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TESSA SCANDARIATO v. EDWARD BORRELLI

(AC 35918)

Gruendel, Lavine and Flynn, Js.

Argued September 15—officially released December 2, 2014

(Appeal from Superior Court, judicial district of New
London, Martin, J.)

Lawrence H. Adler, with whom, on the brief, was

Patricia M. Shepard, for the appellant (defendant).

Stephen M. Reck, for the appellee (plaintiff).
Opinion

GRUENDEL, J. The defendant, Edward Borrelli,

appeals from the judgment of the trial court denying

his motions for remittitur and to set aside the verdict.

The defendant filed these motions after a jury verdict

awarding damages to the plaintiff, Tessa Scandariato,

on a claim of negligence. On appeal, the defendant

claims that the court (1) improperly allowed the plaintiff’s expert to testify to a permanent partial impairment

rating as to the plaintiff’s brain, (2) failed to instruct

the jury properly on the impairment rating, (3) and

failed to consider the effect of the allegedly improper

testimony on the jury’s determination of damages when

ruling on his posttrial motions. We disagree, and accordingly, affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the

jury reasonably could have found the following facts.

On October 20, 2006, the plaintiff and the defendant

were involved in an automobile accident in Norwich

when their vehicles collided. The accident occurred

while the plaintiff was proceeding directly through an

intersection and the defendant was making a left turn

into a gasoline station parking lot. The defendant turned

his vehicle directly into the plaintiff’s path, leaving her

no time to avoid the collision. The plaintiff alleged that

as a result of the accident, she sustained injuries to her

spine, neck, shoulders, head, and chest. The plaintiff

commenced a negligence action against the defendant,

seeking economic damages, including medical

expenses and lost wages, as well as noneconomic damages, including damages for the permanent impairment

to her ability to enjoy and participate in life’s activities.

The defendant denied the allegations of negligence,

asserting that the plaintiff’s negligence was the proximate cause of the accident.

The case was tried before a jury in the fall of 2012.

During the trial, the plaintiff proffered the testimony

of Anthony G. Alessi, a neurologist, who opined on the

extent and permanency of the plaintiff’s injuries. Alessi

testified that, in his professional opinion, the plaintiff’s

injuries were caused by the automobile accident with

the defendant. Furthermore, he stated that, in his opinion, the plaintiff suffered chronic injuries that would

persist for the rest of her life. Alessi also opined that

these injuries resulted in a permanent partial impairment of 5 percent of the plaintiff’s brain.

At the conclusion of trial, the jury returned a verdict

in favor of the plaintiff, awarding her $10,169.24 in economic damages and $306,296.60 in noneconomic damages. The jury assigned 80 percent comparative fault

to the defendant and 20 percent comparative fault to

the plaintiff. As a result, the plaintiff’s total recovery

was reduced by 20 percent to $253,172.67. The defendant then filed a motion to set aside the verdict and a
motion for remittitur. The court denied the motions and

rendered judgment in accordance with the verdict. This

appeal followed.

I

The defendant claims that the court improperly

admitted the expert testimony of Alessi regarding the

permanent partial impairment rating that he assigned

to the plaintiff’s brain. Specifically, the defendant contends that the court improperly concluded that the testimony was admissible without first satisfying the

threshold requirements set forth in State v. Porter, 241

Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied,

523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998),

and second, that the testimony was irrelevant or unduly

prejudicial under §§ 4-1 and 4-2 of the Connecticut Code

of Evidence. We disagree.

A

The following additional facts are relevant to our

resolution of this claim. Prior to trial, the plaintiff disclosed her intention to proffer the expert testimony

of Alessi, her treating physician and a board certified

neurologist. Alessi opined at his deposition, and again

at trial,1

that the plaintiff suffered from chronic and

severe headaches, which were the result of a neck injury

sustained during the accident. In an attempt to quantify

these headaches forthe purposes of assessing damages,

Alessi assigned a 5 percent permanent partial impairment rating to the plaintiff’s brain.

Alessi explained his reasoning for assigning the

impairment rating to the brain rather than the neck

or the shoulders. First, he stated that he assigned the

impairment to the brain because his treatment of the

patient focused on her headaches and did not include

treatment of her neck or shoulders. Next, he clarified

that it is often difficult to rate impairment in cases,

such as this one, where the injury is sustained in one

area of the body (neck) but where the pain manifests

itself in another area (head). He also noted that the

5 percent permanency rating represented the lowest

possible rating he could have assigned. Finally, Alessi

clarified that the impairment rating to the brain was

solely related to the plaintiff’s headaches and was in

no way indicative of any cognitive loss.

Alessi readily admitted that the impairment rating

did not follow the American Medical Association Guidelines to the Evaluation of Permanent Impairment (AMA

guidelines). He explained his reasoning for deviating

from the AMA guidelines as twofold: first, the guidelines

fail to provide adequate direction for rating brain injuries2 and second, the guidelines would have exaggerated

the plaintiff’s injuries by recommending that Alessi rate

both the plaintiff’s head and neck.3

Prior to trial, the defendant sought to preclude

Alessi’s impairment rating testimony on the ground that
it pertained to the brain and not to the neck or the

spine. On August 31, 2012, the defendant filed a motion

in limine, seeking to preclude the testimony. Within the

motion in limine, the defendant conceded that ‘‘[c]ertainly, the medical treatment of the plaintiff and her

condition and prognosis are valid scientific subjects

within the expertise of her treating physician. However,

Alessi’s testimony fails the second requirement that the

scientific evidence fits the case in which itis presented.’’

The defendant argued that an impairment rating of the

brain was ‘‘illogical’’ when the plaintiff alleged injuries

to her neck and shoulders.

On September 28, 2012, the court heard arguments

on the motion in limine. The court heard oral argument

from both the defendant’s and the plaintiff’s counsel.

The court also considered arguments made in the defendant’s motion, as well as in the plaintiff’s memorandum

of law in opposition to the motion. In addition, prior

to the hearing, the court reviewed the transcript of

Alessi’s deposition testimony. Upon reviewing the information before it, the court concluded that Alessi was

an expert whose testimony was reliable and relevant.

The court also determined that any potential jury confusion with regard to the impairment rating of the brain

would be settled through cross-examination and proper

jury instruction. As a result, the court denied the defendant’s motion in limine and admitted the impairment

testimony at trial.4

We first set forth the applicable standard of review

and legal principles governing our analysis of this claim.

‘‘[T]he trial court is vested with wide discretion in

determining the admissibility of evidence. . . .

Because a trial court’s ruling under Porter involves the

admissibility of evidence, we review that ruling on

appeal for an abuse of discretion.’’ (Internal quotation

marks omitted.) Milton v. Robinson, 131 Conn. App.

760, 770, 27 A.3d 480 (2011), cert. denied, 304 Conn.

906, 39 A.3d 1118 (2012).

‘‘In State v. Porter, supra, 241 Conn. 57, our Supreme

Court adopted the test for determining the admissibility

of scientific evidence set forth in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.

2786, 125 L. Ed. 2d 469 (1993). In so doing, our Supreme

Court noted two threshold requirements to the admissibility of scientific evidence. First, that the subject of

the testimony must be scientifically valid, meaning that

it is scientific knowledge rooted in the methods and

procedures of science . . . and is more than subjective

belief or unsupported speculation. . . . This requirement establishes a standard of evidentiary reliability

. . . as, [i]n a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.

. . . Second, the scientific evidence must fit the case

in which it is presented. . . . In other words, proposed

scientific testimony must be demonstrably relevant to
the facts of the particular case in which it is offered, and

not simply be valid in the abstract.’’ (Citation omitted;

emphasis omitted; internal quotation marks omitted.)

State v. Haughey, 124 Conn. App. 58, 71, 3 A.3d 980,

cert. denied, 299 Conn. 912, 10 A.3d 529 (2010).

The defendant argues that Alessi’s impairment rating

testimony required a validity assessment under Porter

because it was not based on the AMA guidelines.

Although the defendant concedes that ‘‘the process of

assigning permanency ratings to injured persons for the

purposes of litigation is commonplace and ordinarily

accepted,’’ he maintains that a validity assessment must

be conducted when those ratings are not based on ‘‘any

scientific or peer reviewed text . . . .’’ We agree that

a preliminary assessment is required to determine the

validity of an expert’s underlying methodology. We conclude, however, that the court’s actions constituted a

proper validity assessment under the requirements of

Porter.

In Porter and its progeny, our appellate courts emphasized the need for flexibility in determining the reliability of scientific evidence, urging trial courts to make

assessments on a case-by-case basis. See State v. Porter,

supra, 241 Conn. 146 (‘‘‘[t]he inquiry . . . is, we emphasize, a flexible one’ ’’); see also State v. Griffin, 273

Conn. 266, 276, 869 A.2d 640 (2005) (acknowledging

that Porter requires flexible, case-by-case approach);

Hayes v. Decker, 263 Conn. 677, 685 n.2, 822 A.2d 228

(2003) (trial court found to be in error for applying

Porter inquiry mechanically). Among the factors that

courts should consider are ‘‘general acceptance in the

relevant scientific community . . . whether that methodology has been tested and subjected to peer review

. . . the prestige and background of the expert witness

supporting the evidence . . . [t]he extent to which the

scientific technique in question relies on subjective

interpretations and judgments by the testifying expert,

rather than on objectively verifiable criteria . . .

whether a testifying expert can present and explain the

data and methodology underlying his or her scientific

testimony in such a manner that the fact finder can

reasonably and realistically draw its own conclusions

therefrom . . . [and] whether the scientific technique

underlying the proffered expert testimony was developed and implemented solely to develop evidence for

in-court use, or whether the technique has been developed or used for extrajudicial purposes.’’ (Citations

omitted; internal quotation marks omitted.) State v. Porter, supra, 84–86; id., 86–87 (recognizing that ‘‘[t]he

actual operation of each factor . . . depends greatly

on the specific context of each case’’).

With this standard in mind, we cannot conclude that

the court failed to serve its gatekeeping function under

Porter. On September 28, 2012, the court held a short

hearing on the morning of trial before it ruled on the
motion in limine. Prior to the hearing, the court had

reviewed the transcript of Alessi’s deposition testimony, which would later be shown to the jury in lieu

of live testimony. The deposition testimony detailed

Alessi’s extensive background as a neurologist. Alessi

testified that he was a board certified neurologist who

was licensed to practice medicine in Connecticut, New

York, and Michigan. He testified that he served as the

director of a stroke program at William W. Backus Hospital in Norwich, and had previously served as the hospital’s chairman of neurology from 2010 until 2012. He

also testified that he was an associate clinical professor

in neurology at the University of Connecticut. He stated

that he had previously served as an expert witness

in other trials; having testified in court ‘‘about twenty

times’’ throughout his career. On the basis of these

statements, the court reasonably could have concluded

that Alessi had the expertise and background to support

his testimony. Additionally, the court reasonably could

have found that Alessi would be capable of explaining

his findings to the jury in a way that would allow it to

reach an independent conclusion.5

During his deposition, Alessi explained the methodology underlying his conclusions. First, Alessi’s testimony

revealed that the impairmentrating was based primarily

on his direct observation, treatment, and oversight of

the plaintiff. The plaintiff became a patient of his on

December 1, 2008, and continued as a patient through

June, 2009. At the first medical appointment, Alessi

conducted a neurological examination, which consisted

of a mental status evaluation, cranial nerve testing,

motor examination, deep tendon reflexes, and a sensory

and a musculoskeletal examination. During Alessi’s

treatment, he prescribed physical therapy treatment for

the plaintiff and oversaw her progress while she

attended physical therapy sessions. Alessi also prescribed the plaintiff Prednisone to treat inflammation

of the muscles. The record thus indicates that Alessi’s

methods were ‘‘developed or used for extrajudicial purposes’’ rather than having been ‘‘implemented solely to

develop evidence for in-court use . . . .’’ State v. Porter, supra, 241 Conn. 86.

Alessi also based his conclusions on his review of

the plaintiff’s other medical records. During his treatment of the plaintiff, he had reviewed an MRI that was

conducted on the plaintiff’s brain immediately after the

accident. He also had access to all of the plaintiff’s

hospital, chiropractic, and physical therapy records. On

the basis of this information, he concluded that his

opinions were consistent with the findings of the plaintiff’s other health care providers. This consistency

between Alessi and other medical professionals served

as the equivalent of a ‘‘peer review’’ under Porter, and

provided another factor weighing in favor of admitting

his testimony. Id., 86 (whether methodology has been

tested or subjected to peer review is important factor
in determining reliability).

Finally, Alessi spent time at his deposition describing

impairment ratings, including the process he used in

developing the plaintiff’s rating. He testified that an

impairment rating is ‘‘an estimate based on the history

and physical examination of what [the plaintiff’s]

impairment will be based on the injury . . . at that

time.’’ He then went on to explain that when he rates

impairments, he typically follows the fifth edition of

the AMA guidelines.6

In this particular case, however, he

based the rating on his own knowledge and experience

because the guidelines did not give proper guidance for

this type of injury.7 Alessi further described that his

reasoning for rating the brain was his belief that the

source of the impairment was the headaches, rather

than the damage to the muscles in the plaintiff’s neck.

He stated that in this case, where damage to the neck

caused pain to radiate up to the head, the guidelines

would have recommended that he rate impairment to

both the neck and the head. He further stated that the

guidelines fail to provide specific reference charts for

ratings of the brain. The court found this explanation

sufficient and the underlying testimony reliable.

On the basis of this information, the court reasonably

could have concluded that Alessi’s methodology, which

was based on his experience treating the plaintiff, his

review of her medical records, and the guidance of the

AMA guidelines, was reliable. The court also could have

concluded that Alessi was capable of presenting his

methodology in such a way ‘‘that the fact finder can

reasonably and realistically draw its own conclusions

therefrom.’’ State v. Porter, supra, 241 Conn. 86.

In concluding that the court properly admitted

Alessi’s testimony, we must also acknowledge an

important limitation under Porter, which is that courts

must review only the underlying methodologies of the

expert’s conclusions, and not the conclusions themselves. Id., 83. In the present case, when the defendant

disputed Alessi’s impairment rating, he was challenging

the expert’s conclusions and notthe underlying methodology. Although the defendant may argue that it would

have been more appropriate to have rated impairment

of the neck or the cervical spine, a trial court does not

have the power to preclude testimony on the basis

of its opinion that there are ‘‘better grounds for an

alternative conclusion.’’ Hayes v. Decker, supra, 263

Conn. 686 (trial court improperly found expert’s testimony inadmissible based on conclusion court drew

from that testimony and not its underlying methodology). For example, in State v. Pappas, 256 Conn. 854,

866–67, 776 A.2d 1091 (2001), the defendant sought to

exclude mtDNA analysis of hair recovered from the

scene of a robbery. Our Supreme Court concluded that

the mtDNA analysis process was valid and reliable, and

that any issues regarding contamination of the sample
would bear solely on the weight of the evidence, rather

than its admissibility, at trial. Id., 880–81. Similarly, we

conclude that Alessi’s impairment rating was based on

reliable scientific and medical methods of treatment.

Therefore, any challenge regarding the actual application of the impairment rating must bear solely on the

weight of the evidence.

Finally, we find no error in the court’s determination

that it could assess the reliability of expert testimony

without the need for a prolonged and detailed Porter

hearing. The court understoodAlessi’s extensive knowledge and personal experience with the plaintiff, as well

as his ability to explain his methods and reasoning. We

further note that because Alessi’s testimony was shown

to the jury by video, the court was in the unique position

to review the actual trial testimony when evaluating its

reliability. On the basis of the facts and procedural

history of this case, we cannot say that the court abused

its discretion when it made the preliminary determination to admit Alessi’s testimony under Porter.

B

Alternatively, the defendant claims that the impairment testimony was inadmissible because it was irrelevant and unduly prejudicial. As the defendant did not

object to the testimony on this basis at trial, we do not

reach the merits of these claims.

The standard for the preservation of a claim alleging

an improper evidentiary ruling at trial is well settled.

‘‘This court is not bound to consider claims of law not

made at the trial. . . . In order to preserve an evidentiary ruling for review, trial counsel must object properly. . . . In objecting to evidence, counsel must

properly articulate the basis of the objection so as to

apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate

basis for a reviewable ruling. . . . Assigning error to

a court’s evidentiary rulings on the basis of objections

never raised at trial unfairly subjects the court and the

opposing party to trial by ambush.’’ (Citations omitted;

internal quotation marks omitted.) State v. Gonzalez,

272 Conn. 515, 539–40, 864 A.2d 847 (2005); see Practice

Book § 5-5. While it is true that evidence admissible

under Porter is still subject to all other rules regarding

the admissibility of evidence,8 we are not bound to

consider claims raised for the first time on appeal. State

v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982).

A review of the trial transcript reveals that there were

no direct objections to Alessi’s testimony regarding the

5 percent permanent partial impairment rating given to

the brain.9 Furthermore, a review of the record confirms

that questions of relevancy or undue prejudice were

not raised in the defendant’s motion in limine or in

any other pretrial motion. Trial counsel is under an

obligation to distinctly raise questions of law on the
record prior to closing argument or in a written trial

brief. See Practice Book § 5-2. As these claims were

not properly preserved according to our rules of procedure, we do not address the merits of the claims on

appeal. See Practice Book § 60-5.

II

The defendant additionally claims thatthe court erred

by failing to instruct the jury properly as to the following: that the plaintiff was not claiming an injury to the

brain, that there were no cognitive deficits as a result

of the accident, and that the permanent impairment

rating applied only to her alleged neck injury. We

disagree.

We begin with the standard of review governing the

defendant’s challenge to the trial court’s jury instruction. ‘‘Our review of the defendant’s claim requires that

we examine the court’s entire charge to determine

whether it is reasonably possible that the jury could

have been misled by the omission of the requested

instruction. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the

guidance of the jury . . . we will not view the instructions as improper.(Citations omitted; internal quotation

marks omitted.) State v. Aviles, 277 Conn. 281, 309–10,

891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108,

166 L. Ed. 2d 69 (2006).

Under this standard of review, we do not find that

the court’s instructions were improper or misleading.

In reviewing the jury instructions, it is apparent that

the court took steps to avoid jury confusion on the

issue of permanency. The court provided, in relevant

part, the following instructions to the jury: ‘‘In this case,

the plaintiff’s neurologist, Anthony Alessi . . . rendered an opinion that [the plaintiff] suffered a 5 percent

permanent partial impairment to the brain, which translates to a 5 percent whole person permanent partial

impairment as a result of her headaches, which were

caused by her permanent neck injury. Dr. Alessi opined

that the plaintiff’s permanent injuries are a direct result

of the motor vehicle collision of October 20, 2006. If

you find by a fair preponderance of the evidence that

the plaintiff did suffer a permanent injury as a result

of this collision, then she should be fairly compensated

for that.’’ (Emphasis added.) These instructions properly summarized the plaintiff’s allegations by stating

that although Alessi categorized the injury as a brain

impairment, the substance of the claim was that the

plaintiff suffered from headaches as a result of an injury

to the neck. The court additionally instructed the jury

that the plaintiff claims that she suffered ‘‘injuries to

her spine, neck, back, shoulders, head and chest . . . .’’

The jury was never instructed to consider a cognitive

injury to the brain, nor was the plaintiff ever allowed

to argue such an injury at trial.
Having reviewed the court’s instructions, we find that

the charge to the jury was proper. The court’s instructions provided sufficient guidance for the jury to consider the credibility of Alessi’s testimony. It properly

tailored the instructions to identify the plaintiff’s allegations of injuries to her neck, head, and shoulders and

not as injuries to her brain. On that basis, the court’s

instructions were proper because they were correct

in law and adequately relayed the substance of the

defendant’s requested instructions.

III

Finally, the defendant claims that the court failed to

consider the effect of Alessi’s testimony on the jury’s

award of noneconomic damages when it denied the

defendant’s motions to set aside the verdict and for

remittitur. We disagree.

‘‘The standard of review governing our review of a

trial court’s denial of a motion to set aside the verdict

is well settled. The trial court possesses inherent power

to set aside a jury verdict which, in the court’s opinion,

is against the law or the evidence. . . . [The court]

should not set aside a verdict where it is apparent that

there was some evidence upon which the jury might

reasonably reach their conclusion, and should not

refuse to set it aside where the manifest injustice of

the verdict is so plain and palpable as clearly to denote

that some mistake was made by the jury in the application of legal principles . . . . Ultimately, [t]he decision

to set aside a verdict entails the exercise of a broad

legal discretion . . . that, in the absence of clear abuse,

we shall not disturb.’’ (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278

Conn. 692, 702, 900 A.2d 498 (2006).

The standard governing review of motions forremittitur is similarly that of an abuse of discretion. See Johnson v. Pike, 136 Conn. App. 224, 228, 46 A.3d 191 (2012).

‘‘The court’s broad power to order a remittitur should

be exercised only when it is manifest that the jury [has]

included items of damage which are contrary to law,

not supported by proof, or contrary to the court’s

explicit and unchallenged instructions.’’ (Internal quotation marks omitted.) Saleh v. Ribeiro Trucking, LLC,

303 Conn. 276, 281, 32 A.3d 318 (2011). The relevant

inquiry is whether the verdict falls within the necessarily uncertain limits of fair and reasonable compensation

or whether it so shocks the conscience as to compel

the conclusion that it was due to partiality, prejudice

or mistake. Id.

On the basis of our review of the record, we conclude

that the court did not abuse its discretion when it denied

the defendant’s motions. In its memorandum of decision, the court explained that the jury verdict was reasonably supported by the facts and law. The court stated

that Alessi’s testimony, as well as his responses to cross-
examination, carefully explained his findings, leaving

little room for confusion as to the basis for an impairment rating of the brain. Furthermore, our review of

the transcript confirms that additional evidence of

impairment was provided through the testimony of

three of the plaintiff’s family members.10 Each family

member described the plaintiff’s active lifestyle, the

physical demands of her profession, as well as how her

life has been impacted by her injuries. Additionally,

evidence was presented that the plaintiff was a young

individual who could be expected to live with her injuries for fifty-four years.11 Under these facts, we do not

find a clear and palpable mistake in the jury’s conclusion, nor do we find that the jury verdict was unreasonable or unfair. Therefore, the court’s rulings denying

the defendant’s motions to set aside the verdict and for

a remittitur were not an abuse of discretion.12

The judgment is affirmed.

In this opinion the other judges concurred.

1 Alessi’s trial testimony was video recorded prior to trial. The deposition

video, including direct examination and cross-examination, was presented

to the jury on October 1, 2012.

2 Alessi testified in part:

‘‘[The Defendant’s Counsel]: With respect to the 5 percent rating of the

brain, is it fair to say that you didn’t actually go to an AMA guidebook and

come up with that number?

‘‘[Alessi]: No.

‘‘[The Defendant’s Counsel]: Unlike the cervical spine ratings, there are

no specific charts that you would use when you rate the brain.

‘‘[Alessi]: That’s why I didn’t use the AMA guidelines.’’

3 At Alessi’s deposition, he stated: ‘‘For the neck and the headaches. The

two are so—so many people try to compartmentalize this, and that’s probably

the problem we’re getting into here, is that you can’t necessarily compartmentalize the problem to the neck or the head. And that’s where these

permanency guidelines fall apart. . . . I guess I could have rated two levels

and given her a bigger rating, but I thought that it was more judicious to

just give her one rating based on the brain.’’

At trial, Alessi testified: ‘‘With a rating, it’s kind of either/or; some people

will rate both things, rate the neck and rate the brain. I don’t think that’s

fair. I think, in this situation, you rate either/or, so I chose to rate the brain,

although I guess I could have rated the cervical spine as the origin; you can

go back and forth. Some practitioners will come up with a much higher

rating based on the neck and brain.’’

4 The court stated in relevant part: ‘‘I’ve had an opportunity to review the

deposition transcript . . . . The plaintiff has a claim that she has an injury to

her neck as a result of this accident, which has caused her severe headaches,

allegedly. The doctor is not opining that she has a cognitive loss to her

brain, but rather is indicating that her neck injury is causing headaches,

which are obviously in the head. . . . He’s clearly an expert. His testimony

will clearly assist the jury in understanding what the evidence is and

determining the facts necessary to resolve this case.’’

5 Our state courts have recognized that the permanency of an injury is a

finding that can be determined by jurors without expert testimony. ‘‘This

principle is based on the recognition by Connecticut courts that jurors are

able to evaluate for themselves the testimony of the plaintiff, as well as the

nature and duration of the injury, the likelihood of its continuance into the

future, and the lack of total recovery by the time of trial. . . . If a jury has

the opportunity to appraise the condition of a plaintiff and its probable

future consequence, an award of damages for permanentinjury and forfuture

pain and suffering is proper.’’ (Citations omitted.) Parker v. Supermarkets

General Corp., 36 Conn. App. 647, 650–51, 652 A.2d 1047 (1995).

6 At Alessi’s deposition the following examination took place:

‘‘[The Defendant’s Counsel]: What guide did you use to come up with

your rating?

‘‘[Alessi]: The AMA guidelines. I still use the fifth edition.’’
7 At the deposition, Alessi described his reasoning for deviating from the

AMA guidelines:

‘‘[The Defendant’s Counsel]: Did you actually open the book and refer to

a section to come up with this rating or was it just, at this point, based on

your experience?

‘‘[Alessi]: I usually do, but I think in this case it may have been based on

experience because it’s so difficult to rate the brain. If I were rating [the]

cervical spine, there are specific charts and tables available.’’

During the trial, Alessi testified about his reasoning for rating the brain

and not the neck or spine:

‘‘[The Plaintiff’s Counsel]: Doctor, why did you give her an impairment

of the brain?

‘‘[Alessi]: Well, because the headaches were the more specific problem

that she was facing, and it seemed like—it did provide the greatest debility

overall in terms of impairment and getting in the way of her ability to

function.

‘‘[The Plaintiff’s Counsel]: But, the headaches were a result of the neck

injury.

‘‘[Alessi]: Yes.’’

8 See State v. Porter, supra, 241 Conn. 90 (evidence meeting threshold

inquiry of Porter may still be excluded for ‘‘failure to satisfy other rules

of evidence’’).

9 The defendant’s counsel did, in fact, object to two questions. First,

the defendant objected to Alessi’s testimony regarding whether the AMA

considered a brain impairment equal to a full body impairment. Second, the

defendant objected to Alessi’s opinion that the neck was also permanently

injured. These objections do not challenge the admissibility of the impairment testimony. Rather, the objection to the first question challenged the

admissibility of the AMA’s classification of brain impairments. The objection

to the second question challenged the ability of Alessi to testify as to the

neck injury, as his treatment of the plaintiff was limited to the head.

10 The plaintiff’s spouse, as well as her mother and father, testified to the

impact that her injuries had on her ability to work and generally enjoy life.

11 Actuarial tables used at trial indicated that a white female, age twentyseven, would have an average statistical life expectancy of 54.6 years

remaining.

12 Additionally, in part I of this opinion we held that the trial court did

not err when it admitted the challenged impairment testimony. As that

evidence was admitted properly at trial, the jury was free to weigh its

credibility and consider it in reaching its verdict. Thus, we cannot hold

that the court failed to consider errors during posttrial motions when we

previously have determined that no error existed.