Leigh v. Schwartz

Gregory Leigh v. Daniel Schwartz, M.D. et al

No. CV116018306S

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

March 21, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION MOTION FOR REMITTITUR (#236)

Robin L. Wilson, J.

PROCEDURAL AND FACTUAL BACKGROUND

The plaintiff, Gregory Leigh, commenced this medical malpractice action against the defendant, Daniel Schwartz, M.D., CBS Surgical Group, P.C., MidState Medical Center and MidState Medical Group, P.C.^[1] by service of writ, summons and complaint. The plaintiff alleged that on December 10, 2008 the defendant, a general surgeon, negligently caused injury to the spinal accessory nerve during surgical excision of a posterior cervical lymph node. As a result of the injury, the plaintiff claimed various problems with his left shoulder and the inability to raise his left arm above his head. At the conclusion of the plaintiff's case in chief; the defendant moved for a directed verdict which this court denied. On July 15, 2015, the jury returned a plaintiff's verdict and awarded non-economic damages in the amount of $4 250, 000.

On August 11, 2015, the defendant filed a motion for judgment notwithstanding the verdict or in the alternative a motion to set aside verdict/motion for new trial and a motion for remittitur.^[2] On October 20, 2015, the plaintiff filed objections thereto and on November 30, 2015, the court heard oral argument on the motions at short calendar. Additional facts will be presented as necessary.

DISCUSSION

" Whenever in a civil action to recover damages resulting from personal injury or wrongful death, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, the jury renders a verdict specifying noneconomic damages, as defined in section 52-572h, in an amount exceeding one million dollars, the court shall review the evidence presented to the jury to determine if the amount of noneconomic damages specified in the verdict is excessive as a matter of law in that it so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. If the court so concludes, 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 . ." General Statutes § 52-228c.

In support of the motion for remittitur, the defendants argue that the jury's award of $4.25 million in noneconomic damages for the plaintiff's injury is grossly excessive and shocks the conscience and sense of justice. In particular, the defendants contend that the evidence presented at trial was insufficient to support the verdict because the injury was not a severe one that caused substantial pain and suffering or left the plaintiff unable to engage in life's activities.^[3]

In opposition, the plaintiff argues that there is substantial evidence regarding the nature of his injury, how the injury affects his daily life, and how the damages should be calculated going forward. Moreover, the plaintiff argues that the defendants have failed to meet the high standard for remittitur in that there is no evidence of undue sympathy prejudice, or corruption of the verdict.

" In 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 which 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] included items of damage which are contrary to law, not supported by proof; or contrary to the court's explicit and unchallenged instructions." (Citation omitted; internal quotation marks omitted.) Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 281, 32 A.3d 318 (2011).

" We acknowledge that the 'shocks the sense of justice' standard provides vague guidance at best--due, in part, to the uncertain limits of noneconomic damages. The language is intended to convey the extraordinary departure from reasonableness that is required before a court properly may exercise its authority to set aside the jury's award of damages. We have in the past stated what will not be sufficient to support a trial court's decision to set aside the jury's damages award and order a remittitur: The fact that the jury returns a verdict in excess of what the trial judge would have awarded does not alone establish that the verdict was excessive . . . Regarding what will be sufficient to support an order of remittitur, we have stated that a trial court should exercise its discretion to order remittitur only in cases where very clear, definite and satisfactory reasons can be given for such interference . . . For a trial court's remittitur order to be justified . . . we have stated that we must have laid before us a very clear and striking case of indubitable wrong, so clear and striking as to indicate the influence of undue sympathy, prejudice or corruption on the verdict." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. 282-83.

" A conclusion that the jury exercised merely poor judgment is an insufficient basis for ordering a remittitur . . . The fact that the jury returns a verdict in excess of what the trial judge would have awarded does not alone establish that the verdict was excessive . . . [T]he court should not act as the seventh juror with absolute veto power. Whether the court would have reached a different [result] is not in itself decisive . . . The court's proper function is to determine whether the evidence, reviewed in a light most favorable to the prevailing party, reasonably supports the jury's verdict." (Internal quotation marks omitted.) First American Title Ins. Co. v. 273 Water Street, LLC, 157 Conn.App. 23, 52, 117 A.3d 857 (2015).

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