Tate v. Safeco Ins. Co. of Illinois ( 2015 )

******************************************************
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.
******************************************************
LORENE TATE v. SAFECO INSURANCE COMPANY
OF ILLINOIS ET AL.
(AC 36279)
DiPentima, C. J., and Alvord and Pellegrino, Js.
Argued February 10—officially released May 26, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Sommer, J.)
James O. Gaston, for the appellant (plaintiff).
Christopher M. Russo, for the appellee (named
defendant).
Michael T. Vitali, for the appellee (defendant Marjo-
rie Meketa).
Opinion
DiPENTIMA, C. J. The plaintiff, Lorene Tate, appeals
from the judgment of the trial court, rendered after a
jury trial, following the denial of her motion to set aside
the verdict and for a new trial. On appeal, the plaintiff
claims that the court erred in limiting her expert witness
physician from referring to records in evidence com-
piled by other medical providers while allowing the
expert witnesses called by the defendants, Safeco Insur-
ance Company of Illinois (Safeco)1 and Marjorie Mek-
eta, to reference them in their testimony. Additionally,
the plaintiff argues that the court’s ‘‘cumulative errone-
ous rulings, obstruction and interference with the plain-
tiff’s presentation of her case, and perceived bias at
trial unduly prejudiced the plaintiff, rose to the level
of harmful error, and prevented her from securing a
fair trial.’’ We affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to the
appeal. On June 19, 2009, the plaintiff’s automobile was
involved in a low-speed collision with the Meketa vehi-
cle on Islandbrook Avenue in Bridgeport. Following
the impact, the Meketa vehicle attempted to leave the
scene, and the plaintiff pursued it until she was able
to obtain the license plate number of the Meketa vehi-
cle. Once she had secured the license plate number,
the plaintiff terminated her pursuit, drove home, and
called the police.
The responding police officer, Brian Spillane, deter-
mined that the license plate number provided to him
by the plaintiff belonged to a vehicle owned by Meketa.
Spillane examined the plaintiff’s automobile and
observed that it had sustained damage to its left side.
When the Meketa vehicle subsequently was examined
by Officer Samuel McKelvie on June 22, 2009, however,
he could not observe anything ‘‘out of the ordinary,’’
besides ‘‘regular . . . scratches and scrapes . . . .’’
The plaintiff informed Spillane that she had sustained
an injury as a result of the accident. Specifically,
according to Spillane, the plaintiff complained of back
pain, but her injury was ‘‘non-evident.’’2 When Spillane
asked the plaintiff whether she wanted him to call an
ambulance, the plaintiff refused and told Spillane that
she would drive to the emergency room herself because
it was ‘‘just down the street.’’ At the Bridgeport Hospital
emergency room, the plaintiff complained of having
mild pain in her lower back and on the right side of
her neck, radiating down the right arm. The hospital
record further reflects that the plaintiff was observed
limping at the time of the visit but does not reflect any
complaint about her knee.
As the day progressed, however, the plaintiff’s condi-
tion did not improve, and she decided to seek additional
help. Acting on her friend’s advice, the plaintiff set up an
appointment with Anthony Tortorella, a chiropractor,
who agreed to see her the next day, June 20, 2009.
During the appointment, Tortorella performed a series
of tests and diagnosed the plaintiff with having ‘‘[c]ervi-
cal radiculitis with associated cervical sprain strain,
acute moderate wrist pain, [right] knee pain, and dyses-
thesia.’’3 On the basis of the diagnosis, Tortorella pre-
scribed a course of treatment for the plaintiff starting
June 24, 2009.4 On July 24, 2009, Tortorella referred
the plaintiff to Daniel Sheehan, a pain management
physician, for additional testing. The plaintiff, however,
did not schedule an appointment with Sheehan until
September 18, 2009.
Having performed the additional testing, Sheehan
recommended that the plaintiff continue taking ibupro-
fen for pain management and prescribed Flector
Patches for the knee and neck/shoulder area.5 Sheehan
also ordered a Magnetic Resonance Imaging (MRI) of
the cervical spine.6 At the follow up appointments on
October 9, and November 6, 2009, Sheehan recom-
mended that the plaintiff continue taking ibuprofen,
and applying Flector Patches. In addition, because the
plaintiff continued to complain about her knee, Sheehan
prescribed a knee sleeve with a patellar cut-out. On
December 23, 2009, Sheehan ordered a MRI of the knee
because the plaintiff continued to experience pain in
that area. The MRI revealed ‘‘evidence of meniscal tear
of the posterior horn of the lateral meniscus, medial
meniscal tear at the posterior horn and chondromalacia
patella with fraying of the patellar articular cartilage.’’7
On the basis of his reading of the MRI, Sheehan referred
the plaintiff to Edward Staub, an orthopedic surgeon.
Upon the initial examination of the plaintiff, Staub
recommended that she undergo arthroscopic knee sur-
gery. That surgery took place on January 26, 2010. Dur-
ing the surgery, Staub observed an ‘‘irregularity of the
anterior cruciate ligament, suggesting a partial tear,’’
and ‘‘a tear of the lateral meniscus and also moderate
chondromalacia patella, among other findings.’’ On the
basis of these findings, Staub rated the plaintiff as hav-
ing a 20 percent permanent partial disability. Following
the surgery, the plaintiff initially recovered well, how-
ever, in November, 2011, she experienced a recurrence
of the knee pain, which was treated by a cortisone
injection. Despite the cortisone injection, she continued
to complain of discomfort in her knee.
The plaintiff instituted the present action on June 14,
2010, naming Safeco and Meketa as defendants. In her
amended complaint dated August 31, 2010, the plaintiff
alleged that, as a result of the accident, she had sus-
tained serious personal injuries to her cervical spine
and right knee, including ‘‘a tear to the lateral meniscus
of the right knee; tear of the anterior [cruciate] ligament
of the right knee; chondromalacia, lateral femoral con-
dyle and medial facet of the patella . . . and . . .
patellofemoral dysfunction’’ to which surgical interven-
tion was necessitated.8
At trial, the extent and origin of the plaintiff’s right
knee injuries were vigorously contested by the parties.
To support the allegations that her knee was injured
in the accident, the plaintiff presented the testimony
of Tortorella and Staub, and introduced the medical
records of Sheehan, which were admitted into evidence
as full exhibits by the court. Both Tortorella and Staub
testified that the accident was the likely cause of the
plaintiff’s knee injury. Even though Sheehan did not
testify at trial, his records indicated that the plaintiff
sustained her knee injury as a result of the accident.
To dispute the plaintiff’s claims, the defendants pre-
sented the testimony of two orthopedic surgeons: Den-
nis Ogiela and Herbert Hermele. Neither Ogiela nor
Hermele had examined the plaintiff. Instead, both wit-
nesses based their conclusions on their review of the
medical records of Tortorella, Sheehan and Staub, the
emergency room records, and the MRI results.
In his testimony, Ogiela agreed that the plaintiff had
sustained permanent injuries as a result of the accident.
He did not agree, however, with the permanent partial
disability ratings assigned by Sheehan as to the cervical
injury, nor by Staub as to the knee injury. According
to Ogiela, the plaintiff’s cervical injury only warranted
a permanent disability rating of 3 to 5 percent instead
of the 8 to 9 percent assigned by Sheehan, and her knee
injury warranted only a 5 to 7 percent rating instead of
the 20 percent assigned by Staub. Ogiela specifically
disagreed with Staub’s 20 percent rating because chon-
dromalacia and tears of meniscus ‘‘can occur from age
related wear and tear change and just normal mechani-
cal force on the joint. And you can’t really look at that
MRI scan and say all of those things occurred . . . on
the date of that accident.’’ To further substantiate his
argument for a lower knee rating, Ogiela pointed out
that the emergency room records from the date of the
accident had no specific reference to the knee injury,
indicating instead that, upon examination, the plaintiff’s
extremities were noted as being normal, and that the
records from subsequent examinations by Tortorella
and Sheehan had not detected effusion, excess fluid in
the joint, or any sign of laxity of the cruciate ligament
indicating that there had been a partial or a complete
tear.
Hermele also opined that it was not likely that the
plaintiff had sustained all of her knee injuries in the
accident. Hermele testified that he arrived at this con-
clusion because ‘‘this was a low velocity motor vehicle
accident, that when [the plaintiff] presented to the
emergency room the focus was her back. There was
no mention made of knee pain. She was seen by more
than one person in the emergency room that’s a triage
nurse, treating nurse, treating physician. Nobody men-
tioned any knee pain.’’ According to Hermele, an injury
involving an anterior cruciate ligament and an acute
meniscus tear is not a minor sort of injury, but an injury
from which ‘‘patients hurt a great deal and they mention
this.’’ Hermele further testified that he believed that the
plaintiff probably had a contusion of her right knee as
a result of the accident, but that other findings made
by Staub during the surgery were more likely than not
preexisting. In conclusion, Hermele testified that a med-
ical probability of the plaintiff sustaining a tear of the
meniscus as a result of a low-speed accident was ‘‘much
less’’ than one percent.
Upon the conclusion of the case, the jury returned a
plaintiff’s verdict. The plaintiff was awarded $7,607.54
in economic damages and $7,607.54 in non-economic
damages. The accompanying jury interrogatories indi-
cated that the jury compensated the plaintiff in full
for her expenses at the Bridgeport Hospital emergency
room, MRI imaging, and services provided by Tortorella
and Sheehan. The interrogatories, however, specified
that the jury declined to compensate the plaintiff for any
expenses she had incurred in connection with Staub’s
treatment and the knee surgery. On March 20, 2013, the
plaintiff filed a motion to set aside the jury verdict and
for a new trial. On October 15, 2013, the court denied
the motion and rendered judgment for the plaintiff.
This appeal followed. Additional facts will be set forth
as necessary.
I
The plaintiff first claims that the court erred in lim-
iting Staub from referring to Sheehan’s records while
allowing the defendants’ expert witnesses to reference
them in their testimony. Specifically, the plaintiff argues
that the court’s ruling ‘‘was not only erroneous, but
harmful error as it completely tied the hands of the
[p]laintiff and precluded her from introducing highly
relevant evidence to support the diagnoses, treatment
and causation of the right knee injury.’’ Having reviewed
the record, we conclude that the alleged error, if any,
was harmless.
The following additional facts are relevant to our
discussion. During Staub’s testimony the following col-
loquy took place among the court, Safeco’s counsel,
and the plaintiff’s counsel:
‘‘[The Plaintiff’s Counsel]: Doctor, we talked about—
we talked about the hospital visit, we talked about Doc-
tor Tortorella’s treatment and care, and you also have
records of doctor—Doctor Sheehan, correct?
‘‘[Staub]: Correct.
‘‘[The Plaintiff’s Counsel]: All right. And you’ve
reviewed the records of Doctor Sheehan?
‘‘[Staub]: Yes.
‘‘[The Plaintiff’s Counsel]: All right. And are the
records of Doctor Sheehan—well, first of all, Doctor
Sheehan notes knee injury as well, correct?
‘‘[Staub]: Yes.
‘‘[The Plaintiff’s Counsel]: And just for the record,
you’re talking about plaintiff’s exhibit 18. And Doctor
Sheehan indicates in his—in plaintiff’s exhibit 18 his
September 18, 2009 note, bilateral knee pain, which is
more severe on the right. Is that consistent with your
findings and diagnosis as to the right knee injury?
‘‘[Staub]: Yes.
‘‘[The Plaintiff’s Counsel]: And on Doctor Sheehan’s
October 9, 2009 report, he notes right anterior knee
pain—
‘‘[Safeco’s counsel]: Objection, Your Honor, those are
Doctor Sheehan’s records not Doctor Staub’s.
‘‘[The Court]: That is correct.
‘‘[The Plaintiff’s Counsel]: And these are full exhibits,
Your Honor.
‘‘[The Court]: And the doctor may be asked a question
but the process that is being followed right now, Doctor
Sheehan is not here. So the objection is sustained. You
may ask a question of Doctor Staub, who is here to
testify.
‘‘[The Plaintiff’s Counsel]: Right. And I’m asking him
about Doctor Sheehan’s—
‘‘[The Court]: And you may ask the questions. You
may ask questions.
‘‘[The Plaintiff’s Counsel]: Looking at Doctor Shee-
han’s report, which you have as part of your file of
October 9, 2009, do you have that?
‘‘[Staub]: Yes, I do.
‘‘[The Plaintiff’s Counsel]: And it’s part of a—
‘‘[Staub]: It’s part of my file.
‘‘[The Plaintiff’s Counsel]: All right. And his assess-
ment with respect to number—number 2, right anterior
knee pain due to traumatic on side of right knee patella
femoral dysfunction, is that consistent with your
findings?
‘‘[Safeco’s counsel]: Objection, Your Honor. It’s . . .
Doctor Sheehan’s conclusions they’re not Doctor
Staub’s.
‘‘[The Plaintiff’s Counsel]: I’m asking Doctor Staub
whether that’s consistent with his diagnosis and his
findings.
‘‘[The Court]: Doctor Sheehan’s records are admissi-
ble and Doctor Staub may testify as to his examination,
his findings, and his conclusions as well as any treat-
ment that he provided to the plaintiff. But to have Doc-
tor Staub interpret Doctor Sheehan’s records is not
admissible.
‘‘[The Plaintiff’s Counsel]: Doctor, is it common prac-
tice to review medical records of other doctors in treat-
ing a patient?
‘‘[Staub]: Yes.
‘‘[The Plaintiff’s Counsel]: And, in fact, is it—indepen-
dent medical exam—do doctors do that?
‘‘[Staub]: All the time.
‘‘[The Plaintiff’s Counsel]: And in this case you had
Doctor Sheehan’s medical records provided to you,
correct?
‘‘[Staub]: Yes.
‘‘[The Plaintiff’s Counsel]: And you reviewed those,
correct?
‘‘[Safeco’s counsel]: Leading, Your Honor.
‘‘[The Court]: Sustained.
‘‘[The Plaintiff’s Counsel]: Were—and were those—
were those of assistance to you?
‘‘[Staub]: Of Course.
‘‘[Safeco’s counsel]: Leading, Your Honor.
‘‘[The Plaintiff’s Counsel]: That’s not a leading ques-
tion. Were they of assistance?
‘‘[The Court]: Excuse me. I didn’t ask for—the objec-
tions are sustained. You may proceed.
***
‘‘[The Plaintiff’s Counsel]: And, doctor—and, doctor,
what was the—was there any mention—was there any
mention in the October 9, 2009 medical report of Doc-
tor Sheehan?
‘‘[Staub]: Are you asking if—in my—in my medical
report?
‘‘[The Plaintiff’s Counsel]: No. No. In the—
‘‘[Staub]: If I mentioned Doctor Sheehan?
‘‘[The Plaintiff’s Counsel]: In the October 9, 2009
report of Doctor Sheehan, did he—did he reference the
right knee?
‘‘[Staub]: Are you asking me this report that I have
in my hand? I don’t see a date on it. Date of visits 9-
19 is that—it wasn’t—
‘‘[The Plaintiff’s Counsel]: That was the first one.
‘‘[Staub]: Oh.
‘‘[The Plaintiff’s Counsel]: Hold on. Let me just see
this really quick. October—
‘‘[Staub]: Would you repeat the question?
‘‘[The Plaintiff’s Counsel]: Sure. Looking at—looking
at the October 9, 2009 medical record of Doctor Shee-
han which is marked plaintiff’s exhibit 18, is there men-
tion of the right knee in that report?
‘‘[Staub]: Yes.
‘‘[The Plaintiff’s Counsel]: And is the mention of the
right knee in that report right knee range of motion
testing reproduces anterior knee pain. Is that consistent
with your diagnosis and findings?
‘‘[Staub]: It was, yes.
‘‘[The Plaintiff’s Counsel ]: All right. It also says with
light palpation she has tenderness of the anterior, again,
to that right knee area, is that consistent with your
findings and diagnosis?
‘‘[Safeco’s counsel]: Objection, Your Honor. Again,
he’s commenting on an examination by a different doc-
tor that he didn’t do.
‘‘[The Plaintiff’s Counsel]: He’s allowed to—
‘‘[The Court]: I’m going to overrule the objection. You
can address that on cross-examination.
‘‘[Safeco’s counsel]: Thank you, Your Honor.
‘‘[The Court]: Even though, technically—well, you
may proceed. The objection is overruled.
‘‘[The Plaintiff’s Counsel]: Thank you. . . . And if
we—if we look at the [November 6, 2009] report of
Doctor Sheehan also marked plaintiff’s exhibit 18,
where it says flexure and extension of right knee or
reproduced anterior and lateral knee pain, is that also
consistent with your diagnosis?
‘‘[Staub]: Yes.
‘‘[The Plaintiff’s Counsel]: And, doctor, based—based
on reasonable medical probability, could you tell us
what was the diagnosis with respect to the injuries that
[the plaintiff] had—[the plaintiff] had from the motor
vehicle incident of June 19, 2009?
‘‘[Staub]: I think the twisting injury of her knee caused
the acute tear of the lateral meniscus. The direct impact
of the knee against the console caused damage to the
articular surface of the patella and chondromalacia of
the patella, which I would call traumatic chondroma-
lacia of the patella. And the combination of the com-
pression in the direct hit compression to the knee and
the twist, in my opinion, caused at least a partial tear
of the anterior cruciate ligament and probably damage
to the remaining ligament because it did not look
healthy. And there was no previous history of trauma
to the knee or injuries or reason for this.
‘‘[The Plaintiff’s Counsel]: All right. And based on
reasonable medical probability, could you tell us, again,
what was your permanent partial disability rating
with—
‘‘[Staub]: I recommended a total 20 [percent]. [Five
percent] because of the meniscus tear and the need to
remove probably 30 [percent] of the lateral meniscus.
Damage to the lateral femoral—well, to the patella sur-
face chondromalacia, which was what I called grade 3,
fairly extensive. And an abnormal appearing and par-
tially torn anterior cruciate ligament, which I recom-
mended 10 [percent].
‘‘[The Plaintiff’s Counsel]: All right.
‘‘[Staub]: And I recommended 5 [percent] to the chon-
dromalacia. So that all adds up to 20 [percent] of the
permanent impairment of the right knee.
‘‘[The Plaintiff’s Counsel]: All right. Thank you,
doctor.’’
Following Staub’s testimony, the plaintiff filed a
motion to preclude the testimony of the defendants’
two expert witnesses. In her motion, the plaintiff argued
that the defendants’ experts should be precluded from
testifying because their testimony ‘‘is based on medical
records of other physicians and the previous ruling of
the [c]ourt . . . is that physicians are not allowed to
testify based on other physicians’ findings, opinions,
reports, records, or notes.’’ After hearing argument from
both sides, the court denied the plaintiff’s motion.
With this background in mind, we set forth the gov-
erning legal principles. ‘‘Our review of claims of eviden-
tiary impropriety [is] governed by well established
principles. This court will set aside an evidentiary ruling
only when there has been a clear abuse of discretion.’’
(Internal quotation marks omitted.) Terio v. Rama, 104
Conn. App. 35, 39, 930 A.2d 837 (2007), cert. denied,
285 Conn. 912, 943 A.2d 471 (2008). Even when a court’s
evidentiary ruling is deemed to have been improper,
‘‘we [still] must determine 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. . . . [T]he
standard in a civil case for determining whether an
improper ruling was harmful is whether the . . . ruling
[likely] would [have] affect[ed] the result. . . . When
making such a determination, the reviewing court is
constrained to make its determination on the basis of
the printed record before it. . . . In the absence of
a showing that the [excluded] evidence would have
affected the final result, its exclusion is harmless.’’
(Citations omitted; internal quotation marks omitted.)
Id., 43.
On appeal, the plaintiff claims that the ruling of the
court limiting Staub, but not Hermele or Ogiela, to testi-
mony regarding ‘‘his examination, his findings, and his
conclusions as well as any treatment he provided to
the [p]laintiff’’ and not allowing him to reference
records and reports of other physicians is harmful error.
(Emphasis in original; internal quotation marks omit-
ted.) Specifically, the plaintiff argues that the while
Hermele and Ogiela ‘‘were freely permitted to testify
about all the medical records and reports, and focus
on alleged inconsistencies and absence of anticipated
objective and subjective findings, the [p]laintiff was
barred from explaining and opining as to the consistenc-
ies and importance of findings in said records and
reports, particularly of Dr. Sheehan.’’ We are not per-
suaded.
For purposes of this appeal, we assume, without
deciding, that the court’s ruling prohibiting Staub from
using Sheehan’s reports was erroneous. Nevertheless,
having reviewed the record before us, we conclude that
the plaintiff failed to meet her burden of demonstrating
that the alleged error was harmful.
The jury’s decision not to compensate the plaintiff for
any expenses associated with her knee surgery makes it
clear that it did not believe the plaintiff’s testimony that
her knee required surgery as a result of the accident.
Thus, we must determine whether, absent the court’s
adverse evidentiary ruling, Staub’s testimony likely
would have affected the final result. For the following
reasons, we answer this question in the negative.
First, Sheehan’s records themselves, as full exhibits,
were available to the jury. Thus the jury had the oppor-
tunity fully to examine, consider, and refer to Sheehan’s
findings and assessments during its deliberations. In
fact, in closing argument, the plaintiff’s counsel specifi-
cally reminded the jury that Sheehan’s records were
available for their review. An indication that the jury
did consider Sheehan’s records can also be inferred
from the fact that it explicitly compensated the plaintiff
for all expenses that she had incurred as a result of
being treated by Sheehan. Furthermore, during the
questioning of Tortorella, the plaintiff solicited and
obtained an explanation of the nerve conduction test
that had been performed by Sheehan in connection with
the plaintiff’s cervical injury. In addition, during her
own testimony, the plaintiff thoroughly described her
course of treatment with Sheehan, including tests per-
formed, problem areas identified, and medical solutions
prescribed or suggested by him. Significantly, even dur-
ing Staub’s testimony, the plaintiff was able to confirm
that Sheehan’s findings that certain tests ‘‘reproduced’’
the plaintiff’s right knee anterior and lateral knee pain
and that the plaintiff had tenderness of the anterior
were consistent with Staub’s findings and diagnosis.
Thus, the jury was informed adequately about and had
full access to Sheehan’s records both during the trial
and during its deliberations. On the basis of our review
of the record, we thus conclude that the court’s eviden-
tiary ruling did not prevent the jury from considering
the relevant and material evidence contained in Shee-
han’s records.
Second, as we have stated previously in this opinion,
the central issue in the case was whether the plaintiff’s
knee required surgery as a result of the accident, and
not whether she in fact needed the knee surgery. The
expert witnesses for both the plaintiff and the defen-
dants did not disagree that the knee surgery was reason-
able. The point of contention between the defendants
and the plaintiff was whether the low-speed accident
could have caused the injuries requiring the surgery or
whether the plaintiff’s knee problems existed prior to
the accident. Therefore, to support the plaintiff’s theory
of the case—i.e., that the accident had caused the knee
injury—Sheehan’s records must contain some explana-
tion as to how the accident had caused the knee injury
that Staub could have pointed to in support of his own
conclusion. Our review of Sheehan’s records reveals
no such explanation.
Sheehan’s records consist of five separate summaries
of the plaintiff’s visits with him. The summaries neither
contain any discussion of how the accident had caused
the plaintiff’s knee injury, nor do they explain why Shee-
han believed that the knee injury was caused by the
accident. Only the summary from the January 22, 2010
visit contains Sheehan’s conclusion that as ‘‘a result of
trauma sustained in a motor vehicle collision on June
19, 2009, [the plaintiff] has . . . [r]ight knee pain due
to medial and lateral meniscal tears with traumatic
onset of patellar chondromalacia.’’ It is clear, of course,
that such a conclusory statement does not constitute
the type of evidence that an expert witness could have
used to support his opinion. See, e.g., Wallace v. St.
Francis Hospital & Medical Center, 44 Conn. App. 257,
261–62, 688 A.2d 352 (1997) (concluding that where no
evidence had been presented as to source or cause of
decedent’s internal bleeding, any opinion as to cause
of death would necessarily have been speculative).
Moreover, the summary of the plaintiff’s first visit on
September 18, 2009, indicates that Sheehan was under
the impression that the plaintiff’s accident had been a
rear-end collision, while, in fact, the plaintiff’s car had
been hit in the area of the left rear wheel. As the plaintiff
aptly pointed out during cross-examination of Ogiela,
however, ‘‘a rear-end accident as opposed to a side
impact accident . . . presents a different mechanical
feature with respect to what happens to a person in
the car . . . .’’ Given this apparent misunderstanding of
the accident mechanics, it is clear that no one, besides
Sheehan himself, could have testified and explained
with any degree of credibility why the plaintiff’s injuries
were caused by the accident, and exactly how they
might have occurred. We are, thus, convinced that Shee-
han’s records could not have offered support to Staub’s
conclusion that the accident had been the cause of the
plaintiff’s knee injury.
Consequently, having reviewed the record, we con-
clude that the plaintiff failed to meet her burden of
demonstrating that the alleged error by the court in
precluding Staub from referring to Sheehan’s records
was harmful. Therefore the plaintiff’s claim fails.
II
The plaintiff next claims that the court’s ‘‘cumulative
erroneous rulings, obstruction and interference with
the plaintiff’s presentation of her case, and perceived
bias at trial unduly prejudiced the plaintiff, rose to the
level of harmful error, and prevented her from securing
a fair trial.’’9 We are not persuaded.
Because the plaintiff’s claim really raises two distinct
issues, namely, whether ‘‘cumulative erroneous rulings’’
of the court were so harmful that they prevented her
from having a fair trial and whether the court exhibited
bias against the plaintiff, we address each separately.
A
First, the plaintiff claims that the court made ‘‘so
many erroneous rulings against [her] that their cumula-
tive nature arises to harmful error.’’ To support this
proposition, however, the plaintiff cites to no legal prin-
ciple or authority. We have consistently held that ‘‘[w]e
are not required to review issues that have been improp-
erly presented to this court through an inadequate brief.
. . . Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly.’’ (Internal quotation marks
omitted.) State v. Carpenter, 275 Conn. 785, 826, 882
A.2d 604 (2005), cert. denied, 547 U.S. 1025,126 S. Ct.
1578,164 L. Ed. 2d 309 (2006). ‘‘Where a claim is asserted
in the statement of issues but thereafter receives only
cursory attention in the brief without substantive dis-
cussion or citation of authorities, it is deemed to be
abandoned.’’ (Emphasis added; internal quotation
marks omitted.) Kelib v. Connecticut Housing Finance
Authority, 100 Conn. App. 351, 353, 918 A.2d 288 (2007).
In her brief, the plaintiff spends a great deal of time
highlighting the alleged erroneous court rulings, but
provides no meaningful legal analysis to support her
proposition that these alleged errors, when assessed
cumulatively, amounted to harmful error.10 We thus
conclude that without this analysis the plaintiff’s brief
is inadequate for appellate review, and we decline to
review it.11
B
Second, the plaintiff argues that ‘‘the observed lack
of [im]partiality by the [c]ourt’’ amounted to judicial
bias.12 Having reviewed the procedural posture of the
case, we conclude that the plaintiff’s claim of judicial
bias was not properly preserved because she failed to
move to disqualify the judge at any time during the trial
court proceedings in accordance with Practice Book
§ 1-23.13 See Lynch v. Lynch, 153 Conn. App. 208, 248,
100 A.3d 968, (2014), cert. denied, 315 Conn. 923,
A.3d (2015). ‘‘Claims alleging judicial bias should be
raised at trial by a motion for disqualification or the
claim will be deemed to be waived. . . . A party’s fail-
ure to raise a claim of disqualification at trial has been
characterized as the functional equivalent of consenting
to the judge’s presence at trial.’’ (Internal quotation
marks omitted.) Burns v. Quinnipiac University, 120
Conn. App. 311, 316, 991 A.2d 666, cert. denied, 297
Conn. 906, 995 A.2d 634 (2010). ‘‘Our Supreme Court
has criticized the practice whereby an attorney, cogni-
zant of circumstances giving rise to an objection before
or during trial, waits until after an unfavorable judgment
to raise the issue. We have made it clear that we will
not permit parties to anticipate a favorable decision,
reserving a right to impeach it or set it aside if it happens
to be against them, for a cause which was well known
to them before or during the trial.’’ (Internal quotation
marks omitted.) Id. Moreover, ‘‘[t]he fact that a trial
court rules adversely to a litigant, even if some of these
rulings were to be determined on appeal to have been
erroneous, does not demonstrate personal bias.’’ Bie-
luch v. Bieluch, 199 Conn 550, 553, 509 A.2d 8 (1986).
While it is true that because ‘‘an accusation of judicial
bias or prejudice strikes at the very core of judicial
integrity and tends to undermine public confidence in
the established judiciary . . . we . . . [previously]
have reviewed unpreserved claims of judicial bias under
the plain error doctrine [when specifically raised on
appeal].’’ (Internal quotation marks omitted.) Burns v.
Quinnipiac University, supra,120 Conn. App. 317. We
have nevertheless declined to review claims of alleged
judicial bias if no claim of plain error was made by a
party on appeal. See Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn.
123, 162 n.33, 84 A.3d 840 (2014) (reviewing court is
not required to ‘‘raise an issue implicating plain error
. . . sua sponte if a party itself has failed to do so’’);
State v. Moore, 65 Conn. App. 717, 728, 783 A.2d 1100,
(declining review where no plain error claim was
made), cert. denied, 258 Conn. 940, 786 A.2d 427 (2001).
In this case, the plaintiff does not ask for a plain error
review, and, thus, we decline to review her claim of
judicial bias.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff named Safeco as a defendant because, as her automobile
insurance provider, Safeco provided coverage for underinsured motorist
claims.
2
During his testimony, Spillane explained that a non-evident injury is if
‘‘someone tells they’re injured but it’s something I can’t see . . . .’’
3
Dysesthesia is defined as ‘‘[a]bnormal sensations experienced in the
absence of stimulation.’’ Stedman’s Medical Dictionary (28th Ed. 2006).
4
The treatment initially was prescribed for three times a week and then
it was reduced to twice a week with the final treatment occurring on March
5, 2010.
5
The Flector Patch is ‘‘a topical pain medication delivered by a transdermal
patch . . . for the treatment of acute pain due to minor strains, sprains,
and contusions.’’ (Internal quotation marks omitted.) U.S. ex rel. Palmieri
v. Alpharma, Inc., 928 F. Supp. 2d 840, 842 (D. Md. 2013).
6
The MRI revealed that the plaintiff had a small central disc protrusion
at C6-7. On the basis of his findings, Sheehan rated the plaintiff as qualifying
for 8 to 9 percent impairment of the whole person. Sheehan explicitly
declined to assign an impairment rating with respect to the right knee.
7
Chondromalacia is defined as a ‘‘[s]oftening of any cartilage.’’ Stedman’s
Medical Dictionary (28th Ed. 2006).
8
A condyle is defined as ‘‘a rounded articular surface at the extremity of
a bone.’’ Stedman’s Medical Dictionary (28th Ed. 2006).
9
In particular, the plaintiff contents that the court erroneously sustained
several objections during her opening statement, did not allow her to publish
or read the police report to the jury, precluded her from reading or publishing
the medical reports to the jury, and precluded her from questioning Hermele
during cross-examination about his understanding of the mechanics of
the accident.
10
We note that while our research revealed no legal authority on the
subject in the context of civil litigation, our criminal jurisprudence on the
subject of constitutional cumulative error, however, is settled. Connecticut
courts have repeatedly declined ‘‘to create a new constitutional claim in
which the totality of alleged constitutional error is greater than the sum of
its parts.’’ (Internal quotation marks omitted.) State v. Robinson, 227 Conn.
711, 747, 631 A.2d 288 (1993); see also Henderson v. Commissioner of
Correction, 104 Conn. App. 557, 567, 935 A.2d 162 (2007), cert. denied, 285
Conn. 911, 943 A.2d 470 (2008). Even though the cited cases are not directly
on point because they involved constitutional cumulative error claims in
criminal proceedings, the underlying logic carries over into the civil context.
11
We further note that, with the exception of the claim discussed in part
I of this opinion, the plaintiff does not argue that any other alleged erroneous
court ruling by itself was so harmful as to warrant a new trial.
12
While our thorough review of the trial transcript reveals that it was a
highly contested and emotionally charged case, we uncovered no evidence
that would make us question the court’s impartiality.
13
Practice Book § 1-23 provides: ‘‘A motion to disqualify a judicial authority
shall be in writing and shall be accompanied by an affidavit setting forth
the facts relied upon to show the grounds for disqualification and a certificate
of the counsel of record that the motion is made in good faith. The motion
shall be filed no less than ten days before the time the case is called for trial
or hearing, unless good cause is shown for failure to file within such time.’’