Opinion
HHDCV176078430S
05-17-2019
Shawn Smith v. Johanna Needham
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Gordon, Matthew D., J.
MEMORANDUM OF DECISION RE MOTION FOR ADDITUR, OR IN THE ALTERNATIVE, TO SET ASIDE THE VERDICT
MATTHEW DALLAS GORDON, J.
This case involves a motor vehicle accident that occurred on May 13, 2015 in which the vehicle operated by the defendant, Johanna Needham, rear-ended the vehicle operated by the plaintiff, Shawn Smith. The plaintiff filed suit on May 16, 2017, and the matter was tried to a jury over five days between January 8 and 15, 2019.
The accident involved a relatively low-speed rear-end collision. Although the plaintiff did not complain of any injuries at the scene, after speaking with his wife over the telephone, he drove himself to a medical facility where he complained of neck, back, and knee pain. The plaintiff works as a manual laborer and he remained out of work for approximately two weeks following the accident. Approximately four months later, the plaintiff sought medical treatment for pain in his left shoulder. The plaintiff had a preexisting partial labrum tear in his left shoulder for which he had received repeated treatment from 2012 through 2014. The plaintiff claims that the accident aggravated this preexisting injury. The defendant denied liability for the accident, and disputed the causal relationship between the accident and the plaintiff’s claimed injuries.
The plaintiff submitted documentary evidence and expert testimony in support of his request for $51,501.07 in medical expenses and $48,940.50 in lost wages. On January 16, 2019, the jury rendered a verdict in the plaintiff’s favor. The jury awarded the plaintiff $2,501 for the medical expenses he incurred within approximately one month of the accident, and $1,797.25 for the lost wages he suffered from missing several days of work immediately following the accident. The jury did not award the plaintiff any noneconomic damages.
On January 28, 2019, the plaintiff filed a motion for additur claiming that the jury’s verdict is contrary to law, contrary to the evidence, and inadequate. The plaintiff has requested an additur in the amount of $24,500.04 for medical expenses, $24,840.76 for lost wages, and $75,000.00 for noneconomic damages, for a total award of $124,340.80. In the alternative, the plaintiff seeks to have the court set the verdict aside and to order a new trial. In support of his motion, the plaintiff claims that: (1) the jury’s award of partial economic damages and zero noneconomic damages was inadequate; (2) the jury was improperly influenced by a number of factors and the award was the product of passion, prejudice, or mistake; (3) the court failed to properly instruct the jury regarding multiple causes of injury; and (4) the court failed to give the jury adequate curative instructions regarding statements made by defense counsel during closing argument.
The defendant filed an objection to the plaintiff’s motion on March 19, 2019, and the court entertained oral argument regarding the plaintiff’s motion and the defendant’s objection on March 25, 2019. For the reasons set forth below, the plaintiff’s motion for additur, or in the alternative a new trial, is denied.
STANDARD OF REVIEW
The trial court possesses inherent discretion, under limited circumstances, to order an additur to a jury verdict or to set aside a jury verdict entirely. See Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006); General Statutes § 52-216a. The standards for a motion for additur and for a motion to set aside the verdict are identical. See Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 541-42, 792 A.2d 132 (2002). "The test is whether the award falls within the uncertain limits of just damages or whether it is so inadequate that it shocks the sense of justice and compels the conclusion that it was the product of partiality, prejudice, mistake or corruption." Esaw v. Friedman, 217 Conn. 553, 566, 586 A.2d 1164 (1991). "Merely stating that an award shocks the conscience or the sense of justice ... or that the award does not fall within the necessarily uncertain limits of fair and reasonable compensation will not be sufficient." Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 283-84, 32 A.3d 318 (2011).
General Statutes § 52-216a provides in relevant part: "If the court [at the conclusion of the trial] concludes that the verdict is inadequate as a matter of law, it shall order an additur and, upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial."
The trial court must "specifically ... identify the facts of the record that justify the extraordinary relief of additur." (Internal quotation marks omitted.) Cusano v. Lajoie, 178 Conn.App. 605, 610, 176 A.3d 1228 (2017). "A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied ... 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 ... This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury." (Internal quotation marks omitted.) Deas v. Diaz, 121 Conn.App. 826, 841, 998 A.2d 200, cert. denied, 298 Conn. 905, 3 A.3d 69 (2010). "The role of the trial court on a motion to set aside the jury’s verdict [or for additur] is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party [and sustaining the verdict], the jury could reasonably have reached the verdict that it did." (Internal quotation marks omitted.) Weihing v. Preto-Rodas, 170 Conn.App. 880, 884, 155 A.3d 1278 (2017). "Judicial disagreement with a jury’s assessment of the extent of a plaintiff’s injury is not ... a sufficient basis for an additur." Turner v. Pascarelli, 88 Conn.App. 720, 729, 871 A.2d 1044 (2005).
ANALYSIS
I. NONECONOMIC DAMAGES
The plaintiff argues that the jury’s failure to award noneconomic damages is contrary to and inconsistent with the jury’s award of economic damages. According to the plaintiff, the jury’s award of economic damages evidences the jury’s belief that he suffered pain that prevented him from working. The plaintiff also argues that because he has suffered a 2 percent permanent partial disability to his knee, the jury’s award of zero noneconomic damages "shocks the sense of justice." This court does not agree with these suppositions.
"It is well established that in Connecticut a jury’s decision to award economic damages does not trigger, as a matter of law, an automatic award of noneconomic damages ... [T]rial 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 ... [T]he 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. 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." (Citations omitted; internal quotation marks omitted.) Micalizzi v. Stewart, 181 Conn.App. 671, 682-83, 188 A.3d 159 (2018).
"[U]nder the fact intensive, case-by-case inquiry demanded ... it may be reasonable for a jury to conclude that although the plaintiff suffered an injury caused by a defendant and incurred reasonable and necessary medical expenses in treating that injury, that plaintiff nevertheless did not suffer compensable pain and suffering." (Citations omitted.) Micalizzi v. Stewart, supra, 181 Conn.App. 685. "[O]ur Supreme Court has held than an award of virtually all of a plaintiff’s claimed economic damages, with no accompanying noneconomic damages, demonstrated an inconsistency in the verdict ... although it allowed that in a different case, such an award might be proper." (Citations omitted; internal quotation marks omitted.) Fileccia v. National Property and Casualty Ins. Co., 92 Conn.App. 481, 487-88, 886 A.2d 461 (2005).
"In nearly all motor vehicle accident cases, the jury must resolve many factual questions such as the speed of the vehicles, the positioning of the vehicles on the road, the conduct of the operators, the credibility of the parties and witnesses, damage to the vehicles, the extent of injuries to the parties, etc. It is well established that it is the privilege of the jury to believe or disbelieve any evidence and to attribute to any evidence whatever weight it feels is merited." (Internal quotation marks omitted.) Visoky v. Lavoie, 64 Conn.App. 501, 505, 779 A.2d 1284 (2001); see also Mazzacane v. Ellios, 73 Conn.App. 696, 699-700, 812 A.2d 37 (2002).
During the trial, both parties were afforded a full and fair opportunity to present their evidence, and to articulate and argue their respective positions, and in rendering its verdict, the jury could have reasonably taken into account the following considerations: the nature and extent of the plaintiff’s preexisting condition; the physically demanding nature of the plaintiff’s job as a manual laborer; the nature, location, and severity of the impact between the two vehicles; the plaintiff’s failure to complain of pain at the accident scene; the plaintiff’s relatively quick return to work; and the several month gap between the accident and the plaintiff’s subsequent medical treatment for shoulder pain. More specifically, the defendant’s expert testified that the plaintiff’s shoulder had been injured prior to the accident and was in a compromised condition. The defense expert also testified that if the accident had caused the plaintiff to suffer any additional injury to his shoulder, the plaintiff would have experienced pain immediately after the accident, which he did not. The expert also testified that two MRIs of the plaintiff’s shoulder were consistent in showing a structural tear before and after the accident, signifying that the accident was not a substantial factor in causing the claimed shoulder injury. The court concludes that because there was sufficient evidence upon which the jury could have reached its verdict, neither an additur nor a new trial is warranted.
II. PASSION, PREJUDICE, OR MISTAKE
The plaintiff also argues the jury was improperly influenced by a number of factors, including questions posed to him by defense counsel during cross examination; statements made by defense counsel during his closing argument; and defense counsel’s improper use of videotaped testimony of the defendant’s expert witness relating to a "clock face" diagram that the court had previously ruled was inadmissible. For the reasons explained below, it is the court’s view that the questions posed, comments made, and evidence introduced by defense counsel do not warrant either an additur, or a setting aside of the jury’s verdict.
The plaintiff first argues that the jury was improperly influenced by the questions posed to him by defense counsel during cross examination concerning the plaintiff’s admission on direct examination that he had lied under oath at this deposition when he asserted that he had used the money obtained from the insurance company for property damage done to his vehicle to purchase a used bumper at a junk yard, and when he testified that he had replaced the bumper himself. On direct examination, the plaintiff testified that although he initially lied at his deposition, he admitted before the deposition ended that he never purchased a new or used bumper, and never replaced the bumper on his vehicle. On cross examination, defense counsel pointedly asked the plaintiff to admit that the only reason he decided to change his testimony at his deposition was that his lawyer said she would no longer represent him unless he told the truth. The plaintiff claims that this question improperly influenced the jury because it suggested that plaintiff’s counsel had violated the Rules of Professional Conduct. The court does not agree with that supposition for the following reasons.
First, the court repeatedly instructed the jury that the questions posed and statements made by the lawyers were not evidence, and the court assumes that the jury followed its instructions. "[T]he impact of improper arguments [and evidence can be] nullified by the court’s charge to the jury. It must be presumed that the jury carried out the instructions of the court." Spiess v. Traversa, 172 Conn. 525, 528, 375 A.2d 1007 (1977). "Juries are presumed to follow the court’s instructions absent clear evidence to [the] contrary." Saunders v. Commissioner of Correction, 137 Conn.App. 493, 514, 48 A.3d 728, cert. denied, 307 Conn. 920, 54 A.3d 182 (2012). Moreover, the question posed by defense counsel did not, in the court’s view, suggest that plaintiff’s counsel had violated the Rules of Professional Conduct. To the contrary, the question posed by defense counsel suggested that plaintiff’s counsel was fulfilling her professional responsibilities by preventing the plaintiff from testifying falsely under oath. The practical effect of the question was to therefore burnish, not tarnish, plaintiff’s counsel’s reputation. Although the plaintiff’s admission at trial that he lied under oath at his deposition might have negatively impacted the jury’s perception of him, the question posed by defense counsel portrayed the plaintiff’s counsel in a positive light, not a negative one.
The plaintiff next argues the jury was improperly influenced by videotaped testimony from the defendant’s expert concerning the plaintiff’s shoulder injury. More specifically, the plaintiff complains that the defense counsel failed to edit out of the videotape certain testimony premised on a "clock face diagram" that had been used by the doctor to describe a labrum tear in the plaintiff’s shoulder. Prior to trial, the plaintiff had filed a motion in limine to preclude the defendant from using the diagram itself, or any testimony from the videotape referencing the diagram. The court granted the motion and defense counsel subsequently removed all specific references to the diagram. The parties then agreed to play the audio- but not the video- of the expert’s testimony describing the nature of the plaintiff’s injury. The plaintiff attempted to have all of this testimony stricken, and now claims that its admission into evidence improperly influenced the jury. The plaintiff also claims that he was further prejudiced because plaintiff’s counsel unilaterally removed other portions of the expert’s deposition testimony (and testimony from another expert) relating to the clock face diagram based on her interpretation of the court’s ruling on the plaintiff’s motion in limine.
The court concludes now, as it did at trial, that the defendant properly complied with the court’s ruling regarding the plaintiff’s motion in limine by deleting all specific references to the clock face diagram. The court did not rule that all testimony regarding the nature and extent of the tear in the plaintiff’s shoulder would be excluded simply because the testimony tangentially referenced or related to the diagram, and if there was any question regarding the scope of the court’s ruling, it was incumbent upon the plaintiff to clarify its position at the time the ruling was issued. Moreover, the court specifically asked the videographer if all of the agreed upon deletions had been made, and the videographer confirmed that he had edited the video in accordance with the instructions he received from the parties and their counsel.
The plaintiff also asserts that the jury was improperly influenced by defense counsel’s comment during closing argument that the reason why plaintiff’s medical provider did not appear at trial was because the provider "doesn’t believe this motor vehicle accident has anything to do with the plaintiff’s shoulder injury." The plaintiff claims that this statement was without basis in fact and prejudicial, especially because the court had sustained several hearsay objections made by the defendant when the plaintiff attempted to introduce statements made by the provider regarding the plaintiff’s condition and treatment.
Although the court found the statement made by defense counsel remarkable because there was no evidence presented regarding why the doctor did not testify, the court does not believe that the statement warrants a setting aside of the jury verdict because an attorney is entitled to engage in zealous advocacy and argument, and to question the strength and validity of the opponent’s evidence. Although defense counsel’s statement may have come close to the boundary between permissible argument and impermissible testimony, the court concludes that the comment, when viewed within the totality of the circumstances existing at the time of trial, was not so prejudicial as to justify the extraordinary remedy of setting the verdict aside and ordering a new trial. This is especially true because during her rebuttal argument, the plaintiff’s counsel informed the jurors that they should disregard the statement made by defense counsel because it did not constitute evidence. As indicated previously, the court repeatedly instructed the jury that comments made by the lawyers were not evidence and the court assumes that the jury followed its instructions.
The court has found nothing in the record to support the plaintiff’s assertion that the jury was improperly influenced, or that the verdict was the product of passion, prejudice, or mistake. The court therefore concludes that the jury reasonably reached its conclusion regarding both economic and noneconomic damages.
III. JURY INSTRUCTIONS
The plaintiff argues that the court committed two errors in its instructions to the jury that prejudiced the plaintiff. "The standard of review for a challenge to the propriety of a jury instruction is well established. [J]ury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge ... A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict ... The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party ... [I]nstructions to the jury need not be in the precise language of a request ... Moreover, [j]ury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 831-32, 836 A.2d 394 (2003) "It must be presumed that the jury carried out the instructions of the court." Spiess v. Traversa, supra, 172 Conn. 525, 528, 375 A.2d 1007 (1977).
The plaintiff argues first that the court failed to provide an instruction regarding multiple causes of injury. According to the plaintiff, "[i]n a case involving a preexisting condition, an instruction on multiple causes was imperative. A lay person could not possibly understand that Defendant’s negligent conduct could be a proximate cause of an injury without being the only cause, absent such an instruction. The failure to issue an instruction on multiple causes prejudiced Plaintiff and impaired the ability of the jury to adequately compensate the Plaintiff for the exacerbation of his shoulder injury."
During jury instruction, the court provided the jury with the following instruction, gleaned directly from Section 3.4.1 of the Connecticut Judicial Branch Civil Jury Instructions, regarding the effect of the plaintiff’s preexisting condition: "The plaintiff is entitled to full compensation for all injuries and losses proximately caused by the defendant’s negligence, even though those injuries and losses are more serious than they otherwise would have been because of a preexisting condition. You may not compensate the plaintiff for the preexisting injury itself, however, the aggravation of such an injury proximately caused by the defendant’s negligence is a proper item of non-economic damages. The plaintiff alleges that before the accident, he had a preexisting medical condition, but that the condition was not causing the plaintiff to suffer any symptoms. If you find that the plaintiff had a preexisting injury from which he was suffering no symptoms and that the condition was aggravated by an injury, caused by the defendant’s negligence, the plaintiff is entitled to recover full compensation for those symptoms, even though those symptoms are greater than if the plaintiff had not suffered from this preexisting condition." The court finds this instruction sufficiently addressed the issues related to the plaintiff’s preexisting shoulder problems.
The court also notes that the plaintiff never submitted a proposed jury charge on "multiple causes." Moreover, when the court gave both parties the opportunity to object to or challenge the court’s proposed jury instructions, plaintiff’s counsel did not question the court’s instruction regarding preexisting condition, and never requested the court to charge the jury on "multiple causes." Although plaintiff’s counsel did initially ask the court to instruct the jury more specifically that it could award the plaintiff both economic and noneconomic damages if it found that the defendant’s negligence had aggravated the plaintiff’s preexisting injury, after a brief discussion, both counsel agreed that the court’s charge, as given, was sufficient.
Finally, the plaintiff argues that the court improperly failed to provide the jury with a specific and adequate curative instruction regarding defense counsel’s remark during his closing argument regarding the plaintiff’s medical provider’s failure to appear at the trial. Although it is true that the court did not specifically reference or highlight that particular comment, the court repeatedly instructed the jury throughout the trial, and at least three times during the jury charge, that the jurors should base their verdict solely on the evidence and that the questions, comments and arguments of the lawyers were not evidence. The court believes that its repeated instructions and admonitions to the jury on this point counteracted any potential prejudice that might have arisen from defense counsel’s remarks, and the court "presumes that the jury carried out the instructions of the court." Spiess v. Traversa, supra, 172 Conn. 528.
CONCLUSION
Having carefully reviewed the plaintiff’s motion for additur, or in the alternative to set the jury verdict aside, as well as the defendant’s memorandum of law in opposition to the plaintiff’s motion; and having entertained oral argument, at which counsel for the plaintiff and counsel for the defendant appeared and had a full opportunity to articulate their respective positions; and having carefully weighed the arguments advanced by both parties, the court concludes that there was sufficient evidence upon which the jury might reasonably have reached its verdict, and that the arguments proffered by the plaintiff do not warrant an additur, or an order setting the verdict aside. As stated at the outset of this decision, "[t]he role of the trial court on a motion to set aside the jury’s verdict [or for additur] is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did." The court believes that there was sufficient evidence to support the jury’s verdict, and that the court’s evidentiary rulings and instructions to the jury were appropriate. The court also finds that the jury’s verdict, although perhaps smaller than the plaintiff had hoped for, does not shock the court’s sense of justice.
For all of the forgoing reasons, the plaintiff’s motion is hereby denied.
BY THE COURT