No. CV 01-0807053
January 26, 2004
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO SET ASIDE VERDICT AND TO GRANT ADDITUR
The plaintiffs, Lucio Tamponi and Thiago Tamponi move that a verdict entered on November 14, 2003 be set aside as to damages only, and further, that the Court grant an additur pursuant to Connecticut General Statutes § 52-228b, because of the failure of the jury to award non-economic damages after the jury had awarded economic damages.
The facts are as follows. The plaintiff, Lucio Tamponi, Jr., was the operator of an automobile on Hillside Avenue in Hartford on October 16, 1999 and plaintiff Thiago Tamponi was a passenger. At that time and place, the car in which the plaintiffs were driver and passenger was struck from behind by a vehicle purportedly driven by defendant Jorge Vivar. However, that proved to be a mistaken identification, and the plaintiffs proceeded against the defendant Windsor Insurance Co. which had provided uninsured motorist coverage for the vehicle involved in the accident. The damage done to the plaintiff's vehicle was slight.
The plaintiff, Lucio Tamponi, is twenty-five years old and at the time of the accident was employed as a mechanic at Speedy Muffler. He was taken to the Hartford Hospital emergency room where he was discharged with a prescription for Naprosyn. A few days after the accident he went to the Hartford Chiropractic Group, P.C. for treatment. The report of that group shows that he suffered some neck and left shoulder pain and during the treatment that lasted from October 19, 1999 until May 9, 1999 had some discomfort. The chiropractic physician assigned him a five percent permanent partial disability of the cervical spine. He incurred medical expenses from the chiropractic group of $3,295 plus Hartford Hospital emergency room expenses of $139 for a total of $3,334.
The plaintiff, Thiago Temponi, is a nineteen-year-old student who also went to the Hartford Hospital after the accident and was similarly treated with Naprosyn and discharged. He also went to the same Hartford Chiropractic Group on October 19, 1999. His reports indicate that he had complaints of persistent lower back pain and during the course of his treatment which extended until May 4, 2000. The chiropractic physician assigned him a permanent partial disability of three percent.
The evidence of the trial revealed that the plaintiff, Lucio Temponi, continued his employment after the accident without any loss of time, and the plaintiff Thiago Temponi continued to play soccer and other sports. Both plaintiffs were strongly built stolid men who expressed little emotion. The Court was particularly struck with the fact that they did not describe any significant pain derived from the accident.
The jury awarded the plaintiff, Lucio Temponi economic damages of $3,295 and non-economic damages of zero, and the plaintiff, Thiago Temponi economic damages of $3,370 and non-economic damages of zero. In both instances the economic damages awarded was close to the medical expenses incurred by each plaintiff.
The law as to the adequacy of a jury verdict, awarding the plaintiff economic damages equal to virtually all of its medical expenses but awarding no non-economic damages, has changed over the years. In Johnson v. Franklin, 112 Conn. 228, 229 (1930), the Supreme Court held that a verdict for the exact amount of medical and lost wages claimed with no allowance of damages for pain and suffering was inadequate. In Malmberg v. Lopez, 208 Conn. 675 (1988), the Supreme Court set aside a jury verdict in a wrongful death action in which the jury found for the plaintiff but awarded zero damages, the court holding that the verdict was inherently ambiguous and reflected a misunderstanding on the part of the jury. However, in Childs v. Bainer, 235 Conn. 107, 120 (1995), involving a jury award of 19% of the economic damages claimed and of zero non-economic damages, the court held that such a verdict did not mandate an additur.
Finally, in Wichers v. Hatch, 252 Conn. 174 (2000), the Supreme Court specifically overruled the per se rule of Johnson v. Franklin, supra, that an award of only economic damages and no non-economic damages was inadequate as a matter of law. It held:
CT Page 2011 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 non-economic damages is best tested in light of the circumstances of the particular case before it. Accordingly, the trial judge 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.
In applying that rule, the Supreme Court in Schroeder v. Triangulum Associates, 59 Conn. 325 (2002), held that it was not reasonable for the jury to have found the defendant liable for the expense of a spinal fusion surgery but not liable for the pain and permanent disability necessarily attendant upon such an intrusive surgery. It held:
Under these circumstances the jury reasonably could not have found the defendant to be responsible initially for the full amount of the plaintiff's economic damages but not liable for any non-economic damages.
In the instant case, the court notes that the impact was slight, after the accident the plaintiffs were discharged from the emergency room of the Hartford Hospital with only the prescription for a pain killing drug, and they both were treated by a chiropractor. Both of them had a very limited percentage of permanent partial disability. At the trial, both of the plaintiffs failed to describe any significant pain and suffering attributed to the accident and both continued to engage in their usual activities after the accident.
Based on all of the evidence, the Court concludes this was a minor accident in which the plaintiffs at best suffered minor injuries. A jury award of no non-economic damages does not shock the sense of justice so as to "compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." Wichers v. Hatch, supra, 187. Consequently, the motion to set aside the verdict and for an additur is denied as to both plaintiffs.
BY THE COURT,
Robert Satter Judge Trial Referee