers to interrogatories, reflecting acceptance of some bills but not others. The principal claim in this regard appears to focus on the award of damages incorporating all expenses billed by Stamford Hospital, but disallowance of almost all other medical expenses, especially those relating to providers who provided some or all of their services at Stamford Hospital. The plaintiff contends that there is an inherent and fundamental flaw with accepting interrogatories allowing and disallowing medical expenses in such a manner, claimed to be patently inconsistent (and according to this motion, fatally so).
Although the ultimate consequences may be indistinguishable, the court believes there to be a major distinction between a claim that the court should not have accepted the interrogatories, and a claim that the flaw is sufficiently significant/material as to warrant setting aside the verdict but without suggesting the level of immediate scrutiny contended by the plaintiff.
This case does not fit into any of the many categories of more-typical problems with jury verdicts and interrogatories. This is not a case in which a document was not signed. This is not a case in which the verdict as reported on the verdict form does not correspond to the information set forth in the interrogatories. There is no claimed mathematical error. This is not a situation in which essential questions in the interrogatories were not answered. This scenario does not involve a facially-apparent error in calculation or transfer of information from one response to another (or the verdict form itself). There is no claim that the interrogatory form was not completed in a manner that was consistent with the instructions given.
Even when there is a facial inconsistency between interrogatory responses, the nature of the inconsistency determines whether it is (or might be) fatal. Thus, if a jury awards economic damages in a personal injury action but no non-economic damages, it is permissive (and perhaps advisable) for the court to ask the jury to reconsider its answers, but it is not compulsory; see, e.g., Monti v. Wenkert, 287 Conn. 101, 117-19 (2008) in turn relying on Wichers v. Hatch, 252 Conn. 174 (2000).
As will be discussed in more detail below, there is nothing facially and fatally inconsistent between an award of hospital bills as economic damages and a verdict for the plaintiff (with the hospital bills as the principal economic damages awarded). The claimed problems or inconsistency are at a latent level- one has to analyze the evidence and claims in order to perceive any apparent inconsistency.
The point of breaking the procedural issue into two components is that even if the court erred in the first regard (the mechanics of what happened on 9/13/17), there would have been no obvious or apparent problem that would have required an immediate remedy (rather than a post-verdict motion). The claimed impropriety requires a level of analysis of the evidence that is inconsistent with existing jurisprudence relating to the court’s obligations or even options with respect to reviewing interrogatory responses and the resulting verdict. In the context of a judge reviewing interrogatories and verdict forms prior to having them read into the record by the clerk, the plaintiff seeks a mandatory evaluation of the interrelationship(s) between the various elements of claimed economic damages to determine whether there is a consistent theme- notwithstanding the presumption that the jury acted reasonably in making individual determinations of elements of damages.
In this case, the attorney for the plaintiff- unsurprisingly, the person most familiar with the details of the various constituent economic damage claims- identified what was perceived to be an inconsistency. Assuming that the court had intuited that counsel wanted to address the court before the jury was discharged, and assuming that counsel had engaged in an explanation of why he thought there was a sufficiently-material inconsistency requiring that the matter be resubmitted to the jury for further consideration, opposing counsel necessarily would seem to have a right to an opportunity to review the details of the bills underlying this fully-allowed claim, in order to present a counter-argument. In effect, this would open up the process to what amounts to an adversarial proceeding as to whether the court should or should not accept the interrogatories and verdict as initially propounded. The problem would be exponentially more complicated if there were two or three (or more) providers whose bills were allowed in whole or in part, while others were wholly disallowed- trying to fashion a rationale for such component determinations (and the plaintiff is claiming that there are inconsistencies, if at a lower level of magnitude and prominence, relating to other bills).
From a more technical perspective, this is not the kind of " problem" that has been identified as properly addressed as part of the procedure for accepting a verdict.
As a starting point of our analysis, it does not appear to this court that the jury’s verdict was defective as a matter of form. We note that if a verdict is defective in form alone, rather than as a matter of law, the parties should have objected at a time when the mistake could have been corrected. A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear ... A verdict will be deemed intelligible if it clearly manifests the intent of the jury.
There is no claim regarding the propriety of the interrogatories or the verdict forms provided to the jury. In accordance with the court’s instructions, the jury fully completed the interrogatories and verdict forms with which it was provided. Nothing on the face of the completed interrogatories or verdict forms suggests that the jury did not perform its role, insofar as it related to reporting its verdict, properly. Consistent with its completed interrogatories, the jury completed the plaintiff’s verdict form, awarding $2,760,207.90 in damages. Thus, the verdict forms returned by the jury were complete, consistent, and intelligible. The verdict appeared to manifest the will of the jury." (Internal quotation marks, footnote and citations, omitted.) R.I. Pools, Inc. v. Paramount Concrete, Inc., 149 Conn.App. 839, 854-55, 89 A.3d 993, 1005-07 (2014).(The court then proceeded to address claimed improprieties in the verdict and the improper methodology that had been used.)
Under this standard, the proper remedy, if any, is via post-verdict motion to set aside the verdict, not a claim of error in not having directed the jury to reconsider its determinations. The results were intelligible- the jury allocated liability, including a modest level of comparative negligence; the jury awarded economic and non-economic damages, and on at least of facial level, determined which aspects of the claims of economic damages were recoverable (and in at least some instances, allowed only portions of the claimed economic damages). The jury further addressed future economic and noneconomic damages, finding them not to have been proved. On this level, " the verdict forms returned by the jury were complete, consistent, and intelligible. The verdict appeared to manifest the will of the jury."
The plaintiff has cited and relied upon Rendahl, supra, for the proposition that the court should have directed the jury to reconsider its determinations and resume deliberations. In that case, the court identified standards that the verdict be intelligible, and at least on a facial basis, be legally consistent. (" The verdict rendered, although intelligible, clearly could not have supported a judgment for the defendants in view of its patent inconsistency as a matter of law." ) The detailed analysis set forth in the motion, extending over pages of that motion, presents an issue that may warrant close scrutiny, but not in the context of a review of the interrogatory and verdict forms as a preliminary step in the process of the jury’s delivery of its verdict. The plaintiff has not identified any authority for the appropriateness of such a level of scrutiny in the process of accepting a verdict, much less a mandate that it be undertaken.
In Rendahl, the interrogatory responses as initially answered were so unintelligible that the court had been mistaken in its initial attempts to comprehend the nature of the problem. Certain categories of damages were left blank and the others had " 0." Initially, the court had assumed that the " 0" responses were related to aspects of the plaintiff’s claims for which liability had been found, with non-liability claims being left blank. It later became apparent that the " 0" responses corresponded to claims for which no liability had been found, with the blanks relating to claims for which (preliminarily) liability had been found.
This also is consistent with (if not mandated by) Practice Book § 16-31, cited by the defendant in its objection. The rule provides, in straightforward fashion, that, [s]ubject to the provisions of Section 16-17, the judicial authority shall, if the verdict is in order and is technically correct, accept it without comment." The interrogatories and verdict appeared to be " in order and ... technically correct," as described above, such that there did not appear to be a basis to direct the jury to deliberate further (as authorized by Practice Book § 16-17). The court thereupon proceeded to " accept it without comment."
To be clear, the plaintiff has cited numerous cases, but none for the proposition advanced here. Thus, in Cruz v. Drezek, 175 Conn. 230, 397 A.2d 1335 (1978), it was found to have been proper for the court to have directed the jury to reconsider its verdict, but that is not the same as a requirement that it have done so- and in that case, the court was able to articulate a basis for the action it took (perception that the verdict seemed high).
In Labatt v. Grunewald, 182 Conn. 236, 241-42, 438 A.2d 85 (1980), the issue was the persistent confusion of the jury, as clearly evidenced by their responses in written and oral form, justifying a conclusion that the court should have set aside the verdict (e.g., after being instructed on the rules for comparative negligence, finding for the defendant based on the parties having been " equally responsible" ). There is no comparable level of patent confusion here.
None of these cases leads to the conclusion suggested by the plaintiff, that " the Court should have allowed the Plaintiff the opportunity place his concerns regarding the inconsistent nature of the verdict on the record." The cases suggest that the court may have had authority to do so if a problem had been apparent, and the cases indicate that a motion to set aside the verdict is an appropriate remedy for an illegal verdict/result, but not that the court was obligated to engage in the detailed analysis suggested by the plaintiff, prior to discharge of the jury. The plaintiff’s rights have been preserved; he retained the ability to present the issues, as he is doing, via a motion to set aside the verdict.
Accordingly, the court does not believe that the failure to address the claimed inconsistencies identified by the plaintiff, prior to formal acceptance of the verdict and discharge of the jury, was erroneous to the point of requiring the court to set aside the verdict.
The court must note that the plaintiff did not suggest a need to address the court until after the verdict had been read twice and ordered recorded, with the court thus having concluded the process for accepting the verdict. There is no explanation as to why no attempt was made to raise the issue before the second reading of the verdict and the accompanying waiver of the second reading of the interrogatory responses.
3. The Substantive Merits
The framework for an evaluation of the merits of the plaintiff’s claim is relatively straightforward, as it is set forth in the jury interrogatory responses. The plaintiff claimed economic damages of a medical nature that totaled $313,910.21, from approximately 27 different providers. The jury allowed $51,926.95 in medical economic damages, from six providers. The focus of the argument of the plaintiff is that the full bill from Stanford Hospital ($45,385.27) was allowed as one of the elements of economic damages, but no economic damages were awarded with respect to certain physicians who had provided services at the hospital in connection with hospital charges awarded as components of economic damages. Of the six medical care providers whose bills were allowed, in whole or in part, as economic damages, the jury allowed as economic damages the full billed amounts from four of those providers (including the hospital). As to a fifth provider, a physical therapy service provider, $13,147.76 was the amount claimed; the jury allowed $2,790. The sixth provider was CVS Pharmacy; of the $806.72 claimed as economic damages, the jury allowed $2.68.
It is not clear whether the defendant is arguing that this constituted a form of over-compensation of the plaintiff for his economic damages. In its objection, the defendant notes claimed discrepancies between some of the figures recited in the interrogatory table of bills as compared to the actual bills in evidence. The court had obtained the figures from counsel (soliciting the information), and no objection had been raised by the defendant to the use of the figures submitted by the plaintiff. (In addition to the final interrogatory form, the parties had been provided with earlier draft versions of the interrogatories, and at least one prior version had contained the same table.)
The plaintiff’s position is that the jury could not rationally have awarded the full bill from Stamford Hospital but not award anything for certain providers who referred the plaintiff for such services (or may have provided those or related services) at the hospital. The plaintiff also takes exception to the jury having allowed physical therapy to the extent of $2,790, but rejecting more than $10,000 of other similar claims from the same provider. Is there a need to harmonize the fact that the jury allowed the full bill for a chiropractor whose services likely were fairly similar to that provided by the physical therapy organization? It may well be that a calendar is all that is necessary to harmonize these claims- the jury may have cut off further physical therapy services beyond some date - but is that to be a necessary exercise in determining the validity of a jury verdict or of a component interrogatory response? Likewise, does the court need to determine which medication from CVS was $2.68, and try to harmonize allowance of that near-trivial amount with the rejection of more than $800 in other medication expenses?
In Gois v. Asaro, J.D. Stamford/Norwalk at Stamford, FSTCV 095011952S, (affirmed, 150 Conn.App. 442, 91 A.3d 513) the court had submitted interrogatories including a chronological listing of all bills, and the jury awarded economic damages based on almost all bills incurred during the first approximate 11 months after the accident, and nothing thereafter (apparently adopting a cut-off date). See, # 189.00 (available as of this writing at http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=5342434 ).
The jury was instructed, without exception from the plaintiff, that it had discretion to determine whether or not any expense claimed as medical economic damages was reasonably medically necessary, and also had discretion to determine whether an amount was reasonable; the jury was told that it could reject a claimed expense if it did not determine that it was reasonable in amount as well as reasonably necessary (or proximately caused). Again, as part of the process of reviewing a claim of economic damages, will the court be required to analyze each reduced or rejected expense, to see if the rejected expense was somehow consistent with a pattern? In one particular case, the court noted that medical economic damages actually awarded fell into three categories, not immediately obvious- some bills were allowed in full, some bills were reduced by 50%, and some bills were reduced by 70%. if challenged, would it have been necessary to discern this pattern, and devise a rationale, for the verdict to stand?
See, # 163 in Brown v. Safeco Insurance Company of Illinois, J.D. Stamford/Norwalk at Stamford, FSTCV 126012717S (available as of this writing at http://civilinquirylud.ctelov/DocumentInquiry/Documentinquiry ... aspx?DocumentNo=7464064). (The court’s recollection is that the parties did not recognize this pattern until it was pointed out by the court, in connection with a discussion of collateral source and other adjustments.)
The plaintiff argues, in great detail, why his inability to discern a pattern or rationale for the elements of his claim for economic damages that were allowed by the jury is indicative of a failure of the jury to follow instructions. Counsel’s ability to discern a pattern is not the benchmark; rather; as noted in the footnote in the preceding paragraph, there may be a non-obvious pattern, or there may be some underlying basis not attributable to mathematical precision but nonetheless sufficiently rational/reasonable. Against a presumption of validity, the burden is on the plaintiff to demonstrate impropriety.
Is there a possible rational basis for the jury to have allowed all of the hospital billing as economic damages, without the associated bills from medical providers? Absent a context, the court might be perceived as guessing/speculating- although the existence of a possible rational basis, rather than some insight as to the actual rational basis, is all that is required. The context, however, adds at least some level of plausibility to hypothetical bases.
The necessary starting point is the observation that the jury seems to have rejected almost all claims other than the hospital (which also was the first place that the plaintiff received treatment, almost immediately after his fall) and providers focusing on addressing purely physical complaints, including a chiropractor and a portion of the physical therapy treatment he received. The jury appears to have avoided awarding damages clearly associated with claimed aggravation or re-triggering of his Tourette’s syndrome or associated co-morbidities. As something of a critical overlay, there was evidence that Dr. Richter, who quickly became the point person for treatment of the plaintiff (essentially, somewhat analogous to a primary provider with respect to post-accident treatment), was brought to the plaintiff’s attention by his attorney. There is nothing inherently improper with the fact that the plaintiff was referred to the doctor by counsel (is counsel to ignore a perceived need for a client to obtain appropriate medical treatment?), but the jury could have considered Dr. Richter tainted by the referral, in turn having a similar effect on all of the subsequent referrals (especially if not related to purely physical complaints). In the table presented at pages 10-11 of the plaintiff’s motion, Dr. Richter is identified as a prescribing/referring physician in all but one of the entries- if the jury deemed Dr. Richter tainted, as well as any physician to whom he referred the plaintiff (again, other than physical therapy-type providers), then the distinction between hospital services (allowed as damages) and prescribers (not allowed as damages) becomes more understandable.
In that context, the plaintiff effectively may be arguing that the jury allowed " too much" of the hospital’s bills as damages, given the rejection of most of his subsequent and especially non-physical-symptoms care and inferred rejection of Dr. Richter. That had been the chief battleground as to damages- the extent to which depression, increased manifestation of Tourette’s symptoms, etc., were causally related to the accident giving rise to this proceeding. Necessarily related is the question of allocating between treatment reasonably needed as a result of the accident, and treatment that was not- with that latter category potentially comprised of pre-existing but not causally related conditions and litigation-oriented care. This was hotly contested, and the plaintiff seems to be seeking a level of precision from the jury that does not appear to be required (by any identified authorities).
As discussed earlier in a somewhat different context, the facial disconnect between awarding economic damages generated by an injury and the refusal to award non-economic damages for that same injury, no longer is deemed to constitute an inherent or automatic- and therefore per se fatal- defect in a verdict. That is an under-inclusion situation, where a plaintiff might well (and often does) complain about under-compensation as a matter of law. Here, however, the situation might be more accurately characterized as over-inclusion- how was the plaintiff harmed, when the jury may have provided " too much" of the hospital bill?
To respond to the anticipated argument that the jury, if asked to reconsider, might well have added some or all of the omitted bills from care providers, rather than treating the award as a matter of over-inclusion, there are at least two responses. First, on an Occam’s Razor basis, it is far simpler to interpret the claimed problem as a failure to parse the Stamford Hospital bill with precision, than it is to assume that the jury mistakenly omitted (erroneously) a large number of physician bills (which, in turn, might also have had to have been parsed), with a cascading net of interrelated providers possibly needing reconsideration as well. There also is the interpretation, suggested above, that there was a precise intent not to award damages related to treatment by Dr. Richter and other physicians to whom the plaintiff was referred by Dr. Richter. (The plaintiff himself seems to recognize that the absence of any award of damages based on bills from Dr. Richter is somewhat conspicuous.)
The plaintiff also addresses the allowance as economic damages the full amount charged by the Greenwich Medical Group. Aside from the lack of any indicated precedent for such near-microscopic analysis of each visit to each provider, the answer may well be the same as already identified. The initial visit seems to have been before any involvement of Dr. Richter, and to the extent that the jury may have equated Dr. Richter with litigation rather than needed medical treatment, the absence of any involvement, and especially the start of involvement of Greenwich Medical Group before Dr. Richter came into the picture, may have been sufficient to justify- in the jury’s collective wisdom- allowance of this modest bill ($660 for three visits).
The plaintiff implicitly is arguing that the jury was required to engage in a rigid branching analysis of bills, in awarding economic damages: If " A" is awarded, then to the extent that there is a linkage to " B," " B" or at least part of " B" must be awarded. The plaintiff did not request a charge suggesting that type of rigorous branching analysis was required, nor is there authority for such an instruction. To the contrary, the court does not recall any objection to the generally standard instructions that the jury could accept or reduce or reject any claimed element of economic damages, based on considerations of causal relationship or perceived reasonableness or insufficiency of proof, with the jury as the sole arbiter.
The court believes it helpful to use the analogy of a hierarchical outline, with major topics (capital Roman numerals), subtopics of major import (capital letters), sub-issues (Arabic numerals), and so forth. It is clear that at the upper end of the hierarchy, there must be consistency- in a negligence case, there must be duty and breach and proximate cause and injuries. Within the category of injuries, the jury rarely is asked to specify the injuries themselves (except, perhaps, where different injuries may have arisen from separate incidents, such that differing awards might be appropriate), but more typically is asked to award economic and non-economic damages, sometimes with the sub-categories of past and future. At this level, there is the potential for facial inconsistencies- economic but not non-economic (already discussed), and a finding of liability but no damages at all. (There also is the possibility (in theory) of future economic or non-economic but without corresponding damages prior to trial.) The plaintiff has cited to no appellate authority suggesting that there is a need for bill-by-bill analysis of consistency, for a verdict to stand (based on interrogatories). And, even if that were the case, the possibility that the jury perceived anything related to Dr. Richter as tainted- thereby explaining not only the refusal to award any damages based on his treatment but also damages based on bills from other physicians who appear to have treated the plaintiff due to referrals or other relationships to him. With that as a threshold premise, the jury then selected which bills seemed justified, based on the nature of the physical injury that the plaintiff was perceived to have sustained.
That was the situation in Rendahl - the defendant had been sued for negligence and breach of fiduciary duty with respect to handling an estate, and different claims of errors/misconduct in the handling of the estate would likely have resulted in separate/different injuries. (The interrogatories that were the focus of the appeal related to that separate treatment.) Typically in personal injury actions, however, a single event is the claimed cause of all injuries, such that particularized allocation of injury to incident is not needed.
From a practical perspective, how far would a supplemental instruction have to go? Presumably, a supplemental instruction would have to contain at least something along the lines of the following:
In awarding economic damages, you have included the full bill from Stanford Hospital, in the amount of $45,385.27. Some of those charges were associated with services rendered by physicians for whom you have allowed zero dollars as economic damages, or were for services or treatment at the hospital as referred by physicians for whom you have allowed zero dollars as economic damages. There can be perceived to be an inconsistency between allowing the full hospital bill and not allowing related physician charges. Therefore, I am instructing you that you should return to the deliberation room, and consider whether you wish to change the interrogatory responses, in consideration of these observations. You have at least three options: you can decline to make any changes, retaining the results as have been submitted; or, you can reduce the economic damages associated with the Stamford Hospital bill; or, you can award economic damages associated with the physicians related to the care and/or tests provided at Stamford Hospital. There actually is a fourth option- you are not precluded from revisiting any of the responses to other interrogatories, if you so choose.(To the extent that the plaintiff has identified claimed inconsistencies involving other providers, e.g., Amfit, would the court have to include specific references to those bills as well?)
As noted earlier, only a trivial portion of the bills from CVS was allowed (less than 1%)- would the court have been required to instruct the jury to reconsider that element of economic damages, also?
From an alternate perspective, other than possibly for purposes of a collateral source adjustment, the breakdown of economic damages by provider is not essential to the verdict. It assists the jury in considering each of the claimed medically-based economic damages (again, about 27) essentially as a checklist, and but for the interrogatories, an aggregate award of $51,926.95 would be unremarkable.
Although not even close to dispositive, the court notes that the plaintiff argued that the manner in which the bills were presented in the interrogatories did not have sufficient detail to be suitable for use in determining a collateral source adjustment. The plaintiff did not object to the presentation in this manner, but more to the point, if the manner in which the bills were presented served no purpose, the manner of presentation should not be subject to use as a weapon in the event of an unfavorable verdict. The plaintiff could have requested a more finely stated listing of bills, such as used in Gois, supra, with an entry for each day’s services by each provider, sorted either by provider or by date.
Indeed, does it end at a per-day level of granularity? Especially at a hospital- either for an E.R. visit or in-patient stay- each activity and each medication and each test is likely to be listed separately on a bill. The court refused to allow the defendant to utilize an expert who was intended to opine on the plaintiff’s probable alcohol level at the time of the fall, based on a nurse reporting a smell of alcohol and a negative blood test for alcohol- should the defendant have been permitted to argue that the cost for the alcohol component of the blood tests should not be awarded as an element of economic damages, given the court’s rulings on the issue (which were unknown to the jury)?
The court returns to the central question- whether the jury reasonably could have reached the result it reached. Absent consideration of the hospital bill, the plaintiff presents no argument as to why the jury would have had to award economic damages based on any of the charges it chose to reject. The rejection(s) could have been based on its perceived determination that depression, re-triggered Tourette’s symptoms, and everything else other than the conditions for which damages were awarded, were not sufficiently proved to have been caused by the accident. The jury could have concluded that Dr. Richter was " tainted" as a result of the plaintiff having been referred to him by counsel very shortly after the accident. But if that were possibly to have been the case (especially, rejection of the Tourette’s and psychological claims), the plaintiff is claiming that, for consistency, only a portion of the Stamford Hospital bill should have been awarded as economic damages, and the plaintiff was not harmed by any over-inclusion that may have occurred.
In the alternative, the plaintiff seeks additur, citing, inter alia, Wichers, supra, and Ng v. Wal-Mart Stores, 122 Conn.App. 533, 536 (2010). In the latter case, the court again identified the applicable standards for additur:
We also review a trial court’s decision on a motion for additur under an abuse of discretion standard. [I]t is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is ... palpably against the evidence ... The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption ... [A] court’s decision to set aside a verdict and to order an additur ... is entitled to great weight and every reasonable presumption should be given in favor of its correctness ... In determining whether the court abused its discretion, therefore, we decide only whether, on the evidence presented, the court reasonably could have decided that the jury did not fairly reach the verdict it did. To do so, we must examine the evidential basis of the verdict itself ... (Internal quotation marks and citation, omitted.) 122 Conn.App. 536.
The court notes that both of these cited cases arose in the context of the previously-described scenario of a jury awarding economic damages but choosing not to award non-economic damages (in a personal injury context).
Further, the plaintiff’s brief excerpted quote from Wichers should be put into context (in addition to the already noted fact that it was a zero non-economic damages case).
Finally, the most notable limitation on the trial court’s authority to act pursuant to § 52-216a derives from a litigant’s constitutional right to have issues of fact determined by a jury. The right to a jury trial is fundamental in our judicial system, and this court has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court. Because in setting aside the verdict, the trial court deprives the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, our role generally is to examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion. Because the Johnson per se rule undermines the principle that litigants have a constitutional right to have issues of fact, including damages, determined by a jury, the need to cling to the per se rule is even more attenuated.
Therefore, we conclude that the per se rule from Johnson no longer remains useful or viable, and we expressly disavow it. Rather than decide that an award of only economic damages is inadequate as a matter of law, the jury’s decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it. Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue . That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do. (Internal quotation marks, footnote and citations, omitted; underlined language is the excerpt as recited by the plaintiff.) 252 Conn. 188-89.
The court believes that the sentence following the language quoted by the plaintiff is critical, and is a theme running through this decision: " That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do." In order to make sure the point was not missed, it was emphasized in footnote 7, the footnote omitted from the passage quoted above: " To the extent that Johnson presumed the former, it is inconsistent with our well established jurisprudence that evidence should be construed to support a jury’s verdict."
In his argument in this regard, the plaintiff suggests at least one additional basis for distinctions that may have been made by the jury.
In this regard, the inclusion by the jury of over five years of diagnostic testing and procedures related to the Plaintiff’s cervical injury, but omission of compensation for his physicians, the fusion surgery that relieved the radiculopathy, and the greater than 50% probability that the remainder of his spine will require fusion compels the conclusion that the omission of compensation for treating physicians, including the pain management specialist, the surgeon, the Hospital for Special Surgery and $38,000 in non-economic damages through the trial, shocks the conscience.
The reference to " inclusion by the jury of over five years of diagnostic testing and procedures related to the Plaintiff’s cervical injury" is consistent with the potential basis for the jury’s decision as discussed above (with the addition of disallowance of Dr. Richter-related charges). Diagnostic procedures/testing are often as much an exercise in ruling out possible causes of problems as in identifying the actual cause of problems. The jury clearly allowed some expenses for treatment, seemingly focusing on orthopedic-type issues (physical therapy). To the extent that the plaintiff attempts to draw a distinction between arguably-broader diagnostic allowances and arguably-more-limited treatment allowances, the nature of diagnostic procedures itself would be justification. However, if the jury accepted the defense position that Tourette’s-related symptoms and treatment were unrelated to the accident, then the jury’s failure to award damages reflecting " the greater than 50% probability that the remainder of his spine will require fusion ... [and] the omission of compensation for treating physicians, including the pain management specialist, the surgeon, the Hospital for Special Surgery" is consistent with an overarching view of the nature of injuries sustained by the plaintiff.
Accordingly, for the same reason that the court does not find a basis for setting aside the verdict, the court cannot order additur.
Conclusion
The court primarily has focused on the plaintiff’s arguments and his cited authorities. The defendant has cited numerous cases consistent with the court’s conclusion that there was no clear basis, and certainly no clear obligation, for the court to have directed the jury to reconsider its verdict and interrogatory responses, even putting aside the issue of timing. The defendant also has cited numerous cases relating to the standards for setting aside a verdict, and again, those cases are consistent with the results set forth above. The court’s actions in this case do not cross any lines established by any appellate authority cited by either of the parties. Rather, consistent with cases such as Cusano, the court must be highly deferential to the expressed intentions of the jury, charged with deciding the facts and ultimately the amount of damages that the plaintiff is entitled to recover.
In a procedural/technical sense, the parties have cited cases where a trial court was found to have acted properly when it directed a jury to reconsider interrogatories and/or the verdict. The parties have cited cases where a trial court was determined to have acted correctly or incorrectly in setting aside or not setting aside a verdict, with the standards as identified by the parties. Given the ultimate level of review with respect to setting aside a verdict, it is not surprising that the parties have not cited any appellate authority claiming there to have been reversible error in failing to direct a jury to resume deliberations- if the problem were deemed so egregious that the jury should have been directed to reconsider its initial responses to interrogatories or initial verdict (and the failure to have done so constituting reversible error), then the persistence of that uncorrected problem would presumably mandate setting aside the verdict actually rendered. Thus, the lack of appellate authority for the contention that the court was required to direct the jury to reconsider appears to be unsurprising.
Plaintiff’s primary focus is on the perceived lack of rationality behind the award of the full hospital bill as economic damages, but not separate bills of related physicians, specifically identifying the referring doctors. Perhaps somewhat simplistically, the jury could have determined that charges by the hospital had a certain imprimatur of validity, untainted by litigation (and Dr. Richter), and therefore were worthy of allowance as recoverable damages. If that were the case, how would the plaintiff have been harmed by what then might appear to have been over-inclusion of the entire hospital bill as a component of economic damages? Additionally, the sharper distinction that may have been drawn by the jury, as between diagnostic procedures and treatment, is another axis on which the jury may have made decisions.
With respect to physical therapy, the plaintiff has not engaged in a detailed time-based analysis (or any other detailed analysis), and in the absence of any affirmative basis for finding impropriety, the court declines to presume any irregularity in allowing only some physical therapy bills as economic damages- the court cannot presume irregularity in the jury’s award of only a portion of those bills. (After identifying the portion of Amfit Physical Therapy bills that had been allowed as damages, the plaintiff’s discussion is conclusory: " There is no obviously rational basis for the inclusion of this particular amount of physical therapy out of the total bill of over $13,000.00 for the services provided by Amfit." )
A jury verdict is subject to challenge if a clearly improper method was used to arrive at a verdict. In R.I. Pools, the court concluded that the jury had used an improper method to reach its verdict, applying an averaging methodology and thereby ignoring its obligation to treat each claimant (and the associated claim of damages) separately. A quotient verdict likewise is improper, because it does not reflect the independent judgment and individualized agreement as to damages of each juror. There is nothing in this case suggesting that an improper method was used. The jury allowed all of certain claims, parts of others, and rejected the overwhelming majority of claims of economic damages (both as to number of providers of services and as to dollar value). That reflects individual attention to each claim for damages, implicitly rejecting the claim that aggravation of Tourette’s and related problems were causally related to this incident. The issue is not whether the plaintiff can discern a pattern or whether the court can discern a pattern or rationale- given the presumption of regularity of the deliberation process, the burden is on the party challenging the verdict to demonstrate some level of impropriety, warranting intrusion. The plaintiff is obviously disappointed in the result; the basis for the verdict may be unknown with any level of confidence, but there is no basis for finding it to have been irrational in an affirmative sense, and there is no basis for finding, again in an affirmative sense, anything improper that warrants setting aside the verdict.
The extent of damages sustained was contested. Particularly given the rejection of the overwhelming majority of the plaintiffs claimed economic damages and inferentially the Tourette’s-related claims, the verdict falls into a range that cannot be deemed inadequate, as a matter of law; no additur can be ordered.
The jury rejected economic damages claims based on bills from almost 80% of the providers, reflecting more than 80% of the total billing; the jury also rejected all claims of future damages, economic and non-economic. Other than the hospital bill, the majority of allowed expenses seem to have related directly or indirectly to physical therapy. An alternate view is even starker in demonstrating the extent to which the jury rejected the plaintiff’s claims relating to medical treatment. Excluding the Stamford Hospital bill which was allowed in its entirety as economic damages, the jury awarded less than 3% of the remaining bills as economic damages- $6,541.68 out of $268,524.94.
For all of these reasons, then, the motion is denied in all respects.