Opinion
No. CV 05-4013074-S
April 3, 2007
In this negligence action, a verdict in favor of the Plaintiff was rendered on November 2, 2006. The jury awarded the Plaintiff $ 3,375.49 in economic damages consisting of hospital and doctor bills. The jury awarded zero non-economic damages. By motion dated November 3, 2006, the Defendant moved to reduce the verdict by the collateral sources received by the Plaintiff or paid on her behalf. As to this motion, the parties agree that the verdict should be reduced to $ 120 because of collateral source payments.
By motion dated November 9, 2006, the Plaintiff moved to set aside the verdict as to damages only and for additur on the grounds that the jury's finding of zero non-economic damages is inadequate, contrary to law and contrary to the evidence. In the alternative, the Plaintiff asks that the entire verdict be set aside on the same grounds. The Defendant filed an objection to the motion on November 15, 2006. Oral argument on the motion and objection was heard by the court on December 18, 2006.
The following evidence was presented at trial. On August 13, 2004, the Plaintiff was driving home after work when her car was struck by the Defendant's car while the Plaintiff was stopped to make a turn. The Plaintiff testified that when she was hit her body went forward and back and her car moved forward about three to four feet. There was minor property damage to both cars. The Plaintiff went home after the accident and laid down, because she was having a headache and back pain. She went to the hospital the next day and later followed up with her own doctor. She was referred for physical therapy, but after one session decided to treat with a chiropractor instead. On August 27, 2004 she went to a chiropractor, Dr. Zapacka. His examination revealed muscle spasms in her mid to low back, he diagnosed her with cervical, thoracic, and lumbar sprains and headaches. He treated the Plaintiff with electrical stimulation and heat packs. In September 2004, after eleven therapy sessions, Dr. Zapacka's examination of the Plaintiff still revealed muscle spasms, although she was feeling better. In her October visit she was still improving but had some tenderness. By November she was about 75% recovered and Dr. Zapacka discharged her with instructions to return as needed. The Plaintiff returned to Dr. Zapacka on January 14, 2005 complaining of a significant increase in upper and lower back pain. He prescribed additional therapy at that time. He saw the Plaintiff again on January 25th and she still had lower back pain, so he referred her to another doctor for pain management. On February 24th, when she was seen by Dr. Zapacka again, she showed some improvement but was still sore and had some spasm. On April 28, 2005, Dr. Zapacka saw her for a final evaluation and found her about 80% recovered but still having some soreness and discomfort. He found that she had a 3% permanent impairment to the lumbar spine. At trial, the Plaintiff claimed she was still experiencing soreness and stiffness in her lower back, although she hadn't seen her doctor or the chiropractor since the spring of 2005. The Defendant admitted liability for the accident but disputed damages.
The Plaintiff submitted, as exhibits, her medical bills. The jury verdict form listed the medical bills, by provider. The jury awarded the Plaintiff all of her medical bills: $ 868 for St. Francis Hospital; $ 338.94 for St. Francis Ambulatory Care Center; and $ 2,168 for Dr. Yoel and Dr. Zapacka. Those bills covered the initial hospital visit, her follow-up physical therapy session, and her chiropractic treatments which consisted of twenty-two visits from August 27, 2004 to April 28, 2005.
In Fileccia v. Nationwide Property Casualty Ins., 92 Conn.App. 481, 486-87 (2005), cert. denied, 277 Conn. 907 (2006), the Appellate Court reiterated the law to be applied by the court when considering a motion to set aside a verdict where the jury has awarded economic damages but no non-economic damages. The court stated: "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 . . . 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 . . . Our Supreme Court has articulated a special standard for the review of verdicts like the one at issue here to determine whether inconsistency renders them legally inadequate . . . In CT Page 6498 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 adequate as a matter of law . . . Under Wichers, 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 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 . . . The evidential underpinnings of the verdict itself must be examined, albeit with deference to the jury's findings . . . If 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 citations and quotation marks omitted.)
In Fileccia the jury had awarded the Plaintiff the exact amount of medical bills incurred by the Plaintiff as a result of a motor vehicle accident but zero non-economic damages. The trial court denied the plaintiff's motion to set aside the verdict and for additur. The Appellate Court reversed. The court held that the verdict was internally inconsistent in light of the fact that the jury had awarded the entire amount of economic damages sought which included charges for physical therapy and pain medication. The court stated: "We conclude that under the circumstances, the jury's award of economic damages and no non-economic damages is internally inconsistent and ought to have been set aside. 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 non-economic 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 reasonably attributed these problems to a cause other than the accident." Fileccia v. Nationwide Property Casualty Ins., 92 Conn.App. 481, 489 (2005).
Recently in Lombardi v. Cobb, 99 Conn.App. 705 (2007), the court affirmed the trial court's order setting aside the verdict and ordering an additur in a similar case. The court stated: "Our examination of the circumstances of the present case leads us to determine that the court correctly concluded that the jury's verdict was inconsistent. The jury awarded the plaintiff the entire amount of medical expenses and lost wages that she had claimed but did not award her any non-economic damages. Because the plaintiff's medical expenses and lost wages related to her treatment for back and shoulder pain, the jury necessarily found that she had experienced pain, and it therefore should have awarded her non-economic damages. The jury reasonably could not have attributed the plaintiff's pain to any preexisting condition because there was no evidence of any such condition." Id., 709-10.
This case is not similar to the situation before this court in Hill v. Saunders, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 04-0933610 (September 20, 2006, Scholl, J.), cited by the Defendant, because there the jury did not award the Plaintiff all of her claimed medicals. Nor is it similar to Smith v. Lefebre, 92 Conn.App. 415 (2005). also cited by the Defendant, where there was conflicting evidence as to the issue of damages and the Plaintiff's credibility was severely damaged during the trial. This case is most similar to the situation before the court in Fileccia and Lombardi.
Here, as in Fileccia and Lombardi, the jury awarded the Plaintiff the exact amount of medical bills incurred by the Plaintiff as a result of the accident. Those included therapies such as electrical stimulation and heat packs to relieve pain. They were not simply for diagnosis but for actual treatment. Consequently the jury must have determined that the Plaintiff suffered injury as a result of the accident which required the medical attention she received and for which the jury compensated her. Therefore the jury's verdict is internally inconsistent in that the jury found that it was necessary for the Plaintiff to receive medical treatment to alleviate the pain she suffered as a result of the accident, but yet failed to award her anything for the suffering associated with the pain itself. Although the Plaintiff did have a prior accident with a neck injury, most of her treatment here related not to her neck but to her back, and that was the area to which her permanency was related.
The Defendant's Motion to Reduce Verdict is granted and the economic damages are reduced to $ 120; the Plaintiff's Motion to Set Aside Verdict, Motion for Additur and Motion for New Trial is granted; and the Defendant's Objection is overruled. The verdict is set aside, and a new trial ordered, unless the Defendant files with the court an additur accepting an addition of $ 6,500.00 to the amount of the verdict, as non-economic damages, within 15 days from today's date.
Lastly, since the trial was limited to the issue of damages, the court cannot grant a new trial as to damages only.
It is so ordered.