Pool v. Bell
| Decision Date | 03 January 1989 |
| Docket Number | No. 13497,13497 |
| Citation | 209 Conn. 536,551 A.2d 1254 |
| Court | Connecticut Supreme Court |
| Parties | , 57 USLW 2466 Gregory POOL v. Tom P. BELL. |
Michael D. Neubert, with whom was Elizabeth McLaughlin, Hartford, for appellant (defendant).
Robert I. Reardon, Jr., with whom was John J. Nazzaro, New London, for appellee (plaintiff).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, GLASS and HULL, JJ.
The dispositive issue in this case is whether, during closing argument, counsel may use mathematical formulae as a basis for arriving at a pecuniary value of the plaintiff's personal injuries. Consistent with our holding in Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1988), we conclude that counsel may not, because this practice improperly influences the jury in arriving at a verdict. Accordingly, the judgment for the plaintiff in this medical malpractice case is set aside and the case is remanded to the trial court for a new trial.
In this action, the plaintiff, Gregory Pool, claimed that the defendant, Tom P. Bell, a general surgeon, negligently performed a lymph node biopsy on the right side of the plaintiff's neck, in that the defendant damaged the plaintiff's long thoracic and spinal accessory nerves during the operation. The plaintiff testified that as a result of the operation, he suffered pain and stiffness in his right arm and shoulder, that his ability to perform his work as a pipefitter at Electric Boat was impaired, and that he was no longer able to participate in certain sports or to perform simple household tasks.
The trial court permitted the plaintiff's counsel in closing argument to use a blackboard to set forth a per diem mathematical formula for use by the jury in computing the damages to be awarded to the plaintiff. The defendant took an exception to this ruling. On the blackboard, counsel for the plaintiff set out six categories of damages: medical expenses, pain and suffering, mental distress, permanent disability, loss of ability to do household duties, and loss of enjoyment of activities. The plaintiff's counsel then assigned a dollar value to each item of damages and multiplied each amount, except medical expenses, by 15,178, the number of days corresponding to the period from the date of the operation to the probable date of the plaintiff's death, based upon his 37.3 year life expectancy at the time of trial. 1 The totals for each category were then added for a grand total of $345,851, which counsel for the plaintiff told the jury was a fair amount to award the plaintiff.
The jury returned a verdict of $250,000 for the plaintiff. Thereafter, the defendant moved to set aside the verdict on the ground that the court had erred in permitting counsel to use a mathematical formula in closing argument to arrive at a specific monetary sum for an award of damages. The trial court denied the motion. This appeal followed.
On appeal, the defendant claims that the trial court erred in: (1) permitting the plaintiff's counsel in closing argument to use a mathematical formula to arrive at a monetary value for the plaintiff's personal injuries; (2) excluding the testimony of one of the defendant's expert witnesses for untimely disclosure; (3) permitting one of the plaintiff's expert witnesses to testify as to the standard of care for a general surgeon; (4) permitting the plaintiff's medical witnesses to testify as to the plaintiff's ability to perform his job as a pipefitter; and (5) failing to set aside the verdict as excessive. We conclude that the trial court erred in permitting the plaintiff's counsel to use a mathematical formula in his closing argument. Accordingly, we remand the case for a new trial. We discuss the defendant's second, third and fourth claims only for the purpose of the new trial and conclude that the trial court's rulings were not improper. Because we set aside the judgment in this case, we need not discuss the defendant's fifth claim.
The defendant claims that the trial court erred in permitting the plaintiff's counsel in closing argument to use a mathematical formula to arrive at a monetary value for the plaintiff's personal injuries. This issue is controlled by our holding in Carchidi v. Rodenhiser, supra, which was argued on the same day as the case at hand. We find error.
In Carchidi, the trial court permitted counsel for the plaintiff to state to the jury his belief as to the pecuniary value of the plaintiff's personal injury claim. This court set aside the verdict, because of the risk of improper influence upon the jury from this practice. Id., 533, 551 A.2d at 1253. From our conclusion in Carchidi that counsel may not argue the pecuniary value of the plaintiff's personal injuries by suggesting specific sums to be awarded for such intangibles as pain and related disability, it necessarily follows that counsel may not indicate the monetary components used to arrive at the sums suggested for such elements of damages. We note that fewer courts favor an argument based on a mathematical formula than favor a "lump sum" argument. See annot., 3 A.L.R.4th 940; annot., 14 A.L.R.3d 531, 541. Further, in Levin v. Ritson, 179 Conn. 223, 227, 425 A.2d 1279 (1979), this court drew a distinction between suggesting a sum to be awarded for pain and suffering and using a mathematical formula based on speculative factors. Because we conclude that our holding in Carchidi is applicable to both types of arguments, we need not decide whether our holding in Levin v. Ritson left the use of mathematical formulae in closing argument to the discretion of the trial court, as that question is now academic.
The defendant's next claim is that the trial court abused its discretion in excluding the testimony of Richard Alessi, a neurologist, because of untimely disclosure by the defendant of his intention to use this expert witness. As with the defendant's third and fourth claims we consider this claim only because the issue may again arise at the new trial.
The plaintiff served a set of interrogatories on the defendant on June 14, 1985, in which he asked the defendant to identify each person the defendant expected to call as an expert witness at trial. On August 9, 1985, the defendant responded "undetermined at this time," naming no experts. On January 29, 1986, and on May 23, 1986, the defendant supplemented his responses to the plaintiff's questions, but did not name his expected witnesses.
On August 4, 1986, the plaintiff filed a motion to compel disclosure of the defendant's expert witnesses. The court, Norko, J., in an August 18, 1986 ruling, ordered disclosure of the defendant's experts within forty-five days from the date of the depositions of two of the plaintiff's experts. This period was to expire on January 3, 1987. On December 29, 1986, the defendant disclosed Charles Polivy, a general surgeon, as his expert, but did not mention Alessi. Further, at neither the first pretrial conference on November 20, 1986, nor the second on February 25, 1987, did the defendant disclose Alessi as an expert.
On July 7, 1987, three weeks before the scheduled trial date, the defendant disclosed that he intended to use Alessi as an additional expert. On July 8, 1987, the plaintiff filed a motion in limine to preclude Alessi from testifying, on the ground that the defendant had not complied with the court's order to disclose experts by January 3, 1987. At the hearing on the motion, which was not transcribed, the court granted the plaintiff's motion. At the hearing following the granting of the defendant's motion to reargue, which was transcribed, counsel for the defendant confirmed that the defendant had been consulting with Alessi for over one year. Thereafter, the court again granted the plaintiff's motion.
A trial court's decision on whether to impose the sanction of excluding the testimony of a party's expert witness rests within the court's sound discretion. See Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 40, 404 A.2d 889 (1978); see also Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984) (). The action of the trial court is not to be disturbed unless it has abused its broad discretion, and in determining whether there has been such abuse every reasonable presumption should be made in favor of its correctness. Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970); Sturdivant v. Yale-New Haven Hospital, 2 Conn.App. 103, 108, 476 A.2d 1074 (198...
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