Sohrab Maghrebi v. Maria Vargas (2010)

MEMORANDUM OF DECISION MOTION FOR NEW TRIAL (# 118) AND TO SET ASIDE VERDICT (# 117)

This negligence action involved a claim of personal injury suffered by the plaintiff who was riding a bicycle in East Rock Park in New Haven when, he alleges, he was struck by the defendant's car.   On May 14, 2010, a jury rendered a general verdict in favor of the defendant.   The plaintiff now seeks a new trial,¹ claiming that there is newly discovered evidence.   For the foregoing reasons, the motion is denied.

“A party is entitled to a new trial on the ground of newly discovered evidence if such evidence is, in fact, newly discovered, will be material to the issue on a new trial, could not have been discovered and produced, on the trial which was had, by the exercise of due diligence, is not merely cumulative and is likely to produce a different result ․ This rule is necessary, for without it there might never be an end to litigation ․” Burr v. Lichtenheim, 190 Conn. 351 (1983) citing Turner v. Scanlon, 146 Conn. 149, 163 (1940).  “The basic question which the court has to decide is whether upon all the evidence an injustice has been done.   In deciding this question, the court has the exercise of sound legal discretion, and its action cannot be disturbed unless this discretion has been abused.”  Id.

The plaintiff's claim of newly discovered evidence involves evidence that was presented at trial.   Therefore, the court will first review the evidence as to negligence presented at trial and next the argument as to newly discovered evidence.

At trial, the plaintiff testified that he was riding his bicycle when, at the intersection of Livingston and East Rock Road, he stopped at the sign, looked for traffic, saw none and proceeded to cross East Rock Road. He testified that once he crossed the east bound lane of East Rock Road, he was struck by a car owned and operated by the defendant.   He testified that the defendant failed to stop at the stop sign.   He further testified that he saw two females speaking with the ambulance personnel that had arrived at the scene.   These females came from the defendant's car.   The defendant testified that she was driving her car on East Rock Road, having come from the Fair Haven section of New Haven.   Karen Juarez was a passenger in her car.   When asked about the current whereabouts of Juarez, the defendant testified that she was in Puerto Rico. The defendant testified that as she approached the intersection of East Rock and Livingston, she saw another car, and then a man on the ground.   She went to the man to check on his status and called 911.   Defendant's counsel questioned her regarding the police report of the incident, which stated that she told the police officer she had applied the brakes of her car, did not make contact but the man fell.   To this, the defendant testified that she had never seen the police report before that day, and that it was wrong.   Contrary to the report, she testified that she had seen the other car and then the man (the plaintiff) on the ground.   At this juncture, defense counsel withdrew all special defenses of various allegations of comparative negligence.

The plaintiff and the defendant were the only witnesses at trial.   The court held a charge conference.   The plaintiff submitted a request for a missing witness charge, which was withdrawn after discussion of General Statutes § 52-216c.   The court denied plaintiff's request to argue to the jury that an adverse inference should be drawn from the defendant's failure to call Juarez, because the plaintiff did not prove that the witness was available to testify.   The defendant testified at trial that the witness Juarez was in Puerto Rico. That information was also conveyed to plaintiff's counsel on the Friday before trial, when both counsel had discussions regarding defendant's discovery disclosures.

The plaintiff argued that late discovery disclosure by the defendant hampered his ability to find Juarez.   It should be noted that the presiding judge ordered the defendant to comply with all outstanding discovery requests by Friday May 7, 2010;  the presentation of evidence began on Thursday May 13.   Notwithstanding any argument of “late” disclosure, upon which the court makes no determination, the plaintiff certainly possessed the name and address of the defendant prior to any discovery disclosures.   It was within the plaintiff's right to depose the defendant and gather information for use at trial.   This was not done.

The court held a hearing on the motion for new trial on July 16, 2010.   While no testimony was presented, the plaintiff introduced five exhibits and the parties presented argument.   At the hearing, the witness, Karen Juarez, was present in the courtroom after having been subpoened by plaintiff's counsel.   The subpoena was entered as exhibit # 1 at the hearing, and it showed Juarez' address to be 463 Poplar Street, the same address listed for her in the police report.   Plaintiff's counsel argued that Juarez was never in Puerto Rico, as told to him before trial and as testified to at trial by the defendant.   The crux of plaintiff's argument is that Juarez' presence in Connecticut at the time of the trial, which was misrepresented to him both before and during trial, is the newly discovered evidence.   The plaintiff argues that the Juarez' testimony, as to how the plaintiff came to be hit by a car, would affect the credibility of the defendant and her new “version” of the incident, thereby resulting in a different verdict.   The court is not persuaded.

The unredacted police report was entered as exhibit # 5 at the July hearing.   That report states as follows with respect to Juarez:  “[Juarez] stated they stopped for stop sign and as they began going bicyclist travelling on Livingston in the roadway did not stop for his stop sign and rode in front of them.  [Juarez] stated [Vargas] stopped in time and that bicyclist lost control of his bike and fell off.”   Assuming for argument's sake that the credibility of the defendant was completely impeached by Juarez' testimony, the testimony still puts all culpability for the accident on the plaintiff.   It is by no means certain that the testimony would result in a different verdict in this case.

In this case, the defendant was extensively cross-examined about her testimony on the stand, as opposed to what was contained in the police report to be stated by her at the scene.   It cannot be said that the plaintiff had no means of impeaching the defendant's credibility at trial.

To summarize, the evidence that the witness Juarez was in fact in Connecticut, and not in Puerto Rico, at the time of the trial does not rise to the level of newly discovered evidence which permits a court to grant a new trial.   The evidence could have been discovered and produced, by the exercise of due diligence, through a deposition of the defendant, whose presence during the pendency of this case was never in dispute.   Nor is the evidence likely to result in a different verdict.   Rather, the evidence could just as easily result in another defendant's verdict.

The motion for new trial is denied.

Maureen M. Keegan, J.

FOOTNOTES

FN1. While the plaintiff filed identical motions for new trial and to set aside the verdict, at oral argument plaintiff agreed that the motion for new trial was the proper vehicle to raise the claim which is based upon newly discovered evidence.   The court will treat the motion to set aside the verdict as withdrawn..  FN1. While the plaintiff filed identical motions for new trial and to set aside the verdict, at oral argument plaintiff agreed that the motion for new trial was the proper vehicle to raise the claim which is based upon newly discovered evidence.   The court will treat the motion to set aside the verdict as withdrawn.

Keegan, Maureen M., J.