Byrne v. Avery Center for Obstetrics & Gynecology, P.C. ( 2022 )

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EMILY BYRNE v. AVERY CENTER FOR OBSTETRICS
AND GYNECOLOGY, P.C.
(AC 43413)
Cradle, Clark and Harper, Js.
Syllabus
The plaintiff patient sought to recover damages from the defendant medical
provider for injuries allegedly sustained as a result of, inter alia, the
defendant’s breach of its duty of patient confidentiality. Without the
plaintiff’s knowledge or authorization, in response to a subpoena duces
tecum issued in connection with a paternity action filed in the Probate
Court against the plaintiff by M, an individual with whom the plaintiff
previously had a relationship, the defendant sent the plaintiff’s medical
records to the Probate Court. The records were placed in the Probate
Court’s public file for the paternity action and were accessed by M,
who used the information contained therein to harass and threaten the
plaintiff. Although the plaintiff had previously filed for bankruptcy and
the bankruptcy court had granted the application of the appointed
trustee of her estate to employ special counsel to pursue a claim against
the defendant, the plaintiff commenced the action in her individual
capacity. In response, the defendant admitted that it had breached its
duty of confidentiality and was negligent in sending the plaintiff’s records
to the Probate Court but denied that it was the proximate cause of the
plaintiff’s injuries. The plaintiff filed an offer of judgment, to which the
defendant objected. Thereafter, the trial court granted the plaintiff’s
motion to join the bankruptcy trustee as a party plaintiff. The jury
returned a general verdict in favor of the plaintiff and awarded her
noneconomic damages. Thereafter, the trial court denied the defendant’s
motion for a new trial, to set aside the verdict and for remittitur, and
it granted the plaintiff’s motion for offer of judgment interest. On the
defendant’s appeal to this court, held:
1. The defendant failed to prove that it was harmed or that injustice resulted
from the trial court’s limiting of the scope of the testimony of K, the
retired probate judge acting as the defendant’s expert witness: although
the trial court precluded K from opining with regard to the specific facts
of the case or stating, as the defendant would have liked, that ‘‘it was
extraordinarily abnormal for the Probate Court clerk to have placed the
plaintiff’s medical records in a public file,’’ his testimony left no doubt
that the clerk had mishandled the records; moreover, on the basis of
the testimony that was allowed, the members of the jury were capable
of determining whether the clerk’s handling of the records was so
extraordinary that it broke the chain of causation between the defen-
dant’s conduct and the plaintiff’s injury.
2. Contrary to the defendant’s claim, the trial court did not improperly permit
the plaintiff to submit a claim for future emotional damages to the jury
on the basis of a single, vague, speculative statement in a hearsay report:
a. The trial court did not abuse its discretion when it admitted into
evidence the psychological report written by the plaintiff’s treating psy-
chologist, B: because the report was written on B’s stationary and was
signed by B, there was a presumption that it was made in the ordinary
course of business and was admissible as a business entry; moreover,
contrary to the defendant’s claim, the report was not inadmissible pursu-
ant to statute (§ 52-174 (b)) for being prepared in anticipation of litigation
because the defendant was in possession of the report when it deposed
B and, therefore, had the opportunity to cross-examine B as to his
opinions therein even though B was unable to testify at trial.
b. The trial court properly submitted the plaintiff’s claim for future
noneconomic damages to the jury on the basis of the evidence presented
at trial: there was evidence in the record, in addition to B’s report, to
support a showing of a reasonable probability of future or ongoing injury,
including the testimony of the plaintiff, the testimony of a licensed clinical
social worker who treated the plaintiff eight years after her medical
records had been made public, and the length of time between the
admitted negligence of the defendant and the return of the verdict;
moreover, the fact that there was contrary evidence in the record from
the plaintiff’s other treating physicians regarding future injury was not
a sufficient reason for the trial court to withhold its instruction on future
noneconomic damages.
c. The trial court did not abuse its discretion by denying the defendant’s
request to submit to the jury interrogatories distinguishing between past
and future damages: the request was untimely filed, as the defendant
did not request such interrogatories until after the trial court had given
the majority of its charge to the jury, and, pursuant to the applicable
rule of practice (§ 16-22), written requests for jury interrogatories must
be filed with the clerk of the trial court before the beginning of arguments.
3. The trial court’s award of offer of judgment interest was not improper:
pursuant to DiLieto v. County Obstetrics & Gynecology Group, P.C.
(297 Conn. 105), the offer of judgment was validated at the time the
trustee was added as a party plaintiff; moreover, since DiLieto, neither
the legislature nor the rules committee of the Superior Court has
amended the statutes or rules governing the procedures applicable to
offers of judgment when a bankruptcy trustee is substituted as a party
plaintiff under the applicable statute (§ 52-109), despite our Supreme
Court’s express suggestion in DiLieto that they do so; accordingly, in
making its award, the trial court properly followed our Supreme Court’s
holding in DiLieto.
Argued September 22, 2021—officially released May 10, 2022
Procedural History
Action to recover damages for, inter alia, the defen-
dant’s alleged negligent infliction of emotional distress,
and for other relief, brought to the Superior Court in
the judicial district of Fairfield, where the court, Hon.
Richard P. Gilardi, judge trial referee, granted the
plaintiff’s motion to add Douglas J. Wolinsky, the bank-
ruptcy trustee of her estate, as a party plaintiff; there-
after, the matter was tried to the jury before Welch, J.;
verdict for the plaintiff; subsequently, the court, Welch,
J., denied the defendant’s motion for a new trial, to set
aside the verdict and/or for remittitur and rendered
judgment in accordance with the verdict; thereafter,
the court, Welch, J., granted the plaintiff’s motion for
offer of judgment interest, attorney’s fees and postjudg-
ment interest, and the defendant appealed to this court.
Affirmed.
Jeffrey R. Babbin, with whom were James F. Biondo
and, on the brief, Richard Luedeman and Diana M.
Carlino, for the appellant (defendant).
Bruce L. Elstein, for the appellee (plaintiff).
Opinion
CRADLE, J. In 2007, the plaintiff1 Emily Byrne com-
menced this action against the defendant, Avery Center
for Obstetrics and Gynecology, P.C., alleging that the
defendant had breached its duty of patient confidential-
ity by responding to a subpoena duces tecum and negli-
gently sending the plaintiff’s medical records to the New
Haven Regional Children’s Probate Court (Children’s
Probate Court) without her knowledge and authoriza-
tion. Before trial, the defendant admitted that it had
breached its privacy policy and its agreement to keep
the plaintiff’s medical records confidential and had neg-
ligently mailed the records to the Children’s Probate
Court without her knowledge. The defendant con-
tended at trial, however, that its actions were not the
proximate cause of the plaintiff’s injuries. The jury
returned a verdict in favor of the plaintiff, and the trial
court, Welch, J., granted the plaintiff’s motion for offer
of judgment interest, attorney’s fees, and postjudgment
interest. On appeal, the defendant claims that the court
improperly (1) limited the testimony of its expert wit-
ness; (2) admitted into evidence a medical report,
charged the jury concerning future noneconomic dam-
ages, and denied its request for a jury interrogatory
differentiating between past and future damages; and
(3) granted the plaintiff’s motion for offer of judgment
interest pursuant to General Statutes (Rev. to 2005)
§ 52-192a.2 We affirm the judgment of the trial court.
The following relevant facts and procedural history
are set forth in our Supreme Court’s earlier decision in
Byrne v. Avery Center for Obstetrics & Gynecology,
P.C., 314 Conn. 433, 102 A.3d 32 (2014). ‘‘Before July
12, 2005, the defendant provided the plaintiff [with]
gynecological and obstetrical care and treatment. The
defendant provided its patients, including the plaintiff,
with notice of its privacy policy regarding protected
health information and agreed, based on this policy and
on law, that it would not disclose the plaintiff’s health
information without her authorization.
‘‘In May, 2004, the plaintiff began a personal relation-
ship with Andro Mendoza, which lasted until Septem-
ber, 2004.3 . . . In October, 2004, she instructed the
defendant not to release her medical records to Men-
doza. In March, 2005, she moved from Connecticut to
Vermont where she presently lives. On May 31, 2005,
Mendoza filed paternity actions against the plaintiff in
Connecticut and Vermont. Thereafter, the defendant
was served with a subpoena requesting its presence
together with the plaintiff’s medical records at the . . .
Children’s [Probate Court] on July 12, 2005. The defen-
dant did not alert the plaintiff of the subpoena, file a
motion to quash it or appear in court. Rather, the defen-
dant mailed a copy of the plaintiff’s medical file to
the court around July 12, 2005. In September, 2005,
[Mendoza] informed [the] plaintiff by telephone that he
reviewed [the] plaintiff’s medical file in the court file.
On September 15, 2005, the plaintiff filed a motion to
seal her medical file, which was granted. The plaintiff
alleges that she suffered harassment and extortion
threats from Mendoza since he viewed her medical
records.4 . . .
‘‘The plaintiff subsequently brought this action against
the defendant. Specifically, the operative complaint in
the present case alleges that the defendant: (1) breached
its contract with her when it violated its privacy policy
by disclosing her protected health information without
authorization; (2) acted negligently by failing to use
proper and reasonable care in protecting her medical
file, including disclosing it without authorization in viola-
tion of General Statutes § 52-146o5 and the [United States
Department of Health and Human Services’] regulations
implementing [the Health Insurance Portability and
Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d
et seq.]; (3) made a negligent misrepresentation, upon
which the plaintiff relied to her detriment, that her medi-
cal file and the privacy of her health information would
be protected in accordance with the law;6 and (4) engaged
in conduct constituting negligent infliction of emotional
distress.’’ (Footnotes added; footnotes omitted; footnotes
in original; internal quotation marks omitted.) Id., 437–
39.7
On October 9, 2018, the defendant filed an amended
answer wherein it admitted that it had breached its duty
of confidentiality and admitted that it was negligent in
sending the plaintiff’s medical records to the Children’s
Probate Court without the plaintiff’s authorization. The
defendant, however, denied that its actions were the
proximate cause of the plaintiff’s injuries and damages.
The case was tried to a jury over several days in late
November and early December, 2018. The crux of the
plaintiff’s case was that the defendant’s failure to notify
her of the subpoena before sending her medical records
to the Children’s Probate Court was a substantial factor
in causing her emotional harm. The plaintiff testified and
presented testimonial and documentary evidence regard-
ing Mendoza’s harassment and lawsuits and her past and
then current mental health history.
In its defense, the defendant contended that sending
the plaintiff’s medical records to the Children’s Probate
Court was not the proximate cause of her injuries. It
argued that the Children’s Probate Court mishandled the
records and was the proximate cause of her injuries.
The defendant also argued that the plaintiff’s emotional
distress was caused by Mendoza’s harassment, communi-
cations, and lawsuits against her and her family.8
The jury returned a general verdict in favor of the
plaintiff and awarded her noneconomic damages in the
amount of $853,000.9 On March 7, 2019, the defendant
filed a motion for a new trial, to set aside the verdict and
for remittitur on the grounds that the court improperly
(1) admitted a report prepared by the plaintiff’s expert
into evidence because it was speculative and permitted
the jury to consider an award of future damages, (2)
instructed the jury on future noneconomic damages, and
(3) failed to provide a verdict sheet that differentiated
between past and future damages. The court denied the
defendant’s motion.
The plaintiff also filed a motion for offer of judgment
interest, attorney’s fees, and postjudgment interest, which
the defendant opposed. The court granted the plaintiff’s
motion and awarded offer of judgment interest at the
rate of 12 percent per annum, postjudgment interest at
the rate of 8 percent per annum, and attorney’s fees of
$350. This appeal followed. Additional facts and proce-
dural history will be set forth as necessary.
I
The defendant first claims that the court improperly
precluded its expert witness, retired probate judge
Robert K. Killian, Jr., from testifying that ‘‘it was extraor-
dinarily abnormal for the [Children’s] Probate Court
clerk to have placed the plaintiff’s medical records in
a public file accessible by Mendoza.’’ The defendant
argues that the court erred in precluding Killian’s testi-
mony ‘‘regarding the [Children’s] Probate Court clerk’s
failure to follow normal, expected protocols for confi-
dentiality with respect to the handling of the plaintiff’s
medical records.’’ The defendant contends that, ‘‘because
Probate Courts are expected not to make medical records
public, [the defendant’s] sending the records to the
[Children’s] Probate Court was not a proximate cause
of their public disclosure to Mendoza.’’ The defendant
asserts that Killian’s testimony in this regard was crucial
to its challenge to causation and, thus, that the court’s
preclusion of it was highly prejudicial to its defense.
We are not persuaded.
The following facts are relevant to our resolution of
the defendant’s claim. On March 23, 2018, the defendant
disclosed Killian as an expert witness to testify on the
issues of liability and causation, stating that Killian had
been a Probate Court judge for more than thirty years
and had served as chief judge and president judge of
the Connecticut Probate Assembly. The defendant
expected Killian to testify that (1) whether the plaintiff’s
records were mailed or hand delivered to the court
made no difference as to how the clerk was to handle
them; (2) in 2005, Probate Court procedures in general
required medical records to remain in the custody of
the clerk under protective seal until the court ordered
their release; (3) the Children’s Probate Court clerk had
mishandled the plaintiff’s medical records by placing
them in a publicly accessible file without a court order
or the agreement of the parties; and (4) the clerk’s mis-
handling of the records was the reason Mendoza gained
access to the plaintiff’s medical records.
On October 3, 2018, the plaintiff filed a motion in
limine asking the court to preclude Killian from testi-
fying that it was the clerk’s mishandling of the plaintiff’s
medical records that proximately caused her injuries.
The plaintiff first argued that the defendant had not
made the Children’s Probate Court an apportionment
defendant and, therefore, the defendant should be pre-
cluded from blaming a nonparty for any negligence or
harm caused to the plaintiff by the disclosure of her
medical records. Second, the plaintiff noted that when
she deposed Killian, he testified that Probate Court
procedures are localized throughout Connecticut and
that he had never presided at the Children’s Probate
Court in New Haven, where the plaintiff’s records were
mailed. Consequently, the plaintiff contended that Kil-
lian’s proposed testimony was neither relevant nor
accurate.
The parties appeared before the court, Kamp, J., on
October 11, 2018, to argue the plaintiff’s motion in
limine. In opposing the motion in limine, the defendant
argued that it was not seeking to apportion liability but
that Killian’s testimony was to address the question
of causation. In support of its position, the defendant
argued that Killian’s expert testimony was admissible
under a general denial, citing Bernier v. National Fence
Co., 176 Conn. 622, 630, 410 A.2d 1007 (1979) for the
proposition that facts inconsistent with the plaintiff’s
allegations that the proximate cause of her injuries was
the defendant’s negligence, whether sole or concurrent,
were admissible under a general denial. With respect
to Killian’s proposed testimony, Judge Kamp ruled: ‘‘[I]f
I’m going to allow this, which I was inclined to allow
you to do, it was only for the purpose of arguing that
the conduct of your client was not a substantial factor
under a proximate cause analysis because . . . you’ve
admitted liability already. You’ve admitted that your
conduct was negligent.
***
But I do think that you’re entitled to make the break
in causation argument, but you can’t do it in a way
that you’re really seeking to apportion liability to [a]
nonparty.’’ Trial commenced before Judge Kamp on
October 16, 2018, but a mistrial was declared on the
basis of comments made by counsel during opening
statements.
Trial commenced before Judge Welch on November
27, 2018. During its case, the defendant produced Killian
as a witness and made an offer of proof as to his testi-
mony. During the offer of proof, Killian testified in gen-
eral as to statewide Probate Court procedures and poli-
cies and how medical records should be handled by
the Probate Court clerk, whether mailed or hand deliv-
ered. He further testified that when the plaintiff’s
records arrived at the Children’s Probate Court, the
clerk should have taken custody of them and placed
them in a sealed file. On cross-examination, Killian testi-
fied that, in 2005, there were no statewide written poli-
cies, procedures, manuals, rules, regulations, or direc-
tives that required a Probate Court to handle
confidential records in a specific way.10 Every Probate
Court had its own rules. Killian himself had never pre-
sided in the Children’s Probate Court and had never
spoken to the administrative judge or the clerk about
the present case or the procedures that existed in that
court in 2005. He also had no knowledge of how the
plaintiff’s records were handled by the clerk when they
arrived in the Children’s Probate Court in July, 2005.
Following the offer of proof, Judge Welch recognized
Killian as an expert with regard to Probate Court poli-
cies and procedures in general but ruled that he could
testify ‘‘on a very limited basis, in terms of the general
probate rules or the general Probate Court procedures
. . . not specific to this case.’’11 Before Killian testified,
the court instructed the jury as to the purpose of his
testimony.12
We begin with the applicable standard of review. ‘‘[T]he
motion in limine . . . has generally been used in Con-
necticut courts to invoke a trial judge’s inherent discre-
tionary powers to control proceedings, exclude evi-
dence, and prevent occurrences that might unnecessarily
prejudice the right of any party to a fair trial. . . . The
trial court’s ruling on evidentiary matters will be over-
turned only upon a showing of a clear abuse of the
court’s discretion. . . . We will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for a manifest abuse of discretion.
. . . [Thus, our] review of such rulings is limited to the
questions of whether the trial court correctly applied
the law and reasonably could have reached the conclu-
sion that it did. . . . Even when a trial court’s eviden-
tiary ruling is deemed to be improper, we must deter-
mine whether that ruling was so harmful as to require
a new trial. . . . In other words, an evidentiary ruling
will result in a new trial only if the ruling was both
wrong and harmful. . . . Finally, the standard in a civil
case for determining whether an improper ruling was
harmful is whether the . . . ruling [likely affected] the
result. . . . Despite this deferential standard, the trial
court’s discretion is not absolute. Provided the defen-
dant demonstrates that substantial prejudice or injus-
tice resulted, evidentiary rulings will be overturned on
appeal [when] the record reveals that the trial court
could not reasonably conclude as it did.’’ (Internal quo-
tation marks omitted.) Connecticut Light & Power Co.
v. Gilmore, 289 Conn. 88, 128, 956 A.2d 1145 (2008).
‘‘Expert testimony should be admitted when: (1) the
witness has a special skill or knowledge directly appli-
cable to a matter in issue, (2) that skill or knowledge
is not common to the average person, and (3) the testi-
mony would be helpful to the court or jury in consider-
ing the issues. . . . [T]o render an expert opinion the
witness must be qualified to do so and there must be
a factual basis for the opinion.’’13 (Internal quotation
marks omitted.) State v. Fisher, 342 Conn. 239, 269, 269
A.3d 104 (2022). ‘‘[A]n expert witness is not ordinarily
permitted to express an opinion on an ultimate issue
of fact which is to be decided by the trier of fact. . . .
Experts can sometimes give an opinion on an ultimate
issue where the trier, in order to make intelligent find-
ings, needs expert assistance on the precise question
on which it must pass.’’ (Emphasis added; internal quo-
tation marks omitted.) State v. Pjura, 68 Conn. App.
119, 122, 789 A.2d 1124 (2002).
In the present case, the defendant argues that Killian’s
testimony was offered with respect to the cause of
the plaintiff’s harm. Although the question of causation
generally ‘‘belongs to the trier of fact because causation
is essentially a factual issue’’; (internal quotation marks
omitted) Alexander v. Vernon, 101 Conn. App. 477, 485,
923 A.2d 748 (2007); the defendant claims that the court
improperly prevented Killian from testifying that ‘‘it was
extraordinarily abnormal for the [Children’s] Probate
Court clerk to have placed the plaintiff’s medical
records in a public file accessible by Mendoza’’ because
that testimony was at the core of its theory that the
mishandling of the plaintiff’s records by the Children’s
Probate Court broke the chain of causation between
the defendant’s conduct and the plaintiff’s injuries.
Even if we were to assume for the sake of argument
that the court abused its discretion by limiting Killian’s
testimony, which we do not, we conclude that the defen-
dant has failed to demonstrate that it was harmed or
substantially prejudiced by the court’s ruling and that
an injustice has occurred. Our conclusion is predicated
on our close reading of Killian’s testimony before the
jury.14 Killian testified that he considered medical
records to be confidential: ‘‘Any medical record, regard-
less of how it comes to the court, is a confidential
record. . . . [I]t’s usually received in an envelope
marked confidential medical record, usually with a copy
of a subpoena on top of it. And it would be put into a
confidential file.’’ He indicated that no person has
access to the confidential file but that there is a public
file that is available to the general public. ‘‘In virtually
everything that happens in a Probate Court, at least
every contested matter in the Probate Court, medical
testimony, medical records are a component of the evi-
dence that’s presented to the court. So the securing of
those records has always been something in which the
court had a role. And the protection of those records,
until they were properly admitted into evidence, was
also the responsibility of the clerk and the court.’’ If
an envelope containing medical records arrived at the
Probate Court without a subpoena or court order on
the front of it, Killian stated that the envelope should
not be opened until there is a determination of why the
medical record came to the court, and then the judge
determines what is to be done with the record.
Killian clarified that he was testifying as to ‘‘the man-
ner in which evidence comes into a court in probate,
whether it be medical or otherwise, pursuant to one of
the several avenues by which it could come in, and I’m
testifying by an implicit responsibility. If some piece of
medical testimony falls from the sky . . . [and some-
body brings] it to the Probate Court, the responsibility
of the court [is] to . . . treat that as a confidential
document.’’
Killian acknowledged that there was no written Pro-
bate Court policy, procedure or directive in 2005. He
indicated that the prescribed method for handling medi-
cal records filed with the Probate Court is ‘‘historic’’
and stated that the statute regarding medical records;
see footnote 10 of this opinion, quoting General Statutes
§ 45a-98b; applies to any probate proceeding in the
Superior Court or the Probate Court. Before medical
records can be disclosed, the adverse party must have
an opportunity to object. If the adverse party objects
to the disclosure of the records, the judge must hold a
hearing to determine whether the records are admissi-
ble.
In addition, Killian testified in response to a question
from counsel: ‘‘I find it impossible to believe that you
think a Probate Court that has a . . . medical record
dumped on it is free to put it in a public file now, 2005,
2004, or the 1800s, when this whole process was initially
instituted in the state of Connecticut. It’s evidence . . .
that is protected and it’s evidence that is confidential.
Once the court rules and it becomes evidence in the
trial, then it goes into the public record, whether it’s
medical or otherwise, the exception being psychiatric
information.’’ ‘‘When an item comes into court, it is
clearly identifiable as a medical record, but you don’t
know what process it went to, the response is not to
put it in the public file. The response is to find out how
it came into the court. The process is to find out whether
you are properly in possession of that document. The
clerk knows that he or she is the gatekeeper of the
court. That’s their responsibility. And if a document
comes in and they don’t know what it is or what to do
with it, or it defies the rules that they have seen in the
past for these types of documents, then their job is to
go and talk either—if it’s an assistant clerk, to talk to
the clerk; if it’s the clerk, talk to the judge. That’s the
process and that’s the process that’s mandated for docu-
ments that come into a court going back a long time.’’
In conclusion, Killian repeated that he had no doubt
that medical records should be treated as confidential
documents.
On the basis of our detailed review of Killian’s testi-
mony on direct and cross-examination and the court’s
jury charge, we conclude that it is not likely that the
limitations the court imposed on Killian’s testimony
affected the outcome of the trial and, therefore, that
the defendant was not prejudiced by the court’s rulings.
Although Killian did not opine with regard to the spe-
cific facts of this case or use the words ‘‘extraordinarily
abnormal’’ with regard to the probate clerk’s handling
of the plaintiff’s medical records, his testimony left no
doubt that, pursuant to more than one hundred years
of Probate Court policy and procedure, the clerk mis-
handled the records by placing them in the public file
before being ordered to do so by the probate judge.
Killian’s testimony was detailed and specific. He spelled
out the procedures a probate clerk should follow to
protect the confidentiality of medical records that are
received by the Probate Court, regardless of whose
records they are or how they were delivered to the court.
There was evidence before the jury pursuant to the
parties’ stipulation that the defendant copied and
mailed the plaintiff’s medical records to the Children’s
Probate Court and that the records were placed in a
publicly accessible file. Killian testified as to the manner
in which medical records are to be handled in the Pro-
bate Court. Given the testimony that was allowed, the
members of the jury were perfectly capable of determin-
ing whether the clerk’s handling of the plaintiff’s
records was so ‘‘extraordinarily abnormal’’ that it broke
the chain of causation between the defendant’s conduct
and the plaintiff’s injury. We therefore conclude that
the defendant was not harmed and no injustice resulted
from the court’s limiting of the scope of Killian’s testi-
mony.15
II
The defendant next claims that the court permitted
the plaintiff to submit a claim for future emotional dam-
ages to the jury on the basis of a single vague, specula-
tive statement in a hearsay report that was inconsistent
with other, uncontested medical evidence. The defen-
dant argues that the court improperly (1) admitted a
report prepared by the plaintiff’s treating psychologist
into evidence, (2) charged the jury on future emotional
harm without sufficient evidence, and (3) denied the
defendant’s request to submit a jury interrogatory that
distinguished past and future damages.16 We are not
persuaded by these claims.
A
The defendant claims that the court improperly
admitted into evidence the psychological report (report)
written by the plaintiff’s treating psychologist. We are
not persuaded.
The following facts are relevant to the defendant’s
claim. In 2005, soon after the plaintiff learned that Men-
doza had read her medical records, the plaintiff sought
treatment from David Brosell, a psychologist. She saw
Brosell from September, 2005, until August, 2008, and
again early in 2010. In April, 2010, Brosell authored and
signed a report at the request of the plaintiff’s counsel
with regard to his therapeutic work with the plaintiff.
Brosell’s initial diagnosis of the plaintiff’s condition was
adjustment disorder with anxiety and depression. After
working with the plaintiff, Brosell changed the diagno-
sis to major depression, single episode, mild, and later
added a diagnosis of post-traumatic stress disorder.
In 2010, the plaintiff disclosed Brosell as an expert
witness along with his contemporaneous treatment
records and the report. In September, 2010, the defen-
dant’s counsel deposed Brosell with respect to his treat-
ment of the plaintiff and his report. At the time of trial
in 2018, Brosell was retired and too infirm to testify.
The defendant did not object to Brosell’s treatment
records being admitted into evidence but filed a motion
in limine to exclude the report on the grounds that it
was addressed to the plaintiff’s counsel in preparation
for litigation and that Brosell had assigned 75 percent
of the plaintiff’s post-traumatic stress disorder diagno-
sis to the release of her medical records to Mendoza.17
The defendant further contended that there was nothing
in Brosell’s treatment records to substantiate his con-
clusion with respect to the plaintiff’s post-traumatic
stress disorder.
The parties appeared before the court for a hearing
on the motion in limine. Counsel for the defendant
acknowledged that he had received Brosell’s report
prior to deposing him and that he deposed Brosell with
regard to his treatment records and portions of his
report. Counsel, however, did not question Brosell about
his conclusions regarding the percentage of the plain-
tiff’s post-traumatic stress disorder attributable to the
release of her medical records or that the plaintiff may
sustain future emotional damages due to post-traumatic
stress. See footnote 17 of this opinion. Counsel indi-
cated that he intended to cross-examine Brosell about
those matters at trial. The defendant, therefore, claimed
that it was at a disadvantage because Brosell was not
able to testify at trial. The court found that the defen-
dant’s counsel had a copy of the report years earlier
when he deposed Brosell and that Brosell’s opinion was
not a recent disclosure that disadvantaged the defen-
dant. The court therefore denied the motion in limine
as to Brosell’s opinion that 75 percent of the plaintiff’s
post-traumatic stress disorder was due to the disclosure
of her medical records. At trial, agreed on portions of
Brosell’s deposition testimony were read to the jury
and his treatment records were admitted into evidence
without objection. The report, with agreed on redac-
tions, was submitted into evidence and published to
the jury.
On appeal, the defendant argues that the report should
not have been admitted into evidence because it was
prepared for litigation, was inadmissible hearsay, and
was eight years old. The plaintiff argues that the report
was admissible because it met the requirements of Gen-
eral Statutes § 52-174 (b)18 because Brosell had signed
the report, citing Bruneau v. Seabrook, 84 Conn. App.
667, 854 A.2d 818, cert. denied, 271 Conn. 930, 859 A.2d
583 (2004).
As stated in part I of this opinion, ‘‘evidentiary rulings
will be overturned on appeal only where there was an
abuse of discretion and a showing by the defendant of
substantial prejudice or injustice.’’ (Internal quotation
marks omitted.) Stokes v. Norwich Taxi, LLC, 289
Conn. 465, 489, 958 A.2d 1195 (2008). Our review of
evidentiary rulings is limited to whether ‘‘the trial court
correctly applied the law and reasonably could have
reached the conclusion that it did.’’ (Internal quotation
marks omitted.) S. A. v. D. G., 198 Conn. App. 170, 183,
232 A.3d 1110 (2020).
In Bruneau, the plaintiff, who was injured in a motor
vehicle crash, offered a letter from her treating physi-
cian to her attorney into evidence. Bruneau v. Seabrook,
supra, 84 Conn. App. 668–69. The trial court found that
the letter was signed by the physician, was written on
his letterhead, and was consistent with his treatment
records. Id., 672. On appeal, the defendant claimed that
the court had not properly interpreted § 52-174 (b) when
it admitted the letter into evidence without fulfilling
the business entry requirements of General Statutes
§ 52-180. Id., 670. This court concluded that the trial
court properly had admitted the physician’s letter into
evidence, reasoning that ‘‘[o]ur Supreme Court has set
forth the requirements for a report to be admissible
pursuant to § 52-174 (b). [Section 52-174 (b)] permits
a signed doctor’s report to be admitted as a business
entry. . . . [It] creates a presumption that the doctor’s
signature is genuine and that the report was made in
the ordinary course of business. . . . Thus, once the
statutory requirement that the report be signed by a
treating physician is met, the evidence in that report is
admissible and has the same effect as a business entry.
. . . This statute serves the purpose of getting medical
evidence before the jury in the absence of the treating
physician.’’ (Internal quotation marks omitted.) Id., 671.
Like in Bruneau, Brosell’s report was written on his
stationery and was signed by him. Accordingly, there
is a presumption that it was made in the ordinary course
of business and, therefore, was admissible as a business
entry. Although the defendant claims that there was
insufficient evidence in Brosell’s contemporaneous treat-
ment records to support a claim for future damages, it
does not claim that the report generally is inconsistent
with Brosell’s treatment records. The defendant objected
to the admission of the report because, when deposing
him, counsel chose not to question Brosell about certain
opinions stated in the report. The court found that the
report had been disclosed to the defendant eight years
prior to trial and that the defendant had an opportunity
to depose Brosell. In the intervening years, Brosell
retired and was unable to testify at trial.
The defendant’s claim that Brosell’s report was not
admissible in this case because it was prepared in antici-
pation of litigation is without merit. Although it is true
that such reports may under certain circumstances be
inadmissible under § 52-174 (b) if the objecting party is
not afforded an opportunity to depose or cross-examine
the author at trial; see DeMaria v. Bridgeport, 339 Conn.
477, 492–95, 261 A.3d 696 (2021); the defendant in the
present case was in possession of the report when it
deposed Brosell in 2010 and, therefore, did have an
opportunity to cross-examine Brosell as to all of his
opinions. Under these circumstances, the court did not
abuse its discretion when it admitted Brosell’s report
as a full exhibit with the redactions to which the parties
had agreed. See id., 492–93.
B
The defendant also claims that there was insufficient
evidence for the court to submit the plaintiff’s claim
for future damages to the jury. We do not agree.
‘‘[A] trial court should instruct a jury on [every] issue
for which there is any foundation in the evidence
. . . .’’ (Internal quotation marks omitted.) Wasko v.
Farley, 108 Conn. App. 156, 169, 947 A.2d 978, cert.
denied, 289 Conn. 922, 958 A.2d 155 (2008). To resolve
the defendant’s claim that there was insufficient evi-
dence to submit the plaintiff’s claim for future damages
to the jury, we review the record, including the plead-
ings, the evidence, and the court’s instructions. See,
e.g., Gaudio v. Griffin Health Services Corp., 249 Conn.
523, 532–43, 733 A.2d 197 (1999) (determining whether
court properly denied motion to set aside verdict on
ground of insufficient evidence); Krondes v. Norwalk
Savings Society, 53 Conn. App. 102, 111–17, 728 A.2d
1103 (1999) (determining whether evidence was insuffi-
cient to warrant directed verdict).
The November 3, 2010 operative complaint alleges
in relevant part: ‘‘As a result of [the defendant’s] breach
of its contractual obligations, the plaintiff has suffered
damages including, but not limited to . . . [s]evere
emotional distress, trauma, and anxiety, all of which
[have] physically manifested in the form of headaches,
severe depression, sleeplessness and nausea . . . .’’ At
trial, the plaintiff claimed that the defendant’s release
of her medical records caused her emotional injury in
the immediate aftermath of Mendoza’s harassment and
that she continues to suffer emotional distress. The
court likewise instructed the jury that ‘‘the plaintiff
seeks to recover noneconomic damages for each of
the following type[s] of nonmonetary losses or injuries:
mental and emotional suffering, loss or diminution of
the ability to enjoy life’s pleasures and permanent injury
or loss of function.’’ The court also instructed the jury
as to the plaintiff’s life expectancy. The defendant did
not challenge the court’s instructions.
In arguing that there was not sufficient evidence to
submit the plaintiff’s claim of future damages to the
jury, the defendant contends that the only evidence of
future injuries is reflected in one sentence in Brosell’s
report where he opined that the plaintiff’s post-trau-
matic stress disorder had eased with the passage of
time but that she could experience the symptoms again
‘‘should [she] be again faced with events similar to those
which originally triggered the Posttraumatic Stress Dis-
order symptoms.’’ The defendant argues that damages
for future or ongoing injury are available only on a
showing of reasonable probability, not reasonable pos-
sibility, of the injury occurring and that the single sen-
tence in Brosell’s report was not sufficient to support
a finding of reasonable probability.
In rejecting the defendant’s challenge to the suffi-
ciency of the evidence of the plaintiff’s claim for future
damages, the court noted Brosell’s report, in addition
to the testimony of Michele Reed, a licensed clinical
social worker who treated the plaintiff in 2013,19 and
held that the evidence was sufficient for the court to
instruct the jury on future noneconomic damages. In
addition, the court cited the plaintiff’s testimony in
response to the question as to how she has been dam-
aged by the release of her private health information
by the defendant and its use by Mendoza against her.
The plaintiff testified: ‘‘I mean, it’s hard to describe all
the emotional harm. I mean, it caused a lot of suffering,
a tremendous amount of anxiety and hurt and sadness.’’
Also, she testified that she ‘‘didn’t go for medical care
unless it was absolutely necessary to . . . . I was
afraid that anything would be released, you know—I
didn’t feel—I no longer felt safe as a patient.’’
The court reasoned that, on the basis of the evidence
presented, including the length of time from the admit-
ted negligence of the defendant to the verdict, ‘‘[a] trier
of facts can conclude, by inference, that an injury will be
permanent even though there is no medical testimony
expressly substantiating permanency.’’ Royston v. Fac-
tor, 1 Conn. App. 576, 577, 474 A.2d 108, cert. denied,
194 Conn. 801, 477 A.2d 1021 (1984). ‘‘This principle is
based on the recognition by Connecticut courts that
jurors are able to evaluate for themselves the testimony
of the plaintiff, as well as the nature and duration of
the injury, the likelihood of its continuance into the
future, and the lack of total recovery by the time of
trial. . . . If a jury has the opportunity to appraise the
condition of a plaintiff and its probable future conse-
quence, an award of damages for permanent injury and
for future pain and suffering is proper.’’ (Citations omit-
ted; footnote omitted.) Parker v. Supermarkets General
Corp., 36 Conn. App. 647, 650–51, 652 A.2d 1047 (1995).
The defendant further argues that there is tension
between Brosell’s report and evidence provided by her
other treating physicians. The fact that there was con-
trary evidence in the record, however, is no reason for
the court not to instruct the jury on future noneconomic
damages. Factual disputes are issues for the trier of
fact to determine. See Martinez v. New Haven, 328
Conn. 1, 8, 176 A.3d 531 (2018).
On the basis of our review of the record, we conclude
that the court properly submitted the plaintiff’s claim
for future noneconomic damages to the jury on the
basis of the evidence presented at trial.
C
The defendant also claims that the court abused its
discretion when it denied its request to submit to the
jury interrogatories distinguishing past and future dam-
ages. We disagree.
‘‘The power of the trial court to submit proper inter-
rogatories to the jury, to be answered when returning
[its] verdict, does not depend upon the consent of the
parties or the authority of statute law. In the absence
of any mandatory enactment, it is within the reasonable
discretion of the presiding judge to require or to refuse
to require the jury to answer pertinent interrogatories,
as the proper administration of justice may require.
. . . 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.’’ (Internal
quotation marks omitted.) Wilkins v. Connecticut
Childbirth & Women’s Center, 176 Conn. App. 420, 430,
171 A.3d 88 (2017).
The record discloses that the court charged the jury
on December 5, 2018. During the morning, prior to the
luncheon recess, the court instructed the jury on the
substantive law. The court reserved its instructions
regarding the jury’s duties on retiring for deliberations
until after lunch. After the jury was excused, counsel
for the defendant stated: ‘‘It’s fortunate that we took
that break there. One thing I forgot to mention this
morning is I am requesting a jury interrogatory to sepa-
rate out future and past emotional harm. If I don’t . . .
under a general verdict, I don’t think I can contest the
entry of evidence on future harm.’’ The court reserved
its decision but, following the luncheon recess, denied
the defendant’s interrogatory request.
The court addressed the present claim when ruling
on the defendant’s motion for a new trial and to set
aside the verdict. In its memorandum of decision, the
court noted that the defendant had requested the inter-
rogatory after the court had given the majority of its
charge to the jury. The court cited Practice Book § 16-
22, which requires that ‘‘written requests for jury inter-
rogatories must be filed with the clerk [of the court]
time as the juridical authority directs’’ and found that
the defendant’s request was untimely filed. We agree
with the court that the defendant’s request to submit
an interrogatory regarding damages to the jury was not
timely and, therefore, conclude that the court did not
abuse its discretion by denying the defendant’s request.
III
The defendant finally claims that the court improp-
erly awarded the plaintiff offer of judgment interest by
concluding that the addition of the trustee as a party
plaintiff validated the plaintiff’s April 30, 2009 offer of
judgment as of October 6, 2010, the date on which the
trustee became a party to this action. We disagree.
‘‘The question of whether the trial court properly
awarded interest pursuant to § 52-192a is one of law
subject to de novo review.’’ (Internal quotation marks
omitted.) Birkhamshaw v. Socha, 156 Conn. App. 453,
512, 115 A.3d 1, cert. denied, 317 Conn. 913, 116 A.3d
812 (2015).
The following procedural history is relevant to this
claim. On December 18, 2006, the plaintiff filed a Chap-
ter 7 petition for bankruptcy relief in the United States
Bankruptcy Court for the District of Vermont, and Wol-
insky was appointed trustee of the bankruptcy estate
that same day. On May 23, 2007, the bankruptcy court
granted the trustee’s application to employ special
counsel for the bankruptcy estate to pursue a claim
against the defendant. On October 4, 2007, the plaintiff
alone, not the trustee, commenced the present action.
On April 30, 2009, pursuant to § 52-192a and Practice
Book § 17-14, the plaintiff filed an offer of judgment in
the amount of $50,000. On May 1, 2009, the defendant
filed an objection to the offer of judgment on the
grounds that it was deficient and premature in that the
plaintiff had failed to specify all damages known to her,
to respond to the defendant’s discovery requests for
authorizations and the disclosure of experts, and to
file a certification with the court that the plaintiff had
provided the defendant with all documents supporting
her damages. The defendant’s objection was not adjudi-
cated prior to the time the jury returned its verdict
in 2018.
On September 3, 2010, the plaintiff filed a motion to
add the trustee as a plaintiff pursuant to General Stat-
utes § 52-10820 and Practice Book §§ 9-18 through 9-20.21
On September 17, 2010, the defendant filed a conditional
objection to the motion to add the trustee as a party
plaintiff, noting that a pretrial in the case was scheduled
for October 13, 2010, and trial was scheduled to begin
on October 27, 2010. The defendant stated in its objec-
tion that it did not object to adding the trustee as a party
plaintiff as long as the plaintiff disclosed all relevant
discovery as it pertained to the bankruptcy action and
the current action. The court, Hon. Richard P. Gagli-
ardi, judge trial referee, set the matter down for a
hearing on October 6, 2010, and ordered the plaintiff
to produce any and all documents pertaining to the
bankruptcy. The motion to add the trustee was heard
and granted at the October 6, 2010 hearing.
Following two separate appeals to our Supreme
Court, the trial began in November, 2018. On December
5, 2018, the jury returned a verdict in favor of the plain-
tiff for $853,000 in noneconomic damages.
On December 7, 2018, the defendant filed a supple-
mental memorandum in support of its May 1, 2009
objection to the plaintiff’s offer of judgment. In its sup-
plemental objection, the defendant argued that the offer
of judgment was invalid on its face for failing to comply
with § 52-192a and Practice Book § 17-14A. The defen-
dant further argued that the offer of judgment was not
valid, as our Supreme Court only recently had recog-
nized a cause of action sounding in tort against a health
care provider in the event of an unauthorized disclosure
of confidential information obtained in the course of a
physician-patient relationship. On January 7, 2019, the
plaintiff filed a motion for, inter alia, offer of judgment
interest. On March 7, 2019, the defendant filed an objec-
tion to the plaintiff’s motion for offer of judgment inter-
est, arguing for the first time that the plaintiff’s offer
of judgment was invalid when filed because she was
in bankruptcy at the time and, therefore, lacked stand-
ing to file the offer of judgment. The defendant also
argued, inter alia, that the earliest date on which interest
could accrue was the date on which the trustee was
added.
On July 8, 2019, the court held a hearing on the plain-
tiff’s motion for offer of judgment interest and the defen-
dant’s objection thereto.22 On September 4, 2019, the
court issued an order granting in part the plaintiff’s
motion for offer of judgment interest. In issuing the
order, the court noted that on December 18, 2006, prior
to the commencement of the present action, the plaintiff
had filed for voluntary bankruptcy relief and Wolinsky
had been appointed trustee of her bankruptcy estate.
The trustee, however, was not made a party plaintiff
until October 6, 2010. After concluding that the offer
of judgment satisfied the requirements of § 52-192a, the
court turned to the question of whether and when the
offer of judgment became valid. Relying on our Supreme
Court’s holding in DiLieto v. County Obstetrics & Gyne-
cology Group, P.C., 297 Conn. 105, 998 A.2d 730 (2010),
the court concluded that ‘‘the offer of judgment was
not validated until the bankruptcy trustee was substi-
tuted as a party plaintiff, which occurred on October
6, 2010.’’ As a result, the court awarded the plaintiff
prejudgment interest at the rate of 12 percent, com-
puted from October 6, 2010, the date the trustee was
added as a party plaintiff, and $350 in attorney’s fees.
On appeal, the defendant argues that the court
improperly relied on DiLieto in concluding that the
addition of the trustee as a party plaintiff validated the
plaintiff’s offer of judgment. In DiLieto, our Supreme
Court held that the substitution of the bankruptcy
trustee as the plaintiff retroactively validated the offers
of judgment previously filed by Michelle DiLieto, one
of the original plaintiffs, as of the date of substitution,
such that interest began to accrue as of that date.
DiLieto v. County Obstetrics & Gynecology Group,
P.C., supra, 297 Conn. 111. In so holding, the court
acknowledged that ‘‘DiLieto’s offers of judgment were
invalid at the time she tendered them because . . .
the cause of action belonged to her bankruptcy estate.
Thus, if the defendants had attempted to accept the
offers within thirty days, in the normal course, they
would not have been binding on [the trustee], and, con-
sequently, they would not necessarily have served to
settle the action.’’ Id., 154. The court nevertheless held
that ‘‘interpreting [General Statutes] §§ 52-10923 and 52-
192a to relieve the defendants altogether of their obliga-
tion to pay offer of judgment interest would result in
a windfall for them and, at the same time, unfairly
penalize [the trustee], in contravention of both the puni-
tive purposes of § 52-192a . . . and the remedial pur-
poses of § 52-109.’’ (Citation omitted; footnote added.)
Id., 159.
Like DiLieto, the plaintiff in the present case errone-
ously filed this action on her own, without the trustee,
and tendered an offer of judgment prior to the trustee’s
joinder in the case. As in DiLieto, the enforcement of
the offer of judgment in the present case resulted in no
actual prejudice to the defendant, who made a strategic
decision not to accept the offer. See id., 158. Therefore,
the present case is procedurally indistinguishable from
DiLieto, and the punitive and remedial statutory pur-
poses cited by our Supreme Court in DiLieto apply
equally here.24 The defendant does not argue to the
contrary.
Indeed, at the July 8, 2019 hearing on the plaintiff’s
motion for offer of judgment interest and the defen-
dant’s objection to that motion, the defendant acknowl-
edged that DiLieto resolved this issue in that a pre-
viously tendered invalid offer of judgment is ‘‘resurrected’’
when the trustee is added as a party to the action.
Although counsel for the defendant posited that the
court in DiLieto failed to consider the necessity of
obtaining approval from the bankruptcy court for the
trustee to settle a claim, he acknowledged to the trial
court that it was bound to follow the holding of DiLieto.25
Despite its explicit agreement with the trial court
that DiLieto was dispositive of this issue and that the
court was bound to follow it, the defendant now argues
that the trial court incorrectly relied on DiLieto in the
present case in that it ‘‘ignored the second part of
DiLieto’s holding and improperly applied the fact spe-
cific, first impression outcome in DiLieto to a ‘future
case,’ contrary to DiLieto’s clear instruction.’’ In so
arguing, the defendant is referring to footnote 47 in
DiLieto, in which the court stated: ‘‘To avoid any possi-
ble confusion in future cases . . . a party that is substi-
tuted as a plaintiff under § 52-109 shall either repudiate
the original offer of judgment upon substitution, refile
that original offer of judgment, or file a new offer of
judgment, at that substituted plaintiff’s discretion. It is
true, of course, that, as a general matter, a plaintiff is
permitted to file only one offer of judgment, which may
be refiled in the same amount as many times as he or
she chooses. . . . When, as in the present case, how-
ever, an offer of judgment has been filed by the original
plaintiff and, thereafter, a new plaintiff is substituted
into the case, we see no reason why the substituted
plaintiff should be precluded from filing a new offer
of judgment when that original offer of judgment was
invalid when filed; in addition, the correct plaintiff
should not be denied the opportunity to file his own
offer of judgment, unfettered by the offer filed by the
incorrect plaintiff. Finally, we note that, in light of the
issues raised by our resolution of this claim, the legisla-
ture and the rules committee of the Superior Court may
wish to clarify the procedures applicable to offers of
judgment when a plaintiff is substituted for the original
plaintiff under § 52-109.’’26 (Citations omitted.) DiLieto
v. County Obstetrics & Gynecology Group, P.C., supra,
297 Conn. 159 n.47.
At no point throughout the lengthy pendency of this
case before the trial court, did the defendant assert this
argument, and, as noted in the preceding paragraphs,
counsel for the defendant actually agreed, as do we,
that, pursuant to DiLieto, the offer of judgment filed
by the plaintiff was validated upon the addition of the
trustee as a party plaintiff.27 ‘‘It is a well settled principle
of appellate review that a party cannot invite a trial
court to take a position and then, after the court has
adopted that position, claim error. This is because, if
we were to endorse such behavior, we effectively would
be sanctioning trial by ambush, which we have repeat-
edly stated we will not allow. [A] party cannot take a
path at trial and change tactics on appeal.’’ (Internal
quotation marks omitted.) In re David B., 167 Conn.
App. 428, 444, 142 A.3d 1277 (2016).
Even if the defendant had argued to the trial court
that DiLieto does not apply to the present case because
of the court’s directive in footnote 47; see DiLieto v.
County Obstetrics & Gynecology Group, P.C., supra,
297 Conn. 159 n.47; its reliance on footnote 47 is mis-
placed. Because that footnote is not necessary to the
resolution of the claim presented in DiLieto, it is dictum
on which we may not rely in resolving the claim pre-
sented in the present case. See State v. Torres, 85 Conn.
App. 303, 320, 858 A.2d 776 (‘‘Dictum is generally
defined as [a]n expression in an opinion which is not
necessary to support the decision reached by the court.
. . . A statement in an opinion with respect to a matter
which is not an issue necessary for decision. . . . Our
Supreme Court has instructed that dicta have no prece-
dential value.’’ (Citation omitted; internal quotation
marks omitted.)), cert. denied, 271 Conn. 947, 861 A.2d
1179 (2004).
Additionally, the defendant’s proposed interpretation
of footnote 47 is inconsistent with the court’s holding
in DiLieto, in that it suggests that the trustee must take
some affirmative action to validate an offer of judgment
that was filed prior to the trustee’s addition to the case,
whereas DiLieto holds that the previously filed offer of
judgment is validated on the trustee’s joinder. DiLieto
v. County Obstetrics & Gynecology Group, P.C., supra,
297 Conn. 145, 159 n.47. The dissonance between the
footnote and the holding of the court is further under-
scored by the language in the footnote suggesting that
a trustee may repudiate an offer of judgment that was
filed before he or she was brought into the case, which
presupposes the validity of that offer of judgment. See
id. The holding in DiLieto clearly rejected the notion
that an offer of judgment filed prior to the joinder of
the proper plaintiff was valid. Id., 154. Accordingly, any
reliance on footnote 47 would constitute a departure
from the principles of stare decisis. See Sepega v.
DeLaura, 326 Conn. 788, 798–99 n.5, 167 A.3d 916 (2017)
(‘‘While stare decisis is not an inexorable command
. . . the doctrine carries such persuasive force that we
have always required a departure from precedent to
be supported by some special justification. . . . Such
justifications include the advent of subsequent changes
or development in the law that undermine[s] a deci-
sion’s rationale . . . the need to bring [a decision] into
agreement with experience and with facts newly ascer-
tained . . . and a showing that a particular precedent
has become a detriment to coherence and consistency
in the law . . . .’’ (Citation omitted; internal quotation
marks omitted.)). Moreover, the court did not, in foot-
note 47, state that in future cases the substitution of a
party would not validate a previously filed invalid offer
of judgment. See DiLieto v. County Obstetrics & Gyne-
cology Group, P.C., supra, 159 n.47. We therefore reject
the defendant’s invitation to interpret footnote 47 in a
manner that would require us to depart from the princi-
ples of stare decisis. Instead, we interpret the footnote
as a direction, rather than a mandatory requirement,
to parties to take steps to avoid the uncertainty and
confusion that might otherwise result if a substituted
party fails to take some affirmative action with respect
to a previously filed offer of judgment. That interpreta-
tion is consistent with the court’s further invitation to
‘‘the legislature and the rules committee of the Superior
Court . . . to clarify the procedures applicable to
offers of judgment when a plaintiff is substituted for
the original plaintiff under § 52-109.’’ Id.
Finally, since DiLieto was decided, neither the legis-
lature nor the rules committee of the Superior Court has
amended the statutes or rules governing the procedures
applicable to offers of judgment when a bankruptcy
trustee is substituted as a party plaintiff under § 52-
109. ‘‘[T]he doctrine of stare decisis and the tenet[s] of
statutory interpretation . . . [caution] against overrul-
ing case law involving our construction of a statute,
if the legislature reasonably may be deemed to have
acquiesced in that construction . . . .’’ Peek v. Man-
chester Memorial Hospital, 342 Conn. 103, 125–26, 269
A.3d 24 (2022). ‘‘[T]he legislature is presumed to be
aware of the [courts’] interpretation of a statute and
. . . its subsequent nonaction may be understood as a
validation of that interpretation . . . .’’ (Internal quota-
tion marks omitted.) Dairyland Ins. Co. v. Mitchell,
320 Conn. 205, 215, 128 A.3d 931 (2016). Because neither
the legislature nor the rules committee has taken any
action to clarify or modify the procedures at issue,
despite our Supreme Court’s express suggestion that
they do so, we presume that the legislature approved
of our Supreme Court’s holding in DiLieto, and the trial
court properly followed it.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Pursuant to a bankruptcy petition filed by the plaintiff in 2006, the
bankruptcy trustee, Douglas J. Wolinsky, was made a party plaintiff in
2010. In this opinion, we refer to Byrne as the plaintiff and to Wolinsky as
the trustee.
2
General Statutes (Rev. to 2005) § 52-192a provides in relevant part: ‘‘(a)
After commencement of any civil action based upon contract or seeking
the recovery of money damages, whether or not other relief is sought, the
plaintiff may, not later than thirty days before trial, file with the clerk of
the court a written ‘offer of judgment’ signed by the plaintiff or the plaintiff’s
attorney, directed to the defendant or the defendant’s attorney, offering to
settle the claim underlying the action and to stipulate to a judgment for a
sum certain. . . . Within sixty days after being notified of the filing of the
‘offer of judgment’ and prior to the rendering of a verdict by the jury or an
award by the court, the defendant or the defendant’s attorney may file with
the clerk of the court a written ‘acceptance of offer of judgment’ agreeing
to a stipulation for judgment as contained in plaintiff’s ‘offer of judgment’.
Upon such filing, the clerk shall enter judgment immediately on the stipula-
tion. If the ‘offer of judgment’ is not accepted within sixty days and prior
to the rendering of a verdict by the jury or an award by the court, the ‘offer
of judgment’ shall be considered rejected and not subject to acceptance
unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of
judgment’ shall be included by the clerk in the record of the case.
‘‘(b) After trial the court shall examine the record to determine whether
the plaintiff made an ‘offer of judgment’ which the defendant failed to accept.
If the court ascertains from the record that the plaintiff has recovered an
amount equal to or greater than the sum certain stated in the plaintiff’s
‘offer of judgment’, the court shall add to the amount so recovered twelve
per cent annual interest on said amount, computed from the date such offer
was filed in actions commenced before October 1, 1981. In those actions
commenced on or after October 1, 1981, the interest shall be computed
from the date the complaint in the civil action was filed with the court if
the ‘offer of judgment’ was filed not later than eighteen months from the
filing of such complaint. If such offer was filed later than eighteen months
from the date of filing of the complaint, the interest shall be computed from
the date the ‘offer of judgment’ was filed. The court may award reasonable
attorney’s fees in an amount not to exceed three hundred fifty dollars, and
shall render judgment accordingly. . . .’’
General Statutes (Rev. to 2005) § 52-192a was the subject of subsequent
amendments in 2005, 2007 and 2011, none of which is applicable to the
present case. See Public Acts 2011, No. 11-77, § 1; Public Acts 2007, No. 07-
141, § 16; Public Acts 2005, No. 05-275, § 4. Of note, the 2005 amendment
substitutes the term ‘‘offer of compromise’’ for the term ‘‘offer of judgment.’’
Public Act 05-275. The 2005 amendment, however, is applicable to actions
accruing on or after October 1, 2005, the date that the amendment took
effect. Public Act 05-275. The plaintiff’s cause of action in this case accrued
prior to that date. We therefore refer to the offers in the present case as
offers of judgment in accordance with the applicable statutory language.
All references to § 52-192a throughout this opinion are to the 2005 revision.
3
‘‘We note that the operative complaint in the present case alleges that
the plaintiff discovered she was pregnant around the same time she termi-
nated her relationship with Mendoza.’’ Byrne v. Avery Center for Obstet-
rics & Gynecology, P.C., supra, 314 Conn. 437 n.4.
4
‘‘We also note that, according to the operative complaint, Mendoza has
utilized the information contained within these records to file numerous
civil actions, including paternity and visitation actions, against the plaintiff,
her attorney, her father and her father’s employer, and to threaten her with
criminal charges.’’ Byrne v. Avery Center for Obstetrics & Gynecology, P.C.,
supra, 314 Conn. 437 n.5.
5
General Statutes § 52-146o provides in relevant part: ‘‘(a) Except as
provided in sections 52-146c to 52-146j, inclusive, sections 52-146p, 52-146q
and 52-146s, and subsection (b) of this section, in any civil action or any
proceeding preliminary thereto or in any probate, legislative or administra-
tive proceeding, a physician or surgeon, licensed pursuant to section 20-9, or
other licensed health care provider, shall not disclose (1) any communication
made to him or her by, or any information obtained by him or her from, a
patient or the conservator or guardian of a patient with respect to any actual
or supposed physical or mental disease or disorder, or (2) any information
obtained by personal examination of a patient, unless the patient or that
patient’s authorized representative explicitly consents to such disclosure.
. . .’’ (Emphasis added.)
We note that the legislature made certain changes to § 52-146o subsequent
to 2005 that are not relevant to the present appeal. See Public Acts 2013,
No. 13-208, § 63; Public Acts 2011, No. 11-129, § 20. For the sake of simplicity,
all references to § 52-146o within this opinion are to the current revision
of the statute.
6
The plaintiff withdrew her claim of negligent misrepresentation
before trial.
7
After the parties had conducted discovery, they filed cross motions for
summary judgment. The defendant’s motion for summary judgment
addressed all four counts of the complaint. On April 7, 2011, the trial court,
Hon. Richard P. Gilardi, judge trial referee, denied the defendant’s motion
for summary judgment with respect to the breach of contract and negligent
misrepresentation counts because there were genuine issues of material
fact. Byrne v. Avery Center for Obstetrics & Gynecology, P.C., 327 Conn.
540, 547, 175 A.3d 1 (2018). With regard to the negligence and negligent
infliction of emotion distress counts, the court treated the motion for sum-
mary judgment as a motion to dismiss. Id., 544. The court agreed with the
defendant that HIPAA does not provide a private cause of action and that
HIPAA, therefore, preempted any Connecticut common-law action dealing
with the confidentiality/privacy of medical information. Id., 544–45. The
court dismissed those counts. Id., 547. The plaintiff appealed. See Byrne v.
Avery Center for Obstetrics & Gynecology, P.C., supra, 314 Conn. 436 n.3
(permission to appeal).
On appeal, our Supreme Court reversed the judgment of dismissal, con-
cluding that, ‘‘if Connecticut’s common law recognizes claims arising from
a health care provider’s alleged breach of its duty of confidentiality in
the course of complying with a subpoena, HIPAA and its implementing
regulations do not preempt such claims. . . . HIPAA and its implementing
regulations may be utilized to inform the standard of care applicable to
such claims arising from allegations of negligence in the disclosure of
patients’ medical records pursuant to a subpoena.’’ Id., 458–59. The court
remanded the case for further proceedings. Id., 463.
On remand, the defendant filed another motion for summary judgment
with respect to the negligence and negligent infliction of emotional distress
counts of the complaint on the ground that ‘‘no Connecticut court had ever
recognized a common-law cause of action against a health care provider
for breach of its duty of confidentiality’’ in responding to a subpoena. Byrne
v. Avery Center for Obstetrics & Gynecology, P.C., supra, 327 Conn. 548.
The trial court, Arnold, J., agreed with the defendant that no Connecticut
court had recognized a common-law privilege for communications between
a patient and physicians and that recognition of such a cause of action is
best addressed by the state’s appellate courts or the legislature. Id. The
plaintiff appealed once more. See id., 541 n.2 (permission to appeal).
Our Supreme Court framed the issue on appeal as ‘‘whether a patient has
a civil remedy against a physician if that physician, without the patient’s
consent, discloses confidential information obtained in the course of the
physician-patient relationship.’’ (Emphasis added.) Id., 550. The court recog-
nized that ‘‘ ‘[t]he principle of confidentiality lies at the heart of the physician-
patient relationship,’ ’’ that ‘‘a cause of action for the breach of the duty of
confidentiality in the physician-patient relationship by the disclosure of
medical information is not barred by § 52-146o or HIPAA and that public
policy, as viewed in a majority of other jurisdictions that have addressed
the issue, supports that recognition.’’ Id. The court reversed the judgment
and again remanded the case for further proceedings. Id., 573.
8
We note that the defendant did not file any special defenses to the
plaintiff’s complaint; nor did it serve an apportionment complaint on any
third party.
9
The plaintiff did not claim economic damages.
10
Killian testified that Probate Courts are to handle medical records pursu-
ant to General Statutes § 45a-98b. General Statutes § 45a-98b provides in
relevant part: ‘‘In any proceeding before a court of probate, the court may
issue an order for the disclosure of medical information relevant to the
determination of the matter before the court. . . . Any such medical infor-
mation filed with the court shall be confidential.’’
11
Counsel for the defendant asked the court for clarification of its ruling.
The following colloquy transpired:
‘‘[The Defendant’s Counsel]: I don’t understand . . . part of your holding
words said not specific to this case. . . . I just want clarification on that.
***
I’m going to ask him in general if . . . there was a policy of a court to get
the records and simply put them into the file, generally speaking, would
that be a good—
‘‘The Court: He did not testify to that. He testified . . . we’re going to
testify as to the Probate Court procedures in general. . . . [H]e’s testified
to the fact that the Probate Court procedure is X. . . . And you’re asking
him, if you don’t do that, then you’re not following the procedure. It’s implied.
I’m not going to allow it in. . . . You’re asking him to draw a conclusion
that something . . . that he’s already laid the fact.’’
12
The court instructed the jury that the next witness was Killian, ‘‘a retired
probate judge that will testify as to certain Probate Court . . . procedures
in general. He is offered by the defense only to provide testimony as to the
cause of the plaintiff’s injuries. I remind you that the . . . Children’s [Pro-
bate] Court and its staff are not parties to this action and are not liable to
the plaintiff [for] any of her damages claimed in this action. The defendant
has admitted liability. The testimony is being offered only on the issue of
proximate cause. I will instruct you further on proximate cause when I
instruct you on the applicable law at the end of the case.’’
13
The plaintiff does not dispute that Killian is an expert on Probate Court
procedures.
14
Killian testified that he had been a Probate Court judge for more than
thirty years and had heard approximately 50,000 cases, including approxi-
mately 10,000 cases dealing with children and paternity matters. In addition,
Killian had been a member of the Probate Assembly, a statutory body to
which all probate judges are members, and had been a member of the
executive committee of the Probate Assembly for approximately twenty-
five years. At the time of trial, he was still a member of the Probate Court
Rules Committee. All probate judges are subject to the continuing education
requirements of the Probate Assembly, which include education about how
a probate clerk is to handle confidential documents that are submitted to
the Probate Court.
15
Although the defendant states in its brief that it is not claiming instruc-
tional error, it argues that the wording of the court’s instruction was confus-
ing, which made the court’s limitation on Killian’s testimony more harmful
because it hindered the defendant’s proximate cause defense. The defendant
asserts that the court preliminarily had instructed the jury that the defendant
had admitted liability and that Killian’s testimony was being offered only
on the issue of proximate cause. The defendant argues, however, that it did
not admit liability; it admitted only that it was negligent, citing Lodge v.
Arett Sales Corp., 246 Conn. 563, 578, 717 A.2d 215 (1998), for the proposition
that a negligent act, if not the proximate cause of the injury, does not impose
legal liability on an actor.
The time for the defendant to raise this argument has passed. The defen-
dant did not take exception to the court’s instruction when the court could
have cured the purported instructional confusion. See Mauro v. Yale-New
Haven Hospital, 31 Conn. App. 584, 592, 627 A.2d 443 (1993) (reason for
taking exceptions to charge is to alert court to possible error at time when
court can correct it).
The defendant also argues, again without claiming instructional error,
that the court failed to give the requested instruction that ‘‘ ‘each party has
a right to assume, until he has reason to believe otherwise, that other actors
will obey the rules of law and act reasonably and properly,’ ’’ and its position
in the present case is that it expected the Children’s Probate Court to
handle the plaintiff’s records properly. The defendant presented no evidence,
however, that it was familiar with Probate Court practices or procedures
concerning medical records when it sent the plaintiff’s medical records to
the Children’s Probate Court.
16
The plaintiff argues that our review of the defendant’s challenge to the
jury’s verdict for future damages is barred by the general verdict rule.
Because we affirm all of the court’s challenged rulings concerning future
damages, we need not decide whether the defendant’s untimely request for
a jury interrogatory to distinguish the jury’s verdict between past and future
damages constitutes a proper request for a jury interrogatory that would
preclude the application of the general verdict rule in this case. See Garcia
v. Cohen, 335 Conn. 3, 12, 225 A.3d 653 (2020) (‘‘ ‘where the court has denied
a proper request for interrogatories . . . the general verdict rule does not
apply so as to preclude appellate review of error relating to any ground
upon which the jury may have rested its verdict and to which an appropriate
interrogatory has been directed’ ’’).
17
Brosell’s report stated in relevant part: ‘‘In this client’s case, there [was]
a long series of traumatic episodes (the filing of court cases, the sending
of e-mails to various people associated with the client, the placing of a
notice in the local newspaper, etc.) which had a cumulative effect upon the
client. As these events subsided, the client reported some gradual easing
of the anxiety related symptoms. When faced again with the evidence of
these events having happened, there was again a rise in the symptoms. My
expectation is that this pattern will continue, should the client be again
faced with events similar to those which originally triggered the Posttrau-
matic Stress Disorder symptoms. I would also expect that, over time, there
would be a gain in mastery over the anxiety reactions and a better ability
to sense some control over events. I am not qualified to predict the existence
and extent of a permanent disability beyond that. . . .
‘‘Causal connection between the incident that is the subject of the lawsuit
(Emily Byrne v. Avery Center for Obstetrics & Gynecology, P.C.) and [the
plaintiff’s] diagnosis
As stated above, in this case there was a series of traumatic episodes which
had a cumulative effect upon the client and resulted in the development of
Posttraumatic Stress Disorder. The incident which is the subject of this
lawsuit is one of these. As such it played a significant part in the development
of the client’s symptoms of Posttraumatic Stress Disorder. What is significant
about this particular incident is that it placed in the hands of a person who
was engaging in a series of legal actions and other traumatizing actions
against the client information which was felt by the client to be shaming,
humiliating, and damaging to the client’s reputation. This information was
used by the person to whom the information was released in ways which
the client experienced as traumatizing. As such it was the event that precipi-
tated the client’s seeking treatment. It is my opinion, based on a reasonable
degree of medical certainty, that the release of the client’s medical records
was responsible for 75 [percent] of the client’s experience of trauma and
the development of Posttraumatic Stress Disorder.’’
18
General Statutes § 52-174 (b) provides in relevant part: ‘‘In all actions
for the recovery of damages for personal injuries . . . any party offering
in evidence a signed report . . . for treatment of any treating . . . psychol-
ogist . . . may have the report . . . admitted into evidence as a business
entry and it shall be presumed that the signature on the report is that of
such treating . . . psychologist . . . and that the report . . . [was] made
in the ordinary course of business. . . .’’
19
Reed was deposed and her testimony was read to the jury. Reed testified
in part that the plaintiff was ‘‘worrying chronically and [experienced] lots
of obsessive thinking.’’ According to Reed, her symptoms were consistent
with general anxiety disorder and post-traumatic stress disorder. With
respect to ‘‘the post-traumatic stress disorder . . . she would have bad
dreams and she also would avoid . . . if the lawyer called, if there was
anything about lawyers in connection with this happening, she would want
to avoid [that] because the anxiety would be incredible for her . . . .’’ Reed
also described how, in the plaintiff’s mind, the disclosure of her private
health information became linked with her past trauma.
20
General Statutes § 52-108 provides: ‘‘An action shall not be defeated by
the nonjoinder or misjoinder of parties. New parties may be added and
summoned in, and parties misjoined may be dropped, by order of the court,
at any state of the action, as the court deems the interests of justice require.’’
21
Practice Book § 9-18 provides: ‘‘The judicial authority may determine
the controversy as between the parties before it, if it can do so without
prejudice to the rights of others; but, if a complete determination cannot
be had without the presence of other parties, the judicial authority may
direct that they be brought in. If a person not a party has an interest or title
which the judgment will affect, the judicial authority, on its motion, shall
direct that person to be made a party. (See General Statutes § 52-107 and
annotations.)’’
Practice Book § 19-19 provides: ‘‘Except as provided in Sections 10-44
and 11-3 no action shall be defeated by the nonjoinder or misjoinder of
parties. New parties may be added and summoned in, and parties misjoined
may be dropped, by order of the judicial authority, at any stage of the cause,
as it deems the interests of justice require. (See General Statutes § 52-108
and annotations.)’’
Practice Book § 19-20 provides: ‘‘When any action has been commenced
in the name of the wrong person as plaintiff, the judicial authority may, if
satisfied that it was so commenced through mistake and that it is necessary
for the determination of the real matter in dispute so to do, allow any other
person to be substituted or added as plaintiff. (See General Statutes § 52-
109 and annotations.)’’
22
The defendant had filed additional postverdict motions that also were
heard on that date, but they are not relevant to the issue before us.
23
General Statutes § 52-109 provides: ‘‘When any action has been com-
menced in the name of the wrong person as plaintiff, the court may, if
satisfied that it was so commenced through mistake, and that it is necessary
for the determination of the real matter in dispute so to do, allow any other
person to be substituted or added as plaintiff.’’
24
The defendant concedes, and we agree, that the substitution of the
bankruptcy trustee as a party plaintiff in DiLieto, versus the addition of the
trustee in the present case, does not distinguish the present case from
DiLieto. In support of that position, the defendant cites Fairfield Merritt-
view Ltd. Partnership v. Norwalk, 320 Conn. 535, 133 A.3d 140 (2016), for
the proposition that the addition or substitution of the trustee is permissible,
in that either serves the same function of saving ‘‘an action [that] was
commenced in the name of the wrong party, instead of the real party in
interest, whose presence is required for a determination of the matter in
dispute.’’ Id., 553. Our Supreme Court noted that the substitution or addition
of parties is discretionary and intimated that they may be used interchange-
ably to achieve the desired remedial goal of ensuring that the proper parties
are brought into the action. Id., 555 n.23. This court has explained: ‘‘Our
rules of practice . . . permit the substitution of parties as the interests of
justice require. General Statutes §§ 52-108, 52-109; Practice Book §§ [9-19
and 9-20] . . . . These rules are to be construed so as to alter the harsh
and inefficient result that attached to the mispleading of parties at common
law. . . . [Section] 52-108 and Practice Book § [9-19] provide that no action
shall be defeated by the nonjoinder or misjoinder of parties. [Section] 52-
109 and Practice Book § [9-20] allow a substituted plaintiff to enter a case
[w]hen any action has been commenced in the name of the wrong person
as plaintiff . . . . Both rules, of necessity, relate back to and correct, retro-
actively, any defect in a prior pleading concerning the identity of the real
party in interest. In the context of analogous rules of federal civil procedure,
it has been observed that [w]here the change is made on the plaintiff’s side
to supply an indispensable party or to correct a mistake in ascertaining the
real party in interest, in order to pursue effectively the original claim, the
defendant will rarely be unfairly prejudiced by letting the amendment relate
back to the original pleading. . . . As long as [the] defendant is fully
apprised of a claim arising from specified conduct and has prepared to
defend the action, his ability to protect himself will not be prejudicially
affected if a new plaintiff is added . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Federal Deposit Ins. Corp. v. Retirement Management
Group, Inc., 31 Conn. App. 80, 84–85, 623 A.2d 517, cert. denied, 226 Conn.
908, 625 A.2d 1378 (1993).
25
At the July 8, 2019 hearing, the defendant began its opposition to the
plaintiff’s motion for offer of judgment interest by arguing that the offer of
judgment was invalid because the trustee was not a party to the case when
it was filed. In response to that argument, the court asked: ‘‘[D]oes DiLieto
then take care of that, once the trustee’s appointed?’’ Counsel for the defen-
dant acknowledged: ‘‘If you have an offer of judgment that’s invalid, it can
be resurrected when it becomes valid. So when the trustee is appointed
. . . it would relate to the date of the order granting the adding of the
trustee as a party.’’ Counsel for the defendant proceeded to argue that
DiLieto failed to consider the fact that the trustee needs approval from the
bankruptcy court to settle a case, and, therefore, the acceptance of an offer
of judgment could not immediately settle a case as required by § 52-192a.
Counsel for the defendant told the court, however: ‘‘I think if you follow
DiLieto, which I think Your Honor has to follow, DiLieto says that you
can—you can have an otherwise invalid offer of judgment . . . [and] once
it becomes valid, it becomes valid. I still think there’s a practical issue on
how . . . it gets accepted under those circumstances. But clearly nobody
accepted it under these circumstances.’’
26
We note that this is the sole basis of the defendant’s challenge to the
trial court’s adherence to DiLieto in this case. The defendant does not
contend that DiLieto is legally or procedurally distinguishable from this case.
27
The defendant also argues that interest on the offer of judgment should
not have commenced until January, 2018, because, prior to that date, there
did not exist a private cause of action for a violation of patient confidentiality.
The defendant asserted this same argument before the trial court, but the
trial court did not address it and the defendant, thereafter, did not seek an
articulation of the court’s silence on that claim. Because ‘‘[t]his court is
unable to review claims that were not expressly addressed by the trial
court’’; Miller v. Miller, 124 Conn. App. 36, 40, 3 A.3d 1018 (2010); it is not
properly before us now. We further note that, because ‘‘[a]n offer of judgment
is an offer to settle the entire case, including claims both known and
unknown, and both certain and uncertain’’; (internal quotation marks omit-
ted) Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn.
708, 750, 687 A.2d 506 (1997); the defendant’s claim that offer of judgment
interest could not begin to run until our Supreme Court recognized the
plaintiff’s cause of action is unavailing.