Opinion
No. CV 03 0102057 S
August 10, 2005
MEMORANDUM OF DECISION ON MOTION FOR ADDITUR
In this action to recover for personal injuries arising out of an automobile collision, the plaintiff, Mary Ellen Albro, has moved for an additur because the jury awarded substantially all the past economic damages claimed, $7,461.14, awarded $5,000 for future economic damages, $5,000 for past noneconomic damages, but nothing for future noneconomic damages.
In deciding this issue, which appears to be one of first impression, this court is faced with two ostensibly contradictory decisions of the Connecticut Supreme Court, Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000), and Schroeder v. Triangulum Associates, 259 Conn. 325, 789 A.2d 459 (2002). In Wichers the Court reversed the trial court's additur and in Schroeder the Court reversed the trial court's refusal to grant an additur. In both cases the jury had awarded economic damages but no noneconomic damages.
The facts in this case are not clearly analogous to those of Wichers or Schroeder, but fall somewhere in between.
In Wichers, the Court expressly overruled Johnson v. Franklin, 112 Conn. 228, 152 A.64 (1930), which held that an award of greater than nominal damages equaling the exact amount of medical expenses and lost wages claimed with no award for noneconomic damages was inadequate as a matter of law. The plaintiff in Wichers had a preexisting neck impairment and had been receiving treatment by a chiropractor on a regular basis for many years prior to the automobile accident, which occurred in 1994. Prior to that, the plaintiff had received treatment from two other chiropractors. Additionally, since at least 1991, the plaintiff had been suffering from an arthritic condition in his neck, which had resulted in a reduced range of motion. He was CT Page 11889-bd diagnosed with a degenerative condition, known as spondylosis, a year before the accident. At trial the plaintiff's chiropractor testified that the plaintiff's restricted range of motion could have been caused by arthritis, spondylosis, normal wear and tear or aging.
Following Johnson, the trial court in Wichers imposed an additur of $7,500 for non-economic damages. The Court held that that was done in error, stating:
The assumption behind Johnson that a plaintiff who has proven that he was injured by a defendant's negligence must, by necessity, have also proven that the negligence caused pain and suffering is not sound, for example, in cases in which the plaintiff had a preexisting condition. In such circumstances, the causal connection between the pain experienced by the plaintiff and the defendant's conduct is not automatic. Therefore, the jury's failure to award noneconomic damages could simply reflect its conclusion that the plaintiff had not proven that he had suffered any additional pain as a result of the defendant's conduct. Hence, the other underpinning of Johnson, that every such verdict is ambiguous because it may reflect the jury's uncertainty as to the defendant's liability, is also fragile.
In this case, 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 preexisting 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. Thus, there was a sufficient evidentiary basis for the jury's verdict. Therefore, CT Page 11889-be the judgment of the trial court is reversed and the case is remanded to the trial court with direction to render judgment on the verdict.
Id. at 189-90.
In Schroeder the jury returned a verdict in favor of the plaintiff for economic damages in the amount of $750,400, but no noneconomic damages. The plaintiff's physician testified that the plaintiff underwent a surgical procedure to fuse a portion of his spine and that the plaintiff suffered a 30 percent permanent partial disability as a result of this significant injury. The plaintiff moved for an additur, arguing that, given the nature of his injuries and the invasiveness of the spinal fusion surgery, a jury reasonably could not award substantially all of the plaintiff's economic damages, including the medical expenses related to the spinal fusion, but zero noneconomic damages. The trial court denied the motion for additur. This ruling was reversed by the Supreme Court with the following rationale:
It is not reasonable for the jury to have found the defendant liable for the expense of the spinal fusion surgery, but not liable for the pain and permanent disability necessarily attendant to such intrusive surgery. Under these circumstances. the jury reasonably could not have found the defendant to be responsible initially for the full amount of the plaintiff's economic damages, but not liable for any noneconomic damages. The trial court therefore abused its discretion in failing to set aside the verdict and ordering a new trial.
Unlike the plaintiff in Wichers, however, the plaintiff in the present case underwent invasive spinal surgery. The jury reasonably could not have initially found the defendant liable for the expense of the surgery but not responsible for any pain or disability attendant to such surgery. This is in stark contrast to the facts of Wichers, wherein the plaintiff, as a result of his injury, merely underwent additional chiropractic treatment for an aggravation of a preexisting injury, leaving the jury free to determine whether the plaintiff had incurred any additional pain and suffering as a result of the defendant's negligence.
The injuries of the plaintiff here were clearly not as serious CT Page 11889-bf as those of the plaintiff in Schroeder. However, the jury did award the plaintiff substantially all of the past economic damages which she claimed. Unlike the plaintiff in Wichers, Mrs. Albro did not have a preexisting back condition for which she was treating at the time of the accident. She had sustained several minor back injuries many years before the collision and had recovered completely at the time of the accident. The plaintiff presented evidence that she had a permanent injury to her back which would require future medical treatment. The jury must have believed this evidence because they awarded her $5,000 in future economic damages.
The plaintiff did not claim any lost earning capacity and, therefore, the future economic damages were for future medical treatment.
Based on the foregoing, the jury could not have found, as the Supreme Court deemed that it found in Wichers, that the defendant's negligence did not increase the plaintiff's pain. The jury's award $5,000 in future economic damages and 0 in future noneconomic damages was, therefore, ambiguous, and the court finds that the jury was improperly "influenced by partiality, prejudice, mistake or corruption." See Birgel v. Heinz, 163 Conn. 23, 27-28, 301 A.2d 249 (1972).
The court must be mindful of the defendant's constitutional right to have his case decided by a jury, Mather v. Griffin Hospital, 207 Conn. 125, 540 A.2d 666 (1988), in determining the amount of the additur. The jury awarded $5,000 for past noneconomic damages when they found that the economic damages were $7,461.14. This court grants the motion for additur and adds an additional $2,500 to the verdict for future noneconomic damages.
Connecticut General Statutes § 52-228b provides:
No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to CT Page 11889-bg the verdict of such amount as the court deems reasonable.
Therefore, unless the defendant accepts the verdict with the additur imposed by this court, that is, $2,500, within 20 days of the date this decision is filed, then the verdict will be set aside.
The parties stated their agreement on the record on August 8, 2005, that the verdict, if not set aside, is reduced by $4,865 in collateral source payments.
By the court,
Aurigemma, J.