Opinion
No. CV09-5012058S
October 8, 2010
MEMORANDUM OF DECISION Re Motion to Set Aside/Remittitur
The trial of this personal injury automobile action to a jury proceeded on June 29 and June 30, 2010. On July 1, 2010, the jury rendered a verdict of $249,754; of that amount $69,754.46 was awarded in economic damages and $180,000 was awarded in non-economic damages. For much of the life of this case, the defendant had contested liability and rested on a special defense of comparative negligence — primarily, that the plaintiff had been driving with her lights off. Immediately prior to trial, liability was conceded.
See Plaintiff's Verdict (#136.80).
The jury awarded all of the past medical expenses — $9,754.46 for the period 11/6/08-3/4/10 — and future medical expenses of $60,000. See Responses to Jury Interrogatories (#136.70).
The evidence established the parties were driving their autos on November 6, 2008, in Wolcott, Connecticut, when the defendant pulled out of a private drive into the plaintiff's vehicle, causing heavy damage to both vehicles (both were totaled), the deployment of airbags, and outside smoke to enter the plaintiff's vehicle (there was testimony one of the plaintiff's two children screamed "Get me out of here" from his seat in the rear). After leaving the children at her mother's home, the plaintiff was treated at the emergency room of Waterbury Hospital for neck pain she described as "burning," swelling of the knees, right arm pain, and airbag bruises on both arms and knees. Six (6) days later, she began treatment with a chiropractic (which continued for more than a year), saw an orthopedic on two (2) occasions in March of 2009 because, given the continuing neck pain, she wanted to rule out a "bone" problem, and was seen by and underwent electrode testing with a physical medicine practitioner in March of 2010 for arm and shoulder pain as well as tingling in her hands. Her testimony at trial was that she would still be treating but for lack of medical insurance. A hairdresser who ran her own salon, she described her need to rest during the work day for pain and diminished neck range of motion and stated that, on the two (2) long days she worked each week, she went to bed immediately after dinner. Though she continued to attend the boys' sporting events, she could no longer body surf or play ball with them as she had prior to the accident. She complained of constant neck pain she likened to a "cramp" and pain and fatigue in her arms and shoulders as well. The pain was "like a knife and burning." She stated she had difficulty carrying grocery bags or laundry, woke up in pain and had difficulty dressing, was required still to apply ice packs and/or a heating pad twice weekly, needed to take periodic work breaks, and had difficulty sleeping due to pain. She testified to having experienced postpartum depression after the birth of her youngest son (now eleven [11]) and has since then been on medication for depression but that the pain from this accident and her resulting physical restrictions from her injuries has at times made her fear hurting herself.
The defendant's trial strategy was to: 1) demonstrate the plaintiff's bodily pains were not a new complaint by introducing numerous medical records which in fact documented frequent visits to various doctors over numerous years prior to the accident for neck, back, and shoulder pain — ergo, her present injuries were at best a re-aggravation of prior existing injuries and the plaintiff had no credibility; and 2) establish the plaintiff had a longstanding and continuing drug problem and thus was not to be believed. The plaintiff's testimony was that she did in fact have a drug history, that she had gone to many different doctors over the years to complain of pain(s) she did not have for the sole purpose of getting them to prescribe the drugs she craved but couldn't buy ("Yes, I lied. I would say anything then to get the drugs I needed"), that she sustained no prior injuries, and that she had been sober since November of 2004 — two (2) years prior to this auto accident. Her credibility having become the focus of the trial, the plaintiff, on re-direct, introduced toxicology records after November of 2004 that demonstrated the absence of drugs in her system. All of her medical treatment — both pre-and post-accident — was documented by medical reports and bills (as opposed to live testimony).
Her sister testified that, although she had visited at the plaintiff's home weekly for many years (the plaintiff was her sister's hair stylist), she had never known the plaintiff to have any neck pain until her visit two (2) days following the collision when her sister was lying on the sofa with a heating pad to her neck and with bruises on her leg and knee. She stated that, after November 6, 2008, her sister was occasionally unable to style her hair because of pain and that she observed her sister to be less physically active with her children than she had been and that the plaintiff was fearful of the effect of athletic activities vis-a-vis her injuries. She asserted that, during the period of her sister's active drug use (1998-2004), that drug use was "not always apparent" when she visited and that, as of November of 2004, the plaintiff was no longer "using" and that her personality and attitude had changed noticeably for the better. The plaintiff had met new people who were sober (through the recovery program), obtained and decorated a new apartment, and had become more actively involved in her boys' lives.
The plaintiff's youngest son, who had been a rear seat passenger in his mother's car on November 6, 2008, was called as the plaintiff's last witness. A friendly, well-behaved youngster who appeared honest and without guile, "Lukey" described the nighttime accident, his being able to see his mother's lights being on, and the "lady who pulled out in front of us and hit us." He described a lot of smoke coming into the vehicle and his inability to open a window, said he had a few bruises from the accident, and described his mom as holding her neck after the impact. He described his mother before the accident as always happy, playing outdoor sports, taking him and his brother to the beach or camping regularly, and to never having seen his mother in pain. After the accident, he stated she was always tired, unable to turn her neck or go into the water at the beach "because of the waves," using an icepack frequently, and taking ibuprofen daily. In a particularly poignant moment, the young man described a practice prior to the accident in which mother and son together said their nightly prayers and then hugged goodnight. He burst into tears on the stand as he testified that what he missed most about his mother since the accident was that he could no longer hug her goodnight because it would hurt her neck. Cross-examination established only that the plaintiff continued to do some things (nonathletic) with the boys and that "Lukey saw his father (who coached his baseball team) every weekend."
While the court has the inherent power to set aside a jury verdict which is against the law or evidence ( O'Brien v. Sawyer, 183 Conn. 199, 208), it should not do so where there was some evidence upon which the jury could reasonably have reached their verdict; under such circumstances, "the trial court should let the jury work their will." Turner v. Pascarelli, 88 Conn.App. 720, 731 (2005). Only if the jury could not reasonably and legally have reached their conclusion should a verdict be set aside. Cohen v. Yale-New Haven Hosp., 260 Conn. 747, 761 (2002). In determining whether the jury's verdict is reasonably supported by the evidence, the evidence must be viewed in the light most favorable to the plaintiff. Johnson v. Chaves, 78 Conn.App. 342, 346 (2003). The mere conclusion the jury exercised poor judgment is not a sufficient basis upon which to set aside a verdict. Wochek v. Foley, 193 Conn. 582, 587 (1984). The court ought not become the seventh juror and substitute her view (or value) for that of the jurors selected by the parties — who themselves selected a trial by jury. In deciding whether to grant motions such as these motions, the court is not to assume the jurors made a mistake but to suppose they did exactly what they intended to do. Schettino v. Labarba, 82 Conn.App. 445, 449 (2004). There was before the court in Schettino — as there is here — conflicting evidence. The Court of Appeals had this to offer on that subject:
The existence of conflicting evidence curtails the authority of the court to overturn the verdict because the jury is entrusted with deciding which evidence is more credible and what effect it is to be given . . . [O]n 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. (Citation omitted; internal quotation marks omitted.) Id., at 450.
"Litigants 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 awarded." (Internal quotation marks omitted.) Ham v. Greene, 248 Conn. 508, 536, cert. denied, 528 U.S. 929, 145 L.Ed.2d 254 (1999). "The award of damages for pain and suffering is peculiarly within the province of the trier [of fact]." Manning v. Michael, 188 Conn. 607, 616 (1982). "The fact that it is difficult to measure pain and suffering in terms of money does not prevent a recovery . . . as long as there is a reasonable basis in the record for that recovery." (Citations omitted.) Leabo v. Leninski, 2 Conn.App. 715, 727 (1984), on appeal after remand, 9 Conn.App. 299 (1986), cert. denied, 202 Conn. 806 (1987). Furthermore, "[t]he size of the verdict alone does not determine whether it is excessive." (Internal quotation marks omitted.) Ham v. Greene, supra, 536.
"[I]n ruling on the motion for remittitur, the trial court was obliged to view the evidence in the light most favorable to the plaintiff in determining whether the verdict returned was reasonably supported thereby." Saleh v. Riberio Trucking, LLC, 117 Conn.App. 821, 828 (2009), citing to Eisenbach v. Downey, 45 Conn.App. 165, 184, cert denied, 241 Conn. 926 (1997). A conclusion that the jury exercised merely poor judgment is an insufficient basis for ordering a remittitur. Johnson v. Chaves, 78 Conn.App. 342, 346, cert. denied, 266 Conn. 911 (2003). Proper compensation for noneconomic damages cannot be computed by a mathematical formula, and there is no precise rule for the assessment of damages. See Campbell v. Gould, 194 Conn. 35, 40 (1984). The plaintiff need not prove damages with mathematical exactitude; rather, the plaintiff must provide sufficient evidence for the trier to make a fair and reasonable estimate. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 65 (1998). A generous award of noneconomic damages should be sustained if it does not shock the sense of justice. Campbell v. Gould, supra, 40.
Instructive with regard to the instant motion to set aside are the words of the Court in Saleh:
What is more problematic is the [trial] court's refusal to allow the plaintiff any compensation for his pain and suffering that occurred after he was given a permanency rating and for his future life expectancy. It was within the province of the jury, on the basis of the evidence that the plaintiff was in a constant state of pain almost five years after the accident, to award him damages for pain and suffering after the date permanency was found . . . It was reasonable for the jury to award compensation for pain and suffering beyond the date of permanency because the testimony of the plaintiff was that about eighteen months after the date of permanency, he was still in a state of constant pain. The jury is allowed to determine the reliability of witnesses, and it clearly believed the testimony of the plaintiff. The determination of how much noneconomic damages should be awarded is particularly within the jury's duties, and without a plainly excessive verdict based on the evidence, the verdict should stand. 117 Conn.App., at 828-29. The Court reversed the trial court's judgment in ordering a remittitur and remanded with direction to reinstate the jury verdict.
Id., 829.
The plaintiff in Saleh had been rear-ended by a tractor trailer, causing damage to the right rear bumper and truck areas of his car. He complained of neck, back, and shoulder pain at the scene and was taken to a local hospital for x-rays and released. Within days of the accident, he saw his regular physician who prescribed pain meds and anti-inflammatories. He saw an orthopedic for twelve (12) visits and then got physical therapy (discontinued after a month because painful). His orthopedic assessed a 7.5-10% permanency of the right shoulder and 7.5% of the lumbar spine. Perhaps relevant is that he had returned to his work as a car salesman within days of the accident though he testified he was in pain all day. One and one-half years after the plaintiff had discontinued active treatment, he saw a second orthopedic who injected his shoulder and assessed a 10% permanency of the shoulder and a 5% for both the neck and back "for a total permanency of 15 percent." Id., at 823. The plaintiff's life expectancy was 15.8 years. The jury awarded $12,132.31 in economic damages and $687,868 in noneconomic damages for a total award of $700,000.31. The trial court had granted a remittitur of $503,608, thus reducing the award to $184,260.00.
At trial, the plaintiff claimed the following injuries: 1) a cervical sprain/strain with pain; 2) a 10% permanent injury to her cervical spine; 3) bilateral arm injury with pain; 4) a lumbar sprain/strain with pain; 5) bilateral knee injury with pain; 6) past and future mental and physical pain and suffering; and 7) loss of enjoyment of life's activities. She claimed past medical expenses of $9,754.46 and future medical expenses for continuing treatment of her neck injury. At trial, the lady was forty-four (44) years old and the parties had agreed her life expectancy was 38.2 years. The jury was advised by the court of each of these claims in her written charge and the jury was provided — as full exhibits — a list of all past medical expenses and all medical reports.
The defendant, in support of her motions, has submitted a twenty-one (21) page brief and argues the motions ought be granted on the following eleven (11) grounds:
1) The court erred in allowing the claim of future medical expenses to be submitted to the jury and in giving a supplemental jury instruction which provided the jurors with a formula for calculating future medical expenses where the evidence was insufficient or gave rise to speculation and guess about the cost and duration of future treatment;
2) The court erred in giving a jury instruction regarding an aggravation of a pre-existing injury when there was no claim of a pre-existing injury made by the plaintiff, no amendment to the plaintiff's complaint or interrogatory responses alleging an aggravation, no admission from the plaintiff in her testimony that she had an underlying injury which was aggravated by this auto accident, and no expert witness testimony offered by either party that the plaintiff suffered an aggravation of a pre-existing injury;
3) The court erred during the jury instruction in emphasizing and highlighting the plaintiff's evidence, including the 10% PPD rating and by emphasizing the medical bills with a prolonged discussion of the jury interrogatory;
4) The court erred during the jury instruction by offering opinion and commentary about the use of medical records in lieu of live testimony and by suggesting to the jury that using live testimony of the medical providers would have turned a 1 1/2 day trial into a 1 1/2 week trial, thereby allowing the jurors to make a positive inference from the lack of medical testimony in this case;
5) The court erred during the jury instruction by offering opinion and comment that the use of medical records in lieu of live testimony was the normal practice in a negligence action and that the jurors had the right to assume that such use of records in lieu of live testimony in this case had legislative imprimatur;
6) The court erred in allowing the original answer and special defense to be submitted as a full exhibit and to go to the jury;
7) The court erred in restricting and limiting cross-examination about the plaintiff's prior tax returns;
8) The jury verdict is against the weight of the evidence presented at trial;
9) The jury verdict is clearly excessive in light of the evidence that was presented;
10) The jury verdict was based on speculation and guess as to the extent of economic and non-economic damages in light of the evidence presented; and
11) The jury verdict was influenced by sympathy, partiality, and prejudice.
Some of the defendant's arguments require little discussion. As to the claim that the verdict was influenced by sympathy, partiality, and prejudice (#11), no evidence to support this claim was offered either in the memorandum supporting the motion or at oral argument on September 13, 2010. As the jurors were departing the courtroom following acceptance of the verdict, the court observed both plaintiff's and defense counsel in conversation with one of the jurors in the courtroom. Yet no argument is made that that juror made any comment to suggest the verdict ought be set aside on these grounds. Nor is the claim that the tears of the plaintiff's young son engendered the degree of sympathy — if any was evoked — to set aside the verdict. In the absence of any evidence to support this claim, it is without merit.
So too is the claim the court erred in "restricting and limiting" cross-examination of the plaintiff on the subject of her prior tax returns (#7). Firstly, there was no claim for either lost wages or impaired earning capacity and the plaintiff's testimony was that she had returned to work as a hair stylist within a week of the subject accident but that she worked with pain and fatigue and required frequent rest periods. Defense counsel, on cross examination was permitted to establish that the plaintiff had earlier claimed lost wages and impaired earning capacity but had withdrawn those claims after her deposition had been taken. To the extent, therefore, such testimony was pertinent to establishing the plaintiff's lack of credibility, the jury heard that evidence. The court finds no link between the plaintiff's claim of diminished enjoyment of life's activities and the amount of money earned prior to 2007 as defendant has claimed. (See 6/29/10 a.m. transcript, pages 36-39.) To the extent introduction of prior tax returns would have established the lady's "honesty in reporting her taxes" ( id., at 38), no accounting expert was proffered nor did defense counsel ask that any tax returns be marked for identification so as to preserve the record. When, in fact, the court stated, "I believe he's got a right to impeach the lady's credibility, if that's possible, with regard to the level of her work activities and the hours worked, not the wages earned from that hour" ( id. at 40-41), the defendant elected to forsake that line of interrogation to inquire whether it was so that she owed her primary treater "quite a bit of money" (to which she agreed) and then inquired whether that provider had a lien on the proceeds of this case (she had no idea); he did not again return to the subject of hours worked or tax records.
In the same way defense counsel had a clear right to impeach the plaintiff's credibility, so too did the plaintiff have a right to impeach the defendant's credibility. The court's permitting of the introduction of the defendant's original answer and special defense as a full exhibit (#6) differed not in kind from the defendant's introduction (as full exhibits) of the plaintiff's medical records claiming prior neck and back injuries when she consistently testified she had no such prior inquiries but instead was repeatedly lying to doctors only to get drugs.
The defendant cites to Baker v. Paradiso, 117 Conn. 539 (1933), to support his argument. Baker involved an automobile accident tried on the theory of the family car doctrine — that is, that the PAGE 14] defendant owner kept the auto for the use and convenience of her family and was, on the date of the accident, being operated by the defendant's son with her knowledge and consent. The original Answer filed there denied the driver's negligence (as did this defendant's original Answer). The second Answer filed in Baker admitted the driver's negligence. The plaintiff offered the first Answer in evidence (without stating the purpose of the offer) and the trial court admitted it over objection. The Supreme Court concluded that admission of the second Answer was error because not a "quasi-admission" (because the substituted Answer admitted what was earlier denied). Id. At 547. It then concluded that ruling by the trial court "falls far short of constitutional reversible error." Id. "The presence of the pleading in evidence could have had no effect, adverse to the defendant, upon the verdict, especially in view of the trial court's appropriate comment in the charge to the effect that the subsequent admission of negligence might well have been the result of full investigation not made until the case was prepared for trial." Id. at 547-48. In the case before the court, the defendant's amended Answer, e-filed at 9:46 p.m. the evening before trial, admitted to failure to timely apply her brakes though, after the accident and at her deposition, the defendant had maintained the plaintiff was at fault for not displaying her headlights. Thus, the instant case is factually inconsistent with Baker and the court's permitting of the defendant's prior filed Answer and Special Defense, even under similar circumstances, does not constitute reversible error.
When cross-examined by her counsel at trial, Ms. Albini stated that "last week" she realized it was her fault in not applying her brakes when she pulled out in front of the plaintiff's vehicle. 6/29/10 a.m. Tr., at 58.
As to the claim the court erred in instructing the jury regarding a pre-existing neck injury (#2), the jury was told that, in assessing the plaintiff's claim of physical injury to her neck, they could consider whether that injury was made worse as a result of an earlier neck injury (charge, at 14) but that, if they so found, she was not entitled to be compensated for the prior neck injury but was only entitled to be compensated for all past and future pain and suffering made worse by this 2008 accident (charge, at 14-15). A pre-existing injury charge is appropriate when a defendant raises that issue even though the plaintiff did not here claim an aggravation of a pre-existing condition in the pleadings. The plaintiff requested a pre-existing injury charge. "She was entitled to such a charge under the facts in this case without alleging aggravation because it was an issue raised by the defendant, who therefore is charged with notice of it." Rubano v. Koenen, 152 Conn. 134, 137 (1964). In the instant case, the defendant, reading from prior medical records, repeatedly queried the witness with regard to medical visits during which she told providers of a fall or athletic event which resulted in injury to her neck or back. Repeatedly, the plaintiff denied she had ever sustained such prior injury or had been involved in the incident described in the medical records; repeatedly, she admitted she had been dishonest with doctors for the express purpose of obtaining narcotics. Yet, in closing argument, defense counsel made frequent reference to the plaintiff's "past history" of neck and back pain. (See e.g., 6/20/10 a.m. Tr., p. 63; id. at 66.) In fact, counsel's opening statement prepared the jury for conflicting evidence of old injury — new injury — aggravation of prior injury. He told the jury, "But whether or not it was a continuing problem, a lingering problem, is for you to decide. And I would argue to you, ladies and gentlemen of the jury, that it wasn't a lingering problem. This is something that she had neck spasms all along. This isn't a new injury. This isn't an aggravation of an injury. It's simply an old injury that was underlying the whole thing." 6/29/10 a.m. Tr., pp. 31-32. The defendant raised the issue of aggravation of a pre-existing injury and, in so doing, he planted the seed for the jury's consideration, thus requiring the court to address it in her Charge. The defendant cannot later claim to have been harmed by a Charge which correctly explained the law applicable to the repeated reference to previously claimed similar injuries and the fact the plaintiff consistently denied those previous similar injuries is of no help to the defendant in view of the defendant's insistence throughout that the plaintiff was a habitual liar. Though neither counsel submitted preliminary requests to charge and plaintiff's counsel did not take exception to the charge, the general verdict rule does not permit defense counsel now to argue he was harmed by this instruction in the absence of a request for an interrogatory which specifically asked the jury whether it found proven a pre-existing injury aggravated by this accident.
The defendant has also claimed the verdict was based on speculation and guess as to the extent of economic and non-economic damages in light of the evidence presented (#10 above). The court is not persuaded. The evidence included full Exhibit 10 — a listing of post medical bills in the amount of $9,754.46 with a copy of each of the statements rendered by providers. To that amount, the jury added $60,000 for future medical expenses. "It is not speculative or conjectural to award future medical expenses when there is a degree of medical certainty that future medical expenses will be necessary." Doe v. Thames Valley Council for Community Action, Inc. et al., 69 Conn.App. 850, 878 (2002) (internal citations omitted). In Doe, there had been medical testimony that the child victim of sexual abuse had permanent injuries and would need further treatment Id. at 878. "In determining an appropriate amount to award for future medical expenses, the jury's determination must be based on an estimate of reasonable probabilities not possibilities . . ." Id. In the case before the court, the plaintiff's chiropractic, Dr. James Albino, on March 1, 2010, discharged her from active therapeutic care and assessed a "10% impairment of the whole person as relates to the cervicothoracic region . . . directly and causably the result of the motor vehicle collision which occurred on November 6, 2008." Exh. 12, p. 2 of report of final examination. "It is my professional opinion that Ms. Betkoski will be susceptible to frequent episodes of exacerbation due to the traumatic insult to the supportive structures of the spine, MRI findings and the level of activities and stresses she is subject to relating to her vocational tasks. I have recommended that the patient continue with a maintenance program of care one to two times per month to limit such exacerbation's (sic)." (Emphasis added.) Albino's 3/1/10 report. Dr. Albino's bill for services showed a range from $80/visit-$220/visit depending upon the specific treatments provided. Exh. #12, p. 1. The lady has an agreed life expectancy of 38.2 years. She was, at trial, forty-four (44) years old, the owner of a hair salon, and the single mother of two (2) young sons. She testified she is frequently caused to experience frequent neck pain made worse by long days at the salon, the repetitive use of the neck and upper body required of hair stylists, household chores, and her children's needs. There is, given Dr. Albino's medical conclusion, more than a reasonable degree of medical certainty not merely that the plaintiff will incur future medical expenses but that the cost of the same over the duration of her life span would approximate or exceed $60,000. The evidence regarding future medical treatment was properly admissible and compensable.
If the cost of medical treatment were to remain constant over 38.2 years and if the plaintiff were to receive only one monthly treatment over that period at an average cost of $150/session, the total cost of such treatment would be $68,760.
The defendant claims the court erred in "offering opinion and comment" regarding the use of medical records in lieu of live testimony and in suggesting to the jury that using live testimony of doctors would have turned a day trial into a 1-1/2 week trial, thereby allowing the jurors to infer a positive inference from the lack of medical testimony in this case (#4). The defendant has also claimed it was error for the court to offer "opinion and comment that the use of medical records in lieu of live testimony was the normal practice in a negligence action and that jurors had the right to assume that use of records (all introduced as full exhibits without objection) in lieu of live testimony had "legislative imprimatur" (#5). Connecticut General Statute § 52-174(b) provides medical reports and bills are admissible at trial if the reports are signed, which signature shall be presumed authentic as business records. The statute also provides that no adverse inference concerning the lack of testimony by such treater arises from the failure to produce live testimony. The court at no time told the jury the failure to call medical providers was "normal" though it is, in very short auto personal injury cases, becoming increasingly the practice not to call them to testify — whether for reason of the difficulty in scheduling their appearance or for the cost involved (a cost this defendant would have had to assume). The court was correct in telling the jury the legislature had provided for admission of the medical reports and bills without live testimony. The court was also correct in explaining to the jury that it is frequently so (and has been so in this court's personal experience) that the "wait" for doctors' availability for live testimony did in fact frequently lead to long trial delays. The defendant neither has identified any damage to her as a result of the court's comment nor has she addressed the fact that she had the opportunity to call plaintiff's treating physicians had she so desired.
The defendant's claim the court erred in allowing the claim for future medical expenses and in giving a supplemental instruction which provided a "formula" for calculating future medical expenses because "speculation and guess" (#1) is without merit. As earlier stated, medical records of Dr. Albino provided the plaintiff would continue to need chiropractic treatments and would benefit from a maintenance program of such treatment once or twice per month. In Marchetti v. Ramirez, 40 Conn.App. 740 (1996), our Appellate Court concluded the jury could properly award future medical damages where the testimony had been that the plaintiff "might" (as opposed to "would" here) incur future medical expenses and, there, as here, the plaintiff testified he still suffers pain. Id. at 746. "Nor is it speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have occurred as of the trial date . . ." Id., at 745. This court told the jury that, if they were to award future medical expenses, they should consult Dr. Albino's medical bill to determine the cost of the last received chiropractic treatment and to project that cost with the frequency they determine appropriate (based on Albino's report) for as many years as they believe chiropractic treatment will be required. 6/30/10 p.m. Tr. of Charge, at p. 23. The jury awarded economic damages of $69,754.46, $9,754.46 of which constituted past medical expenses; thus, $60,000 was awarded for future medical expenses. The last chiropractic treatment appears to have occurred on 11/30/09. See report of that date from Dr. Albino (Sampino Chiropractic Center), Exh. 12; that cost was $80. If she were to receive twice monthly treatments, the yearly cost would be $1,920 ($160 x 12); if she were to obtain such treatments at the same rate (without any increase in the cost per visit) over her life expectancy (38.2 yrs.), the total cost of future care would be $84,864. It is apparent the jury returned an award of damages for future medical expenses that was substantially less than Dr. Albino's opinion would have otherwise supported.
On only one such visit was the charge $80; service fees ranged from $88/visit to $220/visit on the thirty-five (35) other visits listed on Exh. 10.
The defendant has claimed the court erred "in emphasizing and highlighting the plaintiff's evidence, including the 10% PPD rating and by emphasizing the medical bills with a prolonged discussion of the jury interrogatory." (#3). The charge consisted of fifty-two (52) pages and consumed approximately one and one-half hours. Defense counsel noted, after the charge, the court had referenced the permanency rating three times — which he considered excessive. The printed copy of the charge was provided to counsel the morning of and prior to closing arguments for their review. No request was directed with regard to those references. The transcript of the charge as delivered contains three (3) references to the permanency rating. 6/30/10 p.m. Tr. at 18, 23, and 30. With regard to the first mention of the assigned neck permanency, the court stated, "You are permitted to conclude, though you are not required to conclude, that she may have pain in her neck for the remainder of her life expectancy." Charge, at 18. At pp. 23-24, the court noted, "You will likewise compensate her for a permanent injury to her neck, a 10 percent loss of use, if you find that she has established by a fair preponderance of the evidence, that the permanent injury was proximately caused by this accident.
In explaining to the jury the verdict forms (samples of which were provided the jury as the court explained how they were to be completed), with specific reference to the non-economic damages section of the plaintiff's verdict form, the court iterated the plaintiff's claimed injuries — to include a doctor's assessment of 10 percent "that you may find to have been proven" (Emphasis added.) Id. at 30. The court does not find the references to be excessive in number given both the length of the charge and the fact that the jury was repeatedly instructed they could not award the plaintiff any amount of damages unless they agreed the plaintiff had sustained her burden of proving one or more of her injuries was proximately caused by Ms. Albini's negligence. See e.g., pp. 13, 17, 23-24 (multiple references), 24-25 (multiple references), 27, 28, 31, 33, 34. The court is not persuaded the charge was not balanced or that the permanency references were damaging to the defendant.
The "interrogatories" referenced by defense counsel were solely addressed to the past medical expenses and pertinent to collateral source payments. See #136.70. The "prolonged" discussion counsel references comprises pp. 32-35 of the charge and are required under our decisional law. The court finds this claim to be without merit.
Claims #8 and #9 are here considered together in view of their similarity. The plaintiff admitted to an addiction to drugs (and frequently alcohol) since she was approximately twenty-five (25) but did not seek help until approximately 1998. During active drug use, she frequented doctors with fabricated stores of needs and/or back pain to obtain pain medications which she would crush and snort. Eventually, she committed herself to becoming sober and her sobriety date is November 24, 2004. She has since then remained free of all drugs but still takes 600-800 mg. of Ibuprofen or Motrin twice daily for her neck pain from this accident. Both parties described the impact as a significant collision which caused extensive damage to their vehicles. Exhs. 1, 2. The airbags in the plaintiff's vehicle were deployed and smoke filled the car's interior. She received treatment at the local emergency room and remained at home for approximately one week following the accident. She owns her own hair salon where she styles, cuts, and colors hair; because of the neck pain involved in the bending, stretching, and turning of her body which her work requires, she has reduced her work hours to two days/week. (She works long hours on those days — often until 7:00 or 8:00 p.m. when she returns home for dinner and then often directly retires for the night.) Additionally, she works cutting hair one day a week at a local nursing home. She actively treated for her injuries with a chiropractic and an orthopedic physician and underwent electro diagnostic testing at her chiropractic's suggestion; her last active treatment prior to trial was in November of 2009 with Dr. Albino. (His treatment consisted primarily of manipulations (adjustments), exercise, and traction.) Her testimony was that she could no longer play sports or engage in beach activities with her children, required their help bringing clothes to the laundromat and carrying grocery bags, and was required to alter her clothes because she could not wear anything around her neck. As herein stated, Dr. Albino assessed a 10% permanency of her neck as a result of this accident and opined that she would continue to require one-two (1-2) chiropractic treatments per month in the future.
#8 reads, "The jury verdict is against the weight of the evidence presented at trial." #9 reads, "The jury verdict is clearly excessive in light of the evidence that was presented."
She is a slim, attractive, personable woman who presented at trial as credible, optimistic about her future, and grateful for a renewed life with her (now fifteen-and twelve-year-old) sons as a result of her sobriety.
Given all of the above, this court cannot conclude an award of $9,754.46 for past economic damages, $60,000 for future medical expenses, and non-economic damages of $180,000.00 for her physical and mental pain and suffering, diminished life enjoyment, and her neck permanency (for a total award of $249,754.46) shocks the court's sense of justice. Nor can this court, required as she is to view the evidence in the light most favorable to the plaintiff, conclude this jury's verdict is unsupported by the evidence or motivated by improper motives.
The Motion to Set Aside the Verdict is denied.
The parties are agreed $5,000 is to be deducted from the jury verdict for collateral source payments. A remittitur in that amount is ordered, thereby reducing the verdict to $244,754.46 to which costs of $1,107.98 are added. (The defendant has not objected to any portion of the Bill of Costs dated July 6, 2010.)
Judgment for the plaintiff enters this date in the amount of $245, 862.44.