No. CV 06 5005713
November 26, 2008
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT AND ADDITUR
The plaintiff Ruth Greenblatt was the operator of a motor vehicle on the interstate highway on October 18, 2004. Her vehicle was struck from behind by a vehicle driven by the defendant Nathan Antoszek and owned by the defendant Lewko Antoszek. The plaintiff brought suit against the defendants seeking to recover damages for the personal injuries she claimed to have suffered in the accident. The defendants admitted responsibility for causing the accident but contested the nature and extent of the plaintiff's claimed injuries in light of pre-existing complaints and subsequent surgical procedures.
The plaintiff's case was tried to a jury and on July 28, 2008 the jury rendered a plaintiff's verdict awarding the plaintiff economic damages of $10,932, $10,000 of non-economic damages for a total verdict of $20,932. The plaintiff moves to set aside the jury's verdict claiming the verdict was inadequate as a matter of law, for an additur and in the alternative for a new trial.
Specifically the plaintiff argues that the verdict with regard to both economic and non-economic damages was inadequate and against the great weight of the medical evidence. Specifically, with regard to the economic damages the plaintiff notes that award of damages excludes the bills of Gaylord Physical Therapy ($1,645) and Dr. John O'Brien ($1,244.12). The plaintiff notes that Dr. O'Brien testified that his treatment and the ordered physical therapy were medically necessary and the treatment was required because of injuries suffered in the accident. At oral argument the plaintiff made the additional argument that as a minimum the award of economic damages should be adjusted because there was a scriveners error in an exhibit summarizing the medical bills the plaintiff incurred as a result of this accident.
The defendants claim that the jury's verdict is adequately supported by the evidence and that the jury could reasonably and legally have reached their conclusion. The defendants note that they have a right to have issues of fact decided by a jury.
The following evidence was presented at trial. In addition to the testimony of the plaintiff, there was also testimony from Dr. John O'Brien, Dr. Lewis Bader, Dr. Andrew Bazos, Dr. Sonia Gordon-Dole and Dr. John Elefteriades.
Standard of Review
Trial courts are frequently presented with post-trial motions challenging the adequacy of a jury verdict. The seminal case of Wichers v. Hatch, 252 Conn. 174 188, 745 A.2d 789 (2000), provides guidance to the trial court. In Wichers the Supreme Court overruled prior precedent which held that a verdict in a personal injury case which awarded the plaintiff economic damages for medical treatment but zero non-economic damages was per se inadequate. A trial court in reviewing a jury's verdict is constrained by several principles. "The right to a jury trial is fundamental in our judicial system, and . . . that the right 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. Because in setting aside the verdict, the trial court deprives the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, our role generally is to examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion." Internal citations omitted, Wichers supra, at 188. "(T)he 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 . . ." Witchers, supra, 187-88. "(T)he 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." Witchers, supra 188-89.
In Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), the court held that an award limited to nominal or special damages necessarily and logically required an award of non-economic damages, and that, therefore, an award limited to economic damages is inadequate as a matter of law and should be set aside.
In Lombardi v. Cobb, 99 Conn.App. 705, 708-09 (2007), the court surveyed cases addressing these issues. "In cases in which it was appropriate to set aside the verdict and to order an additur, the jury reasonably could not have declined to award non-economic damages. See, e.g., Schroeder v. Triangulum Associates, 259 Conn. 325, 332-34, 789 A.2d 459 (2002) (jury inconsistently found defendant liable for plaintiff's surgery expenses but not liable for pain attendant to that surgery and clearly did not credit evidence of plaintiff's unrelated injuries); Fileccia v, Nationwide Property Casualty Ins. Co., 92 Conn.App. 481, 488-89, 886 A.2d 461 (2005) (jury necessarily found plaintiff had experienced pain, and there was no evidence plaintiff had preexisting condition), cert. denied, 277 Conn. 907, 894 A.2d 987 (2006); Snell v. Beamon, supra, 82 Conn.App. 146-47 (jury's failure to award non-economic damages Page 709 palpably against evidence); Elliott v. Larson, 81 Conn.App. 468, 477, 840 A.2d 59 (2004) (jury necessarily found plaintiff suffered pain and could not work). In cases in which it was not appropriate to set aside the verdict and to order an additur, the jury reasonably could have chosen not to award non-economic damages. See, e.g., Medes v. Geico Corp., 97 Conn.App. 630, 638-39, 905 A.2d 1249 (conflicting evidence as to extent of injuries and their effect on plaintiffs' daily lives), cert. denied, 280 Conn. 940, 912 A.2d 476 (2006); Smith v. Lefebre, 92 Conn.App. 417, 423-27, 885 A.2d 1232 (2005) (conflicting evidence as to nature and extent of injuries); Turner v. Pascarelli, 88 Conn.App. 720, 728-31, 871 A.2d 1044 (2005) (conflicting evidence as to severity and duration of pain and extent to which plaintiff recovered from prior injuries); Schettino v. Labarba, 82 Conn.App. 445, 449-50, 844 A.2d 923 (2004) (conflicting evidence as to cause of injuries).
Salient facts in this case involve medical evidence of the plaintiff's treatment for back pain prior to the automobile accident of October 18, 2004, the injuries received from the automobile accident of October 18, 2004, and the impact of two surgical procedures (thoracotomies) in the spring and summer of 2005. The thoracotomies were not related to the motor vehicle accident.
The testimony of the medical witnesses was in significant conflict with regard to the sequelae of each of these events. The plaintiff claims that the automobile accident was the primary substantial cause of her herniated thoracic disks and her continuing symtomology. One of the defendant's medical experts challenged the causal link between the automobile collision and the herniations of the thoracic disks. The other defense medical expert attributed all but six weeks of the plaintiff's discomfort post-accident to her preexisting medical complaints or the subsequent surgeries. The defendants' expert challenged the treatment provided by Dr. O'Brien, which commenced in February of 2006, and the physical therapy treatment that he prescribed in March of 2006.
The court will first address the plaintiff's arguments with regard to economic damages in this case. The plaintiff offered her own testimony and the medical testimony of several physicians to describe the medical treatment she received, the reasonableness of the treatment and that the treatment was related to injuries received in the automobile accident. The plaintiff also offered into evidence the bills for those medical services. The medical bills incorporated into trial Exhibit 11. The court allowed the plaintiff to attach to exhibit 11 a summary page that identified the medical service provider and the amount that the plaintiff claimed as special damages. The plaintiff did not include in this summary a bill for an MRI of the thoracic spine that was ordered by Dr. Joanne Foodim and performed at Temple Radiology on February 4, 2005. The bill for this service was $1,074. Specifically the charges for the MRI of the thoracic spine performed shortly after the accident.
The plaintiff claims that the Temple Radiology bill should be added to the awarded economic damages. The plaintiff argues that the jury awarded all of the plaintiff's claimed economic damages except for the billing of Physical Medicine and Rehabilitation (Dr. John O'Brien) ($1,645) and the physical therapy ordered by Dr. O'Brien at the Gaylord Hospital ($1,244.12). Dr. O'Brien started treating the plaintiff in February of 2006, fifteen months after the accident. She argues therefore that the jury did not accept the testimony of Dr. O'Brien that his treatment was related to injuries the plaintiff received in the automobile accident but that any medical charges related to the thoracic spine incurred prior to February of 2006 should be included in the award of economic damages.
It appears that the jury, because of the error in the exhibit summary did not include the Temple Radiology bill in its award of economic damages. It is significant for the court that this testing was ordered by Dr. Foodim, a physician whose bills were awarded by the jury as being medically reasonable and related to the accident. This diagnostic testing was ordered within three and one-half months of the automobile accident. It is also significant that this testing was ordered prior to the plaintiff undergoing the subsequent thoracic surgeries. The court finds that the jury's award of economic damages, which does not include charges for an MRI obtained shortly after the accident is so clearly against the weight of the evidence in this case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case. The award of economic damages ought to be increased in the amount of $1,074, to a total of $12,006.
The testimony and the medical records in evidence in this case indicate that prior to the October 2004 motor vehicle accident that the plaintiff had received medical treatment for pain "all along her spine." The emergency room records immediately after the automobile accident document complaints of neck and lumbar back pain and the discharge diagnosis is "cervical, thoracic and lumbar strains." Subsequent to the motor vehicle accident the plaintiff was diagnosed with nodules on her lung. In order to treat the nodules on the lung the plaintiff underwent thoracotomies in April and August of 2005. The nodules and the treatment of the nodules was not related to the motor vehicle accident. Thus the plaintiff, who at the time of trial complained of thoracic disk herniation and mid-thoracic tingling, burning and spasms, had a history of medical treatment for complaints in the back preceding the accident and surgical procedures subsequent to the accident involving the same general area of her body. The plaintiff, and her treating medical witnesses offered testimony, that if accepted by the jury, would delineate and link the claimed treatments and claimed injuries to the accident as opposed to these other conditions. The jury, however, had additional evidence that contradicted the plaintiff's claims. The defendants offered the testimony of Dr. Andrew Bazos. Dr. Bazos reviewed the medical records of the plaintiff and offered testimony that the plaintiff's present complaints were not related to the accident. Further the defendant offered the testimony of Dr. Lewis Bader that the disk herniations in the plaintiff's thoracic spine were not related to the automobile accident.
It is not the function of this court to "sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences herefrom, supports the jury's verdict . . . Moreover, in reviewing the jury verdict, it is well to remember that jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life . . ." (Citation omitted; internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 112-13, 708 A.2d 937 (1998). Stated another way, "[i]f the jury could reasonably have reached its conclusion, the verdict must stand," even if his court disagrees with it. Donner v. Kearse, 234 Conn. 660, 681-82, 662 A.2d 1269 (1995). The court cannot say, given the conflicting testimony in this case that the jury assessment of non-economic damages in the amount of $10,000 shocks the conscience.
Consistent with the foregoing analysis the court grants the plaintiff's Motion to Set Aside the Verdict, Motion for Additur, and Motion for New Trial. The verdict is set aside, and a new trial ordered, unless the Defendants file with the court an additur accepting an addition of $1,074 to the amount of the verdict, as additional economic damages within fifteen days from the date of the filing of this memorandum of decision. In the event the defendants do not accept the additur a new trial is ordered on the issues of damages.