Julie Kempf v. Trina Maurice (2012)

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

This case arises out of a slip and fall which occurred January 28, 2009, in Bristol, Connecticut.   The plaintiff was a tenant of the defendant, and was residing in an apartment located at 150 South Street, Bristol, Connecticut.   Ms. Kemp was exiting her apartment to the backyard parking area, and was caused to slip and fall and sustain injuries due to defective stairs and handrail.   The plaintiff filed this action claiming money damages for her personal injuries.   The case was tried to a jury, who returned a verdict for the plaintiff in the amount of $30,021 of economic damages and $4,000 in non-economic damages.   The jury further allocated thirty (30) percent of the negligence causing the injury to the plaintiff, and reduced the verdict accordingly.   She 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 is inadequate as a matter of law, and contrary to law and contrary to the evidence.   The plaintiff further moves for an additur pursuant to the provisions of General Statues § 52–228b.   The defendant objects to both the motion to set aside the verdict and the motion for additur, arguing that the verdict was supported by the evidence adduced at trial.   She further argues that the verdict does not shock the conscience, and the jury's award of damages was not inadequate.   Oral argument on the motion to set aside the verdict and additur was heard on March 19, 2012.

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.

Motions to set aside jury verdicts and motions for additur are authorized by Practice Book § 16–35 and General Statutes § 52–228b.   In addition, the law is well established that the court's consideration of a motion for additur is guided by the parties' constitutional right to have factual disputes determined by the jury.   The constitutional right of a party to have damages decided by the jury “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 among fair-minded men passed upon by the jury and not by the court.”  Gladu v. Sousa, 52 Conn.App. 796, 800, 727 A.2d 1286 (1999), appeal dismissed, 252 Conn. 190, 745 A.2d 798 (2000).

In evaluating the adequacy of a jury's verdict, the court cannot substitute its discretion for that of the jury simply because this court would consider or weigh the evidence differently.   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.  Wochek v. Foley, 193 Conn. 582, 587, 477 A.2d 1015 (1984).   The jury, however, is also not obliged to believe that every injury causes pain or the pain alleged.  Valda v. Tusla, 214 Conn. 523, 538, 572 A.2d 998 (1990);  Lindman v. Nugent, 59 Conn.App. 43, 755 A.2d 378 (2000).   “A verdict should not be set aside ․ where it is apparent that there was some evidence on which a jury might reasonably have reached its conclusion.”   Schettino v. Labarba, 82 Conn.App. 445, 450 (2004).   A court should be hesitant to set aside a jury's award of damages because the assessment of damages defies any precise mathematical computation.  Floyd v. Fruit Industries, Inc., 144 Conn. 659, 675, 136 A.2d 918 (1957).   Establishing damages is a task peculiarly within the expertise of a jury.  Zarelli v. Barnum Festival Society, Inc., 6 Conn.App. 322, 326, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986).

On the other hand, “it is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is ․ palpably against the evidence.”  (Internal quotation marks omitted.)  Malmberg v. Lopez, 208 Conn. 675, 679–80, 546 A.2d 264 (1988).   The standard controlling this consideration is “whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption.”  (Internal quotation marks omitted.)  Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990).

The plaintiff claims that the proven injuries do not support the inadequate damages awarded by the jury (1) due to a miscalculation of the economic damages by the jury, and (2) reduction of the economic damages for the Bristol Hospital bill.   As a result, the award for non-economic damages is inadequate and inconsistent and requires an additur.

The plaintiff is a licensed hairdresser.   On January 28, 2009, she was exiting her apartment building when she slipped and fell, landing hard on her hip and back.   She was taken by ambulance to Bristol Hospital, where she stayed for four days complaining of back pain and diagnosed with a lumbar strain.   During her time in the hospital, she received no treatment, had no further diagnostic testing performed, and had no surgeries or other medical procedures.   She was discharged home with a walker.

The plaintiff testified that she had continual pain, which resulted in her seeking treatment with a neurologist, Dr. Roshni Patel, for pain management.   She has been receiving injections for her pain, and there was evidence submitted that she will continue to require this treatment.

The jury also heard testimony from Dr. Aris Yannopoulos, head of orthopedic surgery at St. Francis Hospital, who opined that none of the radiographic tests performed on the plaintiff showed any evidence of an acute injury, and her only diagnosis was for lumbar muscle strain.   He stated that such a diagnosis does not require the pain management she was receiving by way of injections, and that this type of injury should only require a limited amount of physical therapy and ultimately will resolve itself.

There was also evidence which included testimony that approximately one month before she fell, the plaintiff had seen Dr. Patel complaining of back pain which resulted in Dr. Patel ordering an MRI as well as prescribing medications.   Further documentation submitted indicated that eight months after she fell, the plaintiff complained to her treating physician, Dr. Jonathan Rosen, that she had pain in her legs and feet for a year from standing at work all day.

The case was submitted to the jury for deliberations, and the jury asked the court for a further explanation on the issue of comparative negligence, and how they were to decide the degree of negligence, if any, that the plaintiff might have contributed.   The court provided the explanation to the jury in open court by re-reading the portion of the jury instructions as it related to comparative negligence and giving an example.   Shortly thereafter, the jury returned a verdict in favor of the plaintiff.   They had been furnished with jury interrogatories, which itemized the plaintiff's past medical treatment, as well as verdict forms.   In reviewing the interrogatories and verdict forms, it was obvious to the court that the jury had not carried over the total amount of the past medical treatment award on to the verdict form, but had placed only the amounts of future medical treatment and noneconomic damages on the verdict form.   The court sent the jury back into deliberations, with instructions to review the interrogatories and verdict form.   The jury then submitted a second set of jury interrogatories and verdict form which was completed properly.

The verdict in favor of the plaintiff did not award the full amount of claimed economic damages.   They reduced the economic damages for Bristol Hospital by fifty (50) percent and awarded $3,772.19, and made no award for the treatment provided by Dr. Patel.¹  The verdict form indicated the amount of past economic damages awarded was $26,021, $0 for future economic damages, and $4,000 for non-economic damages, for a total verdict of $30,021.   This amount was then reduced by the thirty (30) percent of comparative negligence which the jury attributed to the plaintiff, for a total award of $21,015.

The plaintiff contends that the verdict involves a miscalculation of the economic damages, in that the jury appeared to reduce the amount of economic damages by thirty (30) percent before calculating the total of all economic and non-economic damages.   Her assertion is based on the fact that the jury asked for clarification of the comparative negligence calculation which required further instruction by the court.   She hypothesizes that the jury reduced the total economic damages that the jury could have awarded ($39,629.17) by thirty (30) percent, leaving a reduction of $11,888.75, which is close—but not exact—to the amount of Dr. Patel's bill of $11,899.75.   This she contends was a double thirty (30) percent reduction in the plaintiff's damages, which would amount to an error, and “shock the conscience.”

“[T]he 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).   There is no evidence which would support a conclusion that the jury took any double deduction to reach its verdict.

The second issue that the plaintiff raises involves the jury's reduction of the medical bill for Bristol Hospital by fifty (50) percent.   She argues that there is no rational basis for which the jury could have reduced the bill, given that it was for treatment proven to be attributed to the plaintiff's fall.   Given the evidence submitted of the plaintiff's previous back injury and the opinion testimony of Dr. Yannopoulos, it was reasonable for the jury to conclude that the plaintiff's stay at Bristol Hospital was due to her complaints of pain, not to treatment for any injury and not for observation or diagnostic testing.

The basis for the jury's verdict could have been reasonably provided by evidence that:  (1) the plaintiff was able to ambulate outside for the purpose of taking photographs one week after her fall;  (2) notwithstanding her testimony that she still has daily back pain that limits her activities, she has had no pain management treatment to the back in sixteen months;  (3) her doctor indicates she has an excellent prognosis but may have some flare-ups;  and (4) Dr. Yannopoulos opined that there is no evidence of any ongoing injury.

As to the issue of the award for non-economic damages, the plaintiff contends that the amount awarded for non-economic damages is inconsistent and inadequate given the evidence presented at trial.   The jury awarded $24,020.42 in past medical expenses, and yet awarded only $4,000 in non-economic damages, which the plaintiff argues is inadequate if the jury believed the plaintiff was injured and obtained treatment resulting in medical bills.

Under the facts of this case, it was reasonable for the jury to award $4,000 in noneconomic damages.  “In determining whether to set aside the verdict, the trial court walks a thin line ․ Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion.”  (Internal quotation marks omitted.)  Labbe v. Pension Commission, 239 Conn. 168, 192, 682 A.2d 490 (1996).  “The jury is entrusted with the choice of which evidence is more credible and what effect it is to be given.”  Birgel v. Heintz, 163 Conn. 23, 301 A.2d 249 (1972).  “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 witness.”  (Internal quotation marks omitted.)  State v. Smith, 99 Conn.App. 116, 136, 912 A.2d 1080 (2007).   In Parasco v. Aetna Casualty & Surety Co., 48 Conn.App. 671, 676, 712 A.2d 433 (1998), the court stated, “[t]he jury was not compelled to accept the plaintiff's claims as to the severity of her injuries, no matter how persuasive that evidence might have seemed to the trial court.”   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 (1998).   If the jury could reasonably have reached its conclusion, the verdict must stand, even if this court might disagree with it.  Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006).  “[I]t is well established that, [i]n the absence of a showing that the jury failed or declined to follow the court's instructions, we presume that it heeded them.”   (Internal quotation marks omitted.)  State v. Carpenter, 275 Conn. 785, 828, 882 A.2d 604 (2005).   No such showing has been made here.

The court is unable to conclude that the jury verdict is internally inconsistent 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 non-economic damages.   It would be improper, therefore, for the court to substitute its judgment for that of the jury.

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

Swienton, J.

FOOTNOTES

FN1. The total Bristol Hospital bill was $7,544.19, and the total bill for Dr. Patel was $11,899.75..  FN1. The total Bristol Hospital bill was $7,544.19, and the total bill for Dr. Patel was $11,899.75.

Swienton, Cynthia K., J.