Porcaro v. Hartford Hospital

David PORCARO, Conservator of the Estate of Mark Porcaro v. HARTFORD HOSPITAL et al.

No. HHDCV116017398

Superior Court of Connecticut, Judicial District of Hartford, Hartford

August 23, 2018

UNPUBLISHED OPINION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.^[1]

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^[2] 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.

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.^[3] The course of trial further established those critical distinctions.

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.^[4]

"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...