DocketNumber: No. 546812
Judges: CORRADINO, JUDGE.
Filed Date: 7/28/2000
Status: Non-Precedential
Modified Date: 4/17/2021
At trial, as noted, liability was contested but also the defense contested the issue of damages — whether and how much the plaintiff would be entitled to recover even if she prevailed on her theory of liability. CT Page 9276
In the charge, the court instructed the jury that: "The plaintiff has the burden of proving every essential element of her case by a preponderance of the evidence." The court then instructed the jury on the plaintiff's theory of liability. The court then instructed the jury on causation; the court said: "If a plaintiff proves her theory of liability, that would still not entitle the plaintiff to recover damages. The plaintiff must still prove by a preponderance of the evidence causation, that the negligent conduct of the defendant caused her damages." At the end of the causation charge, the court said before discussing the defenses of contributory and comparative negligence:
"Now if the plaintiff has proven her theory of liability to you and that her injuries and damages were caused by the defendant, you may not go on to consider damages, which is the final portion of my charge, without first considering certain defenses that have been raised by the defendant."
At the conclusion of the charge on defenses, the court finally charged the jury on damages. Before going into specifics, the court generally said: "The fact that I'm instructing you on damages does not mean that I have concluded that the plaintiff has proven her theory of liability or causation; that's not my job . . . I'm giving you these instructions on damages because it's my responsibility to give you a full and complete charge on the law."
After the main portion of the charge, the court discussed the verdict forms. As to the plaintiff's verdict form, the court displayed it to the jury and said if you return a plaintiff's verdict "you determine the full damages that the plaintiff is entitled to according to my instructions." The court then explained a line on that form through which the jury could inform the court of its decision on the defense of comparative negligence. The court then showed the jury the defendant's verdict form and excused the jury to begin deliberations. Neither side submitted interrogatories to the jury and the court did not. The jury returned a verdict in favor of the defendant.
The plaintiff has now moved to set aside the verdict because of what she claims were prejudicial remarks made by defense counsel during closing argument. The closing arguments were not recorded by agreement of counsel.
As to one doctor, the plaintiff submitted a written report pursuant to §
In closing argument, defense counsel alluded to the fact that the doctor whose report was introduced had not been brought in to testify by the plaintiff. Objection was made during argument; the court read the statute and admonished the jury that no adverse inference could be drawn from the failure to call the doctor. In the charge, the court again referred to the statute, to the fact that no adverse inference could be drawn from failure to call the doctor and told the jury that lawyers rely on that statute in the preparation of their cases so fairness required that they, the jury, obey the statute's admonitions.
Thereafter, defense counsel alluded to the fact that the plaintiff's husband was in the military, was assigned to Hawaii, that the plaintiff went with him. The lawyer for the defendant then argued that for all the months the plaintiff was in Hawaii, she never availed herself of any medical treatment; also, the inference was clearly raised that because of her husband's military status there would have been coverage for such treatment.1 Plaintiff's counsel strenuously objected, he stated, as was the case, that there had been no evidence presented that such treatment would have been covered, and, in fact, such treatment would not have been covered under the husband's Army insurance. Plaintiff's counsel represented that defense counsel knew the latter was the case. The court at the time the argument was made and in the charge told the jury that there was no evidence the plaintiff had access to medical coverage while her husband was stationed in Hawaii and that "the jury should not consider any comments regarding this matter for any purpose in this trial." Defense counsel took exception to this portion of the charge; as noted, the plaintiff took no exceptions to the charge.
Our Supreme Court has often held that the decision to set aside a verdict lies within the discretionary power of the court and the court's decision will not be disturbed unless there has been a clear abuse of the trial court's discretion. Lee v. Lee,
Generally, however, it has been said that the trial judge's right to CT Page 9278 set aside a verdict is not "unfettered." For example, in Camp v. Booth,
"The right to a jury trial is fundamental in our judicial system, and this court has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded [people] passed upon by the jury and not by the court."
Although this of course is an important consideration, query how central it is when the basis of the motion to set aside rests on a claim that prejudicial remarks in the closing argument in effect prevented a fair resolution of facts by the jury. In other words, prejudicial argument can vitiate the whole fact finding process by the jury and when such is the case, it ill behooves the party making those remarks to point to the constitutional right to have a jury find the facts when that party's words arguably interfered with the very ability of the jury to find the facts in a fair way.
It is certainly true that mere rhetorical exaggeration cannot be said to so exceed the limits of proper argument so as to require that a verdict be set aside. Riordan v. Gouin,
"A well-established rule is that a statement by counsel, not under oath, of a material fact pertinent to the issues unsupported by evidence, and prejudicial to the opposing party, constitutes reversible error unless it appears that the prejudicial effect has been effectively averted by instruction to disregard the statement or otherwise . . . It must, of course, be an unsworn assertion on counsel's own authority of the existence of the fact as distinguished from an appeal to the jury's recollection of the evidence or inferences claimed therefrom.
Another court has said: "When it is probable that a verdict has been influenced by the improper remarks of counsel, it should be promptly set aside. It may be apparent from the nature of the remarks themselves that they have influenced the verdict." Worden v. Gore-Meenan Co.,
On the other hand, where prejudicial remarks have been made and curative instructions have been given, it may not be appropriate to set aside the verdict. The cases are described as "exceptional" where curative instructions will not suffice to cure the prejudice. Yeske v.Avon Old Farms School, Inc.,
There is no talisman to decide this question. The decision really rests on the nature of the trial and the context in which the objectionable remarks were made. In this case, the remarks in closing argument about failure to call the doctor and reference to the fact that the plaintiff did not go for treatment in Hawaii where her husband was stationed and where she could have received treatment under his Army medical coverage were immediately objected to, counsel stated his reasons for the objection and the court gave curative instructions. The court then gave further curative instructions in its charge to the jury which immediately followed the closing argument.
On the other hand, this was not a lengthy trial, it was rather a simple allegation of injuries arising out of a motor vehicle accident. The whole case turned on the testimony and thus believability of the plaintiff and the defendant as to liability and in large measure on the plaintiff's testimony as to the existence of and therefore extent of any damages. The plaintiff claimed permanent disability with injuries affecting her to the time of trial and for the rest of her life. The court gave an instruction on permanent disability, that claim was a known factor in the case, and the court conducted a charging conference in which it reviewed its prospective charge. The objectionable remarks were made not in the opening statement but in closing argument, cf. Worden at
Does anything in the case law prevent this result? The defendant suggests that there were no interrogatories submitted and there was a "general verdict" in favor of the defendant. The defendant in its brief argues: "The jury in this case, in returning a verdict for the defendant, must necessarily have found that there was no liability in the part of the defendant or that the comparative negligence of the plaintiff exceeded 50%" (ergo) . . . "there was no occasion presented for the jury to include in their deliberations any consideration of whether or not Dr. Edgar testified as to the plaintiff's injuries or whether or not the plaintiff could have availed herself of medical facilities provided by the Army." This is not necessarily so — the jury could have decided to CT Page 9281 return a defendant's verdict because they concluded that the plaintiff had not proven causation as to any of her damages. In the beginning of this opinion, the court referred at length to its charge on causation, its preliminary remarks before the instruction on damages and as to its general remarks at the end of the charge on the verdict forms. All of this leads the court to conclude that the jury could well have decided to bring in a defendant's verdict based on a finding of no causation. In fact, given the particular issue now before it, the court is concerned about its standard charge and the way it strings together theory of liability — causation — the defenses, then damages. When a defendant's verdict form is returned how is one to know whether it is returned because the theory of liability is not proven or causation has not been shown or the plaintiff is found over 50% responsible for the accident. Why should the plaintiff suffer if the court's instructions on this point were not explicit? The defendant says no interrogatories were submitted by the plaintiff so that the issue could be resolved. But the remarks were made in closing argument, moments before the charge. Besides the effect of a general verdict and the use of interrogatories, is surrounded in great common law mystery. Why should not the defendant have submitted interrogatories to make sure the inappropriate remarks made in closing argument did not affect the verdict? The failure to submit interrogatories and the arguably resulting consequences of a general verdict should not be used as a sword by the party who may have made their use a prerequisite for determining the possible effect of that party's own prejudicial remarks on closing argument.
The defendant analogizes its argument to statements made in cases likeLevin v. Ritson,
In any event, even if the above analysis is incorrect, the court also has concluded that the comments made as to lack of treatment in Hawaii in effect were an inappropriate attack on the plaintiff's general credibility since they went to her claim at trial of permanent injury. Clearly, the plaintiff's credibility was at issue on the question of liability. The court does not believe its curative instructions removed the effect of unfair prejudice caused as to the issue of credibility.
The motion to set aside the verdict is granted.
Corradino, J.