Superior Court of Connecticut, Judicial District of Waterbury
MEMORANDUM OF DECISION RE: RULING ON DEFENDANT'S
MOTION TO SET ASIDE VERDICT, MOTION FOR REMITTITUR AND MOTION
FOR COLLATERAL SOURCE REDUCTION AND PLAINTIFF'S BILL OF
L. HOLZBERG, J.
defendant moves to set aside the jury's verdict, or in
the alternative, for a remittitur. In this personal injury
action the jury returned a verdict in favor of the plaintiff,
awarding $ 3,478.55 in economic damages and $ 80,000 in
non-economic damages for a total verdict of $ 83,478.55.
MOTION TO SET ASIDE VERDICT
motion to set aside the verdict, the plaintiff points to a
number of evidentiary errors by the court. In reviewing the
defendant's claims, this court is guided by
Pietrorazio v. Santopietro, 185 Conn. 510, 514, 441
A.2d 163 (1981), and Prishwalko v. Bob Thomas Ford,
Inc., 33 Conn.App. 575, 578, 636 A.2d 1383 (1994). All
of the defendant's claims were properly and timely raised
at trial, but rejected by the court.
defendant first argues that the court improperly permitted
the plaintiff to present evidence and to state in closing
argument that the defendant failed to request an independent
medical examination. The defendant claims that by so arguing,
the plaintiff improperly shifted the burden of proof to the
defendant. As the court noted in denying the defendant's
motion in limine on this issue, the jury would be instructed
that the plaintiff bears the burden of proving by a
preponderance of the evidence each and every element of his
cause of action. The jury in fact was so instructed. That the
defendant could have, but did not exercise his right to
obtain an independent medical examination, is appropriate and
fair comment, especially in light of the defense claim that
the plaintiff's treating physician's opinion and
testimony should be rejected by the jury.
defendant next argues that the court erred by allowing the
police officer to testify that he gave the defendant a verbal
warning. The defendant contends that the court's ruling
permitted the officer to provide an opinion on the ultimate
issue in the case, a responsibility reserved for the jury.
The testimony of the officer was offered for and admitted on
the issue of the defendant's credibility, not on the
question of the defendant's responsibility for the
accident. As plaintiff pointed out in support of this offer,
the defendant on cross examination stated he did not remember
whether he receive such a warning, while in his deposition he
flatly denied receiving a warning. Based on that
inconsistency and the rule that a party's credibility is
always in issue, the court allowed the testimony. Tait &
LaPlante, Handbook of Connecticut Evidence Sec. 7.18.
Furthermore, as Professor Tait points out in his treatise,
" The rule that excludes opinions just because they
coincide with a jury issue has been universally criticized
and has been rejected by Fed.R.Evid. 704." Id.
at Sec. 7.17.2. See, also, Connecticut Code of Evidence Sec.
7-3 and commentary.
next argues that the court erred by allowing the testimony of
Dr. William Lewis whom the defendant claims was not timely
disclosed as an expert witness. While it is true that
plaintiff's formal disclosure was not timely, defendant
acknowledged that he had full knowledge that the plaintiff
intended to call Dr. Lewis as a witness. Furthermore, the
defendant specifically declined the court's invitation to
seek a continuance for the purpose of conducting a deposition
and was unable to identify the prejudice he suffered as a
result of the late disclosure. Under these circumstances, the
defendant's claim cannot be sustained. Kevin
Roche-John Dinkeloo and Associates v. New Haven, 205
Conn. 741, 749, 535 A.2d 1287 (1988).
the defendant argues that the court erred by refusing to
admit evidence that Dr. Steven Rosa, plaintiff's
chiropractor, is a convicted felon. Dr. Rosa did not testify
in person; instead his medical records were admitted pursuant
to General Statutes 52-174. The court concluded that the
medical records statute was designed to provide an efficient
and economical method for presenting expert testimony and
that such purpose was not consistent with the presentation of
impeachment evidence. Further, Dr. Rosa was not the principal
medical witness in this case. Instead Dr. Lewis testified
before the jury. His testimony was fully consistent with Dr.
Rosa's reports and corroborated Dr. Rosa's
conclusions. It is thus clear that even if Dr. Rosa's
opinion were to have been called into question by the
impeachment evidence, the jury nevertheless fully credited
the testimony and opinion of Dr. Lewis. Under these
circumstances the court concludes that even if the
impeachment evidence were improperly excluded, such ruling
was not harmful.
foregoing reasons, the defendant's motion to set aside
the verdict is denied.
MOTION FOR REMITTITUR
alternative, the defendant moves for a remittitur, arguing
that the jury's award of $ 80,000 in non-economic damages
is plainly excessive in the face of the plaintiff incurring $
3,478 in economic damages. The standard for evaluating
defendant's claim is well established. "The
plaintiff has a constitutional right to try to the jury the
cause of action alleged in his complaint. This includes the
right to have the jury, rather than the court, pass upon the
factual issue cf damages, when there is room for a reasonable
difference of opinion among fair-minded [persons] as to the
amount which should be awarded. The question of damages in
personal injury cases, especially in these times of changing
values, is always a difficult one. Assessment of damages is
peculiarly within the province of the jury and their
determination should be set aside only when the verdict is
plainly excessive and exorbitant. Proper compensation for
personal injuries cannot be computed by mathematical formula,
and the law furnishes no precise rule for their assessment.
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 were
influenced by partiality, prejudice, mistake or
corruption." Wochek v. Foley, 193 Conn. 582,
586, 477 A.2d 1015 (1984) (internal quotations and citations
court declines to disturb the jury's verdict. The jury
was presented with evidence, which it could reasonably
credit, that the plaintiff received permanent injuries to his
lumbar and cervical spine and that he has a life expectancy
of approximately 34 years. It also heard evidence concerning
the effect of these injuries on his daily activities, both at
work and at home. That evidence must be considered in the
light most favorable to sustaining the verdict. While this
court might not have awarded $ 80, 000 in non-economic
damages, it does not sit as a seventh juror. Id.
Based on the credible evidence presented by both the
plaintiff, his wife and medical providers concerning the
scope and extent of his injuries, the jury's verdict does
not "shock the sense of justice."
MOTION FOR COLLATERAL SOURCE REDUCTION
parties agree that the defendant is entitled to a collateral
source reduction in the amount of $ 1940 pursuant to General
Statutes 52-225a. Accordingly, the plaintiff's verdict of
$ 83,478.55 ...