Opinion
UWYCV146025889S
12-20-2017
Charles SPEIGHT v. Marvin SOOKRAM
UNPUBLISHED OPINION
OPINION
Brazzel-Massaro, J.
INTRODUCTION
The above action was filed seeking damages for an automobile accident that occurred on July 9, 2014. The action was tried to a jury. On July 26, 2017, the jury returned verdicts awarding economic damages to each of the plaintiffs, Charles Speight and Barbara Day. The jury did not award non-economic damages to either plaintiff.
Barbara Day died before the trial of this matter and there were no depositions introduced as to her claims. The plaintiff introduced the medical reports and treatment for Barbara Day as an exhibit but did not include any testimony.
On August 4, 2017, the plaintiff has filed a motion for additur and to set aside the verdict arguing that failure to include any non-economic damages is manifestly unjust and based upon some partiality, mistake or corruption of the jury. The defendant filed an objection on August 10, 2017 contending that the award of economic and $0 non-economic is consistent with the testimony and not contrary to the law, as set forth in Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000). The plaintiff filed a reply memorandum on August 18, 2017. The parties appeared and argued the motion and objection on December 11, 2017.
DISCUSSION
General Statutes Sec. 52-228b and Practice Book Sec. 16-35 provide for motions to set aside the verdict and for new trials and for additur to remedy an erroneous jury verdict. The standard of review governing such motions is well-settled. " The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion is against the law or the evidence ... [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles ... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion ... that in the absence of clear abuse, we shall not disturb." (Citation omitted, internal quotation marks omitted.) Edmonds v. CUNO, Inc., 277 Conn. 425, 452, 892 A.2d 938 (2006).
When considering a motion for additur, " [i]t is the court’s duty to set aside the verdict when it finds that it does manifest injustice and is ... palpably against the evidence ... The only practical test to apply for a verdict 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 ..." (Citations omitted; internal quotation marks omitted.) Ng v. Wal -Mart Stores, 122 Conn.App. 533, 536, 998 A.2d 1214 (2010).
The defendant relies upon the finding in Wichers v. Hatch, 252 Conn. 174, 176, 745 A.2d 789 (2000), where the court concluded that a jury verdict awarding economic but not non-economic damages to a tort claimant is not improper as a matter of law. The defendant also relies upon the decision in Deesso v. Litzie, 172 Conn.App. 787, 163 A.3d 55 (2017) in which the court emphasized Wichers that stated: " It is well established in Connecticut a jury’s decision to award economic damages does not trigger, as a matter of law, an automatic award of non-economic damages." Deesso, supra, at 804. The court further enunciated that in following Wichers the court when confronted with a jury verdict of economic damages and no non-economic damages " must determine on a case-by-case basis whether a verdict is adequate as a matter of law ..." Id.
The plaintiff argues that this action is different than many of the decisions which find that the court will not disturb the jury verdict because in this action the jury awarded the full amount of the medical expenses in the exhibits and no noneconomic damages. The plaintiff contends that therefore the finding is contrary to the evidence, testimony and the law. The plaintiff’s interpretation of Deesso that if all economic damages are awarded there should be a noneconomic award is not an accurate reading of Deesso . To do so creates a mandate to award non-economic damages if the jury awards all of the economic damages and eliminates the great deference given to a jury as well as usurping the jury’s authority and discretion.
The defendant argues that the jury award was reasonable and that there was a basis for not awarding non-economic damages. In particular, the defendant points to the testimony that the plaintiff Speight had some back issues of scoliosis as a young boy approximately 20 years before this incident. He had surgery related to the lumbar scoliosis 20 years ago but nothing since that date. The defendant argues that this evidence and testimony reasonably establishes a basis for failure to award any noneconomic for the pain and suffering of the plaintiff and for future non-economic damages as to Speight. As to the plaintiff Day, there was no testimony and only medical records as to her claims. The defendant does not address the verdict for Day which permitted only economic damages.
This court will not award non-economic damages simply because the jury awarded all of the economic damages. However, this court will address the motion by following the criteria set forth in Wichers .
The controlling case in determining whether this court should set aside or grant an additur is Wichers . Thus, this court must view the particular claims, testimony and evidence introduced during the trial of this matter in arriving at a conclusion. The court had the same opportunity to view the witnesses, to assess their credibility, and to determine the weight that should be given to their evidence. In an action such as the instant case there was testimony and argument concerning the plaintiff Speight’s prior back issues and the impact on him. This surgery was to the lumbar area and not to the cervical area. In many instances the court would defer to the decision of the jury which could have determined that the prior back problem caused the pain and suffering but as noted below the evidence and testimony presented to the jury does not support the conclusion. There was testimony from Speight about the pain and difficulties he has experienced since the date of the accident beginning with the visit to the hospital. There were numerous medical bills and extensive records of his treatment with Dr. Porzio for the pain, lack of mobility and impact of not only the lumbar area which was partially impacted by the scoliosis but there was testimony and evidence of damage and pain to the cervical area of his spine. The records of Dr. Porzio are detailed and extensive. He began his treatment with Dr. Porzio in July 2014 until November 14, 2014 when Dr. Porzio indicated that his improvement was rated at 75%. The records indicate that on each visit the plaintiff complained of pain, " spasms, " aches, feeling sore all over, and little improvement. In assessing the pain level the plaintiff rated it from 9 out of 10, to 8 out of 10 and then 7 out of 10. The treatment with Dr. Porzio included methods to relieve the pain. Dr. Porzio assessed there is a permanency rating of 5% to the cervical area and 3% to the lumbar area.
As to Barbara Day there was no testimony about the accident or the treatment thereafter. The only evidence as to non-economic damages were the medical records of Dr. Porzio. Ms. Day went to St. Mary’s Hospital and complained of pain but other than medication she had no other treatment at St. Mary’s Hospital. She began treatment with Dr. Porzio on July 16, 2014. The plaintiff’s chiropractic records indicate she complained of " pain in her neck and shoulder blade area around to her ribs." (Exhibit 9.) She continued to treat with Dr. Porzio with the records indicating achy, sore, pain, difficulty sleeping, difficulty with movement and the pain increasing as the day progresses. Ms. Day had approximately 34 visits with Dr. Porzio during which she received the same treatments for pain levels that fluctuated during the time. There was a final report on December 24, 2014 which stated she was being discharged with a 5% permanent partial disability of the cervical region and 5% permanent partial disability of the lumbar region. Ms. Day was approximately 61 years of age at the time of her treatment. The defendant did not challenge the bills and treatment nor did he argue that there was another cause as he did in regard to Speight’s treatment. The jury awarded all of the medical bills related to Ms. Day’s care and treatment at St. Mary’s Hospital as well as for her visits and treatment with Dr. Porzio. As with Mr. Speight, the jury awarded all of her medical bills including the chiropractic visits with Dr. Porzio. The jury did not award noneconomic damages for the claim by her.
The court should interfere in the findings of the jury only if it finds that the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation, 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. Beverly v. State, 44 Conn.App. 641, 646-47, 691 A.2d 1093 (1997). There is no basis to determine that the verdict so shocks the sense of justice but the award which includes the treatment for pain, soreness, achiness, lack of mobility and permanent findings is most certainly a mistake on the part of the jury. Although the defendant argues that it makes sense because Mr. Speight had a prior back problem, this argument does not address the clear evidence and testimony that the physical complaints by Speight involve a completely different part of the back than 20 years ago. Additionally, the defendant did not introduce any evidence or elicit any testimony that for the last 20 years the plaintiff has encountered back issues which are related to the scoliosis and the surgery performed for this condition. What is clear from the evidence and the jury verdict is that the plaintiff was injured and had pain and suffering as well as difficulty with his movement which the jury recognized in its award of all the damages. The jury accepted that there was an ongoing complaint that related to the cervical spine and not only to the lumbar area which had been treated some 20 years earlier. This award did not recognize the noneconomic aspect of the treatments for pain and movement which bills were paid and thus accepted.
" 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." (Citations omitted.) Birgel v. Heintz, 163 Conn. 23, 27-28, 301 A.2d 249 (1972)
The basis for the jury’s finding that there were no non-economic damages is inconceivable and unjust given the testimony they accepted as to the plaintiff’s ongoing treatment and therapy which was to address the pain and thus it is more than poor judgment but is an award that most certainly is a mistake by the jury.
The jury is " at liberty to accept what part of [the evidence it] chose and factor [that evidence] into [its] calculations." Barrows v. J .C. Penney Co., 58 Conn.App. 225, 753 A.2d 404, cert. denied, 254 Conn. 925, 761 A.2d 751 (2000). Here, the jury accepted the evidence of treatment for pain and impaired movement, thus it chose to award damages addressing this treatment. Consequently, the failure to recognize the award of money damages to address the pain and inability to enjoy life’s activities during this period of time and going into the future is a mistake and prejudicial to Mr. Speight. Based only upon the evidence and the testimony and not simply because the award included all of the medical expenses this court has determined that the jury award of all economic and no non-economic damages is inconsistent and contrary to the very evidence that was utilized to reach an award and thus orders an additur. The court is not basing the award on the plaintiff’s argument but is following the decision in Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000).
CONCLUSION
The court finds it fair and reasonable to award non-economic damages limited to the five-month period of time for which the jury awarded economic damages for both plaintiffs. In addition the plaintiff Speight has a permanency award that the jury did not recognize. An award of $3, 500 for the noneconomic damages is fair, just and reasonable in accordance with testimony and evidence. Therefore, the court grants the motion for additur as to the plaintiff Charles Speight in the amount of $3, 500 for non-economic damages and thus judgment would enter for the plaintiff Charles Speight in the total amount of $9, 954.00. The court grants the motion for additur as to the plaintiff Barbara Day in the amount of $1, 500 for non-economic damages and thus judgment would enter for the plaintiff Barbara Day in the total amount of $7, 878. If the defendant does not accept the additur of $3, 500 as to Charles Speight and $1, 500 as to Barbara Day by January 3, 2018, then the verdict will be set aside and a new trial is ordered as to the defendants, limited to the issue of economic and non-economic damages.