Melendez v. Deleo

******************************************************
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 Connecti-
cut 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 Con-
necticut 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 repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
JAMIE MELENDEZ v. JOHN DELEO
(AC 36810)
DiPentima, C. J., and Lavine and Alvord, Js.
Argued April 14—officially released August 25, 2015
(Appeal from Superior Court, judicial district of
Waterbury, Zemetis, J.)
Amita Patel Rossetti, with whom was Jeffrey J. Tin-
ley, for the appellant (plaintiff).
Francis E. Genovese, for the appellee (defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, Jamie Melendez,
appeals from the judgment of the trial court, rendered
after a jury verdict against the defendant, John Deleo,
denying her motion for additur and/or to set aside the
verdict. On appeal, the plaintiff claims that the court
abused its discretion by denying her motion. We affirm
the judgment of the court.
The court set forth the following factual and proce-
dural 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, documen-
tary 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 con-
tested. 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 med-
ical 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, impair-
ment or the other elements and categories of noneco-
nomic damages described at length, without exception,
in the court’s charge.’’ (Footnotes omitted.)
Upon receipt of the verdict, but prior to its accep-
tance and recording, the court, pursuant to General
Statutes § 52-223,1 asked counsel whether he ‘‘sought
reconsideration of the verdict by the jury based on the
lack of an award of noneconomic damages. Counsel
asked [the court] not to return the jury for further con-
sideration.’’ (Emphasis in original; footnote omitted.)
Thereafter, the plaintiff filed a timely motion for addi-
tur 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 presump-
tion 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.
‘‘In passing on a motion to set aside a jury verdict,
a trial court, like a juror considering the evidence, must
draw upon its experience and knowledge of human
nature, events and motives and evaluate the verdict in
that context. . . . If the trial judge finds the verdict to
be so clearly against the weight of the evidence in the
case as to indicate that the jury did not correctly apply
the law to the facts in evidence in the case, or [was]
governed by ignorance, prejudice, corruption or partial-
ity, then it is his duty to set aside that verdict and to
grant a new trial. . . . The trial judge has a broad legal
discretion and his action will not be disturbed unless
there is a clear abuse.’’ (Citation omitted; internal quota-
tion marks omitted.) Fileccia v. Nationwide Property &
Casualty Ins. Co., 92 Conn. App. 481, 486, 886 A.2d 461
(2005), cert. denied, 277 Conn. 907, 894 A.2d 987 (2006).
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 deci-
sion 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.’’ (Cita-
tion omitted; internal quotation marks omitted.) Filec-
cia 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 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.’’ Wichers v. Hatch, supra, 252 Conn. 188–89.
Thus, pursuant to Wichers and its progeny, the plain-
tiff was not entitled to an award of noneconomic dam-
ages 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 Connecti-
cut, 218 Conn. 474, 476–77, 590 A.2d 431 (1991). Simply
stated, because the plaintiff claimed noneconomic dam-
ages as defined in General Statutes § 52-572h, she had
the burden of proof to show that she experienced pain
as the result of the accident.2 Having reviewed the
record before us, we conclude that the court did not
abuse its discretion in finding that the plaintiff had
failed to meet her burden of proof.
The following additional facts are relevant to our
resolution of the plaintiff’s claim. At trial, the plaintiff
testified that, as a result of the impact, her ‘‘body jerked
around,’’ and she hit her left hip. The responding ambu-
lance report notes that the plaintiff’s automobile
appeared to have been ‘‘struck on [the] driver’s side
[with] moderate damage, no intrusion, all glass intact,
no airbag deployment [and the plaintiff] restrained.’’
The report further notes that the plaintiff denied losing
consciousness, denied hitting her head or experiencing
dizziness, and denied experiencing head, neck, chest,
abdominal or extremity pain. Furthermore, the report
notes that there were ‘‘no obvious injuries, deformities,
or bleeding noted.’’ The report does state, however, that
the plaintiff complained of ‘‘left side lower back pain
8 out of 10.’’ Following the arrival of the ambulance,
the plaintiff was placed on a stretcher and taken to St.
Mary’s Hospital.
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] unre-
markable. . . . The [plaintiff] appeared well and did
not appear to have any acute injury that warranted
intervention at [that] time. She declined pain medi-
cine.’’ (Emphasis added.) The record further notes that
the plaintiff was discharged after she had been ‘‘coun-
seled 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 Hospi-
tal] 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 Cen-
ter (center), her primary care provider, complaining of
pain in her hip, lower back, neck, and shoulder, as well
as difficulty sleeping.4 In addition, the plaintiff com-
plained that her shoulder and hip were popping. The
center’s report notes, however, that the plaintiff was
‘‘able to walk without weakness or numbness.’’ In addi-
tion, the physical examination revealed that she had a
full range of motion in her back, left shoulder, and left
hip with ‘‘no crepitus noted.’’5 At the conclusion of her
visit, the plaintiff was instructed ‘‘to return earlier than
the next regularly scheduled appointment if not
improving.’’
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 com-
plaints,’’ 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 con-
sisting 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 condi-
tions had not improved. On cross-examination, how-
ever, 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 court found: ‘‘[t]he plaintiff’s testi-
mony concerning current, chronic and disabling com-
plaints of pain in the head, neck, back, hips and legs
. . . [which she] claimed to have . . . sustained in the
subject collision, but [the] lack of any follow-up medical
treatment since fall of 2012 for these claimed disabling
complaints . . . contrasted with the increased number
of hours worked as a home health aide following the
collision, and the apparent inconsistency of complaints
in the medical reports were available for the jury’s con-
sideration.’’ Furthermore, we note that these inconsis-
tencies vigorously were disputed by the parties at trial,
and, thus, it was up to the jury to resolve them. See
State v. Fleming, 111 Conn. App. 337, 345, 958 A.2d
1271 (2008) (‘‘[i]t is axiomatic that evidentiary inconsis-
tencies are for the jury to resolve’’ [internal quotation
marks omitted]), cert. denied, 290 Conn. 903, 962 A.2d
794 (2009); Hughes v. Lamay, 89 Conn. App. 378, 384,
873 A.2d 1055, (‘‘[t]he existence of conflicting evidence
. . . curtails the authority of the court to overturn the
verdict because the jury is entrusted with deciding
which evidence is more credible and what effect it is
to be given’’ [internal quotation marks omitted]), cert.
denied, 275 Conn. 922, 883 A.2d 1244 (2005).
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 objec-
tive 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. Accord-
ingly, 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.
1
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.’’
In his brief, the defendant argues that by declining the court’s offer to
send the jury back for reconsideration the plaintiff failed properly to preserve
her claim. The plaintiff, however, in bringing this appeal, did not file the
entire trial transcript, but only the excerpt containing her own testimony.
The defendant filed no additional transcripts pursuant to Practice Book
§ 63-8. Thus, that portion of the trial transcript pertaining to the defendant’s
claim of lack of preservation is not before us. Accordingly, the record is
inadequate for a review of this claim.
2
General Statutes § 52-572h defines noneconomic damages claimed in
negligence actions as ‘‘compensation determined by the trier of fact for all
nonpecuniary losses including, but not limited to, physical pain and suffering
and mental and emotional suffering . . . .’’
3
At trial, the plaintiff testified that, following her discharge, she did not
have any further episodes of nausea or vomiting. The plaintiff further testi-
fied, however, that, approximately a week after the accident, she developed
blurry vision in her left eye. When asked to describe the degree of blurriness,
the plaintiff testified that the eye would get blurry ‘‘[a] little bit. It wasn’t
really bad.’’
4
The center’s report does not mention the plaintiff’s headaches. When
asked at trial to explain why she had not informed her primary care provider
about them during her visit, the plaintiff testified that she ‘‘would have a
headache once in a while, but it wasn’t all the time, every single day, you
know, to say, yeah, for the first two, three weeks, month, every day I had
this headache. I probably went to the doctor and that wasn’t bothering me
at the time if it’s not in the report.’’
5
Crepitation is defined as ‘‘[n]oise or vibration produced by rubbing bone
or irregular degenerated cartilage surfaces together . . . .’’ Stedman’s Medi-
cal Dictionary (28th Ed. 2006) p. 457.
6
Costanzo also directed the plaintiff to undergo additional imaging of her
lumbar area. The corresponding radiological report notes that the examined
area showed ‘‘no obvious evidence of recent fracture,’’ and that the ‘‘visual-
ized soft tissues [were] unremarkable.’’
7
In her brief, the plaintiff cites to several cases, arguing that they support
her claim on appeal. Having reviewed these cases, we conclude that they are
distinguishable and, therefore, inapposite to the case at hand. In Schroeder v.
Triangulum Associates, 259 Conn. 325, 333, 789 A.2d 459 (2002), our
Supreme Court held that, because the plaintiff ‘‘underwent invasive spinal
surgery,’’ the jury reasonably could not have found that the defendant was
liable for the cost of the surgery but not the pain associated with it.
In Fileccia v. Nationwide Property & Casualty Ins. Co., supra, 92 Conn.
App. 490 n.6, the plaintiff presented a CT scan of his lower back that
objectively showed a ‘‘ruptured or herniated L4-L5 disc’’ as the result of
the accident.
Similarly in Snell v. Beamon, 82 Conn. App. 141, 842 A.2d 1167 (2004),
this court upheld a grant of an additur because ‘‘the court concluded that
the plaintiff had presented sufficient testimony that as a result of the acci-
dent, she suffered significant physical pain, emotional distress and mental
anguish’’; id., 144; and that conclusion was ‘‘within the court’s discretion to
evaluate the evidence presented as to the plaintiff’s mental and physical
anguish . . . .’’ Id., 147.
As to our decisions to uphold the grant of an additur in Lombardi v.
Cobb, 99 Conn. App. 705, 709–10, 915 A.2d 911 (2007), and Elliott v. Larson,
81 Conn. App. 468, 477, 840 A.2d 59 (2004), the decisions do not provide
sufficient factual details for us to determine whether these cases support
or undermine the plaintiff’s claim.