Opinion
No. CV 07-501 047 42 S
March 25, 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 July 10, 2006, at the intersection of Main Street and Fairview Avenue in Bridgeport, Connecticut. The defendant contested both liability and damages. On January 21, 2009, the jury rendered a verdict for the plaintiff, awarding the full amount of claimed economic damages of $2,291.90, and no non-economic damages. 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 motion and objection were on the short calendar on February 14, 2009.
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.) Wallace v. Haddock, 77 Conn.App. 634, 636-37 (2003). "The verdict should he 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. Gaucho 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.
The plaintiff, Jennifer Seda, had the right of way at the intersection when her vehicle was struck on the driver side by the right front of a vehicle operated by the defendant John Bras. The plaintiff placed her speed at approximately 20 to 25 mph at the time of the accident, and the defendant estimated his speed at 10 mph; neither could offer testimony as to the other's speed. The plaintiff's body moved to the left upon impact, and the vehicle she was operating, which sustained approximately $103.00 in property damage, was shifted to the right. The plaintiff told the police officer at the scene that she was not injured, and she drove the vehicle home after the accident.
The plaintiff felt pain in her left arm later that day and had difficulty sleeping that night. The pain worsened, and she left work the next day to seek treatment at St. Vincent's Hospital Emergency Room. She was diagnosed with a left arm contusion and prescribed Motrin there. On August 23, 2006, she was seen at Bridgeport Hospital for x-rays of the shoulders; the x-rays were negative, and she was directed to take Motrin and Vicodin, and to follow up with an orthopedist. She saw Dr. Eric Katz, an orthopedist, on August 28, 2006; in addition to noting her subjective complaints of pain, he noted his objective findings upon examination of muscle spasms over the left trapezium muscle. His diagnosis was acute musculoligamentous strain of the cervical spine, and he recommended physical therapy, heat, and Skeloxin, with a three-week follow up to his office. The plaintiff underwent physical therapy on five occasions between August 30, 2006 and September 14, 2006; the records consistently reflected the finding of muscle spasm. The plaintiff discontinued her medical treatment at that point. The plaintiff testified that the symptoms with her left upper arm never completely resolved.
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." 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 Witchers, 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.
This court, in Lankhantar v. Travisano, Superior Court, judicial district of New Haven, Docket No. 03480835 (January 14, 2009, Bellis, J.), provided an exhaustive summary of post- Wichers additur cases. There have been a few additional decisions since then. The Appellate court, in Benedetto v. Zaku, 112 Conn.App. 467 (2009), affirmed the decision of the trial court, which had granted an additur. In Benedetto, the jury had awarded substantial economic damages of $8,872.14 for past medical expenses, and $50,000 for future medical expenses for a spinal fusion, with no award of non-economic damages. There was evidence of a preexisting degenerative condition. The trial court focused on the fact that the jury concluded that the accident proximately caused the plaintiff's injuries, and considered that both parties' physicians agreed that the plaintiff's injuries were permanent, painful, and likely to worsen, and that at least some of the plaintiff's pain was attributable to the accident. The Appellate Court found that the award to the plaintiff of "100% of his past medical bills and $50,000 toward future medical bills . . . is inconsistent with the jury's finding that the accident did not cause the plaintiff any non-economic damages, which indicates that the jury did not find that the accident caused the plaintiff any pain or suffering or permanent injury." Id. At 472. The court found a "logical inconsistency" with the verdict, which found the defendant liable for at least a portion of the spinal fusion surgery, but free from liability for all the "pain or disability attendant to such surgery." Id. See also D'Amico v. Johnson, Superior Court, judicial district of Danbury at Danbury, Docket No, 065001387 (February 9, 2009, Shaban, J.) (Granting motion for additur, where jury awarded $3,206.00 of claimed medical expenses of $6,796.00, with no award of non-economic damages, and where there was no evidence of any pre-existing injury).
In the present case, there was no evidence of any pre-existing or similar injury. Additionally, while the defendant rigorously cross-examined the plaintiff, there was no attack on her credibility.
In order to determine whether an additur is warranted, Wichers and its progeny require a case specific analysis. Furthermore, in this case, where the jury awarded 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 while relatively minor treatment, included evaluation and treatment which consistently documented the existence of muscle spasms an objective finding, and referenced complaints of, and medication for, pain.
With respect to economic damages, the jury 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 the claimed medical expenses in full. The fact remains that where a jury is awarding all claimed medical expenses for treatment — 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, where, as here, the medical expenses awarded are not limited to evaluation alone. It is illogical to award economic damages for treatment of an 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 was reasonable, necessary, and proximately caused by the defendant's negligence.
The verdict arrived at by the jury in the present matter tells us that the jury decided that the defendant was liable, that the plaintiff had reasonable and necessary medical expenses proximately caused by the defendants' negligence, including the physical therapy 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 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 $4,000 in non-economic damages is ordered. 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 $6,291.90, plus taxable costs. If the additur is not timely accepted by both parties a new trial is ordered.