Carla Karlen v. Westport Board of Education (2013)

MEMORANDUM OF DECISION—MOTION TO SET ASIDE VERDICT, MOTION FOR ADDITUR AND FOR NEW TRIAL (# 224.00)

Nature of the Proceeding

This is an action arising from an incident that occurred in a Westport middle school.   Plaintiff (K) ¹ arrived in homeroom early, and was given permission to use a computer located at the back of the classroom.   Later, still during the homeroom period (which the teacher testified was approximately 12 minutes), two other students (M and H) approached plaintiff, wanting him to stop using the computer.   Although the details vary widely, one of the two students started pulling the chair on which plaintiff was sitting.   Plaintiff ended up on his knees in front of the computer, and the two boys prodded or kicked both of plaintiff's lower legs.   During the incident, plaintiff claims that the boys called him a faggot.   Plaintiff testified that he called out to the boys to stop as well as more generally calling out for help.   The teacher, who was sitting in the front of the classroom, was unaware of the incident, and testified that he never heard anyone calling out “stop” nor anyone calling out for help.   When the homeroom period ended, the three boys proceeded to their first classes, and no one—not the parties to the incident nor anyone else in the class—reported the matter to the teacher.

The incident occurred on a Friday (October 3, 2008),² and the school was first informed of the incident the following Monday.   Plaintiff and his family members testified that bruising and swelling were immediately apparent on Friday but no medical attention was sought until the following Wednesday.³

During the weekend just over two weeks after the incident, plaintiff fell/collapsed allegedly due to his ankle(s) giving out.   He was taken to a hospital emergency room and was given crutches, which he used for several weeks.

This lawsuit was started against nine defendants asserting a range of causes of action.   The matter was submitted to the jury against three defendants, with four theories of liability.⁴  The claims against the student defendants were that they had committed a common-law battery, that they had violated General Statutes § 52–571c which provides statutory remedies for intimidation and assaults based on bias/bigotry, and that they had intentionally inflicted emotional distress on the plaintiff.   A claim of negligent supervision was asserted against the homeroom teacher.

The jury found for the defendant teacher, determining that he had not been negligent.   The jury found for plaintiff against the defendant students on the battery claim only, initially intending to award $0 in damages.   The court ordered the jury to resume deliberation, explaining that to the extent that they had found a noneconomic injury they were required to award a non-$0 amount of damages, even if damages were just nominal.   The jury returned a short time later, awarding $1 damages against each of the student defendants, which verdict was accepted.  (On the other claims against the student defendants, the jury found in favor of the defendants.)

Evidentiary Issues and Background

The case was tried against an unusual if not unique evidentiary background.   Plaintiff never disclosed an expert.   A number of motions were filed by defendants concerning inadequate compliance with discovery requests, resulting in at least one order of significance.   After initially obtaining an order from the court that plaintiff was to provide suitable authorizations by a stated date, without compliance by that date, the M defendants then moved for a specific sanction, that plaintiff be precluded from offering any evidence relating to physical injuries or emotional distress (# 154.00).   In the absence of any objection by plaintiff, and without any compliance prior to the date that the court acted upon the motion, the court granted that motion two and a half weeks later (# 154.86), and plaintiff never sought relief from that order.⁵  To the contrary, immediately before trial, the other defendants filed motions in limine seeking to obtain the benefit of that ruling with respect to them, which the court denied.

Notwithstanding the foregoing, plaintiff and his family members were allowed to testify, at length, concerning plaintiff's injuries and course of treatment, extending over a period of years.   The jury was cautioned that it was not to use such information with respect to defendant M, but near the conclusion of the trial, the court modified its interpretation/application of the discovery order, indicating that the jury could consider testimony up to the date plaintiff first sought medical treatment.⁶

Relying on cases such as Gannon v. Kresge Co., 114 Conn. 36, 38 (1931), the court indicated (over objection of defendants) that it would allow medical records up to a point, despite the absence of any expert testimony (disclosure) indicating that such treatment was causally connected to the incident of October 3.⁷ Initially, the court believed that the “point” might be determined in a calendar sense, the concern being that the further away from the date of the incident, the less reasonable it would be for a jury to conclude, on its own, that there was a causal connection.   The longer symptoms/complaints persisted, the more attenuated the “obviousness” of the causal link—and at some point, the situation would approach an implicit claim of permanency, which would need an expert opinion.

In the course of addressing this issue with particular regard to admissibility of medical records/reports, one of the defendants pointed out that the fall/collapse incident leading to the hospital visit had occurred approximately 2 weeks after the events that had occurred in school, and that there was no expert evidence that that fall/collapse was causally related to the events of October 3. As already noted, the court had concluded that if the jury were to believe that plaintiff had been kicked relatively violently, no expert testimony would be needed with respect to causation for the visible consequences such as bruising and swelling.   Similarly, plaintiff's complaints of pain and emotional distress, directly arising from the homeroom occurrence, naturally would flow from those events.   However, the court could not extend the principle so as to encompass this scenario—that in the absence of expert guidance, a jury could rely on its common sense to conclude that the fall/collapse two weeks later was a consequence of the alleged homeroom assault.   To put it differently:  there was no reason for the court to believe that it was within the realm of juror experience to be able to conclude reasonably rather than speculatively that, after a kicking incident as described by plaintiff, there would be a causally-related and relatively-sudden turn for the worse, 2+ weeks later, resulting in one or both ankles giving way, in turn resulting in a fall/collapse.

It is against this background that plaintiff's claims must be evaluated.

Legal standards

The court is mindful of the standards governing a decision on a motion to set aside the verdict based on evidentiary rulings.

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).

Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury, the court's action cannot be reviewed in a vacuum.   The evidential underpinnings of the verdict itself must be examined.   Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached.  [I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will.  Wichers v. Hatch, 252 Conn. 174, 189 (2000) (citations and internal quotation marks, omitted).

Consistent with a litigant's constitutional right to a jury determination of the factual issues, the court can order additur only if the court concludes that the verdict is inadequate, as a matter of law.  General Statutes § 52–216a.

Discussion

Admissibility of Medical Records

Plaintiff claims that the court committed an error sufficient to undermine the result of the trial, when it limited plaintiff's ability to present medical records to the jury.   Plaintiff starts his discussion of the merits of this claim by stating:

Despite having previously denied motions in limine filed by Defendants regarding whether Plaintiff was required to have expert medical testimony to prove causation for his on-going ankle problems, the court reversed midstream and found that there was a “second event” that caused Plaintiff's on-going problems.   The court then precluded the introduction of all medical records regarding treatment to Plaintiff's ankles subsequent to this purported “second event.”   The reason for the preclusion was a claim that expert testimony was required in order to show causal connection between this claimed “second event” and the original trauma caused by the minor defendants.

In this passage, plaintiff misconstrues the nature and significance of the court's rulings.   The denial of a motion in limine seeking to preclude evidence or testimony does not mean that the evidence/testimony in question is admissible, but rather simply means that the court is not sufficiently convinced, in advance of trial, that the evidence is clearly inadmissible.   Denial of a motion in limine does not preclude the issue from being addressed at a later time;  to the contrary, probably more often than not, the moving party does not just give up but instead renews the objection(s) when evidence or testimony is offered during trial.  (Probably less often, even the granting of a motion in limine may be subject to further review, as the case unfolds.)   Accordingly, the court did not “reverse midstream” its position, but rather addressed the issue as it arose during the trial, with the benefit of a context inherently absent during argument on a pretrial motion.

Similarly, the court did not “find” that there had been a “second event” that caused plaintiff's on-going “problems.”   Rather, the court concluded that the fall/collapse that occurred approximately two weeks after the events in school, represented a break in the ability of the jury to conclude, based on their own experience, that subsequent symptoms and complaints were causally related to the initial incident.   Instead, the court believed that they were at least two possibilities and without expert guidance, the jury could not conclude which was appropriate (without engaging in speculation).   The court did not believe that the jury could conclude whether that fall/collapse itself was causally related to the original incident, or represented a new onset of problems with uncertain relationship to the original events, based solely on common sense.

However, we do not regard the situation as one in which, from its nature, expert opinion evidence is indispensable or necessarily essential to the reaching of a conclusion upon a disputed issue as to the cause of the disease, injury, or condition, or choice between two or more possible causes.   There may be sets of circumstances, especially when no other cause other than that claimed is suggested, sufficient to remove determination of the issue from the realm of conjecture without the aid of positive expert opinion and create a probability so strong as to induce and warrant a reasonable belief in an impartial mind.  Gannon, 114 Conn. 38.

Once the fall/collapse took place, the situation no longer was sufficiently clear and unambiguous as to allow causation to be submitted to the jury without benefit of expert guidance.

Plaintiff goes on to state:

“Plaintiff sought to make an offer of proof regarding the court's sua sponte determination that there was a ‘second event’ but was denied.   There had been no testimony that established a basis for any ‘second event.’   There was merely speculation that there could have been an event such as tripping or falling over a crack in the sidewalk.   Plaintiff's testimony was that he collapsed, not that he tripped, stumbled or otherwise encountered some object that caused the collapse.   Just as lay testimony regarding the original kicking incident was permitted as having caused the bruising, swelling, and pain on October [3], the lay testimony regarding the cause of Plaintiff's collapse should have been permitted.   This was a permissible conclusion within the field of knowledge common to an everyday juror.”

The court did not “sua sponte [determine] that there was a ‘second event’ “—the issue of whether the fall/collapse represented a break in the “common-sense causation” that the court was willing to submit to the jury, was initially raised by one of the defendants, during discussion of admissibility of medical records.⁸  As long as there were no significant events that might interrupt the reasonableness of inferred causation, the court was prepared to allow the jury to use common sense in determining causation.   The fall/collapse was such an interruption.

Additionally, plaintiff's reference to a “second event” (complete with quotation marks) needs to be put into context.   At times, the court referred to the fall/collapse as a “second event” or a “possible second event” or in other terms.   Plaintiff did not question whether or not the fall/collapse occurred and indeed it was a major part of plaintiff's case.   In other words, plaintiff did not challenge that such an event had occurred, but rather was the proponent for its occurrence.   The use of the expression “second event” did not occur in front of the jury and was a means of identifying an event subsequent to the original incident in school (the first event) as a focus of attention, particularly with respect to the possible need for expert testimony as to causation.

In the passage quoted above, plaintiff misconstrues the court's comments and ruling.   The court never stated that there had been a fall caused by a sidewalk, etc.   At all times, the focus of the court's attention with respect to a “second event” was the admitted and affirmatively-claimed fall/collapse, allegedly because one or both ankles gave way.   It was the absence of any medical (expert) testimony that the fall was causally related to the original incident in school, more than two weeks earlier, that required close attention and eventually resulted in the court determining that it was no longer a matter of common sense for the jury to find it causally related.   Reference to the fact that the fall could have been caused by a trip, etc., was simply a reference to the fact that a fall could have many possible causes and plaintiff's recitation of a claim that his ankle simply gave way was not a substitute for medical causation under the circumstances.

From a formal decision-tree perspective, the fall/collapse represented a new node—a point at which two choices existed (the fall was a natural consequence flowing from the original incident, or it was caused by something else, either internal or external) and a choice had to be made.   Without guidance, the jury could not do so.   Implicitly, plaintiff is arguing that the jury should have been allowed to engage in a post hoc ergo propter hoc analysis—the fall/collapse occurred after the school incident and therefore anything and everything that happened afterwards must have been caused by it.   Even accepting plaintiff's testimony that his ankle(s) just gave way does not address causation with respect to the events of two weeks earlier—was it causally related or was there some other (independent) cause?   Despite plaintiff's contentions to the contrary, the court does not and did not accept the notion that the jury could conclude, without speculation, that after two weeks of ambulating without the need for crutches, after a single doctor's visit, after an apparent recommendation for physical therapy without follow-through,⁹ etc., his condition could deteriorate abruptly resulting in a fall/collapse.

Further, the court does not recall any offer of proof by plaintiff, in this regard.   When the issue first arose on October 1, 2013, the closest there was to an offer of proof was plaintiff's suggestion that defendants could ask plaintiff additional questions concerning the cause of the fall.   Plaintiff already had testified that his ankle(s) had simply given way.   Having plaintiff repeat that his ankle(s) simply gave way would not address the issue and further questioning would not address whether there was a relatively-obvious unbroken causative link despite the relatively-abrupt change in symptoms.

Conversely, plaintiff did not ask the court to mark for identification any of the records he claims were improperly excluded from evidence.   As a result, the court cannot determine whether the records were otherwise relevant or admissible.  (Individually offered documents would have allowed defendants to identify additional grounds for objection, if appropriate and if they so chose.)

The discussion of the applicability of the statute governing admissibility of doctors' reports (General Statutes § 52–174(b)) is irrelevant.   The issue before the court was not authenticity or whether any reports qualified as business records—the issue was whether, in the absence of a proper expert disclosure, the records were relevant and admissible.   If a report contained an opinion addressing causation, then the report would have been offered in violation of Practice Book § 13–4's expert disclosure requirements.¹⁰  If a report did not contain any opinion addressing causation, then the relevance of a report discussing treatment not causally related to the accident would be the issue.   Under either scenario, the likely purpose of the offer of the report would have been to bolster plaintiff's claim of a causative relationship between the treatment and initial injuries, explicitly under the initial scenario and implicitly under the second scenario, despite the lack of any formal expert opinion as to a causal relationship having been disclosed.   (Again, it must be emphasized that plaintiff and his family were allowed to testify about the course of treatment, extending years after the incident in school.   See, also, footnote 8.)

Plaintiff's reliance on Mack v. Lavalley, 55 Conn.App. 150, 158 (1999), is inapposite.   In Mack, the issue was not whether a medical condition or injury was causally related to an incident.   Medical causation is wholly distinct from issues relating to the existence of a premises defect—in Mack, the lack of any changes in the condition of the premises meant that there was no need for anything like a fresh look, as was required here.¹¹  At the risk of oversimplification, Mack was based on evidence that there had not been a change in conditions, whereas the court's concern here was that there had been a relatively-abrupt change in plaintiff's condition.

The court did not “[make] the factual determination that there was a ‘second event’ and that the ‘second event’ broke the causal connection to defendants' admitted battery [of plaintiff].” ¹²  The court made no such factual determination, and indeed it was left to the jury to decide whether or not the fall/collapse occurring two weeks after the initial events was related to that initial battery.   Rather, the court performed a gatekeeper-type function, determining that at least with respect to admissibility of medical records and reports, no such documentation was admissible in the absence of an admissible opinion of a causative link, while not restricting the ability of plaintiff and his family to testify as to that course of treatment.   In effect, the court did not allow the reports to be entered as a form of validation of that treatment, implying that the treatment was medically necessary and causally related to the events of October 3.¹³ (As previously noted, the “second event” was the fall/collapse two weeks later, which was something affirmatively alleged by plaintiff such that there was no need for the court to make any factual determination, in order to rule as it did.)   To use plaintiff's terminology:  the court did not “[make] the factual determination that ․ the ‘second event’ broke the causal connection to defendants' [conduct]” but rather that in a gatekeeper sense, it “broke” the common-sense “obviousness” of the causal connection that allowed the jury to infer causation without expert guidance —and even then, only as to medical records/reports (as there was no such limitation with respect to the testimony of plaintiff and his family members).

Finally, plaintiff has not identified, directly or implicitly, how he was harmed by the ruling, in the context of the jury's verdict.   Plaintiff's testimony (including testimony from family members) was largely unrestricted with respect to the course of medical treatment.   Any medical records from the first two weeks after the events of October 3, 2008 were not subject to this ruling.   Despite the availability of that information and the potential admissibility of at least some records, the jury concluded that plaintiff suffered no significant injuries insofar as the jury initially wanted to award $0 in damages and eventually awarded $1 in damages.   At a minimum, that reflects a determination by the jury that the extent of the injury manifesting itself during the first two weeks was nominal.   Conversely, plaintiff's only argument that the exclusion of records after two weeks was prejudicial could only be based on a claim that the records confirmed the medical necessity of treatment after two weeks, effectively using the records as an expert opinion of causation but without any disclosure and possibly without any actual basis to do so.¹⁴

The court's conclusion, in this regard, is confirmed by consideration of the different paths the jury had to take in order to arrive at the conclusion that the verdict as to both M and H should be the same, i.e. $1.

As a result of the discovery order issued in response to the motion filed by the M defendants, as interpreted/modified by the trial court, the only evidence that the jury could consider with respect to personal injuries and emotional distress, in connection with claims against M, was testimony relating to the first few days after the school incident, up to the point that plaintiff first sought medical attention.   In considering the claims against H, there was no such limitation.   Thus, with respect to H, the jury could consider records through the first two+ weeks after the incident, plus all of the testimony of plaintiff and his family members concerning his injuries and treatment extending through the time of trial.   Despite the large disparity in available evidence, the jury concluded that the same $1 award was appropriate for both student defendants.

In order for the jury to have concluded that the same $1 award was appropriate for both student defendants, the jury had to conclude that the damages proven were the same—and based on the amount awarded, nominal.   That means that in considering the damages to be awarded against H, the jury concluded that those damages were essentially the same as proven against M which, in turn, were based on just the first few days after October 3, 2008.   The only way that could have happened is if the jury had concluded that there was no material proof of damages/injuries, on an incremental basis, on and after October 8, 2008.   That, in turn, would mean that the jury did not even consider the claimed pain and suffering from October 8 through October 19, 2008 to have any value—did not consider it to be worth any increment to the $1 award against H. The absence of records relating to treatment on and after October 19, 2008, then, could not have been prejudicial, as the jury, inferentially, concluded that any injury that was suffered by plaintiff had no consequences beyond October 8, 2008.

The court is not convinced that it committed an evidentiary error warranting setting aside the verdict.

Inadequacy of Damages

Plaintiff's arguments concerning inadequacy of damages suffer from a continuing thematic flaw.   Plaintiff refers to evidence that was offered concerning bruises, swelling, etc. and the absence of any affirmative evidence offered by defendants to the contrary.   The issue is not whether the jury could have awarded significant damages based on the evidence offered, but rather whether there is a view of the evidence that could support the verdict actually rendered.   Both student defendants testified that the kicking-type action was not of a nature likely to cause any real injury.   Without objection, they each demonstrated the force with which they engaged in the kicking-type action, again with a force highly unlikely to cause any injury.   If the jury accepted their testimony, the jury reasonably could have concluded that there was a technical battery but without any real injury that might merit substantial damages.

As with claims of physical injuries, the jury was not obligated to accept plaintiff's claims of significant pain and emotional distress.   The jury was instructed that with respect to the battery claim, it did not have to find that there was an actual physical injury to plaintiff for plaintiff to prevail, but in the alternative, plaintiff could prevail if defendants' conduct “offended a reasonable sense of personal dignity.” ¹⁵  A nominal award of damages such as $1 is consistent with a jury determination of such a technical battery without any substantial injury.¹⁶  Accordingly, plaintiff has not established that the verdict was inadequate, as a matter of law.

Additur

Although approached from a different perspective, the argument here is largely interchangeable with the preceding claim, i.e. the verdict was inadequate as a matter of law.  (In the preceding discussion, plaintiff claimed that the inadequate verdict was a basis for a new trial, in and of itself, whereas in the current argument, plaintiff is claiming that the court should order additur, based on that same inadequacy, with a new trial resulting only if the additur is rejected.)

For the reasons stated in the preceding discussion, the court declines to order an additur.   The jury reasonably could have concluded that there was a technical battery that might have been perceived as offensive, but without any real injury.   Under such circumstances, nominal damages—$1—would be appropriate.

This case is readily distinguishable from Hall v. Bergman, 296 Conn. 169, 176 (2010), cited and relied upon by plaintiff.   In Hall, the plaintiff had successfully pursued claims of negligent and intentional infliction of emotional distress.   As recited in the Supreme Court decision, the trial court, in ordering an additur observed that both causes of action required proof of emotional distress, with one of them requiring severe emotional distress.   As noted in the previous discussion, in this case, the jury could have found that defendant's conduct had been offensive to personal dignity without necessarily resulting in any real emotional distress.   The court disagrees with plaintiff's statement that “[s]imilarly, [i]n the instant case, if the jury found a battery based upon the ‘offensive’ touching, there was necessarily some amount of emotional distress.”   Again, the fact that plaintiff testified that he did suffer emotional distress would not require the jury to find that there was emotional distress.

Further, and perhaps more significant, in Hall, the jury had returned a verdict for plaintiff of $0 damages, which the court had accepted.¹⁷  The Supreme Court's discussion of the Appellate Court decision, 296 Conn. 178, referred to that lower court's discussion of the distinction between zero damages and nominal damages and at no time indicated any disagreement with that distinction.   In this case, the court did not accept $0 damages and the verdict ultimately rendered and accepted provided for damages of $1, i.e. nominal damages.

It is perhaps ironic that the recitation of the proceedings in the Hall trial court indicate that immediately after the trial court had dismissed the jury, plaintiff's counsel claimed that plaintiff was entitled to nominal damages, 296 Conn. 175, and the trial court had suggested that plaintiff file a written motion in that regard.   Reflecting imprecision in the concept of nominal damages, the trial court then ordered additur in the amount of $2,000 (106 Conn.App. 660 at 661) which the Appellate Court later characterized as nominal (106 Conn.App. 681).   Nowhere in the Appellate Court decision or the subsequent Supreme Court decision was it suggested that nominal damages were (or would be) inappropriate.

Here, of course, the court did not accept a verdict of $0 but instead explicitly instructed the jury that it was required to return a verdict of at least nominal damages.¹⁸  The jury “corrected” its verdict, awarding damages in the amount of $1. As with the discussion of the claimed inadequacy of the verdict, the jury reasonably could have concluded that plaintiff was only entitled to $1 in damages and the court is not supposed to sit as a seventh juror.   There is no basis for ordering an additur under the circumstances of this case.

Conclusion

From a broad-brush perspective, there is no dispute as to whether “something” happened in homeroom class on October 3, 2008.   The details of the events and the extent of injuries were vigorously contested.   Plaintiff offered evidence which, if believed by the jury, could have supported a significant award.

Defendants challenged almost every aspect of plaintiff's case, other than that someone had started pulling the chair and that defendants' feet came into contact with plaintiff's lower legs.   Thus, while plaintiff offered evidence that he needed crutches for a period of several weeks, defendants offered evidence that plaintiff had been seen, at times, playing with the crutches rather than using them for ambulating.   Plaintiff claimed extensive interruption of his usual activities, specifically including limitation on karate, while defendants offered evidence that after the incident, plaintiff had continued to progress in his karate ranking, obtaining a black belt after going through an onerous test.   Thus, aside from the jury's right simply not to believe some or all of plaintiff's evidence, there was affirmative evidence that cast doubt on significant portions of plaintiff's claims.¹⁹  The court cannot conclude that, under the circumstances, the jury's verdict was inadequate, as a matter of law.

Plaintiff's motion is denied, in all respects.

POVODATOR, J.

FOOTNOTES

FN1. Although the names of the students involved in this case—plaintiff and defendants—are not subject to any order of nondisclosure, and are mentioned throughout the pleadings, the court will follow the lead of plaintiff in his motion in attempting to preserve privacy for those students, using initials (M and H) to indicate the student defendants as well as their families, while referring to plaintiff as plaintiff or K. (Thus, “M defendants” is a reference to defendant M and his parents, who also were defendants.).  FN1. Although the names of the students involved in this case—plaintiff and defendants—are not subject to any order of nondisclosure, and are mentioned throughout the pleadings, the court will follow the lead of plaintiff in his motion in attempting to preserve privacy for those students, using initials (M and H) to indicate the student defendants as well as their families, while referring to plaintiff as plaintiff or K. (Thus, “M defendants” is a reference to defendant M and his parents, who also were defendants.)

FN2. The complaint refers to the incident as occurring on October 6. In the subject motion, on at least two occasions, there is a reference to the incident occurring on October 8. Evidence at trial seemingly unambiguously put the actual date of the alleged tortious conduct as October 3, 2008.   Notwithstanding varying dates in various pleadings, October 3 will be used as the date of the events giving rise to this action..  FN2. The complaint refers to the incident as occurring on October 6. In the subject motion, on at least two occasions, there is a reference to the incident occurring on October 8. Evidence at trial seemingly unambiguously put the actual date of the alleged tortious conduct as October 3, 2008.   Notwithstanding varying dates in various pleadings, October 3 will be used as the date of the events giving rise to this action.

FN3. There was some early testimony suggesting that medical treatment might have been sought earlier, but later testimony consistently was to the effect that he first received medical treatment on that following Wednesday..  FN3. There was some early testimony suggesting that medical treatment might have been sought earlier, but later testimony consistently was to the effect that he first received medical treatment on that following Wednesday.

FN4. Without any active objection by plaintiff, verdicts had been directed with respect to claims of negligent supervision directed to the parents of the defendant students, and with respect to claims of negligence directed to supervisory personnel at the Westport Board of Education.   Although the then-current complaint did not assert any claims against the Board, the Board was a defendant and there had been allegations directed to it in prior versions;  a directed verdict was ordered in favor of the Board, as well..  FN4. Without any active objection by plaintiff, verdicts had been directed with respect to claims of negligent supervision directed to the parents of the defendant students, and with respect to claims of negligence directed to supervisory personnel at the Westport Board of Education.   Although the then-current complaint did not assert any claims against the Board, the Board was a defendant and there had been allegations directed to it in prior versions;  a directed verdict was ordered in favor of the Board, as well.

FN5. Despite the existence of a standing civil jury trial order requiring the parties to file a joint trial management report, each party filed a separate trial management report.   Plaintiff's report (# 161.00) recited an intention to file a motion for reconsideration, but no such motion ever was filed..  FN5. Despite the existence of a standing civil jury trial order requiring the parties to file a joint trial management report, each party filed a separate trial management report.   Plaintiff's report (# 161.00) recited an intention to file a motion for reconsideration, but no such motion ever was filed.

FN6. The court realized that a total bar of use of any evidence was likely to be perceived as disproportionate—if plaintiff had not sought any medical treatment, then his initial complaints and the initial observations of family members likely would have been admissible.   Once plaintiff sought medical treatment, the existence/production of medical records became more critical to defendants, to the extent that such records might confirm or contradict any testimony going forward, and to that extent, the sanction imposed would likely be proportionate..  FN6. The court realized that a total bar of use of any evidence was likely to be perceived as disproportionate—if plaintiff had not sought any medical treatment, then his initial complaints and the initial observations of family members likely would have been admissible.   Once plaintiff sought medical treatment, the existence/production of medical records became more critical to defendants, to the extent that such records might confirm or contradict any testimony going forward, and to that extent, the sanction imposed would likely be proportionate.

FN7. More generally, Gannon also was, in part, the basis for allowing plaintiff and his family members to testify as to the immediate consequences of the alleged assault—bruises, swelling, etc..  FN7. More generally, Gannon also was, in part, the basis for allowing plaintiff and his family members to testify as to the immediate consequences of the alleged assault—bruises, swelling, etc.

FN8. Prior to the subject ruling, which occurred late in the trial, exhibits relating to payments for medical services in 2009 and 2010 had been admitted (Pl. Exs. 5 and 6)..  FN8. Prior to the subject ruling, which occurred late in the trial, exhibits relating to payments for medical services in 2009 and 2010 had been admitted (Pl. Exs. 5 and 6).

FN9. Defendants took the position that the lack of physical therapy during the first two weeks suggested that it was not needed or at a minimum, not perceived as urgent.   Plaintiff argued that it was due to the need to make an appointment, which required lead-time..  FN9. Defendants took the position that the lack of physical therapy during the first two weeks suggested that it was not needed or at a minimum, not perceived as urgent.   Plaintiff argued that it was due to the need to make an appointment, which required lead-time.

FN10. Although not explicitly raised, the court would not have been able to consider treating the requirement of expert disclosure as a mere formality, given the history of problems with discovery compliance.   Indeed, counsel for plaintiff herself acknowledged that she had had problems getting records, such that the court could not assume that defendants had everything in their possession relating to medical opinions, such that they did not really “need” a formal expert disclosure..  FN10. Although not explicitly raised, the court would not have been able to consider treating the requirement of expert disclosure as a mere formality, given the history of problems with discovery compliance.   Indeed, counsel for plaintiff herself acknowledged that she had had problems getting records, such that the court could not assume that defendants had everything in their possession relating to medical opinions, such that they did not really “need” a formal expert disclosure.

FN11. The issue in Mack was whether testimony, based on observations of the scene of a fall months after it had occurred but confirmed by other witnesses to be the same conditions as at the time of the fall, was admissible.   There was testimony that the photographs taken at that later date by the witness accurately depicted conditions at and before the time of the fall (as confirmed by the plaintiff and another witness), and the Appellate Court affirmed the trial court's decision to admit the testimony.   Admissibility in Mack was premised on lack of change, whereas plaintiff's fall/collapse reflected a sudden change in condition..  FN11. The issue in Mack was whether testimony, based on observations of the scene of a fall months after it had occurred but confirmed by other witnesses to be the same conditions as at the time of the fall, was admissible.   There was testimony that the photographs taken at that later date by the witness accurately depicted conditions at and before the time of the fall (as confirmed by the plaintiff and another witness), and the Appellate Court affirmed the trial court's decision to admit the testimony.   Admissibility in Mack was premised on lack of change, whereas plaintiff's fall/collapse reflected a sudden change in condition.

FN12. Defendants admitted that their feet came into contact with plaintiff's legs, but did not admit that it constituted a battery..  FN12. Defendants admitted that their feet came into contact with plaintiff's legs, but did not admit that it constituted a battery.

FN13. Plaintiff indirectly confirms that such an implication was the purpose of the offer.   In his motion, plaintiff states:  “Further by permitting plaintiff to testify regarding the on-going problems and the treatment and therapy that he received but without the ability to produce the medical records, there was a likely negative and prejudicial impact on the jury's perception of Plaintiff's credibility.”.  FN13. Plaintiff indirectly confirms that such an implication was the purpose of the offer.   In his motion, plaintiff states:  “Further by permitting plaintiff to testify regarding the on-going problems and the treatment and therapy that he received but without the ability to produce the medical records, there was a likely negative and prejudicial impact on the jury's perception of Plaintiff's credibility.”

FN14. As noted earlier, none of the medical records were marked for identification.   The court does not know whether any of the documents plaintiff wanted to offer actually contained any explicit or implicit opinion-type statements linking the treatment to the incident in school..  FN14. As noted earlier, none of the medical records were marked for identification.   The court does not know whether any of the documents plaintiff wanted to offer actually contained any explicit or implicit opinion-type statements linking the treatment to the incident in school.

FN15. “If you find that [M], or [H], or both of them, intentionally, wantonly or without the exercise of due care harmfully or offensively contacted the person of plaintiff [K], and either caused physical impairment, pain, or illness, or offended a reasonable sense of personal dignity, then you should find that that defendant or both defendants to have committed battery upon the plaintiff.”.  FN15. “If you find that [M], or [H], or both of them, intentionally, wantonly or without the exercise of due care harmfully or offensively contacted the person of plaintiff [K], and either caused physical impairment, pain, or illness, or offended a reasonable sense of personal dignity, then you should find that that defendant or both defendants to have committed battery upon the plaintiff.”

FN16. Similarly, the claim of mental/emotional distress arising from claimed taunting relating to perception of plaintiff being gay, aside from probably not being part of the battery itself, was clearly disputed such that even if it were part of the battery, the jury was free to find that it did not happen..  FN16. Similarly, the claim of mental/emotional distress arising from claimed taunting relating to perception of plaintiff being gay, aside from probably not being part of the battery itself, was clearly disputed such that even if it were part of the battery, the jury was free to find that it did not happen.

FN17. More precisely, the jury initially had returned both a defendant's verdict form and a plaintiff's verdict form, as to different counts, with zero damages on the counts that it found for plaintiff.   The trial court then had instructed the jury to fill out a single form and resubmit it.   The verdict form ultimately accepted by the court found for plaintiff but again awarded $0 damages..  FN17. More precisely, the jury initially had returned both a defendant's verdict form and a plaintiff's verdict form, as to different counts, with zero damages on the counts that it found for plaintiff.   The trial court then had instructed the jury to fill out a single form and resubmit it.   The verdict form ultimately accepted by the court found for plaintiff but again awarded $0 damages.

FN18. When the clerk initially gave the verdict forms and interrogatories to the court, the court recognized a problem or potential problem, and instructed the jury to return to the deliberation room while the court addressed counsel.   The court explained to counsel, in the absence of the jury, the perceived problem or potential problem of a verdict of $0 damages on the battery claim, and solicited comments from counsel.   At least one defendant initially indicated that he believed that a $0 verdict was appropriate.   Plaintiff, however, stated that the award needed to be nominal and that it could not be $0. The court ultimately concluded that it should instruct the jury that the $0 damages award was improper, and that the jury was required to return a verdict of at least nominal damages.   (The court offers no opinion as to whether the position articulated by plaintiff in response to the court's question does or may affect plaintiff's right to challenge the verdict.).  FN18. When the clerk initially gave the verdict forms and interrogatories to the court, the court recognized a problem or potential problem, and instructed the jury to return to the deliberation room while the court addressed counsel.   The court explained to counsel, in the absence of the jury, the perceived problem or potential problem of a verdict of $0 damages on the battery claim, and solicited comments from counsel.   At least one defendant initially indicated that he believed that a $0 verdict was appropriate.   Plaintiff, however, stated that the award needed to be nominal and that it could not be $0. The court ultimately concluded that it should instruct the jury that the $0 damages award was improper, and that the jury was required to return a verdict of at least nominal damages.   (The court offers no opinion as to whether the position articulated by plaintiff in response to the court's question does or may affect plaintiff's right to challenge the verdict.)

FN19. The court does not know whether anyone else picked up on it, but plaintiff's father testified that when he first saw the bruising on October 3, 2008, in addition to observing black and blue areas, he also saw some yellow—it is the court's understanding that in the context of bruising, yellow is an indication of an old bruise that is in the process of resolving..  FN19. The court does not know whether anyone else picked up on it, but plaintiff's father testified that when he first saw the bruising on October 3, 2008, in addition to observing black and blue areas, he also saw some yellow—it is the court's understanding that in the context of bruising, yellow is an indication of an old bruise that is in the process of resolving.

Povodator, Kenneth B., J.