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*********************************************** 
CHRISTOPHER CUSANO v. EDWARD

LAJOIE ET AL.

(AC 39279)

Sheldon, Prescott and Bear, Js.

Syllabus

The plaintiff sought to recover damages from the defendants for personal

injuries he allegedly sustained when an automobile driven by the named

defendant rear-ended his automobile. After the jury returned a verdict

awarding $3000 in economic damages and zero noneconomic damages,

the trial court declined to accept the verdict and ordered the jury to

review its verdict. After reconsidering the verdict, the jury again returned

a verdict awarding no noneconomic damages. The trial court, thereafter,

granted the plaintiff’s motion for additur and ordered an additur of

$2000. From the judgment rendered thereon, the defendants appealed

to this court. Held that the trial court abused its discretion in ordering

the additur and concluding that the jury’s award of medical expenses

required it to find that the plaintiff had suffered compensable pain

throughout the period of his medical treatment; that court did not identify any part of the trial record that supported its reasoning, nor did it

provide any explanation for the amount of the additur, and the jury

reasonably could have determined that the plaintiff had not proven any

noneconomic damages for pain and suffering, or damages for lost wages,

given the inconsistent and conflicting evidence, the questions of credibility concerning the extent, if any, of the plaintiff’s pain and suffering,

and the plaintiff’s subjective complaints of pain stemming from alleged

soft tissue injuries rather than from injuries such as broken bones.

Argued October 5—officially released December 12, 2017

Procedural History

Action to recover damages for personal injuries sustained by the plaintiff as a result of the defendants’

negligence, brought to the Superior Court in the judicial

district of New Britain and tried to the jury before

Swienton, J.; verdict for the plaintiff; thereafter, the

court granted the plaintiff’s motion for additur, and the

defendants appealed to this court. Reversed; judgment directed.

Karen L. Dowd, with whom, on the brief, was Brendon P. Levesque, for the appellants (defendants).

Scott A. Leventhal, for the appellee (plaintiff).
Opinion

BEAR, J. The defendants, Edward Lajoie and Kathleen Weaver,1 appeal from the judgment of the trial

court granting the motion of the plaintiff, Christopher

Cusano, for additur in the amount of $2000. On appeal,

the defendants argue that the trial court abused its

discretion in granting the motion for additur. We agree

and, accordingly, reverse the judgment of the trial court.

The plaintiff filed this action following a minor car

accident that occurred on July 4, 2014, in which Weaver’s vehicle, while being driven by Lajoie, rear-ended

the plaintiff’s vehicle. The collision caused the plaintiff’s

vehicle to sustain damage requiring approximately $678

in repair costs.

Following the collision, the plaintiff did not immediately feel injured, so he drove away and spent several

hours at a picnic. When the plaintiff woke up the next

day, however, he allegedly felt pain in his neck and

upper back, which caused him to leave work approximately ninety minutes after he arrived. Five days later,

the plaintiff saw a chiropractor, Awilda Figueroa, to

whom he reported that he was experiencing pain that

was ‘‘like a nine’’ on a scale of one to ten. Figueroa

saw the plaintiff nineteen times over the ensuing three

months for the alleged injuries to his neck and upper

back. Over the course of his treatment, the level of pain

the plaintiff reported to Figueroa decreased. After the

plaintiff’s final visit in January, 2015, Figueroa stated

in her final report that ‘‘[t]he patient reports that all

injuries and underlining pain have resolved with reference to the accident he suffered.’’

Following the accident, the plaintiff’s employer, a

furniture liquidation company, placed him on light duty.

When the plaintiff attempted to resume his more laborintensive duties, he allegedly began to feel discomfort

in his neck and upper back. The plaintiff also worked

part time for an executive protection firm, performing

five or six jobs per year, ranging from what he described

as high risk to low risk assignments. After the accident,

the plaintiff allegedly did not accept any high risk

assignments; however, he occasionally accepted low

risk assignments.

On April 7, 2015, the plaintiff filed a two count complaint alleging negligence against the defendants. The

defendants did not contest liability. After a jury trial in

April, 2016, the jury initially sought to return a verdict

awarding the plaintiff the full amount of his claimed

$3320 in medical expenses, but no damages for his

claimed lost wages of $750 or his claimed noneconomic

damages. After its review of the initial verdict, the court

declined to accept it and instructed the jury as follows:

‘‘While that is a possible verdict, some might argue that

it is inconsistent to say that a person was injured enough

to incur medical expenses and lost wages, but experi-
enced no pain and suffering or other noneconomic damages. On the other hand, you may have concluded that

while the plaintiff proved his economic damages, he

failed to prove any noneconomic damages. To help eliminate any concerns either party might have, I’m 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

is compensable.’’

After reconsidering its verdict, the jury once again

sought to return a verdict awarding the plaintiff no

noneconomic damages. On April 13, 2016, after the second verdict was accepted and recorded, the plaintiff

filed a motion for additur, or in the alternative, to have

the verdict set aside as ‘‘inconsistent and unreasonable

given the evidence presented in this case.’’ The court

determined that ‘‘under the particular circumstances of

this case, it is inconsistent to conclude that [the plaintiff] was injured to the extent that he incurred substantial medical expenses and at no time during the course

of the treatment experienced pain and suffering. The

court is compelled to conclude that the jury did not

apply the law to the facts of the case, or were influenced

by partiality, prejudice or mistake.’’ The court accordingly ordered an additur for noneconomic damages in

the amount of $2000. The plaintiff accepted the additur,

but the defendants rejected it. This appeal followed.

The standard of review for determining whether a

trial court properly ordered an additur is well settled.

‘‘[W]e review a decision of the trial court . . . ordering

an additur to determine whether the trial court properly

exercised its discretion.’’ Wichers v. Hatch, 252 Conn.

174, 181, 745 A.2d 789 (2000). ‘‘[T]he jury’s decision

to award economic damages and zero noneconomic

damages is best tested in light of the circumstances of

the particular case before it. Accordingly, the trial court

should examine the evidence to decide whether the

jury reasonably could have found that the plaintiff had

failed in his proof of the issue. That decision should

be made, not on the assumption that the jury made a

mistake, but, rather, on the supposition that the jury

did exactly what it intended to do.’’ Id., 188–89.

‘‘It is axiomatic that [t]he amount of damages

awarded is a matter peculiarly within the province of

the jury . . . . Moreover, there is no obligation for the

jury to find that every injury causes pain, or the amount

of pain alleged. . . . Put another way, [i]t is the jury’s

right to accept some, none or all of the evidence presented. . . . It is the [jury’s] exclusive province to

weigh the conflicting evidence and to determine the

credibility of witnesses. . . . The [jury] can . . .

decide what—all, none, or some—of a witness’ testimony to accept or reject.’’ (Citations omitted; footnote

omitted; internal quotation marks omitted.) Smith v.
Lefebre, 92 Conn. App. 417, 421–22, 885 A.2d 1232

(2005). ‘‘The only practical test to apply to a verdict is

whether the award of damages falls somewhere within

the necessarily uncertain limits of fair and reasonable

compensation in the particular case, or whether the

verdict so shocks the sense of justice as to compel the

conclusion that the jury [was] influenced by partiality,

mistake or corruption.’’ DeEsso v. Litzie, 172 Conn.

App. 787, 796, 163 A.3d 55, cert. denied, 326 Conn. 913,

A.3d (2017).

On appeal, the defendants argue that the court failed

to review the evidence in the light most favorable to

sustaining the verdict. Specifically, the defendants

argue that the court abused its discretion in ordering

the additur because there existed conflicting evidence

and questions of credibility, and the plaintiff’s complaints were of a subjective nature, i.e., stemming from

so-called soft tissue injuries rather than from injuries

such as broken bones. We agree.

This court previously has explained that ‘‘[w]e read

Wichers as an instruction to a trial court specifically to

identify the facts of record that justify the extraordinary

relief of additur and as an instruction to an appellate

court to inquire whether the facts so identified justify

the trial court’s exercise of its discretion to set a jury

verdict aside because of its perceived inadequacy.’’

Turner v. Pascarelli, 88 Conn. App. 720, 723–24, 871

A.2d 1044 (2005). ‘‘Under Wichers, it is not enough to

base an additur on a conclusory statement that a jury

award was [inadequate] . . . . The question, therefore,

is whether the court elsewhere articulated a sufficient

factual basis for its decision to order an additur.’’ Id.,

724.

Our review of the trial court’s memorandum of decision in the present case reveals only a conclusory statement regarding the jury’s award and no delineation of

a sufficient factual basis for its decision to order an

additur of $2000. Although the memorandum of decision details the facts that the parties established at trial,

it does not state the specific facts relied upon by the

court to justify its decision to award the extraordinary

relief of additur. Moreover, the memorandum of decision does not contain any description or explanation

of how or why the court calculated $2000 as the appropriate amount of noneconomic damages. Instead, the

court seems to assume that because the plaintiff sought

medical treatment for pain in his upper back and neck,

and was awarded the full amount of the cost of that

treatment, the plaintiff inevitably experienced compensable pain and suffering. Our Supreme Court expressly

rejected that reasoning in Wichers v. Hatch, supra, 252

Conn. 188–89. We, therefore, conclude, as this court

did in Turner v. Pascarelli, supra, 88 Conn. App. 727,

‘‘that the court abused its discretion by ordering an

additur without identifying the part of the record that
supported its determination that an award of [zero]

noneconomic damages was unreasonable under the circumstances of this case.’’

Furthermore, the court abused its discretion in ordering the additur because there existed conflicting evidence and credibility issues concerning the extent, if

any, of the plaintiff’s pain and suffering. A court must

view the evidence in the light most favorable to sustaining the jury’s verdict. ‘‘Because in setting aside a

verdict the court has deprived a litigant in whose favor

the verdict has been rendered of his constitutional right

to have disputed issues of fact determined by a jury

. . . the court’s action cannot be reviewed in a vacuum.

The evidential underpinnings of the verdict itself must

be examined. Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury,

if one at which honest men acting fairly and intelligently

might arrive reasonably, must stand . . . .’’ (Citation

omitted; internal quotation marks omitted.) Wichers v.

Hatch, supra, 252 Conn. 189. Thus, the court should

not assume that the jury made a mistake, but should

suppose ‘‘that the jury did exactly what it intended to

do.’’ Id.

This court’s decision in Smith v. Lefebre, supra, 92

Conn. App. 417, guides our discussion of this issue. In

Smith, the plaintiff and the defendant were in a minor

motor vehicle accident in which the defendant rearended the plaintiff. Id., 418, 426. Credibility issues

existed in Smith, as the defendant established that the

plaintiff’s attorney referred her to a doctor, but the

plaintiff testified that she chose the doctor from a telephone directory in the phonebook. Id., 424–25. Additionally, there were conflicting statements about the nature

of the plaintiff’s injury—specifically whether the injury

was a bulging or herniated disk and whether surgery

was required. Id., 426. This court concluded that ‘‘[i]n

light of the evidence, it was reasonable for the jury to

award zero noneconomic damages.’’ Id.

Similarly here, the evidence presented regarding how

much time from work the plaintiff missed was inconsistent. In an answer to one of the defendants’ interrogatories, the plaintiff stated that he ‘‘was home for the first

[one to two] days after the accident.’’ Later, in answering another interrogatory, the plaintiff stated that he

missed one week of work. The interrogatory answers

were introduced at trial. The plaintiff testified at trial

that he missed one week of work. Thus, the evidence,

at times, was conflicting and inconsistent.

Moreover, on cross-examination, when the defendants’ counsel asked the plaintiff about the pain he was

claiming, the plaintiff testified to the following: he did

not seek medical treatment until five days after the

accident; he never went to the emergency room; he did

not have an MRI or a CAT Scan; and he did not know
the results of his X ray, but it would not surprise him

if the results showed everything was normal. Crossexamination also established that, despite the plaintiff’s

claim of ongoing pain in mid-2016 at the time of trial,

Figueroa last treated the plaintiff in September, 2014,

and gave the plaintiff a ‘‘final rating’’2

in January, 2015.

The plaintiff also testified that he had not sought treatment for the injuries or pain related to the accident

after his last visit with Figueroa in January, 2015.

The jury also heard testimony about the plaintiff’s

current job, as a surveyor for an engineering company,

where he was working in the field about 80 percent of

the time. The plaintiff explained that the job had a

physical aspect because he hiked through marshes and

up and down trails. The plaintiff answered in the affirmative when the defendants’ counsel asked him

whether ‘‘there[’s] some beating that [his] body takes

[while] doing [his current job].’’ He also testified that he

never had to call out of work in his current employment

because of injuries or pain related to the accident.

In light of the two identical verdict forms that the

jury submitted to the court, it is reasonable to conclude

that the jury resolved the conflicting evidence by

rejecting the plaintiff’s lost wages claim and his noneconomic damages claim for pain and suffering upon

determining that the plaintiff had failed to prove those

claims by a fair preponderance of the evidence. As set

forth in Wichers: ‘‘[I]f there is a reasonable basis in the

evidence for the jury’s verdict, unless there is a mistake

in law or some other valid basis for upsetting the result

other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court

should let the jury work their will.’’ (Internal quotation

marks omitted.) Wichers v. Hatch, supra, 252 Conn. 189.

After reviewing the evidence adduced at trial, we

conclude that the jury’s verdict was within the parameters of fair and reasonable compensation. The jury reasonably could have determined, as it apparently twice

did, that the plaintiff had not proven any noneconomic

damages for pain and suffering, or damages for lost

wages. The court, in its memorandum of decision, did

not set forth facts and reasons in explanation of how

and why it determined that an additur was appropriate,

how and why it calculated $2000 as the appropriate

amount of the additur, or why it concluded that ‘‘the jury

[was] influenced by partiality, mistake or corruption.’’

(Internal quotation marks omitted.) DeEsso v. Litzie,

supra, 172 Conn. App. 796. Accordingly, we conclude

that the trial court abused its discretion in ordering

an additur for noneconomic damages in the amount

of $2000.3

The judgment is reversed and the case is remanded

with direction to reinstate the jury’s verdict and to render judgment thereon.
In this opinion the other judges concurred.

1 Lajoie was Weaver’s employee, and was acting within the scope of his

employment while driving Weaver’s vehicle at the time of the automobile

accident at issue in this case. Collectively, we refer to Lajoie and Weaver

as ‘‘the defendants.’’ Individually, we refer to them by name.

2 The ‘‘final rating’’ was a report that Figueroa created detailing the plaintiff’s treatment and progress. The ‘‘final rating’’ noted that the plaintiff had

returned to preinjury status as of January, 2015.

3 The plaintiff claims that the existence or nonexistence of a preexisting

injury is the determining factor in whether an award of virtually all of the

plaintiff’s economic damages but no noneconomic damages is inconsistent

and unreasonable. Although the existence of a preexisting injury may be a

circumstance for the jury to consider when deciding whether to award

noneconomic damages, it is not the sole deciding factor. See Turner v.

Pascarelli, supra, 88 Conn. App. 726, 730 (jury could have found that plaintiff

contributed to his lack of recovery by failing to follow physical therapy,

and by engaging in activities that exacerbated his injuries; preexisting injury

was alternative factor); see also Fileccia v. Nationwide Property & Casualty

Ins. Co., 92 Conn. App. 481, 488, 886 A.2d 461 (2005) (absence of preexisting

injury as additional factor for consideration), cert. denied, 277 Conn. 907,

894 A.2d 987 (2006).

‘‘[O]ur Supreme Court has held that an award of virtually all of a plaintiff’s

claimed economic damages, with no accompanying noneconomic damages,

demonstrated an inconsistency in the verdict . . . although it allowed that

in a different case, such an award might be proper.’’ (Citation omitted;

internal quotation marks omitted.) Fileccia v. Nationwide Property & Casualty Ins. Co., supra, 92 Conn. App. 487; see also Schroeder v. Triangulum

Associates, 259 Conn. 325, 334 n.5, 789 A.2d 459 (2002) (‘‘[o]ur conclusion

on the facts of this case does not foreclose the possibility, in accordance

with Wichers . . . that a jury in a case with different facts reasonably could

award the full amount of a plaintiff’s claimed economic damages but no

noneconomic damages’’).