Scandariato v. Borrelli

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TESSA SCANDARIATO v. EDWARD BORRELLI
(AC 35918)
Gruendel, Lavine and Flynn, Js.
Argued September 15—officially released December 2, 2014
(Appeal from Superior Court, judicial district of New
London, Martin, J.)
Lawrence H. Adler, with whom, on the brief, was
Patricia M. Shepard, for the appellant (defendant).
Stephen M. Reck, for the appellee (plaintiff).
Opinion
GRUENDEL, J. The defendant, Edward Borrelli,
appeals from the judgment of the trial court denying
his motions for remittitur and to set aside the verdict.
The defendant filed these motions after a jury verdict
awarding damages to the plaintiff, Tessa Scandariato,
on a claim of negligence. On appeal, the defendant
claims that the court (1) improperly allowed the plain-
tiff’s expert to testify to a permanent partial impairment
rating as to the plaintiff’s brain, (2) failed to instruct
the jury properly on the impairment rating, (3) and
failed to consider the effect of the allegedly improper
testimony on the jury’s determination of damages when
ruling on his posttrial motions. We disagree, and accord-
ingly, affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On October 20, 2006, the plaintiff and the defendant
were involved in an automobile accident in Norwich
when their vehicles collided. The accident occurred
while the plaintiff was proceeding directly through an
intersection and the defendant was making a left turn
into a gasoline station parking lot. The defendant turned
his vehicle directly into the plaintiff’s path, leaving her
no time to avoid the collision. The plaintiff alleged that
as a result of the accident, she sustained injuries to her
spine, neck, shoulders, head, and chest. The plaintiff
commenced a negligence action against the defendant,
seeking economic damages, including medical
expenses and lost wages, as well as noneconomic dam-
ages, including damages for the permanent impairment
to her ability to enjoy and participate in life’s activities.
The defendant denied the allegations of negligence,
asserting that the plaintiff’s negligence was the proxi-
mate cause of the accident.
The case was tried before a jury in the fall of 2012.
During the trial, the plaintiff proffered the testimony
of Anthony G. Alessi, a neurologist, who opined on the
extent and permanency of the plaintiff’s injuries. Alessi
testified that, in his professional opinion, the plaintiff’s
injuries were caused by the automobile accident with
the defendant. Furthermore, he stated that, in his opin-
ion, the plaintiff suffered chronic injuries that would
persist for the rest of her life. Alessi also opined that
these injuries resulted in a permanent partial impair-
ment of 5 percent of the plaintiff’s brain.
At the conclusion of trial, the jury returned a verdict
in favor of the plaintiff, awarding her $10,169.24 in eco-
nomic damages and $306,296.60 in noneconomic dam-
ages. The jury assigned 80 percent comparative fault
to the defendant and 20 percent comparative fault to
the plaintiff. As a result, the plaintiff’s total recovery
was reduced by 20 percent to $253,172.67. The defen-
dant then filed a motion to set aside the verdict and a
motion for remittitur. The court denied the motions and
rendered judgment in accordance with the verdict. This
appeal followed.
I
The defendant claims that the court improperly
admitted the expert testimony of Alessi regarding the
permanent partial impairment rating that he assigned
to the plaintiff’s brain. Specifically, the defendant con-
tends that the court improperly concluded that the testi-
mony was admissible without first satisfying the
threshold requirements set forth in State v. Porter, 241
Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied,
523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998),
and second, that the testimony was irrelevant or unduly
prejudicial under §§ 4-1 and 4-2 of the Connecticut Code
of Evidence. We disagree.
A
The following additional facts are relevant to our
resolution of this claim. Prior to trial, the plaintiff dis-
closed her intention to proffer the expert testimony
of Alessi, her treating physician and a board certified
neurologist. Alessi opined at his deposition, and again
at trial,1 that the plaintiff suffered from chronic and
severe headaches, which were the result of a neck injury
sustained during the accident. In an attempt to quantify
these headaches for the purposes of assessing damages,
Alessi assigned a 5 percent permanent partial impair-
ment rating to the plaintiff’s brain.
Alessi explained his reasoning for assigning the
impairment rating to the brain rather than the neck
or the shoulders. First, he stated that he assigned the
impairment to the brain because his treatment of the
patient focused on her headaches and did not include
treatment of her neck or shoulders. Next, he clarified
that it is often difficult to rate impairment in cases,
such as this one, where the injury is sustained in one
area of the body (neck) but where the pain manifests
itself in another area (head). He also noted that the
5 percent permanency rating represented the lowest
possible rating he could have assigned. Finally, Alessi
clarified that the impairment rating to the brain was
solely related to the plaintiff’s headaches and was in
no way indicative of any cognitive loss.
Alessi readily admitted that the impairment rating
did not follow the American Medical Association Guide-
lines to the Evaluation of Permanent Impairment (AMA
guidelines). He explained his reasoning for deviating
from the AMA guidelines as twofold: first, the guidelines
fail to provide adequate direction for rating brain injur-
ies2 and second, the guidelines would have exaggerated
the plaintiff’s injuries by recommending that Alessi rate
both the plaintiff’s head and neck.3
Prior to trial, the defendant sought to preclude
Alessi’s impairment rating testimony on the ground that
it pertained to the brain and not to the neck or the
spine. On August 31, 2012, the defendant filed a motion
in limine, seeking to preclude the testimony. Within the
motion in limine, the defendant conceded that ‘‘[c]er-
tainly, the medical treatment of the plaintiff and her
condition and prognosis are valid scientific subjects
within the expertise of her treating physician. However,
Alessi’s testimony fails the second requirement that the
scientific evidence fits the case in which it is presented.’’
The defendant argued that an impairment rating of the
brain was ‘‘illogical’’ when the plaintiff alleged injuries
to her neck and shoulders.
On September 28, 2012, the court heard arguments
on the motion in limine. The court heard oral argument
from both the defendant’s and the plaintiff’s counsel.
The court also considered arguments made in the defen-
dant’s motion, as well as in the plaintiff’s memorandum
of law in opposition to the motion. In addition, prior
to the hearing, the court reviewed the transcript of
Alessi’s deposition testimony. Upon reviewing the infor-
mation before it, the court concluded that Alessi was
an expert whose testimony was reliable and relevant.
The court also determined that any potential jury confu-
sion with regard to the impairment rating of the brain
would be settled through cross-examination and proper
jury instruction. As a result, the court denied the defen-
dant’s motion in limine and admitted the impairment
testimony at trial.4
We first set forth the applicable standard of review
and legal principles governing our analysis of this claim.
‘‘[T]he trial court is vested with wide discretion in
determining the admissibility of evidence. . . .
Because a trial court’s ruling under Porter involves the
admissibility of evidence, we review that ruling on
appeal for an abuse of discretion.’’ (Internal quotation
marks omitted.) Milton v. Robinson, 131 Conn. App.
760, 770, 27 A.3d 480 (2011), cert. denied, 304 Conn.
906, 39 A.3d 1118 (2012).
‘‘In State v. Porter, supra, 241 Conn. 57, our Supreme
Court adopted the test for determining the admissibility
of scientific evidence set forth in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993). In so doing, our Supreme
Court noted two threshold requirements to the admissi-
bility of scientific evidence. First, that the subject of
the testimony must be scientifically valid, meaning that
it is scientific knowledge rooted in the methods and
procedures of science . . . and is more than subjective
belief or unsupported speculation. . . . This require-
ment establishes a standard of evidentiary reliability
. . . as, [i]n a case involving scientific evidence, eviden-
tiary reliability will be based upon scientific validity.
. . . Second, the scientific evidence must fit the case
in which it is presented. . . . In other words, proposed
scientific testimony must be demonstrably relevant to
the facts of the particular case in which it is offered, and
not simply be valid in the abstract.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Haughey, 124 Conn. App. 58, 71, 3 A.3d 980,
cert. denied, 299 Conn. 912, 10 A.3d 529 (2010).
The defendant argues that Alessi’s impairment rating
testimony required a validity assessment under Porter
because it was not based on the AMA guidelines.
Although the defendant concedes that ‘‘the process of
assigning permanency ratings to injured persons for the
purposes of litigation is commonplace and ordinarily
accepted,’’ he maintains that a validity assessment must
be conducted when those ratings are not based on ‘‘any
scientific or peer reviewed text . . . .’’ We agree that
a preliminary assessment is required to determine the
validity of an expert’s underlying methodology. We con-
clude, however, that the court’s actions constituted a
proper validity assessment under the requirements of
Porter.
In Porter and its progeny, our appellate courts empha-
sized the need for flexibility in determining the reliabil-
ity of scientific evidence, urging trial courts to make
assessments on a case-by-case basis. See State v. Porter,
supra, 241 Conn. 146 (‘‘‘[t]he inquiry . . . is, we empha-
size, a flexible one’ ’’); see also State v. Griffin, 273
Conn. 266, 276, 869 A.2d 640 (2005) (acknowledging
that Porter requires flexible, case-by-case approach);
Hayes v. Decker, 263 Conn. 677, 685 n.2, 822 A.2d 228
(2003) (trial court found to be in error for applying
Porter inquiry mechanically). Among the factors that
courts should consider are ‘‘general acceptance in the
relevant scientific community . . . whether that meth-
odology has been tested and subjected to peer review
. . . the prestige and background of the expert witness
supporting the evidence . . . [t]he extent to which the
scientific technique in question relies on subjective
interpretations and judgments by the testifying expert,
rather than on objectively verifiable criteria . . .
whether a testifying expert can present and explain the
data and methodology underlying his or her scientific
testimony in such a manner that the fact finder can
reasonably and realistically draw its own conclusions
therefrom . . . [and] whether the scientific technique
underlying the proffered expert testimony was devel-
oped and implemented solely to develop evidence for
in-court use, or whether the technique has been devel-
oped or used for extrajudicial purposes.’’ (Citations
omitted; internal quotation marks omitted.) State v. Por-
ter, supra, 84–86; id., 86–87 (recognizing that ‘‘[t]he
actual operation of each factor . . . depends greatly
on the specific context of each case’’).
With this standard in mind, we cannot conclude that
the court failed to serve its gatekeeping function under
Porter. On September 28, 2012, the court held a short
hearing on the morning of trial before it ruled on the
motion in limine. Prior to the hearing, the court had
reviewed the transcript of Alessi’s deposition testi-
mony, which would later be shown to the jury in lieu
of live testimony. The deposition testimony detailed
Alessi’s extensive background as a neurologist. Alessi
testified that he was a board certified neurologist who
was licensed to practice medicine in Connecticut, New
York, and Michigan. He testified that he served as the
director of a stroke program at William W. Backus Hos-
pital in Norwich, and had previously served as the hospi-
tal’s chairman of neurology from 2010 until 2012. He
also testified that he was an associate clinical professor
in neurology at the University of Connecticut. He stated
that he had previously served as an expert witness
in other trials; having testified in court ‘‘about twenty
times’’ throughout his career. On the basis of these
statements, the court reasonably could have concluded
that Alessi had the expertise and background to support
his testimony. Additionally, the court reasonably could
have found that Alessi would be capable of explaining
his findings to the jury in a way that would allow it to
reach an independent conclusion.5
During his deposition, Alessi explained the methodol-
ogy underlying his conclusions. First, Alessi’s testimony
revealed that the impairment rating was based primarily
on his direct observation, treatment, and oversight of
the plaintiff. The plaintiff became a patient of his on
December 1, 2008, and continued as a patient through
June, 2009. At the first medical appointment, Alessi
conducted a neurological examination, which consisted
of a mental status evaluation, cranial nerve testing,
motor examination, deep tendon reflexes, and a sensory
and a musculoskeletal examination. During Alessi’s
treatment, he prescribed physical therapy treatment for
the plaintiff and oversaw her progress while she
attended physical therapy sessions. Alessi also pre-
scribed the plaintiff Prednisone to treat inflammation
of the muscles. The record thus indicates that Alessi’s
methods were ‘‘developed or used for extrajudicial pur-
poses’’ rather than having been ‘‘implemented solely to
develop evidence for in-court use . . . .’’ State v. Por-
ter, supra, 241 Conn. 86.
Alessi also based his conclusions on his review of
the plaintiff’s other medical records. During his treat-
ment of the plaintiff, he had reviewed an MRI that was
conducted on the plaintiff’s brain immediately after the
accident. He also had access to all of the plaintiff’s
hospital, chiropractic, and physical therapy records. On
the basis of this information, he concluded that his
opinions were consistent with the findings of the plain-
tiff’s other health care providers. This consistency
between Alessi and other medical professionals served
as the equivalent of a ‘‘peer review’’ under Porter, and
provided another factor weighing in favor of admitting
his testimony. Id., 86 (whether methodology has been
tested or subjected to peer review is important factor
in determining reliability).
Finally, Alessi spent time at his deposition describing
impairment ratings, including the process he used in
developing the plaintiff’s rating. He testified that an
impairment rating is ‘‘an estimate based on the history
and physical examination of what [the plaintiff’s]
impairment will be based on the injury . . . at that
time.’’ He then went on to explain that when he rates
impairments, he typically follows the fifth edition of
the AMA guidelines.6 In this particular case, however, he
based the rating on his own knowledge and experience
because the guidelines did not give proper guidance for
this type of injury.7 Alessi further described that his
reasoning for rating the brain was his belief that the
source of the impairment was the headaches, rather
than the damage to the muscles in the plaintiff’s neck.
He stated that in this case, where damage to the neck
caused pain to radiate up to the head, the guidelines
would have recommended that he rate impairment to
both the neck and the head. He further stated that the
guidelines fail to provide specific reference charts for
ratings of the brain. The court found this explanation
sufficient and the underlying testimony reliable.
On the basis of this information, the court reasonably
could have concluded that Alessi’s methodology, which
was based on his experience treating the plaintiff, his
review of her medical records, and the guidance of the
AMA guidelines, was reliable. The court also could have
concluded that Alessi was capable of presenting his
methodology in such a way ‘‘that the fact finder can
reasonably and realistically draw its own conclusions
therefrom.’’ State v. Porter, supra, 241 Conn. 86.
In concluding that the court properly admitted
Alessi’s testimony, we must also acknowledge an
important limitation under Porter, which is that courts
must review only the underlying methodologies of the
expert’s conclusions, and not the conclusions them-
selves. Id., 83. In the present case, when the defendant
disputed Alessi’s impairment rating, he was challenging
the expert’s conclusions and not the underlying method-
ology. Although the defendant may argue that it would
have been more appropriate to have rated impairment
of the neck or the cervical spine, a trial court does not
have the power to preclude testimony on the basis
of its opinion that there are ‘‘better grounds for an
alternative conclusion.’’ Hayes v. Decker, supra, 263
Conn. 686 (trial court improperly found expert’s testi-
mony inadmissible based on conclusion court drew
from that testimony and not its underlying methodol-
ogy). For example, in State v. Pappas, 256 Conn. 854,
866–67, 776 A.2d 1091 (2001), the defendant sought to
exclude mtDNA analysis of hair recovered from the
scene of a robbery. Our Supreme Court concluded that
the mtDNA analysis process was valid and reliable, and
that any issues regarding contamination of the sample
would bear solely on the weight of the evidence, rather
than its admissibility, at trial. Id., 880–81. Similarly, we
conclude that Alessi’s impairment rating was based on
reliable scientific and medical methods of treatment.
Therefore, any challenge regarding the actual applica-
tion of the impairment rating must bear solely on the
weight of the evidence.
Finally, we find no error in the court’s determination
that it could assess the reliability of expert testimony
without the need for a prolonged and detailed Porter
hearing. The court understood Alessi’s extensive knowl-
edge and personal experience with the plaintiff, as well
as his ability to explain his methods and reasoning. We
further note that because Alessi’s testimony was shown
to the jury by video, the court was in the unique position
to review the actual trial testimony when evaluating its
reliability. On the basis of the facts and procedural
history of this case, we cannot say that the court abused
its discretion when it made the preliminary determina-
tion to admit Alessi’s testimony under Porter.
B
Alternatively, the defendant claims that the impair-
ment testimony was inadmissible because it was irrele-
vant and unduly prejudicial. As the defendant did not
object to the testimony on this basis at trial, we do not
reach the merits of these claims.
The standard for the preservation of a claim alleging
an improper evidentiary ruling at trial is well settled.
‘‘This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . In objecting to evidence, counsel must
properly articulate the basis of the objection so as to
apprise the trial court of the precise nature of the objec-
tion and its real purpose, in order to form an adequate
basis for a reviewable ruling. . . . Assigning error to
a court’s evidentiary rulings on the basis of objections
never raised at trial unfairly subjects the court and the
opposing party to trial by ambush.’’ (Citations omitted;
internal quotation marks omitted.) State v. Gonzalez,
272 Conn. 515, 539–40, 864 A.2d 847 (2005); see Practice
Book § 5-5. While it is true that evidence admissible
under Porter is still subject to all other rules regarding
the admissibility of evidence,8 we are not bound to
consider claims raised for the first time on appeal. State
v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982).
A review of the trial transcript reveals that there were
no direct objections to Alessi’s testimony regarding the
5 percent permanent partial impairment rating given to
the brain.9 Furthermore, a review of the record confirms
that questions of relevancy or undue prejudice were
not raised in the defendant’s motion in limine or in
any other pretrial motion. Trial counsel is under an
obligation to distinctly raise questions of law on the
record prior to closing argument or in a written trial
brief. See Practice Book § 5-2. As these claims were
not properly preserved according to our rules of proce-
dure, we do not address the merits of the claims on
appeal. See Practice Book § 60-5.
II
The defendant additionally claims that the court erred
by failing to instruct the jury properly as to the follow-
ing: that the plaintiff was not claiming an injury to the
brain, that there were no cognitive deficits as a result
of the accident, and that the permanent impairment
rating applied only to her alleged neck injury. We
disagree.
We begin with the standard of review governing the
defendant’s challenge to the trial court’s jury instruc-
tion. ‘‘Our review of the defendant’s claim requires that
we examine the court’s entire charge to determine
whether it is reasonably possible that the jury could
have been misled by the omission of the requested
instruction. . . . As long as [the instructions] are cor-
rect in law, adapted to the issues and sufficient for the
guidance of the jury . . . we will not view the instruc-
tions as improper. (Citations omitted; internal quotation
marks omitted.) State v. Aviles, 277 Conn. 281, 309–10,
891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108,
166 L. Ed. 2d 69 (2006).
Under this standard of review, we do not find that
the court’s instructions were improper or misleading.
In reviewing the jury instructions, it is apparent that
the court took steps to avoid jury confusion on the
issue of permanency. The court provided, in relevant
part, the following instructions to the jury: ‘‘In this case,
the plaintiff’s neurologist, Anthony Alessi . . . ren-
dered an opinion that [the plaintiff] suffered a 5 percent
permanent partial impairment to the brain, which trans-
lates to a 5 percent whole person permanent partial
impairment as a result of her headaches, which were
caused by her permanent neck injury. Dr. Alessi opined
that the plaintiff’s permanent injuries are a direct result
of the motor vehicle collision of October 20, 2006. If
you find by a fair preponderance of the evidence that
the plaintiff did suffer a permanent injury as a result
of this collision, then she should be fairly compensated
for that.’’ (Emphasis added.) These instructions prop-
erly summarized the plaintiff’s allegations by stating
that although Alessi categorized the injury as a brain
impairment, the substance of the claim was that the
plaintiff suffered from headaches as a result of an injury
to the neck. The court additionally instructed the jury
that the plaintiff claims that she suffered ‘‘injuries to
her spine, neck, back, shoulders, head and chest . . . .’’
The jury was never instructed to consider a cognitive
injury to the brain, nor was the plaintiff ever allowed
to argue such an injury at trial.
Having reviewed the court’s instructions, we find that
the charge to the jury was proper. The court’s instruc-
tions provided sufficient guidance for the jury to con-
sider the credibility of Alessi’s testimony. It properly
tailored the instructions to identify the plaintiff’s allega-
tions of injuries to her neck, head, and shoulders and
not as injuries to her brain. On that basis, the court’s
instructions were proper because they were correct
in law and adequately relayed the substance of the
defendant’s requested instructions.
III
Finally, the defendant claims that the court failed to
consider the effect of Alessi’s testimony on the jury’s
award of noneconomic damages when it denied the
defendant’s motions to set aside the verdict and for
remittitur. We disagree.
‘‘The standard of review governing our review of a
trial court’s denial of a motion to set aside the verdict
is well settled. The trial court possesses inherent power
to set aside a jury verdict which, in the court’s opinion,
is against the law or the evidence. . . . [The court]
should not set aside a verdict where it is apparent that
there was some evidence upon which the jury might
reasonably reach their conclusion, and should not
refuse to set it aside where the manifest injustice of
the verdict is so plain and palpable as clearly to denote
that some mistake was made by the jury in the applica-
tion of legal principles . . . . Ultimately, [t]he decision
to set aside a verdict entails the exercise of a broad
legal discretion . . . that, in the absence of clear abuse,
we shall not disturb.’’ (Internal quotation marks omit-
ted.) Jackson v. Water Pollution Control Authority, 278
Conn. 692, 702, 900 A.2d 498 (2006).
The standard governing review of motions for remitti-
tur is similarly that of an abuse of discretion. See John-
son v. Pike, 136 Conn. App. 224, 228, 46 A.3d 191 (2012).
‘‘The court’s broad power to order a remittitur should
be exercised only when it is manifest that the jury [has]
included items of damage which are contrary to law,
not supported by proof, or contrary to the court’s
explicit and unchallenged instructions.’’ (Internal quo-
tation marks omitted.) Saleh v. Ribeiro Trucking, LLC,
303 Conn. 276, 281, 32 A.3d 318 (2011). The relevant
inquiry is whether the verdict falls within the necessar-
ily uncertain limits of fair and reasonable compensation
or whether it so shocks the conscience as to compel
the conclusion that it was due to partiality, prejudice
or mistake. Id.
On the basis of our review of the record, we conclude
that the court did not abuse its discretion when it denied
the defendant’s motions. In its memorandum of deci-
sion, the court explained that the jury verdict was rea-
sonably supported by the facts and law. The court stated
that Alessi’s testimony, as well as his responses to cross-
examination, carefully explained his findings, leaving
little room for confusion as to the basis for an impair-
ment rating of the brain. Furthermore, our review of
the transcript confirms that additional evidence of
impairment was provided through the testimony of
three of the plaintiff’s family members.10 Each family
member described the plaintiff’s active lifestyle, the
physical demands of her profession, as well as how her
life has been impacted by her injuries. Additionally,
evidence was presented that the plaintiff was a young
individual who could be expected to live with her injur-
ies for fifty-four years.11 Under these facts, we do not
find a clear and palpable mistake in the jury’s conclu-
sion, nor do we find that the jury verdict was unreason-
able or unfair. Therefore, the court’s rulings denying
the defendant’s motions to set aside the verdict and for
a remittitur were not an abuse of discretion.12
The judgment is affirmed.
In this opinion the other judges concurred.
1
Alessi’s trial testimony was video recorded prior to trial. The deposition
video, including direct examination and cross-examination, was presented
to the jury on October 1, 2012.
2
Alessi testified in part:
‘‘[The Defendant’s Counsel]: With respect to the 5 percent rating of the
brain, is it fair to say that you didn’t actually go to an AMA guidebook and
come up with that number?
‘‘[Alessi]: No.
‘‘[The Defendant’s Counsel]: Unlike the cervical spine ratings, there are
no specific charts that you would use when you rate the brain.
‘‘[Alessi]: That’s why I didn’t use the AMA guidelines.’’
3
At Alessi’s deposition, he stated: ‘‘For the neck and the headaches. The
two are so—so many people try to compartmentalize this, and that’s probably
the problem we’re getting into here, is that you can’t necessarily compart-
mentalize the problem to the neck or the head. And that’s where these
permanency guidelines fall apart. . . . I guess I could have rated two levels
and given her a bigger rating, but I thought that it was more judicious to
just give her one rating based on the brain.’’
At trial, Alessi testified: ‘‘With a rating, it’s kind of either/or; some people
will rate both things, rate the neck and rate the brain. I don’t think that’s
fair. I think, in this situation, you rate either/or, so I chose to rate the brain,
although I guess I could have rated the cervical spine as the origin; you can
go back and forth. Some practitioners will come up with a much higher
rating based on the neck and brain.’’
4
The court stated in relevant part: ‘‘I’ve had an opportunity to review the
deposition transcript . . . . The plaintiff has a claim that she has an injury to
her neck as a result of this accident, which has caused her severe headaches,
allegedly. The doctor is not opining that she has a cognitive loss to her
brain, but rather is indicating that her neck injury is causing headaches,
which are obviously in the head. . . . He’s clearly an expert. His testimony
will clearly assist the jury in understanding what the evidence is and
determining the facts necessary to resolve this case.’’
5
Our state courts have recognized that the permanency of an injury is a
finding that can be determined by jurors without expert testimony. ‘‘This
principle is based on the recognition by Connecticut courts that jurors are
able to evaluate for themselves the testimony of the plaintiff, as well as the
nature and duration of the injury, the likelihood of its continuance into the
future, and the lack of total recovery by the time of trial. . . . If a jury has
the opportunity to appraise the condition of a plaintiff and its probable
future consequence, an award of damages for permanent injury and for future
pain and suffering is proper.’’ (Citations omitted.) Parker v. Supermarkets
General Corp., 36 Conn. App. 647, 650–51, 652 A.2d 1047 (1995).
6
At Alessi’s deposition the following examination took place:
‘‘[The Defendant’s Counsel]: What guide did you use to come up with
your rating?
‘‘[Alessi]: The AMA guidelines. I still use the fifth edition.’’
7
At the deposition, Alessi described his reasoning for deviating from the
AMA guidelines:
‘‘[The Defendant’s Counsel]: Did you actually open the book and refer to
a section to come up with this rating or was it just, at this point, based on
your experience?
‘‘[Alessi]: I usually do, but I think in this case it may have been based on
experience because it’s so difficult to rate the brain. If I were rating [the]
cervical spine, there are specific charts and tables available.’’
During the trial, Alessi testified about his reasoning for rating the brain
and not the neck or spine:
‘‘[The Plaintiff’s Counsel]: Doctor, why did you give her an impairment
of the brain?
‘‘[Alessi]: Well, because the headaches were the more specific problem
that she was facing, and it seemed like—it did provide the greatest debility
overall in terms of impairment and getting in the way of her ability to
function.
‘‘[The Plaintiff’s Counsel]: But, the headaches were a result of the neck
injury.
‘‘[Alessi]: Yes.’’
8
See State v. Porter, supra, 241 Conn. 90 (evidence meeting threshold
inquiry of Porter may still be excluded for ‘‘failure to satisfy other rules
of evidence’’).
9
The defendant’s counsel did, in fact, object to two questions. First,
the defendant objected to Alessi’s testimony regarding whether the AMA
considered a brain impairment equal to a full body impairment. Second, the
defendant objected to Alessi’s opinion that the neck was also permanently
injured. These objections do not challenge the admissibility of the impair-
ment testimony. Rather, the objection to the first question challenged the
admissibility of the AMA’s classification of brain impairments. The objection
to the second question challenged the ability of Alessi to testify as to the
neck injury, as his treatment of the plaintiff was limited to the head.
10
The plaintiff’s spouse, as well as her mother and father, testified to the
impact that her injuries had on her ability to work and generally enjoy life.
11
Actuarial tables used at trial indicated that a white female, age twenty-
seven, would have an average statistical life expectancy of 54.6 years
remaining.
12
Additionally, in part I of this opinion we held that the trial court did
not err when it admitted the challenged impairment testimony. As that
evidence was admitted properly at trial, the jury was free to weigh its
credibility and consider it in reaching its verdict. Thus, we cannot hold
that the court failed to consider errors during posttrial motions when we
previously have determined that no error existed.