Beth Mason v. Douglas Robinson (2013)

MEMORANDUM OF DECISION

I

On April 20, 2011, the plaintiff, Beth Mason, filed an amended complaint against the defendant, Douglas Robinson.   In the complaint, the plaintiff alleges the following facts.   On June 20, 2010, the plaintiff was traveling east in the left lane of Farmington Avenue at the intersection of Town Farm Road in Farmington.   The defendant was driving in the same direction on the same road directly to the rear of the plaintiff.   The defendant's motor vehicle then collided into the rear of the plaintiff's vehicle, causing the plaintiff injuries, losses and damages.

This personal injury action was tried to a jury on March 20–21, 2013.   On March 21, 2013, the jury found for the plaintiff and awarded $12,143.18 in economic damages and $10,000 in noneconomic damages.¹  On March 28, 2013, the plaintiff filed a motion for additur of economic damages and was accompanied by a memorandum of law.   On April 5, 2013, the defendant filed an objection to the plaintiff's motion for additur and the accompanying memorandum in opposition thereof.

II

The court is mindful that litigants have a constitutional right to have factual issues tried by a jury.  Young v. Data Switch Corp., 231 Conn. 95, 100–01, 646 A.2d 852 (1994).  “This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded ․ This right 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 ․ The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury ․ Similarly, [t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury.”  (Internal quotation marks omitted.)  Wallace v. Haddock, 77 Conn.App. 634, 636–37, 825 A.2d 148 (2003).

With this in consideration, the appropriate standard for ordering an additur and setting aside a verdict is well-established.  “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).  “The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury.”  (Internal quotation marks omitted.)  Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 541, 792 A.2d 132 (2002).   Our Appellate Court has held that “a court should ‘specifically ․ identify the facts of record that justify the extraordinary relief of additur’ and that a reviewing court will ‘inquire whether the facts so identified justify the trial court's exercise of its discretion to set a jury verdict aside because of its perceived inadequacy.’  “ (Internal quotation marks omitted.)  Smith v. Lefebre, 92 Conn.App. 417, 419–20 n.3, 885 A.2d 1232 (2005);  see also Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 283–84, 32 A.3d 318 (2011).  “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.”  Wichers v. Hatch, 252 Conn. 174, 188–89, 745 A.2d 789 (2000).  “The evidential underpinnings of the verdict itself must be examined.   Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached ․ [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.)   Id., 189.

In the present case, the plaintiff argues that the court should award additur of economic damages in the amount of $16,645.69 because:  1) there is no evidence that the plaintiff's treatment from Dr. Barry Gordon (Gordon) should have stopped after her visit on October 26, 2010;  2) all of the medical reports and testimony relate the physical therapy to the collision;  3) there is no evidence that the St. Francis MRI of September 1, 2011 was unrelated or unnecessary treatment;  and 4) it was reasonable for the plaintiff to obtain a second opinion from Dr. Stephen Conway (Conway).   The defendant argues in his memorandum of law in support of the objection to the plaintiff's motion for additur that an additur of economic damages should not be awarded because “there was conflicting evidence as to the cause, nature and extent of the plaintiff's claimed injuries and the jury verdict rendered was reasonable, taking all of the evidence and testimony presented into account.”   Also, the defendant contested the issues of causation, damages and the severity of the plaintiff's claimed injuries.

General Statutes § 52–228b provides, in relevant part:  “No verdict in any civil action involving a claim for money damages may be set aside except on written motion ․ 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.”   Our Appellate Court has held that when evidence regarding the extent and reasonableness of the plaintiff's injuries are uncontroverted and the jury does not adequately compensate the plaintiff for those injuries, it is proper for the trial court to award an additur for those economic damages.  Snell v. Beamon, 82 Conn.App. 141, 143–47, 842 A.2d 1167 (2004) (affirming trial court's decision awarding additur of $7,598.47 in economic damages and $10,000 in noneconomic damages because the extent and reasonableness of a portion of the plaintiff's injuries, cost of treatment and inability to work for approximately twenty-two weeks as a result of the injuries were uncontroverted by the defendant).   When there is conflicting evidence regarding the injury for which damages are claimed, however, our Appellate Court has held that a refusal to award an additur is proper.   Smith v. Lefebre, supra, 92 Conn.App. 423–27 (it was the jury's task to determine the credibility of the conflicting evidence and “the presence of such conflicting evidence curtailed the court's authority to replace the jury's damage award with its own”);  Schettino v. Labarba, 82 Conn.App. 445, 449–50, 844 A.2d 923 (2004) (trial court improperly exercised its discretion in ordering an additur because the existence of conflicting evidence regarding the personal injury claims rendered the jury's award of $450 in economic damages and zero noneconomic damages reasonable);  Santa Maria v. Klevecz, 70 Conn.App. 10, 18, 800 A.2d 1186 (2002) (affirming trial court's decision denying additur of economic and noneconomic damages because “the jury had before it testimony that not all of the plaintiff's treatments were necessary”).

In the present case, the extent of the plaintiff's injuries is disputed.   In her memorandum in support of the motion for additur, the plaintiff highlights aspects of Dr. Steven Selden's (Selden) video deposition testimony, in that Selden was not disputing anything in the medical records as to what is recorded therein.   The defendant argues that the primary claim of injury was for headaches and that Selden indicated that he was not giving an opinion on that issue.   Selden also testified in his video deposition that there was not anything in the medical records to support a finding of significant injury to the shoulders, upper back or neck as a result of the accident.

As a result of the accident, the plaintiff's post-concussion syndrome consisted mostly of headaches.   To contest the extent of the plaintiff's injuries, the defendant offered medical records issued by Gordon demonstrating that the plaintiff suffered migraine headaches well before the accident.   In a medical report issued by Gordon on May 10, 2005, Gordon noted that the plaintiff went to see him for “neurologic re-evaluation regarding her migraines.”   Gordon noted that the plaintiff had an MRI taken of her “neck back” in 2001 and was treated with Zomig as abortive therapy for her migraines.   The report also notes that the plaintiff “will have headaches a few days per week and then go into remission for three or four months ․ Oftentimes she will awaken with [a] headache.”   Thus, the defendant's exhibits C and D establish that the plaintiff had a pre-existing condition of migraine headaches.   The medical reports submitted by both the plaintiff and the defendant do not indicate the existence of a disability rating.   The medical reports also show that on August 24, 2010, the plaintiff reported that her headaches decreased significantly, she stopped taking her prescribed medication, Pamelor, and only had an occasional headache for which she did not use medication.   Moreover, the evidence shows that the plaintiff did not miss work and continued her athletic activities that consisted of skiing, hiking, biking, working with a personal trainer, working out with weights and doing cardiovascular activities.   Additionally, the defendant argues in his memorandum of law in support of the objection to the plaintiff's motion for additur that the jury could have found the gaps between medical visits with Gordon significant and also could have found that the description of the plaintiff's condition found in Gordon's May 2005 report (defendant's exhibit C) was the same as her description of her continuing complaints in court.

The jury's verdict awarding only a portion of the claimed economic damages was reasonable because there was conflicting evidence regarding the extent of the plaintiff's injuries.   The evidence established that the plaintiff suffered and was treated for headaches and migraines before and after the accident.   The jury reasonably could have found that the plaintiff's expenses in 2010 were related to the accident, and all other expenses thereafter were attributable to her persistent migraine condition.   Moreover, in regard to the expert testimony by Gordon, Conway and Selden, “[t]he credibility of expert witnesses and the weight to be accorded to their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.”  (Internal quotation marks omitted.)  Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987).   The jury reasonably could have concluded that the medical expenses associated with the plaintiff's treatment from Gordon after October 26, 2010, physical therapy, the St. Francis MRI, and the second opinion from Conway were unnecessary or unrelated to the accident.   In light of the evidence, it was reasonable for the jury to award $12,143.18 out of the $29,103.87 claimed economic damages.   Accordingly, the court finds that the evidence supports the jury's verdict.

CONCLUSION

For the foregoing reasons the plaintiff's motion for additur is hereby denied.

Stengel, J.T.R.

FOOTNOTES

FN1. General Statutes § 52–572h(a) provides in relevant part:  “For the purposes of this section:  (1) ‘Economic damages' means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages;  (2) ‘noneconomic damages' means compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering ․”.  FN1. General Statutes § 52–572h(a) provides in relevant part:  “For the purposes of this section:  (1) ‘Economic damages' means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages;  (2) ‘noneconomic damages' means compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering ․”

Stengel, Robert F., J.T.R.