Opinion
CV166064917S
11-21-2018
Kiana VEGA v. Robert REYNOLDS
UNPUBLISHED OPINION
OPINION
Wilson, J.
On April 18, 2018, the plaintiff, Kiana Vega, filed an amended complaint alleging that she was injured by the defendant, Robert Reynolds, when he negligently operated a motor vehicle and struck the plaintiff while she was walking. The plaintiff alleged that she suffered medial cuneiform and calcaneus fractures in the left foot, third and fourth metatarsal fractures, abrasions to the leg, foot pain and swelling, pain and suffering, and a permanent partial disability. The case was tried to a jury before this court, and a verdict was rendered on May 10, 2018. The jury found for the plaintiff, determined that she was 35% negligent, and awarded damages for past and future medical expenses. Specifically, the jury awarded $16,990.30 for past medical damages, and $24,000 for future medical expenses. The jury did not, however, award the plaintiff noneconomic damages. This court instructed the jury regarding awards of economic damages without noneconomic damages from Connecticut Civil Jury Instruction 3.4-9, and the jury deliberated again. The jury maintained its award of zero noneconomic damages, and this court accepted the verdict on May 10, 2018.
This figure represents the full amount of past medical expenses that the plaintiff claimed. See Entry No. 137 (Interrogatories to the Jury).
On May 14, 2018, the plaintiff filed the present motion to set aside the verdict and for additur. The plaintiff argues that the verdict should be set aside because it was contrary to law and against the evidence. Specifically, the plaintiff argues that her expert testified that the plaintiff would require future surgery, which the expert estimated the cost to be between $25,000 and $30,000. The plaintiff argues that, if it is assumed that the award of $24,000 for future medical expenses is for this surgery, the jury’s decision not to award noneconomic damages suggests that the plaintiff will require future surgery but experience no pain and suffering. This, the plaintiff argues, is inconsistent and will result in a manifest injustice.
The defendant filed an objection to the plaintiff’s motion to set aside the verdict and for additur on June 1, 2018. The defendant argues that it was the jury’s right to weigh and accept only some of the evidence presented, and that the jury was not required to award noneconomic damages just because it awarded economic damages. Specifically, the defendant argues that the jury may have found the plaintiff and her treating physician’s testimony to be lacking credibility regarding the plaintiff’s pain and suffering. The defendant also notes that the jury returned a second verdict awarding zero noneconomic damages after being re-instructed on the matter, and argues that there is no evidence that the jury was influenced by partiality, mistake, or corruption. The motion was heard at short calendar on July 30, 2018.
II
DISCUSSION
" ‘The right of trial by jury is of ancient origin, characterized by Blackstone as the glory of the English law and the most transcendent privilege which any subject can enjoy ...’ (Internal quotation marks omitted.) Dimick v. Schiedt, 293 U.S. 474, 485, 55 S.Ct. 296, 79 L.Ed. 603 (1935)." Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 280, 32 A.3d 318 (2011).
"[T]rial courts currently have the authority to remedy an award of inadequate damages ... Withers v. Hatch, 252 Conn. 174, 186, 745 A.2d 789 (2000). It is well settled, however, that "[l]itigants have a constitutional right to have factual issues resolved by the jury ... 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." (Internal quotation marks omitted.) Munn v. Hotchkiss School, 326 Conn. 540, 575, 165 A.3d 1167 (2017). "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; footnote omitted; internal quotation marks omitted.) Smith v. Lefebre, 92 Conn.App. 417, 421-22, 885 A.2d 1232 (2005).
"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, 637, 825 A.2d 148 (2003). "The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption."
General Statutes § 52-216a "is a codification of this common-law rule ..." Withers v. Hatch, supra, 252 Conn. 187. General Statutes § 52-216a provides in relevant part: "If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court 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."
"[I]n 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 ... A mere doubt of the adequacy of the verdict is an insufficient basis for such action ... A conclusion that the jury exercised merely poor judgment is likewise insufficient." (Citation omitted; internal quotation marks omitted.) Wichers v. Hatch, supra, 252 Conn. 186-87. "On issues 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 ... A verdict should not be set aside ...’where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." (Internal quotation marks omitted.) Weiss v. Bergen, 63 Conn.App. 810, 813-14, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 1254 (2001).
Our Supreme Court recently considered whether an award of approximately $41.5 million, which included noneconomic damages of $31.5 million, warranted a remittitur. Munn v. Hotchkiss School, supra, 326 Conn. 569. Justice McDonald wrote separately on this issue, and, although ultimately agreeing with the majority’s conclusion that the trial court did not abuse its discretion in denying a remittitur, expressed his concern that "our current remittitur jurisprudence is internally inconsistent and fails to provide clear guidance as to what constitutes an excessive verdict. Our muddled precedents are particularly problematic when noneconomic damages are challenged." Id., 579 (McDonald, J., concurring).
In his concurring opinion, Justice McDonald first observed that current authority provides "at least four distinct and potentially contradictory standards that govern a court’s decision whether to grant or deny a motion for remittitur: In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict ... Upon completing that review, [1] the court should not interfere with the jury’s determination except when the verdict is plainly excessive or exorbitant ... [2] The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption ... The court’s broad power to order a remittitur should be exercised [3] only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court’s explicit and unchallenged instructions ... This court has upheld a remittitur order [4] only when we have laid before us a very clear and striking case of indubitable wrong, so clear and striking as to indicate the influence of undue sympathy, prejudice or corruption on the verdict." (Internal quotation marks omitted.) Id., 580, Justice McDonald also commented that "[a] further question that may need to be addressed in the future is whether the same standards govern a trial court’s decision to increase and to decrease a jury verdict. Although many of the considerations are no doubt the same, our state constitution may place greater restrictions on additur ..." Id., 581 n.3. "In our most recent attempt to sort out this state’s common law of remittitur, however, we have provided little clarity, unhelpfully holding only that a trial court ordering a remittitur must set forth in the memorandum of decision clear, definite and satisfactory reasons for so ordering. Saleh v. Ribeiro Trucking, LLC, [ 303 Conn. 276, 283, 32 A.3d 318 (2011)]. Further guidance is necessary." (Internal quotation marks omitted). Munn v. Hotchkiss School, supra, 582 (McDonald, concurring).
The second part of Justice McDonald’s concurrence similarly commented on the ambiguity in the standards by which appellate courts will review a trial court’s decision to grant or deny a remittitur. Id., 582. The current standard, which is that review of a trial court’s decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is that of an abuse of discretion, "would seem to subject purely legal determinations, which ordinarily are reviewable de novo, to a deferential and fact-specific abuse of discretion standard of review." Id. "The lack of clear and consistent standards for the review of excessive jury awards, particularly with respect to noneconomic damages, is troubling on many levels." Id., 585-86.
Notwithstanding these apparent ambiguities, as Justice McDonald noted, appellate authority emphasizes that a trial court setting aside a verdict "must set forth in the memorandum of decision clear, definite and satisfactory reasons for so ordering." Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. 283. This is particularly true when a trial court orders an additur for the jury’s failure to award noneconomic damages. Specifically, in Wichers v. Hatch, 252 Conn. 174, 176, 745 A.2d 789 (2000), our Supreme Court concluded "that a jury verdict awarding economic but not noneconomic damages to a tort claimant is not improper as a matter of law ..." "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 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.
Appellate Courts "read Wichers as an instruction to a trial court specifically to identify the facts of record that justify the extraordinary relief of additur and as an instruction to an appellate court to inquire whether the facts so identified justify the trial court’s exercise of its discretion to set a jury verdict aside because of its perceived inadequacy ... Under Wichers, it is not enough to base an additur on a conclusory statement that a jury award was [inadequate] ... The question, therefore, is whether the court elsewhere articulated a sufficient factual basis for its decision to order an additur." (Citation omitted; internal quotation marks omitted.) Cusano v. Lajoie, 178 Conn.App. 605, 610, 176 A.3d 1228 (2017). In order to properly articulate a factual basis for such a decision, "[t]he Appellate and Superior Court cases following Wichers have considered a number of ancillary issues such as: 1) an award of lost wages, 2) the award of the economic damages, either in whole or in part, including all medical bills and costs, 3) any pre-existing injury or permanency; 4) the introduction of necessary future medical treatment, and 5) issues of credibility on the part of the plaintiff It is incumbent upon the court to review the particular evidence and testimony of this action in determining whether an award of $0 for noneconomic damages should stand." Parker v. Basu, Superior. Court, judicial district of Waterbury, Docket No. CV-14-6025039-S (July 28, 2017, Brazzel-Massaro, J.); see also Micalizzi v. Stewart, 181 Conn.App. 671, 689-91, 188 A.3d 159 (2018) (holding no abuse of discretion for trial court to accept jury’s award of zero noneconomic damages where significant portion of plaintiff’s claimed medical expenses related to diagnostic consultations; plaintiff had previously suffered injury to her lower back; plaintiff failed to follow physicians’ recommendation that she receive another MRI; and plaintiff stopped attending physical therapy); Melendez v. Deleo, 159 Conn.App. 414, 424, 123 A.3d 80 (2015) (holding that jury "was not required to believe the subjective complaints and testimony of the plaintiff and could, instead, have credited the medical records compiled near or at the time of the accident, which lacked objective findings of traumatic injuries associated with pain and suffering"); Fileccia v. Nationwide Property and Casualty Ins. Co., 92 Conn.App. 481, 488, 886 A.2d 461 (2005) (noting that in cases where jury awards of economic damages "with no or little accompanying noneconomic damages were sustained on appeal, evidence had been presented to show that the plaintiff had some preexisting condition ... In those cases, it was held that the jury reasonably could have concluded that the prior condition was-the cause of the pain alleged, rather than the tortious actions of the defendant." [Citations omitted.]), cert. denied, 277 Conn. 907, 894 A.2d 987 (2006).
The recent Appellate Court decision in Cusano v. Lajoie provides an instructive analysis of these relevant factors. In Cusano, the trial court granted the plaintiff’s motion for additur, holding that, "it is inconsistent to conclude that [the plaintiff] was injured to the extent that he incurred substantial medical expenses and at no time during the course of the treatment experienced pain and suffering." (Internal quotation marks omitted.) Cusano v. Lajoie, supra, 178 Conn.App. 608. The court twice rejected the jury’s verdict awarding zero noneconomic damages, and ordered an additur for noneconomic damages in the amount of $2,000. Id., 608-09. In reversing the trial court’s decision, the Appellate Court noted first that "the trial court’s memorandum of decision in the present case reveals only a conclusory statement regarding the jury’s award and no delineation of a sufficient factual basis for its decision to order an additur of $2,000. Although the memorandum of decision details the facts that the parties established at trial, it does not state the specific facts relied upon by the court to justify its decision to award the extraordinary relief of additur. Moreover, the memorandum of decision does not contain any description or explanation of how or why the court calculated $2,000 as the appropriate amount of noneconomic damages." Id., 610-11.
The Appellate Court then reviewed the evidence adduced at trial, and concluded that the jury’s verdict was reasonable. See id., 613. "[T]he court abused its discretion in ordering the additur because there existed conflicting evidence and credibility issues concerning the extent, if any, of the plaintiff’s pain and suffering." Id., 611. These inconsistencies included evidence presented regarding how much time from work the plaintiff missed. Id., 612. Further, "when the defendants’ counsel asked the plaintiff about the pain he was claiming, the plaintiff testified to the following: he did not seek medical treatment until five days after the accident; he never went to the emergency room; he did not have an MRI or a CAT Scan; and he did not know the results of his X ray ..." Id. Additionally, "despite the plaintiff’s claim of ongoing pain in mid-2016 at the time of trial, [the plaintiff’s chiropractor] last treated the plaintiff in September 2014 ... The plaintiff also testified that he had not sought treatment for the injuries or pain related to the accident after his last visit with [the chiropractor] in January 2015." Id., 612-13. Finally, the plaintiff testified that he never had to call out of work because of injuries or pain. Id., 613. The Appellate Court thus, concluded that the "jury reasonably could have determined, as it apparently twice did, that the plaintiff had not proven any noneconomic damages for pain and suffering, or damages for lost wages.’ "Id., 613-14.
Accordingly, "[u]nder the fact intensive, case-by-case inquiry demanded by Wichers v. Hatch, supra, 252 Conn. 188-90, it may be reasonable for a jury to conclude that although a 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." Micalizzi v. Stewart, supra, 181 Conn.App. 685. Nevertheless, "our Supreme Court has held that an award of ‘virtually all’ of a plaintiff’s claimed economic damages, with no accompanying noneconomic damages, demonstrated an inconsistency in the verdict; see Schroeder v. Triangulum Associates, [ 259 Conn. 325, 332, 789 A.2d 459 (2002) ]; although it allowed that in a different case, such an award might be proper ... In Schroeder, the jury found the defendant liable for the costs of the plaintiff’s intrusive spinal fusion surgery, but awarded nothing for the pain and permanent disability that necessarily would accompany such a procedure ... The Supreme Court concluded that the award was incongruous and held that the trial court abused its discretion in failing to set aside the verdict." (Citations omitted.) Fileccia v. Nationwide Property and Casualty Ins. Co., supra, 92 Conn.App. 487-88. Similarly, in Seda v. Bras, Superior Court, Judicial District of New Haven, Docket No. CV-07-50104742-S (March 25, 2009, Bellis, J.), the trial court ordered an additur after noting 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."; see also Parker v. Basu, supra, Superior Court, Docket No. CV-14-6025039-S (evidence of documented pain, change in plaintiff’s work performance, and prescriptions for pain medication and muscle relaxer "inconsistent with a finding of no pain or suffering").
This line of reasoning is particularly applicable where, as in the present case, the jury awarded economic damages for future medical expenses, but no noneconomic damages. See Lamkhantar v. Travisano, Superior Court, judicial district of New Haven, Docket No. CV-03480835-S (January 14, 2009, Bellis, J.) ("[t]rial courts, faced with a motion for additur where the jury awarded all the claimed medical expenses, without an award for noneconomic damages, will generally grant an additur, where there has been an award of lost wages or for future treatment"). In Benedetto v. Zaku, 112 Conn.App. 467, 469, 963 A.2d 94 (2009), "the jury returned a verdict in favor of the plaintiff in the amount of $8872.14 for past medical expenses and $50,000 for future medical expenses for surgery-involving a two level spinal fusion with a laminectomy, for a total of $58,872.14." Although the jury awarded both past and future medical expenses, the jury declined to award noneconomic damages. Id. Pursuant to the plaintiff’s motion for additur, the court ordered an additur of $50,000. Id. "[T]he [trial] court, in its memorandum of decision, focused on the fact that the jury concluded that the accident proximately caused the plaintiff’s injury. The court also considered that (1) both parties’ physicians agreed that the plaintiff’s injuries were permanent and painful, and would likely worsen in the future, and (2) that both physicians disagreed as to how much of the plaintiff’s back pain was attributable to the accident, but they both agreed that some of the plaintiff’s pain was attributable to the accident. The court concluded 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." Id., 471.
On appeal, the Appellate Court in Benedetto held that the trial court’s decision "reflects a thorough application of the law to the facts of this case. We conclude, therefore, that the court acted within its discretion to find that the jury’s verdict awarding the plaintiff almost $9,000 in past medical bills and $50,000 toward the cost of future surgery without any compensation for noneconomic damages was improper as a matter of law." Id., 473-74. Specifically, the Appellate Court focused on the evidence adduced at trial that "the plaintiff was asymptomatic prior to the accident, that the accident contributed to the plaintiff’s injury and caused approximately 25 percent of the plaintiff’s pain and that the plaintiff’s pain would only get worse with time." Id., 471. Although the defendant insurer’s expert disputed whether surgery would improve the plaintiff’s condition, he "conceded that on a regular basis, surgeons recommend surgery to treat injuries similar to the plaintiff’s and that without surgery the plaintiff would experience pain for the rest of his life ..." Id., 471-72. On the basis of this evidence, the Appellate Court concluded that the jury’s finding that the plaintiff’s damages were proximately caused by the accident "is inconsistent with the jury’s finding that the accident did not cause the plaintiff any noneconomic damages, which indicates that the jury did not find that the accident caused the plaintiff any pain and suffering or permanent injury. See Schroeder v. Triangulum Associates, [supra, 259 Conn. 332]. The evidence presented to the jury pertaining to future medical bills addressed spinal fusion surgery. It is not reasonable for a jury to find a defendant liable for the expense of a spinal fusion surgery, but not liable for the pain and permanent disability necessarily attendant to such intrusive surgery ... After finding the defendant insurer liable for at least a portion of the plaintiff’s spinal fusion surgery ... the jury reasonably could not have found that the defendant insurer was free from liability for all of the pain or disability attendant to such surgery." (Citations omitted.) Id., 472. The court thus concluded that the jury’s verdict was improper as a matter of law. Id., 474; see also Werme v. Peerless Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-11-6019373-S (April 1, 2014, Wilson, J.) ("[i]t is not reasonable for the jury to have found the defendant liable for the expense of the plaintiff’s past medical treatment, which is substantial, and for future medical treatment, which is also substantial, but only liable for the pain and permanent disability associated with that treatment to the extent of $3,591.96"); Ketchian v. Liberty Mutual Fire Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV-02-0395856-S (February 8, 2006, Arnold, J.T.R.) (jury award of zero noneconomic damages inconsistent with jury’s finding that plaintiff will require additional wrist fusion surgery in future and awarded costs of future surgery).
In the present case, at least two factors favoring additur are present, namely, the full award of the plaintiff’s past medical expenses, as well as damages for future medical treatment. In the absence of any evidence that the plaintiff suffered from a preexisting condition, it would be illogical to award economic damages for all of the plaintiff’s past medical expenses proximately caused by the defendant, and not award damages for pain and suffering. This conclusion is further supported by the objective evidence the plaintiff introduced of her pain and suffering, and evidence that her medical treatment was not merely diagnostic or evaluative, but for treatment. In her last visit on May 2, 2018, with Dr. Richard Zell, the plaintiff’s treating physician, and just prior to the commencement of evidence in the case, the plaintiff was having documented pain in her left foot. Dr. Zell notes under "Plan: Orders ... Pain Assessment documented as positive using a standardized tool ..." Pl. Ex. 9. In late November 2017, Dr. Zell noted that the plaintiff "knows that she will ultimately have to consider surgery given her ongoing difficulties." Id. Again, at this visit, Dr. Zell noted that the plaintiff’s pain assessment was documented as positive. Moreover, Dr. Zell assessed a 10% permanent impairment of the plaintiff’s left lower extremity as a result of the accident. He also recommended a midfoot fusion which would "[restrict the plaintiff] from weight bearing for approximately eight weeks after surgery ... [c]asted up to about six to eight weeks out from surgery and then [she would] participate in a physical therapy program. So the whole process is approximately four months. And full recovery does not take place until at least six, if not, eight months after surgery." Pl. Ex. 43, pp. 12-15. Dr. Zell opined that the plaintiff would be out of work for four months. Dr. Zell further opined that "patients would proceed with this [type of surgery] if they’re having pain on most days and its restricting their activities." Id., 12-13; and concluded that the plaintiff’s injuries and resulting past and future medical treatment were causally related to the December 12, 2014 motor vehicle accident. The jury obviously credited Dr. Zell’s opinions on causation since they awarded the plaintiff all of her claimed past medical expenses and awarded future medical expenses in an amount which was within the ball park of Dr. Zell’s estimated cost for future surgery. Thus, the jury’s finding that the plaintiff’s damages were proximately caused by the accident "is inconsistent with the jury’s finding that the accident did not cause the plaintiff any noneconomic damages, which indicates that the jury did not find the accident caused the plaintiff any pain and suffering or permanent injury." Benedetto v. Zaku, supra, 112 Conn.App. 472. It is not reasonable for the jury to have found the defendant liable for the expense of the plaintiff’s past medical treatment which was substantial, and for future medical treatment, which is also substantial, and not liable for the pain and suffering and permanent disability associated with that treatment.
Moreover, the jury’s award is inconsistent because the plaintiff’s expert testified that the type of surgery recommended, is required when an individual continues to experience pain. As the Appellate Court discussed in Benedetto, it is not reasonable for a jury to find a defendant liable for the expense of a future surgery, but not liable for the pain necessarily attendant to such surgery. In addition, Dr. Zell opined that the plaintiff would be out of work after the surgery for four months, and that "full recovery doesn’t take place until at least six, if not, eight months after surgery." Pl. Ex. 43, p. 14. This court therefore concludes that the jury’s verdict was improper as a matter of law.
Although the defendant argues that the jury may have found the plaintiff’s testimony regarding pain and suffering to be lacking credibility, the defendant’s objection does not explicitly point to any inconsistency or lack of credibility in the plaintiff’s testimony. Nor does the defendant claim that the only evidence before the jury regarding pain and suffering was the plaintiff’s subjective testimony, or that the medical records or other evidence lacked objective findings of the plaintiff’s pain and suffering, as the Appellate Court discussed in Cusano and Melendez. Indeed, Dr. Zell’s reports reflect that upon examination, the plaintiff experienced pain, and the plaintiff’s "[p]ain [a]ssessment [was] documented as positive using a standardized tool." Pl. Ex. 9.
Finally, the defendant did not raise any issues in his objection regarding pre-existing injuries or permanency to suggest that the defendant’s conduct did not proximately cause the plaintiff’s injuries. In addition to the court’s conclusion based upon its fact intensive analysis as demanded by Wichers, the defendant’s lack of analysis on these points suggests that, under the facts of this case, an award of additur for noneconomic damages is appropriate.
In this case, where the jury awarded the plaintiff all claimed medical expenses of $16,990.30 for treatment relating to treating and alleviating the plaintiff’s pain, and future medical expenses in the amount of $24,000, I must in good conscience come to the inescapable conclusion, as the court did in Benedetto, that the jury verdict is inconsistent.
CONCLUSION
For the foregoing reasons, the jury’s finding that the defendant’s conduct proximately caused the plaintiff’s injuries, such that the jury awarded all of the plaintiff’s claimed past medical expenses and, in addition awarded the plaintiff future medical expenses, but failed to award noneconomic damages associated with such past and future medical treatment, is inconsistent and improper as a matter of law. Accordingly, the court in its discretion concludes that an additur is appropriate. Therefore, the plaintiff’s motion for additur is granted. An additur of $50,000 in noneconomic damages, reduced, by the plaintiff’s comparative negligence of 35% is ordered, resulting in a total award of $59,143.69, which represents $26,643.69 (jury’s award of past and future medical expenses of $40,990.30 reduced by 35%) in economic damages; and $32,500 ($50,000 additur reduced by 35%) in noneconomic damages. 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 $59,143.69 plus taxable costs. If the additur is not timely accepted by both parties, a new trial is ordered. It is so ordered.