Healy v. White

• Citation: 173 Conn. 438,378 A.2d 540
• Court: Supreme Court of Connecticut
• Decision Date: 06 September 1977
• Parties: Mary Jane HEALY et al. v. Allen H. WHITE et al.

Page 540

378 A.2d 540

173 Conn. 438

Mary Jane HEALY et al. v. Allen H. WHITE et al.

Supreme Court of Connecticut.

Argued May 4, 1977.

Decided Sept. 6, 1977.

Paul V. McNamara, Bridgeport, for appellants (defendants).

L. Douglas Shrader, Bridgeport, with whom, on the brief, was Frank J. Silvestri, Jr., Bridgeport, for appellees (plaintiffs).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

SPEZIALE, Associate Justice.

This personal injury action was tried to the jury as a hearing in damages, the issue of the defendants' liability having been determined by summary judgment. The defendants have appealed from the judgments rendered on the verdicts for the plaintiffs.

On July 24, 1973, the plaintiff Brian Healy, then seven and a half years old, was riding as a passenger in an automobile operated by his mother, Mary Jane Healy. At the intersection of Routes 25 and 202 in Newtown, their automobile was struck by a tractor-trailer truck owned by the defendant Silliman Company and operated by its employee, the defendant Allen H. White. As a result of the impact, Brian was thrown from the car onto the pavement. He was taken by ambulance to Danbury Hospital and, subsequently, to Yale-New Haven Hospital.

On July 11, 1974, the present negligence action was begun. After summary judgment on liability was rendered against the defendants, the plaintiffs filed a substituted complaint in two counts. The first count, claiming $750,000 in damages, was in behalf of Brian Healy and alleged, inter alia, that, as a result of the defendants' negligence, Brian had been violently thrown from his car and had suffered various physical injuries which included the "aggravation and worsening of a specific learning disability" and resulted in a "permanent minimal brain dysfunction syndrome (brain damage) with associated multiple psychomotor seizures (permanent epilepsy)." The second count was in behalf of Brian's father, Bartholomew Healy. It alleged that, as a result of the injuries sustained by his minor son, he had incurred and would in the future incur expenses for Brian's hospitalization, physicians' care and other medical needs, as well as expenses for private tutors and teaching specialists. The ad damnum to this second count claimed $125,000 damages.

In answering the substituted complaint, the defendants admitted their negligence and the allegations that Brian had suffered "fractured ribs, and multiple contusions and abrasions." The granting of the plaintiffs' motion for summary judgment eliminated any consideration of liability during the trial. The jury returned a verdict of $350,000 damages on the first count and $60,000 on the second count. Thereafter, the court denied the defendants' motion to set aside the verdicts, judgments were entered, and the defendants appealed.

The defendants' preliminary statement of issues claimed (1) that the verdicts on both counts should have been set aside or a remittitur ordered for lack of support in the evidence, (2) the trial court erred in rulings on evidence, specifically in permitting an answer to a hypothetical question, and (3) the trial court erred in not permitting the original complaint to be submitted to the jury along with the substituted complaint. The defendants have not briefed the claim relating to the submission of the original complaint to the jury and, accordingly, we consider it to be abandoned. State v. Crawford, 172 Conn. 65, 66, 372 A.2d 154; Fox v. Fox, 168 Conn. 592, 593, 362 A.2d 854.

We find no merit to the defendants' claim that the evidence does not support the verdict on the first count and that the verdict should have been set aside or a remittitur ordered. "The refusal of the trial court to disturb a verdict is strong support for its propriety. McWilliams v. American Fidelity Co., 140 Conn. 572, 575, 102 A.2d 345." Sheiman v. Sheiman, 143 Conn. 222, 224, 121 A.2d 285, 286. "The trial court's refusal to set aside the verdict is entitled to great weight in our assessment of the claim that it is excessive. Neal v. Shiels, Inc., 166 Conn. 3, 19, 347 A.2d 102." Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770, 775. A verdict may be excessive if it includes an award for an element of damages which was not proven. Sheiman v. Sheiman, supra, 143 Conn. 225, 121 A.2d 285; Adams v. New Haven, 131 Conn. 552, 555, 41 A.2d 111; Bushnell v. Bushnell, 103 Conn. 583, 596, 131 A. 432. In reviewing the evidence, however, we must give it the most favorable construction in support of the verdict of which it is reasonably capable. See Nash v. Hunt, 166 Conn. 418, 428, 352 A.2d 773; Hanauer v. Coscia, 157 Conn. 49, 53, 244 A.2d 611.

The defendants concede that the "objective injuries" sustained by the plaintiff Brian resulted from the accident. Brian's "fractured ribs, and multiple contusions and abrasions" were admitted in the pleadings. The dispute concerns the claims of minimal brain dysfunction and epilepsy. A review of the evidence reveals ample support for a conclusion that Brian's injuries were of a permanent nature. He was treated by two pediatric neurologists, Bennett Shaywitz and Peter Huttenlocher, whose qualifications and competence were uncontested. Each expressed his professional expert opinion in terms of reasonable medical probabilities that Brian's epilepsy was a permanent condition. Both expressed themselves statistically. Huttenlocher stated that "we are dealing with a statistical problem. But I can say this . . . that psychomotor seizures (epilepsy) usually do not disappear as the patient grows older. So that there is a better than 50 percent chance that this child will be left with the seizure problem throughout his life." When cross-examined as to "how much better than 50 percent statistically" he replied that "it is probably about 80 to 90 percent." This opinion was corroborated by Shaywitz who stated that there was certainly a better than 60 percent chance that Brian would continue to have seizures, and that the "odds are very much against" Brian ever being seizure-free.

The defendants also attack the sufficiency of the evidence for a finding that Brian's minimal brain damage would be a permanent condition. Shaywitz explicitly testified that Brian suffers from minimal brain dysfunction, that there is no known cure for minimal brain damage or epilepsy, that Brian's condition seriously limits his future occupations and that his future prospects will be severely limited. When cross-examined about Brian's future, Shaywitz repeated his professional opinion that "the odds are that he will not perform properly in the world; that he will not do well." He indicated not only that the minimal brain damage would prevent Brian from reaching his proper level in life, but that "it is complicated by the fact that he is taking medications for epilepsy which further depress an already difficult learning situation." The defendants offered no direct evidence of their own to refute the expert testimony regarding the permanency of either Brian's epilepsy or his minimal brain damage.

An expert witness is competent to express an opinion, even though he or she may be unwilling to state a conclusion with absolute certainty, so long as the expert's opinion, if not stated in terms of the certain, is at least stated in terms of the probable, and not merely the possible. 31 Am.Jur.2d, Expert and Opinion Evidence, § 44, p. 548. "Thus . . . a physician may testify as to the probable duration or consequences of an existing illness or condition." Ibid. In evaluating damages in a tort action, a trier is concerned with reasonable probabilities, not with possibilities. Sheiman v. Sheiman, 143 Conn. 222, 225, 121 A.2d 285; Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362; Richardson v. Pratt & Whitney Mfg. Co., 129 Conn. 669, 672, 30 A.2d 919.

The fact that the experts testified as to "odds" and percentages was acceptable. "Odds" as used in this context is defined as "the ratio of probability that one thing is so rather than another or that one thing will happen rather than another." (Emphasis added.) Webster's Third New International Dictionary. The expert testimony in this case concerning odds or percentages was all clearly in terms of the probable permanence of Brian's conditions. Such testimony is therefore distinguishable from the expert opinion in the case on which the defendants rely, where a physician testified that there was a "fifty-fifty chance" that the plaintiff's low back condition attributable to the accident would be permanent. Davis v. P. Gambardella & Son Cheese Corporation, 147 Conn. 365, 373, 161 A.2d 583. In such a situation the ratio of probability is exactly even, and the witness (unlike the witnesses in the present case) is testifying as to possibilities and not probabilities. "For medical opinion testimony to have any probative value, it must at least advise the jury that the inference drawn by the doctor is more probably correct than incorrect. If the probabilities are in balance, the matter is left to speculation. Speculation filtered through a jury is still speculation." (Emphasis added.) Crawford v. Seufert, 236 Or. 369, 388 P.2d 456, 459; see annot., 2 A.L.R.3d 354, 360. The jurors were correctly instructed by the trial court that the "law requires proof within the realm of reasonable probabilities . . . and . . . possibility cannot form the basis for proving a fact." The credibility of the witnesses was, of course, entirely a matter for the triers of fact. Schwartz v. Town Planning & Zoning Commission, 168 Conn. 285, 291, 362 A.2d 1378; Griffith v. Security Ins. Co., 167 Conn. 450, 456, 356 A.2d 94. There was ample evidence from which the jury could conclude that it was reasonably probable that Brian's epilepsy and minimal brain damage would be permanent conditions.

While purporting to attack the diagnoses of epilepsy and minimal brain damage, the defendants, in fact, claim that the evidence failed to show a...