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MALDONADO v. FLANNERY—DISSENT
ROBINSON, C. J., dissenting. I respectfully disagree
with the majority’s conclusion that the trial court did
not abuse its discretion in granting the joint motion for
additurs filed by the plaintiffs, William Maldonado and
Geovanni Hernandez, on the ground that the jury in
their negligence action against the defendants, Kelly C.
Flannery and Michael T. Flannery, could not reasonably
have found that they incurred economic damages for
medical expenses for their injuries but no noneconomic
damages from those injuries. Instead, I agree with the
Appellate Court’s conclusion that the jury could have
reasonably found that the plaintiffs failed to prove non-
economic damages for pain and suffering. Maldonado
v. Flannery, 200 Conn. App. 1, 13, 238 A.3d 127 (2020).
Because I would affirm the judgment of the Appellate
Court directing the trial court to deny the plaintiffs’
motion and to render judgment in accordance with the
jury’s verdict; see id.; I respectfully dissent.
At the outset, I note my agreements with the facts
and procedural history set forth by the majority. See
part I of the majority opinion. I also agree with the
standard of review stated by the majority pursuant to
Ashmore v. Hartford Hospital, 331 Conn. 777, 781–82,
208 A.3d 256 (2019), and Wichers v. Hatch, 252 Conn.
174, 181, 745 A.2d 789 (2000), requiring that we review
a decision of the trial court to order an additur for
an abuse of discretion. See part II B of the majority
opinion.
I begin by emphasizing my agreement with the legal
principles set forth by the majority’s comprehensive
review of the law limiting a trial court’s authority to
set aside a jury verdict. See part II A of the majority
opinion. The majority accurately cites our precedents
stating that the only cases in which the jury’s verdict
should be set aside are those in which the verdict is
‘‘ ‘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 partial-
ity . . . .’ ’’ (Emphasis added.) Id., quoting Birgel v.
Heintz, 163 Conn. 23, 27, 301 A.2d 249 (1972). Further,
in Wichers, this court described the limit on a trial
court’s discretion to set aside a verdict: ‘‘[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.’’ (Emphasis added; internal quotation marks
omitted.) Wichers v. Hatch, supra, 252 Conn. 189; see
Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 280, 32
A.3d 318 (2011) (‘‘we consistently have held that a court
should exercise its authority to order a remittitur
rarely—only in the most exceptional of circumstances’’).
I add to these principles that 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.’’ (Internal quota-
tion marks omitted.) Cusano v. Lajoie, 178 Conn. App.
605, 609, 176 A.3d 1228 (2017); see Munn v. Hotchkiss
School, 326 Conn. 540, 579, 165 A.3d 1167 (2017)
(‘‘[j]uries may differ widely in the conclusions [that]
they reach in what may be apparently similar cases,
and, in fact, in any given case one jury may arrive at a
result substantially different from that of another jury’’
(internal quotation marks omitted)).
With these principles in mind, I address the majority’s
conclusion that the trial court did not abuse its discre-
tion by granting the plaintiffs’ joint motion for additurs
in the present case. The main argument advanced by
both the trial court and the majority is that, because
the jury’s verdict as to economic damages indicates that
it credited the plaintiffs’ medical bills for a significant
number of treatments, with only ‘‘slight reductions’’ to
individual chiropractic treatments, and because those
procedures were specifically to treat pain rather than
for diagnostic or prophylactic purposes, it was, there-
fore, not reasonable for the jury to determine that the
plaintiffs’ pain and suffering were not worth more than
zero noneconomic damages. See part IV B of the major-
ity opinion. Although this contention might have merit
in other cases presenting more severe injuries, it does
not in the present case. Specifically, I do not agree that
it was unreasonable for the jury not to have come to
the same conclusion as the trial court that ‘‘[b]oth the
inherent underlying symptoms . . . as well as the
treatments themselves, all bespeak a level of physical
pain suffered’’ by the plaintiffs. Put differently, the trial
court’s conclusion, which is embraced by the majority,
incorrectly suggests that the jury had no choice but to
conclude that the plaintiffs experienced compensable
pain and suffering, given the injuries and the treatments
that formed the basis for its award of economic dam-
ages.
In my view, the majority’s conclusion to uphold the
additur ordered by the trial court departs from the
‘‘assumption’’ that underlies our analysis, namely, ‘‘that
. . . the jury did exactly what it intended to do.’’ Wich-
ers v. Hatch, supra, 252 Conn. 189. Thus, on review,
we must determine whether it was reasonable for the
jury to find that the plaintiffs did not experience com-
pensable pain and suffering as a result of the injuries
and the treatments that the jury found the plaintiffs had
experienced. The trial court’s decision to set aside the
jury’s verdict means it determined that it was unreason-
able for the jury to make that finding. See id., 188–89
(‘‘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’’ (emphasis
added)). I fail to see, and the trial court failed to articu-
late, why it was unreasonable for the jury not to have
determined that the symptoms and the treatments at
issue in the present case ‘‘all bespeak a level of physical
pain suffered,’’ for which the plaintiffs must be compen-
sated. Because ‘‘ ‘there is no obligation for the jury to
find that every injury causes pain’ ’’; Cusano v. Lajoie,
supra, 178 Conn. App. 609; the jury could have accepted
the evidence as to the plaintiffs’ injuries, and the evi-
dence that the procedures administered were reason-
able and necessary to treat those injuries, yet declined
to accept the evidence presented as to the plaintiffs’
pain and suffering. I see there to be ‘‘room for a reason-
able difference of opinion among fair-minded [jurors]’’
as to whether compensable pain and suffering are inher-
ent in the sprains sustained by the plaintiffs; Howard
v. MacDonald, 270 Conn. 111, 128, 851 A.2d 1142 (2004);
and, thus, I respectfully disagree with the trial court’s
conclusion that the jury’s verdict was illogical and
inconsistent. Although we do not disturb the trial court’s
action in the absence of an abuse of its discretion, that
discretion to set aside a verdict is limited to the situation
in which there is no room for a reasonable difference
of opinion; thus, when there is room for a reasonable
difference in opinion, the trial court abuses its discre-
tion in setting aside a jury’s verdict. See id. (‘‘[t]he right
to a jury trial is fundamental in our judicial system,
and this court has said that the right is one obviously
immovable limitation on the legal discretion of the court
to set aside a verdict, since the constitutional right of
trial by jury includes the right to have issues of fact as
to which there is room for a reasonable difference of
opinion among fair-minded [jurors] passed [on] by the
jury and not by the court’’); see also Seals v. Hickey,
186 Conn. 337, 349, 441 A.2d 604 (1982) (‘‘[t]he defen-
dant has a constitutional right [to] trial by jury under
article first, § 19, of the Connecticut constitution,
adopted in 1965, which declares ‘[t]he right of trial by
jury shall remain inviolate’ ’’ (footnote omitted)); see,
e.g., Munn v. Hotchkiss School, supra, 326 Conn. 575
(‘‘Litigants have a constitutional right to have factual
issues resolved by the jury. . . . This right embraces
the determination 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.)); Howard v. Mac-
Donald, supra, 128 (‘‘[because], in setting aside the
verdict, the trial court has deprived the party in whose
favor the verdict was rendered of his constitutional
right to have factual issues resolved by the jury, we
must examine the evidential basis of the verdict itself to
determine whether the trial court abused its discretion’’
(emphasis added; internal quotation marks omitted)).
A point of comparison discussed by the majority opin-
ion is instructive here. In Schroeder v. Triangulum
Associates, 259 Conn. 325, 332, 789 A.2d 459 (2002),
this court determined that ‘‘[i]t is not reasonable for
the jury to have found the defendant liable for the
expense of the spinal fusion surgery, but not liable for
the pain and permanent disability necessarily attendant
to such intrusive surgery.’’ Thus, it was unreasonable
not to infer from the spinal fusion surgery at issue in
Schroeder that the plaintiff in that case experienced pain
and suffering. The majority opinion frames Schroeder
as an extreme that does not provide a formula for
determining what other cases warrant the same conclu-
sion. See part III of the majority opinion. I disagree. In
my view, an injury requiring spinal fusion surgery is
not an extreme case but, instead, is an illustrative exam-
ple of severe injuries requiring intensive treatments for
which it is simply unreasonable for a jury not to assume
that compensable pain was attendant. Although I cer-
tainly do not suggest that injuries that are treated with
chiropractic care, the application of hot and cold packs,
electrical muscle stimulation, and a single epidural ste-
roid injection, may never be serious enough to cause
compensable pain and suffering, they nevertheless are
a far cry from those injuries for which the existence of
compensable pain and suffering must be presumed.1 If
the existence of compensable pain and suffering must
be presumed, as a matter of law, from the treatments
in this case, I do not see many injuries or treatments
remaining for which compensable pain and suffering
would not have to be presumed as a matter of law.
The majority’s determination that the trial court was
reasonable in concluding that the inherent purpose of
the medical procedures credited by the jury was to treat
pain and, thus, that compensable pain and suffering
must be assumed, is a marked retreat from Wichers
and its statement of our law that ‘‘the conclusion of a
jury, if one at which honest [jurors] acting fairly and
intelligently might arrive reasonably, must stand, even
though the opinion of the trial court and this court
be that a different result should have been reached.’’
(Internal quotation marks omitted.) Wichers v. Hatch,
supra, 252 Conn. 189. We could be entirely convinced,
as the trial court was, that pain and suffering were
inherent in the plaintiffs’ injuries, and we would still
be required to hold that it was improper to set aside
the jury’s verdict because the court’s duty is not to
‘‘merely substitute its own judgment for that of the jury
. . . .’’ Saleh v. Ribeiro Trucking, LLC, supra, 303
Conn. 284. The trial court’s duty to set aside a jury
verdict is prompted by a ‘‘verdict [that] so shocks the
sense of justice as to compel the conclusion that the
jury [was] influenced by partiality, prejudice, mistake
or corruption . . . a very clear and striking case of
indubitable wrong, so clear and striking as to indicate
the influence of undue sympathy, prejudice or corrup-
tion on the verdict.’’ (Citation omitted; internal quota-
tion marks omitted.) Munn v. Hotchkiss School, supra,
326 Conn. 576. A jury determining that the injuries and
treatments at issue in this case do not ‘‘bespeak a level
of physical pain suffered’’ cannot be the striking, indubi-
table wrong this court contemplated in Munn. Accord-
ingly, I would conclude that the trial court abused its
discretion in setting aside the jury’s verdict.
Based on the trial court’s obligation to view the evi-
dence in the light most favorable to sustaining the jury’s
verdict, and my hesitation to conclude that compensa-
ble pain and suffering must be assumed as a matter of
law from the plaintiffs’ sprains and the procedures used
to treat those injuries, I disagree with the majority’s
conclusion that ‘‘the factual record in the present case
contains no reasonable basis in the evidence for the
jury’s [split] verdict . . . .’’ (Citation omitted; internal
quotation marks omitted.) Part IV B of the majority
opinion. Instead, I agree with the Appellate Court’s con-
clusion that the trial court abused its discretion in grant-
ing the plaintiffs’ joint motion for additurs.
Because I would affirm the judgment of the Appellate
Court, I respectfully dissent.
1
The trial court’s articulation also presumes that all pain associated with
a compensable injury is compensable pain, that all pain, as a matter of law,
can be equated to damages for which plaintiffs must be compensated. The
only authority cited in the majority opinion that could support this contention
is a pattern jury instruction that provides in relevant part: ‘‘ ‘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. . . . .’ ’’
(Emphasis added.) Footnote 14 of the majority opinion, quoting Connecticut
Civil Jury Instructions 3.4-1, available at https://jud.ct.gov/JI/Civil/Civil.pdf
(last visited April 26, 2022). I do not view this model jury instruction as a
conclusive statement of Connecticut law on this point. Although there is
an absence of guidance as to what renders pain and suffering compensable
as a matter of law, there is no authority in our jurisprudence for the proposi-
tion that a jury is required to find that any instance of pain and suffering,
no matter how brief or innocuous, is a damage suffered for which the
plaintiff must be compensated. Indeed, case law from our Appellate Court
stands for the contrary. See Micalizzi v. Stewart, 181 Conn. App. 671, 684–85,
188 A.3d 159 (2018) (‘‘[T]he fact that the jury awarded economic damages
for medical treatment, including treatment for pain, does not necessarily
mean that it must award damages for pain itself. . . . [I]t may be reasonable
for a jury to conclude that although a plaintiff suffered an injury caused by
a defendant and incurred reasonable and necessary medical expenses in
treating that injury, that plaintiff nevertheless did not suffer compensable
pain and suffering.’’ (Emphasis altered.)); Cusano v. Lajoie, supra, 178 Conn.
App. 611 (‘‘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’’ (emphasis added)); see also Boggavarapu
v. Ponist, 518 Pa. 162, 167, 542 A.2d 516 (1988) (‘‘A jury is not compelled
to believe that a dog bite or puncture by a needle causes compensable pain.
They may believe that it is a transient rub of life and living, a momentary
stab of fear and pain, or neither.’’ (Emphasis added.)).