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WILLIAM MALDONADO ET AL. v. KELLY C.
FLANNERY ET AL.
(AC 43154)
Keller, Bright and Bear, Js.*
Syllabus
The plaintiffs, M and H, sought to recover damages from the defendants
for personal injuries they allegedly sustained in a motor vehicle accident
in which their vehicle was struck by a vehicle driven by the named
defendant. Following a trial, at which M and H testified, the jury returned
a verdict in favor of the plaintiffs, awarding them economic damages
but no noneconomic damages. Thereafter, the trial court granted the
plaintiffs’ joint motion for additurs, ordered additurs of $8000 to the
award to M and $6500 to the award to H, and rendered judgment in
favor of the plaintiffs. On the defendants’ appeal to this court, held that
the trial court abused its discretion in granting the plaintiffs’ motion for
additurs; that court failed to identify the part of the trial record that
supported its conclusion that the jury’s failure to award noneconomic
damages was unreasonable under the facts of this case; moreover, even
if the court had sufficiently identified facts in the record to support its
order of additurs, this court, after having undertaken a fact intensive
analysis, determined that the jury reasonably could have concluded that
the plaintiffs failed to prove any noneconomic damages for pain and
suffering caused by the subject accident, given the inconsistent and
conflicting testimony and evidence, and the jury could have determined
that the plaintiffs lacked credibility.
Argued May 29—officially released September 8, 2020
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the named defendant’s alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of Hartford and tried to
the jury before Budzik, J.; verdict for the plaintiffs;
thereafter the court granted the plaintiffs’ motion for
additurs and rendered judgment for the plaintiffs, from
which the defendants appealed to this court. Reversed;
judgment directed.
Jack G. Steigelfest, for the appellants (defendants).
Philip F. von Kuhn, for the appellees (plaintiffs).
Opinion
BEAR, J. The plaintiffs, William Maldonado and Geo-
vanni Hernandez, brought a negligence action against
the defendants, Kelly C. Flannery and Michael T. Flan-
nery,1 seeking damages for injuries sustained in an auto-
mobile accident. After a jury trial, the jury returned a
verdict in favor of the plaintiffs in which it found eco-
nomic damages for the plaintiffs but no noneconomic
damages. The plaintiffs filed a joint motion for additurs
requesting that the court order noneconomic damages.
The court granted the plaintiffs’ joint motion and
ordered noneconomic damages. The defendants appeal
from the judgment of the court granting the plaintiffs’
joint motion for additurs and ordering additurs in the
amount of $8000 to the verdict in favor of Maldonado
and $6500 to the verdict in favor of Hernandez. On
appeal, the defendants claim that the trial court abused
its discretion by granting the plaintiffs’ joint motion for
additurs because the court’s memorandum of decision
lacked the specific facts it relied on to justify additurs,
and there existed issues of credibility regarding the
plaintiffs’ testimony about their noneconomic damages.
Therefore, the plaintiffs failed to prove their claims for
noneconomic damages. We agree that the court abused
its discretion in ordering additurs and, accordingly,
reverse the judgment of the trial court.
The court set forth the following factual and proce-
dural history in its memorandum of decision on the
plaintiffs’ joint motion for additurs. ‘‘On June 6, 2016,
at approximately 3:20 p.m., [the plaintiffs] were driving
[a 2004 Ford Econoline van] on Route 4 in Farmington.
Maldonado was driving . . . [and] Hernandez was the
passenger. . . . [The defendant] was driving a Ford
Taurus sedan . . . [and] collided with the rear of [the
plaintiffs’] van. Accident photos entered into evidence
showed that [the defendant’s sedan] sustained serious
damage to its front bumper and front hood, while [the
plaintiffs’] van sustained minimal visible damage. This
disparity in vehicle damage was likely due to the van’s
sturdy metal rear bumper and the fact that the disparity
in the vehicles’ height caused [the defendant’s sedan]
to slide under the van’s rear bumper.
‘‘[The plaintiffs] did not complain of injuries at the
scene of the accident. [They] sought treatment in the
evening on the same day of the accident at the Hospital
of Central Connecticut. At that time, [the plaintiffs]
complained of pain in their lower backs and neck
regions. Maldonado had a contusion on his sternum,
presumably from his seat belt. Both [of the plaintiffs]
were evaluated and released from the [hospital] on the
evening of June 6, 2016.
‘‘Maldonado treated with a chiropractor for approxi-
mately [two] months from April to June, 2014 [after a
prior motor vehicle accident]. At that time, Maldonado
visited the chiropractor [twelve] times and was dis-
charged with no further treatment needed. Hernandez
had no prior accidents.
‘‘Subsequent to the 2016 accident, [the plaintiffs] had
[magnetic resonance imaging (MRI) scans] and other
diagnostics tests related to the accident that the jury
reasonably could have concluded caused the plaintiffs
no pain or suffering. Nevertheless, the plaintiffs’ medi-
cal records introduced at trial demonstrate that, from
the date of the accident to approximately August of
2018, the plaintiffs did receive treatment that inherently
involved some degree of pain. Specifically, Maldonado
treated at New Britain Injury & Spine approximately
[sixty-two] times. These treatments involved chiroprac-
tic manipulation of Maldonado’s spine and neck, appli-
cation of hot and cold packs, electrical stimulation, and,
on occasion, mechanical traction. Similarly, Hernandez
treated at New Britain Injury & Spine approximately
[forty-nine] times. These treatments involved chiroprac-
tic manipulation of Hernandez’ spine and neck, applica-
tion of hot and cold packs, and electrical stimulation.
Finally, on one occasion, [the plaintiffs] received epi-
dural steroid injections of their lumbar regions at Jeffer-
son Radiology. Maldonado was assigned a 5 [percent]
permanent partial disability rating by his chiropractor,
[Brian] Pollack. Although the defendants’ expert,
[Jonas] Lieponis, an orthopedic surgeon, disputed the
extent of the plaintiffs’ injuries, he agreed that both
plaintiffs sustained sprains and/or strains to their neck
and lumbar regions.
‘‘In [returning] its verdict in favor of the plaintiffs,
the jury awarded $17,228.38 of Maldonado’s claimed
$18,953.38 in past economic damages for medical costs,
as well as $1800 in future economic damages. With
respect to Hernandez, the jury awarded $11,864.94 of
the claimed $13,254.94 as past economic damages for
medical costs. The jury did not award Hernandez any
future economic damages. The jury did not award either
plaintiff any noneconomic damages. The plaintiffs’ ver-
dict forms stated the amount claimed for past economic
damages for each individual medical provider. With the
exception of slight reductions for the claimed amounts
for chiropractic care at New Britain Injury & Spine, the
jury awarded the plaintiffs the requested amounts.’’
The plaintiffs filed a two count complaint sounding
in negligence2 on July 18, 2017. The case was tried
before the jury from January 23 to January 25, 2019.
The jury returned its verdict on January 25, 2019, in
favor of Hernandez and awarded him economic dam-
ages of $11,864.94 and zero noneconomic damages. The
jury also returned its verdict in favor of Maldonado and
awarded him economic damages of $19,028.38 and zero
noneconomic damages. Thereafter, on January 30, 2019,
the plaintiffs filed their joint motion for additurs. On
June 25, 2019, the court issued a memorandum of deci-
sion in which it granted the plaintiffs’ joint motion for
additurs, concluding that the jury verdict awarding eco-
nomic damages to each plaintiff, but no noneconomic
damages, was internally inconsistent. The court further
concluded that the jury could not have properly reached
its verdict, that the plaintiffs were not entitled to awards
for pain and suffering, on the basis of the evidence
adduced at trial. This appeal followed. Additional facts
will be set forth as necessary.
A motion for additur is a ‘‘statutory creation that
allows the court to increase the award of damages when
the verdict is inadequate as a matter of law.’’ Demchak
v. New Haven, 93 Conn. App. 309, 311–12, 889 A.2d 266
(2006); see General Statutes §§ 52-228a3 and 52-228b.4
‘‘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. . . . [T]he jury’s decision to
award economic damages and zero noneconomic dam-
ages 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. . . .
‘‘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 pre-
sented. . . . 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’ testi-
mony to accept or reject. . . . 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.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Cusano v. Lajoie, 178 Conn. App. 605, 609–10, 176 A.3d
1228 (2017).
On appeal, the defendants argue that the court failed
to view the evidence in the light most favorable to
sustaining the jury’s verdict. Specifically, they argue
that the court abused its discretion by granting the
plaintiffs’ joint motion for additurs because it improp-
erly concluded that the jury verdict awarding economic
damages but not noneconomic damages was inconsis-
tent and that the jury could not have reasonably con-
cluded that the plaintiffs were not entitled to awards
for pain and suffering. We agree.
Our Supreme Court has stated 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 v. Hatch, 252 Conn. 174,
181, 745 A.2d 789 (2000). This court, thereafter, interpre-
ted and explained Wichers: ‘‘For more than seventy-
five years, judicial decisions have reflected the wisdom
of legal realism that case law should reflect the factual
circumstances under which the controversy between
the parties arose. In that sense, every judicial ruling is
case specific. Wichers must, therefore, have intended
something more. We 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.’’ (Footnotes omitted.) 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.’’ (Inter-
nal quotation marks omitted.) Cusano v. Lajoie, supra,
178 Conn. App. 610.
In the present case, the court’s memorandum of deci-
sion 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. See Wichers v. Hatch, supra,
252 Conn. 181; Turner v. Pascarelli, supra, 88 Conn.
App. 723–24. The court’s memorandum of decision
describes the facts that the parties offered during the
trial, but it does not delineate the specific facts that led
to its decision to grant the plaintiffs’ joint motion for
additurs. In its memorandum of decision, the court con-
cluded that, because the jury awarded damages for med-
ical treatment received by the plaintiffs, the plaintiffs
must have suffered compensable pain and suffering.
Specifically, the court stated: ‘‘Both the inherent under-
lying symptoms necessary to make [the plaintiffs’] treat-
ments ‘reasonable and necessary’ in the eyes of the
jury, as well as the treatments themselves, all bespeak
a level of physical pain suffered by Maldonado and
Hernandez. . . . 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.’’ This court and our Supreme Court have
rejected the notion that because a jury awards eco-
nomic damages for medical treatment, it therefore must
award damages for the pain suffered. See Wichers v.
Hatch, supra, 188–89; Micalizzi v. Stewart, 181 Conn.
App. 671, 685, 188 A.3d 159 (2018); Cusano v. Lajoie,
supra, 178 Conn. App. 611; Melendez v. Deleo, 159 Conn.
App. 414, 418–19, 123 A.3d 80 (2015).
Thus, we conclude that the court’s failure 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 was an abuse
of discretion. See Cusano v. Lajoie, supra, 178 Conn.
App. 611 (‘‘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 cir-
cumstances of this case’’ (internal quotation marks
omitted)).
Furthermore, even if we were to determine that the
court sufficiently had identified facts in the record to
support its order of additurs, we would be required to
review its findings and conclusions in the light most
favorable to sustaining the jury’s verdict, rather than
the court’s decision. See id. To determine whether it
was reasonable for the jury to have concluded that the
plaintiffs proved that they had suffered injuries and
incurred reasonable and necessary medical expenses
but did not prove that they had suffered compensable
pain and suffering, we must undertake the same type
of fact intensive analysis articulated by our Supreme
Court in Wichers v. Hatch, supra, 252 Conn. 188–90.
‘‘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; inter-
nal quotation marks omitted.) Id., 189. Thus, we must
carefully examine the specific facts and circumstances
of the present case to determine whether the jury could
have concluded that, although the plaintiffs’ economic
damages were compensable, they failed to prove that
they had suffered noneconomic damages.
In reviewing this issue, our decision in Cusano v.
Lajoie, supra, 178 Conn. App. 605, serves as a useful
guide. In Cusano, similar to the present case, the plain-
tiff and the defendants were in a motor vehicle accident
in which the defendants’ vehicle rear-ended the plain-
tiff’s vehicle. Id., 607. During trial, issues arose regard-
ing conflicting evidence and questions of credibility.
See id., 612–13. Specifically, conflicting evidence was
presented during trial regarding how much time from
work the plaintiff missed because of the accident. Id.,
612. Furthermore, conflicting evidence was presented
regarding the pain suffered by the plaintiff and the medi-
cal treatment he sought after the accident, including
the dates of those treatments. Id., 612–13. This court
concluded: ‘‘After reviewing the evidence adduced at
trial . . . the jury’s verdict was within the parameters
of fair and reasonable compensation. The jury reason-
ably could have determined . . . that the plaintiff had
not proven any noneconomic damages for pain and
suffering . . . .’’ Id., 613–14.
Similarly, in the present case, conflicting and incon-
sistent evidence was presented during trial. Here, the
jury heard testimony from both Maldonado and Hernan-
dez. Maldonado testified that, while he was approaching
a red light in his vehicle, he saw a vehicle approaching
quickly from behind and did not have time to move
out of the way. Thereafter, during cross-examination,
Maldonado testified that during the same incident, he
looked back and tried to avoid the approaching vehicle
because he thought it was going to collide with his
vehicle. Further, Maldonado could not explain why his
medical records indicated that he had told his physician
that he did not know he was going to be rear-ended.
Later, Maldonado admitted that he was involved in a
prior motor vehicle accident in April, 2014, that resulted
in chest and neck pain. After that accident, he treated
with a chiropractor for approximately two months. The
medical records introduced as evidence from those
treatments demonstrated that up until the 2016 acci-
dent, Maldonado continued to suffer low back and neck
pain from the 2014 accident.
Also during trial, Maldonado testified that he never
went to the hospital after his 2014 accident; however,
on cross-examination, after being questioned about hos-
pital records demonstrating X-ray reports postdating
the 2014 accident, Maldonado altered his testimony by
stating that he did not remember if he went to the
hospital. Further, the emergency room record made
after the 2016 accident demonstrated that Maldonado
last visited the hospital prior to the 2016 accident for
‘‘chronic pain/sciatica.’’ He also testified that for
approximately fifteen years he had done heavy lifting
at his workplace but, after the 2016 accident, he was
unable to do so. MRIs ordered early in the course of
Maldonado’s chiropractic treatment after the 2016 acci-
dent revealed degenerative disc disease in his back.
Lastly, Lieponis testified via videotaped deposition that
Maldonado’s cervical arthritic changes were degenera-
tive and preexisted the 2016 accident and that his lum-
bar changes were degenerative in nature and not trau-
matically caused by the 2016 accident.
During trial, the jury also heard Hernandez’ testi-
mony. Hernandez testified that, in the ten years prior
to the 2016 accident, he had been convicted of approxi-
mately six felonies, the majority of which were drug
related. When Hernandez was questioned about the spe-
cific number of convictions against him, he testified
that he did not remember because his memory ‘‘is shot.’’
Hernandez further testified that the medical informa-
tion he provided to his physician may not have been
completely accurate because of his memory problems.
In regard to back pain that Hernandez alleged he had
been experiencing, he testified that, once the treatment
with his physician concluded, he did not seek out a
new physician. Instead, Hernandez testified that, ‘‘out
in the street, I would just self-medicate [because] they
took my Percocet away. [E]very time I would feel some
pain, I would just go to my friends and [they gave] me
some of their medications.’’
Additionally, Hernandez testified that, at the scene
of the accident, he was offered medical attention but
declined it, and he did not tell his boss, when returning
the company van, that he was in an accident or that he
was in pain. MRIs of Hernandez’ back introduced into
evidence demonstrate that he suffered from multilevel
disc degeneration and disc extrusions. After reviewing
the MRIs, Lieponis opined that the multilevel degenera-
tive changes and extrusions in his back were not trau-
matic in origin and were unrelated to the 2016 accident.
On the basis of the two verdict forms that the jury
submitted to the court at the conclusion of the trial, it
is reasonable to conclude that the jury resolved the
conflicting evidence by rejecting the plaintiffs’ noneco-
nomic damages claims for pain and suffering because
the plaintiffs failed to meet their burden of proving their
noneconomic damages claims. As our Supreme Court
articulated 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 [its] will.’’ (Internal
quotation marks omitted.) Wichers v. Hatch, supra, 252
Conn. 189.
After reviewing the evidence adduced at trial, we
conclude that the jury reasonably could have found that
the plaintiffs failed to prove noneconomic damages for
pain and suffering caused by the 2016 accident. The
jury was not required to believe the plaintiffs’ testimony
but, instead, could have determined that the plaintiffs
lacked credibility. See Wall System, Inc. v. Pompa, 324
Conn. 718, 741, 154 A.3d 989 (2017) (‘‘if there are incon-
sistencies in a witness’ testimony, [i]t is the exclusive
province of the trier of fact to weigh conflicting testi-
mony and make determinations of credibility, crediting
some, all or none of any given witness’ testimony’’
(internal quotation marks omitted)).
The judgment is reversed and the case is remanded
with direction to deny the motion for additurs and to
render judgment in accordance with the jury’s verdict.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Michael T. Flannery was the owner of the Ford Taurus sedan that Kelly
C. Flannery was operating during the accident. ‘‘The family car doctrine is
a common-law rule providing that, when a motor-car is maintained by the
paterfamilias for the general use and convenience of his family, he is liable
for the negligence of a member of the family having general authority to
drive it, while the car is being used as a family car . . . .’’ (Internal quotation
marks omitted.) Cima v. Sciaretta, 140 Conn. App. 167, 170 n.3, 58 A.3d
345, cert. denied, 308 Conn. 912, 61 A.3d 532 (2013). We refer in this opinion
to Kelly C. Flannery and Michael T. Flannery collectively as the defendants
and to Kelly C. Flannery individually as the defendant.
2
The plaintiffs’ complaint consisted of two counts of negligence. Maldo-
nado alleged negligence in count one, and Hernandez alleged negligence in
count two.
3
General Statutes § 52-228a provides in relevant part: ‘‘In any jury case
where the court orders . . . an increase in the amount of the judgment,
the party aggrieved by the . . . additur may appeal as in any civil action.
The appeal shall be on the issue of damages only, and judgment shall
enter upon the verdict of liability and damages after the issue of damages
is decided.’’
4
General Statutes § 52-228b provides in relevant part: ‘‘No 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 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.’’