Karen Guerri, Administrator of the Estate of Craig S. Guerri v. Mark Fiengo et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE THE VERDICT AND FOR A NEW TRIAL

On September 30, 2010, the jury in this case returned a verdict in favor of the defendant Mark Fiengo, D.O.

Subsequent to the court's acceptance of the verdict, the plaintiff filed this motion seeking to set aside the verdict and a request for a new trial.   The sole predicate of the motion is that the court failed to charge the jury with regard to one specification of negligence.   Specifically that the plaintiff requested the court to charge that the defendant Mark Fiengo was negligent in that “(H)e failed to contact the Pequot Treatment Center and or the treating physician to further discuss the patient.”   The Motion to Set Aside the Verdict thus asserts that the verdict was contrary to the law based upon errors in the court's instruction of the jury.

Standard of Review

Practice Book Section 16-35 authorizes the filing of a motion to set aside the verdict within ten days after the verdict is accepted.  “The motion to set aside the verdict is generally based upon one or more of the following basic grounds:  (1) it is contrary to the law;  (2) it is against the evidence;  and (3) the damages are either excessive or inadequate.”   Yules, Connecticut Trial Practice, second edition, section 11.24.

The power to set aside a verdict is to be exercised with “great caution” and only when the trial judge “is entirely satisfied upon the authorities or the statutes, that his error is unmistakable and must have been unquestionably harmful.”  Jackiewicz v. United Illuminating Co., 106 Conn 310, 311 (1927).

“When we review a challenged jury instruction, [t]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law ․ As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ․ we will not view the instructions as improper ․ Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues ․ The court should submit to the jury all issues as outlined by the pleadings and as reasonably supported by the evidence ․” Suttcliffe v. FleetBoston, 108 Conn.App. 799, 808-09 (2008) (Citations omitted;  internal quotation marks omitted.)  “When reviewing [a] challenged jury instruction ․ we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts ․ [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law ․ As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ․ we will not view the instructions as improper.   We do not critically dissect a jury instruction.”   (Citations omitted;  internal quotation marks omitted.)  Ancheff v. Hartford Hospital, 260 Conn. 785, 811 (2002).

“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 trial 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 application of legal principles ․ Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion ․” (Internal quotation marks omitted.)  Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006).

The court has the authority “using due caution, and in the exercise of its discretion, to set aside a verdict when it is satisfied that its rulings on evidence were erroneous and those erroneous rulings were consequential enough to have had a substantial effect on the verdict.”  Ardoline v. Keegan, 140 Conn. 552, 555-56 (1954).

The court is not persuaded that committed error in refusing to charge the jury on the particular specification of which the plaintiff complained.   In reviewing the testimony of the plaintiff's expert the court is not persuaded that the specification of negligence claimed by the plaintiff was supported by the evidence.

The motion to set aside the verdict and the request for a new trial are denied.

The Court,

Cosgrove, J.

Cosgrove, Emmet L., J.