Brown v. Cartwright ( 2021 )

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RYAN K. BROWN, JR. v. DAVID
CARTWRIGHT ET AL.
(AC 43415)
Lavine, Alvord and Cradle, Js.*
Syllabus
The plaintiff sought to recover damages from the defendants C, I Co., and
H Co. pursuant to the Connecticut Product Liability Act (§ 52-572m et
seq.) in connection with personal injuries he sustained in single car
accident that occurred when the left front wheel of his vehicle fractured.
The jury returned a verdict in favor of the defendants. The plaintiff
thereafter filed a motion to set aside the verdict and for a new trial.
The plaintiff claimed in his motion, inter alia, that, after the jury had
retired to the deliberation room, the defendants’ exhibits were timely
delivered to the jury room but the plaintiff’s exhibits were not, constitut-
ing evidentiary impropriety. The jury returned its verdict approximately
ten minutes after it had received the plaintiff’s exhibits. The trial court
denied the motion and rendered judgment in favor of the defendants,
from which the plaintiff appealed to this court. Held:
1. The plaintiff could not prevail on his claim that the trial court erred in
refusing to set aside the verdict and order a new trial on the ground
that court failed to ensure that the plaintiff’s exhibits were with the jury
when it commenced deliberations: the plaintiff presented no evidence
that the jury began deliberations prior to the delivery of the exhibits,
the jury was afforded a fair opportunity to deliberate with all the exhibits
before it, and it was undisputed that the jury received all the exhibits
prior to returning its verdict; moreover, the fact that there was only a
short period of time between when the jury received the plaintiff’s
exhibits and it reached a verdict, did not necessarily indicate a lack of
diligence but, rather, may have attested to the weakness of the plain-
tiff’s case.
2. This court concluded that the plaintiff waived his unpreserved claim that
the trial court erred in refusing to set aside the verdict and order a new
trial due to juror misconduct: although the plaintiff claimed that the
jury may have begun deliberations prior to the delivery of his exhibits
or failed to give adequate consideration to his case, an examination of
the record indicated that the plaintiff did not bring the late delivery of
his exhibits to the attention of the court on the record prior to the
reading of the verdict, which would have given the court an opportunity
to investigate and take any remedial measures that may have been
required.
3. This court declined to review the plaintiff’s claim that the trial court erred
in denying his motion to set aside the verdict on the basis that the
defendants’ counsel unfairly prejudiced the jury by reading from docu-
ments not in evidence; the court granted the plaintiff’s request for a
curative instruction to the jury at the time of the alleged improper
comments by counsel, an instruction which the court repeated in its
charge to the jury, and the plaintiff did not object to the jury instructions
as given by the court and, in doing so, waived any claim of error.
Argued December 1, 2020—officially released March 30, 2021
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of an allegedly defective product, and
for other relief, brought to the Superior Court in the
judicial district of New London and tried to the jury
before S. Murphy, J.; verdict for the defendants; there-
after, the court denied the plaintiff’s motion to set aside
the verdict and for a new trial, and rendered judgment
in accordance with the verdict, from which the plaintiff
appealed to this court. Affirmed.
Fredrik Thor Holth, for the appellant (plaintiff).
Robert W. Maxwell, pro hac vice, with whom was
David W. Case, for the appellees (defendants).
Opinion
LAVINE, J. The plaintiff, Ryan K. Brown, Jr., appeals
from the judgment of the trial court, following a trial
to a jury, rendered in favor of the defendants, David
Cartwright, Ironhorse Auto, LLC, operating as Central
Hyundai of Plainfield, and Hyundai Motor America, Inc.1
On appeal, the plaintiff challenges the propriety of the
verdict on three grounds: (1) the court’s failure to timely
deliver the plaintiff’s exhibits to the jury deprived him
of a fair verdict; (2) the jury did not follow the court’s
instructions to consider all the evidence; and (3) oppos-
ing counsel’s statements during cross-examination
unfairly prejudiced the jury. We affirm the judgment of
the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff purchased a 2013 Hyun-
dai Elantra (Elantra) from the defendants on September
16, 2013. Early in the morning of September 29, 2013,
the plaintiff was driving from Farmington to his home
in Groton. The plaintiff alleged that while he was driving
in the left lane of Interstate 95, the left front wheel of
the Elantra fractured, resulting in a single car crash
that caused the plaintiff serious injuries. The plaintiff
filed a product liability action against the defendants
pursuant to General Statutes § 52-240b and the Connect-
icut Product Liability Act, General Statutes § 52-572m
et seq.2 The plaintiff alleged that a manufacturing defect
in the wheel was the proximate cause of the crash.
The case was tried to a jury from June 26 to July 3,
2019. At trial, the parties disputed the cause and nature
of the wheel fracture, including how it occurred and
whether the wheel fully detached from the Elantra, and
the extent of the injuries the plaintiff suffered.
Following closing arguments, the court instructed the
jury not to begin deliberations until they had received all
of the exhibits, the verdict form, and the interrogatories.
After the jury had retired to the deliberation room,
the following exchange between the court and counsel
transpired:
‘‘The Court: All right. Counsel, have you had an oppor-
tunity to go through the exhibits and make sure that
the only exhibits going to the jury for deliberation are
full exhibits?
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.
‘‘[The Defendants’ Counsel]: Yes, Your Honor.
‘‘The Court: All right. If you wouldn’t mind
approaching the bench? The only change that was made
to the jury form was adding the jury foreperson and
the date.’’
Following a brief conference with counsel, the court
stated that the charge and exhibits ‘‘are going to go to
the jury along with the exhibits, and our clerk will let
the jury know that they may begin deliberations, and
they need to pick a foreperson. . . . And then this
court will stand in recess.’’
During its deliberations, the jury answered ‘‘no’’ to
the following interrogatory: ‘‘Was the subject wheel
defective because it did not comply with design specifi-
cations or performance standards?’’ The jury then noti-
fied the court that it had reached a verdict. The jury
returned to the courtroom and the clerk read the jury’s
verdict finding in favor of the defendants. The court
accepted the jury’s verdict.
On July 9, 2019, the plaintiff filed a motion to set
aside the verdict and for a new trial (motion to set
aside) on the grounds that defendants’ counsel had
inflamed the jury by attempting to read from documents
not in evidence and that the jury had failed to follow
the court’s instructions. With respect to his first ground,
the plaintiff alleged in relevant part that ‘‘[the defen-
dants’ counsel] . . . read aloud from and described
information to the jury derived from documents or
sources not properly in evidence for the sole purpose
of inflaming the emotions of the jury or creating undue
partiality . . . and did so inflame the emotions of the
jury or create partiality.’’ With respect to the second
claim in his motion to set aside, the plaintiff alleged in
relevant part:
‘‘6. The jury failed to follow the court’s instructions
and deliberated without reviewing, considering and/or
having all of the evidence properly before it and there-
fore, resulted in a verdict based upon ignorance, partial-
ity, speculation, mistake, conjecture, or a combination
of two or more thereof.
‘‘7. The jury failed to follow the court’s instructions
and deliberated without reviewing, considering and/or
having all of the evidence properly before it and there-
fore, resulted in a verdict based upon misconduct, fail-
ure to follow the law, or both.’’
The defendants objected to the motion to set aside
on the grounds that the statements of their counsel
were not harmful and the jury verdict was fully consis-
tent with the law and the weight of the evidence. The
plaintiff replied to the objection, alleging that ‘‘due to
an error, all of the plaintiff’s trial exhibits remained in
the courtroom until at least 4:30 p.m., although the jury
had been excused a substantial amount of time earlier
to deliberate. Because the plaintiff’s exhibits had not
been delivered to the jury in a timely manner, at 4:28
p.m., the undersigned contacted the clerk’s office by
telephone after searching the jury clerk and case flow
coordinator’s offices for available staff to alert the
judge. At least several minutes passed following the
conclusion of the call to the clerk’s office and, there-
after, the plaintiff’s exhibits were delivered to the jury
at approximately 4:35 p.m. The verdict was reached and
the [court] was back on the record for rendering and
acceptance of the verdict at 4:47 p.m. Therefore, in
order to have followed the court’s instructions as
described above, the jury must have elected a foreper-
son, reviewed thousands of pages of documents and
deliberated, all within a span of ten minutes. This is
not only unlikely, but impossible.’’ (Footnotes omitted.)
The court heard the plaintiff’s motion to set aside on
August 13, 2019, at which time, counsel for the plaintiff
testified that the defendants’ exhibits were timely deliv-
ered to the jury, but the plaintiff’s exhibits were not.
According to the plaintiff’s counsel, the jury retired to
deliberate at ‘‘approximately four o’clock . . . .’’ On
direct examination by his law partner, the plaintiff’s
counsel testified as follows:
‘‘Q.: All right. And then what came to your attention
relative to your exhibits—plaintiff’s exhibits?
‘‘[The Plaintiff’s Counsel]: [We] were waiting in . . .
the courtroom for approximately half an hour. The
defendants’ exhibits were taken into the jury room at
about 4:28.3
‘‘I started to look for the jury clerk, as well as the
case flow coordinator because I could not find our
clerk, and I did not want to walk into the back hall
where the jurors were. I went to the jury clerk’s office. I
went to the case flow coordinator’s office. Those offices
were vacant and the lights were off.
‘‘I came back to the courtroom. Our exhibits were
still here, the plaintiff’s exhibits. I called the clerk’s
office downstairs. . . . That call lasted about a minute,
and then a clerk . . . came up within several minutes,
took in two trips, our exhibits—the plaintiff’s exhibits
into the jury room to deliberate for its deliberations.
‘‘The jury then returned with a verdict at approxi-
mately 4:40 to 4:45 p.m. And then we went back on the
record at 4:47.
‘‘Q.: So again, how many minutes from the time that
the plaintiffs’ exhibits were submitted to the jury and
the decision was rendered?
‘‘[The Plaintiff’s Counsel]: Approximately ten, if
that many.’’
The plaintiff’s counsel also testified that his exhibits
‘‘in total were several thousand pages and the exhibits
on the specifications in liability alone would have been
hundreds of pages . . . .’’ On cross-examination by the
defendants’ counsel, the plaintiff’s counsel testified that
his exhibits were delivered to the jury at 4:35 p.m., and
the court went back on the record twelve minutes later.
He admitted that he did not have any direct evidence
that the jury had reached a verdict before the delivery
of his exhibits, ‘‘other than the inference itself.’’
The court denied the motion to set aside in a memo-
randum of decision on September 12, 2019. The court
first stated that ‘‘counsel’s questioning during cross-
examination was not so prejudicial as to deny the plain-
tiff a fair trial and, further, curative instructions given
immediately following objections raised by [the] plain-
tiff’s counsel were sufficient to cure any potential preju-
dice to the plaintiff.’’ The court rejected the plaintiff’s
argument that the ‘‘rendering of a verdict in this case
within ten minutes is impossible and in fact, indicative
of juror misconduct in failing to consider all the evi-
dence and/or indicative of undue prejudice induced dur-
ing the cross-examination of the plaintiff.’’ The court
explained that it could not infer misconduct from the
length of the jury’s deliberation and that it could not
set aside the verdict when there was evidence support-
ing the jury’s finding.4 With regard to the plaintiff’s claim
that the jury failed ‘‘to follow the court’s instructions
and/or deliberated without reviewing, considering and/
or having all the evidence before it,’’ the court explained
that there was nothing before it to demonstrate that the
jurors improperly discussed the case among themselves
prior to deliberations, that there was no dispute that
the jurors had all the exhibits before them prior to
indicating that they had reached a verdict, and that
the jury was allowed to credit the testimony of the
defendants’ expert witness. The court rendered judg-
ment on the verdict at that time. This appeal followed.
We first set forth the well-known standard of review.
‘‘[T]he proper appellate standard of review when con-
sidering the action of a trial court granting or denying
a motion to set aside a verdict . . . [is] the abuse of
discretion standard. . . . In determining whether there
has been an abuse of discretion, every reasonable pre-
sumption should be given in favor of the correctness of
the court’s ruling.’’ (Internal quotation marks omitted.)
Sovereign Bank v. Licata, 116 Conn. App. 483, 492, 977
A.2d 228 (2009), appeal dismissed, 303 Conn. 721, 36
A.3d 662 (2012).
I
The plaintiff first claims that the trial court erred by
refusing to set aside the verdict and order a new trial,
because the delay in delivering his exhibits, while the
defendants’ exhibits were delivered promptly, consti-
tutes a harmful ‘‘evidentiary impropriety’’ meriting
reversal. We do not agree.
In support of his claim, the plaintiff points to Practice
Book § 16-15 (a), which provides that ‘‘[t]he judicial
authority shall submit to the jury all exhibits received
in evidence.’’ He states in his brief that ‘‘it necessarily
follows that to effectuate this rule, the jury receive the
entire record concurrently when it retires to deliber-
ate,’’ and that the ‘‘unintentional but unjust delay’’ was
harmful, relying on Kortner v. Martise, 312 Conn. 1,
27–28, 91 A.3d 412 (2014), in which the submission of
an exhibit to the jury that was not introduced at trial
constituted harmful error.
The plaintiff characterizes the claimed error as a fail-
ure by the court to ensure that the plaintiff’s exhibits
were with the jury when it commenced its deliberations.
It is undisputed, however, that the jury received all
the exhibits prior to returning its verdict. The plaintiff
represented in his reply to the motion to set aside, as
well as in his testimony at the hearing on the motion
to set aside, that the jury received all of the exhibits
by 4:35 p.m., that the jury reached a verdict ‘‘at approxi-
mately 4:40 to 4:45 p.m.,’’ and that the jury returned to
the courtroom at approximately 4:47 p.m., at which
time the verdict was read. He presented no evidence
that the jury began deliberations prior to the delivery
of all the exhibits. If a mistake occurred which resulted
in the delayed delivery of exhibits, it was resolved and
the jury was afforded a fair opportunity to deliberate
with all of the exhibits before it. Thus, the plaintiff’s
claim that harm resulted is purely speculative. ‘‘[T]he
time a jury spends in deliberation cannot form the basis
of a claim that its verdict was affected by improper
influences.’’ Forrestt v. Koch, 122 Conn. App. 99, 111,
996 A.2d 1236 (2010). ‘‘A short deliberation, rather than
being indicative of a lack of diligence, may in fact attest
to the [weakness] of the [nonprevailing party’s] case.§
(Internal quotation marks omitted.) Id. The plaintiff’s
claim, therefore, fails.
II
The plaintiff’s second claim is that the trial court
erred by refusing to set aside the verdict and order a
new trial due to juror misconduct. He claims that, in
returning a verdict mere minutes after receiving the
plaintiff’s exhibits, the jury necessarily could not have
followed the court’s instructions in full.
The following additional facts are relevant to our
disposition of this claim. The court instructed the jury
in relevant part:
‘‘The Court: The deliberations should not begin until
you receive all the exhibits and you have first selected
a jury foreperson. No one will hurry you. You may have
as much time as you need to reach a verdict. . . .
***
‘‘The Court: Again, do not select a foreperson or begin
any deliberations until you have the exhibits, verdict
form, and interrogatories, and the alternate jurors have
left the jury room.’’
The jury thereafter retired to the jury deliberation
room. After the jury notified the court that it had
reached a verdict, the following colloquy occurred:
‘‘The Court: All right. So counsel, it’s my understand-
ing that the jury has reached a verdict. That’s what I’ve
been told, so we’re going to call the jurors in.
‘‘The Court: Welcome back. Counsel, please stipu-
late?
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.
‘‘[The Defendants’ Counsel]: Yes, Your Honor.
‘‘The Court: All right. Madam Clerk?’’
The clerk then asked the jury if it had agreed on a
verdict, to which the jury answered in the affirmative.
The clerk read the verdict aloud, stating: ‘‘In the matter
of Ryan K. Brown, Jr., versus [the defendants], defen-
dants’ verdict: We, the jury, find in favor of the defen-
dants . . . against the plaintiff, Ryan K. Brown, Jr.’’
The court accepted the verdict. The plaintiff objected
to the verdict six days later when he filed a motion
to set aside. The plaintiff alleged in his reply to the
defendants’ objection that the jury did not receive the
plaintiff’s exhibits until approximately 4:35 p.m., a ‘‘sub-
stantial amount of time’’ after it had been excused,5 and
that the jury notified the court that it had reached a
verdict approximately ten minutes later.
The plaintiff’s claim at its core is one of jury miscon-
duct. He claims it was not possible for the jury to review
his thousands of pages of exhibits, beyond a mere cur-
sory look in the roughly ten minutes between when it
received his exhibits and when it delivered its verdict.
As a result, he claims, the trial court erred in failing to
set aside the verdict because the jury must have failed
to comply with the court’s instruction to ‘‘consider all
the evidence’’ in reaching a verdict. The plaintiff also
argues that, if the jury began consideration of the defen-
dants’ exhibits while it was waiting for the plaintiff’s
exhibits, it violated the court’s instruction to wait until
it had received all the exhibits.
In response, the defendants argue that it is not possi-
ble to infer solely from the length of deliberations that
the jury did not consider the plaintiff’s evidence. The
defendants emphasize that there is no evidence, only
speculation, that the jury began deliberations prema-
turely or failed to give adequate consideration to the
plaintiff’s case. They further argue that, even if there
is error, we should not address it because the plaintiff
failed to preserve the issue for review.
We agree with the defendants that the claim is not
properly before this court for review. Our thorough
examination of the record indicates that the plaintiff
did not bring the late delivery of his exhibits to the
attention of the court prior to the reading of the jury’s
verdict. The plaintiff argues that he alerted the court
‘‘several times prior to the entry of judgment: once
by alerting the court clerk charged with delivering the
exhibits to the jury room, thereafter by motion and
memoranda filed with the court, and thereafter by testi-
mony offered at the August 13, 2019 hearing.’’ The defen-
dants respond that the matter was not raised on the
record as an objection to the verdict at a time when
the court could have addressed it prior to the reading
of the verdict.6 The record clearly demonstrates that the
defendants are correct. The plaintiff, therefore, failed
to preserve his claim for review.
It is well established that ‘‘[waiving] the objection
and [taking] the chances of a favorable verdict, [pre-
cludes] . . . taking the exception after verdict.’’ State
v. Worden, 46 Conn. 349, 368 (1878). ‘‘We repeatedly
have expressed our disfavor with the failure, whether
because of a mistake of law, inattention or design, to
object to errors occurring in the course of a trial until
it is too late for them to be corrected, and thereafter,
if the outcome of the trial proves unsatisfactory, with
the assignment to such errors as grounds of appeal.’’
(Internal quotation marks omitted.) Antonucci v. Anto-
nucci, 164 Conn. App. 95, 127, 138 A.3d 297 (2016).
Although the court addressed the plaintiff’s motion to
set aside after accepting the verdict, this court has
stated, in the context of jury instructions, that if possi-
ble, a party must ‘‘object in a timely fashion to allow
the trial court an opportunity to correct any claimed
error in the procedure or the instruction. Raising that
objection as an issue for the first time in a motion to
set aside the verdict, obviously does not allow such a
possibility because the jury has been excused. When
we speak of correcting the claimed error, we mean
when it is possible during that trial, not by ordering a
new trial.’’ Powers v. Farricelli, 43 Conn. App. 475, 478,
683 A.2d 740 (1996). Similarly, in Misiurka v. Maple
Hills Farms, Inc., 15 Conn. App. 381, 385, 544 A.2d 673,
cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988), this
court stated that the failure to make a clear objection
to a motion for apportionment ‘‘[denied] the trial court
an opportunity to re-examine its ruling at a time when
it could still be modified and any defect cured.’’ Had
the plaintiff brought his concern regarding the timely
delivery of his exhibits to the attention of the court
prior to the reading of the verdict, the court could have
investigated and taken whatever remedial measures
that may have been required, if any, before the jury’s
verdict was read in open court.7 See also State v. Cosby,
6 Conn. App. 164, 174, 504 A.2d 1071 (1986) (stating
that parties ‘‘must take some modicum of responsibility
for conserving scarce judicial resources’’).
In the alternative, the plaintiff argues that, even if his
claim is unpreserved, ‘‘an error by court personnel in
properly delivering the exhibits to the jury ‘trumps the
waiver by the plaintiff’s counsel,’ ’’ citing Kortner v.
Martise, supra, 312 Conn. 26 n.9. He argues that the
process was ‘‘tainted’’ by the untimely delivery of his
exhibits to the jury, citing Kortner. As we stated in part
I of this opinion, the plaintiff has not demonstrated
prejudice from the alleged error by court personnel.
Moreover, Kortner is instructive in explaining why the
plaintiff’s claim fails. In that case, the jury submitted a
question to the court clerk regarding a particular exhibit
not in evidence that it had inadvertently received. Id.,
18. The court clerk answered the question and stated
that it would not be necessary to alert the judge. Id.
After the court accepted the verdict and adjourned the
proceeding, ‘‘one of the jurors . . . expressed confu-
sion about the fact that he had not heard about [the
plaintiff’s exhibit] during trial.’’ Id., 17. The court replied
that it had been marked as a full exhibit and excused
the jurors. Id. Upon learning of the error, the plaintiff
filed a motion to set aside the verdict and for a new
trial. Id., 19.
On appeal, this court concluded that the plaintiff had
not waived the claim. The court clerk’s failure to notify
the court of the jury’s question ‘‘deprived the plaintiff
and the trial court of the opportunity to rectify the
inadvertent mistake of providing [the plaintiff’s exhibit]
to the jury for deliberation.’’ Id., 26. ‘‘Instead, the trial
court required the plaintiff to prove that [the exhibit]
probably prejudiced the jury.’’ Id., 45. Kortner thus high-
lights the seriousness of a jury deliberation error of
which the court and the parties are not aware prior to
the reading of the verdict. In the present matter, unlike
in Kortner, the plaintiff was aware of the issue with
the exhibits prior to the reading of the verdict and did
not take advantage of his opportunity to bring it to the
court’s attention.8 We conclude that the claim of jury
misconduct is waived.
III
The plaintiff next claims that the court erred in deny-
ing his motion to set aside the verdict on the basis that
the defendants’ counsel unfairly prejudiced the jury
on two occasions by reading from documents not in
evidence during his cross-examination of the plaintiff
and one of the plaintiff’s expert witnesses. We do not
agree.
The following additional facts are relevant to our
resolution of this claim. The plaintiff testified at trial
that, prior to the crash, he had attended an event in
Farmington hosted by a chapter of his fraternity, Alpha
Phi Alpha. He described the event as ‘‘a Miss Black and
Gold Scholarship Pageant . . . . That entails a group
of women submitting, like, their transcripts and present-
ing different talents. Whether that’s singing, dancing,
playing an instrument, whatever the case is, and ulti-
mately a winner is crowned and they’re given, you
know, X number of scholarship moneys.’’ He testified
that no alcohol or disorderly conduct was involved. The
plaintiff was returning home to Groton around 3 a.m.
when the crash occurred.
On cross-examination, the defendants’ counsel sug-
gested that alcohol had been served at the event, citing
general Alpha Phi Alpha event guidelines regarding
alcohol and inquiring about charges of binge drinking
that had been brought against other chapters of the
fraternity. The plaintiff acknowledged that alcohol was
allowed at certain fraternity functions but again denied
its presence at the event he attended. The defendants’
counsel then inquired about flyers that were generally
distributed to advertise Alpha Phi Alpha events. The
defendants’ counsel attempted to impeach the plaintiff
by asking him questions about the content of a flyer
purportedly advertising the scholarship event the plain-
tiff had attended on September 28, 2013. The plaintiff
denied recognizing the flyer. When the defendants’
counsel asked the plaintiff about the content of the
flyer, the plaintiff’s counsel objected:
‘‘[The Defendants’ Counsel]: Is it fair to say, Mr.
Brown, that the flyer advertis[ing] this event shows a
scantily clad woman with—under the title of [Phorbid-
den Phruit]?
‘‘[The Plaintiff’s Counsel]: Objection.
‘‘The Court: Grounds?
‘‘[The Defendants’ Counsel]: Is that what this docu-
ment—
‘‘[The Plaintiff’s Counsel]: Relevance first, Your
Honor, and second, he’s testified that he’s never seen
that document.
‘‘The Court: All right. [Counsel]?
‘‘[The Plaintiff’s Counsel]: So there’s—
‘‘[The Defendants’ Counsel]: This is impeachment evi-
dence, Your Honor.
‘‘[The Plaintiff’s Counsel]: There’s no foundation laid.
‘‘The Court: All right. There’s no foundation laid with
respect to the document. He’s never seen the document.
He doesn’t recognize the document. I’ll sustain the
objection.’’
The defendants’ counsel then asked the plaintiff to
read from highlighted portions of the document. When
the plaintiff again denied recognizing the document,
the defendants’ counsel asked the plaintiff, ‘‘You didn’t
receive a message saying that the—’’ The court inter-
jected and instructed the defendants’ counsel ‘‘not to
read from a document that’s not been admitted into
evidence.’’ The defendants’ counsel then attempted to
ask the plaintiff if he had seen the document on the
Alpha Phi Alpha website, referencing it as ‘‘the forbid-
den fruit advertisement . . . .’’ The plaintiff’s counsel
again objected; the court sustained the objection. The
defendants’ counsel then stated that he wanted to ask
the plaintiff a hypothetical question, spurring further
objection from the plaintiff’s counsel. The court asked
the jury to step out and reminded the defendants’ coun-
sel of its earlier ruling, stating:
‘‘The court’s made its ruling with respect to this line
of questioning. He doesn’t remember. It’s been asked
and answered. He said he does not know. So if the
hypothetical is going to deal with this forbidden fruit
phrase, the court is going to sustain the objection.’’
The court allowed the defendants’ counsel to lay a
foundation outside the presence of the jury. The plain-
tiff’s counsel objected to the defendants’ counsel’s prof-
fer. The court sustained the objection, reiterating its
earlier ruling that the foundation laid for the document
was insufficient. The court prohibited questions regard-
ing information coming from the flyer. The plaintiff
requested that the court give a curative instruction to
the jury. After the jury re-entered the courtroom, the
court instructed the jury: ‘‘I just would like to remind
the jury, and I will tell you more about this in jury
instructions, but an attorney’s comments or questions
are not evidence in this case.’’
On July 2, 2019, the plaintiff called Thomas Eagar as
a rebuttal expert. The plaintiff proffered Eagar as an
expert in the field of materials science and physics.
Counsel for the defendants was permitted to conduct
a voir dire of Eagar regarding his credentials. During
the voir dire, the defendants’ counsel inquired about
instances in which the scope of Eagar’s testimony had
been limited by judges in other cases. The defendants’
counsel attempted to place in evidence a Kentucky dis-
trict court order limiting the scope of Eagar’s testimony.
The plaintiff’s counsel objected on the grounds of hear-
say and authentication. The court sustained the objec-
tion, declining the request from the defendants’ counsel
to take judicial notice of the case citation. The court
stated: ‘‘I think the witness stated that you were mis-
characterizing what happened, or the testimony in that
case, and this court’s not going to be bound by the
ruling of an out of district case. So, I’m not sure how
that affects what we’re doing right here. I’m [going to]
sustain the objection on the ground of relevance and
lack of foundation.’’ The defendants’ counsel asked
Eagar about other cases in which the scope of his testi-
mony had been limited or contradicted. The plaintiff’s
counsel objected again, and the court heard argument
outside the presence of the jury. The plaintiff’s counsel
contended that the defendants’ counsel was presenting
hearsay and reading from documents not properly
before the court. The defendants’ counsel responded
that he was attempting to impeach the witness for giving
allegedly inaccurate testimony. The court ruled as fol-
lows:
The Court: ‘‘First of all, whether or not testimony has
been limited is one thing. This court doesn’t have the
benefit of going into those particular cases and finding
out the exact nature of the limitation and/or the reasons
for the limitation. So what you’re doing is, you are
[reading]9 from documents that lack foundation at this
point in time, and that could very well, and I’m not
saying that you’re doing this, counsel, but because I do
not have the benefit of looking at that document, per-
haps you could be putting some sort of, you know, a
spin on the way the—the holding is being presented
. . . and so, instead, you’re just—you’re summarizing
these documents for the court in front of the jury, and
your summaries are coming from documents that are
not full exhibits. So by way of asking these questions,
you’re basically [arguing], quote, from the document.’’
(Footnote added.)
The court instructed counsel as follows:
The Court: ‘‘So the court would instruct both counsel
again . . . not to [read] from documents that are not
entered into the court as full exhibits. This witness was
asked, this witness did indicate that his testimony has
been limited on occasions. I mean, I will allow ques-
tioning about it, but I will not allow you to pick up a
document, hold it in front of your hand in front of a
jury, and proceed to basically read from the document
as part of your question.’’10
The jury returned to the courtroom, and the defen-
dants’ counsel asked Eagar to read from a page of the
order or opinion he was using to impeach the witness.
The plaintiff’s counsel objected. The court again had
the jury step out and reminded the defendants’ counsel
to ensure he was not having the witness read from a
document not in evidence, as opposed to merely
refreshing his recollection. Thereafter the defendants’
counsel asked Eagar to review the document to refresh
his recollection, and then asked, per the court’s ruling,
if the scope of his testimony had been limited. The
defendants’ counsel then concluded his cross-examina-
tion.
When the court instructed the jury at the conclusion
of evidence, it stated in part: ‘‘There are a number of
things that may have been said or heard during the trial
which are not evidence and which you cannot rely on
as evidence in deciding whether a party has proven a
claim or defense. For example, the statements made
by lawyers . . . are not evidence. A question is not
evidence. It is the answer, not the question or the
assumption made in the question, that is evidence.’’
The plaintiff now claims, after the court granted his
request for a curative instruction11 and after the court
issued an instruction on the evidentiary value of state-
ments made by counsel as part of its charge to the jury,
that the court’s instructions were insufficient to remedy
the alleged harm. He argues in his brief that the first
curative instruction and the charge to the jury were
‘‘insufficient and failed to cure the harm caused by the
defendants’ conduct. The inquiry and resulting damage
to the impartiality of the jury . . . had been done.’’ The
plaintiff analogizes this case to that of Yeske v. Avon
Old Farms School, Inc., 1 Conn. App. 195, 204, 470 A.2d
705 (1984), in which this court held that comments
made by counsel casting aspersions on opposing coun-
sel, among other remarks, ‘‘went far beyond the bound-
aries of legitimate comments made during the heat of
forensic warfare. . . . No curative instruction by the
court could remedy their maliciousness.’’ We do not
agree. By requesting curative instructions and not
objecting to the instructions given by the court, the
plaintiff waived any claim of error.
‘‘[T]he impact of . . . improper [questions and] argu-
ments can usually be nullified by the court’s curative
instruction.’’ Fonck v. Stratford, 24 Conn. App. 1, 4, 584
A.2d 1198 (1991). If a party objects to an instruction,
‘‘in order [t]o preserve [the] exception . . . a party
must either submit a written request to charge or state
distinctly the matter objected to and the ground of
objection. . . . It is our long-standing position that [t]o
review [a] claim, which has been articulated for the
first time on appeal and not before the trial court, would
result in a trial by ambuscade of the trial judge. . . .
The purpose of the rule is to alert the court to any
claims of error while there is still an opportunity for
correction in order to avoid the economic waste and
increased court congestion caused by unnecessary
retrials.’’ (Citation omitted; emphasis omitted; internal
quotation marks omitted.) Rendahl v. Peluso, 173 Conn.
App. 66, 106, 162 A.3d 1 (2017).
Our review of the record discloses that the plaintiff
did not object following the curative instruction that
the court issued concerning the event flyer. Moreover,
the court repeated this instruction in its charge to the
jury. Prior to issuing the charge, the court stated to
counsel: ‘‘I just want to confirm that you’ve had an
opportunity to look at the charge and the interrogato-
ries, and you’re satisfied that those requested changes
were made.’’ Both counsel replied in the affirmative
and neither of them objected to the court’s proposed
charge. The court then gave the charge that counsel had
reviewed. After it excused the jurors to the deliberation
room, the court asked both counsel if they wished to
comment on the charge. Counsel for the plaintiff replied
that ‘‘only if the changes reflect as you read it into
the record, I have—I have no comments.’’ The court
discussed several unrelated revisions but, in the
absence of any objection, did not modify the charge
with respect to the evidentiary value of statements by
counsel. The court offered both counsel the opportunity
to review the revised charge, and the plaintiff’s counsel
responded that he would ‘‘waive that.’’ This colloquy
clearly demonstrates that the plaintiff had several
opportunities to object to the jury charge given by the
court but did not do so.
The court took ameliorative action to remedy the
plaintiff’s claim that counsel for the defendants preju-
diced the jury with its instructions to the jury. As the
plaintiff concedes in his brief, ‘‘a tailored and succinct
instruction is the remedy short of a mistrial.’’ ‘‘If curative
action can obviate the prejudice, the drastic remedy of
a mistrial should be avoided. . . . Indeed, the courts
have always given great weight to [curative] instruc-
tions in assessing claimed errors.’’ (Citation omitted,
internal quotation marks omitted.) Pin v. Kramer, 119
Conn. App. 33, 43, 986 A.2d 1101 (2010), aff’d, 304 Conn.
674, 41 A.3d 657 (2012).
‘‘Waiver is the voluntary relinquishment of a known
right. . . . To determine whether a party has waived
an issue, the court will look to the conduct of the parties.
. . . [W]aiver may be effected by action of counsel.
. . . When a party consents to or expresses satisfaction
with an issue at trial, claims arising from that issue are
deemed waived and may not be reviewed on appeal.§
(Citations omitted; internal quotation marks omitted.)
State v. Miranda, 327 Conn. 451, 461, 174 A.3d 770(2018); id., 462 (objection to improper testimony waived
when ‘‘the defendant never requested earlier action
from the trial court, affirmatively indicated that the
court could remedy the issue through the final charge
to the jury, and then ultimately approved of the court’s
proposed instructions’’). In the present case, the plain-
tiff accepted the first curative instruction, which he
himself had requested. The plaintiff then received and
accepted, without objection, the benefit of a jury charge
that addressed the conduct of the defendants’ counsel
with respect to both his reading from the flyer and his
examination of Eagar. We, therefore, decline to review
the plaintiff’s claim that the court’s instruction was
improper.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
In this opinion, we refer to these parties, who were united in interest,
represented by the same counsel at trial, and treated by stipulation as a
single party, collectively as the defendants.
2
The defendants filed an answer and special defenses. In their special
defenses, the defendants alleged that (1) the plaintiff’s claims were ‘‘either
completely or partially barred pursuant to . . . [General Statutes] § 52-572h
(b), insofar as he did not exercise ordinary caution and prudence for his
own safety, nor did he exercise the care and prudence that a reasonable
person in the plaintiff’s position would have exercised,’’ (2) the plaintiff
failed to mitigate his damages, and (3) the plaintiff failed to preserve the
allegedly defective wheel in the condition it was in at the time of the accident.
3
On May 18, 2020, more than nine months following the August 13, 2019
hearing, the plaintiff filed a motion to rectify the record. In that motion, he
sought to correct the text ‘‘[We] were waiting in the . . . courtroom for
approximately half an hour. The defendant’s exhibits were taken into the
jury room at about 4:28. I started to look for the jury clerk . . . .’’ The
plaintiff contended that the transcript should state: ‘‘[We] were waiting in
the . . . courtroom for approximately half an hour after the defendants’
exhibits were taken into the jury room. At about 4:28, I started to look for
the jury clerk . . . .’’ The court denied the motion to rectify on June 30, 2020.
4
The court again noted that, during the presentation of evidence, it had
issued a cautionary jury instruction as to what constituted evidence and
gave a jury charge to the same effect. In the absence of a showing that the jury
disregarded its instructions, the court presumed that the jury heeded them.
5
In his brief, the plaintiff characterizes the delay in delivery as ‘‘approxi-
mately one-half hour’’ after the defendants’ exhibits had been delivered.
6
The defendants also argue in their brief that under Practice Book § 16-
35, the plaintiff failed to timely raise the issue in his motion to set aside
the verdict. ‘‘Motions . . . to set aside a verdict . . . must be filed with
the clerk within ten days after the day the verdict is accepted; provided
that for good cause the judicial authority may extend this time. The clerk
shall notify the trial judge of such filing. Such motions shall state the specific
grounds upon which counsel relies.’’ Practice Book § 16-35. The defendants
argue that the allegations in §§ 6 and 7 of the plaintiff’s motion failed to
clearly state the specific grounds on which the plaintiff relied. Because we
conclude that the plaintiff had an opportunity to raise the issue prior to
the reading of the jury verdict and failed to do so, we do not address
this argument.
7
General Statutes § 52-223 provides: ‘‘The court may, if it judges the jury
has mistaken the evidence in the action and has brought in a verdict contrary
to the evidence, or has brought in a verdict contrary to the direction of the
court in a matter of law, return them to a second consideration, and for
the same reason may return them to a third consideration. The jury shall
not be returned for further consideration after a third consideration.’’
Practice Book § 16-17 similarly provides: ‘‘The judicial authority may, if
it determines that the jury has mistaken the evidence in the cause and has
brought in a verdict contrary to it, or has brought in a verdict contrary to
the direction of the judicial authority in a matter of law, return the jury
to a second consideration, and for like reason may return it to a third
consideration, and no more.’’
8
The plaintiff contends in his reply brief that ‘‘what measures, if any, [he]
could have further taken beyond alerting the clerk to the error while the
jury was deliberating . . . is purely hypothetical.’’ This attempt to shift
responsibility onto the clerk is unavailing, as the plaintiff had ample opportu-
nity to bring the matter to the court’s attention and to put an objection on
the record when court resumed, prior to the reading of the verdict.
9
The trial court characterized the actions of the defendants’ counsel as
‘‘testifying’’ from documents not in evidence.
10
The trial court’s admonition echoes what this court has frequently
reminded counsel, that ‘‘it is improper to read from a document not in
evidence.’’ State v. Fisher, 57 Conn. App. 371, 380, 748 A.2d 377, cert. denied,
253 Conn. 914, 754 A.2d 163 (2000).
11
We note also that the plaintiff requested that the court give a brief
curative instruction.