Marchetti v. Ramirez

• Decision Date: 18 February 1997
• Docket Number: No. 15417,15417
• Citation: Marchetti v. Ramirez, 240 Conn. 49, 688 A.2d 1325 (Conn. 1997)
• Court: Connecticut Supreme Court
• Parties: William A. MARCHETTI v. Johnny RAMIREZ et al.

Page 1325

688 A.2d 1325

240 Conn. 49

William A. MARCHETTI v.Johnny RAMIREZ et al.

No. 15417.

Supreme Court of Connecticut.

Argued Dec. 5, 1996.

Decided Feb. 18, 1997.

David Thomas Ryan, with whom was Bradford S. Babbitt, Hartford, for appellants(defendants).

Dante R. Gallucci, with whom was Charles L. DeSiena, Bridgeport, for appellee(plaintiff).

Before BORDEN, BERDON, KATZ, PALMER and PETERS, JJ.

PALMER, Justice.

In this certified appeal, we must decide whether the Appellate Court: (1) applied the proper legal test regarding the standard of proof necessary to support an award of future medical expenses in a tort action; and (2) properly affirmed the judgment of the trial court awarding future medical expenses.The plaintiff, William A. Marchetti, commenced this action seeking damages for injuries he had suffered when he was struck by a truck operated by the named defendant, Johnny Ramirez, and owned by the defendantA.P.A. Truck Leasing Company.After the trial court granted the plaintiff's motion for summary judgment on the issue of liability, the issue of damages was tried to a jury, which returned a verdict in favor of the plaintiff in the amount of $1,015,142.The defendants filed a motion to set aside the verdict claiming, inter alia, that the jury had awarded damages for future medical expenses without proof that there was a reasonable probability that the plaintiff would incur such expenses.The trial court denied the motion and rendered judgment for the plaintiff in accordance with the verdict.The defendants appealed to the Appellate Court, which affirmed the judgment of the trial court.Marchetti v. Ramirez, 40 Conn.App. 740, 673 A.2d 567(1996).We granted certification, ¹ and now affirm the judgment of the Appellate Court.

The relevant facts and testimony may be summarized briefly as follows.On August 7, 1987, the plaintiff, a mechanic and truck driver employed by Monaco Excavating, Inc.(Monaco), ² was operating a dump truck in the course of his employment.While stopped in traffic, the plaintiff's vehicle was struck from behind by a refrigerated box truck driven by Ramirez and owned by A.P.A. Truck Leasing Company.The impact caused the plaintiff to strike the front and rear windows and dashboard of his truck, resulting in injuries to his head, shoulders and knees.The parties stipulated that the accident was due to a failure of the brakes on the truck driven by Ramirez, and the trial court, Freedman, J., granted the plaintiff's motion for summary judgment on the issue of liability.

Initially, the plaintiff was treated by Alexander Isgut, his family physician.Isgut referred the plaintiff to Walter Shanley, an orthopedic surgeon, who treated the plaintiff for neck and back injuries and prescribed a regimen of physical therapy.

The plaintiff was unable to return to his job until October, 1987, at which time he was restricted to light duty work.Because Monaco had no light duty work available, the plaintiff accepted a job with a construction company at a reduced hourly rate.Although the plaintiff eventually obtained employment as a union truck driver, his condition deteriorated to the point that Shanley directed him to cease all work in December, 1990.

In March, 1991, tests revealed that the plaintiff was suffering from a herniated disc.Several months later, Shanley and Lawrence Guido, a neurosurgeon, performed a cervical disc removal and fusion on the plaintiff.Thereafter, Shanley referred the plaintiff to Eric Garver, an orthopedic surgeon, who treated the plaintiff up to the time of trial.After his back surgery, the plaintiff was unable to resume employment until September, 1993, when he was hired by Breza Builders to perform light duty construction work.At the time of trial, the plaintiff was employed by Breza Builders on a part-time basis.

During the jury trial on damages, Shanley testified that the plaintiff suffered from a 25 percent permanent disability of the cervical spine and a 15 percent permanent disability of the lumbar spine.Shanley further indicated that the plaintiff might require future medical treatment for his injuries.In his deposition, Guido testified that the plaintiff had a 25 percent permanent disability of the cervical spine, and that the plaintiff would be unable to resume his occupation as a truck driver.Garver testified that the plaintiff's injuries were permanent and had caused a 30 percent disability of the cervical spine and a 10 percent disability of the lumbar spine.Garver also opined that it is likely that the plaintiff will incur future medical expenses for his injuries.The plaintiff testified that his injuries continue to cause him pain and difficulty while sleeping, moving, and performing ordinary daily activities.At the time of trial, the plaintiff was forty-seven years old, his further life expectancy was 28.9 years, and his accident related medical bills totaled $47,037.92.

At the conclusion of the trial, the jury returned a general verdict in favor of the plaintiff in the amount of $1,015,142, which included economic damages of $667,662 and noneconomic damages of $347,480.The defendants filed motions to set aside the verdict and for remittitur, which the trial court denied.The trial court, Pittman, J., added prejudgment interest and attorney's fees ³ to the jury award and rendered judgment in favor of the plaintiff in the amount of $1,272,142.33.

In the Appellate Court, the defendants challenged the trial court's denial of the motion to set aside the verdict, claiming, inter alia, that the jury had awarded damages for future medical expenses absent proof that it was reasonably probable that the plaintiff would incur such expenses.⁴The Appellate Court, relying on dictum from Seymour v Carcia, 221 Conn. 473, 604 A.2d 1304(1992), ⁵ rejected the defendants' claim, concluding that "[h]ere, there was testimony that the plaintiff might incur future medical expenses, and the plaintiff testified that he still suffers pain.Therefore, the jury could properly award future medical damages."⁶Marchetti v. Ramirez, supra, 40 Conn.App. at 746, 673 A.2d 567.

On appeal to this court, the defendants challenge the propriety of the Appellate Court's reliance on our dictum in Seymour v. Carcia, supra, 221 Conn. at 479, 604 A.2d 1304.Specifically, they claim that an award of damages for future medical expenses must be supported by proof that there is a reasonable probability that the plaintiff will incur such expenses, and that the Seymour dictum is inconsistent with that standard.⁷The defendants further argue that if the Appellate Court had applied the proper standard, it would have reversed the judgment of the trial court.We agree that our dictum in Seymour is inconsistent with the proper standard insofar as it suggests that an award of damages for future medical expenses may be supported by nothing more than a showing that the injured party might incur such expenses.Because the plaintiff adduced sufficient evidence in satisfaction of the proper standard, however, we nevertheless conclude that the Appellate Court properly affirmed the judgment of the trial court.⁸

It is well established that "[i]n assessing damages in a tort action, a trier is not concerned with possibilities but with reasonable probabilities."Sheiman v. Sheiman, 143 Conn. 222, 225, 121 A.2d 285(1956).Consequently, as we stated in Jerz v. Humphrey, 160 Conn. 219, 224, 276 A.2d 884(1971), "as to future medical expenses, the jury's determination must be based upon an estimate of reasonable probabilities, not possibilities."Indeed, we expressly reaffirmed this principle in Seymour v. Carcia, supra, 221 Conn. at 481, 604 A.2d 1304.The obvious purpose of this requirement is to prevent the jury from awarding damages for future medical expenses based merely on speculation or conjecture.Because, however, "[f]uture medical expenses do not require the same degree of certainty as past medical expenses";id., at 479, 604 A.2d 1304;"[i]t is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date ... when there is also a degree of medical certainty that future medical expenses will be necessary."(Emphasis added; internal quotation marks omitted.)Id., at 478-79, 604 A.2d 1304.

Contrary to our dictum in Seymour v. Carcia, supra, 221 Conn. at 479, 604 A.2d 1304, we are not persuaded that testimony by a medical expert that the plaintiff might need future treatment, coupled with the plaintiff's assertion that he still suffers pain, necessarily removes the issue of future medical expenses from the realm of conjecture.In such circumstances, the jury still must speculate as to the likelihood that future medical expenses will be incurred.Accordingly, we reject the assertion in Seymour that such evidence " 'is sufficient for consideration of the element of future medical expense.' "⁹Id.

The plaintiff argues, however, that the evidence he adduced was sufficient to satisfy the proper standard and, therefore, that the trial court properly denied the defendants' motion to set aside the verdict.We agree.Garver, the plaintiff's treating physician at the time of trial, expressed the opinion that the plaintiff will require future medical treatment for his injuries.¹⁰Although Garver also stated that he could not predict the cost of such treatment, the evidence established that the plaintiff had received medical treatment for his injuries on a regular basis since the date of the accident, that he had a future life expectancy of 28.9 years, and that the total cost of the treatment as of the date of trial was $47,037.92."Damages for the future consequences of an injury can never be forecast with certainty.With respect to awards for permanent injuries, actuarial tables of average life expectancy are commonly used to assist the trier in measuring the loss a plaintiff is...