Karla D. Rosa et al. v. Anesthesia Associates of New London, P.C. et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT NO.173, MOTION FOR NEW TRIAL NO. 174 AND MOTION FOR REDUCTION NO. 175

On May 12, 2011 the jury returned its verdicts and answered interrogatories ¹ in this medical malpractice case.   The jury rendered a defendant's verdict in favor of Dr. Thomas Miett and a plaintiff's verdict in the amount of $10,541,808 as against the defendant Anesthesia Associates of New London, PC (AANL).

The defendant AANL, on May 17, 2011 filed a Motion to Set Aside the Verdict, a Motion for a New Trial and a Motion to Reduce Verdicts.   These motions were supported by a Memorandum of Law dated May 19, 2011 and an amended Memorandum of Law dated October 24, 2011.   The defendant argues that it is either entitled to a new trial or a substantial remittitur from the jury's verdict in this case.   It claims the court failed to include cautionary limiting language in its charge relating to the manufacturer's manual for a medical device and further the evidence cannot support the plaintiff's claim that the defendant's negligence proximately caused the neuropathy that the plaintiff experiences in her feet.   Finally, the defendant makes an over-arching argument that the magnitude of this verdict shocks the conscience and must be set aside for that reason.

Before addressing the defendant's arguments the court will briefly review the claims and evidence submitted to the jury.   The plaintiff was scheduled for same day surgery for the repair of a hernia.   The anesthesia plan was to operate using local anesthetics.   During the course of the procedure it became necessary to convert from local to general anesthesia.   The plaintiff offered expert testimony that the defendants used the wrong type of medical device when they converted the plaintiff's elective surgery from local anesthetic to general anesthesia.   The plaintiff's expert testified that the device utilized was contraindicated for a morbidly obese person such as the plaintiff.   As a result of the use of the wrong device the plaintiff offered expert testimony from a pulmonologist that she aspirated stomach contents into her lungs and developed an acute respiratory distress syndrome (ARDS).   As a result of her development of ARDS the plaintiff was placed in an induced coma for a month.   The plaintiff further offered additional expert testimony that as a result of her month in intensive care she developed permanent critical care neuropathies.   This condition causes her severe pain and limits her in her daily activities.   There was further testimony on the impact of this hospitalization on the plaintiff's husband and her family.   Reviewing the evidence in a light favorable to sustaining the jury's verdict, there was ample evidence to support a finding that the defendant's employees and agents, Dr. Calobrisi and nurse anesthetist Richeimer deviated from the standard care in using the wrong medical device to convert the surgery from a local to general anesthesia and that as a result thereof the plaintiff suffered injuries.

The court now turns to the first argument raised by the defendant.   The defendant claims the court erred as a matter of law when it overruled the defendant's objection to the admission into evidence of a manufacturers manual regarding the anesthesia device used on the plaintiff with a limiting instruction but failed to repeat the express limiting instruction in the body of its charge to the jury.   At that time of admission of the exhibit the court instructed the jury that the exhibit could be used solely for a limited purpose.²  In its charge the court reminded the jury that it had to follow the court's instructions as it related to items of evidence admitted for one purpose and not another.   The charge did not specifically reference the manufacturer's manual.   The court is satisfied that the jury properly followed its limiting instruction when the manual to the LMA device was introduced into evidence and was further reminded generally about the importance of limiting instructions in the course of the court's charge.

The second argument made by the defendant refers to the testimony of Dr. Daniel Moalli, a neurologist.   It claims that this testimony does not factually support a conclusion by the jury that the plaintiff's neuropathies were caused by her stay in critical care as opposed to her development of diabetic neuropathies.   The court has reviewed the transcript of Dr. Moalli's testimony and concludes that the jury could rely upon that testimony and other testimony in the case to come to the conclusion that the plaintiff suffered permanent injuries as a result of the defendant's deviation from the standard of care.

Finally, the defendant AANL argues that the verdict is plainly excessive or exorbitant based upon the evidence offered at trial, excessive as a matter of law, shocks the sense of justice and outside the scope of fair just and reasonable damages in this case.   It argues that plaintiff's counsel argued to the jury that the reasonable compensation for the plaintiff's injuries would be in the amount of $3,000,000.

The seminal case of Wichers v. Hatch, 252 Conn. 174, 186–88, 745 A.2d 789 (2000), provides guidance to the trial court with regard to post-trial motions.   In Wichers, the Supreme Court overruled prior precedent that held that a verdict in a personal injury case that awarded the plaintiff economic damages for medical treatment but zero noneconomic damages was per se inadequate.³  Id., 186.   A trial court reviewing a jury's verdict is constrained by several principles.  “The right to a jury trial is fundamental in our judicial system, and ․ 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 men passed upon by the jury and not by the court ․ Because in setting aside the verdict, the trial court deprives the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, our role generally is to examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion.”  (Citation omitted;  internal quotation marks omitted.)  Id., 188.

“[T]he trial judge must do just what every juror ought to do in arriving at a verdict.   The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly ․ The trial judge in considering the verdict must do the same ․ and if in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial ․” (Internal quotation marks omitted.)  Id., 186–87.  “[T]he trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue.   That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do.”  Id., 188–89.

It is not the function of this court to “sit as the seventh juror when [it] review[s] the sufficiency of the evidence ․ rather, [it] must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict ․ Moreover, in reviewing the jury verdict, it is well to remember that jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life ․” (Citation omitted;  internal quotation marks omitted.)  Purzycki v. Fairfield, 244 Conn. 101, 112–13, 708 A.2d 937 (1998).   Stated another way, “[i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it.”  (Internal quotation marks omitted.)  Broadnax v. New Haven, 294 Conn. 280, 299, 984 A.2d 658 (2009).

The defendant, through its motion asks the court to substitute its judgment as to the amount of fair, just and reasonable compensatory damages to be awarded to the plaintiffs.   The awarding of compensatory damages for personal injury is not reducible to a formula and cannot be measured with exactitude.   It argues that this verdict must shock the judicial conscience.   There is no extrinsic evidence that the defendant points to or that is observable by the court that would indicate that this jury has acted against the rule of law, or suffered their passions, prejudices or perverse disregard of justice.   In this case the jury rendered a split verdict.   They rendered a defendant's verdict for the attending anesthesiologist, Dr. Thomas Miett.   This was so, even though the plaintiff's expert, testified that Dr. Miett's care had deviated from the standard of care.   This split verdict leads the court to the conclusion that the jury followed the court's instructions, evaluated the evidence as between either of the defendants and was conscientious in the discharge of their responsibilities.

There is no doubt that this is a large verdict and in excess of the amount argued for by the plaintiff's counsel.   No case has been cited by counsel that holds that a jury verdict in excess of what a plaintiff's attorney argues for is excessive per se.   The jury had before it evidence that the permanent injuries suffered by the plaintiff as a result of the defendant's malpractice and that these injuries were painful and limited the plaintiff in her activities of daily living.   There was further evidence of the impact of these injuries on the plaintiff's spouse.   The court declines to substitute its judgment for that of the jury in this case.   The jury's verdicts, in favor of one defendant and against the other defendant, do not shock the court's conscience.

Cosgrove, J.

APPENDIX A

PLAINTIFFS' VERDICT FORM

In this case, we, the jury, finds in favor of the plaintiffs, Karla D. Rosa and Delmar Rosa, and awards the following in damages:

$10,541,808.0O

Foreperson:  /s/ Justin Lawton

Print Name:  Justin Lawton

JURY INTERROGATORIES

SECTION 1. AS TO THOMAS MIETT, MD.

1. Do you find that defendant Thomas Miett was negligent in one or more ways alleged in plaintiff's complaint?

Yes_ No X

Instructions:

If you have answered “Yes” to Interrogatory Number 1, proceed to Interrogatory Number 2.

If you have answered “No” to Interrogatory Number 1, please enter a verdict on behalf of Thomas Miett, M.D. on the appropriate Verdict Form and proceed to Section II.

2. Do you find that the negligence of defendant Thomas Miett was a substantial factor in causing Karla Rosa's injuries and damages?

Yes_ No_

Instructions:

If you have answered “Yes” to Interrogatories 1 and 2, you have reached a verdict for the plaintiff;  please proceed to Section II

If you have answered “No” to either Interrogatory 1 or 2, please enter a verdict on behalf of Thomas Miett, M.D. on the appropriate Defendant's Verdict Form and proceed to Section II.

SECTION II.  AS TO ANESTHESIA ASSOCIATES OF NEW LONDON, P.C. THROUGH ITS AGENT, JEAN RICHEIMER, CRNA

3. Do you find that defendant Anesthesia Associates of New London, P.C. is liable in that its agent, Jean Richeimer, was negligent in one or more of the ways alleged in plaintiffs' complaint?

Yes X No_

Instructions:

If you have answered “Yes” to Interrogatory Number 3, proceed to Interrogatory Number 4.

If you have answered “No” to Interrogatory Number 3, please proceed to Section III.

4. Do you find that the negligence of Jean Richeimer was a substantial factor in causing Karla Rosa's injuries and damages?

Yes X No_

Instructions:

If you answered “Yes” to Interrogatories 3 and 4, you have reached a verdict for the plaintiffs;  please proceed to Section III.

SECTION III.  AS TO ANESTHESIA ASSOCIATES OF NEW LONDON, P.C. THROUGH ITS AGENT, BART CALOBRISI, MD.

5. Do you find that defendant Anesthesia Associates of New London, P.C. is liable in that its agent Bart Calobrisi was negligent in one or more of the ways alleged in plaintiffs' complaint?

Yes X No_

Instructions:

If you have answered “Yes” to Interrogatory Number 5, proceed to Interrogatory Number 6.

If you have answered “No” to Interrogatory Number 5, please proceed to Section IV.

6. Do you find that the negligence of Bart Calobrisi was a substantial factor in causing

Yes X No_

Instructions:

If you answered “Yes” to Interrogatories 5 and 6, you have reached a verdict for the plaintiff please skip Section IV and proceed to Section V.

If you answered “No” to either Interrogatory 5 or 6, please proceed to Section IV. SECTION IV. AS TO ANESTHESIA ASSOCIATES OF NEW LONDON, P.C.

Instructions:

7. If you have answered “No” to an Interrogatory in ALL THREE sections above (Section I, Section II and Section III), you have reached a defendants' verdict on behalf of Anesthesia Associates of New London, P.C.;   you may skip Section V and proceed to the appropriate Defendant's Verdict Form.

SECTION V. DAMAGES

1. We, the jury, find total damages to Karla D. Rosa as follows:

a.  Economic Damages:

i.  Medical bills and specials:  $191,808

b. Non-economic Damages:

i.  Pain, suffering and loss of enjoyment of life's activities from March 27, 2006 to the verdict date. $1,850,000

ii.  Future pain, suffering and loss of life's activities. $6,500,000

c. TOTAL:  $8,541,808

We, the jury, find damages for Delmar Rosa's loss of Consortium as in the amount of:  $2,000,000

You have reached a plaintiffs' verdict.   Please complete the Plaintiffs' Verdict Form and return all forms to the clerk once you return to the courtroom.

Date:  5/12/2011 Foreperson:  /s/ Justin Lawton Print Name:  Justin Lawton

FOOTNOTES

FN1. The verdict and interrogatories are attached to this opinion in Appendix A..  FN1. The verdict and interrogatories are attached to this opinion in Appendix A.

FN2. “Now, what I want to do is to give you a cautionary instruction.   In this case one of the first issues you'll have to deal with is what is the standard of care that's applicable to the procedures that were performed.   The standard of care in this case was established by the testimony of expert witnesses.   You have heard Dr. Deluty, you've heard and are in the process of hearing the testimony from Dr. Miett, and you will hear some additional testimony from Dr. D'Amato with regard to the standard of care, that's right I think on the standard of care for an anesthesiologist ․ and Dr. Calobrisi.   Thank you for that correction.   This manufacturer's manual may be used with regard to the issue of the credibility of the experts.   It's not in and of itself does not establish the standard of care.”.  FN2. “Now, what I want to do is to give you a cautionary instruction.   In this case one of the first issues you'll have to deal with is what is the standard of care that's applicable to the procedures that were performed.   The standard of care in this case was established by the testimony of expert witnesses.   You have heard Dr. Deluty, you've heard and are in the process of hearing the testimony from Dr. Miett, and you will hear some additional testimony from Dr. D'Amato with regard to the standard of care, that's right I think on the standard of care for an anesthesiologist ․ and Dr. Calobrisi.   Thank you for that correction.   This manufacturer's manual may be used with regard to the issue of the credibility of the experts.   It's not in and of itself does not establish the standard of care.”

FN3. In Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), the court held that an award limited to nominal or special damages necessarily and logically required an award of noneconomic damages, and that, therefore, an award limited to economic damages is inadequate as a matter of law and should be set aside..  FN3. In Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), the court held that an award limited to nominal or special damages necessarily and logically required an award of noneconomic damages, and that, therefore, an award limited to economic damages is inadequate as a matter of law and should be set aside.

Cosgrove, Emmet L., J.