Amy Champeau, Administrator of the Estate of Brian Haskell v. Mark Blitzer, M.D. et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE THE VERDICT (# 244) MOTION IN ARREST OF JUDGMENT FOR EXTRINSIC CAUSES (# 245) MOTION IN ARREST OF JUDGMENT FOR CAUSES APPARENT ON THE RECORD (# 246)

INTRODUCTION

Presently before the court are the plaintiff Amy Champeau's motions to set aside the verdict, arrest judgment for extrinsic causes, and arrest judgment for causes apparent on the record.   These motions follow a jury trial in which Champeau sought to prove that the defendants, Mark Blitzer, M.D. and Arrhythmia Center of Connecticut, P.C.,¹ negligently managed a heart condition of the plaintiff's decedent, Brian Haskell, and thereby caused his death.   Champeau commenced suit as the administrator of Haskell's estate on June 15, 2009,² and on July 16, 2013, a jury returned a verdict in favor of the defendants, finding that Champeau had failed to prove by a fair preponderance of the evidence that the defendants' negligence had proximately caused Haskell's death.   Champeau now moves by way of multiple postverdict motions to set this verdict aside and arrest any judgment in accordance therewith, on the grounds that it is against the weight of the evidence and the result of several errors committed by the court during the trial.

For the reasons set forth subsequently in this opinion, Champeau's motions are denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The following facts are alleged in Champeau's complaint.   In April of 2007, Haskell came under the care of Blitzer—a physician who specialized in the treatment of complex cardiac conditions—after experiencing dizziness and an abnormal heart beat.   Following diagnostic testing, Blitzer determined that Haskell was likely experiencing one of two possible arrhythmias.   The first, known as catecholaminergic polymorphic ventricular tachycardia (CPVT), is caused by physical exertion and stress, and carries with it a high potential for sudden death if left untreated.   The second, known as left posterior fascicular ventricular tachycardia, presents with a low risk of death and is not triggered by physical exertion or stress.

Based on his findings and conclusions, Blitzer recommended that Haskell undergo implantation of an automated internal cardiac defibrillator and begin treatment with a class of medications known as beta blockers.   The defibrillator was implanted on April 19, 2007, and Haskell began taking the beta blocker Toprol shortly thereafter.   At the time of his discharge from the hospital, Haskell was provided with standard post-discharge instructions, which included a warning that he should not engage in vigorous activities for six to eight weeks.   Aside from these instructions, Haskell did not receive any guidance from Blitzer regarding the safety of engaging in physical activity.

Between late April and June of 2007, Haskell experienced several episodes in which his defibrillator activated and delivered an electric shock to him.   Two of these episodes resulted in him being treated at local hospitals.   During one of these hospital stays, Blitzer approved the discontinuation of Haskell's Toprol.   In its place, Haskell was prescribed Sotalol, which is not a beta blocker.

On June 26, 2007, Haskell was found dead in his home by his treadmill.   Data stored in his defibrillator revealed that he had experienced a ventricular arrhythmia the prior night and that despite his defibrillator activating six times, he never regained a normal heart rhythm.

At trial, Champeau sought to prove that Blitzer and the Arrhythmia Center were negligent in, inter alia, failing to include the diagnosis of CPVT in the decedent's differential diagnosis during his admission to the Hospital of St. Raphael in April 2007, failing to advise Haskell that exercise could trigger his arrhythmia and failing to reinstitute his Toprol regimen after it was discontinued.   Heather Bloom, a physician and cardiologist, testified substantially in support of Champeau's theory of negligence.   Peter Zimetbaum, also a physician and cardiologist, testified on behalf of the defendants that Blitzer's treatment was clinically appropriate.   At the conclusion of the trial, the jury returned a verdict in favor of the defendants, finding by interrogatory that they had breached the standard of care in one or more of the ways alleged in Champeau's complaint, but that Champeau had failed to prove by a preponderance of the evidence that this breach had proximately caused Haskell's death.   Three days after the jury rendered its verdict, on July 19, 2013, Champeau filed the instant motions to set it aside, arrest judgment for extrinsic causes, and arrest judgment for causes apparent on the record.   Her memorandum of law in support of these motions followed on August 22, 2013, and in it, Champeau argues that:  (1) the court improperly charged the jury on proximate cause;  (2) the court submitted a defective interrogatory to the jury;  (3) the court improperly constrained the cross examination of the defendants' witnesses;  and (4) the verdict is against the weight of the evidence.

The defendants filed objections to Champeau's motions on July 23, 2013, and August 28, 2013.   Champeau filed a reply to the defendants' objections on September 5, 2013.   The matter was heard at short calendar on September 9, 2013.

DISCUSSION

ILEGAL STANDARDS OF REVIEWMotion to Set Aside a Verdict

“[A trial court may] 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.”  (Internal quotation marks omitted.)  Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 276, 828 A.2d 64 (2003).  “The setting aside of a verdict because of an error of the trial court should be exercised with great caution and never done unless the reviewing court is satisfied entirely that the error is unmistakable and unquestionably must have been harmful.”  Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn.App. 401, 416, 857 A.2d 936 (2004).  “A jury verdict should not be disturbed unless it is against [the weight of the] evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption or partiality ․ [T]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.”   (Internal quotation marks omitted.)  Kervick v. Silver Hill Hospital, 309 Conn. 688, 717, 72 A.3d 1044 (2013).

Motion in Arrest of Judgment for Extrinsic Causes 3

“The motion in arrest of judgment for extrinsic causes is used for juror misconduct.”   W. Horton & K. Knox, 1 Connecticut Practice Series:  Superior Court Civil Rules (2012 Ed) § 16–35.  “[T]he burden is on the moving party in a civil proceeding to establish that juror misconduct denied him a fair trial ․ That burden requires the moving party to demonstrate that the juror misconduct complained of resulted in probable prejudice to the moving party ․ In sum, the test is whether the misbehavior is such to make it probable that the juror's mind was influenced by it so as to render him or her an unfair and prejudicial juror.”  (Internal quotation marks omitted.)  Sawicki v. New Britain General Hospital, 302 Conn. 514, 522, 29 A.3d 453 (2011).

“[A] trial judge is generally in the best position to evaluate the critical question of whether the [misconduct] ․ has prejudiced [the moving party] ․ [I]n such an inquiry, which is essentially factual, the trial court that conducts it is in the best position to assess the testimony of those on the jury panel, including [the] impact [of the misconduct] on the fairness of the trial, and its conclusion is entitled to substantial weight ․ In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.”  (Citations omitted;  internal quotation marks omitted.)  Id., 521.

Motion in Arrest of Judgment for Causes Apparent on the Record

“The motion in arrest of judgment for causes apparent on the record is used for an insufficient complaint.”   1 W. Horton & K. Knox, supra, § 16–35.  “This motion also applies to a defective verdict.”  Id. “A general verdict directly finds or negates all the facts in issue in a general form.   A special verdict is where the jury finds the facts particularly, and then submits to the court the questions of law arising upon them.   If, in either case, the jury return[s] a verdict varying materially from the issue, either omitting to find all the facts embraced in it, or, disregarding the issue, find other and different facts not in the issue, the verdict will be insufficient, and judgment for such cause will be arrested.”  Day v. Webb, 28 Conn. 140, 144 (1859).

II

JURY CHARGE

Champeau first argues that the court erred in instructing the jury on the doctrine of proximate cause.   She contends that because the court's instructions on two components of proximate cause—the meaning of “substantial factor” and the doctrine of multiple causes—did not comport with the Civil Jury Instruction Committee's model jury instructions,⁴ the court's instructions were erroneous and likely to mislead the jury.   Accordingly, she requests that the court set aside the verdict.

The defendants argue in response that the court's instructions accurately set forth the law on proximate cause and that the jury is presumed to have followed those instructions.   Accordingly, the defendants contend that the court should decline to set aside the verdict.

Before addressing the parties' arguments, the court must first address whether Champeau has properly preserved her objection to the court's charge.   Practice Book § 16–20 provides that “[a]n appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered.   Counsel taking the exception shall state distinctly the matter objected to and the ground of objection.   The exception shall be taken out of the hearing of the jury.”   Although this provision applies to claims of instructional error raised before an appellate court, this court can discern no reasonable basis why the rationale underlying the rule should not apply to a claim of instructional error raised before a trial court by way of a postverdict motion.   Accordingly, this court finds Practice Book § 16–20 instructive in evaluating Champeau's claim of instructional error.

In the present case, Champeau initially complied with Practice Book § 16–20 by filing a request to charge on proximate cause.   Nevertheless, on July 15, 2013, at the conclusion of the court's charge to the jury, a copy of which this court provided Champeau's counsel, Attorney Charles Douthat, the court outside the presence of the jury specifically inquired of him whether he was satisfied with it.   To this inquiry, Attorney Douthat responded:  “I have no exceptions to the charge, your honor.”   Trial Record, July 15, 2013, p.39. By representing to the court that he took no exception to its charge, Champeau's counsel led the court to believe that the matter was settled and did not require further consideration, his prior request to charge notwithstanding.   Had Attorney Douthat indicated the contrary—that he found the court's charge to the jury inadequate—the court could have considered whether to recall the jury and provide further clarifying instructions.   Attorney Douthat's response led the court to believe, however, that further consideration of the change was unnecessary, and so the court did not address the matter further.   For this reason, the court deems his claim of instructional error abandoned, and declines to consider it as a basis for setting aside the jury's verdict.   Appellate court authority, discussed in the following paragraph, supports this outcome.

In Stuart v. Stuttig, 63 Conn.App. 222, 227, 772 A.2d 778 (2001), our Appellate Court declined to review a claim of instructional error under circumstances similar to those in the present case.   The defendant in Stuart had initially filed a request to charge the jury on the issue of apportionment, but later represented to the court that she did not consider apportionment to be an issue in the case.  Id. The Appellate Court concluded that this representation constituted abandonment of the prior request to charge:  “Before the trial began, the defendant provided a written request to charge in which she addressed the issue of apportionment.   The court declined to issue the charge as requested.   Prior to the charge, however, the defendant's counsel stated, ‘Your Honor, there is no charge on apportionment.   The jury is not to consider that.   That is not an issue.’   By abandoning her claim, the defendant, in essence, consented to the jury instruction as given.  ‘When the defendant consented to the instruction, [she] waived [her] right to challenge it later on appeal.’  State v. Ruffin, 48 Conn.App. 504, 510, 710 A.2d 1381, cert. denied, 245 Conn. 910, 718 A.2d 18 (1998).   Accordingly, we decline to review the defendant's claim regarding the trial court's refusal to instruct the jury on the issue of apportionment.”  Id.

The facts in the present case are sufficiently analogous to those in Stuart to persuade this court that Champeau has abandoned her claim of instructional error.   As previously noted, although Attorney Douthat could have responded to the court's inquiry by drawing the court's attention to his prior request to charge or by stating on the record that he considered the court's charge to be deficient, he instead stated unequivocally that he had no exceptions to the charge.   In so doing, he conveyed to the court that he found the charge adequate and that he consented to the court's charge as given to the jury.   He cannot now, after receiving an unfavorable verdict, fall back on his prior request to charge as a basis for challenging the outcome of the case.   Were that kind of after-the-fact position shifting permitted, courts would be forced to discount or second guess the otherwise clear representations of the attorneys who appear before it.   Such an outcome would ultimately elevate form over substance and, consequently, fail to serve the interests of the parties or the court in ensuring an orderly and efficient trial.   For these reasons, the court concludes that Champeau's claim of instructional error was waived when her attorney stated that he consented to the court's charge, the court therefore declines to set aside the jury's verdict or arrest judgment for alleged instructional errors.

But even if the court were to conclude that Champeau had properly preserved her claim of instructional error, it would still deny her motions because the charge provided to the jury was adequate.   Champeau's arguments hinge largely on perceived faults in isolated portions of the court's charge and fail to consider the court's instructions in their entirety.   Moreover, her criticism of the court throughout her brief for declining to use the exact language set forth in the model jury instructions lacks any foundation in our procedural or substantive law.⁵  Because these arguments conflict considerably with the standards this court must apply in determining whether to disturb the jury's verdict, the court must deny Champeau's motions.

The standard for evaluating a claim of instructional error is well established:  “The trial court has wide discretion in charging the jury.”   (Internal quotation marks omitted.)  Stratek Plastic Ltd. v. Ibar, 145 Conn.App. 414, 417, 74 A.3d 577 (2013).  “[A] charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts ․ [T]he 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 ․ As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ․ [an appellate court] will not view the instructions as improper ․ [An appellate court does] not critically dissect a jury instruction.”  (Internal quotation marks omitted.)   Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 238–39, 828 A.2d 64 (2003).   Moreover, “[a] court is under no duty at any time to charge in the exact language requested ․ Failure to charge precisely as proposed by a defendant is not error where the point is fairly covered in the charge ․ Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues.”  (Citations omitted.)  Tomczuk v. Alvarez, 184 Conn. 182, 190, 439 A.2d 935 (1981).

With this standard in mind, the court turns first to Champeau's argument that it failed to instruct the jury properly on the principles of “substantial factor” and multiple causes.

B

Substantial Factor

The court's charge on the issue of “substantial factor” read as follows:  “Negligence is a proximate cause if it was a substantial factor in bringing about or actually causing injury, in this case, the death of Brian Haskell.   In order to be a substantial factor, the negligence must have continued down to the point of injury or at least down to the setting in motion of the final act of injurious force which immediately preceded and produced the death.   In other words, if the negligence had such an effect in producing the death that reasonable persons would regard it as being the cause of the death, then it is a proximate cause.”

Champeau contends that this instruction was erroneous for the following reasons:  (1) the court omitted the word “material” from its charge;  (2) the charge utilized language that was confusing, legally inaccurate, and based on unknown sources of law;  (3) the court omitted language on trivial or inconsequential causes;  and (4) the court improperly instructed the jury on superseding and intervening causes.   Each of these objections will be discussed in turn.

Champeau first claims that the court's instruction was incorrect because it omitted the word “material” from the charged language, which she contends was “critical to the legal meaning of substantial factor and the jury's understanding of it ․” This claim is, however, somewhat conclusory, and Champeau declines to explain precisely why that specific word was critical to the jury's understanding of the meaning of “substantial factor.”   Because it is not immediately clear to the court why it would carry the importance that Champeau claims it does, and in the absence of any meaningful argument from her on the matter, the court is disinclined to attach the weight to the word “material” that Champeau contends it should.

Champeau next takes issue with the portion of the court's charge that reads as follows:  “In order to be a substantial factor, the negligence must have continued down to the point of injury or at least down to the setting in motion of the final act of injurious force which immediately preceded and produced the death.”   Champeau contends that this language suggests that Blitzer's negligence must have continued down to the moment of Haskell's death, which she argues is not an accepted principle of law.

This portion of the court's charge derives from our Supreme Court's explanation of “substantial factor,” as set forth in Birnie v. Electric Boat Corp., 288 Conn. 392, 412, 953 A.2d 28 (2008):  “To be [a substantial factor, a cause] must have continued down to the moment of the damage, or, at least, down to the setting in motion of the final active injurious force which immediately produced (or preceded) the damage.”  (Internal quotation marks omitted.)

Champeau takes issue with the court's use of the word “negligence” in conveying this principle, but in doing so, reads the term hypertechnically and fails to take into account the remainder of the court's charge.   In the next sentence, the court provides additional context by charging that “if the negligence had such an effect in producing the death that reasonable persons would regard it as being the cause of the death, then it is a proximate cause.”  (Emphasis added.)   The court also referred to proximate cause as “a direct cause” and “an act or failure to act.”   Construing the court's charge as a whole, and not piecemeal, it is evident that the jury was to consider whether the causative and ongoing effect of any negligent act or omission led to either Haskell's death or to the “final active injurious force which immediately preceded and produced” his death, and not whether the defendants were continuously negligent throughout the events leading to Haskell's death.   This instruction comports with the principle articulated in Birnie v. Electric Boat Corp., supra, 288 Conn. 412, and, consequently, is not a proper basis for setting aside the jury's verdict.

Champeau next challenges the portion of the court's charge that reads:  “In other words, if the negligence had such an effect in producing the death that reasonable persons would regard it as being the cause of the death, then it is a proximate cause.”   She contends that this principle of substantial factor is “confusing,” “improper,” inaccurate, and that its source is unknown.   The court finds these contentions unavailing.

The language challenged by Champeau derives from the commentary to § 431 of the Restatement (Second) of Torts, which provides that “[t]he word ‘substantial’ is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause ․” 2 Restatement (Second), Torts § 431, comment (a) (1965).   Champeau claims that the source of this principle is unknown, but the court does not consider the Restatement (Second) of Torts to be an unknown source of law.   Moreover, this court cannot agree with Champeau that the principle articulated in the Restatement and set forth in the court's charge is “confusing,” “improper,” or inaccurate.   Indeed, numerous courts—both within this jurisdiction and outside of it—have relied upon the language in the commentary to § 431 in crafting their own charges on proximate cause and developing their own law on negligence.   See, e.g., Wood v. Club, LLC, 134 Conn.App. 768, 781 n.12, 41 A.3d 684 (2012) (recollecting trial court's charge on proximate cause, which stated in part that “if the defendant's act or omission had such an effect in producing the injury that reasonable persons would regard it as being a cause of the injury, then the act or omission is a proximate cause” [internal quotation marks omitted] ), appeal dismissed, 310 Conn. 373, 77 A.3d 747 (2013);  Kregos v. Stone, 88 Conn.App. 459, 465 n.2, 872 A.2d 901 (same), cert. denied, 275 Conn. 901, 882 A.2d 672 (2005);  see also Mayes v. Bryan, 44 Cal.Rptr.3d 14, 27, 139 Cal.App.4th 1075 (2006) (“[t]he Restatement formula uses the term substantial factor to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause” [internal quotation marks omitted] );  Moloney v. Becker, 398 S.W.3d 459, 462 (Ky.App.2013) (“[t]he word ‘substantial’ is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause”);  Verdicchio v. Ricca, 179 N.J. 1, 23–25, 843 A.2d 1042 (2004) ( “[c]onduct is a substantial factor if it would lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense”).

Thus, the court concludes that the language challenged by Champeau is not confusing, improper, or inaccurate, and that its sources—the Restatement (Second) of Torts and the numerous decisions cited in the preceding paragraph—are well known.   Accordingly, the court declines to grant Champeau's motions on the basis that the court's instruction on this principle of law was erroneous.

Champeau next finds fault with the court's decision not to instruct the jury with the following language:  “By this definition, negligence which makes only a remote, a trivial or an inconsequential contribution to the production of an injury is not a substantial factor in bringing about the injury, and thus is not a proximate cause of the injury.”   She contends that this language is “critical to the jury's understanding of [the] substantial factor standard because it informs the jury that while there may be more than one factor in causing an injury, only those factors [that] are not remote or trivial will be considered substantial factors and proximate causes.”

Assuming, arguendo, that omitting this language was erroneous, it is unclear how this error harmed Champeau.   Our Supreme Court has recognized that “[i]t is axiomatic ․ that not every error is harmful”;  (internal quotation marks omitted.)  Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 243;  and that “[a]n instructional impropriety is harmful if it is likely that it affected the verdict.”  (Internal quotation marks omitted.)  Id. In the present case, the omission of the language offered by Champeau was far more likely to have benefitted her than harmed her.   By omitting that language, the court left the jury with a broader concept of proximate cause to apply than the language proffered by Champeau would otherwise have allowed.   Because a more circumscribed concept of proximate cause inures to the benefit of the defendants—not Champeau—the court's decision not to charge the jury with this language could only have benefitted Champeau and, thus, does not necessitate setting aside the verdict.

Champeau's final argument is that the court improperly instructed the jury on superseding and intervening causes.   Specifically, Champeau challenges that portion of the court's charge that read:  “Proximate cause is a direct cause.   It is an act or failure to act following in its natural sequence without the intervention of any other superseding cause and where the sequence of events is unbroken by an intervening cause.”   Champeau argues that this language was confusing because it failed to define “superseding” and “intervening” causes, and because it referred to a doctrine that the Supreme Court largely abandoned in Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d 258 (2003).⁶

The challenged language appears one time in one sentence of a charge that spans over one and a half pages.   As previously noted, “a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.”  (Emphasis added;  internal quotation marks omitted.)  Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 238–39.   Taking into account the remainder of the charge, the court does not believe that the jury was led astray by the mere mention of the words “superseding” or “intervening.”

In addition to the sentence challenged by Champeau, the court also instructed that “there may be more than one proximate cause of an injury or damage, in this case, the death.   Many factors may operate at the same time, either independently or together, to cause an injury.”   This instruction properly advised the jury that the defendants' negligence would remain a proximate cause even if another cause contributed to Haskell's injuries, and that other causes do not necessarily supersede a cause found by the jury.   It also contrasts significantly with the instruction our Supreme Court concluded was erroneous in Barry, which discussed the doctrine of superseding cause at length and, contrary to the court's charge in the present case, indicated that one party could shift liability away from itself by showing that another party was the dominant cause of the plaintiff's injuries.   See Barry v. Quality Steel Products, Inc., supra, 263 Conn. 428–29 n.7.

Moreover, the court finds instructive our Appellate Court's decision in Sullivan v. Norwalk, 28 Conn.App. 449, 612 A.2d 114 (1992).   The relevant issue in Sullivan was whether the trial court had improperly instructed the jury on causation under our highway defect statute, General Statutes § 13a–149.⁷  The defendant in Sullivan argued that it was improper for the trial court to have instructed the jury on causation by discussing the substantial factor test because our Supreme Court had determined that a defendant is liable under § 13a–149 only if a highway defect is the sole proximate cause of a plaintiff's injuries.   See Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).   The Appellate Court agreed, finding the trial court's instruction “troubling” because “it is settled that the substantial factor test is not the proper method of analysis for establishing causation under [§ 13a–149] ․” Sullivan v. Norwalk, supra, 457.   Nevertheless, the Appellate Court concluded that “the court's instructions, read in their entirety, were appropriately tailored to the plaintiff's cause of action under 13a–149.”  (Emphasis added.)  Id. “Despite technical and isolated inaccuracies, the court's charge to the jury accurately and adequately described the legal requirements of the plaintiff's cause of action.”  Id.

In the present case, the language challenged by Champeau was, at most, a technical and isolated inaccuracy, and one that was cured by the remaining portion of the charge.   For this reason, the court will not set aside the jury's verdict.

C

Multiple Causes

Champeau next argues that the court's failure to charge the jury with the language of model jury instruction 3.1–5, entitled “Proximate Cause—Multiple Causes,” was erroneous.   This instruction reads, in relevant part:  “Under the definitions I have given you, negligent conduct can be a proximate cause of an injury if it is not the only cause, or even the most significant cause of the injury, provided it contributes materially to the production of the injury, and thus is a substantial factor in bringing it about.   Therefore, when a defendant's negligence combines together with one or more other causes to produce an injury, such negligence is a proximate cause of the injury if its contribution to the production of the injury, in comparison to all other causes, is material or substantial.   When, however, some other (cause/causes) contribute[s] so powerfully to the production of an injury as to make the defendant's negligent contribution to the injury merely trivial or inconsequential, the defendant's negligence must be rejected as a proximate cause of the injury, for it has not been a substantial factor in bringing the injury about.”

As previously noted, “[a] court is under no duty at any time to charge in the exact language requested ․ Failure to charge precisely as proposed by a defendant is not error where the point is fairly covered in the charge ․ Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues.”  (Citations omitted.)  Tomczuk v. Alvarez, supra, 184 Conn. 190.   Consequently, “the question under consideration by this court ․ is not whether [it] should have given the proposed charge to the jury, but whether the instructions that were given were correct in law, adapted to the issues, sufficient for the guidance of the jury and whether it is reasonably probable that the jury was misled.”   (Internal quotation marks omitted.)  Barrett v. Hebrew Home & Hospital, Inc., 73 Conn.App. 327, 333, 807 A.2d 1075 (2002).

In the present case, the court charged, in relevant part:  “A proximate cause need not always be the nearest cause either in time or space.   In addition, there may be more than one proximate cause of an injury or damage, in this case, the death.   Many factors may operate at the same time, either independently or together, to cause an injury.”   This instruction adequately conveyed the principle that a defendant's negligence can remain a proximate cause of a plaintiff's injuries even where other causes concur to produce them.   The court need not have charged as Champeau requested since the relevant points found in that language were fairly covered by the court's charge.

Champeau's argument that the court's charge was deficient because it failed to adequately instruct the jury on how to differentiate between remote or trivial causes and substantial causes is equally without merit.   The court charged the jury that “in order to recover damages from the defendant for the death, the plaintiff must show by a preponderance of the evidence that such death would not have occurred without the proven negligent conduct of the defendant” and that “if the negligence had such an effect in producing the death that reasonable persons would regard it as being the cause of the death, then it is a proximate cause.”   It is unlikely that a jury properly following these instructions—as the jury in the present case is presumed to have—would have factored a remote or trivial cause into its determination.

Thus, all of Champeau's objections to the court's instructions on proximate cause are grounded in a hypertechnical reading of isolated portions of the charge.   These objections do not take into account that “a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.”  (Internal quotation marks omitted.)  Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 238–39.   For this reason, the court does not agree that its charge on proximate cause was erroneous or that it warrants setting aside the jury's verdict.

III

JURY INTERROGATORY

Champeau next challenges the second question posed on the jury interrogatory form, which asked:  “Did the plaintiff prove by a fair preponderance of the evidence that the Defendants' breach of the standard of care was the proximate cause of Brian Haskell's death?”   She argues that this interrogatory was defective because the court used the definite article “the,” as in, “the proximate cause,” instead of the indefinite article “a,” as in, “a proximate cause.”   She contends that this reference likely led the jury to believe that only one cause could be responsible for Haskell's death, and that this misunderstanding prejudiced her in the form of a defendants' verdict.   The defendants respond that the trial court's charge properly instructed the jury that there could be multiple causes, and that the jury is presumed to have followed the court's instructions.   The court agrees with the defendants.

To prevail on her motions, Champeau must do more than merely show that it would have been more correct for the court to have used “a” in place of “the” in its interrogatory to the jury.   Rather, she must show that the court's interrogatory was not only improper in some way, but that this alleged impropriety likely influenced the outcome of the trial:  “The trial court has broad discretion to regulate the manner in which interrogatories are presented to the jury, as well as their form and content ․ Moreover, [i]n order to establish reversible error, the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.”  (Citations omitted;  internal quotation marks omitted.)  Earlington v. Anastasi, 293 Conn. 194, 200, 976 A.2d 689 (2009).  “In a civil case, an error is harmful if it likely affected the outcome at trial.”  (Internal quotation marks omitted.)  Id., 201.

In the present case, it is unlikely that the court's use of the definite article “the” in the jury interrogatory affected the outcome of the trial because the court repeatedly used the indefinite article “a” in charging the jury and expressly instructed it that there could be more than one cause of Haskell's death.  “[W]hen a jury has received an instruction, it is presumed to have followed such instruction ‘unless the contrary appears.’  “ Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 22, 60 A.3d 222 (2013).

Champeau attempts to overcome this presumption by introducing the affidavit of Kelly McLaughlin, the former foreman of the jury.   But as discussed more fully in the following paragraphs, consideration of McLaughlin's affidavit is expressly foreclosed by our rules of practice.   And when the affidavit is removed from consideration, the record is devoid of any evidence that would indicate the jury disregarded the court's clear instructions on proximate cause and instead relied on an inaccurate construction of an interrogatory.

Practice Book § 16–34 provides:  “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.”   In his affidavit, McLaughlin claims that the jury focused on the wording of the interrogatories provided by the court—as well as the evidence of the various potential causes of Haskell's death—during its deliberations.   This testimony falls squarely within the proscriptions of Practice Book § 16–34 and, thus, is outside the permissible scope of this court's inquiry:  “It is well established that ‘evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict’ is excludable in postverdict proceedings as immaterial ․ [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;  that he misunderstood the instructions of the court;  the statements of the witnesses or the pleadings in the case;  that he was unduly influenced by the statements or otherwise of his fellow jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror's breast ․ That rule has been aptly described as applying the parol evidence rule to a jury's verdict, so that their outward verdict as finally and formally made, and not their prior and private intentions, is taken as exclusively constituting the act ․ A jury verdict may not be impeached by an affidavit of a juror showing that he misunderstood the instructions of the court ․ That the verdict may have been the result of compromise, or a mistake on the part of the jury, is possible.   But verdicts cannot be upset by speculation or inquiry into such matters.”   (Citations omitted;  internal quotation marks omitted.)  State v. Gary, 273 Conn. 393, 415–16, 869 A.2d 1236 (2005).

Without McLaughlin's affidavit, there is no evidence that the jury disregarded the court's instructions.   And, as two cases from our Appellate Court demonstrate, the interrogatory itself, even if worded incorrectly, is not sufficiently erroneous to warrant setting aside the jury's verdict.

In Barksdale v. Harris, 30 Conn.App. 754, 757–58, 622 A.2d 597, cert. denied, 225 Conn. 927, 625 A.2d 825 (1993), our Appellate Court faced the question whether a trial court's repeated use of the phrase “the proximate cause” in its charge to the jury was sufficiently harmful to warrant setting aside the verdict.   The court noted that although the trial court had properly framed its interrogatory to the jury by referring to “a proximate cause,” ⁸ it still, “[w]ith rare exception ․ referred to ‘the proximate cause’ throughout the charge and the supplemental charge.”  (Internal quotation marks omitted.)  Id., 758.   This discrepancy, the court concluded, “signifie[d] more than a mere technicality because it recur[red] so frequently.   The difference could have had a deleterious effect on the jurors' ability to reach a proper verdict.   The jurors could have been misled into thinking that the defendants' negligence had to be the sole proximate cause of the plaintiff's injuries in order to find the defendant liable.”  Id. Accordingly, the court ordered a new trial.  Id.

The court's decision in Barksdale was later relied upon by the plaintiff in Phelps v. Lankes, 74 Conn.App. 597, 813 A.2d 100 (2003), who also challenged the trial court's reference to “the proximate cause” in its instructions to the jury.   This time, however, the court rejected the plaintiff's argument, distinguishing the error in Barksdale —which it concluded was harmful—from the error in Phelps, which it concluded was not:  “On the basis of our reasoning in Barksdale, it is apparent that the quoted portion of the instruction in the present case would be improper if it stood alone as the court's instruction on proximate cause.”  (Emphasis added.)  Id., 602.  “On two occasions following the improper instruction [however] the court instructed the jury that the plaintiff must prove that the named defendant's negligence was a substantial factor causing the plaintiff's injuries ․ Unlike the trial court in Barksdale, the court in this case did not repeatedly misinstruct the jury on the issue of proximate causation.   On the basis of the court's reiteration of the proper charge, we view the initial comment as a mere technicality ․ [that] could [not] have had a deleterious effect on the jurors' ability to reach a proper verdict ․ Despite the challenged instruction, the court's charge as a whole was not improper.”   (Citation omitted;  footnote omitted;  internal quotation marks omitted.)   Id.⁹

Although these two cases are distinguishable from the present case because they largely concern a court's charge to a jury and not its interrogatories, the court finds them instructive on the matter before it.   The Appellate Court's opinion in Barksdale indicates that an interrogatory alone should not determine whether a jury was misled to its verdict, but should be considered in conjunction with the charge provided by the court.   As previously discussed, the trial court in Barksdale properly referred to “a proximate cause” in its interrogatory to the jury, but repeatedly referred to “the proximate cause” in its charge.   The Appellate Court concluded that these reoccurring mistakes in the charge were sufficiently harmful to warrant a new a trial, the properly framed interrogatory notwithstanding.

In contrast to the charge in Barksdale, the court's charge in the present case correctly and repeatedly referred to “a proximate cause,” “a substantial factor,” and expressly instructed that “there may be more than one proximate cause of an injury.”   Moreover, the jury was permitted to take a written copy of the court's instructions into deliberations for reference purposes.   Weighed against the isolated reference to “the proximate cause” in the jury interrogatory, any mistake in the interrogatory was, like the error in Phelps, little more than a technicality, and one that could not have “had a deleterious effect on the jurors' ability to reach a proper verdict.”   (Internal quotation marks omitted.)  Phelps v. Lankes, 74 Conn.App. 597, 603, 813 A.2d 100 (2003).

IV

EVIDENTIARY RULINGS

Champeau next takes issue with the court's rulings sustaining several objections to Attorney Douthat's cross examination of Linda Borges, a defense witness.   Champeau argues that these rulings limited her impeachment of a “stealth” expert witness, and denied her a substantial legal right.   For the reasons that follow, the court does not agree with these claims and, again, declines to set aside the jury's verdict.

“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination.   Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion ․ Furthermore, [t]o establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial ․ In order to establish reversible error on an evidentiary impropriety, however, the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.”   (Internal quotation marks omitted.)  Kosiorek v. Smigelski, 138 Conn.App. 695, 715–16, 54 A.3d 564 (2012).

In support of her argument, Champeau cites to pages 80 through 91 of the trial transcript, wherein counsel for the defendants raised—and the court sustained—objections to several questions posed by Attorney Douthat.¹⁰  Notably, however, Champeau declines to cite to Attorney Douthat's colloquy with the court immediately following the cited portion of the transcript, during which the court explained its reasoning for its prior rulings and agreed, in its discretion, to allow Attorney Douthat to continue his cross examination of Borges with more freedom.   Specifically, the court stated:  “In an effort be fair to both sides, to not prejudice anyone, what I will do, Attorney Douthat, is I will allow some leeway with regard to your questioning of Miss Borges, but I do think that you need to focus very clearly so that the jury can understand that you are testing her credibility.   In other words, if there is something in the medical—in her medical records elsewhere or that she verbally said something, it's not in the records, you want to point that out, I think it should be clear in your questioning, but I will give you some leeway regarding, so you could proceed as you were.   I will give you some leeway in that regard, but I think that you need to focus on the credibility aspect, all right?” ¹¹

Thus, when all relevant portions of the transcript are considered, Champeau's argument fails for two reasons:  first, the court's evidentiary rulings were proper.   Attorney Douthat's questions, although claimed to be for the purpose of challenging the witness' credibility, strayed on several occasions into matters there were outside the scope of direct examination.   When this occurred, and the defendants objected, the court sustained those objections in accordance with § 6–8(a) of the Connecticut Code of Evidence.¹²  In so doing, the court explained to Attorney Douthat that he needed to make the relevance of his questions to the issue of Borges' credibility more clear, as it was not apparent to the court.

Second, even assuming, arguendo, that the court's rulings were erroneous, any harm caused by them was corrected when the court discussed Attorney Douthat's need to conduct a more focused cross examination with him and then permitted him to resume questioning Borges with the latitude he desired.   With rare exception, Attorney Douthat's questions following his exchange with the court were more focused on the credibility issue he sought to explore and, consequently, invited fewer objections from the defendants.

Accordingly, because the court's evidentiary rulings were neither improper nor harmful, Champeau's objections to the jury's verdict on those bases must fail.

V

WEIGHT OF THE EVIDENCE

Champeau's final argument is that the jury's verdict must be set aside because it is against the weight of the evidence.   Specifically, she contends that the jury's finding that the defendants breached the standard of care indicates that it found the plaintiff's expert, Dr. Bloom, more credible and persuasive than the defendant's experts, Dr. Zimetbaum and Dr. Blitzer.   Champeau further argues that because Dr. Bloom's testimony regarding causation was uncontroverted, the evidence weighs against the jury's verdict.

The defendants respond that there was ample evidence from which the jury could have found in their favor on the issue of proximate cause.   They argue that the jury could have found that Haskell's death was caused by several acts not connected with the defendants' negligence, such as Haskell's own noncompliance with his medication regimen, or his decision to continue exercising against his physician's orders.   Moreover, the defendants contend that it is impossible for the court to ascertain which claims of negligence were accepted and rejected by the jury, since the court utilized, with Champeau's consent, interrogatory forms that did not set forth each of Champeau's allegations of negligence.

“The law in this state is well settled regarding a motion to set aside a jury verdict ․ [A] trial court's decision ․ refusing to set aside a verdict ․ requires [it] to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony ․ The verdict will be set aside and judgment directed only if ․ the jury could not reasonably and legally have reached their conclusion ․ A jury verdict should not be disturbed unless it is against [the weight of the] evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption or partiality ․ [T]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.”   (Internal quotation marks omitted.)  Kervick v. Silver Hill Hospital, supra, 309 Conn. 717.

In the present case, both Champeau and the defendants presented expert witnesses who each testified on the matter of causation.   Although Champeau argues that Dr. Bloom was both credible and persuasive, “[i]t is not [a court's] position to dictate which witnesses the jury should credit ․ [T]he trier [is] free to accept or reject, in whole or in part, the testimony offered by either party ․ Further, it is not unreasonable for a jury to determine that a plaintiff has proved some elements of his or her cause of action without proving them all ․ and in such a situation a defendant's verdict is proper.”  (Citations omitted;  internal quotation marks omitted.)  Arnold v. Moriarty, 140 Conn.App. 872, 880, 60 A.3d 317 (2013).

Disturbing the jury's verdict would be proper if Dr. Bloom's testimony had been so credible and persuasive that a reasonable jury would have been obligated to regard it as conclusive.   Such testimony is exceptionally rare, however, and in the present case, it would not have been unreasonable for the jury to have credited the defendants' expert over Champeau's.   Moreover, it is of small consequence whether Dr. Bloom's testimony was uncontroverted, as Champeau claims it was, since “[t]he jury is under no obligation to credit the evidence proffered by any witnesses, including experts ․ even if that evidence is uncontroverted.”  (Internal quotation marks omitted.)  Farrell v. Bass, 90 Conn.App. 804, 815, 879 A.2d 516 (2005).   Similarly, the jury was not obligated to credit Dr. Bloom on the issue of causation simply because it might have credited her testimony on the standard of care.   See State v. Andersen, 132 Conn.App. 125, 143, 31 A.3d 385 (2011) (“[a] trier of fact ․ is equally free to reject part of the testimony of a witness even if other parts have been found credible” [internal quotation marks omitted] ), cert. denied, 305 Conn. 906,44 A.3d 182 (2012).   In sum, the jury was free to credit those parts of Dr. Bloom's testimony that it found credible, reject those parts that it did not, and it made little difference whether any of it was unrebutted by the defendants' expert.

Thus, the court need not assume that the jury's verdict reflects some incongruity with its application of the law or consideration of the evidence.   Instead, it is reasonable to conclude that the jury's verdict more properly reflects that “one party's expert simply deliver[ed] unpersuasive testimony that [wa]s not credited by the jury.”  D'Ascanio v. Toyota Industries Corp., 309 Conn. 663, 682, 72 A.3d 1019 (2013).   Accordingly, it would be an abuse of discretion for the court to set it aside.

Nevertheless, several arguments raised by Champeau and the defendants merit further discussion.   The first is Champeau's argument that Dr. Zimetbaum's testimony did not touch upon the issue of causation.   That contention is flatly contradicted by the record.   Dr. Zimetbaum specifically testified that Haskell's death was not caused by a change in his medication from Toprol to Sotalol, and that fatalities associated with Sotalol typically occur in a manner inconsistent with the manner in which Haskell died.   That testimony, if credited by the jury, would allow it to conclude that even if the defendants were negligent in allowing Haskell's medication regimen to be modified, that specific act of negligence was not a proximate cause of his death.   Consequently, at least one interpretation of the evidence permitted the jury to find in Champeau's favor on the issue of the standard of care while finding for the defendants on the issue of causation.

That conclusion brings the court to the defendants' argument that it is impossible, given how the interrogatories were framed, to determine the grounds upon which the jury based its verdict.   Essentially, the defendants' argument invokes the general verdict rule, which operates to uphold a verdict if any ground for it is proper and the interrogatories provided to the jury fail to elucidate the jury's basis for its decision.  “The general verdict rule provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party ․ In circumstances in which a party has requested interrogatories that fail to flesh out the basis of the jury's verdict, [our Appellate Court] has noted that the general verdict rule is still applicable because [i]t is not the mere submission of interrogatories that enables us to make that determination;  rather, it is the submission of properly framed interrogatories that discloses the grounds for the jury's decision ․ [I]n a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand;  only if every ground is improper does the verdict fall.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Beckenstein Enterprises–Prestige Park, LLC v. Keller, 115 Conn.App. 680, 685, 974 A.2d 764 (2009).

Here, the requirements of the rule appear to be met.   In her complaint, Champeau alleged multiple breaches of the standard of care by the defendants.   The jury interrogatories, however, did not set forth each of these allegations.   Instead, the interrogatories posed two straightforward questions:  (1) “Did the plaintiff prove by a fair preponderance of the evidence that the defendants, Dr. Mark Blitzer and The Arrhythmia Center of Connecticut breached the standard of care in one or more of the ways alleged in the plaintiff's complaint?”;   and (2) “Did the plaintiff prove by a fair preponderance of the evidence that the Defendants' breach of the standard of care was the proximate cause of Brian Haskell's death?”   Given the nonspecific nature of these questions, there is no way to know which of the alleged acts or omissions the jury considered to be a breach of the standard of care.¹³  Thus, the general verdict rule applies, and the verdict must stand if there is any proper basis for it.

As previously discussed, the jury could have found that the defendants breached the standard of care, as alleged in Champeau's complaint, by improperly permitting Haskell to be switched from Toprol to Sotalol.   But it could also have credited Dr. Zimetbaum's testimony that this breach of the standard of care did not proximately cause Haskell's death.   If the jury did reach these two conclusions, it would have been proper for it to have answered the first interrogatory in the affirmative and the second interrogatory in the negative, as it did in this case.   Accordingly, there is at least one proper ground on which the verdict could stand and, thus, the court must permit it to stand.

CONCLUSION

For the foregoing reasons, Champeau's motions to set aside the verdict, arrest judgment for extrinsic causes, and arrest judgment for causes apparent on the record are denied.

Wilson, J.

FOOTNOTES

FN1. Hereafter, the Arrhythmia Center of Connecticut, P.C., shall be referred to as “Arrhythmia Center” or “the center.”   Blitzer and the center shall be referred to collectively as “the defendants.”.  FN1. Hereafter, the Arrhythmia Center of Connecticut, P.C., shall be referred to as “Arrhythmia Center” or “the center.”   Blitzer and the center shall be referred to collectively as “the defendants.”

FN2. Champeau filed amended complaints on May 3, 2013, and July 12, 2013..  FN2. Champeau filed amended complaints on May 3, 2013, and July 12, 2013.

FN3. In the present case, although Champeau brings a motion in arrest of judgment for extrinsic causes, she advances no argument that she was ever actually prejudiced by juror misconduct..  FN3. In the present case, although Champeau brings a motion in arrest of judgment for extrinsic causes, she advances no argument that she was ever actually prejudiced by juror misconduct.

FN4. See Connecticut Civil Jury Instructions, available at http:// www.jud.ct.gov/JI/Civil/default.htm (last visited October 4, 2013)..  FN4. See Connecticut Civil Jury Instructions, available at http:// www.jud.ct.gov/JI/Civil/default.htm (last visited October 4, 2013).

FN5. In fact, the model instructions actually contain a cautionary note warning that they are merely a guide and not an authoritative source of law.   See Connecticut Civil Jury Instructions Home, available at http:// www.jud.ct.gov/JI/Civil/ (last visited October 10, 2013) (“This collection of Civil Jury Instructions is intended as a guide for judges and attorneys in constructing charges and requests to charge.   The use of these instructions is entirely discretionary and their publication by the Judicial Branch is not a guarantee of their legal sufficiency.”  [Emphasis added.] ).  FN5. In fact, the model instructions actually contain a cautionary note warning that they are merely a guide and not an authoritative source of law.   See Connecticut Civil Jury Instructions Home, available at http:// www.jud.ct.gov/JI/Civil/ (last visited October 10, 2013) (“This collection of Civil Jury Instructions is intended as a guide for judges and attorneys in constructing charges and requests to charge.   The use of these instructions is entirely discretionary and their publication by the Judicial Branch is not a guarantee of their legal sufficiency.”  [Emphasis added.] )

FN6. Champeau's objection to this portion of the court's charge is somewhat contradictory.   On the one hand, she objects to the court's instruction because it did not expound more thoroughly the meaning of “superseding” and “intervening” causes and, thus, was “confusing.”   On the other hand, she argues that the court should have refrained from referencing these doctrines at all.   The task of reconciling these inconsistent arguments could have been avoided had Champeau's counsel raised these objections when the court inquired of him whether he was satisfied with the court's proposed instructions.   But as discussed in part I of this opinion, he did not.   In any event, the court need not revisit that issue now.   For the reasons set forth subsequently in this opinion, neither of these objections warrant setting aside the jury's verdict..  FN6. Champeau's objection to this portion of the court's charge is somewhat contradictory.   On the one hand, she objects to the court's instruction because it did not expound more thoroughly the meaning of “superseding” and “intervening” causes and, thus, was “confusing.”   On the other hand, she argues that the court should have refrained from referencing these doctrines at all.   The task of reconciling these inconsistent arguments could have been avoided had Champeau's counsel raised these objections when the court inquired of him whether he was satisfied with the court's proposed instructions.   But as discussed in part I of this opinion, he did not.   In any event, the court need not revisit that issue now.   For the reasons set forth subsequently in this opinion, neither of these objections warrant setting aside the jury's verdict.

FN7. General Statutes § 13a–149 provides:  “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair.   No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury.   No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation.   If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor.   No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”.  FN7. General Statutes § 13a–149 provides:  “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair.   No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury.   No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation.   If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor.   No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

FN8. See id., 757 (“The second interrogatory submitted to the jury read:  ‘Was the negligence of [the defendant's] employee ․ a proximate cause of the plaintiff's injuries?’ ”)..  FN8. See id., 757 (“The second interrogatory submitted to the jury read:  ‘Was the negligence of [the defendant's] employee ․ a proximate cause of the plaintiff's injuries?’ ”).

FN9. “Specifically, the [trial] court instructed the jury that ‘[e]ven though the question of liability is not before you, the plaintiff must prove to you by a fair preponderance of the evidence that the negligence of the defendant was the proximate cause of the injuries claimed.   To be entitled to recover, the plaintiff must prove that the negligence of the defendant was a substantial factor in bringing about the injuries he claims to have suffered.   Thus, even though liability or negligence is not an issue or not before you, you must still find that the negligence of the defendant was a substantial factor in causing the plaintiff's injuries before you may bring in a verdict against the defendant.’  “ (Emphasis in original.)  Id., 603..  FN9. “Specifically, the [trial] court instructed the jury that ‘[e]ven though the question of liability is not before you, the plaintiff must prove to you by a fair preponderance of the evidence that the negligence of the defendant was the proximate cause of the injuries claimed.   To be entitled to recover, the plaintiff must prove that the negligence of the defendant was a substantial factor in bringing about the injuries he claims to have suffered.   Thus, even though liability or negligence is not an issue or not before you, you must still find that the negligence of the defendant was a substantial factor in causing the plaintiff's injuries before you may bring in a verdict against the defendant.’  “ (Emphasis in original.)  Id., 603.

FN10. The ground for the defendants' objections was that Attorney Douthat was inquiring into matters that were outside the scope of direct examination..  FN10. The ground for the defendants' objections was that Attorney Douthat was inquiring into matters that were outside the scope of direct examination.

FN11. Trial Tr. 100:19–101:7, July 3, 2013..  FN11. Trial Tr. 100:19–101:7, July 3, 2013.

FN12. Section 6–8(a) of the Connecticut Code of Evidence Provides:  “Cross-examination and subsequent examinations shall be limited to the subject matter of the preceding examination and matters affecting the credibility of the witness, except in the discretion of the court.”   See also Conn.Code Evid. § 6–8(b), commentary (“[t]he trial court is vested with discretion in determining whether evidence offered on cross-examination or during a subsequent examination relates to subject matter brought out during the preceding examination”)..  FN12. Section 6–8(a) of the Connecticut Code of Evidence Provides:  “Cross-examination and subsequent examinations shall be limited to the subject matter of the preceding examination and matters affecting the credibility of the witness, except in the discretion of the court.”   See also Conn.Code Evid. § 6–8(b), commentary (“[t]he trial court is vested with discretion in determining whether evidence offered on cross-examination or during a subsequent examination relates to subject matter brought out during the preceding examination”).

FN13. Notably, it was the defendants who sought specific interrogatories, and Champeau who agreed upon the interrogatories that were ultimately provided to the jury..  FN13. Notably, it was the defendants who sought specific interrogatories, and Champeau who agreed upon the interrogatories that were ultimately provided to the jury.

Wilson, Robin L., J.