Schettino v. Labarba

• Decision Date: 13 April 2004
• Docket Number: (AC 24037)
• Citation: 844 A.2d 923,82 Conn. App. 445
• Court: Connecticut Court of Appeals
• Parties: DANTE L. SCHETTINO ET AL. v. ANTHONY LABARBA

82 Conn. App. 445

844 A.2d 923

DANTE L. SCHETTINO ET AL. v. ANTHONY LABARBA

(AC 24037)

Court of Appeals of Connecticut.

Argued January 15, 2004.

Officially released April 13, 2004.

Lavery, C. J., and Bishop and DiPentima, JS. James P. Mooney, for the appellant (substitute defendant).

Opinion

DiPENTIMA, J.

In this personal injury action, the substitute defendant, Michael Marovich,¹ appeals from the judgment of the trial court setting aside the jury's verdict and ordering a new trial on the issue of damages, rendered following the defendant's refusal to accept the court-ordered additur. On appeal,² the defendant claims that the court improperly granted the additur when there was no indication that the verdict was against the weight of the evidence or was otherwise based on prejudice. We agree with the defendant and, therefore, reverse the judgment and remand the case to the trial court with direction to reinstate the jury award.

The plaintiff Cecilia Schettino³ brought this action seeking damages for personal injuries allegedly sustained when a vehicle operated by Anthony Labarba struck the vehicle in which she was a passenger. Liability as to the accident was uncontested at trial. Damages were contested. The plaintiff claims that she suffered soft tissue injuries and disc herniation. She submitted evidence of special damages for medical treatment in the amount of $6631. The $6631 consisted of bills for medical treatment, including initial treatment at a walkin clinic, treatment with Eric Katz, a physician, treatment with a physical therapy group and chiropractic treatment.

At trial, the plaintiff was cross-examined vigorously on her prior medical history. She claimed to have forgotten receiving treatment from another physician less than one year before the November 18, 1995 accident. The records of that prior treatment were admitted into evidence. Both sides presented testimony from medical experts regarding the source of the plaintiffs degenerative changes in her spine and spinal herniation. The defendant's expert, Lewis Bader, a physician, testified that in his opinion, the herniation developed well after the accident and that the degenerative changes preexisted the accident. The plaintiffs expert testified that the accident caused the herniation.

On October 21, 2002, the jury awarded the plaintiff $450 in economic damages and zero noneconomic damages. Thereafter, the plaintiff filed a motion to set aside the verdict as to the damages award and for additur, claiming that the award of economic damages was insufficient and that the jury should have awarded her noneconomic damages. After a hearing on March 5, 2003, the court orally granted the motion to set aside the verdict. The court opined that in finding damages in the amount of $450, the jury must have found that the plaintiff had lied and punished her because of her lying. The court considered that to be prejudice and, therefore, a proper basis for upsetting the verdict. The additur included $6631 for special damages, the total special damages claimed by the plaintiff, and $6369 for noneconomic damages for a total of $13,000. In accordance with General Statutes § 52-228b, the court ordered that if the defendant did not accept the additur, the motion to set aside the verdict automatically would be granted and a new trial ordered, limited to the issue of damages. The defendant did not accept the additur. This appeal followed.⁴

The defendant claims that the court abused its discretion in granting the plaintiff's motion for additur. Specifically, the defendant argues that the court improperly granted an additur on the ground that the jury made a mistake or was prejudiced or that the verdict was against the weight of the evidence.

Our standard of review is well settled. "[I]t is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is ... palpably against the evidence.... 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." (Citation omitted; internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 113-14, 663 A.2d 398 (1995). "[A] court's decision to set aside a verdict and to order an additur... is entitled to great weight and every reasonable presumption should be given in favor of its correctness.... In determining whether the court abused its discretion, therefore, we decide only whether, on the evidence presented, the court reasonably could have decided that the jury did not fairly reach the verdict it did. To do so, we must examine the evidential basis of the verdict itself...." (Citations omitted; internal quotation marks omitted.) Wallace v. Haddock, 77 Conn. App. 634, 637-38, 825 A.2d 148 (2003). Although the court has broad discretion in setting aside a verdict, its discretion is not boundless. "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 evidence,...