Farhat Abbas v. Nicholas Avignone (2013)

RULINGS ON POST–VERDICT MOTIONS (# # 131, 132, 133, 134)

This case was tried before a jury on the complaint of the plaintiff Farhat Abbas (Abbas) and the counterclaim of the defendant Nicholas Avignone (Avignone) on May 2 and 3, 2013.   In his complaint, Abbas alleged that Avignone had intentionally assaulted him.   In his counterclaim, Avignone alleged alternatively that Abbas had intentionally and negligently assaulted him.   The jury answered interrogatories and returned a verdict in favor of Abbas on the complaint awarding him compensatory damages ¹ and against Avignone on the counterclaim.   Avignone timely filed motions to set aside the verdict (# 132), for a remittitur (# 134) and for a collateral source reduction (# 133).   The court heard these motions, along with Abbas's motion for punitive damages (# 131) and Avignone's objection (# 136), on June 19, 2013.

Very briefly, the evidence established that, in the early morning hours of July 6, 2008 at an open seating area near a Starbucks and other food vendors in the Mohegan Sun Casino (Mohegan Sun), Abbas took a chair that Avignone had been saving for his wife.   Abbas wanted to eat a meal he had just bought following several hours of gambling on his own and moved the chair to an adjacent table.   Avignone, who had attended a Billy Joel concert along with his wife and another couple, had been at the table with his friend Michael Stocks awaiting the return of their wives who had stepped away for a few minutes.   Avignone confronted Abbas and ultimately grabbed Abbas by the throat and threw him off the chair and on to the floor where he hit the back of his head.   Abbas sought treatment at Backus Hospital, missed two and half to three weeks of work, and suffered pain, headaches, nausea, sleep disruption and emotional distress.

I.

In his motion to set aside the verdict (# 132), Avignone challenges two rulings involving exhibit 1, a clip from a video recorded by a Mohegan Sun camera (video) showing the seating area at the Starbucks at the time of the incident.   First, Avignone claims the court should have excluded the video because it was obtained by an improper subpoena.   Second, Avignone claims the court applied an improper standard for authentication of the video.

Avignone moved in limine to preclude the admission of the video (# 123).   At a hearing on May 1, 2013, plaintiff's counsel represented that he had issued a trial subpoena for Jay Gaughan (Gaughan), a former Connecticut State Trooper who at the time of trial was employed at Mohegan Sun, for his appearance at trial and for production of any relevant video of the incident.   In response to the subpoena, counsel came into possession of a DVD containing the video which he subsequently showed to his client and to defense counsel.   While not countenancing this improper conduct, see Banks v. Connecticut Railway & Lighting Co., 79 Conn. 116, 118–19, 64 A. 14 (1906) (subpoenaed evidence should be delivered to the court and put in its control, not delivered to requesting party), the court declined to preclude the video on this ground and directed Abbas to meet his burden of authenticating the video through testimony.   See Code of Evidence, § 9–1.   Avignone was advised that he would have an opportunity to challenge not only the authenticity of the video but also the way in which counsel obtained the DVD.

On May 2, 2013, before the jury was sworn and outside their presence, a hearing was conducted at which Gaughan and Abbas testified.   Gaughan had been employed as a Connecticut State Trooper and was on duty in that capacity at the Mohegan Sun on July 6, 2008.   He recalled the incident between Avignone and Abbas.   On July 6, 2008, he viewed video footage on the casino's hard drive from a fixed camera that was directed at the seating area at the Starbucks and captured the incident between Avignone and Abbas in real time as noted by a time line visible on the video.   The camera was fixed on the chairs in the seating area at the Starbucks and the angle remained unchanged throughout.   When he received the trial subpoena, a copy of that footage was transferred to a DVD and provided to plaintiff's counsel.²  The video footage on the DVD, exhibit 1, was identical to the video footage Gaughan had viewed on the hard drive on July 6, 2008.   Abbas testified that he viewed exhibit 1 and it accurately depicted what occurred between him and Avignone on July 6, 2008.

The admissibility of exhibit 1 is controlled by State v. Melendez, 291 Conn. 693, 709–11, 970 A.2d 64 (2009).   There, the Supreme Court held that the rigorous foundational standard required for the admission of computer generated evidence set forth in State v. Swinton, 268 Conn. 781, 847 A.2d 921 (2004), did not apply to the admission of a DVD containing an exact duplicate of original video footage.   The court observed that while “generating such a copy required the use of technology, that technology ․ involves nothing more than the reproduction of video footage from one medium to another.”  State v. Melendez, supra, 710.   While the original video footage in Melendez was captured by a single camera and stored on eight millimeter videotape and the original video footage here was captured by a single camera but stored digitally on a computer, the mere fact of computer storage does not turn the video footage here, which the evidence demonstrated was captured in real time and unaltered, into computer generated evidence that must satisfy Swinton 's foundational requirements.

Thus, exhibit 1 was admissible because Abbas met his burden of making a prima facie showing, through his testimony and that of Gaughan, Code of Evidence § 9–1, that the video fairly and accurately represented what it was purported to represent:  a fixed view from one angle of the incident between Avignone and Abbas as it was taking place.   See State v. Shah, 134 Conn.App. 581, 593–95, 39 A.3d 1165 (2012).   Avignone was permitted to offer evidence, and did by calling Gaughan as his witness, seeking to discredit the authenticity of the video before the jury.   See Shulman v. Shulman, 150 Conn. 651, 659–60, 193 A.2d 525 (1963).   The jury was instructed, repeatedly, that the weight to be given to the evidence was up to them.³  The motion to set aside the verdict (# 132) is denied.

II.

In its compensatory damages verdict, the jury awarded economic damages in the amount of $2,000.00 and non-economic damages in the amount of $18,000.00.   Avignone has moved for a remittitur (# 134) of the jury's award of non-economic damages on the ground that the award is excessive in light of the evidence.   Specifically, Avignone argues that since Abbas did not claim any injury to his neck, did not seek economic damages for medical expenses and did not undergo any mental health care, there was no basis for the jury's award of non-economic damages.

“Litigants have a constitutional right to have factual issues resolved by the jury ․ 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 ․ This 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 ․ The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury.”  (Citations omitted;  internal quotation marks omitted).  Ham v. Greene, 248 Conn. 508, 536, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S.Ct. 326, 145 L.Ed.2d 254 (1999).   As a result, our Supreme Court has cautioned that “a court should exercise its authority to order a remittitur rarely—only in the most exceptional of circumstances.”   Saleh v. Ribeiro Trucking, LLC., 303 Conn. 276, 280, 32 A.3d 318 (2011) (an “extraordinary departure from reasonableness ․ is required before the court may properly set aside the jury's award of damages.”  Id., 283).   This is not such a case.

The court must consider all the evidence, and the reasonable inferences that the jury could have drawn from it, in the light most favorable to sustaining the jury's award of non-economic damages.  Id., 290.   Contrary to Avignone's assertion, there was sufficient evidence of Abbas's physical and emotional injury to support the jury's award of non-economic damages.   The evidence established that Abbas sustained injuries for which he immediately sought treatment.   There was evidence that Abbas suffered from physical pain, nausea, headaches, trouble swallowing and sleep disruption.   Abbas did not go to work for approximately two and half to three weeks because of his pain, headaches and nausea.   He was very upset as a result of the incident and, in particular, was angered and humiliated by certain remarks that Avignone made to him.   He suffered emotional distress to the degree that he was embarrassed to tell his family what had occurred and he felt badly that he was not honest with his family.   Indeed, Abbas kept the incident secret from his family members for almost seven years until he told a son shortly before the trial commenced.

A plaintiff's subjective descriptions of his physical and mental pain and suffering provide a sufficient basis for an award of non-economic damages.   See Delott v. Roraback, 179 Conn. 406, 409, 426 A.2d 791 (1980);  Buckley v. Lovallo, 2 Conn.App. 579, 589, 481 A.24 1286 (1984).   The jury found that Avignone's conduct proximately caused Abbas to suffer injury.⁴  The jury's award of $18,000 in non-economic damages was reasonable, supported by the evidence, consistent with the court's explicit and unchallenged instructions and not excessive or exorbitant.   The motion for remittitur (# 134) is denied.

III.

Avignone moved for a collateral source hearing pursuant to General Statutes § 52–225a (# 133) seeking to reduce the verdict due to a $2,5000.00 payment he made to Abbas.   At the hearing, the parties stipulated that Avignone had paid the sum of $2,500.00 to Abbas pursuant to an agreement of the parties made at the time a criminal case against Avignone was pending.   Evidence was introduced in the form of letters, exhibit 9, between Abbas's attorney and Avignone's attorney, that the payment represented restitution which Abbas agreed to accept along with “whatever disposition the State's Attorney feels is appropriate.”

Under General Statutes § 52–225a, economic damages awarded in personal injury cases may be reduced as a result of certain collateral source payments.   Collateral sources are defined in General Statutes § 52–225b.⁵  A “defendant, as the party seeking to reduce the amount of economic damages awarded by the fact finder, bears the burden of proving that the verdict includes items of damages for which the plaintiff has received a collateral source benefit.”  Jones v. Kramer, 267 Conn. 336, 349–50, 838 A.2d 170 (2004).   Avignone has failed to meet that burden.

First, Avignone has not demonstrated that his payment of restitution constitutes a collateral source within the meaning of § 52–225b.   Avignone's voluntary payment of restitution here is analogous to a settlement payment.   See Bovat v. Waterbury, 258 Conn. 574, 601, 783 A.2d 1001 (2001) (Settlement payments are expressly excluded from the statutory definition of collateral sources).   Second, Avignone failed to request jury interrogatories “concerning the specific items of damages included within the verdict,” as required by Jones v. Kramer, supra, 267 Conn. 350.   Accordingly, even if the $2,500.00 he paid to Abbas were a collateral source, there is no evidence that his payment corresponds to the economic damages awarded ⁶ and there is no basis to reduce that award.

IV.

Abbas has moved for an award of common-law punitive damages (# 131) to which Avignone objects (# 136).   Common-law punitive damages are recoverable when liability for intentional assault has been established.  Catalina v. Nicolelli, 90 Conn.App. 219, 225, 876 A.2d 588 (2005).   By its verdict, the jury determined that Avignone had inflicted a battery upon Abbas and in so doing acted wilfully, wantonly and maliciously.⁷  Based on the jury's factual findings, an award of punitive damages is appropriate.   See Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978).

Under Connecticut common law, punitive damages consist of the litigation expenses of the case, including attorneys fees, less taxable costs.   See Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 517 n.38, 656 A.2d 1009 (1995);  Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983).   Abbas submitted his contingent fee agreement letter with counsel, exhibit 8, which provided for a fee of one-third of the gross amount of recovery.   See General Statutes § 52–251c.   Based on the jury's verdict of $20,000, the recoverable attorneys fees are $6,666.67.   Abbas also submitted certain bills reflecting expenses, exhibit 7, some of which are taxable costs under General Statute § 52–257.⁸  With the deduction of taxable costs, Abbas is entitled to an award of expenses in the amount of $854.55 in addition to attorneys fees.   Accordingly, the court awards $7,521.22 in punitive damages.

V.

In sum, the court denies Avignone's motions to set aside the verdict (# 132), for a remittitur (# 134) and for a collateral source reduction (# 133).   The court grants Abbas's motion for punitive damages (# 131).   Judgment shall enter on the complaint against the defendant Nicholas Avignone and in favor of the plaintiff Farhat Abbas in the amount of $27,521.22 plus taxable costs.   Judgment shall enter on the counterclaim against the counterclaim plaintiff Nicholas Avignone and in favor of the counterclaim defendant Farhat Abbas.

LINDA K. LAGER, JUDGE

FOOTNOTES

FN1. The parties had agreed before the trial that the court would determine punitive damages in the event that the jury returned a verdict of intentional assault in favor of either party..  FN1. The parties had agreed before the trial that the court would determine punitive damages in the event that the jury returned a verdict of intentional assault in favor of either party.

FN2. Based on Gaughan's testimony, the court concludes that plaintiff's counsel did not intentionally subvert the requirement that subpoenaed evidence should be returned to court and adheres to its original decision declining to preclude admission of the video on the ground that it was improperly subpoenaed..  FN2. Based on Gaughan's testimony, the court concludes that plaintiff's counsel did not intentionally subvert the requirement that subpoenaed evidence should be returned to court and adheres to its original decision declining to preclude admission of the video on the ground that it was improperly subpoenaed.

FN3. With respect to how to treat the evidence in the case, the jury received the following instruction:  “The evidence from which you are to decide what the facts of the case are consists of the sworn testimony of the witnesses both on direct and cross-examination, regardless of who called the witness, the full exhibits which have been received into evidence and stipulated facts ․ It is up to you to decide what weight or importance you will give to the evidence before you.”.  FN3. With respect to how to treat the evidence in the case, the jury received the following instruction:  “The evidence from which you are to decide what the facts of the case are consists of the sworn testimony of the witnesses both on direct and cross-examination, regardless of who called the witness, the full exhibits which have been received into evidence and stipulated facts ․ It is up to you to decide what weight or importance you will give to the evidence before you.”

FN4. The jury affirmatively answered the following interrogatory:  “Has the Plaintiff Farhat Abbas proved by a fair preponderance of the evidence that the conduct of Defendant Nicholas Avignone caused the plaintiff to suffer any of the individual injuries or losses he complains of in this case?”.  FN4. The jury affirmatively answered the following interrogatory:  “Has the Plaintiff Farhat Abbas proved by a fair preponderance of the evidence that the conduct of Defendant Nicholas Avignone caused the plaintiff to suffer any of the individual injuries or losses he complains of in this case?”

FN5. General Statutes § 52–225b defines collateral sources as “any payments made to the claimant, or on his behalf, by or pursuant to:  (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others;  or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services.   ‘Collateral sources' do not include amounts received by a claimant as settlement.”.  FN5. General Statutes § 52–225b defines collateral sources as “any payments made to the claimant, or on his behalf, by or pursuant to:  (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others;  or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services.   ‘Collateral sources' do not include amounts received by a claimant as settlement.”

FN6. Abbas did not introduce any hospital, ambulance or medical bills and only introduced evidence for lost wages.   Abbas testified without challenge that he was out of work for two and half to three weeks and that he earned $825.00 a week.   The jury's award of $2,000.00 in economic damages is consistent with this evidence..  FN6. Abbas did not introduce any hospital, ambulance or medical bills and only introduced evidence for lost wages.   Abbas testified without challenge that he was out of work for two and half to three weeks and that he earned $825.00 a week.   The jury's award of $2,000.00 in economic damages is consistent with this evidence.

FN7. The jury answered the following interrogatories affirmatively:  “[Interrogatory] 1. Has the Plaintiff Farhat Abbas proved by a fair preponderance of the evidence that Defendant Nicholas Avignone inflicted harmful contact on him or placed him in imminent apprehension of a harmful contact?” and “[Interrogatory] 3. Has the Plaintiff Farhat Abbas proved by a fair preponderance of the evidence that the conduct of Defendant Nicholas Avignone was wilful, wanton and malicious?”.  FN7. The jury answered the following interrogatories affirmatively:  “[Interrogatory] 1. Has the Plaintiff Farhat Abbas proved by a fair preponderance of the evidence that Defendant Nicholas Avignone inflicted harmful contact on him or placed him in imminent apprehension of a harmful contact?” and “[Interrogatory] 3. Has the Plaintiff Farhat Abbas proved by a fair preponderance of the evidence that the conduct of Defendant Nicholas Avignone was wilful, wanton and malicious?”

FN8. The following claimed items are taxable costs under General Statutes § 52–257:  Court entry fee of $300.00, § 52–257b(6);  service of process fee of 141.70, § 52–257b(7);  deposition fees for two depositions of $30 each, § 52–257(b)(2);  fee to copy DVD of $30.00, § 52–257(b)(5), see Practice Book § 18–8.   These taxable costs total $531.70..  FN8. The following claimed items are taxable costs under General Statutes § 52–257:  Court entry fee of $300.00, § 52–257b(6);  service of process fee of 141.70, § 52–257b(7);  deposition fees for two depositions of $30 each, § 52–257(b)(2);  fee to copy DVD of $30.00, § 52–257(b)(5), see Practice Book § 18–8.   These taxable costs total $531.70.

Lager, Linda K., J.