Micalizzi v. Stewart , 181 Conn. App. 671 ( 2018 )

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ROBIN MICALIZZI v. KENNETH STEWART
(AC 38683)
DiPentima, C. J., and Sheldon and Norcott, Js.
Syllabus
The plaintiff sought to recover damages for personal injuries she sustained
in an automobile accident allegedly caused by the defendant’s negli-
gence. The jury returned a verdict in favor of the plaintiff, awarding her
economic damages but no noneconomic damages. Thereafter, the trial
court denied the plaintiff’s motion for additur or to set aside the verdict
and rendered judgment in accordance with the verdict, from which the
plaintiff appealed to this court. Held:
1. The trial court did not abuse its discretion in denying the plaintiff’s motion
for additur or to set aside the verdict:
a. The plaintiff’s claim that the court should have set aside the verdict
because the award of zero noneconomic damages conflicted with the
jury’s answers to certain interrogatories she had requested and was
thus, fatally inconsistent, was unavailing: when a certain interrogatory
was read in conjunction with the court’s instructions to the jury to
consider each claim for damages separately and to decide damages
last, it was clear that the interrogatory concerned the nature of the
defendant’s liability, not the existence or extent of the plaintiff’s dam-
ages, the court made it clear that the mere fact that the plaintiff suffered
an injury or loss did not automatically entitle her to damages, the plain-
tiff’s interpretation of the interrogatory would have required the jury to
proceed contrary to the court’s instructions and to consider the questions
of causation and damages simultaneously, and it was entirely plausible
and reasonable for the jury to have found that the defendant violated
certain statutes pleaded in the complaint with reckless disregard and
that the plaintiffs injuries were caused thereby, but that the plaintiff
did not prove her noneconomic damages by a fair preponderance of
the evidence; accordingly, the plaintiff failed to show that the jury’s
verdict was inconsistent with its answers to the interrogatories.
b. The plaintiff could not prevail on her claim that the award of zero
noneconomic damages was inadequate as a matter of law: an award of
all claimed economic damages, including compensation for medical
expenses for the treatment of pain, does not require an award of noneco-
nomic damages, and, thus, the fact that the jury awarded economic
damages for medical treatment, including treatment for pain, did not
necessarily mean that it had to award damages for pain itself, as it may
be reasonable for a jury to conclude that although a plaintiff suffered
an injury caused by a defendant and incurred reasonable and necessary
medical expenses in treating that injury, the plaintiff nevertheless did
not suffer compensable pain and suffering; moreover, the jury here
reasonably could have determined that all of the plaintiff’s medical
expenses were reasonable and necessary treatment for her relatively
minor injuries but that the plaintiff did not experience any compensable
pain related to the accident, that the plaintiff failed to prove by a prepon-
derance of the evidence that the accident caused her headaches and
neck pain, and therefore, that although her diagnostic consultation and
radiological imaging were reasonable and necessary in light of the colli-
sion, she did not experience compensable pain caused by it, and the
jury was free to credit all, none or some of the testimony of the plaintiff,
who failed to show that there was either a mistake in law or another
valid basis for upsetting the will of the jury.
2. The trial court did not abuse its discretion in refusing to set aside the
verdict due to certain alleged procedural irregularities: although the
plaintiff claimed that the court improperly failed to accept a technically
correct verdict and to consult with counsel before reinstructing the jury,
there was nothing in the record, or in any legal authority provided by
the plaintiff, to indicate that she was harmed or prejudiced by the court’s
action in adjourning for the day after the jury had indicated that it was
pretty sure that it had done everything necessary to render a technically
correct verdict, to give the jury more time the following day, after it
was reinstructed, to properly complete the verdict forms, and the record
showed that the court explained to counsel what it planned to do,
listened to counsel and then reinstructed the jury as to filling out the
verdict forms, and there was no merit to the plaintiff’s claim that the
court failed to ensure that only full exhibits were submitted to the
jury; moreover, although the plaintiff claimed that the court improperly
discharged the jury before the parties had an opportunity to request a
polling of the jury under the applicable rule of practice (§ 16-32), that
rule does not require the court to inquire, sua sponte, whether the parties
want to have the jury polled, and there was no request prior to the
discharge of the jury for it to be polled.
Argued October 16, 2017—officially released May 8, 2018
Procedural History
Action to recover damages for personal injuries sus-
tained by the plaintiff in a motor vehicle accident alleg-
edly caused by the defendant’s negligence, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Bridgeport and tried to a jury before Radcliffe,
J.; verdict for the plaintiff; thereafter, the court denied
the plaintiff’s motion for additur or to set aside the
verdict, and the plaintiff appealed to this court.
Affirmed.
Tracey Lane Russso, with whom, on the brief, was
Gerard McEnery, for the appellant (plaintiff).
Michael T. Vitali, for the appellee (defendant).
Opinion
DiPENTIMA, C. J. In this personal injury action aris-
ing from an automobile collision, the jury found in favor
of the plaintiff, Robin Micalizzi, and awarded her all of
her claimed economic damages but zero noneconomic
damages. She filed a motion to set aside the verdict
and, in the alternative, for an additur on the ground
that she also was entitled to noneconomic damages.
The trial court denied that motion, and the plaintiff
appealed from that denial. She claims that the court
abused its discretion by (1) refusing to set aside the
verdict or to order an additur because the jury’s verdict
was inconsistent and inadequate, and (2) refusing to
set aside the verdict because of procedural irregulari-
ties. We do not agree. Accordingly, we affirm the judg-
ment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. On May 10, 2013, at the intersection of North
Bishop and Grandfield Avenues in Bridgeport, a vehicle
operated by the defendant, Kenneth Stewart, struck the
vehicle the plaintiff was operating. The plaintiff claimed
that the collision caused a strain/sprain of her cervical
spine, permanent damage to her left hand and recurring,
severe headaches. She consulted medical professionals
and received some treatment for her alleged injuries,
incurring a total of $7,325 in medical expenses.
On September 11, 2013, the plaintiff brought an action
against the defendant, alleging that his negligence, stat-
utory recklessness, and common-law recklessness had
caused her aforementioned injuries.1 On November 3
and 4, 2015, the matter was tried to a jury. On November
6, 2015, the jury returned a plaintiff’s verdict, finding
the defendant 65 percent responsible for the plaintiff’s
injuries and awarding the plaintiff that proportion of
her total claimed economic damages. The jury did not
award the plaintiff any noneconomic damages. The
plaintiff filed a motion to set aside the verdict and, in
the alternative, for an additur. After a hearing, the court
orally denied the plaintiff’s motion, and the plaintiff
appealed from that denial.2 Additional facts will be set
forth as necessary.
I
The plaintiff first claims that the trial court abused
its discretion by refusing to set aside the verdict or to
order an additur. Specifically, the plaintiff argues that
(1) the court should have set aside the verdict because
the award of zero noneconomic damages conflicts with
the jury’s answers to the interrogatories and (2) the
court should have set aside the verdict or ordered an
additur because the award was inadequate as a matter
of law. We disagree.
We begin with the standard that governs our review.
order an additur 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 the motions for additur and to set aside the
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. The trial court’s decision is
significant because the trial judge has had the same
opportunity as the jury to view the witnesses, to assess
their credibility and to determine the weight that should
be given to their evidence. Moreover, the trial judge
can gauge the tenor of the trial, as we, on the written
record, cannot, and can detect those factors, if any,
that could improperly have influenced the jury. . . .
The only practical test to apply to a verdict is whether
the award of damages falls somewhere within the neces-
sarily uncertain limits of fair and reasonable compensa-
tion 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. . . .
‘‘[A]lthough 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 . . . the court’s action cannot be reviewed in a
vacuum. The evidential underpinnings of the verdict
itself must be examined. . . . [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 upset-
ting the result other than a difference of opinion regard-
ing the conclusions to be drawn from the evidence, the
trial court should let the jury work [its] will.’’ (Internal
quotation marks omitted.) DeEsso v. Litzie, 172 Conn.
App. 787, 795–96, 163 A.3d 55, cert. denied, 326 Conn.
913, 173 A.3d 389 (2017).
A
We first address the plaintiff’s contention that the
court should have set aside the verdict because the
award of zero noneconomic damages conflicted with
the jury’s answers to the interrogatories she requested
and, thus, was fatally inconsistent. We conclude that
the verdict and the responses to the interrogatories
were not necessarily inconsistent.
A party may request that the court submit interrogato-
ries to the jury pursuant to Practice Book § 16-18.3 Inter-
rogatories provide a breakdown of the components of
the jury’s award and of the factors underlying the jury’s
ultimate view of the evidence. DeEsso v. Litzie, supra,
172 Conn. App. 797; Caruso v. Quickie Cab Co., 48
Conn. App. 459, 462, 709 A.2d 1154 (1998); Marchetti
v. Ramirez, 40 Conn. App. 740, 746, 673 A.2d 567 (1996),
aff’d, 240 Conn. 49, 688 A.2d 1325 (1997). In considering
the plaintiff’s claim, we note that ‘‘[i]t is not the function
of a court to search the record for conflicting answers
in order to take the case away from the jury on a theory
that gives equal support to inconsistent and uncertain
inferences. When a claim is made that the jury’s answers
to interrogatories in returning a verdict are inconsistent,
the court has the duty to attempt to harmonize the
answers.’’ (Internal quotation marks omitted.) Suarez
v. Dickmont Plastics Corp., 242 Conn. 255, 270, 698 A.2d
838 (1997); Froom Development Corp. v. Developers
Realty, Inc., 114 Conn. App. 618, 626–27, 972 A.2d 239,
cert. denied, 293 Conn. 922, 980 A.2d 909 (2009).
Only if a court cannot harmonize the verdict and the
interrogatories may it refuse to accept such verdict.
Rendahl v. Peluso, 173 Conn. App. 66, 95–96, 162 A.3d
1 (2017). ‘‘A verdict is not defective as a matter of law
as long as it contains an intelligible finding so that its
meaning is clear. . . . A verdict will be deemed intelli-
gible if it clearly manifests the intent of the jury.’’ Sigu-
lar v. Gilson, 141 Conn. App. 581, 587, 62 A.3d 564,
cert. granted, 308 Conn. 948, 67 A.3d 291 (2013) (appeal
withdrawn Aug. 1, 2013).
‘‘The role of an appellate court where an appellant
seeks a judgment contrary to a general verdict on the
basis of the jury’s allegedly inconsistent answers to
. . . interrogatories is extremely limited. . . . To jus-
tify the entry of a judgment contrary to a general verdict
upon the basis of answers to interrogatories, those
answers must be such in themselves as conclusively to
show that as [a] matter of law judgment could only be
rendered for the party against whom the general verdict
was found; they must [negate] every reasonable hypoth-
esis as to the situation provable under the issues made
by the pleadings; and in determining that, the court may
consider only the issues framed by the pleadings, the
general verdict and the interrogatories, with the
answers made to them, without resort to the evidence
offered at the trial.’’ (Citation omitted; internal quota-
tion marks omitted.) Suarez v. Dickmont Plastics
Corp., supra, 242 Conn. 269–70; Snell v. Norwalk Yellow
Cab, Inc., 172 Conn. App. 38, 72, 158 A.3d 787, cert.
granted, 325 Conn. 927, 169 A.3d 232 (2017); Froom
Development Corp. v. Developers Realty, Inc., supra,
114 Conn. App. 626–27.
In this case, in its answers to the interrogatories, the
jury specifically found that (1) the defendant violated
both General Statutes §§ 14-218a4 and 14-222,5 (2) the
defendant violated both statutes ‘‘with reckless disre-
gard’’6 and (3) the defendant’s violation of such statutes
with reckless disregard proximately caused the plain-
tiff’s injuries, but that (4) the plaintiff was not entitled
to double or treble damages. In addition, the jury found
that the plaintiff was comparatively negligent. Ulti-
mately, the jury determined that the plaintiff was enti-
tled to recover 65 percent of $7,325, the latter sum
representing her claimed and proven economic dam-
ages, but no noneconomic damages. Thus, the jury’s
total award was $4,761.25.
It is the plaintiff’s contention that, notwithstanding
its award of noneconomic damages, the jury found that
she had necessarily endured pain and suffering, there-
fore entitling her to noneconomic damages. Specifi-
cally, the plaintiff directs our attention to the third
interrogatory, which reads: ‘‘Do you find that the viola-
tion of either or both statutes ‘with reckless disregard,’
was the proximate cause (substantial factor) of the
injuries sustained by [the plaintiff]?’’7 The jury answered
this interrogatory in the affirmative. The plaintiff con-
tends that the phrase ‘‘injuries sustained by [the plain-
tiff]’’ implies a subordinate finding that there were, in
fact, noneconomic damages.8 Specifically, the plaintiff
asserts that were we to ‘‘[break] down the plain meaning
of the terms used by the [j]ury in [its] findings,’’ we
would have to conclude ‘‘that medical care would not
be rendered for injuries if there was no ‘physical pain
and suffering [or] permanent injury disability or
impairment.’ ’’
This argument is unavailing. Even if we assume that
the interrogatory and its answer were open to interpre-
tation, our standard of review requires us to resolve
any ambiguity in the verdict in favor of the verdict’s
propriety. See Barry v. Quality Steel Products, Inc., 263
Conn. 424, 435 n.14, 820 A.2d 258 (2003) (harmonizing
verdict where compound question in jury interrogatory
resulted in ambiguous answer); Suarez v. Dickmont
Plastics Corp., supra, 242 Conn. 270 (‘‘the court has a
duty to attempt to harmonize the answers’’ [internal
quotation marks omitted]).
When read in conjunction with the court’s instruc-
tions to the jury; see Suarez v. Dickmont Plastics Corp.,
supra, 242 Conn. 271 (‘‘we do not read the interrogato-
ries in isolation, but, rather, in conjunction with the
jury instructions’’); it is clear that the third question
concerned the nature of the defendant’s liability, not
the existence or extent of the plaintiff’s damages. The
court instructed the jury that it ought to decide damages
last, that it should consider each claim for damages
separately from all others, that it was free to credit or
discredit any witness’ testimony, and that the plaintiff
had the burden of proving her damages by a fair prepon-
derance of the evidence.9
Indeed, the court made it clear that ‘‘the mere fact
that the plaintiff suffered an injury or loss does not
automatically entitle her to damages. She must prove
by the preponderance of the evidence standard that her
injuries and damages were proximately caused by some
act or acts of negligence on the part of the defendant.
In other words, the plaintiff must prove three elements
to you. First, at least one act of negligence on the part of
the defendant as specified or outlined in her complaint.
Second, that that act or those acts proximately caused
her injuries. And third, she must prove the resulting
injuries and damages.’’ (Emphasis added.) These
instructions clarify that each component of the jury’s
verdict requires a separate consideration, and that the
jury would necessarily have had to address the question
of proximate causation before it turned to the question
of damages. The plaintiff’s interpretation of the chal-
lenged interrogatory would require the jury to proceed
contrary to the court’s instructions and consider the
questions of causation and damages simultaneously.
‘‘[I]t is well established that, [i]n the absence of a show-
ing that the jury failed or declined to follow the court’s
instructions, we presume that it heeded them.’’ Monti
v. Wenkert, 287 Conn. 101, 116, 947 A.2d 261 (2008).
Accordingly, it is entirely plausible and reasonable
for the jury here to have found that the defendant vio-
lated the two pleaded statutes with reckless disregard
and that the plaintiff’s injuries were caused by the same,
but that the plaintiff did not prove her noneconomic
damages by a fair preponderance of the evidence. See
also part I B of this opinion. As a result, the plaintiff
cannot demonstrate that the jury’s verdict is inconsis-
tent with its answers to the interrogatories. The court,
therefore, did not abuse its discretion in refusing to set
aside the verdict on that ground.
B
Having determined that the jury’s verdict is not incon-
sistent with its answers to the interrogatories, we turn
now to the plaintiff’s contention that the award is inade-
quate and, thus, that the court abused its discretion in
refusing to set it aside or to order an additur. This
contention has two parts. First, the plaintiff argues that
an award of zero noneconomic damages is inadequate
as a matter of law where the jury has awarded one
hundred percent of the claimed economic damages,
which include medical expenses for the treatment of
pain. Second, the plaintiff argues that the facts and
circumstances of this case demand an award of noneco-
nomic damages. We do not agree.
1
As to the first part of the plaintiff’s argument, we
disagree that an award of all claimed economic dam-
ages, including compensation for medical expenses for
the treatment of pain, requires an award of noneco-
nomic damages.
‘‘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), [our 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. . . .
‘‘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 evi-
dence 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 assump-
tion that the jury made a mistake, but, rather, on the
supposition that the jury did exactly what it intended
to do. . . .
‘‘Thus, pursuant to Wichers and its progeny, [a] plain-
tiff [is] not entitled to an award of noneconomic dam-
ages simply because the jury awarded her economic
damages. On the contrary, [a] plaintiff, as the party
claiming noneconomic damages, had the burden of
proving them with reasonable certainty. . . . Simply
stated, [where] the plaintiff claim[s] noneconomic dam-
ages . . . she ha[s] the burden of proof to show that
she experienced pain as the result of the accident.’’
(Citations omitted; internal quotation marks omitted.)
DeEsso v. Litzie, supra, 172 Conn. App. 804–805.
The plaintiff cites to Wichers v. Hatch, supra, 252
Conn. 174, and Schroeder v. Triangulum Associates,
259 Conn. 325, 789 A.2d 459 (2002), in support of her
argument that the award is inadequate per se. She con-
tends that these cases hold that where the jury awards
all of the plaintiff’s claimed economic damages, the
jury has unambiguously determined that the claimed
medical expenses were reasonable and necessary to
treat pain caused by the claimed injury, and, thus, that
an award of zero noneconomic damages invariably is
inadequate.
This is not an accurate reading of these cases.
Although our courts sometimes have been reluctant to
do so,10 our Supreme Court expressly has allowed for
an award of 100 percent of the claimed economic dam-
ages and zero noneconomic damages under the right
circumstances. See Wichers v. Hatch, supra, 252 Conn.
188–89 (‘‘[T]he jury’s decision to award economic dam-
ages 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 evi-
dence to decide whether the jury reasonably could have
found that the plaintiff had failed in his proof of the
issue.’’); Schroeder v. Triangulum Assocs., supra, 259
Conn. 334 n.5 (‘‘[o]ur conclusion on the facts of this
case does not foreclose the possibility . . . that a jury
in a case with different facts reasonably could award
the full amount of a plaintiff’s claimed economic dam-
ages but no noneconomic damages’’); see also Melendez
v. Deleo, 159 Conn. App. 414, 418–19, 123 A.3d 80 (2015)
(affirming judgment awarding 100 percent of past
claimed medical bills including for treatment of pain,
wages, and property damage but zero noneconomic
damages); Lidman v. Nugent, 59 Conn. App. 43, 46, 755
A.2d 378 (2000) (reversing and remanding with direc-
tion to reinstate jury verdict awarding all economic
damages and zero noneconomic damages and render
judgment thereon). Thus, contrary to the plaintiff’s
reading of our cases, they clearly stand for the proposi-
tion that there is no per se rule in cases where a jury
awards substantial economic damages but no noneco-
nomic damages.
Additionally, the fact that the jury awarded economic
damages for medical treatment, including treatment for
pain, does not necessarily mean that it must award
damages for pain itself. Under the fact intensive, case-
by-case inquiry demanded by Wichers v. Hatch, supra,
252 Conn. 188–90, it may be reasonable for a jury to
conclude that although a plaintiff suffered an injury
caused by a defendant and incurred reasonable and
necessary medical expenses in treating that injury, that
plaintiff nevertheless did not suffer compensable pain
and suffering. See Cusano v. Lajoie, 178 Conn. App.
605, 611, 176 A.3d 1228 (2017) (‘‘[T]he court seems to
assume that because the plaintiff sought medical treat-
ment for pain . . . and was awarded the full amount
of the cost of that treatment, the plaintiff inevitably
experienced compensable pain and suffering. Our
Supreme Court expressly rejected that reasoning in
Wichers v. Hatch, [supra, 188–90].’’ [Emphasis added.]);
Smith v. Lefebre, 92 Conn. App. 417, 422, 885 A.2d 1232(2005) (‘‘there is no obligation for the jury to find that
every injury causes pain’’).11 Indeed, this court pre-
viously has upheld verdicts that awarded economic
damages for procedures specifically targeting pain and
suffering, but zero noneconomic damages. Cusano v.
Lajoie, supra, 605 (chiropractic); Melendez v. Deleo,
supra, 159 Conn. App. 414 (manipulation, stimulation,
cold packs, chiropractic); Silva v. Walgreen Co., 120
Conn. App. 544, 992 A.2d 1190 (2010) (emergency room
observation and medication for anxiety, depression,
and sleep disorders caused by alleged post-traumatic
stress disorder); Smith v. Lefebre, supra, 92 Conn. App.
417 (physical therapy, ultrasound, traction, chiroprac-
tic); see also Lidman v. Nugent, supra, 59 Conn. App.
46 (upholding jury verdict awarding no noneconomic
damages where trial court, in its decision, noted use
of hot/cold packs, ultrasound, electrical stimulation,
assisted therapeutic exercise, massage with deep fric-
tion, myofascial release and manual traction).
These cases indicate that it is possible for a jury to
conclude that medical treatment was reasonable and
necessary as a diagnostic or prophylactic measure, but
that the plaintiff experienced either no pain or pain
caused by an underlying illness, preexisting condition
or other cause. See, e.g., Wichers v. Hatch, supra, 252
Conn. 189–90 (‘‘the jury could have accepted the evi-
dence that it was advisable for the plaintiff to see his
chiropractor more frequently than usual following the
accident, but that the accident did not cause him actu-
ally to suffer greater pain than he already had experi-
enced as a result of his preexisting condition’’
[emphasis added]); Silva v. Walgreen Co., supra, 120
Conn. App. 559 (‘‘[T]he jury, in its commonsense assess-
ment of the case and evaluation of the plaintiff’s credi-
bility, might well have believed that she either sought
medical treatment as an appropriate precautionary
measure or in anticipation of possible litigation but
that she failed to prove that she had actually suffered
compensable pain. The jury was not required to find
that, because the plaintiff sought treatment for pain
and suffering, she necessarily experienced pain and
suffering.’’ [Internal quotation marks omitted.]).
2
Accordingly, we must examine with care the specific
facts and circumstances of this case to determine
whether the jury reasonably could have concluded that
although the plaintiff’s economic damages were com-
pensable, her noneconomic damages were not. In light
of this record, we cannot conclude that the jury’s award
was inadequate.
At trial, the plaintiff testified that, after the Friday
collision, she experienced several symptoms: ‘‘Really
bad headache. My neck felt really stiff. I had—couldn’t
bend my hand at all and I was all black and blued . . . .’’
For these, the plaintiff eventually sought treatment from
various sources. First, over the weekend following the
collision, she called her brother, a neurologist, who,
over the telephone, ordered an MRI scan and prescribed
Soma compound for the headaches. Then, on the Mon-
day after the collision, the plaintiff consulted her pri-
mary care physician, who advised her to receive
physical therapy for her neck. The plaintiff later sought
advice regarding her hand from an orthopedist, who
ordered X-ray imaging but did not prescribe any
treatment.
The plaintiff testified that her neck injury was tempo-
rary and that she eventually stopped getting treatment
therefor: ‘‘I went to physical therapy for a few months,
but it was just sort of making it worse just massage or
exercise. It didn’t really do anything so it I discontinued
that.’’ Despite the lack of continued treatment, the plain-
tiff testified at trial that, at that time, her neck injury
‘‘isn’t that bad. It’s pretty much, much better. . . . Once
in a while it’ll, like, stiffen up but it’s—it’s not that bad.’’
Conversely, the plaintiff testified that her headaches
were persistent. She described them as ‘‘viselike,’’ caus-
ing a ‘‘squeezing pressure pain type of feeling’’ in the
‘‘frontal’’ region of her head ‘‘[j]ust about on a daily
basis.’’ She testified that she believed the headaches
might be related to ‘‘abnormal findings’’ in her MRI, but
agreed on cross-examination that such findings ‘‘could
be’’ representative of ‘‘a normal variance’’ in someone
her age. Although the MRI report the plaintiff received
recommended that she undergo follow-up scans every
four to six months, she admitted that she had never
gotten a second scan; she testified that she intended
to do so in the near future.
In addition to her recurring headaches, the plaintiff
testified that the partial loss of mobility in her left hand
was a permanent impairment, affecting her ability to
type, crochet, garden, and bowl—activities she claimed
she had enjoyed before the collision. She also testified,
however, that during her initial consultation with the
orthopedist, she was told that ‘‘there’s really nothing
that can be done’’ for her left pinky finger, and that her
‘‘finger should clear up.’’ Despite a recommendation
from the orthopedist to consult a hand specialist if her
condition did not improve, the plaintiff conceded that
she never did so.
Although the defendant’s primary challenge to the
plaintiff’s claims was over the question of liability,12 he
also made an issue of the nature and severity of the
plaintiff’s injuries, and challenged the plaintiff to
explain her failure to follow up on her doctors’ recom-
mendations and pursue further treatment. He also dis-
puted her claims of inability to enjoy life’s activities,
and contested her assertion that the collision caused
her claimed injuries. In response, the plaintiff conceded
that she had repeatedly declined further diagnostic tests
and other medical treatment, even when she had been
advised to do so. She testified that some treatment,
such as physical therapy, caused her more discomfort
than nontreatment. She agreed that any abnormalities
in her MRI scan could be related to individual physiol-
ogy or age.
As discussed earlier in this opinion, claims of inade-
quate verdicts are treated on a case-by-case, fact spe-
cific basis. See Wichers v. Hatch, supra, 252 Conn.
188–90. Viewing the record in the light most favorable
to sustaining the jury’s verdict; see DeEsso v. Litzie,
supra, 172 Conn. App. 805; we conclude that the facts
of this case more closely align with those cases in which
an award of substantially all the claimed economic dam-
ages and zero noneconomic damages was upheld. Here,
the jury determined that all of the plaintiff’s medical
expenses were reasonable and necessary treatment for
her relatively minor injuries.13 Nevertheless, the jury
reasonably could have concluded that the plaintiff did
not experience any compensable pain related to the
accident. First, a significant portion of the plaintiff’s
claimed medical expenses related to diagnostic consul-
tations. In the jury’s estimation, it may very well have
been reasonable and necessary for the plaintiff to con-
sult her physicians after a motor vehicle collision to
ensure that she had not suffered any injuries that may
or may not present immediate or notable symptoms.
This is especially true in light of the plaintiff’s testimony
that she had once before suffered a ‘‘really bad injury
to [her] lower back’’ in a previous, unrelated motor
vehicle collision involving a semitrailer truck. Similarly,
the jury reasonably could have concluded that the radio-
logical imaging the plaintiff received was an appropriate
way to ensure that latent internal damage did not result
from the collision.
Notwithstanding those expenses, the plaintiff
received two additional treatments that ostensibly
could be reasonable and necessary to treat pain caused
by the accident: Soma, a muscle relaxant/analgesic com-
pound, for her headaches and physical therapy for her
neck. On this record, however, it was reasonable for
the jury to conclude that the plaintiff failed to prove
that the accident caused her compensable pain. With
respect to the medication, the plaintiff testified that
she believed that her headaches might be related to
abnormalities found in her MRI, which she then con-
ceded could have been caused not by the accident but
rather by the idiosyncrasies of her physiology. Part of
the reason that it is difficult to trace their source is
that the plaintiff failed to follow up on her physicians’
recommendation that she receive another MRI. The jury
may reasonably have concluded that the plaintiff’s fail-
ure to do so suggested that she was not concerned
about the onset of new symptoms or possible damage
to her brain. Accordingly, the jury reasonably could
have determined that the plaintiff failed to prove by a
preponderance of the evidence that the accident caused
her headaches, and therefore, that although her diag-
nostic consultation and radiological imaging were rea-
sonable and necessary in light of the collision, she did
not experience compensable pain caused by it.
With respect to the physical therapy, the plaintiff
testified that she stopped attending after a few months
because ‘‘it was just sort of making it worse just mas-
sage or exercise. It didn’t really do anything so . . . I
discontinued that.’’ The plaintiff also testified that
despite the lack of treatment, the condition of her neck
had improved. Together, this testimony could have led
the jury reasonably to conclude that her physical ther-
apy was a prophylactic treatment designed to prevent
further damage to her cervical spine or the deterioration
of her overall musculoskeletal condition. This is espe-
cially true in light of the fact that the plaintiff had
previously injured her lower back, an injury for which
Vicodin had been prescribed. Therefore, the jury rea-
sonably could have determined that the plaintiff failed
to prove by a preponderance of the evidence that the
accident caused her neck pain.
To the extent that the plaintiff and the plaintiff’s
witnesses, including her physicians, testified that the
link between the collision and her pain was absolute,
‘‘[i]t is the jury’s right to accept some, none or all of
the evidence presented. . . . It is the [jury’s] exclusive
province to weigh the conflicting evidence and to deter-
mine the credibility of witnesses. . . . The [jury] can
. . . decide what—all, none, or some—of a witness’
testimony to accept or reject.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.)
Cusano v. Lajoie, supra, 178 Conn. App. 609.
Moreover, the trial court accepted the jury’s verdict
over the plaintiff’s motion to set it aside or to order an
additur. A court’s acceptance of the verdict, despite
objections, counsels in favor of its propriety. ‘‘Where
. . . a trial court and a jury have concurred in their
determination that a particular damages award is appro-
priate, that circumstance provides a persuasive argu-
ment for sustaining the action of the court on the
motion. . . . The reason for such a deferential stan-
dard is clear. Litigants have a constitutional right to
have factual issues resolved by the jury. . . . 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. . . . ’’ (Citations omitted; internal quotation
marks omitted.) Munn v. Hotchkiss School, 326 Conn.
540, 574-75, 165 A.3d 1167 (2017). ‘‘The trial court’s
refusal to set aside the verdict or to order an additur
is entitled to great weight and every reasonable pre-
sumption should be given in favor of its correctness.
In reviewing the action of the trial court in denying the
motions for additur and to set aside the 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. . . . If, on the evidence, the jury could
reasonably have decided as [it] 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, 112–
13, 663 A.2d 398 (1995).
We especially are reluctant to overturn an award
premised mainly on subjective descriptions of pain and
suffering.14 In such cases, the credibility of the plaintiff
and the plaintiff’s witnesses is crucial, and we, as a
reviewing court, are far less able to make such a deter-
mination upon a cold record. Instead, we defer to the
jury, which was free to credit all, none, or some of the
plaintiff’s testimony and return a verdict accordingly.
See Froom Development Corp. v. Developers Realty,
Inc., supra, 114 Conn. App. 635. The record is clear that
the nature and extent of the plaintiff’s injuries, and the
claimed damages flowing therefrom, were contested.
We can presume that the jury returned a verdict reflec-
tive of its assessment of the results of that contest. In
that respect, this case is similar to Melendez v. Deleo,
supra, 159 Conn. App. 414, in which this court affirmed
the denial of an additur where the jury awarded all of
the plaintiff’s claimed economic damages and none of
her claimed noneconomic damages.15 The trial court in
that case had the same opportunity as the jury to
observe the witnesses, assess their credibility and deter-
mine the weight to be given their evidence.
Thus, the trial court’s refusal to set aside the verdict
or to order an additur must be given great weight and
presumed correct unless unreasonable. Id. Here, as in
Melendez, the plaintiff has failed to show that there
was either a mistake in law or another valid basis for
upsetting the will of the jury. Accordingly, we find no
reason not to conclude that ‘‘the award of damages falls
somewhere within the necessarily uncertain limits of
fair and reasonable compensation . . . or [that] the
verdict so shocks the sense of justice as to compel the
conclusion that the jury [was] influenced by partiality,
mistake or corruption.’’ (Internal quotation marks omit-
ted.) DeEsso v. Litzie, supra, 172 Conn. App. 796. There-
fore, it was not an abuse of discretion for the court to
accept the verdict.
II
The plaintiff next claims that a series of procedural
irregularities required the court to set aside the verdict
and order a new trial. Specifically, the plaintiff argues
that the court (1) failed to accept a technically correct
verdict in violation of Practice Book § 16-31,16 (2) nei-
ther consulted with counsel before communicating with
the jury nor tailored such communications to the scope
of the jury’s question in violation of Practice Book § 16-
28,17 (3) deprived the plaintiff of the opportunity to
ensure that only full exhibits were submitted to the
jury, and (4) discharged the jury without affording the
parties the opportunity to have the jury polled in viola-
tion of Practice Book § 16-32.18 Because we are not
persuaded that the court abused its discretion in any
of the ways alleged, we disagree that the court should
have set aside the verdict and ordered a new trial.
The following additional facts underlie the plaintiff’s
claims of procedural impropriety. Evidence concluded
on November 4, 2015. On the following day, in the morn-
ing, the parties made their closing arguments and the
court delivered its final instructions to the jury. At the
conclusion of those instructions, the court indicated
that, due to a personal commitment, deliberations
would have to pause on that day at 4 p.m. rather than
at 5 p.m. That prompted counsel for the plaintiff to ask
whether any other judge might be available to hear a
potential verdict after 4 p.m.; the court indicated that
every judge in that courthouse was on trial.
The court then released the jury for the lunch recess
and gave both counsel an opportunity to sort through
the exhibits that would be submitted to the jury.19 After
the lunch recess, the jury began deliberations. At
approximately 3:45 p.m., it sent out a note with a ques-
tion for the court. The court informed counsel that it
would take the question at that time and release the
jury until the following morning.20 The court then
received the jury’s note and read it into the record. The
note read: ‘‘We have come to a verdict and are pretty
sure we haven’t filled form Plaintiff’s Verdict & Interrog-
atories as to count two correctly.’’
In response to the jury’s note, the court stated: ‘‘That’s
not really a question but I’m going to have it marked
as a court exhibit. And because, as I said, I have to
recess early today, I’m going to mark that as a court’s
exhibit, and I’m going to release you for today, ask that
you report back at 9:30 tomorrow morning, and at 9:30
tomorrow morning you can resume your deliberations.
If any further follow up questions are necessary, we’ll
do so at that time, but I don’t want anything to be
stampeded this afternoon.’’
Counsel for the plaintiff then asked if the jury could
be held while he addressed a question to the court. The
court complied, and the jury left the courtroom. At that
point, counsel for the plaintiff made a record of his
request to have another judge take the verdict.21 The
court declined so to order and released the jury for
the day.
The next morning, the court informed counsel that
it intended to (1) reinstruct the jury on the proper way
to complete the verdict forms and (2) send fresh copies
of each such form to the jury when it reconvened for
deliberations. Counsel for the plaintiff then sought to
clarify whether the jury would have the original copy
of each form and whether the court would mark the
original copies as exhibits. The court indicated that the
jury would have both copies of the verdict forms, and
that it eventually would mark whatever forms the jury
had partially or incorrectly completed as court’s
exhibits.
Thereafter, the following exchange occurred:
‘‘[The Plaintiff’s Counsel]: And will the court deter-
mine prior to the documents going back into the jury
room whether or not the verdict forms have been
signed?
‘‘The Court: No.
‘‘[The Plaintiff’s Counsel]: Then I would ask the court
to do that.
‘‘The Court: I won’t.
‘‘[The Plaintiff’s Counsel]: And, Your Honor, the rea-
son I would ask the court to do that is because this
jury went home last night, and if that verdict form was
signed, then sending them back in gives them a chance
to have outside influences or different deliberations. If
I had a verdict yesterday, I need to protect that verdict,
and I’m asking—
‘‘The Court: I am assuming . . . that the jury fol-
lowed the court’s instructions, which were not to dis-
cuss the matter with anyone or to allow anyone to
discuss the matter with them. They were told that, they
were specifically told when they left yesterday at
approximately four o’clock that they would only delib-
erate in the—when all of them were together and they
had with them the full exhibits and the verdict forms
which were given to them by the clerk. I presume that
they followed that instruction. So I am not going to ask
them if they talked with anybody or if they signed a
verdict form. I don’t know what’s on those verdict
forms, if anything.
‘‘[The Plaintiff’s Counsel]: Your Honor, again, I would
ask that you determine whether or not the verdict form
has been signed. I understand—
‘‘The Court: I’m not going to do that.
‘‘[The Plaintiff’s Counsel]: I understand the court’s
direction.’’
After a brief recess, counsel for the plaintiff raised
the issue again, but the court did not change its mind.22
Thereafter, the court reinstructed the jury on the meth-
ods for completing the verdict forms. When the jury
returned to deliberate, counsel for the plaintiff took an
exception on the record to the court’s actions with
respect to the jury’s note.
Shortly thereafter, the jury indicated that it had
reached a verdict. When the jury returned to the court-
room, the court marked all of the verdict forms as
court’s exhibits. The clerk then read the verdict into
the record, and the jury confirmed it. The court then
ordered that the verdict be ‘‘accepted and recorded,’’
and thanked the jury before asking the jurors to return
to the jury room. The court then addressed the verdict
forms it had marked as court’s exhibits.
At that point, the court asked counsel whether they
wanted to be heard. Counsel for the plaintiff stated
that she did not. Counsel for the defendant, however,
requested that the court poll the jury. The court
declined, stating that it had discharged the jury. Counsel
for the plaintiff took no position with respect to that
request.23
The plaintiff’s four claims of procedural irregularity
merit little discussion. It has long been the rule that
‘‘control of the order of the courtroom is necessarily
within the discretion of the trial court . . . .’’ Antel v.
Poli, 100 Conn. 64, 69, 123 A. 272 (1923). ‘‘The trial
court is vested with a large discretion over matters
occurring in the conduct of the trial. While this is a
judicial discretion and therefore subject to some degree
of review and control, its exercise will not be interfered
with unless it has been clearly abused to the manifest
injury of a litigant.’’ Pisel v. Stamford Hospital, 180
Conn. 314, 322, 430 A.2d 1 (1980). This inherent power
to control proceedings exists independent of any set
forth by rule or statute. See State v. Abushaqra, 164
Conn. App. 256, 264–66, 137 A.3d 861 (2016). ‘‘The trial
court has a responsibility to avoid unnecessary interrup-
tions, to maintain the orderly procedure of the court
docket, and to prevent any interference with the fair
administration of justice. . . . In addition, matters
involving judicial economy, docket management [and
control of] courtroom proceedings . . . are particu-
larly within the province of a trial court.’’ (Internal quo-
tation marks omitted.) Bobbin v. Sail the Sounds, LLC,
153 Conn. App. 716, 724–25, 107 A.3d 414 (2014), cert
denied, 315 Conn. 918, 107 A.3d 961 (2015). ‘‘In
determining whether a trial court abused its discretion,
the unquestioned rule is that great weight is due to the
action of the trial court and every reasonable presump-
tion should be given in favor of its correctness.’’ Id., 727.
As for the plaintiff’s claim that the court failed to
comply with Practice Book § 16-31, we disagree. The
note that the jury sent out to the court at 3:45 p.m.
indicated that the jury was ‘‘pretty sure we haven’t filled
form Plaintiff’s Verdict & Interrogatories as to count
two correctly.’’ In response, the court marked the note
as a court exhibit and reminded counsel and the jury
that it needed to recess at 4 p.m. that day before
instructing the jury to report back the next morning.
The next morning, the court reinstructed the jury on
the proper way to complete verdict forms and sent it
fresh copies of the verdict forms along with the original
forms. By following this procedure, the court provided
the jury with reinstruction and time to complete the
forms properly. Because the note indicated that the
jurors were ‘‘pretty sure’’ they had not done everything
necessary to render a technically correct verdict, the
court properly adjourned for the day to give them more
time, after they were reinstructed, to properly complete
the verdict forms. Further, there is nothing in the
record, or in any legal authority provided by the plain-
tiff, to indicate that she was harmed or prejudiced by
the court’s action.24
As for the plaintiff’s claim that the court failed to
consult with counsel before reinstructing the jury, the
record indicates otherwise. The court explained to
counsel what it planned to do, listened to counsel and
then reinstructed the jury as to filling out the verdict
forms.
The next claim of procedural irregularity, that the
court failed to ensure that only full exhibits were sub-
mitted to the jury, is particularly meritless. The record
reveals that prior to the beginning of deliberations, the
court gave counsel the opportunity to review the materi-
als the jury would have with it during deliberations.
Although the plaintiff claims that the court improperly
deprived counsel of the opportunity to review the mate-
rials prior to deliberations on the second day, she offers
no legal authority for that proposition. See Matthiessen
v. Vanech, 266 Conn. 822, 844–47, 836 A.2d 394 (2003)
(no harm where court improperly permitted jury to
begin deliberations before counsel reviewed exhibits).
Finally, unlike the plaintiff in Kortner v. Martise, 312
Conn. 1, 91 A.3d 412 (2014), on which she relies, the
plaintiff here has provided no showing of harm as a
result of the alleged impropriety. See id., 45–46 (release
to jury of exhibit not in evidence was harmful where
it directly related to central issue in case).
Finally, the plaintiff claims that the court improperly
discharged the jury before the parties had an opportu-
nity to request a polling of the jury under Practice Book
§ 16-32. That rule, however, does not require the court
to inquire, sua sponte, whether the parties want to have
the jury polled. The plaintiff reads Wiseman v. Arm-
strong, 295 Conn. 94, 989 A.2d 1027 (2010), to hold that
the court must do so. Our reading of Wiseman differs
markedly. See id., 104 (‘‘the plain language of § 16-32
imposes a mandatory obligation on the trial court to
poll the jury when requested’’ [emphasis added]). Here,
there was no request, prior to the discharge of the jury,
that the jury be polled.25
Accordingly, we conclude that the trial court did not
abuse its discretion in refusing to set aside the verdict
due to procedural irregularities.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that the plaintiff failed to include the operative complaint in
part I of her appendix. See Practice Book § 67-8.
2
Specifically, the court stated: ‘‘The court does not sit as the seventh
juror and must find [in] order to set aside a verdict that the verdict was the
result of prejudice, partiality, corruption or mistake, none of which were
present here. The jury deliberated, discharged its duties and responsibilities
conscientiously and was discharged—was discharged before defense coun-
sel made the request for a poll of the jury, and having been discharged, did
not feel that resummoning them to the courtroom would be appropriate at
that time for a—a poll of the—the jury. And that was particularly true given
the claims that were being advanced regarding the alleged improprieties
and the taking of the—the verdict, and that was appropriately minimized,
I think.
‘‘So the—the motion for—to set aside the verdict is denied. The motion
for additur is denied. The question is not whether the court would or would
not have awarded noneconomic damages, but whether construing all facts
most favorably to affirming a verdict the jury could award, no damages of
a noneconomic nature, which they did in this case. So the motion is denied
in its entirety.’’
3
Practice Book §16-18 provides: ‘‘The judicial authority may submit to
the jury written interrogatories for the purpose of explaining or limiting a
general verdict, which shall be answered and delivered to the clerk as a
part of the verdict. The clerk will take the verdict and then the answers to
the several interrogatories, and thereafter the clerk will take the judicial
authority’s acceptance of the verdict returned and the questions as answered,
and proceed according to the usual practice. The judicial authority will not
accept a verdict until the interrogatories which are essential to the verdict
have been answered.’’
4
General Statutes § 14-218a provides in relevant part: ‘‘(a) No person shall
operate a motor vehicle upon any public highway . . . or road . . . or on
any parking area . . . or upon a private road on which a speed limit has
been established . . . at a rate of speed greater than is reasonable, having
regard to the width, traffic and use of highway, road or parking area, the
intersection of streets and weather conditions. . . . Any speed in excess
of such limits, other than speeding . . . shall be prima facie evidence that
such speed is not reasonable . . . .’’
5
General Statutes § 14-222 provides in relevant part: ‘‘(a) No person shall
operate any motor vehicle upon any public highway . . . or any road . . .
or in any parking area for ten cars or more or upon any private road on
which a speed limit has been established in accordance . . . or upon any
school property recklessly, having regard to the width, traffic and use of
such highway, road, school property or parking area, the intersection of
streets and the weather conditions. The operation of a motor vehicle upon
any such highway, road or parking area . . . at such a rate of speed as to
endanger the life of any person other than the operator of such motor vehicle
. . . shall constitute a violation of the provisions of this section.’’
6
General Statutes § 14-295 provides in relevant part: ‘‘In any civil action
to recover damages resulting from personal injury, wrongful death or damage
to property, the trier of fact may award double or treble damages if the
injured party has specifically pleaded that another party has . . . with reck-
less disregard operated a motor vehicle in violation of section 14-218a, . . .
14-222 . . . and that such violation was a substantial factor in causing such
injury . . . .’’
7
The other interrogatories read: ‘‘1. Do you find that [the defendant]
violated either or both of the following statutes? . . . [General Statutes §]
14-218a . . . [General Statutes §] 14-222 . . . 2. Do you find that [the defen-
dant] violated either or both statutes ‘with reckless disregard.’? . . . 4. Do
you find that the Plaintiff should receive Double Damages, Treble Damages,
or Neither?’’ The jury also completed verdict forms that inquired as to (1)
the plaintiff’s comparative negligence and (2) specific economic damages.
8
Both the verdict form and the court’s instructions define noneconomic
damages as ‘‘physical pain and suffering, mental and emotional pain and
suffering, permanent injury, disability or impairment, and the inability to
enjoy and to fully participate in the daily activities of life.’’ The plaintiff
argues that ‘‘injuries’’ means one or more of these things.
We note that, in some similar cases, this issue has been presented to the
jury in an additional interrogatory. See, e.g., Sigular v. Gilson, supra, 141
Conn. App. 585–86 (‘‘The first question asked whether the negligence of the
decedent proximately caused the plaintiff’s injuries . . . . Question two
then asked whether the plaintiff suffered damages as a result of the dece-
dent’s negligence . . . . Question three asked the jury to determine the
amount of damages suffered by the plaintiff, by specifically listing the rele-
vant economic and noneconomic damages.’’ [Emphasis added.]).
Additionally, the plaintiff’s interpretation of the interrogatory at issue
begs the question of which of the underlying injuries, if any, the jury found
proven. In Esaw v. Friedman, 217 Conn. 553, 567, 586 A.2d 1164 (1991),
the plaintiff challenged as inadequate a verdict in her favor and relied on
an interrogatory remarkably similar to the interrogatory here for support:
‘‘Did the plaintiff prove that one or more of the proven specifications of
negligence was a proximate cause of (that is, a substantial factor in causing)
her injuries?’’ The jury in that case also answered in the affirmative, but
did not compensate the plaintiff to her satisfaction. The court in that case
noted that ‘‘the jury did not specifically find what claimed injuries were
proven to have been caused by the defendant’s negligence. This response
of the jury is not inconsistent with a finding that only some of the injuries
that the plaintiff claimed were in fact caused by the . . . accident. In short,
we cannot conclude on this record that the verdict was so inadequate that
it shocks the sense of justice and compels the conclusion that it was the
product of partiality, prejudice, mistake or corruption.’’ Id.9
We also note that, despite the plaintiff’s reliance on the diction of the
interrogatory form, the court repeatedly spoke of noneconomic damages
more broadly, referring to ‘‘injuries and damages,’’ ‘‘injuries and losses,’’
and ‘‘nonmoney losses’’.
10
See, e.g., DeEsso v. Litzie, supra, 172 Conn. App. 808–809 (distinguishing
facts from cases where jury awarded all or ‘‘virtually all’’ claimed eco-
nomic damages).
11
But see Benedetto v. Zaku, 112 Conn. App. 467, 472, 963 A.2d 94 (2009)
(‘‘[i]t is not reasonable for a jury to find a defendant liable for the expense
of a spinal fusion surgery, but not liable for the pain and permanent disability
necessarily attendant to such intrusive surgery’’); Lombardi v. Cobb, 99
Conn. App. 705, 709, 915 A2d 911 (2007) (‘‘[b]ecause the plaintiff’s medical
expenses and lost wages related to her treatment [and medication] for back
and shoulder pain, the jury necessarily found that she had experienced pain,
and it therefore should have awarded her noneconomic damages’’); Fileccia
v. Nationwide Property & Casualty Ins. Co., 92 Conn. App. 481, 489, 886
A.2d 461 (2005) (‘‘We conclude that under the circumstances, the jury’s
award of economic damages and no noneconomic damages is internally
inconsistent and ought to have been set aside. In finding that the plaintiff,
by virtue of the accident, had suffered . . . [a pinched nerve, a herniated
disc, and other trauma] requiring [physical therapy] treatments and medica-
tion, the purpose of which was to alleviate pain and to improve functioning,
the jury necessarily found that he had experienced pain and decreased
functioning.’’), cert. denied, 277 Conn. 907, 894 A.2d 987 (2006); Elliot v.
Larson, 81 Conn. App. 468, 477, 840 A.2d 59 (2004) (court did not abuse its
discretion in concluding that plaintiff ‘‘must have suffered pain accompa-
nying his injury’’ where jury awarded all economic damages including lost
wages [internal quotation marks omitted]); see also Schroeder v. Triangu-
lum Assocs., supra, 259 Conn. 333 (‘‘[t]he jury reasonably could not have
initially found the defendant liable for the expense of the surgery but not
responsible for any pain or disability attendant to such surgery’’). The facts
of these cases, i.e., involving surgery, lost wages, an objective diagnosis,
etc. make them arguably distinguishable from the present case, where the
injuries claimed are based on subjective complaints and there is no claim
for lost wages, and other cases where this court has upheld the jury award
of no noneconomic damages.
12
The defendant’s counsel did not disagree with the propriety of the
plaintiff’s initial diagnostic consultations, even going so far as to credit the
assessment of the parties’ expert that the plaintiff’s treatment was ‘‘appro-
priate.’’
13
With respect to awarding economic damages, the court instructed the
jury as follows: ‘‘To the extent that these charges are reasonable, and were
necessary and were proximately caused by the accident . . . you may
compensate her for these charges. There is a presumption that the medical
bills are reasonable if no contrary evidence has been offered to rebut the
reasonableness of the bills and costs.’’ (Emphasis added.)
14
The parties’ expert characterized her complaints as ‘‘subjective.’’
15
The facts of Melendez are somewhat analogous and bear reciting here.
In that case, at the scene of the automobile accident, the plaintiff complained
of ‘‘left side lower back pain 8 out of 10’’ and was transported by ambulance
to Saint Mary’s Hospital in Waterbury. There, the emergency department
physician found nothing remarkable and the plaintiff refused pain medica-
tion. She testified, however, that shortly after she was discharged, she
vomited twice and developed headaches and wrist pains. Melendez v. Deleo,
159 Conn. App. 419–20.
Accordingly, she visited the emergency room at Waterbury Hospital. (She
testified that she did not return to Saint Mary’s Hospital because ‘‘she did
not feel like [the personnel at Saint Mary’s Hospital] even bothered to really
check me when I was there the first time.’’) At Waterbury Hospital, the
plaintiff complained of left hip pain, left wrist pain, left shoulder pain, left
leg pain and a headache. She received X-rays and CT scans, all of which
returned normal. She was prescribed medication for nausea and was dis-
charged. Id., 420.
Five days later, she went to her primary care provider complaining of,
inter alia, pain in her hip, back, neck and shoulder. Her physician noted no
signs of problems but advised the plaintiff to return if her pain did not
improve. Id.
Six days after that, the plaintiff instead began chiropractic treatment for
the pain in her back, hip, and leg. Her chiropractor concluded that she
suffered a 6 percent permanent impairment of her lumbar spine and recom-
mended treatment to include cervical manipulation, electrical muscle stimu-
lation and cold packs. At trial, the plaintiff testified that, although her
conditions had not improved, she had not sought further help from any
medical professional after she concluded her chiropractic treatment. Id.,
421–22.
The jury awarded the plaintiff all of her claimed medical bills, lost wages
and automobile property damages, but no noneconomic damages. This court
affirmed the trial court’s denial of the plaintiff’s motion to set aside the
verdict and for additur, concluding that the jury was not required to believe
the plaintiff or her expert. Id., 416–17.
In the present case, the plaintiff did not complain of pain at the scene of
the accident, was not transported to the hospital in an ambulance, did not
visit an emergency department, failed to follow up on her treatment, had
normal or otherwise explainable test results and testified that her condition
had improved.
16
Practice Book § 16-31 provides: ‘‘Subject to the provisions of Section
16-17, the judicial authority shall, if the verdict is in order and is technically
correct, accept it without comment.’’
Practice Book § 16-17 provides: ‘‘The judicial authority may, if it deter-
mines that the jury has mistaken the evidence in the cause and has brought
in a verdict contrary to it, or has brought in a verdict contrary to the direction
of the judicial authority in a matter of law, return the jury to a second
consideration, and for like reason may return it to a third consideration,
and no more. (See General Statutes § 52-223 and annotations.)’’
General Statutes § 52-223 provides: ‘‘The court may, if it judges the jury
has mistaken the evidence in the action and has brought in a verdict contrary
to the evidence, or has brought in a verdict contrary to the direction of the
court in a matter of law, return them to a second consideration, and for
the same reason may return them to a third consideration. The jury shall
not be returned for further consideration after a third consideration.’’
17
Practice Book § 16-28 provides: ‘‘If the jury, after retiring for delibera-
tions, requests additional instructions, the judicial authority, after providing
notice to the parties and an opportunity for suggestions by counsel, shall
recall the jury to the courtroom and give additional instructions necessary
to respond properly to the request or to direct the jury’s attention to a
portion of the original instructions.’’
18
Practice Book § 16-32 provides: ‘‘Subject to the provisions of Section
16-17, after a verdict has been returned and before the jury has been dis-
charged, the jury shall be polled at the request of any party or upon the
judicial authority’s own motion. The poll shall be conducted by the clerk
of the court by asking each juror individually whether the verdict announced
is such juror’s verdict. If upon the poll there is not unanimous concurrence,
the jury may be directed to retire for further deliberations or it may be dis-
charged.’’
19
‘‘The Court: . . . [W]e’ll stay on the record. We’ll get all the exhibits
ready and counsel can look at them to see if they’re in the form to be given
to them.
***
‘‘Here are the original interrogatories. And let’s separate the ID and the
regular exhibits and just take a look at them for a second. . . . Just take
a look at them, make sure they’re all in proper form, don’t need redaction.
Send them in as soon as the jury comes back at two o’clock.’’
20
‘‘The Court: Let’s ask them to come in with the question, I’ll answer the
question and then we’ll recess until tomorrow morning because we’re going
to have to suspend at this point.’’
21
‘‘[The Plaintiff’s Counsel]: May I—may I put it on the record, Your Honor?
‘‘The Court: Yes, you may put on the record. I—I told everyone today
that I had because of a personal matter, I had to recess at four o’clock
today. That’s what I am doing. We had—the jury has done that. I don’t want
to rush through anything, and I’ll have them come back tomorrow. We have
the verdict form, the question to—from the jury marked, it’s a written
communication. The clerk will take the materials into custody and they’ll
get them again at 9:30 tomorrow morning when they resume.
‘‘[The Plaintiff’s Counsel]: And if, Your Honor, if I may just make a record.
My request was gonna be if the court could in its consideration find
another Judge—
‘‘The Court: No.
‘‘[The Plaintiff’s Counsel]: —you may—
‘‘The Court: Summon the jury. Told you that this morning.’’
22
‘‘[The Plaintiff’s Counsel]: Your Honor, before we summon the jury—
‘‘The Court: Certainly just a moment.
‘‘[The Plaintiff’s Counsel]: May—may I go on the record?
‘‘The Court: Certainly.
‘‘[The Plaintiff’s Counsel]: Your Honor, the document the court exhibit
states that this jury has a verdict.
‘‘The Court: Right.
‘‘[The Plaintiff’s Counsel]: And under Practice Book § 16-31 it is the duty
of this court to accept that verdict and examine that verdict, and if that
verdict is in error under [Practice Book §] 16-17, then you can send the jury
back. You cannot under [§] 16-31 proceed as you—
‘‘The Court: We have—
‘‘[The Plaintiff’s Counsel]: —are indicating—
‘‘The Court: We have a note from the jury that says, we have come to a
verdict and are pretty sure we haven’t filled a form plaintiff and verdict and
interrogatories as to count two correctly. Well, I’m—I am going to reinstruct
them. I don’t know that it says they have completed the form but I am going
to reconstruct them—reinstruct them, rather, on the completion of the
forms. After they have completed the forms, I am going to, as I indicated
earlier, give them additional verdict forms and indicate that if they have
completed any portion of the form, they can either complete the entire form
or they can use another form if that is appropriate, and they will bring back
all of the forms. Following the receipt of the verdict, and again I don’t
know if they’ve completed anything. I don’t know if they’ve done anything.
Following the completion of the verdict, those forms which are not used
will be marked as court’s exhibits and any motions can be direct to those
forms. Summon the jury.
23
‘‘The Court: Counsel wish to be heard?
‘‘[The Plaintiff’s Counsel]: Nothing, Your Honor.
‘‘[The Defendant’s Counsel]: Your Honor, I would just request, given every-
thing that we’ve gone through, that we poll the jury.
‘‘The Court: Well, I think that should have been done before I released
them to the – to the jury room. The verdict was accepted and recorded. I
can’t poll them subsequent to accepting a particular jury, I don’t believe.
‘‘[The Defendant’s Counsel]: Pursuant to [Practice Book] § 16-32, poll after
the jury verdict subject to the provisions of [Practice Book] § 16-17 after
verdict has been returned and before the jury has been discharged, the
jury—the jury shall be—
‘‘The Court: I—
‘‘[The Defendant’s Counsel]: —polled—
‘‘The Court: —think I just—
‘‘[The Defendant’s Counsel]: Shall be polled.
‘‘The Court: I just told them I wanted to talk to them and that they were
being discharged with the thanks of the court, so I don’t think I can poll
them at this particular point. I think that—that’s premature. That issue
should have been raised while the jury was still in the courtroom. They
have since retired to the jury room having been excused and certainly they
could have been talking about this as I told them they could. So I think a
poll at this point would be inappropriate. [The plaintiff’s counsel]?
‘‘[The Plaintiff’s Counsel]: Your Honor, I take no position.
‘‘The Court: All right, all right. Then we will—we will stand in—in recess.’’
24
Indeed, the original verdict forms indicate a less favorable verdict for
the plaintiff, in that they assign her a higher proportion of liability than the
final verdict.
25
The Wiseman court also held that the error in refusing to poll the jury
when requested prior to discharge must be harmful to warrant reversal.
Wiseman v. Armstrong, supra, 295 Conn. 115–21.