57 Conn. App. 134 | Conn. App. Ct. | 2000
Opinion
The plaintiff, Mary L. Card, appeals from the trial court’s judgment setting aside a jury verdict that had been returned in her favor. On appeal, the plaintiff claims that (1) the court improperly ruled that an expert witness’ opinion on apportionment of damages should have been excluded as speculative and (2) even if the expert testimony should have been excluded, the verdict should stand because the defendant is jointly and severally liable to the plaintiff. We affirm the judgment of the trial court.
The following facts and procedural history are relevant to the resolution of this appeal. On July 31, 1992,
The plaintiff then filed separate actions against the defendant, Faman and the state of Connecticut, and the driver in the third accident. In all of her complaints, the plaintiff alleged that the accidents were caused by the defendants’ negligence in operating their motor vehicles. The plaintiff settled her claim against the driver of the car in the third accident prior to trial, and the court thereafter granted the plaintiffs motion to consolidate the remaining two cases for trial.
During the trial, Zeppieri testified as an expert witness for the plaintiff on the issues of causation and apportionment of her injuries. Zeppieri testified that while each of the three accidents was a substantial
The court allowed the jury to consider the testimony of both experts regarding causation and apportionment of damages. The jury rendered separate verdicts in favor of the plaintiff, and awarded $33,333.34 in noneconomic damages against the defendant and $33,333.34 in non-economic damages against the state and Faman.
The defendant and the state both filed separate motions to set aside the verdicts, claiming that the court should not have allowed the plaintiff to offer the testimony of Zeppieri when his testimony was speculative and without a factual or scientific basis. The court granted the motions to set aside the verdicts. In its memorandum of decision on the motions to set aside the verdicts, the court noted that “Zeppieri gave no basis for his conclusion that each accident contributed equally to the plaintiffs permanency other than his inability to apportion causation. His conclusion is, therefore, conjecture and surmise. The jury accepted Zeppieri’s conclusion as indicated by its award to the plaintiff of exactly the same noneconomic damages against the state and against Castodio. Accordingly, the verdict must be set aside and a new trial ordered.” The plaintiff appeals from the court’s decision to set aside the verdict against the defendant Castodio.
The plaintiff claims first that the court’s decision to set aside the verdict should be reversed because the court applied an incorrect legal standard in ruling that Zeppieri’s opinion on apportionment of the injuries should have been excluded as speculative. We disagree.
“We review the trial court’s action in granting or denying a motion to set aside a verdict by an abuse of discretion standard. State v. Hammond, 221 Conn. 264, 270, 604 A.2d 793 (1992). A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied. Maroun v. Tarro, 35 Conn. App. 391, 396, 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 164 (1994).” Connecticut National Bank v. D’Onofrio, 46 Conn. App. 199, 214—15, 699 A.2d 237, cert. denied, 243 Conn. 926, 701 A.2d 657 (1997).
“Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . State v. Borrelli, 227 Conn. 153, 165, 629 A.2d 1105 (1993) . . . .” (Internal quotation marks omitted.) State v. Grenier, 55 Conn. App. 630, 639, 739 A.2d 751 (1999), cert. granted on other grounds, 252 Conn. 931, 746 A.2d 794 (2000). “In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.” (Internal quotation marks omitted.) Madison Hills Ltd. Partnership II v. Madison Hills, Inc., 35 Conn. App. 81, 93, 644 A.2d 363, cert. denied, 231 Conn. 913, 648 A.2d 153 (1994). “[Ejxpert opinions must be based on reasonable probabilities rather than mere speculation or conjecture if they are to be admissible . . . . To be
Zeppieri testified that each accident contributed substantially to the plaintiffs permanent injury on the basis of the fact that the second and third accidents aggravated the injuries caused by the first accident. Because the accidents happened within such a short time of each other, Zeppieri was unable to state with reasonable medical certainty that the disability from the first accident was more or less than the disabilities resulting from the other two accidents. In response to a question by the plaintiffs counsel on how to apportion fairly her present disability, Zeppieri testified: “My rationale in making a judgment is that we have three separate injuries, each of which was a substantial contributor to the total permanency. The most—there is no way to apportion precisely with any greater degree of certainty than we are doing. It’s reasonable to say that each contributed equally to the ultimate outcome for this patient.” Zeppieri further testified that he made that statement with reasonable medical certainty and that it was not a guess.
There is no dispute that Zeppieri was qualified to testily as an expert witness as to the cause and contributing factors of the plaintiffs injury. Zeppieri’s opinion on apportioning the disability equally, however, is based on his inability to apportion the disability with reasonable medical certainty. Although Zeppieri testified that his opinion was correct because no one else could reasonably apportion the damages other than what he suggested, there is no factual basis supporting his opinion to divide the injury equally among the three accidents other than his inability to apportion the damage. We therefore conclude that the court properly found that Zeppieri’s testimony on apportionment of damages was speculation.
II
The plaintiff claims that even if it was correct to exclude Zeppieri’s opinion on apportionment, the court improperly granted the motion to set aside the verdict because the defendant is jointly and severally hable to the plaintiff when the injury cannot be apportioned. The defendant claims that he is not jointly and severally liable. Rather, he claims that when liability cannot be apportioned, the final tortfeasor, who takes the victim as he finds her, should be liable for all of the plaintiffs injuries. We disagree with both parties.
General Statutes § 52-572h (c) now provides in relevant part: “In a negligence action to recover damages resulting from personal injury ... if the damages are
Our resolution of this claim is guided by well established rules of statutory construction. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).” (Internal quotation marks omitted.) Bhinder v. Sun Co., supra, 246 Conn. 230-31. “We also note the rule of statutory construction that statutes in derogation of common law should receive a strict construction and [should not] be extended, modified, repealed or enlarged in [their] scope by the mechanics of construction. Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 581, 657 A.2d 212 (1995).” (Internal quotation marks omitted.) Bhinder v. Sun Co., supra, 231.
The plaintiff claims that § 52-572h is in derogation of the common law and, because the statute is silent on the issue of inability to apportion negligence among
While one of the purposes of the enactment of § 52-572h was to protect one codefendant from paying the entire judgment at the claimant’s option, “[t]he legislative history of [Public Acts 1987, No.] 87-227 also indicates that the legislature intended to maximize the plaintiffs ability to recover damages from the parties whose negligence caused his injuries.” Babes v. Bennett, supra, 247 Conn. 270. This is true even where a defendant has to bear more than his share of the damages due to the insolvency of another defendant. Id., 271; see General Statutes § 52-572h (g) (1).
In the rare case where damages cannot be apportioned between two or more accidents, the plaintiff who can prove causation should not be left without a remedy. One judicial response to situations in which a jury is unable to make even a rough apportionment of damages is to apportion damages equally among the various accidents. See Loui v. Oakley, 50 Haw. 260,
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiff brought separate actions against the defendant John J. Castodio, Jr., and the defendant state of Connecticut et al. stemming from separate automobile accidents. The cases were consolidated, and the jury returned verdicts against the defendants’ in both cases. The court granted a motion to set aside the verdict in each case, and the plaintiff appealed. The plaintiffs appeal was withdrawn as against the state, and her appeal is now directed at the allegedly improper granting of Castodio’s motion to set aside the verdict against him. We refer in this opinion to Castodio as the defendant.
The action against Faman was withdrawn postverdict.
The plaintiff withdrew her appeal as to the state.
“With the enactment of the Tort Reform Act of 1986; Public Acts 1986, No. 86-338, § 3, codified in part under General Statutes (Rev. to 1987) § 52-572h; the legislature adopted comparative negligence principles for negligence actions. Those tort reform provisions were later amended by Public Acts 1987, No. 87-227, § 3.” Babes v. Bennett, supra, 247 Conn. 266-67 n.7.
General Statutes § 52-572h provides in relevant part: “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only lor his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.
“(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (1) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction.
“(e) In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.
“(f) The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court, to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose
“(g) (1) Upon motion by the claimant to open the judgment filed, after good faith efforts by the claimant to collect from a liable defendant, not later than one year after judgment becomes final through lapse of time or through exhaustion of appeal, whichever occurs later, the court shall determine whether all or part of a defendant’s proportionate share of the recoverable economic damages and recoverable noneconomic damages is uncollectible from that party, and shall reallocate such uncollectible amount among the other defendants in accordance with the provisions of this subsection. (2) The court shall order that the portion of such uncollectible amount which represents recoverable noneconomic damages be reallocated among the other defendants according to their percentages of negligence, provided that the court shall not reallocate to any such defendant an amount greater than that defendant’s percentage of negligence multiplied by such uncollectible amount. (3) The court shall order that the portion of such uncollectible amount which represents recoverable economic damages be reallocated among the other defendants. The court shall reallocate to any such other defendant an amount equal to such uncollectible amount of recoverable economic damages multiplied by a fraction in which the numerator is such defendant’s percentage of negligence and the denominator is the total of the percentages of negligence of all defendants, excluding any defendant whose liability is being reallocated. (4) The defendant whose-liability is reallocated is nonetheless subject to contribution pursuant to subsection (h) of this section and to any continuing liability to the claimant on the judgment. . . .
“(n) A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon tire same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section.”