Michele I. Palazolo v. Diane Tinkham (2010)

MEMORANDUM OF DECISION

The instant action stems from a claim to recover damages for personal injuries sustained by the plaintiff, Michele Palazolo, as the result of an automobile accident allegedly caused by the defendant, Diane Tinkham's negligence.   The plaintiff allegedly sustained injuries as the result of her stopped car being struck from behind by the defendant's vehicle, which was then forced into the car immediately in front of her.   The defendant admitted liability.   The matter was brought to this court and tried to the jury at which time the defendant contested the nature and degree of the injuries sustained by the plaintiff and the resulting damages.   A verdict was rendered for the plaintiff on April 30, 2010, and damages were awarded in the amount of $12,572.22 in past economic damages and $1,000 for past non-economic damages.   No damages were awarded for future economic damages or future non-economic damages.   The court accepted the verdict.   On May 10, 2010, the plaintiff filed the present motion seeking additur to the verdict or, in the alternative, that this court set aside the verdict and order a new trial.   On June 10, 2010, the court heard oral argument on the plaintiff's motion and has reviewed the plaintiff's memorandum of law in support of the motion.

The standard for setting aside a verdict and ordering an additur, pursuant to the provisions of General Statutes §§ 52-216a, 52-228b and Practice Book § 16-35 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.”  (Internal quotation marks omitted.)  Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 541-42, 792 A.2d 132 (2002).  “The right to a jury trial is fundamental in our judicial system ․ 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.”  (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).  “In evaluating the adequacy of a jury's verdict, the court cannot substitute its discretion for that of the jury simply because [the] court would consider or weigh the evidence differently ․ Establishing damages is a task particularly within the expertise of a jury.”  (Citations omitted.)   Massiah v. Puma, Superior Court, judicial district of Fairfield, Docket No. CV 06 5004457 (November 13, 2009, Arnold, J.).  “Mere doubt as to the adequacy of a verdict or a conclusion that the jury exercised poor judgment are insufficient grounds to order an additur.”  Id., citing Wocheck v. Foley, 193 Conn. 582, 587, 477 A.2d 1015 (1984).   The jury is not obliged to believe that every injury causes pain or the pain alleged.  Lindman v. Nugent, 59 Conn.App. 43, 46, 755 A.2d 378 (2000);  Massiah v. Puma, supra, Superior Court, Docket No. CV 06 5004457, citing Vajda v. Tusla, 214 Conn. 523, 538, 572 A.2d 998 (1990).  “Whether [a witness'] testimony [is] believable [is] a question solely for the jury.   It is ․ the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses” including the plaintiff's credibility.  State v. Smith, 99 Conn.App. 116, 136, 912 A.2d 1080, cert. denied, 281 Conn. 917, 917 A.2d 1000 (2007).

As noted by the plaintiff, in Wichers v. Hatch, supra, 252 Conn. 181, our Supreme Court concluded that “a case-specific standard should apply to the instance in which a party seeks to have a verdict set aside on the basis that it is legally inadequate.”  Benedetto v. Zaku, 112 Conn.App. 467, 470, 963 A.2d 94 (2009).  “The evidential underpinnings of the verdict itself must be examined.   Upon issues regarding which, on the evidence, there is room for a reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court might be that a different result should have been reached ․ [I]f there is a reasonable basis in the evidence for a jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will.”  (Citations omitted;  internal quotation marks omitted.)  Wichers v. Hatch, supra, 252 Conn. 189.   Furthermore, “[t]he 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.”  (Internal quotation marks omitted.)  Greci v. Parks, 117 Conn.App. 658, 679, 980 A.2d 948 (2009).

The plaintiff, in her memoranda of law in support of the motion for additur or, in the alternative, to set aside the verdict, argues that the verdict awarding the plaintiff for approximately 80 percent of her medical bills and only $1,000 for non-economic damages, and awarding nothing for future economic or future non-economic damages is illogical, unreasonable, and shocks the sense of justice.   She further submits that the jury was influenced by partiality, prejudice, mistake or corruption and that the verdict was unreasonable as a matter of law.   The plaintiff asks the court to find that the jury considered extraneous factors in arriving at its verdict including that some of the plaintiff's injuries were attributable to the failure of the deployment of the airbag at the time of the collision, that the jury was prejudiced against the plaintiff for taking a job that required her to drive 300 to 350 miles per day, or that the jury was influenced by some unknown corruption.   The plaintiff further argues that the verdict was inconsistent with the plaintiff's injuries, specifically with regard to her pre-existing asymptomatic back condition and an old right knee injury, neither of which were causing the plaintiff pain at the time of the accident.   Further, the plaintiff submits that the evidence showed that the plaintiff received medical treatment of a period of eighteen months, the evidence supported a finding of permanent injuries to her back and neck and that these injuries would cause the plaintiff pain for the remainder of her life of 50.8 additional years.   In addition, she claims that the evidence supported a finding of future economic damages for her need of over the counter medication and physical therapy, as well as future non-economic damages.   The plaintiff contends that all of this evidence supports the conclusion that the verdict of the jury shocks the conscience and sense of justice and goes against the weight of the evidence because the award of non-economic damages was disproportionate to the injuries sustained and medical treatment incurred, and do not fall within the necessarily uncertain limits of fair, just and reasonable compensation.

The court has reviewed the evidence presented in this case and the arguments of counsel, and cannot conclude that manifest injustice has been done.   The plaintiff's arguments as to the conclusions of the jury are merely speculative and not supported by the evidence.   As noted by defense counsel during oral argument, the jury deliberated approximately ten hours before reaching a verdict and the verdict form itself was quite clear.   Further, the plaintiff's claim for damages and her medical treatment for her alleged injuries was aggressively defended at the time of trial.   Of note, the plaintiff's counsel argued for damages of approximately $75,000 to $80,000.   Thus, the court finds that there was sufficient conflicting evidence as to the nature and extent of the plaintiff's injuries, and as to the severity, duration of pain and impact of the injuries suffered by the plaintiff in the collision, as well as any need for future medical care.   As already stated, supra, there is no obligation for the jury to find that every injury causes pain, or the amount of the pain alleged.   Similarly, the jury here was “not compelled to accept the plaintiff's claims as to the severity of her injuries ․” Parasco v. Aetna Casualty & Surety Co., 48 Conn.App. 671, 676, 712 A.2d 433 (1998).  “It is well settled that the amount of a damage award is a matter particularly within the province of the fact finder.”  Greci v. Parks, supra, 117 Conn.App. 679.

Though the jury rejected any claim for future economic damages and non-economic damages, that does not mean that the jury did not consider and acknowledge the necessity of some medical care.   Clearly, their verdict awarding approximately 80 percent of her claimed medical bills in economic damages demonstrates that they did.

Under all of the circumstances, the court cannot conclude that the jury's award of noneconomic damages was inadequate, nor can it conclude that the award shocks the conscience or that the jury was influenced by partiality, prejudice, mistake or corruption.   See Childs v. Bainer, supra, 235 Conn. 114.   It would be improper, therefore, for the court to substitute its judgment for that of the jury.  “It is not the function of this or any other court to sit as the seventh juror when reviewing the sufficiency of the evidence considered by a jury.”  Purzycki v. Fairfield, 44 Conn.App. 359, 362, 689 A.2d 504 (1997), rev'd on other grounds, 244 Conn. 101, 708 A.2d 937 (1999);  Massiah v. Puma, supra, Superior Court, Docket No. CV 06 5004457.   The evidence was sufficient for the jury to reasonably find that the overall impact of the accident was modest.   The decision of the jury, therefore, was reasonable and should not be disturbed.

Accordingly, the motion to set aside the verdict and for additur is denied.

Burgdorff, J.

Burgdorff, Mary-Margaret D., J.