Opinion
FBTCV166059958S
02-01-2019
Alfred FRASIER v. Kailey E. GALLAGHER et al.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR ADDITUR AND/OR MOTION TO SET ASIDE
STEWART, J.
Plaintiff Alfred Frasier has moved for an additur and/or moved to set aside the jury’s October 5, 2018 verdict in which it awarded him all of the economic damages he requested but zero noneconomic damages. The plaintiff argues that the refusal of the jury to award noneconomic damages was against the evidence and contrary to the law, and that the verdict was inconsistent and inadequate. Defendants Kailey and Thomas Gallagher oppose both motions. For the reasons that follow, the court denies both motions.
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff brought this negligence action, claiming that Defendant Kailey Gallagher, while operating her father Thomas’ car, struck the plaintiff’s parked car while he was sleeping in the driver’s seat, causing him to sustain injuries. At trial, he put on evidence that on August 12, 2015, the defendants’ car sideswiped his car, damaging his mirror and injuring his neck. Although the plaintiff refused treatment the night of the accident, the next day he went to the emergency room at St. Vincent’s Hospital, where he was diagnosed with cervical strain. About two weeks later, he went to Core Physical Therapy, and in November 2015, he was treated by Dr. Eric Katz, an orthopedic surgeon. Dr. Katz referred him to Tricia Collins, D.C., a chiropractor, and she treated him during 29 visits from December 2015 until May 2016. The medical bills for the plaintiff’s treatment totaled $ 13, 713.49.
The evidence at trial also revealed that the plaintiff had sustained two prior injuries. He testified that in 2000, a hopper loaded with over 10, 000 screwdrivers struck him and knocked him over, causing injuries to his lower back and his neck. The plaintiff was out of work for almost a year after this incident. He also stated that in 2005, he was a passenger in a car that was struck on the driver’s side on Interstate 95, forcing it into a Jersey barrier. This caused injuries to his back, his shoulders and his neck. He underwent treatment after both incidents, and both times, Dr. Katz was among the practitioners treating him. Dr. Katz gave the plaintiff’s 2005 cervical injury a five percent permanency rating. After receiving treatment for the 2005 car accident, the plaintiff moved to Virginia to work.
The plaintiff testified that since the August 2015 accident, he takes pain pills, he rubs his neck, and he has more trouble when it rains or it is cold. He also said that his range of motion is impacted, that he stopped playing basketball and lifting weights, and that he does not do much heavy lifting. He denied having any of these problems following his previous accidents. During cross examination, the defense counsel impeached him with deposition testimony in which he stated that his neck hurt "a little bit."
The plaintiff’s chiropractor, Dr. Collins, testified that when the plaintiff began treatment with her, he had neck pain into his left shoulder and tingling to his left elbow. She also said that he had muscle spasms and that a patient cannot voluntarily generate muscle spasms. Curiously, she testified that her intake records reflected a statement from Dr. Katz that the plaintiff had no prior cervical injury. She testified that at the end of her treatment, she gave the plaintiff a three percent permanency rating for his neck. When she was confronted with Dr. Katz’s permanency rating of five percent after the 2005 accident, she amended her testimony to say that her three percent rating was on top of that five percent rating.
The plaintiff submitted requests to charge, including a request to charge regarding the preexisting injuries, which was included in the court’s jury charge. The plaintiff also asked for and received a charge for non-economic damages— physical pain and suffering, mental and emotional pain and suffering, and loss or diminution of the ability to enjoy life’s pleasures. The jury also was instructed on credibility of witnesses.
After deliberating, the jury returned with a verdict in favor of the plaintiff that awarded economic damages in the full amount of his medical bills, $ 13, 713.49. However, the same verdict awarded zero noneconomic damages. Before accepting the verdict, the court held a sidebar with counsel at which the plaintiff’s counsel asked that the jury be returned to deliberate further on the issue of noneconomic damages. The court then gave the jury Civil Jury Instruction No. 3.4-9 Damages— Economic without Non-Economic, which read:
Ladies and Gentlemen, I have reviewed your verdict and see that you have found in favor of the plaintiff and awarded economic damages, but have awarded zero non-economic damages. While that is a possible verdict, some might argue that it is inconsistent to say that a person was injured enough to incur medical expenses, but experienced no pain and suffering or other noneconomic damages.
On the other hand, you may have concluded that while the plaintiff proved his economic damages, he failed to prove the claimed non-economic damages. To help eliminate any concerns either party might have, I am going to ask you to go back and review your verdict. In addition to my instructions regarding the plaintiff’s burden of proving damages you should also remember my instruction that even momentary pain and suffering is compensable.
Now, in sending you back for further deliberations, I am in no way suggesting that you should change your verdict. I am simply asking you to review your thought processes once more to make sure you have considered all relevant factors. I am giving you a new verdict form, which you should use if you decide to change your verdict.
The jury returned after a short time deliberating, and once again came back with a verdict of $ 13, 713.49 in economic damages but zero noneconomic damages. The court accepted that verdict.
LEGAL ANALYSIS
I. MOTION FOR ADDITUR
The court will first consider the motion for additur. Conn. Gen. Stat. § 52-228b ("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 the verdict of such amount as the court deems reasonable"); Jeffries v. Johnson, 27 Conn.App. 471, 478, 607 A.2d 443 (1992) (holding that a court should give parties an opportunity to accept an additur before setting aside a verdict). Section 52-216a of the General Statutes provides that "[i]f 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."
An additur is an "extraordinary remedy." Turner v. Pascarelli, 88 Conn.App. 720, 723-24, 871 A.2d 1044 (2005). It should be ordered rarely. Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 280, 32 A.3d 318 (2011) (considering a remitter).
Here, the plaintiff argues that the court should grant an additur because the verdict is inconsistent and inadequate. A plaintiff’s verdict for all of the requested economic damages but zero noneconomic damages can be inadequate. See, e.g., Schroeder v. Triangulum Associates, 259 Conn. 325, 333, 789 A.2d 459 (2002) (holding that such a verdict was inadequate as a matter of law where plaintiff underwent invasive spinal surgery). Nevertheless, such a verdict is not automatically inconsistent or inadequate. In Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000), our Supreme Court abandoned a per se rule that awards of economic damages with zero non-economic damages were inadequate as a matter of law. Instead, the Supreme Court held that such a verdict is best tested in light of the circumstances of the particular case. Id., 745 A.2d 789.
The Supreme Court’s reasoning in abandoning the per se rule is instructive here. The per se rule is based on an assumption that an award of economic damages with zero noneconomic damages is either ambiguous or inadequate. The court found that assumption unwarranted. Id. at 186, 745 A.2d 789. The court observed that proof that a defendant caused an injury did not automatically establish that the defendant caused pain and suffering. By way of example, the court cited the situation where a plaintiff had a preexisting injury. In that circumstance, the court noted that "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." (Emphasis in original.) Id., 745 A.2d 789. The court also reasoned that Section 52-216a gives courts discretion to award an additur, and the Constitution grants parties the right to have the issues of fact determined by a jury. These would be undermined by a per se rule that any verdict that awarded economic damages but zero noneconomic damages was inadequate as a matter of law.
Under the Wichers case-by-case analysis, "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. at 188-89, 745 A.2d 789. If the jury reasonably could have reached its conclusion, an additur should not be ordered. Silva v. Walgreen Co., 120 Conn.App. 544, 560, 922 A.2d 544 (2010).
The Supreme Court applied its new approach to the facts in Wichers . The plaintiff in that case claimed that as a result of his car accident, he had suffered "an acute cervical strain, a cervical subluxion, a 5 percent permanent impairment of the cervical spine, headaches, fatigue, physical impairment and depression." 252 Conn. at 176-77, 745 A.2d 789. The plaintiff had been in two prior automobile accidents that had injured his neck, and he suffered from an arthritic condition in his neck and a degenerative condition, known as spondylosis. Id. at 177, 745 A.2d 789. As is the case here, the jury awarded the plaintiff all of his economic damages, but no noneconomic damages. The Supreme Court held that the jury reasonably could have found that the accident did not cause the plaintiff to suffer any greater pain than he already experienced. Id. at 189-90, 745 A.2d 789. Therefore, it reversed the trial court’s order of an additur. Id. at 190, 745 A.2d 789.
Since the Supreme Court decided Wichers, the appellate courts have approved a number of verdicts that awarded economic damages but zero or only nominal noneconomic damages. They also have reversed courts for ordering additurs without a sufficient factual basis. For example, in Turner v. Pascarelli, the Appellate Court reversed the order of an additur where the trial court had not identified any part of the record that supported its determination that $ 400 in noneconomic damages was unreasonable under the circumstances of the case. 88 Conn.App. at 727, 871 A.2d 1044 (2005). That court stated: "[w]e read Wichers as an instruction to a trial court specifically to identify the facts of record that justify the extraordinary relief of additur ..." Id. at 723-24, 871 A.2d 1044.
More recently, in Micalizzi v. Stewart, the Appellate Court affirmed a trial court that refused to set aside a verdict an order an additur. 181 Conn.App. 671, 188 A.3d 159 (2018). The court reviewed the evidence before it and concluded that it was reasonable for the jury to determine that the plaintiff had not proved that the accident had caused her neck pain. Id. at 691, 188 A.3d 159. The court observed that "the fact that the jury awarded economic damages for medical treatment for pain, does not necessarily mean that it must award damages for pain itself." (Emphasis in original.) Id. at 684-85, 188 A.3d 159. After citing a series of cases that upheld verdicts that awarded economic damages for procedures specifically targeting pain and suffering, but zero noneconomic damages, the court noted that "it is possible for a jury to conclude that medical treatment was reasonable and necessary as a diagnostic or prophylactic measure, but that the plaintiff experienced either no pain or pain caused by an underlying illness, preexisting condition or other cause." Id. at 686, 188 A.3d 159.
The Micalizzi court also distinguished the appellate cases that upheld orders of additurs in response to verdicts of economic damages without noneconomic damages. "The facts of those cases, i.e., involving surgery, lost wages, an objective diagnosis, etc. make them arguably distinguishable from the present case, where the injuries claimed are based on subjective complaints and there is no claim for lost wages, and other cases where this court has upheld the jury award of no noneconomic damages." Id. at 685 n.11, 188 A.3d 159. For example, in Schroeder, the Supreme Court held that the award of zero noneconomic damages was inadequate. 259 Conn. 325, 789 A.2d 459. The court contrasted the invasive spinal surgery that that plaintiff underwent with the facts of Wichers:
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.Id. at 333, 789 A.2d 459.
The plaintiff cites DeEsso v. Litzie, 172 Conn.App. 787, 163 A.3d 55 (2017) for the proposition that for verdicts of full economic damages but zero noneconomic damages, the court should order an additur. While it is true that DeEsso distinguished some of those cases, Id. at 807-09, 163 A.3d 55; that was because in the specific case before it, the plaintiff had not even proved that the defendant had caused his rotator cuff injury. Moreover, as can be seen from Micalizzi, there are a number of cases in which the appellate courts have upheld verdicts of full economic damages with zero noneconomic damages. 181 Conn.App. at 683-84 , 188 A.3d 159.
The facts of the present case are much closer to those of Wichers and Micalizzi than Schroeder. The jury reasonably could have concluded that the plaintiff had been involved in two much more serious accidents in the past. It also could have credited the evidence that Dr. Katz had given the plaintiff’s cervical spine a five percent permanency rating in 2005. From these findings, the jury could have inferred that any pain the plaintiff suffered after the 2005 mirror-to-mirror collision was attributable to these earlier accidents and was not additional pain.
In addition, although the plaintiff’s expert testified that he suffered from muscle spasms that he could not make up, most of the evidence of pain and suffering was the plaintiff’s subjective testimony. As the Appellate Court stated in Micalizzi, "[w]e especially are reluctant to overturn an award premised mainly on subjective descriptions of pain and suffering" because "the credibility of the plaintiff and the plaintiff’s witnesses is crucial." 181 Conn.App. at 173-74, 188 A.3d 159. In such a situation, the court should defer to the jury, which was instructed to credit all, none, or some of the plaintiff’s and plaintiff’s expert’s testimony. See id. at 174, 188 A.3d 159. As the defendants point out in their opposition memorandum, the plaintiff’s testimony about the accident, his treatment and his levels of pain were all subject to attacks upon his credibility. In addition, the jury may have chosen not to believe his expert, Dr. Collins, when she testified, after being confronted with Dr. Katz’s five percent rating from 2005, that her three percent permanency rating should be added on top of his earlier rating. When she assigned that rating, she was under the impression that the plaintiff had no prior neck injury.
Based on all of this, the jury reasonably could have found that the plaintiff failed to prove that he was entitled to noneconomic damages. Furthermore, the court has grounds to believe that the jury did exactly what it intended to do. After the jury first came back with its verdict, it specifically was instructed to review its verdict and to make sure it had considered all relevant factors on the issue of noneconomic damages. The jury returned from further deliberations with an identical verdict. Under these circumstances, the court will not order an additur.
The plaintiff has submitted to the court a number of Superior Court decisions in which additurs were ordered. Preliminarily, the court notes that, unlike the appellate decisions discussed above, these decisions are not binding on this court. Moreover, Wichers calls for a case-by-case analysis. While it is helpful to see how other courts ruled based on other facts, this decision needs to be based on the law established by our Supreme Court as applied to the facts of this case. Finally, the facts in the cases provided are distinguishable, with the possible exception of the facts in Lamkhantar v. Travisano, Superior Court, judicial district of New Haven, Docket No. CV03-480835 (Jan. 14, 2009, Bellis, J.). In most of the other cases, the plaintiff had no preexisting injury, and in one case, the preexisting injury was unknown to the plaintiff. Many of the plaintiffs who secured an order of an additur also were involved in far more serious accidents and underwent more invasive medical treatments. None of the cases indicated that the jury was reinstructed and sent back to consider noneconomic damages. The cases do not persuade this court to order an additur.
II. MOTION TO SET ASIDE THE VERDICT
This court "possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence." (Internal quotation marks omitted.) Howard v. MacDonald, 270 Conn. 111, 126, 851 A.2d 1142 (2004). A trial court "should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality." (Internal quotation marks omitted.) Id. In ruling on the plaintiff’s motion, this court must view the evidence introduced at trial in the light most favorable to sustaining the verdict. Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999).
Although the plaintiff argues that the verdict should be set aside because it is contrary to the law and against the evidence, the court is not persuaded for the reasons set forth in the preceding section. The verdict is not contrary to the law because verdicts that award economic damages without noneconomic damages are no longer per se inadequate. The verdict is not against the evidence because there was some evidence upon which the jury might reasonably reach its conclusion.
CONCLUSION
For the foregoing reasons, the court denies the motion for additur and the motion to set aside the verdict.