Opinion
No. CV 03-48 08 35 S
January 14, 2009
MEMORANDUM OF DECISION
The matter presently before the court is the plaintiff's motion for additur or to set aside the verdict, on the basis that the jury failed to award the plaintiff any non-economic damages where it awarded the full amount of the claimed economic damages.
This lawsuit arises out of a two-car motor vehicle accident which occurred on October 29, 2002 on Orange Avenue in West Haven, Connecticut. The defendants contested both liability and damages. On August 11, 2008, the jury rendered a verdict for the plaintiff awarding the full amount of claimed economic damages of $8,718.00, and no non-economic damages, reduced by 38% comparative negligence, for a verdict of $5,405.00. The plaintiff now seeks either an additur or, in the alternative, a new trial, claiming that the verdict was inadequate as a matter of law. The court, after hearing argument on the motion on November 7, 2008, grants the plaintiff's motion.
The court is mindful that litigants have a constitutional right to have factual issues tried to a jury. Young v. Data Switch Corp., 231 Conn. 95, 100-01 (1994). "This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair minded persons as to the amount that should be awarded . . . This right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fairminded men passed upon by the jury and not by the court . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury . . . Similarly, [t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury . . . In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict." (Citations omitted; internal quotation marks omitted.) CT Page 1512 Wallace v. Haddock, 77 Conn.App. 634, 636-37 (2003). "The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury . . ." (Internal quotation marks omitted.) Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 541 (2002). "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." (Citations omitted; internal quotation marks omitted.) Marchell v. Whelchel, 66 Conn.App. 574, 582 (2001).
The court must view the evidence offered at trial in the light most favorable to sustaining the verdict. Gaudio v. Griffin Health Services Corporation, 249 Conn. 523, 534 (1999), and thus this court must consider the evidence on damages in the light most favorable to the defendants. The jury was presented with the following evidence.
On October 29, 2002, the plaintiff, My-Brhim Lamkhantar, operating his brother's 1991 Honda Accord, was involved in a two-car motor vehicle accident on Orange Avenue in West Haven, Connecticut, when his vehicle was struck in the rear by the 1991 Nissan operated by the defendant Maria Travisano and owned by the defendant Jackie Travisano. There was conflicting evidence with respect to the severity of the impact and the mechanics of the accident. The plaintiff testified that he had slowed down as he approached a yellow traffic light, and had been at a complete stop for three to four seconds when he felt a hard impact in the rear, causing him to go forward and back. His friend, a front seat passenger, almost threw up. Maria Travisano, on the other hand, was adamant at trial that the plaintiff sped up for the light, and then suddenly stopped short. At her deposition, however, she had testified that the defendant was slowly stopping at the light. At trial, Ms. Travisano estimated her speed at approximately 5-6 mph, and testified that her vehicle "rolled" into the back of the plaintiff's vehicle, with the impact a "tap."
The plaintiff testified that the defendant was crying at the scene, and that she admitted fault. Both parties testified that the defendant asked the plaintiff if he was "okay" at the scene. While the defendant testified that the plaintiff, when he opened his car door to exit the vehicle, fell out of the car, rolling on to the ground, the plaintiff denied this. The police were called to the scene, and while the plaintiff declined medical attention at the scene, telling the officer he was fine, he testified at trial he felt sore when he left the accident scene. The plaintiff's vehicle was not towed from the scene and the damage to his rear bumper consisted of a scratch and loose bumper which was fixed. The defendant's vehicle had front end damage. No photos of the vehicles were submitted into evidence, and there was no property damage estimates in evidence.
Following the accident, the plaintiff drove his passenger to the emergency room. He himself was seen at St. Raphael's Emergency Room later that evening as a walk-in. He reported low to mid-back pain, with a negative past history. The examination revealed muscle spasm to the back, and the diagnosis was back strain secondary to motor vehicle accident. He was given Motrin at the emergency room, and was given prescriptions for Motrin for pain and Flexeril for spasm; he was told to follow up with his primary care doctor. He testified that he could not sleep normally, and felt worse the next morning; because of the pain, he went to Connecticut Chiropractic Specialists that next day. There, he reported a prior, asymptomatic injury. The examination revealed, inter alia, muscle spasm and guarding in the mid and lower cervical spine and trapezius muscles. The plaintiff was treated with manipulation, ultrasound, ice packs, and hot packs, and was seen on twenty occasions through December 20, 2002. As of December 20, 2002, Dr. Forte's examination revealed that muscle spasms were still present.
The plaintiff testified that he may have seen his attorney the day following the accident, and that he believes his attorney sent him to the chiropractor. He saw Dr. Corrigan, the same doctor who had been treating him for an earlier June 2002 accident, from December 24, 2002 to April 28, 2003, for a total of 46 visits. That treatment essentially consisted of hot and cold packs, traction, manipulation; according to the plaintiff, the treatment helped his pain "a little," but not 100%. The examinations revealed, inter alia, spasms present throughout the treatment, and, at the time of his discharge by Dr. Corrigan, in late April 2003, his complaints were substantiated by objective physical findings. Dr. Corrigan gave the plaintiff a 3% impairment rating to the lumbar spine attributable to this accident, in addition to the 5% of the lumbar spine which he attributed to the plaintiff's earlier accident of June 28, 2002. Dr. Corrigan testified at trial with respect to his treatment of the plaintiff for both 2002 car accidents; he testified that once tissues are damaged, they are never the same, and one is more susceptible to more injury with less trauma after a subsequent injury such as occurred here. However, he also testified that he did not know about the 1998 work-related back injury when he treated the plaintiff; had he known, he would have factored it into his treatment.
Additionally, the plaintiff treated with an orthopedist, Dr. Abidor, on four occasions between November 2002 and February 2003. All four examinations revealed, inter alia, thoraco lumbar muscular spasms. The plaintiff testified that he had had no medical treatment for the injuries claimed in the accident in the last 5 years.
The plaintiff testified to the previously mentioned 1998 work-related accident and June 2002 car accident, as well as a subsequent 2003 construction accident; the defendants introduced into evidence medical records relating to these prior and subsequent accidents, as well as the complaint and interrogatory responses relating to the June 2002 car accident, workers' compensation records for the 1998 and 2003 incidents, and employment records. Additionally, the plaintiff testified that with respect to the 1998 work-related accident, a pipe fell approximately 30 feet from a crane, landed on something, and then struck him in the head, neck and back area. When he returned to work following his course of medical treatment, he felt "100% better." He testified, with respect to the June 2002 accident, that his vehicle was struck by a tractor trailer. His treatment, following the Yale emergency room, included treatment with Dr. Corrigan, through October 28, 2002, the day before the present accident of October 29, 2002; he testified that he still had a little pain to the neck and back at the time of the October accident and he felt worse following the October accident at issue. The plaintiff also testified that in the week before the October accident, he was doing a little bit of running and playing soccer, and was also lifting weights. With respect to his ability to play soccer, the plaintiff contradicted himself, testifying at one point that he could no longer play soccer because of the injuries he sustained in the present accident, but also testifying that he could not recall if he played soccer following the June 2002 accident. He also stated that his inability to play soccer was also related to his 2003 work-related knee injuries. He testified with respect to the 2003 work injury, that he sustained knee injuries resulting in two surgeries, with disability ratings.
In light of our Supreme Court's ruling in Wichers v. Hatch, 252 Conn. 174 (2000), an award of only economic damages and no non-economic damages is no longer inadequate as a matter of law. Instead, when considering a challenge to a verdict, the court must carefully examine the evidence presented. "Rather than decide that an award of only economic damages is inadequate as a matter of law, the jury's decision to award economic damages and zero non-economic damages is best tested in light of the circumstances of the particular case before it. Accordingly, the trial judge should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue. That decision should be made, not on the assumption that the jury made a mistake, but rather on the supposition that the jury did exactly what it intended to do." CT Page 1515 Id., 188-89. The court, in considering a challenge to a verdict, cannot substitute its own judgment for that of the jury but must instead determine whether the jury, based upon the evidence presented, could have reasonably arrived at the verdict it reached. In Wichers, the plaintiff had been in two prior motor vehicle accidents, and at the time of the accident in question was under chiropractic treatment for pre-existing conditions. In reversing the trial court's award of additur, the Supreme Court held 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.
I. WHERE JURY HAS MADE SOME AWARD OF NON-ECONOMIC DAMAGES
Since Wichers, the courts have occasionally been called upon to address the propriety of an additur where there has been some award of non-economic damages along with the economic damages award. Arguably, this is perhaps the least troublesome area, where the jury has evaluated the plaintiff's claim of pain and suffering and made some monetary award for it, rather than rejecting or ignoring the claim for non-economic damages outright. While there are only a handful of post- Wichers decisions in this area, it appears that motions for additur have been denied where the plaintiff was medically non-compliant, there was evidence of a pre-existing injury, the jury rejected one of the claimed injuries or some of the claimed treatment, there was a gap in treatment and/or the treating physician did not have a complete medical history, and have been granted where the treatment was for pain, there was no evidence of prior injury and/or the jury made an award for future economic damages with no corresponding award for future non-economic damages. In Turner v. Pascarelli, 88 Conn.App. 720 (2005), the jury returned a verdict of $4,323.77, consisting of $3,923.77 in economic damages and $400.00 in non-economic damages. On reargument, the trial court awarded an additur of $3,000.00 for non-economic damages, which the defendant refused to accept, resulting in the order of a new trial. On appeal, the appellate court held that the trial court abused its discretion in ordering the additur. The appellate court noted that based upon the evidence at trial, the jury might have found that the plaintiff's back pain was intermittent, that the plaintiff contributed to his problem by failing to follow a recommendation for physical therapy, and that the plaintiff had similar injuries from a car accident the prior year that contributed to his discomfort. See also Benoit v. Taylor, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 06 5000687 (December 10, 2008, Downey, J.) (denying motion for additur, where jury awarded partial claimed economic damages of $52,451.74 and non-economic damages of $20,000.00, rejecting claimed injury to left shoulder); Cortese v. Nguyan, Superior Court, judicial district of Hartford at Hartford, Docket No. 08 11267 (December 2, 2008, Shapiro, J.) (denying motion for additur, where jury awarded $22,000.00 of claimed $32,928.95 in economic damages and $20,000.00 in non-economic damages; there was evidence of pre-existing injuries and gap in treatment). Greenblatt v. Antoszek, Superior Court, judicial district of New Haven at New Haven, Docket No. 06 5005713 (November 25, 2008, Cosgrove, J.) (where jury awarded $10,000.00 in non-economic damages, where plaintiff had prior similar injuries; no additur of non-economic damages, but granting additur of $1,074.00 of radiology bill to economic award of $10,932.00); Mazo v. Baker, infra (verdict of economic damages of $5,411.30 representing all claimed medical expenses and non-economic damages of $1,500.00, granting motion for additur in the amount of $3,500.00, where plaintiff was seen at the emergency room, given pain medications, and treated with a chiropractor and orthopedic surgeon, with no evidence of any preexisting injury); Vestergaard v. Klein, Superior Court, judicial district of Middlesex at Middletown, Docket No. 01 0095341 (December 22, 2003, Silbert, J.) (verdict of $2,500.00 in economic damages and $4,500.00 in non-economic damages; denying motion for additur, where jury awarded some but not all of the claimed medical expenses, plaintiff had pre-existing injury, and treating physician testified that he was unaware of the pre-existing injury but nonetheless maintained his position that the injury was casually related to the accident in question). But see Albro v. Volpe, Superior Court, judicial district of Middlesex at Middletown, Docket No. 03 0102057 (August 10, 2005, Aurigemma, J.) [39 Conn. L. Rptr. 708] (granting additur, where jury awarded all claimed economic damages including future economic damages, but awarded only past non-economic damages and no future non-economic damages; prior similar injury).
II. WHERE JURY HAS AWARDED SOME OF THE CLAIMED ECONOMIC DAMAGES, WITH NO AWARD FOR NON-ECONOMIC DAMAGES
The cases where the jury has awarded some, but not all, of the claimed economic damages and no non-economic damages, in my opinion, also presents a less difficult picture, because in these cases, the juries have clearly rejected some of the plaintiff's medical treatment in their decision to also not make an award for non-economic damages. In 2002, the Appellate Court, in Santa Maria v. Klevecz, 70 Conn.App. 10 (2002) was presented with the scenario, where the trial court had refused an additur, where the jury awarded $2,000.00 in economic damages only out of claimed economic damages of $11,394.71. The court, in affirming the decision of the trial court, noted that the jury's award of economic damages was substantially less than the amount sought, and further noted that there had been evidence of overtreatment, exaggeration of injuries, and a prior injury. Id. at 15-16.
Subsequently, in Snell v. Beamon, 82 Conn.App. 141 (2004), the Appellate Court affirmed the trial court's granting of an additur. At trial, the plaintiff's orthopedic surgeon, Jeffrey Miller, testified regarding his treatment of the plaintiff in the amount of $5,424.00, the plaintiff's disability, and inability to work for twenty-two weeks. The plaintiff also testified to a lost wage claim of $3,410.00. The defendant's only witness, a chiropractor, agreed that Miller's treatment was reasonable and that the plaintiff was unable to work for that period. The chiropractor did testify that the plaintiff's treatment by medical personnel other than Miller was unnecessary, and disputed the nature and severity of the plaintiff's injury. The jury returned a verdict of $1,235.53 in economic damages only; the trial court granted an additur of $7,598.47 in economic damages for the remainder of Miller's treatment, and the wage claim, and $10,000.00 in non-economic damages. The Appellate Court noted the thorough decision of the trial court which focused primarily on the uncontroverted evidence regarding the treatment with Miller, and the lost wage claim.
Shortly thereafter, in Schettino v. Labarba, 82 Conn.App. 445 (2004), the appellate court held that the trial court had improperly granted the additur, where the jury had returned a verdict of $450.00 in economic damages only. Unlike Snell, the injuries in Schettino were hotly contested. In Schettino, the plaintiff claimed soft tissue injuries and herniation; she claimed $6,631.00 in medical expenses for treatment at a walk-in clinic, and with a physician, chiropractor, and physical therapist. The plaintiff, when cross-examined on her prior medical history, claimed to have forgotten receiving treatment from another physician one year before the accident in question, and both sides presented conflicting testimony from medical experts regarding the source of the plaintiff's degenerative changes in the spine and the spinal herniation. The appellate court noted that "[t]he existence of conflicting evidence curtails authority of the court to overturn the verdict because the jury is entrusted with deciding which evidence is more credible and what effect it is to be given." Id. at 450 (citation omitted).
Post- Wichers, trial courts have frequently granted additurs where, for example, the treatment involved was for treatment of pain rather than pure diagnostic treatment. See Silva v. Walgreens Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 04 4001615 (November 10, 2008, Arnold, J.) (jury award of $876.13 economic damages only, reduced by 10% comparative negligence, for just a fraction of the claimed medicals; stating that the jury "necessarily found that [the plaintiff] had experienced pain and decreased functioning"); Jones v. Gonzalez, Superior Court, judicial district of Hartford at Hartford, Docket No. 03 0825404 (January 17, 2006, Miller, J.) (jury award of $1,517.50, rejecting bill from orthopedic surgeon and $600.00 of the claimed physical therapy, noting that "some of [the medical treatment], most notably the $1,015.00 which the jury did award plaintiff toward the total cost of her physical therapy, was either palliative or curative in nature. In other words, a significant portion of the economic damages was for the treatment of injury, not for determination of whether or not plaintff was injured") (Emphasis added); Calafiore v. Phelps, Superior Court, judicial district of Hartford at Hartford, Docket No. 04 0834639 (December 12, 2005, Miller, J.) (jury award of $4,953.58, compensating the plaintiff for bills from chiropractor, orthopedic surgeon, and physical therapist, and rejecting bills from two psychiatrists, for a "barium swallow" and for lost wages, in dog bite case where plaintiff claimed he was bitten and knocked to ground; the court granted the additur, noting that the jury found that the plaintiff underwent necessary, reasonable medical treatment); Grenier v. Dovitski, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 04 5000023 (December 12, 2005, Brunetti, J.) (jury award of $3,659.33 out of claimed $4,076.33, where expenses included treatment "for care associated with pain"); Showah v. Gardner, Superior Court, judicial district of Danbury at Danbury, Docket No. 99 0335563 (March 30, 2001, Adams, J.) (jury award of $9,791.51 of claimed $13,666.51).
In situations involving an award of some of the claimed economic damages with no corresponding award of non-economic damages, trial courts will also grant additurs where there is no evidence of pre-existing similar injuries. Garufi v. Allstate, Superior Court, judicial district of Danbury at Danbury, Docket No. 07 60000234 (April 23, 2008, Shaban, J.) [45 Conn. L. Rptr. 406] (jury award of $4,101.79, for medical expenses incurred, and rejecting future medicals relating to possible cosmetic surgery, where injuries included, inter alia, lacerations requiring sutures and scarring); Christiano v. Campbell, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 04 4002087 (October 16, 2006, Gallagher, J.) (jury award of $2,192.00 of claimed $4,385.35); Obsohan v. Nosa, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 02 0175723 (March 7, 2005, Gallagher, J.) (jury award of $5,000.00 out of claimed $16,705.82 in medical expenses and lost wages); Neysmith v. Pagan-Hart, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 37 9334 (May 7, 2003, Levin, J.) [34 Conn. L. Rptr. 583] (where jury awarded $2,338.00, approximately half of claimed economic damages, and no non-economic damages; no evidence of prior similar injuries, and "jury's award . . . confirms that they found that the plaintiff was entitled to be reimbursed for the remediation of pain" such that court may not refuse to grant an additur). See also Freeman v. Thompson, Superior Court, judicial district of Hartford, Docket No. 97 0571099 (October 3, 2000, Peck, J.) (jury award of $2,792.38 of claimed $4,054.88; while plaintiff had prior and subsequent similar injuries, the court reasoned that plaintiff, who was six months pregnant, should have been compensated for her mental suffering). Stone v. Viola, Superior Court, judicial district of New Haven at Meriden, Docket No. 00 0274865 (March 8, 2004, Frazzini, J.) (where jury awarded $3,000.00 of $4,764.55 in claimed economic damages; evidence of pre-existing condition but no evidence of pre-existing pain).
Conversely, trial courts post- Wichers will frequently deny additurs in situations with awards of less than the claimed economic damages, and no non-economic damages, when there has been evidence of prior, pre-existing injuries. Jackson v. Allstate Ins. Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 07 5006338 (October 2, 2008, Rush, J.) (jury award of $3,810.00 past economic damages only, with no award for future economic damages; evidence of two prior accidents with similar injuries); Grady v. Allstate, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 04 4001534 (March 21, 2007, Robinson, R., J.) [43 Conn. L. Rptr. 77] (jury award of $2,310.00 of claimed $3,680.66); Hill v. Saunders, Superior Court, judicial district of Hartford, Docket No. 04 0933610 (September 20, 2006, Scholl, J.); Tartaglia v. Osmundson, Superior Court, judicial district of Danbury at Danbury, Docket No. 02 0345765 (July 22, 2004, Bellis, J.) (jury award of $2,001.85 of claimed $6,695.22); Strom v. Curtiss, Superior Court, judicial district of Middlesex at Middletown (November 8, 2002, Shapiro, J.) (jury award of $7,500.00 of claimed $11,059.03 in medical expenses and $5,000.00 in lost wages); Parrino v. Weed, Superior Court, judicial district of New Haven at Meriden, Docket No. 01 0276385 (September 10, 2002, Skolnick, J.) (jury award of $4,087.00 of claimed $4,799.00; subsequent injuries as well); Rizzitelli v. Caggiannelo, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 99 0360415 (September 20, 2002, Ballen, J.) (jury award of $1,200.00 of claimed $2,290.00; evidence of pain from other unrelated health problems); Palance v. Walsh, Superior Court, judicial district of Hartford, Docket No. 97 0569484 (February 29, 2000, Beach, J.) (jury award of $1,197.00 of approximately $19,000.0 claimed medical expenses and lost wages).
Trial courts post- Wichers have denied motions for additur where a jury has awarded partial claimed economic damages only, for reasons other than evidence at trial of prior injury. See Maines v. Barnard, Superior Court, judicial district of Tolland at Rockville, Docket No. 06 50000222 (April 7, 2008, Vacchelli, J.) (jury award of $1,534.32 of claimed $13,079.32, which was the amount of the bill for the visit and x-rays at the emergency room; issues involving coordinated treatment with other plaintiffs and doctor's conviction record); Ng v. Wal-Mart Stores, Superior Court, judicial district of Hartford at Hartford, Docket No. 02 0820697 (October 20, 2006, Elgo, J.) (jury award of $2,335.13 of claimed $17,255.00; involving causation issues and delay in treatment); Johnson v. Pellegrino, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 02 0396565 (February 15, 2006, Arnold, J.) [42 Conn. L. Rptr. 224] (jury award of $1,752.00 of claimed $2,302.00, for ambulance, emergency room, doctors visits and physical therapy visits; involving causation issues); Makrides v. Twin City Fire Ins., Superior Court, judicial district of Stamford-Norwalk, Docket No. 000178742 (February 20, 2004, D'Andrea, J.) (jury award of $317.30 of claimed $27,000; involving causation issues); Temponi v. Vivar, Superior Court, judicial district of Hartford at Hanford, Docket No. 01 0807053 (January 26, 2004, Satter, J.) (jury award of $3,295.00 of claimed $3,234.00 for one plaintiff, and close to the claimed medical expenses for the other plaintiff, where treatment for both plaintiffs included emergency room, pain medication, and chiropractic treatment; no testimony of any notable pain or suffering).
III. WHERE JURY HAS AWARDED ALL CLAIMED MEDICAL EXPENSES, WITH NO AWARD FOR NON-ECONOMIC DAMAGES
In my opinion, the most difficult situation is presented where the jury has awarded all the claimed medical expenses but no non-economic damages. There have been a number of post- Wichers appellate decisions that fit that scenario.
In 2002, in Schroeder v. Triangulum Associates, 259 Conn. 325, the Connecticut Supreme Court held that the trial court abused its discretion in denying the plaintiff's motion to set aside the verdict, where the jury awarded the plaintiff virtually all claimed economic damages in the amount of $750,400.00, which included expenses for spinal fusion surgery, but made no award for non-economic damages. The court stated as follows
"This award indicates that, as between the defendant and other possible causes of the plaintiff's injuries . . . the jury found the defendant to be liable for the plaintiff's injuries. 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. at 332. (Citations omitted).
In a footnote, the court added that its conclusion based on the facts in this case does not remove the possibility that a jury in a different case could award the full amount of claimed economic damages and no non-economic damages, in accordance with Wichers. Id., footnote 5. The court rejected the defendant's argument that the verdict was proper in light of the evidence of other injuries from prior and subsequent incidents, stating that "[t]he jury clearly did not credit such evidence, however, because it initially found the defendant to be fully liable for substantially all of the plaintiff's claimed economic damages, including medical expenses for the plaintiff's spinal injury." Id. at 333-34.
Thereafter, in Elliott v. Larsen, 81 Conn.App. 468 (2004), the Appellate Court held that the trial court properly exercised its discretion in granting the plaintiff's motion for additur. In Elliott, the jury awarded the plaintiff all of the claimed medical expenses as well as his lost wages and lost overtime, for a total award of $18,338.70 in economic damages only, reduced to $11,003.22 on the basis of the jury's finding that the plaintiff had been 40% comparatively negligent. There was also evidence of an asymptomatic preexisting condition. The Appellate Court quoted from the decision of the trial court which stated that "[t]he award of the plaintiff's lost wages must necessarily have flowed from the conclusion that he was injured, suffered pain, and could not work. The failure to award non-economic damages is inconsistent with the conclusion of injuries and the award of lost wages." The Appellate Court affirmed the judgment of the trial court.
The Appellate Court, in deciding Smith v. Lefebre the following year, did not recognize an inherent inconsistency with the failure to award non-economic damages where the jury had awarded all the claimed medical expenses including expenses relating to physical therapy, ultrasound, traction, and chiropractic treatment. In Smith v. Lefebre, 92 Conn.App. 417 (2005), the Appellate Court reversed the judgment of the trial court, which had set aside the jury verdict and ordered a new trial after the defendant refused to accept an additur. The jury had awarded $5,500.00 in economic damages only; the trial court had granted an additur of $7,500.00 in non-economic damages, and sua sponte ordered a remittur of $16 in economic damages so that the award corresponded to the evidence. The treatment consisted of the plaintiff seeing a medical provider on the day of the accident, and, subsequently, a visit with her primary care physician, physical therapy on the recommendation of her primary care physician, treatment by an orthopedist who recommended a cortisone injection which the plaintiff refused, and examination by a neurologist. According to the plaintiff, she selected the neurologist from a phone book; however, evidence was also introduced that she was sent there on the recommendation of her attorney. Her primary care physician suggested the physical therapy to treat her muscle tension; the evidence indicated that the therapy, as well as the ultrasound treatment and traction, helped reduce the muscle tension but not the limited range of motion in her neck. The plaintiff testified that the chiropractic treatment provided only temporary relief. The Appellate Court noted that the jury could have believed that the plaintiff embellished or exaggerated both the nature and the extent of her injuries, that there was conflicting evidence regarding her claimed back injury and whether surgery would be needed, and the vigorous cross-examination of the plaintiff with respect to her ability to work and weight train. The court did not acknowledge an inherent conflict in a jury award of $5,500.00 for medical treatment which included, inter alia, chiropractic treatment and physical therapy, with no corresponding award for pain or suffering.
Shortly thereafter, in Fileccia v. Nationwide, 92 Conn.App. 481 (2005) the Appellate Court again reversed the decision of the trial court which had denied a motion for additur. In Fileccia, the jury had awarded all claimed economic damages of $6,418.00 with no corresponding award of non-economic damages. In Fileccia, while there was no evidence of prior injuries, there was evidence of two subsequent injuries. The court stated as follows:
In finding that the plaintiff, by virtue of the accident, had suffered an injury requiring treatments and medication, the purpose of which was to alleviate pain and to improve functioning, the jury necessarily found that he had experienced pain and decreased functioning. Accordingly, it should have awarded noneconomic damages to compensate him for that pain and decreased functioning. Moreover, insofar as there was no evidence suggesting that the plaintiff had any preexisting conditions, the jury could not have reasonable attributed these problems to a cause other than the accident. Id. at 489.
Finally, in Lombardi v. Cobb, 99 Conn.App. 705 (2007), the Appellate Court affirmed the decision of the trial court which had granted an additur, where the jury awarded economic damages only for all claimed medical expenses and lost wages, where there was no evidence of prior injuries.
The majority of post- Wichers trial courts faced with a motion for additur where the award is for the full amount of claimed economic damages, with no award for non-economic damages, have denied the motion where evidence of a pre-existing injury was introduced. See Mazo v. Baker, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 06 5005518 (May 28, 2008, Arnold, J.) (verdict of $5,841.30 economic damages only, reduced by comparative negligence, where the plaintiff was seen at the hospital, given medications, and treated on identical dates, along with two other plaintiffs, with a chiropractor and evaluated by an orthopedic surgeon; evidence of prior, similar injuries from two other car accidents; Petersen v. Gorman, Superior Court, judicial district of Waterbury, Docket No. 99 0150279 (May 13, 2002, Pittman, J.) [32 Conn. L. Rptr. 137] (verdict of $4,055.35 economic damages only, relating to diagnostic treatment at emergency room, two visits to family doctor, and months at a chiropractor; evidence at trial included an x-ray disclosing a moderate preexisting arthritic condition); Frazier v. Konopka, Superior Court, judicial district of New Britain at New Britain, Docket No. 98 0490379 (January 25, 2002, Quinn, J.) (verdict of $4,294.90 economic damages only, where there was evidence of degenerative change to the cervical spine, and defense expert could not determine whether the restricted range of motion pre-dated the accident); Lafrance v. Hunchak, Superior Court, judicial district of New Haven at New Haven, Docket No. 95 0376064 (June 15, 2000, Moran, J.) (verdict of $3,417.56 economic damages only, where substantial amount of medical expenses were for medical evaluation rather than treatment and remaining expenses were for four chiropractic visits; additionally, evidence of similar injuries from prior and subsequent accidents); Johnson v. Strickland, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 98 0350826 (March 30, 2000, Mottolese, J.) (evidence at trial included complaint filed three weeks after the date of the accident in this case, relating to a motor vehicle occurring two years prior, where the plaintiff alleged both in the prior complaint and the present case similar injuries).
The decision does not indicate the amount of damages awarded or the nature of the medical treatment.
The trial courts, subsequent to the Wichers decision, have also denied motions for additur where the jury awarded all the claimed medical expenses with no award of non-economic damages, where evidence was presented attacking the credibility of the plaintiff. See Couture v. Donnarumma, Superior Court, judicial district of Tolland at Rockville, Docket No. 06 6000060 (November 5, 2007, Vacchelli, J.) [44 Conn. L. Rptr. 455] (verdict of $3,674.40 — $3,272.40 in medical expenses and $402.00 in lost wages — which included ambulance, hospital, pain medication, and chiropractic treatment, where the plaintiff testified that she did not work for the two weeks giving rise to the wage claim in order to avoid causing pain to herself, all her complaints were subjective, and her credibility was at issue); Cyr v. General Insurance, Superior Court, judicial district of New Britain at New Britain, Docket No. 99 0498221 (February 6, 2002, Quinn, J.) (verdicts of $6,461.75 economic damages only for one plaintiff and $4,519.60 economic damages only for other, where plaintiffs made conflicting reports to their medical providers and at trial about their injuries, and where they consulted with an attorney before seeking medical treatment); Williams v. Agosto, Superior Court, judicial district of New Haven at New Haven, Docket No. 03 0483877 (October 18, 2005, Zoarski, J.) (verdict of $4,279.00 economic damages only, reduced by comparative negligence, where plaintiff first consulted with attorney, and then began chiropractic treatment).
Whether the reasons for denying a motion for additur is evidence of pre-existing injury, seeking legal advice before medical treatment, lack of credibility of the plaintiff, or some combination thereof, in my opinion it is noteworthy that the economic damages awards in this line of cases involving awards of economic damages only, for all claimed economic damages, are all modest awards of $6,500.00 or less; none appear to involve extensive medical treatment relating to treatment of pain or pain management as the case presently before the court.
Trial courts, faced with a motion for additur where the jury awarded all the claimed medical expenses, without an award for non-economic damages, will generally grant an additur, where there has been an award of lost wages or for future treatment. See Buckley v. Curry, Superior Court, judicial district of Litchfield, Docket No. 07 5001590 (June 16, 2008, Pickard, J.) (where award of $6,500.00 in economic damages included award for lost wages and for chiropractic treatment; no pre-existing); Benedetto v. Zaku, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 07 0200793 (December 14, 2006, Downey, J.) (where award of $58,872.14 in economic damages included $50,000.00 for future medical expenses relating to spinal fusion with laminectomy); Lombardi v. Cobb, Superior Court, judicial district of New London at Norwich, Docket No. 410041 (February 15, 2006, Leuba, J.) [40 Conn. L. Rptr. 761] (where award of $3,293.16 of all claimed economic damages included lost wages, treatment by her own doctor, an orthopedist, twelve physical therapy treatments; no pre-existing injuries); Harrison v. Symmes, Superior Court, judicial district of New Haven at Meriden, Docket No. 02 0280234 (April 23, 2003, Fischer, J.) (where award of $4,888.00 of all claimed economic damages included lost wages; no evidence of pre-existing injury); Warmsley v. Fitzpatrick, Superior Court, judicial district of Middlesex at Middletown, Docket No. 01 0095855 (October 31, 2003, Jones, J.) (award of $9,206.46 of all claimed medicals and lost wages; no evidence of pre-existing injury, and plaintiff, who was hospitalized for three days, was given extensive pain medication and had scarring); Loughrey v. Rizzetta, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 00 0372507 (September 17, 2002, Ballen, J.) (where $5,204.26 award of economic damages included lost wages and expense of future treatment, reasoning that the jury had to have accepted that the plaintiff suffered some form of pain and suffering and that the verdict was inconsistent); or where the treatment was related to the alleviation of pain, See Herbert v. Godin, Superior Court, judicial district of New London, Docket No. 07 5004355 (November 20, 2008, Leuba, J.) (award of all claimed medical expenses of $60,000.00, which included lost wage claim; the jury "necessarily found" that she experienced pain); Buckley v. Curry, supra; Martinez v. Josephs, Superior Court, judicial district of Hartford at Hartford, Docket No. 05 4013074 (April 3, 2007, Scholl, J.) (where award of economic damages only in the amount of $3,375.49 represented all claimed medical expenses, including a hospital visit the day following the accident, a visit to her doctor, one physical therapy session, and twenty-two chiropractic treatments, all over the course of the eight months and therapies such as electric stimulation and heat pads to relieve pain in the neck and back, noting that those expenses "were not simply for diagnosis;" plaintiff had prior similar injury to neck); Padron v. Lopez, Superior Court, judicial district of New Britain, Docket No. 05 4003291 (May 24, 2006, Shaban, J.) (award of all claimed economic damages including $895.30 in medicals); Mazo v. Baker, supra (where award of economic damages only in the amount of $5,946.70 represented all claimed medicals, and included treatment and medication, and where plaintiff had no preexisting injury; plaintiff, along with other two plaintiffs in the case, was seen at the emergency room that day, a chiropractor for four months, and an orthopedic surgeon). The present case falls within this last line of cases.
In order to determine whether an additur is warranted, Wichers requires a case specific analysis. Furthermore, in this case, where the jury awarded substantial economic damages representing all claimed economic damages, with no award for non-economic damages, a careful analysis of the medical evidence is required. Here, the jury awarded the plaintiff all the claimed medical bills, which included over seventy medical visits, with the great majority of treatment related to the alleviation of the plaintiff's pain. Additionally, the treatment for which the plaintiff was compensated by the jury included not just subjective complaints of pain, but documentation of objective findings by all his medical providers, including muscle spasms, which by definition are painful; according to the medical records in evidence, the spasms continued consistently throughout the treatment. The jury was presented with voluminous records relating to the plaintiff's other accidents, and with respect to economic damages, was instructed to compensate the plaintiff only for reasonable and necessary medical expenses which were proximately caused by the defendant's negligence; nonetheless, the jury chose to fully compensate the plaintiff for all claimed medical expenses, relating to over seventy medical visits for treatment of pain. Regardless of whether or not the plaintiff's credibility was called into question, or whether the plaintiff had prior or similar injuries the fact remains that where a jury is awarding somewhat substantial medical expenses for treatment relating to pain — and thereby has determined those medical expenses to be reasonably necessary and proximately caused by the defendant's negligence — it stands to reason that some award of non-economic damages for pain and suffering is in order. It is illogical to award economic damages for treatment of pain and injury, and not award damages for the pain produced by the injury. As the Connecticut Supreme Court noted in the Schroeder case, in awarding all claimed economic damages and thereby finding the defendant to be fully liable for all the plaintiff's claimed medical expenses, the jury ruled out other possible causes of the plaintiff's injuries.
This jury had many options. It could have found that all, some, or none of the claimed medical expenses were reasonably necessary, and proximately caused by the defendant's negligence. In this case, it chose to award the plaintiff every penny of the claimed medical expenses. By awarding each item of claimed medical expenses, it found that all of the treatment, including the extensive palliative treatment, was reasonable, necessary, and proximately caused by the defendant's negligence. Unlike the Wichers case, where the plaintiff had a prior injury and had been treating with a chiropractor previously for seven years as part of a monthly medical treatment, the medical records in evidence in the present case indicate that the plaintiff had been formally discharged from treatment the day before the accident occurred.
The nature of the treatment giving rise to the medical expenses awarded by the jury as economic damages is crucial to the determination of whether an additur is in order. If, for example, the only medical expense claimed by a plaintiff and awarded by a jury was for a purely diagnostic examination, it is easy to justify a jury award of economic damages only. If, on the other hand, a jury awarded economic damages only, with medical expenses of $100,000, representing numerous doctor visits over a period of years for treatment of pain, it becomes difficult if not impossible to justify such an award. Although our Supreme Court, in Wichers and Schroeder, has made clear that the approach to be taken is by a case-by-case basis rather than a formulaic approach, the fact remains that the higher the amount of an economic damages only award, the more difficult it is to justify, to the extent it is reflective of more extensive, involved treatment for pain, rather than pure diagnostic testing or examinations.
The verdict arrived at by the jury in the present matter tells us that the jury decided that the defendants were liable, that the plaintiff had reasonable and necessary medical expenses proximately caused by the defendants' negligence, including treatment for pain, and that while the treatment for pain was necessary and caused by the defendant's negligence, the plaintiff had no pain, loss of ability to enjoy life's pleasures, or permanent impairment. Under the evidence presented in this case, viewed in a light most favorable to the defendant, such a verdict is inconsistent. In this case, where the jury awarded the plaintiff all claimed medical expenses of $8,718.00, for treatment in excess of seventy visits, with the majority of the treatment relating to treating and alleviating the plaintiff's pain, I must in good conscience come to the inescapable conclusion that the jury verdict is inconsistent.
The plaintiff's motion for additur is granted. An additur of $15,000 in non-economic damages, reduced by plaintiff's comparative negligence of 38%, is ordered, resulting in a total award of $14,705.00, representing $5,405.00 in economic damages and $9,300.00 in non-economic damages. The parties have twenty days from this date to file their written acceptance or rejection of the additur with the clerk's office. If the additur is accepted, judgment will enter for the plaintiff in the amount of $14,705.00, plus taxable costs. If the additur is not timely accepted by both parties a new trial is ordered.