Opinion
No. CV 05 4002811S
September 2, 2008
MEMORANDUM OF DECISION MOTION TO SET ASIDE VERDICT AS TO DAMAGES AND FOR ADDITUR
This case was tried to a verdict rendered on April 20, 2007. The jury awarded $23,111 in economic damages and $7,000 in noneconomic damages. The plaintiff filed a timely motion to set aside the verdict and for additur to which the defendant promptly objected. A hearing on the motion was delayed upon the request of counsel until August 1, 2007. For the reasons stated more fully herein, the motion is denied.
The claim arose, on June 25, 2003, as a result of a rear end accident where the plaintiff was seeking to merge into traffic from an exit ramp, stopped while yielding the right of way, took her foot off the brake, rolled forward and stopped again as she saw a panel truck approach, whereupon the defendant hit her from the rear. The plaintiff did not see the defendant before the accident. The plaintiff was driving a Subaru Outback. The defendant was driving a Cadillac Deville. The plaintiff claimed damage to her vehicle in the form of a dent in her rear bumper. The defendant testified that he saw some scratches of paint but no denting. The only photograph of the damage was offered by the defendant. The photograph, a color computer print on regular paper, did not show any damage to the plaintiff's vehicle. The property damage to the plaintiff's vehicle amounted to $568, which consisted of labor plus parts in the amount of $14.80. There was no damage to the defendant's vehicle.
The plaintiff claimed a debilitating injury to her left shoulder and neck because at the time of the impact she was turned all the way to the left looking out the driver's side window as she attempted to merge into traffic. At the time of the accident, the plaintiff was shaken up and upset but told the defendant that she was okay. The plaintiff did not hit her head or lose consciousness. No one called the police. Later that day, the plaintiff's left shoulder started to bother her and she developed a stiff neck and headache. The next day she felt like she had been run over by a truck and, in the following days, her condition deteriorated. X-rays showed minor degenerative changes in her cervical and lumbar-sacral spine. An MRI of her cervical spine showed no nerve root compression and was otherwise negative except to show wear and tear and arthritis. A subsequent MRI of the brain was normal. Although she denied prior injury to either neck or shoulder, on at least two occasions, prior to the accident, her orthopedist reported pain, stiffness or soreness to the left side of her neck. At the time of trial, the plaintiff testified that she was no longer treating for her injuries except for massage therapy. The plaintiff also testified, however, that her symptoms have continued since the accident, the injury she suffered has profoundly affected her life and that physical therapy has not given her long-term relief. The plaintiff's neurologist testified that her pain was due to muscular-skeletal injury to the neck which was slowly improving as of her last visit with him on September 12, 2003. The plaintiff's orthopedist testified, based on reasonable medical probability, that she suffers from chronic cervical pain and headaches caused by the accident and assigned her a 13% disability rating to her cervical spine. The plaintiff has had prior injury to her low back, including a fall at work in 2001, and injury and surgeries relating to both knees, as a result of which she walks with a cane. In 1997, the plaintiff suffered another injury, but not to her neck, shoulder or back when a pick-up truck crashed into her living room. The plaintiff has had surgery on her left ear and problems with her right hip. The orthopedist's records reflect a diagnosis post-accident of cervical and lumbar-sacral sprain which aggravated a pre-existing lumbar-sacral sprain. The plaintiff's records reflect multiple medical issues beyond these injuries.
The defendant emphatically disputed the severity of the plaintiff's injury as a result of this accident and challenged whether the pain and suffering she claimed was related to her previous condition of arthritis or one or more previous injuries. In fact, the plaintiff requested and the court did deliver a pre-existing injury charge. The court has reviewed the evidence presented in this case and the arguments of counsel, and cannot conclude that manifest injustice has been done. The case was aggressively defended on the basis that the plaintiff overstated her injuries and that they were pre-existing. Under all the circumstances, based on my review of the evidence presented at trial, the court cannot conclude that the jury's award was unreasonable.
The charge was as follows: "While defendant is not liable for damages for pre-existing injuries suffered by the plaintiff, the defendant takes the plaintiff as he finds her. The plaintiff is entitled to recover full compensation for all of her injuries and damages proximately caused by the defendant's negligence. This is so even though her injuries may have been more severe and serious or prolonged permanently or longer than they would otherwise have been because of her pre-existing condition of health at the time of the accident. Joseph Attanello is chargeable with all the results of the injuries proximately caused by his negligence or flowing from his negligence and he cannot now excuse these results by saying that the plaintiff had a pre-existing condition which would make her suffer more and longer or cause her to be more severely injured."
In support of her motion, the plaintiff relies on Lombardi v. Cobb, 99 Conn.App. 705 [page 3] (2007), a 2 to 1 decision which affirmed the trial court's decision granting the plaintiff's motion to set aside the verdict and for an additur as to noneconomic damages, and subsequently, upon rejection by the defendant of the additur, to set aside the verdict and order a new trial. In Lombardi, the jury awarded the plaintiff $3,293, in economic damages, representing the entire amount of medical expenses and lost wages claimed, but declined to award any noneconomic damages.
However, unlike Lombardi and many of the cases cited by the Appellate Court in that decision, where the jury awarded substantial economic damages and unreasonably declined to award any noneconomic damages, in this case the jury awarded $7,000 in non-economic damages. The seminal case on this issue, as cited by the Appellate Court in Lombardi, is Wichers v. Hatch, 252 Conn. 174 (2000) (enbanc). Wichers holds that "a case-specific standard should apply to the instance in which a party seeks to have a verdict set aside on the basis that it is legally inadequate." Id., 181. "The evidential underpinnings of the verdict itself must be examined . . . [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." (Citations omitted; internal quotation marks omitted.) Id., 189.
In addition, in Turner v. Pascarelli, 88 Conn.App. 720 (2005), a case more closely aligned with the instant case in that some noneconomic damages were awarded, the Appellate Court stated: "We read Wichers as an instruction to a trial court specifically to identify the facts of record that justify the extraordinary relief of additur and as an instruction to an appellate court to inquire whether the facts so identified justify the trial court's exercise of its discretion to set a jury verdict aside because of its perceived inadequacy." Id., 723-24; see also Lombardi v. Cobb, supra, 99 Conn.App. 710 (Lavine, J., dissenting).
The court is unable to identify facts in the record that justify the extraordinary relief of additur. "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." (Internal quotation marks omitted.) Turner v. Pascarelli, supra, 88 Conn.App. 727.
Although the court may disagree with the size of the award, it is improper for the court to substitute its judgment for that of the jury in that the amount awarded does not shock the conscience. "Judicial disagreement with a jury's assessment of the extent of a plaintiff's injury is not . . . in our view, a sufficient basis for an additur." Id., 729. In light of the plaintiff's pre-existing injuries, other conditions of health, minimal property damage to her motor vehicle and some inconsistencies as between the medical records and testimony, the jury may not have accepted the plaintiff's testimony that all her claimed pain and suffering was proximately caused by the accident. Under all the circumstances, the court cannot find that the jury could not have reasonably concluded as it did.
For all the foregoing reasons, the motion to set aside the verdict as to damages only and for additur is hereby denied.