      MUNN v. HOTCHKISS SCHOOL—FIRST CONCURRENCE

   McDONALD, J., concurring. With respect to the first
certified question, I join part I of the majority opinion,
which concludes that Connecticut public policy sup-
ports imposing a duty on a school to warn about or
protect against the risk of a serious insect-borne disease
when it organizes a trip abroad. I write separately with
respect to the second certified question because, while
I am compelled to agree with part II of the majority
opinion that the trial court did not abuse its discretion
in denying remittitur under the various standards we
have long articulated, it is evident to me that our current
remittitur jurisprudence is internally inconsistent and
fails to provide clear guidance as to what constitutes
an excessive verdict. Our muddled precedents are par-
ticularly problematic when noneconomic damages are
challenged. Indeed, while the damages award in the
present case shocks my conscience, our existing stan-
dard does not provide a recognized basis to conclude
that the trial court’s conclusion to the contrary was
improper. Because the parties have not challenged the
existing standards, I write in the hope that this issue
will be remedied—either legislatively or by this court—
at the earliest appropriate opportunity.
                             I
   The confusion in our remittitur jurisprudence begins
with our guidance to the trial courts that are charged
with applying it. The majority, drawing on our recent
remittitur decisions, presents as a purportedly unified
standard what a close examination reveals to be in
fact at least four distinct and potentially contradictory
standards that govern a court’s decision whether to
grant or deny a motion for remittitur: ‘‘In determining
whether to order remittitur, the trial court is required
to review the evidence in the light most favorable to
sustaining the verdict. . . . Upon completing that
review, [1] the court should not interfere with the jury’s
determination except when the verdict is plainly exces-
sive or exorbitant. . . . [2] The ultimate test which
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] influ-
enced by partiality, prejudice, mistake or corruption.
. . . The court’s broad power to order a remittitur
should be exercised [3] only when it is manifest that
the jury [has] included items of damage which are con-
trary to law, not supported by proof, or contrary to the
court’s explicit and unchallenged instructions. . . .
This court has upheld a remittitur order [4] only when
we have laid before us a very clear and striking case
of indubitable wrong, so clear and striking as to indicate
the influence of undue sympathy, prejudice or corrup-
tion on the verdict.’’ (Citation omitted; internal quota-
tion marks omitted.)
   As we previously have acknowledged, certain aspects
of these tests—whether the damages award is plainly
excessive or exorbitant, and whether it shocks the
court’s sense of justice1—are highly subjective, provid-
ing ‘‘vague guidance at best’’ to courts charged with
applying them.2 Saleh v. Ribeiro Trucking, LLC, 303
Conn. 276, 282, 32 A.3d 318 (2011). Other aspects of the
standard, by contrast, aspire to objectivity, and suggest
that an order of remittitur is appropriate only when the
court can identify some sort of articulable legal error
or when the damages awarded are without any eviden-
tiary support.
   It certainly is possible to reconcile these various
expressions of the governing legal standard. It may be,
for example, that the more objective standards flesh
out the meaning of the more subjective ones, so that
a trial court may find that an award is exorbitant or
shocking only if the court also determines that the
award arises from some identifiable jury bias or legal
error. Or it may be that we have inadvertently agglomer-
ated tests and standards that are in fact specific to
distinct types of actions or damages. It would make
sense, for instance, if an award of economic damages
could be reduced (or increased, in the case of additur)3
only when the award is unsupported by the record
evidence or has been calculated on the basis of some
legally improper methodology. Compensation for less
quantifiable noneconomic damages such as physical
pain and emotional suffering, by contrast, might be
reviewable only by a more amorphous ‘‘shocks the con-
science’’ standard. In our most recent attempt to sort
out this state’s common law of remittitur, however, we
have provided little clarity, unhelpfully holding only
that ‘‘a trial court ordering a remittitur must set forth
in the memorandum of decision clear, definite and satis-
factory reasons for so ordering.’’ Saleh v. Ribeiro Truck-
ing, LLC, supra, 303 Conn. 283. Further guidance is
necessary.
                            II
  Although it is arguably possible to reconcile the vari-
ous standards to be applied by the trial court, the same
cannot be said for the standards by which we purport
to review a trial court’s decision to grant or deny a
remittitur. The majority paradoxically notes that ‘‘the
proper standard of review of a trial court’s decision to
grant or deny a motion to set aside a verdict as excessive
as a matter of law is that of an abuse of discretion.’’
(Emphasis added; internal quotation marks omitted.)
This is precisely what prior case law has dictated. None-
theless, this oxymoronic statement of the law would
seem to subject purely legal determinations, which ordi-
narily are reviewable de novo, to a deferential and fact-
specific abuse of discretion standard of review.
    Since this peculiar iteration of the standard of review
for remittitur decisions emerged in the early 1980s,4
Connecticut’s appellate courts have struggled to apply
it in a consistent and intelligible manner. Although most
of our cases indicate that the decision to grant a remitti-
tur is a discretionary determination that is reviewable
only for clear abuse of discretion, in some instances
we have indicated or implied that we will review a
remittitur determination de novo, as a pure question of
law, or, possibly, under both an abuse of discretion
and a de novo standard. See, e.g., Buckman v. People
Express, Inc., 205 Conn. 166, 175, 176 n.10, 177, 530
A.2d 596 (1987) (stating that whether ‘‘amount of the
verdict is ‘exorbitant’ and unjust in light of all of the
evidence . . . raises a question of law,’’ and conclud-
ing, contrary to trial court and solely on basis of size
of award, that verdict was ‘‘so grossly excessive as to
shock the conscience of this court’’); Peck v. Jacque-
min, 196 Conn. 53, 72, 491 A.2d 1043 (1985) (‘‘[t]he trial
court now makes its determination as a pure question
of law’’); see also Wichers v. Hatch, 252 Conn. 174,
181–82, 745 A.2d 789 (2000) (reviewing de novo trial
court’s additur order because court had concluded ‘‘as
a matter of law’’ that it was required to increase award).
   We also have provided conflicting accounts of pre-
cisely how a trial court exercises its discretion in
determining that an award is excessive as a matter of
law. Compare, e.g., Mahon v. B.V. Unitron Mfg., Inc.,
284 Conn. 645, 665, 935 A.2d 1004 (2007) (only after
finding that award is excessive as matter of law may
court, in exercise of its discretion, reduce jury award),
with Alfano v. Insurance Center of Torrington, 203
Conn. 607, 614, 525 A.2d 1338 (1987) (if court deter-
mines that award is excessive it is required to order
remittitur, but amount remitted rests within court’s dis-
cretion) and Chapman Lumber, Inc. v. Tager, 288 Conn.
69, 110, 952 A.2d 1 (2008) (decision rests entirely within
court’s discretion).
   Finally, our cases display some confusion over
whether (1) General Statutes § 52-216a; see footnote 4
of this concurring opinion; now governs the granting
and review of all remittitur claims, or (2) whether the
common-law standard continues to govern most such
claims, with § 52-216a governing only those remittitur
decisions arising under circumstances in which a jury
is unaware of the existence of a potentially relevant
settlement or release agreement between a party and
a joint tortfeasor. Compare Bovat v. Waterbury, 258
Conn. 574, 599, 783 A.2d 1001 (2001) (‘‘[t]he express
language of § 52-216a suggests that the statute applies
solely to actions in which there are, or could be, joint
tortfeasors’’), with Saleh v. Ribeiro Trucking, LLC,
supra, 303 Conn. 281 (reviewing remittitur pursuant
to § 52-216a despite absence of any joint tortfeasors,
release, or settlement agreement); see also Wichers v.
Hatch, supra, 252 Conn. 186–87 (statute codifies com-
mon law of additur and remittitur).
                            III
   The lack of clear and consistent standards for the
review of excessive jury awards, particularly with
respect to noneconomic damages, is troubling on many
levels. Neither the defendant, The Hotchkiss School,
nor the insurers that underwrite the risks of schools
similarly situated to the defendant that offer study
abroad programs, possibly could have anticipated the
magnitude of the verdict in the present case. The unfor-
tunate consequences that may flow from the uncer-
tainty created thereby include, among others,
significantly increased premiums or policy exclusions
for noneconomic damages, either of which might dis-
courage schools and other organizations from offering
such trips, which are broadly viewed as a beneficial
educational and social experience.
   The lack of clear and definite standards also is worri-
some in light of the legal scholarship suggesting that
civil damages awards may be tainted by socioeconomic
and racial disparities. See, e.g., A. Chin & M. Peterson,
‘‘Deep Pockets, Empty Pockets: Who Wins in Cook
County Jury Trials,’’ Institute for Civil Justice (Rand
Corp. 1985) pp. v, viii, 29, 38–40 (reviewing 9000 civil
jury verdicts in Illinois and concluding that race had
‘‘a pervasive influence on the outcomes,’’ with black
plaintiffs receiving substantially smaller awards than
white plaintiffs for comparable injuries); see also Mar-
tin v. Charleston Area Medical Center, 181 W. Va. 308,
312, 382 S.E.2d 502 (1989) (‘‘it is well documented that
some jury awards are affected by the race of the plain-
tiff’’). I am not aware of any empirical evidence that
such disparities are present in Connecticut’s civil justice
system. Nor do I have any objective basis to conclude
that the virtually unprecedented award in the present
case would have been lower if the plaintiff Cara L.
Munn5 had been a member of a family of more modest
means or of a historically disadvantaged minority
group. Nevertheless, I could more readily comprehend
the monumental verdict in this case if we had more
objective standards by which to judge the excessiveness
of a noneconomic damages award, standards that leave
less space for biases, whether explicit or implicit, to
manifest.
                            IV
  Ultimately, if I were to review the damages award in
the present case de novo, I likely would find that the
award of $31.5 million in noneconomic damages so
shocks my sense of justice as to compel the conclusion
that the jury must have been motivated by sympathy
for the plaintiff. I do not mean in any way to minimize
the tragic and life altering injuries that the plaintiff has
sustained. There is clear evidence of profound loneli-
ness. She suffers the debilitating effects that often result
when one has a visible disability. The prime of her youth
is lost to her, and many of her childhood dreams are
unattainable, or at least appear to be at this point in
time.
   At the same time, I cannot ignore the fact that juries
frequently award noneconomic damages that are orders
of magnitude lower to plaintiffs whose injuries are, by
any objective standard, at least as grievous: individuals
who spend each day of their lives in excruciating pain,
or whose injuries leave them incapable of even the
most basic forms of self-care and human interaction.
Although much has been taken from the plaintiff, much
abides. On the basis of testimony to the jury at trial, the
plaintiff can still undertake travel, pursue her studies,
engage in exercise, seek work, and play some sports.
Although the plaintiff’s suffering is substantial, the jury
in the present case was not presented with any struc-
tured basis, or expert testimony, or quantitative evi-
dence of any sort that would have led them to the $31.5
million figure or that reveals any nexus whatsoever
between the plaintiff’s noneconomic injuries and this
virtually unprecedented award. See Munn v. Hotchkiss
School, 795 F.3d 324, 336 (2d Cir. 2015).
   I return to where I began. Notwithstanding the unten-
able legal foundation on which we review these things,
on the basis of our (internally inconsistent) precedents
as they presently stand, I am compelled to conclude
that the trial court did not abuse its discretion in denying
remittitur in this case. The parties have not asked us
to clarify our remittitur jurisprudence at this time, nor
have they asked us to reconsider our oft-stated position
that the denial of a motion for remittitur is, in most
instances, reviewable only for abuse of discretion.
Accordingly, because I perceive nothing in the record
that would compel the conclusion that the United States
District Court for the District of Connecticut abused
its discretion in denying the defendant’s motion, I agree
with the majority that the answer to the second certified
question is ‘‘no.’’ If the legislature is not inclined to
provide further guidance, however, then I trust that we
will address these issues in due course.
  1
      We have indicated that the terms ‘‘ ‘shocks the sense of justice’ ’’ and
‘‘ ‘shocks the conscience’ ’’ may be used interchangeably in this context.
Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 279 n.6, 32 A.3d 318 (2011).
    2
      If the virtually unprecedented $31.5 million noneconomic damages award
in the present case is not so shocking as to require remittitur, for example,
one wonders on what basis a reviewing court could conclude that an award
of $100 million, or $500 million, is too much. At oral argument, the counsel
for the plaintiff Cara L. Munn volunteered that he would not trade places
with her even for $1 billion. If that is the only check on the magnitude of
unquantifiable noneconomic damages, then I fear that such awards are,
effectively, unreviewable.
    3
      A further question that may need to be addressed in the future is whether
the same standards govern a trial court’s decision to increase and to decrease
a jury verdict. Although many of the considerations are no doubt the same,
our state constitution may place greater restrictions on additur (which
awards to a plaintiff damages not authorized by the jury) than on remittitur
(which merely reduces some portion of the authorized damages). See gener-
ally Dimick v. Schiedt, 293 U.S. 474, 486–87, 55 S. Ct. 296, 79 L. Ed. 603
(1935) (applying federal constitution).
    4
      The language at issue traces its origins to a 1982 public act. Prior to
1982, the authority of the trial court to order a remittitur derived both from
the court’s inherent common-law authority to supervise the trial process;
Buckman v. People Express, Inc., 205 Conn. 166, 174, 530 A.2d 596 (1987);
Baldwin v. Porter, 12 Conn. 473, 485 (1838); and from General Statutes § 52-
228 and the associated rules of practice, Practice Book §§ 16-35 and 17-3.
During that period, our cases generally recognized that (1) the trial court
has ‘‘broad legal discretion’’ to grant or deny a motion for remittitur, (2)
such discretion, however, is not unfettered, (3) appellate tribunals review
a trial court’s ruling on a motion for remittitur for a ‘‘clear abuse of . . .
discretion,’’ and (4) ‘‘[t]he proper test to be applied is to determine whether
the award of damages falls somewhere within the necessarily uncertain
limits of fair and reasonable compensation in the particular case, or whether
the verdict so shocks the sense of justice as to compel the conclusion that
the jury were influenced by partiality, prejudice, mistake or corruption.’’
(Internal quotation marks omitted.) Lee v. Lee, 171 Conn. 1, 3, 368 A.2d
11 (1976).
    In 1982, the legislature amended General Statutes (Rev. to 1981) § 52-
216a, which barred a civil jury from being informed of the existence of a
settlement or release agreement involving a joint tortfeasor but vested the
trial court with discretion to reduce the verdict by the amount of the settle-
ment/agreement, in response to a decision by this court concluding that
the trial court’s unfettered discretion to reduce the verdict impermissibly
intruded on the constitutional role of the jury. See Seals v. Hickey, 186
Conn. 337, 350–53, 441 A.2d 604 (1982); see also Peck v. Jacquemin, 196
Conn. 53, 69, 491 A.2d 1043 (1985). Number 82-406, § 3, of the 1982 Public
Acts eliminated the discretionary language and replaced it with language
permitting remittitur or additur if the verdict is ‘‘excessive as a matter of
law’’ or ‘‘inadequate as a matter of law,’’ respectively. The expansive language
and limited legislative history of the amendment raised the question of
whether the legislature intended not only to address the concerns identified
in Seals with respect to joint tortfeasor situations but to limit more generally
the discretion of the trial courts to order remittiturs. The substantive legisla-
tive history of the amendment is limited to a brief statement by its cosponsor,
Representative Alfred J. Onorato:
    ‘‘What this amendment would do or attempt to do is to make Connecticut
law consistent with the law in other states, and on a federal level in the
determination of jury verdicts.
    ‘‘Right now in Connecticut, whether a verdict is set aside by the court or
whether remittitur is added, or whether there’s an additur is in the discretion
of the court.
    ‘‘What this amendment would do would be to put those same safeguards
on it that are in other states and are in the federal court system, that the
only time a remittitur or an additur would be practical is when the court
rules as a matter of law that the verdict is either excessive or inadequate.
That’s what this amendment would do. It would take the discretion out,
and [the court] would have to find as a matter of law that the verdict was
out of balance one way or the other.’’ (Emphasis added.) 25 H.R. Proc., Pt.
19, 1982 Sess., pp. 6177–78.
    Although the legislative history suggested an intent to bring Connecticut’s
law of remittitur into conformity with that of the federal courts and other
states, my research indicates that many jurisdictions afforded their trial
courts broad discretion in these matters at that time, and also that there
was no single prevailing standard governing remittitur outside of Connecti-
cut. See generally S. Cravens, ‘‘The Brief Demise of Remittitur: The Role of
Judges in Shaping Remedies Law,’’ 42 Loy. L.A. L. Rev. 247, 250 (2008)
(‘‘There is not tremendous consistency in the versions of remittitur employed
in various state court systems across the country. . . . While wording of
the standards may vary, the decision whether to grant a remittitur is generally
committed to the sound discretion of the trial court.’’); I. Sann, ‘‘Remittiturs
(and Additurs) in the Federal Courts: An Evaluation with Suggested Alterna-
tives,’’ 38 Case W. Res. L. Rev. 157 (1987) (canvassing federal jurisprudence);
see also I. Sann, supra, 183 (‘‘[t]he line drawn by courts in such cases has
varied from court to court and from case to case’’); I. Sann, supra, 187
(‘‘[s]ome judges . . . seem to grant remittiturs in any case in which the
judge disagrees with the verdict’’). Accordingly, it is difficult to determine
whether, in continuing to treat most remittitur decisions as discretionary
matters, we have disregarded the will of the legislature as expressed explic-
itly in General Statutes § 52-216a.
   5
     Munn’s parents, Orson D. Munn III and Christine Munn, were also named
as plaintiffs in this matter. For simplicity, all references herein to the plaintiff
are to Cara L. Munn.
