Opinion
CV156052511S
08-03-2017
Donna Rose v. Melissa B. Carnahan
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT AND ADDITUR
Richard E. Arnold, Judge
The plaintiff has filed a motion to set aside the jury verdict entered on May 4, 2017, arguing that the verdict was against the evidence and contrary to law. In the alternative, the plaintiff requests that the court order an additur to the jury verdict, arguing that the verdict was inadequate and was against the weight of the evidence and was also contrary to law. Specifically, the plaintiff requests that the court add to the verdict a sum which is fair, just and reasonable for non-economic damages.
This action involves a motor vehicle accident that occurred on November 16, 2013, in Westport, Connecticut, in which the plaintiff claimed she sustained personal injuries to her left lower extremity, neck and teeth. On May 4, 2017, the jury returned a verdict in favor of the plaintiff in the total amount of Six Thousand, seven hundred and sixty-two dollars and four cents ($6, 762.04). The economic damages awarded were Four thousand, seven hundred and sixty-two dollars and four cents ($4, 762.04) and the non-economic damages awarded were Two thousand dollars ($2, 000.00). The jury interrogatories form regarding medical bills only reflects that the jury awarded economic damages for the total bills submitted for the Westport EMS, Norwalk Hospital and Coastal Orthopedics. The jury also awarded economic damages for an initial visit to Dr. Adam Freeman, of Westport Dental Associates. The jury refused to award any economic damages for Dr. Jenny Matthews and Dr. Dennis Pipher of Endodontic Associates of Norwalk for dental treatments rendered to the plaintiff.
Dr. Freeman's bill totaled $4, 561.00. The jury awarded $151.00. Dr. Mathews's bill was $980.00. The jury awarded $0.00. Dr. Pipher's bill was $3, 590.00. The jury awarded $0.00.
The plaintiff argues she suffered dental injuries resulting in fractures to her teeth. As a result she had a root canal and crowns. These injuries and treatment were in addition to the injuries to her left lower extremity and her neck, for which she treated at Coastal Orthopedics. The plaintiff testified as to her injuries, pain and suffering and the ways in which her life has been impacted by these injuries. She claimed she continues to suffer to the present and continues to take over the counter medications.
During the course of the trial, the jury heard the testimony of the plaintiff and her husband. All of the plaintiff's medical bills and treatment records were entered into evidence. On behalf of the defendant, the jury heard testimony from Dr. Leonard Skope, who was presented as an expert witness in oral and maxillofacial surgery and dentistry. The trial commenced May 2, 2017, and the jury's verdict was rendered on May 4, 2017.
The defendant Carnahan did not testify, but at an earlier dated had admitted at least one allegation of negligence.
I Standard of Law
" The trial court possesses inherent power to set aside a jury verdict [that], in the court's opinion, is against the law or the evidence . . . [The trial court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside [when] 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 legal principles . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . ." (Citations omitted; internal quotation marks omitted.) Auster v. Norwalk United Methodist Church, 286 Conn. 152, 159, 943 A.2d 391 (2008).
The standards for a motion to set aside the verdict and a motion for additur are identical. Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 541, 792 A.2d 132 (2002). " A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence . . . 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. " Marchell v. Whelchel, 66 Conn.App. 574, 582, 785 A.2d 253 (2001). " The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice. Only under the most compelling evidence may the court set aside a jury verdict because to do so interferes with a litigant's constitutional right in appropriate cases to have issues of fact decided by a jury. The amount of damages to be awarded is a matter particularly within the province of the jury." (Citations omitted; internal quotation marks omitted.) Hunte v. Amica Mutual Ins. Co., supra, 541-42.
" In 2000 the Supreme Court decided Wichers v. Hatch, 252 Conn. 174, 176, 745 A.2d 789 (2000), which expressly overruled the per se rule of Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), in favor of a case-by-case determination of whether the verdict was adequate. Although Wichers involved a situation where the jury had awarded economic damages and no non-economic damages, the basic holding is applicable to the present situation as well. The trial court should examine the evidence to determine whether the jury reasonably could have found that the plaintiff had failed in his or her proof on a given issue. The decision should be made, not on the assumption that the jury made a mistake, but rather, on the supposition the jury did exactly what it intended to do. Wichers, supra at 188-89. In deciding a motion to set aside a verdict, the court must therefore put itself in the position of the jury and determine whether the verdict was unfair, unreasonable and in contradiction of the evidence. The court must determine if the jury's findings were so manifestly unjust that it shocks the conscience." Vestergaard v. Klein, Superior Court, judicial district of Middlesex, Docket No. CV01 0095341S, (December 22, 2003, Silbert, J.).
The Supreme Court has established " the parameters of a trial court's discretion in ruling on a motion for additur. [It has] considered whether: (1) the jury award shocks the conscience; . . . (2) the plaintiff, who has proved substantial injuries, is awarded inadequate damages; . . . and (3) the verdict is inherently ambiguous." (Citations omitted; internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 114-15, 663 A.2d 398 (1995).
In evaluating the adequacy of a jury's verdict, the court cannot substitute its discretion for that of the jury simply because this court would consider or weigh the evidence differently. Mere doubt as to the adequacy of a verdict or a conclusion that the jury exercised poor judgment are insufficient grounds to order an additur. Wochek v. Foley, 193 Conn. 582, 587, 477 A.2d 1015 (1984). The jury, however, is also not obliged to believe that every injury causes pain or the pain alleged. Vajda v. Tusla, 214 Conn. 523, 538, 572 A.2d 998 (1990); Lindman v. Nugent, 59 Conn.App. 43, 755 A.2d 378 (2000). " A verdict should not be set aside . . . where it is apparent that there was some evidence on which a jury might reasonably have reached its conclusion." Schettino v. Labarba, 82 Conn.App. 445, 450, 844 A.2d 923 (2004). A court should be hesitant to set aside a jury's award of damages because the assessment of damages defies any precise mathematical computation. Floyd v. Fruit Industries, Inc., 144 Conn. 659, 675, 136 A.2d 918 (1957). Establishing damages is a task peculiarly within the expertise of a jury. Zarelli v. Barnum Festival Society, Inc., 6 Conn.App. 322, 326, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986).
On the other hand, " it is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence." (Internal quotation marks omitted.) Malmberg v. Lopez, 208 Conn. 675, 679-80, 546 A.2d 264 (1988). The standard controlling this consideration is " whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption." (Internal quotation marks omitted.) Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990).
II
Discussion
A review of the evidence indicates there was nothing to indicate partiality, prejudice, mistake or corruption by the jury. The jury was entitled to compensate the plaintiff only for the medical treatment, pain and suffering they believed was related to the subject accident. The jury awarded the ambulance and hospital bill, as well as the bill for orthopedic treatments, as well as, the initial dental treatment by Dr. Freeman. The remainder of the bills for subsequent dental treatments were rejected by the jury, indicating that the jury did not feel these treatments were necessarily proximately caused by the subject accident.
The plaintiff at the time of the collision of the two vehicles she grabbed her steering wheel and braced her leg. Her left knee was jammed under the dashboard of her car. When the police and ambulance arrived, she complained of pain in her left extremity. She was transported to the emergency room at the Norwalk Hospital, where x-rays were taken, which were negative. She received medication and was later discharged the same day. At home she applied ice to her left knee, foot and leg. The plaintiff testified she remained in bed for a " few" days. She then began to feel pain in her neck, which later spread to her jaw, which prompted her to see a dentist and to seek orthopedic treatment for her neck and left leg.
The plaintiff was working informally and did not present any claim for lost wages.
She visited with her dentist Dr. Freeman complaining of neck and jaw pain. Dr. Freeman, according to the plaintiff, diagnosed damage to a cap and the tooth beneath the cap. The plaintiff denied that she had any tooth pain prior to the accident. Dr. Freeman also recommended that the plaintiff consult an endodontist. The day following her visit to Dr. Freeman, the plaintiff testified a part of her tooth fell out without warning. Dr. Pipher then saw her on an emergency basis. He removed her cap and performed a root canal. He then replaced the plaintiff's cap. She later saw Dr. Mathews for further dental procedures regarding a tooth extension and a crown.
The plaintiff testified the two affected teeth were now fine, but she still had some neck pain on an everyday basis. The left lower extremity pain " comes and goes." She continued to take pain relievers such as Advil, Motrin and Alleve.
Upon cross examination it was noted that Dr. Matthews's report did not offer an opinion as to a proximate cause link between the accident and the plaintiff's dental problems. Dr. Matthews did indicate that the plaintiff had several decayed teeth and that tooth number 30, already had a crown on it prior to the accident and that this tooth was a " non-vital" tooth. The plaintiff denied she had any knowledge of tooth decay prior to the accident and seeing Dr. Mathews. The reports presented from the date of accident, including the EMS report and the Norwalk Hospital report do not indicate that the plaintiff ever complained about striking her head or jaw or ever complained of chin, head, jaw or neck pain. There were no x-rays of these areas or CT scans. When the plaintiff several days later visited Coastal Orthopedics, she complained of hip, leg and neck pain. She had a full range of motion and strength in her back and hip areas. Degenerative arthritis was indicated to be present in her left knee. No M.R.I. exams were performed. In response to discovery interrogatories filed by the defendant, the plaintiff did not claim ongoing neck pain, but at trial she did continue with this complaint. The plaintiff was involved in a subsequent motor vehicle accident, but denied it in her response to discovery requests.
The defendant presented Dr. Skope as an expert witness. Dr. Skope performed a record review regarding the plaintiff's alleged tooth fractures. During his testimony, x-rays of the plaintiff's teeth were shown to the jury. He testified that tooth number 30 was " non-vital" prior to the accident, meaning that it did not respond to heat, cold or pressure. He testified that the accident had no relation to any injury to tooth 30 and was not the proximate cause of the condition of this tooth. The process of a tooth becoming non-vital is a chronic process that takes weeks to months to develop. He also testified to significant decay in other teeth, which also takes months and even years to develop. He testified that teeth can crack due to significant decay and this decay predated the accident. He attributed the plaintiff's dental injuries to decay and found there was no mechanism of injury indicating a direct trauma to the plaintiff's teeth.
The jury had a right and a duty to assess the credibility of the witnesses and to review all the evidence, including the plaintiff's medical records. There was much conflicting evidence regarding the plaintiff's injuries and the proximate cause of her dental injuries. The dental injuries represented a major portion of the medical bills that were submitted by the plaintiff. There was sufficient evidence upon which the jury could reasonably reach the conclusions they reached, which resulted in their ultimate verdict. Under these circumstances, the court cannot and will not substitute its own opinion for that of the jury. Accordingly, the motion to set aside the verdict and motion for additur contained, therein, are denied.