Ashmore v. Hartford Hospital , 331 Conn. 777 ( 2019 )

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MARJORIE ASHMORE, ADMINISTRATRIX (ESTATE
OF WILLIAM ASHMORE), ET AL. v.
HARTFORD HOSPITAL ET AL.
(SC 20052)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins and Kahn, Js.*
Syllabus
Pursuant to this court’s prior case law, Hopson v. St. Mary’s Hospital (176
Conn. 485), one spouse may bring a claim for loss of consortium arising
from a personal injury to the other spouse caused by a third party, and
such a claim may include recovery for both the loss of household services
performed by the injured spouse and for the loss of affection, society,
companionship and sexual relations.
The plaintiff sought to recover damages, individually and on behalf of the
estate of her deceased husband, W, for W’s allegedly wrongful death
and for the plaintiff’s loss of consortium in connection with the defendant
hospital’s medical malpractice. After routine elective surgery at the
hospital, W experienced a postoperative condition to which, the plaintiff
contended, hospital staff did not adequately respond. As a result of
the hospital staff’s allegedly inadequate response, W suffered oxygen
deprivation so severe that he had to be placed on life support. Several
days later, the plaintiff made the decision to withdraw life support, and
W died shortly thereafter. Following a trial, the jury returned a verdict
for the plaintiff, awarding W’s estate approximately $75,000 in economic
damages and $1.2 million in noneconomic damages for his wrongful
death, and awarding the plaintiff $4.5 million in damages for her loss
of consortium. Subsequently, the defendant filed a motion seeking a
remittitur of the loss of consortium award. The trial court denied the
defendant’s motion and rendered judgment in accordance with the jury
verdict, and the defendant appealed, claiming that, in the absence of
exceptional or unusual circumstances that are not applicable in the
present case, a loss of consortium award in a wrongful death action
should not substantially exceed the corresponding wrongful death award
to the directly injured spouse. Held:
1. This court declined the defendant’s invitation to adopt a plenary standard
of appellate review of a trial court’s decision to grant or deny a motion
for remittitur and to overrule prior case law establishing that such
decisions are reviewed according to the deferential abuse of discretion
standard: the legislature’s use of the language ‘‘excessive as a matter
of law’’ in the statutes (§§ 52-216a and 52-228c) that respectively autho-
rize trial courts to order remittitur in cases involving excessive verdicts
and when a jury’s award of noneconomic damages in a negligence action
against a health care provider is determined to be excessive, did not
evince a legislative intent to abrogate the common law and to prescribe
a de novo standard of review of remittitur decisions; moreover, the fact
that this court has continued to apply the abuse of discretion standard
of review to remittitur decisions for years since the enactment of §§ 52-
216a and 52-228c, with the acquiescence of the legislature, provided
further support for the continued application of that standard of review.
2. A loss of consortium award in a wrongful death action presumptively
should not be substantially greater than the noneconomic damages por-
tion of the wrongful death award itself, and, because the trial court did
not have the guidance of this court’s decision in the present case and,
therefore, did not apply this presumption, and the jury could not reason-
ably have found, on the basis of the evidence presented, that the circum-
stances justified a substantially greater loss of consortium award, this
court remanded the case for reconsideration of the defendant’s motion
for remittitur: this court determined that there is a presumption that a
direct injury to one spouse is no less harmful than the concomitant loss
of consortium suffered by the other spouse, insofar as the directly
injured spouse ordinarily will experience more or less comparable losses
of physical and emotional affection, in addition to suffering all of the
direct effects of the injury itself, but that presumption may be overcome
by evidence that the marriage was unequal in terms of the amount of
support or satisfaction that one spouse derived from the other, and, to
uphold a loss of consortium award that is substantially greater than
the award of noneconomic damages to the directly injured spouse, a
reviewing court must be able to point to evidence that explains or
justifies the unusual disparity; moreover, there was insufficient evidence
in the present case from which the jury could have determined either
that the plaintiff’s loss of W’s household services was so atypical or
that W met the plaintiff’s needs for romance, affection, companionship
and intimacy to such a degree as to justify a loss of consortium award
much greater than the underlying wrongful death award; furthermore,
the plaintiff’s decision to terminate life support, although traumatic, was
not the sort of harm that fell within the ambit of loss of consortium
and, therefore, could not justify the sizable disparity between the loss
of consortium award and the underlying wrongful death award.
(One justice concurring separately)
Argued May 4, 2018—officially released June 4, 2019
Procedural History
Action to recover damages for, inter alia, medical
malpractice, brought to the Superior Court in the judi-
cial district of Waterbury, where the complaint was
withdrawn as to the defendant Hartford Healthcare Cor-
poration; thereafter, the case was tried to a jury before
Roraback, J.; verdict for the plaintiffs; subsequently,
the court, Roraback, J., denied the named defendant’s
motion for remittitur and rendered judgment in accor-
dance with the verdict, and the named defendant
appealed. Reversed; further proceedings.
John L. Cordani, Jr., with whom was Isabella M.
Squicciarini, for the appellant (named defendant).
James J. Healy, with whom was Eric P. Smith, for
the appellees (plaintiffs).
Christopher P. Kriesen and Lorinda S. Coon, and
Geraldine Macaisa and Chelsea Sousa, certified legal
interns, filed a brief for the Connecticut Defense Law-
yers Association as amicus curiae.
Alinor C. Sterling, Jeffrey Wisner, Matthew Blumen-
thal, Julie V. Pinette and Karen K. Clark filed a brief
for the Connecticut Trial Lawyers Association as ami-
cus curiae.
Opinion
PALMER, J. In this wrongful death action alleging
medical malpractice, the named defendant, Hartford
Hospital,1 appeals from the judgment of the trial court,
which denied a motion for remittitur after a jury
awarded $1.2 million in noneconomic damages to the
named plaintiff, Marjorie Ashmore, as the administra-
trix of the estate of the decedent,2 her late husband
William Ashmore, and $4.5 million to the plaintiff for
her own loss of spousal consortium. The defendant
contends that, in the absence of exceptional or unusual
circumstances that are not applicable in this case, a loss
of consortium award ordinarily should not substantially
exceed the corresponding wrongful death award to the
directly injured spouse. We agree and, accordingly,
reverse the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
disposition of this appeal. In 2011, the decedent visited
the defendant hospital for routine elective heart sur-
gery. The surgery was completed successfully and with-
out complication. During the procedure, the surgeon
connected standard epicardial pacing electrodes to the
decedent’s heart to assist with heart rate and rhythm
management in the event that he should experience any
postoperative complications. In the case of an abnormal
rhythm, such wires can be quickly and easily connected
to a system that provides a small electrical stimulation
to return the heartbeat to its normal rhythm.
The decedent initially recovered well, but, during the
second night at the hospital following the operation,
he began to experience atrial fibrillation, a common
postoperative condition. Over the course of the next
hour, his heart rate dropped precipitously, he displayed
various signs of serious distress, and alarms repeatedly
sounded. Although this was precisely the condition for
which the epicardial wires had been installed, hospital
staff failed to connect the wires or to contact the dece-
dent’s surgeon until after the decedent had experienced
cardiac arrest. Hospital staff ultimately were able to
restart his heart using electrical shock, but the lack of
a heartbeat for seventeen minutes resulted in oxygen
deprivation so severe that the decedent had to be placed
on life support. He never regained consciousness. Sev-
eral days later, with no reasonable possibility that her
husband of forty-five years would recover, the plaintiff
was forced to make the agonizing decision to terminate
the decedent’s life support. He died moments later.
The plaintiff filed the present action, alleging wrong-
ful death in her capacity as executor of the decedent’s
estate, and loss of spousal consortium in her individual
capacity. The case was tried to a jury, which returned
a verdict for the plaintiff. The jury found that the negli-
gence of the defendant’s employees was the proximate
cause of the decedent’s death and awarded the dece-
dent’s estate approximately $75,000 in economic dam-
ages and $1.2 million in noneconomic damages. The
jury also awarded the plaintiff $4.5 million in damages
for loss of consortium.
The defendant then filed a motion seeking a remittitur
of the loss of consortium award pursuant to General
Statutes §§ 52-216a and 52-228c, and Practice Book § 16-
35. The trial court denied the motion and rendered
judgment in accordance with the jury verdict. The
defendant appealed from the judgment of the trial court
to the Appellate Court, and we transferred the appeal
to this court pursuant to General Statutes § 51-199 (c)
and Practice Book § 65-1. Additional facts will be set
forth as necessary.
I
As an initial matter, we address the parties’ disagree-
ment as to the standard that governs appellate review
of a trial court’s decision to grant or deny a motion for
remittitur. The plaintiff, relying on cases such as Munn
v. Hotchkiss School, 326 Conn. 540, 574, 165 A.3d 1167
(2017), and Patino v. Birken Mfg. Co., 304 Conn. 679,
706, 41 A.3d 1013 (2012), contends that binding prece-
dent establishes, and our recent cases reaffirm, that
a trial court’s decision to grant or deny remittitur is
reviewed according to a deferential abuse of discretion
standard. The defendant invites us to overrule those
cases and to adopt a plenary standard of review or,
failing that, to review de novo the decision of the trial
court in the present case insofar as that decision was
predicated on an incorrect legal determination. We
decline the defendant’s invitation to overrule Munn,
Patino, and their many progenitors.
A
As we explained in Saleh v. Ribeiro Trucking, LLC,
303 Conn. 276, 32 A.3d 318 (2011), the standards that
govern appellate review of a trial court’s granting or
denial of a motion for remittitur must be understood
in light of the underlying legal standards that govern
remittitur itself. See id., 280, 284–85. We frequently have
stated that, ‘‘[i]n determining whether to order remitti-
tur, the trial court is required to review the evidence
in the light most favorable to sustaining the verdict.
. . . Upon completing that review, the court should not
interfere with the jury’s determination except when
the verdict is plainly excessive or exorbitant. . . . The
ultimate test [that] must be applied to the verdict by the
trial court is whether the jury’s award falls somewhere
within the necessarily uncertain limits of just damages
or whether the size of the verdict so shocks the sense
of justice as to compel the conclusion that the jury
[was] influenced by partiality, prejudice, mistake or
corruption. . . . The court’s broad power to order a
remittitur should be exercised only when it is manifest
that the jury [has awarded damages that] are contrary
to law, not supported by proof, or contrary to the court’s
explicit and unchallenged instructions.’’ (Internal quo-
tation marks omitted.) Munn v. Hotchkiss School,
supra, 326 Conn. 575–76. ‘‘Accordingly, we consistently
have held that a court should exercise its authority to
order a remittitur rarely—only in the most exceptional
of circumstances . . . and [when] the court can articu-
late very clear, definite and satisfactory reasons . . .
for such interference.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 575.
Also relevant to our review is § 52-216a, which pro-
vides the general statutory authority for remittitur. That
statute provides in relevant part that, ‘‘[i]f the court at
the conclusion of the trial concludes that the verdict
is excessive as a matter of law, it shall order a remittitur
and, upon failure of the party so ordered to remit the
amount ordered by the court, it shall set aside the ver-
dict and order a new trial. . . .’’ (Emphasis added.)
General Statutes § 52-216a.
With respect to appellate review, in Saleh, we
explained that ‘‘our review of the trial court’s decision
[to grant or deny remittitur] requires careful balancing.’’
Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. 285.
‘‘[T]he decision whether to reduce a jury verdict
because it is excessive as a matter of law . . . rests
solely within the discretion of the trial court. . . . [T]he
same general principles apply to a trial court’s decision
to order a remittitur. [Consequently], the proper stan-
dard of review . . . is that of an abuse of discretion.
. . . [T]he ruling of the trial court . . . is entitled to
great weight and every reasonable presumption should
be given in favor of its correctness.’’ (Citation omitted;
internal quotation marks omitted.) Id., 281–82. The chief
rationale that has been articulated in support of this
deferential standard of review is that the trial court,
having observed the trial and evaluated the testimony
firsthand, is better positioned than a reviewing court
to assess both the aptness of the award and whether the
jury may have been motivated by improper sympathy,
partiality, or prejudice. See, e.g., Munn v. Hotchkiss
School, supra, 326 Conn. 577; W. Maltbie, Connecticut
Appellate Procedure (2d Ed. 1957) § 187, pp. 230–31;
W. Maltbie, supra, § 197, pp. 244–45.
Even under this deferential standard of review, how-
ever, we have not shied away from ordering remittitur
when the record failed to support the jury’s award of
damages. Indeed, ‘‘[t]his court has a long history of
ordering plaintiffs to accept a remittitur or [to] submit
to a new trial.’’ Earlington v. Anastasi, 293 Conn. 194,
208, 976 A.2d 689 (2009); see also Doroszka v. Lavine,
111 Conn. 575, 579, 150 A. 692 (1930) (‘‘[a]s early as
[1838], and frequently since, we have ordered a new
trial unless the plaintiff would remit a part of the ver-
dict’’); W. Maltbie, supra, § 200, p. 248 (‘‘[t]he [S]upreme
[C]ourt often orders a new trial unless the plaintiff
remits a certain amount of the damages’’).
B
The defendant does not dispute that we have, in most
instances, reviewed decisions to grant or deny remitti-
tur according to this deferential standard of review.
Nevertheless, the defendant emphasizes that the legisla-
ture has determined that remittitur should be granted
only when a verdict is deemed to be ‘‘excessive as
a matter of law’’; General Statutes § 52-216a; accord
General Statutes § 52-228c;3 and argues that appellate
courts typically review legal determinations de novo
rather than for an abuse of discretion. The defendant
also draws our attention to Justice McDonald’s concur-
rence in Munn, which highlighted the need for clarifica-
tion of existing remittitur standards. See Munn v.
Hotchkiss School, supra, 326 Conn. 584–88 (McDonald,
J., concurring). The defendant therefore invites us to
revisit and overrule Munn and our other decisions con-
cerning remittitur.
For the following reasons, we reject the defendant’s
argument that the use of the phrase ‘‘excessive as a
matter of law’’ in §§ 52-216a and 52-228c evinces a legis-
lative intent to abrogate the common law and to pre-
scribe a de novo standard of review of remittitur deci-
sions. First, the defendant’s argument reflects a misun-
derstanding of the concept of a ‘‘matter of law’’ or
‘‘question of law,’’ as those expressions are used in the
context of appellate review. This court is authorized to
find facts only under a few limited circumstances in
which we have original jurisdiction, such as in cases
challenging the reapportionment of state electoral dis-
tricts; see Conn. Const. amend. XXVI (d); and challenges
to the rulings of election officials in connection with
certain federal elections. See General Statutes § 9-323.
In all other matters, our authority is limited to the cor-
rection of alleged legal errors. See, e.g., General Statutes
§ 52-263; Morgan v. Morgan, 104 Conn. 412, 417–18, 133
A. 249 (1926). What this means is that, in the run-of-
the-mill civil or criminal appeal, all of the questions
that we resolve are, strictly speaking, questions of law.
See W. Maltbie, supra, § 8, p. 9; E. Prescott, Connecticut
Appellate Practice and Procedure (5th Ed. 2016) § 8-
3:1.1, pp. 461–62. This is true even with respect to more
fact bound claims, such as sufficiency of the evidence
challenges and challenges to the trial court’s discretion-
ary rulings, which are subject to highly deferential
appellate review.4 In fact, there are numerous contexts,
aside from remittitur, in which we have stated either
that we will review for abuse of discretion a determina-
tion that a trial court made as a matter of law or that
we are unable to say, as a matter of law, that a trial
court abused its discretion in a certain regard.5 Accord-
ingly, the statutory reference to ‘‘a matter of law’’ does
not, in and of itself, necessitate a plenary standard of
review.
Indeed, long before the enactment of § 52-216a, this
court explained that, although the question of whether
an award of damages is excessive is one of law, we
will review a trial court’s determination thereof only
for an abuse of discretion. E.g., Nash v. Hunt, 166 Conn.
418, 428–29, 352 A.2d 773 (1974); see Gorczyca v. New
York, New Haven & Hartford Railroad Co., 141 Conn.
701, 703, 109 A.2d 589 (1954); see also Mansfield v. New
Haven, 174 Conn. 373, 375, 387 A.2d 699 (1978) (‘‘[i]t
cannot be held, as a matter of law, that the jury’s award
does not fall within the necessarily uncertain limits of
just damages or that the court abused its discretion
in refusing to set aside the verdict as inadequate’’).
Accordingly, because § 52-216a merely codified the pre-
existing common-law standards; see, e.g., Wichers v.
Hatch, 252 Conn. 174, 187, 745 A.2d 789 (2000); there
is no reason to conclude, on the basis of the statutory
text, that the legislature intended to modify the estab-
lished standard of review. See, e.g., Matthiessen v.
Vanech, 266 Conn. 822, 838, 836 A.2d 394 (2003)
(‘‘[although] the legislature’s authority to abrogate the
common law is undeniable, we will not lightly impute
such an intent to the legislature’’ [internal quotation
marks omitted]).
Moreover, the fact that this court has continued to
apply the traditional standard of review to remittitur
decisions for more than thirty-five years since the enact-
ment of § 52-216a, with the acquiescence of the legisla-
ture, provides further support for the conclusion that
the statute was not intended to impose a de novo stan-
dard of appellate review. ‘‘[I]n evaluating the force of
stare decisis, our case law dictates that we should be
especially wary of overturning a decision that involves
the construction of a statute. . . . When we construe
a statute, we act not as plenary lawgivers but as surro-
gates for another policy maker, [that is] the legislature.
In our role as surrogates, our only responsibility is to
determine what the legislature, within constitutional
limits, intended to do. Sometimes, when we have made
such a determination, the legislature instructs us that
we have misconstrued its intentions. We are bound by
the instructions so provided. . . . More often, how-
ever, the legislature takes no further action to clarify
its intentions. Time and again, we have characterized
the failure of the legislature to take corrective action
as manifesting the legislature’s acquiescence in our con-
struction of a statute. . . . Once an appropriate inter-
val to permit legislative reconsideration has passed
without corrective legislative action, the inference of
legislative acquiescence places a significant jurispru-
dential limitation on our own authority to reconsider
the merits of our earlier decision.’’ (Internal quotation
marks omitted.) Spiotti v. Wolcott, 326 Conn. 190, 201–
202, 163 A.3d 46 (2017).
The argument of legislative acquiescence is especially
compelling with respect to the remittitur statutes. The
legislature amended § 52-216a in 1982 to include the
‘‘excessive as a matter of law’’ language. Public Acts
1982, No. 82-406, § 3 (P.A. 82-406). Over the following
two decades, this court decided numerous cases in
which we continued to deferentially review additur and
remittitur decisions governed by § 52-216a. See, e.g.,
Gladu v. Sousa, 252 Conn. 190, 191–93, 745 A.2d 798
(2000); Wichers v. Hatch, supra, 252 Conn. 181; Meaney
v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 513,
735 A.2d 813 (1999); Black v. Goodwin, Loomis & Brit-
ton, Inc., 239 Conn. 144, 167, 681 A.2d 293 (1996); Bar-
tholomew v. Schweizer, 217 Conn. 671, 687, 587 A.2d
1014 (1991); Champagne v. Raybestos-Manhattan, Inc.,
212 Conn. 509, 557, 562 A.2d 1100 (1989). At no time
did the legislature amend the statute to clarify that
remittitur decisions made pursuant to § 52-216a were
to be afforded plenary review on appeal. Moreover, in
2005, when the legislature enacted § 52-228c; see Public
Acts 2005, No. 05-275, § 10; it again used the ‘‘excessive
as a matter of law’’ language to characterize the stan-
dard that governs remittitur decisions, in that case in
the medical malpractice context. If the legislature, pre-
sumably aware of this court’s remittitur jurisprudence;
see, e.g., Efstathiadis v. Holder, 317 Conn. 482, 492, 119
A.3d 522 (2015); had wanted to ensure that remittitur
decisions made pursuant to § 52-228c would be
reviewed de novo, it could have expressly so required.
See, e.g., General Statutes § 45a-100 (l) (mandating de
novo review by Superior Court of federal firearms dis-
ability determination by Probate Court). Instead, legis-
lators indicated that their intent was merely to codify
the common-law standards that courts had long applied
in the remittitur context. See 48 H.R. Proc., Pt. 31, 2005
Sess., pp. 9458, 9504–9505, remarks of Representative
Michael P. Lawlor. In view of this history, and given
the strong policy arguments in favor of affording defer-
ence to the trial court’s determination as to whether a
damages award is so excessive as to suggest that the
jury was motivated by sympathy, partiality, or preju-
dice; see Bartholomew v. Schweizer, supra, 217 Conn.
687; we decline the defendant’s invitation to overrule
our recent remittitur decisions.6
As we explain more fully in part II of this opinion,
however, we do agree with the defendant that the pre-
sent appeal turns largely on a purely legal question,
namely, whether a loss of consortium award in a wrong-
ful death action presumptively should not be substan-
tially greater than the noneconomic damages awarded
for the wrongful death itself. Our review of that question
is unquestionably plenary. See, e.g., Poole v. Waterbury,
266 Conn. 68, 82, 831 A.2d 211 (2003); Wichers v. Hatch,
supra, 252 Conn. 181–82; see also W. Maltbie, supra,
§ 188, p. 231 (it is legal error when trial court decides
motion to set aside verdict on basis of misconception
of law).
II
We turn next to the substance of the defendant’s
claim. For the reasons set forth hereinafter, we agree
with the defendant that a spousal loss of consortium
award in a wrongful death action presumptively should
not be substantially greater than the wrongful death
award7 itself. We also agree with the defendant that,
even when the evidence is considered in the light most
favorable to sustaining the verdict and the trial court’s
denial of remittitur, this is not among those unusual
cases in which a substantially greater loss of consortium
award may be justified.
A
We begin by briefly reviewing the history of and mod-
ern rules governing loss of spousal consortium claims.
‘‘The loss of consortium action had its genesis in early
Roman [l]aw, when the paterfamilias, or head of the
household, had an action for violence committed
against his wife, children or slaves on the theory they
were so identified with him that the wrong was to him-
self. By the [t]hirteenth [c]entury, the common law had
adopted the idea in part, altering it to a damage[s] action
for loss of services of the servant because of violence.
By the early [s]eventeenth [c]entury in England, since
the station of a wife under early common law was that
of a valuable servant of the husband who could not sue
in her own name, the action was extended to include the
loss of her domestic services. Over the years, emphasis
shifted away from loss of services toward a recognition
of the intangible elements of domestic relations, such
as companionship and affection.’’ Taylor v. Beard, 104
S.W.3d 507, 508–509 (Tenn. 2003).
It was not until 1950, more than one century after a
majority of states had enacted married women’s prop-
erty acts, that the first American court held that, in
view of the modern legal equality of wife and husband
in the marital relationship, a woman was permitted
to bring a claim against a tortfeasor for the negligent
deprivation of her husband’s consortium. Hitaffer v.
Argonne Co., 183 F.2d 811, 819 (D.C. Cir.) (overruled
in part on other grounds by Smither & Co. v. Coles,
242 F.2d 220 [D.C. Cir.], cert. denied, 354 U.S. 914, 77
S. Ct. 1299, 1 L. Ed. 2d 1429 [1957]), cert. denied, 340
U.S. 852, 71 S. Ct. 80, 95 L. Ed. 624 (1950); Hopson v.
St. Mary’s Hospital, 176 Conn. 485, 489, 408 A.2d 260
(1979); see also T. Demetrio, ‘‘Loss of Consortium: A
Continuing Evolution,’’ Trial, September, 2000, pp. 42–
43. While most jurisdictions quickly followed suit and
allowed wives as well as husbands to bring spousal
consortium actions, Connecticut was one of a handful
of states that initially followed a completely different
approach. See Hopson v. St. Mary’s Hospital, supra,
490. In Marri v. Stamford Street Railroad Co., 84 Conn.
9, 78 A. 582 (1911), this court recognized that the equal
rights of men and women under modern marital law
meant that either both genders must be able to maintain
an action for loss of consortium or neither may. See
id., 22. Reasoning that the action for loss of consortium
not only originated in but also was inextricably tied to
an obsolete socio-legal paradigm under which only the
husband could claim a right to spousal services, this
court concluded that the reasons that once justified the
rule had ceased to exist and, therefore, that an action
for loss of consortium would no longer lie for either
spouse. Id., 22–24.
It was not until 1979, in Hopson, that we reversed
course, overruled Marri, and held that either husband
or wife (deprived spouse) may bring a claim for loss
of consortium arising from a personal injury to the
other spouse (impaired spouse) caused by the alleged
negligence of a third person (tortfeasor). Hopson v. St.
Mary’s Hospital, supra, 176 Conn. 494–96. Two aspects
of our decision in Hopson are especially noteworthy
for purposes of this appeal.
First, we acknowledged in Hopson that there was a
risk that recognizing a cause of action for loss of spousal
consortium that was divorced from the traditional mari-
tal paradigm under which it had originated could lead
to ‘‘double recover[ies]’’ and other ‘‘improper verdicts’’
grounded in the ‘‘remote and indirect nature of the
consortium injury . . . .’’ Id., 491, 494; see also J. Lipp-
man, ‘‘The Breakdown of Consortium,’’ 30 Colum. L.
Rev. 651, 654 (1930). To mitigate such concerns, we
emphasized that ‘‘proper instructions to the jury and
close scrutiny of . . . verdicts’’ were warranted.
(Emphasis added.) Hopson v. St. Mary’s Hospital,
supra, 176 Conn. 494. Accordingly, even though we
apply a deferential standard of review to ordinary
remittitur decisions; see part I B of this opinion; it is
clear that awards that appear to be outliers or to lack
evidentiary support merit particularly careful review.8
See Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573,
590, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974) (‘‘appellate
tribunals have amply demonstrated their ability to con-
trol excessive [loss of consortium] awards’’); see also
Champagne v. Raybestos-Manhattan, Inc., supra, 212
Conn. 551–52, 557–58 (in light of scant evidence to
support loss of consortium claim, $320,000 award was
excessive as matter of law in that it shocked court’s
sense of justice, and trial court abused its discretion in
declining to set aside verdict).
Second, in Hopson, this court retained the traditional
taxonomy of loss of consortium damages. We recog-
nized that recovery is possible both for loss of the
household services performed by the impaired spouse
and for the various ‘‘intangible’’ or ‘‘sentimental’’ bless-
ings of marriage, including sexual relations, affection,
society, companionship, and moral support. (Internal
quotation marks omitted.) Hopson v. St. Mary’s Hospi-
tal, supra, 176 Conn. 487–88, 494. We explained that a
deprived spouse may recover under each such category
of damages, as long as the jury is properly instructed
as to its availability in a particular case. See id., 494.
At the same time, however, we acknowledged that the
different types of damages never have been uniformly
defined; id., 488; and also that, at least with respect
to the modern institution of marriage, these various
elements of consortium all merge into a ‘‘conceptualis-
tic unity’’; (internal quotation marks omitted) id., 492;
which can make it difficult to assess loss of consortium
damages. Id., 493. Accordingly, neither in Hopson nor
in our subsequent loss of consortium cases have we
attempted either to catalog or to clearly define the range
of potential loss of consortium damages.
Finally, we note that, with respect to the period of
time over which loss of consortium damages may
accrue, ‘‘[a]t common law, a spouse’s right to recover
damages for loss of consortium was strictly limited to
the period of the marriage itself. Once the injured per-
son died from his injuries, the right of his spouse to
recover damages for loss of consortium as a result of
those injuries was cut off, in the sense that no damages
could be awarded for any of her postmortem losses.
. . . With the enactment of General Statutes § 52-555a,
however, the bar to recovering damages for postmor-
tem loss of consortium was abrogated. . . . Under
[that] statute, the surviving spouse of an injured person
who dies as a result of tortiously inflicted injuries can
now recover damages from the tortfeasor for any loss
of consortium she has suffered or will probably suffer as
a direct and proximate result of her spouse’s wrongful
death. Logically, the only temporal limitation [on] the
surviving spouse’s right to recover damages for post-
mortem loss of consortium is the period of time in
which the plaintiff and her deceased spouse would
probably have continued to live together as a married
couple, enjoying each other’s companionship, society
and support, were it not for the defendant’s tortious
conduct.’’ (Citations omitted.) Blake v. Neurological
Specialists, P.C., Superior Court, judicial district of
Waterbury, Complex Litigation Docket, Docket No.
X02-CV-XX-XXXXXXX-S (May 9, 2003). In the present case,
the jury reasonably could have found that, but for the
defendant’s negligence, the decedent would have lived
as long as fifteen additional years. Accordingly, both
the wrongful death and the loss of consortium awards
may be presumed to span a fifteen year period.
B
In the present case, the defendant does not deny that
the plaintiff, following the sudden and tragic loss of her
husband of forty-five years, suffered a substantial loss
of consortium. Rather, the challenge is to the disparity
between the $1.2 million wrongful death award to the
decedent’s estate and the $4.5 million loss of consor-
tium award that the jury awarded to the plaintiff. It is
the defendant’s position that this disparity, which
implies that the plaintiff’s loss of her spouse was $3.3
million, or 275 percent, more devastating than was his
complete and total loss of all of life’s enjoyments, is
fundamentally irrational and must, therefore, have been
the result of improper sympathy, partiality, or prejudice.
To explain why this result is irrational, the defendant
posits that happy marriages are all alike, insofar as the
companionship, support, intimacy, and love shared by
a husband and wife9 normally are equivalent from the
perspective of both parties. A necessary correlate of
that postulate, in the defendant’s view, is that a loss of
consortium award ordinarily should be no greater than
the corresponding wrongful death award of which it is
derivative. The decedent spouse presumptively suffers
the same deprivations as does the deprived spouse—a
total loss of marital affection, companionship, and sex-
ual congress-—all of which presumably are encom-
passed within the wrongful death award under the
auspices of the loss of life’s enjoyments. But the wrong-
ful death award also should compensate the decedent’s
estate for the decedent’s loss of all of life’s other, non-
marital enjoyments, as well as for any pain and suffering
and other noneconomic damages resulting from the
fatal injury. Thus, the defendant argues, a rational jury’s
loss of consortium award ordinarily will be lower than
its noneconomic damages award to the decedent’s
estate.
We question whether matrimonial bliss necessarily
involves such parities, either as a matter of definition or
of experience. One could imagine a successful marriage
that nevertheless is asymmetrical in one respect or
another. Still, we need not fully embrace an Anna Kare-
nina model of marriage10 to recognize that rarely does
a jury award—let alone an appellate tribunal uphold—
a loss of consortium award that is multiples greater
than the underlying award compensating the impaired
spouse. See Kingman v. Dillard’s, Inc., 721 F.3d 613,
615, 620 (8th Cir. 2013); see also Arpin v. United States,
521 F.3d 769, 771, 777 (7th Cir. 2008) (remanding to
District Court to reevaluate $7 million loss of consor-
tium award in light of typical ratio of loss of consortium
to wrongful death awards); Wochek v. Foley, 193 Conn.
582, 587, 477 A.2d 1015 (1984) (‘‘[a]lthough other cases
are not determinative of the proper amount of damages
in this case, they do offer some guidance in determining
the range of those necessarily flexible limits of fair and
reasonable compensation by which the amount of the
verdict must be tested’’ [internal quotation marks omit-
ted]); see generally J. Isham, annot., ‘‘Excessiveness
and Adequacy of Damages Awarded for Noneconomic
Loss Caused by Personal Injury or Death of Spouse,’’
61 A.L.R. 4th 309 (1988 and Supp. 2018) (citing cases).
And, in fairness, the defendant does not ask us to
adopt a rigid, bright-line rule to the effect that a loss
of consortium award never can exceed the compensa-
tion for the underlying spousal injury. Rather, the pro-
posal is simply that we apply a presumption that a
direct injury to one spouse is no less harmful, everything
considered, than the concomitant loss of consortium
suffered by the deprived spouse, insofar as the impaired
spouse ordinarily will experience more or less compara-
ble losses of physical and emotional affection, in addi-
tion to being the one who suffers all of the direct effects
of the injury itself. That presumption can be overcome,
however, by evidence that the marriage was an unequal
one, in which the deprived spouse relied more heavily
on the support of or derived far more satisfaction than
the impaired spouse, or that the impaired spouse some-
how had less to lose. See, e.g., Kingman v. Dillard’s,
Inc., supra, 721 F.3d 621.
That rule, which strikes us as eminently reasonable,
has been applied by courts both in Connecticut and in
other jurisdictions. See, e.g., Kingman v. Dillard’s, Inc.,
supra, 721 F.3d 615, 620 (concluding that loss of consor-
tium award that was more than five times greater than
award to impaired spouse was disproportionate, and
observing that ‘‘it would be a highly unusual case in
which the consortium award exceeded the damages
award to the principal plaintiff’’ [internal quotation
marks omitted]); Musorofiti v. Vlcek, 65 Conn. App.
365, 376, 783 A.2d 36 (‘‘the derivative spouse may not
recover more than the injured spouse’’), cert. denied,
258 Conn. 938, 786 A.2d 426 (2001); Blake v. Neurologi-
cal Specialists, P.C., supra, Superior Court, Docket No.
X02-CV-XX-XXXXXXX-S (remitting $2 million loss of con-
sortium award in absence of any evidence that surviving
spouse derived more satisfaction from marriage than
decedent spouse had derived from all of life’s plea-
sures); see also Wheat v. United States, 860 F.2d 1256,
1261 (5th Cir. 1988) (concluding that loss of spousal
consortium award of $1.8 million was ‘‘grossly dispro-
portionate’’ to $3 million wrongful death award, not-
withstanding that deprived husband had to endure
wife’s painful four year battle with undiagnosed,
untreated cancer); Rascop v. Nationwide Carriers, 281
N.W.2d 170, 173 (Minn. 1979) (reasonableness of loss of
consortium award must be assessed in light of damages
awarded to impaired spouse); M. McLaughlin, ‘‘Wife’s
Damages for Loss of Consortium,’’ 10 Am. Jur. Proof
of Facts 3d 97, 153, § 35 (1990) (‘‘there should be some
reasonable relationship between the size of a verdict
awarded in a consortium action and the amount recov-
ered by the [impaired] spouse’’); 2 F. Harper et al.,
Harper, James and Gray on Torts (3d Ed. 2006) § 8.9,
pp. 661–62 (observing that most incidents of marriage
are equally valuable to both spouses). This rule also
is consistent with our observation in Champagne v.
Raybestos-Manhattan, Inc., supra, 212 Conn. 556, that
a derivative action such as one for loss of consortium
cannot afford greater relief than would be permitted
under the predicate action. Notably, in Champagne, we
held that a loss of consortium award that was more
than twice as large as the corresponding wrongful death
award was excessive, although we did not expressly
rely on the rule that we have articulated in the present
case. Id., 558; see id., 516–18.
In adopting this rule, we recognize that loss of consor-
tium damages, by their nature, defy any precise mathe-
matical computation. See Shegog v. Zabrecky, 36 Conn.
App. 737, 752, 654 A.2d 771, cert. denied, 232 Conn. 922,
656 A.2d 670 (1995). Still, an award of noneconomic
damages to the impaired spouse, awarded at the same
time, by the same finder of fact, provides a natural and
meaningful benchmark by which we may evaluate the
reasonableness of the corresponding loss of consortium
award.11 When the latter is substantially greater than
the former, a suspicion naturally arises that the loss
of consortium award was the product of sympathy or
partiality toward the deprived spouse or prejudice
against the defendant. To uphold such an award, a
reviewing court must be able to point to evidence that
explains or justifies the unusual disparity. Cf. Arpin v.
United States, supra, 521 F.3d 776–77.
C
Because the trial court in the present case did not
have the benefit of the guidance that we have provided
herein and, therefore, did not apply this presumption,
on review, we simply consider whether there was suffi-
cient evidence pursuant to which a reasonable jury
could have found that such a disparity was justified. The
evidence of the plaintiff’s loss of consortium, although
certainly sufficient to warrant a significant award, was
relatively scant. Such evidence was limited to brief and
largely conclusory testimony by the plaintiff herself and
by her daughter, Sherri Capaldo, regarding the plaintiff’s
relationship with the decedent.
As we noted, loss of consortium damages may be
broadly segmented into household services and the
more intangible or sentimental aspects of a marriage.
See, e.g., 3 Restatement (Second), Torts § 693 (1), p. 495
(1977). With respect to household services, the plaintiff
and Capaldo testified that the decedent performed all
of the repairs on their home, maintained the boat that
they kept at their vacation cottage, and made annual
improvements to the cottage, such as adding a hearth,
fireplace, and bar. The plaintiff also indicated that the
decedent was able to fix the refrigerator and stove, and
was skilled at mechanical, plumbing, electrical, con-
crete, and wood work, but that she ‘‘took care of the
house.’’ She further testified that, following the dece-
dent’s death, she had to plow the snow. Beyond that,
there was no evidence by which the jury could have
assessed and quantified what specific chores and house-
hold services the decedent performed, how much time
he spent performing such chores, the financial or
replacement value of his contributions, or the burden
that the plaintiff now faces in having either to perform
the chores herself or to hire someone else to perform
them. It has been suggested that, to recover for such
losses, ‘‘the [deprived spouse] must demonstrate the
reasonable cost of hiring help to perform those house-
hold services formerly contributed by [the impaired
spouse]. It is not enough to merely state that the
[impaired spouse’s] services have been diminished
. . . .’’ (Footnote omitted.) M. McLaughlin, supra, 10
Am. Jur. Proof of Facts 3d 125, § 14; see also id., 126
(market value of lost services may be proved by expert
testimony). In the present case, no evidence was pre-
sented from which the jury could have concluded that
the plaintiff’s loss was somehow atypical, let alone to
support a multimillion dollar verdict that was well in
excess of the underlying wrongful death award.
Turning next to the intangible, sentimental side of
the ledger, we note that no evidence was presented at
trial regarding several of the most fundamental aspects
of married life. For example, several courts have indi-
cated that a predominant element of a loss of spousal
consortium claim is the diminution or loss of the sexual
relationship and/or physical affection. See, e.g., Ossenf-
ort v. Associated Milk Producers, Inc., 254 N.W.2d 672,
685 (Minn. 1977); J. Isham, supra, 61 A.L.R. 4th 324, § 2
[j]. In this case, no evidence was presented that the
plaintiff and the decedent had maintained a sexual rela-
tionship or continued to engage in any form of physi-
cal affection.
Nor was there any specific evidence as to how, if at
all, the decedent helped to meet the plaintiff’s emotional
needs or to provide her with affection, moral support,
or other forms of emotional consortium. Again, the
scant evidence that was presented at trial is primarily
limited to conclusory testimony, such as that the dece-
dent loved being around his family and that, after a
nearly fifty year relationship, the plaintiff’s life without
him was ‘‘very difficult’’ and ‘‘very lonely . . . .’’
When the plaintiff did open a broader window into
her life with her late husband, her testimony raised
more questions than it answered, calling into question
not only the couple’s intimacy but also the quantity, if
not the quality, of the time they spent together. There
was extensive testimony, for example, suggesting that
the decedent had been a workaholic. The plaintiff testi-
fied that the garage where he worked ‘‘meant everything
to [him],’’ that he worked seven days per week and
rarely took family vacations, and that, most days, he
rose early, went straight to work, worked until between
8 and 11 p.m., and then, upon returning home, often
proceeded to eat, shower, and go to bed. When asked
to list the decedent’s two or three favorite places to
spend his time, the plaintiff responded ‘‘Two or three?
. . . The garage, the cottage . . . [and] home.’’
Capaldo’s testimony was consistent with that of the
plaintiff. She indicated that her father had been a very
hard worker who spent a lot of time at the garage and
was constantly tinkering or working on projects, even
when on vacation at the family cottage.12
When asked about the decedent’s hobbies, the plain-
tiff indicated that he enjoyed attending car shows with
his friends, cutting wood, and snow and jet skiing.
Although the jury might reasonably have understood
her testimony to mean that she had joined the decedent
in his boating and jet skiing activities and had once
accompanied him to an auto race, the plaintiff testified
that she was not a snow skier, and there was no indica-
tion that she attended the car shows, chopped wood
with him, or shared in his other projects and pastimes.
Finally, there was undisputed evidence that the dece-
dent was a quiet, private man who did not often express
his feelings and did not confide in his wife with respect
to important personal issues, such as his health prob-
lems. In fact, the plaintiff was not aware of several of
the medical conditions from which the decedent suf-
fered, or of the various medications that he was taking
for those conditions.
In short, although there is no reason to doubt that
the plaintiff and the decedent enjoyed a long, happy
life together, and that his loss left her feeling lonely
and isolated, the record is largely devoid of any specific
evidence from which the jury reasonably could have
determined that the decedent met her needs for
romance, affection, companionship, and intimacy to
such a degree as to justify an award for consortium so
much greater than her husband’s compensatory
award.13 We perceive nothing in the record that indi-
cates that the plaintiff was so uniquely dependent on
the decedent, or derived so much joy from his presence,
that her loss of his consortium was nearly four times
as devastating as his complete loss of life and all of
its pleasures.14
D
The plaintiff’s primary response to the defendant’s
arguments on appeal is that the jury reasonably could
have found that the fifteen years of suffering that she
will endure as a result of the loss of the decedent’s
consortium far exceeds his loss of all of life’s enjoy-
ments during that same period of time because she lost
various things that he did not.15 The plaintiff points
specifically to four harms that, although arising from
or relating to the loss of the decedent’s consortium,
are purportedly unique to her: loss of the household
services that the decedent provided; loss of his compan-
ionship; loss of his financial support; and the emotional
suffering the plaintiff experienced upon observing his
tragic final days and then having to make the heart
wrenching decision to terminate his life support. The
defendant responds that each of these losses either
overlaps with the losses for which the decedent’s estate
was compensated or is not encompassed within loss
of consortium damages and, therefore, was not properly
part of the jury’s calculations.16 We consider each
alleged harm in turn.
1
With respect to the services performed by the dece-
dent, we already have observed that, although the dece-
dent undoubtedly performed various household repair
and maintenance services, the plaintiff presented no
evidence on the basis of which the jury could have
quantified the value of those services. There certainly
was no basis for concluding that the annual costs associ-
ated with maintaining and repairing the couple’s home
and their vacation cottage, or the noneconomic value
to the plaintiff in having the decedent reliably perform
those tasks, amounted to more than a tiny fraction of
the $4.5 million loss of consortium award.
Equally important, the undisputed testimony was that
the decedent did not consider repairs and home
improvement projects to be chores. Rather, his daugh-
ter testified that he was a man who loved tinkering
with things and always needed to be busy working
on projects and helping others. Indeed, in his closing
argument to the jury, the plaintiff’s counsel emphasized
how the decedent ‘‘lost his work, his family garage, all
the creation, all the problem solving, the building, the
rebuilding, the restoring, the fixing, the helping others,
the pride, the sense of satisfaction and accomplish-
ment.’’ Accordingly, we must assume that much of the
value of the household services that the plaintiff lost
also would have counted as losses from the decedent’s
perspective, in that he lost the opportunity to engage
in one of his favorite leisure activities while serving his
family. There is no basis, then, for concluding that lost
household services account for the substantial differen-
tial between the loss of consortium and wrongful death
awards in this case.
2
Much the same can be said of companionship.
Although companionship undoubtedly is a core aspect
of marital consortium, and although the plaintiff’s per-
manent loss of her life partner justifies a sizable award
of damages, there is no evidence in the record that
would support a loss of consortium award that is multi-
ples greater than the corresponding wrongful death
award. All of the time the decedent spent together with
the plaintiff she likewise spent with him, and there is
nothing to suggest that he was any more affectionate
or supportive than was she.
In order to explain why the plaintiff’s loss of the
decedent was somehow much worse than his loss of
his wife, the plaintiff appears to make the philosophical
argument that it is better to be dead, and presumably
unable to miss one’s spouse, than to remain alive and to
suffer the pangs of loss. Although common experience
would seem to belie the plaintiff’s theory, we need not
grapple with such metaphysical questions in the present
case because the plaintiff never claimed at trial that
her relationship with the decedent was an unequal one
or that his losses were somehow minimized because
he is now in a better place. Quite the contrary; in his
closing argument, the plaintiff’s counsel focused his
discussion of damages almost exclusively on the harms
suffered by the decedent. In cataloging the decedent’s
losses, counsel began by emphasizing that the decedent
‘‘lost his family; he lost [his wife] . . . .’’ Primarily,
though, counsel focused on the fact that the decedent
had suffered the ultimate deprivation: loss of his life.
‘‘[T]he biggest loss of all,’’ he informed the jury, ‘‘[is]
the loss of a human life. . . . [T]he loss of life is mas-
sive.’’ Counsel repeatedly asked the jury to award
wrongful death damages in the neighborhood of $5.5
to $5.7 million because the decedent had lost his life
rather than merely suffer a disabling injury. Counsel
even rhetorically asked the jury, ‘‘[h]ow much would
you give up for the loss of your life? What’s that worth?
It’s substantial.’’
In explaining the magnitude of the decedent’s loss,
counsel particularly sought to focus the jury’s attention
on all of life’s countless small pleasures that the dece-
dent had lost, beyond his family, his work, his home,
and his leisure time: ‘‘[H]e lost so much more than that.
He lost all the things that you and I take for granted
every single day. The smell of coffee in the morning,
putting on your favorite pair of blue jeans, what it feels
like when your dog curls up next to you at night and
watches [television] with you, anticipating what the
holidays are [going to] feel like, the feeling that you get
when somebody you know takes the time to wish you
happy birthday on your birthday. He missed hearing,
thank you for helping me, thank you for solving my
problem; no one else has been able to do that. The
pride, the satisfaction, all of those pleasures that come
from family relationships, relationships with friends,
teaching others, learning from others, experiencing new
things, experiencing old things, again, loving others and
being loved by others. He lost the opportunity to experi-
ence all things, physical, spiritual, mental and emo-
tional, that our culture and the world . . . provide
for him.’’
By contrast, counsel’s sole reference to the plaintiff’s
loss of the decedent’s consortium was the following:
‘‘Whatever amount you decide to compensate [the plain-
tiff] for the pain and the loneliness and all of her per-
sonal losses from being without her husband for the
next nine and [one-half] years, I’ll leave that to you
. . . .’’ The plaintiff having tried the case in this manner,
we find little to commend her theory on appeal that
her losses were somehow more profound than those
of the decedent.17
3
The plaintiff next argues that a greater loss of consor-
tium award was necessary to compensate her for the
loss of the decedent’s financial support. As a general
matter, we agree with the defendant that, when a person
injured by another’s negligence loses the capacity to
financially support his or her family, compensation for
that loss should be awarded directly to the impaired
spouse and—to avoid double recovery—not to the
deprived spouse bringing a derivative consortium claim.
See, e.g., 3 Restatement (Second), supra, § 693, com-
ment (f), p. 497; W. Keeton et al., Prosser and Keeton
on the Law of Torts (5th Ed. 1984) § 125, p. 933; J.
Litwin, annot., ‘‘Measure and Elements of Damages in
Wife’s Action for Loss of Consortium,’’ 74 A.L.R. 3d 805,
813, § 5 (1976); see also 32 H.R. Proc., Pt. 14, 1989
Sess., p. 4862, remarks of Representative Jay B. Levin
(statutory loss of consortium claim in wrongful death
action is for noneconomic damages). In the present
case, the plaintiff neither sought nor established that
the decedent suffered any financial losses, other than
medical expenses.
The plaintiff’s argument appears to be that the pre-
sent case is unique insofar as the only way to preserve
the sale equity in the decedent’s automotive repair busi-
ness was for the plaintiff to shutter her own greenhouse
businesses and temporarily manage the repair garage
until various environmental issues had been resolved
and a sale could be completed. Even if we were to
assume, for the sake of argument, that those circum-
stances justify compensating the plaintiff, rather than
the decedent’s estate, for any financial losses resulting
from his death, her argument would fail for at least two
additional reasons.
First, the jury was never charged that loss of consor-
tium encompasses financial losses. Rather, the court
defined the claim as follows: ‘‘Loss of [c]onsortium is
a suit by a spouse for the loss of affection, dependence
and companionship . . . . The term ‘consortium’
encompasses the services of the spouse and the variety
of intangible relations which exist between spouses,
including affection, society, companionship and physi-
cal intimacies . . . .’’ Accordingly, there is no reason
to believe that the jury’s $4.5 million loss of consortium
award included financial damages.
Second, no evidence was presented at trial pursuant
to which the jury could have quantified the plaintiff’s
financial losses. There was no evidence as to how much
income she lost as a result of having to close her green-
houses; nor was there evidence establishing how long
the repair garage was likely to require her presence.
Although it is true that the more intangible types of
loss of consortium damages are not readily quantified;
see, e.g., Hopson v. St. Mary’s Hospital, supra, 176
Conn. 494; M. McLaughlin, supra, 10 Am. Jur. Proof of
Facts 3d 126, § 15; financial losses are compensable
only to the extent that they are supported by evidence
and are not speculative. See, e.g., Earlington v. Anas-
tasi, supra, 293 Conn. 207–208; cf. Hawkins v. Garford
Trucking Co., 96 Conn. 337, 341, 114 A. 94 (1921).
Accordingly, we reject the plaintiff’s argument that the
deprivation of the decedent’s financial support justifies
a loss of consortium award that far exceeds the $1.2
million wrongful death award.
4
Finally, the plaintiff contends that the disproportion-
ate loss of consortium award was justified by virtue
of the fact that she experienced and will continue to
experience suffering relating to the loss of her husband
in general and, specifically, from having to make the
painful choice to terminate his life support. The trial
court appears to have embraced this argument in deny-
ing the defendant’s motion for remittitur. The court
justified its decision by explaining that ‘‘[the decedent’s]
unexpected death brought to a painful and tragic end
a union [that] had endured [one] half century. Their
last days together were defined by the difficult decisions
[the plaintiff] had to make in connection with the termi-
nation of life support . . . .’’
a
As we previously discussed, there is no doubt that
the plaintiff may recover for the loss of the decedent’s
companionship. To the extent that a meaningful distinc-
tion can be drawn, we also agree with the plaintiff that
she may recover not only for the deprivation of the
happiness and other positive feelings that she would
have derived from the decedent’s company, but also
for having to endure the sadness, loneliness, and other
negative feelings that his loss evoked. See Hopson v.
St. Mary’s Hospital, supra, 176 Conn. 493 (loss of con-
sortium encompasses mental and emotional anguish);
J. Isham, supra, 61 A.L.R. 4th 328–29, § 2 [n] (same). As
we further explained, however, we reject the plaintiff’s
argument that, because deceased individuals are pre-
sumably no longer able to experience either happiness
or sadness, such losses accrue only to her side of the
ledger. That is not how the case was argued to the jury,
and we are not aware of any court that has recognized
that the suffering of those who survive may be more
tragic than the complete loss of life itself. Accordingly,
although we in no way minimize the plaintiff’s anguish
over the tragic and sudden loss of the decedent, we are
not persuaded that her suffering justifies an award that
is multiples greater than the underlying wrongful
death award.
b
A different question is posed by the fact that it fell
to the plaintiff to make the heart wrenching decision
to remove the decedent from life support and allow
him to die. At trial, the plaintiff described this choice
as ‘‘unimaginable’’ and ‘‘probably the worst decision
any human being could make for another human being.’’
It apparently was the view of the trial court that,
although the jury was never expressly instructed that it
could consider the hospital experience and life support
decision when awarding damages, the resulting trauma
that the plaintiff experienced did legitimately enter into
the jury’s calculations. The defendant contends, and
we agree, that, although the outer boundaries of lost
consortium may be uncertain, the cause of action is
not so expansive as to encompass harms of this sort.
We reach this conclusion for two reasons.
First, the trauma associated with having to make a
difficult, end of life decision for a loved one is a harm
that differs in kind from the types of injuries tradition-
ally associated with loss of consortium. At common
law, the principal marital rights of the husband and, by
extension, the core components of a loss of consortium
claim, were (1) the household services of the wife, and
(2) her sexual relations. See, e.g., E. Holbrook, ‘‘The
Change in the Meaning of Consortium,’’ 22 Mich. L. Rev.
1, 2 (1923); J. Lippman, supra, 30 Colum. L. Rev. 652–53.
During the early 1900s, the concept was expanded in
America to include the loss of a spouse’s love, affection,
and companionship, as well. See, e.g., T. Demetrio,
supra, p. 42; see also J. Lippman, supra, 662. We are
not aware of any published case, however, in which a
traumatic decision or end of life experience of the type
at issue in the present case has been deemed to consti-
tute a loss of spousal consortium.18
The reason for this, presumably, is that all of the
harms traditionally associated with loss of spousal con-
sortium involve the actual loss of some benefit or com-
ponent of the marital relationship. The deprived spouse
is denied the impaired spouse’s services, sexual partner-
ship, companionship, and/or emotional support over
a significant period of time. Such losses may evoke
emotional suffering, and the intensity and duration of
that suffering may be factors in assessing the scope of
the injury, but, at its core, the compensable injury is
the prolonged deprivation itself.
Although the plaintiff’s decision to terminate life sup-
port played a tragic and unavoidable role in the loss of
the decedent, it is not that loss that is now at issue. The
defendant acknowledges that the plaintiff is entitled
to compensation for the permanent loss of all of the
decedent’s services and support, but merely observes
that her losses are no greater than his own. The question
we must resolve, however, concerns the plaintiff’s need
to make a sudden, emotionally wrenching decision, and
the trauma that she presumably experienced as a result.
It is difficult to characterize that decision as a loss of
consortium, insofar as it did not involve the deprivation
of any of the benefits or blessings of marriage. Rather,
we agree with the defendant that the experience is
more properly classified under the rubric of extreme
emotional distress. Cf. Squeo v. Norwalk Hospital
Assn., 316 Conn. 558, 571, 580–92, 113 A.3d 932 (2015)
(clarifying elements of bystander emotional distress
claim).
At least two cases support the conclusion that having
to terminate the decedent’s life support, while undoubt-
edly traumatizing, is not the sort of harm that falls
within the ambit of loss of consortium and, therefore,
cannot justify the sizable disparity between the two
awards in this case. See Santa v. United States, 252
F. Supp. 615 (D.P.R. 1966); O’Connell v. Bridgeport
Hospital, Superior Court, judicial district of Fairfield,
Docket No. CV-XX-XXXXXXX-S (May 17, 2000). In each
case, recovery was sought for emotional suffering relat-
ing to end of life issues. Although loss of consortium
damages were deemed to be available, the suffering
relating to end of life care was authorized under a dis-
tinct legal theory. See Santa v. United States, supra,
619–22 (plaintiff wife had valid claim under state mental
anguish law, rather than as loss of consortium, arising
from ordeal in which husband died as wife tried unsuc-
cessfully to have him hospitalized); O’Connell v. Bridge-
port Hospital, supra (depriving wife of opportunity to
make decision regarding removal of husband’s life sup-
port deemed evidence of negligent infliction of emo-
tional distress, whereas inability to be present with
husband during his final hours deemed loss of consor-
tium). Legal scholars have likewise treated bystander
distress as distinct from the types of harm that comprise
loss of consortium. See, e.g., L. Raisty, ‘‘Bystander Dis-
tress and Loss of Consortium: An Examination of the
Relationship Requirements in Light of Romer v. Evans,’’
65 Fordham L. Rev. 2647, 2649–57 (1997).
Second, and relatedly, our bystander distress cases,
while allowing a family member to recover for the
extreme emotional distress experienced upon perceiv-
ing an injury inflicted by gross medical negligence; see
Squeo v. Norwalk Hospital Assn., supra, 316 Conn.
580–81; have closely cabined the circumstances under
which such recovery is available. See id. Of the various
conditions that we established in Squeo, three are of
particular importance for the present case. First, relying
on Clohessy v. Bachelor, 237 Conn. 31, 52, 675 A.2d
852 (1996), we reiterated that recovery for bystander
emotional distress is available only when ‘‘the bystand-
er’s emotional distress is caused by the contemporane-
ous sensory perception of the event or conduct that
causes the accident or injury, or by arriving on the
scene soon thereafter and before substantial change
has occurred in the primary victim’s condition or loca-
tion . . . .’’ Squeo v. Norwalk Hospital Assn., supra,
582. Second, expounding on Clohessy, we determined
that ‘‘a bystander cause of action will lie only when the
bystander’s psychological injuries are both severe and
debilitating, such that they warrant a psychiatric diag-
nosis or otherwise substantially impair the bystander’s
ability to cope with life’s daily routines and demands.’’
Id., 585. Third, we held that, in the medical malpractice
context, bystander recovery is available ‘‘only when the
injuries result from gross negligence such that it would
be readily apparent to a lay observer.’’ Id., 560. ‘‘This
additional element reflect[ed] [this court’s] determina-
tion that bystander claims should be available in the
medical malpractice context only under extremely lim-
ited circumstances.’’ Id.
In the present case, the plaintiff did not assert a claim
for bystander emotional distress, and there was no find-
ing either by the jury or by the trial court that any of
these conditions were satisfied. On the record before
us, it is by no means clear—indeed, it appears unlikely—
that the plaintiff could establish that (1) the defendant’s
conduct in failing to connect the decedent’s epicardial
pacing electrodes constituted the sort of gross negli-
gence of which a layperson would have been aware,
(2) the plaintiff perceived the injury to the decedent
more or less contemporaneously with the infliction of
that injury, or (3) the plaintiff suffered severe and debili-
tating emotional distress as a result. As the cited cases
indicate, the anguish and trauma that the plaintiff expe-
rienced upon discovering her husband’s condition and
having to terminate his life support are quintessential
bystander emotional distress injuries. If we were to
allow a plaintiff to recover for those injuries under the
distinct rubric of loss of consortium, under circum-
stances in which she is unable to satisfy our carefully
crafted standards for bringing a bystander liability
claim, then those standards would cease to serve a
meaningful function, and the delicate balance that was
struck when we recognized a limited cause of action for
bystander distress in the medical malpractice context
would be upended. This we decline to do.
For the aforementioned reasons, we conclude that
the jury could not reasonably have found on this record
that the plaintiff’s lost consortium was substantially
more damaging than the decedent’s loss of life and all
of its enjoyments. We therefore remand the case to the
trial court for reconsideration of the defendant’s motion
for remittitur in accordance with the foregoing princi-
ples. See footnote 17 of this opinion.
The denial of the motion for remittitur of the loss of
consortium award is reversed and the case is remanded
for reconsideration of that motion in accordance with
this opinion.
In this opinion the other justices concurred.
* This appeal originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson and Justices Palmer, McDonald,
D’Auria, Mullins and Kahn. Although Justice Kahn was not present at oral
argument, she has read the briefs and appendices, and listened to a recording
of oral argument prior to participating in this decision.
1
Although Hartford Healthcare Corporation also was named as a defen-
dant, the complaint subsequently was withdrawn as to Hartford Healthcare
Corporation. Hereinafter, we refer to Hartford Hospital as the defendant.
2
Marjorie Ashmore also brought the present action in her individual capac-
ity. Hereinafter, all references to the plaintiff are to Marjorie Ashmore in
her individual capacity seeking loss of consortium damages.
3
General Statutes § 52-228c provides in relevant part: ‘‘Whenever in a civil
action to recover damages resulting from personal injury or wrongful death,
whether in tort or in contract, in which it is alleged that such injury or death
resulted from the negligence of a health care provider, the jury renders a
verdict specifying noneconomic damages . . . in an amount exceeding one
million dollars, the court shall review the evidence presented to the jury to
determine if the amount of noneconomic damages specified in the verdict
is excessive as a matter of law in that it so shocks the sense of justice as
to compel the conclusion that the jury was influenced by partiality, prejudice,
mistake or corruption. If the court so concludes, it shall order a remittitur
and, upon failure of the party so ordered to remit the amount ordered by
the court, it shall set aside the verdict and order a new trial. . . .’’
4
Although we frequently state, as a form of shorthand, that we review
questions of law de novo, it would be more accurate to say that we review
de novo pure questions of law, as well as certain mixed questions involving
the application of legal rules or principles to factual circumstances.
5
See, e.g., Edmands v. CUNO, Inc., 277 Conn. 425, 435–36, 892 A.2d 938
(2006) (decision to submit to jury claim alleging violation of Connecticut
Franchise Act); Rogers v. Board of Education, 252 Conn. 753, 755, 772,
749 A.2d 1173 (2000) (agency decision upholding termination of teacher’s
contract); Young v. Data Switch Corp., 231 Conn. 95, 100–104, 646 A.2d 852
(1994) (decision to set aside plaintiff’s verdict when plaintiff had ratified
challenged contract); El Idrissi v. El Idrissi, 173 Conn. 295, 300–301, 377
A.2d 330 (1977) (denial of visitation rights); State v. Carr, 172 Conn. 458,
464–65, 374 A.2d 1107 (1977) (evidentiary ruling); Soybel Drug Co. v. Soybel,
159 Conn. 603, 603, 267 A.2d 442 (1970) (granting of injunction); Satter v.
Satter, 153 Conn. 230, 232, 215 A.2d 415 (1965) (granting of petition to
dissolve marriage); Grievance Committee v. Nevas, 139 Conn. 660, 666–67,
96 A.2d 802 (1953) (refusal to discipline attorney); Burley v. Davis, 132
Conn. 631, 635, 46 A.2d 417 (1946) (denial of permission to amend complaint).
6
To the extent that it is relevant, the legislative history of the 1982 amend-
ment to § 52-216a presents something of a mixed bag. On the one hand,
there is reason to believe that the legislature inserted the ‘‘excessive as a
matter of law’’ language primarily to ensure that the amended statute satis-
fied the constitutional standards set forth in our previous decisions. In
March, 1982, this court decided Seals v. Hickey, 186 Conn. 337, 441 A.2d
604 (1982), in which we reviewed the constitutionality of § 52-216a. See id.,
341–55. At that time, the statute provided in relevant part: ‘‘An agreement
with any tortfeasor not to bring legal action or a release of a tortfeasor in
any cause of action, shall not be read to a jury or in any other way introduced
in evidence by either party at any time during the trial of such cause of
action . . . except the court at the conclusion of the trial may deduct from
the verdict any amount of money received by any party to such action
pursuant to such agreement not to sue or such release of claim. . . .’’
(Emphasis added.) General Statutes (Rev. to 1981) § 52-216a. In Seals, this
court concluded, among other things, that (1) the highlighted language
afforded the trial court unfettered and standardless discretion to reduce or
to decline to reduce a damages award against one tortfeasor when a joint
tortfeasor has made payments to a plaintiff pursuant to a release of claim or
other agreement; see Seals v. Hickey, supra, 352–53; and (2) such discretion
impermissibly intruded on the constitutional role of the jury, in part because
the statute empowered the trial court to reduce the verdict without offering
the plaintiff the option of a new trial. Id., 353. Seals also emphasized that
the due process clause of the federal constitution requires that the trial
court’s discretion be cabined such that a jury verdict may be reduced only
when it is deemed to be ‘‘excessive as a matter of law,’’ as that phrase had
been defined in our previous cases. (Emphasis omitted.) Id., 348.
The following month, in April, 1982, in response to this court’s decision
in Seals; see Peck v. Jacquemin, 196 Conn. 53, 59, 67, 491 A.2d 1043 (1985);
the legislature attached to an unrelated education bill an amendment to
§ 52-216a. See P.A. 82-406, § 3. The amendment eliminated the language that
was deemed unconstitutional in Seals and replaced it with the following
two sentences: ‘‘If the court at the conclusion of the trial concludes that
the verdict is excessive as a matter of law, it shall order a remittitur and,
upon failure of the party so ordered to remit the amount ordered by the
court, it shall set aside the verdict and order a new trial. If the court concludes
that the verdict is inadequate as a matter of law, it shall order an additur,
and upon failure of the party so ordered to add the amount ordered by the
court, it shall set aside the verdict and order a new trial.’’ P.A. 82-406, § 3,
codified at General Statutes (Rev. to 1983) § 52-216a. In light of this history,
the most reasonable interpretation of the statute is that the legislature
amended it simply to address the specific constitutional defects that had
been identified in Seals rather than to modify the well established standard
of review of remittitur decisions, and that the ‘‘excessive as a matter of
law’’ language was added merely to comport with Seals and to leave no
doubt that the discretion of the trial court to reduce jury verdicts is not
unfettered and standardless.
On the other hand, during the House debates, a cosponsor of the legislation
indicated that, in his opinion, the addition of the ‘‘matter of law’’ language
was intended to eliminate the discretionary aspects of the trial court’s
decision to grant or deny remittitur. 25 H.R. Proc., Pt. 19, 1982 Sess., pp.
6178, remarks of Representative Alfred J. Onorato. His only explanation for
that comment was that the amendment would bring Connecticut law in line
with the law of other states and federal courts. Id. Our research reveals,
however, that many jurisdictions afforded their trial courts rather broad
discretion in these matters at that time, and also that no single standard
governing remittitur has prevailed outside of Connecticut. See, e.g., S. Cra-
vens, ‘‘The Brief Demise of Remittitur: The Role of Judges in Shaping Reme-
dies Law,’’ 42 Loy. L.A. L. Rev. 247, 250 (2008); I. Sann, ‘‘Remittiturs (and
Additurs) in the Federal Courts: An Evaluation with Suggested Alternatives,’’
38 Case W. Res. L. Rev. 157, 183 (1988). Research presented in the brief
of amicus curiae Connecticut Trial Lawyers Association bears out those
conclusions. Accordingly, we do not find in the legislative history any guid-
ance sufficiently clear to overcome a decades long and nearly unbroken
tradition of reviewing remittitur decisions for an abuse of discretion. Of
course, if the legislature wishes to alter or otherwise reconsider that stan-
dard, as Justice McDonald has suggested; see Munn v. Hotchkiss School,
supra, 326 Conn. 580 (McDonald, J., concurring); it is free to do so.
7
For purposes of this discussion, unless otherwise noted, all references
to wrongful death awards and loss of consortium awards should be under-
stood to refer only to noneconomic damages awards.
8
We note that closer scrutiny is also warranted in the present case because
it involves an award of noneconomic damages in excess of $1 million arising
from medical malpractice. The text and the legislative history of § 52-228c
suggest that legislators were of the view that such awards are permissible
only in exceptional cases, such as when a young, stay-at-home mother
sustains injuries that, while not resulting in significant economic damages,
can be expected to seriously impair her family’s ability to function and
flourish. See, e.g., 48 H.R. Proc., supra, pp. 9458, 9520–22, remarks of Repre-
sentative Lawlor; see also Conn. Joint Standing Committee Hearings, Judi-
ciary, Pt. 19, 2005 Sess., p. 5838, written testimony of Professor Neil Vidmar
(stating that outlier medical malpractice awards frequently are reduced upon
appellate review).
9
All of the principles and analysis contained in this opinion apply with
equal force to same-sex married couples. See Mueller v. Tepler, 312 Conn.
631, 649, 95 A.3d 1011 (2014). We use the generic phrase ‘‘husband and
wife’’ merely for convenience.
10
See L. Tolstoy, Anna Karenina (R. Pevear & L. Volokhonsky trans.,
Penguin Books 2000) p. 1 (‘‘[a]ll happy families are alike; each unhappy
family is unhappy in its own way’’).
11
If a party so requests, it would be appropriate to instruct the jury
regarding this presumption.
12
We note that the trial court, in denying the motion for remittitur, relied
on the fact that ‘‘[t]he couple spent much of their free time together . . . .’’
It is unclear on what basis the trial court made this finding, as it does not
appear to have direct support in the record.
13
We note that, although the defendant has not challenged the overall
size of the $4.5 million loss of consortium award, in very few instances
have loss of consortium awards of this magnitude been sustained. See, e.g.,
Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 785 (5th Cir. 1983); J.
Isham, supra, 61 A.L.R. 4th 330–31, 348, §§ 3 and 14; see also T. Demetrio,
supra, p. 45 (‘‘large [loss of consortium] verdicts are rare’’).
14
The jury was specifically instructed, with respect to the wrongful death
award, that it could award damages to compensate the decedent’s estate for
the destruction of the decedent’s capacity to enjoy life’s activities, ‘‘including
family, work, recreation and other aspects of life.’’
15
The plaintiff does not deny, however, that the decedent lost many things
that she did not; nor does she attempt to weigh the value or diminish the
severity of those losses.
16
The defendant also contends that certain of these arguments are not
preserved and, therefore, are not properly before this court. In light of our
resolution of the appeal, we need not resolve those claims.
17
We further observe in this respect that, during his closing argument,
the plaintiff’s counsel repeatedly opined that an award of between $5.5 and
$5.7 million would represent fair compensation for the decedent’s injuries.
The trial court then instructed the jury that ‘‘[a]ny damages awarded in this
case relating to the harm suffered by [the decedent] would go to the estate
and not simply to [the plaintiff]. Any damages awarded on [the plaintiff’s]
loss of consortium claim will be awarded directly to her.’’ Ultimately, the
jury awarded $5.7 million in damages, consistent with counsel’s request but
allotted the majority of that sum directly to the plaintiff rather than to the
decedent’s estate.
We cannot speculate as to the jury’s rationale for allocating the awards
as it did. See Champagne v. Raybestos-Manhattan, Inc., supra, 212 Conn.
537. We merely note that, if the trial court were to determine on remand
either that the jury misunderstood the court’s instructions or that damages
meant to compensate for the decedent’s injuries had been reallocated as
loss of consortium damages to ensure that they were awarded to the plaintiff,
that would provide an independent basis for remitting the outsized loss of
consortium award. Because the issue of additur is not before us, we express
no opinion as to whether the estate, should it file a motion for additur on
remand, might be entitled to a corresponding additur under those circum-
stances. See Practice Book § 16-35 (judicial authority may, for good reason,
extend time for filing motion for additur). Nevertheless, we note that the
fact that a loss of consortium award presumptively should not overshadow
the corresponding wrongful death award does not imply that remittitur of
the former, rather than or in tandem with additur of the latter, is necessarily
the appropriate remedy.
18
We note that one legal source purports to offer a comprehensive list
of the various factors that may be considered in connection with a loss of
spousal consortium claim. See M. McLaughlin, supra, 10 Am. Jur. Proof of
Facts 3d 158–61, § 39. Although numerous types of mental anguish and
emotional strain are identified, none is even remotely akin to the harm
claimed in the present case. See generally id., 159–61.