No. CV 08-5017926S
April 29, 2010
MEMORANDUM OF DECISION RE #121 AND #123
This case arises out of a two-car accident that occurred in Milford, CT. The plaintiff was a passenger in a car operated by her husband. The defendant, Melissa Vallee, was the operator of the second car involved in the accident. The case was withdrawn as to the defendant Maria Vallee prior to the submission of the case to the jury for deliberation and verdict.
On February 3, 2010, after several days of trial, the jury returned a verdict for the plaintiff, Myrna Segarra, against the defendant, Melissa Vallee, in the amount of $5,602.60 (five thousand six hundred two dollars and 60 cents). The verdict form noted the jury awarded economic damages of $5,602.60 and non-economic damages of $0 (zero dollars). The verdict was accepted and ordered recorded.
On February 16, 2010 the plaintiff filed a Motion to Set Aside Verdict as to Damages only and for Additur claiming that the verdict, was "inconsistent, against the weight of the evidence and manifestly unjust." The instant motions for set aside and additur were timely filed due to the unusual calendar of legal holidays of February 12 and 15 in 2010 with an intervening weekend.
Plaintiff took no exception to the court's charge on damages and the jury took a copy of the charge into their deliberations. In sum, that portion of the charge that addressed non-economic damages was given without objection or exception from the plaintiff and the jury had the charge to consult during deliberations.
On February 24, 2010 the defendant filed an Objection to the Motion to Set Aside and for Additur.
The Connecticut General Statutes ("CGS") 52-216a and 52-228b authorize the court to set aside an `inadequate' jury verdict. Connecticut Practice Book ("CPB") 16-35 authorizes the court to set aside a verdict and to consider motions for additur. Additionally, the common law authorizes the court to set aside an `inadequate' jury verdict: "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. (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006); see also Edmands v. CUNO, Inc., 277 Conn. 425, 452-53, 892 A.2d 938 (2006); Howard v. MacDonald, 270 Conn. 111, 126-27, 851 A.2d 1142 (2004)." Monti v Wenkert, 287 Conn. 101, 111-12 (2008).
In the instant case the plaintiff argues that the verdict should be set aside because the verdict is internally inconsistent, in that the jury awarded economic damages (expenses for medical care received by the plaintiff following the motor vehicle collision that gave rise to the instant case) but no non-economic damages, that such a verdict is against the weight of the evidence and manifestly unjust.
Recently our Supreme Court described the duty of the trial court when considering the motion to set aside and for additur in a context similar to that presented in the instant case:
Rather than decide that an award of only economic damages is 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. 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. 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. Wichers v Hatch, 252 Conn. 174, 188-89 (2000.)
Examining of the evidence, the court finds that the jury could reasonably have found that the plaintiff failed in her proof on the issue of non-economic damages. The jury could reasonably rely upon evidence found in both the plaintiff's testimony and in plaintiff's medical records as a basis for refusing to award non-economic damages.
The plaintiff testified on direct examination that before the subject accident she had no history of neck pain. On cross-examination the plaintiff acknowledged that she was disabled, from 1989 to the time of trial, by medical conditions including anxiety and fibromyalgia. The latter condition she described as "head to toe pain every day, 24/7." The jury could reasonably infer that the plaintiff experienced disabling pain prior to the subject accident.
The plaintiff also testified that her life's activities were adversely impacted by the subject accident. However, on cross examination the plaintiff admitted that before the accident she was totally disabled from work and following the accident she had developed other health issues, unrelated to the subject accident, which also limited her activities. The jury could reasonably infer that the plaintiff's limitation of life's activities were not causally related to the subject accident either because of the pre-existing disabling medical conditions and/or the other health issues that developed post-accident that also adversely effected the plaintiff's ability to engage and enjoy life's activities.
Plaintiff's trial Exhibit 1, a hospital emergency room report, contained radiographic reports dated 6/24/07 (the accident date), plain films or "x-rays," of the neck and low back. The medical finding for each film was "normal." Thereafter the 10/13/07 Whitney Imaging Report, the MRI report, also part Plaintiff's trial exhibit #1, reads in pertinent part, "mild degenerative changes . . ." together with a series of findings described as "normal." The MRI report does describe some degenerative conditions, but the plaintiff offered no medical evidence to explain those MRI findings or to relate the findings to the subject collision. The plaintiff presented neither medical testimony nor medical reports to describe objective evidence of injury related to the subject accident, though numerous medical reports were offered that contained plaintiff's complaints of pain and treatment apparently responsive to those complaints of pain. In sum, there was no objective evidence of accident related injury described in the plaintiff's radiological reports or medical evidence to explain those reports are confirmatory of objective accident related injury and the jury may have rejected, as self-serving or otherwise without substantial weight, the records of plaintiff's reported subjective complaints of pain.
Further, plaintiff's trial Exhibit 1 contained the 9/13/07 three-page medical report of plaintiff's treating physician, Joseph Balsamo, M.D., that described an "onset of back pain that began approximately three weeks ago." The cross examination highlighted that there had been no notation or treatment of similar low back pain between the date of the subject 6-24-07 accident and the date of the doctor's office note of 9-13-07. Dr. Balsamo's 9/13/07 note, in the HISTORY OF PRESENT ILLNESS section on page 1, states "the pain is described as sharp, knife-like. The severity is marked. The pain severity is rated as 10 on a scale of 1-10. The duration is usually (ed., emphasis added) weeks with each episode. Precipitating factors include bending over. There are associated signs and symptoms . . ." Armed with this medical report, the jury could reasonably infer that the plaintiff's low back pain was not causally related to the subject accident, that her claimed limitations of activities were related to the severe low back pain and that the duration of the low back pain is `usually weeks with each episode' allowed an inference that the patient had more than one episode of disabling low back pain of weeks duration that predated the 9-13-07 medical report.
Lastly, defendant's counsel noted for the jury that the same 9/13/07 medical report, Plaintiff's trial exhibit #1, noted in the review of systems section on page 2, inter alia, "HEAD AND NECK: Normal to inspection and palpation. No erythema, swelling or tenderness. Trachea midline." The jury might reasonably infer a lack of complaint of neck pain and a lack of evidence of any abnormal cervical condition just ten weeks post-accident.
This portion of the medical note, the "normal" radiological findings of x-ray and MRI scan, the HISTORY OF PRESENT ILLNESS section of 9/13/07 described above and the plaintiff's testimony admitting pre-existing disabling conditions resulting in chronic and constant pain from "head to toe" and post-accident medical conditions, unrelated to the subject accident, that limited her life's activities, combine to allow a jury to reasonably conclude that the plaintiff had failed in her burden of proof on the issue of proving by a fair preponderance of evidence that the subject collision had caused injuries and/or losses that merited an award of non-economic damages.
While the statutes, rules of practice and common law empower the trial court to set aside an inadequate verdict, such power is circumscribed by careful consideration and deference to the litigants' constitutional rights to have issues of fact decided by a jury.
Finally, the most notable limitation on the trial court's authority to act pursuant to § 52-216a derives from a litigant's constitutional right to have issues of fact determined by a jury. Mather v. Griffin Hospital, supra, 207 Conn. 138. "The right to a jury trial is fundamental in our judicial system, and this court has said 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." Camp v. Booth, 160 Conn. 10, 13 273 A.2d 714 (1970). Wichers v. Hatch, supra, p. 188.
The court is unable to find that there cannot be, based on the evidentiary record described above, reasonable difference of opinion on issues of fact bearing on non-economic damages among fair-minded people and that the litigants have a constitutional right to have those issues resolved by the jury and not the court.
The plaintiff's reliance on Lombardi v. Cobb, 99 Conn.App 705 (2007), Fileccia v. Nationwide Property and Casualty Ins. Co., 92 Conn.App. 481 (2005) and Schroeder v. Trianjulum Associates, 259 Conn. 325 (2002) as the legal basis for this motion to set aside and for additur is misplaced as each case is evidentially distinguished from the instant matter. While the Appellate Court in Lombardi affirmed the trial court's additur when the jury failed to award non-economic damages, the Appellate Court affirmed the trial judge's evidential determination that the jury could not reasonably have attributed the plaintiff's pain and suffering to any pre-existing medical condition as there was no evidence that the plaintiff had such a condition. As noted above, the examination of the evidential basis in the instant case reveals a reasonable basis for this jury's verdict.
Helpfully, the court in Lombardi, supra, p. 708-09, examined a variety of decisions illuminating the consideration of motions to set aside a jury verdict and additur based on a failure to award non-economic damages concurrently with an award of economic damages:
"It is helpful to survey some of the many cases that have dealt with the issue presented by the defendants' claim (ed., that the trial court erred in granting a motion to set aside the verdict and ordering an additur). 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 noneconomic 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 noneconomic 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). 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 noneconomic 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).
This court is unable to conclude that the jury verdict is internally inconsistent because of an award of economic damages without an award of non-economic damages given the evidence noted above and the reasonable inferences that a jury might draw from that evidence and the effect those inferences could have on the award of non-economic damages.
The plaintiff also claims that the verdict is against the weight of the evidence and manifestly unjust. The factual basis for this argument is the same as was made in connection with the claim of an inconsistent verdict due to a failure to award non-economic damages. The same reasoning appertains and the same result follows.
Wherefore, the plaintiff's February 16, 2010 Motion to Set Aside the Verdict As To Damages Only and For Additur, court docket #121, is denied. The defendant's Objection to the Motion to Set Aside, court docket #123, is sustained.