Debra A. Batiste v. Miriam C. Valdes (2013)

MEMORANDUM OF DECISION

I

On February 14, 2011, the plaintiff, Debra A. Batiste, filed a complaint against the defendant, Miriam C. Valdes.   In the complaint, the plaintiff alleges the following facts.   On March 26, 2010, the plaintiff was stopped behind another vehicle at a red traffic light facing in a northerly direction on the Silas Deane Highway in Wethersfield.   The defendant was driving in the same direction on the same highway to the rear of the plaintiff.   The defendant then collided into “the rear of a vehicle driven by Abraham Domingo, which was to the rear of the plaintiff's vehicle, and the force of that impact propelled the Domingo vehicle into the rear of the plaintiff's vehicle ․” The impact caused the plaintiff to suffer injuries, losses and damages.

This personal injury action was tried to a jury on January 15–16, 2013.   On January 16, 2013, the jury found for the plaintiff and awarded $4,247.02 in economic damages and zero non-economic damages.   On January 22, 2013, the plaintiff filed a motion for additur of noneconomic damages and to set aside the verdict, but was not accompanied by a memorandum of law.   The plaintiff filed the memorandum in support on May 7, 2013.   On January 28, 2013, the defendant filed an objection to the plaintiff's motion for additur and to set aside the verdict 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).

Our Supreme Court has stated that a jury verdict which awards economic damages and zero non-economic damages is not per se contrary to law.  Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000).   Instead, in considering a motion for additur and to set aside the verdict, “[the court] must examine the evidential basis of the verdict itself ․” (Internal quotation marks omitted.)  Snell v. Beamon, 82 Conn.App. 141, 145, 842 A.2d 1167 (2004).   “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 non-economic 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.”  Wichers v. Hatch, supra, 188–89.

Our Supreme Court has also 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).

In the present case, the plaintiff argues that the court should award an additur of noneconomic damages or set aside the verdict for new trial because an award of zero non-economic damages is inadequate when the jury has awarded all of the claimed economic damages.   The defendant argues that the jury reasonably reached its conclusion and the verdict should not be disturbed.

III

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 decided that when the jury awards the plaintiff all of the claimed medical expenses which were for the purpose of alleviating pain and improving functioning, and there is no evidence of prior similar injuries, it would be inconsistent for the jury to award zero non-economic damages to compensate the plaintiff for that same pain and decreased functioning.   See Fileccia v. Nationwide Property & Casualty Ins. Co., 92 Conn.App. 481, 488–89, 886 A.2d 461 (2005), cert. denied, 277 Conn. 907, 894 A.2d 987 (2006) (plaintiff's medical expenses consisted of, inter alia, physical therapy for which the records indicated plaintiff's subjective complaints of pain and objective manifestations noted by the physical therapists);  see also Lombardi v. Cobb, 99 Conn.App. 705, 709–10, 915 A.2d 911 (2007) (“Because the plaintiff's medical expenses and lost wages related to her treatment for back and shoulder pain, the jury necessarily found that she had experienced pain, and it therefore should have awarded her non-economic damages.   The jury reasonably could not have attributed the plaintiff's pain to any preexisting condition because there was no evidence of any such condition.”).   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”).

Similarly, in situations where the jury awards some or all of the economic damages claimed and zero non-economic damages but there is evidence of a similar preexisting injury, our Supreme Court has held that an additur is an abuse of discretion.   See Wichers v. Hatch, supra, 252 Conn. 188–90 (the Court reversed the decision of the trial court awarding an additur because “the jury reasonably could have found that the accident had not aggravated the plaintiff's condition, and that [the plaintiff's] pain was the same as what he had experienced before his accident with the defendant” since the plaintiff had been in two prior accidents and received chiropractic treatment for preexisting conditions);  Turner v. Pascarelli, 88 Conn.App. 720, 730–31, 871 A.2d 1044 (2005) (trial court abused its discretion in awarding an additur because the jury could reasonably have been persuaded that the plaintiff's injuries were not as extensive as the trial court found them to be, and that the back pain was attributable, in part, to a prior accident);  see also Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn.App. 465, 478–79, 760 A.2d 117 (2000), aff'd, 257 Conn. 359, 777 A.2d 681 (2001) (denial of additur affirmed because the jury reasonably could have determined that the “1993 accident would not result in any greater future pain to the plaintiff than the pain caused by his preexisting condition or his other accidents”);  compare with Elliott v. Larson, 81 Conn.App. 468, 476–78, 840 A.2d 59 (2004) (concluding trial court properly granted additur of non-economic damages when plaintiff was awarded all claimed economic damages of lost wages, lost overtime, and medical expenses and no evidence was presented that the preexisting condition caused the plaintiff's pain).

In the present case, there was sufficient evidence regarding the nature and extent of the plaintiff's injuries and their impact upon the plaintiff to justify an award of non-economic damages.   After the accident, the plaintiff has needed help lifting large pots in her position as a facility manager for the National Guard.   Also, she now has difficulty carrying laundry up and down the stairs because it is too heavy.   The plaintiff also noted that some days she has pain;  uses Traumeel, an anti-inflammatory, and Tylenol or Aleve for the knot she feels in her neck;  feels a knot in her left shoulder;  and has headaches that were non-existent before the accident.   Before the accident she suffered a stroke and received treatment for losing feeling in her right arm, but before the accident she never had treatment for her left shoulder.   All of the treatment deriving from the accident was for her left shoulder and neck and she had not received treatment for her left shoulder or neck before the accident.

Dr. Michael Yoel (Yoel), the plaintiff's chiropractor, also made significant uncontroverted objective findings in relation to the plaintiff's injuries and pain from the accident.   Yoel testified that the plaintiff had neck pain, pain radiating down the left shoulder, pain across the top to both shoulders, had headaches, and had spasms, an involuntary contraction of the muscle.   Throughout the medical records Yoel continuously noted the plaintiff's neck and back stiffness/tightness, soreness, tenderness and pain.   Yoel found that the plaintiff had a cervical sprain with headaches because when he poked and pressed around the plaintiff's neck it reproduced the headaches.   Yoel also testified that during the plaintiff's treatment, and the follow-ups afterwards, she always had knotted up muscles, “hard-tight tender muscles on the left side the whole time.”   After being asked about the plaintiff's future condition, Yoel noted that he expected the plaintiff would “never truly come to get better” because she had “chronic changes in the muscles and it was pretty obvious her spine was thickened and knotted on one side compared to the other.”   Similarly, Yoel testified that it was his opinion that the plaintiff had reached her maximum improvement, and that if she is in one position for a while doing repetitive motions, like cooking, she is going to ache a little bit more as a result of her injuries from the accident.   After treatment and follow-up, Yoel assigned a permanent disability rating of five percent to the plaintiff.

In considering the evidence presented along with the jury's award, this court concludes that the award of zero non-economic damages is inconsistent with the evidence and therefore is inadequate because the jury awarded the plaintiff all claimed medical expenses, a majority of which was for treatment of pain, and there was no evidence of a prior similar injury.   Also, the medical evidence established objective findings of the plaintiff's complaints.

CONCLUSION

In this instance the court finds that the jury's verdict is inadequate.   Its failure to award non-economic damages for the plaintiff's pain and suffering is inconsistent with the evidence presented.   In rendering a verdict which is against the evidence an injustice has resulted.   Accordingly, the court grants the plaintiff's motion for an additur and awards an additional amount of $10,000 in non-economic damages.   This additur shall be added to the original award of $4,247.02 for a total award of $14,247.02.   If either party does not file its acceptance of the additur imposed by this court within 30 days from the filing of this decision, the verdict shall be set aside and a new trial ordered limited to the issue of damages.

Stengel, JTR

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