Viera v. CohenViera v. Cohen
Lead Opinion
Opinion
In this mеdical malpractice action, the defendant Thomas McNamee appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Fred Baker, guardian of the estate of the injured minor, Jodee Viera (Jodee).
The record reveals the following undisputed facts and procedural history. The defendant is an obstetrician working with the practice group of Associated Women’s Health Specialists, P.C. (Associated Health). The defendant attended to Jodee’s mother, Leslie Aponte, during Aponte’s pregnancy beginning in November, 1994, and through May, 1995, and during the early stages of her labor on May 25, 1995, at Waterbury Hospital. The defendant left during the second stage of Aponte’s labor and thereafter was unavailable. Ian Cohen, another obstetrician affiliated with Associated Health, attended to Aponte during the final stages of labor and delivery. During that delivery, an obstetrical emergency occurred, known as shoulder dystocia, wherein the infant’s head delivers, but partly retracts because the baby’s shoulders become lodged, requiring delivery of the child within minutes to avoid risk of neurological injury or death. See generally T. Stedman, Medical Dictionary (28th Ed. 2006) p. 602. As a result of the shoulder dystocia during her birth, Jodee sustained an injury to her brachial plexis, a network of nerves in the neck, leaving her with a permanent injury affecting her upper left extremities.
On August 22, 1997, Aponte and Joseph Viera, Jodee’s father, commenced this medical malpractice action against the defendant, Cohen, Associated Health and Waterbury Hospital. In November, 2003, they withdrew the claim against Waterbury Hospital. In December, 2003, Baker was substituted as the plaintiff to represent Jodee’s interests.
On December 16, 2004, during jury selection, the plaintiff withdrew the claims against Cohen and Associated Health. On January 20, 2005, the defendant filed a notice of claim of apportionment as to the withdrawn defendants, Cohen, Associated Health and Waterbury Hospital. In response, the plaintiff filed a motion in limine seeking to preclude the defendant from introducing, inter alia, any evidence for the purposes of establishing fault against the withdrawn defendants. After argument on the motion, the trial court rendered an oral decision granting the plaintiffs motion, thereby foreclosing the defendant from seeking apportionment.
Thereafter, the plaintiff filed an amended complaint alleging, in essence, that the defendant had breached the standard of care by failing: to assess properly Aponte’s risk factors for shoulder dystocia; to diagnose timely the problems during Aponte’s labor that indicated a risk of shoulder dystocia; and, finally, to perform a cesarean section to prevent the injuries ensuing from shoulder dystocia. The jury rendered a verdict in favor of the plaintiff, and awarded $948,692 in economic damages and $1.5 million in noneconomic damages. The court denied the defendant’s motion to set aside the verdict and thereafter rendered judgment in accordance with the verdict. This appeal followed.
The defendant claims that the trial court improperly: (1) prevented him from pursuing an apportionment complaint against Cohen; (2) prevented the jury from considering an alternative theory as to the cause of the shoulder dystocia; (3) submitted to the jury misleading and improper interrogatories; and (4) concluded that it had personal jurisdiction over the defendant.
I
The defendant claims that he was entitled to seek apportionment pursuant to
At the outset, we note that, “[b]ecause statutory interpretation is a question of law, our review is de novo.” Andover Ltd. Partnership I v. Board of Tax Review,
We begin our analysis with a brief review of the evolution of tort law in this state regarding the apportionment of damages among multiple tortfeasors. “Prior to October 1, 1986, this state followed the rules of joint and several liability with no contribution among joint tortfeasors. Stated briefly: If the illegal conduct of each of the defendants was a proximate
“Under the common law of joint and several liability, therefore, even a defendant whose degree of fault was comparatively small could be held responsible for the entire amount of damages, so long as his negligence was a proximate cause of the plaintiffs injuries. Thus, the plaintiff could collect thе entire amount of his judgment from the richest defendant, or from the defendant with the deepest pocket. ... Id., 667.
“In response largely to these concerns, the legislature undertook to reform the tort recovery provisions of our civil system, by enacting No. 86-338 of the 1986 Public Acts (Tort Reform I), which took effect October 1,1986. Tort Reform I replaced the common-law rule of joint and several liability with a system of apportioned liability, holding each defendant hable for only his or her proportionate share of damages. Specifically, § 3 (f) of Tort Reform I provided that each defendant initially would be hable for only that percentage of his negligence that proximately caused the injury, in relation to [100] per cent, that is attributable to each person whose negligent actions were a proximate cause of the damages .... Therefore, under Tort Reform I, the jury, in determining the percentage of negligence attributable to any defendant, could take into account the negligence of any other person, regardless of whether that person was a party to the action. Tort Reform I, however, did not provide the plaintiff with a means of securing payment of damages unless that person was also a party. Donner v. Kearse, supra,
“Under Tort Reform I, to avoid the possibihty that a jury would find that the neghgence of a nonparty was aproxímate cause of [the plaintiffs] injuries, [the] plaintiff was required to name as defendants all persons whose actions suggested even the slightest hint of negligence. The unwanted practical effect, therefore, was that plaintiffs were required to pursue claims of weak liability against third parties, thereby fostering marginal and costly litigation in our courts. . . .
“The legislature amended these tort recovery provisions just one year later when it enacted No. 87-227 of the 1987 Public Acts (Tort Reform II), the pertinent provisions of which now are codified in part under
In sum, in substantially revising and rewriting
Nonetheless, “Tort Reform II overlooked [certain] significant details required to implement effectively the newly created fault apportionment system. . . . Among other things, Tort Reform II did not specify the procedure to be used in asserting an apportionment claim. ... To remedy this and other problems, the legislature, in 1995, enacted [General Statutes] § 52-102b,
Against this legislative landscape, we must now examine what constitutes “[a] release, settlement or similar agreement entered into by a claimant” pursuant to
In addressing the defendant’s claims, we are mindful that
A
To address the defendant’s first contention, we begin with the terms “settlement” and “release.” Both of these terms have well established meanings. “A settlement is a legally enforceable agreement in which a claimant agrees not to seek recovery outside the agreement for specified injuries or claims from some or all of the persons who might be liable for those injuries or claims.” Restatement (Third), Torts, Apportionment of Liability § 24 (a) (2000). It is well established that, to be a legally enforceable agreement, a settlement must be supported by consideration. See, e.g., Warner v. Warner,
A release is an agreement to give up or discharge a claim. Gionfriddo v. Gartenhaus Cafe,
Accordingly, “[Releases and settlements . . . represent a surrender of a cause of action, perhaps for a consideration less than the injury received”;
By contrast, a withdrawal shares few of the essential characteristics of a settlement and a release. Although the legislature has not defined the term withdrawal, its rules governing the manner in which a party may withdraw a cause of action inform the term’s meaning. A plaintiff may withdraw an action unilaterally and unconditionally before a hearing on the merits.
The defendant contends, however, that the withdrawal in this case did operate as a surrender of a cause of action, and hence did constitute a release or settlement because the statute of limitations had expired by the time the plaintiff withdrew her action against Cohen. Thus, once the withdrawal occurred, the plaintiff could not reinstitute an action against Cohen. We are not persuaded.
At the outset, we note that the defendant never made this argument until after trial in his motion to set aside the verdict. Even if we were to assume that he is entitled to its review, the fact thаt, in a given case, the plaintiff may exercise the option of releasing a defendant at a point in time when the statute of limitations will
B
We turn next to the defendant’s alternate claim that the plaintiffs withdrawal of the action against Cohen constituted a “similar agreement” under § 52-572h (n) that would have required the trial court to allow the defendant to include Cohen for apportionment purposes. We disagree.
At the outset, we underscore that the legislature frequently has used the term withdrawal. See, e.g.,
Nonetheless, we consider whether the legislature may have used “similar agreement” to encompass withdrawals. We note that the term “similar agreement” is used only in subsection (n) of § 52-572h. It is not referenced elsewhere in that statute or in § 52-102b, which prescribes the procedures for seeking apportionment. See Carlson v. Waterbury Hospital, supra,
Although we need not determine precisely what the legislature intended by the use of the phrase “similar agreement” in § 52-572h (n), we consider some possibilities to illustrate how other agreements may be similar to releases and settlements and, in contrast, why withdrawals do not constitute such a similar agreement. Echavarria v. National Grange Mutual Ins. Co., 275 Conn. 408, 415,
Another possibility that the plaintiff suggests is a covenant not to sue, which also is a bilateral agreement that requires consideration in exchange for the relinquishment of a claim. See, e.g., Tomczuk v. Alvarez,
Therefore, we conclude that the legislature did not intend the term “similar agreement” to encompass a withdrawal of a defendant. This conclusion is consistent with the intent of Tort Reform II, as expressed in Public Acts 1987, No. 87-227, which “was to limit the universe of negligent persons that a finder of fact may consider in apportioning damages to only those entities that are either parties to the suit or parties who have reached a settlement agreement with the plaintiff — a clear indication that the legislature intended that § 52-572h (c) permit the plaintiff to obtain, to the maximum extent possible, complete compensation for his injuries.” Babes v. Bennett,
Finally, we note that our interpretation of the statute is consistent with the legislative policies that § 52-572h was designed to implement, specifically, that the plaintiff be fully compensated and defendants pay their fair share, but, that when those rights conflict, the plaintiffs interests will prevail. See, e.g.,
C
The defendant claims that the withdrawal in the present case was unique because of the circumstances under which it was given. Specifically, the defendant claims that the withdrawal in the present case constituted a settlement because it was conditioned upon Cohen’s acceptance of a list of terms that Cohen otherwise was not obligated to perform.
The record reveals the following additional facts. At the hearing on the motion to set aside the verdict, the defendant claimed that the withdrawal of the action against Cohen acted as a release, settlement or similar agreement so as to bring it within
It is well settled that “[t]he construction of a written document is a matter of law, where the meaning is to be ascertained from the document itself; but where the meaning can be understood only from extrinsic facts, the construction is generally a question of fact . . . .” School District No. 8 v. Lynch,
“In interpreting the contract, however, not only the whole language of the instrument, but the situation of the parties and the subject-matter of their transactions as well, are to be considered. ... In arriving at the intent of the parties to a contract as expressed or implied in the language used by them, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence.” (Citation omitted; internal quotation marks omitted.) Id., 296.
“The construction of a contract is usually a question of faсt because the interpretation of its language is a search for the intent of the parties, making contractual intent a classic question of fact. Lavigne v. Lavigne, [
We cannot conclude that the record in the present case demonstrates as a matter of law that the parties intended a quid pro quo in exchange for the withdrawal, in other words, consideration. This is particularly true when the handwritten note is entirely consistent with Koskoff s claim to the trial court that the note merely memorialized the plaintiffs reminder to Cohen of the rules of confidentiality to which he otherwise was obligated once the case against him had been withdrawn. See
Indeed, Koskoff, as the drafter, disputed the defendant’s characterization of the document as an “agreement” between Cohen and the plaintiff contending that it did not reflect such an intent by the participants. See footnote 13 of this opinion. Moreover, the defendant did not avail himself of Koskoff s offer to testify to what the document was intended to accomplish. Certainly Cooney’s statement in his affidavit that the terms “were to accompany” the withdrawal does not indicate unambiguously that that withdrawal was conditioned on the terms. Consequently, given the ambiguity as to the meaning of this document, the trial court properly could have considered such extrinsic evidence as to the conduct of the parties.
D
Accordingly, we conclude that the trial court properly precluded the defendant
“The legislature [however] has repeatedly manifested its concern for the overall fairness of our tort law. See, e.g.,
II
We next turn to the defendant’s claim that the trial court improperly precluded him from presenting an alternative theory as to the cause of the shoulder dystocia, which in turn was the cause of Jodee’s injury. Specifically, the defendant contends that, based on Cohen’s testimony as to the circumstances of the delivery, the defendant should have been permitted to offer his expert opinion that the shoulder dystocia was caused by Jodee’s unusual, and thus unforeseeable, position at birth, rather than facts that the defendant reasonably could have foreseen. The defendant contends that the trial court precluded him from offering his opinion predominately based on its improper conclusion that Cohen’s testimony as to the pertinent facts was not credible and, secondarily, based on its improper conclusion that the plaintiff did not have adequate notice that the defendant intended to advance this alternate theory. We reject the defendant’s claim.
Under the rules of evidence, “[a]n expert may testify in the form of an opinion and give reasons therefor, provided sufficient facts are shown as the foundation for the expert’s opinion.” Conn. Code Evid. § 7-4 (a). “An expert may have personal knowledge of the underlying facts or may obtain the requisite information by attending the trial and hearing the factual testimony. C. Tait, Connecticut Evidence (3d Ed. 2001) § 7.9.1, p. 532; see also Conn. Code Evid. § 7-4 (b). If an expert has heard all of the relevant testimony, it is also within the court’s discretion to permit
The record reveals the following additional facts. At trial, the plaintiff offered expert testimony to establish that the defendant had breached the standard of care by failing to ascertain and recognize various risk factors for shoulder dystocia before and during Aponte’s early stages of labor and then by failing to perform a cesarean section. In particular, the plaintiffs experts opined that Jodee’s unusually large size, more than ten pounds at birth, was the predominant cause of the shoulder dystocia.
Cohen testified as a fact witness as to the circumstances of the delivery. Specifically, he testified about various maneuvers that he had undertaken when attempting to deliver Jodee after he ascertained that shoulder dystocia had occurred. First, he “reach[ed] into the birth canal to try to find the baby’s back arm and/or hand” to pull that part of the baby’s body out first to reduce the diameter of the shoulders. When he could not find the baby’s arm on this first attempt, he inserted his hands inside the mother’s vagina to tiy to prod the baby’s shoulders to rotate from their top to bottom position into a sideways position. After that effort did not work, he attempted unsuccessfully to fracturе the baby’s collarbone to reduce the shoulder diameter. Next, Cohen applied a maneuver whereby the mother’s legs were held into the air and pressure was exerted above her pelvis in another unsuccessful attempt to rotate the baby’s shoulders.
Cohen then stated: “And so I went back to my original attempt reaching into the birth canal looking for the back arm and to my surprise I found the baby’s fist right adjacent [to] the shoulder, the back shoulder, of the baby as it was coming out. It was in a position that I didn’t expect to find it because I expected the arm and fist to be somewhat in front of the baby but in this case [it] was right along the side of the shoulder and somewhat behind. And I grasped that fist and gently applied traction to it and the baby’s arm basically reached out toward me and the baby basically fell out into my arms.”
Subsequently, the defendant testified that the reason for the lack of progress in Aponte’s labor when he was monitoring her “was clearly the patient’s refusal to push. Once the patient would push, I had a clear assumption that she would deliver vaginally, and she did.” Thereafter, the defendant’s counsel asked the defendant whether he had an opinion, to a reasonable degree of medical certainty, as to why Jodee’s shoulders were stuck at the pelvis at the time of delivery. The plaintiff objected on the ground that the defendant had no personal knowledge on which to base his opinion, given that he was not present at the birth and did not know that Jodee had been injured until some later point in time. The trial court sustained the objection, ruling that the defendant must establish a foundation for the basis of his opinion.
Accordingly, the defendant’s counsel asked the defendant to base his expert opinion as to the cause of the shoulder
Although the trial court agreed with the plaintiffs disclosure claim, it sustained the objection based on the speculative nature of the defendant’s hypothetical and the absence of support in the record for its factual predicate. Specifically, the defendant had made it clear that he intended to predicate his opinion on the factual assumption that, during the entire time Jodee had been lodged in her mother’s pelvis, her hand always had been where Cohen found it in his final attempt to extricate the baby, adjacent to her back shoulder. The court repeatedly stated that it was too great an inferential leap to conclude, based on Cohen’s testimony, that Jodee’s hand had been in that position the entire time. The court noted that, according to his testimony, in his last attempt to dislodge Jodee’s shoulders, Cohen had repeated the first manеuver he had tried, but with a different result, and Cohen had undertaken several other maneuvers in between those efforts to attempt to manipulate Jodee’s position. The court further noted that Cohen never had testified that the position of Jodee’s hand was the cause of the shoulder dystocia. Accordingly, the court refused to allow the defendant to offer his opinion on causation of the shoulder dystocia based on his hypothetical scenario.
“The established rule is that, on direct examination, the stated assumptions on which a hypothetical question is based must be the essential facts established by the evidence.”Keeney v. L & S Construction,
Ill
The defendant next claims that the trial court submitted to the jury improper and misleading interrogatories. Specifically, the defendant claims that the interrogatories impermissibly guided the jury to reach a particular result in favor of the plaintiff, rather than explained or limited a general verdict, as is intended under the rules of practice. We disagree.
“In Freedman v. New York, N.H. & H. R. Co.,
In the present case, the plaintiffs amended complaint asserted nine allegations to support his claim that the defendant had breached the standard of care, in that he had: (1) failed to obtain an adequate history of Aponte’s 1988 labor and delivery; (2) failed to manage properly Aponte’s second stage of labor; (3) failed to assess properly Aponte’s risk factors for shoulder dystocia; (4) failed to diagnose timely risk factors of shoulder dystocia; (5) failed to monitor the progress of labor; (6) permitted a prolonged second stage of labor; (7) failed to diagnose properly arrest of descent; (8) fаiled to listen to Aponte;
In our view, the court’s interrogatories to the jury are consistent with the purpose of this device, to elicit “a determination of material facts, [and] to furnish the means of testing the correctness of the verdict rendered, and of ascertaining its extent.” Freedman v. New York, N.H. & H. R. Co., supra,
IV
The defendant also claims that the cumulative effect of three aspects of the trial resulted in undue prejudice. Specifically, the defendant claims that: (1) the trial court improperly allowed the plaintiffs experts to testify as to Aponte’s lack of informed consent when there was no informed consent claim in the case; (2) the court improperly ruled on the admission of expert testimony regarding the effect of Jodee’s juvenile diabetes on her earning capacity for purposes of damage calculations; and (3) the “general trial atmosphere rendered impossible a dispassionate evaluation of the relative role of [the defendant] in its proper context.” We disagree.
We note at the outset that the defendant’s evidentiary claims are reviewed under our well established standard. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) Jacobs v. General Electric Co.,
A
Turning to the challenged testimony as to the issue of informed consent, the defendant points to testimony from two of the plaintiffs experts and from Aponte. Specifically, two of the plaintiffs experts stated that, given Jodee’s size at birth, the standard of care would require that a physician inform a patient as to the risks and benefits of vaginal delivery and a cesarean section. Aponte testified that the defendant never had informed her of any risks associated with delivering Jodee vaginally. The defendant objected, contending that because there was no informed consent claim in this case, the testimony was irrelevant. The trial court overruled the defendant’s objection based on its determination that the testimony was relevant to the plaintiffs claim that the defendant had breached the standard of care by failing to assess properly the risks of shoulder dystocia. We agree with the trial court.
We recognize that, although this testimony undoubtedly would bear on informed consent if that were an issue in the case; see generally Logan v. Greenwich Hospital Assn.,
Moreover, the trial court expressly instructed the jury that informed consent was not at issue in the case. It is well established that, “[i]n the absence of any indication to the contrary, we presume that the jury followed the court’s instruction[s].”
B
The defendant also challenges the trial court’s rulings relating to evidence of Jodee’s juvenile diabetes as it pertained to the calculation of economic damages. The defendant claims that the trial court improperly permitted Lawrence Forman, the plaintiffs vocational expert, to offer unscientific testimony because Forman had failed to consider the effect of Jodee’s juvenile diabetes on her vocational capacity and earnings. The defendant further claims that, although the trial court had permitted him to cross-examine Forman and argue to the jury about Forman’s failure to consider this condition, the court improperly precluded him from offering expert testimony to demonstrate that this condition would affect Jodee’s work capacity and life expectancy. We disagree.
Turning first to Forman’s testimony, we note that the defendant does not claim that the methodology by which Forman reached his conclusion was unreliable. Rather, he claims that Forman’s application of that methodology to the facts of the case was unreliable because Forman had failed to consider Jodee’s juvenile diabetes. We disagree with his claim on two fronts. First, our review of Forman’s testimony reflects that he clearly stated that he had considered Jodee’s juvenile diabetes, but concluded that it was not relevant to her vocational capacity because that condition сan be controlled through medication and diet. Second, it is well settled that, “[o]nce the validity of a scientific principle has been satisfactorily established, any remaining
The defendant further claims that, once Forman was permitted to offer an opinion as to Jodee’s vocational capacity, the trial court improperly precluded him from offering expert testimony in two forms to establish that juvenile diabetes would affect her vocational capacity and life expectancy. First, the trial court precluded, on the ground that the defendant’s disclosure was untimely, expert testimony from Joseph Rosenblatt, an endocrinologist, and James Cohen,
The record reveals the following additional undisputed facts. In January, 1999, the plaintiff disclosed Forman and Crakes as his experts regarding damages. In January, 2002, and August, 2004, respectively, Forman and Crakes submitted their reports; neither report reflected any indication that they considered Jodee’s juvenile diabetes to be a relevant factor. In November, 2002, the plaintiff provided to the defendant, in response to his discovery requests, the records for the diabetes clinic where Jodee was being treated. On May 13, 2002, in resрonse to requests by the defendant, the trial court issued a scheduling order that extended the deadline for deposing expert witnesses until September 6, 2002. On June 3, 2004, the defendant completed his deposition of Forman. He filed his disclosures of Rosenblatt and James Cohen on December 10, 2004, and December 13, 2004, respectively, while jury selection was in progress.
The trial court granted the plaintiffs motion to preclude these witnesses on the grounds of undue prejudice, undue interference with the orderly progress of the trial and bad faith delay in the disclosures. Specifically, the court noted the facts that: the scheduling order long had expired; jury selection was in progress; the trial was scheduled to commence on February
Given these facts, “[t]he court was well within its discretion to prevent this kind of ambush.” Gaudio v. Griffin Health Services Corp.,
Finally, we briefly address the second form in which the defendant sought to establish that Forman’s exclusion of juvenile diabetes as a factor in Jodee’s vocational capacity was incorrect. Specifically, the defendant claims that the trial court improperly excluded as irrelevant evidence that would have contradicted Forman’s assumption that Jodee’s diabetes could be controlled. The defendant contends that testimony from Sevket Yigit, the physician who had treated Jodee at the Connecticut Children’s Medical Center Diabetes Clinic, and the clinic’s treatment records were relevant to this issue. We disagree.
Briefly stated, Yigit never opined that Jodee’s condition could not be controlled. Yigit expressly rejected the defendant’s suggestion that Jodee was at risk of complications from her condition because her father had died of complications from the same disease. Indeed, Yigit never even stated that Jodee’s condition was not being controlled regularly; he noted that the records reflected an entry from one visit in which he had noted a concern about inadequate
C
The defendant also makes a broad claim that he was prejudiced by certain conduct by the plaintiff’s counsel during the proceedings, such as facial grimaces, body language and interruptions to his closing argument. The defendant concedes that the trial court addressed most of the contested conduct, but contends that the trial court’s action was ineffective as evidenced by the fact that the conduct continued.
To the extent that the trial court’s actions and the admissions by the plaintiffs counsel to this court reflect that the plaintiffs counsel engaged in such conduct, we note that we do not sanction any conduct that may divert the jury’s attention from the issues properly before it. Nonetheless, in the absence of a request by the defendant for further instruction or a mistrial, we presume that the trial court took appropriate remedial measures to preserve the defendant’s right to a fair trial.
V
Finally, we address the defendant’s claim that the trial court lacked personal jurisdiction over him. Specifically, the defendant claims that service of process was defective because the plaintiff had not served the defendant either personally or at his usual place of abode, in accordance with
The record reveals the following additional facts. The plaintiff commenced this action on August 22, 1997. The defendant filed his motion to dismiss for lack of personal jurisdictiоn on October 17, 1997. The plaintiff filed a memorandum in opposition to that motion on December 3, 1997, claiming that: (1) the defendant had actual notice, which was consistent with the purpose of the service of process statutes; and (2) unnecessary delay and confusion would result if the motion were granted because the plaintiff would be able to file a new action against the defendant under the accidental failure of suit statute,
It is well settled under our rules of practice and case law that, “[i]t is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. . . . [A]n appellate tribunal cannot render a decision without first fully understanding the disposition being appealed. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.” (Internal quotation marks
In the present case, we have no record from which to determine the basis of the trial court’s ruling. The trial court may have relied on one of the grounds asserted in the plaintiffs opposition, or on the ground of waiver, as the plaintiff now claims before this court, because of the defendant’s actions in proceeding with his defense in the intervening years between the defendant’s filing of the motion and the court’s decision on the motion, or on some other ground. “Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did . . . .” (Internal quotation marks omitted.) Daigle v. Metropolitan Property & Casualty Ins. Co.,
The judgment is affirmed.
In this opinion BORDEN and NORCOTT, Js., concurred.
Notes
As explained further in this opinion, the original plaintiffs to this action, Jodee’s parents, Leslie Aponte and Joseph Viera, initially had brought suit against Thomas McNamee and three other defendants, but shortly before trial withdrew their claims against those defendants. Accordingly, for purposes of this appeal, we refer to McNamee as the defendant. Aponte and Joseph Viera had brought the action both as representatives of Jodee’s interests and in their individual capacities. Thereafter, Aponte and Joseph Viera withdrew the claims brought in their individual capacities and substituted Balter to represent Jodee’s interests. Accordingly, we refer to Balter as the plaintiff and to Jodee by name.
“(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 for such party’s 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 (f) of this section, to bе attributable to all parties whose negligent actions were a proximate cause of the ir\jury, 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 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; and (5) the percentage of such negligence attributable to the claimant.
“(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.
“(h) (1) A right of contribution exists in parties who, pursuant to subsection (g) of this section are required to pay more than their proportionate share of such judgment. The total recovery by a party seeking contribution shall be limited to the amount paid by such party in excess of such party’s proportionate share of such judgment.
“(2) An action for contribution shall be brought within two years after the party seeking contribution has made the final payment in excess of such party’s proportionate share of the claim. . . .
“(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 the 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. . . .”
We note that No. 99-69 of the 1999 Public Acts added subsection (o) to
The defendant appealed from the trial court’s judgment to the Appellate Court, and we thereafter transferred the appeal to this court pursuant to
In the middle of the section of the defendant’s brief to this court challenging the apportionment ruling, the defendant also asserts that the trial court’s ruling precluding apportionment “was exacerbated by its causation instructions” and “was aggravated by its rulings on other matters relating to the universe of tortfeasors.” Given the placement of these assertions in the defendant’s brief, the absence of the requisite discussion of the standard of review to be applied to such claims and the treatment of these claims merely as they relate to exacerbating or aggravating the harm stemming from the failure to allow apportionment, we do not treat these contentions as separate claims on appeal. Rather, we assume that they are intended to illustrate the prejudice muring to the defendant as a result of the trial court’s allegedly improper ruling on apportionment.
“(b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party. If the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment, except that, if the action against the defendant who instituted the apportionment complaint pursuant to subsection (а) of this section is subject to such a defense or bar, the apportionment defendant may plead such a defense or bar to any claim brought by the plaintiff directly against the apportionment defendant pursuant to subsection (d) of this section.
“(c) No person who is immune from liability shall be made an apportionment defendant nor shall such person’s liability be considered for apportionment purposes pursuant to
“(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.
“(e) When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.
“(f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to
“(g) In no event shall any proportionate share of negligence determined pursuant to subsection (f) of
There is considerable precedent of this court recognizing that a settlement and release must be supported by consideration. See Ross v. Koenig,
See
In Alvarez v. New Haven Register, Inc., supra,
“(b) A release by the injured person, or his legal representative, of one joint tortfeasor does not discharge the other tortfeasors unless, and only to the extent, the release so provides.”
We concluded “that the employer and employee are not joint tortfeasors pursuant to the statute and that, accordingly, the employer is released from any derivative liability.” Alvarez v. New Haven Register, Inc., supra,
Our case law indicates that an “agreement. . . not to bring legal action” under § 52-216a includes a covenant not to sue; see Fritz v. Madow, supra,
As noted in part I A of this opinion, we reject the defendant’s claim that a withdrawal constitutes a release when, in a case like the present one, the plaintiff withdraws her claims against a party after the limitations period has expired and therefore is time-barred from reinstituting those claims.
The handwritten, unsigned note by Koskoff that was attached to Cooney’s affidavit provided in its entirety: “(1) [Cooney] continues as [Cohen’s] counsel for purposes of accepting subpoena, arranging testimony dates, advising Cohen. (2) Cohen has no authorization to speak to anybody about this case except [Cooney] and [the plaintiffs] counsel. (3) [Cooney] will likewise respect confidentiality and not share Cohen’s positions with McNamee or counsel. (4) [Cooney] will endeavor to arrange a meeting with Cohen with [Koskoff] or, failing that, will answer written questions truthfully put to him by [Koskoff]. (5) Cohen will provide no opinions unless required to do so by the court subject to any rights of counsel to inquire within the rules of court [and] limits of disclosure.” At the bottom of the page was the notation “2/5 to 2/12,” which, according to his affidavit, Cooney had written to indicate the dates on which the plaintiff wanted to call Cohen as a witness.
Koskoff stated: “There were some arguments made about — I think I had been forwarded as part of a supplemental motion some — and I am humbled or I find it interesting that what is clearly chicken scratch handwriting has become now an agreement between me and some other lawyer. I find that an interesting argument in light of the fact that if that were an agreement, which it wasn’t, I would have potentially some remedies under . . . what is said to be some confidentiality issues in that. I’m sure that neither defense counsel for [Cohen], I’m sure he doesn’t want it to be perceived as an agreement, nor was it an agreement, and I think that he recognizes that. But if there is some allegation that has some type of effect of a release, we should certainly hear from that witness. To the contrary, all that occurred was just some understanding that it would be clear that there was no release to go about discussing these affairs with anybody. That [Cohen] had no authorization to do that, and so it was really the antithesis of a release. And certainly I think even counsel, who may have been thinking more about his relationship with the insurance company than with [Cohen], who he seems to be arguing should be held as part of an apportionment. There should be — the argument that seems to be there should be allowed to be an apportionment of fault against [Cohen]. That seems to be a conflicting argument for — that a lawyer would make on behalf of his client that hey, in fact my client should be allowed to be held responsible. So I’m sure that if [Cohen’s] attorney were here, he would concede that it should have no such effect, and I won’t go any further into that because I think it is entirely unfair for defense counsel in this case to make representations to the court on something that she could have no knowledge of and was not present to. And by the letter, by what is actually scratched down in an unsigned whatever you call it, piece of paper, speaks to the contrary of everything that was stated just now.”
Moments later, Koskoff again protested the defendant’s characterization of the document at issue: “Put me on the witness stand and we can talk about it. But I’m not — it was never raised at trial. It’s not what it’s purported to be. It’s as desperate as I’ve seen in any motion, and I will not address anything about it unless we have a hearing. Unless I’m sitting in that stand, I’m not answering [the defendant’s attorney’s] questions at this time. That’s not what we’re here for.”
The defendant’s attorney did not follow up any further other than to confirm that the handwriting belonged to Koskoff, stating only: “So I assume, Your Honor, that by Ms answer, he is not denying that it’s his handwriting. Let the record reflect that.”
“(b) Consent of the patient or his authorized representative shall not be required for the disclosure of such communication or information (1) pursuant to any statute or regulation of any state agency or the rules of court, (2) by a physician, surgeon or other licensed health care provider against whom a claim has been made, or there is a reasonable belief will be made, in such action or proceeding, to his attorney or professional liability insurer or such insurer’s agent for use in the defense of such action or proceeding .. .
Such extrinsic evidence would not have been barred by the parol evidence rule, which “is premised upon tire idea that when the parties have deliberately put their engagements into writing, in such terms as impоrt a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing.” (Internal quotation marks omitted.) Alstom Power, Inc. v. Balcke-Durr, Inc.,
We note that this case does not require that we express an opinion as to whether a defendant may file an apportionment complaint against a withdrawn party if the withdrawal and service of the apportionment complaint occurs within the 120 days specified for nonparties under
See State v. Porter,
It appears that this allegation refers to Aponte’s testimony that she had told the defendant that she was unable to push the baby out and that she had asked him to perform a cesarean section after experiencing problems in the early stages of her labor.
The defendant criticizes the trial court’s limiting instruction, howevеr, as improperly discrediting his testimony on consent as irrelevant after permitting the plaintiff to offer evidence as to that matter. We also disagree with this contention. In support of his testimony that he had discussed with Aponte the risks and benefits of, and alternatives to, a cesarean section, the defendant offered a consent form, which he had signed. The defendant admitted, however, that Aponte had not signed the form, and he had no recollection as to why she had not done so. Accordingly, following the trial court’s instructions to the jury that informed consent was not an issue in the case, the court stated: “[TJhere was no evidence of written consent. And I further instruct you that it is immaterial for your consideration whether or not . . . Aponte agreed to a procedure or a plan.” We do not read this instruction as improperly discounting the defendant’s testimony, which, if credited, only would have demonstrated that he had discussed the situation with Aponte, not that she had understood what the defendant told her or that he had obtained her consent.
The defendant also listed Ian Cohen, the former defendant in the case, as an expert witness. The trial court precluded the defendant from offering Ian Cohen as an expert, limiting his testimony as a fact witness. Although the defendant suggests throughout his brief to this court that this ruling exacerbated the prejudice to him stemming from the court’s ruling on apportionment, he does not raise the trial court’s ruling as to the limitation on Ian Cohen’s testimony as an issue in this appeal. See footnote 4 of this opinion.
Moreover, we find the defendant’s claim somewhat hypocritical given that he sought to preclude one of the plaintiffs experts, whom the plaintiff had disclosed on January 20, 2004, on the ground that the deadline under the trial court’s scheduling order for disclosing expert witnesses had expired and, at that time, it was anticipated that trial would commence in four months.
Concurrence Opinion
concurring. I agree with and join the majority opinion. I write separately solely to register my conclusion that the withdrawal of a negligence claim against a defendant that is supported by consideration, constitutes a “similar agreement” within the meaning of
I note that
1 See footnote 2 of the majority opinion for the relevant text of
Dissenting Opinion
with whom ZARELLA, J., joins, dissenting. I disagree with the majority’s conclusion that the trial court properly construed
Under
Under the majority’s construction of
This result is patently illogical because the persons whom the plaintiff named in the action are the very persons against whom McNamee most likely would wish to exercise his right of apportionment. Under the majority’s interpretation of the statutory scheme, however, a plaintiff, in his sole discretion, may deprive a defendant of the right of apportionment against any and all such persons simply by filing an action against them, waiting 120 days, and then withdrawing his claims against them. It is obvious that, in engaging in such a strategy, the plaintiff can deprive the defendant altogether of his apportionment rights. I do not believe that the legislature would have taken the steps that it had to abolish joint and several liability in favor of proportional liability, on the one hand, and then create a loophole that empowers any plaintiff to return to the former by depriving the defendant of any opportunity to invoke the latter, on the other.
In attempting to construct a rationale for its holding, the majority asserts that its statutory interpretation “is consistent with the legislative policies that
Furthermore, the “unwanted practical effect [under Tort Reform I]” to which the majority refers in its quote from Collins relates to a problem “under Tort Reform I . . . [whereby] the jury, in determining the percentage of negligence attributable to any defendant, could take into account the negligence of any other person, regardless of whether that person was a party to the action. Tort Reform I, however, did not provide the plaintiff with a means of securing payment of damages unless that person was also a party.” (Emphasis added; internal quotation marks omitted.) Collins v. Colonial Penn Ins. Co., supra,
If, however, as the majority asserts, Tort Reform II did reflect a desire on the part of the legislature to avoid protracted litigation of weak claims, the majority fails to explain how permitting a plaintiff to withdraw an action against some but not
Finally, the majority asserts that its interpretation “is consistent with the intent of Tort Reform II, as expressed in Public Acts 1987, No. 87-227, which was to limit the universe of negligent persons that a finder of fact may consider in apportioning damages to only those entities that are either parties to the suit or parties who have reached a settlement agreement with the plaintiff — a clear indication that the legislature intended that
The issue in Babes was whether the state, when it is sued for negligence upon its waiver of sovereign immunity under
In
“The legislature amended
It is apparent, therefore, that the passage from Babes on which the majority relies simply refers to the same problem that was addressed in the passage from Collins on which the majority also relies, namely, that, under Tort Reform I, a plaintiff often was unable to obtain complete compensation because of language in Tort Reform I that permitted the fact finder, in determining the percentage of negligence attributable to the defendant, to consider the negligence of a nonparty. Thus, we explained in Babes that, by limiting the universe of negligent persons whom the jury could consider in apportioning damages to persons against whom the plaintiff actually could recover, namely, parties and “settled or released persons”;
There is nothing in Babes, however, or in any other case, to suggest that the legislature, in enacting Tort Reform II, sought any result other than to strike an equitable balance between the interests of plaintiffs and of defendants. Under the majority’s interpretation of the statutory scheme, the balance that the legislature sought to achieve has been shifted dramatically in favor of the plaintiff, who now has the ability to erect an absolute bar to apportionment. Because that cannot be what the legislature sought to accomplish, I respectfully dissent.
In their original complaint, the original plaintiffs, Leslie Aponte and Joseph Viera; see footnote 1 of the majority opinion (describing posture of parties); alleged, inter alia, that, “[bjeginning in or about November 1994 and continuously thereafter to in or about May 1995 and thereafter, the defendant, IAN COHEN, undertook the care, treatment, monitoring and supervision of the infant plaintiffs mother . . . and the infant JODEE VIERA, then in útero, for pregnancy, labor and delivery. . . .
“While under the care, treatment, monitoring and supervision of the defendant, IAN COHEN, the infant plaintiff . . . suffered serious, painful and permanent injuries ....
“The injuries . . . were caused by the failure of the defendant, LAN COHEN, to exercise that degree of care and skill ordinarily and customarily used by physicians specializing in the field of obstetrics under all of the circumstances ... in that he . . .
“failed to adequately and properly care for and treat the mother of the infant plaintiff during labor and delivery . . .
“failed to adequately and properly observe and monitor the mother of the infant plaintiff during labor and delivery . . .
“failed to recognize and properly treat the infant plaintiff and her mother for arrested descent . . .
“failed to properly recognize, treat and diagnose a cephalo-pelvic disproportionment . . .
“used excessive traction and/or force during the delivery of the infant plaintiff . . .
“failed to deliver the infant plaintiff by cesarean section . . .
“delayed delivery of the infant plaintiff by cesarean section beyond the point of ability to do so safely . . .
“failed to adequately consider all intrapartum and labor factors concerning the probability of shoulder dystocia . . .
“failed to anticipate or plan for a shoulder dystocia . . .
“failed to timely consult with other specialists in the field of obstetrics; and . . .
“failed to adequately and properly read and interpret fetal monitoring tapes."
I, like the majority, refer to Fred Balter, the guardian of the estate of Jodee Viera, as the plaintiff. See footnote 1 of the majority opinion for a detailed explanation regarding the posture of the parties in the present case.
Public Acts 1986, No. 86-338.
Public Acts 1987, No. 87-227.
Although I agree with the majority’s conclusion that McNamee cannot prevail on his claim that the plaintiffs withdrawal of his claim against Cohen was a “settlement” or “similar agreement” based on consideration, I am unable to join the majority in its analysis of that claim. See part I C of the majority opinion. If McNamee had established, as a matter of fact, that the plaintiffs attorney, Joshua D. Koskoff, had conditioned the withdrawal of the plaintiffs claim against Cohen on Cohen’s agreement to comply with the terms of the handwritten note that Koskoff had given to Cohen’s attorney, Eugene Cooney, then that agreement clearly would have constituted consideration for the withdrawal and, in turn, clearly would have been a “settlement” or “similar agreement” within the meaning of
Although the majority does not expressly say so, it is apparent, in the majority’s view, that the pertinent statutory language is not plain and unambiguous within the meaning of
“
“[Section] 52-102b provides that, if a defendant in a tort action believes that another person [not named in the plaintiffs complaint] is or may be liable for a proportionate share of the plaintiffs damages, the defendant may serve an apportionment writ, summons and complaint on that other person and seek the relief of an apportionment of liability. This apportionment complaint must be filed within 120 days of the return day of the underlying tort complaint.” (Emphasis added.) Lostritto v. Community Action Agency of New Haven, Inc.,
Of course, this court has recognized that, “[a]s finally enacted, [Tort Reform I] represents a complex web of interdependent concessions and bargains struck by hostile interest groups and individuals of opposing philosophical positions.” Sanzone v. Board of Police Commissioners,
In such circumstances, the case still must be tried with respect to the remaining defendant or defendants.
Moreover, as McNamee aptly maintains, even in a case in which discovery ultimately leads to a dead end as to one or more of the defendants, the plaintiff has nothing to fear from the remaining defendant’s pursuit of an apportionment claim against his or her codefendant or codefendants. When, however, the withdrawal is motivated by trial strategy, as it apparently was in the present case, then the policy underlying our apportionment statutes strongly favors the right of the remaining defendant to pursue an apportionment claim.