Opinion
No. HHB CV 05 4006433 S
February 16, 2007
MEMORANDUM OF DECISION ON POST-VERDICT MOTIONS AND OBJECTION TO BILL OF COSTS
This matter was tried to a jury in September 2006 and is before the court concerning the plaintiff Nancy Mayette's post-verdict motions, including a motion to set aside the verdict (#142), and a supplement to motion to set aside verdict (#145), and her objection to bill of costs (#146). On January 29, 2007, the court heard oral argument in connection with these matters.
After consideration, the court issues this memorandum of decision.
I BACKGROUND
On September 19, 2006, after seven days of trial, the jury rendered verdicts in favor of the defendant, Richard Froeb, M.D. The operative complaint is the plaintiff's one-count amended complaint, dated September 13, 2006 (#138) (the complaint). The plaintiff's claims stemmed from the defendant's surgical procedure to remove a ganglion cyst from the plaintiff's left foot in November 2004. The plaintiff claimed that the defendant failed to exercise the degree of care or skill ordinarily exercised by surgeons and that he failed to obtain the plaintiff's informed consent to the procedure. She claimed that, as a result, she suffered injuries and damages, some of which are likely to be permanent.
The jury rendered verdicts for the defendant as to liability concerning the plaintiff's claims. See Jury Interrogatories And Plaintiff's Verdict Form; Defendant's Verdict Form As To Negligence; and Defendant's Verdict Form As To Informed Consent. Additional facts are discussed below.
II MOTION TO SET ASIDE THE VERDICT
"The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence." (Internal quotation marks omitted.) Edmands v. Cuno, Inc., 277 Conn. 425, 452-53, 892 A.2d 938 (2006). "In reviewing the jury's verdict, [the court must] construe the evidence in the light most favorable to sustaining the verdict." (Internal quotation marks omitted.) Suffield Development Associates Limited Partnership v. Society For Savings, 243 Conn. 832, 843, 708 A.2d 1361 (1998). "The verdict will be set aside . . . only if . . . the jury could not reasonably and legally have reached their conclusion." (Internal quotation marks omitted.) Smith v. Greenwich, 278 Conn. 428, 441, 899 A.2d 563 (2006).In her motion to set aside the verdict (#142), the plaintiff contends that one of the interrogatories submitted to the jury concerning negligence limited its consideration to the surgical procedure performed by the defendant and did not allow it to consider post-surgical care. See plaintiff's motion to set aside verdict, p. 2.
In response, the defendant asserts that the plaintiff waived any right to object to the sufficiency of the jury interrogatories when she failed to submit her own interrogatories to the court, and, contrary to the plaintiff's counsel's assertion, agreed to the sufficiency of the interrogatories prior to the court's charge to the jury. Also, the defendant asserts that the plaintiff has failed to articulate any legitimate reason why the jury interrogatories prevented the jury from considering the claim that the defendant was negligent in his post-surgical care of the plaintiff. See defendant's objection to motion to set aside (#149), p. 1.
"`[T]he use of interrogatories has long been accepted practice in this state . . . their use to avoid the implications of a general verdict has long been favored by this court. Gaulton v. Reno Paint Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979).' Hammond v. Waterbury, 219 Conn. 569, 580, 594 A.2d 939 (1991). [A] trial court has broad discretion to regulate the manner in which interrogatories are presented to the jury, as well as their form and content . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law . . . And [it] requires a knowledge and understanding of the material circumstances surrounding the matter." (Citations omitted; internal quotation marks omitted.) Emerick v. Kuhn, 52 Conn.App. 724, 745, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied sub nom. Emerick v. United Technologies Corp., 528 U.S. 1005, 120 S.Ct. 500, 145 L.Ed.2d 386 (1999).
"Historically, it has been the practice of our trial courts to obtain separate verdicts from the jury on each count of a complaint in instances in which each count contains only one cause of action . . . It is the practice, if the rights of the parties so demand, to direct the jury to find upon each separate issue, when separate and distinct claims are to be determined by distinct issues . . . This practice was developed in order to enable a defendant facing joint and several liability with other defendants in an action involving multiple claims, to protect himself from a general verdict by requesting a verdict on each claim." (Citations omitted; internal quotation marks omitted.) Rossi v. Stanback, 230 Conn. 175, 179, 644 A.2d 352 (1994).
Prior to the commencement of the trial, in accordance with this court's direction, and in accordance with this judicial district's standing Civil Jury Trial Management Order, the defendant timely filed proposed jury interrogatories. The plaintiff failed to file any proposed jury interrogatories at any time, let alone in a timely manner. Instead, as discussed below, on Tuesday, September 19, 2006, the plaintiff twice agreed to the submission of the jury interrogatories which the court subsequently provided to the jury. First, plaintiff's counsel did so at the second charging conference, in the court's Chambers, after review of the interrogatories, in the court's and opposing counsel's presence. Then, on the record, prior to the closing arguments of counsel and the court's instructions to the jury, plaintiff's counsel again agreed to the interrogatories. The plaintiff's motion fails to mention her counsel's twice expressed, explicit agreement to the interrogatories which were provided to the jury.
The procedural history of the evolution of the jury interrogatories which were presented to the jury was as follows. With his preliminary request to charge (#134), the defendant timely submitted his proposed jury interrogatories, dated September 6, 2006. The proposed jury interrogatories concerning the plaintiff's claims were separated into three categories, negligence, informed consent, and damages. Interrogatory No. 1, which eventually became the subject of the plaintiff's motion to set aside the verdict, stated, in relevant part, "Do you the jury find that the plaintiff . . . proved by a preponderance of the evidence that the defendant . . . deviated from the applicable standard of care for a general orthopedic surgeon in his surgical excision of Mrs. Mayette's ganglion cyst?" Thus, before the evidentiary presentation at the trial began, the plaintiff was put on notice that the defendant requested this interrogatory in connection with the plaintiff's malpractice claim. As noted, the plaintiff submitted no proposed jury interrogatories. Instead, she submitted a plaintiff's general verdict form, dated September 7, 2006, which did not separate her negligence and informed consent claims.
During the course of the trial, the court and counsel discussed the proposed interrogatories. The evidentiary presentation of the case concluded on the morning of the sixth day of trial, Friday, September 15, 2006. Later that same morning, the court held the first charging conference, with both counsel, in the court's Chambers. At the conference, the court and counsel discussed a working draft of interrogatories, which was prepared by the court. Interrogatory No. 1 stated, in relevant part, "Do you the jury find that the plaintiff . . . proved by a preponderance of the evidence that the defendant . . . deviated from the applicable standard of care for a general orthopedic surgeon in his treatment of Mrs. Mayette's ganglion cyst?" During discussion, the defendant pointed out that the reference in the draft, to "treatment," was too broad.
The defendant provided revised, proposed jury interrogatories, dated September 15, 2006, in which his proposed Interrogatory No. 1 remained unchanged from that which was set forth in the September 6, 2006 request. See defendant's Exhibit B to his objection to motion to set aside (#149). Other changes were proposed, for example, to incorporate, by specific reference, itemization of the plaintiff's claims for economic damages and to correct parts of the directions to jurors contained on the defendant's September 6, 2006 request. Later on Friday, September 15, 2006 and on Monday, September 18, 2006, the defendant sent copies of case law to the court concerning other issues which were raised in the initial charging conference.
At the second charging conference, on Tuesday, September 19, 2006, the parties stated to the court that they agreed to the content of the interrogatories to be sent to the jury. This agreement included Interrogatory No. 1 as originally proposed by the defendant, quoted above. Final versions of the interrogatories were incorporated in the Jury Interrogatories And Plaintiff's Verdict Form, copies of which were provided to counsel for their review in the court's Chambers. Both counsel read them in the court's presence and advised the court that they agreed thereto. The court advised counsel that it would ask counsel to confirm their agreement in open court, on the record.
Thereafter, after court opened, and after the court referenced the two charging conferences, the following statements were made by the court and counsel:
"The Court: Also, the Court has, with counsel's assistance, prepared the verdict forms, and I understand from counsel that these verdict forms and interrogatories are acceptable to both parties. Is that correct?
Mr. Kramer [plaintiff's counsel]: Yes, Your Honor, that is correct.
Mr. Mayer [defendant's counsel]: That's correct, Your Honor." See Excerpt Transcript At Trial, September 19, 2006, p. 1, Exhibit C to defendant's objection to motion to set aside.
The plaintiff only questioned the interrogatories to which both parties agreed after the following had been completed: after both counsel's closing arguments; after the court had instructed the jury, including reading the jury interrogatories and verdict forms to the jury, after which the court then continued to instruct the jury on other subjects; and after the court asked, outside of the jury's presence, whether there were exceptions to the court's instructions.
In pertinent part, the plaintiff's counsel then stated, "Well, no exceptions except for one issue that just realized at the end there, Your Honor, that I have to bring to the Court's attention regarding the verdict forms. Specifically number 1, I had been looking at my initial one the Court gave me, which said, do you the jury find that the plaintiff Nancy Mayette proved by a preponderance of the evidence that the defendant Richard Froeb deviated from the applicable standard of care for a general orthopedic surgeon in his treatment of Mrs. Mayette's ganglion cyst, because as Your Honor's aware the plaintiff's complaint is that-in the complaint and in the evidence was that there was deviation from the standard of care in both the surgical and post-surgical care. And, I just realized that the one that the Court read to jury, I guess Your Honor, had given this morning, talks about only the surgical excision, and completely leaves out the plaintiff's claim as to post-surgical care and treatment. And, it should have — I think it should have been his care and treatment to include both surgical and post surgical care. But, the one I had been looking at had the language that the treatment of the ganglion cyst. Is [sic] this way one of the plaintiff's claims is eliminated." See Excerpt Transcript At Trial, September 19, 2006, pp. 51-52.
At oral argument on the motion to set aside, the plaintiff's counsel reiterated that he was making no challenge to the court's instructions to the jury. Rather, the plaintiff's motion to set aside the verdict is addressed only to the jury interrogatories.
In response, defense counsel stated, "Your Honor, this is the verdict form that we've been working with since last week. There haven't been any changes other than what we've all agreed to. And, in fact, before we came out this morning, Your Honor, asked whether or not this was the form we had agreed to. And we did. So, counsel's a little late in now trying to change it around after its not only been agreed to by him, but now, Your Honor, has read it to the jury." See Excerpt Transcript At Trial, September 19, 2006, p. 52.
In the motion to set aside, page 2, the plaintiff's counsel adds the assertion that he did not review the final draft of the interrogatories. As stated above, both counsel reviewed the final interrogatories in the court's presence at the second charging conference. If they had not done so, and not then agreed thereto, as was confirmed again on the record, the court would not have then proceeded to hear closing arguments and to instruct the jury.
Also, this court must express its strong exception to the implication raised by the motion that, somehow, the plaintiff's counsel was misled, by the court, into not reading the jury interrogatories to which he agreed. The court printed out the final document for both counsel to read in order to insure that they agreed to its contents. As stated above, this court observed the plaintiff's counsel when he read the final jury interrogatories in the court's presence in Chambers. The idea that the plaintiff's counsel thought he had agreed to an interrogatory which was contained on a working draft which was discussed in the previous week, is contrary to the events which occurred. If the duty to read what one agrees to is to have any meaning surely it must apply, in these circumstances, to an attorney who is representing a client in court. See First Charter National Bank v. Ross, 29 Conn.App. 667, 671, 617 A.2d 909 (1992), appeal dismissed, 228 Conn. 203, 635 A.2d 796 (1994) (certification improvidently granted) (notice of the contents of document imputed to a person who fails to read a contract affecting his interests).
For several reasons, in the exercise of its discretion, the court did not grant the plaintiff's request to modify the jury interrogatories after instructing the jury. See Emerick v. Kuhn, supra, 52 Conn.App. 745. After consideration of the parties' arguments, the court concludes that that decision was correct and denies the plaintiff's motion to set aside the verdict.
As the procedural history described above reflects, the plaintiff's request was untimely. The plaintiff did not comply with Practice Book § 16-22, which "requires that "[w]ritten requests to charge the jury and written requests for jury interrogatories must be filed with the clerk before the beginning of arguments or at such an earlier time as the judicial authority directs, and the clerk shall file them and forthwith hand one copy to the judicial authority and one to opposing counsel." (Emphasis in original.) Lawson v. Aetna Life Insurance Co., 59 Conn.App. 84, 88 n. 1, 755 A.2d 351 (2000).
Here, the plaintiff's request was made even later than in Hackling v. Casbro Construction of Rhode Island, 67 Conn.App. 286, 786 A.2d 1214 (2001), where the Appellate Court affirmed the trial court's exercise of its discretion in denying a plaintiff's request to amend previously submitted interrogatories, which was made immediately before the court called out the jury for final arguments and the charge. See id., 296. The Appellate Court stated, "The plaintiff failed to make a timely request for additional interrogatories because he filed his request, as the [trial] court described it, `almost literally at the last minute . . .' The trial court is better situated than this court to sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, the competing interests involved." (Internal quotation marks omitted.) Id., 297.
In commenting on the factors which the trial court in Hackling v. Casbro Construction of Rhode Island, supra, considered, the Appellate Court also noted another factor which influenced this court's decision here, the burden on the jury. "The court also discussed the burden that this request would have had on the jurors, who would have experienced a further delay in an already protracted trial proceeding because of the late request. This is so because the defense and the court would have needed time to review and possibly to redraft the plaintiff's proposed interrogatories." Id., 67 Conn.App. 298. Citing Practice Book § 16-22, the Appellate Court stated that the court's authority to limit the right to submit interrogatories "is made necessary by practical considerations inherent in presiding over a trial." Id. Here, this court also considered the burden on the jury, which had been required to come back to the court, in another week, on Tuesday, September 19, 2006, after the presentation of evidence had begun on Thursday, September 7, 2006 and the evidence had concluded on Friday, September 15, 2006. If the court had granted the plaintiff's request, more discussion with counsel would have ensued, and more time would have been occupied in re-formulating the jury interrogatories, which would have increased the burden on the jury.
Also, the plaintiff's request was an effort to secure an unfair tactical advantage, especially since it occurred after the plaintiff had twice agreed to the jury interrogatories and waived the claim which she was belatedly making. "The plaintiff's agreement to submit the verdict forms to the jury as recited above precludes her from claiming . . . that the submission of the forms was error . . . A party is also bound by a concession made during trial by her attorney . . ." (Citations omitted.) Nisbet v. Olmeda, 15 Conn.App. 6, 17, 544 A.2d 642 (1988).
If the court had granted the plaintiff's request, the defendant would have been prejudiced in two ways. First, he would have been deprived of the opportunity to comment on the changed jury interrogatories in his closing argument, which had occurred already, before the court instructed the jury and read the verdict forms to the jury.
Second, if the court had modified the interrogatories, it would have had to re-instruct the jury about this aspect of the case, which would have placed an unfair emphasis on a portion of the plaintiff's claims. "When delivering its charge to the jury, the court is bound by the overarching consideration that its comments be fair to all parties, dispassionate, proportional and avoid misplaced emphasis or omission . . . To meet this difficult and important task the trial court is afforded broad discretion . . . The trial judge, not the reviewing court, enjoys the best vantage to sense the atmosphere of the trial, and to assess what impact certain remarks will have on the jury." (Citations omitted.) Gianniti v. City of Stamford, 25 Conn.App. 67, 73-74, 593 A.2d 140, cert. denied, 220 Conn. 918, 597 A.2d 333 (1991). "A supplemental charge enjoy[s] special prominence in the minds of the jurors . . ." State v. Fletcher, 10 Conn.App. 697, 702, 525 A.2d 535 (1987), affirmed, 207 Conn. 191, 540 A.2d 370 (1988).
In addition, the jury was not precluded from finding that the defendant was negligent in his post-operative care of the plaintiff. When read together, the court's instructions and the jury interrogatories made clear that, in this case, "surgical excision" included all of the plaintiff's allegations of negligence and not just the defendant's operation on the plaintiff's foot. The jury interrogatories served the purpose of delineating the separate causes of action which the plaintiff had set forth in her one-count complaint, based on claimed negligence and based on claimed lack of informed consent. See Rossi v. Stanback, supra, 230 Conn. 179.
As stated above, the plaintiff did not file a request for jury interrogatories. Rather, she submitted a general verdict form. The defendant was entitled, pursuant to his timely filed request for jury interrogatories, to protect himself from the entry of a general verdict.
The interrogatory contained on the working draft provided by the court was, as stated above, too broad, in that it referenced "treatment" of the plaintiff's ganglion cyst, without limitation to the surgical excision of her ganglion cyst. Each negligence claim related to the surgery. In the plaintiff's complaint, paragraphs 5-7, she alleged that the defendant failed to exercise the degree of care or skill exercised by surgeons, in that he performed the surgery without the option of conservative treatment, in that he deviated from the standard of care in his operative treatment of the plaintiff and in that he failed to provide proper post-surgical care to the plaintiff. The interrogatory which was provided to the jury, to which each counsel agreed, was properly tailored to address the plaintiff's claims of negligence without including other treatment by the defendant, which was in evidence, but was not claimed by the plaintiff as a deviation from the standard of care. For example, the evidence presented to the jury included references to Dr. Froeb's recommendations concerning treatment of the plaintiff's complaints of pain and discomfort in her right hand and in her neck. See plaintiff's Exhibit 3 (records of Dr. Froeb).
In the circumstances here, interrogatories as to each of the plaintiff's allegations of negligence were not required. The court was only required, so as to prevent a general verdict, to submit interrogatories on the plaintiff's two causes of action, negligence and informed consent. The court's instructions made clear what claims the plaintiff was making as to negligence. With regard to the specific allegations of negligence as to which evidence was presented by the plaintiff at trial, the court properly instructed the jury. The court stated, in pertinent part, "The plaintiff alleges that she underwent a surgical procedure in November 2004 to remove a ganglion cyst from her left foot. She claims that she suffered injuries and damages as a proximate result of Dr. Froeb's failure to exercise the degree — the degree of care and skill ordinarily exercised by surgeons, in that he performed the surgery without the option of conservative treatment[,] in that he deviated from the standard of care in his operative treatment of the plaintiff, and in that he failed to provide proper post-surgical care to the plaintiff. The plaintiff need not prove all of these claims to prevail on her malpractice claim, she need only prove one to prevail." (Emphasis added.) See Exhibit C to defendant's objection to motion to set aside, Excerpt Transcript At Trial, pp. 13-14.
Thus, the court's instructions made clear that in answering the interrogatories, the jury was not limited to considering Dr. Froeb's operative care and treatment; his post-operative care and treatment was to be considered as well. Nowhere in the court's instructions was the post-surgical care and treatment excluded. The jury rendered separate verdicts for the defendant, as to negligence and as to informed consent.
"[I]t is well established that, [i]n the absence of a showing that the jury failed or declined to follow the court's instructions, we presume that it heeded them." (Internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 828, 882 A.2d 604 (2005). No such showing has been made here. The lack of jury confusion was further evidenced by the fact that the jury asked no questions of the court concerning the jury interrogatories. See State v. Luca, 19 Conn.App. 668, 672, 563 A.2d 752 (1989) (potential for confusion evidenced by certain questions asked by the jury during deliberations). Any claimed error "was cured by the court's clear and specific instructions . . ." Chapman v. Norfolk Dedham Mutual Fire Insurance Co., 39 Conn.App. 306, 316, 665 A.2d 112, cert. denied, 235 Conn. 925, 666 A.2d 1185 (1995).
Also, based on the evidence presented at the trial, there was no confusion as to what Interrogatory No. 1 was meant to encompass. The jury reasonably could have found that the plaintiff's negligence claims were unpersuasive since they were largely based on the testimony of Dr. Jack Gorman, a Pennsylvania podiatrist of questionable qualifications in that field, who, apparently, has testified in other states as a peripatetic expert witness. That testimony was refuted by the defendant's expert, Dr. Michael Aronow, a board-certified orthopedic surgeon at the University of Connecticut Health Center, who testified that no malpractice occurred. The jury was entitled to credit Dr. Aronow's testimony.
For all of the above-stated reasons, the court denies the plaintiff's motion to set aside the verdict.
III SUPPLEMENT TO MOTION TO SET ASIDE VERDICT A Timeliness
On October 23, 2006, more than one month after the jury's verdict was accepted by the court on September 19, 2006, the plaintiff filed a supplement to motion to set aside verdict (#145) (supplement to motion to set aside), in which she seeks to set aside the jury's verdict as to negligence for additional reasons, which were not stated in her motion to set aside the verdict. The defendant filed a preliminary objection thereto (#148), contending that the supplement to motion to set aside is untimely. The defendant subsequently filed his objection to plaintiff's supplemental motion to set aside (#150).
Practice Book § 16-35 provides, in relevant part, "motions to set aside a verdict . . . must be filed with the clerk within ten days after the day the verdict is accepted; provided that for good cause the judicial authority may extend this time." Concerning P.B. § 16-35's predecessor, former P.B. § 320, our Supreme Court stated,"[T]he filing deadline in Practice Book 320 is a mandatory requirement. The section says that `motions to set aside a verdict and motions for new trials . . . must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered . . .' (Emphasis added.) We have held other rules of practice that employ the term `must' or a similar term to be mandatory." Lo Sacco v. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989).
The plaintiff here did not file a motion seeking an extension of time to file a motion to set aside the verdict and does not claim that there was good cause to do so. In a similar context, our Supreme Court stated, "No motion to extend the time for filing the defendant's posttrial motions was timely filed nor was there any claim of good cause for such failure. When the time limit to file a motion to set aside the verdict as against the evidence was twenty-four hours this court said: `As we said in Brown v. Congdon, 50 Conn. 302, 311, with reference to a motion in arrest of judgment, the limitation, although the time is short, is found by experience to be on the whole for the interest of the public.'" (Citation omitted.) Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988).
It is evident that the plaintiff, without citation to any support, is seeking to circumvent this mandatory Practice Book requirement by styling what is really an untimely motion to set aside the verdict as a "supplement" to her previously0 filed motion to set aside the verdict. See Engle v. Personnel Appeal Board, 175 Conn. 127, 133, 394 A.2d 731 (1978). There is no "relation back doctrine" which authorizes such an attempt. See Demning v. Nationwide Mutual Insurance Co., 279 Conn. 745, 775, 905 A.2d 623 (2006) ("relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations"). Also, the grounds set forth in the supplement to motion to set aside, which are discussed below, are unrelated to the basis set forth in the plaintiff's motion to set aside the verdict, which is discussed in the previous section of this memorandum of decision.
The ten-day period set forth in P.B. § 16-35 is mandatory. The supplement to motion to set aside was untimely filed and, therefore, the grounds stated therein cannot be utilized as bases for setting aside the verdict.
B Audiotape
In her supplement to motion to set aside, the plaintiff challenges the court's evidentiary ruling as to an audiotape of a telephone message. Even if the grounds stated in the supplement to motion to set aside had been timely presented in a motion to set aside the verdict, the court concludes, after further consideration, that its ruling was correct.
Citing Connecticut Code of Evidence § 7-4(b), the plaintiff contends that the court erred in not admitting the audiotape since the plaintiff's expert, Dr. Gorman, had referred to it in rendering his opinion as to negligence and causation, and it was of a type customarily relied on by experts in forming opinions. The plaintiff argues that her expert should have been permitted to state the contents of the statement on the audiotape for the limited purpose of establishing the facts on which he relied.
In response, the defendant contends that § 7-4 did not require the court to admit the audiotape for the purposes of establishing facts on which Dr. Gorman relied in arriving at his opinions. The defendant asserts that the court correctly preluded the introduction of the audiotape because it was hearsay; contained an undisclosed expert opinion by a treating podiatrist, Dr. Gary Jolly; and was otherwise inadmissible.
Code of Evidence § 7-4 provides, in relevant part, "(a) Opinion testimony by experts. An expert may testify in the form of an opinion and give reasons therefor, provided sufficient facts are shown as the foundation for the expert's opinion, (b) Bases of opinion testimony by experts. The facts in the particular case upon which an expert bases an opinion may be those perceived by or made known to the expert at or before the proceeding. The facts need not be admissible in evidence if of a type customarily relied on by experts in the particular field in forming opinions on the subject. The facts relied on pursuant1 to this subsection are not substantive evidence, unless otherwise admissible as such evidence."
The official commentary to § 7-4 states, in relevant part, "subsection (b) provides that the facts upon which an expert bases his or her opinion need not be admissible if of a type customarily relied on by experts in the particular field in forming their opinions . . . For purposes of subsection (b), inadmissible `facts' upon which experts customarily rely in forming opinions can be derived from sources such as conversations, informal opinions, written reports and data compilations. Whether inadmissible facts are of a type customarily relied on by experts in forming opinions is a preliminary question to be decided by the trial court . . . Subsection (b) expressly forbids the facts upon which the expert based his or her opinion to be admitted for their truth unless otherwise substantively admissible under other provisions of the Code. Thus, subsection (b) does not constitute an exception to the hearsay rule or any other exclusionary provision of the Code. However, because subsection (a) requires disclosure of a sufficient factual basis for the expert's opinion, and because the cross-examiner often will want to explore the expert's factual basis further, subsection (b) does not preclude the trial court, in its discretion, from admitting the underlying facts relied on by the expert for the limited purpose of explaining the factual basis for the expert's opinion. See, e.g., 2 C. McCormick, Evidence (5th Ed. 1999) § 324.3, p. 356." (Citations omitted.)
Section 7-4 is consistent with recent appellate authority. In CT Page 4041 Poulin v. Yasner, 64 Conn.App. 730, 742, 781 A.2d 422, cert. denied, 258 Conn. 911, 782 A.2d 1245 (2001), citing George v. Ericson, 250 Conn. 312, 321-24, 736 A.2d 889 (1999), our Appellate Court stated, "In George, our Supreme Court established that a nontreating physician's opinion may be admissible even if it is based on what would otherwise be inadmissible hearsay as long as the opinion is based on trustworthy information and the expert has had sufficient experience to evaluate it, including tests, medical records, statements by a party, laboratory reports and X rays . . . The sources of information are not limited and include many types of information." (Citation omitted; internal quotation marks omitted.)
The plaintiff attempted to have the contents of the audiotape admitted though two different witnesses, Dr. Gorman and Dr. Jolly. First, on September 8, 2006, Dr. Gorman, in testifying concerning the standard of care and causation, opined that, in Dr. Froeb's operation on the plaintiff's ganglion cyst, Dr. Froeb did not remove the entire cyst. When the plaintiff's counsel then asked the witness to give the basis for his opinion, Dr. Gorman began to testify as to a statement by Dr. Jolly. The defense then objected on the basis of hearsay. See Excerpt Transcript, September 8, 2006, p. 11, Exhibit A to objection to plaintiff's supplemental motion to set aside. The court excused the jury to hear argument on the objection. The witness then stated that "Dr. Jolly left a taped message on the patient's phone which I heard, and also had typed down, and that's what I was referring to." See Excerpt Transcript, September 8, 2006, p. 12; plaintiff's Exhibits 9 and 10 for identification (transcription and audiotape).
The trial transcript reflects that the attorney for the plaintiff never asked the witness the essential foundational question required by Code of Evidence § 7-4, whether the cited facts, here contained in an audiotaped statement left on an2 answering machine, were "of a type customarily relied on by experts in the particular field in forming opinions on the subject." Code of Evidence § 7-4(b). See Excerpt Transcript, September 8, 2006, pp. 11-15. The plaintiff never established that her expert's opinion was "based on trustworthy information and the expert had sufficient experience to evaluate that information so as to come to a conclusion which the trial court might well hold worthy of consideration by the jury." (Internal quotation marks omitted.) Carusillo v. Associated Women's Health Specialists, P.C., 72 Conn.App. 75, 85, 804 A.2d 960, remanded on other grounds, 262 Conn. 920, 812 A.2d 861 (2002).
Instead, counsel for the plaintiff stated that he had reached agreement with defense counsel on this subject, which resolved the objection. See Excerpt Transcript, September 8, 2006, p. 14. Plaintiff's counsel agreed that Dr. Gorman would testify that he relied on something that Dr. Jolly said, without telling the jury what he thought Dr. Jolly said. See Excerpt Transcript, September 8, 2006, p. 14.
Thus, since the parties reached agreement, the court did not then make a ruling. See the official commentary to Code of Evidence § 7-4(b), quoted above. The plaintiff's agreement on this topic precludes her from claiming error by the court in not permitting Dr. Gorman to state the contents of the audiotape for the purposes of establishing the facts on which he relied. See Nisbet v. Olmeda, supra, 15 Conn.App. 17. Also, as noted, the plaintiff never laid a proper foundation for the witness to provide the substance of the statement on which he relied.
Subsequently, on September 12, 2006, the plaintiff attempted to introduce the audiotape during Dr. Jolly's testimony. Dr. Jolly performed surgery on the plaintiff's foot in April 2005, after the defendant's surgery in November 2004. See Plaintiff's Exhibit 5. In his testimony, Dr. Jolly stated that he could not recall making the phone call which the audiotape allegedly recorded. See Excerpt Transcript, September 12, 2006, p. 9, Exhibit C to objection to plaintiff's supplemental motion to set aside. In the audiotape, which was played for the court outside the presence of the jury, the speaker states that he found "the stalk." It was this statement, presumably, which Dr. Gorman stated was a basis for his opinion that Dr. Froeb had not removed the entire ganglion cyst during the surgery which Dr. Froeb performed.
The plaintiff offered the tape as a full exhibit, stating that it was a statement on which his expert relied on in part for his opinion. See Excerpt Transcript, September 12, 2006, p. 17. At that time, the plaintiff argued also that the audiotape was admissible as a hearsay exception under Code of Evidence § 8-3(6). The supplement to motion to set aside does not challenge the court's3 ruling that the audiotape was not admissible under Code of Evidence § 8-3(6). See Excerpt Transcript, September 12, 2006, pp. 21-22.
Code of Evidence § 8-3(6), concerning hearsay exceptions, provides, "Recorded recollection. A memorandum or record concerning an event about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness at or about the time of the event recorded and to reflect that knowledge correctly."
As the court explained in its ruling, the speaker's statement on the audiotape was inadmissible hearsay, in that it was actually presented for the truth of the matter asserted. The court also concluded that the audiotape was offered for the purpose of causally connecting what was allegedly found by Dr. Jolly to what occurred in Dr. Froeb's surgery on the plaintiff, and was not admissible, since the connection would be based only on surmise or conjecture. See Struckman v. Burns, 205 Conn. 542, 554-55, 534 A.2d 888 (1987).
In addition, in its ruling, the court noted that, to the extent that the audiotape was being offered under Code of Evidence § 7-4(b), it was not offered as "of a type customarily relied on by experts in the particular field in forming opinions on the subject." See Excerpt Transcript, September 12, 2006, pp. 21-22. As discussed above in connection with Dr. Gorman's testimony, the proper foundation was not laid for this purpose.
In Farrell v. Bass, 90 Conn.App. 804, 879 A.2d 516 (2005), the plaintiffs also relied on Code of Evidence § 7-4(b); they sought to have their medical expert testify about a medical journal article. "The gist of the plaintiffs' argument is that because an expert may base his or her opinion on facts that are otherwise not admissible in evidence, that expert ought to be permitted to testify about those facts and how they corroborate his or her opinion." Id., 817.
The court rejected this argument and termed the content of the article to be hearsay. See id., 817-18. Although offered under Code of Evidence § 7-4(b), the court concluded that the plaintiffs "sought to have that content offered to prove the truth of the matter asserted, namely, that Coumadin did not increase the incidence of bleeding complications in the type of surgery at issue in this case." Id., 818. Thus, the court found that the "facts" at issue in the case were the same facts discussed in the article and that, effectively, testimony about the article was being offered for the truth of the matter asserted in the plaintiff's cause of action. The court found that "any testimony regarding the content of the article was inadmissible hearsay and, therefore, properly precluded." Id., 818-19.
Here, similarly, the plaintiff attempted to establish Dr. Jolly's opinion, first through Dr. Gorman, by arguing that Dr. Gorman had relied on Dr. Jolly's statement, and then through presentation of the audiotape itself. The statement on the audiotape, however, related directly to a central fact at issue, i.e. whether Dr. Froeb had been negligent in not removing all of the plaintiff's ganglion cyst. Thus, by presenting Dr. Jolly's out-of-court statement, the plaintiff was asserting its truthfulness. That statement was hearsay, without an applicable exception, and was properly excluded by the court.
In its ruling as to the audiotape, the court also noted that Dr. Jolly was testifying at trial as a fact witness, not as an expert disclosed by the plaintiff. See Excerpt Transcript, September 12, 2006, pp. 21, 32; see Joint Trial Management Conference Report, dated June 13, 2006, p. 3 (the only expert4 witness plaintiff listed was Dr. Gorman), Exhibit B to defendant's objection to defendant's supplemental motion to set aside. Dr. Jolly had not been listed by the plaintiff as a trial witness at all. When he testified at trial, Dr. Jolly did so pursuant to the parties' agreement that he would be called by the plaintiff for the purpose of authenticating the audiotape. The court also properly precluded the plaintiff's effort to present opinion evidence of causal connection through Dr. Jolly's testimony, since Dr. Jolly had not been listed as a witness or disclosed by the plaintiff as an expert witness, and it would have been unfair and unduly prejudicial to the defendant to permit the plaintiff to do so in the midst of trial. See Excerpt Transcript, September 12, 2006, p. 32; Precision Mechanical Services, Inc. v. Shelton Yacht And Cabana Club, Inc., 97 Conn.App. 258, 264-65, 903 A.2d 692, cert. denied, 280 Conn. 928, 909 A.2d 524 (2006) (court did not abuse its discretion in prohibiting testimony from expert who was disclosed after trial had begun).
For the foregoing reasons, the plaintiff's supplement to motion to set aside is denied.
IV COSTS
In her objection to the defendant's bill of costs (#146), the plaintiff objects to the fees charged for the services of Dr. Michael Aronow, who testified as a defense expert. She claims that the invoices presented by the defendant are hearsay, and no testimony was provided by Dr. Aronow as to his hourly fees or the amount of time spent in preparing for trial. In addition, she argues that General Statutes § 52-260(f) does not authorize the awarding of costs for deposition preparation, for review of depositions, for trial preparation, or for attendance at trial for purposes of assisting defense counsel. She also argues that the fees charged for his trial testimony are unreasonable, claiming that he was taken out of turn on numerous occasions to accommodate his schedule.
In addition, she objects to the $3,000.00 expert fee sought by the defendant for Dr. Jolly, since Dr. Jolly did not testify as a defense expert. She argues that he was called as a fact witness by the plaintiff and was on the witness stand for less than an hour. Finally, she contends that General Statutes § 52-257(b)(5) does not authorize an award of costs for creating exhibit enlargements, which is sought by the defendant. The court discusses each of these objections below.
General Statute § 52-260(f), concerning "Witness Fees," provides, in relevant part, "[w]hen any practitioner of the healing arts . . . gives expert testimony in any action or proceeding, including by means of a deposition, the court shall determine a reasonable fee to be paid to such practitioner of the healing arts . . . and taxed as part of the costs in lieu of all other witness fees payable to such practitioner of the healing arts . . ." It is undisputed that Dr. Aronow, an orthopedic surgeon, is a practitioner of the healing arts.
The defendant properly presented evidence of the hourly rate charged by and the hours spent by Dr. Aronow in connection with work on this matter, by submitting copies of Dr. Aronow's invoices, in which Dr. Aronow described the5 work that he did and the charges for that work, at $600.00 per hour for court appearance time and at $250.00 per hour for other work. Evidence in support of amounts claimed in bills of costs may be presented by submitting invoices. See Honan v. Dimyan, 63 Conn.App. 702, 711-12, 778 A.2d 989, cert. denied, 258 Conn. 942, 786 A.2d 430 (2001).
"There is a split of authority in the Superior Court as to whether expert preparation time should be included in the costs awarded. See Flores v. Jenison, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01-0278648 S (June 23, 2004, Frazzini, J.) ( 37 Conn. L. Rptr. 328), n. 2 (collecting cases). This court agrees with the analysis stated there." Quirk v. Koobatian, Superior Court, judicial district of New Britain at New Britain, Docket No. HHB CV 02 0518171 (January 23, 2006, Shapiro, J.) ( 40 Conn. L. Rptr. 691).
"Consistency in interpreting General Statutes § 52-260(f) and Practice Book § 13-4 would dictate that an opponent or non-prevailing party be required to pay both for actual time testifying and for time spent preparing to testify. This court can see no reason why reasonable travel time to and from court and time reasonably spent in court waiting to testify are not also part of `a reasonable fee to be paid to the practitioner.'" Flores v. Jenison, supra. "It makes no sense for the statute to prevent an expert from receiving payment for its preparation, travel, or waiting time; doing so would only lead to experts charging a fee for testifying that took into consideration the fact they could not receive payment for time spent preparing, traveling or waiting." Id. See also Lamphere v. Norwich Anesthesia Associates, Superior Court, judicial district of New London at New London, Docket No. 534970 (May 13, 1999, Mihalakos, J.) (permitting reasonable compensation for preparation time and travel time).
"[T]rials are 90% preparation and 10% presentation." (Internal quotation marks omitted.) Lidman v. Nugent, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV96-0052905 (March 13, 2001, Flynn, J.) ( 29 Conn. L. Rptr. 450). The defendant is entitled to reasonable sums for the time spent by Dr. Aronow in preparing to testify at his deposition and at the trial, and for the time incurred in connection with his testimony.
The plaintiff has not claimed that the hourly rates charged by Dr. Aronow are unreasonable. The court concludes that the rates charged are reasonable. The court has considered the various factors which other courts have utilized in setting reasonable expert fees. See Bernard v. Leon, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0192329 (March 3, 2006, Dooley, J.) ( 40 Conn. L. Rptr. 816). Thus, the court has considered: (1) Dr. Aronow's area of expertise; (2) his education and experience; (3) the nature and complexity of the issues about which the doctor testified; (4) the fees charged to the defendant for file review; (5) the doctor's general fee for testimony; (6) the actual length of time required for his trial testimony; and (7) the prevailing rates of other similar experts. See McNeely v. McDonald's Corp., Superior Court, judicial district of New London at New London, Docket No. 5000054 (November 17, 2006, Hurley, J.T.R.) ( 42 Conn. L. Rptr. 372) ($500.006 per hour fee for orthopedic surgeon); Gormley v. M C Transport, Superior Court, judicial district of Fairfield at Bridgeport (October 15, 2004, Dewey, J.) ( 38 Conn. L. Rptr. 81) ($1,000.00 per hour fee for orthopedic surgeon).
At oral argument, the plaintiff, without citation to evidence, asserted that the court should take into account that Dr. Aronow is a salaried doctor working at the University of Connecticut who did not lose any salary as a result of testifying in this matter. In response, the defendant challenged the basis for the assertion that Dr. Aronow was not entitled to a fee because of his affiliation with the University of Connecticut Health Center. The court notes that Dr. Aronow's invoices direct that payment be made to him, rather than to the University. In the absence of a reference to the evidentiary record, the court cannot make an assumption concerning the terms under which Dr. Aronow is compensated for his work at the University.
The court finds that the amount sought for deposition preparation, $812.50 (as set forth in the defendant's response to the court's February 5, 2007 order) is reasonable. The rate charged was $250.00 per hour, for three and one-quarter hours of time spent in records review and preparation prior to and on the day of the deposition.
The court declines to award the $1,375.00 sought for Dr. Aronow's trial preparation time in June 2006, before the previously scheduled commencement of jury selection date of June 21, 2006. The court's file reflects that the defendant, due to his surgery schedule and office commitments, requested the trial continuance which was granted by the court. The plaintiff should not be required to pay for two periods of Dr. Aronow's trial preparation.
The court finds, in view of the trial issues presented, that the amount sought for Dr. Aronow's trial preparation time in August 2006 and September 2006, $3,000.00, billed at $250.00 per hour for twelve hours, is reasonable. The case involved a significant amount of medical records which required review. Also, according to Dr. Aronow's trial testimony, part of his time was used to review deposition testimony. Such time was reasonably spent by an expert in preparing to testify in court. The time incurred in August was close to the date set for the commencement of jury selection, August 30, 2006.
At the trial, Dr. Aronow, by agreement of the parties, testified out of order. He appeared in court and testified on three days, September 12, 13, and 14, 2006. On the first day, September 12, 2006, for which Dr. Aronow charged for 8.5 hours of time, Dr. Gorman's testimony was completed, and Dr. Jolly testified briefly, before Dr. Aronow's testimony began in the afternoon. Clearly, it was uncertain exactly when Dr. Aronow's testimony would begin on that day. As noted above, it is reasonable to charge for time during which a testifying expert has to wait in court. Also, Dr. Aronow observed Dr. Gorman testify during that time. On the other days when he testified, Dr. Aronow's own schedule was accommodated and he testified again in the afternoons. The court finds that the amount sought for the days of his trial testimony, $8,400.00, is reasonable.
The costs sought by the defendant for trial testimony by Dr. Jolly, $3,000.00, are not authorized by General Statutes § 52-260(f), which is cited by7 the defendant in his bill of costs. As noted, Dr. Jolly testified briefly as a fact witness, called by the plaintiff. Although he had been disclosed a witness by the defendant, he was not called to testify as a defense expert.
As discussed above, Section 52-260(f) provides, in relevant part, that a reasonable fee is to be awarded for " expert testimony in any action or proceeding . . . and taxed as part of the costs in lieu of all other witness fees payable to such practitioner of the healing arts . . ." (Emphasis added.) Dr. Jolly did not provide expert testimony. At trial, on September 12, 2006, the defendant objected to further testimony by Dr. Jolly after the issue of the audiotape was addressed. See excerpt transcript, September 12, 2006, p. 29, Exhibit C to defendant's objection to plaintiff's supplemental motion to set aside. The fact that the defendant summoned Dr. Jolly to be in court for the purpose of giving expert testimony which did not occur does not warrant an award under the statute. See Flores v. Jenison, supra (act precludes an award of fees to a non-testifying expert); Cohen v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. 365908 (January 17, 2003, Levin, J.) ( 33 Conn. L. Rptr. 721) (§ 52-260(f) requires that expert testimony be given).
Citing General Statutes § 52-257(b)(5), the defendant also seeks an award of $1,413.61 for exhibit enlargements which were used at trial. Section 52-257(b)(5), concerning fees of parties in civil actions, provides, in relevant part, "[p]arties shall also receive: . . . for maps, plans, mechanical drawings and photographs, necessary or convenient in the trial of any action, a reasonable sum." The enlargements or boards (as described in the invoice presented with the bill of costs) were used at trial to enable the jury to better see what was being discussed.
The plaintiff does not dispute the reasonableness of the amounts which are claimed. While the plaintiff claims that § 52-257(b)(5) does not include exhibit enlargements, the court is unpersuaded. The enlargements used were "photographs," which are within the statute. See Ahern v. Moskovitz, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 86-0313898 (September 26, 1990, Maloney, J.) [ 2 Conn. L. Rptr. 471] (costs awarded under § 52-257(b)(5) for photographic enlargements of medical records and reports). The court finds that the amount sought is reasonable and that the boards made presentation of the issues more convenient for the jury's consideration. Accordingly, this cost is awarded.
In summary, the plaintiff's objection to the defendant's bill of costs is sustained, in part, in the total amount of $4,375.00, for Dr. Aronow's June 2006 trial preparation time and as to Dr. Jolly. The objection is otherwise overruled. Accordingly, costs to the defendant are awarded in the amount of $13,918.11.
CONCLUSION
For the foregoing reasons, the plaintiff's motions to set aside the verdict are denied. The plaintiff's objection to the defendant's bill of costs is sustained in8 part and overruled in part. Costs in the amount of $13,918.11 are awarded to the defendant. It is so ordered.