No. CV04 4001615
November 10, 2008
MEMORANDUM OF DECISION MOTION TO SET ASIDE VERDICT AS TO DAMAGES ONLY AND FOR ADDITUR
The plaintiff, Maria Silva, has moved that the jury verdict be set aside as to damages only because the damages as awarded by the jury, are inadequate, contrary to law and contrary to the evidence. The plaintiff further moves for an additur to the jury's verdict which was rendered and accepted by the court (Arnold, J.) On June 17, 2008. The plaintiff's motions are filed pursuant to Practice Book § 16-35 and General Statutes §§ 52-216a and 52-228b. The defendants have filed an objection to both the motion to set aside the verdict as to damages and the request for an additur.
Sec. 16-35 reads in relevant part as follows:
Motions in arrest of judgment . . ., motions to set aside a verdict, . . . motions for additur, . . . 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.
Sec. 52-216a. Reads in pertinent part:
[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. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court.
Sec. 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.
This is a personal injury action filed by the plaintiffs Maria Silva and Maria Silva, P.P.A. for her minor daughter Michelle Silva against the defendants Walgreen Company, Walgreen Eastern Company, Inc., and the Walgreen New England Company. On July 20, 2006 the plaintiffs filed an Amended Complaint consisting of four counts. In the first and second counts, Maria Silva alleged negligence and an negligent infliction of emotional distress by the defendants. In the fourth count, Maria Silva alleged a violation of the product liability act pursuant to General Statutes § 52-572m. et seq. In the third count, the minor, Michelle Silva, alleged a bystander emotional distress claim.
52-572m(b) defines a product liability claim as follows:
(b) "Product liability claim" includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. "Product liability claim" shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or non-disclosure, whether negligent or innocent.
The jury trial commenced on June 11, 2008. After the plaintiffs had presented their evidence and rested their respective cases, the court rendered a directed verdict as to the bystander emotional distress claim by Michelle Silva contained in the third count. Subsequently, the plaintiff, Maria Silva, withdrew her product liability claim contained in the fourth count. On June 17, 2008, the jury rendered its verdict on the two remaining counts involving the plaintiff Maria Silva, only. In its verdict, the jury found in favor of the defendant as to Count Two, regarding negligent infliction of emotional distress. As to Count One, alleging negligence, the jury found in favor of the plaintiff and awarded the plaintiff $876.13 for economic damages and zero ($0.00) non-economic damages. The jury further found that the plaintiff was 10% negligent in causing her own injuries. The verdict for $876.13 was accordingly reduced by the sum of $87.61 due to this finding. The net award, thus, becomes $788.52.
The defendants had filed four special defenses alleging comparative/contributory negligence by the plaintiff.
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, 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).
II The Claims and the Evidence CT Page 17720The plaintiff alleged that on or about July 30, 2002 she purchased and picked up a prescription from the defendants' pharmacy located at 2251 Main Street, Bridgeport, Connecticut. The plaintiff believed the prescription she received from the defendants was for a sinus medication which had been prescribed for her by her physician, Dr. Lane. At approximately 1:00 p.m. that day, the plaintiff took one tablet of the medication from the prescription that had been provided to her by the defendants' pharmacy. The plaintiff then proceeded to her place of employment at approximately 2:30 p.m. At 3:30 p.m., while at work, the plaintiff testified that she began to feel ill, with symptoms that included fatigue, dizziness, sweating and a burning in her chest, which became progressively worse as time went on. However, by 8:00 p.m. she was feeling somewhat better.
At approximately 9:00 p.m. that evening, the plaintiff received a phone call at work from her daughter, Michelle Silva, who informed the plaintiff that Michelle had received a telephone call from the defendants' pharmacy. The defendants' pharmacy requested that Michelle Silva inform her mother, Maria Silva, that she had been given the wrong prescription and medication, and that Maria Silva should seek immediate medical attention and care. Michelle Silva thereafter contacted Maria Silva and gave her this information. Michelle Silva also informed her father of these events and he proceeded to Maria Silva's place of employment where he picked her up at approximately 9:30 p.m. and transported her to the Saint Vincent's Medical Center Emergency Room where she arrived at about 10:00 p.m. Maria Silva testified that once she received the call from Michelle regarding the wrong medication, she panicked, as the medication given to her was for treatment of diabetes and not her sinus condition. She stated that she was crying and shaking. The plaintiff was examined and blood tests were taken. She was thereafter discharged approximately two hours later, with instructions to return if her symptoms worsened. She returned home and spent the next day in bed with complaints of fatigue, confusion and fears that she would die from the medication. She claims she missed four days of work and informed Dr. Lane of the incident.
On August 29, 2002, one following the incident she commenced treatment with Dr. Yanopoulos for anxiety. During the course of treatment he prescribed medications for her including Xanax and Zoloft, along with medication for her sinus related problems. She complained of trouble sleeping and frequent nightmares involving the incident of July 30, 2002. Her treatment continued through October 2003, at which time Dr. Yanapoulos referred her to the Waynik Group, where she commenced treatment with Dr. Zucker, a psychiatrist and a therapist, Gayle Hoffman. The plaintiff was now complaining of memory problems, as well as, anxiety. During the trial the deposition testimony of Dr. Zucker and Gayle Hoffman was read to the jury. Dr. Zucker continued her on Zoloft and a sleep medication and diagnosed the plaintiff as suffering from post traumatic stress disorder. She now complained of memory problems and marital problems that were caused by the incident.
Upon cross-examination by defense counsel the plaintiff responded that she could not recall if at any time within ten years prior to the incident, she had been treated by a physician for depression. During two depositions of the plaintiff, which occurred in August 2005 and June 2008, the plaintiff had denied she had any past psychiatric treatment or had been prescribed psychiatric medications prior to the date of the incident. However, the defense produced prescription records for the plaintiff from Walgreen's that, in fact, the plaintiff had been prescribed Clonazapin and Zoloft by Dr. Alexander, psychiatrist during 1998 and 1999. She also had treated with Dr. Sansamino a psychiatrist with had prescribed Zoloft, Lithium and Clonazapin. When confronted with these prescription records, the plaintiff admitted seeing these psychiatrists, but denied knowing they were psychiatrists. She stated that she was referred to these doctors, by a Dr. Wasserman who had been counseling her for her marital problems. Her medical records from Dr. Lane indicated that the plaintiff had been prescribed sixty-seven medications since 2002.
On August 28, 2007, the plaintiff was treated by Dr. Yanapolous and he prescribed her Cymbalta, an anti-depressant and Ambien for her sleep disorder. On August 30, 2007, she saw Dr. Zucker and requested additional Ambien and anti-depressant medication. At that time she did not inform Dr. Zucker of her prescriptions from Dr. Yanapolous, two days earlier.
Dr. Douglas Berv was called as an expert witness by the defendants. Dr. Berv is a board certified psychiatrist from the Yale University Medical School, who, in addition, has a private practice numbering approximately 800 active patients. Dr. Berv' conducted a records review of the plaintiff's medical records and prescription medication records. He disagreed with Dr. Zucker's diagnosis that the plaintiff was suffering from post traumatic stress syndrome or that she ever had this disorder, as a result of the subject incident. He stated that her hospital emergency room records from the evening of the incident indicated that her lab results were normal and that her glucose levels were normal. He testified that the plaintiff had told hospital personnel that she was "feeling fine" and that her symptoms were "gone." There were no entries in the hospital records mentioning any complaints of anxiety or stress. He stated that a review of the plaintiff's medical records and prescription drug use records from the date of the incident to the present time, did not evidence several of the necessary criteria for a diagnosis of post traumatic stress syndrome.
The jury returned its verdict on Count One as to negligence, awarding the plaintiff the sum of $876.13 in economic damages only on June 17, 2008 and additionally found the plaintiff was 10% negligent in causing her own injuries. When the verdict was initially read to the court and the parties, the court did not order the verdicts accepted and recorded. The court returned the jury to the deliberation room. After consultation with the parties, the jury was brought back into the courtroom. The court then explained to the jury that by awarding the plaintiff some money on her claim for economic damages, which included claims for medical treatment and lost wages, it might be considered inconsistent for the jury to refuse to award non-economic damages for pain, suffering and a loss of the enjoyment of life's activities. The court directed the jury to return to deliberations to reconsider the category of non-economic damages, even if the jury determined that it wished to award only a nominal sum. See, Monti v. Wenkert, 287 Conn. 101, 117-18, 947 A.2d 261 (2008); see also, General Statutes § 52-223. The court informed the jury that it was not instructing the jury to award non-economic damages, but that it was only instructing the jury to review its position regarding non-economic damages. After a short time passed, the jury announced it had once again reached a verdict. The jury, again refused to award any non-economic damages to the plaintiff. The court then ordered the verdicts accepted and recorded. The plaintiff thereafter filed the subject motions.
The jury found for the defendant as to Count Two alleging negligent infliction of emotional distress.
Neither party submitted any requests for interrogatories relating to claims of liability or damages. The plaintiff submitted claims for economic damages consisting of medical bills and medication bills totaling $5,422.02 and lost wages totaling $504.00. The parties also consented to the use of the court's verdict forms. The plaintiff's verdict form contained one line each for an entry regarding economic damages and noneconomic damages and a line for the total of any such damages awarded. The plaintiff's verdict for also requested that the jury list the percentage of negligence if any, attributable to the plaintiff and the defendant, with a total of 100% of negligence being necessary. As the parties agreed not to submit interrogatories to the jury. They were, therefore, seeking a general verdict.
General Statutes § 52-223 provides:
The court may, if it judges the jury has mistaken the evidence in the action and has brought in a verdict contrary to the evidence, or has brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for the same reason may return them to a third consideration. The jury shall not be returned for further consideration after a third consideration.
The plaintiff that the jury's award on no non-economic damages is grossly inadequate with regards to the plaintiff's loss. The plaintiff argues that the award is "obviously" against the evidence and was "clearly" based on the jury's consideration of improper factors or mistake, which is "evident" in the jury's award. The plaintiff argues that the jury awarded economic damages for medical treatment and lost wages, and therefore, the failure to award any non-economic damages is contrary to law.
"[T]he role of the trial court on a motion to set aside the jury's verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did." (Internal quotation marks omitted.) 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). "A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear . . . A verdict will be deemed intelligible if it clearly manifests the intent of the jury." (Citation omitted; internal quotation marks omitted.) Tisdale v. Riverside Cemetery Assn., 78 Conn.App. 250, 257, 826 A.2d 232, cert. denied, 266 Conn. 909, 832 A.2d 74 (2003).
"[T]he amount of a damage award is a matter peculiarly within the province of the trier of fact . . . and [i]f, on the evidence, the jury could reasonably have decided as [it] did, [the reviewing court] will not find error in the trial court's acceptance of the verdict . . . The trial court's decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Moreover, the trial judge can gauge the tenor of the trial . . . and can detect those factors, if any, that could improperly have influenced the jury . . . Our task is to determine whether the total damages awarded falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case." (Citation omitted; internal quotation marks omitted.) Hughes v. Lamay, 89 Conn.App. 378, 384, 873 A.2d 1055, cert. denied, 275 Conn. 922, 883 A.2d 1244 (2005).
"[T]he 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. 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 . . ." Lombardi v. Cobb, 99 Conn.App. 705, 708, 915 A.2d 911 (2007).
"The evidential underpinnings of the verdict itself must be examined . . . [I]f 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 work [its] will." (Citations omitted; internal quotation marks omitted.) Wichers v. Hatch, supra, 252 Conn. 188-89.
"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 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). Lombardi v. Cobb, supra, 99 Conn.App. 705, 708-09.
"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)." Id. at 708-09.
In order to determine if an additur is justified in the present case, the court must analyze the original jury award of economic damages in the amount of $876.13 and what that award represents. There is no doubt that the jury rejected the vast majority of medical claims and claims as to pain, suffering and anxiety that were made by the plaintiff and only awarded a small part of the plaintiff's claim for economic damages. There was conflicting evidence as to the plaintiff's injuries and the extent of any pain and suffering. There was a dispute as to the presence of and the extent of any preexisting psychiatric or psychological conditions that the plaintiff may have been suffering from prior to this incident. The plaintiff adamantly denied the presence of any such pre-existing conditions other than marital problems. Other than the presentment of her prior prescription medication history for anti-depressants, the defendant offered no testimony or evidence as to what type of conditions necessitated these medications. From the evidence the court cannot make a finding that sufficient evidence was presented regarding the presence of any pre-existing psychiatric or psychological condition manifesting symptoms similar to those that the plaintiff alleges in this action. However, her denials in prior deposition testimony and at trial regarding previous treatment, other than marriage counseling, when confronted with medication prescriptions, placed her credibility in question regarding the extent of her injuries, pain and suffering as related to the actions of these defendants. In general, the court did not find the plaintiff to be a credible witness, either on the question of long-term or extensive damages.
Both parties acknowledge that the sum of $876.13 apparently represented the medical bill for emergency room treatment at the Saint Vincent's Medical Center on July 30, 2002, plus an amount equivalent to four days lost wages. This is because of the mathematical consistency between those numbers. The defendant argues that despite this mathematical consistency, there is no way to confirm this, as there were no interrogatories providing a breakdown of which claimed economic damages were actually awarded. The court concedes that this is true. However, it is also true that if the jury was not awarding a sum that included lost wages, it was awarding medical costs over and beyond those incurred at the emergency room on July 30, 2002, for treatments on some subsequent date, as the jury's award of economic damages, exceeds the amount of the emergency room bill. Under either analysis, the jury acknowledged that the plaintiff was suffering sufficiently to justify an award of lost wages for four days, or was suffering enough to justify medical treatment which was additional to that treatment rendered in the emergency room for injuries that lasted longer than several hours on July 30, 2002. 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 and/or lost wages which is indicative of at least minimal pain, suffering and anxiety. The jury, however, was not obliged to believe this injury caused all of the pain and suffering alleged by the plaintiff. See, Vajda v. Tusla, supra, 214 Conn. 523, 538; Lidman v. Nugent, supra, 59 Conn.App. 43.
In finding that the plaintiff, by virtue of this incident, had suffered an injury requiring some medical treatment, the purpose of which was to alleviate pain and to improve functioning and possibly, lost wages, the jury necessarily found that she had experienced pain and decreased functioning for a short period of time. Accordingly, the jury should have awarded some non-economic damages to compensate her for that pain and decreased functioning.
Accordingly, the court grants the motion for an additur and awards $3,000 in non-economic damages, less ten percent (10%) in accordance with the jury's finding of comparative negligence on the part of the plaintiff. This results in a total net additur of $2,700.00. The verdict shall be set aside unless within thirty (30) days from the filing of this decision the defendant shall file with the clerk an additur in the amount of $2,700.00 in non-economic damages. This additur shall be added to the original net award of $788.52 for a total award of $3,488.52. If the additur is not filed within that time, or filed and not accepted by the plaintiff the verdict is hereby set aside and a new trial is ordered limited to the issue of damages.