Edward A. Jazlowiecki v. Glenn Killion, Sr. et al. (2010)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR ADDITUR

This is one of those troublesome cases in which the jury agrees that the defendant is liable for some of the plaintiff's medical treatment but not for the pain that necessitated the treatment in the first place.   The case, which arose out of a rear-end collision in which the plaintiff's pickup truck was struck by the defendant's motorcycle, resulted in a jury verdict in the plaintiff's favor.   He was awarded economic damages of $1,375.00 for past medical expenses and no non-economic damages.¹

The plaintiff has moved to set aside the verdict and for an additur.   Any court considering such a motion must be guided by Wichers v. Hatch, 252 Conn. 174 (2000), in which the Supreme Court made it clear that an award of economic damages, even one of all such damages claimed by the plaintiff, without any non-economic damages, “is not always inadequate as a matter of law.”  (Emphasis original.)  Id. 186.   Rather, faced with a motion for additur, the trial court should test the jury's verdict “in light of the circumstances of the particular case before it” and “should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue [of non-economic damages].   That decision 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. 188-89.

In so holding the Court rejected as “not sound” “(t)he assumption ․ that a plaintiff who has proven that he was injured by a defendant's negligence must, by necessity, have also proven that the negligence caused pain and suffering.”  Id. 186.

The jury here awarded the plaintiff damages sufficient to cover twelve of the sixty chiropractic visits claimed;  those twelve visits extended from July 11 through October 22, 2008, a period of over three months.   So, the jury found that this represented the cost of “reasonable and necessary medical care [and] rehabilitative services ․” General Statutes § 52-572h(a).   And, assuming it followed the instructions it received, as the court must, the jury found that this medical care was the treatment that “the reasonable person in the plaintiff's circumstances would obtain in order to maximize his medical condition and minimize his pain.”   Jury charge, pp. 20-21.   Having done so, how could the jury reasonably and logically have denied any recovery for pain and suffering on the plaintiff's part?

This is not a case like Wichers, where the plaintiff had prior injuries to and degenerative conditions in his neck, the same area he claimed to have injured in that collision.  Id., 177-78.   The plaintiff here acknowledged pulled muscles and whiplash from two prior rear-end collisions in the 1980s, from which he had made a full recovery.   He had suffered no impairment as a result of those long-ago injuries and was not, at the time of this collision, experiencing any pain or receiving any treatment for them.   While the reasonableness and necessity of the treatment sought by the plaintiff were vigorously contested at trial, the absence of prior injuries to which that treatment might be ascribed was not.

Nor was this a case, like Turner v. Pascarelli, 88 Conn.App. 720, 725 (2005), in which “the damage to the plaintiff's car was minor.”   The jury awarded the plaintiff $12,031.00 for damage to his truck, and the photos in evidence support that assessment of substantial damage.   The plaintiff's treating chiropractor testified as to the presence of muscle spasms and pain “throughout the back” when he examined the plaintiff on July 11, 2008 the day following the collision.   The orthopedist who gave him a disability rating found that the treatment the plaintiff received was reasonable and necessary and was a result of this collision.   In sum, there is ample evidence in the record from which the court can make the “case-specific” determination demanded by Wichers that the jury's award falls outside the “necessarily uncertain limits of just damages [and] so shocks the sense of justice as to compel the conclusion that the jury were influenced by ․ mistake ․” (Citations omitted;  internal quotation marks omitted.)  Birgel v. Heintz, 163 Conn. 23, 27-28 (1972).

The jury reasonably could not have found that the defendant's negligence was the proximate cause of injuries for which it was reasonable and necessary for the plaintiff to seek three months of treatment to minimize his pain but was not the proximate cause of any pain and suffering on his part.   See Schroeder v. Triangulum Associates, 259 Conn. 325, 333 (2002).

Accordingly, the motion for additur is granted, and the court concludes that fair, just and reasonable compensation for the plaintiff's pain and suffering for the period from July 11 to October 22, 2008 is $3,500.00.

By no later than Nov. 15, 2010, pursuant to General Statutes § 52-228b, both parties shall file written statements whether or not they accept the court's additur.   If either party does not accept the additur, a new trial on the issues of liability and damages is ordered.   See Stern v. Allied Van Lines, Inc., 246 Conn. 170 (1998).

BY THE COURT

Joseph M. Shortall J.T.R.

FOOTNOTES

FN1. The jury found the plaintiff 20% negligent in causing the collision..  FN1. The jury found the plaintiff 20% negligent in causing the collision.

Shortall, Joseph M., J.T.R.