Appellate Court Notes: Week of August 5

by Pullman & Comley, LLC

Welcome to our Supreme and Appellate Court summaries webpage.  On this page, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted August 5, 2013

  • SC18890 - Marchesi v. Board of Selectmen

When neighbors got into a dispute about the location and width of their street, they brought a CGS 13-39 proceeding to the Board of Selectmen to set the boundaries of the roadway.   When the Selectmen found the road extended through the plaintiff’s property, she appealed. This case held that such appeals are done by way of trial de novo….not as an administrative appeal on the record.  It is essentially a “do over” under CGS 13-40 and therefore the use of summary judgment can be a potential tool to resolve the dispute.  Here, S.J. should not have been granted to the plaintiff because the trial court and Appellate Court incorrectly assumed the Board of Selectmen can only resolve the width of a disputed road….and not its length.  Both the width and length of disputed roads are within the Board of Selectmen’s initial jurisdiction under Section 13-39.

  • SC18935 - D'Ascanio v. Toyota Industries Corp.

Plaintiff brought this product liability action over a defective forklift vehicle. Defendant’s objection to the use of a video by plaintiff’s expert was overruled and it was played to the jury three times.   The video purported to show a safety device the defendant made and put on similar models.  Defendant finally renewed its objection, arguing the expert had lied to the Court and the jury because the video was of a different company’s product.  The defendant asked that the entire testimony of the plaintiff’s expert be stricken as a sanction.  The trial court agreed and granted the motion.   It also refused to grant plaintiff either a continuance to get a new expert or a mistrial….. stating that would not sanction the conduct of plaintiff’s expert enough.  It thereafter granted a directed verdict in favor of the defendant due to the inability of the plaintiff to present an expert.  Citing the new mantra that seems to override all other logical reasoning in CT….that everyone should have their day in court if possible…..(no matter it seems how poor their conduct may be)……this decision held that was too draconian a sanction to impose upon the plaintiff.  Here, precluding the required expert was tantamount to a sanction of dismissal of the case.  The sanction of dismissal should be a last resort….the Court said…..after someone shows they will not correct the error of their ways.  There was no history of ignoring the Court’s order nor any finding that the expert committed fraud or intentional misrepresentation (which statement is inconsistent with the Supreme Court also referring to it as “deceitful testimony”), nor that the plaintiff or his attorney were implicit in the misrepresentation.  Thus the appropriate sanction would have been to preclude the expert’s testimony and allow the plaintiff time to procure a new expert ………..which might also require a mistrial……….and maybe even an assignment of costs for the do-over trial.  Alternatively, the trial court could have instructed the jury to disregard the video and that portion of the expert’s testimony.  (Yeah - right - that would have worked.)  [In an example of how hair splitting we are getting nowadays in CT, the Court notes the plaintiff would still be out of luck if their expert tanked on the witness stand….or was simply disbelieved by the jury…..or was precluded as being disclosed too late…….BUT……...if he lies on the witness stand…….. you should be given more time to get a new one?  Are you kidding me?]  

The concurring justices pointed out how much the expert tried to conceal the true nature of the video and that the trial court had all but hinted that plaintiff’s counsel may not be so squeaky clean on what went down.  How could plaintiff’s counsel not know this was a video of a different machine by a different manufacturer when the other company name appeared right on the machine, they asked incredulously.  So they wanted it understood that the sanction of dismissal is a proper remedy in the future if there is a finding of counsel’s complicity in the bad conduct.

Decedent tried to hang herself off the hospital bathroom door and so the door was ordered locked.   Then the restrictions on her were gradually eased and as soon as the door was left unlocked, she did it again, and it worked.  During the resultant malpractice case, The New York Times ran an article discussing the case just before the jury was empaneled.  Plaintiff’s counsel kept asking the judge to poll each juror to see if they had read the article.  This decision held that the trial judge was justified in refusing to poll each juror on what newspaper articles they might have read on the grounds he was providing the standard instructions to the jurors to ignore any press, and to single out The New York Times article would be like an invitation to them to go look it up. He had to assume the jurors would follow his instructions.  The concurrence would have liked it better had the trial judge added……and ignore anything you have already read,  since the article did come out before their first instruction from the trial judge. 

  • SC18843 - Jones v. Connecticut Medical Examining Board

A valiant fight by our own Elliott Pollack and Megan Carrannante did not convince the Supremes that the Appellate Court got it wrong when they held the standard of proof for physician discipline hearings before the CT Medical Examining Board is the preponderance of evidence standard because the Board is an “agency” subject to the UAPA, 4-166.  The physician had been disciplined by the Board for his treatment of Lyme disease patients.   The Board’s decision was upheld.  There is a lot more to the story underlying the methodology of treating Lyme disease that you can ask Elliott about.  [My only editorial comment is that my family had a very dear friend who was becoming debilitated by Lyme disease until she encountered a physician who prescribed the same type of regimen for her as Dr. Jones recommends….and it saved her life …….and now 10 years later she is ~100% recovered.]  

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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