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Stern v. McEwen

Superior Court of Connecticut, Judicial District of New London, New London

April 25, 2016

Kathleen Stern et al.
v.
Franklin McEwen dba Lyme Tavern et al Opinion No. 133485

          MEMORANDUM OF DECISION RE CHANGE AND CLARIFICATION OF JUDGMENT

          T. Bates, Judge

         On February 16, 2016, counsel for the defendants filed a motion to both change and clarify the judgment of the court in this matter. The court has reviewed the memorandum of the defendants, the response of the plaintiffs, and the reply of the defendants, and issues the following rulings.

         1. The defendants question the award and calculation of damages in the loss of consortium claims. First, the defendants note that the jury verdict form was silent as to the existence and calculation of the award. The jury verdict form was developed by counsel and approved by the court. It differentiated between the Dram Shop claims and the negligence claims, but it did not differentiate between the negligence claims-being loss of consortium, bystander emotional distress, and general negligence for each of the two plaintiffs. As a result, the findings of liability and damages on the negligence-related counts were in the nature of general verdicts, and the jury reported on its verdict form liability on the part of the defendants all of the negligence counts. The defendants point out that as to the loss of consortium counts 2 and 5, economic damages should not have been included in the awards, and based on the cases cited by the defendants, particularly Musorofiti v. Vicek, 65 Conn.App. 365, 370 n.4 (2001), the defendants' argument appears meritorious. The plaintiffs reply that this issue should have been raised before the verdict forms were approved, and that absent new facts or authorities arising after the jury verdict, refusal of the court to correct is not an abuse of discretion. See Weinstein v. Weinstein, 275 Conn. 671, 705 (2005). The court finds that it was error to include the economic damages in the loss of consortium awards and reduces both of them to the amount of the non-economic damages x .4 plus costs, being for Frederic Stern, $194, 087.53 x .4 = $77, 635.01 plus costs of $6, 456.81 = $84, 091.82 and for Kathleen Stern $582, 262.57 x .4 = $232, 905.02 plus costs of $25, 987.26 = $258, 892.28. Note that as to Frederick Stern, unlike the original damage award, there is no reduction for collateral sources because no economic damages are being awarded. The court notes that these awards are part of the negligence verdicts and will only be relevant if the other, higher negligence awards are set aside or reduced below the value of these awards.

         2. The defendants note that as presented In the Memorandum of Decision Re: Award of Damages and Costs, the award of damages under the Dram Shop Act claims could be interpreted as an addition to the award of damages under the negligence claims. That was not the intent of the parties or the court in fashioning the jury questionnaire or the judgment. The Dram Shop awards are to be subsumed within the larger negligence awards for each of the plaintiffs; they are not an addition to the negligence awards. The Dram Shop awards will only become operative when and if the negligence awards are, as a result of the appeal, set aside or reduced in value below the value of the Dram Shop awards.

         3. The defendants state that the jury verdict form did not indicate whether or not the jury had found liability for Frederick Lee Stern's claim for Bystander Emotional Distress and therefore question whether there was such a verdict. As pointed out above, the agreed upon verdict form, while differentiating between the Dram Shop and the negligence claims, did not call for the jury to make specific findings on the individual negligence counts. Consequently, as to the negligence counts, the verdict was a general one, and accordingly the jury found liability for Frederick Lee Stern's claims for Bystander Emotional Distress. The court did note in its memorandum of decision that Counts 2 and 8 were virtually identical and the award of damages in Count 8 was " superfluous." However, as the negligence verdict was a general one-not cumulative, the award of damages does not increase above the highest amount awarded on a negligence claim brought by Mr. Stern, and, therefore, there was no purpose in striking Count 8 following the completion of the trial.

         4. The defendants ask for a final calculation of the damages awarded. At the time that the verdict was rendered the court did not know the value of the collateral sources. The parties assured the court that they could agree collateral source adjustments following the issuance of the verdict. The court found that based on the economic damages awarded by the jury to Mrs. Stern, the court had no way to determine a collateral source adjustment, and accordingly her damages were not to be adjusted. However, as to Mr. Stern, the court found that the economic damages awarded established a basis for making a collateral source adjustment. The Memorandum of Decision Re: Award of Damages and Costs, therefore, included the jury's damage award and the mathematical formula to calculate the exact damages owed after the parties agreed to the amount of that adjustment. Plaintiffs, in their response to this motion, state that Mr. Stern is entitled to damages on the negligence count of $100, 240.62 plus costs of $6, 496.81, but this calculation does not appear to reflect an adjustment for collateral sources, unless Mr. Stern received no collateral source payments. If such payments were made the court urges the parties to agree to the value of those sources and, based on the formula set forth in the Memorandum of Decision, calculate the damages taking into account that adjustment. If the parties cannot agree as to the adjustment, they should inform the court and a hearing will be scheduled to clarify the award.

         5. The defendants have objected to some of the costs awarded by the court. The court has reviewed the contested costs and with one exception finds them appropriate and awardable. The defendants point out that there is no statutory provision for the award of costs for video and photographic illustrations presenting non-expert testimony. The $525 charged by Geomatrix appears to be directly related to presentations by two experts, Dr. Maletz and Dr. McKay, and therefore is appropriate as a chargeable cost. However, the accounting of the $6, 248 in charges from HB Live, Inc. is less clear, as to whether the presentation involved expert testimony or illustration of non-expert testimony and evidence. The court requests that the plaintiffs provide the court with an accounting of the nature of the videos and illustrations provided by HB, indicating their relationship, if any, to support or illustration of expert testimony. This accounting should be presented to the court and defense counsel within 60 ...


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