Menard v. State ( 2023 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
SCOTT MENARD v. STATE OF CONNECTICUT
DARREN CONNOLLY v. STATE
OF CONNECTICUT
(SC 20663)
Robinson, C. J., and McDonald, D’Auria,
Mullins and Ecker, Js.
Syllabus
The plaintiffs M and C, state police officers who suffered injuries when a
motor vehicle driven by a nonparty tortfeasor struck a police cruiser,
sought to recover underinsured motorist benefits in connection with
certain insurance coverage provided by the self-insured defendant, the
state of Connecticut. The plaintiffs’ cases were consolidated for a trial
to the court, which found for the plaintiffs on the issue of liability but
awarded only a fraction of the damages they had sought. The trial court
concluded that the plaintiffs were not entitled to damages for their
alleged post-traumatic stress disorder (PTSD) on the ground that such
damages are not available under the statute (§ 38a-336 (a) (1) (A))
governing uninsured and underinsured motorist coverage and prescrib-
ing coverage for damages ‘‘because of bodily injury,’’ insofar as the
plaintiffs’ alleged PTSD was not a result of physical injuries. The trial
court also did not credit the expert opinion and testimony of H, the
plaintiffs’ therapist, that the plaintiffs had suffered from PTSD. Subse-
quently, the court held a collateral source hearing, after which it con-
cluded that certain workers’ compensation benefits that the plaintiffs
had received were deductible from the plaintiffs’ damages but that cer-
tain amounts the plaintiffs had received from a pretrial settlement under
the Dram Shop Act (§ 30-102) were not. Accordingly, the court adjusted
the plaintiffs’ damages and rendered judgments for the plaintiffs. The
plaintiffs appealed and the defendant filed a cross appeal. On appeal,
the Appellate Court rejected the plaintiffs’ claim that the trial court had
misconstrued § 38a-336 (a) (1) (A) as limiting underinsured motorist
coverage to damages for physical injury and agreed with the defendant
that the trial court improperly had failed to reduce the plaintiffs’ damages
by the amounts of their dram shop recoveries. In light of the Appellate
Court’s holdings and the fact that the plaintiffs’ damages were reduced
to zero dollars, the Appellate Court reversed the trial court’s judgments
and remanded the cases with direction to render judgments for the
defendant. On the granting of certification, the plaintiffs appealed to
this court. Held:
1. The Appellate Court correctly concluded that the plaintiffs were not
entitled to recover underinsured motorist benefits for their alleged
PTSD:
Even if this court were to conclude that coverage for PTSD was permitted
under § 38a-336, expert testimony was required to establish that the
plaintiffs suffered from PTSD, and the trial court did not arbitrarily
reject the opinion of H, the plaintiffs’ only expert witness, regarding the
plaintiffs’ alleged PTSD in light of H’s failure to independently assess
the credibility of the plaintiffs’ statements to her concerning their claims
of emotional distress.
Although it may be standard practice for therapists to presume the
truthfulness of their patients’ reporting of PTSD symptoms for treatment
purposes, the trial court reasonably determined that such an assumption
was not sufficient for purposes of a forensic assessment, which is a view
shared by some experts in the field, and the cross-examination of H by
the defendant’s counsel provided further grounds for questioning her
assumption that the plaintiffs had honestly and accurately reported their
symptoms to her.
Moreover, notwithstanding the plaintiffs’ claim that H did not rely exclu-
sively on the plaintiffs’ reporting of their symptoms but also on her
observations of them during treatment, the trial court reasonably could
have rejected H’s testimony that she was able to observe the plaintiffs’
reactions while she was treating them and instead have relied on H’s
session notes, which almost exclusively recounted symptoms as reported
by the plaintiffs and in which H recorded few personal observations.
2. The Appellate Court incorrectly concluded that the trial court should
have reduced any award by the plaintiffs’ dram shop recoveries:
Pretrial settlement payments, such as the sums the plaintiffs received
in settlement of their dram shop claims, are deductible from a jury award
only if the trial court finds that the award would otherwise be excessive
as a matter of law in the absence of such a reduction, and the amounts
the trial court awarded the plaintiffs could not be deemed excessive as a
matter of law, as the pretrial settlement amounts may have contemplated
payment for damages that were not included, or available, in the present
action, such as damages for the plaintiffs’ alleged PTSD.
Moreover, the defendant could not prevail on its claim that the dram
shop payments were collateral sources for which a reduction was appro-
priate, as settlements expressly have been excluded from the statutory
(§ 52-225b) definition of ‘‘collateral sources’’ for purposes of civil actions,
either in tort or in contract, in which a plaintiff seeks to recover damages
for personal injuries.
Furthermore, although a statute or regulation may provide for a reduction
from specific sources in an action seeking to recover uninsured or under-
insured motorist benefits, including settlement payments, this court pre-
viously has concluded that Dram Shop Act payments do not fall within
the exception, set forth in the state regulations (§ 38a-334-6 (d) (1) (A)),
for sums ‘‘paid by or on behalf of any person responsible for the injury,’’
insofar as a claim under the Dram Shop Act does not require proof that
the dram shop was responsible for the injury, and no other statutory or
regulatory exception applied under the facts of the present case.
Argued January 12—officially released April 25, 2023
Procedural History
Actions to recover underinsured motorist benefits
allegedly due under certain automobile insurance cov-
erage provided by the defendant pursuant to a collective
bargaining agreement, brought to the Superior Court
in the judicial district of Hartford, where the cases were
consolidated and tried to the court, Shapiro, J.; there-
after, the court, Hon. Robert B. Shapiro, judge trial
referee, issued a decision, and the plaintiffs appealed
to the Appellate Court; subsequently, the court, Hon.
Robert B. Shapiro, judge trial referee, reduced the plain-
tiffs’ damages and, exercising the powers of the Supe-
rior Court, rendered judgments for the plaintiffs, and
the plaintiffs filed an amended appeal and the defendant
filed a cross appeal with the Appellate Court; thereafter,
the Appellate Court, Bright, C. J., and Moll and Bear,
Js., dismissed the appeal in part, reversed the trial
court’s judgments as to the plaintiffs and remanded
the cases with direction to render judgments for the
defendant, and the plaintiffs, on the granting of certifica-
tion, appealed to this court. Affirmed in part; reversed
in part; judgment directed in part.
Daniel J. Krisch, with whom was Jeffrey L. Ment,
for the appellants (plaintiffs).
David A. Haught, for the appellee (defendant).
Ryan K. Sullivan filed a brief for the Connecticut
Trial Lawyers Association as amicus curiae.
Opinion
McDONALD, J. This certified appeal raises questions
regarding the recovery of underinsured motorist bene-
fits by Connecticut state troopers injured in a motor
vehicle accident involving an intoxicated driver. Two
of the three plaintiffs in the underlying consolidated
cases, Scott Menard and Darren Connolly (plaintiffs),
appeal from the Appellate Court’s judgment reversing
the trial court’s judgments in their favor and remanding
the cases to the trial court with direction to render
judgments for the defendant, the state of Connecticut
(state). The third plaintiff, Robert Zdrojeski, withdrew
his portion of the joint appeal to the Appellate Court
and is not a party to this certified appeal.1 The plaintiffs
contend that the Appellate Court improperly (1) affirmed
the trial court’s judgments insofar as the trial court con-
cluded that the plaintiffs were not entitled to recover
underinsured motorist benefits for alleged post-trau-
matic stress disorder (PTSD), and (2) reversed the judg-
ments insofar as the trial court determined that the
state was not entitled to a reduction in the trial court’s
awards for sums received by the plaintiffs in settlement
of a claim under Connecticut’s Dram Shop Act, General
Statutes § 30-102. We agree with the Appellate Court’s
conclusion as to the first issue, although on the basis
of a different ground from the one relied on by that
court. We disagree with its conclusion as to the second
issue. We therefore reverse in part the judgment of the
Appellate Court.
The Appellate Court’s opinion sets forth the following
account of the incident that gave rise to the present
cases, as described by the trial court. ‘‘[O]n September
1, 2012, [the plaintiffs and Zdrojeski] were on duty as
Connecticut state troopers with the Connecticut State
Police. At approximately 1:40 a.m. . . . Connolly was
on patrol on Interstate 84 and pulled over a vehicle
traveling westbound, due to suspected intoxicated driv-
ing, at exit 46 in Hartford, the Sisson Avenue exit. After
reaching the bottom of the exit ramp, Connolly parked
his [police] cruiser on the right side of the exit, under
the directional sign, to the rear of the vehicle, which
had stopped before the intersection with Sisson Ave-
nue. The Sisson Avenue exit has four lanes at this point.
‘‘Connolly exited his cruiser to speak with the driver
of the vehicle and then returned to his cruiser. . . .
Menard drove up to the scene also, parked his police
cruiser and also exited to speak with the occupants of
the vehicle [that] . . . Connolly had pulled over. Both
cruisers had their lights activated.
‘‘[The plaintiffs] then began to approach the vehicle.
Unbeknownst to [the plaintiffs] . . . Zdrojeski also
responded to the scene in his police cruiser. He parked
his cruiser to the rear and left of Connolly’s cruiser,
and to the left of Menard’s cruiser, in the right center
travel lane, also with lights activated. [While Zdrojeski
was still in his cruiser], another vehicle, driven by non-
party William Bowers, struck Zdrojeski’s cruiser from
behind, sending Zdrojeski’s parked cruiser forward
toward [the plaintiffs], [after which] physical contact
occurred.
‘‘Menard attempted to jump clear of the cruiser, tum-
bled in the air, and came down on his head between
Zdrojeski’s cruiser and the stopped vehicle. Connolly
pushed himself away from the cruiser, using his right
arm against the hood of the cruiser. . . . [The plaintiffs
and Zdrojeski] were ambulatory after the accident and
were transported by ambulance to Hartford Hospital.’’
(Internal quotation marks omitted.) Menard v. State,
208 Conn. App. 303, 306–308, 264 A.3d 1034 (2021).
The record reveals the following additional undis-
puted facts and procedural history. Menard, Connolly,
and Zdrojeski commenced separate underinsured
motorist actions against the state. In their complaints,
which were largely identical, the plaintiffs alleged in
relevant part that (1) they sustained injuries from the
accident, which occurred as a result of the negligence
and/or carelessness of Bowers (nonparty tortfeasor),
who was driving while under the influence of intoxicat-
ing liquor, (2) their personal automobile liability insur-
ance policies and the nonparty tortfeasor’s automobile
liability insurance policy were insufficient to compen-
sate them in full for their injuries, (3) at the time of
the accident, the state carried underinsured motorist
coverage for their benefit pursuant to a collective bar-
gaining agreement between the state and the Connecti-
cut State Police Union, (4) the state was self-insured
with respect to its underinsured motorist coverage, and
(5) the state had not disbursed underinsured motorist
benefits to them for their injuries.
The plaintiffs further alleged that, as a consequence
of the accident, they suffered physical injuries, some
permanent, and PTSD. They alleged that these injuries
had not only caused pain and suffering for which they
had incurred and would incur medical expenses, but
also had impaired personal and recreational activities,
and had other negative effects.
The state answered the plaintiffs’ complaints and
asserted special defenses. The state asserted that the
plaintiffs’ recoveries, if any, were limited to the $1 mil-
lion amount of underinsured motorist coverage and any
other terms and conditions set forth in the state’s self-
insured motorist coverage form. It also asserted that,
in the event that the plaintiffs succeeded on their claims,
it was entitled to (1) a reduction for any amount paid
to a plaintiff ‘‘for bodily injury and lost wages from
collateral sources or under any workers’ compensation
law, disability benefits law or any similar law,’’ and (2)
a setoff for any payments made to a plaintiff by, or on
behalf of, the nonparty tortfeasor.
The plaintiffs’ cases were consolidated for a trial to
the court. At the parties’ joint request, the trial court
agreed that an initial stage of trial would focus exclu-
sively on questions of liability and damages. The court
noted that it would deal with any issues related to
‘‘offsets or coverage or collateral sources,’’ if necessary,
at a later date.
At trial, in addition to presenting medical evidence
regarding treatment and assessments of certain perma-
nent impairments, each plaintiff testified regarding the
effect that the accident had on him, physically and men-
tally, and how those effects impacted his ability to par-
ticipate in activities and to perform his job.2 Each plain-
tiff testified about seeking treatment, of varying duration,
from a licensed professional counselor, Jennifer Honen,
to deal with issues that arose after the accident. Honen,
in turn, testified regarding that treatment and attested
that she had diagnosed each of the plaintiffs with PTSD.
Following trial, the parties filed briefs. In their joint
posttrial brief, the plaintiffs requested $1 million in dam-
ages for Menard, approximately $859,000 of which was
for noneconomic damages, and approximately $889,000
in damages for Connolly, $750,000 of which was for
noneconomic damages.
The trial court thereafter issued a joint memorandum
of decision, finding for the plaintiffs on liability but award-
ing only a fraction of the damages they had sought.
This difference evidently was due in large part to the
court’s rejection of the plaintiffs’ claim that they were
entitled to damages for PTSD. The court cited two rea-
sons for rejecting the plaintiffs’ respective PTSD claims.
First, it concluded that PTSD damages are not compen-
sable under the uninsured motorist/underinsured
motorist (UM/UIM) statute prescribing coverage for
damages ‘‘because of bodily injury’’; (emphasis added)
General Statutes § 38a-336 (a) (1) (A);3 interpreting that
term to mean physical injury and its sequelae. The court
found that ‘‘the plaintiffs’ PTSD claims are not a result
of their [physical] injuries. Rather, they are premised
on having gone through a life-threatening accident and
having to reexperience similar work-related scenarios
on a regular basis.’’ Second, it did not credit the diagnos-
tic opinion and the testimony of the plaintiffs’ expert
witness, Honen, that the plaintiffs suffered from PTSD.
The court ultimately awarded Menard approximately
$172,000, consisting of approximately $112,000 in eco-
nomic damages (for lost wages, lost overtime, and medi-
cal expenses) and $60,000 in unspecified noneconomic
damages. The court calculated Connolly’s damages to
be approximately $187,000, consisting of approximately
$117,000 in economic damages and $70,000 in unspeci-
fied noneconomic damages.
The plaintiffs jointly filed a motion to reconsider and
for additur. They contended that the PTSD that they
developed was accompanied by physical manifesta-
tions, ‘‘including sleeplessness, hyper alertness, rapid
heart beating, sweating, anxiety, and outbursts of
anger,’’ such that the PTSD from which they suffer
constitutes a ‘‘bodily injury’’ under § 38a-336 (a) (1) (A).
The state argued, in opposition, that the PTSD allegedly
developed by the plaintiffs was a ‘‘purely psychological
injury’’ and that the trial court correctly concluded that
the statutory term ‘‘bodily injury’’ does not encompass
such emotional distress. The court denied the plaintiffs’
motion without addressing the distinction raised by the
parties. The plaintiffs then filed a joint appeal with the
Appellate Court, challenging the trial court’s conclusion
that they were not entitled to recover damages for
PTSD.
While that appeal was pending, the trial court took
up the state’s motion for a collateral source hearing.
The parties submitted a stipulation of facts, setting forth
all sums that each plaintiff had received on account of
the personal injuries sustained in the motor vehicle
collision. Those included workers’ compensation bene-
fits for medical bills, lost wages, and permanent partial
disabilities; recovery from the nonparty tortfeasor; per-
sonal underinsured motorist coverage payments; and a
dram shop payment in the amount of approximately
$83,333.4 The stipulation made clear that the parties
were not stipulating as to the state’s right to any setoff
or reduction by acknowledging these sums.
The parties’ disagreement focused on sums that the
plaintiffs had received from two sources: payments
under workers’ compensation law and the dram shop
settlement payments. The trial court determined that
the workers’ compensation benefits were deductible
from the plaintiffs’ damages but that the dram shop
recoveries were not. In reaching the latter conclusion,
the trial court reasoned that it was bound by American
Universal Ins. Co. v. DelGreco, 205 Conn. 178, 530 A.2d
171 (1987), in which this court had stated that the statu-
tory and regulatory scheme governing underinsured
motorist coverage ‘‘do[es] not allow an insurer to
reduce its liability for underinsured motorist coverage
by an amount of money received by the insured pursu-
ant to a dram shop policy.’’ Id., 199. After taking into
account the workers’ compensation benefits, along with
the additional sums stipulated to by the parties other
than the dram shop payments, the trial court reduced
Menard’s damages to zero dollars and Connolly’s dam-
ages to $32,905.67. The court then rendered judgments
for the plaintiffs in accordance with that determination.
The plaintiffs filed an amended joint appeal to include
a challenge to the trial court’s reduction of the damages
award by the workers’ compensation benefits that the
plaintiffs had received. The state filed a cross appeal,
challenging the trial court’s denial of the state’s claim
that it was entitled to a reduction to account for the
dram shop payments.
The Appellate Court rejected the claims raised in the
plaintiffs’ amended appeal. See Menard v. State, supra,
208 Conn. App. 314–32. Of relevance to the present
appeal, the Appellate Court disagreed that the trial court
had misconstrued § 38a-336 (a) (1) (A) to limit UM/UIM
coverage to damages for physical injury. See id., 319–20.
The Appellate Court rejected the notion that it was
material whether the plaintiffs’ alleged PTSD, which
was not caused by physical injuries sustained in the
collision, had accompanying physical manifestations.
See id., 320–23. In light of its conclusion that there was
no coverage for the plaintiffs’ PTSD claims under the
statute, the Appellate Court declined to reach the plain-
tiffs’ claim that the trial court had erred in failing to
credit the opinion of Honen, who diagnosed them with
PTSD. Id., 314 n.9.
The Appellate Court agreed with the claim raised by
the state in its cross appeal. Id., 332–33. Specifically, it
agreed that the trial court’s failure to reduce the plain-
tiffs’ damages by their dram shop recovery violated the
common-law rule against double recovery. See id., 333;
see also id., 337 (citing ‘‘[the] simple and time-honored
maxim that [a] plaintiff may be compensated only once
for his just damages for the same injury’’ (internal quota-
tion marks omitted)). The Appellate Court surveyed
case law that had applied or recognized the common-
law rule in the context of automobile liability policies,
as well as case law recognizing the limited purpose of
UM/UIM coverage. See id., 338–40. It determined that
the trial court had failed to recognize that the concern
underlying the common-law rule was not implicated
in DelGreco, in which this court held that dram shop
payments were not deductible under the UM/UIM stat-
ute and regulation, because the plaintiffs’ recovery in
DelGreco fell short of their actual damages. See id.,
335–36. Because the trial court had already reduced
Menard’s damages to zero dollars, the Appellate Court
limited its application of the common-law rule to Con-
nolly. See id., 333 n.17. It reduced Connolly’s damages
by his dram shop payment, which also left Connolly
with zero dollars in damages. Id., 340. In accordance
with these determinations, the Appellate Court reversed
the judgments in favor of the plaintiffs and remanded
the cases to the trial court with direction to render
judgments for the state in those cases.5 Id., 341.
This court granted the plaintiffs’ request for certifica-
tion to appeal, limited to the following issues: (1)
whether the Appellate Court correctly determined that
the plaintiffs’ PTSD with physical manifestations is not
a compensable bodily injury under § 38a-336 (a) (1) (A),
and (2) whether the Appellate Court correctly deter-
mined that the common-law rule precluding double
recovery required that the underinsured motorist dam-
ages awarded to Connolly be reduced by the amount
that a third party paid to him in settlement of a Dram
Shop Act claim. Menard v. State, 340 Conn. 916, 916–17,
266 A.3d 886 (2021). In its brief to this court, the state
asserts an alternative ground for affirmance on the first
issue. Specifically, the state contends that, even if this
court were to agree with the plaintiffs’ interpretation
of § 38a-336, the plaintiffs could not prevail because
they failed to prove that they had PTSD given the trial
court’s rejection of the opinion of their expert.
We conclude that the plaintiffs’ liability claim fails
on grounds of evidentiary insufficiency and, therefore,
decline to reach the broader legal question as to
whether the UM/UIM statute affords coverage for PTSD,
if accompanied by physical manifestations.6 We also
conclude, however, that the plaintiffs’ damages should
not have been reduced by the sum of the plaintiffs’
pretrial dram shop settlement payments.
I
We begin with the plaintiffs’ contention that the trial
court erroneously concluded that neither Honen’s testi-
mony nor her diagnosis of PTSD was credible. The
plaintiffs submit that the court’s rejection of Honen’s
expert opinion was impermissibly arbitrary because the
opinion was unrebutted and supported by the record.
We disagree.
The record reveals the following additional facts. On
direct examination, Honen testified that she holds a
master’s degree in counseling psychology, is a licensed
professional counselor, specializes in trauma issues in
her private practice, and is certified in ‘‘EMDR, which
is eye movement desensitization and reprocessing . . .
an evidence-based psychotherapy modality used specif-
ically for trauma and PTSD, and other anxiety disorders
. . . .’’ She explained that PTSD is defined in the current
edition of the American Psychiatric Association’s Diag-
nostic and Statistical Manual of Mental Disorders by
eight criteria. See American Psychiatric Assn., Diagnos-
tic and Statistical Manual of Mental Disorders (5th Ed.
2013) pp. 271–72 (DSM-5). She testified that she had
treated the plaintiffs and Zdrojeski, for varying periods,
and had diagnosed all three with PTSD because they
met all of the DSM-5 criteria. She noted that they had
complained of multiple symptoms that were consistent
with PTSD following a stressor event, such as hypervigi-
lance, flashbacks, and negative alterations in mood.
When asked why the plaintiffs and Zdrojeski, whose jobs
had previously exposed them to all sorts of dangerous
situations, would sustain PTSD as a result of this partic-
ular incident, Honen explained: ‘‘[W]hen someone has
repeated trauma, trauma upon trauma, we kind of have
this bucket, and we’re okay, as long as the trauma stays
in the bucket. But each trauma adds another drop in
the bucket, and, truthfully, once you’re at the top of a
bucket, the next drop can be small; it doesn’t matter,
right? It will overflow . . . . [Y]our brain and nervous
system can only take so much before something tips
it over.’’
On cross-examination, Honen admitted that she had
not reviewed any outside sources to confirm the plain-
tiffs’ and Zdrojeski’s accounts of the incident and, thus,
was unaware, for example, that Connolly was not factu-
ally accurate in reporting to her that he had been ‘‘run
over . . . .’’ The state’s counsel also questioned the
likelihood that the plaintiffs and Zdrojeski had all sus-
tained PTSD from the same accident, despite their var-
ied experience both before and during the incident.
After the state’s counsel concluded his initial cross-
examination of Honen, the following exchange ensued:
‘‘The Court: I have a question. In your practice, how
do you discern whether . . . someone who comes to
you is dissembling?
‘‘[Honen]: Dissembling?
‘‘The Court: Lying.
‘‘[Honen]: Uh-huh. I think for me, in my practice, and
most of us, is that, if we don’t have any reason to believe
they’re lying, if nothing jumps out as a reason to believe
they’re lying, then we believe that they’re telling us their
perception of what occurred.
‘‘I’d be looking more for something that seems odd
in their—in their personality or character strategy or
different—a specific type of way that they interact with
me or with other people, different reports of, you know,
like stormy and short relationships, and different things
that I would look at, in terms of like a, you know, kind
of a more characterological disorder.
‘‘But if there’s—so, it’s more, like, if none of those
flags goes up, we’re kind of in the position of believing
our clients. The criteria help us stay to things that are
more, kind of, scientific. . . .
***
‘‘[The State’s Counsel]: There are standard tests in
the field for what they call ‘malingering.’
‘‘[Honen]: Yes.
‘‘[The State’s Counsel]: You don’t do any of those
diagnostic tests?
‘‘[Honen]: I’m not a psychologist. Mostly psycholo-
gists do those tests.
***
‘‘[The Plaintiffs’ Counsel]: Did you have any indica-
tion that something wasn’t adding up when you talked
to any of the three troopers?
‘‘[Honen]: None whatsoever.
‘‘[The Plaintiffs’ Counsel]: Did you have any doubt in
the sincerity and [honesty] that they told you?
‘‘[Honen]: No, I did not.’’
In its memorandum of decision, the trial court stated:
‘‘[T]he three [troopers] rely on the diagnosis of their
therapist, [Honen], that each met the criteria for having
PTSD. In her testimony, Honen acknowledged that she
did no screening to assess the validity of their state-
ments concerning their claims of emotional distress.
Rather, she accepted their statements without making
an independent assessment. The court does not credit
her testimony or her diagnosis.’’
The plaintiffs appear to concede that expert testi-
mony was required to prove that they suffered from
PTSD. See, e.g., Osborn v. Waterbury, 333 Conn. 816,
826, 220 A.3d 1 (2019) (‘‘[e]xpert testimony is required
when the question involved goes beyond the field of
the ordinary knowledge and experience of judges or
jurors’’ (internal quotation marks omitted)). Our review
of the trial court’s rejection of Honen’s testimony, there-
fore, is governed by settled principles. This court has
recently reiterated the proposition that a trier of fact
may accept or reject, in whole or in part, the testimony
of an expert offered by one party. See State v. LeRoya
M., 340 Conn. 590, 612–13, 264 A.3d 983 (2021); State
v. Weathers, 339 Conn. 187, 210–11, 260 A.3d 440 (2021).
This principle holds true even when the opposing party
offers no rebuttal expert. See, e.g., State v. LeRoya M.,
supra, 613; see also, e.g., Goldstar Medical Services,
Inc. v. Dept. of Social Services, 288 Conn. 790, 831, 955
A.2d 15 (2008). ‘‘[I]n its consideration of the testimony
of an expert witness, the [trier of fact] might weigh, as
it sees fit, the expert’s expertise, his opportunity to
observe the [person being examined] and to form an
opinion, and his thoroughness. It might consider also
the reasonableness of his judgments about the underly-
ing facts and of the conclusions [that] he drew from
them.’’ (Internal quotation marks omitted.) State v.
Weathers, supra, 210–11. Thus, it is permissible for the
trier of fact to entirely reject uncontradicted expert
testimony as not worthy of belief. Id., 211.
We have also recognized, however, that the trier’s
discretion is not without limits. ‘‘[T]he trier’s freedom
to discount or reject expert testimony does not . . .
allow it to arbitrarily disregard, disbelieve or reject an
expert’s testimony in the first instance. . . . [When]
the [trier] rejects the testimony of [an] . . . expert,
there must be some basis in the record to support the
conclusion that the evidence of the [expert witness] is
unworthy of belief. . . . That said, given the myriad
bases on which the trier properly may reject expert
testimony and the reviewing court’s obligation to con-
strue all of the evidence in the light most favorable to
sustaining the trier’s [finding or] verdict, it would be
the rare case in which the reviewing court could con-
clude that the trier’s rejection of the expert testimony
was arbitrary.’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) State v. LeRoya M.,
supra, 340 Conn. 613–14.
The record in the present case clearly demonstrates
that the trial court’s rejection of Honen’s opinion was
not arbitrary. The court provided a specific reason why
it rejected her testimony, namely, Honen’s failure to
independently assess the credibility of the plaintiffs’
reports. Honen acknowledged that tests for malingering
exist and that they are applied by psychologists. She
admitted that she assumed that the plaintiffs’ descrip-
tions of their symptoms were truthful. Honen did not
testify that there were any particular factors that weighed
against concluding that the plaintiffs were malingering,
only that malingering would be considered if there were
red ‘‘flags . . . .’’ See, e.g., 2 B. Stern & J. Brown, Liti-
gating Brain Injuries (2006) § 14:18, pp. 14-59 through
14-60 (noting that authors of seminal article on malin-
gered post-traumatic symptoms have presented eleven
factors suggesting malingering of psychological distress
after trauma).
It may well be standard practice for therapists to
presume the truthfulness of their patients’ reporting of
PTSD symptoms for treatment purposes. The trial court
did not act arbitrarily, however, by concluding that such
an assumption is not sufficient for purposes of a foren-
sic assessment, a view shared by some experts in the
field. See, e.g., American Psychiatric Assn., Diagnostic
and Statistical Manual of Mental Disorders (4th Ed.
Text Rev. 2000) p. 467; S. Rubenzer, ‘‘Personal Injury
Settings: Malingering Psychiatric Disorders and Cogni-
tive Impairment,’’ 47 For the Defense, no. 4, April, 2005,
pp. 18–25, 67; see also, e.g., D. Smith, ‘‘Diagnosing Liabil-
ity: The Legal History of Posttraumatic Stress Disorder,’’
84 Temp. L. Rev. 1, 55 (2011) (citing concern among
some members of psychiatric community, relating to
PTSD diagnosis, ‘‘about the heavy reliance during the
diagnostic process on subjective reporting by the patient
of both the stressor event and the resulting reactions,
as well as the subjective impressions of the diagnosti-
cian’’). But see, e.g., Cooper v. Carl A. Nelson & Co.,
211 F.3d 1008, 1020–21 (7th Cir. 2000) (‘‘[I]n clinical
medicine, the methodology of physical examination and
self-reported medical history . . . is generally appro-
priate. . . . [T]he accuracy and truthfulness of the
underlying medical history is subject to meaningful
exploration on cross-examination and ultimately to jury
evaluation.’’ (Citations omitted.)).
The plaintiffs contend that Honen did not rely exclu-
sively on the plaintiffs’ reporting of their conditions but
also on her observations of them during treatment. The
trial court reasonably could have relied on Honen’s
session notes, however, which indicate that Honen diag-
nosed the plaintiffs and Zdrojeski with PTSD, or deter-
mined that the protocol for treating PTSD should be
followed, after their initial evaluations. Her notes from
subsequent treatment sessions almost exclusively
recounted symptoms as reported by the plaintiffs; few
observations were recorded. Although Honen did testify
that she was able to observe the plaintiffs’ reactions while
she was treating them, the trial court was not required
to credit that testimony.7
The cross-examination of Honen also provided fod-
der for questioning her assumption that the plaintiffs
were honestly and accurately reporting their symptoms.
The state’s counsel repeatedly underscored the unlikeli-
hood that, just prior to this accident, the plaintiffs and
Zdrojeski each had reached their maximum capacity
for processing trauma and that this incident, which each
trooper experienced differently, was the tipping point,
causing each to suffer PTSD. Counsel pointed out Hon-
en’s unawareness of inconsistencies between the plain-
tiffs’ reporting of the circumstances of the accident and
the actual facts. Honen also acknowledged that her
notes reflected that the plaintiffs, during their treat-
ment, were involved in pending litigation to recover for
their injuries.8
The record in the present case demonstrates that the
trial court’s rejection of Honen’s testimony was not
impermissibly arbitrary. Therefore, in the absence of
credible expert testimony, the plaintiffs cannot recover
damages for PTSD, even if coverage was afforded for
such an injury under the UM/UIM statutory scheme and
the state’s UM/UIM policy.
II
We next turn to the plaintiffs’ claim that the Appellate
Court incorrectly concluded that the trial court should
have reduced their award by the sums received in settle-
ment of their dram shop claims. They contend that such
payments are not deductible, either as a consequence
of the common-law rule against double recovery or under
the UM/UIM scheme. The state contends that the dram
shop payments must be deducted, either under the com-
mon-law rule or as a collateral source. In light of our
conclusion in part I of this opinion, which leaves Men-
ard’s recovery at zero dollars, we note that this issue
only affects Connolly. We agree with the plaintiffs.
We begin by underscoring that it is undisputed that
the reduction was sought not for sums awarded follow-
ing a final judgment in a fully litigated case, but for sums
obtained by pretrial settlement. This court has repeat-
edly recognized that the legislature abrogated the com-
mon-law rule with respect to pretrial settlement pay-
ments when it adopted General Statutes § 52-216a. See,
e.g., Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645,
663–65, 935 A.2d 1004 (2007); Bovat v. Waterbury, 258
Conn. 574, 598–99, 783 A.2d 1001 (2001); Peck v. Jacque-
min, 196 Conn. 53, 70–72, 491 A.2d 1043 (1985); Seals
v. Hickey, 186 Conn. 337, 346, 441 A.2d 604 (1982).
A jury award may be reduced by amounts obtained
pursuant to such settlements only by way of a trial
court’s order of remittitur, which is available only if
the court ‘‘determine[s] that the settlement payments,
when added to the jury award, render that award exces-
sive as a matter of law, a threshold that is met only
when the total amount received so far exceeds what is
fair and reasonable as to be unconscionable.’’ Mahon
v. B.V. Unitron Mfg., Inc., supra, 665; see also Imbrogno
v. Chamberlin, 89 F.3d 87, 90 (2d Cir. 1996) (trial court
may reduce jury verdict under § 52-216a by amount
plaintiff received in settlement only if jury award is
excessive when considered in light of amount of settle-
ment payment).
Although liability in the present case was determined
by the court in a bench trial, not by a jury, the same
principles apply. We recently acknowledged that § 52-
216a allows the trial court to consider a settlement
payment in a bench trial and that such consideration
might prevent double recovery. See Caverly v. State,
342 Conn. 226, 237–39, 269 A.3d 94 (2022). We also
explained, however, that the use of this evidence should
not result in any substantive difference from what would
be permitted in a jury trial. See id., 239 n.12, citing Peck
v. Jacquemin, supra, 196 Conn. 73. In other words,
the trial court may reduce the damages to account for
pretrial settlement payments, whether in a trial to the
jury or to the court, when the award would otherwise
be excessive as a matter of law in the absence of such
a reduction.
In contemplating what it means for the award to be
excessive in light of a settlement by a joint tortfeasor
or another party legally responsible for the payment of
damages, it is important to appreciate what the settle-
ment represents. We have explained that a settlement
‘‘does not necessarily represent a claimant’s fair, just
and reasonable damages but, rather, represents, in part,
the parties’ assessments of the risks of litigation.’’ (Inter-
nal quotation marks omitted.) Caverly v. State, supra,
342 Conn. 237. ‘‘[I]t does not equate to a satisfaction
of a judgment represent[ing] full compensation for
injuries’’; (internal quotation marks omitted) id.; and
cannot have any preclusive effect on a subsequent
action. Black v. Goodwin, Loomis & Britton, Inc., 239
Conn. 144, 168, 681 A.2d 293 (1996); cf. Gionfriddo v.
Gartenhaus Cafe, 211 Conn. 67, 69, 75, 557 A.2d 540(1989) (concluding that rule against double recovery
precluded plaintiff from prevailing in dram shop action
when there was no question that damages claimed in
that action were ‘‘identical’’ to those awarded and recov-
ered in earlier judgment rendered against tortfeasors,
which were in excess of $1 million, and there was ‘‘no
doubt that the plaintiff recovered ‘just damages’ ’’).
Of particular relevance in the present case, the settle-
ment may contemplate payment for damages that are
not included, or available, in the subsequent action on
the matter. The dram shop settlement payments in the
present case, for example, may have contemplated dam-
ages for PTSD, which were not included as part of the
trial court’s award, and, according to the state, were
legally unavailable in this action. What portion, if any,
of the settlement payments was dedicated to such dam-
ages, which the courts below deemed unavailable by
law in a UM/UIM action, is entirely speculative. The
plaintiffs’ damages award cannot be deemed excessive
as a matter of law under such circumstances. Cf. Jones
v. Kramer, 267 Conn. 336, 350–51, 838 A.2d 170 (2004)
(defendant was not entitled to reduction of damages
for collateral sources when it was unclear whether jury
award included medical bills and other benefits claimed
as collateral sources).
The state fares no better with its argument that the
dram shop settlement payments are a ‘‘collateral source’’
for which a reduction is appropriate. ‘‘[S]ettlements
expressly have been excluded from the statutory defini-
tion of ‘collateral sources’ for purposes of civil actions,
either in tort or in contract, in which a plaintiff seeks
to recover damages for personal injuries. See General
Statutes §§ 52-225a and 52-225b.’’ (Footnote omitted.)
Bovat v. Waterbury, supra, 258 Conn. 601–602. The state
seeks to avoid this impediment by contending that its
right to reduce its obligations by collateral sources is
not limited by the collateral source definition in § 52-
225b because its rights derive from its contract.9 Even if
we assume, for the sake of argument, that the document
relied on by the state prescribes binding terms, there
is no indication in that document that ‘‘collateral
source,’’ as used therein, has a different meaning from
the statutory definition in effect for more than three
decades.
Finally, we observe that a statute or regulation may
provide for a reduction from specific sources in a UM/
UIM action, including payments obtained by settlement.
See, e.g., Anastasia v. General Casualty Co. of Wiscon-
sin, 307 Conn. 706, 725, 59 A.3d 207 (2013) (‘‘it expressly
has been left to the [Insurance] [C]ommissioner to
determine whether an alternative source of recovery
available to the insured should be an applicable offset
. . . and . . . a duly promulgated regulation has the
force and effect of statute’’ (citation omitted; emphasis
omitted; internal quotation marks omitted)). The Insur-
ance Commissioner has, for example, provided for the
reduction of UM/UIM limits by sums ‘‘paid or . . . pay-
able under any workers’ compensation law . . . .’’
Regs., Conn. State Agencies § 38a-334-6 (d) (1) (B). In
DelGreco, this court concluded that Dram Shop Act
payments do not fall within the exception, in the state
agency regulations, for sums ‘‘paid by or on behalf of
any person responsible for the injury’’ because a claim
under that act does not require proof that the dram
shop was responsible for the injury. (Emphasis omitted;
internal quotation marks omitted.) American Universal
Ins. Co. v. DelGreco, supra, 205 Conn. 197–99; see also
Regs., Conn. State Agencies § 38a-334-6 (d) (1) (A); cf.
Hartford Casualty Ins. Co. v. Farrish-LeDuc, 275 Conn.
748, 757–61, 882 A.2d 44 (2005) (concluding that injured
party’s settlement payment from professional liability
insurer of law firm for legal malpractice resulting in
inability to pursue claim against tortfeasor constituted
sums ‘‘ ‘paid by or on behalf of any person responsible
for the injury’ ’’ that reduced UM/UIM limits); Buell v.
American Universal Ins. Co., 224 Conn. 766, 768, 774–
75, 621 A.2d 262 (1993) (concluding that UM/UIM insur-
er’s payment under policy issued to operator of vehicle
that struck claimant’s vehicle constituted ‘‘payment
made by or on behalf of any person responsible for the
injury’’ that reduced UM/UIM limits (internal quotation
marks omitted)). Although this court later observed
that cases decided after DelGreco did not strictly limit
application of the regulation to ‘‘amounts received from
other automobile liability policies of those responsible
for the injury’’; (emphasis added; internal quotation
marks omitted) American Universal Ins. Co. v. Del-
Greco, supra, 197; we reiterated DelGreco’s rationale
regarding the strict liability nature of a dram shop claim.
See Hartford Casualty Ins. Co. v. Farrish-LeDuc, supra,763–64. No other exception applies. See footnote 9 of
this opinion. The Appellate Court therefore incorrectly
concluded that the trial court should have reduced Con-
nolly’s award by the sums received in settlement of his
dram shop claim.
The judgment of the Appellate Court is reversed in
part and the case is remanded to that court with direc-
tion to affirm the judgment of the trial court as to
Connolly; the judgment of the Appellate Court is affirmed
in all other respects.
In this opinion the other justices concurred.
1
The state had cross appealed from the trial court’s judgment rendered
in favor of Zdrojeski but subsequently abandoned its appeal as to him. See
Menard v. State, 208 Conn. App. 303, 312 n.8, 333 n.17, 264 A.3d 1034 (2021).
The Appellate Court therefore affirmed the judgment in favor of Zdrojeski
in the amount of $29,963.03. See id. We refer to Menard and Connolly
collectively as the plaintiffs and to the parties individually by name. We
discuss the matter as it pertains to Zdrojeski only insofar as it sheds light
on the issues raised by the plaintiffs.
2
Menard also introduced the testimony of his wife and his supervising
officer to describe changes in his conduct and demeanor following the acci-
dent.
3
Section 38a-336 has been amended by the legislature since the incident
in question. See Public Acts 2015, No. 15-118, § 69; Public Acts 2014, No.
14-71, § 1; Public Acts 2014, No. 14-20, § 1. These amendments have no
bearing on the merits of this appeal. In the interest of simplicity, we refer
to the current revision of the statute.
4
The Dram Shop Act sets an aggregate cap of $250,000 in damages. See
General Statutes § 30-102. It appears to be undisputed that Menard, Connolly,
and Zdrojeski each received an equal one-third portion of that cap in settle-
ment of their respective dram shop claims. For a breakdown of all sums
recovered by the plaintiffs in connection with the collision, see Menard v.
State, supra, 208 Conn. App. 310–11.
5
The Appellate Court reversed the judgments in favor of both plaintiffs
under the principle that the state is entitled to judgment in its favor when
its insured’s damages have been reduced to zero dollars. See Menard v.
State, supra, 208 Conn. App. 340–41. Although the trial court had reduced
Menard’s damages to zero dollars for payments from sources other than
the dram shop settlement, it had rendered judgment in Menard’s favor. Id.,
312, 341. Accordingly, the Appellate Court reversed the judgments as to
both plaintiffs and remanded the cases to the trial court with direction to
render judgments for the state as to them. Id., 341. The Appellate Court
affirmed the judgment as to Zdrojeski. Id.6
The state argues that this court should not reach the first certified issue
because the trial court’s rejection of Honen’s PTSD diagnosis is indepen-
dently dispositive of this appeal. It also argues that the plaintiffs abandoned
their challenge to the trial court’s rejection of their expert’s PTSD diagnosis
by neither raising that issue in their certified appeal nor asking this court
to remand the cases to the Appellate Court to decide that issue should they
prevail on the certified issues in their main brief. As a consequence, the
state contends that this court is without jurisdiction over the first certified
issue because we cannot afford practical relief to the plaintiffs with respect
to their PTSD claims in any event. We disagree. The plaintiffs could have
sought permission to seek certification on an issue that the Appellate Court
did not reach on grounds of judicial economy. See, e.g., State v. McClain,
324 Conn. 802, 804 n.1, 155 A.3d 209 (2017) (granting defendant’s motion
to modify certified issue to include issue that Appellate Court did not reach
in interests of judicial economy to avoid remand to Appellate Court on
single issue); see also, e.g., Mueller v. Tepler, 312 Conn. 631, 635 n.3, 646
n.14, 95 A.3d 1011 (2014) (addressing issue that was not decided by Appellate
Court because issue had been briefed and was likely to arise on remand to
trial court); Stamford Hospital v. Vega, 236 Conn. 646, 648 n.1 and 656, 674
A.2d 821 (1996) (revising certified questions to include issues that Appellate
Court did not reach after this court sua sponte directed parties to brief
those issues). Even though the plaintiffs have not done so, we conclude
that it is appropriate for us to address the merits of the state’s alternative
ground for affirmance. It is apparent from the plaintiffs’ request for relief
in their main brief that they overlooked this unresolved issue rather than
consciously abandoned it. They fully briefed the issue in their reply brief,
as did the state in its responsive brief. Our decision not to reach the first
certified issue should not be construed as taking any position on the Appel-
late Court’s interpretation of § 38a-336.
7
The trial court made no credibility assessment regarding the plaintiffs’
own testimony recounting their past and present symptoms. Nevertheless,
it is fair to infer from its rejection of Honen’s diagnosis that the court may
have had reservations about that testimony.
8
The state’s counsel referred obliquely to pending litigation, and it is
unclear whether Honen’s notes referring to litigation refer to the present
action and/or other actions relating to the same incident. See Zdrojeski v.
Combs, Superior Court, judicial district of Hartford, Docket No. CV-14-
6053975-S.
9
The state points to a 2012 memo, which is available as a public record
but was not distributed to employees, in which it summarized the coverage
it provides. The memo provides that the state ‘‘reserves the right to limit
its liability pursuant to [§ 38a-334-6 (d) of] the Regulations of Connecticut
State Agencies . . . by reducing the limits of its UM/UIM coverage by all
sums (A) paid by or on behalf of any person responsible for the injury, (B)
paid or payable under any workers’ compensation law, or (C) paid under
the policy in settlement of a liability claim and to apply such payments,
and any collateral source benefits payable to the claimant, the claimant’s
estate or beneficiaries, as a credit against amounts payable to the claimant
under this coverage.’’ (Emphasis added.) The regulation cited mirrors the
language in the memo that identifies the three sources for reducing coverage
limits but does not include the emphasized text. See Regs., Conn. State
Agencies § 38a-334-6 (d) (1).