By Thomas B. Scheffey
Law Tribune Staff Writer
For opposing counsel, it’s an increasingly bad omen when Hartford trial attorney Timothy Brignole shows up to court with an enormous fill-in-the-numbers chart.
Arguing a case to a Waterbury jury last month, Brignole and his chart secured a $250,000 jury verdict for his client’s aching back and neck. Up until then, the defense’s highest offer was only $10,000.
It wasn’t the first time Brignole’s visual aid, which he says helps track and simplify a judge’s charge on damages, has paid off. It previously aided him in winning a $1.2 million verdict for a client with a broken arm and ankle when the highest defense offer had been $150,00, he said.
Last summer, in a case against Northeast Utilities in New Britain, it worked its magic again. During closing arguments, the defense pegged personal injury damages at $350,000. Instead, after following Brignole’s damages chart, the jury returned a verdict for $2.1 million for his client, Thomas Wojiechowski, Brignole said.
Debra Gernert, his client in last month’s trial in Waterbury, suffered a 14 percent disability from an auto accident. Brignole, of Brignole, Bush & Lewis, suggested damages of $5,000 per percentage point, for a total of $70,000.
In addition, Gernert’s past pain and suffering, according to Brignole, amounted to $10,000 per year. Since the Southbury accountant had a life expectancy of 39.6 more years, Brignole suggested an annual $2,000 for future pain and suffering would be fair, amounting to $79,200 more.
He went on to paint a picture of the elements of life Gernert could no longer enjoy: whitewater kayaking, chopping wood, gardening, cross-country skiing. This “whole vision of life” that was lost should be worth $150,000, Brignole argued. He asked for a total $300,000.
His line-item chart used annual multipliers for categories of past pain and suffering, future pain based on life expectancy, disability, scarring and disfigurement, and loss of life’s enjoyment.
Brignole decided against adding up the figures during his closing remarks, a bottom-line number can startle a jury, he conceded. Instead Brignole urged the jurors to leave the final addition to their elected foreperson. “It’s simply math,” he said in an interview.
Kathleen H. Allsup represented defendant Anna Lou Platt, a Southbury landscape designer. Allsup practices at the Shelton-based Law Offices of Ida H. Pullo, staff attorneys for Encompass Insurance Co. and Allstate Insurance.
Allsup’s closing arguments did not counter Brignole’s figures and formulas. Instead of plunging into the math, she urged the jury to be reasonable. When it returned a verdict of $250,000 May 20, Allsup was unpleasantly surprised.
In mid-trial, Waterbury Superior Court Judge Paul Matasavage had suggested Encompass offer, and possibly settle, for $50,000, which it declined to do. Four days after trial, Allsup, who didn’t return two telephone calls for comment by press time, filed a motion urging Matasavage to cut down the verdict grounds it “shocked the conscience of the court.”
Brignole is opposing Allsup’s bid on grounds she never disputed the figures he used. He wrote in his May 27 objection that, if Allsup found the request shocking, she “should have made a statement about inappropriateness of the demand, or that the amount was unreasonable.” Her silence on that point, Brignole argued, served to “justify the analysis of Plaintiff’s counsel, and is a waiver of this claim now.”
Not so fast, said veteran defense lawyer Anthony V. Nuzzo, managing partner of Cheshire’s Nuzzo & Roberts, who was not involved in the case. “It’s clearly a strategic decision on the part of the lawyer,” he said.
The decision to voice – or not voice – an opinion on the amount of damages “falls within the standard of care,” for professional lawyering, added Nuzzo, who defends legal malpractice matters. If defense counsel sets a dollar value for plaintiff’s injuries, it risks “creating a floor,” and possibly raising the ultimate award, he said.
Plaintiff’s lawyer James D. Bartolini, of Hartford’s Ricassi and Davis, said it seems “preposterous, if the defense hasn’t contradicted the plaintiff’s ideas of damages, to later say the verdict is shocking-especially if it’s lower than what was suggested.”
Defense lawyers frequently belittle the plaintiff’s dollar demands, Bartolini said. “Nothing,” he added, “prevents them from preparing their own visual aids” to fight back.
Put our experience to work for you. We’ll take the time to listen to your wants and needs, and can aggressively fight to make sure those needs are met. Call Brignole, Bush & Lewis, LLC today in Hartford, CT, at 860-527-9973 to discuss your case.