Kathleen Bligh v. Travelers Home & Marine Insurance Company (2013)

RULING RE PLAINTIFF'S AND DEFENDANT'S POST–TRIAL MOTIONS

This case was an action by the plaintiff, Kathleen Bligh against the defendant, Travelers Home & Marine Insurance Company, for uninsured/underinsured motorist benefits under her mother's auto insurance policy which covered her for a motor vehicle accident that occurred on February 28, 2008 on Elm Street in the Town of Enfield, CT. The plaintiff exhausted the available insurance benefits from the tortfeasor's policy.   The jury rendered a verdict for the plaintiff on February 6, 2013.   Pending before the court are the plaintiff's motion for additur (Doc. No. 142.00);  plaintiff's motion to set aside the verdict (Doc. No. 143.00);  plaintiff's motion for new trial (Doc. No. 144.00);  defendant's motion to reduce the verdict (Doc. No. 140.00);  defendant's objection to plaintiff's motion for additur (Doc. No. 147.00);  defendant's objection to plaintiff's motion for new trial and to set aside the verdict (Doc. No. 148.00) and defendant's supplemental objection to plaintiff's motion for new trial and to set aside the verdict (Doc. No. 153.00).   The issues are resolved seriatim.   For the following reasons, plaintiff's motion for additur (Doc. No. 142.00) is denied;  plaintiff's motion to set aside the verdict (Doc. No. 143.00) is denied;  plaintiff's motion for new trial (Doc. No. 144.00) is denied;  defendant's motion to reduce the verdict (Doc. No. 140.00) is granted;  defendant's objection to plaintiff's motion for additur (Doc. No. 147.00) is sustained;  defendant's objection to plaintiff's motion for new trial and to set aside the verdict (Doc. No. 148.00) is sustained and defendant's supplemental objection to plaintiff's motion for new trial and to set aside the verdict (Doc. No. 153.00) is sustained.   In accordance the jury's verdict, adjusted as required by law, the court renders judgment for the plaintiff and against the defendant in the amount of $27,000.00, plus costs.

I

General Statutes § 52–228b and Practice Book § 16–35 provide for motions to set aside the verdict and for new trials and for additurs to remedy erroneous jury verdicts.   The standard of review governing such motions is well-settled.  “The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence ․ [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where 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 ․ that, in the absence of clear abuse, we shall not disturb.”   (Citations omitted;  internal quotation marks omitted.)  Edmands v. CUNO, Inc., 277 Conn. 425, 452, 892 A.2d 938 (2006).

When considering a motion for additur, “[i]t is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is ․ palpably against the evidence ․ The only practical test to apply to a verdict 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 ․” (Citation omitted;  internal quotation marks omitted.)  Ng v. Wal–Mart Stores, 122 Conn.App. 533, 536, 998 A.2d 1214 (2010).

“The amount of a damage award is a matter peculiarly within the province of the trier of fact ․ and if, on the evidence, the jury could reasonably have decided as they did, [the reviewing court] will not find error in the trial court's acceptance of the verdict.”  (Citations omitted;  internal quotation marks omitted.)  Childs v. Bainer, 235 Conn. 107, 121, 663 A.2d 398 (1995).   In Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000) (en banc), the seminal case on the subject, our Supreme Court stated:

[T]he jury's decision ․ 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.

As we previously have stated, although the trial court has a broad legal discretion in this area, it is not without its limits.  “Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury;  Rickert v. Fraser, 152 Conn. 678, 681, 211 A.2d 702 (1965);  the court's action cannot be reviewed in a vacuum.   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.’  Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940).”  Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980).  “[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.”  Id., 419.

Wichers v. Hatch, supra, 252 Conn. 188–89.

Concerning the constitutional rights at stake in this exercise, the Supreme Court, in that case, said:

“The right to a jury trial is fundamental in our judicial system, and this court has said that the 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.”  Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970).   Because in setting aside the verdict, the trial court deprives the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, our role generally is to examine the evidential basis for the verdict itself to determine whether the trial court abused its discretion.  Palomba v. Gray, 208 Conn. 21, 25, 543 A.2d 1331 (1988).

Wichers v. Hatch, id.

II

This case was tried to a jury.   The proceedings were held on January 29, 30, 31 and February 1, 5 and 6, 2013.   Testimony was provided by Officer Joseph Fillmore of the Enfield Police Department;  Jeffrey Tompkins, Progressive Insurance Co., insurance adjustor;  Donna Mattera, plaintiff's mother;  Dr. Eric Grahling, plaintiff's expert, interventional pain medicine;  Dr. William Pesce, plaintiff's expert, pain management;  Nicole Souza, Progressive Insurance Co., representative;  and Kathleen Bligh, plaintiff.   Numerous photographs, medical records and other documents were admitted into evidence.

The jury reasonably could have found the following facts.   On February 28, 2008, shortly after 9 p.m., the plaintiff was stopped at a traffic signal on Elm Street in Enfield, CT. She was 19 years old at the time, attending college, and she was driving home from a part-time job at a restaurant.   While waiting at the light, her vehicle was struck from behind by another car being driven by the tortfeasor.   The plaintiff was in a 2005 Nissan Murano SUV. The vehicle which struck her car was a 2006 Honda 2–door sedan.   The tortfeasor's vehicle left no skid marks.   The tortfeasor admitted that she was not paying attention.   The speed limit in the area was 30 mile per hour.   The tortfeasor's vehicle sustained some front end damage, including damage to the front bumper, hood and a broken headlight.   The plaintiff's mother, who drove to the scene to help, testified that the plaintiff's vehicle sustained damage to the rear end including dislocation of her rear bumper and tail pipes.   The plaintiff said her vehicle had been pushed 50 feet.   The responding officer took statements and gave the tortfeasor a warning for following too closely.   He observed no serious injuries at the accident scene.   Both drivers reported no injuries and no ambulance was called.

Plaintiff's mother filed a claim for damage to the car four months later.   An insurance representative went to her house and prepared a damage report and took photographs of the vehicle.   The report and photos identified only minor scratches and dents on the bumper and a small crack in the decorative housing around the end of the exhaust pipe.   The representative issued a check for $1,115.00 for the damage on the same day.   Plaintiff's mother testified that her ex-husband, a mechanic, made repairs to reassemble the vehicle after the accident, but he did not testify.

Plaintiff claimed permanent, debilitating injury to her back in this case.   On June 17, 2010, over two years after the accident, her doctor, Dr. Pesce, observed that the accident resulted in “thoracolumbar strain and also lumbosacral disk protusion ․ While she does have some radicular symptoms, much of the symptoms appear to be primarily multiligamentous.   She has been very limited in terms of her function because of pain.   She has been tried on multiple modalities including injections and pharmacologic treatment therapy with only minimal relief.   While I feel injections can continue to be helpful in providing some symptomatic relief and allow her to function at a more normal level, I feel she is plateaued with regards to any other formal treatment.”   He opined that she had a 12 percent partial permanent impairment disability rating for the whole person relating to the thoracic and lumbar region caused by the motor vehicle accident in this case.

The patient reported no better condition at the time of trial.   In her own words, she suffers from chronic, relentless, painful muscle spasms in her back—like knots.   She reports only temporary relief after cripplingly painful, invasive and expensive thorasic and lumbar epidural injections, which she received several times during the year.

Prior to this accident, the plaintiff and her mother, who assists the plaintiff with all of her medical care, reported that the plaintiff had no back problems.   They described a busy, active life of school, sports and part-time work without limitation.   In particular, plaintiff was an avid figure skater from a young age.   She skated in competitions and taught skating, including demonstrating jumps.   At the time of the accident, however, she also reported that she had recently stopped skating due to a wrist surgery which was the result of an injury sustained in a March 8, 2007 front-end auto accident where her car collided with another car and the air bags in her car deployed.   She also sustained a neck injury in that accident.   She denied any back injury in that accident;  however, her pediatrician's medical file (Dr. Tilak Gooneratne) contained a note prescribing medication after a phone call on March 9, 2007 reporting that the patient was experiencing back and neck pain.   The plaintiff denied making the telephone call, and stated that she never called her pediatrician's office, but that her mother made all arrangements.   Her mother testified extensively about the plaintiff's condition and treatments but did not confirm that she called Dr. Gooneratne's office for the medication for the back pain.

Plaintiff and her mother chronicled the history of the plaintiff's medical care after the 2008 auto accident.   The day after the accident the plaintiff began to have headaches and neck and back pain, so they made an appointment with her pediatrician.   He prescribed ice, heat and motrin and referred her to an orthopedist.   The orthopedic visit did not provide satisfactory results to the plaintiff.   The orthopedist doubted her complaints.   So, next they went to a neurosurgeon and the plaintiff began a course of physical therapy.   That, too, did not produce satisfactory results.   The plaintiff was told she was not “surgery worthy.”   The neurosurgeon assigned to her a partial permanent impairment of 6 percent to the lumbar spine.   Next they went to Dr. Pesce for pain management.   He gave her injections that temporarily alleviated the pain and, as earlier noted, gave her a 12 percent impairment rating.

Still not satisfied with the results, the plaintiff and her mother researched specialists and chose to treat with Dr. Eric Grahling, an interventional pain management specialist.   He diagnosed the plaintiff with a herniated disk in the lumbar spine, facet joint syndrome and thoracic spondylosis.   Essentially, he said she had chronic muscle spasms in the back and that it was a condition likely to “go on indefinitely ․ at least a decade, probably longer.”   He began a course of radio frequency treatment involving burning her back nerves with needles.   He later diagnosed her with chronic facetogenic mid back pain, intractable muscle spasm, and chronic low back pain likely due to herniated disk.   He next gave her thoracic and lumbar epidural steroid injections and diagnosed her with chronic low back pain secondary to a herniated disk in the lumbar spine, thoracic facet joint pain and intractable muscle spasms.   He anticipated that she would need thoracic and lumbar epidural steroid injections three to four times per year at the cost of twelve to thirteen hundred dollars per treatment and sixteen to seventeen hundred dollars per treatment, respectively.   He could see her needing those treatments for at least the next 5 years.   He gave her a 6 percent permanent impairment to the thoracic spine.

At trial, the plaintiff reported that currently she cannot lift objects over 25 pounds, cannot walk or sit or stand for long periods and suffers from sleeplessness due to pain.   She expressed concern about her ability to take care of children that she hopes to have someday and fears for the need for future medical treatment and procedures and the long-term effects of those treatments and procedures.   She said that she can no longer skate and that she can no longer engage in recreation as vigorously as in the past, and that pain is her new normal.

Nevertheless, after the accident, the plaintiff continued to work part time and finished her college degree, graduating cum laude.   She continued to run for exercise.   She is now employed full-time at the Travelers Insurance Company.   She has gone on vacation trips to Ocean City, New Jersey by car and to Disney World in Florida by plane with her family.   She made no claim for loss of earnings or loss of earning capacity.   She testified that she was in intense pain during the two-week trial, experiencing pain at the level of 6 or 7 out of 10 in her low back and 6 in her mid back.   However, she did not appear to be in any discomfort by body language or voice.   She appeared to be a healthy young woman.

III

The issues concerning the motion for new trial and motion to set aside verdict are discussed seriatim.

A

The first issue raised by the plaintiff in support of her claim for a new trial is that “the introduction of Jeff Tompkins created a firestorm with regard to the defendant's defense.”   The deposition of Mr. Tompkins was read to the jury.   He testified as to the extent of the damage to the tortfeasor's vehicle.   He was called by the plaintiff.   The plaintiff's claim on this point is unexplained and indiscernible.   Therefore, no merit is found in it.

B

Another ground for new trial is plaintiff's claim that the defense was unfairly permitted to bring in a witness, disclosed late in the case, and in interruption to plaintiff's case, on issues of “incomplete repair estimates to the plaintiff's vehicle in this accident.”

This claim concerns the allowance of testimony of Nicole Souza, a Progressive Insurance Company agent, who was allowed to testify concerning her observations and photographs of damage to the plaintiff's vehicle when it was reported to the insurance company over four months after the accident.   Her testimony was allowed because evidence of damage to the vehicle was relevant to the issues of causation of the particular injuries claimed.   See Berndston v. Annino, 177 Conn. 41, 42–46, 411 A.2d 36 (1979).   She was allowed even though she was disclosed late by the defense because that witness could not be disclosed by the defense earlier.   That was because the plaintiff failed to disclose the information in a timely manner and only disclosed it after being ordered to do so.   See orders on motions, Doc. Nos. 127.00 and 131.00;  Practice Book Form 205, defendant's standard requests for production No. 11.   A trial court has the discretion to allow late disclosed witnesses where the request is merited.   See South Windsor Cemetery Assoc., Inc. v. Lindquist, 114 Conn.App. 540, 551–51, 970 A.2d 760, cert. denied, 293 Conn. 932, 981 A.2d 1076 (2009).   The defendant's request was merited in this case.   Also, the court allowed her testimony to interrupt plaintiff's case because of bona fide scheduling problems.   The court is permitted to vary the order of proceedings to accommodate such problems.  Practice Book § 15–5.   The interruption caused no prejudice to the plaintiff.   She requested and was allowed to interrupt her own witnesses numerous times during the trial to accommodate a variety of scheduling issues.

Accordingly, the court finds no ground for ordering a new trial on this point.

C

Next, the plaintiff argues for a new trial because defendant was permitted to cross examine the plaintiff regarding her claim that she had no back problems before the February 2008 auto accident with a notation from plaintiff's pediatrician's medical records showing a request for medication for back pain following the March 2007 auto accident.   The defendant's questions were a fair exercise of cross examination rights on a relevant point and they served to impeach the witness's credibility on a central issue in the case.   Connecticut Code of Evidence § 6–10 (2009).

D

Further, the plaintiff argues that a new trial is merited because, when plaintiff's counsel talked to jurors after the trial, “the jurors indicated that the court instructions said that they could take into consideration evidence that was not there and people who did not testify.”   To the contrary, the court finds that there was no such instruction to the jury and the jury did not consider such evidence not presented in court.   The plaintiff's argument mischaracterizes the facts.

The court asked plaintiff counsel to explain the factual basis for the claim.   Plaintiff's counsel explained that, after the trial, he interviewed some jurors (with the court's permission).   Some jurors told counsel that they felt that since the plaintiff's mother claimed that her ex-husband repaired the car after the accident in explanation of why the car showed practically no damage after the accident, he should have testified.   That is not evidence of juror misconduct or misunderstanding of the jury charge.   That is a matter that goes to the credibility of witnesses and weight of evidence—matters well within the prerogative of the jury.  “It is axiomatic ․ that it is the jury's role as the sole trier of the facts to weigh the conflicting evidence and to determine the credibility of witnesses ․ It is the right and duty of the jury to determine whether to accept or to reject the testimony of a witness ․ and what weight, if any, to lend to the testimony of a witness and the evidence presented at trial.”  (Citation omitted;  internal quotation marks omitted.)   State v. Martinez, 143 Conn.App. 541, 552 (2013).

Plaintiff also claims surprise as to the need to prove the facts of the car repair.   The claim lacks credibility.   All the facts about the repair to the car were in her possession or accessible to her since 2008, and the need to explain it should have been anticipated.   It was the defendant who was surprised that plaintiff had those facts, or should have had them, but failed to disclose them until the eve of trial.

E

In her motion to set aside verdict, plaintiff argues that the verdict should be set aside because the court failed to grant her motion to preclude testimony or reference to the fact that the plaintiff was involved in a prior motor vehicle accident.   That accident, previously mentioned, occurred on March 8, 2007, wherein the plaintiff injured her neck and wrist and was sore “in general” when the vehicle which she was driving was involved in a front-end collision.   She was prescribed medication for neck and back pain and she stopped skating after that accident.   That information was relevant to the issue of whether the February 28, 2008 accident was the cause of all the injuries claimed in the instant case, and her testimony regarding her loss of enjoyment of skating and the other limitations she currently experiences.   The allowance of that information was relevant and not prejudicial.   Thus, this is not a ground for setting aside the verdict.

F

Another point raised in her motion to set aside verdict concerns the fact that the court allowed the defendant to call a witness from Progressive Insurance Company—Ms.   Souza—concerning damage to plaintiff's automobile.   The plaintiff argues that the witness was not disclosed in the trial management memorandum and was not discussed with the jurors in the voir dire process in advance of trial to determine if there might be a conflict.   Moreover, she argues, “the allowance of this undisclosed witness on an undisclosed topic, at the time of trial when the witness was not a rebuttal witness rather was a witness for the defense, was highly prejudicial.”   The court is not persuaded.   As noted supra, the witness was allowed late because her information was disclosed late by the plaintiff, and she was allowed to testify during plaintiff's case due to bona fide scheduling problems.   At the request of the parties, the court inquired of the jurors if any knew or had a concern with regard to the late witness and none raised a concern.   There was no prejudice to the plaintiff.

G

Plaintiff further argues that the verdict should be set aside because “the court, over the plaintiff's objection, erred in allowing the defendant to interrupt the plaintiff's evidence and place a witness on the witness stand in the middle of the plaintiff's case, which was highly unusual and infused highly prejudicial evidence in the middle of the plaintiff's case and interfered with the plaintiff's testimony.   After this defendant's witness was allowed to testify, then, the defendant was allowed to cross examine the plaintiff and the plaintiff's mother with regard to what the defendant's witness had introduced ․” and comment on the evidence during closing argument.   This argument appears to be aimed at the testimony of Ms. Souza.   The propriety of her testimony was explained supra.   Additionally, the plaintiff made no objection to anything in defendant's closing argument.   Her objection at this point is untimely.

H

Next, plaintiff argues that the verdict should be set aside because the court erred in allowing her entire medical file from Dr. Gooneratne, her pediatrician, be marked as a full exhibit.   The file included the notation about pain medication being prescribed for the March 8, 2007, automobile accident.   However, plaintiff's mother reviewed that entire file during the trial to refresh her recollection, and plaintiff had “no objection” to that entire file being marked as a full exhibit during the trial when defendant requested that it be marked as a full exhibit.   Any claim of error, therefore, was waived.

I

Also, plaintiff argues that the verdict should be set aside because the court erred in allowing as a full exhibit the Progressive Insurance Company damage assessment report on plaintiff's automobile on the grounds that it was only an estimate and the appraiser admitted she did not even bend down to see additional damage or whether repairs had been done.   The argument is not persuasive.   The report documented the visible damage and estimated costs to repair and that report was made promptly after Progressive was called to view the damage.   All of that information was relevant to the issues of liability for causing the particular damages claimed, as previously explained.   On cross examination, the plaintiff was able to demonstrate that the appraisal was not thorough, and that it occurred over four months after the accident.   Those factors, however, went to the weight of the evidence, not the admissibility.

J

Finally, plaintiff seeks a new trial claiming that the court erred in sustaining defendant's objection [without admonition] to plaintiff's counsel's remarks during closing argument that he was personally offended by defendant's counsel opening statement.   The court properly sustained the objection to the remarks.   Counsel's expression of his personal opinions was improper.   Palkimas v. Lavine, 71 Conn.App. 537, 546–47, 803 A.2d 329 cert. denied, 262 Conn. 919, 812 A.2d 863 (2002).   Also, personal attacks on the parties and opposing counsel are improper.  Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 687 n.33, 657 A.2d 1087 (1995);  Yeske v. Avon Old Farms School, 1 Conn.App. 195, 204, 470 A.2d 705 (1984).

K

Although the argument was not in her motions, plaintiff also argued during oral argument that the verdict should be set aside and a new trial be granted because the plaintiff was prevented from arguing that the defendant failed to conduct an independent medical exam in this case.   That is not factually accurate.   The court denied the defendant's motion in limine on point.   See order on Doc. No. 121.00.

Accordingly, the motion for to set aside verdict (Doc. No. 143.00) and motion for new trial (Doc. No. 144.00) are denied and the defendant's corresponding objection (Doc. No. 148.00) and supplemental objection (Doc. No. 153.00) are sustained.

IV

With regard to the motion for additur, plaintiff complains that the jury awarded her less than the full amount that she requested for economic and non-economic damages.   She argues that the jurors failed to award the full amount of her past medical expenses “for no reason at all” and failed to award her full estimated future medical expenses “without any basis.”   She also argues that their failure to award the full amount she requested for past and future non-economic damages was done “without contravening evidence.”   The court does not agree.

On the subject of damages, the jury was instructed, without exception from any party, as follows:

The rule of damages is as follows:  Insofar as money can do it, the plaintiff is to receive fair, just and reasonable compensation for all injuries and losses, past and future, which are proximately caused by the uninsured/underinsured motorist's proven negligence.   Under this rule, the purpose of an award of damages is not to punish or penalize the uninsured/underinsured motorist, but to compensate the plaintiff for her resulting injuries and losses.   You must attempt to put the plaintiff in the same position, as far as money can do it, that she would have been in had the uninsured/underinsured motorist not been negligent.

Our laws impose certain rules to govern the award of damages in any case where liability is proven, or, as in this case, where the defendant has not contested the duty or breach of duty aspects of the case.   In this case, plaintiff has the burden of proving her entitlement to recover damages by a fair preponderance of the evidence.   To that end, the plaintiff must prove both the nature and extent of each particular loss or injury for which she seeks to recover damages and that the loss or injury in question was proximately caused by the uninsured/underinsured motorist's negligence.   You may not guess or speculate as to the nature or extent of the plaintiff's losses or injuries.   Your decision must be based on reasonable probabilities in light of the evidence presented at trial.   Injuries and losses for which the plaintiff should be compensated include those she has suffered up to and including the present time and those that she is reasonably likely to suffer in the future as a proximate result of the uninsured/underinsured motorist's negligence.   Negligence, as I previously instructed you, is a proximate cause of a loss or injury if it is a substantial factor in bringing that loss or injury about.

Once the plaintiff has proved the nature and extent of her compensable injuries and losses, it becomes your job to determine what is fair, just and reasonable compensation for those injuries and losses.   There is often no mathematical formula in making this determination.   Instead, you must use human experience and apply sound common sense in determining the amount of your verdict.

In this type of case, there are two general types of damages with which you must be concerned:  economic and noneconomic damages.   Economic damages are monies awarded as compensation for monetary losses and expenses which the plaintiff has incurred, or is reasonably likely to incur in the future, as a result of the uninsured/underinsured motorist's negligence.   They are awarded for such things as the cost of reasonable and necessary medical care.   Noneconomic damages are monies awarded as compensation for non-monetary losses and injuries which the plaintiff has suffered, or is reasonably likely to suffer in the future, as a result of the uninsured/underinsured motorist's negligence.   They are awarded for such things as physical pain and suffering, mental and emotional pain and suffering, and loss or diminution of the ability to enjoy life's pleasures.

I will now instruct you more particularly on economic damages.   In this case, the plaintiff seeks to recover economic damages for each of the following types of monetary losses or expenses:  expenses for medical care and attention, including physicians and chiropractic care and treatment, physical therapy, and pain management procedures, paid and expected to be paid in the future.

The plaintiff is entitled to recover the reasonable value of medical care and expenses incurred for the treatment of injuries sustained as a result of the uninsured/underinsured motorist's negligence.   The plaintiff must prove that the expenses she claims were reasonably necessary and proximately caused by the uninsured/underinsured motorist's negligence.

Let me now turn to noneconomic damages.   In this case, the plaintiff seeks to recover noneconomic damages for each of the following type of non-monetary losses or injuries:  past and future mental, emotional and physical pain and suffering, loss or diminution of ability to enjoy life's pleasures, disability, fear of an increased risk of future medical treatments and permanent injuries.

A plaintiff who is injured by the negligence of another is entitled to be compensated for all physical pain and suffering, mental and emotional suffering, loss of the ability to enjoy life's pleasures, and permanent impairment or loss of function that she proves by a fair preponderance of the evidence to have been proximately caused by the negligence of another.   As far as money can compensate the plaintiff for such injuries and their consequences, you must award a fair, just, and reasonable sum.   You simply have to use your own good judgment in awarding damages in this category.   You should consider the nature and duration of any pain and suffering that you find.

A plaintiff who is injured by the negligence of another is entitled to be compensated for mental suffering caused by that negligence for the results which proximately flow from it in the same manner as she is for physical suffering.

The plaintiff may recover damages for fear of an increased risk of future medical treatment and disability proximately caused by the uninsured/underinsured motorist's negligence.   The fear must be rational in that the consequence feared has a reasonable basis in the evidence.   Fear of a completely fictitious or imagined consequence, having no reasonable basis, is not a recoverable element.

You should consider, as a separate category for awarding damages in this case, the length of time the plaintiff was, or will probably be, disabled from or impaired in engaging in activities which she enjoyed.

If you find that it is reasonably probable that she has suffered permanent physical harm or loss of function, the plaintiff is entitled to be compensated for that category of injury.   Your award should be in accordance with the nature and extent of such physical impairment or loss of function and the length of time she is reasonably expected to endure its negative consequences.

At this time, the plaintiff, Kathleen Bligh, is 24 years old.   According to standardized actuarial tables, her life expectancy is 57.4 years, meaning she could live another 57.4 years.   The parties have stipulated as to the tables;  therefore, you may accept this information as evidence in this case.   This is not to say that Ms. Bligh will live another 57.4 years, but that is the statistical average that you may consider.

Jury Instructions

On the subject of specific amounts requested by counsel, the jury was instructed, without exception from any party, as follows:

In closing argument, counsel mentioned some formulas or amounts that might figure in your verdict.   I caution you that figures suggested by counsel do not constitute evidence.   It is up to you to decide what fair, just and reasonable compensation is, whatever you find that figure might be, without regard to amounts that may have been suggested by counsel in argument.

Jury Instructions.

In this case, the fact that the jury awarded less than the full amount requested was not evidence of error;  rather, it shows that the jury carefully evaluated the evidence.   With regard to past and future medical bills, they only awarded those expenses that they found to be reasonably necessary and proximately caused by the uninsured/underinsured motorist's negligence.   With regard to non-economic damages, there obviously is no mathematical formula to precisely measure the value of such losses.   The jury adhered to the court's instruction to use their own good judgment in awarding damages in that category.   The variance between the plaintiff's request and their awards reflected their acceptance of the defendant's litigation theme, that this plaintiff was certainly injured in this accident, and she has pain as a result, but that she unnecessarily pursued the most extensive and expensive treatment and exaggerated her claims on non-economic damages for litigation purposes and/or that her condition was partly preexisiting due to the 2007 automobile accident.

Accordingly, the plaintiff's motion for additur (Doc. No. 142.00) is denied, and the defendant's objection (Doc. No. 147.00) is sustained.

V

The defendant has moved to reduce the jury verdict award to the plaintiff by $50,000.00.   Doc. No. 140.00.   That is the amount previously received by the plaintiff from the tortfeasor's insurance.   There is no objection to that motion.   Therefore, the defendant's motion to reduce the jury verdict (Doc. No. 140.00) is granted.   The jury awarded the plaintiff $77,000.00 in their verdict.   Reduced by $50,000.00, the result is a $27,000.00 award.

VI

For all of the foregoing reasons, plaintiff's motion for additur (Doc. No. 142.00) is denied;  plaintiff's motion to set aside the verdict (Doc. No. 143.00) is denied;  plaintiff's motion for new trial (Doc. No. 144.00) is denied;  defendant's motion to reduce the verdict (Doc. No. 140.00) is granted;  defendant's objection to plaintiff's motion for additur (Doc. No. 147.00) is sustained;  defendant's objection to plaintiff's motion for new trial and to set aside the verdict (Doc. No. 148.00) is sustained and defendant's supplemental objection to plaintiff's motion for new trial and to set aside the verdict (Doc. No. 153.00) is sustained.   In accordance the jury's verdict, adjusted as required by law, the court renders judgment for the plaintiff and against the defendant in the amount of $27,000.00, plus costs.

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.