Holmes v. Hartford Hospital , 147 Conn. App. 713 ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
EDITH HOLMES, ADMINISTRATRIX (ESTATE OF
ARNOLD F. HOLMES) v. HARTFORD HOSPITAL
(AC 30979)
Sheldon, Keller and West, Js.
Argued September 26, 2013—officially released January 28, 2014
(Appeal from Superior Court, judicial district of
Hartford, Aurigemma, J.)
Neil Johnson, for the appellant (substitute plaintiff).
Michael G. Rigg, with whom, on the brief, were
Robert D. Silva and Claire V. Morgan, for the appel-
lee (defendant).
Opinion
WEST, J. In this medical malpractice action, the plain-
tiff, Edith Holmes,1 in her capacity as administratrix of
the estate of Arnold F. Holmes (decedent), appeals from
the judgment of the trial court rendered in favor of
the defendant, Hartford Hospital, following a jury trial.
Specifically, the plaintiff claims that the trial court
improperly (1) denied her motion to set aside the ver-
dict; (2) denied her motion for a new trial; and (3)
ordered her to pay the defendant’s expert witness fees.
We affirm the court’s judgment as to the plaintiff’s first
two claims, and affirm in part and reverse in part the
judgment as to the plaintiff’s third claim.
The following facts and procedural history are rele-
vant to our review. On February 8, 2007, the plaintiff
served a complaint against the defendant claiming medi-
cal malpractice. Thereafter, on March 3, 2009, the plain-
tiff filed an amended complaint alleging that the
defendant breached the standard of care owed to the
decedent, by failing to provide him proper treatment
following his cyst gastronomy. Specifically, she alleged
that, after the decedent’s surgical procedure, the defen-
dant negligently transferred the decedent from the pro-
cedure suite to the recovery room and another unit of
the hospital without monitoring him or providing him
oxygen. The plaintiff also alleged that, as a result of the
defendant’s negligence, the decedent suffered cardiac
arrest that went undetected for twenty minutes. By
the time the defendant resuscitated and intubated the
decedent, he had suffered neurological deterioration
and respiratory failure, causing him to die approxi-
mately two weeks later.
In its answer, filed on March 5, 2009, the defendant
denied the allegations that it violated the standard of
care. In anticipation of trial, the parties conducted dis-
covery and, in accordance with Practice Book § 13-4,
filed expert witness disclosures. In mid-December,
2008, the defendant deposed the plaintiff’s expert wit-
nesses, David Crippen and Donna Querim, regarding
whether the defendant comported with the nursing
standard of care. In late January, 2009, the plaintiff
deposed the defendant’s expert witnesses, including
Steven Angelo, Peter Schulman, David Pleet, and Anne
Holland. A jury trial began on February 23, 2009, and,
on March 6, 2009, the jury entered its verdict in favor
of the defendant. This appeal followed. Additional facts
will be set forth as they pertain to each claim.
I
The plaintiff first claims that the court improperly
denied the plaintiff’s motion to set aside the verdict,
which motion was predicated on the court’s improper
evidentiary rulings limiting the testimony of the plain-
tiff’s experts as to the defendant’s analgesic policy. We
disagree. The following facts are relevant to our review
of this claim.
In late August, 2008, the plaintiff sent the defendant
an informal request for copies of any policies related
to the transfer of patients. The defendant responded to
this request by letter, dated September 12, 2008. The
defendant’s response did not, however, include the
defendant’s analgesic policy, which pertains to the care
of patients who are moderately sedated during medical
procedures. The plaintiff first learned of the analgesic
policy while deposing Angelo in late January of 2009.
On January 30, 2009, the plaintiff obtained a copy of the
policy during Schulman’s deposition, and subsequently
sent it to her experts, Querim, a registered nurse, and
Crippen, a critical care physician, to review before trial.
On the basis of their review, both Querim and Crippen
formulated new opinions that conflicted with their
deposition testimony. They determined that the defen-
dant breached the standard of care by transferring the
decedent to an unmonitored unit while his condition
was unstable. The plaintiff did not amend her expert
disclosures to reflect these new opinions or to identify
the analgesic policy as a potential source of the experts’
testimony. See Practice Book § 13-4 (b) (1).
The trial began on February 23, 2009, on which date
the defendant filed a motion in limine to preclude the
plaintiff’s experts from testifying about alleged viola-
tions of the defendant’s policies. In support of its
motion, the defendant argued that a hospital’s policies,
as a matter of law, do not establish the standard of care
because they may impose a level of care that differs
from the national standard. See General Statutes § 52-
184c (a); Smith v. Andrews, 289 Conn. 61, 69, 959 A.2d
597 (2008) (Connecticut follows national standard of
care). Accordingly, the defendant argued that there was
a high risk that the jury would conflate the policies
with the standard of care in reaching its verdict. The
plaintiff filed an objection to the defendant’s motion in
limine, and a hearing was held on February 25, 2009.
Although the court orally denied the defendant’s
motion, it stated that the admissibility of the policies
would be contingent upon the plaintiff demonstrating
that they were equivalent to the applicable standard
of care.
Consistent with this ruling, Querim testified at trial
that the defendant’s analgesic policy comported with
the standard of care and, consequently, the court admit-
ted it into evidence. Querim opined that, on the basis
of her review of the analgesic policy and the anesthesia
flow sheet, the decedent’s vital signs were unstable
while he was in the recovery room. Therefore, she testi-
fied, the defendant violated the standard of care when
the recovery room nurses transferred the decedent to
an unmonitored unit before his condition stabilized. On
cross-examination, the defendant impeached Querim’s
credibility with her deposition testimony, wherein she
had stated that the decedent’s vital signs were stable
while he was in the recovery room.
On direct examination, Crippen testified that, follow-
ing his deposition, he reviewed additional records that
altered his opinion as to whether the defendant had
violated the standard of care. Consequently, the court
issued a sua sponte side bar ruling precluding Crippen
from testifying as to any opinions formed after his depo-
sition. The jury entered its verdict in favor of the defen-
dant on March 6, 2009. On March 16, 2009, the plaintiff
moved to set aside the verdict, arguing that the court
had improperly precluded the plaintiff’s experts from
testifying about the analgesic policy. The plaintiff
argued that without the analgesic policy, she could not
satisfy her burden of proof.
At a hearing on March 23, 2009, the court denied the
plaintiff’s motion to set aside the verdict, stating: ‘‘[T]he
policy of a hospital is not equal to the standard of care.
If a hospital wants to adopt a policy which requires a
higher level of care, [it’s] free to do so, but if [it violates]
that policy, that doesn’t mean [it] violated the standard
of care. It defies logic to think that two medical profes-
sionals [Querim and Crippen] could have their opinions
changed as to whether or not . . . the decedent . . .
was stable . . . before seeing the policy, based pre-
sumably on their knowledge of the standard of care,
and then, say [he] was wildly unstable after [seeing]
the policy. . . . [T]he bottom line is that these two
medical professionals said that [the decedent] was quite
stable when they were deposed and then changed their
opinions, and it defies logic that the standard of care
changed between . . . six months before [trial] when
their depositions were taken and at the time of trial.
. . . [T]he jury heard about the policies, [and] the inter-
pretation of the policies. . . . I think that everyone got
a fair trial, and in order to accept the plaintiff’s argument
here [is] to accept that the experts six months before
[trial] thought the standard of care—which is something
really not dependent on hospital policies—was quite
different from that which it was at the time of trial, and
I just don’t think I can accept that, so I’m going to deny
the motion to set aside [the verdict].’’ This appeal
followed.
‘‘Our standard of review, where the trial court’s action
on a motion to set aside a verdict is challenged, is
whether the trial court clearly abused its discretion.
. . . The decision to set aside a verdict is a matter
within the broad legal discretion of the trial court and
it will not be disturbed unless there has been a clear
abuse of that discretion. . . . A trial court has the
inherent power to set aside a verdict where it finds it
has made, in its instructions, rulings on evidence, or
otherwise in the course of the trial, a palpable error
which was harmful to the proper disposition of the case
and probably brought about a different result in the
verdict. . . . It is proper for a trial court, using due
caution, and in the exercise of its discretion, to set
aside a verdict when satisfied that . . . its rulings on
evidence were erroneous and that those erroneous . . .
rulings were consequential enough to have had a sub-
stantial effect on the verdict.’’ (Citations omitted; inter-
nal quotation marks omitted.) Melo v. Spencer, 62 Conn.
App. 727, 729–30, 774 A.2d 217 (2001).
In denying the plaintiff’s motion to set aside the ver-
dict, the court set forth a well reasoned explanation
for its evidentiary rulings limiting the plaintiff’s experts’
testimony as to the defendant’s analgesic policy. In par-
ticular, the court found illogical the plaintiff’s con-
tention that the standard of care changed during the
few months between the time of the plaintiff’s experts’
depositions and the time of their trial testimony.
Accordingly, as a matter of law, the court’s contested
evidentiary rulings did not affect the plaintiff’s ability
to prove that the defendant had violated the standard
of care on the date in question. Moreover, the court
found that, despite its evidentiary rulings limiting Crip-
pen’s testimony as to the analgesic policy, the jury nev-
ertheless heard testimony about the policy and its
interpretation. Indeed, Querim testified that the analge-
sic policy was equivalent to the nursing standard of
care, and that the defendant’s actions fell below that
standard. On the basis of her testimony, the court admit-
ted the policy into evidence as a full exhibit. Accord-
ingly, the contested evidentiary rulings cannot be said
to have had a substantial effect on the jury’s verdict.
In light of the court’s thorough and legally reasonable
analysis, we conclude that it did not abuse its discretion
in denying the plaintiff’s motion to set aside the verdict.2
II
The plaintiff next claims that the trial court improp-
erly denied her motion for a new trial pursuant to Gen-
eral Statutes § 52-2683 because the trial transcript was
incomplete, and therefore provided an inadequate basis
to brief her claims on appeal.4 The following facts and
procedural history are relevant to our review of this
claim.
Following the court’s denial of the motion to set aside
the verdict and its judgment in favor of the defendant,
the plaintiff filed an appeal and, on July 9, 2009, and
ordered the trial transcript. The court reporter’s office
informed the plaintiff that a trial transcript did not exist
because the official court reporter, Carol Marcinek, was
unavailable to create the transcript, and other court
reporters found Marcinek’s notes to be illegible. On
November 5, 2010, the plaintiff moved for a new trial
on the basis of the court’s ‘‘inability to construct a
transcript of the trial . . . .’’5 The court denied this
motion, noting that ‘‘[t]he judicial branch has been
attempting and will continue to attempt to obtain an
accurate transcription of the proceedings for appeal.’’
Thereafter, the court contracted with United Court
Reporters to transcribe Marcinek’s notes and produce
a transcript. The reconstructed transcript was delivered
to the plaintiff on March 14, 2012. The plaintiff con-
tended, however, that it was incomplete, noting what
she claimed to be hundreds of instances where testi-
mony was omitted or only partially transcribed.
On August 2, 2012, the plaintiff filed a revised motion
for rectification of the trial transcript, which the trial
court granted on October 12, 2012, stating: ‘‘The plaintiff
shall set forth the legal issue which will be affected by
the transcript, specifying what she contends was the
relevant testimony. If the defendant agrees with the
plaintiff’s characterization of the testimony, then there
will be no need to resubmit that portion of the transcript
to United Reporters. If the defendant does not agree
with the plaintiff’s characterization of the testimony
and the testimony is relevant to an issue on appeal,
then that portion of the transcript shall be resubmitted
to United Reporters.’’
On November 28, 2012, the plaintiff filed a motion in
this court seeking to stay her briefing obligations to
afford her time to comply with the trial court’s order
of October 12, 2012. This court denied that motion,
and, further, ordered the parties to provide proof of
compliance with the trial court’s order of October 12,
2012. Accordingly, the plaintiff submitted to the defen-
dant a copy of the transcript with pages containing
check marks denoting incomplete or missing testimony,
but failing to characterize that testimony, and filed with
this court a notice of her compliance with the October
12, 2012 order. Thereafter, the plaintiff filed with this
court a motion for review of that order. In an order
dated February 7, 2013, this court dismissed the plain-
tiff’s motion for review and ordered her to file her
brief on or before March 11, 2013, or her appeal would
be dismissed.
In this appeal, the plaintiff claims that the trial court
improperly denied her motion for a new trial because
the trial transcript was incomplete, and therefore did
not provide an adequate record for her appeal. We con-
clude that this claim was not properly preserved for
appeal, and therefore decline to review it. First, the
plaintiff did not comply with Practice Book § 61-9,
which requires parties to amend their appeal to preserve
any claims that arise while the appeal is pending. Here,
the plaintiff never amended her appeal to challenge the
court’s order denying her motion for a new trial. See
Jewett v. Jewett, 265 Conn. 669, 673 n.4, 830 A.2d 193(2003) (declining to review defendant’s claim challeng-
ing trial court’s postjudgment order because defendant
did not file amended appeal, as required by Practice
Book § 61-9).
Second, insofar as the plaintiff challenges the court’s
October 12, 2012 order granting her revised motion for
rectification, such an order can only be contested by
way of a motion for review, pursuant to Practice Book
§ 66-5, which provides in pertinent part that ‘‘[t]he sole
remedy of any party desiring the court having appellate
jurisdiction to review the trial court’s decision on [a
motion for rectification] . . . shall be by motion for
review under Section 66-7.’’ (Emphasis added.) In accor-
dance with this section, the plaintiff filed a motion for
review, which this court dismissed on February 7, 2013.
Thus, the plaintiff already obtained the review to which
she was entitled. See State v. Crespo, 246 Conn. 665,
669–70 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct.
911, 142 L. Ed. 2d 909 (1999).
In light of these procedural defects, we conclude that
the plaintiff’s claim regarding her motion for a new trial
was not preserved for our review.
III
Finally, the plaintiff claims that the trial court improp-
erly (1) determined the reasonableness of the defen-
dant’s expert witness fees for their trial testimony, and
(2) taxed travel costs associated with such testimony.6
We disagree as to the plaintiff’s first claim, but agree
as to the second claim.
The following facts are relevant to our resolution of
these claims. On March 31, 2009, the defendant submit-
ted a bill of costs requesting, in part, payment for the
trial testimony of the defendant’s expert witnesses. The
bill of costs specifically set forth the amounts owed for
Schulman ($1500), Angelo ($2000), Pleet ($2030), and
Holland ($370). The plaintiff objected to the bill of costs
on April 8, 2009, arguing that there was no evidence as
to the reasonableness of the experts’ fees.
On April 16, 2009, the defendant responded to this
objection, attaching invoices denoting the experts’
hourly rates and the lengths of their trial testimony.
The invoices of Pleet and Holland also set forth travel
expenses of $30 and $100, respectively. The defendant’s
motion further asserted that ‘‘[t]he total fee for four (4)
defense experts, [two] of whom were from out of state,
to testify at trial [was $5900]. The fees for all [four]
defense expert witnesses were [$2100] less than what
the plaintiff paid to have [one of her experts] testify
at trial.’’
On May 26, 2009, the court held a hearing on the
defendant’s motion to compel payment of fees. At the
hearing, the court addressed the plaintiff’s claim chal-
lenging the reasonableness of the defense experts’ trial
testimony fees. The defendant argued that because the
total fees for four of its expert witnesses was $2100
less than the fees for just one of the plaintiff’s experts,
its fees were reasonable by comparison. The court also
inquired into the basis for each of the experts’ fees, as
set forth in their invoices. Counsel for the defendant
represented that (1) Schulman is a cardiologist with
approximately twenty years of experience, who testi-
fied for about three hours on the standard of care and
causation, and prepared models to aid his testimony;
(2) Angelo is a hospitalist from Yale with more than
eleven years in practice, who testified for approxi-
mately an hour and a half; (3) Pleet is a urologist with
more than twenty years of experience, who testified
for approximately one hour and fifteen minutes as to
the standard of care; and (4) Holland is a nurse with
more than thirty years of experience. Ultimately, the
court granted the defendant’s motion to compel, stating,
‘‘I heard the doctors and nurses, and I find their fees
to be reasonable.’’ The plaintiff subsequently amended
her appeal to include a claim challenging the court’s
determination as to the reasonableness of the
experts’ fees.
A
The plaintiff claims that the trial court contravened
this court’s decision in Boczer v. Sella, 113 Conn. App.
339, 966 A.2d 326 (2009) (Boczer I), by relying solely
upon the defense experts’ invoices in determining the
reasonableness of their fees. In Boczer I, the defendant
filed a bill of costs setting forth its expert witness fees.
At a hearing before the court clerk, the defendant pre-
sented invoices for each expert and stated each witness’
medical specialty. Id., 345. In light of this evidence, the
clerk determined that the fees were reasonable. Id.,344–45. The plaintiff filed a motion for judicial review
of the clerk’s assessment, which the trial court denied.
Id., 342. On appeal, this court concluded that ‘‘[s]tanding
alone, [the] invoices do not establish that the costs
stated therein are reasonable. In the absence of any
evidence relating to the reasonableness of the fees listed
in the invoices, we conclude that the court’s determina-
tion was premised on an inadequate evidentiary founda-
tion.’’ (Footnote omitted.) Id., 345.
Our analysis of this claim begins with General Stat-
utes § 52-260 (f), which provides in pertinent part that
‘‘[w]hen any practitioner of the healing arts . . . regis-
tered nurse, advanced practice registered nurse or
licensed practical nurse . . . gives expert testimony
in any action or proceeding, including by means of a
deposition, the court shall determine a reasonable fee
to be paid . . . .’’ ‘‘[T]he reasonableness of a particular
fee is a question of fact. [W]e will upset a factual deter-
mination of the trial court only if it is clearly erroneous.
The trial court’s findings are binding upon this court
unless they are clearly erroneous in light of the evidence
and the pleadings in the record as a whole. . . . We
cannot retry the facts or pass on the credibility of the
witnesses. A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) Boczer
I, supra, 113 Conn. App. 344.
Trial courts frequently have applied the following
multifactor test in determining the reasonableness of
expert fees: ‘‘(1) the [witness’] area of expertise; (2) the
education and training required to provide the expert
insight that is sought; (3) the prevailing rates of other
comparably respected available experts; (4) the nature,
quality, and complexity of the discovery responses pro-
vided; (5) the fee actually charged to the party who
retained the expert; (6) fees traditionally charged by
the expert on related matters; and (7) any other factor
likely to assist the court in balancing the interest impli-
cated by [the applicable rule]. . . . Ultimately, how-
ever, it is in the court’s discretion to set an amount
that it deems reasonable.’’ (Internal quotation marks
omitted.) Rose v. Jolly, 48 Conn. Supp. 606, 607, 854
A.2d 824 (2004) (adopting multifactor test assessing
reasonableness of deposition fees, under Practice Book
§ 13-4, from federal case, Fisher-Price, Inc. v. Safety
1st, Inc., 217 F.R.D. 329, 333 [D. Del. 2003]); see Young v.
Debiase, Superior Court, judicial district of New Britain,
Docket No. CV-07-5003992-S (September 16, 2010) (50
Conn. L. Rptr. 611, 612–13) (finding experts’ trial testi-
mony fees reasonable based on multifactor test).
On remand from this court following our decision in
Boczer I, the trial court relied upon this multifactor test
in assessing the reasonableness of the experts’ fees,
and the plaintiff once again appealed to this court, this
time challenging the trial court’s determination of the
reasonableness of the experts’ fees. Boczer v. Sella, 135
Conn. App. 360, 363, 41 A.3d 1162 (2012) (Boczer II).
This court concluded that the trial court’s determination
as to the reasonableness of the experts’ fees was proper
where ‘‘[e]ach witness testified as to his expertise, his
experience and the basis on which he computed his
fee.’’ Id., 364. Similarly, in the present case, the court’s
determination as to the reasonableness of the defense
experts’ fees was based on the experts’ expertise and
experience, insofar as the court considered their trial
testimony, as well as representations made by counsel
for the defendant at the hearing on the defendant’s
motion to compel payment of fees.
At trial, the court heard testimony on both direct and
cross-examination as to the experts’ experience and
qualifications. Also, throughout the trial, the court inde-
pendently observed the length, content, and complexity
of each witness’ testimony. See Celentano v. Oaks Con-
dominium Assn., 265 Conn. 579, 619, 830 A.2d 164(2003) (‘‘[a] trial court may rely on its own general
knowledge of the trial itself to supply evidence in sup-
port of an award of attorney’s fees’’ [internal quotation
marks omitted]); compare Fortier v. Salm, Superior
Court, judicial district of Hartford, Docket No. CV-02-
0813312-S (October 27, 2009) (48 Conn. L. Rptr. 702)
(costs taxed by presiding judge at trial), with Boczer I,
supra, 113 Conn. App. 344–45 (costs taxed by clerk).7
Additionally, at the hearing on the defendant’s motion
to compel payment of fees, counsel for the defendant
recited the particular specialties, years of experience,
and length and contents of each expert’s testimony.
Moreover, counsel for the defendant presented evi-
dence of ‘‘the prevailing rates of other comparably
respected available experts’’ through its representation
that the fee for one of the plaintiff’s experts was over
$2000 more than the fees for four of the defendant’s
experts. See Fortier v. Salm, supra, 48 Conn. L. Rptr.
703 (finding defense expert witness fees reasonable
where fees were lower than those charged by plaintiff’s
experts); Brought v. Batson, Superior Court, judicial
district of Danbury, Docket No. CV-02-0347176-S
(December 17, 2003) (36 Conn. L. Rptr. 189, 192) (find-
ing expert’s flat fee unreasonable as compared to pre-
vailing rates of comparable experts and assessing
reasonable fee).
Thus, contrary to the plaintiff’s contention, the court
did not rely solely upon the experts’ invoices in
determining that their fees were reasonable. Rather,
the court’s determination was supported by evidence
of the experts’ ‘‘expertise . . . experience and the
basis on which [they] computed [their] fee[s].’’ Boczer
II, supra, 135 Conn. App. 364. Therefore, we conclude
that the court properly determined that the fees charged
by the defendant’s expert witnesses were reasonable.
B
Finally, the plaintiff claims that the trial court improp-
erly taxed the plaintiff with the travel costs associated
with the defendant’s expert witness fees. ‘‘The question
of whether trial costs are taxable is a question of law
over which our review is plenary.’’ Smith v. Andrews,
supra, 289 Conn. 81. Pursuant to § 52-260 (f), ‘‘[w]hen
any practitioner of the healing arts . . . registered
nurse, advanced practice registered nurse or licensed
practical nurse . . . gives expert testimony in any
action or proceeding, including by means of a deposi-
tion, the court shall determine a reasonable fee to be
paid . . . and taxed as part of the costs in lieu of all
other witness fees payable to [them] . . . .’’ This stat-
ute ‘‘neither authorizes a reasonable fee for an expert’s
trial preparation time as distinguished from his or her
in-court trial testimony, nor expressly authorizes costs
for an expert’s travel, transportation and hotel costs.
. . . [B]y its express terms, § 52-260 (f) treats as taxable
only those costs that arise from an expert’s testimony
at trial.’’ (Citation omitted; internal quotation marks
omitted.) Smith v. Andrews, supra, 87.
Here, the invoices of Pleet and Holland delineate their
travel expenses.8 Specifically, Pleet’s invoice sets forth
a $30 travel expense based on sixty miles of travel at
fifty cents per mile. Holland’s invoice sets forth a $100
charge for 140 miles at fifty cents per mile. We conclude
that the trial court improperly taxed Pleet’s and Hol-
land’s travel expenses to the plaintiff in violation of
§ 52-260 (f).
The judgment is reversed only with regard to the
taxing of Pleet’s and Holland’s travel costs and the case
is remanded with direction to recalculate costs consis-
tent with the preceding paragraph; the judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
On February 7, 2013, this court granted the plaintiff’s motion to substitute
Karen Mae Homes-Previti, the administratrix of the estate of Arnold F.
Holmes, as the party plaintiff.
2
Notably, the defendant argues that the plaintiff did not properly preserve
for appeal her claim challenging the court’s denial of her motion to set aside
the verdict, predicated on improper evidentiary rulings, because the plaintiff
failed to take exception to such contested evidentiary rulings at trial. See
State v. Jorge P., 308 Conn. 740, 754, 66 A.3d 869 (2013) (‘‘the determination
of whether a claim has been properly preserved will depend on a careful
review of the record to ascertain whether the claim on appeal was articulated
below with sufficient clarity to place the trial court on reasonable notice
of that very same claim’’). We need not address, however, whether the
plaintiff properly preserved for our review an evidentiary claim because
the issue presented on appeal is whether the court improperly denied the
plaintiff’s motion to set aside the verdict—not whether the court made
improper evidentiary rulings. Cf. Rubel v. Wainwright, 86 Conn. App. 728,
745–46, 862 A.2d 863 (holding that plaintiff’s claim challenging court’s eviden-
tiary ruling was not preserved for appeal where it was raised for first
time in motion to set aside verdict), cert. denied, 273 Conn. 919, 871 A.2d
1028 (2005).
Additionally, in connection with her claim that the court improperly denied
her motion to set aside the verdict, the plaintiff appears to argue that her
ability to fully and fairly litigate the case was unduly prejudiced by the
defendant’s failure to produce the analgesic policy in response to the plain-
tiff’s request for the defendant’s policies pertaining to the transfer of patients.
We conclude that this aspect of the claim was not preserved for our review
because the court did not address it in its denial of the plaintiff’s motion
to set aside the verdict. An explanation of the court’s decision regarding
this claim is necessary to our determination of whether the court properly
exercised its discretion. ‘‘Without the necessary factual and legal conclusions
furnished by the trial court . . . any decision made by us respecting this
claim would be entirely speculative.’’ (Internal quotation marks omitted.)
Keith E. Simpson Associates, Inc. v. Ross, 125 Conn. App. 539, 544 n.7, 9
A.3d 394 (2010).
3
General Statutes § 52-268 (a) provides: ‘‘Any party who intends to appeal
or has appealed a final judgment of the Superior Court, or of a judge thereof,
an appeal from which properly lies, may move the court in writing for a
new trial if the judge who rendered judgment, or the stenographer or court
reporter who took the testimony at the original trial therein if his steno-
graphic notes are not decipherable, has died or become incapable of taking
the action necessary for the appeal, and the party had complied with the
rules relating to the taking of appeals before such death or incapacity.’’
4
Practice Book § 61-10 (a) provides that ‘‘[t]he appellant shall determine
whether the entire trial court record is complete, correct and otherwise
perfected for presentation on appeal. . . . [T]he term ‘record’ . . .
includes all trial court decisions, documents and exhibits necessary and
appropriate for appellate review of any claimed impropriety.’’
5
The plaintiff’s motion was actually titled ‘‘motion for mistrial’’ instead
of ‘‘motion for new trial.’’ The substance of the motion, however, is consistent
with a motion for a new trial, pursuant to Practice Book § 42-53 and General
Statutes § 52-268 (a). Therefore, we will treat this motion as a motion for
a new trial in light of the well settled principle that ‘‘[i]t is the substance
of a motion . . . that governs its outcome, rather than how it is character-
ized in the title given to it by the movant.’’ State v. Taylor, 91 Conn. App.
788, 792, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005).
6
At oral argument before this court, the plaintiff conceded that she is not
challenging the reasonableness of the defense experts’ deposition fees.
7
In fact, at the hearing on the defendant’s motion to compel payment of
fees, the trial court distinguished Boczer I, supra, 113 Conn. App. 339, from
the present case, concluding that, in Boczer I, the clerk, and not the presiding
judge at trial, had determined the reasonableness of the experts’ fees in the
first instance.
8
To the extent that the plaintiff claims that the court improperly taxed
the travel expenses of Schulman and Angelo, we conclude that she failed
to demonstrate that the court factored travel costs into their fees. We ‘‘do
not presume error on the part of the trial court. . . . Rather, we presume
that the trial court, in rendering its judgment . . . undertook the proper
analysis of the law and the facts.’’ (Citations omitted; internal quotation
marks omitted.) Brett Stone Painting & Maintenance, LLC v. New England
Bank, 143 Conn. App. 671, 681, 72 A.3d 1121 (2013).