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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 permanent 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 chiropractic 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 necessary, 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 inherently inconsistent because the jury necessarily found that the plaintiffs’

medical treatment was reasonable and necessary and because the plaintiffs’ 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 damages 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 discretion 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 sustained 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 certification, 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 altogether 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, William 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 Maldonado 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 plaintiffs 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 driving 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 damage.

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 Connecticut, complaining of body aches and pain in their lower

backs and necks. At the hospital, both plaintiffs underwent 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 additional medical treatment from Brian Pollack, a chiropractor at New Britain Injury & Spine. Pollack treated

Maldonado approximately sixty-two times intermittently 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 traction. Hernandez underwent similar treatment with Pollack, approximately forty-nine times over the course of

eight months, and was referred for one MRI scan. Pollack also referred both plaintiffs for six months of physical therapy, which they received from another provider.

Despite this course of treatment, the plaintiffs continued to experience pain. Subsequently, an epidural steroid 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 introduced 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 supervision he provided. Pollack’s report diagnosed Maldonado, 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 segmental dysfunction, pain and muscle spasms in the cervical, 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 plaintiffs’ injuries were permanent in nature and rendered

each of them highly susceptible to future aggravations

and exacerbations, which would require future chiropractic treatment at least twice a month at a cost of

$150 per visit, and future medical supervision at a frequency 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/sciatica . . . .’’

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 plaintiffs’ medical records demonstrated that they both suffered 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 plaintiffs 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 consequence 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 element 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 injections. 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 contemporaneous 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 reasonable 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 reasonable 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 involving 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 verdict.’’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 prescribed 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 conclusion that the jury’s failure to award noneconomic damages 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 medical 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 operative considerations demand great deference to two different 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 cooperatively 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 challenging 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 governmental 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]itigants 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 contrary, 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 evidence.’’ (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 prejudice, 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 additurs 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 omitted.)).

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 summoned 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 granting 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 noneconomic 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. Hotchkiss School, 326 Conn. 540, 575, 165 A.3d 1167 (2017)

(repeating oft cited principle that one immovable limitation 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 reasonable difference of opinion among fair-minded persons

as to the amount that should be awarded’’ (internal

quotation marks omitted)); Burns v. Metropolitan Distributors, 130 Conn. 226, 229, 33 A.2d 131 (1943) (concluding that trial court improperly set aside jury’s verdict 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 reasonable, 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 assessment 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] influence and control human action, and test the evidence

in the case according to such knowledge and render

his verdict accordingly. . . . The trial judge in considering 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, corruption 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 adequacy must exist’’). Thus, in arriving at its reasonableness determination, the trial court must view the evidence ‘‘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 credibility 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 reasonableness; 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 Earlington 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 omitted)).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 requirement 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 inadequate 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 facilitate 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 requirement, 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 exercised 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 specificity 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 firsthand, 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 intelligence, 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 establishes, 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 opinion; 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 deference to the decision of a trial court once we are satisfied

that the trial court has rendered its decision in accordance 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 litigation over the past twenty-five years. Juries in personal

injury cases sometimes award a plaintiff economic damages 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 accident cases in which a plaintiff sustains soft tissue injuries requiring chiropractic treatment and physical therapy 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 inconsistent. 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 corresponding noneconomic damages for the pain and suffering 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 additur ‘‘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 inconsistency 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 Connecticut 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 physical injuries proximately caused by the defendant’s negligence but zero damages for any pain, suffering, or noneconomic 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 collision 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 accident, 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 chiropractic 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 necessarily had found that he was injured in the collision

with the defendant and that the ‘‘ ‘verdict was inconsistent 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 reasonably supported the jury’s ‘‘conclusion that the plaintiff 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 Wichers does not substitute the Johnson per se rule with

an opposite one shielding split verdicts from judicial

review altogether. Nor does it eliminate the discretionary 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 circumstances before it. Pursuant to Wichers, there is no automatic rule either requiring or prohibiting the trial court’s

exercise of discretion within the traditional legal framework 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 evidence 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 discretion 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 judgment is likewise insufficient.’’ (Internal quotation marks

omitted.) Id. The trial court’s task, ultimately, is to

‘‘examine the evidence to decide whether the jury reasonably 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 unnecessary because the foregoing traditional standard establishes ‘‘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 discretion [to award an additur] in appropriate circumstances’’ and, therefore, that ‘‘the Appellate Court properly affirmed the trial court’s judgment.’’ (Footnote

omitted.) Id., 193. Gladu, a companion to Wichers, likewise 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 nothing 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 additur, 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 damages. 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 boundaries 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 damages for personal injuries is not required, as a matter

of law, to award noneconomic damages when the evidence 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 damages 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. Triangulum Associates, supra, 259 Conn. 333–34. Although

these extreme cases do not provide a formula for deciding 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 particular case before it.’’ Wichers v. Hatch, supra, 252 Conn.

188. Those circumstances include the possible incongruence between the economic and noneconomic components of a jury’s damages award, which can signal a

legal inconsistency, at least in the absence of a reasonable (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 noneconomic 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 promulgated for use when a jury returns a split verdict, pursuant 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 implicated in every case in which a jury returns a split verdict.

We mention them because the possibility of an inconsistent 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 granting the plaintiffs’ joint motion for additurs. The Appellate Court relied on two grounds in reaching its decision. 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 . . . .’’ Maldonado 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 conducting its own ‘‘fact intensive analysis’’ of the ‘‘evidential

underpinnings’’ of the jury’s verdict and the full evidentiary record; (internal quotation marks omitted) id.; concluded 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 sufficient.’’ Id., 283–84. Instead, the trial court is required

to state the evidentiary basis for its ruling and the corresponding reasons supporting its conclusion that the

jury’s verdict is manifestly unjust. Id., 284. This requirement 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 favorable 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.’’ Nevertheless, 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 corollary to this conclusion, the trial court determined that,

‘‘by necessary implication, [the jury must have] concluded 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 demonstrates that it thoroughly reviewed the plaintiffs’ medical 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 chiropractic care, which included manipulation of the

spine and neck, application of hot and cold packs, electrical 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 vehicle collision. The trial court determined that ‘‘the inherent, 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 plaintiffs 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 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.’’

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 sustained damages in the accident that were proximately

caused by Flannery’s negligence. With respect to causation and damages, the expert witnesses for both the

defendants and the plaintiffs agreed that Flannery’s negligence caused the plaintiffs to incur personal injuries

that necessitated medical treatment. As the trial court

pointed out, the defendants’ own expert witness, Lieponis, testified ‘‘that both plaintiffs sustained sprains

and/or strains to their neck and lumbar regions’’ and

disputed only ‘‘the extent [and permanency] of the plaintiffs’ injuries . . . .’’

With respect to Maldonado, Lieponis testified: ‘‘[He]

sustained musculoskeletal injuries to the cervical, thoracic, 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 [Maldonado] 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, Maldonado 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 ‘‘sustained 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 treatment without significant improvement, without referring to another physician . . . to determine why the

patient was not responding to the treatment that was

being rendered.’’ Lieponis did not believe that Hernandez 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 Maldonado 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, application of hot and cold packs, and electrical stimulation.’’

Furthermore, ‘‘on one occasion, both . . . Maldonado

and . . . Hernandez received epidural steroid injections 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 Hernandez $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 Connecticut 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 medical 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 [chiropractic] treatments, [and], by the same token, was specifically choosing to credit others.’’ The trial court therefore concluded ‘‘that the jury, at a minimum, credited

the plaintiffs’ medical bills and, by necessary implication, concluded 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 [Flannery’s] negligence.’’ Because these medical 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 plaintiffs’ 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 plaintiffs suffered back injuries as a result of the accident

that necessitated medical treatment. The trial court reasonably concluded that the inherent purpose of this

medical treatment, which included chiropractic manipulations and epidural steroid injections, was to treat

pain and suffering. Stated another way, the plaintiffs’

medical treatments were not merely ‘‘diagnostic or prophylactic 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 concluded that plaintiff did not experience any compensable 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 damages). 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 accident that warranted an award of noneconomic damages. 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 tortfeasor’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 compensation 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 suffering 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, regardless of whether those damages are economic or noneconomic 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 nullification and undermining the principles animating tort

law, namely, ‘‘compensation of innocent parties, shifting 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 approximately 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 accurately be characterized as innocuous. See MerriamWebster’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 demonstrate 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 reasonably concluded that [the plaintiffs] were [not] credible witnesses.’’ The trial court was ‘‘[c]onscious of its

obligation to view the evidence in the light most favorable 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 conditions, 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 automatically 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 condition 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 manipulations and a steroid injection as a result of the injuries

sustained in 2016 and, at the same time, that the plaintiffs 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 omitted) Wichers v. Hatch, supra, 252 Conn. 189; the trial

court did not abuse its discretion by granting the plaintiffs’ 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 granting 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 chiropractic 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 example, 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 crossexamination, 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 treatment 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 considerations. 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 [noneconomic] 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 remember my instruction that even momentary pain and suffering [are] compensable.

‘‘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 SeeChilds 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 contested’ ’’); 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 verdict). Given the fact specific nature of the Appellate Court’s analyses, and

the divergent conclusions reached, a comprehensive review and reconciliation 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 impairment or loss of function that (he/she) proves by a fair preponderance of

the evidence to have been proximately caused by the defendant’s negligence. . . .

‘‘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 compensation 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 damages 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 regarding 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 references to the plaintiffs’ pain symptoms that prompted the rendering of medical care, beginning with the initial visit to the hospital emergency room.

The hospital records also reflect that the plaintiffs both were prescribed antiinflammatory 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 reasonable 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 omitted.) 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.