Richard Ahrens v. Kathleen Ely: A Cox Cable employee collected nearly $119,000 after sustaining back injuries when his SUV was rear-ended in a traffic tie-up on Interstate 84 in East Hartford.
Plaintiff Richard Ahrens, who lives in Windsor, was westbound on I-84 a Saturday in late January 2011. It was just before noon, and Ahrens, 60, was on his way to go shopping with his girlfriend.
There was traffic up ahead, and he slowed down his SUV, a late-model Hyundai Santa Fe. In his rear-view mirror, he saw the first car behind him swerve off the road, unable to stop. The second car following him kept coming. According to Ahrens’ lawyer, Robert Peragine, of Hartford’s Trantolo & Trantolo, it was a frightening sight. "He puts his arm around his girl," said Peragine, "and says, ‘Get ready for impact!’ And boom! The car slams right into the back of his SUV."
At first, Ahrens’ main concern was for his girlfriend. Then, after the police arrived, he began to feel pain in his back, and he was rushed to a hospital. Later, Ahrens was treated for back pain by a chiropractor, who determined Ahrens had a 7 percent disability to his lumbar spine.
Ahrens sued the driver who rear-ended him, Kathleen Ely. But he neglected to mention during discovery that he had previously injured his back three times, working around his house. "He didn’t remember" those injuries, said Peragine. "When he remembered them, we revealed them to the other side, as you’re supposed to do during discovery."
Defense lawyer Cynthia Daly, of the Hartford Law Offices of Mark Gilcreast, was defending on behalf of Allstate Insurance Co. Daly emphasized Ahrens’ newly-recalled injuries, and argued that the back pain was pre-existing. "They were saying it has nothing to do with the accident — they were really harping on it," said Peragine.
Allstate’s offer was for $18,000, even though Ahrens’ medical expenses were $11,265. As the case headed toward trial, Peragine engaged in pre-trial mediation. "The judges were saying to my client and me, ‘Rob, if you can get $20,000 or $22,000 — take it and run.’ "
The facts of the matter were that the plaintiff was 60, and had multiple prior injuries, and his treating physician was a chiropractor, not an orthopedic doctor. Even getting the chiropractor’s live testimony wasn’t promising. "I was going to have the chiropractor come in and testify, but she had to have a C-section," said Peragine.
At that point he turned to Ahrens for advice. "My client said, ‘You know what? Let’s see what a jury has to say.’ "
Under a new court program, the parties agreed to dispense with individual voir dire — a unique state constitutional right treasured by many Connecticut trial lawyers. Instead, Peragine and Daly questioned the juror candidates all together, as a "box jury." For Peragine, who is also admitted in New York, it was hardly exotic.
"Every other state in the union has a box jury, and it drives me crazy when [in Connecticut] the jury selection lasts longer than the actual trial itself," he said. "You look around the rest of the United States. Everyone’s doing fine, with the box jury."
Once testimony started, Peragine was the seeming underdog, and Daly made much of the plaintiff’s prior back injuries — and bad memory. "The defense got up there and was beating him up about it," said Peragine. "If [Ahrens] said it once he said it a thousand times: ‘I’m sorry, I just forgot.’ "
Peragine brought out the prior injuries on direct examination, so it was out in the open. He then presented the story of what activities Ahrens could no longer do after the accident. "He takes pride in his house, and liked to garden. Now he can’t do yardwork, he can’t ride his motorcycle any more, because of his back."
Ahrens also has to wear a transcutaneous electrical nerve stimulation device, known as a TENS unit. "It’s a little box that you wear on your side that gives a little shock to loosen up your muscles. I got him up in front of the jury showing it was something he had to wear all the time now," said Peragine.
Peragine also called Ahrens’ next-door neighbor, who testified, "I have to mow his lawn. I have to do his fall cleaning. I have to do his snow-blowing. I have to carry the wood in for him. I never had to do this before the accident, and [Ahrens] took pride in doing this…. It’s something that’s taken away from him."
The defense pointed out that Ahrens never missed a day of work. How bad could his injury be in that light? He couldn’t afford to miss work, Peragine countered. "He worked in a warehouse. He decided to work through the pain."
In his summation, Peragine sought $18,000 for medical bills and to maintain the TENS unit for Ahrens’ 25-year life expectancy, and requested $300 a month for pain and suffering, for the next 25 years. "I said give him $90,000 for the pain and suffering, and $18,000 for the medicals and the TENS unit," said Peragine.
The jury has a short form for a defense verdict, and a longer form for a plaintiff’s verdict. When the jurors returned to the courtroom, it appeared that they had the short document. Peragine said: "I saw that and thought to myself, ‘Oh, great, I lost the case. They thought all the pain was from his prior injuries.’ "
At the defense table, Daly, also seemed to come to the same conclusion — that it was a defense verdict — "and she looked over at me," Peragine said.
But the piece of paper went up to the judge to be read out loud. New Britain Superior Court Judge Peter Weise, scrutinized it, and then said, "I need a calculator."
The jury had given Ahrens every cent that Peragine asked for – and then some. In addition to the $18,765 in medical expenses, the jury added $10,000 to the $90,000 Peregine had asked for in pain and suffering damages. The total came to $118,765.
Daly declined to comment, but on March 14 filed a post-verdict motion to set aside the verdict. •