Opinion
UWYCV146025039S
07-28-2017
Clinton Parker v. Prosenjeet Basu
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT AND FOR ADDITUR
Barbara Brazzel-Massaro, J.
I. INTRODUCTION
The plaintiff filed a motion to set aside and for additur dated April 28, 2017 with supporting memorandum. The defendant filed a memorandum in opposition dated May 8, 2017. The court heard argument on June 5, 2017.
II. FACTUAL BACKGROUND
The plaintiff, Clinton Parker filed this complaint as a result of a motor vehicle accident which occurred on September 23, 2012 on Lakewood Road in the City of Waterbury. The defendant, Prosenjeet Basu, was the driver of the automobile involved in the collision with the plaintiff. The defendant denied the claims of the plaintiff and filed a special defense contending that the plaintiff was the party responsible for the accident and alleged several claims of negligence against the plaintiff. The case was tried to a jury on April 18, 19, 20, and 21, 2017. The jury returned a verdict on April 21, 2017 in favor of the plaintiff but also finding that the plaintiff was 49% negligent. The jury awarded total economic damages in the amount of $6,740 which included medical bills and the claim of lost wages. The verdict was reduced to $3,437.70 for an award of economic damages after a deduction for the comparative finding of 49%. The jury did not enter any monetary award for non-economic damages noting on the verdict form as to this claim " N/A." The court entered the judgment and requested if counsel wished further inquiry of the jury. Neither counsel requested further inquiry nor objected to the entry of the verdict in the amount of $3,437.70 reflecting the economic damages after considering the comparative claim.
The plaintiff has requested that the court set aside the verdict and order an additur because the award was contrary to the law and evidence, it is inadequate and manifestly unjust and shocks the conscience. The defendant argues that the jury verdict was not inconsistent or improper and the plaintiff has failed to articulate any reason why the court should set aside or award an additur.
III. DISCUSSION
General Statutes Sec. 52-228b and Practice Book Sec. 16-35 provide for motions to set aside the Verdict, for a new trial and for additur to remedy an erroneous jury verdict. The standard of review governing such motions is well-settled. " The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion is against the law or the evidence . . . [The 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 . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that in the absence of clear abuse, we shall not disturb." (Citation omitted, internal quotation marks omitted.) Edmands v. CUNO, Inc., 277 Conn. 425, 452, 892 A.2d 938 (2006). When considering a motion for additur, " [i]t is the court's duty to set aside the verdict when it finds that it does manifest injustice and is . . . palpably against the evidence . . . The only practical test to apply for a verdict 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 . . ." (Citations omitted; internal quotation marks omitted) Ng v. Wal-Mart Stores, 122 Conn.App. 533, 536, 998 A.2d 1214 (2010). The plaintiff relies upon the action of Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000), in support of his argument that the verdict in this action must be set aside and an additur permitted for the claim of non-economic damages only. In Wichers, supra., 189, the court addressed the implications of it stepping forward in the place of a juror when asked to rule upon a motion to set aside. The court found that " although the trial court has a broad legal discretion in this area, it is not without its limits . . . Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury; Rickert v. Fraser, 152 Conn. 678, 681, 211 A.2d 702 (1965); the court's action cannot be reviewed in a vacuum." (Internal quotation marks omitted.) Id. " [I]n passing upon a motion to set aside a verdict, the trial judge must do just what every juror ought to do in arriving at a verdict. The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly . . . The trial judge in considering the verdict must do the same . . . and if, in the exercise of all his knowledge from this source, he 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 were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial . . . A mere doubt of the adequacy of the verdict is an insufficient basis for such action . . . A conclusion that the jury exercised merely poor judgment is likewise insufficient . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption." (Citations omitted.) Birgel v. Heintz, 163 Conn. 23, 27-28, 301 A.2d 249 (1972). In the instant action, the jury returned the verdict and it was ordered accepted and recorded in court. The parties did not object or raise concerns about the verdict as to non-economic damages described as " N/A." It was clear from the addition of figures in the verdict, the jury verdict was $0 for the non-economic claims. Therefore, the plaintiff's argument that " N/A" as the response to non-economic damages is unclear has no merit given the overall award by the jury and the failure to request a clarification when the verdict was returned. Therefore, the question before this court is whether the court should award an additur for non-economic damages. The controlling case in regard to an additur for non-economic damages when there is an award for economic damages and no non-economic award is Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000). This case held that a jury's finding of liability and award of practically all past economic damages, but no noneconomic damages, is not necessarily legally inconsistent. When considering a challenge to such a verdict, the court must carefully examine the evidence presented, " Rather than decide that an award of only economic damages is inadequate as a matter of law, 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. 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." (Footnote omitted.) Id., 188-89. In Birgel v. Heintz, 163 Conn. 23, 27-28, 301 A.2d 249 (1972), the court stated that, " . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury's award fails somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption." A determination of whether an additur is warranted requires a specific case analysis in accordance with Wichers . The Appellate and Superior Court cases following Wichers have considered a number of ancillary issues such as: 1) an award of lost wages, 2) the award of the economic damages, either in whole or in part, including all medical bills and costs, 3) any pre-existing injury or permanency; 4) the introduction of necessary future medical treatment, and 5) issues of credibility on the part of the plaintiff. It is incumbent upon the court to review the particular evidence and testimony of this action in determining whether an award of $0 for non-economic damages should stand. The defendant contends that there are a number of reasons that the court should not set aside the verdict and grant an additur for non-economic damages. The defendant argues that no court has awarded an additur in an action where the plaintiff did not receive all of the medicals (economic damages) in the jury award. This argument is not factually correct. In Tajmajer v. Safeco Ins. Co., Superior Court, judicial district of New Britain, Docket No. HHBCV156028512S, (January 31, 2017, Morgan, J.), the jury returned a verdict for approximately 82 percent of the claimed medicals and the court granted an additur of $10,000 based upon the evidence and testimony concerning the non-economic claims. Also in Snell v. Beamon, 82 Conn.App. 141, 842 A.2d 1167 (2004), the court awarded not only additional economic damages but also awarded non-economic when the original verdict was $1,235.53 as the award for a medical claim of $5,424.00. In Grenier v. Dovitski, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 04 500023, (December 12, 2005, Brunetti, J.) the jury awarded part of the bills only and the court awarded an additur for non-economic. Therefore, it is not a basis to deny the additur simply because the award has been less than the claimed economic damages. In the instant case, the jury awarded $5,589.46 which was almost all of the $6,242.92 claimed medical bills. This figure is only $652.46 less than the total bills. Additionally, and more importantly in the court's analysis of the question of non-economic is that the jury awarded all of the claimed lost wages for the week the plaintiff testified he could not work. (Emphasis Added). Based upon Wichers which guides the courts to look at the specific evidence and testimony to make this determination rather than follow an unyielding rule that precludes non-economic damages if there is less than 100% of the medicals as a verdict. Therefore, this court has a responsibility pursuant to Wichers to analyze the specific testimony and evidence offered in this case to determine if there was a mistake, prejudice.
There is no hard and fast rule that no further review is necessary if the plaintiff fails to collect all the monies claimed. Again it is the responsibility of this court to view the damages and circumstances to determine if by partiality, mistake or corruption or that the award so shocks the conscience. The defendant argues that the jury award must stand because he believes that the jury made the decision considering the credibility of the plaintiff and the fact that there was a prior injury to the plaintiff. The plaintiff argues that the testimony and the evidence when compared to the verdict are inconsistent in particular, the plaintiff points to the specific medical evidence that was submitted into evidence. There was conflicting evidence as to the severity of the impact and the mechanics of the accident. The plaintiff testified that in the instant case the jury awarded all of the medical expenses but then reduced then by its finding of comparative negligence in the amount of 49%. It is clear that the jury believed the plaintiff incurred medical expenses as a result of the accident on September 23, 2012 because it awarded almost all the medical bills as well as the lost wages. The plaintiff introduced his medical reports and records as exhibits of his damages. On the date of the accident he was treated at St. Mary's Hospital which included claims of pain of 9/10 for neck and low back pain. He was prescribed Naprosyn for the pain. He was discharged with a notation to follow up with doctor in 1 to 3 days. Thereafter on November 23, 2012 the plaintiff went to the hospital because of pain as a result of the accident. (Plaintiff's Exhibit 3.) The plaintiff introduced the records of treatment by Brass City Chiropractic Center beginning the day after the accident which contain the following: " Mr. Parker presents to the office with a complaints (sic) of neck pain, bilateral shoulder and upper arm pain with the right worse than the left, and lower back pain. He also notes right shoulder pain is sharp on overhead motions. He describes his symptoms as thriving and aching with occasional sharp pain in the neck, upper back and lower back . . . indicates a generalized intermittent numbing sensation in both hands. He notes that his right shoulder is significantly restricted and painful with any movement. He notes that he has pain in his lower back upon standing or walking for long periods and that his neck pain is constant, with the right side worse than the left . . . He scores a 27/50 on the Vernon Mior neck disability index questionnaire and a 29/50 on the revised Oswestry low back disability questionnaire. He rates pain on a subjective analog scale as an 8 out of 10. His scores indicate significant dysfunction." Thereafter he treated and the final report indicates although improved that he works through his pain. (Exhibits 6 and 7). The plaintiff presented evidence of damages of $1,306.92 for St. Mary's Hospital, $466.00 for Middle CT Emergency Physicians and $4,470.00 for Brass City Chiropractic Center, LLC. for a total of $6,242.92. He claimed lost wages of $1,152.12. The jury awarded $5,589.46 as costs for the treatment at the hospital and Brass City Chiropractic Center. This sum is substantially all of the medical bills and includes all lost wages. The claimed prior injuries of the plaintiff were not claimed as a continuing disability and the testimony and evidence indicates there was no relation or permanency as to the injuries. What is more significant for purposes of this motion is the claim of inability to go to work for a week as a result of the accident for which the jury fully compensated the plaintiff. This award clearly indicates an acceptance and finding that the plaintiff's injuries impact him in a manner which would lead to non-economic damages. In opposition to the motion the defendant contends that the plaintiff was not credible and that prior injuries caused his inability to work or fully participate in his Reserve work. The defendant relies upon several decisions for support of its position. In Santa Maria v. Klevecz, 70 Conn.App. 10, 800 A.2d 1186 (2002), the appellate court affirmed the decision of the trial court to deny the motion for additur citing specific evidence within the trial that differed substantially from the testimony and evidence in this action. Santa Maria like many cases after Wichers recognized that the decision is to be based upon the facts of each case. In Santa Maria there was strong evidence on the part of an expert for the defendants that contradicted the claim of any permanent injury as well as the lack of medical records and physical examinations which causally related the claimed injuries to the accident. The defendant also introduced evidence of a prior accident in which the plaintiff injured herself and life stressors that were related to her claims. Additionally, the jury awarded economic damages that were substantially less than the amount sought. Additionally, the dissent of Justice Flynn argues that the award of at least part of the total of economic damages claimed for the treatment of pain means necessarily that the defendants caused pain that needed to be treated and would not have occurred but for some negligent act of the defendants." Id. The facts in this action are very different than Santa Maria. Using the analysis in Santa Maria it becomes obvious that the award in this case does not address the factors which would necessarily lead to non-economic damages because of documented pain at the time and thereafter, a change in the way the plaintiff performs his job and his Reserve work, the prescriptions for pain medication, Naprosyn and muscle relaxer, Flexeril, are inconsistent with a finding of no pain or suffering. The award of comparative has addressed some of the issues relating to how the accident occurred and thus recognizing that the plaintiff's recollection of the accident is not as accurate as he contended. But this comparative finding addresses some of the credibility issues with a finding that the defendant bears the greater percentage of responsibility. This is not a basis to determine that the credibility of the plaintiff should preclude any non-economic award.
The court highlighted the action of Schroeder v. Triangulum Association, 259 Conn. 325, 333-34, 789 A.2d 459 (2002), where the court found zero noneconomic damages improper where the jury found the defendant fully liable for all of the plaintiff's claimed economic damages.
The jury did not award any sum for non-economic damages although there were exhibits noting the ongoing pain of the plaintiff and decrease in the ability to carry on his activities such as physical training in the Guard or the ability to perform his job as a mail man in the same manner because of the pain to his shoulder. Oftentimes a complaint of pain is subjective and the jury is challenged with arriving at a decision as to what some, all or none of the testimony or records are to be believed as to pain. However, when the jury awards the medical expenses for treatment in which the party is conveying a degree of pain, there is no reasonable basis to ignore the claim. In this action the plaintiff provided expenses for treatment which included pain and suffering and was compensated for the medical expenses. The plaintiff received almost all of the monetary amount requested for economic damages and it is unclear as to why a little more than $600 was not awarded because there were no interrogatories requested by the parties.
It is not consistent with the evidence nor reasonable that the jury found the defendant is liable for almost all of the claimed medical expenses (less the comparative deduction) and not award non-economic damages for any pain and suffering, even if only through the treatment period, though it is included in the records utilized to make an economic award. It is not reasonable to award no non-economic damages given the medical records and the inclusion of lost wages when the plaintiff was unable to work and thus the award is contrary to the evidence. Therefore the jury has clearly made a mistake in failing to recognize the non-economic damages.
IV. CONCLUSION
In reviewing the facts as encouraged by Wichers, this court finds that the motion for additur should be granted for all of the reasons addressed above. Not only did the jury award lost wages which indicates a finding of inability to carry on life's activities as alleged by the plaintiff, but it awarded damages for substantially the entire amount of the medical bills which include care for pain and lost wages. Given the jury verdict which recognized the bills related specifically to the doctor's treatment for among other claims, reduction or addressing pain, there is clear evidence that the jury determined that the plaintiff incurred pain and suffering as well as loss of ability to carry on with his everyday activities because of an award of lost wages. A finding of no non-economic damages is manifestly unjust and against the weight of evidence as to the damages.
The court finds it fair and reasonable to award non-economic damages. An award of $10,000 for the non-economic damages is fair, just and reasonable in accordance with testimony and evidence. Therefore, the court grants the motion for additur for $10,000 for non-economic damages which is reduced to $5,100 in accordance with the comparative finding by the jury, resulting in a total award of $11,840.58. The court overrules the objection of the defendant. If the additur is accepted, judgment shall enter for the plaintiff in the amount of $11,840.58 plus taxable costs. If the defendant does not accept the additur of $10,000 by August 14, 2017 then the verdict will be set aside and a new trial is ordered, limited to the issue of economic and non-economic damages.