Maldonado v. Flannery ( 2022 )

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WILLIAM MALDONADO ET AL. v.
KELLY C. FLANNERY ET AL.
(SC 20522)
Robinson, C. J., and McDonald, D’Auria, Kahn and Ecker, Js.
Syllabus
The plaintiffs, M and H, sought to recover damages for personal injuries
they sustained when a vehicle driven by the defendant F and owned by
the defendant T rear-ended the vehicle in which the plaintiffs were
traveling. The defendants admitted that the accident resulted from F’s
negligence, and the trial was therefore limited to the issues of causation
and damages. The plaintiffs introduced into evidence their medical
records and bills, including reports by their chiropractor, P, in which
P diagnosed M and H with, inter alia, various injuries to and conditions
associated with their necks and backs that, in his opinion, were perma-
nent in nature and would require future treatment. After the accident,
M was treated approximately sixty-two times over the course of two
years and H was treated approximately forty-nine times over the course
of eight months, primarily at P’s practice, and they each received chiro-
practic manipulation of the spine and neck, application of hot and cold
packs, electrical stimulation, and, on one occasion, an epidural steroid
injection. M received two magnetic resonance imagining (MRI) scans,
H receive one MRI, and they both were referred for physical therapy.
The defendants’ expert, L, agreed that the plaintiffs sustained injuries
to their necks and backs as a result of the accident and that a period
of physical therapy and chiropractic treatment was reasonable and nec-
essary, but he disagreed with P that the length of their treatment was
reasonable and that future treatment was necessary. The jury returned
a verdict in favor of the plaintiffs and awarded them each economic
damages but zero noneconomic damages for their pain and suffering.
The verdict form indicated that the jury awarded the plaintiffs all of
their respective claimed medical expenses for their hospital visits on
the day of the accident, as well as their MRIs, X-rays, and physical
therapy, but made slight reductions in the expenses claimed for the
chiropractic treatment P provided. Thereafter, the trial court granted the
plaintiffs’ joint motion for additurs and awarded each plaintiff additional
money damages for pain and suffering, concluding that the jury verdict
awarding economic damages but zero noneconomic damages was inher-
ently inconsistent because the jury necessarily found that the plaintiffs’
medical treatment was reasonable and necessary and because the plain-
tiffs’ particular medical treatment inherently involved treatment for pain.
Although the plaintiffs accepted the additurs, the defendants filed an
appeal in lieu of accepting or rejecting the additurs. The Appellate Court
reversed the trial court’s judgment, concluding that the trial court had
failed to identity the part of the record that supported its conclusion
that the jury’s failure to award noneconomic damages was unreasonable,
and also concluding that the jury’s verdict was not inconsistent because
the jury reasonably could have concluded that the plaintiffs had incurred
reasonable and necessary medical expenses but zero noneconomic dam-
ages for pain and suffering in light of the conflicting and inconsistent
evidence adduced at trial. On the granting of certification, the plaintiffs
appealed to this court. Held:
1. Contrary to the Appellate Court’s conclusion, the trial court properly set
forth in its memorandum of decision, in accordance with this court’s
case law, the evidentiary and logical basis for its decision to grant the
plaintiffs’ joint motion for additurs, and that explanation was sufficiently
specific to allow appellate review for an abuse of discretion: in its
memorandum of decision, the trial court observed its obligation to view
the evidence in the light most favorable to sustaining the jury’s verdict,
described the specific nature of the medical expenses incurred by the
plaintiffs, including the treatment each plaintiff received, and noted
the agreement of the parties’ respective experts that each plaintiff had
sustained sprains or strains to his neck and back as a result of the
accident; moreover, the trial court concluded that, because the jury
explicitly awarded damages based on the plaintiffs’ claimed medical
costs, it must have credited those records and found the treatments to
be necessary and reasonable, and that, because those specific treatments
inherently signified a level of physical pain suffered by the plaintiffs,
it was illogical and inconsistent not to award noneconomic damages,
especially when the jury awarded the exact amount of the vast majority
of the plaintiffs’ claimed expenses; accordingly, on the basis of that
articulation, a reviewing court was able to identify the evidence and
jury findings that the trial court believed, in the exercise of its discretion,
warranted the relief granted, to assess the court’s reasoning for logical
or legal flaws, and to determine whether the court had abused its discre-
tion by ordering additurs.
2. The Appellate Court incorrectly concluded that the trial court had abused
its discretion by granting the plaintiffs’ joint motion for additurs, and,
because the defendants effectively declined to accept the additurs, the
case was remanded for a new trial with respect to the issues of causation
and damages: the jury necessarily credited the plaintiffs’ medical bills
and/or the testimony of L regarding the injuries sustained by the plaintiffs
as a result of the accident and the reasonableness of the treatment they
received, and the trial court reasonably concluded that the inherent
purpose of the medical treatment credited by the jury, including the
chiropractic manipulations, the application of hot and cold packs, and
the epidural steroid injections, was to treat pain and suffering and was
not merely diagnostic or prophylactic in nature, which may not involve
pain; moreover, because the trial court could have reasonably concluded
that the jury’s verdict was inconsistent insofar as the jury found, on the
one hand, that the plaintiffs suffered personal injuries in the accident
that necessitated such medical treatment but, on the other hand, that
the plaintiffs experienced no pain or suffering as a result of the accident
that warranted an award of noneconomic damages, the court’s decision
to grant the plaintiffs’ joint motion for additurs was not an abuse of
discretion.
(One justice dissenting)
Argued April 26, 2021—officially released May 3, 2022
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the named defendant’s alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of Hartford and tried to
the jury before Budzik, J.; verdict for the plaintiffs;
thereafter, the court granted the plaintiffs’ motion for
additurs and rendered judgment for the plaintiffs, from
which the defendants appealed to the Appellate Court,
Keller, Bright and Bear, Js., which reversed the trial
court’s judgment and remanded the case to that court
with direction to deny the motion for additurs and to
render judgment in accordance with the jury’s verdict,
from which the plaintiffs, on the granting of certifica-
tion, appealed. Reversed; new trial.
Philip F. von Kuhn, for the appellants (plaintiffs).
Jack G. Steigelfest, for the appellees (defendants).
Opinion
ECKER, J. This case presents the scenario, not alto-
gether uncommon, in which a jury awards personal
injury plaintiffs economic damages for medical expenses
but zero noneconomic damages. The trial court granted
the joint motion for additurs filed by the plaintiffs, Wil-
liam Maldonado and Geovanni Hernandez, and awarded
each plaintiff additional money damages for pain and
suffering. The Appellate Court reversed the judgment
of the trial court on the grounds that it had failed to
articulate the specific facts to justify the additur awards
or to construe the conflicting evidence in the light most
favorable to sustaining the jury’s verdict. See Maldo-
nado v. Flannery, 200 Conn. App. 1, 9, 13, 238 A.3d 127(2020). We reverse the judgment of the Appellate Court.
I
FACTS AND PROCEDURAL HISTORY
On June 6, 2016, at approximately 3:20 p.m., the plain-
tiffs were traveling in a 2004 Ford Econoline van on
Route 4 in Farmington when they were rear-ended by
the named defendant, Kelly C. Flannery, who was driv-
ing a Ford Taurus owned by her father.1 The collision
caused serious damage to the defendants’ vehicle, but
the plaintiffs’ van sustained only minimal visible dam-
age.
The plaintiffs declined medical attention at the scene
of the accident. A few hours later, they both sought
medical treatment at the Hospital of Central Connecti-
cut, complaining of body aches and pain in their lower
backs and necks. At the hospital, both plaintiffs under-
went diagnostic testing. Maldonado was diagnosed with
a neck strain, a lower back strain, and a contusion on
his sternum. Hernandez was diagnosed with back pain
and a neck spasm. The plaintiffs each were prescribed
anti-inflammatory and pain medications and were
released from the hospital later that evening.
Soon after the accident, the plaintiffs sought addi-
tional medical treatment from Brian Pollack, a chiro-
practor at New Britain Injury & Spine. Pollack treated
Maldonado approximately sixty-two times intermit-
tently over the course of the next two years and referred
him for two magnetic resonance imaging (MRI) scans.
Maldonado’s treatment included application of hot and
cold packs, electrical stimulation, and mechanical trac-
tion. Hernandez underwent similar treatment with Pol-
lack, approximately forty-nine times over the course of
eight months, and was referred for one MRI scan. Pol-
lack also referred both plaintiffs for six months of physi-
cal therapy, which they received from another provider.
Despite this course of treatment, the plaintiffs contin-
ued to experience pain. Subsequently, an epidural ste-
roid injection in the lower back was administered to
each plaintiff at Jefferson Radiology.
On July 18, 2017, the plaintiffs filed a negligence
action against the defendants in the Superior Court.
The case was tried before a jury. The issues at trial
were limited to causation and damages because the
defendants admitted that the collision resulted from
Flannery’s negligence. At trial, both Maldonado and
Hernandez testified that the collision caused the injuries
and pain for which they received the medical treatment
previously described.2 Maldonado testified that he
remained unable to do heavy lifting at work and faced
difficulties carrying out other tasks he previously was
able to perform. He claimed medical expenses in the
amount of $18,953.38.3 Hernandez testified that he had
difficulty standing up and difficulty sleeping due to pain
caused by the accident. He claimed medical expenses
in the amount of $13,254.94.
To corroborate their testimony, the plaintiffs intro-
duced medical records and bills from their health care
providers. The plaintiffs also presented lengthy reports
authored by Pollack, opining, among other things, that
their respective injuries were causally related to the
accident, requiring the medical treatment and supervi-
sion he provided. Pollack’s report diagnosed Maldo-
nado, in relevant part, with a disc herniation, radiculitis,
nonallopathic segmental dysfunction, muscle spasms
in the cervical and lumbar spine, pain in the lumbar
and thoracic spine, and a sprain of the left shoulder.
Pollack diagnosed Hernandez with nonallopathic seg-
mental dysfunction, pain and muscle spasms in the cer-
vical, thoracic and lumbar spine, and an ‘‘[e]xtrusion
type’’ herniation of the lumbar spine. He also assigned
each plaintiff a permanent impairment rating as a result
of the accident.4 Pollack further opined that the plain-
tiffs’ injuries were permanent in nature and rendered
each of them highly susceptible to future aggravations
and exacerbations, which would require future chiro-
practic treatment at least twice a month at a cost of
$150 per visit, and future medical supervision at a fre-
quency of three times per year and a cost of $250 per
evaluation.
The defendants challenged the plaintiffs’ claims on
multiple fronts. They attacked the credibility of the
plaintiffs’ testimony5 and medical evidence by adducing
conflicting evidence as to the dates of treatment, the
extent to which Maldonado’s reported injuries were
directly caused by the 2016 accident, as opposed to a
prior accident in 2014; see footnote 3 of this opinion; and
the duration of the plaintiffs’ chiropractic treatment. In
addition, the defendants observed that the emergency
room records from Maldonado’s visit on the day of
the accident indicate that Maldonado’s last visit to the
hospital was on July 16, 2015, ‘‘for chronic pain/sciat-
ica . . . .’’
The defendants also presented the jury with expert
testimony from an orthopedic surgeon, Jonas V. Lie-
ponis, who disputed the etiology and permanency of
some of the plaintiffs’ injuries, testifying that the plain-
tiffs’ medical records demonstrated that they both suf-
fered from preexisting degenerative disc disease prior
to the accident. Nonetheless, Lieponis agreed that both
of the plaintiffs sustained injuries to their necks and
lumbar regions as a result of the accident and that a
certain period of physical therapy and/or chiropractic
treatment was reasonable and necessary to treat those
injuries. Lieponis disagreed, however, that the length
of treatment was reasonable or that future treatment
was necessary. Specifically, in Lieponis’ expert opinion,
the evidence was insufficient to conclude that the plain-
tiffs had suffered permanent impairments as a result
of the accident. Lieponis did not provide any testimony
regarding the pain suffered by the plaintiffs as a conse-
quence of their injuries but, in response to a question
posed by the plaintiffs’ counsel, did state that each
plaintiff underwent an epidural steroid injection to treat
his injury, which, ‘‘like any injection, [entails] an ele-
ment of pain.’’
The jury returned a verdict in favor of the plaintiffs
and awarded economic damages in the amount of
$17,228.38 to Maldonado and $11,864.94 to Hernandez.
The award consisted of full payment for all expenses
related to the plaintiffs’ hospital visits, radiologic/MRI
services, physical therapy, and epidural steroid injec-
tions. The only reduction made by the jury was for
chiropractic care; Maldonado was awarded $7035,
which was $1725 less than the total amount billed by
Pollack, and Hernandez was awarded $5670, which was
$1390 less than the total amount billed by Pollack. The
jury also awarded Maldonado $1800 in future economic
damages. It did not award any future economic damages
to Hernandez. The jury did not award either plaintiff
any noneconomic damages for pain and suffering, past
or future.
The plaintiffs timely filed a joint motion to set aside
the verdicts and for a new trial. They also filed a contem-
poraneous joint motion for additurs pursuant to General
Statutes §§ 52-216a and 52-228b. The defendants timely
objected. The trial court issued a written memorandum
of decision granting the plaintiffs’ motion for additurs
and to set aside the verdicts. The trial court concluded
that the jury verdict awarding economic damages to
each plaintiff but zero noneconomic damages was
inherently inconsistent because ‘‘the jury necessarily
found that the plaintiffs’ medical treatment was reason-
able and necessary and because the plaintiffs’ particular
medical treatment inherently involved treatment for
pain . . . .’’ The trial court recognized that ‘‘the jury
could have reasonably concluded that [the plaintiffs]
were [not] credible witnesses’’ but pointed out that ‘‘the
jury must have credited and relied on some evidence’’
because it ‘‘explicitly awarded damages based on the
plaintiffs’ medical costs . . . .’’ Indeed, the jury’s
award of economic damages reflected an ‘‘exactitude’’
demonstrating that it necessarily ‘‘concluded that the
treatments set forth in [the plaintiffs’ medical] bills were
necessary and reasonable and that the injuries being
treated during those visits were proximately caused by
the defendant’s negligence.’’ The trial court reasoned
that the nature of the medical treatment deemed reason-
able and necessary by the jury for injuries caused by the
defendant’s negligence and the ‘‘underlying symptoms’’
requiring that treatment ‘‘bespeak a level of physical
pain suffered by [the plaintiffs].’’ Accordingly, the trial
court awarded past noneconomic damages in the
amount of $8000 to Maldonado and $6500 to Hernandez.
The trial court explained that these amounts were
‘‘based on the amounts of past economic damages
awarded by the jury for medical costs inherently involv-
ing treatment for pain, more specifically, the medical
bills from New Britain Injury & Spine [for chiropractic
treatment] and Jefferson Radiology [for epidural steroid
injections that] the jury necessarily credited in its ver-
dict.’’6 The court’s order concluded: ‘‘The parties shall
have twenty days from the date of this decision to file
their written acceptance or rejection of the additur with
the clerk’s office. If the additur is accepted, judgment
will enter for the plaintiffs in the amount of $27,028.38
($19,028.38 + $8000) for . . . Maldonado and
$18,364.94 ($11,864.94 + $6500) for . . . Hernandez. If
the additur is not timely accepted by both parties, a
new trial is ordered.’’
The plaintiffs accepted the additurs within the pre-
scribed time period, but the defendants filed an appeal
‘‘in lieu of an acceptance or rejection of the [additurs].’’7
See General Statutes § 52-228a (‘‘the party aggrieved by
the order of . . . additur may appeal as in any civil
action’’). The Appellate Court reversed the trial court’s
judgment, concluding that the trial court had failed ‘‘to
identify the part of the record that supported its conclu-
sion that the jury’s failure to award noneconomic dam-
ages was unreasonable . . . .’’ Maldonado v. Flannery,
supra, 200 Conn. App. 9. The Appellate Court further
determined that the verdict was not inconsistent
because the jury reasonably could have concluded that
the plaintiffs incurred reasonable and necessary medi-
cal expenses, but zero noneconomic damages for pain
and suffering, in light of the conflicting and inconsistent
evidence adduced at trial. See id., 10, 13. This certified
appeal followed.8
II
LEGAL PRINCIPLES GOVERNING MOTIONS
TO SET ASIDE JURY VERDICTS AS
INADEQUATE OR EXCESSIVE
A
Legal Principles Governing the Trial Court’s Review
There is an inherent tension in the legal principles
governing our resolution of this case because the opera-
tive considerations demand great deference to two dif-
ferent decision makers: the trial judge and the jury. The
judge and the jury each serve essential and elemental
functions in our civil justice system and must be
accorded wide discretion in the discharge of their
respective duties. For the most part, judges and juries
occupy separate but coordinate spheres and work coop-
eratively to produce a harmonious outcome integrating
the facts found by the jury and the legal rules set forth
by the judge. However, these fields of operation are not
entirely separate and distinct, and there occasionally
is conflict between the two decision makers—as when
a trial court sets aside a jury’s verdict. Such moments
of conflict have always been present in Connecticut
and, indeed, in the English common law going back at
least to the mid-seventeenth century. See Bartholomew
v. Clark, 1 Conn. 472, 480 (1816) (‘‘To all courts acting
on the principles of the common law, the power is
incidental to grant new trials for various causes, among
which one is, that the verdict was against evidence.
This has ever been done in England, as well as in sundry
states in the union. Courts in this state, then, acting
according to the common law, have this power unless
prohibited by positive law.’’ (Emphasis omitted.)).
A reviewing court confronted with an appeal chal-
lenging a trial court’s decision on a motion to set aside
a jury’s verdict therefore must navigate a path between
two different cardinal principles. The first is that the
right to a jury trial is enshrined in our constitution and
counts among the most vital checks against governmen-
tal overreach. See Conn. Const., art. I, § 19 (‘‘[t]he right
of trial by jury shall remain inviolate’’); see also Seals
v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982) (‘‘[l]it-
igants have a constitutional right to have questions of
fact decided by a jury’’). The second, firmly embedded
in the common law as a constitutive aspect of the jury
right, is the essential role that the trial judge plays in
dispensing justice and, of particular relevance here,
the fact that the trial judge does not become a mere
spectator once the jury returns its verdict. To the con-
trary, the trial court has not only the power but the
‘‘duty to set aside the verdict when it finds that it does
manifest injustice, and is . . . palpably against the evi-
dence.’’ (Internal quotation marks omitted.) Fazio v.
Brown, 209 Conn. 450, 454, 551 A.2d 1227 (1988); see
Roma v. Thames River Specialties Co., 90 Conn. 18,
19, 96 A. 169 (1915) (‘‘[i]t was the [trial] court’s duty to
set aside the verdict if its manifest injustice was so
plain and palpable as to justify the suspicion that the
jury or some of its members were influenced by preju-
dice, corruption or partiality’’). See generally Saleh v.
Ribeiro Trucking, LLC, 303 Conn. 276, 280, 32 A.3d
318 (2011) (‘‘[o]ur review of the trial court’s grant of
remittitur [or additur] is dictated by, on the one hand,
the high bar that must be met before a trial judge may
set aside a jury verdict, and, on the other hand, the
necessarily broad authority that the trial judge has to
oversee the trial process’’); Turner v. Pascarelli, 88
Conn. App. 720, 722–23, 871 A.2d 1044 (2005) (‘‘[There
are] two competing jurisprudential principles that addi-
turs bring into play. On the one hand, deference to the
ruling of the trial court is warranted because that court,
having observed the trial proceedings in their entirety,
is in a better position than an appellate court to assess
the credibility of the witnesses and the appropriate
weight to be accorded their testimony. . . . On the
other hand, deference is problematic because the trial
court’s exercise of its discretion impairs the litigants’
constitutional right to designate a jury, rather than a
court, to be the fact finder in their case.’’ (Citation omit-
ted.)).
This doctrinal tension does not signal an underlying
weakness in the applicable legal framework or a fatal
flaw in the principles that, at times, seem to vie for
preeminence in the analysis. Rather, it is a sign of health
and vigor reflecting a properly functioning arrangement
of checks and balances within our civil justice system.
Former Chief Justice Zephaniah Swift described the
arrangement and extolled its virtues in the seminal case
of Bartholomew v. Clark, supra, 1 Conn. 472: ‘‘I think
a discreet and prudent exercise of th[e] power [to set
aside a verdict] can be attended with no inconvenience
or danger; that it is necessary to adopt it to complete
the fabric of jurisprudence, and to give to courts all the
powers essential to a due execution of the law. It should
be exercised only in clear cases, which will rarely occur.
It will leave to juries an important and valuable power
in the trial of civil causes; and when it is understood
that an erroneous verdict can be corrected, the public
confidence in the trial by jury will be increased, instead
of being impaired.’’ Id., 482; see Howe v. Raymond, 74
Conn. 68, 71–72, 49 A. 854 (1901) (‘‘[The] power of
supervision and correction [that] the judge has over the
verdict is an essential part of the jury system. . . . Trial
by jury, in the primary and usual sense of the term at
the common law and in the American constitutions, is
not merely a trial by a jury of twelve men before an
officer vested with authority to cause them to be sum-
moned and empanelled, to administer oaths to them
and to the constable in charge, and to enter judgment
and issue execution on their verdict; but it is a trial by
a jury of twelve men, in the presence and under the
superintendence of a judge empowered to instruct them
on the law and to advise them on the facts, and (except
on acquittal of a criminal charge) to set aside their
verdict, if in his opinion it is against the law or the
evidence.’’ (Internal quotation marks omitted.)).
Of the great many cases over the past two hundred
years involving appeals from trial court decisions grant-
ing or denying a motion to set aside a jury’s verdict, a
large number involve claims of excessive or inadequate
damage awards, and, within that category, many involve
challenges directed at the jury’s failure to award non-
economic damages, as in the present case.9 At the most
general level, the fundamental question for a trial court
deciding whether to set aside a jury verdict on the basis
of an excessive or inadequate damages award is very
simple: In light of the evidence presented at trial, is the
jury’s verdict unreasonable? See, e.g., Munn v. Hotch-
kiss School, 326 Conn. 540, 575, 165 A.3d 1167 (2017)
(repeating oft cited principle that one immovable limita-
tion on power of trial court to set aside jury’s verdict
is parties’ constitutional right to have jury determine
amount of damages ‘‘when there is room for a reason-
able difference of opinion among fair-minded persons
as to the amount that should be awarded’’ (internal
quotation marks omitted)); Burns v. Metropolitan Dis-
tributors, 130 Conn. 226, 229, 33 A.2d 131 (1943) (con-
cluding that trial court improperly set aside jury’s ver-
dict because ‘‘[t]he jury might reasonably have arrived
at the verdict [it] did’’). Reasonableness is the lodestar:
if the jury’s verdict and award of damages are reason-
able, then they ‘‘should stand; if [they are] not, [they]
should be set aside.’’ Steinert v. Whitcomb, 84 Conn.
262, 264, 79 A. 675 (1911).
Our cases have articulated the following principles
to guide the trial court’s reasonableness inquiry and to
assist it in deciding a motion to set aside a damages
award as excessive or inadequate. It is axiomatic that
the trial court must conduct its own independent assess-
ment of the full evidentiary record to determine whether
the jury reasonably could have reached its verdict on
the basis of the facts and reasonable inferences drawn
therefrom. As we have explained, ‘‘[i]n passing [on] a
motion to set aside a verdict, the trial judge must do
just what every juror ought to do in arriving at a verdict.
The juror must use all his experience, his knowledge
of human nature, his knowledge of human events, past
and present, his knowledge of the motives [that] influ-
ence and control human action, and test the evidence
in the case according to such knowledge and render
his verdict accordingly. . . . The trial judge in consid-
ering the verdict must do the same . . . and if, in the
exercise of all his knowledge from this source, he 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, corrup-
tion or partiality, then it is his duty to set aside that
verdict and to grant a new trial.’’ (Internal quotation
marks omitted.) Birgel v. Heintz, 163 Conn. 23, 27,
301 A.2d 249 (1972); accord Schroeder v. Triangulum
Associates, 259 Conn. 325, 329–30, 789 A.2d 459 (2002);
Wichers v. Hatch, 252 Conn. 174, 186–87, 745 A.2d
789 (2000).
In independently reviewing the evidence adduced at
trial, the trial court must view the evidence through the
same lens and against the same background of human
experience as would a juror, but the trial court is not
a juror and may not substitute its own judgment for
that of the jury. See Saleh v. Ribeiro Trucking, LLC,
supra, 303 Conn. 283 (‘‘[t]he fact that the jury returns
a verdict in excess of what the trial judge would have
awarded does not alone establish that the verdict was
excessive’’ (internal quotation marks omitted)); id., 284
(appellate review is necessary to ensure that trial court
‘‘did not merely substitute its own judgment for that of
the jury’’); Mulcahy v. Larson, 130 Conn. 112, 114–15,
32 A.2d 161 (1943) (‘‘[t]o justify setting aside a verdict
as inadequate, something more than a doubt of its ade-
quacy must exist’’). Thus, in arriving at its reasonable-
ness determination, the trial court must view the evi-
dence ‘‘in the light most favorable to the prevailing party
. . . .’’ (Internal quotation marks omitted.) Childs v.
Bainer, 235 Conn. 107, 113, 663 A.2d 398 (1995); see
Saleh v. Ribeiro Trucking, LLC, supra, 290 (‘‘[w]e
emphasize that, in reviewing the evidence in the light
most favorable to sustaining the verdict, the trial court,
and the reviewing court, are bound by the jury’s credibil-
ity determinations and all reasonable inferences the
jury could have drawn from the evidence’’ (emphasis
in original)).
The question for the trial court is not whether the
jury exercised poor judgment but, instead, whether the
jury’s damages award lies outside the range of reason-
ableness; mere disagreement is not enough to warrant
judicial intervention. For this reason, ‘‘[t]he ultimate
test [that] must be applied to the verdict by the trial
court is whether the jury’s award falls somewhere
within the necessarily uncertain limits of just damages
or whether the size of the verdict so shocks the sense
of justice as to compel the conclusion that the jury
[was] influenced by partiality, prejudice, mistake or
corruption.’’ (Internal quotation marks omitted.) Munn
v. Hotchkiss School, supra, 326 Conn. 576; see Earling-
ton v. Anastasi, 293 Conn. 194, 207, 976 A.2d 689 (2009)
(asking whether verdict ‘‘so shocks the conscience as
to compel the conclusion that it was due to partiality,
prejudice or mistake’’ (internal quotation marks omit-
ted)).10 This inquiry is not intended to detect the kind
of shock that arises from a moral outrage but, instead,
refers to the distress that may be felt when the require-
ment of reasonableness has been abandoned in a setting
in which reason is a necessary element of any legitimate
outcome. If the verdict cannot be explained rationally,
then the trial court may presume that it is tainted by
improper considerations.
Finally, if the trial court concludes that the jury’s
verdict and award of damages are excessive or inade-
quate and that the motion to set aside should be granted,
the trial court must provide an explanation setting forth
the reasons for its decision in sufficient detail to facili-
tate appellate review. As we have explained, ‘‘[i]n order
for us to determine whether the trial court properly
reviewed the evidence in the light most favorable to
sustaining the verdict, and did not merely substitute its
own judgment for that of the jury, a trial court ordering
a remittitur [or additur] must set forth the evidence,
viewed in that light, and explain the specific reasons
that led the court to conclude that the award shocked
the conscience of the court. We set forth this require-
ment, not to discourage the trial court from granting
remittitur [or additur] in those cases [in which] it is
warranted, but rather to aid the reviewing court in its
determination of whether the trial court properly exer-
cised its discretion.’’ Saleh v. Ribeiro Trucking, LLC,
supra, 303 Conn. 284. This requirement is not intended
to impose an onerous burden on the trial court, and it
does not require an excruciatingly detailed explication
of the evidence supporting the trial court’s ruling. It
requires only that the trial court explain its reasoning
with reference to the evidence and with sufficient speci-
ficity to allow an appellate court to review the decision
for an abuse of discretion.
B
Legal Principles Governing Appellate Review
We review a decision of the trial court to set aside
the jury’s verdict and to order an additur for an abuse
of discretion. See, e.g., Ashmore v. Hartford Hospital,
331 Conn. 777, 781–82, 208 A.3d 256 (2019); Wichers v.
Hatch, supra, 252 Conn. 181. A trial 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.’’ (Internal
quotation marks omitted.) Mansfield v. New Haven, 174
Conn. 373, 375, 387 A.2d 699 (1978); accord Ashmore
v. Hartford Hospital, supra, 783. The trial court, having
observed the trial and evaluated the testimony first-
hand, is better positioned than a reviewing court to
assess both the aptness of the award and whether the
jury may have been motivated by improper sympathy,
mistake, partiality, or prejudice. See, e.g., Childs v.
Bainer, supra, 235 Conn. 113; Palomba v. Gray, 208
Conn. 21, 24–25, 543 A.2d 1331 (1988); Birgel v. Heintz,
supra, 163 Conn. 26–27.
Equally well settled is the principle that the same
level of deference is owed whether the trial court grants
or denies the motion to set aside the verdict. ‘‘The action
of a trial judge is no less entitled to weight when he
sets aside a verdict, than when he refuses to set it aside;
and for the same reasons. He has seen the witnesses,
heard their testimony, observed their demeanor on the
witness stand, their manner and bearing, their intelli-
gence, character and means of knowledge. And if while
all this is fresh in his mind he sets aside a verdict, great
weight would naturally be given to his action.’’ Loomis
v. Perkins, 70 Conn. 444, 447, 39 A. 797 (1898); see
Ashmore v. Hartford Hospital, supra, 331 Conn. 781–82
(agreeing with plaintiff ‘‘that binding precedent estab-
lishes, and our recent cases reaffirm, that a trial court’s
decision to grant or deny remittitur is reviewed according
to a deferential abuse of discretion standard’’); Gladu
v. Sousa, 252 Conn. 190, 191, 193, 745 A.2d 798 (2000)
(trial court properly exercised its discretion to grant
plaintiff’s motion for additur and, ‘‘after the defendant
refused the additur, ordered a new trial on the issue of
damages’’).
A reviewing court, like the trial court, must remain
cognizant of the constitutional function of the jury in
our system of justice. See part II A of this opinion. At
the same time, our case law involving trial court rulings
on motions to set aside a jury’s verdict and award of
damages as excessive or inadequate, which has been
codified by the legislature; see footnote 9 of this opin-
ion; reflects a firm commitment to the belief that we
should give great weight to the trial court’s exercise of
discretion regarding the reasonableness of the jury’s
verdict. That discretion is not unlimited, and a reviewing
court will occasionally find it has been exceeded, but
our precedent requires that we accord substantial defer-
ence to the decision of a trial court once we are satisfied
that the trial court has rendered its decision in accor-
dance with the applicable legal principles, as articulated
in part II A of this opinion.
III
JURY AWARDS OF ECONOMIC DAMAGES AND ZERO
NONECOMONIC DAMAGES (SPLIT VERDICTS)
The present case requires us to consider how the
foregoing principles apply in one specific context that
has become the subject of increasingly frequent litiga-
tion over the past twenty-five years. Juries in personal
injury cases sometimes award a plaintiff economic dam-
ages for medical expenses caused by the defendant’s
negligence but no damages for pain and suffering, loss
of life’s enjoyment, or any other type of noneconomic
damages.11 These verdicts, which we will refer to as
‘‘split verdicts’’ in this opinion, occur in a variety of
personal injury cases but most often in automobile acci-
dent cases in which a plaintiff sustains soft tissue injur-
ies requiring chiropractic treatment and physical ther-
apy but no surgical or orthopedic care. As we discuss
herein, the fundamental principles governing trial and
appellate review of split verdicts are no different from
those discussed in part II of this opinion, but there is
one distinguishing characteristic of these cases that
warrants attention because it is typically not seen in
other claims of inadequacy or excessiveness.
The essential thrust of a plaintiff’s argument in a split
verdict case is not primarily that the verdict is contrary
to the evidence, but that the verdict is internally incon-
sistent. A plaintiff claims that the two components of
the damages verdict are self-contradictory; the jury’s
award of substantial economic damages arising from
physical injuries, but its failure to award any corres-
ponding noneconomic damages for the pain and suffer-
ing associated with those same injuries, cannot logically
coexist and, thus, reflect an inherent flaw in the jury’s
verdict. See Wichers v. Hatch, supra, 252 Conn. 179(noting that plaintiff’s sole argument in support of addi-
tur ‘‘was that the verdict was inconsistent in that ‘if the
jury believed [he] was injured so as to require treatment
and incur medical bills, it is inconsistent to find that
these same injuries did not cause pain and suffering’ ’’);
see also Brooks v. Brattleboro Memorial Hospital, 958
F.2d 525, 530 (2d Cir. 1992) (finding inherent inconsis-
tency in jury’s split verdict in medical malpractice case
and citing cases); cf. Magnan v. Anaconda Industries,
Inc., 193 Conn. 558, 577, 479 A.2d 781 (1984) (‘‘in civil
cases [in which] a verdict rests [on] a factual finding
contradictory to another finding of the same issue by
the trier the judgment cannot stand’’).
In fact, until relatively recently, the rule in Connecti-
cut was that a jury’s verdict was inconsistent as a matter
of law if the jury awarded a plaintiff damages for the
reasonable and necessary cost of medical care for physi-
cal injuries proximately caused by the defendant’s negli-
gence but zero damages for any pain, suffering, or non-
economic impairment arising from those same injuries.
In Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930),
overruled by Wichers v. Hatch, 252 Conn. 174, 745 A.2d
780 (2000), we held that a jury award of the economic
damages incurred by the plaintiffs in a motor vehicle
accident ‘‘with no allowance for the pain or the physical
injuries suffered’’ was ‘‘manifestly inadequate’’ and
must be set aside. Id., 229, 232. The Johnson per se
rule prevailed for more than fifty years, but doctrinal
cracks became evident in the 1990s,12 and, in 2000, its
holding was expressly overruled in Wichers v. Hatch,
supra, 176, in which we held that an award of economic
damages and zero noneconomic damages is not per se
inadequate as a matter of law.
In Wichers, the plaintiff brought an action to recover
for personal injuries sustained in an automobile colli-
sion caused by the defendant driver’s negligence. Id.
The plaintiff claimed that he suffered a neck injury
requiring chiropractic treatment as a result of the acci-
dent, but his allegation was complicated by the fact
that he was in treatment for preexisting neck injuries
at the time of the accident. See id., 177. Indeed, by that
time, the plaintiff had been receiving ongoing chiroprac-
tic treatment for seven years ‘‘as part of a monthly
maintenance program’’ for his neck condition. Id. The
plaintiff had a documented history of arthritis in his
neck, spondylosis, and neck injuries incurred in two
prior motor vehicle accidents in the four years before
the collision. Id. The jury awarded the plaintiff the full
amount of his requested economic damages of $3377
but zero noneconomic damages. Id., 177, 179. The plain-
tiff filed a motion to set aside the jury’s verdict as
inadequate and for additur pursuant to Johnson, which
the trial court granted. Id., 179. The trial court explained
that, because the jury had awarded the plaintiff the
exact amount of his claimed economic damages, it nec-
essarily had found that he was injured in the collision
with the defendant and that the ‘‘ ‘verdict was inconsis-
tent and inadequate as a matter of law.’ ’’ Id., 180.
On appeal, this court, overruling Johnson, held that
the jury’s failure to award noneconomic damages was
not per se inconsistent as a matter of law. After
reviewing the foregoing facts, we ordered the trial court
to reinstate the jury’s verdict because the evidence rea-
sonably supported the jury’s ‘‘conclusion that the plain-
tiff had not proven that he had suffered any additional
pain as a result of the defendant’s conduct.’’ (Emphasis
in original.) Id., 186; see id., 189–90 (‘‘the jury could
have accepted the evidence 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 actually to suffer greater pain than
he already had experienced as a result of his preexisting
condition’’). Wichers thus eliminated the per se rule
requiring the trial court to grant a motion for a new
trial or additur in personal injury cases in which the
jury awards economic damages and zero noneconomic
damages, holding that ‘‘an award of economic damages
that is not accompanied by an award of noneconomic
damages is . . . not always inadequate as a matter of
law.’’ (Emphasis in original.) Id., 186.
This holding, although marking an important change
in our law, must not be read too broadly because Wich-
ers does not substitute the Johnson per se rule with
an opposite one shielding split verdicts from judicial
review altogether. Nor does it eliminate the discretion-
ary standard by which appellate courts review a trial
court’s ruling on a motion to set aside a verdict and
for additur. To the contrary, Wichers overruled Johnson
precisely because its per se rule had eliminated the
trial court’s discretionary authority to assess the jury’s
award on the basis of the particular facts and circum-
stances before it. Pursuant to Wichers, there is no auto-
matic rule either requiring or prohibiting the trial court’s
exercise of discretion within the traditional legal frame-
work described in part II of this opinion. The trial court
must conduct its own independent assessment of the
evidence, as ‘‘every juror ought to do in arriving at a
verdict,’’ and set aside the verdict only if it ‘‘finds the
verdict to be so clearly against the weight of the evi-
dence in the case as to indicate that the jury did not
correctly apply the law to the facts in evidence . . .
or [was] governed by ignorance, prejudice, corruption
or partiality . . . .’’ (Internal quotation marks omitted.)
Id., 186–87. ‘‘The trial [court] has a broad legal discre-
tion and [its] action will not be disturbed unless there
is a clear abuse.’’ (Internal quotation marks omitted.)
Id., 187. But, in exercising its discretion, the trial court
must demonstrate respect for the jury’s fact-finding
function, and a ‘‘mere doubt of the adequacy of the
verdict is an insufficient basis [to set it aside]. . . . A
conclusion that the jury exercised merely poor judg-
ment is likewise insufficient.’’ (Internal quotation marks
omitted.) Id. The trial court’s task, ultimately, is to
‘‘examine the evidence to decide whether the jury rea-
sonably could have found that the plaintiff had failed
in his proof of [noneconomic damages].’’ Id., 188–89.
Wichers holds that the ‘‘[Johnson] per se rule’’ is unnec-
essary because the foregoing traditional standard estab-
lishes ‘‘a system that allows inadequate awards to be
remedied without sacrificing the discretion of either
the jury or that of the trial court . . . .’’ Id., 187–88.
Since Wichers, we have had the opportunity to
address a trial court’s ruling on a motion to set aside
a jury’s verdict as inadequate in a split verdict case on
two occasions. In Gladu v. Sousa, supra, 252 Conn. 190,
which was decided on the same day as Wichers, we
determined that certification had been improvidently
granted and dismissed the defendant’s appeal from the
Appellate Court’s judgment affirming the trial court’s
judgment granting an additur after the jury had returned
a split verdict. Id., 191–93. We reasoned that the trial
court had ‘‘evaluated the evidence and the jury’s award
in a manner consistent with its statutory authority and
our jurisprudence sanctioning the exercise of its discre-
tion [to award an additur] in appropriate circum-
stances’’ and, therefore, that ‘‘the Appellate Court prop-
erly affirmed the trial court’s judgment.’’ (Footnote
omitted.) Id., 193. Gladu, a companion to Wichers, like-
wise reaffirms the important role that a trial court’s
discretionary authority plays in scrutinizing the jury’s
award of damages in this context.
In Schroeder v. Triangulum Associates, supra, 259
Conn. 325, we confronted a substantially different set
of facts than that presented in Wichers. The plaintiff in
Schroeder was injured while making a delivery at the
defendant’s restaurant. Id., 328. The jury found the
defendant liable for the plaintiff’s injuries and the costs
of his intrusive spinal fusion surgery but awarded noth-
ing for the pain and permanent disability necessarily
resulting from the surgical procedure. See id., 329, 333–
34. The trial court denied the plaintiff’s motion for addi-
tur, and we reversed. Id., 327. Applying the fact specific
standard set forth in Wichers, we concluded that the
incongruous award could not rationally be explained
in light of the evidence necessarily credited by the jury
in awarding the plaintiff’s requested economic dam-
ages. We explained that ‘‘[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.’’ Id., 333. We
observed that the spinal surgery was in stark contrast
with the treatment in Wichers, in which the plaintiff
‘‘merely underwent additional chiropractic treatment
for an aggravation of a preexisting injury, leaving the
jury free to determine whether the plaintiff had incurred
any additional pain and suffering as a result of the
defendant’s negligence.’’ (Emphasis added.) Id.13
Wichers and Schroeder illustrate the outer bound-
aries of the trial court’s discretion to set aside a jury
verdict when it is internally inconsistent or inadequate
as a matter of law. At one end of the spectrum, Wichers
holds that a jury that awards a plaintiff economic dam-
ages for personal injuries is not required, as a matter
of law, to award noneconomic damages when the evi-
dence supports the conclusion that the pain suffered by
the plaintiff ‘‘was the same as what he had experienced
before his accident with the defendant.’’ Wichers v.
Hatch, supra, 252 Conn. 190. Schroeder, at the other
extreme, holds that a verdict must be considered legally
inconsistent if the jury awards zero noneconomic dam-
ages but full economic damages for an injury requiring
the plaintiff to undergo spinal fusion surgery as a result
of the defendant’s negligence. See Schroeder v. Trian-
gulum Associates, supra, 259 Conn. 333–34. Although
these extreme cases do not provide a formula for decid-
ing the cases falling in between; see footnote 13 of this
opinion; they are instructive nonetheless because they
demonstrate the fact intensive nature of the requisite
analysis.
To summarize, Wichers marked the end of the idea
that split verdicts in Connecticut automatically must
be set aside because they necessarily are inconsistent
as a matter of law, but its holding should not be read
expansively to sanction all split verdicts. A split verdict
is examined using the same analysis applied generally
to determine whether a verdict should be set aside as
inadequate ‘‘in light of the circumstances of the particu-
lar case before it.’’ Wichers v. Hatch, supra, 252 Conn.
188. Those circumstances include the possible incon-
gruence between the economic and noneconomic com-
ponents of a jury’s damages award, which can signal a
legal inconsistency, at least in the absence of a reason-
able (i.e., evidence based) explanation. Noneconomic
damages are not an optional element of the damages
award if the physical injuries that serve as the basis
for the jury’s award of economic damages cause the
plaintiff to experience any pain and suffering.14 In the
case of a split verdict, the underlying concern is not simply
the potential illogic in a jury’s failure to award noneco-
nomic damages for the pain and suffering that one
would normally associate with the physical injuries that
the jury, by awarding economic damages, necessarily
determined were proximately caused by the defendant’s
negligence. The deeper concern is that the inconsistency
may indicate that the verdict reflects an impermissible
compromise or otherwise is the product of improper
influence, whether it be ignorance, mistake, prejudice,
or emotion.15 Indeed, these concerns are sufficiently
prominent that a standard jury instruction was promul-
gated for use when a jury returns a split verdict, pursu-
ant to which the trial court sends the case back to the
jury for reconsideration. See footnote 11 of this opinion.
These additional considerations will not be impli-
cated in every case in which a jury returns a split verdict.
We mention them because the possibility of an inconsis-
tent verdict in this particular context should not be
overlooked by the trial court.
IV
WHETHER THE TRIAL COURT ABUSED ITS
DISCRETION IN GRANTING THE
PLAINTIFFS’ JOINT MOTION
FOR ADDITURS
With these principles in mind, we address whether
the Appellate Court properly reversed the judgment of
the trial court setting aside the jury’s verdict and grant-
ing the plaintiffs’ joint motion for additurs. The Appel-
late Court relied on two grounds in reaching its deci-
sion. First, the Appellate Court determined that the trial
court’s memorandum of decision ‘‘fail[ed] to identify
the part of the record that supported its conclusion that
the jury’s failure to award noneconomic damages was
unreasonable under the facts of this case . . . .’’ Mal-
donado v. Flannery, supra, 200 Conn. App. 9.16 Second,
even if the trial court’s memorandum of decision was
sufficiently detailed, the Appellate Court, upon conduct-
ing its own ‘‘fact intensive analysis’’ of the ‘‘evidential
underpinnings’’ of the jury’s verdict and the full eviden-
tiary record; (internal quotation marks omitted) id.; con-
cluded that ‘‘the jury reasonably could have found that
the plaintiffs failed to prove noneconomic damages for
pain and suffering caused by the 2016 accident.’’ Id.,
13. We review each conclusion in turn.
A
Trial Court’s Explanation of the Basis for the
Additur Award Was Sufficient
As we previously discussed, our case law requires a
trial court ordering an additur to explain the basis for
its ruling in sufficient detail ‘‘to aid the reviewing court
in its determination of whether the trial court properly
exercised its discretion.’’ Saleh v. Ribeiro Trucking,
LLC, supra, 303 Conn. 284. As we explained in Saleh,
‘‘[m]erely stating that an award shocks the conscience
or the sense of justice of the court or that the award
does not fall within the necessarily uncertain limits of
fair and reasonable compensation will not be suffi-
cient.’’ Id., 283–84. Instead, the trial court is required
to state the evidentiary basis for its ruling and the cor-
responding reasons supporting its conclusion that the
jury’s verdict is manifestly unjust. Id., 284. This require-
ment is ‘‘not [imposed] to discourage the trial court
from granting remittitur [or additur] in those cases [in
which] it is warranted, but rather to aid the reviewing
court in its determination of whether the trial court
properly exercised its discretion.’’ Id.
We conclude that the trial court’s memorandum of
decision in the present case provided sufficient detail to
explain the evidentiary and logical basis for the court’s
decision to grant the plaintiffs’ joint motion for additurs.
The trial court stated that it was ‘‘[c]onscious of its
obligation to view the evidence in the light most favor-
able to sustaining the jury’s verdict and the jury’s right to
make determinations of witness credibility,’’ and noted
that ‘‘the jury could have reasonably concluded that
[the plaintiffs] were [not] credible witnesses.’’ Never-
theless, in reaching its decision to award the plaintiffs
most of their claimed economic damages, ‘‘the jury must
have credited and relied on some evidence. Because the
jury explicitly awarded damages based on the plaintiffs’
medical costs, the court conclude[d] that the jury must
have, at a minimum, credited those records.’’ As a corol-
lary to this conclusion, the trial court determined that,
‘‘by necessary implication, [the jury must have] con-
cluded that the treatments set forth in those bills were
necessary and reasonable, and that the injuries being
treated during those visits were proximately caused by
the defendant’s negligence.’’
The trial court’s memorandum of decision demon-
strates that it thoroughly reviewed the plaintiffs’ medi-
cal records. The trial court described the specific nature
of the medical expenses incurred by the plaintiffs and
noted that each plaintiff had undergone months of chi-
ropractic care, which included manipulation of the
spine and neck, application of hot and cold packs, elec-
trical stimulation, and an epidural steroid injection in
the lumbar region. The trial court observed, among
other things, that, although there was a disagreement
between the expert witnesses regarding the nature and
severity of the plaintiffs’ injuries, they agreed that the
plaintiffs had sustained ‘‘sprains and/or strains to their
neck and lumbar regions’’ as a result of the motor vehi-
cle collision. The trial court determined that ‘‘the inher-
ent, underlying symptoms necessary to make these
treatments ‘reasonable and necessary’ in the eyes of the
jury, as well as the treatments themselves, all bespeak
a level of physical pain suffered by [the plaintiffs]. Even
though the jury did not award the plaintiffs all of their
claimed medical expenses, the jury did award the plain-
tiffs the vast majority of those expenses and did so
with such exactitude that the court can reach no other
conclusion than that the jury concluded [that] those
treatments were reasonable and necessary. It would be
illogical and inconsistent to conclude that the treat-
ments credited by the jury were reasonable and neces-
sary but that they were not made so because of any
neck or back pain suffered by the plaintiffs.’’
We conclude that the foregoing articulation of the
trial court’s grounds for granting the plaintiffs’ joint
motion for additurs was sufficient to permit appellate
review. On the basis of the trial court’s explanation, a
reviewing court is able to identify the evidence and jury
findings that the trial court believed, in the exercise of
its discretion, warranted the relief granted. Because a
reviewing court can assess the trial court’s reasoning
for logical or legal flaws and determine whether the trial
court abused its discretion by ordering the additurs,
we disagree with the Appellate Court that the trial court
failed to identify ‘‘the specific facts that would justify
an additur’’ award for each plaintiff.17 Maldonado v.
Flannery, supra, 200 Conn. App. 8.
B
Trial Court Did Not Abuse Its Discretion by Granting
the Plaintiffs’ Joint Motion for Additurs
We next address whether the trial court abused its
discretion by granting the plaintiffs’ joint motion for
additurs. At trial, the defendants admitted that Flannery
negligently rear-ended the plaintiffs’ motor vehicle
because she ‘‘fail[ed] to keep a proper lookout . . . .’’
Thus, the sole issues to be decided by the jury were
causation and damages, i.e., whether the plaintiffs sus-
tained damages in the accident that were proximately
caused by Flannery’s negligence. With respect to causa-
tion and damages, the expert witnesses for both the
defendants and the plaintiffs agreed that Flannery’s neg-
ligence caused the plaintiffs to incur personal injuries
that necessitated medical treatment. As the trial court
pointed out, the defendants’ own expert witness, Lie-
ponis, testified ‘‘that both plaintiffs sustained sprains
and/or strains to their neck and lumbar regions’’ and
disputed only ‘‘the extent [and permanency] of the plain-
tiffs’ injuries . . . .’’
With respect to Maldonado, Lieponis testified: ‘‘[He]
sustained musculoskeletal injuries to the cervical, tho-
racic, and, to a lesser degree, the thoracic spine. It is
reasonable and appropriate to treat these [injuries] with
either physical therapy or chiropractic care, which he
received. It is reasonable and appropriate, based on
persistent symptoms, to obtain an MRI, which [Maldo-
nado] did, and I would attribute the need for that MRI
to the motor vehicle accident. I think, in this particular
case, the continued use of chiropractic care without
significant improvement was to a degree beyond what
I would have recommended or what I believe is the
standard of care for the management of this type of
problem.’’ In Lieponis’ expert medical opinion, Maldo-
nado had not suffered a permanent medical impairment
and would not need ‘‘any future treatment directly
attributable to the motor vehicle accident.’’
Similarly, Lieponis testified that Hernandez had ‘‘sus-
tained a strain of the spine that included the cervical,
thoracic, and lumbar areas.’’ Lieponis believed that the
‘‘[d]iagnostic tests that . . . Hernandez had, including
the MRI, [were] reasonable and attributable to the
motor vehicle accident’’ and that it was reasonable and
appropriate to treat his injuries ‘‘with either physical
therapy or chiropractic modalities’’ for ‘‘a six to nine
month period of time . . . .’’ However, in Lieponis’
expert medical opinion, the ‘‘close to fifty chiropractic
treatments’’ Hernandez underwent were ‘‘outside what
[he] would typically expect in terms of continuing treat-
ment without significant improvement, without refer-
ring to another physician . . . to determine why the
patient was not responding to the treatment that was
being rendered.’’ Lieponis did not believe that Hernan-
dez suffered a permanent medical impairment as a
result of the accident or that future medical treatment
was necessary.
In addition to the expert medical testimony, the jury
was presented with exhibits documenting the plaintiffs’
medical treatment. As the trial court observed in its
memorandum of decision, these exhibits show that Mal-
donado was ‘‘treated at New Britain Injury & Spine
approximately sixty-two times’’ between the date of the
accident and August, 2018. These treatments ‘‘involved
chiropractic manipulation of . . . Maldonado’s spine
and neck, application of hot and cold packs, electrical
stimulation, and, on occasion, mechanical traction.’’
Similarly, Hernandez was ‘‘treated at New Britain
Injury & Spine approximately forty-nine times’’ after
the accident. ‘‘These treatments involved chiropractic
manipulation of . . . Hernandez’ spine and neck, appli-
cation of hot and cold packs, and electrical stimulation.’’
Furthermore, ‘‘on one occasion, both . . . Maldonado
and . . . Hernandez received epidural steroid injec-
tions in their lumbar regions . . . .’’
On the basis of the foregoing evidence, the jury found
in favor of the plaintiffs and awarded Maldonado $17,228.38
of $18,953.38 of his claimed medical expenses and $1800
in future economic damages. The jury awarded Hernan-
dez $11,864.94 of $13,254.94 of his claimed medical
expenses. According to the verdict form, the jury
awarded the plaintiffs all of their claimed medical
expenses for their visits to the Hospital of Central Con-
necticut on the day of the accident, as well as their
subsequent MRIs, X-rays, and physical therapy. With
respect to the plaintiffs’ chiropractic treatment, the jury
awarded Maldonado $7035 of his $8760 in claimed medi-
cal expenses and Hernandez $5670 of his $7060 in
claimed medical expenses. The trial court determined
that these ‘‘slight reductions’’ to the plaintiffs’ claimed
chiropractic costs demonstrated that ‘‘the jury was not
making these reductions in a generalized way. Instead,
the jury was choosing not to credit individual [chiro-
practic] treatments, [and], by the same token, was spe-
cifically choosing to credit others.’’ The trial court there-
fore concluded ‘‘that the jury, at a minimum, credited
the plaintiffs’ medical bills and, by necessary implica-
tion, concluded that the treatments set forth in those
bills were necessary and reasonable and that the injur-
ies being treated during those visits were proximately
caused by [Flannery’s] negligence.’’ Because these med-
ical treatments, which were reasonable and necessary
‘‘in the eyes of the jury,’’ inherently ‘‘bespeak a level of
physical pain suffered by [the plaintiffs],’’ the trial court
held that ‘‘[i]t would be illogical and inconsistent to
conclude that the treatments credited by the jury were
reasonable and necessary but that they were not made
so because of any neck or back pain suffered by the
plaintiffs.’’ Accordingly, the trial court granted the plain-
tiffs’ joint motion for additurs.
We conclude that the trial court did not abuse its
discretion by granting the plaintiffs’ joint motion for
additur. As the foregoing recitation of facts reflects, the
jury necessarily credited the plaintiffs’ medical bills
and/or the testimony of the defendants’ expert witness,
both of which support the jury’s finding that the plain-
tiffs suffered back injuries as a result of the accident
that necessitated medical treatment. The trial court rea-
sonably concluded that the inherent purpose of this
medical treatment, which included chiropractic manip-
ulations and epidural steroid injections, was to treat
pain and suffering. Stated another way, the plaintiffs’
medical treatments were not merely ‘‘diagnostic or pro-
phylactic measure[s]’’ from which the jury reasonably
could have found that the plaintiffs experienced no
pain. Micalizzi v. Stewart, 181 Conn. App. 671, 686,
188 A.3d 159 (2018); see id., 687 (jury reasonably con-
cluded that plaintiff did not experience any compensa-
ble pain related to accident because medical expenses
were for diagnostic and prophylactic treatment).
Instead, on the present factual record, the jury awarded
the plaintiffs economic expenses for medical treatment,
‘‘the purpose of which was to alleviate pain and to
improve functioning . . . .’’ Fileccia v. Nationwide
Property & Casualty Ins. Co., 92 Conn. App. 481, 489,
886 A.2d 461 (2005), cert. denied, 277 Conn. 907, 894
A.2d 987 (2006); see id. (jury verdict ‘‘finding that the
plaintiff, by virtue of the accident, had suffered an injury
requiring treatments and medication, the purpose of
which was to alleviate pain and to improve functioning,’’
was inconsistent with award of zero noneconomic dam-
ages). It is inconsistent for the jury to conclude, on the
one hand, that the plaintiffs suffered personal injuries
in the accident that necessitated this type of medical
treatment but, on the other hand, that the plaintiffs
experienced no pain or suffering as a result of the acci-
dent that warranted an award of noneconomic dam-
ages. Because the trial court could have reasonably
concluded that the jury’s verdict was inconsistent on
this particular factual record, its decision to grant the
plaintiffs’ joint motion for additurs was not an abuse
of discretion.
The dissent posits that a jury is not required to find
that ‘‘any instance of pain and suffering’’ is compensa-
ble and that the jury can choose to award zero damages
for pain and suffering proximately caused by a tortfea-
sor’s negligence. (Emphasis in original.) Footnote 1 of
the dissenting opinion. Relatedly, the dissent suggests
that the jury rationally may have found that the plaintiffs
sustained injuries resulting from Flannery’s negligence
but nonetheless experienced no ‘‘compensable’’ pain
and suffering on the theory that their pain and suffering
was so ‘‘brief or innocuous’’ that no compensation was
required. Id. These claims are flawed in four respects.
First, the very notion of noncompensable pain and
suffering is inconsistent with the manner in which the
parties litigated the case and the trial court instructed
the jury. Consistent with our civil jury instructions, the
trial court instructed the jury that the plaintiffs were
entitled ‘‘to receive fair, just and reasonable compensa-
tion for all injuries and losses that are proximately
caused by the defendant’s negligence.
***
‘‘A plaintiff who is injured by the negligence of
another is entitled to be compensated for all physical
pain and suffering, and mental and emotional suffering,
and the loss of the ability to enjoy life’s pleasures that
are legally caused by the defendant’s negligence. . . .
‘‘A plaintiff who is injured by the negligence of
another is entitled to be compensated for mental suffer-
ing caused by the defendant’s negligence for the results
that proximately flow from it in the same manner as the
plaintiffs are for physical suffering.’’ (Emphasis added.)
See footnote 14 of this opinion. The jury was not free
to disregard the trial court’s instructions on the law.
Second, the dissent cites no authority from this court
that would allow a jury to refuse to award any damages
upon determining that a defendant’s negligence caused
a plaintiff pain, or only minor or brief pain. We have
located no precedent of this court to support that novel
proposition. To the contrary, the purpose of an award
of compensatory damages ‘‘is to restore an injured party
to the position he or she would have been in if the
wrong had not been committed.’’ (Internal quotation
marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280
Conn. 225, 248, 905 A.2d 1165 (2006). To accomplish
this purpose, a plaintiff must recover all of the damages
suffered as a result of a tortfeasor’s negligence, regard-
less of whether those damages are economic or noneco-
nomic in nature. See, e.g., First Federal Savings & Loan
Assn. of Rochester v. Charter Appraisal Co., 247 Conn.
597, 604, 724 A.2d 497 (1999) (it is ‘‘[a] well established
proposition that a tortfeasor is liable for all damages
proximately caused by its negligence’’). To conclude
otherwise risks condoning jury compromise or nullifi-
cation and undermining the principles animating tort
law, namely, ‘‘compensation of innocent parties, shift-
ing the loss to responsible parties or distributing it
among appropriate entities, and deterrence of wrongful
conduct . . . .’’ (Internal quotation marks omitted.)
Doe v. Cochran, 332 Conn. 325, 363, 210 A.3d 469 (2019);
see footnote 15 of this opinion.
Third, putting aside the dubious legal validity of the
dissent’s theory, the evidence in the present case does
not support a reasonable inference that the plaintiffs’
injuries were either brief or innocuous. The plaintiffs’
treatment was lengthy in duration, lasting approxi-
mately two years for Maldonado and eight months for
Hernandez. The nature of the plaintiffs’ injuries, which
the jury reasonably and necessarily found required such
invasive treatment as electrical stimulation, mechanical
traction, and epidural steroid injections, cannot accu-
rately be characterized as innocuous. See Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2004) p. 645
(defining ‘‘innocuous’’ as ‘‘producing no injury’’ or
‘‘harmless’’).
Fourth, to the extent that the dissent suggests that
the jury reasonably could have found that the plaintiffs
suffered no pain or suffering, we also disagree. The
very medical records on which the jury must have relied
to award the plaintiffs their medical expenses demon-
strate unequivocally that pain was the precipitating and
ongoing reason for the treatment that the jury found
to be compensable.18 Indeed, although the dissent
reminds us that ‘‘ ‘we must examine the evidential basis
of the verdict itself to determine whether the trial court
abused its discretion,’ ’’ it then provides a theoretical
explanation for the jury’s split verdict without reference
to the particular evidentiary record in this case. Our
own examination of the evidentiary record leads us to
conclude that the trial court acted within its discretion
when it determined that the jury could not consistently
have found, on the one hand, that the aforementioned
medical treatments were reasonable and necessary and,
on the other hand, that the plaintiffs suffered no pain
and suffering.
We also reject the defendants’ argument that the
Appellate Court properly reversed the judgment of the
trial court on the basis of the plaintiffs’ ‘‘conflicting and
inconsistent’’ testimony; Maldonado v. Flannery, supra,
200 Conn. App. 10; which the jury reasonably could
have found ‘‘lacked credibility.’’ Id., 13. The trial court
explicitly acknowledged that ‘‘the jury could have rea-
sonably concluded that [the plaintiffs] were [not] credi-
ble witnesses.’’ The trial court was ‘‘[c]onscious of its
obligation to view the evidence in the light most favor-
able to sustaining the jury’s verdict and the jury’s right
to make determinations of witness credibility,’’ and,
therefore, did not rely on the plaintiffs’ conflicting or
inconsistent testimony in ruling on the plaintiffs’ joint
motion for additurs. Instead, the trial court relied on
the findings of harm and causation necessarily inherent
in the jury’s verdict awarding the plaintiffs’ claimed
damages for the treatment reflected in their respective
medical bills, which the court reasonably determined
the jury must have credited to arrive at its verdict and
award in favor of the plaintiffs.
The defendants also contend that the trial court’s
additur award was improper under Wichers because
the plaintiffs both had preexisting back and neck condi-
tions, which the jury reasonably could have found were
the cause of their pain and suffering following the 2016
collision. We reject this claim. As we previously
explained, Wichers did not establish a per se rule auto-
matically requiring or prohibiting a trial court from
awarding an additur of noneconomic damages. Instead,
Wichers rejected the Johnson per se rule declaring all
split verdicts inconsistent as a matter of law and
replaced it with a more flexible, fact sensitive approach.
See Wichers v. Hatch, supra, 252 Conn. 181 (stating that
‘‘a case-specific standard should apply to the instance
in which a party seeks to have a verdict set aside on
the basis that it is legally inadequate’’).
Wichers is factually distinguishable from the present
case because the plaintiff in that case was receiving
medical treatment ‘‘as part of a monthly maintenance
program’’ for a preexisting neck impairment at the time
of the accident. Id., 177. The plaintiff’s antecedent neck
impairment, which was both traumatic and organic in
origin, caused the plaintiff to suffer ongoing pain and
‘‘a reduced range of motion’’ at the time of the accident.
Id. In light of the plaintiff’s preexisting medical condi-
tion and ongoing medical treatment, we reasoned that
‘‘the jury could have accepted the evidence 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 actually to suffer greater
pain than he already had experienced as a result of
his preexisting condition. Certainly, the jury reasonably
could have found that the accident had not aggravated
the plaintiff’s condition, and that his pain was the same
as what he had experienced before his accident with
the defendant. Thus, there was a sufficient evidentiary
basis for the jury’s verdict.’’ Id., 189–90.19
Unlike the plaintiff in Wichers, neither Maldonado
nor Hernandez was undergoing medical treatment for
a preexisting medical condition at or near the time the
defendant negligently rear-ended their motor vehicle.
Although there was evidence that both plaintiffs had
degenerative disc changes of nontraumatic etiology,
and that Maldonado had received treatment for a back
and neck injury sustained in a motor vehicle accident
in 2014 and ‘‘chronic pain/sciatica’’ in 2015, the parties
presented no evidence from which the jury reasonably
could have found that the pain associated with the
injuries for which the plaintiffs were treated following
the 2016 collision was the same in nature or degree as
that related to any preexisting conditions.20 On the basis
of the evidence admitted at the trial, the jury could not
have found that it was reasonable and necessary for
the plaintiffs to undergo months of chiropractic manipu-
lations and a steroid injection as a result of the injuries
sustained in 2016 and, at the same time, that the plain-
tiffs suffered no compensable pain as a result of these
injuries. Because the factual record in the present case
contains no ‘‘reasonable basis in the evidence for the
jury’s [split] verdict’’; (internal quotation marks omit-
ted) Wichers v. Hatch, supra, 252 Conn. 189; the trial
court did not abuse its discretion by granting the plain-
tiffs’ joint motion for additurs.
V
CONCLUSION
After a careful review of the record, we conclude
that the trial court did not abuse its discretion by grant-
ing the plaintiffs’ joint motion for additurs. Because the
defendants declined to accept the trial court’s additur
award; see footnote 7 of this opinion; a new trial is
required.21
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
remand the case to the trial court for a new trial as to
causation and damages only.
In this opinion McDONALD, D’AURIA and KAHN, Js.,
concurred.
1
Kelly C. Flannery’s father, Michael T. Flannery, is also a defendant in
this case. We refer to Kelly C. Flannery and Michael T. Flannery collectively
as the defendants and to Kelly C. Flannery individually as Flannery.
2
The plaintiffs’ claim for economic damages included emergency care at
the Hospital of Central Connecticut the day of the accident, as well as the
subsequent MRI scans, chiropractic treatment, physical therapy, epidural
steroid injections, and Maldonado’s X-rays.
3
Maldonado also testified that he had been involved in a prior motor
vehicle accident in 2014, after which he received chiropractic treatment for
approximately two months. The medical records from Maldonado’s previous
treatment were admitted into evidence at trial. Those records indicate that
the prior accident occurred on April 6, 2014. Maldonado received chiroprac-
tic treatment for lower back pain from Dr. Michael Yoel beginning on April
15, 2014, and ending on June 5, 2014. Yoel’s final treatment note provides
in relevant part that Maldonado was ‘‘feeling better and seems to be doing
okay’’ and that ‘‘no further therapy is felt to be necessary.’’
4
Pollack assigned a 7 percent impairment rating to Maldonado and 5
percent impairment rating to Hernandez.
5
During cross-examination, the defendants’ counsel attacked Maldonado’s
credibility in connection with numerous aspects of his testimony. For exam-
ple, Maldonado first denied going to the hospital after his prior 2014 accident.
On cross-examination, however, the defendants’ counsel introduced hospital
records showing that Maldonado had visited the hospital after the 2014
accident. Maldonado then altered his testimony and said that he could not
remember if he had visited the hospital in 2014. Describing the 2016 accident,
Maldonado initially testified that, while he was approaching a red light in
his vehicle, he saw the defendants’ car approaching quickly from behind
and did not have time to move out of the way. However, during cross-
examination, Maldonado testified that he looked back and tried to avoid
the approaching vehicle. As for Hernandez, the defendants’ counsel elicited
admissions that he has a history of drug use, several felony convictions,
and memory problems. The defendants’ counsel argued to the jury that
Hernandez’ memory problems undermined the accuracy of his testimony.
6
The jury awarded Maldonado medical costs in the amount of $7035 for
the treatment at New Britain Injury & Spine and $943 for the treatment at
Jefferson Radiology, for a total award of $7978 in connection with these two
treatment providers. The jury awarded Hernandez $5670 for the treatment
at New Britain Injury & Spine and $937 for the treatment at Jefferson
Radiology, for a total award of $6607 in connection with these two treat-
ment providers.
7
The defendants neither accepted nor expressly rejected the additur. We
construe the defendants’ failure to accept the additur as the equivalent of
a rejection. See, e.g., Snell v. Beamon, 82 Conn. App. 141, 144, 842 A.2d
1167 (2004) (failure to accept additur within time allotted by trial court
resulted in new trial limited to issue of damages).
8
We granted the plaintiffs’ petition for certification to appeal, limited to
the following issue: ‘‘Did the Appellate Court correctly conclude that the
trial court had abused its discretion in ordering additurs in favor of both
of the plaintiffs?’’ Maldonado v. Flannery, 335 Conn. 967, 240 A.3d 284 (2020).
9
In addition to our case law on the subject, the legislature has enacted
various statutes over the years, beginning during the colonial era, regarding
the judicial power to set aside a jury verdict in a civil case. See Bissell v.
Dickerson, 64 Conn. 61, 64–69, 29 A. 226 (1894) (providing detailed discussion
of various statutes enacted between 1644 and 1893 that conferred statutory
authority to certain courts—including, for brief period of time, to Supreme
Court—to rule on motions to set aside jury verdicts as against weight of
evidence). More recently, the legislature has enacted a number of statutes
specifically relating to the procedure (and, in some cases, the standards)
for setting aside a jury’s award of damages as excessive or inadequate. See
General Statutes §§ 52-216a, 52-228, 52-228a, 52-228b and 52-228c.
Section 52-228b, which is directly applicable to the present case, provides
that ‘‘[n]o verdict in any civil action involving a claim for money damages
may be set aside except on written motion by a party to the action, stating
the reasons relied upon in its support, filed and heard after notice to the
adverse party according to the rules of the court. No such verdict may be
set aside solely on the ground that the damages are excessive unless the
prevailing party has been given an opportunity to have the amount of the
judgment decreased by so much thereof as the court deems excessive. No
such verdict may be set aside solely on the ground that the damages are
inadequate until the parties have first been given an opportunity to accept
an addition to the verdict of such amount as the court deems reasonable.’’
Because this statute merely codifies the common law, it provides no useful
substantive guidance regarding the proper legal standard for determining
when a jury’s award of damages is inadequate or an additur is appropriate.
Cf. Wichers v. Hatch, 252 Conn. 174, 187, 745 A.2d 789 (2000) (noting that
§ 52-216a is codification of common-law standard governing motions to set
aside verdict as excessive or inadequate).
10
Many Connecticut cases, especially those of an earlier vintage, speak
in terms of the ‘‘ ‘manifest injustice of the verdict’ ’’ that would ‘‘ ‘justify the
suspicion’ ’’ that the jury was influenced (or swayed) by improper considera-
tions. Steinert v. Whitcomb, supra, 84 Conn. 263. These cases characterize
the inquiry as follows: ‘‘Our rule governing the action of the trial court over
verdicts is perfectly clear. ‘It should not set aside a verdict whe[n] it is
apparent that there was some evidence [on] which the jury might reasonably
reach [its] conclusion, and should not refuse to set it aside [when] the
manifest injustice of the verdict is so plain and palpable as clearly to denote
that some mistake was made by the jury in the application of legal principles,
or as to justify the suspicion that [either the jury] or some of [the jurors]
were influenced by prejudice, corruption, or partiality.’ ’’ Id., quoting Burr
v. Harty, 75 Conn. 127, 129, 52 A. 724 (1902). We perceive no significance
between these slightly different formulations of the same inquiry.
11
There are scores of unpublished or unofficially reported Connecticut
trial court decisions over the past twenty years adjudicating postverdict
motions to set aside a jury’s verdict as inadequate in split verdict cases. It
is reasonable to believe that more such verdicts, perhaps many more, have
occurred without being recorded in a published opinion. Whatever the exact
number, the situation arises frequently enough that the Superior Court judges
have promulgated a specific jury instruction that a trial court may use when
a jury returns such a verdict, which provides: ‘‘Ladies and [g]entlemen, I
have reviewed your verdict and see that you have found in favor of the
plaintiff and awarded economic damages, but have awarded zero [noneco-
nomic] damages. [Although] that is a possible verdict, some might argue
that it is inconsistent to say that a person was injured enough to incur
(medical expenses/lost wages), but experienced no pain and suffering or
other [noneconomic] damages. On the other hand, you may have concluded
that [although] the plaintiff proved (his/her) economic damages, (he/she)
failed to prove the claimed [noneconomic] damages.
‘‘To help eliminate any concerns either party might have, I am going to
ask you to go back and review your verdict. In addition to my instructions
regarding the plaintiff’s burden of proving damages you should also remem-
ber my instruction that even momentary pain and suffering [are] compensa-
ble.
‘‘Now, in sending you back for further deliberations, I am in no way
suggesting that you should change your verdict. I am simply asking you to
review your thought processes once more to make sure you have considered
all relevant factors. I am giving you a new verdict form, which you should
use if you decide to change your verdict.’’ Connecticut Civil Jury Instructions
3-4.9, available at https://www.jud.ct.gov/ji/civil/Civil.pdf (last visited April
26, 2022).
The Committee Notes advise that ‘‘[j]udges are not required to give this
charge, but they have the discretion to do so pursuant to General Statutes
§ 52-223.’’ Id. Section § 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.’’
12
See Childs v. Bainer, supra, 235 Conn. 116 (upholding trial court’s refusal
to order additur or new trial when jury awarded plaintiff approximately one
fifth of claimed economic damages and zero noneconomic damages because
‘‘the cause, nature, and extent of the plaintiff’s injuries were ‘hotly con-
tested’ ’’); Ginsberg v. Fusaro, 225 Conn. 420, 430, 432, 623 A.2d 1014 (1993)
(upholding trial court’s refusal to order additur or new trial after jury
awarded only small portion of plaintiff’s claimed economic damages and zero
noneconomic damages because issue of causation ‘‘was hotly contested’’).
13
In the wake of Wichers, the Appellate Court has had many opportunities
to review trial court rulings on motions to set aside split verdicts. See
Micalizzi v. Stewart, 181 Conn. App. 671, 682–94, 188 A.3d 159 (2018)
(upholding trial court’s denial of motion for additur); Cusano v. Lajoie, 178
Conn. App. 605, 613–14, 176 A.3d 1228 (2017) (reversing trial court’s grant
of motion for additur); DeEsso v. Litzie, 172 Conn. App. 787, 794–804, 163
A.3d 55 (upholding trial court’s denial of motion for additur), cert. denied,
326 Conn. 913, 173 A.3d 389 (2017); Melendez v. Deleo, 159 Conn. App. 414,
424, 123 A.3d 80 (2015) (upholding denial of motion for additur and/or to
set aside verdict); Sigular v. Gilson, 141 Conn. App. 581, 592–94, 62 A.3d
564 (upholding trial court’s denial of motion to set aside verdict), cert.
granted, 308 Conn. 948, 67 A.3d 291 (2013) (appeal withdrawn August 1,
2013); Silva v. Walgreen Co., 120 Conn. App. 544, 560, 992 A.2d 1190 (2010)
(reversing trial court’s grant of motion for additur); Benedetto v. Zaku, 112
Conn. App. 467, 473–74, 963 A.2d 94 (2009) (upholding trial court’s grant of
motion for additur); Lombardi v. Cobb, 99 Conn. App. 705, 709–10, 915 A.2d
911 (2007) (upholding trial court’s grant of motion for additur); Fileccia v.
Nationwide Property & Casualty Ins. Co., 92 Conn. App. 481, 485–91, 886
A.2d 461 (2005) (reversing trial court’s denial of motion for additur), cert.
denied, 277 Conn. 907, 894 A.2d 987 (2006); Smith v. LeFebre, 92 Conn. App.
417, 427, 885 A.2d 1232 (2005) (reversing trial court’s grant of motion for
additur); Turner v. Pascarelli, supra, 88 Conn. App. 730–31 (reversing trial
court’s grant of motion for additur); Schettino v. Labarba, 82 Conn. App.
445, 449–50, 844 A.2d 923 (2004) (reversing trial court’s grant of motion for
additur); Snell v. Beamon, 82 Conn. App. 141, 147, 842 A.2d 1167 (2004)
(upholding trial court’s grant of motion for additur); Elliott v. Larson, 81
Conn. App. 468, 476–78, 840 A.2d 59 (2004) (upholding trial court’s grant of
motion for additur); Santa Maria v. Klevecz, 70 Conn. App. 10, 12–16, 800
A.2d 1186 (2002) (upholding trial court’s denial of motion to set aside ver-
dict). Given the fact specific nature of the Appellate Court’s analyses, and
the divergent conclusions reached, a comprehensive review and reconcilia-
tion of these cases are outside the scope of this opinion.
14
The jury was instructed in accordance with the standard jury instruction
regarding damages in a negligence case, which provides in relevant part:
‘‘The rule of damages is as follows. Insofar as money can do it, the plaintiff
is to receive fair, just and reasonable compensation for all injuries and
losses, past and future, which are proximately caused by the defendant’s
proven negligence.
***
‘‘A plaintiff who is injured by the negligence of another is entitled to be
compensated for all physical pain and suffering, mental and emotional
suffering, loss of the ability to enjoy life’s pleasures, and permanent impair-
ment or loss of function that (he/she) proves by a fair preponderance of
the evidence to have been proximately caused by the defendant’s negli-
gence. . . .
‘‘A plaintiff who is injured by the negligence of another is entitled to be
compensated for mental suffering caused by the defendant’s negligence for
the results which proximately flow from it in the same manner as (he/she)
is for physical suffering. . . .’’ (Emphasis added.) Connecticut Civil Jury
Instructions 3.4-1, available at https://jud.ct.gov/JI/Civil/Civil.pdf (last visited
April 26, 2022). The defendants do not claim that this jury instruction was
erroneous. Nor do they claim that the plaintiffs were not entitled to compen-
sation for all of the pain and suffering proximately caused by Flannery’s
negligence.
We agree with the dissent that the amount of noneconomic damages is
a matter ‘‘ ‘peculiarly within the province of the [trier] . . . .’ ’’ See, e.g.,
Manning v. Michael, 188 Conn. 607, 616, 452 A.2d 1157 (1982). This is
particularly true in personal injury and wrongful death actions because of
the difficulties inherent in placing a monetary value on noneconomic losses.
See, e.g., Vajda v. Tusla, 214 Conn. 523, 533, 572 A.2d 998 (1990) (recognizing
that ‘‘[a]n award of damages for pain and suffering is peculiarly within the
province of the trier of fact’’ and ‘‘that it is difficult to measure pain and
suffering in terms of money’’); McKirdy v. Cascio, 142 Conn. 80, 84–85, 111
A.2d 555 (1955) (‘‘[T]he problem of estimating damages for the loss of . . .
life with any exactness is . . . one beset with insurmountable difficulties.
. . . For this reason we have frequently said that the amount of damages
recoverable in actions for death is peculiarly within the province of the
jury.’’ (Citation omitted; internal quotation marks omitted.)). But, when, as
here, the evidence necessarily credited by the jury establishes the existence
of such harm, our law is clear that the plaintiff is legally entitled to be
compensated. The fact that noneconomic damages ‘‘cannot be computed
by a mathematical formula . . . [and] there is no [ironclad] rule for the
assessment of damages’’ does not relieve the jury from quantifying, to the
best of its ability, the amount of damages to which the plaintiff is entitled.
(Internal quotation marks omitted.) Vajda v. Tusla, supra, 533. So long as
the amount awarded ‘‘falls somewhere within the necessarily uncertain
limits of just damages,’’ the jury’s award is reasonable. McKirdy v. Cascio,
supra, 86. Stated another way, it is up to the jury to determine the amount
of noneconomic damages to award a plaintiff for pain and suffering, but,
once the existence of pain and suffering is established, the jury is not free
to award zero damages as compensation.
15
In certain circumstances, for example, the split verdict may reflect a
jury compromise in which ‘‘some of the jurors . . . conceded liability
against their judgment, and some . . . reduced their estimate of the dam-
ages in order to secure an agreement of liability with their fellow jurors.’’
(Internal quotation marks omitted.) George v. Ericson, 250 Conn. 312, 333,
736 A.2d 889 (1999). Or, it may reflect a form of jury nullification in which
the jury refused, for whatever reason, to award the plaintiff the damages
to which he or she legally is entitled on the basis of the jury’s findings on
issues of liability, causation, and medical expenses. See, e.g., Todd v. Bercini,
371 Pa. 605, 607–608, 92 A.2d 538 (1952) (‘‘If [the plaintiff] was entitled to
a verdict from the defendant because of the injuries he inflicted [on] her
as the result of his negligence, she was entitled to all that the law provides
in such a case. And the items of pain, suffering and inconvenience, as
well as loss of wages and impairment of earning power, are inevitable
concomitants with grave injuries when suffered by a [wage earner]. A jury
may not eliminate pain from wounds when all human experience proves
the existence of pain, and it may not withhold lost wages when the evidence
in the case uncontradictedly establishes the loss of wages as the result
of the negligence [that] they, the jur[ors], have adjudicated against the
responsible defendant. When it is apparent that a jury by its verdict holds the
defendant responsible for a whole loaf of bread, it may not then neglectfully,
indifferently, or capriciously cut off a portion of that loaf as it hands it to
the plaintiff.’’ (Emphasis in original.)).
16
It is not entirely clear whether the Appellate Court concluded that the
trial court had failed to articulate the evidentiary basis for its threshold
conclusion that the jury’s award was unreasonable or, rather, whether the
deficiency lay in the trial court’s failure to articulate the evidentiary basis
for the specific amount of the additur awarded to the plaintiffs (i.e., $8000
to Maldonado and $6500 to Hernandez). The passage quoted in the text
accompanying this footnote indicates that the problem existed in the trial
court’s threshold determination of unreasonableness. See Maldonado v.
Flannery, supra, 200 Conn. App. 8 (observing that trial court failed to
‘‘delineate the specific facts that led to its decision to grant the plaintiffs’
joint motion for additurs’’). At another point, however, the Appellate Court
states that ‘‘the [trial] court’s memorandum of decision granting the plaintiffs’
joint motion for additurs lacks the necessary identification of the specific
facts that would justify an additur of $8000 to Maldonado and $6500 to
Hernandez.’’ Id. We focus on the adequacy of the trial court’s explanation
for its threshold determination that the jury’s verdict was unreasonable
because the articulation requirement exists to facilitate appellate review of
that particular determination. See Saleh v. Ribeiro Trucking, LLC, supra,
303 Conn. 284 (trial court is required to ‘‘explain the specific reasons that
led the court to conclude that the award shocked the conscience of the
court’’); cf. Wichers v. Hatch, supra, 252 Conn. 189 (requiring trial court to
examine ‘‘[t]he evidential underpinnings’’ to determine whether there is
reasonable basis in evidence to support jury’s verdict (internal quotation
marks omitted)). Nonetheless, we address the defendant’s challenge regard-
ing the amount of the additurs in footnote 17 of this opinion.
17
The defendants contend that the trial court’s memorandum of decision
‘‘provide[s] no basis whatsoever justifying or explaining’’ the amount of
noneconomic damages awarded to the plaintiffs: $8000 to Maldonado and
$6500 to Hernandez. We disagree. The trial court explained that these
amounts were calculated on the basis of ‘‘the medical bills from New Britain
Injury & Spine and Jefferson Radiology [that] the jury necessarily credited
in its verdict.’’ This explanation certainly is sufficient to permit appellate
review. See footnote 6 of this opinion.
Alternatively, the defendants contend, without citation to legal authority,
that an additur award in the amount of one dollar of noneconomic damages
for every one dollar of medical expenses awarded by the jury is excessive
because ‘‘[a]n award of less than one dollar for pain and suffering for
every dollar of . . . treatment for pain would have been constitutionally
permissible.’’ This claim is inadequately briefed, and, therefore, we decline to
address it. See, e.g., Connecticut Coalition Against Millstone v. Connecticut
Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008) (‘‘[When] an issue is
merely mentioned, but not briefed beyond a bare assertion of the claim, it
is deemed to have been waived. . . . [M]ere conclusory assertions regarding
a claim, with no mention of relevant authority and minimal or no citations
from the record, will not suffice.’’ (Citation omitted; internal quotation marks
omitted.)).
18
The epidural steroid injections are the most salient example of pain
treatment credited by the jury. The referring provider determined that an
epidural steroid injection was appropriate in light of ongoing lumbar pain,
and we are not aware of any evidence suggesting an alternative explanation
for that treatment. More broadly, the medical records are replete with refer-
ences to the plaintiffs’ pain symptoms that prompted the rendering of medi-
cal care, beginning with the initial visit to the hospital emergency room.
The hospital records also reflect that the plaintiffs both were prescribed anti-
inflammatory medication and muscle relaxants, all of which were ordered
to treat pain. Likewise, the medical records demonstrate that the chiropractic
treatment found to be necessary by the jury was rendered for the purpose
of alleviating the plaintiffs’ back and neck pain.
19
The dissent expresses concern that our holding today represents a
‘‘retreat’’ from Wichers. The concern is groundless—Wichers remains good
law, the principles articulated therein remain valid, and its holding applies
to cases involving comparable factual circumstances. To be clear, however,
nothing in Wichers or any other case decided by this court suggests that a
trial court must deny a motion for additur, even though it discerns an
inconsistency in a split verdict that cannot be explained under any reason-
able view of the evidentiary record. Wichers acknowledges this limitation
on a court’s deference to the jury’s verdict in the very language quoted by
the dissent: ‘‘ ‘[T]he conclusion of a jury, if one at which honest [jurors]
acting fairly and intelligently might arrive reasonably, must stand . . . .’ ’’
(Emphasis added.), quoting Wichers v. Hatch, supra, 252 Conn. 189. We
have emphasized throughout this opinion that the watchword in this context
is reasonableness.
20
Indeed, there is no evidence in the record indicating that Hernandez
ever experienced any back or neck pain prior to the 2016 collision. Nor is
there any evidence that he ever was treated for any back or neck condition
prior to the collision.
21
‘‘Ordinarily the reversal of a jury verdict requires a new trial of all the
issues in the case,’’ unless there is ‘‘error as to one issue . . . [that] is
separable from the general issues . . . .’’ (Internal quotation marks omit-
ted.) Schroeder v. Triangulum Associates, supra, 259 Conn. 334. As we
explained in Schroeder, ‘‘issues of liability and damages are not separable
but instead are inextricably interwoven . . . thus requiring a new trial as
to both liability and damages unless the court can clearly see that this is
the way of doing justice in [a] case.’’ (Citation omitted; internal quotation
marks omitted.) Id. In this case, because the defendants have admitted
negligence, a new trial is required as to causation and damages only.