Opinion
UWYCV166032352
09-13-2018
Robert PRASKIEVICZ v. Agata GRABOWS, et al.
UNPUBLISHED OPINION
File Date: September 14, 2018
Brazzel-Massaro, J.
I. INTRODUCTION
The plaintiff, Robert Praskievicz filed this action seeking damages for injuries he alleges he suffered as a result of an automobile accident on November 12, 2014 in Wolcott, Connecticut. The action was tried to a jury and a plaintiff’s verdict was returned on March 16, 2018. The plaintiff filed this motion to set aside and for additur. He alleges that the verdict was inadequate because the jury awarded some of the plaintiff’s medical expenses but did not award any amounts for pain and suffering associated with the treatment for his injuries. The plaintiff also alleges that the court erred in not permitting Dr. Zilahy to render an opinion on the biomechanics of the underlying collision and that evidence of the property damage was admitted without proper foundation and defense counsel raised improper arguments during his summation. The defendant filed a memorandum in opposition to the motion to set aside and for additur.
II. FACTUAL BACKGROUND
The plaintiff, Robert Praskievicz brought this action against Agata Grabows as the driver of an automobile that failed to stop and collided with him as he was stopped on a roadway in Wolcott, Connecticut. As a result of the accident the plaintiff alleged that he suffered various injuries to his back, muscle spasm to his back, sciatica, lateral epicondylitis of the right elbow, great pain and suffering and injuries to nerves, muscles and soft tissues.
The matter was tried before a jury March 14, 15 and 16, 2018. The jury returned on March 16, 2018 responding to the jury interrogatory and returning a plaintiff’s verdict. The Plaintiff’s Verdict was divided into three sections for Damages, that is; Economic Damages, Non-Economic Damages and Total Damages. The verdict form returned by the jury awarded $4,149.21 for Past Medical Expenses, $0 for Future Medical Expenses and $0 for non-economic damages for both Past and Future. The total award was $4,149.21.
The plaintiff argued in the memorandum that the verdict was $4,129.51 which is not the same amount in the verdict form contained in the court file. The claimed damages to the plaintiff were $17,609.98.
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.) Edmonds 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).
In analyzing the argument raised by the plaintiff the court is guided by the controlling decision of Wichers v. Hatch, 252 Conn. 174, 176, 745 A.2d 789 (2000) where the court established a new approach to a review of the jury award which includes economic but no non-economic damages. The court in Wichers analyzed the broad spectrum upon which a jury makes a decision as to damages and specifically determined that there is no per se rule simply because there is an award of economic damages. Wichers is the seminal case in setting forth the legal principles and standard of review in a claim of insufficiency of the verdict and a motion for additur. The finding in Wichers set the standard when it stated, "Rather than decide that an award of only economic damages was 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." Wichers, supra, 181. The court went on to state that in examining the evidence the court should make a decision "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." Id., 188-89. Following this standard the court has reviewed not only the finding of the jury but the events that surrounded the decision and the evidence that was introduced at the time of trial. The plaintiff’s argument is mere supposition that because the jury awarded no non-economic damages and awarded some of the medical damages that the jury must have been mistaken. The circumstances in this action do not merit such a finding because the vast majority of medical expenses which related to medical treatment well after the accident were not awarded. In this regard, it is reasonable for the court to support a finding that the jury did not find that the vast amount of treatment was caused by this accident. Of importance, in this conclusion is the fact that not only did the jury return a verdict once but the court charged the jury after the verdict that the awarding of economic damages and a zero noneconomic damages while possible may be inconsistent to say that a person was injured enough to incur medical expenses but experienced no pain and suffering, however on the other hand the jury may have found that the plaintiff proved economic damages and no non-economic damages and thus the court asked the jury to go back and review the verdict. The jury did return to the jury deliberation room and then returned with a verdict that was the exact same verdict as first presented. This action of the jury cements the decision that they did not find proof of non-economic. For this court to speculate as to why the jury did not award non-economic would be improper. However, the defendant has enunciated in its memorandum in opposition a number of plausible reasons for the jury to examine all of the evidence and to weigh credibility in this action and make a decision to award only a small portion of the medical bills and no non-economic damages. The fact that the jury’s attention was drawn particularly to the award which did not include non-economic damages adequately demonstrates that this jury was not confused and did not misapply the law in this action. The jury award is reasonable considering all of the factors that played a part in this action to negate not only economic damages but also non-economic damages. The plaintiff’s argument ignores much of the evidence that questioned the damages and the credibility of the plaintiff in this action. There is no basis to set aside the verdict. Additionally, the court will not award an additur in light of the fact that the jury was returned to deliberate and award such if they determined it was appropriate on the reconsideration. This court will not step on the toes of the jurors who made the decision not once but twice to return only the initial medical bills and no more. Thus, the court does not find that the jury was confused or erroneous in their award and will not set aside or award an additur to the plaintiff on this basis.
The plaintiff next argues the court erred in not permitting Dr. Zilahy to testify as an expert regarding the forces associated with the collision. The court was clear at the time of his testimony that he would be permitted to testify as an expert concerning his chiropratic treatment of the plaintiff and his opinion that the physical findings were in his opinion caused by the accident. The court ruled that Dr. Zilahy was not qualified as a biomechanical engineer to testify as to the mechanics of the collision. The plaintiff introduced testimony from Dr. Zilahy that he had testified at some previous time relating to the accident but in the instant case he was offered for the very specific and technical area of the change to impact of a collision based upon the hitch on this car. The plaintiff cites to Weaver v. McKnight, 313 Conn. 393 (2014) as support for their position that the expert need not know everything about a topic to be an expert in that field and thus Dr. Zilahy should have been permitted to testify. However, the facts surrounding this action and Weaver are very different and the factual basis for finding the court erred in Weaver cannot be applied to these facts. In Weaver, the doctors who were experts in gynecology and obstetrics had practiced a number of years in the field with particular knowledge of the complications of gestational diabetes and pregnancy. Each of the doctors, although not pathologists, had during their years of practice been directly involved with the stillbirth of a fetus as a result of gestational diabetes. Therefore, the doctors although not pathologists had direct knowledge and experience of the condition and the effect, that is death. The court determined that the experience of the doctors permitted them to testify as to the cause of death. Unlike Dr. Zilahy, the doctors had direct knowledge and experience in the field in which they worked to opine about cause of death for the stillborn in a situation with gestational diabetes. Here, the question to Dr. Zilahy is not related to the physical condition of the plaintiff but is directed to the biomechanics of the design of the vehicle that has a hitch. In other words, he claims that the biomechanics of the accident would be or were different because of the hitch. Such testimony is well beyond his expertise and would involve factors outside of his services as a chiropractor. The plaintiff contends that this preclusion was detrimental to the plaintiff because Dr. Zilahy would have testified that the hitch on the car had an effect of the impact of heightening the force of the collision and thus related injuries in this action. However, the court would not allow such testimony because of the lack of foundation not only as to the expertise but also the foundational evidence to support an expert opinion in this very specific type of biomechanics involving a hitch which was added to the back of the motor vehicle. The plaintiff’s proposed testimony from Dr. Zilahy in a nutshell was that the hitch on the car created a greater impact because it does not or did not cushion like a bumper and thus the injuries were severe. However, this testimony was offered in a vacuum with no scientific analysis or background to qualify him as an expert to testify not about the usual rear end motor vehicle accident but an unusual set of circumstances for which he had no particular training or experience. The testimony was based simply upon photos of the car and the impact but did not consider even the most basic information such as speed, weight of the cars, design of the cars, direction of the impact, positioning of the plaintiff, mechanics of the automobile such as brakes or tires and/or condition of the roadway among some of the variables. Dr. Zilahy has no expertise in accident reconstruction or biomechanics which would qualify him to extend his testimony beyond that covered by his study and experience as a chiropractor. Thus, the court did not err in limiting the testimony of Dr. Zilahy to his expertise.
The plaintiff contends that the property damage appraisal was not properly admitted into evidence. This exhibit was admitted solely in response to the claim by the plaintiff of the significant impact to the vehicles involved in the accident. The estimate was not admitted for purposes of a claim of damages by the defendant and thus requiring support of an estimate for a damage award. The use of the appraisal to show the impact to the vehicle was not prejudicial given the parties’ divergent opinions as to the amount of damage to the vehicle. Thus, the exhibit was admitted to the jury so that they could make an educated decision as to the claim of the impact. There was no error in the discretion of the court to admit this exhibit. The plaintiff argues that counsel for the defendant made improper closing arguments which were prejudicial to him. There was no objection raised by the plaintiff at the time of the argument or thereafter to provide a curative instruction to the jury if needed. Therefore, the court will not address this argument as not properly raised at the time of trial. O’Leary v. Industrial Park Corp., 14 Conn.App. 425, 542 A.2d 333 (1988).
Based upon the above, the motion to set aside or for additur is denied.