Opinion
No. CV 02 0818629S
January 9, 2008
MEMORANDUM OF DECISION MOTION TO SET ASIDE THE VERDICT AND FOR NEW TRIAL #245
This medical malpractice action was commenced by Plaintiff Brenda Sawicki on August 9, 2002, against Defendant Mandel Blau, MD.s, P.C. In her complaint, the plaintiff alleges as follows: Since 1995, because of a family history of cancer in general, and breast cancer in particular, she made it a regular practice to obtain diagnostic x-rays to make sure that she did not have breast cancer. On August 2, 2000, the plaintiff went to the defendant for a routine mammogram. A radiologist employed by the defendant noticed new masses and recommended further evaluation with an ultrasound. On August 8, 2000, the plaintiff returned to the defendant for further examination with an ultrasound. Rather than performing the ultrasound, a different radiologist decided without explanation that the sonagram evaluation was unnecessary and that another mammogram would suffice. The mammogram film of August 8 was also inconclusive, and the defendant's radiologist recommended that the plaintiff return in the normal schedule. On June 4, 2001, the plaintiff returned to the defendant. A sonagram was performed which demonstrated two masses in the plaintiff's right breast. A mammogram performed on that same day demonstrated masses in the right breast, highly suspicious of malignancy. Two days later, a biopsy performed on the plaintiff's right breast indicated that the masses were carcinogenic and the mammogram indicated breast cancer. Thereafter, the plaintiff underwent a complete mastectomy and reconstruction of her right breast. Axillary nodes dissected during the mastectomy were positive for metastasis.
Sawicki also brought suit against New Britain General Hospital. The complaint against New Britain General Hospital was withdrawn on May 30, 2006. An apportionment complaint brought by Mandel Blau, MD.s, P.C. against the plaintiff's primary care physician was withdrawn on February 8, 2005.
Sawicki claims in her complaint that the defendant breached its duty to her by not performing the recommended ultrasound on August 8, 2000, and, instead, by performing another mammogram. She further alleges that when the August 8, 2000, mammogram resulted in the same inconclusive results as the one performed on August 2, 2000, the defendant simply recommended that the patient return for treatment in the normal sequence and made no efforts to follow up on her care despite the clear potential danger presented by the cancer.
Sawicki alleges that as a result of the negligence of Mandel Blau, MDs, P.C., a diagnosis of cancer of the right breast came too late. By that time, the cancer had metastasized. Because of the late diagnosis, the plaintiff is expected to succumb to her disease. She claims that the defendant's delay deprived her of the chance of full recovery and left her with a diminished life expectancy. She seeks to recover economic and non-economic damages.
Mandel Blau, MD.s, PC filed a special defense, claiming Sawicki was negligent because she failed to submit to regular and periodic diagnostic mammograms, particularly in light of what she represents to be her family history of breast cancer; she failed to return to the defendant for follow up in December 2000, as recommended by the defendant; she failed to follow the advice of her gynecologist who admonished her to make sure to have a follow-up examination in December 2000; she failed to follow up with her doctors as to their interpretation of and the significance of the advice that she follow up on the August 2000 mammograms; and she failed to conduct periodic examinations, to follow up on signs and symptoms of breast cancer, including the presence of a palpable mass or masses in her right breast.
The defendant also claims in its special defense that the plaintiff failed to mitigate her damages in that she was noncompliant in following medical advice and that she continues to be noncompliant even to this day in connection with her care and treatment subsequent to the mastectomy by her refusal to follow prescribed therapies and proven protocols for treatments and by her failure to follow recommendations from the physicians as to appropriate and proper medical care and treatment.
Jury selection began on June 7, 2006; evidence started on June 20, 2006. The trial lasted until July 18, 2006. The jury deliberated and rendered a verdict in favor of the defendant on July 19, 2006. Each juror affirmed the verdict in open court when individually polled. The plaintiff obtained an extension of time to file post-trial motions. On September 12, 2006, she filed the instant motion to set aside the verdict and for a new trial.
"A verdict should not be set aside . . . where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." (Internal quotation marks omitted.) Marchell v. Whelchel, 66 Conn.App. 574, 582 (2001). "[T]he evidence is viewed in the light most favorable to the prevailing party and to sustaining the verdict." Ipsacs v. Cranford, 65 Conn.App. 441, 443 (2001). "The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice . . . Only under the most compelling circumstances may the court set aside the verdict because to do so interferes with the litigant's constitutional right in appropriate cases to have the issues of fact decided by the jury." Hunte v. Amica Insurance Co., 68 Conn.App. 534, 541 (2002).
The plaintiff seeks to set aside the verdict and a new trial on the following grounds:
I. JUROR MISCONDUCT.
II. INSUFFICIENT EVIDENCE TO SUPPORT THE VERDICT.
III. ERROR IN THE COURT'S REFUSAL TO CHARGE AS REQUESTED.
IV. ERROR IN THE COURT'S REFUSAL TO ALLOW REBUTTAL EVIDENCE.
The court will address those grounds seriatim and refer to additional facts as warranted.
1. JUROR MISCONDUCT
As part of the motion to set aside and for a new trial, the plaintiff submitted the Affidavit of [GP], a regular juror, who was discharged on July 15, 2000, at his own request, because of a previously scheduled vacation, and the Affidavit of [GMS], a regular juror, who deliberated, rendered a verdict and affirmed the verdict when she and the other jurors were individually polled in open court. Based on those affidavits and after a preliminary hearing on the record with counsel, the court held a three-day evidentiary hearing in order to obtain testimony from all jurors and alternates.
The jurors are identified by the initials of their first and last names in the spirit of General Statutes § 51-232(c).
Subpoenas to the hearing were served on all jurors, including the alternates. The subpoenas contained an order that the jurors were not to communicate with any party, their counsel or other juror until further order of the court. The court heard testimony from all of the jurors, with the exception of juror JL who died in a motor vehicle accident a few days before the hearing. The jurors were questioned individually and separately. After questioning, the jurors were reminded that they were under the court's order to not communicate with each other, with counsel for the parties or the parties until further order of the court.
During the course of this hearing, the court learned that the plaintiff and her attorney met with GP and GMS for dinner at the plaintiff's house in late July or early August 2006. At that dinner meeting, GP asked plaintiff's attorney what grounds he needed to appeal the case. The court also learned that after that meeting, the plaintiff and her attorney exchanged phone calls and emails with GP and GMS before obtaining their sworn affidavits. The affidavits were drafted after meetings, emails, and phone calls between and amongst the plaintiff, GP, GMS, and plaintiff's attorney.
The primary target of the affidavits is JM. The averments of GP and GMS in their affidavits are in many respects identical and are set forth, in pertinent part, as follows:
Notwithstanding [the court's] instructions, and in direct contradiction to such instructions, JM, another juror in this case, began repeatedly violating these instructions and encouraging other jurors to do likewise. Without going into the jurors' mental processes, it is clear that JM and other jurors evaluated the evidence and stated their positions prior to the court's submission of the case to the jury, and that JM and other jurors took positions on the merits of the case long before the case was submitted.
More specifically, JM stated his position on the case even before any evidence had been taken. He not only reached this conclusion before evidence was introduced, he engaged other jurors in discussions of the merits of the case as the evidence came in, seeking their approval of his position.
JM is one of the regular jurors who rendered a verdict in the case. Early on in the trial, on June 21, 2006, JM sent a note to the court which stated, "Judge, I need to speak with you about a bias I have in this case." Following receipt of that note, the court held a hearing at which JM explained,
Well, I'm becoming — I'm wondering, it seems to me as though, this plaintiff is, you know, seems to be in control of business, family and everything, but when it comes to her own health, the whole thing, just let it fall by the wayside, just let it be in the hands of other people. That — she's in control of a huge business, family, all these responsibilities, but when it comes to a decision to get — to get a second opinion on a sonagram, that didn't happen.
JM denied having discussed this opinion with other jurors and acknowledged hearing the court's admonition not to talk with anybody about the issues in the case. After questioning JM, the court sought input from counsel. Neither raised objection to JM's remaining on the jury. Plaintiff's counsel stated, "[I]t does appear that he has heard some of the things that we're trying to get across. Now having said that, does not mean he's made his final decision." Before returning JM to the jury room, the court reminded him that he was not to make up his mind about the case or any issues in the case until hearing all the evidence and the court's charge. JM stated that he could do that.
The plaintiff now claims that JM defeated the impartiality of the jury by coming to conclusions on the merits and discussing these conclusions with other jurors even before any evidence had been produced; that JM repeatedly engaged in pre-submission deliberations with other jurors long before the case was submitted to the jury; and that JM ignored the court's instructions and his promise to the court to keep an open mind about the case until all the evidence was presented and the court charged the jury.
The defendant contends that through the plaintiff's failure to object to JM's participating as a juror at trial, she waived her right to object to his conduct, citing Timm v. Timm, 195 Conn. 202, 205 (1985) (Where the plaintiff fails to object to keeping a juror on the panel, either before or during the trial, the plaintiff essentially consents to the juror's presence on the jury). If the concern of bias raised by JM with the court and counsel on June 21, 2006, were the only claim, the court might agree, but at least some occurrences of juror misconduct allegedly took place after June 21 and involved other jurors. Accordingly, the court will consider the plaintiff's claims of juror misconduct.
"[P]re-submission discussion of the evidence by jurors in any degree is not an acceptable practice and constitutes misconduct . . ." Spitzer v. Haims Co., 217 Conn. 532, 545 (1991). See State v. Washington, 182 Conn. 419 (1980). A claim of juror misconduct based upon allegations that jurors discussed a case prior to deliberations does not, however, automatically require a new trial. Id., at 429; Williams v. Salamone, 192 Conn. 116, 122 (1984); See Hamill v. Neikind, 171 Conn. 357, 360 (1976).
In a civil case, absent misconduct brought about by the prevailing party, the burden is on the complainant to show prejudice. "The burden rests on the moving party to demonstrate that the juror misconduct complained of resulted in probable prejudice to her." Durso v. Aquilino, 64 Conn.App. 469, 478 (2001); Speed v. DeLibero, 215 Conn. 308, 314 (1990). "[A] specific allegation of juror misconduct requires some inquiry by the trial court." Baldwin v. Jablecki, CT Page 515 52 Conn.App. 379, 383 (1999). Upon receiving evidence of incidents during trial or during deliberations which might have affected the result of the trial, the trial determines whether they warrant a reversal of the verdict. Turk v. Silberstein, 48 Conn.App. 223 (1998).
In a criminal case "where the trial court is directly implicated in juror misconduct, the state bears the burden of proving that misconduct was harmless error . . . Where, however, the trial court was in no way responsible for the juror misconduct . . . a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct." (Citations omitted; internal quotation marks omitted.) Bova v. Commissioner of Correction, 95 Conn.App. 129, 136-37, cert. denied, 278 Conn. 920 (2006).
In Williams v. Salome, supra, members of the panel indicated that discussions concerning the testimony had occurred during the course of the trial, in order to "be sure of what we heard . . . Just for the sake of accuracy, not in a judgmental sense." Another juror stated that the panel had discussed during trial factors that might affect the credibility of certain testimony and gave as an example, "Well, motorcycles were discussed an awful lot and the person who gave the professional testimony . . . The engineering person. How much weight should be given to that because he was being paid to testify." No evidence had in fact been introduced at trial establishing that the witness was being paid. The Supreme Court agreed with the trial court that a new trial was not required.
In Harrison v. Hamzi, 77 Conn.App. 510 (2003), a new trial was not required where an affidavit was submitted which indicated that one juror had revealed that the jurors did not believe "that there was enough evidence to ruin [the defendant doctor's] reputation," and that no one "wanted to get [the defendant] in trouble," "that doctors save lives and that the plaintiff was lucky to be alive." In reviewing those allegations of juror misconduct and accepting them as true, the trial court had found no new trial was required because not only do the statements not show jury misconduct, but there is no indication that the statements regarding the defendant's reputation were considered improperly by the jury to the prejudice of the plaintiff.
In State v. Sunderland, 65 Conn.App. 584 (2001), a juror told the judge that he could not continue with good conscience because other jurors had made comments about 1) the schedule of the trial (learned from a friend who knew defense counsel), 2) the defendant (he made one of the jurors nervous) and 3) the prosecutor (he had a brain tumor, which could explain his poor speaking abilities), which he did not like and which would make it hard to be fair. The court held an evidentiary hearing at which it questioned all the jurors, and the defendant moved for a mistrial based on the jurors' discussion of extraneous information. The court acknowledged the misconduct but decided that the jury could still be fair and impartial, admonishing them that it must decide the case solely on the evidence. The Appellate Court affirmed.
In Speed v. DeLibero, supra, 215 Conn. 314, a new trial was not required where four jurors, in violation of the court's instructions, had drafted a note to the court concerning the rehearing of testimony during the lunch hour, outside the jury room and in the absence of two of the jurors. The trial court had concluded that the substance of the discussion of the four jurors "was limited largely, if not exclusively, to procedural problems and did not involve substantive discussion of the evidence."
In Martinez v. Silver, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99-362831 (February 20, 2004, Rush, J.) a new trial was not required where a juror by way of affidavit to the court claimed that prior to the close of the plaintiff's case, the jurors began to comment on the credibility of expert witnesses, that several jurors had reached a conclusion prior to the close of evidence, and that ethnic prejudice played a part in the jurors' decision. The court concluded, "Nevertheless, not every instance of juror misconduct requires new trial . . . To deprive a party of a verdict which he may have honestly obtained, after a protracted and expensive litigation, merely because a juror may have improperly spoken when he could have received no benefit from that act of the juror, and his opponent no injury, would hardly seem compatible with a due administration of justice . . . The rule, long ago enunciated by this court, is that if it does not appear that (the juror misconduct in question) was occasioned by the prevailing party or any one on his behalf, if it does not indicate any improper bias upon the juror's mind, and if the court cannot see that it either had, or might have had an effect unfavorable to the party moving for a new trial the verdict ought not to be set aside." (Citations and internal quotation marks omitted.) Speed v. DeLibero, supra, 215 Conn. 313; see also Williams v. Salamone, supra, 192 Conn. 116.
In Turk v. Siberstein, Superior Court, judicial district of Litchfield, Docket No. CV 94-0065877 (September 30, 1996, Walsh, J.), aff'd, 48 Conn.App. 223 (1998), the parties had agreed that an alternate juror would be present in the jury room while the regular six jurors were deliberating, but that the alternate could not participate in the deliberations unless and until she became one of the regular six jurors. After an evidentiary hearing, the court set aside the verdict having determined that the alternate had participated in the deliberations, had stated her opinion on the evidence and that she was in favor of the defendant. The court found that such misconduct made it probable that the jurors' minds were influenced by that misconduct so as to render them an unfair and partial jury.
These cases illustrate that upon a finding of misconduct, the relevant question for the trial court is whether the misconduct is of such a nature that it probably rendered the juror unfair or partial; Williams v. Salamone, supra, 192 Conn. 122. In reviewing juror misconduct an objective standard is used in which "the focus is on the nature and quality of the misconduct, rather than the mental processes of the jurors." Speed v. DeLibero, supra. In making that assessment, "[t]he trial court addresses the credibility of witnesses and the weight to be accorded their testimony in resolving matters of potential jury misconduct." State v. Leonard, 31 Conn.App. 178, 195, cert. granted, 226 Conn. 912 (1993) citing Speed v. DeLibero, supra, 215 Conn. 314.
The pertinent testimony of the jurors elicited at the evidentiary hearing on juror misconduct is summarized below:
JUROR GMS testified that after the verdict she "felt that some things that had gone on with a specific juror member was not — not right . . . [GP] and I discussed that because he felt the same way. And I did go to dinner at Brenda's house . . . her and her husband were there and Mr. Dickins was there and [GP] and I had dinner with her . . . And they asked me if I would be willing to sign an affidavit regarding, you know, that I felt the juror was under misconduct and I said yes." When asked if the case was discussed during this dinner at the plaintiff's house, P said "Yes, there was. It was discussions more about the way we felt. More than anything was the — the, you know, [JM's] misconduct that — I felt it was misconduct. I don't know if it was." GMS also testified that she thought JM "so negative and . . . you know misconduct as his mouth was always going with regards to something to the case." When asked by the court if she could be more specific, GMS remembered "one time there was something said like 'I don't know what showing all those pictures out there have anything to do with the case, you know.' And you know, I myself said to him, you know, you really shouldn't be talking about that now. You know, I have served on other juror cases before and, you know, the rules are the rules." GMS felt "Brenda didn't get a fair trial because of JM's mouth." She heard JM state, "We know which way this case is going already. You know, like just different — you know, didn't say which way but, you know — there was another comment made like: We just need to get this over with, get done and get out of here." GMS testified that "JM was always talking about the case." "About bringing her kids into court." "He was always very negative about everything." "He's just a negative person to me." She heard him say, "I can't believe they're keeping me on this case." "I'm not saying he [JM] persuaded other jurors to go the wrong way or the right way, because I don't know that's what, okay, but, I know that as a person that I just — I just feel in my heart that I have — I have to do what I'm doing. You know, that I believe things he did was wrong."
JUROR GP testified that when he went to the plaintiff's house for dinner, "that's when I told her I was sorry and she shouldn't have lost." He told her he was going to call her on when he was released because of all the talking that was going on in the back jury room. They talked about the people, the jury on the case, and how I knew from the beginning that she would not have won because the first day when that JM — the second day when that JM came out and said that he wouldn't vote for her and then came back in the jury room back there and was laughing and saying that she can't win now because I'm still here. And everyone was talking about how this was a waste of their time and frivolous case. I mean, I knew from the beginning she wasn't going to win." He testified that [CC] "said after the Dr. Russo man came and spoke about the algorithm, that's when she came in and said that this case is over now because she saw all that she had to see. And that's when [JM] started to laugh and said this case has been over since the second day because when he came out here and said that he had an extreme bias towards the plaintiff and they kept him and that was a bad mistake on, you know, your part because — of the Court's part because he would not vote for Brenda from the beginning he had a comment about that. He did not like how slow the questioning was going. He didn't like the questioning, the repetitiveness, and they kept on saying that over and over again." When asked about his comment about what [CC] said after seeing Dr. Russo's testimony, [GP] responded, "She said that — she said she saw all she had to see after the algorithm was shown, that big chart. She said at that point the whole, you know, part of the plaintiff's case was that she should have known to come back. And she was pretty much saying that — [CC] was pretty much saying that after we saw the algorithm the case was done, we saw all that we had to see and, you know. Her mind at that point was pretty much made up, is what I got out of what she said." "[JM] and [CC] were the main two . . . The rest of them just sat there, but they would laugh whenever [CC] or [JM] made a comment. But [JM] was the major instigator in this whole thing. 'Everyone' was talking about how this was a waste of their time and frivolous case." [GP] testified that the other jurors "didn't like being there, they were shaking their head, they were upset, they were saying how they had better things to be doing with their time." He also testified that the verdict was wrong and that it went the way it did because of the presentation of the defendant's attorney.
JUROR JM testified that when he wrote the note to the court concerning his bias, he felt very anxious to tell the Court where he stood. When he returned to the jury room, he expressed what he had said in court. There was a lot of discussion going on in the jury room. A lot of people were angry about the case. Most of the jury were talking. "When the mammographer from New Haven came and testified, people felt like that was a very, very strong . . . point made." "People expressed shock when it was clear that the plaintiff knew about "the appointments . . ." He heard different jurors say many times, "they just don't have a case." That was probably the most common thing that was said. He recalled people saying that the doctor from San Diego did not present himself well. People were stunned by the New Haven mammographer — and a few people said "that's pretty overwhelming evidence." He thought people were looking — "I think a lot of people were probably like me, they were looking for some evidence, you know. I know I was looking for evidence . . ." I waited and waited for something to come along and I never did see it." When asked if he followed the court's instructions regarding waiting to make up his mind, [JM] responded, "I kept looking for some sort of evidence, you know, to show that they you know, that there was negligent, I was looking for it. I was waiting for it and I never did see it, I — I didn't make up my mind. I really wanted to see is there anything on the other side and I never did see it."
JUROR CC did not discuss the case or issues in the case with any of her fellow jurors. She heard other jurors make comments about the case but did not recall anything beyond a one-line comment. [CC] said that [JM] was frustrated that the plaintiff had refused all treatments so he had made comments to that effect. "It was a very sad emotional case and [JM] was very frustrated and conveyed that she did not seek the help that was offered to her, in his mind." "I can remember going into the jury room and someone would say. 'Can you believe that.' And then it was just almost like we'd be exhausted after a piece of evidence was presented and then conversation would stop and go on to something else. She recalled that early on in the trial, [JM] had "said something to the effect that he felt his mind was already made up." He said that once maybe twice in the beginning. And that was before he sent a note to the court that he was concerned that he was biased. She followed the court's instructions re: waiting to hear all the evidence and the charge before making up her mind.
JUROR KG testified that there were judgment calls on the credibility of the expert witnesses. There was comparison going on between the witness from California and the local doctors. When the children were here [in court] they felt for the children. She recalled [GP] talking about the defense and not liking a person shortly before he was going on vacation. She recalled [CC] talking about the size of the tumor. She did not recall hearing any expression such as "I've made up my mind" or "she's going to win or lose." She followed the court's instructions about waiting to hear all the evidence and the charge before making up her mind.
JUROR SR recalled that people mostly talked about the length of the trial and financial problems as far as the length of the trial. "Nobody spoke about the case." [JM] had a bias towards the plaintiff because of filing the suit and he felt that there was no case to be decided and she thought part of the reason was because of his financial situation and that it was a waste of time. He said this on a few occasions. He would share his frustration with us. She testified that she understood [JM] to say he was against the plaintiff She further testified that "we did say to him you are not supposed to form an opinion about the case until the end." She herself discussed the disease of cancer. She talked about chemotherapy — "our experiences with chemotherapy" — but didn't relate it to the case. She also recalled [JL] saying that he had a bias toward the plaintiff and felt that the case was a waste of time because of his financial situation. Both [JL] and [JM] expressed how they were going to vote. She followed the court's instructions about waiting to hear all the evidence and the charge before making up her mind.
JUROR RV, the foreman, testified that he did not hear JM express any opinions in the pre-deliberation period. He recalled JM being called out to the courtroom and when he came back in JM said, "They're not going to let me go." He did not hear anyone saying either the defendant or the plaintiff is going to lose this case. He does not recall anyone being against the defendant or the plaintiff before deliberation. He testified, "I can honestly say I don't believe anybody made up their mind before you gave us the okay. That's when we started discussing it." He followed the court's instructions about waiting to hear all the evidence and the charge before making up her mind.
ALTERNATES MB and LT did not hear discussions or comments or expressions of bias or opinions by any of the jurors before they were released at the end of the case. They followed the court's instructions about waiting to hear all the evidence and the charge before making up his or her mind and did not discuss the case.
The court heard and observed the witnesses, considered the parties' arguments, reviewed the transcripts of the jurors' testimony and the allegations of misconduct. Based on the credible testimony, I find that, contrary to the court's instructions, some jurors remarked and made statements about the case prior to the court's charge and submission of the case. I do not find that any remarks or statements rose to the level of "deliberations." The term 'deliberate' means weigh, ponder, discuss, regard upon, consider . . . to weigh in the mind; to consider the reasons for and against." Black's Law Dictionary (5th Ed.). Discussion is an integral part of deliberations . . . Discussion contemplates the interchange of opinions." (Citations omitted; internal quotation marks omitted.) State v. Washington, supra 182 Conn. 427-28. Even so, I find there was misconduct because some remarks expressed opinions about evidence, and some about witnesses. The finding of misconduct on the part of some jurors, however, does not end the inquiry because the court must assess whether the misconduct probably prejudiced the plaintiff and rendered the trial unfair. In making this assessment, I am not unmindful of the reasoning in State v. Washington that "[w]hen most men commit themselves publicly to any fact, theory, or judgment they are too apt to stand by their own public declarations, in defiance of evidence. This pride of opinion and of consistency belongs to human nature." (Citations omitted; internal quotation marks omitted.) Id., 428. Nor am I unmindful of the reasoning in Spitzer v. Haims Co., that unacceptable presubmission discussion of the evidence by jurors "means articulating and exchanging views, albeit preliminary, with one's fellow jurors. It does not mean the absence of thought, however preliminary. We cannot expect jurors to be totally passive receptors of information who are not permitted even to think about what they have heard. A rule that rests on such a futile requirement . . . would be a rule without foundation in reality. The trial court is expected to prevent premature deliberation, not harness the human mind." (Citation omitted; internal quotation marks omitted.) Spitzer v. Haims Co., 217 Conn. 532, 545, 587 A.2d 105 (1991).
I do not find either GP or GMS reliable affiants given the circumstances under which their affidavits were procured and scripted. Based on my observations of GP during the evidentiary hearing, my review of his testimony and his e-mails, I do not find him a reliable or credible witness. I also find that he had made up his mind and had decided the case in favor of the plaintiff before he left for vacation and before the trial was over, and I find that he is biased in favor of the plaintiff as a result of the relationship he has developed with her and her family, and his contacts with her, including his attendance at dinners in her home, with her family, her counsel and her expert witness, Dr. Melton.
1. Comments about expert witnesses
I find some statements were made by some jurors comparing the experts. When the mammographer from New Haven (Russo) came, people felt like "that was a very strong point made" and that's "pretty overwhelming." There was comment that "the California doctor (Hurwitz) did not present himself well." There is, however, no credible evidence that the substance of the evidence presented by any expert was discussed. Rather, as one juror explained, comments were one liners, such as, "someone would say 'can you believe that?' It was just like we'd be exhausted after a piece of evidence and then conversation would stop and go on to something else."
I find it significant that the only juror who expounded on this point and who mentioned the term "algorithm" was GP when testifying about CC's alleged remarks that she had seen all that she had to see after the testimony of the defendant's expert, Dr. Russo. This, in light of GP's testimony that he asked plaintiff's counsel about issues for an appeal during dinner at the plaintiff's house and in light of GP's testimony that after Christmas he visited the plaintiff at her house and Dr. Melton, who was an expert witness for plaintiff in this case, was present. GP stated that during a conversation, Dr. Melton "was telling me how Dr. Russo's testimony that he had was full of lies, or I don't remember exactly what word he used, but — and he was showing us how — where he lied about in this part right there and this part and all these other different medical terminology things that he was saying and how the algorithm was incorrect and stuff of that sort. He was saying how that part was incorrect."
There was testimony, that "people expressed shock when it was clear that the plaintiff knew about "the appointments . . ." To repeat, comments were "one liners," such as, "someone would say 'can you believe that'?" "It was just like we'd be exhausted after a piece of evidence and then conversation would stop and go on to something else."
There was no indication that the statements expressing shock or otherwise about the experts were considered improperly by the jury to the prejudice of the defendant.
2. Comments about plaintiff's children and the showing of photographs.
The plaintiff's son and daughter, approximately 12 and 15 years old, testified briefly in the plaintiff's case in chief. Remarks concerning or questioning the children's appearance in court to testify on behalf of their mother did not pertain to any issue in the case. Nor did they exhibit any sort of a bias against the plaintiff. As one juror put it, "they felt for the children." If anything, the statements demonstrated the jury's empathy in "a very sad emotional case." Likewise, expressions of frustration about the numerous photographs of the plaintiff's family and their life and vacations together before the breast cancer diagnosis reflected impatience with the pace of the proceedings rather than an opinion about the plaintiff or the substance of the evidence.
The photographs and the children's testimony pertained to the plaintiff's damages claim. The jurors never considered damages because the jury found the plaintiff did not sustain her burden to prove the defendant was negligent.
The plaintiff did not show probable prejudice to her as a result comments about the children or the photographs.
3. Statements pertaining to cancer and cancer therapies.
SR described JM as frustrated because the plaintiff refused cancer therapies which had been recommended for her. The plaintiff has not shown probable prejudice to her from that "frustration." SR testified that she herself discussed the disease of cancer and talked about chemotherapy — "our experiences with chemotherapy" — but didn't relate it to the case. Consideration of extrinsic evidence is jury misconduct. State v. McCall, 187 Conn. 73, 80 (1982). A statement about personal experience with illnesses of wide — prevalence and in the common ken, such as cancer and chemotherapy, is not, communication of an "objective extrinsic fact" about the case and does not require a new trial. Id., 81. In McCall, four jurors felt a fifth could not serve impartially because during trial she had communicated her familiarity with schizophrenia, a disease for which her son had been treated and which manifested itself by ideation similar to that exhibited by the defendant. The Supreme Court affirmed the trial court's denial of a mistrial where the communication was not about an "objective extrinsic fact" and where there had not been "any extended discussions so that opinions have been reached by the other members of the jury." Id., 77. Likewise, in this case, there is no indication that the statements about "our own experiences" communicated objective extrinsic facts or premature formation of opinions to the probable prejudice of the plaintiff.
Certainly a prospective juror's experiences with cancer and chemotherapy was fodder for voir dire, and, according to defense counsel, at least one juror, GMS, let it be known that her sister died of pancreatic cancer in April 2005.
The issue of the plaintiff's alleged negligence in failing to undergo recommended cancer therapies after her mastectomy was a special defense in the case. Because the jury found that the defendant was not negligent, the jury did not get to consider claims that the plaintiff failed to mitigate her damages because of her rejection of recommended treatments and therapies. The plaintiff has not shown probable prejudice to her from the expressed frustration of one of the jurors or expressed personal experiences by others about cancer treatments prior to deliberation.
4. Prejudgment and Bias
There were expressions of opinion about how the case was going and expressions of opinion about how a juror was going to vote. In her affidavit, GMS avers that after the evidence was concluded and the jury had been charged, "I tried to discuss the issues with the other jurors. By the time I was ready to get involved in the discussions, it was clear that their opinions had become fixed . . . they had already made up their minds, and my position was irrelevant." If by that averment GMS is attempting to retract or rescind her affirmation of the verdict, she waived her right to do so. "[O]nce a verdict has been returned, generally it is no longer impeachable for lack of unanimity. After a jury has given its verdict, has been polled in open court and has been discharged, an individual's change of mind or claim that he was mistaken or unwilling in his assent to the verdict comes too late." State v. Tomasko, Superior Court, judicial district of Bridgeport, Docket no. CR 92 79285 (May 31, 1996, Freedman, J.), aff'd., 242 Conn. 505 (1997). Moreover, an affidavit to avoid the verdict may not be received to show any matter which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict. See Josephson v. Meyers, 180 Conn. 302, 310-11 (1980).
I find it significant that all other jurors who rendered a verdict, CC, JM, SR, KG and RV, acknowledged they heard the court's instruction not to decide the issues before hearing all the evidence and the charge, and I find they all followed those instructions. Although, at first blush, the court's questioning and the jurors' responses regarding their pre-deliberation mind-sets would appear to violate the prohibition against inquiry into the mental processes of jurors or the effect of particular occurrences upon their verdict, our Supreme Court addressed this point in State v. Newsome, supra, 238 Conn. 631. In Newsome, the trial court found it significant that jurors expressly disclaimed they had prejudged the defendant's guilt or innocence. On appeal, the defendant argued that "jurors are not competent to testify to the effect of their misconduct on their final decision" id., 631, and, therefore, their denials of prejudgment should carry no weight. The Supreme Court disagreed, stating, "We are not inclined to disregard the statements of those jurors interviewed as 'inevitably suspect.'" (Citation omitted; internal quotation marks omitted.) State v. Rodriguez, 210 Conn. 315 (1980). State v. Newsome, 238 Conn. 588, 631 (1996).
Practice Book Section 16-34. Impeachment of Verdict. Upon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined. Subject to these limitations, a juror's testimony or affidavit shall be received when it concerns any misconduct which by law permits a jury to be impeached.
During his testimony at the evidentiary hearing, JM was loquacious but was open and forthcoming. Notwithstanding SR's "feeling" that JM had made up his mind, JM himself, while under oath at his first encounter with the court assured the court and counsel that he would keep an open mind, and the court and counsel credited him. Those few jurors who heard JM's negative comments such as "She's going to lose the case" or "We know which way this case is going" took his statements as expressions of frustration about the length and pace of the trial and related to his concern about his financial situation. Those who heard him reminded him that he was not supposed to form an opinion about the case until the end. I find that any statement by JM to the effect that he felt his mind was already made up, was said once or twice before he sent a note to the court that he was concerned that he was biased.
I find that JM, as I find the other jurors did, kept his mind open, and I credit his testimony that "I kept looking for some sort of evidence . . . to show that . . . there was neglect, I was looking for it. I was waiting for it and I never did see it, I-I didn't make up my mind, I really wanted to see is there anything on the other side and I never did see it." This is in contrast to GP who testified at the evidentiary hearing that "the verdict was wrong." GP at that point in his testimony, during the evidentiary hearing, however, did not point to misconduct by JM or anyone else but stated, the verdict went the way it did because of the presentation of the defendant's attorney. "[T]o succeed on a claim of bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact." State v. Cubano, 203 Conn. 81, 89 (1987). (Defendant moved for mistrial and new trial because juror's expression of "shock" that a friend she had seen in the courtroom was apparently a friend of the defendant indicated the juror had made up her mind about the guilt of the defendant.) "Mere expression of opinion, as opposed to positive expression of facts, does not warrant a [new trial]. Even where a juror has formed some preconceived opinion as to the guilt of an accused, a juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based on the evidence in the case." Id., 91. "Even if we assume that the statements made by the jurors amounted to an expression of a premature opinion . . ." the record does not support a finding that the opinion was irrevocable and could not be set aside." Id.
During the evidentiary hearing and in his affidavit and in his e-mails to the plaintiff and GMS, copies of which were made exhibits during the evidentiary hearing, GP claims to have sent a note to the court about misconduct by JM and that this note was never addressed by the court. Such a claim has no impact on the verdict. See Josephson v. Meyers, 180 Conn. 302, 312 n. 6 (1980). Such a claim, however, raises significant concerns and questions which the court has not taken lightly. As such, even though I have previously indicated that I do not find GP a credible witness, I have paid careful attention to his claim of a missing note because of its implication concerning and reflection upon the actions of court personnel and the court. I have carefully reviewed the statements made in GP's affidavit and e-mails, his testimony during the evidentiary hearing and all notes actually received by the court from him and marked as court exhibits during the trial, as well as the transcripts of hearings in court with GP relating to his notes.
On June 28, 2006, eight days into the trial, GP sent the following note: "Your Honor, What is our schedule for the rest of the week? Thank you." After discussion with counsel, the June 28 note was not directly addressed with GP because the court gave a general instruction to all the jurors about scheduling.
On July 6, 2006, GP wrote, "I have already written a note but it has not been addressed yet. I am leaving for vacation on Friday evening July 18th. I am going to Chicago! I was wondering if we can start pushing this process along a little faster. Also another woman is leaving on July 24th! Also, I would like to address the court. I have a court question that needs to be addressed in front of everyone about research! Thank you." After discussion with counsel, GP was asked to state his question in writing and in a follow-up note, he stated, "Brenda Sawicki is trying to tell the court about this Farley's Formula — 'Life One' every time she addresses what they are-she is stopped told it's heresay (sic) from an unlicensed doctor. I just would like to know what this formula is or what it does. We are not allowed to do our own research so I won't but I would like to know what this is and does. I feel she is getting an unfair and not just trial. Thank you!"
On July 13, 2006, GP wrote, "My last day of jury duty will be tomorrow July 14, 2006. I am leaving for Chicago on Tuesday and I will be returning on July 24th. I just wanted to know if there is anything I needed to do tomorrow when I leave at 4? Thank you! This process was quite slow but extremely interesting and fun. Thank you!"
On July 6 and on July 13, GP was before the court and counsel in connection with his notes. Although he expressed concern in his July 6 note that Sawicki was getting an unfair and not just trial, he did not indicate or allude to any concerns on either July 6 or July 13 that he later expressed in his affidavit about JM's misconduct or juror misconduct, in general.
GMS testified that about a week before GP left for vacation, he told her he was going to write a note and he waved a paper but she did not read it and does not know if it was given to the court. GP, however, claims to have written the note about JM's misconduct one day before his last day and it was the only note that he wrote that day. In his affidavit, GP avers, "At the time I was allowed to be dismissed from the jury, I was concerned about the ongoing violations of the court's instructions. I prepared a note to the court discussing these violations." The only note received by the court on that day, July 13, 2006, is the one in which GP writes that this "process was quite slow but extremely interesting and fun. Thank you!" Based on his notes and his appearances before me, I find that GP was not a shrinking violet. He had the opportunity to tell the court about juror misconduct during the trial but he did not do so until after the jury returned a verdict with which he did not agree and after his meetings with the plaintiff and her attorney.
Based on the credible evidence, I do not find that GP sent a note to the court about juror misconduct before he was discharged to go on vacation.
The plaintiff has not sustained her burden to prove probable prejudice to her as a result of pre-submission remarks by JM or by other jurors concerning their feelings about how the case was going.
This was a conscientious jury. On July 19, 2006, at 12:20 pm, the jury requested "a 15 minute break at 12:30. We are taking a working lunch." Then later, at 2:25 pm, the jury submitted a note regarding one of the allegations of negligence as follows: "We have a question on 'Id. by failing to contact the plaintiff after she failed to appear for her follow up mammogram in Dec, 2000.' 1) Was the whole statute admitted into evidence? 2) Do we have any access to information on that portion of the statute." At 3:55 pm, the jury sent a note that it had reached a verdict. The substance and the timing of those notes in and of themselves belie GMS's accusation that the jury had already made up its mind by the time deliberations began. Rather, they indicate consideration and discussion of the allegations and the evidence during the deliberations. The jury returned a defendant's verdict, and at the request of plaintiff's counsel, the jurors were polled. Each juror indicated his or her assent to the verdict as accepted and recorded at 4:19 pm.
The court has objectively considered the effect of juror pre-deliberation statements on the jurors' minds. The court has not concerned itself with the mental processes of the jurors, but rather with the nature and quality of the misconduct in the context of this long, exhausting and emotional trial. The plaintiff has not sustained her burden to prove that juror misconduct resulted in probable prejudice to her and an unfair trial.
This court agrees with Judge Freedman's words concerning finality after jurors have undertaken the exhausting and difficult job of determining guilt or innocence, finds them apt in the civil context as well. State v. Newsome, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CR 92 75659, (March 11, 1994, Freedman, J.), aff'd, 238 Conn. 588, 682 A.2d 972 (1996). This court also agrees with Judge Stevens that the matter of post-verdict juror contact may deserve a legislative or practice book rule. See Struski v. Big Y Foods, Inc., CV 97-0137108 Judicial District Waterbury (August 11, 2000, Stevens, J.) [28 Conn. L. Rptr. 172].
The Motion to Set Aside the Verdict and for New Trial on the ground of juror misconduct is denied.
II. THE VERDICT IS AGAINST THE EVIDENCE:
The verdict will be set aside and judgment directed only if the jury could not reasonably and legally have reached their conclusion. Margolin v. Kleban Samor, 275 Conn. 765, 773 (2005). The plaintiff claims that there was insufficient evidence for the jury to have found that the defendant did not depart from the standard of care because the plaintiff allegedly was not called back for a follow-up mammogram even though the defendant allegedly had a duty to do so. The plaintiff specifically points to the jury's response in the negative to Paragraph 1d of the jury verdict form finding the defendant did not deviate from the standard of care "by failing to contact the plaintiff after she failed to appear for her follow-up mammogram in December 2000."
The plaintiff claims that since the evidence was uniform and unequivocal that (1) the applicable standard of care required the defendant to contact the non-appearing patient; and (2) that the defendant did not contact the plaintiff, the jury's finding was against the evidence and must be set aside. The evidence must be given the most favorable construction to which it is reasonably entitled in support of the verdict. Josephson v. I. Meyers, supra, 180 Conn. 313. There was evidence from which a jury could find that on August 8, 2000, the defendant's radiologist handed the plaintiff a white copy of the defendant's callback form advising her to return in four months. There was evidence that after the radiologist dictates his report, the defendant's computer would automatically generate a follow-up letter to remind the patient to return for additional radiological studies. There was evidence that the defendant had a tickler system in place to phone patients who did not return for follow-up care. There was evidence that the plaintiff reported to her primary care physician that she had a normal mammogram in December 2000, and there was evidence that the plaintiff's gynecologist urged the plaintiff to be sure to have a follow-up mammogram in December 2000.
It was the plaintiff's, not the defendant's, burden to prove by a fair preponderance of the evidence that the applicable standard of care required the defendant to contact the non-appearing patient and that the defendant did not, as she maintained throughout the trial, notify her to return for a follow-up in four months and that the defendant did not contact her when she did not return. The issues of notice to and communication with the plaintiff were vigorously disputed ones, and evidence was presented which challenged the credibility of the plaintiff on them, including evidence contained in the records of the plaintiff's primary care physician and gynecologist. Further, it was within the jury's province whether to credit the opinion of the plaintiff's expert that the standard of care required the defendant to contact the non-appearing patient and whether to credit the claim of the plaintiff that she was not contacted. The jury could have reasonably found, based on all the evidence, the plaintiff did not meet her burden of proof.
III. REFUSAL TO CHARGE AS REQUESTED
The plaintiff claims that the court committed error in failing to charge as requested that "[a] patient is entitled to assume that he or she will receive due care from a physician." The defendant plead a special defense of negligence on the part of the plaintiff which included allegations that she failed to follow up on the recommendation of the defendant to return within four months in December 2000; that she failed to follow the advice of her gynecologist, who specifically admonished her to make sure that she had follow-up examinations conducted in December 2000; that she failed to follow up with her internist and gynecologist as to their interpretation of the August 2000 mammograms and as to the significance of her need for follow-up examinations in December 2000; and that she failed to conduct periodic examinations to follow up on signs and symptoms of breast cancer, including the presence of a palpable mass or masses in her right breast.
The court charged the jury on the defendant's burden to prove the allegations of the special defense, as follows:
When there is disputed evidence as to a fact, a claim or an issue, it will be your job to decide which version to accept for the purposes of this case. In making this determination, know that the party upon whom the burden of proof rests in this case must prove all the facts necessary to establish a claim by a preponderance of the evidence. And that burden applies to the plaintiff in proving her claims and with the defendant in proving its claims.
A charge that "[a] patient is entitled to assume that he or she will receive due care from a physician" is not required in this case under the law or by the facts. There was no claim by the defendant that the plaintiff was required to seek a second opinion or that she could not assume that she would receive due care. Further, in the context of the allegations of the defendant's special defense, such a charge might confuse or mislead the jury. Even if the allegations of the special defense could be construed as requiring a second opinion, the charge, as given, squarely placed the burden of proof on the defendant. The charge requested by the plaintiff is akin to a charge that "the plaintiff is presumed to have exercised due care." Such a charge is not required. See Juchniewicz v. Bridgeport Hospital, 281 Conn. 29, 35 (2007).
The motion to set aside and for a new trial on this ground is denied.
IV. REFUSAL TO ALLOW REBUTTAL TESTIMONY
On this issue, there is evidence that Dr. Alan Melton after viewing the mammographic screening studies of August 1, 2000, recommended further studies by ultrasound. When the plaintiff returned to the defendant for further studies on August 8, 2000, Dr. Lee Wallace obtained additional mammograms as diagnostic studies, concluded an ultrasound was not warranted and did not perform an ultrasound. Wallace advised the plaintiff to return for further studies in four months.
In her complaint the plaintiff alleges the defendant breached the standard of care by Wallace's failing to perform the ultrasound ordered by Melton when the plaintiff returned for the study on August 8, 2000. She further alleges the defendant was negligent when Wallace did not perform an immediate ultrasound even though the mammograms taken on August 8, 2000, resulted in the same inconclusive results as the one performed on August 2, 2000. She also alleges that the defendant was negligent in simply recommending that the patient return for treatment in the normal sequence four months later.
The plaintiff's expert, Robert Hurwitz, M.D., testified that Melton's recommendation to use ultrasound was an appropriate decision under the applicable standard of care. The defendant's expert, Robert D. Russo, M.D., testified that the applicable standard of care did not require an ultrasound examination under a "diagnostic algorithm" that Wallace followed.
After the defendant rested, the plaintiff called Melton to testify as a rebuttal witness. The court did not permit Melton to testify. The plaintiff claims that because Russo's theory of the diagnostic algorithm contradicted the opinions of Hurwitz and Melton and because Hurwitz had already returned to California, the plaintiff should have been allowed to call Melton to rebut Russo's "newly-stated" diagnostic algorithm theory. Russo had testified on direct, in the defendant's case, that the standards set up for radiologists by the American College of Radiologists required the additional mammograms as performed by Wallace on August 8, 2000, not an ultrasound as ordered by Dr. Melton. Russo referred to the standards as a protocol and algorithm and explained that "[a]n algorithm is . . . in simple terms, just a pathway . . . So it's just a fancy term for, this is what you do next." On cross-examination, Russo was asked, "The protocol is basically a cookbook?" and he answered, "Absolutely. It's an algorithm and a pathway."
The plaintiff proffers that Melton would have testified that the standard of care did not preclude the necessity of the ultrasound study he had recommended. The issue in this case, however, is not whether the standard of care precluded the ultrasound; rather, as the plaintiff correctly states in her memorandum, "the issue was whether the applicable standard of care required additional examination by ultrasound." Nonetheless, the plaintiff claims the court abused its discretion when it precluded rebuttal testimony by Melton and relies on Cafro v. Brophy, 62 Conn.App. 113 (2001) (It was an abuse of discretion to admit rebuttal testimony by a previously undisclosed expert witness for whose testimony, the defendant could not be prepared). Cafro is not apposite, but the following statement therein is:
"The policy behind restrictions on the presentation of rebuttal testimony is that a plaintiff is not entitled to a second opportunity to present evidence that could reasonably have been presented in [her] case in chief." Pie Plate, Inc., v. Texaco, Inc., 35 Conn.App. 305, 310, cert. denied, 231 Conn. 935 (1994).
In this case, in March 2006, well before trial, the defendant had disclosed radiologists Wallace and Russo as its experts and that they were expected to testify as to the standard of care owed to the plaintiff and as to whether Wallace's interpretation of the plaintiff's radiological studies, his radiological examination of her and his advice for a four-month follow-up examination met that standard of care. Also, in a Disclosure of Expert Witness dated September 27, 2005, the plaintiff had identified Melton, as an expert
expected to testify about the physical and radiographic/diagnostic breast examinations of plaintiff and findings of the examinations. He is further expected to testify what should have been done following the recommendations after reading the August 2, 2000 mammograms and the observations observed in the . . . views of August 8, 2000. He is further expected to testify that based upon these observations a radiologist should have proceeded further following the August 8, 2000 mammograms to perform the recommended ultrasound . . . He is further expected to testify that a follow up evaluation of four months following these finding was not the standard of care to render. (Emphasis added.)
On July 6, 2006, Wallace, called by the plaintiff in her case in chief, testified that the recommendation for ultrasound was not appropriate at the time under the standards of the American College of Radiology (ACR) appropriateness criteria. Wallace, during his testimony, referred to the diagnostic work-up as an "algorithm." He also testified that he did "not do the ultrasound in deference to a superior way of evaluating that particular problem on her right mammogram."
On July 7, 2006, after Wallace's testimony concluded, Melton was called by plaintiff and testified. By then, it was and could have been of no surprise to anyone that a pivotal issue in the case was whether performance of an ultrasound on August 8, 2000, was required by the standard of care. By then, terms such as "algorithm" and "protocol" and "ACR evaluation guidelines" had been used. The plaintiff had opportunity to examine Melton in her case in chief about those terms and his previously disclosed opinion that the "radiologist should have proceeded further following the August 8, 2000 mammograms to perform the recommended ultrasound." The proffered testimony was not rebuttal evidence; Compare Cafro v. Brophy, supra, 62 Conn.App. 311; and the court's refusing to allow it is not grounds for a new trial.
The motion to set aside and for a new trial on this ground is denied.
CONCLUSION
The jury could reasonably have reached its verdict and it must stand. The Motion is denied.