Janet Fleming v. Gregory Dionisio (2013)

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT (# 236.00)

Nature of the proceedings

This is an action arising from a tragic motor vehicle accident in which plaintiff's decedent, the operator of a motorcycle, was killed in the collision.   Defendant Gregory Dionisio was the operator of the motor vehicle that struck the motorcycle, and defendant John Dionisio was the owner.   The action was commenced by Janet Fleming, acting both in the capacity of representative of the estate of her husband as well as in her own right seeking loss of consortium.

Shortly before scheduled commencement of trial in the summer of 2012, John Dionisio settled with plaintiffs, paying $1.3 million and obtaining a release.   Defendant ¹ thereupon filed a motion for summary judgment (after obtaining permission from the court to do so as well as a continuance of the trial date), based on the theory that the release of the alleged principal in an alleged agent-principal relationship automatically constituted a release of the alleged agent (Gregory Dionisio).   That motion ultimately was denied by the court [55 Conn. L. Rptr. 594].

The case was tried based on a complaint in six counts, three on behalf of the decedent and three relating to the loss of consortium claim.   Three theories of recovery were alleged—negligence, common-law recklessness, and statutory recklessness (General Statutes § 14–295).   Defendant admitted liability under the negligence count asserted on behalf of plaintiff's decedent but contested the other five claims.

The case was tried to a jury which rendered its verdict on April 11, 2013, finding defendant Gregory Dionisio liable for each of the three theories as to each of the two plaintiffs.   The jury responded to interrogatories, setting forth its findings as to damages/awards for negligence and statutory recklessness claims.   The jury also found that plaintiffs were entitled to common-law punitive damages.  (Instead of asking the jury to calculate common-law punitive/exemplary damages (if found to be warranted), the parties agreed that the jury would only be asked to determine whether such an award was appropriate, with the actual amount of that award to be determined by the court.)

During the trial, defendant moved for a directed verdict (which was denied), and after the verdict was accepted, defendant timely moved to set aside the verdict and for judgment notwithstanding the verdict.

Legal standards

A court may set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict ․

The setting aside of a verdict because of an error of the trial court should be exercised with great caution and never done unless the reviewing court is satisfied entirely that the error is unmistakable and unquestionably must have been harmful.  Message v. Shell Oil Products Co., 85 Conn.App. 401, 414–16 (2004) (internal quotation marks and citations omitted).

In considering a motion to set aside a jury verdict, the court must be mindful of the parties' constitutional right to have the facts of the case determined by the jury, and therefore must be careful not to infringe on that right.   Young v. Data Switch Corp., 231 Conn. 95, 100–01 (1994).

Discussion

In very rough terms, defendant's motion to set aside the verdict has two components:  defendant incorporates almost (if not actually) verbatim his arguments as set forth in his motion for judgment notwithstanding the verdict (# 235.00) and also includes a number of additional claims.   With respect to the issues set forth in his motion for judgment N.O.V., the court hereby incorporates its memorandum of decision on that motion rather than repeating the substance of that decision.²

The balance of defendant's motion appears to be a catalog of most if not all objections raised by defendant during trial.   As set forth below, the court does not believe that any of the claimed errors have merit, but even if one or more of the claimed errors went beyond the allowed scope of the court's discretion, defendant would be required to demonstrate prejudice arising from such a ruling—which he has not done.

Defendant claims that the court erred when it recharged the jury on a portion of the law relating to statutory recklessness.

The Court was asked to recharge the jury and instruct the jury that it could find that the plaintiff violated one of the so called trigger statutes of § 14–295.   The argument set forth by the plaintiffs was that the defendant had pled guilty to a violation of § 14–227a.   The Court, in recharging the jury instructed the jury that the defendant had admitted to violating one of the trigger statutes.   Said instruction was misleading and erroneous.   In order for there to be a violation of one of the trigger statutes, the violation must be deliberate or with reckless disregard.   The defendant did not admit that he violated any trigger statute deliberately or with reckless disregard.   When the court instructed the jury that it could find a violation of one of the trigger statutes neglected to charge the jury that any such violation in order to entitle the plaintiffs to double or treble damages would have to have violated deliberately or with reckless disregard.   The Court refused to charge the jury that a breach of one or more of the trigger statutes in and of itself is not sufficient.   The court did not recharge the jury that it would further have to find that the breach was done deliberately or with reckless disregard.

(Page 7 of motion.)

This argument presents something of a moving target, with semantics playing at least some role.   At one point, defendant characterizes it as “erroneous” but the tenor of the argument is, or seems to be, that it somehow was misleadingly incomplete.

It sometimes is said that “context is everything” and this is one such instance.   Immediately after the court had charged the jury, as part of the court's response to the exceptions of counsel, the court agreed that a clarification of a point was in order, leading to the contested recharge.   The jury, then, literally minutes earlier, had heard the court's entire charge.   In his motion, defendant states:  “In order for there to be a violation of one of the trigger statutes, the violation must be deliberate or with reckless disregard.”   In making that statement which is an essential premise of his argument, defendant merges two separate elements.

In § 19 of defendant's request to charge (# 213.00 at page 35), defendant identified four elements that a plaintiff must prove in order to establish statutory recklessness.

1. Breach of one or more of the trigger statutes by the defendant;

2.  That one [or] more of said breaches was done “deliberately or with reckless disregard” ․

The court believes that in its charge on statutory recklessness, it used almost identical language.   The court, then, by addressing and attempting to clarify the first element—specifically, the existence of an admitted violation of a trigger statute—in no way was absolving plaintiff of the obligation to prove the remaining elements, including the second one quoted above.  (If by addressing the first element, the court also became obligated to address the second element, is there any reason why it also would not have been obligated to address the third and fourth elements?)

Defendant does not claim it was erroneous for the court to have addressed the specific issue it was attempting to address, i.e. that there was an admitted violation of a trigger statute.   There was nothing misleading or erroneous in connection with the “recharge” about which defendant complains.   Defendant was not prejudiced and there is no basis for setting aside the verdict.

Defendant claims that “[t]he Court erred in allowing the jury to consider violations of §§ 14–218a and 14–222 of the Connecticut General Statutes as a basis upon which to impose double or treble damages when no evidence of violations of said statutes were introduced at the time of trial.”   Defendant claims that there was no evidence of speed and that a police officer testified that, in his opinion, speed was not a factor.

There was evidence from which a jury could have inferred speed.   Among the facts/evidence that could have supported such an inference are the extent of damage to the vehicles;  the distance that plaintiff's decedent flew through the air after collision;  and defendant's crossing the center line in the area of a curve in the road which could be indicative of excessive speed for the existing conditions.

In § 21 of his request to charge, defendant included each of these trigger statutes as a possible predicate for statutory recklessness (while attempting to preserve the claim that there should be no charge whatsoever).   The court does not recall receiving any explicit request to charge to the effect that the jury should be told to disregard §§ 14–218a and 14–222—that the statutes should have been charged out.

Additionally, defendant does not address how or why this was or might have been prejudicial.   As set forth in the previous discussion, subject to defendant's concerns about completeness, there already was an acknowledged violation of a trigger statute— § 14–227a.³  Defendant was not prejudiced and there is no basis for setting aside the verdict.

Defendant claims that the court should not have submitted common-law recklessness to the jury based on the claimed lack of evidence that could support a finding of recklessness.   Although the court earlier indicated that it was incorporating by reference its decision on the motion for judgment N.O.V., the partial summary of evidence recited therein would seem to be sufficient to justify allowing the matter to go to the jury.

There was evidence of [defendant's] conduct over the previous 36 hours involving drinking and drugs, minimal sleep, working a full day, and more drinking, prior to the accident.   Defendant denied any recollection of any events in the hours immediately prior to the accident, and could not recall whether he had consumed alcohol in that period.   There was expert testimony that there would have been a “crash” phase associated with such behavior and the jury might well have inferred similar consequences based solely on the admitted alcohol use and limited sleep.   Subsequent to the accident, defendant made statements attempting to shift blame to plaintiff's decedent.   As a measure of how far “out of it” defendant was around the time of the accident, he attempted to drink his own urine in an effort to hide the evidence that might have been contained in his urine as to what substances he had consumed.   (As something of a distinction without a difference, defendant testified that he had not actually attempted to drink the urine, but merely had been thinking about whether he should drink the urine (while not denying that he had moved the container towards his mouth during the process).)   As a consequence of this collision, defendant had pled guilty to charges serious enough to warrant a sentence with multiple years to serve.

There was ample evidence from which the jury could have concluded that defendant's conduct was reckless for purposes of the common-law recklessness counts.

Defendant contends that the court erred in allowing Dr. McCabe to testify concerning the “crash” after-effect of drug consumption.   In part, defendant contends that this was a backdoor effort to allow the jury to think that defendant had been under the influence of illegal drugs at the time of the accident.

Defendant provides an extensive and detailed recitation of the law concerning expert testimony and the proper application of that law to technical issues.   Defendant cites State v. Porter, 241 Conn. 57 (1997), in which the Connecticut Supreme Court held that the standard for the admissibility of scientific evidence in Connecticut should be governed by the standard set forth by the U.S. Supreme Court in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Defendant fails to point out, clearly, that the court did have a Porter-type hearing in which, in the absence of the jury, the witness was examined concerning his opinions and the bases on which they were derived.   Only after the court was satisfied that the opinions met standards for admissibility was the witness again examined, this time in front of the jury.

Defendant also fails to point out that prior to that hearing, the court had ruled that there was to be no mention or reference to any illegal drugs/substances.   The court was well aware of the potential for prejudice if the jury were to learn of the various substances that defendant had consumed, in the absence of any indication that such substances affected, or were likely to have affected, his behavior at the time of the accident.  (It was known that defendant had consumed or used illegal substances by virtue of the presence of substances and/or residues in his urine, but that there was no evidence of relatively-recent usage given the absence of any such substances in his blood.)   It was only after the Porter-type hearing that the court allowed non-specific reference to prior drug usage, for the limited purpose of establishing the basis for the “crash” aspect of Dr. McCabe's testimony.

Still further, defendant fails to address the fact that the court explicitly charged the jury that the evidence relating to drug residues in defendant's urine had been admitted for a limited purpose.   The court emphasized that the evidence that defendant had used illegal stimulants had been admitted for a limited purpose—that the evidence had not been admitted to show that defendant was under the influence of such substances at the time of the collision, and that the jury should not consider that evidence for that purpose.   The jury was told that the evidence was admitted for the limited purpose of explaining the concept of a “crash” as was described by Dr. McCabe, and that was the only purpose for which that evidence could be considered.

There is a somewhat nuanced problem with defendant's approach to this issue.   As with most issues, a party often can assert justifications for its own position.   When the court has ruled in a certain way, however, it is not enough simply to repeat arguments previously made, or expand upon them, but rather it is necessary to address the points that seemingly support the contrary position and show why they actually are inadequate or erroneous.   Other than the discussion of the inability to distinguish between a pure fatigue factor and the “crash” effect—which the court thought to be more of a weight factor then admissibility factor—defendant spends almost no time in his lengthy recitation on (claimed) specific inadequacies in the proffered basis for admissibility.⁴  Defendant has not established that the court erred in a way that was prejudicial to defendant, sufficient to warrant setting aside the verdict.

Defendant claims that the court prejudicially erred in allowing certain testimony concerning defendant's behavior and treatment at the hospital, shortly after the accident.   Defendant's attempted consumption, or consideration of consumption,⁵ of his own urine was probative of his consciousness of guilt ⁶ insofar as it indicated an attempt to destroy evidence, and alternatively/additionally was a measure of his altered mental state shortly after the accident.   Similarly, difficulty in arousing the defendant was probative of his mental state (lingering effect of “crash” phase and/or simple sleep deprivation plus alcohol), and the fact that this was a few hours after the accident may have affected the weight but not admissibility of evidence.

Defendant contends that consciousness of guilt was not relevant given defendant's admission of negligence.   Under the circumstances of this case, however, consciousness of guilt evidence readily could be interpreted as a recognition of the more severe potential consequences of his conduct, including the likely criminality of his conduct or, more to the point for purposes of this motion, the egregious nature of his conduct—far exceeding simple negligence.   A more extreme departure from ordinary standards of behavior leading to an accident might well result in contemplation of more extreme forms of evasive behavior after the accident.

Defendant returns to Dr. McCabe's testimony, essentially a sequel to the lengthy discussion in § 6 of the motion.   No independent analysis would seem to be necessary.

Defendant contends that the court should have allowed greater exploration of the criminal sentence imposed on defendant as a result of this accident.   The court's recollection is that, among other things, he wanted to inquire of Janet Fleming as to what had transpired at the sentencing hearing.

Defendant has identified no obligation on the part of the court to allow anything relating to sentencing to come before the jury in this matter.   Defendant cited no authority for the proposition that a criminal sentence in some fashion mitigates the need or appropriateness of punitive damages in a civil case arising out of the same occurrence.   There are separate public policy implications for punishment of criminal conduct and private remedies via civil litigation.

As an exercise of discretion which could easily have gone in the opposite direction (precluding any information about his sentencing), the court did allow some limited evidence to come before the jury, thereby alerting the jury to the existence of other deterrents.   The court did not want to open up the sentencing procedure as a collateral issue—to what extent was it negotiated, to what extent did Janet Fleming have a say in the negotiation process as opposed to being presented with a fait accompli, to what extent did defendant express contrition and to what extent might it have been genuine, etc.

Defendant contends that the court erred in not striking testimony from Janet Fleming concerning her plans for use of money she might receive as a result of the litigation.  “Said testimony was nonresponsive to the question asked and was extremely prejudicial to the defendant ․ The court erred in not instructing the jury that they were to ‘disregard’ any testimony by the plaintiff and to strike the testimony from the record.”

The court did not and does not agree that the testimony in question was not responsive, and simply stating that the testimony was extremely prejudicial does not make it so.   Furthermore, defendant did not preserve his rights, insofar as there was no prompt request for the testimony to be stricken or that a curative instruction be given—counsel for plaintiff asked two questions, which were answered,⁷ after the allegedly objectionable response, and only after plaintiff's counsel then indicated that he was finished asking questions of the witness were defendant's concerns expressed to the court.

Putting aside the question of whether defendant properly preserved his rights, defendant fails to note (and implies something to the contrary in the above quoted language ⁸ ) that the court gave a curative instruction to the jury.   Counsel was given an option of whether the curative instruction should be given immediately or whether the court should incorporate a specific curative instruction in the charge assuming it were not adequately covered already.   Counsel asked the court to give an immediate curative instruction which was done.   Again, the court was not and is not convinced that there was anything improper (which is why the court declined to strike the testimony), but in an excess of caution to avoid any improper inferences from the testimony, the court was willing to give, and did give, a curative instruction.⁹

Defendant claims that “[t]he Court erred in refusing to allow the defendant to examine the plaintiff with regard to the fact that she previously sued John A. Dionisio and settled with him for $1,300,000.00.”   Defendant provides absolutely no analysis as to why the court should have allowed questioning on that topic, and why the court was in error in treating it as an issue properly for the court to address.   Defendant also provides no analysis as to why it was prejudicial, particularly since the actual award of compensatory damages was less than the amount of the settlement.

Finally, defendant claims that “[t]he Court erred in failing to declare a mistrial during the course of the plaintiff's opening statement” in which “counsel argued that the defendant was smoking marijuana the night before the subject accident.”   The court took immediate corrective action, and in the context of this case, defendant does not explain why that was not sufficient.   Subsequent events in the trial further undercut the potential concerns identified by defendant—at the time of the opening statements, the court had ordered that there was to be no mention of drugs, but subsequently, based on the Porter-type hearing relating to Dr. McCabe, the court allowed reference to be made to the presence of nonspecific drugs (or drug metabolites) as had been found in defendant's urine.   The court was less concerned about the jury hearing about marijuana than it was about “hard” drugs—cocaine and “meth”—that also apparently had been consumed by defendant the day before, which were far more likely to have a prejudicial impact.¹⁰

Defendant has not demonstrated that the comment deprived him of a fair trial.  Lappostato v. Terk, 143 Conn.App. 384, 398 (2013).   There was no basis to declare a mistrial at that stage, and no reason to set aside the verdict based on the opening statement of plaintiff.

None of defendant's claimed errors and improprieties warrant setting aside the jury's verdict.   Accordingly, defendant's motion to set aside is denied.

POVODATOR, J.

FOOTNOTES

FN1. Hereafter, all references to “defendant” are intended to refer to Gregory Dionisio..  FN1. Hereafter, all references to “defendant” are intended to refer to Gregory Dionisio.

FN2. Defendant's motion for judgment N.O.V. focuses on the second, third, fifth, and sixth counts, each alleging a recklessness claim (statutory or common-law).   Defendant contends that plaintiff did not properly plead those claims insofar as the complaint at the time of trial did not specifically ask for common-law or statutory punitive damages.   Defendant also claims that there was inadequate evidence to support findings of recklessness..  FN2. Defendant's motion for judgment N.O.V. focuses on the second, third, fifth, and sixth counts, each alleging a recklessness claim (statutory or common-law).   Defendant contends that plaintiff did not properly plead those claims insofar as the complaint at the time of trial did not specifically ask for common-law or statutory punitive damages.   Defendant also claims that there was inadequate evidence to support findings of recklessness.

FN3. Defendant also had admitted in the pleadings that he had crossed over the center line into plaintiff's decedent's lane of travel, thereby at least arguably involving yet another statutory trigger..  FN3. Defendant also had admitted in the pleadings that he had crossed over the center line into plaintiff's decedent's lane of travel, thereby at least arguably involving yet another statutory trigger.

FN4. This aspect of the motion, § 6, is more than 40% of the motion in terms of page length..  FN4. This aspect of the motion, § 6, is more than 40% of the motion in terms of page length.

FN5. As mentioned earlier, defendant denied that he actually had attempted to consume the urine, but instead explained his actions as observed by hospital personnel as being a situation in which he simply was considering such conduct..  FN5. As mentioned earlier, defendant denied that he actually had attempted to consume the urine, but instead explained his actions as observed by hospital personnel as being a situation in which he simply was considering such conduct.

FN6. Perceived “flight risk” would presumably fall in this category, as well..  FN6. Perceived “flight risk” would presumably fall in this category, as well.

FN7. The two questions and answers had nothing to do with the allegedly objectionable testimony that defendant claims should have been stricken..  FN7. The two questions and answers had nothing to do with the allegedly objectionable testimony that defendant claims should have been stricken.

FN8. While stating that “[t]he court [did not instruct] the jury that they were to ‘disregard’ [the challenged] testimony by the plaintiff ․” may be literally correct, by failing to note that the court did give a curative instruction (if not to defendant's liking), anyone not familiar with the detailed record likely would read defendant's contention as implying that the court did not give any curative instruction..  FN8. While stating that “[t]he court [did not instruct] the jury that they were to ‘disregard’ [the challenged] testimony by the plaintiff ․” may be literally correct, by failing to note that the court did give a curative instruction (if not to defendant's liking), anyone not familiar with the detailed record likely would read defendant's contention as implying that the court did not give any curative instruction.

FN9. Janet Fleming's testimony concerning supporting a scholarship fund in memory of her husband took on greater significance and relevance when defendant attempted to demonstrate that there was distance—literal, and by implication figurative—between she and her husband, at the time of the accident (i.e. that they were living in separate residences)..  FN9. Janet Fleming's testimony concerning supporting a scholarship fund in memory of her husband took on greater significance and relevance when defendant attempted to demonstrate that there was distance—literal, and by implication figurative—between she and her husband, at the time of the accident (i.e. that they were living in separate residences).

FN10. The court notes that General Statutes § 21a–279a, decriminalizing possession of small amounts of marijuana, had been in effect for almost a year prior to the date of trial, and at the time of trial, the General Assembly was considering passage of a law authorizing medical (“palliative”) use of marijuana (shortly thereafter enacted as Public Act 12–55, now codified as General Statutes § 21a–408 et seq.)..  FN10. The court notes that General Statutes § 21a–279a, decriminalizing possession of small amounts of marijuana, had been in effect for almost a year prior to the date of trial, and at the time of trial, the General Assembly was considering passage of a law authorizing medical (“palliative”) use of marijuana (shortly thereafter enacted as Public Act 12–55, now codified as General Statutes § 21a–408 et seq.).

Povodator, Kenneth B., J.