Ginsberg v. Fusaro, 14471

• Decision Date: 27 April 1993
• Docket Number: No. 14471,14471
• Citation: 225 Conn. 420,623 A.2d 1014
• Court: Connecticut Supreme Court
• Parties: Martin GINSBERG, et al. v. John FUSARO, et al.

Page 1014

623 A.2d 1014

225 Conn. 420

Martin GINSBERG, et al. v. John FUSARO, et al.

No. 14471.

Supreme Court of Connecticut.

Argued Oct. 28, 1992.

Decided April 27, 1993.

[225 Conn. 421] Daniel E. Ryan III, with whom, on the brief, was Laureen J. Vitale, Stamford, for appellant-appellee (named plaintiff).

Edward V. O'Hanlan, New Canaan, with whom, on the brief, was James A. Wade, Hartford, for appellee-appellant (defendant Rita Fusaro).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and FRANCIS X. HENNESSY, JJ.

BERDON, Associate Justice.

These appeals arise out of an action brought by the plaintiff dentists, Martin Ginsberg and Robert Miller, seeking to recover from the defendant Rita Fusaro ¹ the reasonable value of dental services rendered to her. Although the case started as a collection case, it developed into a dental malpractice case when Fusaro filed a counterclaim alleging that Ginsberg and Miller had been negligent in performing the dental services. The jury found the issues for Fusaro on both the complaint and the counterclaim, and awarded Fusaro $5000 damages against Miller and "zero" damages against Ginsberg. The verdicts were accepted by the court without objection and the jury was dismissed.

Fusaro subsequently filed separate motions to set aside the verdicts against Ginsberg and Miller, or in the alternative, for a new trial. The trial court granted Fusaro's motion to set aside the verdict against Ginsberg as to liability and damages, but denied the motion to set aside the verdict against Miller. Ginsberg filed an appeal in the Appellate Court upon the granting of Fusaro's motion to set aside the verdict. Fusaro then filed a cross appeal. ² While these appeals were pending, Ginsberg filed a motion to correct the jury verdict, which was denied by the trial court. Ginsberg subsequently amended his appeal in order to challenge the denial of his motion to correct.

The jury could reasonably have found the following facts. In 1979, Fusaro's regular dentist, Miller, extracted from her mouth a decayed tooth that he later replaced with a permanent bridge. Throughout the hour long process of permanently cementing the bridge to her natural teeth, Miller continually admonished Fusaro to keep her mouth open. Miller leaned on her and pulled her lower jaw down with his hand to keep her mouth open. Miller also improperly ground down her teeth in order to adjust her bite--that is, the angle and manner in which the upper and lower teeth meet. During the six weeks after the bridge was installed, Fusaro called Miller several times because she had been experiencing great pain, but was told that her symptoms were not out of the ordinary and would abate in time.

After the six week period, Miller referred Fusaro to his partner, Ginsberg, who specialized in a disorder of the temporomandibular joint commonly referred to as "TMJ." The temporomandibular joint is the juncture where the jaw joins the skull. According to Fusaro, Ginsberg diagnosed her condition as TMJ. Ginsberg treated Fusaro by prescribing pain medication and preparing a splint for her to wear on her teeth. The splint, however, was not delivered to her for another six weeks. Shortly afterward, Fusaro discontinued treatment with Ginsberg. ³

At trial, Fusaro presented two dentists as expert witnesses, Brendan Stack and Barry Rudolph, both of whom had treated her for TMJ. Both experts testified that Miller's rough treatment of Fusaro and negligent adjustment of the bite had caused her to develop TMJ. They also opined that Miller was negligent in having failed to refer Fusaro to a TMJ specialist for immediate treatment, and that the delay diminished her chances of recovering from TMJ and resulted in permanent injury. Miller denied that there were any problems relating to the fixation of the bridge or that he was negligent in the adjustment of Fusaro's bite.

Stack and Rudolph also testified that Ginsberg was negligent by allowing an additional six week delay before applying the splint, further diminishing her chances for full recovery from TMJ. Ginsberg denied that Fusaro had TMJ or that he was negligent. He testified that when he examined and treated Fusaro, she had been suffering from myofacial pain dysfunction, which is a muscle inflammation and spasm.

I THE VERDICT AGAINST GINSBERG

On appeal, the parties raise three issues involving the verdict against Ginsberg. First, Ginsberg claims that the trial court should not have set aside the verdict on the counterclaim, which found the issues in favor of Fusaro, but awarded zero damages. Alternatively, Ginsberg claims that the verdict should have been corrected. Finally, Fusaro claims that the verdict against Ginsberg should have been set aside as to damages only, but not as to liability.

The following verdict form was submitted to and completed by the jury ⁴ on Fusaro's counterclaim for damages resulting from Ginsberg's alleged malpractice:

"In this case, the jury finds the issues for the defendant, Rita Fusaro and against the plaintiff Martin Ginsberg, in accordance with the following calculation:

"1. Fair, just and reasonable compensation for the defendant's injuries, if any: 0 dollars;

"2. The amount, if any, that # 1 should be reduced by reason of defendant, Rita Fusaro's failure to minimize damages: 0 dollars.

"Subtract # 2, if any from # 1, if any: Verdict 0 dollar damages."

This verdict form was signed by the foreperson of the jury, accepted in open court after two readings and recorded by the trial court.

Ruling on Fusaro's motion to set aside the verdict against Ginsberg, the trial court concluded, in light of its instructions, that the verdict finding the issues of negligence, causation and damages in favor of Fusaro, but awarding zero damages, was inconsistent. We agree with the trial court's ruling.

We have often held that "[t]he decision to set aside the verdict entails the exercise of a broad legal discretion that, in the absence of clear abuse, we shall not disturb. O'Brien v. Seyer, [183 Conn. 199, 208, 439 A.2d 292 (1981) ]." Palomba v. Gray, 208 Conn. 21, 24, 543 A.2d 1331 (1988); American National Fire Ins. Co v. Schuss, 221 Conn. 768, 607 A.2d 418 (1992); State v. Hammond, 221 Conn. 264, 270, 604 A.2d 793 (1992). In our review of the exercise of this discretion, we accord great weight to the trial court's decision; Labatt v. Grunewald, 182 Conn. 236, 240-41, 438 A.2d 85 (1980); so long as the trial court's exercise of its discretion does not infringe on the constitutional rights of the litigants to have issues of fact determined by a jury. Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982). This right is an "obviously immovable limitation on the legal discretion of the court to set aside a verdict...." Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970).

The trial court's exercise of its discretion in this case finds support in Malmberg v. Lopez, 208 Conn. 675, 681, 546 A.2d 264 (1988), in which we held that a verdict finding the issues for the party seeking to recover damages but awarding zero damages was inherently ambiguous. In the present case, the trial court instructed the jury that a finding for Fusaro on the issue of liability included the issues of negligence, causation and damages. ⁵ Under these circumstances, we can only speculate as to why the jury failed to award damages in her favor; therefore, the jury's verdict creates an ambiguity.

Ginsberg argues that Fusaro should be estopped from claiming that the verdict should be set aside as inconsistent because she failed to assert that claim before the verdict was accepted and recorded and the jury dismissed. Although it is clear that the trial judge has the authority to return the jury for reconsideration of the verdict under General Statutes § 52-223, ⁶ we have never held that a party is obliged to request reconsideration as a prerequisite to challenging the validity of the verdict on a motion to set aside the verdict. Nor is such a condition precedent set forth in the rules of court ⁷ or the statutes, ⁸ which allow either party to move, within certain time limitations, to set aside the verdict. The power to return the jury to reconsider its verdict a second and a third time must be left to the discretion of the trial court. Szlinsky v. Denhup, 156 Conn. 159, 165, 239 A.2d 505 (1968). Indeed, we have made it clear that the trial court has the inherent power to set aside the verdict even when no motion by either party is made. Belchak v. New York, N.H. & H.R. Co., 119 Conn. 630, 637, 179 A. 95 (1935). Accordingly, we reject Ginsberg's claim.

Several months after the trial court set aside the verdict against Ginsberg, and while these appeals were pending, Ginsberg sought to have the trial court vacate its order setting aside the verdict and correct the original jury verdict. Ginsberg claimed that the jury was unanimous in its decision to render a verdict in favor of Fusaro and against Miller and Ginsberg for a total of $5000, but made an error in filling out the verdict form. Ginsberg predicated this claim on identical typewritten sworn affidavits from the jurors that had been solicited by Ginsberg and that stated in relevant part: "After deliberation with the other jurors ... it was my decision and the unanimous decision of the jury, that Rita Fusaro had proved that fair, just and reasonable compensation for the damages she had incurred as a result of her treatment from Dr. Robert Miller and Dr. Martin Ginsberg, was the amount of $5,000. The amount of $5,000 represents the total amount of damages that I and the other jurors decided by unanimous decision was fair, just and reasonable compensation for all damages to Rita Fusaro which were proximately caused by either Dr. Robert Miller or Dr. Martin Ginsberg. Although Rita Fusaro incurred expenses and suffered damages in an amount exceeding $5,000, I and the other jurors decided by unanimous decision that Rita Fusaro had not proved [that]...