Opinion
No. CV 04-0834639S
December 12, 2005
MEMORANDUM OF DECISION ON MOTION FOR ADDITUR
This is a claim for damages under the Connecticut "dog bite" statute. Conn. Gen. Stat. § 22-357. Plaintiff claims that he was injured on November 19, 2003 at the defendant's home when her three dogs attacked him, biting him and knocking him to the ground.
The case was tried to a jury on October 25, 26 and 27. The jury returned a verdict in favor of the plaintiff awarding him $4,953.58 in economic damages and zero non-economic damages. The economic damages which the jury awarded were itemized on their verdict form. Plaintiff was awarded the amount of his claimed medical bills, except for bills from two psychiatrists who treated him post-injury and for a bill for a "barium swallow" test ordered by a treater.
Plaintiff has moved for an additur or, in the alternative, a new trial on the issue of damages only. When addressing the adequacy or inadequacy of a verdict awarding economic damages but no non-economic damages, our Supreme Court has held that trial courts "must determine on a case-by-case basis whether a verdict is adequate as a matter of law. Wichers v. Hatch, 252 Conn. 174, 188 (2000). "[I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work [its] will." Id., at 189.
In order for this jury to have determined that plaintiff was entitled to any damages at all, it was of course necessary for them to have decided that he was injured by the defendant's dogs. This finding was amply supported by the evidence presented. While defendant made to attempt to claim that plaintiff was not properly on her property at the time of the attack by her dogs, there was almost no evidence presented which suggested anything other than that plaintiff was at defendant's home incident to his employment as a tile installer.
There was also uncontroverted evidence that when defendant's dogs confronted the plaintiff, one of them bit him on the leg and that plaintiff was knocked to the ground during the confrontation. Following the incident, plaintiff sought medical treatment from a chiropractor and an orthopedic surgeon, among others. In addition to diagnostic testing, plaintiff received treatment from the chiropractor and also underwent physical therapy. The jury awarded plaintiff the costs of all of this treatment and testing, except for the three claimed expenses discussed above. In other words, the jury determined that plaintiff received medically necessary treatment for his alleged physical injuries. This was not a case where all of the claimed medical expenses could be characterized as diagnostic, as tests appropriately administered to determine whether a plaintiff was in fact injured. Because this jury awarded what it did, it must necessarily have found that plaintiff suffered some injury caused by defendant's dogs.
Where, then, is the "reasonable basis for the jury's verdict?" How could this jury have properly determined that no non-economic damages were warranted? The defendant submits that the jury must have found that plaintiff was not to be believed about his claimed injuries. There was indeed evidence presented at trial, in the cross-examination of the plaintiff, which could lead a jury to conclude that plaintiff had been less than entirely honest about his claims. More specifically, plaintiff had made claims for lost wages which were inconsistent with the income he reported on his Federal Income Tax returns for the years in question, and he was confronted with these inconsistencies on cross-examination. While there was some miscommunication between the plaintiff and his interpreter which was the subject of both action and explanation by the court, the jury could well have decided that plaintiff had some credibility problems.
At the time of plaintiff's cross-examination, plaintiff had not yet filed his October 26, 2005 request for leave to amend his complaint which deleted his claim for lost wages.
Plaintiff testified throughout the trial through an Italian interpreter.
At one point during cross-examination, the interpreter was found to have asked a critical question (to the effect of whether or not plaintiff had cheated on his taxes) in such a way that he answered it in the affirmative when the question, asked in English, would have been answered "no." The court gave the interpreter an opportunity to ask the question again and the jury was told what had happened.
Defendant's argument would have provided a solid explanation, and a basis for upholding a verdict which awarded the plaintiff no damages whatsoever. The jury would have been entitled, under the court's charge, to disbelieve the plaintiff completely, even in his claims as to how the incident happened. Because they found in his favor in the issue of liability, and found that he underwent necessary, reasonable medical treatment, defendant's challenge to plaintiff's credibility is not a basis for upholding the verdict.
The court instructed the jury that "[i]f you believe that a witness testified falsely as to a part of his or her testimony, you may choose to disbelieve other parts of his or her testimony, or all of it, but you are not required to do so."
Defendant has asked the court to distinguish this case from the very recent decision of our Appellate Court in Fileccia v. Nationwide Property Casualty Ins, Co., 92 Conn.App. 481 (2005) in which the Court found that it was an abuse of discretion not to have set aside a verdict awarding economic damages and no non-economic damages. In Fileccia, the jury awarded plaintiff all of his claimed medical, special damages and no non-economic damages, yet saw fit to give him no non-economic award.
That distinction is not significant, in the context of this case. Plaintiff was awarded all of the medical bills he claimed to have incurred for the physical injuries he allegedly sustained when the dogs attacked him. Following the incident, plaintiff sought psychiatric treatment from Drs. Miano and Lorenzo, for a condition which Dr. Lorenzo testified was Post-Traumatic Stress Disorder. Defense counsel pointed out, in cross-examination, that Dr. Lorenzo does not speak Italian and had to conduct his sessions through an interpreter. The jury did not award plaintiff the cost of his psychiatric treatment, undoubtedly because they disbelieved his claim that this incident caused him to develop PTSD.
Because the jury ruled as it did, the court can only conclude that the jury believed plaintiff suffered some physical injury in this incident and also believed that he suffered no psychiatric injury. This would be an entirely justifiable and sustainable result, had the jury also decided that some award of non-economic damages, for Mr. Calafiore's physical injuries, was also appropriate. A verdict which tells us that the jury decided that 1.) defendant was liable to the plaintiff for injury caused by her dogs, 2.) plaintiff had reasonable and necessary medical treatment for his physical injuries, but 3.) plaintiff suffered no non-economic damages as a result is, under the circumstances of this case, inadequate as a matter of law.
The verdict is set aside, and a new trial ordered on the issue of damages only, unless the defendant files with the court an additur accepting an addition of $6,500.00 to the amount of the verdict within 15 days from today's date.
It is so ordered.