83 Conn. App. 279 | Conn. App. Ct. | 2004
Opinion
In this personal injury action, the plaintiff, Elizabeth Atkin, appeals from the judgment of the trial court rendered following a hearing in damages. On appeal, the plaintiff claims that the court improperly charged the jury on the issue of calculating future medical expenses. We disagree and affirm the judgment of the trial court.
The following facts and procedural history are relevant to the plaintiffs appeal. On May 8, 1999, a motor vehicle driven by the plaintiff was struck by a motor vehicle operated by the defendant Andrew Marko and owned by the defendant Leslie Bierman. The defendants admitted liability, and the case proceeded to the jury for a hearing in damages.
The plaintiff sought treatment from Maria Passaro, a physician, who testified regarding the plaintiffs injuries and treatment. Passaro testified that the plaintiff suffered permanent partial impairments as defined by the guidelines of the American Medical Association.
Passaro further testified that the plaintiff was instructed in November, 1999, that she should return for treatment if her symptoms increased despite the
At the hearing in damages, the plaintiff requested the following jury charge: “In this case, there has been expert testimony presented to you that [the plaintiff] may require medical treatment in the future as a result of injuries caused by the defendants. Because future medical expenses do not require the same degree of certainty as past medical expenses, it is not speculation or conjecture to calculate future medical expenses that have accrued as of the trial date when there is a degree of medical probability that future medical expenses will be necessary. The cost and frequency of past medical treatment may be used as a yardstick of future expenses when it can be inferred that the plaintiff will continue to seek the same form of treatment in the future.”
The court instructed the jury on future damages as follows: “You may . . . award [economic damages for] expenses you find it reasonably likely the plaintiff will incur in the future.” The court also instructed that the jurors may evaluate for themselves “the testimony of [the] plaintiff and other fact witnesses, and determine the nature and duration of the injury and the likelihood of its continuation in the future.”
“With regard to the permanency of the plaintiffs injuries, if you find that her injuries are permanent, then
The plaintiff took an exception to the charge to the jury and argued that the “defendants’ counsel’s emphasis [that] any future economic award is based on speculation, I think reinforces the need for [the proposed charge] on future economic damages.” The court noted the plaintiffs exception.
The jury returned a verdict in the amount of $11,000 in economic damages and $10,000 in noneconomic damages. The plaintiff filed a motion to set aside the verdict, which was denied by the court on December 19, 2002. This appeal followed. Additional facts will be set forth as necessary.
We first set forth the well established standard of review for a challenge to the propriety of a jury instruc
The plaintiff claims that the court improperly charged the jury on the issue of calculating medical expenses. Specifically, the plaintiff argues that the court should have included her request to charge and that in failing to do so, the court did not properly instruct the jury on calculating future medical expenses. The plaintiff asserts that her request to charge was particularly necessary because “(1) no expert opined a specific prediction as to estimated costs of future treatment; (2) the defendants argued that the plaintiffs suggested award for future treatment, which was based upon the prior treatment expenses, was pure speculation; [and] (3) the court specifically instructed the jury that [it] should be careful to avoid resorting to sympathy, speculation, conjecture or guesswork — under the guise of relying on circumstantial evidence — in order to determine critical facts in the case.” We disagree.
“A request to charge [that] is relevant to the issues of [a] case and [that] is an accurate statement of the law must be given. . . . However, [instructions to the jury need not be in the precise language of a request.”
The plaintiff argues that Marchetti v. Ramirez, 240 Conn. 49, 688 A.2d 1325 (1997), is the applicable law on future medical damages and that the court failed to instruct the jury in accordance with that law. She specifically relies on the following language: “[I]t is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date . . . .” (Internal quotation marks omitted.) Id., 55. We note, however, that the quoted language is limited by the following phrase: “when there is also a degree of medical certainty that future medical expenses will be necessary. " (Emphasis in original; internal quotation marks omitted.) Id.; Hamernick v. Bach, 64 Conn. App. 160, 170, 779 A.2d 806 (2001) (quoting Marchetti for proposition that it is not speculation to calculate future medical expenses on basis of past medical expenses “ ‘when there is also a degree of medical certainty that future medical expenses will be necessary' " [emphasis in original; internal quotation marks omitted]). The plaintiff further argues that Marchetti provides that “[f]uture medical expenses do not require the same degree of certainty as past medical expenses”; (internal quotation marks omitted) Marchetti v. Ramirez, supra, 55; and that the “cost and frequency of past medical treatment
The plaintiff correctly notes that the court must adapt the law of Marchetti to the present case and provide the jury with guidance in reaching the correct result. See Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn. App. 306, 312, 819 A.2d 844 (2003). Looking at the charge in its entirety, we are not persuaded that the court failed to provide the jury adequate guidance to reach the right result. There was evidence that although the plaintiff suffered a permanent injury and future medical care likely would be necessary, she did not seek medical treatment from November, 1999, to October, 2002, one week prior to the trial.
The court instructed the jury that economic damages include, but are not limited to “the cost of reasonable medical care, chiropractic care, rehabilitation services, X rays, [magnetic resonance imaging] and so on. With respect to this case, it consists of medical bills in the amount of $10,339.02. You may award these damages
The judgment is affirmed.
In this opinion the other judges concurred.
Passaro offered the following testimony, in relevant part, regarding the plaintiffs injuries: “[The plaintiff] had a 9 percent permanent partial whole person impairment as it relates to the cervical spine as it relates to the neck. . . . [I]n terms of her knee . . . it’s a mild impairment, but it does equate to a 4 percent whole person, 10 percent lower extremity impairment . . . .”
The parties were provided with a written copy of the charge. Discussion about the charge between the plaintiffs counsel and the court occurred, in relevant part:
“[The Plaintiffs Counsel]: The second paragraph, which is certainly appropriate.
“The Court: Yes.
“[The Plaintiffs Counsel]: Says you should be careful not to resort to speculation, conjecture or guesswork. I think my proposed charge, ‘It is not speculation to base a future economic claim using the past medical expenses as a yardstick,’ is really necessary because I think without that, [the jury] might believe what I am doing is speculation when I propose . . .
“The Court: Okay. What else did you want to bring to my attention?”
Although the plaintiff did not include that language in her brief, she did include it in her proposed request to charge.