Sammy Thomas v. Napoli Foods, Inc. et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR ADDITUR (# 126)

This personal injury action was tried to a jury on May 15–17, 2012.   This matter is before the court concerning the plaintiff Sammy Thomas' motion to set aside verdict as to damages only and for additur (# 126), to which the defendants, Napoli Foods, Inc., and Angel Soto filed an objection.   The plaintiff filed his motion to set aside and for additur and memorandum in support thereof on May 23, 2012.   The objection to the motion to set aside and additur was filed on May 31, 2012 along with a memorandum of law in support of the objection.   On June 19, 2012, the defendants filed a supplemental objection to the motion to set aside and additur attaching a portion of the plaintiff's testimony at trial.   The matter was initially marked as take papers on the court's July 23, 2012 non-arguable calendar.   The court scheduled oral argument on the matter which was heard on August 20, 2012 at short calendar.   Pursuant to this court's order the defendant filed a copy of the transcript of the plaintiff's entire testimony subsequent to oral argument on August 20, 2012.   After consideration of the parties' briefs and arguments, and review of the evidential underpinnings of the verdict, the court issues this memorandum of decision.

I

BACKGROUND

On May 17, 2012, the jury rendered a verdict in favor of the plaintiff, in the amount of $4,925.29, 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 nothing for noneconomic damages.   See Verdict for Plaintiff (# 124) and Jury Interrogatories Regarding Medical Bills (# 123).

In the plaintiff's one-count complaint, dated May 10, 2010, he alleges that on October 1, 2008, at approximately 1:00 p.m., he was a passenger in a motor vehicle operated by Joel Harmon (not a party to this lawsuit), owned and maintained by the State of Connecticut, Department of Transportation (not a party to this lawsuit), traveling in an easterly direction on Barnum Avenue Cutoff in the Town of Stratford, Connecticut.   The plaintiff alleges that the defendant, Angel Soto, was the operator of a parked vehicle, leased and/or rented by the defendant, Napoli Foods, Inc. facing in the same easterly direction on Barnum Avenue Cutoff, parallel to the motor vehicle in which the plaintiff was seated.   The defendant, Soto was the servant, agent, or employee of the defendant, Napoli Foods, Inc., and was acting within the scope of his authority or employment.   The plaintiff further alleges that Soto opened the driver side door of his motor vehicle in such a manner and caused it to collide into the bus in which the plaintiff was seated.   The plaintiff alleges that as a result of Soto's negligence he sustained injuries to his neck, back, head and torso and that said injuries were serious and permanent.   The plaintiff alleged that as a result of his injuries he endured emotional and physical pain and suffering and an inability to engage in all of life's activities.

In his motion to set aside, the plaintiff asserts that the jury's award was “inadequate, inconsistent, illogical and contrary to the weight of the evidence.”   Based on General Statutes § 52–228b and Practice Book § 16–35 ¹ the plaintiff seeks an additur, claiming that the jury's failure to award noneconomic damages while awarding damages for medical bills for treatment, renders their verdict inconsistent.   The defendant argues that the verdict is consistent with the evidence and no basis has been presented to establish that the verdict is inadequate as a matter of law.

II

DISCUSSION

“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 ․” (Citations omitted;  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.”  (Citations omitted;  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.  Id., 188.  “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 awarded the plaintiff all of the claimed medical expenses and zero noneconomic damages.   The following facts were adduced at trial.   On October 1, 2008, the plaintiff was a passenger on a Milford Transit Bus. The plaintiff was seated “all the way in the back” of the bus, “the last row ․ on the driver side” at the “very, very corner.”   TR, 5/15/12, p. 4, 6. While the plaintiff was seated on the bus, the front right side of the bus was struck by the driver's door of the defendants' vehicle which was parallel parked.   Upon impact, the plaintiff moved forwards and backwards in his seat.  Id., 9–10.   He did not fall out of his seat, there were not cuts or bruises to his body, his body did not hit any part of the bus, nor did his body hit the seat in front of him.  Id., 9–10, 75–76.   His body did not hit the frame of the bus or the window next to him.  Id., 9–10.   The plaintiff was seated at the back of the bus on the opposite of where the impact occurred.  Id., 67.   The plaintiff did not report any injuries at the scene because he was feeling alright.  Id., 18.

The driver of the bus, Joel Harmon and his trainer, Val Harris, were seated at the front of the bus closest to the point of impact and felt little to no force from the impact.   Other than the plaintiff, there were approximately 22 passengers on the bus, none of whom reported any injuries.   The plaintiff continued on his trip to the Connecticut Post Mall after another bus came to pick up the passengers to take them to their destinations.   The plaintiff testified that late that evening he felt pain in his neck and it continued to get worse so he went to the Hospital of St. Raphael emergency room the next day on October 2, 2008.   The plaintiff was diagnosed with an acute cervical strain and lumbar strain and was discharged the same day.   The plaintiff was instructed to not engage in any strenuous activity, walk and bear weight as tolerated and return to work in three days.   He was prescribed 600 mg of Ibuprofen and instructed to take one tablet every eight hours as needed for pain.   He was also prescribed flexeril 10 mg and instructed to take one every eight hours as needed for muscle spasm.   The plaintiff was stable upon discharge, with his pain level at 2/10.   He was released with medical direction to return to see his physician “if your symptoms do not show improvement after one week.”   The plaintiff ignored this instruction and instead at the direction of his attorney, went to a chiropractor the next day.   The plaintiff sought treatment from Dr. James Sorrentino, a chiropractor who diagnosed a cervical sprain/strain, parathesia/tingling, headaches, ribs sprain/strain.   Neither parathesia/tingling, headaches nor ribs sprain are noted on the October 2, 2008, hospital emergency room report.   The plaintiff also sustained two prior injuries in May 2007 and December 2007 to the neck in a motor vehicle accident for which he received chiropractic treatment from Dr. Sorrentino.   The plaintiff received a 5% permanent impairment of the cervical spine as a result of the May 2007 accident.   In addition, Dr. Sorrentino opined that the plaintiff would require future medical treatment as a result of the May 2007 accident which would cost $1,000–$2,300 annually.   The plaintiff in his direct testimony denied any continuing problems from the prior accident, notwithstanding the opinion of his treating physician regarding permanent disability and future medical care.

After the October 1, 2008 accident the plaintiff treated for his injuries until January 2009.   Between October 2, 2008, when the plaintiff first treated with Whalley Chiropratic, and October 27, 2008 the plaintiff treated regularly.   Thereafter, the plaintiff did not return to Whalley Chiropratic until approximately one month later on November 21, 2008.   The plaintiff then continued to treat until January 2009, when, as he testified, that he, on his own, stopped the treatment because he was feeling better and had no problems.   TR, 5/15/12, p. 30–31.   The plaintiff testified that he was “120% better.”   The plaintiff further testified that he did not tell Dr. Sorrentino at his final exam on January 5, 2009, for the October 1, 2008 accident, that he was having mild to moderate neck pain, as written in Dr. Sorrentino's written final report.   The plaintiff testified that he was not aware of Dr. Sorrentino's 2.5% permanent disability rating to the neck which he attributes to the October 1, 2008 accident.   The plaintiff also testified that he was all better after the 2007 accident and that he did not know about the final report of Dr. Sorrentino in October 2007, wherein he assessed a 5% permanent disability of the cervical spine and stated that the plaintiff would need future medical care which would cost approximately, $1,000–$2,300 annually.   The plaintiff testified that “[t]he whole thing of my thing is paying my bills, you know, if the bus gets in a accident and I'm hurt I figure my bills should be paid.   I don't look for no money, if I wasn't hurt, when I got in a accident before and I wasn't hurt, and I was hurt for a day or two and I felt better I left it alone.”   TR, 5/15/12, p. 65.

Here, the jury awarded the plaintiff the full amount of his medical bills but did not award noneconomic damages.   The jury reasonably could have found that, notwithstanding Dr. Sorrentino's final January 5, 2009 report in which he assigns a 2.5% permanent partial disability, based on the plaintiff's own testimony that he was “120 percent” better after the October 1, 2008 accident, the plaintiff did not suffer any significant injuries as a result of the accident.   The jury could have concluded that the plaintiff's claimed damages were due to his prior injuries in May 2007 and December 2007, for which he received medical treatment and a permanent disability rating as a result of the May 2007 injuries.   The jury could have concluded from the description of how the accident occurred and where the plaintiff was seated on the bus in relation to the impact, that the plaintiff's injuries were not as serious as he claimed.   The jury could have concluded, based on the evidence that the plaintiff did not have any bruises or cuts;  that he did not fall off his seat;  that his body did not hit any portion of the bus;  and that he did not report any injuries at the scene and continued on his trip to the Connecticut Post Mall, that the plaintiff was not injured to the extent he claimed.   The jury could have reasonably concluded from the plaintiff's own testimony that all he wanted was his medical bills paid, because as he testified, “if the bus gets in a accident and I'm hurt I figure my bills should be paid.”   TR, 5/15/12, p. 65.

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 two prior injuries in May 2007 and December 2007, and were not exacerbated thereby and that his pain, if any, was the same as what he experienced before the bus accident;  or that he did not experience increased pain and suffering as a result of the October 2008 accident at all;  or that the plaintiff did not suffer any lasting injuries as a result of the October 1, 2008 accident.   See Wichers v. Hatch, supra, 252 Conn. 189–90.  “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 ․ [T]he 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 ․”

“It is axiomatic that the amount of damages awarded is a matter peculiarly within the province of the jury ․ Moreover, there is no obligation for the jury to find that every injury causes pain, or the amount of pain alleged ․ Put another way, [i]t is the jury's right to accept some, none or all of the evidence presented ․ It is the [jury's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses [and medical reports] ․ The [jury] can ․ decide what—all, none, or some—of a witness' testimony [or medical reports] to accept or reject.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Smith v. Lefebre, supra, 92 Conn.App. 421.

In the present case, in 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.  Id., 426.   In light of the evidence, it was reasonable for the jury to award zero noneconomic damages.   See generally Lidman v. Nugent, 59 Conn.App. 43, 755 A.2d 378 (2000) (given minimal nature of accident, no amount of monetary award would be so extremely low as to shock the conscience).   “Moreover, the presence of such conflicting evidence curtail[s] [this] court's authority to replace the jury damage award with its own.”  Smith v. Lefebre, supra, 92 Conn.App. 426.   Accordingly, the jury award does not shock the conscience.   The jury could have found that the plaintiff did not prove substantial injuries resulted from the October 1, 2008 accident.   The jury did not award inadequate damages.   See Childs v. Bainer, supra, 235 Conn. 114–15.

III

CONCLUSION

For the foregoing reasons, the plaintiff's motion to set aside the verdict as to damages only and for additur is denied.   The defendants' objection to the motion is sustained.

Wilson, J.

FOOTNOTES

FN1. 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 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.”Practice Book § 16–35 provides in relevant part that “[M]otions to set aside a verdict, motions for additur, ․ shall be filed with the clerk within ten days after the day the verdict is accepted;  provided that for good cause the judicial authority may extend this time ․”.  FN1. 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 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.”Practice Book § 16–35 provides in relevant part that “[M]otions to set aside a verdict, motions for additur, ․ shall be filed with the clerk within ten days after the day the verdict is accepted;  provided that for good cause the judicial authority may extend this time ․”

Wilson, Robin L., J.