No. CV06 5004457 S
November 13, 2009
MEMORANDUM OF DECISION MOTION TO SET ASIDE VERDICT AND NEW TRIAL AND MOTION FOR ADDITUR
This matter results from a motor vehicle accident which occurred in Bridgeport, Connecticut on December 9, 2004. The plaintiff alleged that the defendant Manuel Jesus Puma was operating a vehicle owned by the defendant Angel Paul Mendoza Paguay, when said vehicle which was approaching the plaintiff's vehicle, crossed over into the plaintiff's line of traffic, striking the plaintiff's vehicle head-on, causing the plaintiff to sustain personal injuries. At the time of the collision, the plaintiff was stopped at a red light at an intersection. The plaintiff alleged that the defendant Puma was negligent in various ways and that her injuries and damages, as set forth in her complaint, were a direct and proximate cause of the defendant Puma's alleged negligent operation of the vehicle owned by Paguay. In response to these allegations of negligence, the defendants denied negligence as alleged by the plaintiff. The defendants did not file any special defenses alleging comparative negligence by the plaintiff.
The court subsequently granted the plaintiff's motion to cite in the Liberty Mutual Insurance Company as a party defendant to the action. The plaintiff alleged that the defendants Puma and Paguay might be uninsured and/or underinsured. Liberty Mutual was the plaintiff's insurance carrier at the time of the accident. Liberty Mutual filed an answer and special defenses on June 26, 2008. The special defenses set forth that Liberty: (1) had a policy limit of $100,000 to which the plaintiff's recovery was limited; (2) was entitled to a set off of sums collected from the tortfeasor; (3) would not be obligated to pay any funds until the plaintiff exhausted the tortfeasor's policy limit; was entitled to collateral source and no-fault payments made to the plaintiff; and was entitled to a coverage reduction from any workers' compensation or liability benefits paid to the plaintiff resulting from this claim.
The jury trial commenced on June 5, 2009. The court heard testimony from the plaintiff, the plaintiff's co-worker Holly Clancy and the video-taped deposition of Dr. Eric Garver. Each of these witnesses were presented by the plaintiff and were cross-examined by the defendants. The defendants presented no witnesses. Following the conclusion of evidence and the final arguments of counsel, the court gave its instructions to the jury. The court submitted jury forms to the jury, but no party requested jury interrogatories and, therefore, none were submitted to the jury for its consideration and responses. On June 11, 2009, the jury entered a verdict in favor of the plaintiff, Massiah, as against the defendants, Puma and Paguay. The jury awarded the plaintiff the sum of $2,275.46 in past economic damages. However, the jury did not award any damages to the plaintiff for future economic damages or non-economic damages. The court accepted the verdict. The plaintiff had claimed past economic damages totaling $42,494.41. The plaintiff claimed permanent injuries and that she would incur future medical treatment costs of an undetermined amount, that could exceed $200,000. In addition to her claims of permanent injuries, the plaintiff sought an award of noneconomic damages for physical and mental pain and suffering and limitations on her life's daily activities. The plaintiff had a life expectancy at the time of trial of 29.7 years.
The plaintiff's verdict form which was submitted to the jury reads as follows:
In this case the jury finds the issues for the plaintiff, Deborah A. Massiah, as against the defendants Manuel Jesus Puma and Angel Paul Mendoza Paguay, as follows:
1. Past Economic Damages $________________________
2. Future Economic Damages $_______________________
3. Non-Economic Damages $_______________________
4. Total Damages Lines 1, 2 and 3. $_____________________
The plaintiff requests that the court set aside the jury verdict rendered on June 11, 2009 and order a new trial. In the alternative, the plaintiff seeks an award of an additur. The plaintiff argues that the jury's failure to award any non-economic damages, while awarding economic damages in an amount of $2,275.46 shocks the sense of justice and compels the conclusion that the jury was influenced by partiality, prejudice, mistake or ignorance. The plaintiff claims that the verdict is inadequate. The defendant objects to both the motion to set aside the verdict and the motion for additur. The defendant argues that the verdict was supported by the evidence adduced at trial. The defendant also argues that the verdict does not shock the conscience and the jury's award of damages was not inadequate. Oral argument on the motion to set aside the verdict and new trial and the motion for additur was heard on July 20, 2009.
I The 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, CT Page 18521 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 (1990); Lindman v. Nugent, 59 Conn.App. 43 (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 (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).
Our Supreme Court has articulated a special standard for the review of verdicts like the one at issue where a plaintiff did not receive any awards for non-economic damages, to determine whether inconsistency renders the verdict legally inadequate. In Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000), the Supreme Court held that trial courts, when confronted with jury verdicts awarding economic damages and zero non-economic damages, must determine on a case-by-case basis whether a verdict is adequate as a matter of law. Schroeder v. Triangulum Associates, 259 Conn. 325, 330, 789 A.2d 459 (2002). Under Wichers, supra, the jury's decision to award economic damages and zero non-economic 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. Id. The evidential underpinnings of the verdict itself must be examined, albeit with deference to the jury's findings. Wichers v. Hatch, supra, 189. If there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury verdict stand. Id.; see also, Fillechia v. Nationwide Property Casualty Ins., 92 Conn.App. 481, 886 A.2d 461 (2005).
The plaintiff is a case manager for Prudential Financial. On December 9, 2004, she and her two co-workers, Peggy Golger and Holly Clancy, left work and proceeded to a Christmas party. While stopped at a traffic light at the intersection of Park Avenue and Maplewood Avenue in Bridgeport, Connecticut, the defendants' auto came through the red light, crossing over the center lane and struck the plaintiff's car on the front driver's side. The plaintiff testified that the impact of the vehicles was "hard" and jerked her forward and back in her seat. Although the defendants' car had to be towed from the scene, the plaintiff's auto was operational. After giving a statement to the investigating police officer and refusing medical attention, the plaintiff and her co-workers proceeded to the Christmas party in Milford, Connecticut. While at the party, the plaintiff stated that she began to experience pain in her shoulder, which radiated to her neck area. After staying at the party for approximately one hour, the plaintiff left the party and returned home.
The plaintiff testified she still drives the same vehicle that was involved in this accident.
When she experienced soreness the next day, she saw Dr. Jeyanthi and complained of shoulder pain. Dr. Jeyanthi prescribed medication for pain relief. On or about January 6, 2005, on the advice of Dr. Jeyanthi, she commenced a course of treatment consisting of physical therapy, at Pro Care Physical Therapy, which lasted several months. A review of those physical therapy notes reveals that the plaintiff initially complained of posterior shoulder pain with radiation of the pain in her right arm and hand, along with sleep problems associated with this pain. The initial evaluation by the therapist notes spasm in the right scapula area with no tenderness on palpation to the cervical area. The ensuing physical therapy notes indicate improvement with decreasing pain and soreness through the visit of March 4, 2005.
Dr. Jeyanthi prescribed flexeril and Tylenol 3.
On March 4, 2005 she visited Dr. Wilchinsky, an orthopedic surgeon, who continued medications and referred her for additional physical therapy. At this initial examination by Dr. Wilchinsky, his impression was that the plaintiff was suffering from a shoulder sprain with cervical radiculopathy. Dr.Wilchinsky also ordered x-rays which were normal for the shoulder and neck, negative. Dr. Wilchinsky ordered an MRI exam for March 8, 2005. The results of this MRI exam revealed no disk herniations and some cervical degenerative disk disease. The plaintiff then returned for another course of physical therapy treatments at Pro Care, where the plaintiff noted significant improvement, with mild tenderness and soreness. Despite notations that the plaintiff was doing well, on April 21, 2005, she reported to the therapist that she was now experiencing numbness and tingling in her right arm and right fingers. Subsequent therapy notes through May 2, 2005, indicates the plaintiff was doing well and making excellent gains, with no mention of any numbness or tingling. On May 5, 2005, the plaintiff renewed her complaints of numbness and tingling in her right hand.
Subsequently, in May 2005, Dr. Wichinsky referred the plaintiff to Dr. Sood for pain management treatment. On May 19, 2005, Dr. Sood noted tenderness in the cervical spine and the trapezius muscles. He thereafter proceeded to give the plaintiff injections to her shoulder and her spine in an attempt to alleviate pain. The plaintiff testified that the injections gave her only temporary relief. The plaintiff also began physical therapy at the Northeast Physical Therapy Center. The plaintiff had a second MRI exam on February 9, 2007, which was unremarkable and a third MRI exam on May 25, 2008, which was also unremarkable. Her last treatments with Dr. Sood was in July 2008. In total, the plaintiff received six spinal injections, in addition to trigger point injections in her shoulder area. Dr. Sood noted that the plaintiff had mild degenerative disk disease in the C3 and C4 areas, which corresponded to the plaintiff's complaints of pain. Her last treatments with Dr. Sood was in July 2008.
Following her treatment with Dr. Sood, on the advice of legal counsel, she began treatment with Dr. Eric Garver at the Orthopedic Specialty Group. Dr. Garver then referred her to Dr. Safir at the Orthopedic Specialty Group. She treated with Dr. Safir as recently as April 2009. Dr. Safir diagnosed the plaintiff with persistent cervicalgia and myofascial spasm. He noted an underlying mild cervical disk disorder and persistent parathesia in the plaintiff's neck and arm. Another MRI exam on November 29, 2008, ruled out a rotator cuff tear. On January 29, 2009, Dr. Safir concluded that the plaintiff had reached the point of maximum improvement.
Testifying by way of videotape, Dr. Eric Garver stated that he first treated the plaintiff on May 13, 2008, for an injury to her neck and arm. He diagnosed the plaintiff's condition as "chronic" and permanent. While his written report noted a "history of disc pathology," he admitted that while he observed symptoms of a non-specific disc pathology, that in fact, there was only a possibility of a disc pathology history and not a probability. He testified during cross-examination that there were no objective findings of any disc injuries to the cervical area. He stated it is a pain management condition. He recommended continuing future treatment consisting of medications, therapies and additional pain injections, including epidural injections. Dr. Garver, however, conceded that he was not a medical specialist in pain management treatments. His final diagnosis was a chronic cervical strain and chronic pain syndrome. While noting radiating pain, he stated that there was no disc herniation and no cervical nerve root damage. He related the injuries to the motor vehicle accident of December 9, 2004.
On cross examination Dr. Garver, who has been fully retired for one year, stated that he saw the plaintiff on three occasions, the last visit being June 25, 2008. While confirming his assessment that future medical treatment would be necessary, he was uncertain as to the best course of such treatments other than physical therapy. He noted that there is a limit on the number of injections that can be administered to the plaintiff and was uncertain as to the probability of the use of an implanted device to alleviate pain. Dr. Garver, at his deposition, for the first time assigned a permanent partial impairment rating of 7% to 10% to the plaintiff's cervical area. He admits that he never spoke to any of the plaintiff's other treating physicians. Dr. Garver is the sole treating physician to assign a permanent partial disability rating. It is noted that while Dr. Safir found in late January 2009, that the plaintiff had reached maximum improvement, he did not assign any permanency rating to the plaintiff's injuries. The plaintiff bases her claim for future medical economic damages primarily on Dr. Garver's testimony.
The plaintiff, herself, testified that her injuries interfere with her ability to play tennis, swimming, driving, her household duties and her ability to participate in activities with her children. She also testified that her injuries affect her ability to sleep, and that sitting for long periods of time at her employment creates pain in her neck and shoulder areas.
The plaintiff argues that the undisputed evidence was that the plaintiff incurred economic damages in the amount of $42,494.41, and the defendant only took issue with the medical bills incurred by the plaintiff after the plaintiff went to Dr. Garver at the Orthopedic Specialty Group. Therefore, the plaintiff concludes that the defendant essentially acknowledged the initial $30,000 in medical costs. The plaintiff argues that the defendant offered no evidence to contest the medical bills and accordingly, it is inconsistent for the jury to find that the plaintiff was not entitled to compensation for pain and suffering. Additionally, the plaintiff claims that the evidence clearly established that the plaintiff sustained injuries to her neck and right shoulder resulting in a permanent partial disability.
The defendants argue that they did, in fact, elicit testimony and evidence that the plaintiff was not suffering from any pain or discomfort at the accident scene. The plaintiff, herself, testified that she had no pain until several hours after the accident while attending the Christmas party. She had one visit with her primary care physician the day after the accident, and thereafter, sought no additional treatment for approximately one month. There was no claim for any lost wages. The physical therapy treatments that began at that time focused on her shoulder, as opposed to her cervical area. The defense also brought forth evidence that the shoulder complaints were related to something other than the motor vehicle accident because of the plaintiff's active involvement in physical activities and recreation. Diagnostic testing revealed tendonitis in her shoulder, while diagnostic testing of her cervical area was negative. There was also evidence that the plaintiff had been involved in prior motor vehicle accidents. There were also time gaps in the plaintiff's medical treatment, while the plaintiff treated for other ailments, such as gastrointestinal problems. The defendants conclude that the jury could reasonably believe that her shoulder complaints and injuries were related to events other than this accident.
The plaintiff testified that she had been involved in two prior motor vehicle accidents within two to three years of the subject accident. She testified she sustained no injuries and made no claims and filed no legal actions. The defendants, while calling attention to these two prior accidents, offered no evidence that these accidents resulted in pre-existing injuries, similar in nature to the injuries claimed in this case.
The plaintiff testified that she was an avid tennis player and swimmer prior to this accident. She also enjoyed baking, which involved kneading dough by hand. She denied any prior shoulder problems.
Regarding Dr. Garver, the defendants elicited testimony regarding the relationship between the plaintiff's attorney's office and Dr. Garver. See. Smith v. Lefebre, 92 Conn.App. 417, 424, 885 A.2d 1232 (2005). The defense argued that this relationship affected the credibility of Dr. Garver's opinions, and the jury was free to discredit all of Dr. Garver's testimony. Dr. Garver was the only witness to testify as to the plaintiff's permanent impairment ratings and the need for future economic medical damages for which the plaintiff requested an amount in excess of $200,000. If Dr. Garver's testimony was discredited, then the jury was free to reject the plaintiff's claims of permanent injuries, as well as, the need for future medical treatments and future pain and suffering. While the jury was instructed that the arguments of counsel are not evidence, the jury was free to weigh the arguments only if the recollections of the lawyers as to the evidence presented agreed with that of the jury. The jury was instructed that it's the jury's recollection of the facts and evidence that should have weight in jury's deliberations.
The court also instructed the jury as follows:
[T]he statements made by the lawyers, including statements made both in their opening statements and in their closing arguments are not evidence . . . I instruct you that what any of the lawyers may have said in their respective summaries to you as to the facts or evidence in the case should have weight with you only if their recollection agrees with your own; otherwise, it's your own recollection of the facts and evidence that should have weight in your deliberations.
Lastly, the defendants conclude that by awarding only a small fraction of the plaintiff's medical bills for past treatment, it is obvious that the jury did not believe that all the treatments and bills for treatments incurred by the plaintiff were the proximate result of this accident and negligence by the defendants. The fact that the jury awarded only a small fraction of the medical bills submitted by the plaintiff, thus, is not inconsistent with the failure of the jury to award any non-economic damages.
In considering the jury's decision to award only a small portion of the medical bills and to refuse to award any non-economic damages the court must review the evidence to determine if there is a reasonable basis for the jury's verdict. In doing so the court acknowledges that the credibility of the witnesses and the weight to be accorded to their testimony lie within the province of the jury. Childs v. Bainer, 235 Conn. 107, 112, 663 A.2d 398 (1995). "The jury is entrusted with the choice of which evidence is more credible and what effect it is to be given." Birgel v. Heintz, 163 Conn. 23, 301 A.2d 249 (1972). "Whether [a witness'] testimony [is] believable [is] a question solely for the jury. It is . . . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses." (Internal quotation marks omitted.) State v. Smith, 99 Conn.App. 116, 136, 912 A.2d 1080 (2007). The court instructed the jury regarding its duty to assess the credibility of all witnesses and that the jury was free to accept or reject some or all of a witness's testimony, including the testimony of any expert witness.
In addition to reviewing the testimony of the various witnesses and the trial exhibits, the court has reviewed cases in which it was determined that it was not appropriate to set aside the verdict and to order an additur when 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).
The court has also reviewed cases where it was appropriate to set aside the verdict and order and additur because the jury could not have reasonably 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); Lombardi v. Cobb, 99 Conn.App. 705, 709, 915 A.2d 911 (2007) (jury awarded the plaintiff the entire amount of medical expenses and lost wages that she had claimed but did not award any non-economic damages); 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 pre-existing condition), cert. denied, 277 Conn. 907, 894 A.2d 987 (2006); Snell v. Beamon, 82 Conn.App. 141, 146-47 (jury's failure to award non-economic damages 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).
The court finds there was sufficient conflicting evidence as to the nature and extent of the plaintiff's injuries; the cause of said injuries; and as to the severity and duration of pain allegedly suffered by the plaintiff, as well as, any need for future medical care. The fact that the jury rejected the plaintiff's claims of long-term medical care and substantial injuries and damages claims, does not negate the fact that by their award, the jury acknowledged the necessity of some medical care or diagnostic testing. The jury, however, was not obliged to believe that any injury proximately caused by the defendants resulted in the pain and suffering alleged by the plaintiff. See, Lidman v. Nugent, 59 Conn.App. 43, 46, 755 A.2d 378 (2000); see also Vajda v. Tusla, 214 Conn. 523, 538, 572 A.2d 998 (1990).
In Parasco v. Aetna Casualty Surety Co., 48 Conn.App. 671, 676, 712 A.2d 433 (1998), the court stated, "[t]he jury was not compelled to accept the plaintiff's claims as to the severity of her injuries, no matter how persuasive that evidence might have seemed to the trial court." See Hackling v. Casbro Construction of Rhode Island, 67 Conn.App. 286, 786 A.2d 1214 (2001). It is not the function of this or any other court to sit as the seventh juror when reviewing the sufficiency of the evidence considered by a jury. Purzycki v. Fairfield, 44 Conn.App. 359, 362, 689 A.2d 504 1997), rev'd on other grounds, 244 Conn. 101, 708 A.2d 937 (1998). If the jury could reasonably have reached its conclusion, the verdict must stand, even if this court might disagree with it. Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006). "[I]t is well established that, [i]n the absence of a showing that the jury failed or declined to follow the court's instructions, we presume that it heeded them." (Internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 828, 882 A.2d 604 (2005). No such showing has been made here.
Because of the lack of jury interrogatories, it is unclear precisely which medical bills the jury awarded when it determined the plaintiff was to receive economic damages totaling $2,275.46. It becomes impossible for the court to speculate whether these awarded damages were for active medical treatments for which pain and suffering may logically be associated, or if the award was for completed diagnostic tests, for which the findings were unremarkable or normal. "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). What is clear to the court, is that the jury rejected the vast amount of bills submitted by the plaintiff for medical treatment. This is a clear indication that the jury was not persuaded that the rejected bills for medical care were for necessary treatment, or in the alternative, the bills were for injuries the plaintiff may have had, but were not casually related to the negligence of the defendants. The decision of the jury was reasonable and should not be disturbed. Accordingly, the plaintiff's motions to set aside the verdict and for an additur are both denied.