Franklin Borja v. Daniel Sanford (2012)

MEMORANDUM OF DECISION

The defendant, Daniel Sanford, has moved to set aside the jury verdict rendered in favor of the plaintiff, Franklin Borja, on March 15, 2012, and for a remittitur.   The defendant also objects to the plaintiff's bill of costs.   The attorneys argued these motions on April 9, 2012.

1. Motion to Set Aside (# 118)

The defendant moves, pursuant to Practice Book § 16–35 and C.G.S. § 52–228b, that the verdict be set aside on the ground that it shocks the conscience and sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.   The jury returned a verdict of $129,637 for the plaintiff ($2,137 in past medical bills, $62,500 in future medical bills, and $62,500 in non-economic damages for pain and suffering and permanent injury).

The plaintiff, now 28 years old, was injured in a chain reaction rear-end collision.   The defendant admitted liability for the collision.   The plaintiff, who had no back injuries or pain before the collision, began to experience low back pain following the crash.   He went to a hospital walk-in the next day and was given some medicine and an instruction to seek further treatment if his symptoms did not improve.   When his symptoms did not improve, he went to see an orthopedic surgeon, Dr. George Rubin, who ultimately diagnosed injuries to three discs in his low back, one of which is leaking fluid down the spinal canal.   Dr. Rubin testified that the injuries were received in the collision, that they are permanent, that they will require treatment which will average $3,000 per year, and that they will cause the plaintiff permanent pain.   Dr. Rubin saw the plaintiff for five office visits.   The plaintiff's total medical bills were $2,137.   There was no contrary medical testimony.

The defendant argues that the low medical expenses, the lack of lost wages, the lack of physical therapy, and the pretrial settlement discussions at figures much lower than the jury verdict, demonstrate that the verdict must shock the conscience.   I disagree.   This was an extremely attentive and thoughtful jury which took its time in reaching a verdict.   Based upon the testimony of Dr. Rubin, there is nothing shocking about the verdict.   Since there was no contrary medical evidence, there was no reason not to believe Dr. Rubin.   The plaintiff's life expectancy is 49 years.   If he must spend an average of $3,000 per year to treat his permanent conditions, an award of $62,500 to compensate him for 49 years of treatment is far less than the jury might have awarded.   The same holds true of the award of $62,500 for 49 years of pain.

For these reasons, the motion to set aside is denied.

2. Motion for Remittitur

The defendant also moves for a remittitur pursuant to Practice Book § 16–35 and C.G.S. § 52–228.   The defendant gives the same reasons he gave in support of the motion to set aside.

“In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict.   Wochek v. Foley, 193 Conn. 582, 587, 477 A.2d 1015 (1984).   Upon completing that review, the court should not interfere with the jury's determination except when the verdict is plainly excessive or exorbitant ․ The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption ․ 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.”  (Citation omitted.   Internal quotation marks omitted.)  Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276 (2011).

The amount awarded by the jury was based strictly upon the evidence from the plaintiff and Dr. Rubin.   It falls squarely within the necessarily uncertain limits of just damages.   Because Dr. Rubin opined that, as a result of the collision caused by the defendant, the plaintiff will suffer a lifetime of pain and treatment, the award could have been substantially more without shocking the sense of justice.   Viewing the evidence in the light most favorable to sustaining the award, the motion for remittitur must be denied.

3. Bill of Costs

The defendant has objected to one item on the plaintiff's bill of costs:  expert testimony of Dr. George Rubin in the amount of $7,700.   The parties argued this objection along with the other motions on April 9, 2012.   The defendant points out that Dr. Rubin's testimony only lasted about 11/212 hours and suggests that a reasonable fee would be in the range of $3,200 to $3,500.

Although the court originally thought that it could decide this issue and save the attorneys another court appearance, I have, upon research and reflection, decided that the procedure set forth in Practice Book Section 18–5 must be followed.   Cf. Boczer v. Sella, 113 Conn.App. 339, 343, note 6 (2009).   First, the clerk must tax the costs after notice and of the time and place.   The parties may appear at and be heard by the clerk.   Either party may then move for review by the judicial authority.

In anticipation of review by the clerk and the court, the parties are reminded of the governing principles.   The relevant portion of § 52–260(f) provides:  “[w]hen any practitioner of the healing arts ․ gives expert testimony in any action or proceeding, ․ the court shall determine a reasonable fee to be paid to such practitioner of the healing arts ․ and taxed as part of the costs in lieu of all other witness fees payable to such practitioner of the healing arts ․” This section does not authorize a reasonable fee for the expert's trial preparation time or his or her travel time as distinguished from his or her in court trial testimony.  Smith v. Andrews, 289 Conn. 61, 86–88 (2008).   Invoices submitted from a practitioner of the healing arts, standing alone, do not establish that the costs stated therein are reasonable.   Boczer v. Sella, 113 Conn.App. 339, 344–45 (2009).   In the absence of any evidence relating to the reasonableness of the fees listed in the invoices, the court's determination of a reasonable fee would be premised on an inadequate evidentiary foundation.  Id.

Perhaps the principles stated above will enable the parties to resolve this issue without further court intervention.   If not, the parties are given notice the clerk will hold a hearing to tax costs on Friday, April 20, 2012 at 10:00 am.

BY THE COURT,

John W. Pickard

Pickard, John W., J.