Eisenbach v. Downey

694 A.2d 1376, 45 Conn. App. 165, 1997 Conn. App. LEXIS 232
CourtConnecticut Appellate Court
DecidedMay 13, 1997
DocketAC 13517
StatusPublished
Cited by32 cases

This text of 694 A.2d 1376 (Eisenbach v. Downey) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eisenbach v. Downey, 694 A.2d 1376, 45 Conn. App. 165, 1997 Conn. App. LEXIS 232 (Colo. Ct. App. 1997).

Opinion

Opinion

HEIMAN, J.

In this action, sounding in negligence, the defendants appeal from the judgment of the trial court rendered on a jury verdict in favor of the plain[167]*167tiffs.1 On appeal, the defendants claim that the trial court improperly (1) failed to excuse a venireperson for cause, thereby violating the defendants’ right to a fair and impartial jury, (2) permitted the plaintiffs to introduce into evidence medical bills and reports of medical doctors and chiropractors without laying the proper foundation to establish the requisite causal connection, (3) admitted into evidence the expert opinion of Eisenbach’s and McClure’s chiropractors in violation of the standard of reasonable medical probability, (4) admitted hearsay evidence as to Eisenbach’s and McClure’s medical diagnoses, prognoses, and the possibility of future surgeries and allowed the plaintiff Eisenbach to express a medical opinion as a lay witness, (5) permitted the plaintiffs to amend their complaint concerning allegations of recklessness, driving while intoxicated, driving without proper headlights, future surgery as to Eisenbach, and fear of future surgery as to McClure, and charged the jury on these claims without supporting evidence, (6) instructed the jury to award damages for Eisenbach’s and McClure’s increased susceptibility to future physical harm or injury, including anxiety regarding their future physical health, without supporting evidence, (7) instructed the jury to award damages for future lost wages and loss of earnings where there was no evidence to support such an instruction, (8) denied the defendants’ motion for remittitur when the verdict was excessive as a matter of law, and [168]*168(9) overruled the defendants’ objection to the award of interest pursuant to General Statutes § 52-192a when the plaintiffs amended their complaint and substantially changed the substantive allegations against the defendants. We are unpersuaded and affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On December 23, 1988, at about 4 p.m., the plaintiff Alicia Eisenbach was operating a 1984 Dodge four door automobile on Fairfield Avenue in Bridgeport. The plaintiff Jennifer McClure was a passenger in the Eisenbach vehicle and was sitting in the front passenger seat.

The defendant Aaron A. Downey was operating a 1986 Chevrolet van owned by the defendant Michael Jackson on Martin Terrace near its intersection with Fairfield Avenue. At that intersection, the traffic on Martin Terrace must stop at a stop sign, while traffic on Fairfield Avenue does not stop. Fairfield Avenue is divided by a center esplanade with two lanes of traffic in each direction. Martin Terrace has a single lane of traffic in each direction.

Intending to cross Fairfield Avenue, Downey cut in front of the Eisenbach vehicle and the two vehicles collided. The Eisenbach vehicle had the right-of-way at the intersection. Downey was obligated to stop at the stop sign and to yield the right-of-way to vehicles that were in the intersection or approaching so closely as to constitute an immediate hazard. This he failed to do. Further, although it was dusk and drizzling, Downey failed to display proper headlights, in violation of General Statutes § 14-96 (a).2

[169]*169As a result of this collision, Eisenbach suffered multiple injuries including a disc herniation at L5-S1 with encroachment on both lateral recesses. She also suffered an injury to her neck and other parts of her body and incurred a permanent partial disability of 8 percent to her low back and 5 percent to her neck. She incurred substantial medical and other expenses and lost considerable time from her employment with a resultant loss of income. She will incur medical and other expenses in the future.

As a result of the collision, McClure suffered injuries to her neck, low back and left knee. She incurred a permanent disability of 5 percent to the lumbar spine and 5 percent to the neck. While she was in the acute stage following her injury, she lost use of her whole spine to the extent of 36 percent and in the chronic stage she lost use of 14 percent of her spine as a whole. She incurred substantial medical and other expenses and lost some time from her employment. She will also incur medical and other expenses in the future.

The case was submitted to the jury with interrogatories as to each plaintiff.3 The jury returned a verdict [170]*170of $219,747.294 in favor of Eisenbach and a verdict of $67,231.805 in favor of McClure. The defendants filed postverdict motions to set aside the verdicts and for remittitur. The trial court denied both motions. Eisenbach filed a motion for interest pursuant to Practice Book § 350, which was granted by the trial court. This appeal follows.

I

The defendants first assert that the trial court improperly refused to excuse James R. Platko, a venireperson, for cause, thereby violating the defendants’ constitutional right to trial before an impartial jury. They also claim that the trial court’s failure to excuse the venireperson for cause constituted an abuse of discretion.

Certain additional facts are necessary to an understanding of our resolution of this claim. Platko was called for voir dire examination and was questioned [171]*171first by the defendants, then by the plaintiffs. In the course of the plaintiffs’ voir dire, statements were elicited that indicated that the venireperson was familiar with Robert Russo, Jr., a radiologist, who was to be a witness on behalf of one of the plaintiffs. Examination by the plaintiffs revealed that Platko’s wife had seen Russo for a mammogram five or six years prior to the trial, and that Platko had cleaned house for Russo when Platko had been operating a house cleaning service. Platko explained that when he worked for Russo he seldom saw him. Platko stated that the fact that he knew Russo would not cause him to believe or disbelieve Russo more than any one else and that it would not cause aproblem for him to judge Russo’s credibility.

After the venireperson left the courtroom, the defendants addressed the trial court concerning Platko.6 The [172]*172defendants moved that Platko be excused for cause. The trial court denied this motion and, as the defendants had exhausted their peremptory challenges, Platko was accepted by the plaintiffs and became a member of the jury.

The defendants first argue that in declining to excuse Platko for cause, the trial court violated the defendants’ constitutional right to a trial before an impartial jury.

The Connecticut constitution provides that “ ‘[i]n civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily . . . .’ Conn. Const., art. I § 19, as amended by art. IV . . . .This constitutional enactment reflects the abiding belief of our citizenry that an impartial and fairly chosen jury is the cornerstone of our criminal justice system.” State v. Hancich, 200 Conn. 615, 625, 513 A.2d 638 (1986).

A trial court’s refusal to remove a juror for cause is reversible error only if the party has exhausted all of his or her peremptory challenges and “an additional challenge is sought and denied.”

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Cite This Page — Counsel Stack

Bluebook (online)
694 A.2d 1376, 45 Conn. App. 165, 1997 Conn. App. LEXIS 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eisenbach-v-downey-connappct-1997.