Opinion
CV136039295S
01-04-2017
Michael Gotowala v. Peerless Insurance Company
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE AND/OR ADDITUR (#163) STATEMENT OF CASE AND PROCEDURAL HISTORY
Robin L. Wilson, J.
The plaintiff, Michael Gotowala (plaintiff) commenced this negligence action against the defendant, Peerless Insurance Company (defendant). The complaint was returned to court on June 13, 2013, and alleges the following facts. On April 24, 2008, at approximately 8:30 p.m. Kenneth Patchell was operating his motor vehicle in the southbound lane of Mix Avenue in Hamden, Connecticut. On said date and time, the plaintiff was operating his motor vehicle in the same lane and direction immediately in front of the motor vehicle that was being operated by Patchell. At said date and time, Patchell ran into and collided with the plaintiff's motor vehicle. The plaintiff alleged various ways in which Patchell was negligent and claimed that as a result of Patchell's negligence he sustained injuries and losses.
On February 12, 2013, the plaintiff settled his personal injury claim against Patchell by exhausting all of Patchell's insurance coverage that was available for the accident. Prior to the April 24, 2008 accident, the plaintiff purchased an insurance policy from the defendant which provided automotive coverage, including underinsured motorist coverage, at the time of the accident. On April 24, 2008, the policy was in full force and effect. The injuries and losses sustained by the plaintiff were the legal responsibility of the defendant pursuant to the terms of its insurance policy and pursuant to General Statutes § 38a-336. Said insurance policy included coverage for damages which any insured person, including the plaintiff, would be legally entitled to recover for the negligent operation by an unidentified, unknown or underinsured operator of a motor vehicle. The plaintiff further alleged that any and all insurance available to compensate the plaintiff had been exhausted, except for his policy with the defendant, yet the plaintiff had not been fully compensated for his injuries and losses. The plaintiff alleged that the defendant was obligated to compensate him for his losses and damages under the underinsured section of his automotive policy and pursuant to General Statutes § 38a-336.
The case was tried to a jury from September 14, 2016 to September 19, 2016. On September 19, 2016, the jury returned a verdict in favor of the plaintiff. In finding for the plaintiff, the jury awarded the following economic damages: past medical bills in the amount of $46,974.15 which represents the full amount of past medical bills claimed by the plaintiff. The jury did not award the plaintiff damages for his claimed past lost earnings, past lost earning capacity, future medical expenses or future lost earning capacity. The jury awarded the plaintiff non-economic damages in the amount of $10,000.
Pursuant to Practice Book § 16-35 and § 52-228b the plaintiff has filed a motion to set aside and/or additur. As grounds for his motion, the plaintiff claims that the jury's award of future economic damages and its award for non-economic damages is inconsistent and inadequate as a matter of fact and law as well as contrary to law and to the evidence presented at trial.
Practice Book § 16-35 provides in relevant part that . . . [M]otions to set aside a verdict, motions for additur, [and] motions for new trials 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 . . ."
Section 52-228 provides, " 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 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."
The defendant in its objection argues that the jury's verdict must be respected as a product of their careful consideration of the credibility of the witnesses and the severity of the claimed injuries, and as such, should not be disturbed. The court heard oral argument on the motion at short calendar on October 31, 2016.
DISCUSSION
" The right of trial by jury is of ancient origin, characterized by Blackstone as the glory of the English law and the most transcendent privilege which any subject can enjoy . . . (Internal quotation marks omitted.) Dimick v. Schiedt, 293 U.S. 474, 485, 55 S.Ct. 296, 79 L.Ed. 603 (1935)." Saleh v. Ribeiro Trucking, 303 Conn. 276, 280-81, 32 A.3d 318 (2011).
" The standards for a motion to set aside the verdict and a motion for additur are identical. Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 541, 792 A.2d 132 (2002). 'A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.' Marchell v. Whelchel, 66 Conn.App. 574, 582, 785 A.2d 253 (2001). The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice. Only under the most compelling evidence 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. Hunte v. Amica Mutual Ins. Co., supra, at 541.
" In 2000 the Supreme Court decided Wichers v. Hatch, supra, 252 Conn. 174, which expressly overruled the per se rule of Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), in favor of a case-bycase determination of whether the verdict was adequate. Although Wichers involved a situation where the jury had awarded economic damages and no non-economic damages, the basic holding is applicable to the present situation as well. The trial court should examine the evidence to determine whether the jury reasonably could have found that the plaintiff had failed in his or her proof on a given issue. The decision should be made, not on the assumption that the jury made a mistake, but rather, on the supposition the jury did exactly what it intended to do. Wichers, supra at 188-89. In deciding a motion to set aside a verdict, the court must therefore put itself in the position of the jury and determine whether the verdict was unfair, unreasonable and in contradiction of the evidence. The court must determine if the jury's findings were so manifestly unjust that it shocks the conscience." Vestergaard v. Klein, Superior Court, Superior Court, judicial district of Middlesex at Middletown, Docket No. 01 0095341, (December 22, 2003, Silbert, J.).
In the present case, the jury awarded the plaintiff economic damages for all of his claimed past medical expenses, and chose not to award the plaintiff economic damages for his claimed past lost earnings, past lost earning capacity, future medical expenses and future lost earning capacity. The plaintiff argues that an additur should be awarded for future medical expenses because the evidence concerning the plaintiff's future medical treatment was undisputed. Specifically, the plaintiff argues that he established that the cost of future radiofrequency treatments was $13,280, which the defendant did not contest. Further, the plaintiff argues that he introduced evidence concerning his need for future pain management treatment during the course of his lifetime which the defendant did not dispute. The plaintiff additionally argues that because the jury awarded economic damages for the treatments he received in July of 2016, it necessarily found that the plaintiff established his need for future treatment as of the date when Dr. Grahling testified which was prior to July 2016. The plaintiff also claims that the jury's award of $10,000 in non-economic damages is inconsistent with their award of all of the plaintiff's past medical expenses, and therefore inadequate as a matter of law. The plaintiff thus seeks an additur with respect to the jury's award of non-economic damages.
The plaintiff at oral argument and in his memorandum of law in support of the motion to set aside, specifically limits his request for an additur to future economic damages for the cost of future medical treatment and to non-economic damages. The plaintiff does not seek an additur as to his claim for past lost earnings, past loss of earning capacity, and future lost earning capacity which the jury did not award.
The defendant argues that the jury's verdict should not be set aside because there is evidence from which the jury could have concluded as it did. The defendant argues that the jury could have determined that the plaintiff sustained an injury as a result of the accident, but they could have also found the plaintiff's testimony to be lacking credibility with respect to his subjective complaints of pain and ongoing pain as well as the need for future treatment. The defendant argues that the jury, which it is entitled to do, could have rejected the plaintiff's testimony as well as the treating physician's testimony regarding the plaintiff's subjective complaints of pain and the need for future treatment.
From the evidence submitted, the jury could have reasonably concluded that on April 24, 2008, the plaintiff was rear-ended by Patchell. The defendant admitted liability and admitted that the plaintiff sustained personal injuries as a result of the April 24, 2008 rear-end collision. The police report describes the accident and how it occurred and notes that at that time " no injuries were reported." Pl. Ex. 1. After the plaintiff was rear-ended he was able to exit his vehicle " under his own power and " did not require an ambulance." Pl. Ex. 7. At the time of the accident, the plaintiff was operating a Yukon XL, SUV. Pictures of the plaintiff's vehicle after the accident do not depict a heavy impact to the vehicle. The rear bumper appears to be hanging off of the vehicle. Pl. Ex. 2.
On April 25, 2008, the day after the accident, the plaintiff was examined by Dr. Balazs Somogyi, an orthopedic surgeon. At the time of this examination, Dr. Somogyi noted that the plaintiff was involved in a rear-end collision on April 24, 2008. Dr. Somogyi further noted that the plaintiff was ambulating normally and was able to heel and toe walk. " Examination of the lumbosacral region reveals tenderness to the low midline. Forward flexion is performed to ankle level. Extension is 75 degrees. Lateral bending is 35 degrees, when performed to the left is uncomfortable. Rotational movement to the right is uncomfortable. The lower extremities revealed normal contours with no atrophy or fasciculation. Straight leg raising examination was bilaterally negative . . . The lower extremities revealed normal contours with normal straight leg raising examination." Pl. Ex. 3. It was Dr. Somogyi's impression at that time, that the plaintiff sustained a lumbosacral sprain and strain and contusion of the left elbow which was asymptomatic. The plaintiff was referred for an " x-ray examination of the lumbosacral spine, predominantly at his request." Id. He was also referred for a regimen of physical therapy and prescribed Flexeril 10 mg and Naprosyn 500 mg. The plaintiff was to return to Dr. Somogyi's office for an x-ray evaluation of his back, however the next treatment records are a month later, beginning on May 22, 2008, from the Rosa Chiropractic Center.
The plaintiff received ten chiropractic treatments beginning on May 22, 2008, and ending on October 9, 2008. There is a gap in the plaintiff's chiropractic treatment, between the dates of June 18, 2008, and September 8, 2008. The diagnoses at this time was sprain/strain injury to the cervical, thoracic and lumbar areas. The chiropractic note on May 22, 2008, indicates that the plaintiff was having moderate to severe spasms in the cervical, trapezius and rhomboids musculature and in the thoraco-lumbar musculature greater on the upper to mid lumbar level. Thoraco-lumbar joint mobility was moderate to severely restricted and painful. The plaintiff's work status at this time was " Full time, full duty." Pl. Ex. 4. Subsequent notes on May 30, 2008, June 18, 2008, September 8, 2008, September 10, 2008, September 17, 2008, September 26, 2008, October 1, 2008 and October 9, 2008 reveal that the plaintiff was still having moderate to severe low back pain. Most of the chiropractic notes indicate the plaintiff's work status was " Full time, full duty" except that the September 26, 2008, note indicates that the plaintiff was working full time with " self imposed restrictions." Id. An MRI of the low back was recommended to rule out a disc herniation and on October 9, 2008, the plaintiff underwent an MRI to the lumbar spine which revealed that the " disc spaces are well maintained. There is no evidence of disc herniation or nerve root impingement. No evidence of bony injury. No significant spinal stenosis." Pl. Ex 5. The MRI was within " normal limits." Id. The October 9, 2008 chiropractic note indicates that the plaintiff's treatment plan was to continue with chiropractic treatment two times per week for two weeks, and the plaintiff was referred to Dr. Nisenbaum for evaluation on November 4, 2008. There are no further chiropratic reports from Rosa Chiropratic Center, and there are no reports from an evaluation by Dr. Nisenbaum.
The next treatment report is almost six months later, on March 31, 2009, from Dr. Judith Gorelick, a neurosurgeon. The plaintiff was examined by Dr. Gorelick for a neurosurgical consultation for " aggravated back pain." Pl. Ex. 6. Dr. Gorelick notes that " since the [April 24, 2008] incident, [the plaintiff] has complained [of] ongoing, intermittent, low back pain. His pain refers to the posterior hips bilaterally. Pain is aggravated with activity such as bending or lifting and improved with rest and/or Tylenol. Back pain is also noticeable with prolonged sitting when he needs to change positions . . . His job as a landscaper requires repetitive bending and lifting which does aggravate his situation." Id. Dr. Gorelick's diagnoses were low back pain exacerbation, multilevel facet arthropathy and lower thoracic degenerative disc disease. Dr. Gorelick's impression at the time of her examination was that the plaintiff " presents with aggravated back pain following a motor vehicle collision last spring. His neurologic examination today is nonfocal. Imaging identifies a facet arthropathy of the lower 3 lumbar segments as the most likely etiology for his pain complaint, which is mostly a mechanical-axial type back pain. He does not have a prominent radicular component. There is no neural impingement on the imaging . . ." Id. Dr. Gorelick discussed a variety of reasonable treatment options including physical therapy for core strengthening, possibly physiatry for comprehensive nonsurgical management of his back pain, and a potential trial of bracing the lumbar spine particularly for work. Dr. Gorelick also discussed the relevance of the type of work he does, which requires repetitive lifting, bending, and physical labor, " which no doubt contributes to his sense of back pain and will need to be minimized to the extent that it can." (Emphasis added.) Id. Dr. Gorelick referred the plaintiff for physical therapy and indicated that she would see the plaintiff back for re-evaluation at any point should he wish to see her. There is no indication from the evidence submitted that the plaintiff underwent the physical therapy recommended by Dr. Gorelick or that he returned to Dr. Gorelick for further evaluation.
The plaintiff's next treatment date was about a month later on May 4, 2009, at which time he was examined by Dr. Jeffrey T. Pravda, an orthopedic surgeon. Dr. Pravda notes the history given to him by the plaintiff about the accident and the treatment he received for his injuries up to that point. The plaintiff advised Dr. Pravda that he was examined by Dr. Gorelick, a neurosurgeon, " who told him that there was absolutely nothing wrong with his back ." (Emphasis added.) Pl. Ex. 7. The plaintiff presented to Dr. Pravda because he had had progressive back pain and that his biggest complaint was right sided low back pain that radiates down the lateral aspect of his thigh. Dr. Pravda noted that the plaintiff had never had any radiating symptoms into his toes, no numbness, no tingling and no weakness. He denied any prior problems previous to the accident and stated that he had trouble getting his leg in and out of the car. The plaintiff did indicate to Dr. Pravda that he had difficulty doing his job and had lost some time from work. However, as noted, prior reports do not indicate that the plaintiff was placed on any work restrictions.
Upon physical examination, Dr. Pravda noted that the plaintiff was in no acute distress and he walked with a mild limp to the right leg. Examination of the lumbar spine showed no cutaneous or palpable abnormalities. The plaintiff was able to lateral bend 30 degrees, rotate 40 degrees and forward flex to mid-calf height. In the sitting position, he had no cutaneous abnormalities to either lower extremity. Orthopedic examination showed a free and full range of motion on the left side from hips to toes. The plaintiff's right lower extremity showed that Dr. Pravda could flex his hip to about 80-90 degrees. The plaintiff had no internal rotation and he could externally rotate about 25 degrees. The plaintiff could abduct about 20 degrees and adduct 10 degrees. The plaintiff could not put his leg in a figure-of-four because he stated that it dramatically increased his pain and when he laid down on the examination table he had to lift his right leg with his right hand because he was unable to do it actively.
Dr. Pravda felt that the plaintiff's examination was consistent with hip disease despite the relatively benign x-rays. He recommended that the plaintiff undergo an MRI and a whole body scan. On May 14, 2009, the plaintiff underwent an MRI of the right hip. The MRI showed that the bony alignment of the right hip was normal. The hip joint space was well maintained. There was no marrow edema, marrow replacement or evidence for fracture or bony distruction. There was no joint effusion. There was residual hematopoietic marrow within the imaged right pelvis and proximal right femur. Subcutaneous soft tissues and musculature were unremarkable. The impression of the right hip was " unremarkable." The plaintiff's bone scan was normal.
Seven months later, on December 9, 2009, the plaintiff returned to Dr. Pravda for follow-up of his back. Dr. Pravda confirmed that the plaintiff " ha[d] not been seen in seven months or so." Pl. Ex. 7. Dr. Pravda reviewed the results of the MRI of the right hip and the full body bone scan the plaintiff underwent in May 2009, and noted " both benign." Oblique films reviewed by Dr. Pravda showed that the plaintiff's overall lumbar lamina appeared benign and the facet joints did not appear terribly arthritic. At this time, the plaintiff was complaining of right side low back pain down the anterior lateral thigh, which Dr. Pravda questioned whether some of this was not facet mediated. He recommended facet blocks and referred the plaintiff to Dr. Eric Grahling, a pain management doctor for pain management.
The plaintiff was initially examined by Dr. Grahling on January 21, 2010, for his low back pain. Dr. Grahling diagnosed lumbago or facetogenic low back pain and recommended that the plaintiff undergo a series of facet joint injections. On February 3, 2010, the plaintiff underwent a facet joint injection to the L2, L3 and L4 medial branch and L5 dorsal ramus nerves. The plaintiff returned on February 16, 2010, for follow up and Dr. Grahling noted that the plaintiff had 70-80% relief from the blocks. It was also noted that the plaintiff challenged himself and " tested the back by splitting wood and it was not as sore as he would have expected." Pl. Ex. 8. The plaintiff returned for follow up on March 16, 2010, at which time his back pain had returned. Dr. Grahling recommended repeat medial branch facet joint blocks and the plaintiff underwent a second procedure on March 24, 2010.
The plaintiff did not return to Dr. Grahling until almost eight months later on November 1, 2010, complaining again of low back pain. Dr. Grahling noted that after the March 2010 facet injection the plaintiff had 70% relief. The plaintiff advised Dr. Grahling that he did not return sooner because he got busy with work. At this time, Dr. Grahling recommended facet radiofrequency ablation (RFA). RFA treatment involves inserting a needle into the plaintiff's spine in five separate facet joints. The needle is heated to 180-190 degrees, to destroy the nerves which helps to relieve the pain. The plaintiff underwent RFA treatment on November 10, 2010. The plaintiff saw Dr. Grahling on December 9, 2010 and noted that he was 80% better and again he was able to split wood without issue over the weekend.
On July 21, 2011, in response to a letter from plaintiff's counsel, Dr. Grahling wrote a letter noting that he had last examined the plaintiff on December 9, 2010, and on that date the plaintiff had reported that he had more than 80% relief from the RFA and his range of motion and daily activities were improved. Dr. Grahling noted that the plaintiff may need repeat radiofrequency treatment to the facet joints in time and that he was not a surgical candidate. Dr. Grahling further noted that since he had not heard from the plaintiff since December 2010, his assumption was that the plaintiff was still doing well. He assessed the plaintiff with a 6% permanent partial impairment to the low back as a result of the April 24, 2008 accident, and noted that the plaintiff could continue work as tolerated with no restrictions. After his last visit with Dr. Grahling, on December 9, 2010, the plaintiff did not again return to Dr. Grahling until almost two years later on November 13, 2012. Prior to his November 13, 2012 treatment with Dr. Grahling, on August 8, 2012, the plaintiff was in another automobile accident when his car was struck by another vehicle. The plaintiff was transported to MidState Medical Center Emergency Department on that date. The plaintiff testified on cross examination that he could not remember whether he complained of any pain or discomfort in his back. He testified that he may have complained of tingling and numbness in his back to the ambulance staff and ER staff. The plaintiff testified that " it's always numb" from the facet block injections so it's hard to figure out whether he had radiating numbness and tingling in his back on August 8, 2012. The plaintiff was not direct in his answers regarding whether he complained about back pain and right leg pain after the August 8, 2012 accident. The plaintiff testified that he did not complain of any pain or discomfort in his low back, but that he only " made them aware" of a prior low back injury. The plaintiff testified that if the records reflected that he complained of low back it was the interpretation of the ambulance staff and emergency room staff.
The triage notes from August 8, 2012, are replete with references to the plaintiff's complaints of low back and right hip pain. The notes reflect that the plaintiff's " [c]hief complaint quote: low back pain post MVA with right hip and knee pain." Pl. Ex. 9. On August 8, 2012, the emergency room staff also assessed the plaintiff's pain level over a half-hour period. The pain scale reflects that the plaintiff complained of neck and back pain 7/10 and right hip pain 6/10. The emergency room notes on that date from the PA, indicate that the plaintiff's chief complaint was " back pain" right side and the clinical impression was " sciatica." Id.
After the August 8, 2012 emergency room visit, the plaintiff presented again to Dr. Grahling on November 13, 2012, almost two years after his last visit in December 9, 2010. Dr. Grahling's notes indicate that the plaintiff was doing well overall, but continued to have stiffness and achiness, especially when driving for long periods. The plaintiff reported to Dr. Grahling that he drives a big loader and has to twist around to check behind him and that this motion, especially when clearing snow, will aggravate his back. The plaintiff was active and going to the gym. Dr. Grahling noted that the plaintiff was doing well overall with some daily pain and soreness. He did not feel that the plaintiff s discomfort was to the point of needing another facet injection.
The plaintiff did not return to Dr. Grahling until over a year later, on January 8, 2014, complaining of increased lower back pain. He again advised Dr. Grahling that he was doing well, but was having more pain, stiffness and achiness, especially when driving for long periods. He again advised Dr. Grahling that he drives a heavy loader and has to twist around to check behind him and gets bounced around as well. He also noted to Dr. Grahling that this motion, especially when clearing snow, would aggravate his back. The plaintiff underwent repeat diagnostic medial branch facet blocks on January 14, 2014, before returning to RFA therapy. The plaintiff returned to Dr. Grahling again on February 26, 2014 complaining of low back pain. The notes indicate that the plaintiff was doing well from the injection he had in January with 90% relief and marked improvement, but he was at this point having more pain, stiffness and achiness, especially when driving for long periods. The plaintiff underwent RFA therapy again at this time, and again noted to Dr. Grahling that he drives a big loader which requires him to twist around to check behind him and that he gets bounced around as well. He again noted to Dr. Grahling that this motion, especially when clearing snow, would aggravate his back.
The plaintiff returned to Dr. Grahling on March 12, 2014, complaining of increased lower back pain. He indicated again that he had 90% relief with marked improvement but he began to have pain, stiffness and achiness, especially when driving for long periods. He noted again that he drives a big loader and has to twist around to check behind him and gets bounced around as well. The plaintiff again advised Dr. Grahling that this motion, especially when clearing snow, aggravates his back. The plaintiff underwent repeat RFA therapy. The plaintiff returned to Dr. Grahling on April 15, 2014, complaining again of low back pain and again stating that he drives a big loader which aggravates his back. The plaintiff returned to Dr. Grahling on May 13, 2014, again complaining of low back pain, stiffness and achiness especially when driving for long periods. Dr. Grahling advised the plaintiff to return for therapeutic interarcticular facet injections.
The plaintiff returned to Dr. Grahling on June 10, 2014, with the same complaints of pain, stiffness and achiness especially when driving long periods. The plaintiff underwent therapeutic facet blocks at this time. Dr. Grahling noted that he would consider a new MRI at this time. The plaintiff returned to Dr. Grahling on August 5, 2014, November 13, 2014, and February 12, 2015, with the same complaints of low back pain, stiffness and achiness especially when driving for long periods. There were no facet injections performed on these dates. The notes also reflect that the plaintiff drives his loader which requires him to change positions a lot and aggravates his back. The February 15, 2015 note indicates that the plaintiff was " busy driving his loader with all the snow and this has not been good on his back. A lot of twisting and bouncing. Sore and aching and has to change positions a lot." At the February evaluation, Dr. Grahling noted that the plaintiff was not in need of any injections and recommended that the plaintiff return in three months.
The plaintiff did not return to Dr. Grahling until a year later on April 18, 2016, with return of his low back pain. The plaintiff reported at that time that the pain was worse with twisting and bending. The notes also reflect that the plaintiff's low back is sore and aching because he has to change positions a lot. The notes again reflect that the plaintiff drives a big loader and has to twist around to check behind him and gets bounced around as well. The plaintiff returned to Dr. Grahling on May 31, 2016, and underwent repeat medial branch facet blocks. The plaintiff next saw Dr. Grahling on June 15, 2016, and reported that " he felt great, had 100% relief for 8 days and now back to baseline." Pl. Ex. 8. He notes again to Dr. Grahling that his back pain is aggravated with long periods of driving and that he drives a heavy loader which requires him to twist around to check behind him and that he gets bounced around a lot.
The plaintiff next returned to Dr. Grahling on July 6, 2016 and July 8, 2016, again complaining of low back pain. Repeat facet RFAs were done at this time. The plaintiff complained of low back pain which increased with twisting and bending.
There was no evidence that the plaintiff was restricted from performing his work. In fact, almost all of the medical records indicate that the plaintiff continued to work and to perform his daily activities. In addition, there was evidence that the plaintiff had a Hazmat CDL license which required him to undergo a physical examination for renewal of his license. The plaintiff saw Dr. Silver on February 9, 2016, for a physical examination as required by the state of Connecticut in order to renew his Hazmat CDL license. The plaintiff testified that his license was renewed after that exam, and that in the last eight years his Hazmat CDL license had been renewed based on his physical exam, and that his license had not been suspended due to any physical problems.
As this court previously noted, the jury awarded the plaintiff all of his claimed medical expenses in the amount of $46,974.15 in economic damages and $10,000 in non-economic damages. Notwithstanding, Dr. Grahling's testimony that the plaintiff would need future medical treatment, and notwithstanding the jury's award of all of the plaintiff's medical expenses, the jury did not award the plaintiff any claimed future medical expenses. Clearly from the jury's award they felt the medical expenses incurred by the plaintiff were reasonable, necessary and related to the April 24, 2008 car accident. Nonetheless, the jury chose to reject the plaintiff's claim that he was entitled to future medical expenses.
The jury had every right to reject the plaintiff's proffered evidence on future medical treatment. As instructed, the opinion of an expert is subject to review by the jury. As with any other witness, they are free to accept, in whole or in part, any witnesses testimony. The jury decided to accept that portion of Dr. Grahling's testimony that the medical treatment the plaintiff received through July 8, 2016, was reasonable, necessary and related to the accident. The jury likewise, was totally free to reject Dr. Grahling's opinion that the plaintiff would need further treatment beyond that date and into the future. It is apparent that the jury found neither the plaintiff nor Dr. Grahling credible on the issue of future medical treatment. The jury's rejection of this evidence was not unreasonable in light of the following. First, there were many gaps in the plaintiff's medical treatment. Second, no doctor that treated the plaintiff opined that the plaintiff could not work, and in fact, there is no evidence that the plaintiff missed any appreciable time from work. Third, the plaintiff had a subsequent accident in August 2012, for which he testified that he did not complain of low back pain to the ambulance and ER staff, yet the ER and ambulance reports are replete with chief complaints of low back and right leg pain, similar symptoms the plaintiff had after the April 24, 2008 accident. The plaintiff's explanation for the reports documenting this was, " that is their interpretation." Fourth, the reports that the jury had before it were inconsistent with the plaintiff's testimony of his inability to engage in daily activities. Many of the medical reports indicate that the plaintiff for the most part continued in his daily activities, including work; that he was able to split wood, and was able to attend the gym. Indeed, most of Dr. Grahling's reports, if not all, indicate that the plaintiff was driving a heavy loader, which contributed to the aggravation of his low back pain. Dr. Gorelick's report also indicates that the plaintiff's job as a landscaper which requires repetitive bending and lifting also aggravated his low back pain. The plaintiff also engaged in snow shoveling during the winter months. There was evidence before the jury that the plaintiff and Patchell were involved in a collision in which the plaintiff was traveling and had slowed for traffic. Patchell's vehicle rear ended the plaintiff's vehicle as it was slowing for stopped traffic. From this evidence the jury could conclude that the impact was a low impact. In addition, the photographs of the plaintiff's vehicle are consistent with this. Further, there was no evidence that the air bags in the plaintiff's vehicle were deployed. Finally, there was also evidence before the jury that the plaintiff exited the vehicle and did not require an ambulance, nor did the plaintiff report any injuries at the scene of the accident. See Pl. Ex. 1. By contrast, after the August 8, 2012 accident, the plaintiff was transported from the scene of the accident by ambulance with similar complaints of low back and right hip pain. Thus, while the jury accepted the plaintiff's evidence for his claimed past medical expenses, and concluded that the plaintiff was injured as a result of the accident, there was enough evidence from which the jury could conclude that any medical treatment after July 8, 2016, was not reasonable and necessary and not related to the accident.
The plaintiff also focuses on the fact that the defendant admitted liability and admitted that the plaintiff sustained injuries as a result of the April 24, 2008 accident, as grounds to set aside the jury's verdict and for an award of an additur. " 'The amount of damages awarded is a matter peculiarly within the province of the jury . . .' (Internal quotation marks omitted.) Weiss v. Bergen, 63 Conn.App. 810, 813, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 1254 (2001). Moreover, there is no obligation for the jury to find that every injury causes pain, or the amount of pain alleged. 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). Put another way, '[i]t is the jury's right to accept some, none or all of the evidence presented . . . It is the [jury's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses . . . The [jury] can . . . decide what-all, none, or some-of a witness' testimony to accept or reject.' (Internal quotation marks omitted.) State v. Weisenberg, 79 Conn.App. 657, 663-64, 830 A.2d 795, cert. denied, 266 Conn. 932, 837 A.2d 806 (2003)." Smith v. Lefebre, 92 Conn.App. 417, 422, 885 A.2d 1232 (2005). Thus, although the jury awarded the plaintiff all of his claimed medical expenses, it was appropriate for the jury in this case to reject Dr. Grahling's and the plaintiff's testimony regarding the plaintiff's ongoing pain and need for future medical treatment.
" Rather than decide that an award of [all of the plaintiff's claimed past] economic damages [and $10,000 in] non-economic damages is inadequate as a matter of law, the jury's decision to award economic damages [in the amount of $46,974.15] and [only $10,000 in] 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 ." (Emphasis added.) Smith v. Lefebre, supra, 92 Conn.App. 421. Here, based upon the evidence it had before it, the jury's award was exactly what it intended to do.
The plaintiff further argues that the jury, through their award of economic damages for the treatments the plaintiff received in July of 2016, necessarily found that the plaintiff established his need for future treatment as the testimony of Dr. Grahling regarding future treatment, was given prior to July of 2016. The court is not persuaded by this argument. On the issue of damages, the jury was appropriately instructed in relevant part that, " [i]njuries and losses for which the plaintiff should be compensated include those he has suffered up to and including the present time and those he is reasonably likely to suffer in the future as a proximate result of the defendant's negligence." Connecticut Judicial Branch Civil Jury Instructions, Damages, § 3.4-1. Notwithstanding the date of Dr. Grahling's testimony, the medical expenses incurred by the plaintiff for treatment he received in July 2016, were as a result of medical treatment he received up to and including the present time which was the date of trial. Thus, future treatment would be calculated from the date of trial into the future. Again, as this court previously discussed, the jury was not bound by Dr. Grahling's or the plaintiff's testimony on the need for future treatment.
Given the disputed nature of the testimony and evidence in the present case, there are simply insufficient facts " that justify the extraordinary relief of additur." Turner v. Pascarelli, 88 Conn.App. 720, 723-24, 871 A.2d 1044 (2005). Indeed, this is not a case where all of the plaintiff's claims of economic damages were awarded. Although the jury awarded the plaintiff all of his claimed past medical expenses, in addition to rejecting the plaintiff's claim for future medical expenses, the jury rejected his claim for past lost earnings; past lost earning capacity; and future lost earning capacity, which it was entitled to do based upon the evidence it had before it. Thus, on the contrary, the jury rejected the vast majority of the plaintiff's claims for economic damages. Given this finding by the jury, it was entirely reasonable for the jury to award $10,000 in non-economic damages. Accordingly the plaintiff's request for an additur as to future economic damages and as to non-economic damages is denied.
CONCLUSION
For the foregoing reasons, the plaintiff's motion to set aside the verdict and for an additur is denied.