Opinion
No. CV-01-0448192 S
July 9, 2004
MEMORANDUM OF DECISION
In this case the plaintiff alleged to have been injured in an automobile accident as a result of the defendant decedent's negligence. The jury returned a verdict in favor of the plaintiff having evidently found in his favor on the issue of liability but awarded damages as follows for economic damages, medical expenses, $31,206.07, lost wages, $21,165.30 for a total economic damage award of $52,371.37. However, in a result that this court has found increasingly common the jury awarded no non-economic damages. The plaintiff has filed a motion to have the verdict set aside and for the court to order an additur. Wichers v. Hatch, 252 Conn. 174 (2000), has made it clear that a trial court need not necessarily set the verdict aside in a situation such as this. Id. pp. 175, 189. Two separate steps are of course involved in addressing such a motion. First a court must determine if there are grounds for concluding that verdict should be set aside, then it must deal with the separate question of the request for an additur and its amount which the court has the right to grant under § 52-216a.
Wichers quoted from the earlier case of Birgel v. Heintz, 163 Conn. 23, 27-28 (1972), regarding the standards to be applied in deciding whether a verdict is not reasonable and is subject to being set aside.
. . . A mere doubt of the adequacy of the verdict is an insufficient basis for such action . . . A conclusion that the jury exercised merely poor judgment is likewise insufficient . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption. CT Page 10947
This then is the general test to be applied but in one of these economic damages no non-economic damages cases the problem is not with the size per se of the verdict but the way it is allocated. In other words in many of these cases, if not most, if the size of total monetary verdict were the same but to reach that total the jury had awarded less than the full medical claims but something for non-economic damages, a trial court could not properly exercise its discretion to set aside the verdict. In such a situation, any motion to set aside would be an act in limbo because how could a court justify giving an additur?
But the court makes clear that merely because non-economic damages are not awarded, that does not mean a verdict should be set aside. The court said the decision of the trial court in these cases:
. . . 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. Id. p. 189.
The court then added that "although the trial court has a broad legal discretion in this area it is not without its limits. `Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact, determined by a jury'" . . . Jacobs v. Goodspeed, 180 Conn. 415, 417 . . . (1980).
Finally the court said in performing its task in deciding a motion to set aside and for an additur the "evidential underpinnings" of the verdict must be examined; an appellate court will certainly do that where a trial court has acted on such a motion. See Wichers at 252 Conn. at p. 189; cf. Elliott v. Larson, 81 Conn. App. 468, 476-77 (2004).
Given Wichers the court has examined cases postdating it to try to ascertain what guidelines there might be in deciding whether a motion to set aside or for additur should be granted in a case where non-economic damages have not been awarded. In Elliot v. Larson, supra, the court after reviewing the record and the transcript upheld the trial court's decision granting such motions and quoted from Judge Kocay's decision. In that decision the court said "the award of plaintiff's lost wages must necessarily have flowed from the conclusion that he was injured, suffered pain and could not work. The failure to award non-economic damages is inconsistent with the conclusion of injury and the award of lost wages." The trial court went on to note that the plaintiff had a pre-existing condition but it was congenital and prior to the accident the plaintiff was asymptomatic and had had no treatment to his back prior to the accident. Elliot at 81 Conn. App. at p. 477. This was a different situation from that presented in Wichers as to a preexisting condition. In any event the Elliot court went on to uphold the trial court's conclusion that the facts of the case required it "to conclude that the plaintiff must have suffered pain and accompanying injury."
In Schroeder v. Triangulum Associates, 259 Conn. 325 (2002), the jury made an award of $750,400 in economic damages and no award for noneconomic damages. The trial court refused to set aside the verdict and the Supreme Court held that this was error and ordered a new trial. The case did not involve the question of additur but its fact pattern and discussion are informative. The court first said that: "It is not reasonable for the jury to have found the defendant liable for the expense of the spinal fusion surgery, but not liable for the pain and permanent disability necessarily attendant to such invasive surgery." Id. page 332. The court further notes that: "The defendant further argues that the verdict was proper because the jury could have credited the evidence that tended to show that the plaintiff's injuries were caused by incidents (fireworks explosion near ear, auto accident, fall into sinkhole) unrelated to his injury at the Country Tavern Restaurant. The jury clearly did not credit such evidence however, because it initially found the defendant to be fully liable for substantially all of the plaintiff's economic damages, including medical expense for the plaintiff's spinal injury." Id. 334 ( id. p. 331 for nature of prior incidents).
Using the foregoing discussion as a rough guideline, the court will now try to examine the specific facts of this case.
Defense counsel did an effective job of raising issue as to the plaintiff's credibility. One of the matters he brought out is the failure to reveal in response to interrogatories several accident incidents occurring after this accident in which he claimed to have suffered injury to some of the same areas of the body allegedly injured in this accident. But there was no medical testimony or other convincing testimony as to nature and severity of these injuries, how they related to any injury caused by this accident and the duration of any such injuries super-imposed on similar injuries which the plaintiff claims to have suffered continuously from the date of the accident and which claim is in certain measure supported by the medical record. Also there is no evidence that the plaintiff had any pre-existing injury to the areas he now claims were injured by the accident.
Under these circumstances the jury's award of over $21,000 in lost wages and no non-economic damages was unreasonable. It is true that several months of lost wages accrued after a shoulder injury in the beginning of 2001 that the plaintiff told his doctor resulted from shoveling snow, but the great bulk of the lost wage claim cannot be easily explained away occurring as it did sequentially after this March 1999 accident. Certainly as to that earlier portion of the lost wage claim the jury must have concluded that he lost time from work due to the limitations and injuries caused by this accident. He was out of work from the date of the accident in March until November 1999 and was then part-time for three weeks — all of this during a time period in which there was no evidence of injuries subsequent to this accident.
The same can be said for much of the physical therapy Mr. Parks received. How could the jury have awarded monies for physical therapy and no non-economic damages that might be associated with it? What other reason for awarding such expenses can be given except that the jury concluded the therapy was an attempt to deal with pain and limitations of activity arising out of the accident. For example notes from a therapy provider attest to complaints made by the plaintiff to pain in areas allegedly injured in this accident. The last note is dated October 28, 1999 some seven months after the accident and talks of residual pain in the neck and back fluctuating in severity and location. If the latter description was considered fallacious by the jury and offered to explain the failure to award non-economic damages, how was it reasonable for the jury to award economic damages for this therapy?
The jury also awarded the cost of the surgery the plaintiff received on his shoulder. He apparently told one of his doctors that the shoulder pain started in March 2001 becoming more severe two days before the doctor visit on May 3, 2001 and the pain was precipitated by a snow shoveling incident. After the accident he complained of shoulder pain but the medical record appears to indicate that the complaints of shoulder pain became more consistent and severe after the spring of 2001. He was treated by injection but the shoulder was finally operated on in late January of 2003. The jury apparently believed the injuries he received to his shoulder as a result of this motor vehicle accident were at least in part responsible for the condition which necessitated the shoulder surgery.
In any event because of the foregoing the court concludes the jury decision on full economic costs being awarded with absolutely no non-economic costs was inconsistent and unreasonable and the verdict should be set aside.
The court will now address the issue of additur. In a sense a trial court is in an odd position at this juncture. On the one hand it is necessary for it to take into account the defendant's constitutional right to a jury trial in conducting the decisional process of whether to set aside the verdict. But once having decided to do that it then becomes in effect a trier of fact, sans jury, for the purpose of determining the amount of any additur. The saving grace as to constitutional rights is the option to reject the court's decision and to demand a new trial — leaving aside of course the fact that the cost and burden of such a procedure must be taken into account by any rational actor faced with such a choice which does place a price on the exercise of our constitutional right to a jury trial.
On the issue of additur and turning to the facts of this case as presented at trial, the court believes plaintiff's counsel did an excellent job with the case presented to him by his client and also in parrying some of the issues raised by the defendant. But defense counsel was extremely thorough in raising serious questions about the plaintiff's credibility. A court deciding the question of an appropriate additur has to regard credibility as a critical concern on the issue of non-economic damages. It goes to the heart of any claim for pain and suffering, loss of the enjoyment and participation in life's activities, and even claims of permanent impairment which often do not translate so easily into actual loss of the ability to participate in life by any particular person since they are based on standardized guidelines. Such complaints are in large measure subjective and cannot be proven or disproven by objective examination.
The plaintiff's general credibility was thrown into question in several ways. As is indicated he failed to indicate in his response to interrogatories several injury-causing incidents after the accident. He apparently did not tell his lawyer about the snow shoveling genesis of his increased shoulder pain in late April of 2001 and Dr. Connair the doctor who operated on his shoulder. On direct he repeated that his shoulder pain remained constant since the date of the accident and continued in the same way until the date of the trial, If that is true, why would his treating physician Dr. Blander write in his May 3, 2001 notes "left should pain — started two months — severe past couple days."
Also, for a variety of reasons the court considers that the plaintiff's claims of actual real world impairment, as the latter word is used in common language, were exaggerated. This is also the conclusion it has reached on his claim of actual pain and suffering. A video of the plaintiff was shown at trial, taken of course without his knowledge, showing him at a son's baseball game carrying a bag of athletic gear and showing no obvious discomfort. He testified he moved his belongings himself from our state to New York and also helped his girlfriend move. What was particularly damaging to the plaintiff's credibility as to claims of pain and suffering were two matters explored by both sides at trial. In late 2001 he tried to switch jobs at SNET into outside construction. Two weeks of training were involved and he admittedly stayed on the job only one week because "it was too physically demanding." He tried to change jobs because it would increase his pay and thus enable him to provide a better life for his children. This is certainly commendable, but if he had all the injuries and resulting pain and suffering from this accident that he claims, how could he even contemplate taking a job like the one in question let alone stay involved in it for several weeks? It involved replacing telephone poles, sometimes actually climbing them, digging holes for the poles, tying poles together, sometimes transferring wire from an old pole to a new pole. Also worthy of note as it bears on present and future expected pain and suffering claims is the fact that shortly before trial, he got a job at a rollerrama where he is a security guard on skates at a roller skating rink, this is in addition to his regular forty-hour job.
On the basis of all the testimony and evidence the court will award non-economic damages in the amount of $35,000 which is of course in addition to the economic damages award made by the jury.
The defendant shall have fourteen days from the filing of this decision to file a written acceptance of the additur with the clerk. If it is so filed judgment shall enter in the amount of $87,371.37 for non-economic damages which includes the economic damages already awarded by the jury. If no acceptance is filed within the time limit, the motion to set aside the verdict is granted and a new trial is ordered.
Corradino, J.