Opinion
NNHCV146051447S
02-06-2017
Elisa Malerba v. Kourtney Betkowski
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO SET ASIDE AND FOR ADDITUR [#117.00]
Steven D. Ecker, Judge.
Plaintiff Elisa Malerba moves to set aside the verdict as to damages only, and for additur, after a jury returned a verdict awarding her $15,000.00 for personal injuries sustained in an automobile collision. Malerba argues that the jury improperly failed to compensate her for medical expenses relating to the back injuries caused by the collision. The irrationality of the jury's verdict, according to plaintiff, is apparent from the fact that it awarded damages for injuries to her neck arising from the same collision. Plaintiff contends that there is no evidentiary basis for treating the two injuries differently under the circumstances of this case. The court agrees.
The jury has been called " a little parliament, " Patrick Devlin, Trial By Jury 164 (1956), and the comparison is apt. It is a deliberative body of constitutional status. The jury, as a political institution, displays both the genius and occasional imperfection found in the other bedrock institutions of our democratic state. Indeed, Winston Churchill's famous observation about democracy might easily be restated to describe the jury system: it is neither perfect nor all-wise, but it is better than any other means yet developed for dispensing justice. Juries are fallible, but so are judges, and we have chosen, as a matter of constitutional faith, to abide by the decree of the jury.
There are exceptions. Rare occasions arise when a judge will step in, once a jury has spoken, to modify or even set aside the verdict. This is serious business and should never be done casually; it should rarely be done at all. The jury right is meaningless if it is honored only when the presiding judicial officer happens to agree with its verdict. Arguably, the virtue of judicial restraint is even more important in this context than any other, because the jury, unlike the legislative or executive branches if subject to perceived judicial overreach, has no way to defend itself against judicial encroachment. Yet there must be a place for judicial review of jury verdicts. A trial judge is not a potted plant. The jury speaks for a system of justice larger than itself, and therefore its verdict must reflect, at the very least, the minimal features of an acceptable outcome if it is to be ratified as a final judgment of the court.
Standards have been developed to define and delimit the court's power to set aside a jury verdict under General Statutes § 52-228b. Those standards have been usefully summarized:
The trial court possesses inherent power to set aside a jury verdict [that], in the court's opinion, is against the law or the evidence . . . [The trial court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside [when] 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 . . . (Citations omitted; internal quotation marks omitted.) Auster v. Norwalk United Methodist Church, 286 Conn. 152, 159, 943 A.2d 391 (2008).
The standards for a motion to set aside the verdict and a motion for additur are identical. Hunte v. Arnica Mutual Ins. Co., 68 Conn.App. 534, 541, 792 A.2d 132 (2002). " A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." Marchell v. Whelchel, 66 Conn.App. 574, 582, 785 A.2d 253 (2001). " The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice. Only under the most compelling evidence may the court set aside a jury verdict because to do so interferes with a litigant's constitutional right in appropriate cases to have issues of fact decided by a jury. The amount of damages to be awarded is a matter particularly within the province of the jury." (Citations omitted; internal quotation marks omitted.) Hunte v. Amica Mutual Ins. Co., supra, 541-42 . . .
The trial court should examine the evidence to determine whether the jury reasonably could have found that the plaintiff had failed in his or her proof on a given issue. The decision should be made, not on the assumption that the jury made a mistake, but rather, on the supposition the jury did exactly what it intended to do. Withers [ v. Hatch, 252 Conn. 174, 188-89, 745 A.2d 789 (2000)] . . .DiPalma v. Rapoza, No. CV146045827S, 2016 WL 5108113, at *2-3 (Conn.Super.Ct. Aug. 12, 2016).
Another formulation of the test has been stated this way: " The only practical test to apply to this verdict is whether the 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." Mather v. Griffin Hosp., 207 Conn. 125, 139, 540 A.2d 666 (1988) (citations omitted). Or, alternatively: " [The Court] do[es] not sit as a thirteenth [or seventh] juror . . . and cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." State v. Tomasko, 238 Conn. 253, 258, 681 A.2d 922 (1996) (inner quotation marks and citations omitted).
The undersigned judge occasionally has been puzzled, even disappointed, by jury verdicts in the past. Before now, however, it has never granted a post-verdict motion seeking relief from a verdict. We have a jury system, and when parties in a civil case take their case to a jury, they ordinarily must live with the jury's verdict, whether favorable or not. Judges cannot pick and choose to suit their own sensibilities; justice need not always be done precisely as the judge would fashion it. The unavoidable fact remains that judges must be able to sleep at night. In part, this requires a relatively high tolerance for discomfort. But the law recognizes that a judge cannot be forced to bless every single jury verdict delivered under his or her watch, regardless of its basis in evidence and law. A court therefore is not required to enter judgment on a verdict that shocks that judge's conscience. If the verdict causes the judge to recoil to such an extreme extent, even after viewing the evidence in a light most favorable to sustaining the verdict, then the judge is permitted, perhaps even obligated, to intervene.
Applying the controlling legal standard, this court has concluded that the verdict as rendered by the jury in the present case cannot stand. Plaintiff was forty-eight years old at the time of the underlying incident, June 13, 2014. Her automobile was at a full stop on Amity Road when it was struck from behind with tremendous force by defendant's vehicle. Defendant, traveling at forty-five miles per hour, had become distracted and looked away. She failed until the last moment to see plaintiff's car stopped ahead in traffic. The impact was sufficiently powerful that the airbags deployed in defendant's car; her vehicle was declared a total loss.
Plaintiff herself, fortunately, fared better than defendant's automobile. She was not taken to the hospital immediately. She did, however, go to the hospital later that day with neck and back pain. The imaging studies revealed no broken bones or other serious orthopedic injuries. However, back and neck pain, and related functional limitations, soon caused plaintiff to seek out chiropractic treatment from Michael Cocco, D.C. Dr. Cocco treated plaintiff from July 2014 through June 2015 for the back pain. Plaintiff decided not to have Dr. Cocco treat her neck because she had heard " stories" about extremely serious adverse events resulting from chiropractic treatment of the cervical spine. When her neck pain did not resolve over time, plaintiff embarked on a course of conventional physical therapy with Amity Physical Therapy, LLC, beginning in early 2015. She also consulted on one occasion with an orthopedic surgeon, Eric J. Katz, M.D., for her neck problems.
According to the emergency room records, plaintiff reported " constant" back and neck pain with an intensity rating of 4 (out of 10) on the day of the accident.
Plaintiff is a nurse employed by Yale-New Haven Hospital.
Plaintiff testified at length regarding the effect of these injuries. The back and neck pain was bearable for a period of time after the accident. About ten days post-accident, however, she experienced excruciating back pain, unlike anything she had previously felt at any time in her life. Another episode of debilitating pain, which lasted for approximately ten days, occurred in November 2014. Mostly, however, plaintiff suffered (and, she reports, continues to suffer) from less intense, intermittent back and neck pain. The back pain tends to grow worse at the end of the day. Since the accident, plaintiff says that the back pain has made sleeping uncomfortable to the point that she is unable to sleep through the night. She did not have difficulty sleeping before the accident. Her ability to sit, stand, bend, and lift was also affected, at least for a period of time. These limitations caused difficulties for plaintiff at her job because she worked on the busy day-shift at Yale-New Haven Hospital in the nephrology unit, which was populated by patients requiring physically-demanding " total care." Plaintiff transferred to the night shift on the oncology unit, a less physically-taxing assignment, approximately a year after the incident.
Plaintiff's treating doctors disagreed about the permanency of her impairments. Dr. Katz, the orthopedic surgeon, assigned plaintiff a permanency rating of 7% to her cervical spine and 7% to her lumbosacral spine. Dr. Cocco, the chiropractor, concluded that no permanent impairment rating was warranted.
The jury also heard the testimony of Robert Malerba, plaintiff's husband, who corroborated the material elements of plaintiff's testimony regarding her injuries. Extensive medical records obtained from the treating care providers also corroborated the fundamental fact that plaintiff received treatment to her back (Dr. Cocco) and neck (primarily Amity Physical Therapy) for the soft-tissue damage caused by the high-impact collision at issue in the lawsuit. Dr. Cocco and Dr. Katz each submitted written reports, admitted in evidence without objection at trial, stating unequivocally that plaintiff's back and neck injuries were caused by the collision of June 13, 2014. Pl. Ex. 9 (Cocco); Pl. Ex. 12 (Katz). Neither doctor was subject to cross-examination because neither of them testified at trial. Defendant did not call any expert witnesses to rebut any of the medical evidence.
The total cost for all of plaintiff's medical care and treatment was $7,221.45. The two largest items were $3,170.00 for the physical therapy (approximately twenty sessions for neck pain), and $2,212.50 for Dr. Cocco's chiropractic treatment of plaintiff's back (eighteen chiropractic treatments over the course of approximately one year). The remaining expenses were for hospital and emergency care, diagnostic care, and physical examinations conducted by Dr. Blander (plaintiff's primary physician) and Dr. Katz, respectively, each of whom examined plaintiff regarding her complaints of pain at different times after the accident.
After a short trial, the jury awarded total damages of $15,000. The jury interrogatories reveal that the award consists of total past economic damages of $5,008.95, which represents full compensation for all medical expenses except Dr. Cocco's chiropractic treatment of plaintiff's back; the jury awarded " $0" for Dr. Cocco's care. The jury also awarded $3,491.05 for future economic damages, and $6,500 in total non-economic damages. Because there was no award for the treatment of plaintiff's back, logic dictates that the neck injury alone was the basis for the jury's damage award for (a) future medical treatment and (b) pain and suffering. In other words, the jury found that defendant was negligent, and that her negligence caused plaintiff's injury to her neck but not her back.
The jury completed written interrogatories covering negligence, causation, and damages. [Docket Entry #116.00.] With respect to damages, the jury was required to specify its award as to each care provider. The interrogatories also reflect the jury's award of future economic damages ($3,491.05) and total non-economic damages ($6,500).
The court has difficulty with this verdict in numerous respects, only one of which is directly at issue in connection with plaintiff's pending motion. The court considers the jury's assessment of total damages ($15,000) to be parsimonious. An award of five times the actual verdict would have been less surprising. In its review of the award under General Statutes § 52-228b, of course, the court cannot take into account witness credibility, but certain basic preliminary facts are noted as background. Plaintiff presented as a hard-working person whose job as an oncology nurse was well-suited to her character. The court has virtually no doubt that the automobile collision at issue has had a significant impact on plaintiff's life. In addition to the intermittent pain, plaintiff has difficulty sleeping, and, as she moves about during the day, she feels a sense of physical fragility or " vulnerability" that she never felt before. She directly attributes these problems to the condition of her back in particular. Importantly, both of her doctors opined that plaintiff sustained injuries to her back and neck as a result of the accident. No expert expressed a contrary view.
Plaintiff has not asked the court to grant relief with respect to the award of non-economic damages.
The existence of these injuries--not their degree or extent, but the fact that they actually occurred--was essentially conceded by the defense. Defense counsel, who exhibited the highest level of skill and professionalism throughout the trial of this case, never disputed that plaintiff sustained at least temporary trauma to her neck and back as a result of the collision, and never urged the jury to reject altogether plaintiff's claim for an award of damages for the medical treatment to her neck or her back. In his closing argument, defense counsel candidly told the jury, twice, that the defendant's " position [i]s that plaintiff suffered muscular injuries" in the collision, but had shown great improvement over time, and did not have any permanent impairment. The defense actually vouched for the opinion of Dr. Cocco, plaintiff's treating chiropractor, and urged the jury to credit his opinion over that of Dr. Katz, the orthopedic surgeon. Defendant's position at trial did not bind the jury, of course, but the fact that the jury rejected defendant's own concessions serves to highlight the court's concerns.
The specific opinion of Dr. Cocco relied upon by defense counsel was that plaintiff's condition did not warrant a permanency rating. The defense made no effort to suggest that any other aspect of Dr. Cocco's opinions (e.g., his opinion that the accident caused plaintiff's back injury) should be rejected or doubted. Defense counsel emphasized that Dr. Cocco, unlike Dr. Katz, had treated plaintiff for a lengthy period of time, and therefore had a strong factual basis for his opinions.
This was not a case in which the defense conceded ground easily. To the contrary, counsel contested liability to the end, even after defendant herself admitted fault in her trial testimony.
The court can find no evidentiary basis to support a finding that the collision caused plaintiff's neck pain but not her back pain. The court therefore will order an additur in the amount of Dr. Cocco's bills ($2,212.50).
The jury likely was influenced either by mistake or inappropriate emotion. The mistake would have been rooted in confusion regarding the legal significance of prior incidents of back pain reported by plaintiff in 2006, 2008 and 2013. More specifically, the jury may have declined to award plaintiff any damages for her back injury because she had sought medical care for back pain on three occasions before being struck by defendant's vehicle on June 13, 2014. But the jury cannot reasonably have concluded, without relying on sheer speculation, that plaintiff's post-collision back pain was unrelated to the collision. The fact that plaintiff previously had experienced back pain in her life does not immunize a negligent driver from the legal consequences of causing her additional back pain. There was no evidence to support the notion that plaintiff's post-collision back pain constituted an unchanged pre-existing condition. Defendant did not even argue any such theory to the jury, perhaps because it is so implausible. The evidence before the jury was that plaintiff's back had been pain-free and asymptomatic for about a year at the time of the accident. It cannot seriously be contended that the collision caused no muscular injury to her back. Again, defendant did not even argue the point.
Defendant did argue that plaintiff's back problems pre-existed the collision; that plaintiff should not be awarded significant non-economic damages for her back pain; and that the back injury was not permanent in nature. No argument, however, was made that plaintiff did not hurt her back at all in this particular incident, or that she should receive no compensation for her chiropractic treatment if defendant was found negligent.
A second possible explanation, supported by some evidence evident in the jury's other findings, may explain the jury's refusal to award any compensation for treatment of plaintiff's back: the verdict may reflect an improper emotional response to plaintiff's damages claim. Juries are told in every personal injury case that they must not be influenced by sympathy. See, e.g., Connecticut Judicial Branch Civil Jury Instructions, Instruction 2.9-1. It would seem equally important to ensure that jurors are not influenced by feelings of callousness or indifference to the pain of others. Based on the court's own observations, the verdict in this case comes perilously close to exhibiting just such an attitude. As previously noted, the $6,500 non-economic award is very low under all of the circumstances. Standing alone, that award does not shock the court's conscience, but neither does it inspire confidence. The court is quite certain that the jury took its job seriously and did not harbor any malice toward plaintiff. But well-intentioned jurors occasionally take on the role of dispensing moralisms (e.g., " keep a stiff-upper lip") instead of calculating fair, just and reasonable damages. The fact that we refer to the injury as a " soft-tissue injury" does not make it imaginary or non-compensable. Perhaps in the great scheme of things--which may be to say, when the injury is not one's own--the harm to plaintiff's back was not severe. But the injury occurred (or was aggravated), defendant's negligence caused it, and medical care was reasonably necessary to treat its effects. The corresponding medical bills are compensable.
If a jury is allowed to be " generous" in its damage award, see Bartholomew v. Schweizer, 217 Conn. 671, 688, 587 A.2d 1014, (1991), then presumably it must also be permitted to be ungenerous.
The plaintiff's motion for additur is granted in the amount of $2,212.50. Within twenty days of the date of this order, either the plaintiff or the defendant may file a rejection of the additur or a notice of appeal. See Stern v. Allied Van Lines, 246 Conn. 170, 175-83, 717 A.2d 195 (1998). If either party files a timely rejection of the additur, the motion to set aside is granted and a new trial is ordered as to damages only.
It is so ordered.