Viera v. Cohen, 17478.

• Decision Date: 07 August 2007
• Docket Number: No. 17478.,17478.
• Citation: 927 A.2d 843,283 Conn. 412
• Court: Connecticut Supreme Court
• Parties: Jodee VIERA et al. v. Ian COHEN et al.

927 A.2d 843

283 Conn. 412

Jodee VIERA et al. v. Ian COHEN et al.

No. 17478.

Supreme Court of Connecticut.

Argued November 21, 2006.

Decided August 7, 2007.

Frank H. Santoro, Hartford, with whom were Regina Duchin Kraus, New Haven and, on the brief, Calum B. Anderson, Hartford, for the appellant (defendant Thomas McNamee).

Carey B. Reilly, with whom were Joshua D. Koskoff, Bridgeport and, on the brief, Neil DeYoung and Lillian Gustilo, Sandy Hook, for the appellee (plaintiff).

Cesar A. Noble, Hartford, filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.

BORDEN, NORCOTT, KATZ, PALMER and ZARELLA, Js.

KATZ, J.

In this medical malpractice action, the defendant Thomas McNamee appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Fred Baker, guardian of the estate of the injured minor, Jodee Viera (Jodee).¹ Although the defendant raises numerous claims of trial improprieties, his principal claim is that the trial court improperly precluded him from pursuing an apportionment complaint against another party against whom the plaintiff had withdrawn his case shortly before trial commenced. Specifically, we must consider whether a plaintiff's withdrawal of claims against a party, without payment of a settlement or other consideration, constitutes a "release, settlement or similar agreement" for purposes of apportionment under General Statutes § 52-572h (n).²

We conclude that a withdrawal does not constitute such an agreement, and we reject the defendant's remaining claims. Accordingly, we affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. The defendant is an obstetrician working with the practice group of Associated Women's Health Specialists, P.C. (Associated Health). The defendant attended to Jodee's mother, Leslie Aponte, during Aponte's pregnancy beginning in November, 1994, and through May, 1995, and during the early stages of her labor on May 25, 1995, at Waterbury Hospital. The defendant left during the second stage of Aponte's labor and thereafter was unavailable. Ian Cohen, another obstetrician affiliated with Associated Health, attended to Aponte during the final stages of labor and delivery. During that delivery, an obstetrical emergency occurred, known as shoulder dystocia, wherein the infant's head delivers, but partly retracts because the baby's shoulders become lodged, requiring delivery of the child within minutes to avoid risk of neurological injury or death. See generally T. Stedman, Medical Dictionary (28th Ed. 2006) p. 602. As a result of the shoulder dystocia during her birth, Jodee sustained an injury to her brachial plexis, a network of nerves in the neck, leaving her with a permanent injury affecting her upper left extremities.

On August 22, 1997, Aponte and Joseph Viera, Jodee's father, commenced this medical malpractice action against the defendant, Cohen, Associated Health and Waterbury Hospital. In November, 2003, they withdrew the claim against Waterbury Hospital. In December, 2003, Baker was substituted as the plaintiff to represent Jodee's interests.

On December 16, 2004, during jury selection, the plaintiff withdrew the claims against Cohen and Associated Health. On January 20, 2005, the defendant filed a notice of claim of apportionment as to the withdrawn defendants, Cohen, Associated Health and Waterbury Hospital. In response, the plaintiff filed a motion in limine seeking to preclude the defendant from introducing, inter alia, any evidence for the purposes of establishing fault against the withdrawn defendants. After argument on the motion, the trial court rendered an oral decision granting the plaintiff's motion, thereby foreclosing the defendant from seeking apportionment.

Thereafter, the plaintiff filed an amended complaint alleging, in essence, that the defendant had breached the standard of care by failing: to assess properly Aponte's risk factors for shoulder dystocia; to diagnose timely the problems during Aponte's labor that indicated a risk of shoulder dystocia; and, finally, to perform a cesarean section to prevent the injuries ensuing from shoulder dystocia. The jury rendered a verdict in favor of the plaintiff, and awarded $948,692 in economic damages and $1.5 million in noneconomic damages. The court denied the defendant's motion to set aside the verdict and thereafter rendered judgment in accordance with the verdict. This appeal followed.³

The defendant claims that the trial court improperly: (1) prevented him from pursuing an apportionment complaint against Cohen; (2) prevented the jury from considering an alternative theory as to the cause of the shoulder dystocia; (3) submitted to the jury misleading and improper interrogatories; and (4) concluded that it had personal jurisdiction over the defendant. The defendant also claims that certain evidentiary rulings by the trial court and conduct by the plaintiff's counsel resulted in undue prejudice to him. We reject each of these claims.

I

The defendant claims that he was entitled to seek apportionment pursuant to § 52-572h (n), which provides in relevant part that, although "[a] release, settlement or similar agreement entered into by a claimant . . . discharges that person from all liability for contribution . . . the total award of damages is reduced by the amount of the released person's percentage of negligence determined in accordance with subsection (f) of this section." Specifically, the defendant contends that the trial court improperly precluded him from seeking apportionment of liability between himself and Cohen based on its determination that, because the plaintiff had withdrawn the action against Cohen without payment of a settlement, there was no "release, settlement or similar agreement" that brought Cohen within the scope of § 52-572h.⁴ We conclude that the trial court properly concluded that the defendant could not seek apportionment against Cohen.

At the outset, we note that, "[b]ecause statutory interpretation is a question of law, our review is de novo." Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995). Well settled principles of statutory interpretation govern our review. General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." When the relevant statutory text and the relationship of that text to other statutes do not reveal a meaning that is plain and unambiguous, our analysis is not limited, and we look to other factors relevant to determining the meaning of § 52-272h (n), including its legislative history, the circumstances surrounding its enactment and its purpose. Nine State Street, LLC v. Planning & Zoning Commission, 270 Conn. 42, 46, 850 A.2d 1032 (2004). "The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Tarnowsky v. Socci, 271 Conn. 284, 287 n. 3, 856 A.2d 408 (2004).

We begin our analysis with a brief review of the evolution of tort law in this state regarding the apportionment of damages among multiple tortfeasors. "Prior to October 1, 1986, this state followed the rules of joint and several liability with no contribution among joint tortfeasors. Stated briefly: If the illegal conduct of each of the defendants was a proximate cause of the collision, they would be liable jointly and severally, the plaintiff would have a right to recover the entire amount of damages awarded from either, and, if he did so, the defendant paying them would have no right of contribution against the other; or the plaintiff might have sued either alone, and of course in the event of a recovery, that one would have been compelled to pay the entire amount of damages.... Donner v. Kearse, 234 Conn. 660, 666, 662 A.2d 1269 (1995).

"Under the common law of joint and several liability, therefore, even a defendant whose degree of fault was comparatively small could be held responsible for the entire amount of damages, so long as his negligence was a proximate cause of the plaintiff's injuries. Thus, the plaintiff could collect the entire amount of his judgment from the richest defendant, or from the defendant with the deepest pocket.... Id., at 667, 662 A.2d 1269.

"In response largely to these concerns, the legislature undertook to reform the tort recovery provisions of our civil system, by enacting No. 86-338 of the 1986 Public Acts (Tort Reform I), which took effect October 1, 1986. Tort Reform I replaced the common-law rule of joint and several liability with a system of apportioned liability, holding each defendant liable for only his or her proportionate share of damages. Specifically, § 3(f) of Tort Reform I provided that each defendant initially would be liable for only that percentage of his negligence that proximately caused the injury, in relation to [100] per cent, that is attributable to each person whose negligent actions were a proximate cause of the damages.... Therefore, under Tort Reform I, the jury, in determining the percentage of negligence attributable to any defendant, could take into account the negligence of any other person, regardless of whether that person was a party to the action. Tort Reform I, however, did not provide the plaintiff with a means of securing payment of damages unless that person was also a party. Donner v. Kearse, supra, 234 Conn. at 667, 662 A.2d 1269.

"Under Tort Reform I, to avoid the possibility that a jury would find that the negligence of a nonparty was approximate cause of [the plaintif...