214 Conn. 523 | Conn. | 1990
The plaintiff, Emery J. Vajda, brought this action for damages resulting from injuries and losses he sustained when a motorcycle he was operating collided with an automobile operated by the defendant Diane M. Tusla (defendant).
The defendant thereafter filed a motion to set aside the verdict alleging a number of errors by the trial
The defendant focuses on the following portion of the plaintiff’s argument: “Nobody pays for pain. Now how do you measure what he should get because he has pain? You see the problem? It’s a problem. It’s difficult, difficult. The only thing you’ll notice in this case, you’ll notice when you go through the bills, that Jimmy has incurred One Thousand Eight Hundred Dollars ($1,800) for anesthesiology. And you’ll see that what he’s incurred is a hundred and fifty dollars ($150) an hour on one bill to be relieved of pain. That’s about the only time, I guess, if you think about it, that we sort of measure the value of pain and suffering, because I think all of us, whether it’s going to the dentist or having an operation, or perhaps buying some sort of pain medication. But generally, when you look at those bills, that’s about the only time that we sort of pay to be free from pain and suffering.”
The plaintiff’s counsel responded, arguing “I don’t believe that the [Supreme Court] decision says that you cannot mention pain . . . [and] suffering . . . .’’In further response to the defendant’s argument that his comments equated $150 an hour to one hour’s worth of pain, plaintiff’s counsel continued stating that the fact is “[t]he stuff is in evidence, and there’s a three hundred and eleven dollar ($311.00) bill for two hours of anesthesia.” Maintaining that he did not think of it
The defendant’s counsel, in reply, stated that what the plaintiff’s counsel “was trying to do was to subliminally inject into [the jury] what an hour’s worth of pain is worth,” and he repeated that this was why this court ruled in Carchidi and Pool as it did. In further attacking these comments of the plaintiff’s counsel, he again argued that “an hour’s worth of surgery is not the same thing” as one hour’s worth of pain. To support further his claim that the plaintiff was “suggesting [to the jury] what they should do in the area of damages,” he referred to the comment by the plaintiff during argument that, based upon the plaintiff’s stipulated life expectancy of 45.7 years,
At the outset of its final jury instructions, the trial court admonished the jury that “in deciding this case, you must only consider that information which was admitted as evidence in this courtroom.” On the issue of damages as to physical and mental pain and suffering, the trial court charged, inter alia: “The rule of damages is that insofar as money can do it, the Plaintiff is to get fair, just and reasonable compensation for the injuries which he has suffered. It is for you, ladies and gentlemen, in the exercise of your best judgment, to say what is fair and just compensation. You have to apply sound common sense in reaching the amount of your verdict. There is no mathematical formula, no formula, other than by human experience; and the exercise of your best judgment of what is fair and just compensation. . . . You must not speculate or guess as to damages. You must bear in mind at all times that the burden is on the Plaintiff to prove that [it] was a proximate consequence or the result of the incident which caused the injuries; and to prove the reasonable amount of his damages.” The trial court thereafter told the jury that the elements of damages could be separated into two major categories: the first from the date of injury on June 29,1984, to the date of the trial, and the second, as to the future. As to the former, it told
Turning to damages for the future, the trial court said, inter alia: “As for the future, you must as best you can, compensate him for such results as are reasonably probable. Once this case is concluded, the Plaintiff cannot come back into Court and — in the future for additional damages against the Defendant for the incident in question. So any award to which he is entitled for the future, must be given to him now. Future damages are not a matter of speculation. It is not a matter of guesswork. You must be satisfied with a reasonable degree of certainty that the result which you are attempting to compensate him for is reasonably probable.” The jury was also instructed that it “must determine for how long into the future [the plaintiff] will suffer these damages.” Here, it referred to the evidence that the plaintiff had “sustained a twenty-five percent
Thereafter, the trial court also said: “In determining damages for the future, you should consider the physical pain and suffering he will endure, and the effects it will have on his daily activities. I realize that, for the future, this is even more difficult to evaluate than it was for that which has occurred before trial. However, you must award a fair, just, and reasonable sum for this aspect of the case, taking into consideration, where applicable, what I’ve had to say about these elements of damages for the period prior to trial.” After it had concluded its charge on damages, the court said: “[Cjounsel [have] commented on some of the evidence in their summations. I wish to stress to you that you are the sole judges of the facts. And if [your] recollection of the facts differs from mine or that of the attorneys, it is your recollection that controls.”
After the trial court had instructed the jury, the defendant’s counsel took the following exception: “I had requested yesterday at the conclusion of Attorney Tremont’s remarks, that Your Honor issue some sort of a supplemental charge or instruction to the jury that counsel’s mentioning of the one hundred and fifty dollar ($150.00) an hour figure was not to be considered by them in terms of evaluating an hour’s worth of pain and suffering.
“First, because I believe it violated Carchidi v. Rodenhiser and Pool v. Bell; both of which came down about a week or two ago.
“And secondly, because I believe it was misleading for him to say that one hundred and fifty dollars ($150.00) an hour is what the marketplace, so to speak, has put on an hour’s worth of pain and suffering, when
In its memorandum of decision on the defendant’s motion to set aside the verdict, the trial court addressed the defendant’s claim that it had erred “by allowing plaintiff’s counsel to comment in final argument on the hourly rate an anesthesiologist charged in the context that those comments were made.” It noted the defendant’s argument that “Connecticut law prohibited [the plaintiff’s counsel] from suggesting a monetary figure to the jury which he believed they should award for damages; Carchidi v. Rodenhiser, [supra,] 530; [or] a monetary formula. Pool v. Bell, [supra,] 539.” Continuing, it also noted that during the plaintiff’s counsel’s argument he “proceeded to discuss the nature of pleasure by making reference to such things as attending the theater,
On appeal, the defendant claims that the excerpted portion of the plaintiffs summation is in direct contravention of our holdings in Carchidi and Pool. Here she claims that the challenged comments fall directly within the prohibitions of these decisions, particularly pointing to Pool, where we said that because we had concluded in Carchidi that counsel may not argue the pecuniary value of a plaintiff's personal injuries by suggesting specific sums to be awarded for such intangibles as pain and related disability, “it necessarily follows that counsel may not indicate the monetary components used to arrive at the sums suggested for such elements of damages.” Pool v. Bell, supra, 539; see Carchidi v. Rodenhiser, supra.
Damages may be awarded for pain and suffering, past, present and future, resulting from the injuries so long as the evidence affords a basis for a reasonable estimate by the trier of fact of the amount. Levin
It is against this background that we decided Carchidi and Pool, both of which are factually distinguishable from this case. In Carchidi, we held that counsel could not, during closing argument, “state to the jury his belief as to the pecuniary value of the plaintiff’s personal injury claim . . . because [to do so] improperly influences the jury in arriving at a verdict.” Carchidi v. Rodenhiser, supra, 526-27.
In discussing our determination that Carchidi was not violated, we should point out that, in Pool, we noted that our holding in Carchidi was applicable to both types of arguments, whether based on a “lump sum” or on a mathematical formula. Moreover, in Pool, we commented upon the distinction we drew in Levin v. Ritson, supra, “between suggesting a sum to be awarded for pain and suffering and using a mathematical formula based on speculative factors.”
The challenged argument did not mention or suggest the sum to be awarded to the plaintiff for pain and
In the context of the defendant’s claim that the argument violated our case law, it is important to keep in mind the effect of this argument upon the jury whose province as factfinders was thereby allegedly intruded upon. This jury had seen and heard all of the evidence including the testimony of the plaintiff, his girl friend and the medical expert concerning, inter alia, pain and suffering. It also had the exhibits, including medical and hospital records, and, in addition, the evidence on the plaintiff’s life expectancy. Not only must the jury’s knowledge of the evidence be factored into assessing
The defendant’s claim that the argument was misleading
Moreover, the trial court instructed the jury that “in deciding this case, you must only consider that information which was admitted as evidence in this courtroom.” It is axiomatic that arguments of counsel are not evidence. We subscribe to the view that, absent a contrary showing, “[w]e cannot attribute to any jury in this state a lack of sufficient mentality to distinguish between the two.” Jones v. Hogan, 56 Wash. 2d 23, 31-32, 351 P.2d 153 (1960); see Newbury v. Vogel, 151 Colo. 520, 527, 379 P.2d 811 (1963); Evening Star Newspaper Co. v. Gray, 179 A.2d 377, 382 (D.C. Mun. Ct. App. 1962). In addition, “[t]he legal presumption is that jurors will do their duty according to their oaths.” Winters v. Floyd, 51 Tenn. App. 298, 306, 367 S.W.2d 288 (1962); 29 Am. Jur. 2d, Evidence § 170.
There is no error.
In this opinion the other justices concurred.
When this action was instituted, Anthony A. Tusla, Jr., the father of Diane M. Tusla and the owner of the motor vehicle that she was operating at the time of the accident, was also named and served as a party defendant. Thereafter, the action was withdrawn as to Anthony A. Tusla, Jr.
The anesthesia bill in evidence which was referred to was the following:
“Mr. James Vajda
245 Seltsam Road
Bridgeport, CT 06606
This Bill is for Anesthesia Services and is Separate from Hospital and Surgeons Fee.
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There was expert testimony that the plaintiff had sustained a 25 percent permanent disability to his forearm.
During his argument, the plaintiff’s counsel said: “Now, for all those years, if he lives that long, five hundred and forty months in the future. For all those months and years, you’ve got to give him compensation for each and every day and each and every hour that he has this disability.”
An acknowledged authority on the law of damages said: “Translating pain and anguish into dollars can, at best, be only an arbitrary allowance, and not a process of measurement, and consequently the judge can, in his instructions, give the jury no standard to go by; he can only tell them to allow such amount as in their discretion they may consider reasonable. Rules devised for measuring pecuniary losses do not fit here.” C. McCormick, Damages (1975) § 88, p. 318; see also 2 F. Harper & F. James, The Law of Torts (2d Ed.) § 25.10, p. 564.
This recognizes that rarely is pain constant over the entire life expectancy of a plaintiff and that even if the evidence indicated that that was so, the common sense of jurors would also recognize as well that the inten
Immediately prior to the comments upon which the defendant fbcuses, the plaintiffs counsel, without objection, said: “And, again, we all know how to buy pleasure, you know? You want to spend four or five dollars ($4.00 - $5.00) and go to a movie; you want to spend fifty or seventy-five dollars ($50.00 - $75.00) I guess, today, to go to a play in New York; you want to spend two or three dollars ($2.00 - $3.00) to have a drink; whatever it is. If you want to spend a thousand dollars ($1,000.00) to go on a vacation. Whatever it is, people know how to buy pleasure. We’re willing to pay for pleasure.”
The record indicates that all the medical, hospital and other out-of-pocket expenses, which were introduced as exhibits, totaled approximately $32,000.
Here, the trial court said: “In Carchidi [v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1989)], the court found objectionable counsel’s argument ‘that the plaintiff was entitled to an award of $25,000.00 for pain and suffering, and that, when this amount is combined with other elements of damages, the plaintiff was entitled to a total award of $30,000.’ 209 Conn, at 527; and in Pool [v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989)], the court ordered a new trial when the plaintiff argued a number of days times an assigned value for each element of damage. 209 Conn, at 537-38. Neither [of] the arguments in Carchidi and Pool [was] similar to those in this case.”
In doing so, we overruled Levin v. Ritson, 179 Conn. 223, 425 A.2d 1279 (1979), to the extent that granting or denying counsel’s request to so argue to the jury was a decision left to the discretion of the trial court. Carchidi v. Rodenhiser, 209 Conn. 526, 530, 551 A.2d 1249 (1989).
In Carchidi v. Rodenhiser, 209 Conn. 526, 527, 551 A.2d 1249 (1989), during closing argument, “counsel for [Carchidi] suggested to the jury that
In Pool v. Bell, 209 Conn. 536, 537-38, 551 A.2d 1254 (1989), [o]n the blackboard, counsel for the plaintiff set out six categories of damages: medical expenses, pain and suffering, mental distress, permanent disability, loss of ability to do household duties, and loss of enjoyment of activities. The plaintiff’s counsel then assigned a dollar value to each item of damages and multiplied each amount, except medical expenses, by 15,178, the number of days corresponding to the period from the date of the operation to the probable date of the plaintiff’s death, based upon his 37.3 year life expectancy at the time of trial. The totals for each category were then added for a grand total of $345,851, which counsel for the plaintiff told the jury was a fair amount to award the plaintiff. In Pool, we noted, by way of example, that the plaintiff’s counsel assigned a value of $10 per day for future pain and suffering, $5 per day for permanent disability, and $1 per day for the loss of ability to do household duties.
After the publication of our decisions in Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1989), and Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989), the General Assembly enacted Public Acts 1989, No. 89-319. That act, entitled “An act concerning the award of damages to victims of civil wrongs,” provides: “(a) In any civil action to recover damages resulting from personal injury or wrongful death, counsel for any party to the action shall be entitled to specifically articulate to the trier of fact during closing arguments, in lump sums or by mathematical formulae, the amount of past and future economic and noneconomic damages claimed to be recoverable.
“(b) Whenever, in a jury trial, specific monetary sums or mathematical formulae are articulated during closing arguments as provided for in subsection (a) of this section, the trial court shall instruct the jury that the*535 sums or mathematical formulae articulated are not evidence but only arguments and that the determination of the amount of damages to be awarded, if any, is solely the jury’s function.”
Public Acts 1989, No. 89-319 became effective on October 1,1989, and, therefore, was not in effect at the time of the verdict in this case, which was returned on January 13, 1989.
Because of the applicability of Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1989), to this distinction in Levin v. Ritson, 179 Conn. 223, 425 A.2d 1279 (1979), we concluded in Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989), that “we need not decide whether our holding in Levin v. Ritson, left the use of mathematical formulae in closing argument to the discretion of the trial court, as that question is now academic.” Pool v. Bell, supra, 539-40.
We disagree with the plaintiffs statements in the absence of the jury, after his argument that suggests that, because the anesthesiologist’s bill was in evidence as an exhibit, that accords him some unusual right as to the parameters of comments he can make concerning it during argument.
In a case where a trial court permitted a per diem argument as to damages (and where no blackboard or charts were used), an appellate court