April 21, 2011
MEMORANDUM OF DECISION ON MOTION FOR ADDITUR (#120)
On November 21, 2007, Charles Wendt was stopped at traffic light when the vehicle he was driving was rear-ended by a minivan operated by James Lethbridge and registered to his contracting business Advanced Remodeling. On July 28, 2008, Wendt filed a complaint against Lethbridge and Advanced Remodeling alleging that as result of Lethbridge's negligence he sustained injuries in this accident. The matter came to trial before a jury on January 14, 2011 as a hearing in damages as Lethbridge admitted that he negligently struck the rear of Wendt's vehicle because he failed to keep a proper look-out. However, the defendants contested the severity of the accident and whether Wendt fractured his second thoracic vertebra as a result of the accident, the only injury for which Wendt sought damages. Both sides presented expert testimony on whether Wendt sustained such a fracture and, if so, whether it was caused by the accident.
On January 19, 2011, the jury returned a verdict in Wendt's favor awarding him $13,737.51 in economic damages but no noneconomic damages. On January 25, 2011, Wendt filed a motion seeking an award of additur or for the court to set aside the verdict. (#120.) Lethbridge filed an objection to that motion on March 9, 2011 (#121). The court heard oral argument on April 4, 2011.
The standard for setting aside a verdict and ordering an additur, pursuant to the provisions of General Statutes § 52-216a, is well established. "The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury . . . The evidence offered at trial must be given the most favorable construction to which it is reasonably entitled in support of the verdict . . . Only under the most compelling circumstances may the court set aside a jury verdict because to do so interferes with a litigant's constitutional right in appropriate cases to have issues of fact decided by a jury . . . The amount of damages to be awarded is a matter particularly within the province of the jury." (Citation omitted; internal quotation marks omitted.) Hunte v. Amica Mutual Insurance Co., 68 Conn.App. 534, 541-42, 792 A.2d 132 (2002). "The right to a jury trial is fundamental in our judicial system, and . . . 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 . . . passed upon by the jury and not by the court." (Citation omitted; internal quotation marks omitted.) Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000). "When determining whether to order an additur, the court should not assume that the jury made a mistake, but should suppose that the jury did exactly what it intended to do." Weiss v. Bergen, 63 Conn.App. 810, 814, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 1254 (2001).
General Statutes § 52-216a provides, in pertinent part: "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."
In this case, the jury did not award Wendt all the economic damages that he submitted and awarded no noneconomic damages. The court is required to determine whether this verdict is adequate as a matter of law, in the light of the particular circumstances of this case. Schroeder v. Triangulum Associates, 259 Conn. 325, 330, 789 A.2d 459 (2002). Even when defendants admit liability, the plaintiff still bears the burden of proving, by a fair preponderance of the evidence, that the admitted negligence proximately caused his alleged injury and damages. Right v. Breen, 277 Conn. 364, 377, 890 A.2d 1287 (2006). The court must "examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed" to prove that the defendants' negligence was the proximate cause of all the economic damages he claimed, as well as noneconomic damages. Wichers v. Hatch, supra, 252 Conn. 188. "A fact finder is not required to award noneconomic damages simply because economic damages are awarded." Parasco v. Aetna Casualty Surety Co., 48 Conn.App. 671, 676, 712 A.2d 433 (1998). If there is some evidence upon which the jury could have reached its conclusion, the court should not set aside its verdict. See Silva v. Walgreen Co., 120 Conn.App. 544, 551, 992 A.2d 1190 (2010). Granting an additur is an extraordinary form of relief. Turner v. Pascarelli, 88 Conn.App. 720, 724, 871 A.2d 1044 (2005).
In this case, the jury awarded all but two medical bills, deducting a dental bill for which the plaintiff offered no evidence connecting the treatment to the accident and a bill for a full body scan which the evidence established was unrelated to the accident, and also awarded Wendt his lost wages for missed work from the date of the accident until he was cleared to return to work. Wendt maintains that since the jury awarded him all his claimed economic damages for the treatment to his thoracic spine immediately following the accident, they must have concluded that he injured his second thoracic vertebra (T2 vertebra) as a "direct result" of Lethbridge's negligence, that the injury "required substantial treatment and medication, the purpose of which was to alleviate pain and improve functioning," and that he sustained a permanent impairment. (Motion for Additur, p. 9.)
The jury had before it disputed evidence regarding the severity of the rear-end collision, conflicting expert and radiological evidence regarding whether Wendt suffered a T2 vertebral fracture in the accident, evidence that Dr. Jon Driscoll, the orthopaedic surgeon who treated Wendt, diagnosed a T2 vertebral fracture and placed him in a stabilizing brace which Wendt wore from November 22, 2007 until January 3, 2008 and evidence that he was out of work until January 4, 2008. The jury could have reasonably relied on the following evidence.
Wendt was rear-ended by Lethbridge's vehicle at low speed and there was no visual damage to the vehicle Wendt was driving. Although ambulatory at the scene, Wendt was brought by ambulance on November 21, 2007 to the Emergency Department of Midstate Medical Center (Midstate). Wendt reported whiplash and neck and low back pain, including tingling and burning sensations down his left leg, to the ambulance and emergency department personnel, as well as a prior history of disc herniation at L4 and L5 and epidural stenosis but did not make any complaints about his thoracic spine. When a CT scan of his cervical and thoracic spine revealed an "abnormality" at T2, an orthopaedic consult was requested and the examining physician's assistant found that Wendt "did not have any T2 tenderness." The orthopaedic surgeon on call, Dr. Jon Driscoll, reviewed the scan and asked for additional studies. A CT scan of the dorsal spine found evidence "of an irregular lucency involving the left lamina of [T2] compatible with fracture. It is difficult to determine." A CT of the cervical spine reported "a fracture of the left lamina of T2 and a transverse process fracture of T2, with good alignment."
The report reads "L2" but the parties agree that is a typographical error.
Dr. Driscoll ultimately saw Wendt in the Emergency Department on November 22, 2007. At that time, Wendt reported tenderness at T2; however, this was after he had been advised that there was a suspicion of a thoracic vertebral fracture. Wendt inaccurately reported to Dr. Driscoll that he had been rear-ended at 30 to 35 miles an hour. Although x-rays revealed "no obvious fracture" of the thoracic spine, Dr. Driscoll relied on the additional CT scans, presumably the one of Wendt's cervical spine, to diagnose "a T2 left lamina nondisplaced fracture and a right transverse process fracture in a neurovascular intact patient without canal encroachment." He ordered a Miami-J brace with thoracic extension for which Wendt was fitted and then discharged.
On November, 26, 2007, Wendt saw Dr. Driscoll and reported that he did not "love the brace" but also he did not have any "pain, numbness, tingling or radicular symptoms," although he reported tenderness at the T2 level. By December 3, 2007, Wendt reported to Dr. Driscoll that he "feels quite well in the brace" and Dr. Driscoll found `just minimal tenderness . . . at the T2 level." On January 3, 2008, the date the brace was removed, Wendt reported that he was "having no pain whatsoever and no radicular symptoms. He feels great at this time." After the brace was removed, Wendt did not report any tenderness at the T2 level. A radiograph taken on January 3, 2008 did not reveal any "obvious displacement or fracture" at the T2 level. However, Dr. Driscoll concluded that his diagnosis of a T2 fracture was confirmed by the follow-up CT scan which had been done at Midstate.
That CT scan, the other CT scans done at Midstate, an MRI done on December 1, 2007 and the radiological films, were independently reviewed by Dr. Louis Bader, a radiologist who testified as an expert witness for the defendants. Although not disputing the treatment that Dr. Driscoll rendered to Wendt, Dr. Bader testified that he could not find any evidence of a nondisplaced fracture at the T2 level upon his review of the films. Accordingly, Dr. Bader opined that Wendt did not injure his thoracic vertebra at the T2 level in the accident.
In light of the conflicting evidence, it is reasonable to infer that the jury's decision to award Wendt only economic damages for Dr. Driscoll's diagnosis and related treatment and the time he lost from work associated with Dr. Driscoll's diagnosis, but no noneconomic damages, reflects its conclusion that Lethbridge's negligence did not cause Wendt to sustain a T2 vertebral fracture. In other words, the jury could have reasonably concluded that while Dr. Driscoll incorrectly diagnosed Wendt with a T2 vertebral fracture he should nonetheless be financially compensated for the bills he incurred and the time he lost at work because the mis-diagnosis was proximately caused by the accident which resulted from Lethbridge's admitted negligence. "The existence of conflicting evidence curtails the authority of the court to overturn the verdict because the jury is entrusted with deciding which evidence is more credible and what effect it is to be given." Schettino v. LaBarba, 82 Conn.App. 445, 450, 844 A.2d 923 (2004).
To the extent Wendt, and his wife Audrey, testified that he suffered discomfort as a result of wearing the Miami J-brace from November 22, 2007 until January 3, 2008, the court must also defer to the jury's decision to deny Wendt non-economic compensation for that discomfort. The court will not second guess the jury's credibility decisions. However, there was evidence before the jury that although Wendt did not "love the brace," within five days of the accident he did not report any pain and only had mild tenderness over the T2 vertebral body. During the period he wore the J-brace he also reported low back pain, not claimed in this case, resulting from his pre-existing severe stenosis. In determining whether a plaintiff has proven damages, "there is no obligation for the jury to find . . . the amount of pain alleged . . . Put another way, it is the jury's right to accept some, none or all of the evidence presented." (Citations omitted; internal quotation marks omitted.) Smith v. LeFebre, 92 Conn.App. 417, 422, 885 A.2d 1232 (2005). Moreover, a jury is "not compelled to accept the plaintiff's claims as to the severity of [his] injuries . . ." Parasco v. Aetna Casualty Surety Co., supra, 48 Conn.App. 676. "It is well settled that the amount of a damage award is a matter peculiarly within the province of the fact finder." Greci v. Parks, 117 Conn.App. 658, 679, 980 A.2d 948 (2009).
In light of the conflicting evidence discussed above, the court cannot conclude that the jury's failure to award noneconomic damages was inadequate nor that it shocks the conscience in light of the particular circumstances of this case. See Childs v. Bainer, 235 Conn. 107, 116, 663 A.2d 398 (1995). The only injury for which Wendt sought damages was the alleged injury to his T2 vertebra. The evidence was sufficient for the jury to reasonably find that Wendt did not sustain any injury to his T2 vertebra as a result of the accident. Accordingly, the motion to set aside the verdict and for additur is denied.