Opinion
No. 379224
May 7, 2003
MEMORANDUM OF DECISION
This was an action for personal injuries arising out of a motor vehicle accident on August 4, 2000. The plaintiff's principal claim of injury was to her low back. The plaintiff was treated by a physical therapist fourteen times for her injury between August 2000 and November 2000. She was also seen by Dr. Donald Dworkin who opined that she had a 5 percent to 6 percent permanent partial impairment of the thoracolumbar spine. The case was tried to a jury which found the defendant 51 percent negligent, found the plaintiff 49 percent comparatively negligent and awarded the plaintiff $2338 in economic damages — almost exactly half the amount claimed. The jury, however, did not award any noneconomic damages. The plaintiff has moved for an additur, claiming that in light of the award of economic damages, the jury could not have reasonably failed to award her noneconomic damages. The defendant objects.
"`Economic damages' means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages . . ." General Statutes § 52-572h (a) (1).
"`[N]oneconomic damages' means compensation determined by the trier of fact for all nonpecuiary losses including; but not limited to, physical pain and suffering and mental and emotional suffering . . ." General Statutes § 52-572h (a) (2).
In filing a motion for additur, a litigant seeks to set aside the verdict of the jury. General Statutes § 52-228b. The standard for a motion for additur is identical to the standard for a motion to set aside the verdict. See Hunte v. Amica Mutual Ins. Co., 68 Conn. App. 534, 541, 792 A.2d 132 (2002).
"`The trial court's function in setting aside a verdict [is] well settled . . . The trial court should not set a verdict aside where there was some evidence upon which the jury could reasonably have based its verdict, but 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 the legal principles . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . ." Purzycki v. Fairfield, 244 Conn. 101, 106-07, 708 A.2d 937 (1998).
"[A]lthough the trial court has a broad legal discretion in this area, it is not without its limits . . . The evidential underpinnings of the verdict itself must be examined. Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached . . . [I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will." (Internal quotation marks omitted.) Murray v. Taylor, 65 Conn. App. 300, 325, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).
The law regarding the validity of a verdict awarding economic damages but not noneconomic damages has recently undergone a change in Connecticut. Prior to 1995, the rule clearly was that a personal injury award greater than nominal damages but exactly equaling the amount of economic damages, with no award for noneconomic damages, was inadequate as a matter of law. Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930). In 1995, this rule was cast into doubt by Childs v. Bainer, 235 Conn. 107, 663 A.2d 398 (1995), in which the Supreme Court held that a personal injury award of $3649 in economic damages but no noneconomic damages did not require an additur. The Childs court did not expressly overrule Johnson v. Franklin, but, rather, distinguished it factually on two grounds. "First, the plaintiff in Childs was awarded only 19 percent of the total amount of economic damages claimed . . . whereas in Johnson, the plaintiff had been awarded the exact amount of the economic damages claimed . . . Second, the evidence of physical injuries as well as damages in Childs was neither substantial nor uncontested, whereas in Johnson, both the physical injuries and economic damages had been both substantial and uncontested." Wichers v. Hatch, 252 Conn. 174, 183-84, 745 A.2d 789 (2000), citing Childs v. Bainer, supra, 118. Also, in Childs, it was unclear whether the award of economic damages was ascribable to medical expenses or lost wages. Childs v. Bainer, supra, 118 n. 7. Childs muddied the waters considerably.
In an attempt to bring some clarity to the murky waters, the Supreme Court in Wichers v. Hatch, supra, 252 Conn. 174, expressly overruled Johnson v. Franklin in favor of a case-by-case determination of whether the verdict was inadequate. In Wichers, the plaintiff sought to recover damages for injuries he allegedly sustained as a result of an automobile collision. The parties stipulated to the defendant's liability and the case was tried to a jury on the issue of damages.
"The plaintiff claimed that, as a result of the accident, he had suffered an acute cervical strain, a cervical subluxion, a 5 percent permanent impairment of the cervical spine, headaches, fatigue, physical impairment and depression. The plaintiff testified to an impaired range of motion in that he could not move his head completely to the left. His chiropractor, George Lentini, testified that the plaintiff, whom he had treated for four months as a result of the accident, suffered a 5 percent permanent impairment of his cervical spine. Lentini assessed this impairment rating based upon the plaintiff's claimed restricted range of motion." Wichers v. Hatch, supra, 252 Conn. 176-77.
At trial, the parties vigorously contested the plaintiff's injuries and their proximate cause. Evidence adduced revealed that the plaintiff not only had suffered from pre-existing conditions of arthritis and spondylosis, both degenerative diseases for which the plaintiff was receiving ongoing chiropractic treatment, but also had been involved in two other automobile accidents, one of which caused the plaintiff to undergo eight months of treatment with a chiropractor. "[T]he plaintiff argued that, although he had a pre-existing condition, the defendant's negligence exacerbated that condition." Id., 177. Conversely, "[t]he defendant argued that the plaintiff's condition resulted, not from the 1994 accident with the defendant, but rather, from the plaintiff's arthritis and spondylosis, both degenerative conditions. Therefore, according to the defendant, because the plaintiff's condition would have continued to deteriorate regardless of the accident, he had failed to demonstrate a causal connection between the accident and the injuries allegedly suffered." Id., 178. Ultimately, the jury awarded the plaintiff $3377 in economic damages and zero noneconomic damages. The trial court granted the plaintiff's motion for additur.
Reversing the trial court's judgment, the Supreme Court concluded that "the jury could have accepted the evidence that it was advisable for the plaintiff to see his chiropractor more frequently than usual following the accident, but that the accident did not cause him actually to suffer greater pain than he already had experienced as a result of his pre-existing condition. Certainly, the jury reasonably could have found that the accident had not aggravated the plaintiff's condition, and that his pain was the same as what he had experienced before his accident with the defendant." Id., 189-90.
In so holding, the court in Wichers stated: "The Johnson rule developed out of concern that an award of economic damages with zero noneconomic damages is either ambiguous or inadequate. Upon further reflection, we recognize that those concerns are unwarranted. The assumption behind Johnson that a plaintiff who has proven that he was injured by a defendant's negligence must, by necessity, have also proven that the negligence caused pain and suffering is not sound, for example, in cases in which the plaintiff had a pre-existing condition. In such circumstances, the causal connection between the pain experienced by the plaintiff and the defendant's conduct is not automatic. Therefore, the jury's failure to award noneconomic damages could simply reflect its conclusion that the plaintiff had not proven that he had suffered any additional pain as a result of the defendant's conduct. Hence, the other underpinning of Johnson, that every such verdict is ambiguous because it may reflect the jury's uncertainty as to the defendant's liability, is also fragile." (Emphasis in original.) Id., 186. The Wichers court did not identify any other fact-based examples of cases where an award of thousands of dollars of economic damages would not warrant an award of noneconomic damages.
The same day that the Supreme Court issued its decision in Wichers, it issued its decision in Gladu v. Sousa, 252 Conn. 190, 745 A.2d 798 (2000). In Gladu the trial court had granted an additur of $30,000 in a motor vehicle personal injury action in which the jury had awarded $13,650 in economic damages, practically the same amount claimed by the plaintiff, but had not awarded noneconomic damages. The evidence was that as a result of the accident the plaintiff had continued to live in pain to the time of trial and had undergone extensive medical testing, treatment and physical therapy. The plaintiff also had suffered from muscle spasms in the shoulder and neck for which the plaintiff had received injections that only temporarily relieved the pain. The plaintiff's treating physician opined that the plaintiff suffered from a total permanent partial disability of 7 percent to the neck, 5 percent to the shoulders and 2 percent to the dorsal spine. The defendant's medical expert opined that the plaintiff had only a 5 percent disability. "The only contested issues were the severity of the plaintiff's injuries and the degree of her partial permanent disability." Gladu v. Sousa, 52 Conn. App. 796, 799, 727 A.2d 1286 (1999). The Appellate Court affirmed the granting of the additur; id., 801; and the Supreme Court dismissed the appeal on the merits. Gladu v. Sousa, supra, 252 Conn. 190.
The next case addressing the propriety of a personal injury verdict for economic but not noneconomic damages was Lidman v. Nugent, 59 Conn. App. 43, 755 A.2d 378 (2000). In Lidman, the plaintiffs' vehicle was the third car in a three car rear-end collision. There was no damage to the plaintiff's vehicle; the only damage was to the front bumper of the second vehicle. An ambulance was not called and it was not necessary to tow any of the vehicles from the scene. The jury awarded the plaintiff operator $4117.26 in economic damages and the plaintiff passenger $3304.24 in economic damages. The jury awarded neither plaintiff noneconomic damages. The trial court granted the plaintiffs' motion to set aside the verdict as to damages. The Appellate Court reversed and ordered the verdict reinstated, stating: "[G]iven the minimal nature of the incident and the alleged injuries, there can be no amount of monetary award that would be so extremely low as to shock the conscience. The jury was not compelled to accept the plaintiffs' claims as to the severity of their injuries, nor was it required to award noneconomic damages merely because it had awarded economic damages." Id., 46.
Daigle v. Metropolitan Property Casualty Ins. Co., 60 Conn. App. 465, 477-78, 760 A.2d 117 (2000), aff'd., 257 Conn. 359, 777 A.2d 681 (2001), is not exactly on point but is relevant to the discussion of the issue. In Diagle, the jury awarded the plaintiff $6000 for past economic damages and $2000 for past noneconomic damages. The trial court denied the plaintiff's motion to set aside the verdict based on the jury's failure to award future noneconomic damages. The Appellate Court affirmed, stating: "[T]he evidence presented at trial raised serious questions regarding causation of the plaintiff's injuries, which were similar in effect to the disabilities caused by his pre-existing condition and the injuries received in his other reported accidents. For example, the plaintiff testified that he could no longer run, bowl or hunt due to his 1993 and 1995 injuries, yet he previously testified as to similar limitations in the depositions of other cases, before the two accidents occurred. He also testified that the back injury he received in 1988 was resolved following treatment at the hospital, but medical records and his deposition in the related action revealed continuing complaints until 1992 that were virtually identical to his back complaints after the 1993 and 1995 accidents. Furthermore, the plaintiff's testimony was inconsistent as to whether the 1993 or the 1995 accident was more responsible for aggravating his back.
"Consequently, the jury in this case reasonably could have interpreted the conflicting evidence and testimony to mean that the 1993 accident would not result in any greater future pain to the plaintiff than the pain caused by his pre-existing condition or his other accidents." Id., 478-79.
The Supreme Court revisited the issue in Schroeder v. Triangulum Associates, 259 Conn. 325, 789 A.2d 459 (2002). In Schroeder, the evidence was that as a result of the injury sustained in an accident, the plaintiff underwent a spinal fusion. The defendant disputed the permanency of the plaintiff's injuries and presented evidence that other incidents at least partially caused the claimed injuries. The jury awarded the plaintiff $750,400 in economic damages — virtually all of his claimed economic damages — but no noneconomic damages. The trial court denied motions to set aside the verdict.
Noting the stark contrast to the facts in Wichers, the Supreme Court reversed the trial court, stating: "This award indicates that, as between the defendant and other possible causes of the plaintiff's injuries, excluding the plaintiff, the jury found the defendant to be liable for the plaintiff's injuries. See Gladu v. Sousa, [ supra, 52 Conn. App. 800]; Jeffries v. Johnson, 27 Conn. App. 471, 476, 607 A.2d 443 (1992). This finding is inconsistent, however, with the jury's finding that the plaintiff incurred no noneconomic damages, which indicates that the jury did not find the defendant liable for any pain and suffering or any permanent injury whatsoever. It is not reasonable for the jury to have found the defendant liable for the expense of the spinal fusion surgery, but not liable for the pain and permanent disability necessarily attendant to such intrusive surgery. Under these circumstances, the jury reasonably could not have found the defendant to be responsible initially for the full amount of the plaintiff's economic damages, but not liable for any noneconomic damages. The trial court therefore abused its discretion in failing to set aside the verdict and ordering a new trial." Id., 332. To the defendant's argument that the jury could have credited the evidence that tended to show that the plaintiff's injuries were caused by other, unrelated incidents, the court responded that its award of substantially all of the plaintiff's claimed economic damages, including medical expenses for the plaintiff's spinal injury, evidenced that the jury clearly did not credit such evidence. Id., 333-34. The most recent appellate case addressing the issue is Santa Maria v. Klevecz, 70 Conn. App. 10, 800 A.2d 1186 (2002). In Klevecz, the Appellate Court affirmed a denial of a motion to set aside after a jury verdict which awarded the plaintiff substantially less than her claimed economic damages, and no noneconomic damages. The court stated that "it was reasonable for the jury to conclude that the plaintiff's alleged pain and suffering was, at a minimum, exaggerated. First, the accident was relatively minor. It caused little or no damage to the vehicles and did not require emergency care for any of the parties. Second, the plaintiff complained of various ailments, which, if the jury believed [the defendant's expert], were not supported by her medical record or physical examination, and were not necessarily causally related to the accident. The record further supports the conclusion that the plaintiff received treatment well beyond that which was medically necessary. The jury also heard testimony that the plaintiff previously had injured herself in a slip and fall. It was reasonable therefore for the jury to conclude that the fall or other stressors were at least partially responsible for the plaintiff's alleged pain and suffering. That is consistent with the jury's award of economic damages substantially less than the amount sought." Id., 15-16.
"Unlike the plaintiff in Wichers . . . the plaintiff in the present case underwent invasive spinal surgery. The jury reasonably could not have initially found the defendant liable for the expense of the surgery but not responsible for any pain or disability attendant to such surgery. This is in stark contrast to the facts of Wichers, wherein the plaintiff, as a result of his injury, merely underwent additional chiropractic treatment for an aggravation of a pre-existing injury, leaving the jury free to determine whether the plaintiff had incurred any additional pain and suffering as a result of the defendant's negligence." Schroeder v. Triangulum Associates, supra, 259 Conn. 333.
"The record revealed that the plaintiff recently was divorced and was considering attending college." Santa Maria v. Klevecz, 70 Conn. App. 10, 16 n. 3, 800 A.2d 1186 (2002).
Since Wichers, appellate and trial court cases have tended to look to certain criteria in determining whether a verdict for economic but no noneconomic damages is inadequate as a matter of law. In addition to the nature and extent of the plaintiff's injuries, those criteria include:
— whether the amount of economic damages awarded was virtually the same as the amount claimed by the plaintiff; Diagle v. Metropolitan Property Casualty Ins. Co., supra, 60 Conn. App. 468; Gladu v. Sousa, supra, 52 Conn. App. 800; Gardetto v. Magoveny, Superior Court, judicial district of New Haven, Docket No. CV 99 0433082 (August 20, 2001, Flanagan, J.T.R.); Brae v. Yarmolovich, Superior Court, judicial district of New Haven, Docket No. CV 97 0397579 (March 7, 2001, Flanagan, J.T.R.); Freeman v. Thompson, Superior Court, judicial district of Hartford, Docket No. CV 97 0571099 (October 3, 2000, Peck, J.); cf. Childs v. Bainer, supra, 235 Conn. 117-18;
— the amount of economic damages awarded; Schroeder v. Triangulum Associates, supra, 259 Conn. 329; Gladu v. Sousa, supra, 52 Conn. App. 800; Daigle, supra, 60 Conn. App. 468; Rizzitelli v. Caggianello, Superior Court, judicial district of Fairfield, Docket No. CV 99 0360415 (September 20, 2001, Ballen, J.T.R.);
— whether the plaintiff complained of injuries at or near the time of the accident or required an ambulance; Wichers v. Hatch, supra, 252 Conn. 176; Santa Maria v. Klevecz, supra, 70 Conn. App. 15; Rizzitelli v. Caggianello, supra, Superior Court, Docket No. CV 99 0360415; Brae v. Yarmolovich, supra, Superior Court, Docket No. CV 97 0397579; Freeman v. Thompson, supra, Superior Court, Docket No. CV 97 0571099;
— in cases arising out of motor vehicle accidents, the existence and extent of damage to the motor vehicles involved; Lidman v. Nugent, supra, 59 Conn. App. 46; Santa Maria v. Klevecz, supra, 70 Conn. App. 15-16; Ganim v. Kegler, Superior Court, judicial district of Fairfield, Docket No. CV 97 0341002 (October 31, 2001, Ballen, J.T.R.); Freeman v. Thompson, supra, Superior Court, Docket No. CV 97 0571099;
— whether damages are seriously contested and whether the plaintiff suffered from pre-existing conditions or other causes of the claimed pain; Wichers v. Hatch, supra, 252 Conn. 176-77; Daigle v. Metropolitan Property Casualty Ins. Co., supra, 60 Conn. App. 478-79; Snell v. Beamon, Superior Court, judicial district of New London, Docket No. CV 01 0560163 (February 11, 2003, Leuba, J.T.R.); Rizzitelli v. Caggianello, supra, Superior Court, Docket No. CV 99 0360415; Petersen v. Gorman, Superior Court, judicial district of Waterbury, Docket No. CV 99 0150279 (May 13, 2002, Pittman, J.), 32 Conn.L.Rptr. 137; D'Ancona v. Metropolitan Property Casualty Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV 98 0147204 (April 1, 2002, Pittman, J.); Gardetto v. Magoveny, supra, Superior Court, Docket No. CV 99 0433082; Freeman v. Thompson, supra, Superior Court, Docket No. CV 97 0571099; Showah v. Gardner, Superior Court, judicial district of Danbury, Docket No. CV 99 0335563 (March 30, 2001, Adams, J.); LaFrance v. Hunchak, Superior Court, judicial district of New Haven, Docket No. CV 95 0376064 (June 15, 2000, Moran, J.); Johnson v. Strickland, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0350826 (March 29, 2000, Mottolese, J.); and
— the nature and extent of the plaintiff's treatment. Schroeder v. Triangulum Associates, supra, 259 Conn. 331-32 (spinal fusion); Wichers v. Hatch, supra, 252 Conn. 189-90 (additional chiropractic treatment); Gladu v. Sousa, supra, 52 Conn. App. 798 (injections); Snell v. Beamon, supra, Superior Court, Docket No. CV 01 0560163; Petersen v. Gorman, supra, Superior Court, Docket No. CV 99 0150279, 32 Conn.L.Rptr. 137 (hiatus in treatment preceding trial); Ganim v. Kegler, supra, Superior Court, Docket No. CV 97 0341002 (same); Showah v. Gardner, supra, Superior Court, Docket No. CV 99 0335563 (treatment continuous); LaFrance v. Hunchak, supra, Superior Court, Docket No. CV 95 0376064 (substantial amount of economic damages represented charges by orthopedist for evaluation only).
That said, cases such as Lidman, Klevecz and some Superior Court decisions cannot be readily reconciled with Wichers and Schroeder. Wichers presented the rather unusual scenario where "the jury could have accepted the evidence that it was advisable for the plaintiff to see his chiropractor more frequently than usual following the accident, but that the accident did not cause him actually to suffer greater pain than he already had experienced as a result of his pre-existing condition." Wichers v. Hatch, supra, 252 Conn. 189-90. Lidman and Klevecz can only be rationalized as holding that the plaintiff should not have even been awarded economic damages. Lidman says as much. See Lidman v. Nugent, supra, 59 Conn. App. 46 ("given the minimal nature of the incident and the alleged injuries, there can be no amount of monetary award that would be so extremely low as to shock the conscience"). Under Schroeder, however, the jury's failure to award noneconomic damages must not be inconsistent with its award of economic damages. Schroeder v. Triangulum Associates, supra, 259 Conn. 332. In most cases, an award of thousands of dollars of economic damages for medical care or lost wages will logically be inconsistent with the absence of pain. Simply put, if it didn't hurt, why did the jury find that it was reasonable for the plaintiff to seek medical care (or be out of work for weeks or months) ? Moreover, "that the jury did not award all of the economic damages claimed should . . . not make a difference, if in awarding the part it did allow it necessarily had to find that the defendants' negligence caused noneconomic damages . . . [such as] pain and suffering." Santa Maria v. Klevecz, supra, 70 Conn. App. 19 (Flynn, J., dissenting); see also Childs v. Bainer, supra, 235 Conn. 125-26 (Berdon, J., dissenting). Although there are certainly cases where it will be reasonable for a plaintiff simply to be examined, perhaps even more than once, after a motor vehicle accident to rule out subtle injuries even in the absence of pain, it is difficult to conjure up many instances where it will be necessary for a plaintiff to incur thousands of dollars of medical expenses where there is no pain at all.
This is especially unfortunate since the issue is one that confronts trial judges with a fair degree of frequency.
The recent change in this area of the law has been written against the backdrop of evolving public attitudes, whether well informed or not, toward litigation generally and personal injury litigation in particular. This has resulted in lower verdicts and defendant's verdicts becoming more commonplace. Judges, of course, are not unaware of shifts in the currents of public opinion. B. Cardozo, The Nature of The Judicial Process (1921), p. 168; see, e.g., Kwasny v. U.S., 823 F.2d 194, 197 (7th Cir., 1987) ("there is a justified public concern with extravagant tort awards"); Bethel v. New York City Transit Authority, 92 N.Y.2d 348, 352, 681 N.Y.S.2d 201 (1998) (noting the "explosion in personal injury litigation"); Kirchbaum v. Dillon, 58 Ohio St.3d 58, 69-70, 567 N.E.2d 1291 (1991) (referring to "the explosion of litigation so characteristic of the modern era"). Few judges would deny that there are many personal injury actions put into suit that should not be. However, "[a]s judges, it is our sworn responsibility to apply the law in an objective, reasoned and dispassionate manner. We bear this responsibility equally in all cases . . . however unpopular the result." State v. Johnson, 253 Conn. 1, 81, 751 A.2d 298 (2000). Tethered as we generally are to the jury's findings on economic damages, this responsibility may require judges to grant additurs in some cases that they personally believe lack merit.
These attitudes are reflected in recent legislation. Cf. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 185, 592 A.2d 912 (1991) 223, 232-33, 717 A.2d 202 (1998) ("The Tort Reform Act was drafted in response to rapidly rising insurance rates, which, some believed, would be curtailed if tort liability could be limited and systematized"); Schiano v. Bliss Exterminating Co., 260 Conn. 21, 40, 792 A.2d 835 (2002) (similar legislative sentiments expressed in the analogous context of Workers' Compensation, contained in legislative history of 1993 amendments to the Act).
In this case, the accident occurred at a residential intersection and both vehicles were damaged. According to the police report, the defendant's vehicle sustained "heavy front end passenger side damage." The plaintiff's vehicle sustained driver's side front end damage. Neither vehicle had to be towed. The plaintiff, the defendant and the defendant's passenger complained of injuries at the scene and were transported to the hospital by ambulance. The hospital record reflects the plaintiff's complaint of low back pain and an abrasion to her lip. The plaintiff, who was twenty-one years old, had no prior history or complaint of such pain, nor was there evidence of any prior accident involving the plaintiff. The plaintiff procured a physician's note on August 7, 2000, which stated that she was unable to go to work for two weeks. She asserted a claim for lost wages in the amount of $480. The plaintiff went to physical therapy fifteen times, beginning on August 17, 2000, and completing treatment by November 2000. There also was evidence from which the jury may have inferred that in November 2000, four months after the accident, this case was put into suit. The plaintiff also saw Dr. Donald Dworkin in November 2000, January 15, 2001, and, finally, on December 10, 2002, shortly before trial. Dr. Dworkin's services, however, were more in the nature of evaluation than treatment. He testified that the plaintiff had a 5 percent to 6 percent permanent partial disability of the lower back (thoracolumbar spine). Although the defendant did not call her own expert to controvert Dr. Dworkin's testimony, she did contest, by cross-examination and argument, the existence and extent of the plaintiff's disability.
On December 13, 2001, the plaintiff was a passenger in a motor vehicle that was in another accident, heavily damaged and rolled over. The plaintiff was again taken by ambulance to the hospital. However, she did not complain of low back pain as a result of that accident.
"From the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend . . . what factors, if any, could have improperly influenced the jury." (Internal quotation marks omitted.) Mazzacane v. Elliott, 73 Conn. App. 696, 700, 812 A.2d 37 (2002). The jury was not required to, and clearly did not, credit the testimony of the plaintiff that she continued to suffer from pain caused by the accident after November 2000, nor was it required to credit the opinion of Dr. Dworkin that the plaintiff had a permanent disability therefrom. "The jury is under no obligation to credit the evidence proffered by any witness, including experts . . . even if that evidence is uncontroverted." (Citations omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 145, 540 A.2d 666 (1988). The injury was of the "soft tissue" variety and despite Dr. Dworkin's testimony that he had felt spasm in the plaintiff's low back, the jury could believe that any symptoms caused by this accident had long ago subsided. The jury could have reasonably found that the plaintiff exaggerated her symptoms. "[J]urors are not to be faulted if they do not believe all they are told and all that their common experience does not accept. That is not to say, they may disregard obvious injury. It is, however, to say that they are not obliged to believe that every injury causes pain or the pain alleged." (Emphasis added; internal quotation marks omitted.) Vajda v. Tusla, 214 Conn. 523, 538, 572 A.2d 998 (1990).
The jury could not, however, find that the plaintiff did not suffer pain at the scene of the accident and at the hospital. There was significant property damage to both vehicles, the plaintiff's pain was documented at the scene and she was taken by ambulance to the hospital where pain was again documented. Judging from the amount of economic damages awarded, the jury found that it was reasonable and necessary for the plaintiff to have incurred expenses for her hospital bill and several visits to physical therapy. In addition, it seems likely that the jury awarded the plaintiff her lost wages.
In view of the evidence as a whole, the court finds that the jury's failure to award any noneconomic damages does shock the sense of justice and could not have occurred without mistake, partiality or prejudice. This finding, however, does not necessarily militate any particular size of award to which the plaintiff is entitled.
Once it is determined that a court may not refuse to grant an additur for noneconomic damages where the jury's award of economic damages confirms that they found that the plaintiff was entitled to be reimbursed for the remediation of pain, the court must on a motion for additur, consonant with the jury's findings, determine what is fair, just and reasonable compensation for that pain. See Barbieri v. Taylor, 37 Conn. Sup. 1, 6, 426 A.2d 314 (1980). The accident here was on August 4, 2000. The plaintiff completed treatment with her physical therapist in November 2000. However, the jury's award of economic damages reflects that it did not believe that all of that treatment was necessary. The jury could have found that the plaintiff exaggerated her symptoms and that she was substantially cured by or even before October 2000.
The plaintiff's motion for additur is granted. An additur is ordered in the amount of $1100 in noneconomic damages, resulting in a total award of $3438. The defendant is afforded fourteen days from this date to file its written acceptance of the additur with the clerk's office. If the additur is accepted, judgment shall enter for the plaintiff in the amount of $3438 plus taxable costs. If the additur is not accepted within the time afforded, a new trial is ordered.
BY THE COURT
Bruce L. Levin Judge of the Superior Court