Connecticut Cases December 02, 2019: Gage v. Kaeser

Case Description

UNPUBLISHED OPINION

OPINION

ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE

On November 14, 2019, evidence was presented to the court at a bench trial in this personal injury/uninsured motorist matter. After consideration of the evidence and arguments presented at the trial, the court issues this memorandum of decision.

I

Background

In the complaint, dated October 19, 2017, the plaintiff, Kristine Gage (hereinafter referred to as plaintiff or Gage), alleges that, on September 15, 2016, she was operating a motor vehicle on Route 2 in Glastonbury, Connecticut, when the defendant, Jacob Kaeser, caused a vehicle he was operating to strike Gage’s vehicle by hitting it from the rear.

The plaintiff claims that, as a result of the accident, she suffered personal injuries due to Kaeser’s negligence and carelessness, and seeks monetary damages. See complaint, first count. On February 22, 2018, a default was entered against Kaeser for failure to plead. See #107.86.

In the second count of the complaint, Gage seeks to recover against her insurer, defendant Liberty Mutual Insurance Company (Liberty), based on insurance coverage for uninsured and underinsured motorist benefits. At trial, Liberty and the plaintiff stipulated and agreed that, at the time of the accident, Kaeser was uninsured, Gage’s insurance policy was in full force and effect, and Kaeser was at fault for the accident. In view of the parties’ stipulations, the trial concerned damages only. It was also agreed that the plaintiff’s life expectancy is an additional 35.5 years.

At the trial, the plaintiff presented evidence of her claimed damages, including her own testimony, and documentary and photographic evidence. Liberty presented one witness, Dr. Michael Yoel, a chiropractor. Kaeser did not appear at trial.

II

Discussion

In a case tried to the court, "[t]he ... judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Taylor v. Commissioner of Correction, 324 Conn. 631, 637, 153 A.3d 1264 (2017). "[I]t is well established that it is the exclusive province of the trier of fact to make determinations of credibility, crediting some, all, or none of a given witness’ testimony." (Internal quotation marks omitted.) Gonzalez v. State Elections Enforcement Commission, 145 Conn.App. 458, 475, 77 A.3d 790, cert. denied, 310 Conn. 954, 81 A.3d 1181 (2013).

"It is well settled that the trier of fact can disbelieve any or all of the evidence proffered ... and can construe such evidence in a manner different from the parties’ assertions." State v. DeJesus, 236 Conn. 189, 201, 672 A.2d 488 (1996). The trier is not bound by the uncontradicted testimony of any witness. See Mather v. Griffin Hospital, 207 Conn. 125, 145, 540 A.2d 666 (1988). "Testimony that goes uncontradicted does not thereby become admitted or undisputed; [citation omitted] nor does the strength of a witness’s belief raise it to that level." Stanton v. Grigley, 177 Conn. 558, 563, 418 A.2d 923 (1979).

"It is well settled that the trier of fact can disbelieve ... expert testimony, and can construe such evidence in a manner different from the parties’ assertions." (Internal quotation marks omitted.) State v. Alvarado, 62 Conn.App. 102, 112, 773 A.2d 958, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001). The "court is not required to accept uncontradicted expert testimony. The court might reject it entirely as not worthy of belief or find that the [expert] opinion was based on subordinate facts that were not proven." (Internal quotation marks omitted.) Simard v. Comm’r of Motor Vehicles, 62 Conn.App. 690, 696, 772 A.2d 1137 (2001).

"It is axiomatic that the burden of proving damages is on the party claiming them." (Internal quotation marks omitted.) Lawson v. Whitey’s Frame Shop, 241 Conn. 678, 689, 697 A.2d 1137 (1997). "The determination of damages involves a question of fact ..." Id., 690. "When damages are claimed, they are an essential element of the plaintiff’s proof and must be proved with reasonable certainty ..." (Internal quotation marks omitted.) Argentinis v. Fortuna, 134 Conn.App. 538, 549, 39 A.3d 1207 (2012).

"Damages may be awarded for pain and suffering, past, present and future, resulting from the injuries as long as the evidence affords a basis for a reasonable estimate by the trier of fact of the amount ... An award of damages for pain and suffering is peculiarly within the province of the trier of fact and the fact that it is difficult to measure pain and suffering in terms of money does not prevent a recovery for that element of damages ... Not only are damages for pain and suffering peculiarly for the trier of fact, but proper compensation for pain and suffering cannot be computed by a mathematical formula, and there is no ironclad rule for the assessment of damages." (Citations omitted.) Vickers v. Jessup, 32 Conn.App. 360, 372, 629 A.2d 457, cert. granted on other grounds, 227 Conn. 922, 632 A.2d 701 (1993) (appeal withdrawn 1994).

"To be entitled to damages a plaintiff must establish a causal relation between the injury and the physical condition which [s]he claims resulted from it ... This causal connection must rest upon more than surmise or conjecture ... A trier is not concerned with possibilities but with reasonable probabilities ... The causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question." (Citations omitted; internal quotation marks omitted.) Budney v. Zalot, 168 Conn. 388, 388-89, 362 A.2d 861 (1975).

The police report concerning the accident, Plaintiff’s Exhibit 5, states that the plaintiff explained that she was not injured and had no apparent injury. The police officer stated that he observed minor damage to the left rear corner of plaintiff’s vehicle.

At trial, Gage testified that, after the accident occurred on September 15, 2016, she was able to drive to her place of employment in Hartford, and went to a clinic there where it was stated that they could not treat her; and then she went later that day to see Dr. David N. Steinberg, a chiropractor. Dr. Steinberg had treated her for claimed injuries suffered in a previous motor vehicle accident, which occurred a little over fifteen months before, on June 8, 2015, in which she was also rear-ended. See Defendant’s Exhibit A (records of Dr. Steinberg’s chiropractic treatment of plaintiff). Previous treatment by Dr. Steinberg dated from June 11, 2015 to August 24, 2016, less than three weeks before the September 15, 2016 accident.

Three days after the accident, on September 18, 2016, the plaintiff went to Middlesex Hospital and complained of having had headache for the past couple of days. See Plaintiff’s Exhibit 14. She also reported having a little difficulty speaking and neck and low back pain. A mild concussion was suspected. A CT scan showed no acute intracranial abnormality.

On December 2, 2016, about two and one-half months after the accident, the plaintiff saw a neurologist, Dr. Asante, at Hartford Hospital. See Plaintiff’s Exhibit 15. The plaintiff was described as having "mild neck tenderness, all other symptoms resolved." He recommended neck therapy and opined that the plaintiff did not suffer a concussion.

The plaintiff had physical therapy at Select Physical Therapy, beginning on December 16, 2016. See Plaintiff’s Exhibit 16.

At trial, the plaintiff testified that, as a result of the September 2016 accident, pain and stiffness in her lower back is her main problem and that neck pain is secondary. Her exhibits include records of frequent chiropractic treatment by Dr. Steinberg, from September 2016, through August 2019. See Plaintiff’s Exhibit 13. These records include inconsistencies which undermine their overall credibility in that, initially, the Onset date is listed as September 15, 2016, the date of the accident, but subsequently the date of Onset changes to January 2, 2017, then to April 14, 2017, then to January 18, 2018.

In her testimony, the plaintiff asserted that her conditions have curtailed her activities to a limited extent. She plans to continue receiving chiropractic care in order to manage to get through daily activities. She lost four days from work after the September 15, 2016 accident.

In his evaluation, dated August 21, 2019, Dr. Steinberg assigned to Gage unspecified permanent partial impairments to her cervical spine and to her lumbar spine as a result of the September 15, 2016 accident. See Plaintiff’s Exhibit 13. Included in the list of symptoms suffered by the plaintiff are neck pain, neck stiffness, mid back pain, and low back pain. However, that opinion does not address the prior motor vehicle accident, for which chiropractic treatment had occurred. Her previous treatment consisted of over 80 visits, in which the plaintiff also was diagnosed as having suffered injury to her neck, and concerning which she also received treatment from Dr. Steinberg.

The plaintiff’s claims are undermined by the fact that her chiropractor’s August 21, 2019 evaluation does not address what effect the plaintiff’s previous injury history and course of treatment may or may not have had on her condition. Under these circumstances, the extent of and effects of injuries suffered in the subsequent, September 15, 2016 accident are unclear, which undermines her claims here for an award of non-economic damages for pain and suffering and permanent impairment as a result of the September 2016 accident. The court also discounts Dr. Steinberg’s opinion that continued treatment is required.

Gage proved that, as a result of the accident, she sustained injuries, for which she is entitled to recover fair, just, and reasonable damages. She incurred expenses for evaluations and medical care, and physical therapy. The court discounts her claim for massage expenses since no credible medical evidence supports it.

Concerning economic damages, the court finds that the plaintiff is entitled to recover $1,669.84 for lost wages, $1,800.00 for chiropractic evaluation and treatment, $5,855.39 for other evaluations (Middlesex Hospital, Radiologic Assoc. of Middletown, Dr. Asante), and $2,046.00 for physical therapy, for a total of $11,377.23.

As to noneconomic damages, the court finds that the plaintiff is entitled to recover for her injuries and pain and suffering in the amount of $15,000.00. No award is made for permanent impairment or claimed future medical expenses, since such awards would be speculative in nature.

CONCLUSION

1. The court awards total compensatory damages to the plaintiff as follows: economic damages: $11,377.23 and noneconomic damages in the amount of $15,000.00, for a total of $26,377.23.

If no collateral source hearing pursuant to General Statutes § 52-225a(b) is requested within ten days, judgment may enter for the plaintiff and against the defendants in this amount.

2. Costs are to be assessed by the Clerk.