Opinion
No. DBDCV05-4002000S
February 14, 2007
MEMORANDUM OF DECISION RE MOTION FOR REMITTITUR (#145.00)
Defendants have filed a motion for remittitur following a jury verdict in the amount of $10,414.33 in favor of the plaintiff, Kenneth J. Weber, in his claim for personal injuries. The jury awarded economic damages of $5,414.33 and non-economic damages of $5,000.00. The parties agreed that a collateral source reduction of $1,732 should be applied to the award. As to the net award, the defendants argue that as a matter of law such an award is excessive as it appears to include a property damage bill which was not claimed as an element of the damages suffered by the plaintiff.
I FACTUAL AND PROCEDURAL BACKGROUND
On or about September 12, 2004, the plaintiff, Kenneth Weber, was involved in a three-car accident in New Milford, Connecticut. Of the other two vehicles, one was operated by Griesther Trinidad and owned by Juan Trinidad. The other was operated by the defendant Arthur Michaelson, Jr. The plaintiff sustained injuries as a result of the accident and the matter was tried before a jury on November 17, 2006 and November 21-22, 2006. At trial, the plaintiff submitted evidence of his personal injuries as set forth in his complaint. He also claimed emotional upset, loss of enjoyment of life's activities, loss of earnings and possible future medical expenses. Also put into evidence was a property damage bill estimate regarding plaintiff's vehicle (Plaintiff's Exhibit 7) as well as photos of the damage to the vehicles involved (Plaintiff's Exhibits 2-6 and 15). The purpose of the admission of those exhibits was to establish that the vehicle did suffer damage in the collision thereby supporting plaintiff's claim of injuries stemming from the accident. There was no claim by the plaintiff in his complaint for the recovery of property damage expenses. Following the verdict in favor of the plaintiff, the defendants have moved for a remittitur on the grounds that the property damage estimate of $2,727.56 must have been incorrectly included in the amount of economic damages awarded by the jury as the amount of economic damages found exceeded the amount of medical bills claimed by the plaintiff.
The complaint as to Arthur Michaelson, Jr. was withdrawn on November 21, 2006.
II STATEMENT OF LAW
Remittiturs are allowed to be considered by the court under General Statutes § 52-216a. It states: "[i]f the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial." Further, General Statutes § 52-228b makes clear that "[n]o 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."
Our case law has thoroughly addressed the issue of remittitur. "The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury . . . The size of the verdict alone does not determine whether it is excessive. The only practical test to apply to [a] verdict is whether the 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 was influenced by partiality, prejudice, mistake or corruption." (Internal quotation marks omitted.) Margolin v. Kleban Samor, P.C., 275 Conn. 765, 783-84, 882 A.2d 653 (2005). "In ruling on a motion for remittitur, the trial court was obliged to view the evidence in the light most favorable to the plaintiff in determining whether the verdict returned was reasonably supported thereby." (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn.App. 165, 184, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997). A conclusion that the jury merely exercised poor judgment is an insufficient basis for ordering a remittitur. Bruneau v. Seabrook, 84 Conn.App. 667, 673, 854 A.2d 818, cert. denied, 271 Conn. 930, 859 A.2d 583 (2004); Wochek v. Foley, 193 Conn. 582, 587, 477 A.2d 1015 (1984). Moreover, "[t]he fact that a jury returns a verdict in excess of what the trial judge would have awarded does not alone establish that the verdict was excessive . . . [T]he court should not act as the seventh juror with absolute veto power. Whether the court would have reached a different [result] is not in itself decisive . . ." (Internal quotation marks omitted.) Campbell v. Gould, 194 Conn. 35, 40, 478 A.2d 596 (1984). A plaintiff need not prove damages with mathematical exactitude; rather the plaintiff must provide sufficient evidence for the trier to make a fair and reasonable estimate. (Internal quotation marks omitted.) Bruneau v. Seabrook, supra, 84 Conn.App. 667; Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 65, 717 A.2d 77 (1998).
In making a decision to determine whether the amount of damages awarded are excessive, the court must begin its analysis "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." (Internal quotation marks omitted.) Smith v. Lefebre, 92 Conn.App. 417, 421, 885 A.2d 1232 (2005), quoting Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000) (en banc). While the Smith case dealt with the issue of whether a damage award was inadequate, the same reasoning regarding the jury's decision is applicable in reviewing a motion for remittitur. In considering what damages might be appropriate, "[i]t is the [jury's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses . . . The [jury] can . . . decide what — all, none, or some — of a witness' testimony to accept or reject. (Internal quotation marks omitted.) State v. Weisenberg, 79 Conn.App. 657, 663-64, 830 A.2d 795, cert. denied, 266 Conn. 932, 837 A.2d 806 (2003)." Smith v. Lefebre, supra, 92 Conn.App. 421. In this context, the court must recognize that "[t]he amount of damages awarded is a matter peculiarly within the province of the jury." (Internal quotation marks omitted.) Weiss v. Bergen, 63 Conn.App. 810, 813, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 1254 (2001). However, this does not excuse the court from conducting a review of the evidential underpinnings of the verdict to ensure that the award is reasonably supported by the evidence. Johnson v. Chaves, 78 Conn.App. 342, 347, 826 A.2d 1286, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003).
III DISCUSSION
This court has performed an examination of the evidence in a manner most favorable to sustaining the verdict and has allowed for any reasonable inferences which the jury might have made from that evidence. It has reviewed the record to determine whether there were evidential underpinnings to reasonably support the jury's conclusion. Such a review finds that evidence was submitted to the jury that included, but was not limited to, the treatment records and billings of various medical providers, the likelihood of future medical treatment, the nature and extent of his injuries, lost wages, as well as the plaintiff's life expectancy (45 years).
It is also noted that, in the present case, the jury rendered a general verdict for the plaintiff without the use of jury interrogatories on the issue of damages. Although jury interrogatories were proposed by the parties for use by the jury, the parties ultimately agreed not to make use of such interrogatories. Our Appellate Court has held that: "a general verdict coupled with the absence of interrogatories, made it impossible for the trial court or this court to determine what factors the jury considered in making its award. The general verdict by its very nature is all encompassing and does not disclose whether, in fact, the jury awarded all [the] economic damages for future medical expenses or awarded nothing at all for such expenses. Therefore, neither the trial court nor this court had any reasonable basis on which to break down the verdict. Where there is a general verdict and no breakdown of the components of the verdict, it would be error to set it aside." Marchetti v. Ramirez, 40 Conn.App. 740, 746, 673 A.2d 567 (1996), aff'd, 240 Conn. 49, 688 A.2d 1325 (1997); see also Caruso v. Quickie Cab Co., 48 Conn.App. 459, 460-61, 709 A.2d 1154 (1998). In such cases, the court "cannot speculate as to how the jury reached its figure . . . Although [most of the] evidence remained uncontroverted the jury [was] not obligated to accept it. On the other hand, [the jury was] at liberty to accept what part of [the evidence it] chose and factor [that evidence] into [its] total calculations." (Citation omitted; internal quotation marks omitted.) Barrows v. J.C. Penney Co., 58 Conn.App. 225, 229-30, 753 A.2d 404, cert. denied, 254 Conn. 925, 761 A.2d 751 (2000).
In this case, the plaintiff alleged that he suffered physical injuries due to the defendants' negligence as a result of which he incurred medical expenses and lost time from work. He also alleged that both aspects of these damages may continue into the future, causing him to incur additional medical expenses as well as the loss of future wages. He did not allege that he incurred any property damage, and it is undisputed that the evidence as to his property damage was not admitted for that purpose.
Nevertheless, pursuant to the general nature of the verdict, the court is not permitted to speculate as to how the jury reached the amount it awarded to the plaintiff for economic damages. Rather, the court must examine the evidence regarding the plaintiff's present and future medical expenses, lost wages and loss of future wages to determine whether the total award is supported by the evidence.
"It is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date, particularly when there is also a degree of medical certainty that future medical expenses will be necessary . . . Future medical expenses do not require the same degree of certainty as past medical expenses." (Internal quotation marks omitted.) Marchetti v. Ramirez, 40 Conn.App. 740, 746, 673 A.2d 567 (1996), aff'd, 240 Conn. 49, 688 A.2d 1325 (1997).
"An allegation that the plaintiff is engaged in a particular kind of work or business, and that his injuries have prevented him from continuing it, is a sufficient allegation of damages for time lost or for loss of earning capacity . . . [T]he court's instructions that, if the injury directly impaired the plaintiff's earning capacity, he could recover the amount of his loss, that a common method of showing one's earning capacity was to show what his earnings were during a certain period, and calling the attention of the jury to the plaintiff's testimony as to his weekly income or earnings from his business, were proper." (Citations omitted.) Nistico v. Stephanak, 140 Conn. 547, 551, 102 A.2d 357 (1954).
In its motion for remittitur the defendants have failed to establish that the jury's verdict was the product of partiality, prejudice, mistake or corruption. At best the defendants have argued that the evidence submitted to the jury did not support the verdict. A review of the evidence by this court finds support for the jury's conclusion on the issue of economic and non-economic damages. In reality, defendants' post-trial pleading has simply attempted to reargue the issue of damages which has already been presented to and decided by the jury. Essentially, the argument is that the jury exercised poor judgment given the evidence put before it. This of course is not a basis for ordering a remittitur. Wochek v. Foley, supra, 193 Conn. 587. The court cannot substitute its judgment for that of the jury wherein there lies some reasonable basis for its decision. Campbell v. Gould, supra, 194 Conn. 40; Weiss v. Bergen, supra, 63 Conn.App. 813.
As evidence that the jury gave an excessive award, the defendants point to the medical bills submitted at trial being less than the amount of economic damages found. The plaintiff has agreed that the purpose in showing the property damage bill was for the purpose of establishing the extent of the impact between the vehicles and not as proof of additional damages. However, the plaintiff points out that the jury could easily have been awarding future lost wages and medical expenses as part of its award of economic damages. The court believes that the position advocated by the plaintiff is the better reasoning in this matter. The jury, not the court, is in the position to give the evidence presented whatever weight it felt appropriate on the issue of damages and to reach a verdict thereon. Smith v. Lefebre, supra, 92 Conn.App. 421; Weiss v. Bergin, supra, 63 Conn.App. 813. The general nature of the verdict and the plaintiff's allegations preclude the court from ordering a remittitur solely on the basis of the match between the amount of the plaintiff's unclaimed property damage and the amount the jury awarded him over and above his medical expenses.
IV CONCLUSION
Based on the evidence presented at trial this court cannot say that the verdict given was without an evidentiary underpinning or that it was the product of partiality, prejudice, mistake or corruption. Margolis v. Kleban Samor, P.C., supra, 275 Conn. 783-84; Johnson v. Chaves, supra, 78 Conn.App. 347.
The motion for remittitur is denied.