Opinion
No. CV-08-5020261S
October 8, 2009
MEMORANDUM OF DECISION ON MOTION FOR ADDITUR(#122)
On May 2, 2007, Debra Fraulo was driving a full-size school bus transporting students who played sports from the middle school in East Haven, Connecticut to a nearby sports field. While the bus was at a hill stop on High Street, it was rear-ended by a pick-up truck operated by Mark Wilcox. On May 12, 2008, Fraulo filed a one-count complaint against Wilcox alleging that as a result of his negligence she sustained injuries in this accident. The matter came to trial before a jury on November 2, 2009 as a hearing in damages because Wilcox had admitted his negligence. The nature and extent of the injuries that Fraulo sustained was not admitted. Wilcox specifically denied that Fraulo sustained any permanent injury from the accident.
On November 4, 2009, the jury returned a verdict in Fraulo's favor awarding her $8,203.00 in economic damages and $900.00 in non-economic damages. On November 12, 2009, Fraulo filed a "Motion to Set Aside the Verdict as to Damages Only and for Additur" (#122). Wilcox filed an objection to that motion on December 2, 2009 (#124). The court heard oral argument on December 21, 2009.
The standard for setting aside a verdict and ordering an additur, pursuant to the provisions of General Statutes § 52-216a, is well established. "The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury . . . The evidence offered at trial must be given the most favorable construction to which it is reasonably entitled in support of the verdict . . . Only under the most compelling circumstances may the court set aside a jury verdict because to do so interferes with a litigant's constitutional right in appropriate cases to have issues of fact decided by a jury . . . The amount of damages to be awarded is a matter particularly within the province of the jury." (Citations omitted; internal quotation marks omitted.) Hunte v. Amica Mutual Insurance Co., 68 Conn.App. 534, 541-42, 791 A.2d 697 (2002). "The right to a jury trial is fundamental in our judicial system, and . . . the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion . . . passed upon by the jury and not by the court." (Citation omitted; internal quotation marks omitted.) Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000). "When determining whether to order an additur, the court should not assume that the jury made a mistake, but should suppose that the jury did exactly what it intended to do." Weiss v. Bergen, 63 Conn.App. 810, 814, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 1254 (2001).
General Statutes § 52-216a provides, in pertinent part: "If 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."
In this case, the jury awarded Fraulo all the economic damages that she submitted which consisted of medical bills from Internal Medicine of East Haven, her primary care provider, the Hospital of St. Raphael Occupational Health, Connecticut Orthopaedic Specialists, P.C., which included treatment by Dr. David Cohen and physical therapy, and Carpenos Chiropractic Center. See Jury Interrogatories (# 120). These submitted bills totaled $8,203.00. Their award of $900.00 in non-economic damages created "no inherent ambiguity. A fact finder is not required to award noneconomic damages simply because economic damages are awarded." Parasco v. Aetna Casualty Surety Co., 48 Conn.App. 671, 676, 712 A.2d 433 (1998). Wichers v. Hatch, supra, 252 Conn. 189, requires the court to examine the jury's non-economic damages award in light of the circumstances of this particular case. See Turner v. Pascarelli, 88 Conn.App. 720, 871 A.2d 1044 (2005) (reversing an additur in a case where the jury awarded all the medical bills in economic damages and $400.00 in non-economic damages.)
Fraulo claimed that when the school bus was rear-ended, her foot came off the brake momentarily, she was jolted forward and her right knee struck the steering column. She suffered some knee pain, neck pain and headaches, which were subsequently attributed to a neck injury. She sought treatment for her neck injury from a chiropractor with whom she had treated in the past and that injury quickly resolved. She sought treatment for her knee from her primary care provider, St. Raphael's Occupational Health Plus and Dr. David Cohen of Connecticut Orthopaedic Specialists, P.C. The knee injury was her primary complaint; its causation and permanency were hotly contested.
Fraulo offered evidence from Dr. Cohen that she injured her posterior cruciate ligament (PCL) in the accident for which he gave her a 17% permanent partial disability rating. Dr. Cohen based his opinion on his personal review of two MRI scans of her knee, one done on May 30, 2007 and the other on November 12, 2007. However, according to the radiologist, in the first scan the PCL was "visualized and appear[ed] intact" and in the second scan there was "[i]ncomplete visualization of the PCL [so that] element of posterior cruciate ligament tear cannot be excluded." See ex. 4. Wilcox offered evidence from Dr. Matthew Skolnick, an orthopaedic physician who performed an independent medical examination of Fraulo. He disagreed both with Dr. Cohen's opinions and his reading of the MRI scans. According to Dr. Skolnick, the mechanism of injury that Fraulo described was inconsistent with a PCL tear. He concluded that Fraulo sustained a bruise to her knee cap, a diagnosis that was consistent with the records of St. Raphael's Occupational Health Plus, see ex. 3, that Fraulo had suffered a knee contusion. There was evidence before the jury from Dr. Cohen that Fraulo's knee symptoms would improve over time, probably a period of six months to a year, with conservative management and that any pain she had could be addressed with anti-inflammatory medication, a decrease in activity and participation in physical therapy.
Dr. Skolnick's independent medical examination was not performed at the behest of Wilcox. Fraulo testified that she had been sent for the exam by her insurance. Fraulo testified she was also sent to Dr. Edward Staub for a second independent medical examination and she introduced his written report into evidence. Ex. 8. Dr. Staub concluded that the two MRI scans were inconsistent and that a PCL tear could not be definitively diagnosed without an arthroscopic evaluation.
Dr. Cohen testified about the "possibility" that Fraulo might suffer certain symptoms in the future but conceded that he did not have any opinion about future consequences to a reasonable degree of medical probability.
The jury also had before it evidence that Fraulo had been in a motor vehicle accident in 1997, for which she was assigned a 5% permanent partial disability rating to her cervical spine, had injured her neck, lower back, left shoulder and left elbow when she slipped and fell on ice in December 2002, and been in another motor vehicle accident in October 13, 2004. See exs. A, B. As to the latter, she complained of neck pain radiating into her shoulders and low back pain radiating into both legs. Fraulo also testified that in the summer of 2007, after this accident, she aggravated her knee because of excessive walking in an amusement park. Although Dr. Cohen recommended that she return to physical therapy after she reported the exacerbation to him, she did not follow his recommendation.
Fraulo did not miss any work as a result of this accident and was told, as of July 2, 2007, that she could drive a school bus without restrictions. She continued to engage in a second job, working as a vendor at sporting and other events, that requires her to walk up and down stairs at arenas. Although she wears a knee brace when she works at her second job, according to Dr. Cohen she is not required to wear it. No doctor has restricted any of her activities nor has she had to cancel any trips or vacations because of her claimed injury.
"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." Schettino v. LaBarba, 82 Conn.App. 445, 450, 844 A.2d 923 (2004). "Moreover, there is no obligation for the jury to find that every injury causes pain, or the amount of pain alleged." (Citations omitted). Smith v. LeFebre, 92 Conn.App. 417, 422, 885 A.2d 1232 (2005). The jury here was "not compelled to accept the plaintiff's claims as to the severity of her injuries . . ." Parasco v. Aetna Casualty Surety Co., supra, 48 Conn.App. 676. "It is well settled that the amount of a damage award is a matter peculiarly within the province of the fact finder." Greci v. Parks, 117 Conn.App. 658, 679, 980 A.2d 948 (2009).
In light of the conflicting evidence discussed above, the court cannot conclude that the jury's award of non-economic damages was inadequate nor that it shocks the conscience. See Childs v. Bainer, 235 Conn. 107, 114, 663 A.2d 398 (1995). The evidence was sufficient for the jury to reasonably find that Fraulo did not sustain any permanent disability from the accident and that its overall hedonic impact was modest, at best. Accordingly, the motion to set aside the verdict and for additur is denied.