Opinion
No. CV 04-0933610-S
September 20, 2006
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT AS TO DAMAGES ONLY AND FOR ADDITUR AND OBJECTION TO MOTION TO SET ASIDE VERDICT
In this negligence action, a verdict in favor of the Plaintiff was rendered on June 7, 2006. The jury awarded the Plaintiff $7,997 in economic damages consisting of $7,742 in medical bills and $255 in lost wages. The jury awarded zero noneconomic damages. By motion dated June 15, 2006, the Plaintiff moved to set aside the verdict as to damages only and for additur on the grounds that the jury's finding of zero noneconomic damages is inadequate as a matter of law. The Defendants filed an objection to the motion on June 21, 2006. Oral argument on the motion was heard by the court on July 31, 2006.
The following evidence was presented at trial. On April 9, 2003 the Plaintiff was driving on Albany Avenue in Hartford on her way to work when she stopped because a school bus was stopped ahead of her. She was rear-ended by a car driven by the Defendant, Saunders, who admitted that he was following too closely and should have been able to stop. The Plaintiff was driving a Toyota Corolla and the Defendant Saunders was driving a pickup truck. The Plaintiff testified that when she was hit her body was jerked forward and back quickly and after the impact she felt dizzy and lightheaded. There was minor property damage to the Plaintiff's car. The Plaintiff went to work after the accident, but after a while she began to experience pain in her neck. She went to see her doctor that day. She told her doctor she was dizzy and lightheaded and had back and neck pain. The doctor's report indicates that he felt she had neck strain. Although her doctor told her to stay out of work, she returned to work the next day for a half day. Her doctor referred her to physical therapy. She participated in physical therapy for about six weeks and, when she continued to have pain, her doctor referred her for an MRI. In September she was still complaining of neck and shoulder pain and she was referred for another MRI. Both MRIs appeared to be normal. She was referred for another round of physical therapy in October and by the end of November she was feeling better. Her doctor's report of December 23, 2003, indicates that by December 19, 2003 she felt great and that "[i]t would appear that there are no significant long term consequences from the accident and the patient has made a complete recovery." In February 2004 she was having more pain in her neck and she was referred for more physical therapy. She had another MRI in 2005 and additional physical therapy that year. In 2006 she was still complaining of pain and she was referred again for physical therapy. At trial, she claimed she was still experiencing constant pain and claimed that she retired from her job early because of the accident. The Plaintiff had had another accident in 1998 in which she injured her neck when an armored truck struck her car but she claimed no permanency from that accident and no problems after that. The Defendants admitted their responsibility for the accident but contested the Plaintiff's claimed damages.
The Plaintiff submitted, as an exhibit, a list of the medical bills she sought recovery for, by provider. The jury verdict form also listed the medical bills, by provider. The jury awarded the Plaintiff only $7,742 of the $14,017.56 claimed. From a review of the evidence, it appears that the jury awarded the Plaintiff the amount of her doctor's bills up to 2005, although she claimed bills into 2006; her bills for physical therapy at the Central Connecticut Sports Medicine Center in April 2003; her bills for physical therapy at the Farmington Valley Physical Therapy for April 25 to June 13, 2003; her bills for MRIs at St. Francis Hospital on September 8, 2003 and October 9, 2003 but not for an MRI on April 14, 2005; her bills for physical therapy at St. Francis Hospital for October and November 2003 but not after that although she had physical therapy there up until June 14, 2005; and nothing for her bills for physical therapy at the Center for Physical Therapy Wellness in April and May 2006.
In Fileccia v. Nationwide Property Casualty Ins., 92 Conn.App. 481, 486-87 (2005), cert. denied, 277 Conn. 907 (2006), the Appellate Court reiterated the law to be applied by the court when considering a motion to set aside a verdict where the jury has awarded economic damages but no noneconomic damages. The court stated: "In passing on a motion to set aside a jury verdict a trial court, like a juror considering the evidence, must draw upon its experience and knowledge of human nature, events and motives and evaluate the verdict in that context . . . If the court finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or was governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial . . . The trial judge has a broad legal discretion and his action will not be disturbed unless there is a clear abuse . . . Our Supreme Court has articulated a special standard for the review of verdicts like the one at issue here to determine whether inconsistency renders them legally inadequate . . . In Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000), the Supreme Court held that trial courts, when confronted with jury verdicts awarding economic damages and zero noneconomic damages, must determine on a case-by-case basis whether a verdict is adequate as a matter of law . . . Under Wichers, 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 . . . The evidential underpinnings of the verdict itself must be examined, albeit with deference to the jury's findings . . . If 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." (Internal citations and quotation marks omitted.)
In Fileccia the jury had awarded the Plaintiff the exact amount of medical bills incurred by the Plaintiff as a result of a motor vehicle accident but zero noneconomic damages. The trial court denied the plaintiff's motion to set aside the verdict and for additur. The Appellate Court reversed. The court held that the verdict was internally inconsistent in light of the fact that the jury had awarded the entire amount of economic damages sought, which included charges for physical therapy and pain medication. The court stated: "We conclude that under the circumstances, the jury's award of economic damages and no noneconomic damages is internally inconsistent and ought to have been set aside. In finding that the plaintiff, by virtue of the accident, had suffered an injury requiring treatments and medication, the purpose of which was to alleviate pain and to improve functioning, the jury necessarily found that he had experienced pain and decreased functioning. Accordingly, it should have awarded noneconomic damages to compensate him for that pain and decreased functioning. 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." Fileccia v. Nationwide Property Casualty Ins., 92 Conn.App. 481, 489 (2005). However the Appellate Court's decision in a case decided just a week earlier, Smith v. Lefebre, 92 Conn.App. 417 (2005), is based on facts more in line with those here and, as the court in Fileccia noted, distinguishable on that basis. 99 Conn.App. 481, 491 n. 8. There the plaintiff was involved in a rear-end collision. The jury awarded the plaintiff $5,500 in economic damages and no noneconomic damages. The plaintiff filed a motion for additur, which the trial court granted. The Appellate Court reversed. The court stated: "We now identify certain principles with respect to the function of the jury as the trier of fact. It is axiomatic that the amount of damages awarded is a matter peculiarly within the province of the jury . . . Moreover, there is no obligation for the jury to find that every injury causes pain, or the amount of pain alleged . . . Put another way, it is the jury's right to accept some, none or all of the evidence presented . . . It is the jury's exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses . . . The jury can . . . decide what — all, none, or some — of a witness' testimony to accept or reject." (Internal citations, quotation marks, and footnote omitted.) Smith v. Lefebre, 92 Conn.App. 417, 421-22 (2005). The court noted that: "There was evidence before the jury that the parties were involved in a low speed collision in which the air bags in the plaintiff's vehicle were not deployed. The plaintiff did not suffer any cuts or bruises, and was able to leave her vehicle and walk around it to examine the damage. The jury could have concluded from those facts that the motor vehicle accident was relatively minor. She did not miss any appreciable amount of time from work. The plaintiff's claim that she selected Tucker out of the telephone directory, and thus her credibility before the jury, was severely damaged by the letter sent from her attorney. Furthermore, on the basis of the evidence adduced during the trial, the jury could have concluded that the plaintiff embellished or exaggerated both the nature and the extent of her injuries. For example, there were conflicting descriptions regarding her back injury, whether it was a bulging or herniated disk, and whether surgery would be needed. Additionally, we note that the witnesses who testified for the plaintiff regarding the extent of her injuries were all close friends or family members. In the present case, in light of the conflicting evidence with respect to the issue of damages, it was the jury's task to determine the credibility of the evidence . . . In light of the evidence, it was reasonable for the jury to award zero noneconomic damages . . . Moreover, the presence of such conflicting evidence curtailed the court's authority to replace the jury's damage award with its own. As this court stated in Parasco v. Aetna Casualty Surety Co., 48 Conn.App. 671, 676, 712 A.2d 433 (1998), `[t]he jury was not compelled to accept the plaintiff's claims as to the severity of her injuries, no matter how persuasive that evidence might have seemed to the trial court.' . . . Under the facts and circumstances of the present case, the evidence was sufficient to allow room for reasonable differences of opinion among fair-minded people and, therefore, even though the trial court may have reached a different conclusion, the jury's verdict must stand . . . Of course, a verdict should not be set aside . . . where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion . . . When the court substituted its opinion for that of the jury, the defendant's constitutional right to have issues of fact decided by a jury was violated . . . We must conclude, therefore, that the court improperly exercised its discretion in granting the motion for additur and ordering a new trial." (Internal citations and quotation marks omitted.) Smith v. Lefebre, 92 Conn.App. 417, 426-27 (2005).
Here, as in Smith, the extent of the Plaintiff's injuries was contested. The accident was relatively minor and the Plaintiff lost little time from work. The evidence regarding her injuries were conflicting. Although the Plaintiff continued to complain of pain up until trial, her doctor noted that in December 2003 that she had made a complete recovery. Her claims were based on subjective complaints of pain, which were not supported by objective evidence. The only other witness who testified regarding the Plaintiff's injuries was her husband. She also had a previous injury to her neck. In light of the jury's award of only part of the Plaintiff's medical bills, the jury apparently did not believe the Plaintiff's testimony as to the continuing effects of the accident upon her. Consequently the court cannot conclude that the jury's verdict is clearly against the weight of the evidence such as to warrant setting it aside.
The Motion to Set Aside Verdict as to Damages Only and for Additur is denied and the Objection to Motion to Set Aside Verdict is sustained.