Myrna Cortezano et al. v. Thomas Trombley et al. (2010)

MEMORANDUM OF DECISION ON PLAINTIFF REYNALDO CORTEZANO'S MOTION TO SET ASDE VERDICT AS TO DAMAGES ONLY AND/OR FOR ADDITUR

This case arises out of a two-car accident which occurred on Route 8 in Waterbury.

The plaintiff, Myrna Cortezano, was the operator of a vehicle which was struck from behind by the defendant, Thomas Trombley.   In the vehicle driven by Mryna Cortezano were two passengers, Felicia Edwards and Reynaldo Cortezano (Mr. Cortezano).   The plaintiffs were all employees of Service Master and were on their way to a job site when the accident occurred.   The plaintiffs filed this action claiming money damages for personal injuries.   The case was tried to a jury, who returned a verdict for the plaintiff, Mr. Cortezano, in the amount of $5,584.05 of economic damages and $0 in noneconomic damages.¹  He has filed a motion to set aside the verdict as to damages only, and/or to order an appropriate additur, on the grounds that the jury verdict, which awarded economic damages for his medical expenses but no noneconomic damages, is inadequate as a matter of law.

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, 68 Conn.App. 541.

The plaintiff cites to Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000), for the principle that a jury's failure to award noneconomic damages in cases where they have found and awarded economic damages is not an automatic grounds for an additur, but should be reviewed on a case by case basis.   Also citing Wichers, the defendant argues that a jury award of economic damages that is not accompanied by an award of noneconomic damages is adequate if justified by the evidence put forth at trial.  Id., 185-86.

After the accident, all three plaintiffs went on to their job site and worked for a period of time, which work involved heavy clean-up of a water damaged church.   The police report introduced as evidence indicated that “[neither] of the other two passengers in [Myrna Cortezano's vehicle] were injured.”   Further, Mr. Cortezano did not seek any medical treatment immediately following the accident, which was described as extremely minor.

The defendant introduced an independent medical review of Mr. Cortezano which contested the legitimacy of his claimed injuries.   Specifically, the independent medical review indicated that (1) x-rays of his right shoulder taken three days after the accident were found to be negative as to any acute abnormalities;  (2) x-rays of his cervical spine were found to be negative for any acute abnormalities but did reveal that he had degenerative joint disease in his cervical spine which existed prior to the subject accident;  (3) the records of treatment at Bristol Hospital for physical therapy revealed no details regarding his presenting symptoms at the time of each of his first 15 visits and that he only first expressed subjective complaints of low back pain during his last two visits, (5) the physical therapy records showed that his spine and shoulder did not require treatment beyond the first several visits, and (5) the chiropractic treatment given the plaintiff from January 15, 2008, to March 10, 2008, was medically unnecessary.

Thus, the jury could have found that the evidence was sufficient to award the expenses of some of the treatment because the expenses were reasonable and necessary and casually related to the accident, but that the evidence was insufficient to establish that Mr. Cortezano felt any substantial pain or suffered a permanent disability as a result of the accident.   Furthermore, there was evidence that Mr. Cortezano suffered from a pre-existing condition.   He is an elderly man whose subsequent complaints of injury to the lumbar appeared unrelated to the accident.

Examining the evidence, the jury could have easily reached the conclusion that such evidence that any pain Mr. Cortezano experienced after the accident was derivative of his age and physical condition and not a consequence of the accident, and that he failed in his proof on the issue of noneconomic damages.

The court is unable to conclude that the jury verdict is internally inconsistent because of an award of economic damages without an award of noneconomic damages given the evidence and the reasonable inferences that a jury might draw from that evidence and the effect those inferences could have on the award of noneconomic damages.   It would be improper, therefore, for the court to substitute its judgment for that of the jury.

The plaintiff Reynaldo Cortezano's motion to set aside the verdict as to damages only and/or for additur is denied.

Swienton, J.

FOOTNOTES

FN1. Mr. Cortezano claimed medical expenses in the total amount of $8,222.50.  FN1. Mr. Cortezano claimed medical expenses in the total amount of $8,222.50

Swienton, Cynthia K., J.