$3.4 Million Verdict Overturned

August 31, 2004
The Connecticut Law Tribune, August 30, 2004 by Keith Griffin
The Connecticut Appellate Court has overturned a $3.4 million verdict against Yale-New Haven Hospital because the trial court erred in the number of peremptory challenges it allowed the plaintiff during jury selection.

The Aug. 24 decision, written by Judge C. Ian McLachlan, also found fault with how the jury computed damages in Mary Carrano v. Yale-New Haven Hospital, et. al.

"The Appellate Court was willing to look beyond the fact that there was a jury verdict, and look to where there were a number of areas of procedural unfairness," said Wiggin & Dana appellate attorney Jeffrey R. Babbin, who argued the appeal for the defendants. "When you have a case where you might have a sympathetic plaintiff, it's important that all the rules be followed."

Philip Carrano was admitted to Yale-New Haven on March 12, 1992, for treatment of a necrotic finger and to have a colonoscopy to determine whether and to what extent surgery would be an appropriate next step in treating his Crohn's disease, a debilitating and painful intestinal disorder. He was released on March 21, after treatment for the finger and the colonoscopy, and died at home early the next morning.

In appealing the subsequent verdict, the defense claimed the trial court erred by increasing the number of the plaintiff's peremptory challenges during jury selection from eight to 20 in a bid to "level the playing field." That larger amount was the number of challenges held by the five defendants involved in the case at that point in time. The five defendants did not have a unity of interest and thus held a total of 20 challenges. The plaintiff exercised 15 of its 20 challenges.

Thomas J. Weihing, of Bridgeport's Daly, Weihing & Bochanis, argued the case for the plaintiff, but was traveling out of state last week and was not available for comment before press time, his law office said.

The appeals court rejected the defendants' contention that the testimony of the plaintiff's sole medical expert for Mary Carrano's medical malpractice claim should not have been allowed because of his reliance on a multi-factoral diagnostic method. According to the court, the defendant offered no evidence to indicate the method was inadequate or that the trial court had abused its discretion in allowing the doctor's testimony.

Babbin said his clients were disappointed that the trial court didn't "keep out the junk science," as part of its gatekeeper function. "We will continue to press it in other cases to implement the mandate of the Connecticut Supreme Court in the Porter decision so juries aren't misled," he said. The purpose of a Porter test is for the court to make a threshold inquiry as to whether an expert's methodology is reliable.

Babbin said it was a major victory for the defendants that McLachlan, writing in concurrence with Judges Anne C. Dranginis and Thomas G. West, said, in a footnote, that economic damages "normally require non-testimonial evidence ... and must be proven to a reasonable certainty."

"The plaintiff's evidence of economic damages was inadequate as a matter of law," Babbin said, "Even if there hadn't been a reversal on the jury issue, the jury was not given proper evidence to assess the damages. It was an important point that we continued to make."