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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC.                                                                                       SUPERIOR COURT
(FILED:  JANUARY 26, 2012)
DONNA ROSE                                                                                            :
:
VS.                                                                                                   :
                                                                                                      :                         C.A. NO. 06-0650
CHRISTOPHER CARIELLO and                                                                              :
JAMES CARIELLO                                                                                        :
DECISION
STERN, J.  Before this Court is the motion for additur and/or new trial of Plaintiff Donna Rose.
Jurisdiction is pursuant to Superior Court Rule of Civil Procedure 59.
I.
FACTS AND TRAVEL
On  September  30,                                                                                    2003  at  approximately   11:00  a.m.,  Donna  Rose   (“Donna”  or
“Plaintiff”) was driving her 1984 Dodge motor vehicle on Route 95 South in the vicinity of Exit
19  in  Providence,  Rhode  Island.    The  defendant,  Christopher  Cariello                         (“Christopher”  or
“Defendant”), was driving his father James’s 1987 Ford in the same area.   Donna slowed her
vehicle and stopped in medium traffic conditions.   Christopher was traveling behind Donna and
his vehicle rear-ended Donna’s vehicle.   It is disputed by the parties in which lane and at what
speeds the accidents occurred.   As the result of this incident, Donna claims that she sustained
personal injuries and pain and suffering; incurred medical, hospital and pharmaceutical bills; lost
earning and earning capacity; and lost enjoyment of life.
At trial, the jury returned a verdict for the Plaintiff and awarded damages suffered by
Plaintiff resulting from the automobile accident totaling $193,584.   Furthermore, the jury found
that Plaintiff was comparatively negligent in the amount of twenty-five percent (25%).
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II.
MOTION FOR NEW TRIAL AND/OR ADDITUR
Rule 59 of the Superior Court Rules of Civil Procedure provides, in pertinent part, that
A new trial may be granted to all or any of the parties and on all or
part of the issues for error of law occurring at the trial or for any of
the reasons for which new trials have heretofore been granted in
the courts of this state.
Super. R. Civ. P. Rule 59.  In deciding a motion for a new trial, the role of the trial justice is well
established. In ruling on a motion for new trial, the trial justice acts as a super juror and must
“independently weigh, evaluate, and assess the credibility of the trial witnesses and evidence.”
Morrocco v. Piccardi, 713 A.2d 250, 253 (R.I. 1998) (per curiam).   In doing so, the trial justice
may “accept some or all of the evidence as having probative force.”   Barbato v. Epstein, 97 R.I.
191, 193, 196 A.2d 836, 837 (1964).   Moreover, he or she may reject parts of testimony because
it is “impeached or contradicted by other positive testimony or by circumstantial evidence” or
because it is “totally at variance with undisputed physical facts or laws,” or even on account of
“inherent improbabilities or contradictions.”   Id.   The trial justice also may add to the evidence
by drawing appropriate inferences.  Id.  at 193-94, 196 A.2d at 837.  Furthermore, the trial justice
should not substitute his or her conclusions for those of the jury or disturb the jury’s findings
purely because he or she would have reached a contrary finding on the same evidence.   Turgeon
v. Davis, 120 R.I. 586, 590, 388 A.2d 1172, 1174 (1978).  While the trial justice does not need to
perform an exhaustive analysis of the evidence, he or she should refer with some specificity to
the facts upon which he or she based the decision.   Reccko v. Criss Cadillac Co., Inc., 610 A.2d
542, 545 (R.I. 1992).   If the trial justice concludes “that the evidence is evenly balanced or is
such  that  reasonable  minds,  in  considering  the  same  evidence,  could  come  to  different
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conclusions,” then he or she should let the verdict stand.   Morrocco,  713 A.2d at  253.   If,
however, the trial justice determines that the jury's verdict is against the fair preponderance of the
evidence or fails to administer substantial justice, he or she must grant the motion for new trial.
Soares v. Ann and Hope of R.I., Inc., 637 A.2d 339, 348 (R.I. 1994).
When a motion for a new trial is based on the grounds that the verdict contravenes the
law, the only question presented is whether or not the jury accepted and followed the law as
given to it by the trial justice in his or her instructions.   Sneddon v. Costa, 117 R.I. 624, 627, 369
A.2d 643, 645 (1977).   On such an allegation, the verdict should be set aside if it “is contrary to
the law as given by the trial justice to the jury. . .                                                    .”   Blume v. Shepard Co., 108 R.I. 683, 690,
278 A.2d 848, 852 (1971).
Concerning a jury’s damage award, it is well established that “a damage award may be
disregarded by the trial justice . . . if the award shocks the conscience or indicates that the jury
was influenced by passion or prejudice or if the award demonstrates that the jury proceeded from
a clearly erroneous basis in assessing the fair amount of compensation to which a party is
entitled.”   Shayer v. Bohan, 708 A.2d 158, 165 (R.I. 1998) (quoting Hayhurst v. LaFlamme, 441
A.2d 544, 547 (R.I. 1982)).   The mechanism by which a trial justice may increase a jury’s award
of damages is called additur.                                                                             2 Rhode Island Practice & Procedure  §  1165 at  300 (1996).
Although a motion for additur pre-dates the Rules of Civil Procedure, a party may properly bring
a motion for additur pursuant to Super. R. Civ. P. 59.  Id. at 299-300.  In Roberts v. Kettelle, 116
R.I. 283, 301-02, 356 A.2d 207, 218 (1976), our Supreme Court recognized that the language of
Rule 59 contemplates a motion for additur, and that the standard in ruling on a motion for a new
trial based upon the inadequacy of damages is essentially the same as ruling on a motion for a
new trial generally.   A trial justice may utilize additur to correct a jury award that “fails to
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properly respond to the merits of the controversy,” “fails to administer substantial justice,” or
that is based upon an incorrect quantification of a party’s comparative fault.   Cotrona v. Johnson
& Wales College, 501 A.2d 728, 733-34 (R.I. 1985).   “If the trial justice finds that a new trial is
warranted on the question of damages, it is his duty, before ordering a new trial thereon, to give
the plaintiff an opportunity to file a remittitur or the defendant an additur.”   Roberts, 116 R.I. at
301-02, 356 A.2d at 218 (citing 1 Kent, R.I. Civ. Prac. s 59.4 (1969)).
III.
REVIEW OF THE EVIDENCE
Before this Court’s examination of the evidence and the credibility of the witnesses, it
should be noted that this trial took place eight years after the accident occurred.   The passage of
time can work memory as a river works stone.    With that in mind, the Defendants never
contested that the collision was a rear-end motor vehicle accident.   Accordingly, the jury found
Christopher negligent and concluded that Defendant’s negligence was the proximate cause of the
collision in this matter.   At issue was the role of the plaintiff in contributing to the occurrence of
the accident.
On September 30, 2003. at approximately 11:00 a.m., Donna was travelling on Route 95
South in the vicinity of Exit 19 in Providence, Rhode Island.   Donna testified that she was
driving in the second lane from the left, which is the lane adjacent to the high-speed lane, and
that the accident occurred after she slowed her vehicle to change lanes in order to adjust to traffic
conditions.   The Defendant, Christopher, testified that the impact occurred in the far right lane of
Route 95 South.   The responding Rhode Island State Police Trooper Liu also indicated in his
testimony that Christopher’s vehicle struck Donna’s vehicle in the right lane.   This Court notes
the discrepancy in the testimonies regarding the lanes, but is inclined to believe that this resulted
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from the lengthy span of time between the day of the accident and the trial.   Furthermore, there
might have been confusion in the witnesses’ recollection regarding a nearby exit lane and
whether or not to count this as a travelling lane.   Nevertheless, this Court does not find that the
lane issue is dispositive when gauging Donna’s credibility and therefore deems her testimony
credible.   Regarding the speed at which the accident occurred, Donna indicated that she did not
see the Defendant’s vehicle before the impact and that she therefore was unable to comment
upon his vehicle’s speed at impact.   Christopher testified that his speed was ten (10) miles per
hour at impact.   State Trooper Liu stated that the impact was a low-speed impact.   This Court
finds that the evidence presented at trial regarding the details of the accident is consistent with
the jury’s determination that Donna’s changing of lanes at a slow speed merited a twenty-five
percent (25%) apportionment of negligence.  Further, this Court finds that such an apportionment
is  a  fair,  reasonable  and  acceptable  response  to  the  evidence  against  Donna.    Thus,  this
apportionment is not against the fair preponderance of the evidence and is an assessment upon
which reasonable minds could differ.   Therefore, the apportionment of contributory negligence
will not be disturbed.
As to the motion for new trial as it relates to the adequacy of the jury’s damage award,
this Court has reviewed the extensive medical records and bills which were full exhibits for the
jury’s consideration as well as the transcripts from the expert witness testimony presented at
trial.   The Plaintiff underwent two surgical procedures on her lumbar spine after the date of the
accident; the first on April 22, 2005 and the second March 13, 2008.   At issue was whether these
two surgeries were causally related to the automobile accident.   Both sides presented expert
medical testimony. Dr. Edward Feldmann, a neurologist, testified for the Plaintiff, Donna.   Dr.
Thomas Morgan, also a neurologist, testified for the Defendants.   Both experts agreed that the
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Plaintiff had significant pre-existing degenerative disc disease.   They also agreed that the MRI
testing performed upon the Plaintiff on November 25, 2003, March 24, 2005 and November 23,
2007, showed that the Plaintiff’s pre-existing condition was worsening due to the passage of
time, and that by November 23, 2007, there were new positive findings not present on the first
MRI performed on November  25,  2003.    Dr. Feldmann, a highly qualified, board certified
neurologist, testified that the injuries Donna sustained in the accident were more severe than
mild soft-tissue injuries.   He testified that Donna had no history of lower backpain before the
accident  and  that  she  developed  pain  after  the  accident.    Furthermore,  he  explained  that
degenerative disc disease is often asymptomatic.   He opined that Donna’s injuries involved
radiculopathy, which is disc and nerve root injury and that this condition is the cause of the pain
Donna experiences.   He further testified that he believes to a reasonable degree of medical
certainty that the accident on September 30, 2003 caused these severe injuries that have resulted
in Donna experiencing these pains permanently.
Dr. Morgan, also a highly qualified, board certified neurologist, disagreed with Dr.
Feldmann’s findings.   He opined that Dr. Feldmann’s review omits Donna’s police and EMS
report from September 30, 2003, that describes the injury as neck pain and not low back pain
with right sciatica.   His report states that she suffered soft-tissue neck strain as a result of the
minor rear-end motor vehicle collision.   According to Dr. Morgan, soft-tissue injuries are mild
and the healing time for these conditions range from a few days to a few weeks and are not
associated with any permanent injury or impairment.    Furthermore, lumbar spine x-rays on
October  27,  2003, revealed L5-S1 sclerosis and spurs at the L5-S1 endplate and moderate
spondylosis deformans at L4-5 and L3-4.   Dr. Morgan opined that these findings are caused by
degenerative disc disease and spondylosis and are preexistent to this neck strain motor vehicle
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injury of September 30, 2003.   He stated that degenerative disc disease occurs in the normal
aging process and is frequently advanced in heavy smokers because of lack of oxygenation to the
disc material and, further, that Donna’s degenerative disc disease, low back pain and right
sciatica were not caused or aggravated by the neck strain injury from the vehicle accident.   He
opined that the injuries Donna sustained in the accident were limited to her neck and did not
encompass injuries to her lower back with  right  sciatica.    Finally,  when asked about  the
possibility of a preexisting condition worsening due to trauma inflicted by an accident, both
experts testified that such a possibility exists and cannot be completely discounted.
In addition to the expert testimony, this Court considered the evidence of the Plaintiff’s
primary treating physician, Dr. Harrington, a general neurosurgeon who also performed the two
back surgeries.   In his medical records he states, similar to Dr. Feldmann, that Donna suffers
from a combination of mechanical and radicular pain symptoms.  He has not issued an opinion as
to the causation of these injuries.   In April of 2005, Donna underwent minimally invasive right
L4-5 micro discectomy to treat her radiculopathy.   Post operatively, Dr. Harrington described
Donna as having very little pain, excellent range of motion of her lumbar spine and indicated that
she did very well with the discectomy.   The term he used was perioperatively, meaning about or
around the time of the surgery.   He stated in his reports that Donna returned to him two and a
half years later.   He described her symptoms as intolerable in degree of low back pain and
spasm.   Dr. Harrington stated that her pain is debilitating, unremitting and severe.   After his
diagnosis of failed back syndrome he performed another surgical procedure, a transforaminal
interbody fusion, posterior lumbar interbody fusion and a posteroalteral fusion.   He described
these fusions as “extensive.”   He stated that two weeks after the surgery, Donna reported her
back to feel much better and that it is his impression that Donna was doing quite well with very
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little pain in the back and appeared to be healing fairly normally.   Six weeks after the surgery,
Donna visited him again.   Dr. Harrington stated that she continues to have very little back pain
and that she is much better.   On May 30, 2008, Dr. Harrington stated that Donna had an almost
complete resolution of her pre-operative symptoms.
Donna also underwent treatment with various other doctors in the time period between
2003 and 2011.   Dr. Broccoli, a chiropractor, Dr. Russo, a neurological surgeon, Dr. Hess, a
chiropractor and Dr. DiSanto, also a neurosurgeon, submitted affidavits that it is their opinion, to
a reasonable degree of medical certainty, that the injuries sustained by Donna are causally related
to the accident of September 30, 2003.   None of these doctors show any records of previous
visits by Donna before the accident occurred.   Furthermore, all of the doctors, with the exception
of Dr. Morgan, state that these treatments were a medical necessity.   The medical expenses for
all above treatments and surgeries total $269,000.
Additionally, Dr. Allan Feldman, an expert economist, testified on the Plaintiff’s behalf
in an arid yet credible and forthcoming manner.  He presented a life-expectancy table and opined
that, based upon his calculations, Donna’s loss of Future Earnings totaled  $99,000.    These
findings were corroborated by Dr. Feldmann’s testimony.   In response to the question as to
whether Donna would be able to work again in the jobs at which she was employed prior to the
accident, Dr. Feldmann stated that “it would be unlikely if there was anything that required
certain movement or repetitive action of any kind.”   Moreover, Dr. Russo assessed Donna’s
injury as a seven percent (7%) permanent partial impairment of the whole person.
Regarding the issue of pain and suffering and loss of enjoyment of life, Donna testified
that, prior to the accident, she was very active, enjoyed running, playing basketball and other
recreational activities.   She did her own shopping, her own laundry and her own household
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chores.   She had no trouble standing or sitting before the accident.   Her friend Kevin Cordeiro,
who testified on her behalf, corroborated these statements and explained that Donna had lived a
very active lifestyle.
Donna also testified that she had no back pain prior to the automobile accident and that
she began to experience back pain immediately subsequent to the collision.   Further, despite the
surgical procedures performed upon her, she testified that the back pain has continued unabated,
without any relief whatsoever to date.   Donna testified that she ceased playing sports due to her
constant back pain.   She stated that had become unable to perform daily chores and that she
required assistance with grocery shopping and doing laundry.   Due to her decreased physical
activity, she gained a considerable amount of weight and stated that she no longer liked to
venture outside.   Donna described a dependency on over the counter pain medication drugs.  She
is now unable to sit or stand comfortably for extended periods of time.   When asked for two
words to describe Donna’s state of existence after the accident, her sister’s husband testified that
these two words would be “hopeless and helpless.”   This Court finds that Donna’s life has
changed considerably for the worse after the accident.
The jury’s award of $193,584 shocks the conscience of this Court in its failure to respond
to the merits of this issue and in its failure to administer substantial justice.   See Shayer, 708
A.2d at 165 (quoting Hayhurst, 441 A.2d at 547); Cotrona, 501 A.2d at 733-34.   The award is
inadequate and does not cover Plaintiff’s medical bills, lost wages or any pain and suffering.
This Court can only surmise two possibilities for the utter inadequacy of the award.   First,
despite this Court’s limiting instructions, the Jury took into account that Donna’s medical bills
were covered by health insurance.   The medical records in evidence were replete with references
to both Medicare and Medicaid.   Alternately, the jury misconceived the significance of the
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evidence and disregarded testimony regarding the potential for worsening of a preexisting
condition, and therefore the jury undervalued the severity of the injuries sustained by Donna and
the resulting pain and suffering she endured.   Regardless of the reason for the jury’s award of
damages, this Court determines it to be inadequate to the point that either an additur is warranted
or a new trial must be granted.  See Roberts, 116 R.I. at 301-02, 356 A.2d at 218.
Based upon this Court’s independent assessment and review of the evidence related to
Plaintiff Donna Rose, this Court grants an additur of $428,416 to the jury award of $193,584 for
a total award of $622,000.  Defendant will be given 30 days to accept the additur of $428,416 for
Plaintiff Donna Rose.   See Roberts, 116 R.I. at 301-02, 356 A.2d at 218.   If the additur is not
accepted within that time period, this Court grants a new trial to Plaintiff on the issue of
damages.  See id.
IV.
CONCLUSION
Based upon the foregoing, this Court grants Plaintiff’s Motion for an Additur in the
amount of $428,416 for a total award of $622,000.   In the event that Defendant does not accept
the additur within 30 days, the Court grants Plaintiff’s Motion for a New Trial on the issue of
damages.
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