MARJORIE ASHMORE, ADMINISTRATRIX (ESTATE OF WILLIAM ASHMORE), ET AL.
v.
HARTFORD HOSPITAL ET AL.
Argued
May 4, 2018
Procedural
History
Action
to recover damages for, inter alia, medical malpractice,
brought to the Superior Court in the judicial district of
Waterbury, where the complaint was withdrawn as to the
defendant Hartford Healthcare Corporation; thereafter, the
case was tried to a jury before Roraback, J.;
verdict for the plaintiffs; subsequently, the court,
Roraback, J., denied the named defendant's
motion for remittitur and rendered judgment in accordance
with the verdict, and the named defendant appealed.
Reversed; further proceedings.
John
L. Cordani, Jr., with whom was Isabella M. Squicciarini, for
the appellant (named defendant).
James
J. Healy, with whom was Eric P. Smith, for the appellees
(plaintiffs).
Christopher P. Kriesen and Lorinda S. Coon, and Geraldine
Macaisa and Chelsea Sousa, certified legal interns, filed a
brief for the Connecticut Defense Lawyers Association as
amicus curiae.
Minor
C. Sterling, Jeffrey Wisner, Matthew Blurnen-thal, Julie V.
Pinette and Karen K. Clark filed a brief for the Connecticut
Trial Lawyers Association as amicus curiae.
Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins
and Kahn, Js. [*]
OPINION
PALMER, J.
In this
wrongful death action alleging medical malpractice, the named
defendant, Hartford Hospital, [1] appeals from the judgment of the
trial court, which denied a motion for remittitur after a
jury awarded $1.2 million in noneconomic damages to the named
plaintiff, Marjorie Ashmore, as the administratrix of the
estate of the decedent, [2] her late husband William Ashmore, and
$4.5 million to the plaintiff for her own loss of spousal
consortium. The defendant contends that, in the absence of
exceptional or unusual circumstances that are not applicable
in this loss of consortium award ordinarily should not
substantially exceed the corresponding wrongful death award
to the directly injured spouse. We agree and, accordingly,
reverse the judgment of the trial court.
The
following facts, which the jury reasonably could have found,
and procedural history are relevant to our disposition of
this appeal. In 2011, the decedent visited the defendant
hospital for routine elective heart surgery. The surgery was
completed successfully and without complication. During the
procedure, the surgeon connected standard epicardial pacing
electrodes to the decedent's heart to assist with heart
rate and rhythm management in the event that he should
experience any postoperative complications. In the case of an
abnormal rhythm, such wires can be quickly and easily
connected to a system that provides a small electrical
stimulation to return the heartbeat to its normal rhythm.
The
decedent initially recovered well, but, during the second
night at the hospital following the operation, he began to
experience atrial fibrillation, a common postoperative
condition. Over the course of the next hour, his heart rate
dropped precipitously, he displayed various signs of serious
distress, and alarms repeatedly sounded. Although this was
precisely the condition for which the epicardial wires had
been installed, hospital staff failed to connect the wires or
to contact the decedent's surgeon until after the
decedent had experienced cardiac arrest. Hospital staff
ultimately were able to restart his heart using electrical
shock, but the lack of a heartbeat for seventeen minutes
resulted in oxygen deprivation so severe that the decedent
had to be placed on life support. He never regained
consciousness. Several days later, with no reasonable
possibility that her husband of forty-five years would
recover, the plaintiff was forced to make the agonizing
decision to terminate the decedent's life support. He
died moments later.
The
plaintiff filed the present action, alleging wrongful death
in her capacity as executor of the decedent's estate, and
loss of spousal consortium in her individual capacity. The
case was tried to a jury, which returned a verdict for the
plaintiff. The jury found that the negligence of the
defendant's employees was the proximate cause of the
decedent's death and awarded the decedent's estate
approximately $75, 000 in economic damages and $1.2 million
in noneconomic damages. The jury also awarded the plaintiff
$4.5 million in damages for loss of consortium.
The
defendant then filed a motion seeking a remittitur of the
loss of consortium award pursuant to General Statutes
§§ 52-216a and 52-228c, and Practice Book §
16-35. The trial court denied the motion and rendered
judgment in accordance with the jury verdict. The defendant
appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court
pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1. Additional facts will be set forth as
necessary.
I
As an
initial matter, we address the parties' disagreement as
to the standard that governs appellate review of a trial
court's decision to grant or deny a motion for
remittitur. The plaintiff, relying on cases such as Munn
v. Hotchkiss School, 326 Conn. 540, 574, 165 A.3d 1167
(2017), and Patino v. Birken Mfg. Co., 304 Conn.
679, 706, 41 A.3d 1013 (2012), contends that binding
precedent establishes, and our recent cases reaffirm, that a
trial court's decision to grant or deny remittitur is
reviewed according to a deferential abuse of discretion
standard. The defendant invites us to overrule those cases
and to adopt a plenary standard of review or, failing that,
to review de novo the decision of the trial court in the
present case insofar as that decision was predicated on an
incorrect legal determination. We decline the defendant's
invitation to overrule Munn, Patino, and their many
progenitors.
A
As we
explained in Saleh v. Ribeiro Trucking, LLC, 303
Conn. 276, 32 A.3d 318 (2011), the standards that govern
appellate review of a trial court's granting or denial of
a motion for remittitur must be understood in light of the
underlying legal standards that govern remittitur itself. See
id., 280, 284-85. We frequently have stated that, "[i]n
determining whether to order remittitur, the trial court is
required to review the evidence in the light most favorable
to sustaining the verdict. . . . Upon completing that review,
the court should not interfere with the jury's
determination except when the verdict is plainly excessive or
exorbitant. . . . The ultimate test [that] must be applied to
the verdict by the trial court is whether the jury's
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. . . . The court's broad power to order a
remittitur should be exercised only when it is manifest that
the jury [has awarded damages that] are contrary to law, not
supported by proof, or contrary to the court's explicit
and unchallenged instructions." (Internal quotation
marks omitted.) Munn v. Hotchkiss School, supra, 326
Conn. 575-76. "Accordingly, we consistently have held
that a court should exercise its authority to order a
remittitur rarely-only in the most exceptional of
circumstances . . . and [when] the court can articulate very
clear, definite and satisfactory reasons . . . for such
interference." (Citation omitted; internal quotation
marks omitted.) Id., 575.
Also
relevant to our review is § 52-216a, which provides the
general statutory authority for remittitur. That statute
provides in relevant part that, "[i]f the court at the
conclusion of the trial concludes that the verdict is
excessive as a matter of law, it shall
order a remittitur and, upon failure of the party so ordered
to remit the amount ordered by the court, it shall set aside
the verdict and order a new trial. ..." (Emphasis
added.) General Statutes § 52-216a.
With
respect to appellate review, in Saleh, we explained
that "our review of the trial court's decision [to
grant or deny remittitur] requires careful balancing."
Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn.
285. "[T]he decision whether to reduce a jury verdict
because it is excessive as a matter of law . . . rests solely
within the discretion of the trial court. . . . [T]he same
general principles apply to a trial court's decision to
order a remittitur. [Consequently], the proper standard of
review ... is that of an abuse of discretion. . . . [T]he
ruling of the trial court ... is entitled to great weight and
every reasonable presumption should be given in favor of its
correctness." (Citation omitted; internal quotation
marks omitted.) Id., 281-82. The chief rationale
that has been articulated in support of this deferential
standard of review is that the trial court, having observed
the trial and evaluated the testimony firsthand, is better
positioned than a reviewing court to assess both the aptness
of the award and whether the jury may have been motivated by
improper sympathy, partiality, or prejudice. See, e.g.,
Munn v. Hotchkiss School, supra, 326 Conn. 577; W.
Maltbie, Connecticut Appellate Procedure (2d Ed. 1957) §
187, pp. 230-31; W. Maltbie, supra, § 197, pp. 244-45.
Even
under this deferential standard of review, however, we have
not shied away from ordering remittitur when the record
failed to support the jury's award of damages. Indeed,
"[t]his court has a long history of ordering plaintiffs
to accept a remittitur or [to] submit to a new trial."
Earlington v. Anastasi, 293 Conn. 194, 208, 976 A.2d
689 (2009); see also Doroszka v. Lavine, 111 Conn.
575, 579, 150 A. 692 (1930) ("[a]s early as [1838], and
frequently since, we have ordered a new trial unless the
plaintiff would remit a part of the verdict"); W.
Maltbie, supra, § 200, p. 248 ("[t]he [S]upreme
[C]ourt often orders a new trial unless the plaintiff remits
a certain amount of the damages").
B
The
defendant does not dispute that we have, in most instances,
reviewed decisions to grant or deny remittitur according to
this deferential standard of review. Nevertheless, the
defendant emphasizes that the legislature has determined that
remittitur should be granted only when a verdict is deemed to
be "excessive as a matter of law"; General Statutes
§ 52-216a; accord General Statutes §
52-228c;[3] and argues that appellate courts typically
review legal determinations de novo rather than for an abuse
of discretion. The defendant also draws our attention to
Justice McDonald's concurrence in Munn, which
highlighted the need for clarification of existing remittitur
standards. See Munn v. Hotchkiss School, supra, 326
Conn. 584-88 (McDonald, J., concurring). The
defendant therefore invites us to revisit and overrule
Munn and our other decisions concerning remittitur.
For the
following reasons, we reject the defendant's argument
that the use of the phrase "excessive as a matter of
law" in §§ 52-216a and 52-228c evinces a
legislative intent to abrogate the common law and to
prescribe a de novo standard of review of remittitur
decisions. First, the defendant's argument reflects a
misunderstanding of the concept of a "matter of
law" or "question of law," as those
expressions are used in the context of appellate review. This
court is authorized to find facts only under a few limited
circumstances in which we have original jurisdiction, such as
in cases challenging the reapportionment of state electoral
districts; see Conn. Const, amend. XXVI (d); and challenges
to the rulings of election officials in connection with
certain federal elections. See General Statutes § 9-323.
In all other matters, our authority is limited to the
correction of alleged legal errors. See, e.g., General
Statutes § 52-263; Morgan v. Morgan, 104 Conn.
412, 417-18, 133 A. 249 (1926). What this means is that, in
the run-of-the-mill civil or criminal appeal, all of
the questions that we resolve are, strictly speaking,
questions of law. See W. Maltbie, supra, § 8, p. 9; E.
Prescott, Connecticut Appellate Practice and Procedure (5th
Ed. 2016) § 8-3:1.1, pp. 461-62. This is true even with
respect to more fact bound claims, such as sufficiency of the
evidence challenges and challenges to the trial court's
discretionary rulings, which are subject to highly
deferential appellate review.[4] In fact, there are numerous
contexts, aside from remittitur, in which we have stated
either that we will review for abuse of discretion a
determination that a trial court made as a matter of law or
that we are unable to say, as a matter of law, that a trial
court abused its discretion in a certain
regard.[5] Accordingly, the statutory reference to
"a matter of law" does not, in and of itself,
necessitate a plenary standard of review.
Indeed,
long before the enactment of § 52-216a, this court
explained that, although the question of whether an award of
damages is excessive is one of law, we will review a trial
court's determination thereof only for an abuse of
discretion. E.g., Nash v. Hunt, 166 Conn. 418,
428-29, 352 A.2d 773 (1974); see Gorczyca v. New York,
New Haven & Hartford Railroad Co., 141 Conn. 701,
703, 109 A.2d 589 (1954); see also Mansfield v. New
Haven, 174 Conn. 373, 375, 387 A.2d 699 (1978)
("[i]t cannot be held, as a matter of law, that the
jury's award does not fall within the necessarily
uncertain limits of just damages or that the court abused its
discretion in refusing to set aside the verdict as
inadequate"). Accordingly, because § 52-216a merely
codified the preexisting common-law standards; see, e.g.,
Wickers v. Hatch, 252 Conn. 174, 187, 745 A.2d 789
(2000); there is no reason to conclude, on the basis of the
statutory text, that the legislature intended to modify the
established standard of review. See, e.g., Matihiessen v.
Vanech, 266 Conn. 822, 838, 836 A.2d 394 (2003)
("[although] the legislature's authority to abrogate
the common law is undeniable, we will not lightly impute such
an intent to the legislature" [internal quotation marks
omitted]).
Moreover,
the fact that this court has continued to apply the
traditional standard of review to remittitur decisions for
more than thirty-five years since the enactment of §
52-216a, with the acquiescence of the legislature, provides
further support for the conclusion that the statute was not
intended to impose a de novo standard of appellate review.
"[I]n evaluating the force of stare decisis, our case
law dictates that we should be especially wary of overturning
a decision that involves the construction of a statute. . . .
When we construe a statute, we act not as plenary lawgivers
but as surrogates for another policy maker, [that is] the
legislature. In our role as surrogates, our only
responsibility is to determine what the legislature, within
constitutional limits, intended to do. Sometimes, when we
have made such a determination, the legislature instructs us
that we have misconstrued its intentions. We are bound by the
instructions so provided. . . . More often, however, the
legislature takes no further action to clarify its
intentions. Time and again, we have characterized the failure
of the legislature to take corrective action as manifesting
the legislature's acquiescence in our construction of a
statute. . . . Once an appropriate interval to permit
legislative reconsideration has passed without corrective
legislative action, the inference of legislative acquiescence
places a significant jurisprudential limitation on our own
authority to reconsider the merits of our earlier
decision." (Internal quotation marks omitted.)
Spiotti v. Wolcott, 326 Conn. 190, 201- 202, 163
A.3d 46 (2017).
The
argument of legislative acquiescence is especially compelling
with respect to the remittitur statutes. The legislature
amended § 52-216a in 1982 to include the "excessive
as a matter of law" language. Public Acts 1982, No.
82-406, § 3 (P.A. 82-406). Over the following two
decades, this court decided numerous cases in which we
continued to deferentially review additur and remittitur
decisions governed by § 52-216a. See, e.g., Gladu v.
Sousa, 252 Conn. 190, 191-93, 745 A.2d 798 (2000);
Wickers v. Hatch, supra, 252 Conn. 181; Meaney
v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 513,
735 A.2d 813 (1999); Black v. Goodwin, Loomis &
Britton, Inc., 239 Conn. 144, 167, 681 A.2d 293 (1996);
Bartholomew v. Schweizer, 217 Conn. 671, 687, 587
A.2d 1014 (1991); Champagne v. Raybestos-Manhattan,
Inc., 212 Conn. 509, 557, 562 A.2d 1100 (1989). At no
time did the legislature amend the statute to clarify that
remittitur decisions made pursuant to § 52-216a were to
be afforded plenary review on appeal. Moreover, in 2005, when
the legislature enacted § 52-228c; see Public Acts 2005,
No. 05-275, § 10; it again used the "excessive as a
matter of law" language to characterize the standard
that governs remittitur decisions, in that case in the
medical malpractice context. If the legislature, presumably
aware of this court's remittitur jurisprudence; see,
e.g., Efstathiadis v. Holder, 317 Conn. 482, 492,
119 A.3d 522 (2015); had wanted to ensure that remittitur
decisions made pursuant to § 52-228c would be reviewed
de novo, it could have expressly so required. See, e.g.,
General Statutes § 45a-100 (l) (mandating de
novo review by Superior Court of federal firearms disability
determination by Probate Court). Instead, legislators
indicated that their intent was merely to codify the
common-law standards that courts had long applied in the
remittitur context. See 48 H.R. Proa, Pt. 31, 2005 Sess., pp.
9458, 9504-9505, remarks of Representative Michael P. Lawlor.
In view of this history, and given the strong policy
arguments in favor of affording deference to the trial
court's determination as to whether a damages award is so
excessive as to suggest that the jury was motivated by
sympathy, partiality, or prejudice; see Bartholomew v.
Schweizer, supra, 217 Conn. 687; we decline the
defendant's invitation to overrule our recent remittitur
decisions.[6]
As we
explain more fully in part II of this opinion, however, we do
agree with the defendant that the present appeal turns
largely on a purely legal question, namely, whether a loss of
consortium award in a wrongful death action presumptively
should not be substantially greater than the noneconomic
damages awarded for the wrongful death itself. Our review of
that question is unquestionably plenary. See, e.g., Poole
v. Waterbury, 266 Conn. 68, 82, 831 A.2d 211 (2003);
Wichers v. Hatch, supra, 252 Conn. 181-82; see also
W. Maltbie, supra, § 188, p. 231 (it is legal error when
trial court decides motion to set aside verdict on basis of
misconception of law).
II
We turn
next to the substance of the defendant's claim. For the
reasons set forth hereinafter, we agree with the defendant
that a spousal loss of consortium award in a wrongful death
action presumptively should not be substantially greater than
the wrongful death award[7] itself. We also agree with the
defendant that, even when the evidence is considered in the
light most favorable to sustaining the verdict and the trial
court's denial of remittitur, this is not among those
unusual cases in which a substantially greater loss of
consortium award may be justified.
A
We
begin by briefly reviewing the history of and modern rules
governing loss of spousal consortium claims. "The loss
of consortium action had its genesis in early Roman [l]aw,
when the paterfamilias, or head of the household, had an
action for violence committed against his wife, children or
slaves on the theory they were so identified with him that
the wrong was to himself. By the [thirteenth [c]entury, the
common law had adopted the idea in part, altering it to a
damage[s] action for loss of services of the servant because
of violence. By the early[s] eventeenth [c]entury in England,
since the station of a wife under early common law was that
of a valuable servant of the husband who could not sue in her
own name, the action was extended to include the loss of her
domestic services. Over the years, emphasis shifted away from
loss of services toward a recognition of the intangible
elements of domestic relations, such as companionship and
affection." Taylor v. Beard, 104 S.W.3d 507,
508-509 (Tenn. 2003).
It was
not until 1950, more than one century after a majority of
states had enacted married women's property acts, that
the first American court held that, in view of the modern
legal equality of wife and husband in the marital
relationship, a woman was permitted to bring a claim against
a tortfeasor for the negligent deprivation of her
husband's consortium. Hitaffer v. Argonne Co.,183 F.2d 811, 819 (D.C. Cir.) (overruled in part on other
grounds by Smither & Co. v. Coles,242 F.2d 220');">242 F.2d 220
[D.C. Cir.], cert, denied, 354 U.S. 914, 77 S.Ct. 1299, 1
L.Ed.2d 1429 [1957]), cert, denied, 340 U.S. 852, 71 S.Ct.
80, 95 L.Ed. 624 (1950); Hopson v. St. Mary's
Hospital,176 Conn. 485, 489, 408 A.2d 260 (1979); see
also T. Demetrio, "Loss of Consortium: A Continuing
Evolution," Trial, September, 2000, pp. 42-43. While
most jurisdictions quickly followed suit and allowed wives as
well as husbands to bring spousal consortium actions,
Connecticut was one of a handful of states that initially
followed a completely different approach. See Hopson v.
St. Mary's Hospital, supra, 490. In Marri v.
Stamford Street Railroad Co.,84 Conn. 9, 78 A. 582
(1911), this court recognized that the equal rights of men
and women under modern marital law meant that either both
genders must be able to maintain an action for loss of
consortium or neither may. See id., 22. Reasoning that the
action for loss of consortium not ...