Opinion
HHDCV156059896S
09-08-2017
Andrina Tobierre v. Beverly A. Collins
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION FOR ADDITUR AND TO SET ASIDE VERDICT AS TO DAMAGES #147.00
M. Nawaz Wahla, J.
Present before the court is the plaintiff's motion for additur, and/or to set aside the jury's verdict as to damages. The plaintiff contends that an award of 100% economic damages and zero non-economic damages is inadequate, contrary to the law and against the evidence presented at trial. The defendant counters that the jury's verdict must be respected as a product of their careful consideration of the credibility of the witnesses and the severity of the claimed injuries, as such, should not be disturbed. The plaintiff's motion for additur and/or to set aside the verdict is denied for the reasons set forth below.
I. Procedural Context
The case arises out of a two-car collision that occurred on October 24, 2014, at the intersection of Windsor Street--Boce Barlow Way in Hartford, CT. At the said time and place, the plaintiff brought her motor vehicle to a complete stop at a traffic light on Windsor Street, when the defendant suddenly and without warning caused her motor vehicle to collide with the rear of the plaintiff's stopped vehicle, approximately at the speed of 10 miles per hours. The defendant has admitted liability. However, the defendant had contested the plaintiff's claim by denying that such negligence was the proximate cause of any injury to the plaintiff.
The case was tried before the jury for two days. Both the plaintiff and the defendant testified at trial. The jury heard the testimony of the plaintiff that upon impact she was moved inside her vehicle and struck her chest on the steering wheel. The plaintiff asserted that her vehicle was moved when struck from behind. The plaintiff further testified that she suffered injuries due to the accident and sought medical treatment for the said injuries. Dr. Shea, plaintiff's orthopedist, assigned 2% permanent partial impairment to her cervical spine. The jury also heard that this finding was disputed by the defendant's expert, Dr. Ogeila, who testified through video deposition and contended that plaintiff's had suffered subjective symptoms from this car accident. The plaintiff argues that there was ample evidence submitted to the jury that plaintiff suffered pain, via her testimony and medical records, exhibits 8-11 and Dr. Ogeila's video deposition. The plaintiff had two prior accidents with no lasting injuries.
The jury was presented and heard the defendant's testimony who said that the impact was very minor. Also, jury watched the surveillance video of the plaintiff taken on November 26, 2016. The surveillance video showed that she retrieved the case of bottled water lifted with one hand and closed a vehicle's trunk with the other.
The verdict awarded past economic damages only. The jury declined to award future economic damages or non-economic damages. Total Economic damages the jury awarded was $7,001.00.
Upon receipt of the verdict, prior to the acceptance and recording of the verdict, based on the lack of an award of non-economic damages, this court directed the jury for reconsideration of the verdict by the jury. The jury still did not award any non-economic as requested and pleaded. The jury awarded nothing for future medical, though a substantial amount was claimed in closing argument based on the plaintiff's chiropractic expert's and other medical reports.
General Statutes § 52-223 provides " The court may, if it judges the jury has mistaken the evidence in the action and has brought in a verdict contrary to the evidence, or has brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for the same reason may return them to a third consideration. The jury shall not be returned for further consideration after a third consideration."
The jury awarded nothing for pain, suffering, impairment or the other elements and categories of non-economic damages described at length, without exception, in the court's charge. The jurors each had a copy of the court's charge with them during their deliberations.
The plaintiff asserts that the verdict is inconsistent and unreasonable given the evidence presented in the case. There is no claim of partiality, prejudice, corruption or other juror misconduct, but only that, as a matter of law, the verdict is inconsistent and unreasonable because, having found liability in favor of the plaintiff, the jury awarded 100% of past claimed economic damages, none of the claimed future economic damages and no non-economic damages.
The defendant asserts that the jury could reasonably and legally have reached their conclusions and that the size of the verdict does not so shock the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.
The finding of liability (here liability is admitted) and award of 100% of past economic damages, while awarding no noneconomic damages, is not necessarily legally inconsistent, Wichers v. Hatch, 252 Conn. 174, 186, 745 A.2d 789 (2000). " Therefore, we conclude that the per se rule from Johnson no longer remains useful or viable, and we expressly disavow it. 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. 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., at 188-89.
The plaintiff's medical expenses were for Middlesex hospital, Select Orthopedics, Greater Hartford Physical Therapy and Blue Hills Family Medicine. The jury awarded 100% of the medical bills for such care.
The jury rejected plaintiff's claim for non-economic harm in spite of an impassioned plea in her counsel's summation.
In the case of Melendez v. DeLeo, Superior Court of Connecticut, Judicial District of Waterbury, No. UWYCV126015785, April 21, 2014, (Zemetis, J.) framed a question along these lines: The question is whether the jury can, reasonably, find legal liability against the defendant, (liability admitted in this instance), award 100% of past claimed economic damages, past medical bills, to a person with almost non-existing prior history of injury or documented pre-existing medical problems with the body parts claimed to have been injured in the subject collision, where the defense offer evidence contesting the opinions of plaintiff's treating medical providers, but award no future economic damages and no past or future non-economic damages.
In Judge Zemetis's case the jury found the plaintiff was 40% at fault and the defendant as 60% at fault. Therefore, the framing of the question is modified for the facts pertinent to the present case.
The short answer is, yes, " where the evidence allows room for reasonable differences of opinion among fair-minded people, if the conclusion of the jury is one that reasonably could have been reached, it must stand even though the trial court might have reached a different result." Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980).
This case involves claims of injuries to cervical and dorsal sprain, with associated consequential pain, tenderness, spasm and limitation of motion, cervical radiculopathy, pain, tingling and numbness radiating to her left upper extremity, weakness of her left hand grip, a severe shock to her nervous system, mental anguish and distress of mind. See Trial exhibits #8-12. Though, the defendant's expert's disputed these claims and found them to be subjective symptoms.
This court agrees with Judge Zemetis's comparison of the case at hand versus the well established standard on the subject issue: Unlike the plaintiff in Schroeder v. Triangulum Associates, 259 Conn. 325, 789 A.2d 459 (2002), wherein the jury awarded $750,400.00 in economic damages, including expenses for a spinal fusion surgery, but made no award of damages for non-economic damages, or Benedetto v. Zaku, 112 Conn.App. 467, 471, 963 A.2d 94 (2009) wherein the jury awarded nearly $9,000 in past medical bills and $50,000.00 for the cost of future spinal surgery, trial court concluded, while granting an additur which was affirmed by the Appellate Court, that " an award of $50,000 for a future surgery " that will produce pain, suffering and disability" without any award for noneconomic damages was not within the bounds of fair and reasonable compensation(.), " this case involves a claim for injuries inconsistently documented and treatment based largely on the subjective and inconsistent complaints of the plaintiff. The plaintiff's testimony concerning current, chronic and disabling complaints of pain in the head, neck, back, hips and legs, and her self-reported fears of future occupational and childbearing implications of the injuries claimed to have been sustained in the subject collision, but lack of any follow-up medical treatment since the fall of 2012 for these claimed disabling complaints and tearfully described fears, contrasted with the increased number of hours worked as a home health aide following the collision, and the apparent inconsistency of complaints in the medical reports were available for the jurors' consideration. Many of these matters were the subject of examination and argument by defense counsel.
In short, the plaintiff's credibility, uniquely a jury question, is the foundation upon which the claims of non-economic damages rest. " The jury was not required to believe the testimony of the plaintiff or her physician." Sigular v. Gilson, 141 Conn.App. 581, 594, 62 A.3d 564 (2013). This court is not the '7th juror, ' " [T]he role of the trial court on a motion to set aside the jury's verdict is not to sit as [an added] 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(.)" Hall v. Bergman, 296 Conn. 169, 179, 994 A.2d 666 (2010).
In essence the testimony of the plaintiff, vigorously confronted during cross examination and final argument by defense counsel, as well the surveillance video, was essential evidence of the non-economic damage claim considered by the jury.
II. Applicable Legal Standards
" The trial court possesses inherent power to set aside a jury verdict which, in the courts is an essential part of the jury system. [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where 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, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality . . . The court has a duty to set aside the verdict where the jury's action is so unreasonable as to suggest that it was the product of such improper influences . . . A verdict may be set aside even if the evidence was conflicting and there was direct evidence in favor of the party who prevailed with the jury . . . " Litigants, however, have a constitutional right to have issues of fact determined by a jury . . . The right to a jury trial is fundamental in our judicial system, and this court has said that the 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 fair-minded men passed upon by the jury and not by the court . . ." (Citations omitted; internal quotation marks omitted.) Palomba v. Gray, 208 Conn. 21, 23-25, 543 A.2d 1331 (1988).
" In passing upon a motion to set aside a verdict, the trial judge must do just what every juror ought to do in arriving at a verdict. The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly " The trial judge in considering the verdict must do the same . . . and if, in the exercise of all his knowledge from this source, he 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." (Citations omitted; internal quotation marks omitted.) Schroeder v. Triangulum Associates, 259 Conn. 325, 329-30, 789 A.2d 459 (2002).
" 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 were influenced by partiality, mistake or corruption." (Citation omitted; internal quotation marks omitted.) Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990).
" When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Citations omitted; internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646, 904 A.2d 149 (2006). " 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." (Citations omitted; internal quotation marks omitted.) Smith v. Lefebre, 92 Conn.App. 417, 421-22, 885 A.2d 1232 (2005).
" Once a jury has rendered a verdict that it claims is unanimous, it has long been the rule in our courts to presume the regularity of the deliberation processes of the jury and to decline to inquire into those deliberative processes. See Practice Book § 16-34 (" Upon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined . . . [A] juror's testimony or affidavit shall be received when it concerns any misconduct which by law permits a jury to be impeached"). Accordingly, we do not resort to " assumptions" and " conjecture" when analyzing the basis of a jury's verdict. [fn9.] See Rosenblatt v. Berman, 143 Conn. 31, 37, 119 A.2d 118 (1955); see also McNamee v. Woodbury Congregation of Jehovah's Witnesses, 193 Conn. 15, 26, 475 A.2d 262 (Healey, J., concurring) (" [a]s a general rule, a strong presumption of regularity attaches to every step of a civil proceeding, including jury deliberations, and the burden is on the party seeking a new trial to show affirmatively that irregularity exists" [internal quotation marks omitted]), on appeal after remand, 194 Conn. 645, 484 A.2d 940 (1984); Meek v. Wal-Mart Stores, Inc., 72 Conn.App. 467, 490-92, 806 A.2d 546 (concluding presumption of regularity of jury deliberations such that no compromise verdict had been rendered had not been overcome because reasons for verdict other than compromise existed and no evidence of juror misconduct or manifest disregard of court's instructions), cert. denied, 262 Conn. 912, 810 A.2d 278 (2002). Moreover, " it is well established that, [i]n the absence of a showing that the jury failed or declined to follow the court's instructions, we presume that it heeded them." (Internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 828, 882 A.2d 604 (2005). Monti v. Wenkert, 287 Conn. 101, 115-16, 947 A.2d 261 (2008).
III. Conclusion
The motion for additur and to set aside the verdict is denied. The court concludes that the jury verdict reflects careful consideration of the evidence and an adherence to the applicable law. It is fundamental, the parties have a constitutional right to have issues of fact decided by the jury. They have exercised those rights. Absent compelling evidence that the jury was motivated by passion, partiality, prejudice, mistake, corruption or other improper impulse, this court shall not to set aside the verdict entirely nor set aside the verdict conditionally with an additur. As noted in the review of the evidence above, there was ample room for reasonable minds to differ on the issue of non-economic damages. The verdict stands as delivered The Objection to the Motion for Additur or to Set Aside is sustained.