Jason E. Dreisch v. Christina J. Burkey (2011)

MEMORANDUM OF DECISION ON MOTION TO SET ASIDE VERDICT AS TO DAMAGES ONLY AND FOR ADDITUR

This personal injury action was tried to a jury on October 12–13, 2011.   This matter is before the court concerning the plaintiff Jason Dreisch's motion to set aside verdict as to damages only and for additur (# 124) (motion to set aside), as to which the defendant, Christina J. Burkey, filed an objection (# 125).   The plaintiff stated in his motion to set aside that oral argument was not requested and testimony was not required.   The objection to the motion to set aside was on the short calendar on October 31, 2011, was marked take papers, and was referred to this court since the undersigned was the trial judge.   Neither party requested oral argument.   The court has considered the motion to set aside and the objection on the papers.   After consideration, the court issues this memorandum of decision.

I

Background

On October 13, 2011, the jury rendered a verdict in favor of the plaintiff, in the amount of $5,391.45, for economic damages only.   No noneconomic damages were awarded.   The jury awarded the plaintiff all of the amounts he requested for his medical bills, and none of his other claimed economic damages.   See Verdict for Plaintiff and Jury Interrogatories Regarding Medical Bills (# 127).

In the plaintiff's one-count complaint, dated July 17, 2009, she alleges that, on October 24, 2007, he was operating a motor vehicle on Mountain Road in Somers, Connecticut, when his vehicle became disabled.   He alleges that the defendant's vehicle struck his vehicle from behind.   The plaintiff claims that the October 24, 2007 accident caused him to suffer a lumbar strain and injury to his left knee.¹  He claims that pain and suffering and a severe shock to his nervous system were caused by the accident.

In his motion to set aside, the plaintiff asserts that the damages awarded by the jury are inadequate, contrary to law, and contrary to the evidence.   Based on General Statutes § 52–228b,² he seeks an additur, claiming that the jury failed to award noneconomic damages while awarding damages for medical bills for treatment, making the verdict inconsistent.

In opposition, the defendant argues that the plaintiff fails to cite any case to support his motion.   In addition, she asserts that the jury chose to disbelieve the plaintiff's testimony that he felt no pain in his knees or back prior to the subject accident, that it is apparent that the jury did not accept the plaintiff's claims as to the severity of his alleged injuries, and that it was not required to award noneconomic damages merely because it had awarded economic damages.

Additional facts are discussed below.

II

DiscussionA

The motion to set aside does not cite any testimony or other evidence which was presented at the trial and does not provide any legal analysis in support of the relief which is sought.   The Supreme Court “repeatedly ha[s] stated that [it is] are not required to review issues that have been improperly presented ․ through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ․ Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.”  (Internal quotation marks omitted.)  Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 597 (2008).   Since the plaintiff has provided no analysis, his motion is deemed to be abandoned.   However, since the defendant briefed the issues, the court addresses them below.

B

“The trial court possesses inherent power to set aside a jury verdict [that], in the court's opinion, is against the law or the evidence ․ [The trial court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside [when] 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 ․” (Internal quotation marks omitted.)  Auster v. Norwalk United Methodist Church, 286 Conn. 152, 159, 943 A.2d 391 (2008).  “[I]f there is a reasonable basis in the evidence for the 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.”  (Internal quotation marks omitted.)  Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000).

The Supreme Court has stated that a jury verdict which awards economic damages, but no noneconomic damages, is not per se contrary to law.  “Rather than decide that an award of only economic damages is inadequate as a matter of law, the jury's decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it.   Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue.   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.”  (Footnote omitted.)  Wichers v. Hatch, supra, 252 Conn. 188–89.

The Supreme Court also has established “the parameters of a trial court's discretion in ruling on a motion for additur.  [It has] considered whether:  (1) the jury award shocks the conscience;  ․ (2) the plaintiff, who has proved substantial injuries, is awarded inadequate damages;  ․ and (3) the verdict is inherently ambiguous.”  (Citations omitted;  internal quotation marks omitted.)  Childs v. Bainer, 235 Conn. 107, 114–15, 663 A.2d 398 (1995).

Numerous appellate court decisions provide guidance where a jury has awarded some or all of the economic damages claimed, but no noneconomic damages.   For example, in Wichers v. Hatch, supra, the court upheld the verdict of zero noneconomic damages where the evidence before the jury reasonably could have led it to find that, after the accident, the plaintiff saw his chiropractor more frequently than usual, “but that the accident did not cause him actually to suffer greater pain than he already had experienced as a result of his preexisting condition.   Certainly, the jury reasonably could have found that the accident had not aggravated the plaintiff's condition, and that his pain was the same as what he had experienced before his accident with the defendant.”  Id., 252 Conn. 189–90.   In Santa Maria v. Klevecz, 70 Conn.App. 10, 800 A.2d 1186 (2002), the Appellate Court affirmed a denial of a motion to set aside after a jury verdict which awarded the plaintiff substantially less than her claimed economic damages, and no noneconomic damages, based on credibility.   See id., 14.   The court found “that it was reasonable for the jury to conclude that the plaintiff's alleged pain and suffering was, at a minimum, exaggerated.”  Id., 15.   Among the factors leading to this assessment was that “[t]he jury also heard testimony that the plaintiff previously had injured herself in a slip and fall.   It was reasonable therefore for the jury to conclude that the fall or other stressors were at least partially responsible for the plaintiff's alleged pain and suffering.”   (Footnote omitted.)  Id., 16.

Subsequently, in Smith v. Lefebre, 92 Conn.App. 417, 422, 885 A.2d 1232 (2005), where the Appellate Court directed that the jury's verdict be reinstated, the court stated “there is no obligation for the jury to find that every injury causes pain, or the amount of pain alleged ․ Put another way, it is the jury's right to accept some, none or all of the evidence presented.”   (Citations omitted;  internal quotation marks omitted.)   There, “on the basis of the evidence adduced during the trial, the jury could have concluded that the plaintiff embellished or exaggerated both the nature and the extent of her injuries ․ [I]n light of the conflicting evidence with respect to the issue of damages, it was the jury's task to determine the credibility of the evidence ․ In light of the evidence, it was reasonable for the jury to award zero noneconomic damages ․ Moreover, the presence of such conflicting evidence curtailed the court's authority to replace the jury's damage award with its own.”  (Citations omitted.)  Id., 426.

Here, the jury did not award the full amount of claimed economic damages.   While the jury awarded the plaintiff the full amount of his claimed medical expenses, it did not award any other economic damages, even though the plaintiff claimed that he had to sell personal property as a result of the accident (amounting to about $17,000), since he claimed that he could not work as a plumber.   Also, the medical expenses awarded for physical therapy, $1,253.05 (for visits which occurred in January and February 2008, more than three-and-one-half years prior to the trial) represented less than 25% of the total of economic damages awarded by the jury.   See Jury Interrogatories Regarding Medical Bills.

The jury reasonably could have found that the evidence as to the plaintiff's claimed injuries was conflicting and that he was exaggerating and embellishing his claimed damages.   The evidence included medical records showing that the plaintiff claimed injuries to his back and knees prior to the October 2007 accident.   Defendant's Exhibit B, a physician record from Johnson Memorial Hospital's emergency department, page 3, reports that, on July 2, 2006, the plaintiff “was riding his quad when he avoided a collision with another car.   He claims he rolled his quad and fell on the pavement.   He is complaining of injuries to both knees and his right elbow.   He describes moderate pain and multiple abrasions.”   Percocet was prescribed.   The nursing record within the same exhibit (page 1 of 2) notes that the plaintiff had bruises and scrapes to his knees and elbow.   Also, defendant's Exhibit C, records of Francis Van Norstrand, M.D., a doctor who treated the plaintiff, show that he was seen for a complaint of back pain on June 7, 2007, about four-and-a-half months before the October 2007 accident.

The evidence also included records from the plaintiff's visit to the Johnson Memorial Hospital emergency department on October 24, 2007, subsequent to the accident (plaintiff's Exhibit 1).   It was noted, at page 1, that the plaintiff denied pre-existing knee troubles.   As to past medical history, the plaintiff reported a past head injury four years earlier, but did not report either his claimed knee injuries from the July 2006 accident or the June 2007 back pain.   See plaintiff's Exhibit 1, pages 1 and 5 (Johnson Memorial Hospital Triage).   The jury reasonably could have concluded from this evidence both that the plaintiff's damages claims stemming from the October 2007 accident were exaggerated and that his failure to accurately report his previous medical history undermined his credibility.

Also, in the police accident report concerning the October 2007 accident (defendant's Exhibit A), page 2, the officer reported that the plaintiff “stated that he was not injured as a result of said collision and declined medical treatment.”   In addition, at trial, the plaintiff testified that, prior to the accident, he attempted to go around to the right of a truck, which was making a left hand turn, and which was driven by an off-duty police officer, who returned to the scene after the accident.   The police accident report contains no statement by the plaintiff as to the presence of this third vehicle.   In his testimony at trial, the plaintiff disagreed with this aspect of the police report.   The jury reasonably could have found that the plaintiff's credibility at trial was undermined by this discrepancy.

The evidence also included a report of an office visit by the plaintiff to another physician, Timothy Fignar, M.D., on May 19, 2008 (plaintiff's Exhibit 5).   Therein Dr. Fignar noted that the plaintiff complained of left knee and low back pain.   The report notes that the plaintiff claimed that he lost consciousness at the time of the October 2007 accident and “was taken by EMS boarded and collared to the emergency room ․” At trial, the plaintiff testified that he did not lose consciousness at the time of the accident and that he was not boarded and collared by emergency personnel.   Based on such contradictions, the jury reasonably could have found the plaintiff's credibility to be undermined and his injury claims to be embellished.

There was additional evidence in Dr. Fignar's report from which the jury reasonably could have concluded that the plaintiff was exaggerating his claimed damages, since as to past history, Dr. Fignar reported that the plaintiff “[n]otes no previous history of knee problems.”   See plaintiff's Exhibit 5. As discussed above, the plaintiff's medical history includes a claim of injuries to his knees in July 2006.

Further, evidence of the plaintiff's recent engaging in go-cart racing also reasonably could have provided a basis for the jury's verdict.   See defendant's Exhibits J and N (photographs of plaintiff).   The jury reasonably could have concluded that, since he is able to engage in such activity, his injury claims were exaggerated.

In summary, the evidence provided a basis for the jury reasonably to conclude either that the plaintiff's claims of pain and suffering stemmed from conditions which existed before the October 2007 accident occurred and were not exacerbated thereby;  or that he did not experience increased pain and suffering as a result of the October 2007 accident.   See Wichers v. Hatch, supra, 252 Conn. 189–90;  Santa Maria v. Klevecz, supra, 70 Conn.App. 15–16.

Under the facts of this case, it was reasonable for the jury to award zero noneconomic damages.   See Smith v. Lefebre, supra, 92 Conn.App. 426.   Accordingly, the jury award does not shock the conscience.   The jury reasonably could have found that the plaintiff did not prove substantial injuries resulted from the October 2007 accident.   The jury did not award inadequate damages.   The jury's verdict is not inherently ambiguous.   See Childs v. Bainer, supra, 235 Conn. 114–15.

CONCLUSION

For the foregoing reasons, the plaintiff's motion to set aside the verdict as to damages only and for additur is denied.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. On October 7, 2011, the court issued a memorandum of decision (# 121) concerning the defendant's motion to preclude (# 110).   For the reasons stated in its decision, the court precluded the plaintiff from offering evidence at trial regarding a left knee tear or any need for future medical treatment thereon..  FN1. On October 7, 2011, the court issued a memorandum of decision (# 121) concerning the defendant's motion to preclude (# 110).   For the reasons stated in its decision, the court precluded the plaintiff from offering evidence at trial regarding a left knee tear or any need for future medical treatment thereon.

FN2. Section 52–228b provides, “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court.   No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive.   No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”.  FN2. Section 52–228b provides, “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court.   No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive.   No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

Shapiro, Robert B., J.