Cusano v. Lajoie

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CHRISTOPHER CUSANO v. EDWARD
LAJOIE ET AL.
(AC 39279)
Sheldon, Prescott and Bear, Js.
Syllabus
The plaintiff sought to recover damages from the defendants for personal
injuries he allegedly sustained when an automobile driven by the named
defendant rear-ended his automobile. After the jury returned a verdict
awarding $3000 in economic damages and zero noneconomic damages,
the trial court declined to accept the verdict and ordered the jury to
review its verdict. After reconsidering the verdict, the jury again returned
a verdict awarding no noneconomic damages. The trial court, thereafter,
granted the plaintiff’s motion for additur and ordered an additur of
$2000. From the judgment rendered thereon, the defendants appealed
to this court. Held that the trial court abused its discretion in ordering
the additur and concluding that the jury’s award of medical expenses
required it to find that the plaintiff had suffered compensable pain
throughout the period of his medical treatment; that court did not iden-
tify any part of the trial record that supported its reasoning, nor did it
provide any explanation for the amount of the additur, and the jury
reasonably could have determined that the plaintiff had not proven any
noneconomic damages for pain and suffering, or damages for lost wages,
given the inconsistent and conflicting evidence, the questions of credibil-
ity concerning the extent, if any, of the plaintiff’s pain and suffering,
and the plaintiff’s subjective complaints of pain stemming from alleged
soft tissue injuries rather than from injuries such as broken bones.
Argued October 5—officially released December 12, 2017
Procedural History
Action to recover damages for personal injuries sus-
tained by the plaintiff as a result of the defendants’
negligence, brought to the Superior Court in the judicial
district of New Britain and tried to the jury before
Swienton, J.; verdict for the plaintiff; thereafter, the
court granted the plaintiff’s motion for additur, and the
defendants appealed to this court. Reversed; judg-
ment directed.
Karen L. Dowd, with whom, on the brief, was Bren-
don P. Levesque, for the appellants (defendants).
Scott A. Leventhal, for the appellee (plaintiff).
Opinion
BEAR, J. The defendants, Edward Lajoie and Kath-
leen Weaver,1 appeal from the judgment of the trial
court granting the motion of the plaintiff, Christopher
Cusano, for additur in the amount of $2000. On appeal,
the defendants argue that the trial court abused its
discretion in granting the motion for additur. We agree
and, accordingly, reverse the judgment of the trial court.
The plaintiff filed this action following a minor car
accident that occurred on July 4, 2014, in which Weav-
er’s vehicle, while being driven by Lajoie, rear-ended
the plaintiff’s vehicle. The collision caused the plaintiff’s
vehicle to sustain damage requiring approximately $678
in repair costs.
Following the collision, the plaintiff did not immedi-
ately feel injured, so he drove away and spent several
hours at a picnic. When the plaintiff woke up the next
day, however, he allegedly felt pain in his neck and
upper back, which caused him to leave work approxi-
mately ninety minutes after he arrived. Five days later,
the plaintiff saw a chiropractor, Awilda Figueroa, to
whom he reported that he was experiencing pain that
was ‘‘like a nine’’ on a scale of one to ten. Figueroa
saw the plaintiff nineteen times over the ensuing three
months for the alleged injuries to his neck and upper
back. Over the course of his treatment, the level of pain
the plaintiff reported to Figueroa decreased. After the
plaintiff’s final visit in January, 2015, Figueroa stated
in her final report that ‘‘[t]he patient reports that all
injuries and underlining pain have resolved with refer-
ence to the accident he suffered.’’
Following the accident, the plaintiff’s employer, a
furniture liquidation company, placed him on light duty.
When the plaintiff attempted to resume his more labor-
intensive duties, he allegedly began to feel discomfort
in his neck and upper back. The plaintiff also worked
part time for an executive protection firm, performing
five or six jobs per year, ranging from what he described
as high risk to low risk assignments. After the accident,
the plaintiff allegedly did not accept any high risk
assignments; however, he occasionally accepted low
risk assignments.
On April 7, 2015, the plaintiff filed a two count com-
plaint alleging negligence against the defendants. The
defendants did not contest liability. After a jury trial in
April, 2016, the jury initially sought to return a verdict
awarding the plaintiff the full amount of his claimed
$3320 in medical expenses, but no damages for his
claimed lost wages of $750 or his claimed noneconomic
damages. After its review of the initial verdict, the court
declined to accept it and instructed the jury as follows:
‘‘While that is a possible verdict, some might argue that
it is inconsistent to say that a person was injured enough
to incur medical expenses and lost wages, but experi-
enced no pain and suffering or other noneconomic dam-
ages. On the other hand, you may have concluded that
while the plaintiff proved his economic damages, he
failed to prove any noneconomic damages. To help elim-
inate any concerns either party might have, I’m going
to ask you to go back and review your verdict. In addi-
tion to my instructions regarding the plaintiff’s burden
of proving damages, you should, also, remember my
instruction that even momentary pain and suffering
is compensable.’’
After reconsidering its verdict, the jury once again
sought to return a verdict awarding the plaintiff no
noneconomic damages. On April 13, 2016, after the sec-
ond verdict was accepted and recorded, the plaintiff
filed a motion for additur, or in the alternative, to have
the verdict set aside as ‘‘inconsistent and unreasonable
given the evidence presented in this case.’’ The court
determined that ‘‘under the particular circumstances of
this case, it is inconsistent to conclude that [the plain-
tiff] was injured to the extent that he incurred substan-
tial medical expenses and at no time during the course
of the treatment experienced pain and suffering. The
court is compelled to conclude that the jury did not
apply the law to the facts of the case, or were influenced
by partiality, prejudice or mistake.’’ The court accord-
ingly ordered an additur for noneconomic damages in
the amount of $2000. The plaintiff accepted the additur,
but the defendants rejected it. This appeal followed.
The standard of review for determining whether a
trial court properly ordered an additur is well settled.
‘‘[W]e review a decision of the trial court . . . ordering
an additur to determine whether the trial court properly
exercised its discretion.’’ Wichers v. Hatch, 252 Conn.
174, 181, 745 A.2d 789 (2000). ‘‘[T]he 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.’’ Id., 188–89.
‘‘It is axiomatic that [t]he amount of damages
awarded is a matter peculiarly within the province of
the jury . . . . Moreover, there is no obligation for the
jury to find that every injury causes pain, or the amount
of pain alleged. . . . Put another way, [i]t is the jury’s
right to accept some, none or all of the evidence pre-
sented. . . . It is the [jury’s] exclusive province to
weigh the conflicting evidence and to determine the
credibility of witnesses. . . . The [jury] can . . .
decide what—all, none, or some—of a witness’ testi-
mony to accept or reject.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Smith v.
Lefebre, 92 Conn. App. 417, 421–22, 885 A.2d 1232
(2005). ‘‘The only practical test to apply to a verdict is
whether the award of damages falls somewhere within
the necessarily uncertain limits of fair and reasonable
compensation in the particular case, or whether the
verdict so shocks the sense of justice as to compel the
conclusion that the jury [was] influenced by partiality,
mistake or corruption.’’ DeEsso v. Litzie, 172 Conn.
App. 787, 796, 163 A.3d 55, cert. denied, 326 Conn. 913,
A.3d (2017).
On appeal, the defendants argue that the court failed
to review the evidence in the light most favorable to
sustaining the verdict. Specifically, the defendants
argue that the court abused its discretion in ordering
the additur because there existed conflicting evidence
and questions of credibility, and the plaintiff’s com-
plaints were of a subjective nature, i.e., stemming from
so-called soft tissue injuries rather than from injuries
such as broken bones. We agree.
This court previously has explained that ‘‘[w]e read
Wichers as an instruction to a trial court specifically to
identify the facts of record that justify the extraordinary
relief of additur and as an instruction to an appellate
court to inquire whether the facts so identified justify
the trial court’s exercise of its discretion to set a jury
verdict aside because of its perceived inadequacy.’’
Turner v. Pascarelli, 88 Conn. App. 720, 723–24, 871
A.2d 1044 (2005). ‘‘Under Wichers, it is not enough to
base an additur on a conclusory statement that a jury
award was [inadequate] . . . . The question, therefore,
is whether the court elsewhere articulated a sufficient
factual basis for its decision to order an additur.’’ Id.,
724.
Our review of the trial court’s memorandum of deci-
sion in the present case reveals only a conclusory state-
ment regarding the jury’s award and no delineation of
a sufficient factual basis for its decision to order an
additur of $2000. Although the memorandum of deci-
sion details the facts that the parties established at trial,
it does not state the specific facts relied upon by the
court to justify its decision to award the extraordinary
relief of additur. Moreover, the memorandum of deci-
sion does not contain any description or explanation
of how or why the court calculated $2000 as the appro-
priate amount of noneconomic damages. Instead, the
court seems to assume that because the plaintiff sought
medical treatment for pain in his upper back and neck,
and was awarded the full amount of the cost of that
treatment, the plaintiff inevitably experienced compen-
sable pain and suffering. Our Supreme Court expressly
rejected that reasoning in Wichers v. Hatch, supra, 252
Conn. 188–89. We, therefore, conclude, as this court
did in Turner v. Pascarelli, supra, 88 Conn. App. 727,
‘‘that the court abused its discretion by ordering an
additur without identifying the part of the record that
supported its determination that an award of [zero]
noneconomic damages was unreasonable under the cir-
cumstances of this case.’’
Furthermore, the court abused its discretion in order-
ing the additur because there existed conflicting evi-
dence and credibility issues concerning the extent, if
any, of the plaintiff’s pain and suffering. A court must
view the evidence in the light most favorable to sus-
taining the jury’s verdict. ‘‘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. Upon issues regarding which, on the evi-
dence, there is room for reasonable difference of opin-
ion among fair-minded men, the conclusion of a jury,
if one at which honest men acting fairly and intelligently
might arrive reasonably, must stand . . . .’’ (Citation
omitted; internal quotation marks omitted.) Wichers v.
Hatch, supra, 252 Conn. 189. Thus, the court should
not assume that the jury made a mistake, but should
suppose ‘‘that the jury did exactly what it intended to
do.’’ Id.
This court’s decision in Smith v. Lefebre, supra, 92
Conn. App. 417, guides our discussion of this issue. In
Smith, the plaintiff and the defendant were in a minor
motor vehicle accident in which the defendant rear-
ended the plaintiff. Id., 418, 426. Credibility issues
existed in Smith, as the defendant established that the
plaintiff’s attorney referred her to a doctor, but the
plaintiff testified that she chose the doctor from a tele-
phone directory in the phonebook. Id., 424–25. Addition-
ally, there were conflicting statements about the nature
of the plaintiff’s injury—specifically whether the injury
was a bulging or herniated disk and whether surgery
was required. Id., 426. This court concluded that ‘‘[i]n
light of the evidence, it was reasonable for the jury to
award zero noneconomic damages.’’ Id.
Similarly here, the evidence presented regarding how
much time from work the plaintiff missed was inconsis-
tent. In an answer to one of the defendants’ interrogato-
ries, the plaintiff stated that he ‘‘was home for the first
[one to two] days after the accident.’’ Later, in answer-
ing another interrogatory, the plaintiff stated that he
missed one week of work. The interrogatory answers
were introduced at trial. The plaintiff testified at trial
that he missed one week of work. Thus, the evidence,
at times, was conflicting and inconsistent.
Moreover, on cross-examination, when the defen-
dants’ counsel asked the plaintiff about the pain he was
claiming, the plaintiff testified to the following: he did
not seek medical treatment until five days after the
accident; he never went to the emergency room; he did
not have an MRI or a CAT Scan; and he did not know
the results of his X ray, but it would not surprise him
if the results showed everything was normal. Cross-
examination also established that, despite the plaintiff’s
claim of ongoing pain in mid-2016 at the time of trial,
Figueroa last treated the plaintiff in September, 2014,
and gave the plaintiff a ‘‘final rating’’2 in January, 2015.
The plaintiff also testified that he had not sought treat-
ment for the injuries or pain related to the accident
after his last visit with Figueroa in January, 2015.
The jury also heard testimony about the plaintiff’s
current job, as a surveyor for an engineering company,
where he was working in the field about 80 percent of
the time. The plaintiff explained that the job had a
physical aspect because he hiked through marshes and
up and down trails. The plaintiff answered in the affir-
mative when the defendants’ counsel asked him
whether ‘‘there[’s] some beating that [his] body takes
[while] doing [his current job].’’ He also testified that he
never had to call out of work in his current employment
because of injuries or pain related to the accident.
In light of the two identical verdict forms that the
jury submitted to the court, it is reasonable to conclude
that the jury resolved the conflicting evidence by
rejecting the plaintiff’s lost wages claim and his noneco-
nomic damages claim for pain and suffering upon
determining that the plaintiff had failed to prove those
claims by a fair preponderance of the evidence. As set
forth in Wichers: ‘‘[I]f there is a reasonable basis in the
evidence for the jury’s verdict, unless there is a mistake
in law or some other valid basis for upsetting the result
other than a difference of opinion regarding the conclu-
sions to be drawn from the evidence, the trial court
should let the jury work their will.’’ (Internal quotation
marks omitted.) Wichers v. Hatch, supra, 252 Conn. 189.
After reviewing the evidence adduced at trial, we
conclude that the jury’s verdict was within the parame-
ters of fair and reasonable compensation. The jury rea-
sonably could have determined, as it apparently twice
did, that the plaintiff had not proven any noneconomic
damages for pain and suffering, or damages for lost
wages. The court, in its memorandum of decision, did
not set forth facts and reasons in explanation of how
and why it determined that an additur was appropriate,
how and why it calculated $2000 as the appropriate
amount of the additur, or why it concluded that ‘‘the jury
[was] influenced by partiality, mistake or corruption.’’
(Internal quotation marks omitted.) DeEsso v. Litzie,
supra, 172 Conn. App. 796. Accordingly, we conclude
that the trial court abused its discretion in ordering
an additur for noneconomic damages in the amount
of $2000.3
The judgment is reversed and the case is remanded
with direction to reinstate the jury’s verdict and to ren-
der judgment thereon.
In this opinion the other judges concurred.
1
Lajoie was Weaver’s employee, and was acting within the scope of his
employment while driving Weaver’s vehicle at the time of the automobile
accident at issue in this case. Collectively, we refer to Lajoie and Weaver
as ‘‘the defendants.’’ Individually, we refer to them by name.
2
The ‘‘final rating’’ was a report that Figueroa created detailing the plain-
tiff’s treatment and progress. The ‘‘final rating’’ noted that the plaintiff had
returned to preinjury status as of January, 2015.
3
The plaintiff claims that the existence or nonexistence of a preexisting
injury is the determining factor in whether an award of virtually all of the
plaintiff’s economic damages but no noneconomic damages is inconsistent
and unreasonable. Although the existence of a preexisting injury may be a
circumstance for the jury to consider when deciding whether to award
noneconomic damages, it is not the sole deciding factor. See Turner v.
Pascarelli, supra, 88 Conn. App. 726, 730 (jury could have found that plaintiff
contributed to his lack of recovery by failing to follow physical therapy,
and by engaging in activities that exacerbated his injuries; preexisting injury
was alternative factor); see also Fileccia v. Nationwide Property & Casualty
Ins. Co., 92 Conn. App. 481, 488, 886 A.2d 461 (2005) (absence of preexisting
injury as additional factor for consideration), cert. denied, 277 Conn. 907,
894 A.2d 987 (2006).
‘‘[O]ur Supreme Court has held that an award of virtually all of a plaintiff’s
claimed economic damages, with no accompanying noneconomic damages,
demonstrated an inconsistency in the verdict . . . although it allowed that
in a different case, such an award might be proper.’’ (Citation omitted;
internal quotation marks omitted.) Fileccia v. Nationwide Property & Casu-
alty Ins. Co., supra, 92 Conn. App. 487; see also Schroeder v. Triangulum
Associates, 259 Conn. 325, 334 n.5, 789 A.2d 459 (2002) (‘‘[o]ur conclusion
on the facts of this case does not foreclose the possibility, in accordance
with Wichers . . . that a jury in a case with different facts reasonably could
award the full amount of a plaintiff’s claimed economic damages but no
noneconomic damages’’).