Pietrorazio v. Santopietro

• Decision Date: 08 December 1981
• Citation: 185 Conn. 510,441 A.2d 163
• Court: Connecticut Supreme Court
• Parties: Armond R. PIETRORAZIO v. Olindo SANTOPIETRO et al.

Page 163

441 A.2d 163

185 Conn. 510

Armond R. PIETRORAZIO v. Olindo SANTOPIETRO et al.

Supreme Court of Connecticut.

Argued Oct. 8, 1981.

Decided Dec. 8, 1981.

Harvey F. Wachsman, Sandy Hook, with whom was Kathryn M. Wachsman, Sandy Hook, for appellant (plaintiff).

Gregory C. Willis, Bridgeport, for appellee (named defendant).

Ronald D. Williams, Bridgeport, for appellee (defendant Robert H. Sturman).

Before SPEZIALE, C. J., and PETERS, HEALEY, ARMENTANO and SHEA, JJ. SHEA, Associate Justice.

In this medical malpractice action, the jury returned a verdict for both defendants. The plaintiff appeals from the judgment rendered on the verdict, claiming that the verdict was against the weight of the evidence and that several rulings of the court pertaining to the admissibility of testimony were erroneous.

The jury could reasonably have found the following facts: The plaintiff was admitted to the hospital on January 22, 1976, by the defendant Dr. Santopietro, his internist, for evaluation of back and leg pain. Dr. Santopietro did not perform a complete baseline neurological examination, nor did he arrange for a specialist to perform such an examination that day. On January 23, Dr. Santopietro asked the codefendant Dr. Sturman, a neurosurgeon, for a consultation. Dr. Sturman examined the plaintiff on January 23, but withdrew from the case on January 24. On January 28, Dr. Bobowick, a neurologist, examined the plaintiff and ordered a myelogram, which was not successfully completed until January 30. The myelogram indicated surgery was required, and a laminectomy was performed that day to relieve compression of a disc on the plaintiff's nerve roots. The plaintiff sustained neurologic damage, paraparesis, bilateral footdrop and low back pain following the laminectomy.

The plaintiff failed to file a motion to set aside the verdict in accordance with Practice Book § 320 ¹ and General Statutes § 52-228b. ² We must consider the effect of this omission before undertaking a discussion of the merits of the issues raised by the plaintiff in this appeal. The failure to file such a motion does not affect the jurisdiction ³ of this court over the appeal, because the acceptance of the jury verdict at the time it is rendered is deemed to constitute a final judgment; Grzys v. Connecticut Co., 123 Conn. 605, 607n, 198 A. 259 (1938); Hull v. Thoms, 82 Conn. 386, 391, 73 A. 793 (1909); unless a motion to set aside is later filed. Tough v. Ives, 159 Conn. 605, 606, 268 A.2d 371 (1970). General Statutes § 52-263 ⁴ expressly authorizes an appeal to this court from any final judgment except those specifically excluded. See Rickey v. E. H. Jacobs Mfg. Co., 142 Conn. 495, 496, 115 A.2d 336 (1955).

Under our practice it has long been thought essential to move to set aside a verdict in order to obtain appellate review of a claim that the evidence was insufficient to support the verdict. Gordon v. Feldman, 164 Conn. 554, 557, 325 A.2d 247 (1973); Warner v. Pandolfo, 143 Conn. 728, 729, 122 A.2d 738 (1956); State v. Schofield, 114 Conn. 456, 459, 159 A. 285 (1932); Kast v. Turley, 111 Conn. 253, 260-61, 149 A. 673 (1930); State v. Frost, 105 Conn. 326, 331, 135 A. 446 (1926). A compelling reason for this view is the great weight accorded on appeal to the action of the trial court upon the motion. Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 (1954); State v. Chin Lung, 106 Conn. 701, 704-705, 139 A. 91 (1927); Bissell v. Dickerson, 64 Conn. 61, 72, 29 A. 226 (1894). On the other hand, where the basis of the appeal is a ruling of the trial court claimed to be erroneous, commentators have opined that it is unnecessary for an appellant to move to set aside the verdict, because the original ruling is the real gravamen of the appeal and to assign error in the denial of a motion to set aside grounded upon the same ruling is simply redundant. 2 Stephenson, Conn.Civ.Proc. (2d Ed.) § 205(d); James & Hazard, Civil Procedure (2d Ed.) § 7.17.

We need not decide whether this analysis is consistent with our practice prior to the adoption of the statute relied upon by the defendants. Practice Book § 3063; see Lavoie v. Antupit, 138 Conn. 422, 424, 85 A.2d 900 (1951); cf. Munson v. Atwood, 108 Conn. 285, 288, 142 A. 737 (1928). The enactment in 1965 of General Statutes § 52-228b, which declares that "(n)o verdict in any civil action involving a claim for money damages shall be set aside except on written motion by a party to the cause ..." is applicable to this case and is controlling. The evident purpose of the statute is to provide an opportunity for the trial court to pass upon claims of error which may become the subject of an appeal. This procedure is not a mere superfluity with respect to rulings made at trial, as suggested by the commentators. The opinion of the trial court with respect to the error claimed may dissuade a prospective appellant from pursuing an unmeritorious appeal and also may be helpful to the appellate court, particularly with respect to evaluating the effect of a ruling upon a verdict. See Munson v. Atwood, supra, 289, 142 A. 737. The first-hand perception of the atmosphere of a trial available to the court below, which we have regarded as highly significant in deciding claims related to the sufficiency of the evidence, may be equally valuable in assessing the importance of rulings during a trial.

To require a written motion to set aside a verdict as a prerequisite to consideration on appeal of trial rulings assigned as error as well as for review of insufficiency of the evidence claims is no marked deviation from current practice, since trial counsel often file such motions as a matter of course immediately following the rendition of an adverse verdict. See 2 Stephenson, Conn.Civ.Proc. (2d Ed.) § 202. This requirement also serves to implement our policy against review of questions not distinctly raised in the trial court. Practice Book § 3063. Even where a claim of error has been sufficiently preserved for appellate review it is seldom that its articulation in the heat of trial approaches the clarity and thoroughness of the presentation at a post-trial motion. The statute was designed to afford the trial court a full opportunity to redress any errors which may have occurred at trial before the appellate process is begun.

Our conclusion that a motion to set aside a verdict is essential for a full review of claims of error in civil jury cases seeking money damages limits our consideration of the issues raised in this appeal to ascertaining whether there has been "plain error." Practice Book § 3063. "The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court." Practice Book § 3063; Levine v. Randolph Corporation, 150 Conn. 232, 243, 188 A.2d 59 (1963); Columbus Industrial Bank v. Miller, 125 Conn. 313, 315-16, 6 A.2d 42 (1939); Sellew v. Middletown, 121 Conn. 331, 334, 185 A. 67 (1936); Stevens v. Neligon, 116 Conn. 307, 311, 164 A. 661 (1933).

None of the plaintiff's claims qualifies for the exercise of our discretionary authority under this rule. His main contention regarding the sufficiency of the evidence, that the failure of the defendants to follow the established standards of care for their medical specialties had been proved as a matter of law, is highly questionable. Even if it were sound, there would remain the major issue of whether an earlier operation upon the plaintiff would have left him with less adverse consequences. It is not disputed that there was testimony which the jury might reasonably have credited that the delay of approximately one week had no appreciable effect upon the plaintiff's condition.

With respect to the rulings upon evidence relied upon by the plaintiff, aside from his failure to file a motion to set aside, his brief does not conform to the requirement of Practice Book § 3060F(c)(3) that the pertinent question, ground of admissibility or objection, answer, if any, and any exception be set forth. This omission creates many difficulties in identifying the particular ruling involved. The plaintiff's...