Tessa Scandariato v. Edward Borrelli (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO SET ASIDE VERDICT AND/OR REMITTITUR

The defendant, Edward Borrelli, moves this court to set aside the jury's verdict and/or order a remittitur of the noneconomic damage award of the plaintiff, Tessa Scandariato, on the grounds that the amount awarded is excessive, contrary to the evidence and shocks the conscience.   The defendant argues that the jury was improperly tainted by the court's allowance of the testimony of Anthony Alessi, a neurologist, regarding a permanent impairment to the plaintiff's brain.   The defendant claims the jury became confused by Alessi's testimony and improperly awarded “brain injury damages” rather than properly awarding “soft tissue damages.”   The court disagrees that the jury was confused by Alessi's testimony.

Initially, the defendant filed a motion in limine to preclude Alesssi's testimony.   A videotape deposition of Alessi's testimony had been recorded and intended to be played for the jury.   Prior to denying the motion to preclude, the court reviewed the deposition transcript of the videotape.

The court was convinced that the direct and cross examination of Alessi allowed him to explain his findings and opinions without confusion.   Alessi testified that there was nothing wrong with the plaintiff's brain, that she had no cognitive issues and that she does not have traumatic brain injury.   Alessi stated that he treated the plaintiff's headaches, which were caused by an injury to her neck.

Despite the clarity of the testimony, in deference to the defendant's concern, the court stated that the jury would be instructed that the plaintiff was making no claim for an injury to her brain.   Further, the court ordered that the plaintiff was not allowed to argue differently than her claim of an injury to her neck which caused headaches.

The court found that Alessi was clearly an expert and that his testimony could assist the jury in understanding the evidence while determining the facts necessary to resolve the case.   Further, the court noted that the doctor was thoroughly cross examined by Attorney Lawrence H. Adler regarding every concern raised by the defendant.   Additionally, as the court instructed, Attorney Stephen M. Reck, in both his opening statement and closing argument, advised the jury that plaintiff's claim was headaches due to an injury to her neck.

A jury “verdict will be set aside and judgment directed only if [the court] find[s] that the jury could not reasonably and legally have reached their conclusion.”  (Internal quotation marks omitted.)  Smith v. Greenwich, 278 Conn. 428, 441, 899 A.2d 563 (2006).  “[T]he [trial] court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict.”  (Internal quotation marks omitted.)  Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 639, 854 A.2d 1066 (2004).   Litigants have a constitutional right to have factual issues resolved by the jury.  Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982).   This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded.  Id., 351.

The court, having heard the same evidence that was heard by the jury, cannot accept the defendant's assertion that the jury verdict was based upon the alleged confusing testimony of one witness.   Alessi's testimony was carefully explained and clear.   The trial involved three days of testimony, numerous medical reports and several witnesses.   Alessi's testimony was not the only evidence upon which the jury could reasonably have reached the verdict that it did.   There was, apart from the challenged testimony of Alessi, substantial testimonial and documentary evidence to support the plaintiff's claims when viewed in the light most favorable to sustaining the verdict.

The court finds that the jury could reasonably, logically and legally have reached its conclusion from the evidence viewed most favorably to the plaintiff.   The motion to set aside the verdict is denied.

With respect to the alternative motion for remittitur, the defendant claims the sum awarded is excessive, contrary to the evidence and shocks the conscience.   The standard for a trial court in reviewing a motion for remittitur is very similar to the standard for deciding a motion to set aside the verdict.   A trial court may disturb a jury's award of damages only where such award is deemed excessive as a matter of law.  General Statutes § 52–216a.  “[I]n ruling on the motion for remittitur, the trial court [is] obliged to view the evidence in the light most favorable to the plaintiff in determining whether the verdict returned was reasonably supported thereby.”   (Internal quotation marks omitted.)  Embalmers' Supply Co v. Giannitti, 103 Conn.App. 20, 54, 929 A 2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).

Considering the evidence heard by the jury it could reasonably have found the damages that it did without being influenced by partiality, prejudice, mistake or corruption.   The motion for remittitur is denied.

Martin, J.

Martin, Robert A., J.