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

MEMORANDUM OF DECISION ON PLAINTIFF FELICIA EDWARDS' MOTION TO SET ASIDE VERDICT AS TO DAMAGES ONLY AND 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 the vehicle which was struck from behind by the defendant, Thomas Trombley.   In the vehicle driven by Mryna Cortezano were two passengers, Felicia Edwards, (Edwards), and Reynaldo 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, Edwards, in the amount of $5,225.38 of economic damages and $0 in noneconomic damages.¹  Edwards 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 her medical expenses and lost wages 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.

Edwards 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 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.”   Edwards did not seek any medical treatment immediately following the accident, which was described as extremely minor.   Nevertheless, Edwards testified that the impact was like “being hit by a tractor trailer.”   When she initially sought medical treatment for evaluation, she reported no radiating pain into her extremities, had no signs of soft tissue swelling and no acute abnormalities in her spine or shoulder.   The day after the accident she was re-evaluated by a physical therapist and the report notes indicated that the CT scan and x-rays were both negative and her range of motion in her shoulder were normal.

The defendant presented medical evidence of an independent medical review of Edwards which contested the legitimacy of her claimed injuries.   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 Edwards suffered a permanent disability or that she ever felt any substantial pain.   Although there was no evidence that Edwards suffered from any pre-existing injury or condition, the evidence did show that she was a manual worker who has, as part of her employment, engaged in intense physical activity throughout her life.   Examining the evidence, the jury could have easily reached the conclusion that such evidence that any pain Edward experienced after the accident was derivative of her physical labor and not a consequence of the accident and that Edwards failed in her 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 Felicia Edwards' motion to set aside verdict as to damages only and/or for additur is denied.

Swienton, J.

FOOTNOTES

FN1. The jurors awarded Edwards $3,572.17 in medical expenses which represented all of her medical expenses associated with one provider, 2/3 of her medical expenses associated with a chiropractic service, and all of her medical expenses associated with a physical therapist.   The jurors awarded Edwards $1,653.21 in lost wages which represented 2/3 of her total claimed lost wages, finding that she was unable to work for 194 hours as a result of her injuries..  FN1. The jurors awarded Edwards $3,572.17 in medical expenses which represented all of her medical expenses associated with one provider, 2/3 of her medical expenses associated with a chiropractic service, and all of her medical expenses associated with a physical therapist.   The jurors awarded Edwards $1,653.21 in lost wages which represented 2/3 of her total claimed lost wages, finding that she was unable to work for 194 hours as a result of her injuries.

Swienton, Cynthia K., J.