Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport
Luis A. Encalada
Quest Diagnostics, LLC
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE THE VERDICT AND MOTION FOR ADDITUR
William B. Rush, Judge Trial Referee.
The plaintiff instituted the present seeking to recover monetary damages for personal injuries claimed to have been sustained while having blood drawn by a phlebotomist at the offices of the defendant. The plaintiff claims that he experienced sharp electrical type pain upon the insertion of the needle and since that time he has endured severe debilitating pain which has significantly affected his life. At the trial, the defendant contested the issues of liability, causation and the severity of the injuries.
Initially, the jury submitted a verdict in favor of the plaintiff containing an award of $131, 428.75 comprised of $11, 178.65 for past medical expenses; $120, 250.00 for future medical expenses and zero non-economic damages. The Court did not accept the verdict and, under appropriate instructions, to which no objection was taken, the Court returned the jury for further deliberations. The verdict was therefore not valid. See Van Nesse v. Tomaszewski, 265 Conn. 627, 829 A.2d 836 (2003); Towhill v. Kane, 147 Conn. 191, 194, 158 A.2d 251 (1960); Gurland v. D'Adamo, 41 Conn.Supp. 407, 408-09, 579 A.2d 144 (1990). The jury then returned a plaintiff's verdict, which was accepted by the Court, in the amount of $140, 000 comprised of $11, 180 in past medical expenses (representing approximately one-half of the amount claimed); $100, 000 in future medical expenses (out of the almost $800, 000 claimed) and $28, 820 in noneconomic damages. The plaintiff has now filed a Motion to Set Aside that verdict and a Motion for an Additur. Briefly, it is the plaintiff's claim that the devastating physical and emotional impact upon the plaintiff of the nerve injury, as set forth by the evidence, justifies the Court to set the verdict aside, order an additur or, at least, order a new trial limited to damages only. According to the plaintiff, the inadequacy of the award of noneconomic damages is apparent when it is compared to the award of past and future economic damages and the impact of the injury upon the plaintiff.
" A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence. A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." (Internal quotation marks omitted.) Marchell v. Whelchel, 66 Conn.App. 574, 582, 785 A.2d 253 (2001). " A verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury. The evidence offered at trial must be given the most favorable construction to which it is reasonably entitled to support the verdict. Only under the most compelling circumstances may the court set aside the jury verdict because to do so interferes with a litigant's constitutional right in appropriate cases to have the issues of facts decided by a jury. The amount of damages to be awarded is a matter particularly within the scope of the jury." Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 541-41, 792 A.2d 132 (2002). " A jury is not obligated to believe that every injury causes pain or the pain alleged . . . The trier (of fact) is free to accept or to reject, in whole or in part, the evidence offered by either party. The weight to be accorded to the testimony is a matter for the jury to determine." (Citations and internal quotations marks omitted.) Lidman v. Nugent, 59 Conn.App. 43, 46, 755 A.2d 378 (2000). More recently, the Appellate Court, relying upon Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000), noted that the issue should be decided on a case-by-case basis, " 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." (quoting from Wichers, supra, at 189) 159 Conn.App. 414, 418 (2015).
The evidence submitted on behalf of the plaintiff was intended to establish that the plaintiff sustained severe, chronic and permanent physical and mental pain and suffering which significantly impacted his life and caused him to incur over $22, 000 in past medical bills and anticipated future health care expenses of nearly $800, 000. While the plaintiff lost only a few days from work, his job performance was made much more difficult because of the severe pain. The plaintiff also claimed to suffer from anxiety, and depression with suicidal thoughts. Had the jury accepted the entire testimony on behalf of the plaintiff, a much larger award might have been anticipated. However, the defendant did contest the issues of liability, injuries and damages and the jury was not required to accept the plaintiff's version of events as opposed to the position advocated by the defendant.
One of the plaintiff's expert witnesses testified that the plaintiff suffered from Complex/Regional Pain Syndrome (CRPS) Type 1 which is not dependant upon a distinct nerve injury; another testified that the injury was Type 2 which is dependant upon a distinct nerve injury. A third expert on behalf of the plaintiff testified that the other two experts were wrong because the plaintiff's condition did not satisfy the criteria for either Type 1 or Type 2. The expert on behalf of the defendant testified that he found no objective evidence of any neurological injury and that the cause of the problems was in the psychiatric area.
It is apparent, from the verdict itself, that the jury found that the plaintiff sustained some injury as a result of the breach of the applicable standard of care on the part of the phlebotomist employed by the defendant. The determination by the jury as to the nature and extent of those injuries is known only to the jury. However, the jury was entitled to evaluate the testimony of the plaintiff's pain management specialist, to wit:
A But my understanding of things is things have been going relatively well, and that was my understanding of why he didn't come very often.
Q Okay. Would you want to see him once a year?
A Well, if he's doing well, and stable and--and has achieved his principal goal of--of activities of daily living and work, there's really no need. My job is to get people back to work when they can't. He's back to work.
Q He's never left work, right?
A As far as I know that's correct.
Such evidence, together with other evidence produced by the defendant, was a sufficient basis for the jury to conclude that the injuries claimed by the plaintiff were not as severe as advocated or that the conduct of the phlebotomist was not the legal cause of the claimed injuries or the consequences of the injuries.
The plaintiff emphasizes that the photographs of the plaintiff clearly display atrophy of the arm resulting from nonuse. Assuming that the jury reached the same conclusion, the jury was not required to find that the nonuse was a proximate cause of the breach of the standard of care by the phlebotomist, but rather, the jury was free to conclude that the nonuse ...