MEMORANDUM OF DECISION MOTION TO SET ASIDE VERDICT AND ADDITUR

RICHARD E. ARNOLD, JUDGE.

The plaintiff, Diana Mazo has filed a motion to "modify" the verdict and for additur. Plaintiffs Laura Mazo and Christian Mazo have each filed motions for additur. All motions are dated April 7, 2008 and were argued before the court on May 19, 2007. The motions pertain to jury verdicts rendered on April 1, 2008 regarding claims of negligence, injuries and damages sustained by the plaintiffs in a motor vehicle accident, wherein the defendant Baker was operating a vehicle owned by the defendant Dunn. At the time of the accident Diana Mazo was operating a vehicle owned by her. Laura Mazo and Christian Mazo were passengers in Diana Mazo's vehicle.

The jury trial commenced on March 27, 2008. Evidence concluded on March 28, 2008.

On April 1, 2008, the jury rendered verdicts in favor of each plaintiff as against the defendants. The jury awarded passenger Laura Mazo the sum of $5,946.70 for economic damages, but did not award her any non-economic damages. Thus, the total award from the jury was limited to $5,946.70 for economic damages. The jury awarded passenger Christian Mazo economic damages in the amount of $5,411.30 and non-economic damages in the amount of $1,500 for a total award of $6,911.30. The jury awarded the plaintiff operator Diana Mazo economic damages in the amount of $5,841.30. However, the jury refused to award Diana Mazo any non-economic damages. Additionally, the jury found comparative negligence by Diana Mazo totaling thirty-five percent (35%), which reduced her award to a total recovery of $3,796.85. In addition to requesting an additur, Diana Mazo requests that the court "modify" her verdict as it relates to the jury's finding that Diana Mazo was 35% comparatively negligent. Diana Mazo asks that the court find that the defendants were 100% negligent in causing this accident. The plaintiffs did not request jury interrogatory forms as to the jury's findings regarding the plaintiffs' allegations of negligence, the defendants' special defenses or the plaintiffs' claimed injuries.

The accident occurred on January 28, 2005, when the plaintiffs' vehicle was rear-ended by the vehicle operated by Baker and owned by the defendant Dunn. The location of the accident was the Post Road in Fairfield, Connecticut near its intersection with Round Hill Road. The plaintiff Diana Mazo claimed she was stopped in observation of a traffic signal when her vehicle was struck in the rear by the defendants' vehicle. Laura Mazo, the front seat passenger, testified that there was one and maybe two cars stopped in front of her at the time her sister's vehicle was struck. At an earlier deposition, she had testified that there were more than two vehicles in front of her sister's car. She characterized the impact as a "strong bit." She did not know if her vehicle moved after the impact.

The plaintiff operator Diana Mazo testified that she was stopped at the traffic light with one or two cars stopped in front of her vehicle when her vehicle was struck in the rear. She characterized the impact as "heavy." However at an earlier deposition, she testified that there were no vehicles in front of her and the impact moved her vehicle "a little." Damage to her car were scratches to her rear bumper. Her car was never repaired.

Christian Mazo was a rear seat passenger. He testified that Diana Mazo's vehicle was stopped for a few seconds before it was impacted by the defendants' vehicle. He stated he heard a crash from behind and felt a "heavy impact." He confirmed that the property damage to the plaintiffs' vehicle consisted of scratches.

The plaintiffs claimed that the defendant operator Baker was negligent in the operation of Dunn's vehicle in numerous ways, and as a result, the plaintiffs suffered various types of injuries mostly relegated to their shoulder and cervical regions. Each plaintiff complained of headaches, mental and physical pain and suffering and a loss of enjoyment of life's activities. Although all plaintiffs claimed a permanent injury in their complaints, no evidence was introduced at trial regarding any permanent injuries other than testimony from the plaintiffs themselves. No defendant claimed any lost wages or loss of earning capacity.

In addition to denying all allegations of negligence, the defendants filed special defenses regarding comparative negligence by the plaintiff operator Diana Mazo. Among the special defenses alleged, the defendants alleged that Diana Mazo stopped or suddenly decreased the speed of her vehicle without first giving an appropriate signal in violation of General Statutes § 14-242(c). Baker testified that the traffic light in issue was green and that as the plaintiffs' vehicle was accelerating, it suddenly stopped with no advance signal from the defendant Diana Mazo. He testified he struck the rear end of Diana Mazo's vehicle at a speed of 2 to 3 miles per hour, causing a very light impact with minimal damage to the plaintiffs' vehicle and no damage to his vehicle.

Following the collision, which was investigated by the Fairfield Police, all three plaintiffs were driven to the Bridgeport Hospital Emergency Room by Diana Mazo. Laura Mazo complained of "neck and back pain." She was diagnosed with a right shoulder sprain and strain. She testified that she doesn't remember the treatment she received at the hospital, but she did receive medication and was discharged the same day. Diana Mazo complained at the hospital of "back pain." She was diagnosed with right shoulder and right lateral neck strains. She released the same day with the medications motrin and flexeril. Christian Mazo complained of neck and shoulder pain. He was diagnosed with a cervical strain. He was given the medications, including percocet and motrin and was released the same day.

On February 4, 2005, all three plaintiffs presented themselves to Dr. Joseph Firgeleski, a chiropractor, for treatment. Laura Mazo and Christian Mazo chose this doctor upon the advice of Diana Mazo who had treated with Dr. Firgeleski for a prior injury in 2001. Each plaintiff treated with Dr. Firgeleski on the same dates and at the same time for a period of approximately four months.

The treatment dates for each plaintiff were near identical, as was the treatment received. Laura Mazo's bill for treatment by Dr. Firgeleski was $4,590. Diana Mazo's bill for treatment was also $4,590. Christian Mazo's bill total was $4,160.

While under the treatment of Dr. Firgeleski, each plaintiff was also evaluated by Dr. Eric J. Katz, an orthopedic surgeon. Laura Mazo and Diana Mazo were seen on February 17, 2005, and Christian Mazo was seen by Dr. Katz on March 7, 2005. Laura Mazo was diagnosed with an acute musculoligamentous strain of the cervical spine. Diana Mazo was diagnosed with the same injury as Laura Mazo. Christian Mazo was diagnosed with an acute musculoligamentous strain of the cervical spine and acute rotator cuff tendinitis of the right shoulder. All were advised to continue treatment with Dr. Firgeleski and to participate in a home exercise program. Dr. Katz charged each plaintiff the sum of $445 for their evaluations, which included $95 each for a report fee.

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The Law

Motions to set aside jury verdicts and motions for additur are authorized by Practice Book § 16-35 and General Statutes § 52-228b. In addition, the law is well established that the court's consideration of a motion for additur is guided by the parties' constitutional right to have factual disputes determined by the jury. The constitutional right of a party to have damages decided by the jury "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 among fair-minded men passed upon by the jury and not by the court." Gladu v. Sousa, 52 Conn.App. 796, 800, 727 A.2d 1286 (1999), appeal dismissed, 252 Conn. 190, 745 A.2d 798 (2000).

In evaluating the adequacy of a jury's verdict, the court cannot substitute its discretion for that of the jury simply because this court would consider or weigh the evidence differently. Mere doubt as to the adequacy of a verdict or a conclusion that the jury exercised poor judgment are insufficient grounds to order an additur. Wochek v. Foley, 193 Conn. 582, 587, 477 A.2d 1015 (1984). The jury, however, is also not obliged to believe that every injury causes pain or the pain alleged. Vajda v. Tusla, 214 Conn. 523, 538 (1990); Lindman v. Nugent, 59 Conn.App. 43 (2000). "A verdict should not be set aside . . . where it is apparent that there was some evidence on which a jury might reasonably have reached its conclusion." Schettino v. Labarba, 82 Conn.App. 445, 450 (2004). A court should be hesitant to set aside a jury's award of damages because the assessment of damages defies any precise mathematical computation. Floyd v. Fruit Industries, Inc., 144 Conn. 659, 675, 136 A.2d 918 (1957). Establishing damages is a task peculiarly within the expertise of a jury. Zarelli v. Barnum Festival Society, Inc., 6 Conn.App. 322, 326, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986).

On the other hand, "it is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence." (Internal quotation marks omitted.) Malmberg v. Lopez, 208 Conn. 675, 679-80, 546 A.2d 264 (1988). The standard controlling this consideration is "whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption." (Internal quotation marks omitted.) Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990).

Our Supreme Court has articulated a special standard for the review of verdicts like the ones at issue regarding Diana Mazo and Laura Mazo who did not receive any awards for non-economic damages, 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 non-economic damages, must determine on a case-by-case basis whether a verdict is adequate as a matter of law. Schroeder v. Triangulum Associates, 259 Conn. 325, 330, 789 A.2d 459 (2002). Under Wichers, supra, the jury's decision to award economic damages and zero non-economic 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. Id. The evidential underpinnings of the verdict itself must be examined, albeit with deference to the jury's findings. Wichers v. Hatch, supra, 189. 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 verdict stand. Id.; see also, Fillechia v. Nationwide Property Casualty Ins., 92 Conn.App. 481, 886 A.2d 461 (2005).

Discussion

The court first begins with a discussion of the jury's delivery of its verdicts on April 1, 2008. When the jury initially rendered its verdicts awarding zero non-economic damages for plaintiffs Diana Mazo and Laura Mazo, the court did not order the verdicts accepted and recorded. The court explained to the jury that by awarding the entire claim for economic damages consisting totally of medical bills for treatment, it might be considered inconsistent for the jury to refuse to award non-economic damages for pain, suffering and a loss of the enjoyment of life's activities. The court directed the jury to return to deliberations to reconsider the category of non-economic damages, even if the jury determined that it wished to award only a nominal sum. The court informed the jury that it was not instructing the jury to award non-economic damages, but that it was only instructing the jury to review its position regarding non-economic damages. Shortly thereafter, the jury sent a note asking the court to define the term "nominal," which the court did with the agreement of counsel for the respective parties. After a short time, the jury announced it had once again reached a verdict. The jury, again refused to award any non-economic damages to Diana Mazo and Laura Mazo. The jury also left the verdict unchanged as to Christian Mazo who had been awarded the sum of $1,500 in non-economic damages. The court then ordered the verdicts accepted and recorded. The plaintiffs thereafter filed the subject motions.

The court concludes that under the circumstances, the jury's award of all economic damages and zero non-economic damages as to Laura Mazo is internally inconsistent and should be 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 she had experienced pain and decreased functioning. Accordingly, it should have awarded non-economic damages to compensate her for that pain and decreased functioning. Moreover, insofar as there was no evidence suggesting that the plaintiff had any pre-existing conditions, the jury could not have reasonably attributed these problems to a cause other than the accident. "[O]ur Supreme Court has held that an award of `virtually all' of a plaintiffs claimed economic damages, with no accompanying non-economic damages, demonstrated an inconsistency in the verdict; although it allowed that in a different case, such an award might be proper." (Internal citations omitted.) Fillechia v. Nationwide Property Casualty Ins., supra, 92 Conn.App. 487; see also, Schroeder v. Triangulum Associates, supra, 259 Conn. 334 n. 5.

The jury, however, is also not obliged to believe that every injury causes the pain alleged Vajda v. Tusla, 214 Conn. 523, 538, 572 A.2d 998 (1990); Lidman v. Nugent, 59 Conn.App. 43, 755 A.2d 378 (2000). There was no testimony that Laura Mazo's injuries were permanent, and Laura Mazo testified that as of the time of trial she was "O.K." Accordingly, the motion for additur as to non-economic damages is granted in an amount of $3,000. Unless said additur is accepted by the parties, as set forth herein, the verdict will be set aside and a new trial will be granted on the issue of damages.

Regarding Christian Mazo, who received the sum of $1,500 in non-economic damages, the court also finds the verdict inconsistent. Once again, as there was no evidence suggesting that the plaintiff had any pre-existing conditions, the jury could not have reasonably attributed these problems to a cause other than the accident. Chrsitian Mazo received no medically documented permanent injuries and presently works installing heating and cooling systems. He did, however, testify that he continues to have problems with his shoulder; especially when doing heavy lifting at work. Accordingly, the motion for additur as to non-economic damages is granted in an additional the amount of $3,500. Non-economic damages will now total $5,000. Unless said additur is accepted by the parties, as set forth herein, the verdict will be set aside and a new trial will be granted, as to the issue of damages.

The matter regarding Diana Mazo presents a different problem to the court due to her pre-existing cervical and lumbar injuries sustained in an accident in August 2000. She treated with Dr. Glasser and Dr. Katz for those injuries, as well. Dr. Katz assigned a permanent partial impairment to her cervical spine and lumbrosacral spine of 5% each on August 23, 2001. She also had an accident on September 15, 2001 and treated with Dr. Firgeleski and Dr. Katz for neck and back injuries, as well. She stated at trial that she was not claiming any "ongoing problems" from these previous injuries sustained in motor vehicle accidents. She did not claim that any negligence of the defendants aggravated any of these pre-existing injuries. She did testify that the injuries in the instant matter, while "better" do cause her pain at work, doing household tasks and exercising.

In cases where jury awards of substantial economic damages with no or little accompanying non-economic damages were sustained on appeal, evidence had been presented to show that the plaintiff had some pre-existing condition. See, e.g., Wichers v. Hatch, supra, 252 Conn. 177; Turner v. Pascarelli, 88 Conn.App. 720, 729-30, 871 A.2d 1044 (2005); Schettino v. Labarba, 82 Conn.App. 445, 447, 844 A.2d 923 (2004); Daigle v. Metropolitan Property Casualty Ins. Co., 60 Conn.App. 465, 478-79, 760 A.2d 117 (2000), aff'd, 257 Conn. 359, 777 A.2d 681 (2001). "In those cases, it was held that the jury reasonably could have concluded that the prior condition was the cause of the pain alleged, rather than the tortious actions of the defendant." Fillechia v. Nationwide Property Casualty Ins., supra, 92 Conn.App. 488; see also, Wichers v. Hatch, supra, 189-90; Turner v. Pascarelli, supra, 730; Schettino v. Labarba, supra, 449-50; Daigle v. Metropolitan Property Casualty Ins. Co., supra, 479.

In light of the pre-existing injuries sustained by Diana Mazo the jury reasonably could have found that the plaintiff had failed in her proof regarding the issue of her claim that her pain and suffering were the result of injuries caused by the defendants in the present matter. The court must give deference to the jury's findings. Wichers v. Hatch, supra, 252 Conn. 189. Accordingly, Diana Mazo's request for an additur is hereby denied.

Lastly, the court denies Diana Mazo's motion to "modify" the verdict as to the jury's finding that she was comparatively negligent in assessing her with 35% of the fault for this motor vehicle accident. The plaintiff argues that "it is contrary to common sense" to assess Diana Mazo with 35% fault when her vehicle was struck from behind by the defendants' vehicle. The court, earlier herein, has already noted that the defendants, in addition to denying all allegations of negligence, filed special defenses regarding comparative negligence by the plaintiff operator Diana Mazo. Among the special defenses were allegations that Diana Mazo stopped or suddenly decreased the speed of her vehicle without first giving an appropriate signal in violation of General Statutes § 14-242(c). Defendant Baker testified that the traffic light in issue was green and that as the plaintiffs' vehicle was accelerating, it suddenly stopped with no advance signal from the defendant Diana Mazo. He testified he struck the rear end of Diana Mazo's vehicle at a speed of 2 to 3 miles per hour, causing a very light impact with minimal damage to the plaintiffs' vehicle and no damage to his vehicle.

In addition to alleging that Diana Mazo violated General Statutes § 14-242(c), Baker also alleged that Mazo (1) failed to keep her vehicle under reasonable and proper control; (2) failed to keep a reasonable and proper lookout; and (3) stopped or suddenly decreased her speed. As would be expected, the testimony of the plaintiff operator and the defendant operator conflicted with each other. "The existence of conflicting evidence limits the court's authority to overturn a jury verdict. The jury is entrusted with the choice of which evidence is more credible and what effect it is to be given." (Citations omitted.) Childs v. Bainer, 235 Conn. 107, 116, 663 A.2d 398 (1995). "If, on the evidence, the jury could reasonably have decided as they did, [the reviewing court] will not find error in the trial court's acceptance of the verdict . . ." (Internal quotation marks omitted.) Id., 117. Because there was evidence at trial tending to support the verdict reached by the jury regarding the percentages of comparative negligence, the verdict does not shock the court's sense of justice. Accordingly, the court denies the plaintiff Diana Mazo's motion to "modify" the verdict as it relates to the jury's finding that Diana Mazo was 35% negligent in the operation of her motor vehicle.

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Orders

The verdicts shall be set aside unless within thirty (30) days from the filing of this decision the defendants shall file with the clerk an acceptance of the additurs for Laura Mazo and Christian Mazo. These additurs shall be added to the original jury awards for Laura Mazo and Christian Mazo. If the acceptances of the additurs are not filed within said time, or filed and not accepted by the plaintiff, the verdicts as to Laura Mazo and Christian Mazo are hereby set aside and a new trial will be ordered limited to the issue of damages.