Opinion
No. 410041
February 15, 2006
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO SET ASIDE VERDICT AND MOTION FOR ADDITUR
This vigorously contested action involved a rear-end automobile collision on an ice-covered highway in the Town of Preston, Connecticut, in which the plaintiff was the driver. The plaintiff's vehicle was struck from behind by the defendant's black truck while stopped on the highway unable to ascend a hill due to icy conditions on the road. Suit was instituted by writ and complaint of August 30, 2004, returnable to this court. The case was tried to a jury on November 22, 2005 and subsequent days. Both parties were ably represented by counsel, presented evidence and argument.
The evidence was undisputed that the plaintiff's vehicle was struck by the defendant's truck which had been traveling in the same direction. The plaintiff testified that she did not feel the impact. The plaintiff refused medical treatment at the scene and denied injury. However, she was seen by her own doctor thereafter who treated her back and shoulder pain complaints with Motrin. She missed three days of work. She was referred to an orthopedic doctor who testified as to her treatment, examinations and physical therapy. She had x-rays taken, EMG studies done and was prescribed physical therapy by her orthopedic doctor. Nerve conduction studies were completed. By June 6, 2003, she had only a mild degree of tenderness. In February 2004 she had some limitation of motion and discomfort and was given home exercises by her doctor. The doctor admitted on cross-examination that the 2004 visit was "mainly" for evaluation. He gave a rating of 2% of the cervical spine and 2% of the thoracic spine based on a decrease of range of motion. He indicated that her injury was consistent with the pain she claimed to have experienced and that "flair-ups" of pain were not unusual. She underwent 12 treatments of physical therapy after which she was described as much improved. She testified that certain of her life's activities were affected by the sprain and strain she had experienced including bowling, lifting and camping. She testified that she continued to have pain two or three times a month at the time of trial.
Significantly, there was no evidence of any preexisting injury or limitation in the 33-year-old plaintiff. The evidence showed she had incurred medical expenses of $2,733 (Plaintiff's Exhibit 5) and lost wages of $560.16 (Plaintiff's Exhibit 8).
The defendant, who was on his way to school at the time, told the investigating officer that he applied his brakes but could not stop in time. The jury saw photographs of the plaintiff's vehicle and the scene of the accident, including a photograph of the sight-line the defendant would have had when following the plaintiff's vehicle.
The jury returned a verdict in favor of the plaintiff on the issue of liability and awarded exactly all of her claimed economic damages of $3,293.16 but zero non-economic damages. This motion by the plaintiff followed on December 2, 2005. The motion was argued by the attorneys for the parties in this court on February 7, 2006.
"In passing on a motion to set aside a jury verdict, a trial court, like a juror considering the evidence, must draw upon its experience and knowledge of human nature, events and motives and evaluate the verdict in that context. Schroeder v. Triangulum Associates, 259 Conn. 325, 329-30, 789 A.2d 459 (2002). If the court "finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or [was] governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial . . . The trial judge has a broad legal discretion and his action will not be disturbed unless there is a clear abuse." Id., 330.
Our Supreme Court has articulated a special standard for the review of verdicts like one at issue here to determine whether inconsistency renders them legally inadequate. Id. "In Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000), [the Supreme Court] held that trial courts, when confronted with jury verdicts awarding economic damages and zero noneconomic damages, must determine on a case-by-case basis whether a verdict is inadequate as a matter of law." Schroder v. Triangulum Associates, supra, 259 Conn. 330. "Under Wichers, the jury's decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it. Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue." (Internal quotation marks omitted.) Id. "The evidential underpinnings of the verdict itself must be examined," albeit with deference to the jury's findings. Wichers v. Hatch, supra, 189. "[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 (its) will." (Internal quotation marks omitted.) Id.
Applying the foregoing standards, our Supreme Court has held that an award of "virtually all" of a plaintiff's claimed economic damages, with no accompanying noneconomic damages, demonstrated an inconsistency in the verdict; see Schroeder v. Triangulum Associates, supra, 259 Conn. 332; although it allowed that in a different case, such an award might be proper. Id., 334 n. 5. In Schroeder, the jury found the defendant liable for the costs of the plaintiff's intrusive spinal fusion surgery, but awarded nothing for the pain and permanent disability that necessarily would accompany such a procedure. Id., 333. The Supreme Court concluded that the award was incongruous and held that the trial court abused its discretion in failing to set aside the verdict. Id., 332.
Additionally, in several cases where jury awards of substantial economic damages with no or little accompanying noneconomic damages were sustained on appeal, evidence had been presented to show that the plaintiff had some preexisting condition. See, e.g., Wichers v. Hatch, supra, 252 Conn. 177; Turner v. Pascarelli, 88 Conn.App. 720, 729-30, 871 A.2d 1044 (2005); Schettino v. Labarba, 82 Conn.App. 445, 447, 844 A.2d 923 (2004); Daigle v. Metropolitan Property Casualty Ins. Co., 60 Conn.App. 465, 478-79, 760 A.2d 117 (2000), aff'd, 257 Conn. 359, 777 A.2d 681 (2001). In those cases, it was held that the jury reasonably could have concluded that the prior condition was the cause of the pain alleged, rather than the tortuous actions of the defendant. See Wichers v. Hatch, supra, 189-90; Turner v. Pascarelli, supra, 730; Schettino v. Labarba, supra, 449-50; CT Page 3169 Daigle v. Metropolitan Property Casualty Ins. Co., supra, 479. Compare Elliott v. Larson, 81 Conn.App. 468, 840 A.2d 59 (2004) (court properly granted additur when jury awarded plaintiff economic damages of all medical expenses and lost wages claimed but no noneconomic damages, and no evidence presented that preexisting condition caused plaintiff's pain). Fileccia v. Nationwide Property Casualty Ins., 92 Conn.App. 481 (2005).
The court here has reviewed carefully the circumstances of the case, the evidence presented to the jury and the arguments of the attorneys, 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. This was the direction of the court in Wichers, supra, at 189, where the court went on to say "Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury . . . 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 . . . 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.) Id., 189.
Having applied those standards and especially considering the fact that the jury by its verdict ascribed the liability to the defendant and there being no pre-existing injuries in this case, the court has come to the conclusion that the jury could not have reached the result that it did in failing to award non-economic damages for the plaintiff's pain and suffering without having been governed by mistake, ignorance, prejudice, corruption or partiality. The verdict in this case does, in fact, both shock the conscience of the court and suggest that the plaintiff was awarded inadequate damages.
Accordingly, it is ORDERED that the verdict be set aside unless within thirty days from the filing of this decision the defendant shall file with the clerk an additur in the amount of $5,000.00.
Thereafter the plaintiff shall have one week from the filing of the additur by the defendant to accept the additur by filing an acceptance with the clerk. If the additur is not filed within said time or filed and not accepted by the plaintiff, the verdict is hereby set aside and a new trial is ordered limited to the issue of damages.