Opinion
No. CV 02-0820697-S
October 20, 2006
MEMORANDUM OF DECISION
In this negligence action following trial before a jury over several days, beginning June 28, 2006, a verdict was rendered in favor of the plaintiff, Amy Ng, against Wal-Mart Stores, Inc. The jury awarded the plaintiff $2,335.13 in economic damages and zero non-economic damages. By motion dated July 17, 2006, and subsequently amended on July 18, 2006, the plaintiff moved to set aside the verdict as to damages only and on July 18, 2006, filed a motion for additur based on her claim that the award is contrary to law, against the evidence and inadequate as a matter of law. The defendant filed an objection to the motions to set aside and for additur on August 10, 2006 and August 14, 2006 respectively. Oral argument on the motions was heard by the court on August 14, 2006.
In this vigorously contested case, the jury heard conflicting evidence as to both liability and damages. The plaintiff asserted that on December 21, 2000, as a customer in line at a cash register in one of the defendant's stores, she was injured when a large box, containing a chair, was placed on a conveyor belt and fell on the plaintiff's left wrist after the cashier moved the conveyor belt forward. There was conflicting evidence as to whether or not the box fell, whether the plaintiff screamed, and even whether or not the plaintiff talked with a store manager on the day of the incident or two weeks later, on January 7, 2001. In addition to introducing documentary evidence, the plaintiff testified on her own behalf.
As to damages, the plaintiff sought medical bills in excess of $17,255.00, including surgery to the left wrist, and produced medical evidence claiming a 14% permanency in her left wrist. The plaintiff testified that from the onset of the incident in December 2000 through to the present time, she continues to experience pain in her left wrist. The jury, however, also heard evidence that the plaintiff went to see a movie right after the incident and did not seek medical treatment until January 10, 2001. There was evidence that eight days after the incident, she had seen an orthopedic surgeon, Dr. Mailly, for unrelated injuries, but did not mention her injury "because it was not bothering her that much at the time." Exhibit 3. On March 21, 2001, she reported to her primary physician, Dr. Bebb, that her left wrist hurt immediately but her right wrist didn't hurt until a week after the incident. Exhibit 5. In addition to seeing Dr. Mailly and his associate, Dr. Stevens, the evidence indicates that from January 2001 to December 2001, Ms. Ng. saw Dr. Gabow, Dr. Linburg, Dr. Slade and Dr. Mara, all of whom were either orthopedic surgeons or specialists in hand and wrist surgery. In addition, the plaintiff was seen by Dr. Silvers, a neurologist in April 2001 and submitted to a variety of tests, including x-rays, magnetic resonance imaging procedures, arthrograms for both wrists and neurological testing.
The defendant also produced Dr. Duffield Ashmead, a board certified hand surgeon, who conducted a records review of Ms. Ng's medical history. He reviewed the results of objective testing performed on Ms. Ng, noting repeatedly the normal findings on the various magnetic resonance imaging reports, x-rays, neuro-diagnostic tests and CT-scans. He also reviewed the series of medical notes of the many different medical doctors and specialists whom Ms. Ng saw in the months following the incident. He noted that all reported no evidence of instability of the distal radialulnar joint ligaments. Thus but for her subjective reports, a whole series of medical professionals could find no objective basis for her discomfort. Notwithstanding the surgery eventually performed by Dr. Kelly, Dr. Ashmead concluded that the plaintiff's self-reports and his review of her medical records indicate that she may have suffered a mild injury or contusion. As such, he "absolutely" disagreed with the severity of the injury as Ms. Ng described it.
Indeed, much of the documentary evidence relied upon by Dr. Ashmead confirmed consistently normal findings. See, e.g., Exhibits 4, 6, 8, 12, and 13. Dr. Ashmead noted that there was no indication of tremendous pain, swelling or bruising following the incident and that several weeks went by before the plaintiff was evaluated. Indeed, a July 2001 report by Dr. Mara, a hand surgeon who had operated on her right wrist in May 1998 following an incident in another department store in October 1995, specifically noted that the plaintiff had a "full active and passive range of motion of the wrist in flexion, extension, rotation, and ulnar and radial deviation, none of which provoke pain." Exhibit 13. He additionally observed that "[a]lthough the patient states that she is in severe pain, her complaints are not born out on an objective basis." Id.
The seminal case on the issue of whether to set aside a verdict in which a jury awards economic damages but zero non-economic damages is the decision of the Supreme Court in Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000). In that case, the court overruled Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), and its per se rule that such an award was per se inconsistent and inadequate as a matter of law. In so doing, it articulated a case by case standard by which the trial court must consider such motions to set aside. The Wichers court wrote:
[I]f . . . [the trial judge] 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 were 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 . . . A mere doubt of the adequacy of the verdict is an insufficient basis for such action . . . A conclusion that the jury exercised merely poor judgment is likewise insufficient . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.
(Citations omitted; emphasis added.) Wichers v. Hatch, supra, 252 Conn. 187.
The plaintiff distinguishes Wichers from the instant case because that court noted that a pre-existing condition is the kind of evidence that might account for an award of zero non-economic damages. Here, however, there is at least some evidence by Dr. Ashmeade that Ms. Ng's pain may have been the result of a pre-existing condition. Even if the jury did not consider evidence of a pre-existing condition, however, the Wichers court did not hold that only in circumstances where there is a pre-existing condition can jury verdicts of zero non-economic damages be honored. Indeed, the Wichers court noted that a pre-existing condition was simply an example of when a jury might properly award non-economic damages. Id., 186. As the Wichers court observed, "[r]ather 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 court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof on 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." Id., 188-89.
In earlier treatment in 1997 and 1998 with orthopedic surgeon, Dr. Mara, the plaintiff had reported to him that she sustained injuries to her right wrist and both knees as a result of an incident in Montgomery Wards Department Store. Although she received a 5% permanency rating only to her right wrist, she also reported numbness in both hands and on April 20, 1998, had noted pain to her left wrist. Exhibit F.
The plaintiff also relies on Schroeder v. Triangulum Associates, 259 Conn. 325, 789 A.2d 459 (2002), in support of her claim that this court should set aside the verdict. In Schroeder, however, the trial court was reversed when it refused to set aside the jury's verdict, which awarded "substantially all the economic damages" sought by the plaintiff and zero non-economic damages. Id., 329. Moreover in Schroeder, the jury's award of damages included medical expenses for spinal fusion surgery. Id., 332. See also Fileccia v. Nationwide Property Casualty Ins. Co., 92 Conn.App. 481, 886 A.2d 461 (2005), cert. denied, 277 Conn. 907, 894 A.2d 987 (2006) (trial court reversed when it refused to set aside the verdict of the jury, which awarded the exact amount of medical damages sought by the plaintiff but zero non-economic damages). Given the invasiveness of such a procedure, the court concluded that the jury could not reasonably have found the defendant liable for such expense, and then fail to award damages for the pain and permanent disability inherent in such surgery. Schroeder v. Triangulum Associates, supra, 259 Conn. 332.
In the case before this court, of course, the facts are dramatically different from both Fileccia and Schroeder. Unlike Fileccia and Schroeder, the jury in this case awarded the plaintiff only $2,355.16 of her total medical expenses of $17,255. Moreover, Smith v. Lefebre, 92 Conn.App. 417, 885 A.2d 1232 (2005), argued and decided within days of Fileccia v. Nationwide Property Casualty Ins. Co., presents facts whose similarity to the case at bar is more compelling. Although the defendant in the Smith case admitted liability as to negligence, the court noted that the "nature and extent of the plaintiff's injuries were disputed aggressively at trial." Smith v. Lefebre, supra, 92 Conn.App. 423. In Smith, the plaintiff felt a "bump" after she was rear-ended by the defendant, after which she felt "achy," treated with a physical therapist, and was subsequently given permanent partial disability ratings of 5% by a treating orthopedist and 7% from her neurologist for injuries to her cervical spine. Id., 418-24. In hearing all of the evidence, the jury awarded $5,500 in economic damages but zero non-economic damages. Id., 419. Finding no reasonable basis in the evidence for the jury's verdict, the trial court awarded an additur, which was refused by the defendant, whereupon the court set aside the verdict and ordered a new trial. Id., 420.
Noting a significant amount of conflicting evidence regarding the extent of her injuries, however, the Smith court noted that "the jury could have concluded that the plaintiff embellished or exaggerated both the nature and the extent of her injuries." Id., 426. As such, the court concluded that the presence of such conflicting evidence "curtailed the court's authority to replace the jury's damage award with its own" and reversed the trial court's decision to set aside the verdict. Id.
Moreover, the court observed that "[t]here is no obligation for the jury to find that every injury causes pain, or the amount of pain alleged." Id., 422. It further noted that "[It is the jury's right to accept some, none or all of the evidence presented . . . It is the [jury's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses." (Internal quotation marks omitted.) Id. In the case before this court, the jury had an opportunity to observe the demeanor of the plaintiff on the witness stand. They had an opportunity to evaluate her credibility and her claims with respect to pain and suffering and the extent to which she has suffered a loss of life's enjoyment as a result of her injury. Nevertheless, the jury clearly did not credit the plaintiff's testimony with respect to a large proportion of her claimed medical expenses. Indeed, given the plethora of conflicting evidence regarding 1) the severity of the box's impact on her wrist, 2) the timing of her reports of pain to her wrist, and 3) the lack of objective evidence for her subjective claims, the jury could reasonably have concluded that the plaintiff exaggerated the nature and extent of her injuries.
As such, this court cannot find that the jury's verdict "so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption." (Internal quotation marks omitted.) Wichers v. Hatch, supra, 252 Conn. 187. Given the jury's duty to reach a verdict which "falls somewhere within the necessarily uncertain limits of just damages," this court will not usurp this constitutionally protected function where the weight of the evidence supports such a finding. Id., 187.
The motions for additur and to set aside the verdict are hereby DENIED.