Opinion
No. TTD CV 06-6000060-S
November 5, 2007
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO SET ASIDE JURY VERDICT AND FOR ADDITUR; AND RE DEFENDANTS' MOTION FOR COLLATERAL SOURCE REDUCTION
This case involved a motor vehicle accident that occurred in Vernon, CT on October 6, 2004. The case was tried to a jury on September 13 and 14, 2007. The jury rendered a verdict for the plaintiff, awarding $3,674.40 in economic damages and zero noneconomic damages. Pending before the court is plaintiff's Motion to Set Aside Jury Verdict and for Additur and defendants' Motion for Collateral Source Reduction. For the following reasons, both motions are denied.
Any challenge based on the timing of the filing of the Motion is found to be waived.
I Plaintiff's Motion to Set Aside Jury Verdict and for Additur A
Plaintiff argues that the award of zero noneconomic damages was unreasonable and inadequate in light of the evidence, and asks the court to set it aside and award a reasonable additur and, if that additur is not accepted by the parties, to require a new trial as to damages only. Defendants argue that the jury simply gave no credence to plaintiff's claim that she was in pain or suffered physical injury, permanent physical impairment or other noneconomic damages; that the evidence supports their decision; and that, therefore, the verdict should stand. The court agrees with the defendants.
B
General Statutes § 52-228b and Practice Book § 16-35 provide for Motions to Set Aside the Verdict, Additur or New Trial to remedy erroneous or inadequate 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).
In cases where juries have awarded economic damages and zero noneconomic damages, the standards are also clear. "The common law of this state does not recognize the principle that awards limited to economic damages are inadequate as a matter of law and must be set aside, or the principle that a fact finder must award noneconomic damages each time it awards economic damages. Rather, . . . `[t]he 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). This basic rule was not changed by the tort reform legislation of the 1980s. Childs v. Bainer, supra, 235 Conn. 120. "[T]rial courts, when confronted with jury verdicts awarding economic damages and zero noneconomic damages, must determine on a case-by-case basis whether a verdict is adequate as a matter of law." (Citation omitted.) Schroeder v. Triangulum Associates, 259 Conn. 325, 330, 789 A.2d 459 (2002). Any confusion in the precedents on this point was dispelled in Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000) (en banc). There, our Supreme Court stated:
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. 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, supra, 252 Conn. 188.
C
With these principles in mind, the court finds as follows: The jury in this case was given, in addition to the verdict forms, interrogatories asking them to specify which, if any, medical bills allegedly incurred by the plaintiff, were "reasonably and necessarily incurred as a proximate result of the defendants' negligence." Interrogatory No. 3, Docket No. 128. The jury gave a full award on each and every one of the plaintiff's 38 medical bills, dating from October 6, 2004 to May 26, 2005, found to have been incurred as a result of this accident, totaling $3,272.40. The amount reported as Economic Damages on the Plaintiff's Verdict Form, Docket No. 129, was $3,674.40. The additional $402.00 corresponds to plaintiff's testimony that she was out of work over a two-week period due to the accident, losing about 40 hours of work at $10.05 per hour. Thus, the jury awarded all of the economic damages that plaintiff testified about with specificity in the case.
Plaintiff argues that since the jury awarded her all of her economic losses for her injuries, they must have found that she was still suffering from pain and symptoms necessitating treatment for the entire time period claimed. Plaintiff's Brief, p. 4. Failure to award her anything for pain and suffering is patently unreasonable, she argues. Indeed, where a jury awarded a plaintiff medical expenses for a spinal fusion, needed because of an accident where he hit his head on a low doorframe, but no noneconomic damages, our Supreme Court concluded, "It is not reasonable for the jury to have found the defendant liable for the expense of the spinal fusion surgery, but not liable for the pain and permanent disability necessarily attendant to such intrusive surgery." Schroeder v. Triangulum Associates, supra, 259 Conn. 332. The plaintiff in that case had $750,400 in economic damages.
This case is not similar. This case involved a slow-speed accident at a traffic light. The jury could have found that the plaintiff stopped at the light, then moved forward a few inches in her Chrysler LeBaron to make a right turn. The defendant, Donnarumma, was behind the plaintiff in his Ford pickup truck and inched forward with her, expecting her to proceed. However, the plaintiff stopped while defendant was looking at the traffic coming from the left, and he bumped into the back of her vehicle. The defendant was moving at 2-5 mph at the time of the bump. The trunk of plaintiff's car was pushed in, and the taillights on her car were broken. The defendant's truck sustained barely a scratch on the front bumper.
After the accident, the plaintiff exited her vehicle and stooped down to look under the car for damage. Plaintiff did not complain of injury at first, but then went to the hospital in an ambulance and complained of pain at a level of 7-8 on a scale of 10. At the hospital, she was examined, given pain medication and a muscle relaxer for her symptoms, and quickly discharged. She testified that she did not go to her job, as a bagger at Stop Shop grocery store, for two weeks to avoid causing pain to herself. At her father's recommendation, she went to see a chiropractor and took a course of treatments with that chiropractor. She claimed at trial that the treatments helped, but that she still has a constant pain at a level of 2-3 out of 10. She claimed that she still avoids lifting heavy objects and sitting for long periods to avoid pain, and although she still goes line dancing like she used to, she avoids certain dances to avoid pain. Her chiropractor, who testified at trial, gave her a 5 percent permanent partial disability rating for her upper back and neck due to a sprain/strain. A 5-8 percent disability rating is the lowest rating possible, other than zero percent. On cross examination, the chiropractor testified that he gave her that rating because, when he pressed his fingers hard into her neck, she said it hurt. There were no other reasons for the disability rating. She also complained to him about lower back pain, but that was unrelated to the accident, he testified. In sum, all of her complaints about pain and disability were subjective, in that there were no objective measures to verify her claims. Her credibility was, therefore, crucial. On this measure, Plaintiff's testimony at trial was flat and unpersuasive and uncorroborated, except by both of her parents who also testified and whose testimony was also flat and unpersuasive.
Clearly, the jury in this case were not convinced that the plaintiff carried her burden of proof on the issue of whether she suffered any pain and suffering or sustained a disability or other noneconomic damages caused by the defendants in this case. They apparently found that the medical treatment, medicine, and time off from work taken by the plaintiff were reasonable precautions to take following the accident, but that the plaintiff suffered no injury. It was reasonable to reach that conclusion. That outcome is completely consistent with the weight and quality of the evidence, and the instructions given to the jury that the burden is on the plaintiff to prove her claims by the preponderance of the evidence, and the charge to them to test the veracity of witnesses using their own knowledge of human nature and common sense.
In this light, the instant case is more like Smith v. Lefebre, 92 Conn.App. 417, 885 A.2d 1232 (2005), a remarkably similar motor vehicle accident case where the jury awarded $5,500 in economic damages and no noneconomic damages. That was another low-speed collision in which the air bags in the plaintiff's vehicle were not deployed, the plaintiff did not suffer any cuts or bruises, and was able to leave her vehicle and walk around it to examine the damage. She did not miss any appreciable amount of time from work, and her credibility was undercut by conflicting descriptions of the location of her back injury and where the witnesses who testified for the plaintiff regarding the extent of her injuries were all close friends or family members. In sum, a case where the jury could have concluded that the plaintiff embellished or exaggerated both the nature and extent of her injuries. In that case, our Appellate Court held that it was reasonable for the jury to award zero noneconomic damages, and the verdict was allowed to stand. That should be the result here, too.
II Defendants' Motion for Collateral Source Reduction A
As mentioned above, the jury awarded $3,674.40 in economic damages. The defendants immediately filed a Request for a Collateral Source Hearing, and pending is their Motion for Collateral Source Reduction pursuant to General Statutes § 52-225a. They ask the court to reduce the award by $3,272.40, representing medical insurance payments covering some of the medical bills and write-offs received by the plaintiff covering the rest and remainder of the medical bills, which they argue should all be considered collateral sources. The court finds that the insurance payments and write-offs in this instance do not qualify as collateral sources covered by the statute. Accordingly, the motion is denied.
B
General Statutes § 52-225a(a) provides, in pertinent part, that "[i]n any civil action . . . wherein . . . damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages . . . by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section . . ." Subsection (b) provides, in pertinent part, that "[u]pon a finding of liability and an awarding of damages by the trier of fact . . . the court shall receive evidence . . . concerning the total amount of collateral sources which have been paid for the benefit of the claimant . . ." This statute was enacted as part of the tort reform efforts of the 1980s. The purpose behind the enactment is to prevent plaintiffs from obtaining double recoveries, i.e., collecting economic damages from a defendant and also receiving collateral source payments, such as medical insurance payments, on the same items. Jones v. Kramer, 267 Conn. 336, 346, 838 A.2d 170 (2004).
There are certain exceptions to this rule. For example, if plaintiff's medical bills were paid for by medical insurance, but the policy gives the carrier subrogation rights permitting it to recoup the damages award, then the collateral source statute would not work its purpose. To prevent that, the legislature also enacted an anti-subrogation statute. General Statutes § 52-225c. These Connecticut rules, however, cannot affect medical insurance plans enacted pursuant to the federal Employee Retirement Income Security Act (ERISA) under the doctrine of preemption. See Bonsanti v. Newman, Superior Court, judicial district of Fairfield, No. CV 03-0401098 (February 3, 2006, Gilardi, J.), [ 400 Conn. L. Rptr. 700], citing Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 680 A.2d 127 (1996). Therefore, if the medical bills in this case were paid by an ERISA medical insurance plan, no collateral source reduction is permitted under the statute.
Another exception concerns write-offs. This involves medical bills incurred by plaintiff, but that were forgiven by her health care providers because the bills were not covered, or paid only in part, by her medical insurance. If the write-offs were voluntarily forgiven, it has been held that they are not collateral sources; but, if they were forgiven pursuant to the requirements of an insurance arrangement or any contract or agreement, then it has been held that they are collateral sources just as much as a payment would be collateral sources. See, Hassett v. New Haven, 49 Conn.Sup. 7, 10, 858 A.2d 922 (2004) [ 37 Conn. L. Rptr. 735], aff'd 91 Conn.App. 245, 247, 880 A.2d 975 (2005); Furlong v. Merriman, Superior Court, judicial district of New Britain, No. CV 04-4000416 (May 4, 2006, Shapiro, J.); Bonsanti v. Newman, supra.
C
With the above principles in mind, and after hearing, the court finds as follows: With respect to the medical insurance payments, the evidence reflects, the parties agree, and the court finds that plaintiff received medical insurance payments covering her medical bills incurred in this case amounting to $1,905.50. The evidence reflects, the parties agree, and the court finds that those payments were made pursuant to an ERISA plan. Therefore, no collateral source reduction is permitted for those payments.
With respect to the write-offs, the evidence reflects, the parties agree, and the court finds that the rest and remainder of plaintiff's medical bills were written off by her health care providers, amounting to $1,366.90. Whether this amount was written off voluntarily or pursuant to contractual relationships is unclear. In the absence of proof that those write-offs were required by an insurance arrangement or any contract or agreement and thereby qualify as collateral sources, the court cannot conclude that they are collateral sources. See, Hassett v. New Haven, supra, 49 Conn.Sup. 10. Accordingly, no collateral source reduction will be permitted for those write-offs, either.
III
For all of the foregoing reasons, the plaintiff's Motion to Set Aside Jury Verdict and for Additur is denied, the defendants' Motion for Collateral Source Reduction is denied, and it is ordered that judgment is hereby rendered in accordance with the jury's verdict in the amount of $3,674.40, plus costs.