Opinion
FBTCV136038371S
11-30-2015
Travis Vereen v. Garda CL New England, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT AND ADDITUR
Richard E. Arnold, Judge.
Pursuant to Practice Book § 16-35 and General Statutes § 52-228b the plaintiff, by way of a motion dated October 1, 2015, has moved to set aside the jury verdict of September 22, 2015, as to damages only, and has requested an additur. The plaintiff claims that the damages awarded by the jury were inadequate and contrary to both the law and the evidence.
Practice Book § 16-35 reads as follows
Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict, motions for remittitur, motions for additur, motions for new trials, unless brought by petition served on the adverse party or parties, and motions pursuant to General Statutes § 52-225a for reduction of the verdict due to collateral source payments must be filed with the clerk within ten days after the day the verdict is accepted; provided that for good cause the judicial authority may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.General Statutes § 52-228b regarding the setting aside of verdict in action claiming money damages reads as follows:
No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.
After several days of trial in this personal injury matter, the jury rendered a verdict for the plaintiff in the total amount of $320,540.00 consisting of economic damages in the amount of $195,540.00 and non-economic damages in the amount of $125,000.00. The jury further found that the plaintiff's own negligence in causing his injuries and damages was fifty percent (50%). Accordingly, the plaintiff's damages were reduced by fifty percent (50%), resulting in a net plaintiff's recovery in the amount of $160,270.00. The plaintiff has submitted a memorandum of law in support of his motion. The defendant's objection and memorandum of law is dated October 15, 2015. Oral argument was held before the court on October 19, 2015.
The jury found for the plaintiff Travis Vereen, as against the defendant James Lee Alvarez. Prior to the jury's verdict, the court had granted a directed verdict in favor of the additional defendant Garda CL New England, Inc. (" Garda"). Garda was the employer of both the plaintiff, Vereen, and the defendant, Alvarez. Both Vereen and Alvarez were acting in the course of their employment when the subject incident occurred. Vereen was the recipient of Workers' Compensation benefits. Garda had filed a special defense claiming that pursuant to the Workers' Compensation Act, General Statutes § 31-284, the receipt of benefits was Vereen's exclusive remedy against Garda. The court agreed and directed a verdict in Garda's favor.
I
Standard of Law
" Any motion for a new trial is addressed to the sound discretion of the trial court and will not be granted except on substantial grounds." Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983). The court has the authority to set aside a verdict when the jury could not reasonably and legally have reached its verdict. Bound Brook Associates v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S.Ct. 81, 93 L.Ed.2d 36 (1986). " The basic question which the trial court has to decide is whether upon all the evidence an injustice has been done." (Internal quotation marks omitted.) Burr v. Lichtenheim, supra, 190 Conn. 355.
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, 572 A.2d 998 (1990); Lidman v. Nugent, 59 Conn.App. 43, 755 A.2d 378 (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, 844 A.2d 923 (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).
II
Discussion
The court heard evidence over several days in this jury trial, commencing on September 15, 2015. The plaintiff presented evidence that he had sustained economic damages in the total amount of $240,484.94. The plaintiff claimed past medical expenses in the amount of $87,716.00; future medical expenses in the amount of $115,500.00; and lost wages totaling $37,268.94. The jury awarded $195,540.00 in economic damages, prior to the reduction for the plaintiff's fifty percent (50%) comparative negligence.
The defendant disputed the amount of lost wages claimed by the plaintiff due to an alleged lack of documentary evidence to support the total wage loss claim of $37,286.94.
No interrogatories were requested or submitted to the jury to allow any party to determine how the jury arrived at an award for economic damages in an amount of $195,540.00.
The plaintiff argues that the defendant offered no evidence to controvert the plaintiff's claims of economic damages in the amount of $240,484.94. Likewise the plaintiff argues that it produced testimony from the plaintiff's treating physician, Dr. Kwok and Dr. Brown, who was selected by workers' compensation, that the plaintiff had sustained a permanent injury to his right knee and that the plaintiff requires future surgery. Both doctors testified that the plaintiff's knee injury was casually related to the accident on the employer's premises that occurred on March 19, 2012. Dr. Kwok testified that the plaintiff had a permanent partial disability of his knee of fourteen percent (14%) and Dr. Brown assigned a permanent partial disability rating of ten percent (10%).
No evidence was presented that the plaintiff suffered from any pre-existing injury or condition.
Regarding the jury's award of $125,000.00 for non-economic damages, prior to the reduction for the plaintiff's own comparative negligence, the plaintiff argues that this award is also inadequate. The plaintiff argues that his injuries, sustained in this accident required substantial medical treatment to alleviate pain and to improve the function of the plaintiff's knee. The plaintiff argues that it is apparent the jury found the plaintiff had experienced pain and diminished functioning, as they awarded compensation for non-economic damages. In arguing for an award of non-economic damages, the plaintiff also asked the jury to consider: (1) his mental pain and suffering; his fear of future surgery and medical treatment; (3) a limitation on his ability to enjoy certain activities; and (4) the permanency of his injuries.
The defendant, in objecting to the motion to set aside the verdict and additur, argues that it is untrue that there was no evidence to controvert the plaintiff's claims of injuries and damages. The defendant argues there was sufficient evidence through cross examination, medical records and other exhibits to allow the jury to determine that the plaintiff would not have additional knee surgery in the future and that the plaintiff would not have a knee replacement procedure in the future. The defendant argues that the only evidence regarding a possible knee replacement was Dr. Kwok's statement that the plaintiff was " at increased risk" for this procedure. The defendant argues that the jury was free to accept or reject this opinion. There was additional evidence that the plaintiff had made past statements that he was " pain free" and that he was able to complete and pass his functional work capacity test. The plaintiff also admitted and testified that he had passed an agility test to become a Bridgeport police officer. The plaintiff reported that he could run up and down three flights of twenty-two steps in forty-five seconds. He had normal strength in his lower extremity bilaterally, with a full range of motion to his knee.
When evaluating the merits of the plaintiff's claims, the court does not consider the reduction of the plaintiff's recovery due to the jury's finding that the plaintiff was fifty percent (50%) negligent and responsible for his own injuries and damages. The plaintiff has requested only that the court set aside the verdict as to damages only. The court is also cognizant that no interrogatories were requested that might shed light on the jury's decision to award economic damages in the amount of $195,540.00, rather than the sum of $240,484.94 that was claimed by the plaintiff. " The general verdict by its very nature is all encompassing . . ." (Citations omitted.) Silva v. Walgreen Co., 120 Conn.App. 544, 555, 992 A.2d 1190 (2010). Thus, this court does not have any reasonable basis on which to break down the verdict. See. Id. " Where there is a general verdict and no breakdown of the components of the verdict, it would be error to set it aside." Id.
" [I]t is the court's duty to set aside the verdict when it finds that it does not manifest injustice, and is . . . palpably against the evidence . . . The only practical test to apply to 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 a 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.) Id., 556; see also, Snell v. Beamon, 82 Conn.App. 141, 145, 842 A.2d 1167 (2004). When ruling on a motion for 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." Weiss v. Bergen, 63 Conn.App. 810, 814, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 1254 (2001). Moreover, " [t]he existence of conflicting evidence curtails the authority of the court to overturn the verdict because the jury is entrusted with deciding which evidence is more credible and what effect it is to be given." Silva v. Walgreen Co., supra, 120 Conn.App. 556 quoting, Schettino v. Labarba, 82 Conn.App. 445, 450, 844 A.2d 923 (2004). " The amount of damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury . . . Similarly, [t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury." (Citation omitted; internal quotation marks omitted.) Johnson v. Chaves, 78 Conn.App. 342, 346, 826 A.2d 1286, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003). Credibility is the hallmark in a case where testimony is at issue. The court does not know what the jury thought of the plaintiff's credibility or the credibility of the plaintiff's medical experts, but credibility was an issue for the jury to determine. " 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." Silva v . Walgreen Co., supra, 120 Conn.App. 558.
In determining whether to set aside the verdict and to order an additur, the court must decide only whether, on the basis of the evidence presented the jury did not fairly reach a verdict. In examining the evidence, if there is a reasonable basis in the evidence for the jury's verdict and no mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusion to be drawn from the evidence, the trial court should let the jury's verdict stand. Wichers v . Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000).
The jury awarded economic damages to the plaintiff in the amount of $195,540.00 and non-economic damages in an amount of $125,000. These are not inconsequential sums. They are not shockingly low based on the evidence the jury had before it. The total damages award in the amount of $320,540.00, prior to the reduction for the plaintiff's comparative negligence, falls within limits of fair and reasonable compensation. It does not so shock 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). Accordingly, the motion to set aside the verdict and to order an additur is denied.