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Mahoney v. Smith

Court of Appeals of Connecticut

July 18, 2017

TEAGHAN MAHONEY ET AL.
v.
LORI STORCH SMITH ET AL.

          Argued February 3, 2017

         Procedural History

         Action to recover damages for the named defendant's alleged medical negligence, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Hon. William B. Rush, judge trial referee; verdict for the defendants; thereafter, the court denied the plaintiffs' motion to set aside the verdict and rendered judgment in accordance with the verdict, from which the plaintiffs appealed to this court; subsequently, the court, Hon. William B. Rush, judge trial referee, granted the plaintiffs' motion for rectification. Affirmed.

         Appeal from Superior Court, judicial district of Fairfield, Hon. William B. Rush, judge trial referee

          Alan Scott Pickel, with whom, on the brief, was Anthony Cenatiempo, for the appellants (plaintiffs).

          Michael R. McPherson, for the appellees (defendants).

          Sheldon, Keller and Prescott, Js.

         Syllabus

         The plaintiffs sought to recover damages, both individually and on behalf of their minor child for medical malpractice from the defendants, S, a pediatrician who performed a circumcision on the child, and the professional corporation in which S practiced. The plaintiffs alleged that S was negligent in performing the procedure, during which she used a device called a Mogen clamp to perform the circumcision. The procedure resulted in the amputation of a portion of the glans of C's penis. During the trial, the defendants' counsel offered a video that depicted a circumcision using the Mogen clamp in order to assist the jury in understanding how a circumcision is performed using that device. After excusing the jury, the court watched the video and heard arguments as to its admissibility. The plaintiffs' attorney argued that the video should not be shown to the jury because it was not previously produced for the plaintiffs, because it would confuse the jury, and because the defendants' expert, a pediatrician who testified that the video accurately depicted a circumcision procedure and that the video would assist the jury, did not rely on the video in forming his opinion. The court ruled that the video was admissible as demonstrative evidence. When trial resumed, the defendants' expert testified that the video did not depict the actual circumcision that S performed on C. The court then permitted the video to be shown for demonstrative purposes only. The video, which depicted the entirety of a Mogen circumcision procedure and had no sound, was shown tothe jury, and the defendants' expert narrated the events depicted in the video. After the trial ended, the jury returned a verdict for the defendants, and the plaintiffs subsequently filed a motion to set aside the verdict and for a new trial on the basis of the court's decision to permit the showing of the video. Thereafter, the trial court denied the plaintiffs' motion to set aside the verdict and for a new trial, and the plaintiffs appealed to this court.

         Held:

1. This court declined to review the merits of the plaintiffs' claims that the defendants' use of the video violated the relevant rules of practice (§§ 13-4, 13-15) regarding disclosure of experts and the continuing duty to disclose, because the video and related testimony from the defendants' expert were not disclosed, and that the video and the related expert testimony were irrelevant and unduly cumulative; the plaintiffs did not distinctly raise those claims in connection with their motion to set aside the verdict and for a new trial.
2. There was no merit to the plaintiffs' claim that the video, and testimony of the defendants' expert concerning it, were prejudicial and confusing to the jury because the portions of the video showing the patient receiving anesthesia and the physician applying clamps used to control bleeding were aspects of the procedure that were not at issue in the trial; it was not apparent to this court how those parts of the video would confuse the jury, and the court concluded that those parts of the video likely clarified the earlier direct testimony of the plaintiffs' expert witness regarding the use of anesthesia and the clamps; furthermore, the plaintiffs' claim that the video was prejudicial because they were precluded from responding to it was unavailing, because, prior to trial, the defendants provided the plaintiffs with an exhibit list that identified the video, and the plaintiffs did not request to watch the video prior to its introduction at trial, nor did they choose to file a motion in limine seeking to preclude its admission into evidence, move for a continuance after it was marked for identification, or recall their expert witness to serve as a rebuttal witness concerning the video.
3. The trial court properly rejected the plaintiffs' claim that it improperly denied their motion to set aside the verdict and for a new trial because the court did not instruct the jury that the video was for demonstrative purposes only: the purpose of the video, which was to show to the jury how a circumcision is performed utilizing a Mogen clamp, would have been readily apparent to the jury; moreover, the plaintiffs having failed to comply with the prerequisites to appellate review of their allegation of instructional impropriety because they did not raise this claim at the time the trial court instructed the jury, this court could not say that the trial court abused its discretion in denying the plaintiffs' motion.
4. This court declined to review the plaintiffs' claim, raised for the first time on appeal, that the trial court abused its discretion by allegedly discouraging the jury from rehearing the expert medical testimony during deliberation: this claim was unpreserved because the plaintiffs, at the time of trial, did not object to the manner in which the trial court responded to the jury's playback request.

          OPINION

          KELLER, J.

         This appeal arises from a medical malpractice action brought by the plaintiffs, Thomas and Roxanne Mahoney, both individually and on behalf of their minor child, Teaghan Mahoney (child), against the defendants, Lori Storch Smith and Bay Street Pediatrics, the professional corporation in which Dr. Storch Smith practiced. The plaintiffs alleged that Dr. Storch Smith was negligent in performing a circumcision on the child, who was a newborn at the time. The procedure resulted in the amputation of a portion of the glans-or head- of the child's penis. Following a trial, the jury returned a verdict for the defendants. On appeal, the plaintiffs claim that the trial court abused its discretion by (1) declining to set aside the verdict and order a new trial, and (2) discouraging the jury from rehearing expert ...


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