44 Conn. App. 641 | Conn. App. Ct. | 1997
The plaintiff appeals from the judgment rendered on the jury’s verdict following a hearing in damages, claiming that the trial court improperly (1) granted the defendants’ motion in limine to exclude certain of the plaintiffs medical records, (2) denied his motion to set aside the verdict and to order an additur or a new trial, (3) denied his motion for a special finding and (4) failed to give a Secondino charge.
The following facts are relevant to this appeal. On October 12, 1989, the plaintiff in this personal injury action was a passenger in a van owned by the defendant state and operated by the defendant James Todd. The department of correction van was being used to transport prisoners, including the plaintiff. As the van proceeded south on Main Street in Hartford, it collided with the rear of a vehicle stopped for a red traffic signal at the intersection of Main and Gold Streets, allegedly causing injuries to the plaintiff. The plaintiff sought
The defendants served interrogatories and requests for production on the plaintiff on February 26,1991. The plaintiff responded on December 20, 1991, providing medical records of the department of correction from October 19 through November 29, 1989, as well as an authorization for the release of medical records relating to the plaintiff. The plaintiff subsequently executed additional authorization on a form apparently provided to the defendants by the department of correction.
The state conceded liability and the matter was heard by a jury as to damages only. At the hearing in damages, the plaintiff sought to introduce records subsequent to November 29, 1989. The defendants filed a motion in limine seeking the exclusion of those records, claiming that they should not be admitted because the plaintiff had failed to meet his continuing duty to disclose with respect to those records pursuant to Practice Book § 232. The trial court granted the defendants’ motion in limine.
The jury granted the plaintiff $5500, $500 in economic damages and $5000 in noneconomic damages. The plaintiff moved to set aside the verdict, for an additur and for a new trial on damages only. The plaintiffs motion was denied by the trial court. This appeal ensued.
I
The plaintiff challenges the granting of the motion in limine that precluded him from introducing any medical
Section 232 provides that “[i]f, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested and ordered subject to discovery or inspection ... he shall promptly . . . file and serve in accordance with Sec. 120 a supplemental or corrected compliance.” Section 231 provides that “[i]f any party has failed ... to comply with the provisions of Sec. 232 . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following . . . (d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence . . . .”
We need not determine whether the quoted rules of practice apply in this case. “It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which wasprobably harmful to him.” (Emphasis added; internal quotation marks omitted.) Sadloski v. Manchester, 235 Conn. 637, 645, 668 A.2d 1314 (1995); 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 60 (i), p. 385. We conclude that the plaintiff has failed to meet the burden of demonstrating that the exclusion of the records was probably harmful.
The plaintiff argues that Powers’ deposition testimony, in which he testified that the plaintiff was fully recovered, might have been refuted by the excluded records. He claims that those records contained numerous findings, made subsequent to Powers’ discharge of
II
The plaintiff next claims that the trial court improperly denied his motion to set aside, for an additur and for a new trial. The basis of this claim apparently is an assertion that the award of $5500 is inadequate as a matter of law because his hospital bills for treatment of injuries allegedly sustained in the accident amounted to $364.36 and his physicians’ bills totaled $4533.50.
“We accord great deference to a jury’s award of damages. Litigants have a constitutional right to have factual
“The trial court’s refusal to set aside the verdict or to order an additur is entitled to great weight and every reasonable presumption should be given in favor of its correctness. In reviewing the action of the trial court in denying the motions for additur and to set aside the verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict they did. The trial court’s decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. . . . The only practical test to apply to a verdict is whether the award of damages falls somewhere within the neces
In the present case, the nature and extent of the plaintiffs injuries were hotly contested. The plaintiffs treating physicians, Shifreen and Powers, disagreed as to the existence of any permanent disability attributable to this accident. Powers found no permanency, although he was aware of subsequent incidents befalling the plaintiff, including that he had fallen in the shower, had been hit over the head and had had a jail gate close on him. We conclude that the jury could have reasonably concluded that the plaintiff was entitled to only $5500 in damages.
“ ‘The existence of conflicting evidence limits the court’s authority to overturn a jury verdict. The juiy is entrusted with the choice of which evidence is more credible and what effect it is to be given. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 58, 578 A.2d 1054 (1990).’ Skrzypiec v. Noonan, supra, 228 Conn. 11. ‘From the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury.’ Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972).” Childs v. Bainer, supra, 235 Conn. 116-17. There was ample evidence in the record tending to support the jury’s verdict, and the verdict, therefore, did not shock the sense of justice.
“We have previously determined that a juiy may award a plaintiff less than the claimed special damages. Rickert v. Fraser, 152 Conn. 678, 211 A.2d 702 (1965).
We affirm the trial court’s refusal to set aside the verdict and to order an additur.
Ill
The plaintiff also claims that the trial court improperly denied his motion for a finding of vexatious defense pursuant to General Statutes § 52-226a. The plaintiff maintains that the state’s admission of negligence shortly before the hearing in damages violated that statute.
Section 52-226a provides in pertinent part: “In any civil action tried to a jury, after the return of a verdict and before judgment has been rendered thereon . . . the prevailing party may file a written motion requesting the court to make a special finding to be incorporated in the judgment or made a part of the record, as the case may be, that the action or a defense to the action was without merit and not brought or asserted in good faith. ...”
“[W]e have declined to uphold awards under the bad-faith exception absent both clear evidence that the chai
The record before us does not indicate that any evidence was presented to the trial court to demonstrate that the defense raised by the defendants prior to trial was “entirely without color and [raised] for reasons of harassment or delay or for other improper purposes,” nor does it indicate that any motion for articulation was filed pursuant to Practice Book § 4051.
We conclude that “[w]ithout the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Cohen v. Cohen, 41 Conn. App. 163, 169, 674 A.2d 869 (1996).
We affirm the trial court’s denial of the plaintiffs motion for a finding of vexatious defense.
IV
Finally, the plaintiff claims in his brief that the trial court improperly failed to instruct the jury that it could draw an adverse inference from the failure of the defendants to introduce records of the department of correction or to call as witnesses any of the medical personnel who allegedly examined him during his periods of incarceration.
“A party, however, is not entitled to receive such an instruction in all circumstances. To have the jury charged on the rule, the party claiming the benefit of it must show that he is entitled to it. . . . [T]he trial court must make a preliminary determination that there is evidence in the record to support these elements.” (Citations omitted; internal quotation marks omitted.) Hines v. St. Vincent’s Medical Center, 232 Conn. 632, 637-38, 657 A.2d 578 (1995).
“A possible witness whose testimony is for any reason comparatively unimportant, cumulative or inferior to what has been offered should be dispensed with on the general ground of expense and inconvenience, without anticipation that an inference may be invoked.” (Internal quotation marks omitted.) State v. Alfonso,
Our review of the record and transcripts indicates that the testimony and medical records at issue would not have constituted peculiar or superior information material to the case, and we have concluded in part I of this opinion that the information therein would have been cumulative at best. We conclude that the plaintiff has not demonstrated that he was entitled to the requested charge.
The judgment is affirmed.
In this opinion the other judges concurred.
See Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960).