Modaffari v. Greenwich Hospital ( 2015 )

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ISABEL MODAFFARI v. GREENWICH HOSPITAL
(AC 36444)
(AC 36555)
Alvord, Keller and Harper, Js.
Argued March 3—officially released June 16, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Edward F. Stodolink, judge trial referee.)
John T. Bochanis, for the appellant (plaintiff).
David S. Poppick, for the appellee (defendant).
Opinion
KELLER, J. The plaintiff, Isabel Modaffari, appeals
from the judgment of the trial court rendered in favor
of the defendant, Greenwich Hospital. She claims that
the court erred by denying her oral motion for a mistrial
that was based on a witness’ improper statement regard-
ing a polygraph examination, elicited by an improper
question posed by the defendant. The court struck the
statement from the record and instructed the jury to
ignore it. We affirm the judgment of the court.
The following facts, which a jury reasonably could
have found, and procedural history are relevant here.
The plaintiff was employed by the defendant, Green-
wich Hospital, as a phlebotomist from December 13,
2004 to January 20, 2012. On or about May 29, 2011,
during the course of her employment, she drew three
blood samples from a patient at the defendant’s facili-
ties. Each blood sample was collected in a separate vial
for storage. After collecting the blood samples in the
vials, the plaintiff noticed that the blood samples
appeared to be light pink in color. The plaintiff testified
that the blood samples should have appeared dark red
or cherry red in color. She then inspected the remainder
of her unused vials and discovered that a number of
them contained an unknown clear liquid, indicating that
the vials were contaminated. Later that day, she
informed one of her supervisors, Edmund Simon, of
the incident. Two days later, the plaintiff gave the three
contaminated vials to another one of her supervisors,
Brian Runyon.
On June 3, 2011, as a result of the incident concerning
the blood samples, the Federal Bureau of Investigation
(FBI) began conducting an investigation to determine
whether there was a threat to public safety at the defen-
dant’s facilities and interviewed numerous individuals
employed by the defendant, including the plaintiff. The
FBI concluded that the incident did not warrant further
inquiry and closed its investigation in December, 2011.
At the FBI’s request, another federal agency, the Food
and Drug Administration (FDA), began conducting a
separate investigation in June, 2011, to determine
whether there was evidence of product tampering at
the defendant’s facilities and interviewed, among other
individuals, the plaintiff. The FDA ultimately closed its
investigation. On January 20, 2012, the plaintiff quit
her job.
On August 1, 2012, the plaintiff filed a complaint
alleging, inter alia, that the defendant had constructively
discharged her from her employment as a result of
her cooperation with the federal investigations and,
consequently, had violated General Statutes § 31-51q.1
In support of her allegations, she asserted that, after
she cooperated with the FBI and FDA investigations,
the defendant harassed her, humiliated her, and failed
to compensate her fully for her employment. The defen-
dant filed an answer denying these allegations and pre-
sented a number of affirmative defenses.
The parties presented evidence to a jury from Decem-
ber 10 to December 18, 2013. In support of her allegation
that the defendant had constructively discharged her,
the plaintiff testified that following the investigations
she no longer felt safe working for the defendant and
did not believe that the defendant was providing proper
medical treatment to its patients. Furthermore, she tes-
tified that Simon sent her into a room with the defen-
dant’s vice president, Quinton Friesen, who had ordered
her not to speak with the FBI about the blood samples
tampering incident. She felt that, as a result of her
cooperation with the FBI and FDA investigations, her
supervisors constantly yelled at her and humiliated her,
and the defendant failed to pay the full overtime salary
that it owed her.
During trial, the defendant called as a witness Mat-
thew Comerford, an agent from the FDA’s Office of
Criminal Investigations, who had interviewed the plain-
tiff in the course of his investigation on behalf of the
FDA. During direct examination, the defendant elicited
testimony from Comerford regarding a polygraph exam-
ination undergone by Jason Wein, one of the plaintiff’s
former coworkers during her employment with the
defendant. The following exchange occurred in the
presence of the jury:
‘‘[The Defendant’s Counsel]: And did [Wein] take a
polygraph exam?
‘‘[Comerford]: Yes, he did.
‘‘[The Defendant’s Counsel]: What was the result of
the polygraph exam?
‘‘[The Plaintiff’s Counsel]: I’ll object, Your Honor.
‘‘The Court: I’ll sustain the objection.
‘‘[Comerford]: He passed the polygraph.
‘‘The Court: No. No.
‘‘[Comerford]: I’m sorry, Your Honor.
‘‘The Court: I sustained the objection.
‘‘[The Defendant’s Counsel]: I know I heard that,
judge.
‘‘[The Plaintiff’s Counsel]: I ask that it be stricken,
Your Honor, and I think—could we approach?
‘‘The Court: I didn’t hear. Was there an answer?
‘‘[The Plaintiff’s Counsel]: Yes.
‘‘The Court: I’ll strike the answer and instruct the
jury to disregard.’’
On December 11, 2013, after the proceedings were
suspended for the day and the jury left the courtroom,
the plaintiff orally moved for a mistrial. In support of
her motion, the plaintiff argued that the defendant’s
question regarding the results of Wein’s polygraph
examination and Comerford’s statement in response to
that question were highly prejudicial and warranted
a mistrial. Specifically, according to the plaintiff, the
defendant’s question and Comerford’s statement were
prejudicial because she testified that she had previously
witnessed Wein tampering with vials used for the collec-
tion of blood samples. She contended that the defen-
dant’s question and Comerford’s statement indicating
that Wein passed a polygraph examination suggested
that Wein did not tamper with the vials and, conse-
quently, undermined her credibility. Although she
acknowledged that the court sustained her objection to
the defendant’s question, struck Comerford’s statement
from the record, and instructed the jury to disregard
the statement, she argued that no corrective action by
the court could cure the prejudice she had sustained.
The court orally denied her motion.
On December 19, 2013, the jury returned a verdict
for the defendant. On January 2, 2014, the plaintiff filed
a motion to set aside the verdict, which the court denied.
This appeal, in which she challenges the court’s denial
of her motion for a mistrial, followed.2 Additional facts
will be set forth as necessary.
We begin by setting forth the relevant standard of
review. ‘‘While the remedy of a mistrial is permitted
under the rules of practice, it is not favored. . . . On
appeal, we hesitate to disturb a decision not to declare
a mistrial. The trial judge is the arbiter of the many
circumstances which may arise during the trial in which
his function is to assure a fair and just outcome. . . .
The trial court is better positioned than we are to evalu-
ate in the first instance whether a certain occurrence
is prejudicial to the [plaintiff] and, if so, what remedy
is necessary to cure that prejudice. . . . The decision
whether to grant a mistrial is within the sound discre-
tion of the trial court.’’ (Internal quotation marks omit-
ted.) Froom Development Corp. v. Developers Realty,
Inc., 114 Conn. App. 618, 638–39, 972 A.2d 239, cert.
denied, 293 Conn. 922, 980 A.2d 909 (2009). ‘‘On appeal,
the [plaintiff] bears the burden of establishing that there
was irreparable prejudice to the [plaintiff’s] case such
that it denied [her] a fair trial. . . . In determining
whether the [plaintiff] was deprived of [her] right to a
fair trial, [e]very reasonable presumption will be given
in favor of the trial court’s ruling . . . because the trial
court, which has a firsthand impression of the jury, is
in the best position to evaluate the critical question of
whether the juror’s or jurors’ exposure has prejudiced
[the plaintiff]. . . . It is only when an abuse of discre-
tion is manifest or where an injustice appears to have
been done that a reversal will result from the trial
court’s exercise of discretion.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Luther, 114 Conn.
App. 799, 805–806, 971 A.2d 781, cert. denied, 293 Conn.
907, 978 A.2d 1112 (2009).
The plaintiff claims that the defendant’s question con-
cerning the results of Wein’s polygraph examination
and Comerford’s statement in response to that question,
which the court struck from the record and instructed
the jury to ignore, were so prejudicial as to warrant
a mistrial. Reiterating in substance the argument she
presented to the court on her motion for a mistrial,
she contends that Comerford’s statement improperly
suggested that Wein did not tamper with any vials, con-
tradicting her testimony indicating otherwise and
undermining her credibility. In support of her claim,
she recounts the rationale underlying the per se inad-
missibility of polygraph evidence in Connecticut courts.
See State v. Porter, 241 Conn. 57, 93–94, 698 A.2d 739(1997) (concluding polygraph evidence is per se inad-
missible in Connecticut courts where rules of evidence
apply), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140
L. Ed. 2d 645 (1998). According to the plaintiff, because
our case law expressly provides that polygraph evi-
dence has little probative value and is highly prejudicial,
she suffered irreparable prejudice the moment the jury
heard Comerford’s statement in response to the defen-
dant’s question regarding the results of Wein’s poly-
graph examination. We disagree.
Although we agree that the defendant’s question
regarding the results of Wein’s polygraph examination
and Comerford’s statement in response to that question
were improper, we conclude, on the basis of several
factors, that the plaintiff has failed to meet her burden to
prove that she was so prejudiced by those improprieties
that she failed to receive a fair trial. The court immedi-
ately sustained the plaintiff’s objection to the defen-
dant’s question and struck Comerford’s statement from
the record.3 Those improprieties constituted a single,
isolated event, and the defendant did not subsequently
attempt to revisit the issue of Wein’s polygraph exami-
nation at trial. Furthermore, after it struck Comerford’s
statement from the record, the court provided the jury
with a curative instruction to disregard the statement.
‘‘It is well settled that the jury is presumed to follow
the court’s curative instructions in the absence of some
indication to the contrary. . . . Thus, [a] jury is nor-
mally presumed to disregard inadmissible evidence
brought to its attention unless there is an overwhelming
probability that the jury will not follow the trial court’s
instructions and a strong likelihood that the inadmissi-
ble evidence was devastating to the [plaintiff].’’ (Inter-
nal quotation marks omitted.) See State v. Bree, 136
Conn. App. 1, 15, 43 A.3d 793, cert. denied, 305 Conn.
926, 47 A.3d 885 (2012). Here, the plaintiff has not met
her burden to rebut the presumption that the jury fol-
lowed the court’s curative instruction to disregard Com-
erford’s statement.
In addition, insofar as the plaintiff claims that the
defendant’s question and Comerford’s statement in
response to that question substantially damaged her
credibility, the jury had ample evidence, apart from the
question and statement in the record, that undermined
the plaintiff’s credibility. As a result, any prejudice she
had sustained was minimized. See id., 14–16 (affirming
denial of motion for mistrial where court provided jury
with curative instructions for stricken statements and
other evidence provided basis for jury to reach relevant
conclusion). At trial, a number of witnesses provided
testimony that implicated the plaintiff’s credibility.
First, Simon testified that, on June 3, 2011, he did not
order the plaintiff to enter a room in the defendant’s
phlebotomy department in order to speak with Friesen.
Simon’s testimony contradicted the plaintiff’s testimony
that Simon had told her to go into a room and speak
with Friesen that day.
Second, Friesen testified that, on June 3, 2011, he did
not meet with the plaintiff and order her not to speak
with the FBI about the blood samples tampering inci-
dent. Friesen’s testimony contradicted the plaintiff’s
testimony that he had met with her and ordered her
not to speak with the FBI about the incident that day.
Third, Comerford testified that the plaintiff had failed
to cooperate with him in scheduling a date for her to
undergo a polygraph examination. According to Com-
erford’s testimony, on July 20, 2011, the plaintiff told
him that she would contact him after she returned from
a vacation to schedule a date for a polygraph examina-
tion. He subsequently had between fifteen and twenty
telephone conversations with an attorney for the plain-
tiff about scheduling the date. Comerford’s testimony
contradicted the plaintiff’s testimony that, prior to leav-
ing for vacation, Comerford told her that he would
contact her to schedule a date for a polygraph examina-
tion and never contacted her thereafter.4
The plaintiff also suggests that she was prejudiced
by the court’s failure to provide additional curative
instructions to the jury regarding its obligation to disre-
gard statements that are stricken from the record. ‘‘We
are mindful that curative instructions are not a cure-
all for every improper event that may transpire during
a trial. . . . The likely effectiveness of such a remedy
is dependent on the magnitude of the impropriety to
which it is directed.’’ (Internal quotation marks omit-
ted.) Camacho v. Commissioner of Correction, 148
Conn. App. 488, 502, 84 A.3d 1246, cert. denied, 311
Conn. 937, 88 A.3d 1227 (2014). Here, given the isolated
nature of the defendant’s question and Comerford’s
statement in response to that question, we are satisfied
that the court’s curative instruction was sufficient to
mitigate any prejudice the plaintiff sustained and, there-
fore, the lack of additional instructions did not harm
her.
Furthermore, insofar as she suggests that additional
curative instructions would have mitigated the preju-
dice she had suffered by the defendant’s question and
Comerford’s statement, her argument contradicts the
argument she presented before the trial court. She did
not ask the court during trial to provide additional cura-
tive instructions regarding the jury’s obligation to disre-
gard stricken statements. Instead, she repeatedly stated
that curative instructions would not remedy the alleged
prejudice she had suffered. The plaintiff’s counsel made
the following direct statement to the court: ‘‘I don’t see
how any curative instruction can surmount the preju-
dice created by the result of a polygraph exam by the
one person that gave it.’’ The plaintiff also indicated to
the court that she would have suffered further prejudice
had the court given the jury additional curative instruc-
tions regarding Comerford’s stricken statement. We are
not persuaded by the plaintiff’s inconsistent argument,
and we consider it improper for her to present one
argument at trial and a contrary argument on appeal.5
For the foregoing reasons, we conclude that the plain-
tiff failed to meet her burden to prove that the court’s
denial of her motion for a mistrial constituted an abuse
of its broad discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 31-51q provides: ‘‘Any employer, including the state
and any instrumentality or political subdivision thereof, who subjects any
employee to discipline or discharge on account of the exercise by such
employee of rights guaranteed by the first amendment to the United States
Constitution or section 3, 4 or 14 of article first of the Constitution of the
state, provided such activity does not substantially or materially interfere
with the employee’s bona fide job performance or the working relationship
between the employee and the employer, shall be liable to such employee
for damages caused by such discipline or discharge, including punitive
damages, and for reasonable attorney’s fees as part of the costs of any such
action for damages. If the court determines that such action for damages
was brought without substantial justification, the court may award costs
and reasonable attorney’s fees to the employer.’’
2
Prior to the court’s denial of her motion to set aside the verdict, the
plaintiff filed an appeal to this court. On her appeal form, she indicated
that she was appealing from the court’s judgment rendered in favor of the
defendant and its denial of her motion for a mistrial. After the court denied
her motion to set aside the verdict, she filed another appeal to this court.
On the second appeal form, she indicated that she was appealing from the
court’s judgment rendered in favor of the defendant, its denial of her motion
for a mistrial and its denial of her motion to set aside the verdict. This court
consolidated the appeals sua sponte. In her appellate brief, the plaintiff
challenges the judgment rendered in favor of the defendant solely on the
basis of her claim that the court erred by denying her motion for a mistrial
and, therefore, we deem any claims regarding the denial of the motion to
set aside the verdict abandoned. See Clelford v. Bristol, 150 Conn. App. 229,
234–35, 90 A.3d 998 (2014).
3
Specifically, the court stated: ‘‘I’ll strike the answer and instruct the jury
to disregard.’’
4
We note that the plaintiff was the first witness to introduce testimony
concerning polygraph examinations. On direct examination during her case-
in-chief, she testified that, when asked by Comerford and Michael Syrax,
an agent for the FBI, whether she was willing to undergo a polygraph
examination, she replied, ‘‘ ‘absolutely, I will do the polygraph whenever
you want.’ ’’
In addition, even if Comerford had never stated that Wein had passed his
polygraph examination, the jury had sufficient evidence before it, apart from
the question and answer at issue in the present claim, to draw that inference.
This is because the plaintiff did not object either to the defendant’s question
to Comerford asking whether Wein had undergone a polygraph examination
or to Comerford’s testimony that Wein did submit to a polygraph examina-
tion. Furthermore, there was evidence before the jury that the federal investi-
gations regarding the blood samples tampering incident had been closed,
but there was no evidence, aside from the plaintiff’s testimony, to support
a finding that Wein had tampered with the blood vials. Therefore, the jury
reasonably could have inferred that Wein had passed his polygraph examina-
tion because there was evidence that Wein had undergone a polygraph
examination, the federal investigations apparently had been resolved with-
out any repercussions against Wein, and, aside from the plaintiff’s testimony,
there was no evidence connecting Wein to the blood samples tampering
incident.
5
Although we do not view the plaintiff’s argument as an independent
claim that she failed to raise before the trial court, we note that this court
has denied review of claims that parties did not properly raise to the trial
court. See, e.g., Nweeia v. Nweeia, 142 Conn. App. 613, 620, 64 A.3d 1251(2013) (‘‘Our rules of procedure do not allow a [party] to pursue one course
of action at trial and later, on appeal, argue that a path [she] rejected
should now be open to [her]. . . . To rule otherwise would permit trial by
ambuscade.’’ [Internal quotation marks omitted.]).