Opinion
HHDCV116017398
08-23-2018
David PORCARO, Conservator of the Estate of Mark Porcaro v. HARTFORD HOSPITAL et al.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
ELGO, J.
Before this court is the March 31, 2017 motion to set aside the jury verdict filed by the plaintiff, David Porcaro, conservator of the estate of Mark Porcaro. The plaintiff filed a memorandum of law in support of that motion on May 1, 2017. Objections to the motion to set aside were filed by defendants Jefferson Radiology and Richard Goldman, M.D. (Jefferson defendants) on May 31, 2017, by defendant Hartford Hospital (hospital) on June 1, 2017, and by defendants Neurosurgeons of Central Connecticut, P.D. (NCC), David Kvam, M.D. (Kvam), and Paul J. Schwartz, M.D. (Schwartz) (collectively NCC defendants) on June 1, 2017.
Also before this court are the defendants’ August 2017 objections and motions to strike the plaintiff’s proposed exhibit 56, which contains unofficial recordings of voir dire proceedings made by the plaintiff. Those recordings were not admitted at trial, but rather were offered to the court following trial to substantiate certain claims raised in the plaintiff’s motion to set aside. Following failed efforts by the parties to come to an agreement regarding that exhibit, the plaintiff filed a responsive pleading on February 7, 2018, to which the defendants filed replies in March 2018. The plaintiff thereafter filed a "global response" to the defendants’ posttrial pleadings on May 17, 2018.
Trial of this medical malpractice case occurred over a period of nine weeks from January 18 to March 21, 2017. On March 21, 2017, the jury returned a verdict in favor of all defendants. The jury interrogatories establish that the plaintiff did not meet his burden of proof as to the standard of care with respect to any of the defendants and, as such, the jury did not reach the issues of causation or damages.
The plaintiff asserts that this court erred with respect to its rulings related to (1) jury selection, (2) causation, and (3) the preclusion of evidence and testimony from Dr. James Donaldson. The plaintiff raises an additional claim of error relating to this court’s decision to deny the plaintiff’s request for an official court record of the entire voir dire process. For the reasons outlined below, the court denies the motion to set aside.
This court notes twenty-three claims of error in the plaintiff’s original motion to set aside; this decision addresses only the issues properly briefed and deems the remaining claims of error abandoned.
Legal Standard
"A trial court has the inherent power to set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict ... It is proper for a trial court, using due caution, and in the exercise of its discretion, to set aside a verdict when satisfied that ... its rulings on evidence were erroneous and that those erroneous ... rulings were consequential enough to have had a substantial effect on the verdict." (Internal quotation marks omitted.) Holmes v. Hartford Hospital, 147 Conn.App. 713, 719-20, 84 A.3d 885 (2014). At the same time, the trial court "should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles." (Internal quotation marks omitted.) Monti v. Wenkert, 287 Conn. 101, 110, 947 A.2d 261 (2008).
II. Jury Selection
With respect to the jury selection process, the plaintiff contends that this court erred in (1) failing to give the plaintiff additional challenges during jury selection and/or limit the number of jury challenges given the defendant; (2) permitting defense counsel to caucus at the conclusion of the questioning of each venireperson prior to the exercise of challenges; and (3) failing to alter the order in which challenges were exercised. Underlying those claims is the plaintiff’s core contention that the three groups of defendants possessed a unity of interest, which this court did not find. The defendants deny that they share a unity of interest and further argue that the plaintiff, by failing to exhaust his peremptory challenges, cannot establish that he was harmed by the court’s rulings. Having considered the claims of the parties, the court concludes that there is no sound basis for a new trial on the claims of error relating to the jury selection process.
In making those claims, the plaintiff cites to no case law or authority beyond vague citations to General Statutes § § 51-241 and 51-243 and the relevant provisions of the federal and state constitutions. Specifically, the plaintiff fails to address the defendants’ charge that (1) he failed to exhaust his peremptory challenges and thus cannot establish the requisite harm and (2) the defendants do not share a unity of interest. Instead, the plaintiff claims that the defendants’ unity of interest was apparent by the defendants conferring with each other and/or from the order in which the parties exercised challenges.
General Statutes § 51-241 provides: "On the trial of any civil action to a jury, each party may challenge peremptorily three jurors. Where the court determines a unity of interest exists, several plaintiffs or several defendants may be considered as a single party for the purpose of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. For the purposes of this section, a ‘unity of interest’ means that the interests of the several plaintiffs or of the several defendants are substantially similar. A unity of interest shall be found to exist among parties who are represented by the same attorney or law firm. In addition, there shall be a presumption that a unity of interest exists among parties where no cross claims or apportionment complaints have been filed against one another. In all civil actions, the total number of peremptory challenges allowed to the plaintiff or plaintiffs shall not exceed twice the number of peremptory challenges allowed to the defendant or defendants, and the total number of peremptory challenges allowed to the defendant or defendants shall not exceed twice the number of peremptory challenges allowed to the plaintiff or plaintiffs."
In advancing the claim that the defendants share a unity of interest, the plaintiff ignores the relevant case law and instead suggests that the mere fact that parties to a litigation may have an opponent in common or may discern some advantage in working cooperatively somehow manifests a unity of interest. Yet "[t]he primary test to determine the existence of a unity of interest is whether there are separate issues of liability as to the two entities or persons. If the liability bases differ, there is no unity of interest." Marshall v. Hartford Hospital, 65 Conn.App. 738, 750, 783 A.2d 1085 (2001). The operative complaint plainly indicates, and the plaintiff does not dispute, that his theories of liability as to each of the defendants were relatively distinct and based upon different time frames, conduct, and standards of care. The course of trial further established those critical distinctions.
Nor did the plaintiff see fit, as would ordinarily be standard practice, to file a motion for a finding, of a unity of interest among the defendants in advance of jury selection. See, e.g., Heath v. Day Kimball Hospital, Superior Court, judicial district of Hartford, Complex Litigation Docket, X04-CV-11-6026678-S, (March 23, 2015) (plaintiff’s motion seeking unity of interest finding filed and heard by court two days before commencement of jury selection). This omission by experienced counsel suggests that the plaintiff, at the outset, recognized no viable unity of interest claim.
Even if there were some merit to the plaintiff’s claims regarding the process of jury selection, his "motion re jury selection," which was filed after jury selection was underway, specifically sought the award of additional peremptory challenges as an alternate remedy in the event that this court rejected his request for a gag order on the defendants and/or to alter the order in which challenges were exercised. Having denied those requests, this court specifically agreed to allow the plaintiff the opportunity to request additional peremptories in the event that he exercised all nine before the full jury and alternates were selected. The plaintiff nevertheless did not exhaust his peremptories, effectively acquiescing to the composition of the jury.
Here the plaintiff was awarded nine peremptory challenges, while each set of defendants (the NCC defendants, the radiology defendants) had six. Jury selection in this matter began on October 19, 2016 and concluded on November 29, 2016.
"Peremptory challenges are ... not an end in themselves, but rather a means to an end: an impartial jury. Where a party receives an impartial jury, the issue of peremptories is moot. The question is thus whether [the parties] obtained a fair jury despite the imbalance of peremptories ... A party who exercises peremptory challenges not required by law does not shape the jury to her advantage, but, rather, excludes prospective jurors whom she suspects are biased against her or partial to the opposing party. The result is not a biased jury, but a fair and impartial one." (Citations omitted; internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 638-39, 904 A.2d 149 (2006). Thus, as a threshold to demonstrating such harm, a complaining party must exhaust all of its peremptory challenges and request additional challenges. Id., 639; see also Connecticut Mutual Life Ins. Co. v. Hillmon, 188 U.S. 208, 212, 23 S.Ct. 294, 47 L.Ed. 446 (1903) (failure to exhaust challenges effectively manifests acquiescence to composition of jury).
Mindful of that well-established authority, this court notes what the plaintiff has not claimed and what it did not do in this case. The plaintiff does not dispute that his failure to exhaust his peremptory challenges is fatal to his ability to demonstrate harm. As a result, the plaintiff cannot, and does not, attempt to demonstrate that any individual juror was biased against him; Carrano v. Yale-New Haven Hospital, supra, 279 Conn. 641; since he retained the right to exercise a peremptory challenge against any juror. Because the plaintiff cannot establish the requisite harm, there is no basis for setting aside the jury’s verdict based on the jury selection process.
III. Failure to Grant Plaintiff’s Motion for Official Court Recording
The plaintiff also claims that this court improperly denied his motion for an official court recording of the entire voir dire process. Citing to State v. Onofrio, 179 Conn. 23, 34, 425 A.2d 560 (1979), in which our Supreme Court found error in the trial court’s failure to mark certain exhibits for identification, the plaintiff suggests that this court had no discretion to deny his motion to require a court monitor to record what was anticipated to be four to six weeks of jury selection.
The plaintiff has offered no authority applicable to civil proceedings which mandates an official court recording of the entire voir dire process. The current practice, in which the parties request the presence of the court and a monitor for discrete issues, was available to the parties and was utilized during jury selection in this case. As counsel is well aware, when the court is called to resolve issues specific to particular jurors, the court relies on the recitation of counsel, presumably based on memory or notes, regarding a venireperson’s responses to evaluate whether the exercise of a peremptory is necessary or whether a venireperson may be excused for cause. Upon request, that recitation is presented and/or the venireperson is questioned again on the record to ensure that both the particular issue and the court’s ultimate ruling are preserved for appellate review.
Furthermore, there is no dispute that, in this case, the court granted the unusual request of counsel for the plaintiff to make an unofficial recording to assist counsel in making a record. Well aware of the current convention in civil voir dire proceedings, the court allowed such recordings so that "[counsel could] keep notes and ... make whatever record [counsel] want[ed] to make after the fact." The plaintiff now offers exhibit 56, which purports to be the plaintiff’s "series of recordings," for this court’s consideration for purposes of ruling on the motion to set aside. The defendants have filed both objections to the exhibit and motions to strike based on lack of authentication, reliability, and completeness. While this court agrees that these objections are well-founded, what also is not before the court is any offer of proof as to the relevance of exhibit 56. In other words, the plaintiff has failed to show how anything in the transcription advances the specific claims of error the plaintiff makes relative to jury selection. See State v. Hawkins, 162 Conn. 514, 516, 294 A.2d 584 (1972) (proponent of evidence under obligation to provide court "some inkling" as to ground of admissibility claimed).
Nowhere in the record does the plaintiff represent that such a recording would be offered, without more, in lieu of an official recording.
That logic applies equally to the claims of error regarding the denial of the plaintiff’s request for an official recording of the entire voir dire process. While this court does not agree with the plaintiff’s representations as to the alleged infirmities of the jury selection process, the plaintiff has not established how either an official court recording and/or a review of Exhibit 56 supports his claims or amounts to harmful error in and of themselves.
IV. Causation Claims as to the Radiology Defendants
The plaintiff asserts that this court improperly permitted the radiology defendants to introduce causation evidence other than that relevant to the issue of sole proximate cause because they did not affirmatively plead such a special defense. While the radiology defendants deny that they were required to assert a special defense, they argue that this claim of error is moot because the jury did not reach the issue of causation. This court agrees that the issue is moot.
"[B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful ... The harmless error standard in a civil case is whether the improper ruling would likely affect the result." (Internal quotation marks omitted.) Kalams v. Giacchetto, 268 Conn. 244, 249, 842 A.2d 1100 (2004). In Kalams, the jury was not required to reach the issue of causation because, as evidenced by its answers to the jury interrogatories, it first determined that the defendant had not breached the standard of care. Our Supreme Court concluded that it was not reasonably probable that testimony on causation would have affected the result. Id., 250.
Like Kalams, the jury in this case found that the defendants did not breach the standard of care and therefore, did not reach the issue of causation. Accordingly, the plaintiff cannot establish harmful error with respect to this evidentiary claim.
V. Preclusion of Evidence from Dr. Donaldson
The plaintiff’s final claim is that the court erroneously deprived him of "very powerful and persuasive evidence" by precluding the testimony of Dr. James Donaldson. Proffered by the plaintiff as a well-regarded neurologist who frequently testifies as an expert in medical malpractice cases, Donaldson played no formal role as a treatment provider to the plaintiff or as a standard of care expert, since he was not secured for that purpose and would not qualify as a similar health care provider for any of the defendants. Based on the arguments of the plaintiff, this court concluded that the primary basis for Donaldson’s testimony was to support the theory that Schwartz conducted a reevaluation of the plaintiff due to the intervention of Donaldson in this litigation. This court therefore precluded evidence from Donaldson because it determined that the mental state of the defendant was irrelevant. Logan v. Greenwich Hospital Assn., 191 Conn. 282, 299, 465 A.2d 294 (1983) (central issue in ordinary negligence case is whether defendant has deviated from required standard of reasonable care, not his mental state at time of conduct which constitutes deviation); see also Baxter v. Cardiology Associates of New Haven, P.C., Superior Court, judicial district of New Haven, Docket No. CV-90-305753, (June 28, 1995) (ultimate inquiry is whether or not defendant violated applicable standard of care and not whether defendant was motivated in his mind to action or inaction by reason of conduct of another), aff’d, 46 Conn.App. 377, 699 A.2d 271, cert. denied, 243 Conn. 933, 702 A.2d 640 (1997). In addition to being irrelevant, Donaldson’s testimony also was potentially prejudicial, since its introduction likely would have distracted the jury from deciding the issues based on the proper elements of a negligence cause of action in a complex medical malpractice case.
In his brief, the plaintiff recognizes that "it may be true that the mindset of a defendant in a medical malpractice case may not be germane to the jury’s determination as to whether the applicable standard of care has been met." Without further elaboration, the plaintiff nevertheless asserts that Donaldson’s testimony was evidence of negligence, causation and damages. Having essentially conceded that Donaldson’s testimony was not relevant or admissible standard of care evidence, the plaintiff also cannot prevail to the extent that he claims that the evidence is relevant to causation and damages since, as discussed heretofore, the jury did not reach those issues.
For all the foregoing reasons, this court denies the motion to set aside.
Similarly, General Statutes § 51-243(a) provides that "[i]n any civil action to be tried to the jury in the Superior Court, if it appears to the court that the trial is likely to be protracted, the court may, in its discretion, direct that, after a jury has been selected, two or more additional jurors shall be added to the jury panel, to be known as ‘alternate jurors.’ Alternate jurors shall have the same qualifications and be selected and subject to examination and challenge in the same manner and to the same extent as the jurors constituting the regular panel. In any case when the court directs the selection of alternate jurors, each party may peremptorily challenge four jurors. Where the court determines a unity of interest exists, several plaintiffs or several defendants may be considered as a single party for the purpose of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. For the purposes of this subsection, a "unity of interest" means that the interests of the several plaintiffs or of the several defendants are substantially similar. A unity of interest shall be found to exist among parties who are represented by the same attorney or law firm. In addition, there shall be a presumption that a unity of interest exists among parties where no cross claims or apportionment complaints have been filed against one another. In all civil actions, the total number of peremptory challenges allowed to the plaintiff or plaintiffs shall not exceed twice the number of peremptory challenges allowed to the defendant or defendants, and the total number of peremptory challenges allowed to the defendant or defendants shall not exceed twice the number of peremptory challenges allowed to the plaintiff or plaintiffs."