Lorene Tate v. Safeco Insurance Company of Illinois et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT

The plaintiff has filed a motion to set aside the verdict on the ground that the court made erroneous evidentiary rulings, improperly presided over a retrial following a mistrial, failed to allow one of the plaintiff's experts to testify and failed to properly charge the jury on cause in fact.   The court heard argument on the motion on July 1, 2013.

FACTS

This case, arising out of a motor vehicle accident, was tried to a jury with a verdict for the plaintiff on March 13, 2013.   The jury found that the defendants were liable and awarded damages of $15,215.08, but refused to find, as the plaintiff argued, that injuries to the plaintiff's knee were caused by the accident.   The court had granted a motion for mistrial on October 2, 2012 as a result of the disclosure of new evidence during the trial as to the identity of the driver of the motor vehicle.   The court determined that a mistrial was necessary because this information presented a risk of substantial prejudice to the rights of the parties.   This judge, Sommer, J., presided over both the mistrial and trial.   After the trial, the plaintiff, Lorene Tate, moved to set aside the verdict.   Despite procedural defects in the plaintiff's motion, the court scheduled argument on the substantive issues raised by plaintiff on July 1, 2013.   In summary, plaintiff complains of numerous unspecified erroneous decisions, and specifically complains that the court failed to obtain the parties' waiver of a potential conflict of interest at the commencement of the second trial despite the parties' waiver on the same facts in the first trial, that the court should not have presided over the retrial of a case after it presided over the mistrial of the same case, that the court erroneously cut short one of the plaintiff's experts and failed to permit him to make an offer of proof, and that the court failed to properly charge the jury on factual causation.

DISCUSSION

In considering a motion to set aside the verdict, “[t]he trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence ․ [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 ․ Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion ․” (Internal quotation marks omitted.)   Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006).  “[The reviewing court] must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict ․ In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable ․ In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it.”  (Internal quotation marks omitted.)  Id., 704.  “The trial court has wide discretion to determine the relevancy [and admissibility] of evidence ․ In order to establish reversible error on an evidentiary impropriety ․ the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.”  (Citation omitted;  internal quotation marks omitted.)  State v. Cecil J., 291 Conn. 813, 818–19, 970 A.2d 710 (2009).

The plaintiff asserted four claims of error at oral argument, although neither the plaintiff's submitted memorandum nor the plaintiff's oral argument was clear as to what these errors were or the legal bases for any of them.   The court believes that these claims are that the court made numerous erroneous rulings, improperly presided over a retrial following a mistrial, failed to allow the plaintiff's offer of proof for expert testimony, and failed to charge the jury on legal causation.   The court will endeavor to address each of these concerns as fully as possible under the circumstances.

I

1:  ERRONEOUS RULINGS

The plaintiff claims that, in general, the court issued numerous rulings of harmful error, interjecting itself into the case of the plaintiff but not the defendant, and demonstrated visible bias toward the plaintiff's attorney and expert witness.   The court has reviewed the trial transcript and is unable to find support in the record for the plaintiff's claim.   In addition, our Supreme Court has stated, “[T]rial courts have the authority to manage cases before [them] as necessary ․ Deference is afforded to the trial court in making case management decisions because it is in a much better position to determine the effect that a particular procedure will have on both parties ․ The case management authority is an inherent power necessarily vested in trial courts to manage their own affairs in order to achieve the expeditious disposition of cases ․ The ability of trial judges to manage cases is essential to judicial economy and justice ․ We will not disturb a trial court's decision regarding case management unless after carefully examining the factual circumstances of the case, we determine that there was an abuse of discretion ․ Abuse is not present if discretion is not exercised arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law, and [it is] directed by the reason and conscience of the judge to a just result.”   (Citation omitted;  internal quotation marks omitted.)  State v. Colon, 272 Conn. 106, 256–57, 864 A.2d 666 (2004), cert. denied, Colon v. Connecticut, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005).

Regarding the plaintiff's generalized claims of impropriety, the court made rulings with an eye toward properly managing the proceedings and ensuring each party had an equal opportunity to be heard.   When the plaintiff complained about facial expressions during trial, the court offered to have a camera installed in the courtroom.   Trial Transcript, March 6, 2013, p. 146 line 23–25.   When the plaintiff became distraught during direct examination by her own attorney, the court provided her with a tissue and water, asked if she would like time to compose herself, and permitted her as much time as she needed to do so.   Trial Transcript, March 6, 2013, p. 159 line 23—p. 199, line 11.

A. Refusal to Allow a Witness to Refer to a Police Report

The plaintiff complains at length in the present motion about the court's alleged refusal to allow a witness to refer to a police report.   On March 5, 2013, when a police officer was testifying based on, among other things, a police report, the plaintiff did request to read from the police report or to publish it to the jury.   Trial Transcript, March 5, 2013, p. 61 line 8–12.   The police officer was not present at the accident, but interviewed Marjorie Meketa, the car's owner, several days later.   At the time of the trial, Marjorie Meketa was in a coma unrelated to the accident and was thus unable to confirm, deny or explain the information as reported by the police officer.   The plaintiff did not state the purpose for which he was offering the police report.   The court, after defendant's objection to publication on the grounds that it contained hearsay, instructed the plaintiff to ask questions and direct the witness to any portion of the police report upon which he wanted to examine the witness, which the plaintiff proceeded to do.   Trial Transcript, March 5, 2013, p. 62 line 15–26.   In addition, there was a lengthy discussion of whether statements by Marjorie Meketa, a defendant and the owner of the vehicle which struck the defendant's car, could come in under the statement of a party opponent exception even though she was in a coma.   Trial Transcript, March 5, 2013, p. 67–84.   After a lengthy colloquy the court allowed the plaintiff to ask the police officer questions as to who Marjorie Meketa said was driving the car.   Trial Transcript, March 5, 2013, p. 83–86.   The record therefore reveals that contrary to the plaintiff's assertion, when the plaintiff chose to question witnesses about the police report the court permitted the plaintiff to do so.

B. Refusal to Permit the Plaintiff to Publish or Read Medical Reports into the Record

The plaintiff also contests the court's refusal to permit the plaintiff to either publish to the jury or read into the record the medical reports of Edward Staub, a medical doctor, and Anthony Tortorella, a chiropractor, the plaintiff's expert witnesses.   The court stated that “[t]he records of any doctor who either has or will be expected to testify will provide their testimony live under oath in this courtroom.   The records themselves are not sworn, they're not certified, they may be presented, our statute provides for that.   You may proceed.”   Trial Transcript, March 6, 2013, p. 93, line 2–7.   The plaintiff took exception to this “under Struckmen versus Burns and they are self-authenticating under 52–174.”   Trial Transcript, March 6, 2013, p. 93, line 10–11.   The Court in Struckman v. Burns, 205 Conn. 542, 546, 534 A.2d 888 (1987), did state that “[s]ubsection (a) of § 52–174 allows medical reports and bills to be admitted even if the medical practitioner or engineer who prepared them is beyond the effective subpoena power of our courts and is unable to testify at trial where that person is deceased, or is disabled, either mentally or physically.”  (Footnote omitted.)   In the present case the records were permitted into evidence;  the plaintiff was simply not permitted to read them to the jury in open court.   The court's decision not to permit them to be read was a judicious use of the jury's time, as allowing them to be read would be needlessly duplicative.   See Connecticut Code of Evidence § 4.3, which provides:  “Relevant evidence may be excluded if its probative value is outweighed for the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.”  “As we have stated, [o]ne of the chief roles of the trial judge is to see that there is no misunderstanding of a witness's testimony.   The judge has a duty to comprehend what a witness says as much as it is his duty to see that the witness communicates with the jury in an intelligible manner.   A trial judge can do this in a fair and unbiased way.   His attempt to do so should not be a basis [for] error.   Where the testimony is confusing or not altogether clear the alleged ‘jeopardy’ to one side caused by the clarification of a witness's statement is certainly outweighed by the desirability of factual understanding.   The trial judge should strive toward verdicts of fact rather than verdicts of confusion.”  (Internal quotation marks omitted.)  Farrell v. St. Vincent's Hospital, 203 Conn. 554, 563–64, 525 A.2d 954 (1987).   In the present case, this principle applies to the plaintiff's attempt to read the medical reports aloud.   The plaintiff failed to clearly state why she wanted to read the medical reports aloud or how long reading them would take.   The court did not prevent the plaintiff from referencing or using the reports in any way consistent with the rules of evidence.   However, without a clearly articulated purpose, the court determined that the jury would be better served if the reports were admitted as exhibits and referenced by witnesses as necessary, thereby avoiding confusion, redundancy and the presentation of cumulative evidence.   The plaintiff's claim that this was an erroneous ruling is therefore incorrect.

II IMPROPERLY SITTING ON RETRIAL

The plaintiff makes several claims related to the judge presiding over both the mistrial and completed trial in this case.   She claims that doing so was a reversible error.   She also claims that by sitting on a retrial following a mistrial the court deprived the plaintiff of a “fresh start,” and that the prejudice produced by this lack of a fresh start is evident because the court made identical rulings in the retrial to those it made during the mistrial.   Finally, she claims that the court committed error by failing to obtain a waiver of the court's supposed conflict of interest in the retrial after doing so at the mistrial.

A Presiding over a Retrial after Presiding over a Mistrial

The plaintiff claims that it was improper for the same judge to sit on both the mistrial and the subsequent retrial.   The plaintiff filed a motion to this effect amid several other motions from all parties, on February 26, 2013, which the court denied.   Each time the plaintiff argued this point, in the February 26 motion, in the motion to set aside the verdict, and at oral argument regarding the motion to set aside the verdict, the plaintiff failed to cite any law in support of the proposition.   The court has therefore endeavored to determine independently whether there is any legal support for this proposition.

General Statutes § 51–183c states:  “No judge of any court who tried a case without a jury in which a new trial is granted, or in which the judgment is reversed by the Supreme Court, may again try the case.   No judge of any court who presided over any jury trial, either in a civil or criminal case, in which a new trial is granted, may again preside at the trial of the case.”

The key issue is whether § 51–183c applies to a mistrial.   In State v. DeGennaro, 147 Conn. 296, 302, 160 A.2d 480 (1960), the court “[assumed], without deciding, (a) that the first trial to the jury, which ended in a disagreement and consequent mistrial, constituted a ‘trial’ within the meaning of [§ 51–183c] ․ so that it could be said that a ‘new trial ․ [was] granted’ ․” (Citation omitted.)  (Determining that parties consented to the same judge by proceeding with the trial even though they did not know about the statute.)  Section 51–183c is unequivocally applicable to remands;  Gagne v. Vaccaro, 133 Conn.App. 431, 439, 35 A.3d 380, appeal granted in part, 304 Conn. 907, 39 A.3d 1118 (2012);  except where the purpose of the remand is better served by a remand to the same judge;  State v. Gonzales, 186 Conn. 426, 436 n.7, 441 A.2d 852 (1982) (“Although General Statutes § 51–183c ordinarily requires that, upon a retrial, a different judge shall preside, that statute is inapplicable here, where the purpose of the remand is not to correct error but to determine whether error has occurred”).   It does not apply to pretrial, short calendar;  Lafayette Bank & Trust Co. v. Szentkuti, 27 Conn.App. 15, 19, 603 A.2d 1215 (1992);  or sentencing hearings;  State v. Miranda, 260 Conn. 93, 131, 794 A.2d 506 (2002), cert. denied, Miranda v. Connecticut, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002).

In the present case, § 51–183c did not require the court to recuse itself because the court had not presided over the entirety of a former trial.   It presided over a mistrial followed by a retrial.   The Supreme Court noted in State v. DeGennaro, supra, 147 Conn. 301–02, that the statute is unclear regarding whether it refers to a retrial following a mistrial.   In Lafayette Bank & Trust, supra, 27 Conn.App. 19, the court defined the term “trial” in § 51–183c by referencing those Practice Book sections which control trials, as opposed to pretrial and short calendar proceedings.   Here, however, the court is concerned with the definition of a “new trial,” specifically whether that term encompasses a retrial following a mistrial.   The distinction between a new trial on remand and a retrial following a mistrial is discussed at greater length in the context of waivers, Section II.C, infra.   New trials on remand are generally held because the original trial judge made some error.   A new trial following a remand order therefore is certainly a new trial per § 51–183c.   A retrial following a mistrial, on the other hand, can be held for a variety of reasons, including, as in this case, if new evidence is adduced at trial and the attorneys need time to adjust their cases accordingly.

The mistrial occurred because one of the witnesses, Kiah Meketa, stated on the stand that she was the driver of the vehicle.   Prior to that the parties had stipulated, and the jury had been informed, that the driver was unknown;  the jury was told to therefore assume that the driver had the owner's permission to use the vehicle.   Following Kiah Meketa's statement, the defendant Marjorie Meketa moved for a mistrial, none of the parties contested the issue, and in fact all of them provided reasons why the case needed to be retried from the beginning.   The court reluctantly agreed with the parties that a mistrial and retrial were necessary.   None of the judge's prior rulings were deemed incorrect, as would often be the case for the same judge hearing a case following remand.   A new trial following a remand or a new trial following a motion for a new trial would create problems with maintaining an appearance of impropriety in a way which a retrial following a mistrial does not.   Therefore § 51–183c does not apply to retrial following a mistrial, but only to a new trial following a remand.

If § 51–183c applies, there is the possibility of waiver under General Statutes § 51–183d, which states:  “If a judge acts in any legal proceeding in which he is disqualified, the proceeding shall not by reason thereof be void, but such action shall constitute an irregularity of which advantage may be taken by appeal or, where no appeal lies, by proceedings in error.”  “We previously have observed that § 51–183d plainly provides that proceedings before a disqualified judge are not void but merely voidable ․ [S]ee also General Statutes § 51–39(c) (parties may waive judge's disqualification).   A voidable judgment is a judgment entered erroneously by a court having jurisdiction ․ Although a voidable judgment may be reversed on appeal because an action by a court is contrary to a statute, constitutional provision, or rule of civil or appellate procedure, the judgment itself is valid and binding on all parties.”  (Citations omitted;  internal quotation marks omitted.)   Ajadi v. Commissioner of Correction, 280 Conn. 514, 534, 911 A.2d 712 (2006).   When considering the previous version of § 51–183d, the Supreme Court stated that knowledge of the statute was not necessary for the parties to waive their right to void the disqualification under § 51–183d.  State v. DeGennaro, supra, 147 Conn. 303–04.   In the present case, the plaintiff made a general objection orally to the court hearing the matter on retrial, but failed to file a motion or in any way to cite to the statute or any other law.   The plaintiff therefore did not waive the application of § 51–183c.

Finally, even if § 51–183c applies, and § 51–183d does not waive the plaintiff's objection, the judge's hearing of the case was harmless error.   The jury rendered its verdict in favor of the plaintiff.   The plaintiff's only issue is the determination of the amount of damages.   The plaintiff has not connected the presence of the same judge at the retrial to the jury's damage award.   In addition, as noted above, the mistrial was earlier declared due to new evidence rather than any decision or action by the judge.   If the plaintiff intended to disqualify the judge, Practice Book section 1–23 requires that “A motion to disqualify shall be in writing accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith.   The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such a time.”   Having failed to comply with the above provisions of the practice book, plaintiff's claim is procedurally defective and untimely.

B Plaintiff's Claim of Entitlement to a Rehearing of All Motions, and Similarity of Evidentiary Rulings before Mistrial and before Retrial as Evidence of Bias

The plaintiff claims that after a mistrial she is entitled to a rehearing of all motions and that everything starts from a clean slate.   The plaintiff further claims that the similarity between the judge's evidentiary rulings prior to and during the mistrial and retrial demonstrates the judge's bias.   She does not provide any legal backing for this proposition, but asserts that the judge showed bias toward her by finding the same way regarding the virtually identical motions that the plaintiff filed in the mistrial and retrial.

While there is little authority on this subject, the Court found guidance in out-of-state and federal cases and a learned treatise.  “[C]omparatively little authority exists, in both reported cases and learned treatises, upon the status at a retrial of those issues which were the subject of dispositive rulings by the court at the original trial and which therefore were not in issue at the time the case was submitted to the original jury.   There is, however, no dispute either among the authorities or between the instant parties, that all issues actually submitted to the jury at the previous trial may be retried de novo.   Further, it is uniformly agreed that a mistrial does not affect or invalidate any of the pretrial proceedings in the case.   Therefore, the precise concern of this Court is with the viability at the retrial of certain authoritative dispositions propounded during the preceding trial of this action ․ [T]he fundamental purpose of a retrial is to afford a new jury an opportunity to reach a final disposition of only those issues which were left unresolved by the failure of the first jury to agree upon a verdict.   That is to say, a mistrial occasioned by the jury's inability to arrive at a verdict does not convert those matters which were previously the subject of dispositive rulings by the trial court to matters the litigants are free to relitigate de novo in the second trial.”  Cleveland v. Cleveland Electric Illuminating Co., 538 F.Sup. 1328, 1329–30 (N.D.Ohio 1981);  cited by United States v. Todd, 920 F.2d 399, 404 (6th Cir.1990) (holding that subsequent court had discretion whether to reconsider evidentiary rulings made by previous court prior to mistrial);  Bellamy v. Fox, United States District Court, Docket No. 4:09–CV–01691 (JMC) (D.S.C. September 5, 2012) (holding that dismissal of five of plaintiff's claims by judge constituted permanent dismissal of those claims despite jury's inability to rule on the remaining two claims and declaration of a mistrial).

The Supreme Courts of Ohio and Virginia have also commented on this issue.   The Ohio Supreme Court stated that “evidentiary rulings established in a trial in which a mistrial was declared are routinely applied by Ohio courts in a second trial” but held that in the case before it the trial court's evidentiary ruling during a mistrial did not stand because an Ohio statute permitted the plaintiffs to dismiss an action prior to trial, including after a mistrial.   Schwering v. TRW Vehicle Safety Systems, Inc., 132 Ohio St.3d 129, 132–33, 970 N.E.2d 865 (2012), action in conformity with answer to certified question, United States District Court, Docket No. 1:10–CV–679 (S.D.Ohio May 17, 2012), aff'd, 512 Fed.App. 556 (6th Cir.2013), cert. denied, U.S. 133 S.Ct. 2810 (2013).   The plaintiffs had dismissed the case under this statute, therefore the trial court's evidentiary ruling in the mistrial did not continue in effect.  Id. The Virginia Supreme Court likewise held that rulings made during a mistrial could be applied in the retrial, but stated that doing so was not automatic:  “[A] defendant may not assert that rulings made on pre-trial motions prior to a mistrial are binding upon the trial court in a subsequent trial unless the trial court adopts those rulings on its own motion or in addressing a motion of one or both of the parties.   See, e.g., United States v. Oakey, 853 F.2d 551, 554 (7th Cir.1988), cert. denied, 488 U.S. 1033, 102 L.Ed.2d 977 (1989).   In the absence of a ruling in the second trial adopting the rulings of the aborted trial, the defendant is required to renew his motions with specificity in order to preserve the record of the trial court's rulings and the defendant's objections thereto for any subsequent appeal of the retrial.”  Elliott v. Commonwealth of Virginia, 267 Va. 396, 427–28, 593 S.E.2d 270 (2004), cert. denied, Elliott v. Virginia, 543 U.S. 1081, 125 S.Ct. 875, 160 L.Ed.2d 825 (2005), writ of habeas corpus dismissed, Elliott v. Warden of the Sussex I State Prison, 274 Va. 598, 652 S.E.3d 465 (2007), writ of habeas corpus dismissed, Elliott v. Kelly, United States District Court, Docket No. 1:08–CV–430 (E.D.Va. March 31, 2009).   Finally, according to American Jurisprudence:  “Although the evidence adduced at the original trial and the new trial is very similar, the rulings of the trial judge in the original case on the sufficiency of the evidence do not bind the trial judge in the second case;  the rule of the law of the case does not apply unless there is a final judgment that decided the issue.”   58 Am.Jur.2d, New Trial, § 415 (2012).

The preceding provides persuasive authority for the court's discretion in determining whether to rehear motions which were decided in the mistrial and whether to rule in the same way as the judge of the mistrial.   The trial court can determine whether any rulings were affected by the reason for the mistrial and can ascertain whether the circumstances on which the motions are based, including the facts and the law, have changed, and can then determine which motions need to be reheard.   This provides for a better use of resources than rehearing every issue.   The law strives for uniformity of application to similar factual situations.   If the facts on which a motion is based have not changed and the law has not changed, it is to be hoped that a judge will rule in the same manner.

In the present case, the trial court referred to the parties' previous motions prior to trial, with an eye toward determining whether any would need to be reheard.   After the plaintiff protested that she was permitted to renew every motion, the court considered each motion even though it was not required to do so.   After due consideration, the court did generally decide in a similar manner to its rulings on the earlier motions.   This consistency is logical as there was no change in the facts, the law or any of the parties' arguments.   The common law is built on the premise that in identical situations the law should draw identical conclusions.   Courts therefore strive to provide consistent results to parties.   The plaintiffs claim that the court's identical rulings demonstrate bias is therefore without merit.

C Failure to Obtain a Second Waiver of the Court's Purported Conflict of Interest

The plaintiff argues that the court erred in failing to obtain the parties' waiver of the alleged conflict of interest caused by the presiding judge's work for Safeco on an unrelated matter as a junior associate thirty-five years in the past.   The court did obtain the parties' waiver during the earlier mistrial, but did not do so again at the retrial, there being no new information to disclose regarding the presiding judge's representation of Safeco.  Rule 2.11 of the Code of Judicial Conduct states in pertinent part that “(a) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned including, but not limited to, the following circumstances:  ․ (5) the judge:  (a) served as a lawyer in the matter in controversy or was associated with a lawyer who participated substantially as a lawyer in the matter during such association ․ (c) A judge subject to disqualification under this Rule, other than for bias or prejudice under subsection (a)(1), may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification, provided that the judge shall disclose on the record the basis of such disqualification.   If, following the disclosure, the parties and lawyers agree, either in writing or on the record before another judge, that the judge should not be disqualified, the judge may participate in the proceeding.”  General Statutes § 51–39(a) similarly provides for disqualification for various reasons, including “if [a judge] may receive a direct pecuniary benefit by the determination of any proceeding before him.”  Section 51–39(c) then provides for waiver:  “When any judge is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.”  General Statutes § 51–39.   In the present case, the three issues are whether the court had a conflict of interest which would merit disqualification, whether the parties' waiver at the earlier trial was effective in the later trial, and whether the plaintiff properly preserved the issue for appeal.

First, the conduct complained of did not constitute a conflict of interest.   “[T]he Code of Judicial Conduct requires a judge to disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned ․ Even in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority.”  (Citations omitted;  internal quotation marks omitted.)  State v. Ortiz, 83 Conn.App. 142, 150, 848 A.2d 1246 (2004).  “The standard to be employed when determining whether a judge should recuse himself ․ is well established.   The standard ․ is an objective one [meant to assess] whether [the judge] can be fair and impartial in hearing the case ․ Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge's impartiality might reasonably be questioned is a basis for the judge's disqualification.   Thus, an impropriety or the appearance of impropriety ․ that would reasonably lead one to question the judge's impartiality in a given proceeding clearly falls within the scope of the general standard ․ The question is not whether the judge is impartial in fact.   It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his [or her] ․ impartiality, on the basis of all of the circumstances.”  (Citations omitted;  internal quotation marks omitted.)   Sabatasso v. Hogan, 91 Conn.App. 808, 825, 882 A.2d 719, cert. denied, 276 Conn. 923, 888 A.2d 91 (2005).  “Nevertheless, because the law presumes that duly elected or appointed judges, consistent with their oaths of office, will perform their duties impartially ․ and that they are able to put aside personal impressions regarding a party ․ the burden rests with the party urging disqualification to show that it is warranted.   See 46 Am.Jur.2d, Judges § 129 (2006).”  (Citation omitted.)  State v. Rizzo, 303 Conn. 71, 119, 31 A.3d 1094 (2011), cert. denied, Rizzo v. Connecticut, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012).   In Bonelli v. Bonelli, 214 Conn. 14, 17–18, 570 A.2d 189 (1990), the Supreme Court overturned an appellate court finding that disqualification was required where the trial judge's former law firm had a co-counsel relationship with the plaintiff's attorney in a case, some elements of which remained pending.   The Supreme Court noted that the judge's personal involvement in the case had been minimal, he was not involved in any of the matters that remained pending and he had no financial interest in the matters which remained pending.  “The length of time which lapses between the claimed adverse representations is another factor to be considered in determining whether the trial court has committed reversible error” in denying disqualification.  Knights of Columbus Federal Credit Union v. Salisbury, 3 Conn.App. 201, 205, 486 A.2d 649 (1985) (on decision not to disqualify attorney for prior representation of party adverse to current client).

With these standards in mind, the judge stated prior to the mistrial that she had worked for Safeco in the past, specifically thirty-five years ago as a junior associate on an unrelated matter.   The judge did so out of an abundance of caution, not because this supposed conflict of interest is actually sufficient to require recusal.   The plaintiff has provided no legal basis for her claim that her waiver of the court's conflict of interest in the earlier mistrial was not valid in the later retrial.   The court has again endeavored to determine what, if any, legal basis she has for this contention.   The Connecticut case law is inconclusive regarding a waiver during a mistrial continuing to have effect in the retrial, and the case law of other states and the federal courts is somewhat contradictory.   In State v. Williams, 205 Conn. 456, 466–67, 534 A.2d 230 (1987), habeas corpus denied, Williams v. Bronson, 21 Conn.App. 260, 573 A.2d 330 (1990), the defendant waived his right to a jury trial when he was tried for burglary in the first degree, but did not waive it again after the substitute information charging him with burglary in the second degree was filed.   The Supreme Court held that the earlier waiver applied absent any objection at trial.  Id. Likewise in State v. Michael A., 297 Conn. 808, 828, 1 A.3d 45 (2010), the defendant's waiver of his right to an attorney applied when the sentencing phase of a trial was remanded.   The court also distinguished several out of state cases holding that waiver did not apply to a new trial on remand after an appeal;  People v. Solis, 66 Cal.App.4th 62, 77 Cal.Rptr.2d 570 (1998);  and that waiver did not apply to a retrial after the first trial was declared a mistrial;  People v. Hamm, 100 Mich.App. 429, 433, 298 N.W.2d 896 (1980) (unlike the present case, the defendant attempted to assert his right to a jury trial on the eve of trial, and the court noted that “the right to jury trial is a high and sacred right ․”).  Id. The court held that “[t]hese cases are distinguishable from the present case because the post remand proceeding herein was not a retrial on the defendant's guilt but, rather, a resentencing hearing held as the result of a remand that was limited in nature ․” State v. Michael A., supra, 297 Conn. 828.   These past Connecticut cases establish that a full new trial following a remand will require renewed waivers, but are unclear on a retrial following a mistrial where no judgment was rendered in the proceedings which were the subject of the mistrial.

Again, the court will look to other jurisdictions for instruction.   Some courts hold that a waiver in a mistrial does not control a retrial, while others acknowledge a distinction between remand and retrial.  “The declaration of a mistrial renders nugatory all trial proceedings with the same result as if there had been no trial at all.   See 58 C.J.S. Mistrial at 833–34 (1948).   The situation which exists is analogous to that which results from an appellate reversal and remand for new trial.   See 5 Am.Jur.2d Appeal and Error § 955 at 382 (1962).   The parties are returned to their original positions and, at the new trial, can introduce new evidence and assert new defenses not raised at the first trial.”  United States v. Mischlich, 310 F.Sup. 669, 672 (D.N.J.1970) (regarding waiver of venue in first trial), aff'd, United States v. Pappas, 445 F.2d 1194, 1201 (3d Cir.1971), cert. denied, Mischlich v. United States, 404 U.S. 984, 92 S.Ct. 449, 30 L.Ed.2d 368 (1971).   On the other side, in United States v. Lee, 539 F.2d 606, 608–09 (6th Cir.1976), the court stated in dicta that “where a tribunal grants a new trial in the interest of justice without the intervention of a reviewing court ․ it appears appropriate to hold that waiver of a jury trial or consent to trial by a magistrate should continue in force.  F.R.Crim.P. 33 and Magistrates Rule 7, which permit the tribunal to simply vacate the judgment and reopen the original proceedings in an appropriate case, may be construed to require this result.   The second situation is when a reviewing court finds error in the conduct of a trial and reverses with directions for a new trial.   In that situation the general rule is that a litigant is not bound by his prior waiver of a jury trial ․ Unless the language of a waiver unambiguously states that it will apply in all retrials should they be ordered, a waiver should not continue in effect after the jurisdiction of the court to which it was tendered terminates upon the taking of an appeal.”   The court then determined that in the case before it, where a magistrate judge had previously convicted the defendant, the defendant was entitled to assert his right to a jury trial upon retrial.  Id. The Sixth Circuit failed to apply its dicta distinction in United States v. Groth, 682 F.2d 578 (6th Cir.1982), finding that a defendant had not waived his right to a jury trial in the earlier trial even though the case was mistried prior to judgment.   The Ninth Circuit adopted a similar distinction to the one suggested by the Sixth Circuit in Lee in United States v. Mortensen, 860 F.2d 948 (9th Cir.1988), cert. denied, Mortensen v. United States, 490 U.S. 1036, 109 S.Ct. 1935, 104 L.Ed.2d 406 (1989):  “Consent to trial before the magistrate is not automatically canceled by a mistrial but continues in force until it is revoked or withdrawn in a timely fashion.”   Similarly, in Zemunski v. Kenney, 984 F.2d 953 (8th Cir.1993), the Eighth Circuit explained that “[a]lthough a mistrial does not automatically cancel a jury waiver, a defendant may withdraw the waiver before a retrial ․ If the motion to withdraw is untimely, however, a trial court does not deprive the defendant of the right to a jury trial by denying the motion ․ Although timeliness depends on the circumstances of each case, [a] withdrawal motion is timely when granting the motion would not unduly interfere with or delay the proceedings.”  (Citations omitted;  internal quotation marks omitted.)

The California Appellate Court provided an apt summary in People v. Smith, 132 Cal.App.4th 924, 936, 33 Cal.Rptr.3d 918 (2005), cert. denied, 2006 Cal. LEXIS 140 (2006).  “Defendant did not consent to the mere commencement of a court trial in this case.   He consented to have the court hear and decide the entire case.   The mistrial interrupted the proceeding to which defendant had already agreed.   Unlike other circumstances in which it might be argued that the defendant did not consent to a second court trial, the completion of a court trial following a mistrial in no manner exceeds the scope of defendant's original consent.   At the other end of the spectrum, it is not reasonable to presume that when a defendant originally consents to a court trial he is agreeing that if he is convicted and prevails on appeal, he will submit to another court trial by the same tribunal that has already found him guilty ․ Accordingly, the trial court did not violate defendant's constitutional right to a jury trial by retrying him without putting a second in-court waiver of his jury right on the record.”  (Citation omitted;  emphasis in original.)

In the present case, the parties consented to the court presiding over a jury trial through to judgment.   There was no new information regarding the judge's representation of Safeco that emerged between the mistrial and retrial.   The court, having previously confirmed that the parties did not object to the judge's earlier representation, could reasonably have found that the court's time would be better spent on other issues.   The earlier waiver therefore would continue to be effective unless a party actively withdrew the waiver.

Finally, even if the waiver was invalid, the plaintiff never properly moved to disqualify the judge.   The plaintiff did file a motion to preclude on February 26, 2013, but did not mention a conflict of interest, instead claiming that the judge was barred from hearing the case due to the mistrial.   As noted above, a party is required to make a motion to disqualify a judge with a potential conflict of interest as required by Practice Book § 1–23:  To repeat, “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith.   The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”   See Worth v. Commissioner of Transportation, 135 Conn.App. 506, 508 n.2, 43 A.3d 199, cert. denied, 305 Conn. 919, 47 A.3d 389 (2012) (Court will not consider claim of bias not raised at trial level in proper form).   The plaintiff failed to move to disqualify the judge, even though she knew the facts relating to the judge's previous employment many years ago as a junior associate from the earlier trial and did not raise the issue until the entire trial was concluded and she was not satisfied with the result.  “We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.   We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal.”   (Internal quotation marks omitted.)  Jones v. Ippoliti, 52 Conn.App. 199, 206, 727 A.2d 713 (1999).

The court disclosed its prior work in the earlier trial and obtained the parties' waiver out of an abundance of caution.   The court does not believe that having worked for one of the defendants 35 years in the past on an unrelated matter gives rise to an appearance of impropriety which would justify judicial disqualification.   The court's neglect in not again obtaining the parties' consent on the record was in no way a source of harmful error because the court already knew that the parties did not object and because the parties' consent was not necessary in the first place.   Had any further information regarding the courts' representation of Safeco come to light, the court would again have informed the parties out of an abundance of caution.

3 FAILURE TO ALLOW PLAINTIFF'S EXPERT TO TESTIFY FULLY AND FAILURE TO ALLOW PLAINTIFF'S OFFER OF PROOF

The plaintiff makes two claims of error regarding the testimony of one of the plaintiff's expert witnesses, Edward Staub, a medical doctor.   She first claims that the court permitted Staub to testify for a period of time, then cut off his testimony.   She then claims that she requested that Staub make an offer of proof and the court denied the request.   The plaintiff assigns error to both of these alleged actions by the court.

A. First Claimed Failure to Allow Plaintiff's Expert to Testify Fully:  Future Knee Treatment

The court is uncertain precisely what testimony the plaintiff believes was cut off.   The defendants did make a motion in limine regarding testimony as to the need for future medical care, filed on February 26, 2013.   The defendants claimed that testimony as to how an injury might worsen in the future was generally too speculative for an expert to testify to, citing Marchetti v. Ramirez, 240 Conn. 49, 688 A.2d 1325 (1997), and claimed that Staub's disclosure did not contain any details which demonstrated how his testimony as to future care would be anything other than speculation.   The court denied the defendants' motion in limine, without prejudice, stating that the plaintiff could present testimony regarding the need for future medical care as long as she established a sufficient basis for the expert's testimony as to the need for future care.

At trial, the plaintiff was given suitable opportunity to lay a foundation for Staub's testimony, and she was able to elicit testimony regarding the likelihood of future knee problems, including the chance that her problems would worsen.   The plaintiff was also permitted to question Staub in order to lay a foundation for his belief that specific future treatment would be necessary.   The plaintiff failed to do so when questioning Staub and, after allowing the plaintiff several chances to lay the foundation, the court correctly sustained the objection.   Trial Transcript, March 6, 2013, p. 27, line 6—p. 33, line 18.   Moreover, even if precluding this line of testimony was an error, it was harmless error because the jury did not find that the accident caused any injury to the plaintiff's knee.   Testimony as to likely future costs of knee treatment would not have changed that verdict.

B Second Claimed Failure to Allow Plaintiff's Expert to Testify Fully:  Sheehan Medical Report

The second place where Staub's testimony was objected to was when the plaintiff asked him to read from a medical report by another doctor, Daniel Sheehan.   The court stated that “Doctor Sheehan's records are admissible and Doctor Staub may testify as to his examination, his findings, and his conclusions as well as any treatment that he provided to the plaintiff.   But to have Doctor Staub interpret Doctor Sheehan's records is not admissible.”   (Emphasis added.)   Trial Transcript, March 6, 2013, p. 35, line 25—p. 36 line 3. At that point, the plaintiff was simply reading from a document which counsel had not previously identified as an exhibit in the case without laying a foundation for it or informing the court as to Staub's familiarity with it.   The court then permitted the plaintiff to question Staub as to whether or not he agreed with Sheehan's analysis, even overruling the defendant's objection:

[Plaintiff's Attorney:] All right.   It also says with light palpation she has tenderness of the anterior, again, to that right knee area, is that consistent with your findings and diagnosis?

[Safeco Attorney:] Objection, Your Honor.   Again, he's commenting on an examination by a different doctor that he didn't do.

[Plaintiff's Attorney:] He's allowed to—

THE COURT:  I'm going to overrule the objection.   You can address that on cross examination.

[Safeco Attorney] Thank you, Your Honor.

THE COURT:  Even though, technically—well, you may proceed.   The objection is overruled.

[Plaintiff's Attorney:] Thank you.

DIRECT EXAMINATION BY [Plaintiff's Attorney:]

[Plaintiff's Attorney:] And if we—if we look at the 11–6–2009 report of Doctor Sheehan also marked plaintiff's exhibit 18, where it says flexure and extension of right knee or reproduced anterior and lateral knee pain, is that also consistent with your diagnosis?

[Staub:] Yes.

Trial Transcript, March 6, 2013, p. 3, line 25—p. 39 line 17.

The plaintiff then continued to ask Staub about Sheehan's report without objection, and dismissed Staub.   The record therefore demonstrates that the plaintiff was barred from reading reports without asking the witness any substantive questions, but was permitted to refer to them at length and to question the witness regarding them.   If the plaintiff intended to ask Staub further questions she could have.   Her failure to do so is in no way due to the actions of the Court.

After Staub's testimony, the plaintiff made a motion in limine to preclude the defendants' experts, on the basis that the court had forbidden Staub from testifying regarding medical records prepared by prior doctors:  “The Plaintiff in the above entitled matter Moves to Preclude the testimony of the Independent Medical Records (IMR) Review Physicians, Herbert Hermele, MD and Dennis Ogiela, MD. The testimony of the IMR physicians must be precluded as it is based on medical records of other physicians and the previous ruling of the Court, (Sommers, [sic] J., March 6, 2013) is that physicians are not allowed to testify based on other physicians' findings, opinions, reports, records, or notes.”   Plaintiff's motion to preclude, March 6, 2013.   The plaintiff elaborated at oral argument during the trial:  “It's been disclosed that they were going to testify with respect to the medical records and based on Your Honor's prior rulings with respect to my doctor, doctor—or not my doctor but Doctor Staub who treated the plaintiff your ruling was that doctors were—the doctor was not allowed to address opinions or findings that were in other physician's reports or records but only that doctor could testify on his treatment and his examination.”   Trial Transcript, March 6, 2013, p. 140, line 4–12.   The plaintiff argued that “I wanted him to reference Doctor Tortorello, I wanted his records and reports and go through that, I wanted him to go through the rest of Doctor Sheehan's records and reports and I wanted to go through the hospital record and Your Honor precluded me.”   Trial Transcript, March 6, 2013, p. 131 line 8–12.   The plaintiff had earlier questioned Staub about Tortorella's diagnosis, including his medical records, without objection.   Trial Transcript, March 6, 2013, p. 8–10.   The record clearly indicates that the court overruled Safeco's objection during Staub's testimony about Sheehan's records and permitted the plaintiff to proceed.   The plaintiff then asked a few more questions about the reports, and then chose to complete her questioning of Staub.   In addition, at no time did the plaintiff make an offer of proof.   The court made clear on the record that Staub had been permitted to testify fully, and denied the plaintiff's motion to preclude the defendants' experts from testifying.   Trial Transcript, March 7, 2013, p. 27 line 7—p. 29 line 6. Staub was therefore permitted to testify fully and the plaintiff's claim of error regarding his testimony is without merit.

C Failure to Permit Offer of Proof

The plaintiff also claims that the court should have permitted her to make an offer of proof after the court supposedly prevented Staub from testifying fully.   The plaintiff during the hearing on the present motion, and without having given opposing counsel any opportunity to evaluate these cases, claimed that several cases supported the proposition that denial of an offer of proof was harmful error.   In State v. Lussier, 7 Conn.App. 528, 530–32, 509 A.2d 81 (1986), the defendant failed to make an offer of proof, but argued that the trial court prevented him from doing so.   The Appellate Court clarified the purpose of an offer of proof:  “An offer of proof, properly presented, serves three purposes.   First, it should inform the court of the legal theory under which the offered evidence is admissible.   Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility.   Third, it thereby creates a record adequate for appellate review.”  (Internal quotation marks omitted.)  Id., 531.   The Court then found no evidence that the trial court prevented the defendant from making an offer of proof and upheld the trial court's ruling, stating that “[w]ithout an adequate record to review the ruling of the trial court, this court must assume that the trial court acted properly.”  (Internal quotation marks omitted.)   Id., 532.

In State v. Zoravali, 34 Conn.App. 428, 433–34, 641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994), the Appellate Court stated that the trial court's denial of the defendant's request to make an offer of proof was improper, but a harmless error because it was not of constitutional significance and the defendant could not demonstrate that it was more probable than not that this error would affect the result.   The Supreme Court stated in Burns v. Hanson, 249 Conn. 809, 824, 734 A.2d 964 (1999), that “[t]he absence of an offer of proof may create a gap in the record that would invite inappropriate speculation on appeal about the possible substance of the excluded testimony ․ We are not persuaded that an offer of proof was required in this case, because there was no such gap in the plaintiff's case.   It is clear from the record what the plaintiff's answer would have been.”  (Citations omitted.)   See also Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 775 (1971) (Court remanded for error on other grounds, but stated:  “No offer of proof appears in the record.   Without knowing the purpose of the offer or the answer that might be forthcoming we are unable to rule on this assignment of error”).

Cases other than those provided by the plaintiff have likewise held that denial of an offer of proof may be harmless error.   In Filippelli v. Saint Mary's Hospital, 141 Conn.App. 594, 624, 61 A.3d 1198, cert. granted, 308 Conn. 947 (2013), the Appellate Court stated that “although the court improperly failed to permit the plaintiff's counsel to make an offer of proof, the court permitted the plaintiff's counsel to argue extensively, on more than one occasion, the legal basis on which she wanted to present evidence ․ Our review of the transcript discloses a record adequate for review of the plaintiff's claim on appeal.   A trial court is granted deference to manage trial proceedings, as it is in a better position to determine the effect a particular procedure will have on all parties ․ [T]he court was fully aware, as are we, of the legal theory counsel was advocating.   The record is adequate for our review, and there is no harm to the plaintiff.”  (Internal quotation marks omitted.)

The court allowed Staub to testify fully regarding the contents of Sheehan's report.   It also permitted the plaintiff's attorney to read from the report and ask if Staub agreed.   There was no apparent reason for an offer of proof.   Moreover, the plaintiff bears the burden of requesting an offer of proof, which he failed to do.   Finally, an offer of proof was unnecessary because the medical report was in evidence and provides a record of exactly what Staub would have said had the plaintiff been permitted to continue asking him what it said.   In addition, the questions by the plaintiff which incorporated the Sheehan report undoubtedly contained the same information the plaintiff wanted Staub to read.   The plaintiff has failed to state any ground for granting a new trial on this claim of error.

IV CLAIM OF ERROR 4:  FAILURE TO CHARGE ON CAUSE IN FACT

The plaintiff also claims that the lack of a charge on cause in fact is an error requiring reversal of the jury's verdict.   She provided no support for this proposition in her memorandum of law, but did cite one case during the hearing, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 603, 662 A.2d 753 (1995).

“The test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law ․ Thus, we must determine whether the charge as a whole presents the case to the jury so that no injustice will be done ․ [The][j]ury instructions need not be exhaustive, perfect, or technically accurate ․ Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict ․ In determining whether the trial court's instructions meet this standard, we review the jury charge in the context of the factual issues raised [in each case].”  (Citations omitted;  internal quotation marks omitted.)  Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 786, 734 A.2d 112 (1999).  “A party may preserve for appeal a claim that a jury instruction was improper either by submitting a written request to charge or by taking an exception to the charge as given.”  Pestey v. Cushman, 259 Conn. 345, 372–73, 788 A.2d 496 (2002).

In Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 607, the court charged on both proximate cause and cause in fact in its initial charge, but failed to include cause in fact in a supplementary charge requested by the jury.   The defendant raised the issue on appeal.   The court stated that jury charges are to be read as a whole, that proximate cause is a narrower subset of cause in fact, and that the court had earlier charged the jury with proximate cause.   It then stated that the charge was sufficient.   It also stated that “[i]n most instances, and when a party does not specifically request an independent instruction on cause in fact, an instruction on proximate cause alone may be sufficient to guide the jury on the meaning of legal causation.   The Restatement (Second) of Torts takes this approach.   Rather than defining legal cause as a combination of cause in fact and proximate cause, § 431 of the Restatement provides that a person's ‘negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm ․’ “ Id., 607 n.8. “Philosophically, cause in fact is limitless;  but for the creation of this world, no crime or injury would ever have occurred ․ Lines must be drawn determining how far down the causal continuum individuals will be held liable for the consequences of their actions ․ This line is labeled ‘proximate cause.’  “ (Citations omitted;  internal quotation marks omitted.)  Abrahams v. Young & Rubicam, Inc. 240 Conn. 300, 306–07, 692 A.2d 709 (1997).

In the present case, the court only charged on proximate cause.   The plaintiff did not initially request a charge on cause in fact, but now claims that she objected to the charge.   After the court charged the jury the plaintiff made several objections to the charge.   She first objected to the charge referring to “the proximate cause” rather than “a proximate cause.”   After that the following exchange occurred, which upon reflection and after the plaintiff's motion for a new trial the court believes was an attempt to raise the cause in fact issue:

THE COURT:  What is your next point?

[Plaintiff's attorney:] So that's—next as to—as to causation, proximate cause but not proximate cause, in fact, was charged.

And finally, Your Honor failed to charge in my request with respect to failure to apply brakes in time to avoid the collision which is a common law form of negligence.

THE COURT:  Well, I didn't have a request from the plaintiff.

[Plaintiff's attorney:]:  It's in the pleadings.

THE COURT:  Is there anything else?

[Plaintiff's attorney:]:  No, your honor.”

Trial Transcript, p. 13, line 5–17.

The issue of causation was not discussed further.   The plaintiff did not elaborate on the need for a charge on cause in fact, provide a clearer statement that she was objecting to the lack of a charge on cause in fact, or provide a requested instruction on cause in fact.   The court then brought in the jury and supplemented the charge by noting the two places where the charge said “the” rather than “a” and informing the jury that it should read “a” and by adding an instruction regarding failure to apply brakes.   The plaintiff made no further comments on the issue of cause in fact despite the court clearly addressing the other issues of which the plaintiff complained.

The record reveals that the plaintiff did not request an instruction on cause in fact, nor did she clearly object to the lack of one.   If she did object as she now claims, her objection was indecipherable.   The court was perfectly willing to amend the charge, but it was unaware that the plaintiff had objected that an additional charge was necessary due to the plaintiff's incoherence.   The plaintiff therefore did not object to the charge.

Moreover, the lack of a charge on cause in fact was highly unlikely to affect the jury's determination of the issues in this case because proximate cause is more limited than cause in fact and the jury must find both in order to find for the plaintiff.   Having found the more limited proximate cause, they would have found the broader cause in fact.   By the same token, having not found proximate cause for the knee injury, they still would have found against the plaintiff even if they found that the accident was a cause in fact of the knee injury.

CONCLUSION

The court has reviewed the record and made its best attempt to understand and apply the bases for the plaintiff's claims to set aside the verdict.   Based on the above review and the authority relied upon herein, the court denies the motion to set aside the verdict because none of the claims of error submitted by the plaintiff has merit.   In the event error were to be found, such error would have been harmless because the jury found for the plaintiff regarding liability and none of the purported errors go to the jury's decision not to award damages for the claimed injuries to the plaintiff's knee.

SOMMER, J.

Sommer, Mary E., J.