Opinion
MMXCV166015943S
05-07-2018
Joseph Ternullo et al. v. Michelle MacLeod et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Suarez, José A., J.
MEMORANDUM OF DECISION
Suarez, J.
This matter is a personal injury action brought by the plaintiffs, Joseph Ternullo and his son Evan, against the defendant, Michelle MacLeod. The incident occurred on July 23, 2014, in Middletown, Connecticut. The defendant admitted liability, and the claim of damages was tried to a jury on November 28 and 29, 2017. On November 29, 2017, the jury returned a verdict awarding Joseph Ternullo $7,343 in economic damages and $5000 in noneconomic damages. On November 29, 2017, the jury returned a verdict awarding Evan Ternullo $1,815 in economic damages but no noneconomic damages. Pursuant to General Statutes § 52-228b and Practice Book § 16-35, the plaintiffs each filed separate motions to set aside the verdict and for an additur (motions #140 and #141).
Discussion
" 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 trial 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 [its] duty to set aside that verdict ..." Melendez v. Deleo, 159 Conn.App. 414, 417, 123 A.3d 80 (2015).
" In Connecticut, a jury’s verdict is normally accorded great deference." Fox v. Colony T.V. & Appliance, Inc., 37 Conn.App. 453, 455, 656 A.2d 705 (1995). " It is axiomatic that [t]he amount of damages awarded is a matter peculiarly within the province of the jury ... Moreover, there is no obligation for the jury to find that every injury causes pain, or the amount of pain alleged ... Put another way, [i]t 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 ... The [jury] can ... decide what- all, none, or some- of a witness’ testimony to accept or reject. The only practical test to apply to a verdict 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." (Citations omitted; internal quotations marks omitted.) Cusano v. Lajoie, 178 Conn.App. 605, 609-10, 176 A.3d 1228 (2017).
In considering a motion to set aside a verdict, the court must view the evidence in the light most favorable to sustaining the jury’s verdict. " Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of this constitutional right to have disputed issues of fact determined by a jury ... the court’s action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined. Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand ... Thus, the court should not assume that the jury made a mistake, but should suppose that the jury did exactly what it intended to do." (Citations omitted; internal quotations marks omitted.) Cusano v. Lajoie, supra, 178 Conn.App. 609-10.
" 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." (Internal quotation marks omitted.) Wallace v. Haddock, 77 Conn.App. 634, 636-37, 825 A.2d 148 (2003).
It is well established that a jury’s decision to award economic damages does not necessarily trigger an award of noneconomic damages. In Wichers v. Hatch, our Supreme Court held that trial courts must determine on a case-by-case basis whether a verdict is adequate as a matter of law when confronted with jury verdicts awarding economic damages and zero noneconomic damages. Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000). " Under Wichers, 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 noneconomic 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." (Internal quotation marks omitted.) Melendez v. Deleo, supra, 159 Conn.App. 418 (2015).
Joseph Ternullo Motion #140
Here, as to Joseph Ternullo, there was evidence presented that the vehicle he was driving collided head-on with the defendant’s. The defendant admitted liability. Joseph Ternullo did not seek medical attention immediately after the incident; it was several weeks later that he started chiropractic treatment with Dr. Laura Nunno. He was treated by Dr. Nunno approximately seventy-seven times from August 18, 2014 through June 30, 2017 for neck and back pain as a result of the accident. The cost of treatment was $6,315. Dr. Nunno assigned a 5 percent permanent impairment rating of Joseph Ternullo’s cervical spine as a result of the July 23, 2014 accident. Dr. Nunno recommended that Joseph Ternullo continue chiropractic care once per month for an additional two years. He has not sought or received additional medical treatment.
Joseph Ternullo testified that he is a self-employed electrical contractor and owns several rental properties. He claims he experiences pain when lifting heavy objects, especially when he works overhead. He also has difficulties sleeping. He did not miss time from work and performs the necessary maintenance on his rental properties.
There was testimony presented that Joseph Ternullo was involved in a motor vehicle accident in 1994 where he sustained injuries to his neck. He testified that the 1994 injury to his neck had resolved and that he did not experience pain in his neck from that accident.
The defendant submitted into evidence the video deposition of her expert, Herbert Hermele, M.D., and orthopedic doctor. Dr. Hermele testified that Joseph Ternullo suffered a sprain and strain of the neck and the back as a result of the July 23, 2014 accident. Dr. Hermele opined that Joseph Ternullo’s prognosis was excellent. He further testified that, in his opinion, there was no science to support a 5 percent impairment rating.
Considering the evidence in the light most favorable to sustaining the verdict, the court finds that the jury’s damages award does not shock the conscience. The jury’s damages award falls within the necessarily uncertain limits of fair and reasonable compensation, and accordingly, the motion to set aside the verdict as to Joseph Ternullo is denied.
Evan Ternullo Motion #141
As to Evan Ternullo, there was evidence presented that he was the passenger in the automobile that collided head on with the defendant on July 23, 2014. He was fifteen years old at the time of the accident. He did not seek medical attention at the time of the incident and did not complain of pain at the scene. He complained of pain days after the incident and began chiropractic treatment with Dr. Nunno approximately two weeks after the accident. He was treated with Dr. Nunno on approximately 20 occasions from August 6, 2014, to May 13, 2016. His chiropractic bills totaled $1815. He did not seek or receive additional medical treatment. There was no evidence presented at trial of a percentage of permanent disability attributed to Evan Ternullo as a result of the July 23, 2014 accident.
Evan Ternullo testified that he still suffers from pain in his back and neck. However, his physical activities are not limited. He is employed at J&B Tackle Co., where he is called upon to do physical activities. He routinely works out and enjoys saltwater fishing.
Dr. Hermele testified that the injuries Evan Ternullo suffered resolve themselves regardless of care or treatment. Dr. Hermele further testified that he did not remember any teenager involved in this type of motor vehicle accident who had any significant permanent issues.
Considering the evidence in the light most favorable to sustaining the verdict, the court finds that the jury’s award of zero damages to Evan Ternullo does not shock the conscience. The jury could reasonably have found that Evan Ternullo failed to prove that he experienced pain as a result of the accident. Accordingly, the motion to set aside the verdict as to Evan Ternullo is denied.
WHEREFORE, plaintiff Joseph Ternullo’s motion to set aside the verdict and motion for additur (motion #140) and plaintiff Evan Ternullo’s motion to set aside the verdict and motion for additur (motion #141) are: DENIED.