Opinion
No. CV 07 5001590S
June 16, 2008
MEMORANDUM OF DECISION
The plaintiff, Brian M. Buckley, has filed a motion (#113) for additur or to set aside the jury verdict of April 25, 2008. The jury awarded the plaintiff his special damages but nothing for pain and suffering. The plaintiff claims that the verdict is inconsistent with the evidence and law. Oral argument was held on June 2, 2008.
The plaintiff is a 25-year-old man with no medical history of injury to his neck or back. On October 6, 2006 he was involved in an auto collision with the defendant which did significant damage to both vehicles. The plaintiff was transported to the hospital by ambulance with complaints of a sore neck and back. The intake form at the hospital states that he was experiencing mild to moderate pain and that there was muscle spasm in the neck. He was treated and released with a diagnosis of back contusion and neck strain. He was given a prescription for 400 mg Ibuprofen. Over the next two months he received 17 or 18 treatments from a chiropractor and was out of work for about two weeks. The chiropractor assigned a 5% permanent partial impairment of the lumbar region and a 5% permanent impairment of the cervical region.
The plaintiff's medical bills, lost wages and property damage totaled almost exactly $6,500. The jury awarded the plaintiff economic damages of $6,500 and nothing for noneconomic damages. The verdict was reduced by 40% for the plaintiff's comparative damages.
Total medical bills were $4678.60; total lost wages were $784; and total property damage was $1000. These total $6,462.00. I failed to notice the discrepancy of $34.40 between the total special damages claimed and the total awarded before ordering the verdict accepted and recorded. Neither party has raised this issue in connection with the motion to set aside.
In recent years there have been many cases which have presented the same scenario as here: an award of monetary damages but nothing for nonmonetary damages. In Wichers v. Hatch, 252 Conn. 174 (2000), the Supreme Court made it clear that there is no longer a per se rule which requires the court to set aside a verdict as inadequate which makes an award for economic damages, but no award for noneconomic damages. Instead, "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., 188-89. Wichers requires the court to "determine on a case-by-case basis whether a verdict is adequate as a matter of law." Schroeder v. Triangulum Associates, 259 Conn. 330 (2002).
This case-by-case determination has led some courts to uphold awards of economic damages with no noneconomic damages. See, e.g., Turner v. Postural, 88 Conn.App. 720 (2005); Schottiana v. Labarba, 82 Conn.App. 445 (2004); Santa Maria v. Klevecz, 70 Conn.App. 10 (2002); Daigle v. Metropolitan Property Casualty Ins. Co., 60 Conn.App. 465 (2000), aff'd, 257 Conn. 359 (2001). These cases all involve situations where the plaintiff had a pre-existing injury or another accident to which any pain and suffering could be attributed. Here, the plaintiff had no pre-existing injury or other accident.
The facts of this case are more like those cases which have found an inconsistency in an award of economic damages with no noneconomic damages. See, e.g. Schroeder v. Triangulum Associates, 259 Conn. 325 (2002); Elliott v. Larson, 81 Conn.App. 468 (2004); Feleccia v. Nationwide Property Casualty Ins. Co., 92 Conn.App. 481 (2005); Lombardi v. Cobb, 99 Conn.App. 705 (2007). In Cobb the court held: "Because the plaintiff's medical expenses and lost wages related to her treatment for back and shoulder pain, the jury necessarily found that she had experienced pain, and it therefore should have awarded her noneconomic damages." Id., 709. The facts here are nearly identical to those in Cobb, and lead to the unmistakable conclusion that the jury was mistaken in not awarding anything for pain and suffering. In awarding economic damages for hospital and chiropractic treatment, as well as lost wages, the jury must have found the plaintiff received injuries in the collision which required treatment and disabled him from work for two weeks. Some degree of pain was the necessary result of the injuries. The reports which accompany the bills reflect subjective complaints of pain as well as references to muscle spasm which is an objective sign of pain. If there had been no pain, there would have been no need for treatment. The plaintiff had no prior injuries or other accidents to which the pain might have been ascribed. It is true that the jury was not required to find that this pain was severe or that it was permanent in nature. But, to award zero dollars for pain presents an inconsistency with the award of monetary damages. "Moreover, insofar as there was no evidence suggesting that the plaintiff had any preexisting conditions, the jury could not have reasonably attributed these problems to a cause other than the accident." Feleccia v. Nationwide Property Casualty Ins. Co., 92 Conn.App. 481, 489 (2005).
Accordingly, the court grants the motion for an additur and awards an additional $5,000 in noneconomic damages, less forty percent (40%) in accordance with the jury's finding of comparative negligence on the part of the plaintiff. This results in a total net additur of $3,000. The verdict shall be set aside unless within thirty (30) days from the filing of this decision the defendant shall file with the clerk an additur in the amount of $3,000 in noneconomic damages. This additur shall be added to the original net award of $3,900 for a total award of $6,900. If the additur is not filed within that time, or filed and not accepted by the plaintiff the verdict is hereby set aside and a new trial is ordered limited to the issue of damages.