JAMIE MELENDEZ v. JOHN DELEO
(AC 36810)
Connecticut Appellate Court
Argued April 14—officially released August 25, 2015
DiPentima, C. J., and Lavine and Alvord, Js.
(Appeal from Superior Court, judicial district of Waterbury, Zemetis, J.)
******************************************************
The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch,
******************************************************
Amita Patel Rossetti, with whom was Jeffrey J. Tinley, for the appellant (plaintiff).
Francis E. Genovese, for the appellee (defendant).
Opinion
DiPENTIMA, C. J. The plaintiff,
The court set forth the following factual and procedural history of the case in its memorandum of decision on the motion for additur. ‘‘The case arises out of a two car collision that occurred on April 19, 2012 . . . in Waterbury . . . . The parties were operating their respective cars. Based on the photographic, documentary and testimonial evidence, a moderate collision between the front end of the defendant’s car and the driver’s side of the plaintiff’s car occurred.
‘‘The responsibility for the collision was sharply contested. The jury found the defendant 60 [percent] responsible for the collision, but also found the plaintiff 40 [percent] comparatively negligent. . . .
‘‘The jury awarded 100 [percent] of past claimed medical bills, past claimed wages and automobile property damage claims.
‘‘The jury awarded nothing for future medical, though a substantial amount was claimed in closing argument based on the plaintiff’s chiropractic expert’s report.
‘‘The jury awarded nothing for pain, suffering, impairment or the other elements and categories of noneconomic damages described at length, without exception, in the court’s charge.’’ (Footnotes omitted.)
Upon receipt of the verdict, but prior to its acceptance and recording, the court, pursuant to
Thereafter, the plaintiff filed a timely motion for additur and/or to set aside the verdict. On April 21, 2014, the court issued a written memorandum denying the plaintiff’s motion and rendered judgment accordingly. This appeal followed. Additional facts will be set forth as necessary.
We begin by setting forth the standard of review. ‘‘The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness. . . . In reviewing the action of the trial court in denying [a motion for additur and] . . . to set aside [a] verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict [it] did.
On appeal, the plaintiff claims that by declining to award any noneconomic damages while awarding all of the economic damages, the jury had ‘‘made a mistake as a matter of law.’’ This claim is without merit.
It is well established that in Connecticut a jury’s decision to award economic damages does not trigger, as a matter of law, an automatic award of noneconomic damages. ‘‘Our Supreme Court has articulated a special standard for the review of verdicts like the one at issue here to determine whether inconsistency renders them legally inadequate. . . . In Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000), [the Supreme Court] held that trial 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; internal quotation marks omitted.) Fileccia v. Nationwide Property & Casualty Ins. Co., supra, 92 Conn. App. 486–87.
Under Wichers, ‘‘[r]ather 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.’’ Wichers v. Hatch, supra, 252 Conn. 188–89.
Thus, pursuant to Wichers and its progeny, the plaintiff was not entitled to an award of noneconomic damages simply because the jury awarded her economic damages. On the contrary, the plaintiff, as the party claiming noneconomic damages, had the burden of proving them ‘‘with reasonable certainty.’’ Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474, 476–77, 590 A.2d 431 (1991). Simply stated, because the plaintiff claimed noneconomic damages as defined in
At the hospital, the plaintiff complained of ‘‘some mild neck pain and left hip pain . . . .’’ The emergency department physician’s record notes that she appeared ‘‘alert’’ and ‘‘oriented,’’ her gait was ‘‘steady,’’ and her ‘‘[v]ital signs [were] stable. Physical exam [was] unremarkable. . . . The [plaintiff] appeared well and did not appear to have any acute injury that warranted intervention at [that] time. She declined pain medicine.’’ (Emphasis added.) The record further notes that the plaintiff was discharged after she had been ‘‘counseled to follow up with her primary doctor as needed and return to the [emergency room] for any worsening severe pain, vomiting or any other concerns.’’
Following her discharge, the plaintiff went to her mother’s house where, according to her testimony, in addition to her hip pain, she developed pain in her wrist, a headache, and became nauseous, causing her to vomit twice. The plaintiff testified that she became concerned by these developments and decided to go back to the emergency room. This time, however, she visited the Waterbury Hospital emergency room instead of returning to St. Mary’s Hospital where she had been treated just hours before. When asked why she decided to go to a different hospital, the plaintiff testified that she did not ‘‘feel like [the personnel at St. Mary’s Hospital] even bothered to really check me when I was there the first time.’’
Upon admission, the plaintiff complained of left hip pain, left wrist pain, left shoulder pain, left leg pain, and a ‘‘generalized throbbing headache.’’ The X rays of the plaintiff’s left hip, however, came back as ‘‘normal,’’ and her pelvis images showed ‘‘[n]o fracture.’’ Likewise, a CT scan of the plaintiff’s head showed ‘‘no evidence of mass effect, mass lesion, intracranial hemorrhage or acute cortical infarct.’’ She was prescribed an anti-nausea medication and discharged.3
On April 24, 2012—five days after the accident—the plaintiff went to the Children’s and Family Health Center (center), her primary care provider, complaining of pain in her hip, lower back, neck, and shoulder, as well as difficulty sleeping.4 In
On April 30, 2012, instead of returning to her primary care provider, the plaintiff began chiropractic treatment with Robert J. Costanzo. Costanzo’s initial report includes a long list of new and expanded ‘‘chief complaints,’’ including low back, left buttock and hip pain ‘‘described as moderate to sharp and constant’’; ‘‘[d]aily, intermittent left leg pain, numbness and weakness that extends into the foot’’; ‘‘[n]eck pain and stiffness that radiates into the trapezius musculature with more emphasis on the left described as moderate to sharp and constant’’; ‘‘[d]iffuse headaches described as dull to sharp and constant with intermittent dizziness and blurred vision’’; and ‘‘[l]eft shoulder pain described as mild to moderate to sharp and constant.’’
Following the initial physical examination of the plaintiff, Costanzo placed her on a treatment plan consisting of ‘‘cervical manipulation and flexion/distraction to the lumbar spine’’ and ‘‘electrical muscle stimulation and cold packs to the involved areas.’’6 The plaintiff continued her treatment with Costanzo until November 19, 2012. In his final report, Costanzo determined that the plaintiff’s ‘‘further treatment would be palliative,’’ and that she will require six to nine visits ‘‘per year, more or less, due to flare-ups.’’ In addition, Costanzo assigned the plaintiff with a 6 percent ‘‘impairment of the lumbar spine.’’
At trial, approximately sixteen months after her last visit with Costanzo, the plaintiff testified that her conditions had not improved. On cross-examination, however, she admitted that, following her last visit with Costanzo, she had not sought help from any medical professional in connection with the pain stemming from the accident. Furthermore, the plaintiff testified that, while prior to the accident she had worked an average of fifteen to twenty hours a week as a home health aide, following her return to work in May, 2012, she had increased her weekly average by five hours.
Having reviewed the record, we agree with the court’s conclusion that ‘‘this case involves a claim for injuries inconsistently documented and treatment based largely on the subjective and inconsistent complaints of the plaintiff.’’7 As the trial
It is axiomatic that the jury, as the final arbiter of credibility, was not required to believe the subjective complaints and testimony of the plaintiff and could, instead, have credited the medical records compiled near or at the time of the accident, which lacked objective findings of traumatic injuries associated with pain and suffering. State v. Fleming, supra, 111 Conn. App. 345 (‘‘the jury is the final arbiter as to the credibility of any witness’’). Similarly, the jury was not required to believe Costanzo. Indeed, the decision of the jury not to award the plaintiff any future medical expenses despite the 6 percent impairment rating assigned by Costanzo supports an inference that it did not consider his findings and recommendations credible. Accordingly, because we conclude that the jury’s verdict in this case fell somewhere within the necessarily uncertain limits of fair and reasonable compensation, we find that the court did not abuse its discretion in denying the plaintiff’s motion for additur and/or to set aside the verdict. See Medes v. Geico Corp., 97 Conn. App. 630, 639, 905 A.2d 1249, cert. denied, 280 Conn. 940, 912 A.2d 476 (2006).
The judgment is affirmed.
In this opinion the other judges concurred.