Opinion
No. X01 CV-99-0164084S
December 17, 2004
Memorandum of Decision: Post-Verdict Motions
Three cases arising out of an August 17, 1996, boat accident on the Housatonic River in Shelton, Connecticut, were tried to a jury over four weeks in June and July of 2004. A young married couple, Sandra and Robert Bowers, were killed. Thomas Mahon, III, Adm. of the Estate of Sandra Bowers, and William Bowers, Adm. of the Estate of Robert Bowers, brought death actions on their behalf. Two passengers, Karen and Richard Kopf, brought personal injury actions. The accident occurred when the Bowers' boat, owned and operated by decedent Robert Bowers, and a boat operated by John Hay and owned by Thomas Hay collided during hours of darkness. The Bowers couple is believed to have died instantly.
The plaintiffs made multiple claims against various defendants. Specifically:
1) A product liability action was brought against Uniforce Technologies by all parties. As part of the settlement of that action prior to trial, the Estates of Robert and Sandra Bowers each received $83,000 and Richard and Karen Kopf each received $41,500.
2) Karen and Richard Kopf sued the Estate of Robert Bowers in negligence. As part of a settlement prior to trial, each received $42,000 from the estate.
3) All parties brought a product liability action against Malibu Boats West, the manufacturer of the Bowers' boat. During trial, this case settled for payment of $425,000 to each estate and $75,000 each to Richard and Karen Kopf.
4) All parties sued the owner and operator of the Hay boat in negligence. That action also settled at trial for payment of $366,000 to each estate and $183,000 each to Karen and Richard Kopf.
5) The parties proceeded to verdict only as against Brunswick Corp. dba Mercury Mercruiser, sued under the product liability statute as the manufacturer and distributor of the receptacle portion of the Bowers' boat engine harness. The jury awarded the gross amount of $195,000 to the Estate of Robert Bowers but reduced that amount by 33 1/3% — or $65,000 — for his comparative responsibility for a net award to him of $130,000. It awarded $150,000 to the Estate of Sandra Bowers, $175,000 to Karen Kopf and $45,000 to Richard Kopf.
Thus, the total value of the claim advanced by each plaintiff is as follows:
Estate of Robert Bowers: $1,069,000.00
Estate of Sandra Bowers: $1,024,000.00
Karen Kopf: $516,500.00
Richard Kopf: $386,500.00
Post-verdict motions were filed by Mercury Mercruiser and each of the two estates as will here be separately considered.
Defendant's Motion for Remittitur
Mercury Marine has requested the verdicts be reduced by the amounts received from John and Thomas Hay, Uniforce Technologies, Malibu Boats West and, in the cases of Karen and Richard Kopf by the additional amounts paid by the Estate of Robert Bowers. It also argues the verdicts should be reduced by the amounts paid by collateral sources. Specifically, it argues each plaintiff has already received many times the amount awarded by the jury and, since the plaintiffs chose to have a jury determine their damages and because they are entitled to only one recovery for damages for the same injury, a remittitur is in order. Gionfriddo v. Gartenhaus Café, 211 Conn. 67, 71 (1989), citing to Virgo v. Lyons, 209 Conn. 497, 509 (1988) ("A plaintiff may be compensated only once for his just damages for the same injury"). The defendant cites to Peck v. Jacquemin, 196 Conn. 53 (1985) for the proposition the jury's verdict establishes the limits of the plaintiffs' rights to redress and to Alfano v. Insurance Center of Torrington, 203 Conn. 607 (1987), as holding that, as a matter of law, compensation to include both verdict and settlement amounts received for the same loss would be excessive to the extent amounts in settlement exceeded the verdict amount. Memorandum, at p. 10. The court is unpersuaded. This state's Appellate Court, in Mauro v. Yale-New Haven Hospital, 31 Conn.App. 584 (1993), distinguished Alfano, a property damage case wherein the plaintiff's loss was "readily ascertainable and absolute" and personal injury cases such as this in which verdicts, while "certain," were "not absolute." 31 Conn.App., at 589.
The Court in Gionfriddo also recognized this state no longer followed the rule that a release of one defendant released all joint defendants. 211 Conn. 67, at 73.
C.G.S. § 52-216a governs adjustments for excessive and inadequate verdicts. It provides in part, "If 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." In Peck, supra, our Supreme Court upheld the statute as against a claim of unconstitutionality under Seals v. Hickey, 186 Conn. 337 (1982). Mauro, supra, made clear the proper inquiry in applying § 52-216a was whether the jury verdict, when added to the settlement amount(s), was excessive (or inadequate in the case of a request for additur). 31 Conn.App., at 590-91. In the instant case, Sandra and Robert Bowers were young, healthy, happily married, and physically active with life expectancies of 50.1 years and 45.08 years respectively. Each was gainfully employed and lived lives characterized by hard work and simple pleasures. Testimony established they were giving individuals whose priorities were family and friends. Testimony by Gary Crakes, a college professor of economics, testified as an expert; he performed an economic loss evaluation as to each decedent — $1,357,934 for Sandra based on actual earnings and $1,019,118 for Robert based upon employment as a construction supervisor. Given all of the testimony, the court concludes the total amount of $1,069,000 for Robert and $1,024,000 for Sandra Bowers (settlement amounts plus verdict) is neither excessive nor shocking to the conscience of the community.
Additionally, the court rejects the argument the amounts paid by the settling parties constitute "collateral sources" since, under C.G.S. § 52-225b, only amounts paid the claimants under obligations imposed by insurance or other contracts or agreements for reimbursement of hospital, medical, dental, or other health care services qualify. The defendant has ignored that the concluding sentence of that statute reads, "`collateral sources' do not include amounts received by a claimant as settlement,"
This claim is directed only to the Kopfs since no evidence of medical expenses for the Bowers was offered at trial.
Under the rule of Jones v. Kramer, 267 Conn. 336 (2004), the defendant would not under any circumstances be entitled to a collateral source reduction. That case requires a defendant, at the conclusion of evidence, to submit interrogatories to the jury concerning the specific amount of damages included within the verdict. Id., at 350. The defendant did not do that. Also, there was no evidence the jury made an award for past medical expenses and it would be speculation to presume they did.
The motion for remittitur is denied.
2) Motions for Additur and to Set Aside Verdicts as to Damages
The estates of Sandra and Robert Bower have moved for additur under C.G.S. § 52-216a which, in pertinent part, reads, "If the court concludes that the verdict is inadequate as a matter, of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial."
Primarily, the requests for additur are premised upon the testimony of Gary Crakes with regard to the economic loss reports of Robert and Sandra Bowers ($1,019,118 for Robert and $1,357,434 for Sandra based on actual earnings). The credibility of any witness — to include an expert witness — is a function peculiarly within the province of the jury. Fox v. Mason, 189 Conn. 484, 489 (1983). "The jury are not obliged to accept the ultimate opinion of an expert witness. If, for example, they do not find him a credible witness, they will reject his opinion regardless of whether they believe or disbelieve the subordinate facts on which his opinion is based." Van Detti v. Parsons Bros., Inc., 146 Conn. 282, 286 (1959). The jury awards to the estates suggest the jury did not find Crakes credible. An aggressive cross-examination of him established his economic loss values were based upon "profiles" of persons of similar age, education, occupation and earnings history, which profiles he entered into his computer so programmed as to deliver a value expressive of lost earning capacity. Only a modicum of attention was paid to the reality of the decedents' situations — i.e., that Robert Bowers' tax returns showed losses attributable to his carpentry business, that Sandra Bowers was of child-bearing age and, given the testimony of family and friends, both husband and wife loved children and wanted their own, which raised at least the potential for increased expenses and decreased earnings. In fact, Crakes concluded that in arriving at his estimate of the decedents' economic losses, he did not take into consideration Robert Bowers' strengths or deficiencies as an earner.
The jury was free to reject the value he attributed to household services each provided the other and the value he attributed to fringe benefits afforded by employment. Additionally, there was a defense challenge to the estates' claims the decedents experienced conscious pain and suffering prior to death. The jury was free to accept or reject, in whole or in part, each item of damages claimed and, in the absence of interrogatory responses, it is inappropriate to speculate what it is they accepted or rejected or their reason for doing so. We should not assume that, in returning the verdict they did, the jury made a mistake but should instead assume the jury did exactly what it wanted to do. Wichers v. Hatch, 252 Conn. 174, 189 (2000). It is relevant this jury deliberated the better part of one full week.
That the parties have a constitutional right to have damages decided by a jury limits a court's discretion to set aside a verdict. Id. "Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court . . . could be that a different result should have been reached." Id., citing to Horvath v. Tontini, 126 Conn. 462, 464 (1940). "The ultimate test is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the verdict so shocks the sense of justice as to compel the conclusion the jury were influenced by partiality, prejudice, mistake or corruption. Birgel v. Heintz, 163 Conn. 23, 28 (1972). In determining whether the verdict is inadequate as a matter of law as the court must do under § 52-216a, the jury's damage decision "is best tested in light of the circumstances of the particular case . . . Accordingly, the trial court should examine the evidence to consider whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue." 252 Conn., at 188-89. In this case, the jury could have rejected the estimates of economic loss advanced by Crakes as not appropriately tailored to the individual strengths, weaknesses, life experiences or personal goals of the decedents. In the face of evidence the collision occurred within seconds of the light on the Bowers' boat going out, the jury could reasonably have rejected the claim of conscious pain and suffering. Thus, this court does not conclude reasonable men and women acting fairly and intelligently could not have had reasonable issues with regard to these and other factual matters. "[I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result . . ., the trial court should let the jury work their will." Jacobs v. Goodspeed, 180 Conn. 415, 419 (1980). Considering also the total of all gross awards to the estates of Robert and Sandra Bowers is $2,093,000, the court does not conclude the verdict is inadequate as a matter of law but concludes instead the jury followed the court's instructions as to credibility, liability, and damages, returned precisely the verdict it intended, and that its awards to the decedents fell within the necessarily uncertain limits of just damages. Given the totality of the circumstances and the case law interpreting § 52-216a the court cannot say the verdict was so extremely low that it shocks the conscience of the court, that the damages awarded are inadequate, or that the verdict is inherently ambiguous. See Childs v. Bainer, 235 Conn. 107, 114-15 (1995). The motion for additur is denied as is the motion to set aside the verdict on that basis. "If, on the evidence, the jury could reasonably have decided as they did, [the reviewing court] will not find error in the trial court's acceptance of the verdict . . ." Childs, supra, at 113 (Citation and internal quotations marks omitted).
3) Motion to Set Aside on Other Grounds
The Estate of Robert Bowers has also moved to set aside the verdict alleging a potpourri of errors by this court. In adjudicating a motion to set aside, the court must review the evidence in the light most favorable to sustaining the verdict. See Howard v. MacDonald, 270 Conn. 111, 127 (2004) (Citations omitted). It has alleged a defense witness, Richard Snyder, a retired engineer who did consulting for Mercury Mercruiser, proffered expert testimony when he was not disclosed as an expert. The court notes that, at the time of argument, no transcript of either the court's charge or of trial testimony was offered by counsel though a draft of the court charge had been reviewed with and provided to counsel prior to the charge and was given the jury at the completion of the charge. It is so that Snyder was not disclosed as an expert witness. His testimony primarily focused upon his inspection of the two boats at the request of this state's DEP. (His chief interest was in certain propeller marks made by the Hay boat on the left side of the Bowers' boat from which he concluded the transmission of the Hay boat was nearly stopped at the time of collision) and certain cautions and warnings in the Owner's Manual for engines of the sort in the Bowers' boat. He offered no expert opinion whatsoever. In fact, plaintiff, in its memorandum of law at p. 5, stated, Snyder, with regard to testimony about suggestions in the manual regarding the kind of safety equipment which should be on board a boat when operated, "was very clear about the fact that there were no requirements — no standards or regulations — mandating that Mr. Bowers have extra lights, an extra horn, or flares on his boat." Since Snyder offered no expert opinion with regard either to the negligence of the decedent operator or the presence or absence of a defect in the boat's, engine, this argument is without merit.
As indicated the case was tried in June and July of 2004. The post-verdict motions were not claimed, for adjudication until September 29, 2004. The parties requested argument not be held until November of 2004. Argument was in fact heard on November 22, 2004.
The court responded to jury questions that arose during their deliberations. No transcript of the court's charge on those occasions is yet available.
The plaintiff next argues the court erred in permitting the defendant to amend its special defense at the start of trial prior to the taking of evidence and in directing plaintiff to file a reply to that special defense without opportunity to file a responsive pleading. As counsel concedes, the court stated she would treat counsel's objection to the amended special defense as a motion to strike and denied the same. The original special defense stated the plaintiff's "negligence, misuse and culpable conduct" in one or more of the following ways:
1. He failed to make proper and reasonable use of his senses and faculties;
2. He failed to keep a proper lookout; and
3. While aware of operating difficulties with said equipment, he nevertheless proceeded to operate it without taking reasonable precautions for his own safety and that of others.
The amended special defense read:
The occurrence complained of and injuries, losses and damages alleged to have resulted therefrom were caused in whole or in part by the comparative fault of the plaintiffs (sic) decedent, Robert W. Bowers, in his operation of said boat at the time and place concerned including the absence of accessible and operational safety equipment. CT Page 19247
Having heard argument, this court was of the opinion that permitting the special defense did not work an injustice to the plaintiff. The first of these cases had been pending since 1998 during which time a plethora of depositions and countless discovery requests were filed and responded to. While the plaintiff argues the amended special defense added "new facts and a new theory" (Memorandum, at p. 2) and required expert evidence, the court is not persuaded. Both special defenses make specific reference to the defendant's operation of his boat when there were problems with the safety equipment on board. As above stated, there was evidence — known to plaintiff's counsel prior to the taking of evidence — of expired flares, a non-functioning flashlight and air horn, and a partially taped stem light. The defendant had the right to introduce such evidence and the jury had the right to determine whether any of those items established proximate causation just as it had the right to consider whether the boat's location in the travel area of the river at the time of the accident was a proximate cause since the latter allegation is clearly encompassed by the claim of the amended special defense that the decedent's comparative fault was in "his operation of said boat at the time and place including the absence of accessible and operational safety equipment (Emphasis added). Nor is the plaintiff correct in asserting this special defense "did not allege that Mr. Bowers was negligent in allowing the equipment to be in a non-functioning condition" since that is a reasonable implication to be taken from the special defense in view of evidence the decedent had been the owner of the boat for some years prior to the accident. The plaintiff cites no authority for the proposition the special defense required expert testimony and the court is satisfied it was within the ken of the average juror to conclude whether, for example, the state of the safety equipment causally contributed to the collision in the same way a jury is permitted to consider whether non-working headlights on a car is causally related to the occurrence of an accident. That the wording of the amended special defense was awkward at best is not determinative; it focused on the decedent's operation of his boat at the time and place to include the state of the safety equipment. It is disingenuous to claim the amendment took the plaintiff by surprise when discovery had focused upon such equipment for many years prior to trial. Under the circumstances, delaying the trial by permitting the plaintiff to file a "responsive pleading" when counsel was permitted to — and did — argue his objection before the court ruled served no legitimate legal objective. Our Appellate Court has concluded the inclusion of additional factual information in an amended special defense offered on the day jury selection was to commence was not to prejudice the plaintiff. 1525 Highland Associates, LLC v. Fohl, 62 Conn.App. 612, 617 (2001). Amendments in this state are liberally allowed — even to the extent of allowing allegations of recklessness after the jury had been deliberating. See Matthiessen v. Vanech, 266 Conn. 822 (2003). Any claim of surprise or unfair prejudice is without merit.
The plaintiff next claims there was insufficient evidence upon which the jury could have based its finding the decedent operator was 33 1/3% comparatively responsible for the accident. In this regard, the plaintiff has described evidence offered in support of the special defense as consisting "of bits and pieces it scrounged from witnesses presented on other subjects." Memorandum, at p. 3. The plaintiff then recites evidence from Detective Sudock "that there was an air horn and a flashlight that were non-functioning when they were tested by the State Police five days after the crash, as well as flares that were expired at the time of the crash." Id. There was also evidence that a portion of the boat's stern light was taped. As to this, the plaintiff concludes, "The jury found that the stern light was out because the power failed. It had to; otherwise it would have found for the defendant." That conclusion is every bit as speculative and as invasive of the jury's function as the plaintiff's offer that any conclusion by the jury to the effect the boat would have been visible (to Hay who approached the plaintiff's boat from the rear) before the power on the boat failed if the stern light had not been taped, is speculative. Memorandum, at pp. 3-4. The jury could well have found the decedent operator's action in bringing his boat to a stop in the travel area of the Housatonic River (instead of mooring it alongside the bank of that river) where he and his three passengers were not reasonably expected to be situated was a proximate cause of this accident and thus their finding. It is not for counsel or the court to second guess the jury. Even if the court were to disagree with the jury's findings, she cannot sit as the seventh juror regarding the sufficiency of the evidence so long as there is some evidence to support their finding. See Ormsby v. Frankel, 255 Conn. 670, 692 (2001); Fiske, v. Zborowski, 83 Conn.App. 42, 52 (2004). The conclusion merely that the jury may have exercised poor judgment is not a sufficient basis to set aside the verdict. Wochek v. Foley, 193 Conn. 582, 587 (1984) (Citation omitted).
The plaintiff claims the court erred in failing to charge the jury on the standard of care applicable to the defendant's conduct vis-à-vis the special defense of comparative fault. The court did charge on the concept of comparative responsibility and that it was not to consider the special defense unless it first found, by a fair preponderance of the evidence, that both the decedent and the defendant bore some responsibility for the accident (Draft of Charge, at p. 23). The court reviewed with the jury evidence with regard to safety equipment on board and charged the jury on the meaning of "proximate cause." Id., at p. 24. Since the focus of the special defense was the lack of accessibility and non-operation of the equipment, there was not the need, in this court's view, specifically to tell the jury reasonable care required the defendant have a working air horn and flashlight, flares with unexpired dates, or a stern light free of any portion blocked by tape and, thus, partially in darkness. What is implied need not be stated where, as here, the jurors were competent to consider comparative fault on the basis of such evidence and where, as here, jurors were aware the Kopfs had sued Robert Bowers claiming his negligence on the very same claims of negligence.
The plaintiff has argued the jury's apparent rejection of the economist's appraisal of economic loss was as a result of this court's failure to specifically charge the jury, as requested, that "loss of earning capacity is measured by lost earnings and not lost savings." They argue that defense counsel's asking the jury during closing argument how many millionaires at age 65 were carpenters or contractors "very likely" led the jury to confuse savings and earnings. Memorandum, at p. 13. That is speculation on the part of counsel. It is at least as likely the jury would conclude from defense counsel's comment that contractors' and carpenters' earnings were unlikely to make them millionaires at retirement than it is to conclude contractors and carpenters were less apt to be savers than are other earners. This court's trial notes do not indicate defense counsel referenced "savings" and, if he did (which the court does not believe he did), there was no objection made at that time. The court's charge on damages very much reflected the plaintiffs' requests to charge. That a single request was not given is scant reason to set aside the verdict if, taken as a whole, the charge fairly reflected the law. In this court's view, it did.
Finally, plaintiffs urge the court to set aside the verdict because the court refused to admit all postmortem photographs of Robert Bowers. The photos visualized the decedent after his body had been recovered from the water and pre-autopsy. They were photographs of his bruised and bloodied body as he lay in the morgue on a gurney; many were close shots which showed his facial features in contorted fashion. The photographs had no probative value. It was never disputed that Robert Bowers died as a result of the collision or that his body was in the water for some substantial time before successful recovery efforts. This was not a case where severity of impact was probative of the injuries and damages claimed. The plaintiff does not argue otherwise; he states only that the jury did not have the opportunity to "consider the most realistic evidence of his death and injuries." Memorandum, at p. 13. The injuries were described in great detail in the autopsy report which went to the jury. To link the exclusion of these photographs with the amount of the verdict and argue a causal relation cannot be supported. The jury received many photographs of the decedent in life, all of which pictured a smiling, youthful and apparently vigorous young male. The admission of the photographs would have served only to prejudice the defendant without serving any legitimate evidential purpose.
There was evidence upon which the jury might reasonably have reached their verdict; it cannot be said it was against either the law or the evidence. It was not so palpably unjust to persuade this court the jury made a mistake in applying the law or that the jury was motivated by prejudice, corruption, partiality, or otherwise improper influences. The motion to set aside the verdict is denied.
All motions are denied in their entirety. Judgment enters for all plaintiffs in the amounts of the jury verdicts.
Sheedy, J.