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Vajda v. Tusla

Supreme Court of Connecticut

April 10, 1990

Emery J. VAJDA
Anthony A. TUSLA, Jr., et al.

Argued Jan. 3, 1990.

Page 999

Lawrence L. Connelli, Hartford, for appellant (defendant, Diane M. Tusla).

Robert R. Sheldon, with whom, on the brief, was T. Paul Tremont, Bridgeport, for appellee (plaintiff).


[214 Conn. 524] ARTHUR H. HEALEY, Associate Justice.

The plaintiff, Emery J. Vajda, brought this action for damages resulting from injuries and losses he sustained when a motorcycle he was operating collided with an automobile operated by the defendant Diane M. Tusla (defendant). [1] The jury, through interrogatories, found that the plaintiff was 25 percent negligent and the defendant 75 percent negligent. It further found that the total amount of damages sustained by the plaintiff was $200,000 and it, therefore, rendered a verdict of $150,000 under the doctrine of comparative negligence.

The defendant thereafter filed a motion to set aside the verdict alleging a number of errors by the trial [214 Conn. 525] court. The trial court denied the motion on every ground advanced. This appeal followed. On appeal, however, the defendant has presented only one issue for our review. Her sole claim is that the trial court erred in failing to charge the jury as she orally requested with regard to comments made by the plaintiff's counsel during his argument when, referring to an anesthesiology bill, that had been admitted into evidence, which was for $311.50 for two hours of anesthesia, counsel suggested to the jury that relief from pain was worth $150 per hour. [2]

The defendant focuses on the following portion of the plaintiff's argument: "Nobody pays for pain. Now how do you measure what he should get because he has pain? You see the problem? It's a problem. It's difficult, difficult. The only thing you'll notice in this case, you'll notice when you go through the bills, that Jimmy has incurred One Thousand Eight Hundred Dollars ($1,800) for anesthesiology. And you'll see that what he's incurred is a hundred and fifty dollars ($150) an hour on one

Page 1000

bill to be relieved of pain. That's about the only time, I guess, if you think about it, that we sort of measure the value of pain and suffering, because I think all of us, whether it's going to the dentist or having an operation, or perhaps buying some sort of pain medication. But generally, when you look at those bills, that's about the only time that we sort of pay to be free from pain and suffering."

[214 Conn. 526] During the recess after the plaintiff's argument and prior to the defendant's argument, the defendant's counsel objected to the plaintiff's counsel "mentioning that a hundred and fifty dollars ($150.00) an hour is the only price, so far, that has been put on the relief of an hour's worth of pain, smacks of suggesting a figure and/or a formula which is precisely why the Connecticut Supreme Court ruled as it did last week on the cases [Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1989), and Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989),] that were appealed with regard to mentioning a money figure to the jury both as an opinion; and mentioning a money figure to the jury with regard to a formula ... but I would move that the Court, prior to my argument, issue a brief instruction to the jury that a figure suggested by Mr. Tremont is in no way indicative, and should not be considered by them as an appropriate amount or suggestion as to what an hour's worth of pain or suffering or whatever is worth." He continued: "And also, it's misleading because what's going on in a surgical procedure, where you're opening up a part of the body, and removing bone or removing scar tissue is not the same sort of thing that Mr. Vajda testified to here in the courtroom. And it's awfully misleading to the jury for them to have thrown out to them, during a closing instruction, a figure about what an hour's worth of pain is worth in the sort of context."

The plaintiff's counsel responded, arguing "I don't believe that the [Supreme Court] decision says that you cannot mention pain ... [and] suffering...." In further response to the defendant's argument that his comments equated $150 an hour to one hour's worth of pain, plaintiff's counsel continued stating that the fact is "[t]he stuff is in evidence, and there's a three hundred and eleven dollar ($311.00) bill for two hours of anesthesia." Maintaining that he did not think of it [214 Conn. 527] as a formula nor did he suggest a formula to the jury, he said that "I'm saying that this is one of the few times in our life that we actually pay to be free of pain." Stating that he had been careful in his argument to avoid including comments that suggested "any formula to [the jury] whatsoever, or any figure," he contended that no instruction was needed as the defendant claimed.

The defendant's counsel, in reply, stated that what the plaintiff's counsel "was trying to do was to subliminally inject into [the jury] what an hour's worth of pain is worth," and he repeated that this was why this court ruled in Carchidi and Pool as it did. In further attacking these comments of the plaintiff's counsel, he again argued that "an hour's worth of surgery is not the same thing" as one hour's worth of pain. To support further his claim that the plaintiff was "suggesting [to the jury] what they should do in the area of damages," he referred to the comment by the plaintiff during argument that, based upon the plaintiff's stipulated life expectancy of 45.7 years, [3] the jury would have "to compensate [the plaintiff] for forty-five-point-seven years for every minute and every hour for the rest of his life." [4]

Page 1001

[214 Conn. 528] The trial court indicated that it would take the matter under advisement and that if it did anything, it would be done during its final charge to the jury. The trial court did not give the jury any instructions until after the arguments were concluded. The defendant's counsel took no exception to the trial court's decision not to give an instruction at the time of the arguments.

At the outset of its final jury instructions, the trial court admonished the jury that "in deciding this case, you must only consider that information which was admitted as evidence in this courtroom." On the issue of damages as to physical and mental pain and suffering, the trial court charged, inter alia: "The rule of damages is that insofar as money can do it, the Plaintiff is to get fair, just and reasonable compensation for the injuries which he has suffered. It is for you, ladies and gentlemen, in the exercise of your best judgment, to say what is fair and just compensation. You have to apply sound common sense in reaching the amount of your verdict. There is no mathematical formula, no formula, other than by human experience; and the exercise of your best judgment of what is fair and just compensation.... You must not speculate or guess as to damages. You must bear in mind at all times that the burden is on the Plaintiff to prove that [it] was a proximate consequence or the result of the incident which caused the injuries; and to prove the reasonable amount of his damages." The trial court thereafter told the jury that the elements of damages could be separated into two major categories: the first from the date of injury on June 29, 1984, to the date of the trial, and the second, as to the future. As to the former, it told [214 Conn. 529] the jury that it could award a sum "which will reasonably compensate him for any past physical suffering" as well as damages "for mental suffering that he has experienced." After instructing the jury to consider the effects of the plaintiff's injuries "and the resulting pain that he has experienced; and the effect it has had on his daily activities," it said that "[a]s far as money can compensate him for this aspect of the case, you must award a fair, just, and reasonable sum." Immediately thereafter, it said: "Obviously, this is a difficult matter to determine. There are no objective guidelines by which you can measure the money equivalent of these elements of injury. The only real measuring stick, if it can be so described, is your collective enlightened judgment. In making your determination, you should consider all the relevant evidence; taking into consideration the extent and the duration of such pain and suffering. In this respect, you may consider the testimony of the Plaintiff, the Plaintiff's girlfriend, and the doctor. The amount you award for this aspect of the damages must be fair and reasonable."

Turning to damages for the future, the trial court said, inter alia: "As for the future, you must as best you can, compensate him for such results as are reasonably probable. Once this case is concluded, the Plaintiff cannot come back into Court and--in the future for additional damages against the Defendant for the incident in question. So any award to which he is entitled for the future, must be given to him now. Future damages are not a matter of speculation. It is not a matter of guesswork. You must be satisfied with a reasonable degree of certainty that the result which you are attempting to compensate him for is reasonably probable." The jury was also instructed that it "must determine for how long into the future [the plaintiff] will suffer these damages." Here, it referred to ...

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