234 Conn.App. 778
Conn. App. Ct.2025Background
- Peter Sobin underwent left total knee replacement; discharged with instructions to seek care for calf pain/swelling (signs of DVT).
- In the weeks after surgery Peter experienced calf pain, swelling and bruising; he saw a physical therapist and physician’s assistant (PA) Erik Libby, who did not order a venous ultrasound.
- On October 1, 2015 Peter developed shortness of breath, was hospitalized, and died of a pulmonary embolism; plaintiffs sued Orthopaedic Sports Specialists, P.C. for wrongful death (estate) and loss of consortium (Linda Sobin individually).
- At trial plaintiffs’ expert testified Libby breached the standard of care by failing to order an ultrasound and that such testing likely would have prevented death; jury returned verdicts totaling $8.5 million ($5.5M wrongful death; $3M loss of consortium).
- The estate had filed a $1,000,000 offer of compromise pretrial; after verdict the trial court awarded offer-of-compromise interest only on the wrongful death award, not on the individual loss-of-consortium damages; both parties appealed (and defendant cross-appealed).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony responding to hypotheticals should be stricken because the hypotheticals assumed facts not in evidence | Plaintiffs: circumstantial evidence (texts, family testimony, discharge instructions, patient compliance) supplied foundation and jury may infer plaintiff told Libby of calf symptoms. | Defendant: no direct evidence that Peter ever told Libby about calf pain/swelling; expert answers should be stricken. | Court: affirmed trial court — ample circumstantial evidence supported the foundational facts; no abuse of discretion. |
| Whether a mistrial was required because plaintiffs’ counsel’s questioning implied Libby acted illegally (deleting a record) | Plaintiffs: questions relevant to credibility and impeachment; any concern cured by court’s limiting instruction. | Defendant: questioning about illegality prejudiced jury and poisoned witness credibility; mistrial warranted. | Court: denied mistrial — curative instruction clearly instructed jury not to consider criminality; no reversible prejudice. |
| Whether defendant’s expert should have been allowed to opine about embolus size/origin using undisclosed autopsy photos | Plaintiffs: objected to use of undisclosed, unauthenticated photos and argued Iorio lacked qualification for precise pulmonary measurements; limitation proper. | Defendant: Iorio qualified and should be allowed to use photos to opine that embolus likely originated above the calf. | Court: dismissal as moot on appeal because trial court offered three independent bases for limiting testimony (disclosure, qualification, authentication); defendant challenged only one. |
| Whether the jury instruction permitting damages for the “death itself” (in addition to pain and suffering) was improper or duplicative | Plaintiffs: model instruction and case law support awarding damages for loss of life and, if death not instantaneous, for antemortem pain and suffering. | Defendant: model instruction uses “or” between death itself and pain and suffering; awarding both permits duplicative recovery. | Court: instruction proper and read as whole; Floyd and model instructions allow recovery for death itself and for pain/suffering if death was not instantaneous; no harm shown. |
| Whether offer-of-compromise interest should apply to Sobin’s individual loss-of-consortium award | Plaintiffs: offer resolved wrongful-death claim and thus should cover derivative loss-of-consortium; interest should be awarded on full judgment. | Defendant: offer named only the estate (administratrix) and did not include Sobin individually, so it cannot trigger interest on her separate claim. | Court: affirmed partial denial — strict construction required; offer was filed only on behalf of the estate so interest not awarded on Sobin’s individual loss-of-consortium award. |
| Whether the offer of compromise was invalid because it included alternative language about willingness to stipulate to judgment | Plaintiffs: alternative language was permissible (settlement or, alternatively, stipulated judgment). | Defendant: phrase made the offer an invalid conditional stipulation, not a §52-192a settlement offer. | Court: offer not invalid; language read as an alternative path (settlement or stipulated judgment); trial court rightly awarded interest on wrongful-death portion. |
Key Cases Cited
- Curran v. Kroll, 303 Conn. 845 (2012) (permitting reasonable inferences from circumstantial evidence and inferences drawn from other inferences)
- Smith v. Andrews, 289 Conn. 61 (2008) (abuse-of-discretion review for admissibility and form of expert hypotheticals)
- Floyd v. Fruit Industries, Inc., 144 Conn. 659 (1957) (wrongful-death statute allows damages for death itself in addition to other elements)
- Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134 (1985) (definition of “just damages” under wrongful-death statute)
- Voris v. Molinaro, 302 Conn. 791 (2011) (settlement of predicate claim extinguishes derivative loss-of-consortium claim)
- Cardenas v. Mixcus, 264 Conn. 314 (2003) (§ 52-192a is punitive, encourages settlement, and mandates prejudgment interest when statutory criteria are met)