Guiliano v. Jefferson Radiology, P.C. ( 2021 )

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RONNA-MARIE GUILIANO v. JEFFERSON
RADIOLOGY, P.C., ET AL.
(AC 42835)
Bright, C. J., and Alvord and Devlin, Js.
Syllabus
The plaintiff sought to recover damages for the alleged medical malpractice
of the defendants, a radiology practice and a physician, claiming that
they were negligent in failing to timely diagnose a malignancy in her
left breast, resulting in a delay in the diagnosis and treatment of her
cancer. At trial, the plaintiff sought to offer the testimony of G, a radiolo-
gist, regarding the proper standard of care, and the testimony of L, a
radiology oncologist who treated the plaintiff. The defendants’ counsel
objected to the form of certain questions posed to G by the plaintiff’s
counsel, many of which the trial court sustained, and the trial court
imposed a time limitation on the length of the plaintiff’s direct examina-
tion of L. The jury returned a verdict in favor of the defendants and the
court rendered judgment for the defendants, from which the plaintiff
appealed to this court. Held:
1. The plaintiff could not prevail on her claim that the trial court abused
its discretion by sustaining the objections of the defendants’ counsel to
the form of certain questions that were posed by her counsel to G
because the court’s evidentiary rulings were harmless; although the
court did sustain objections to certain questions asked by the plaintiff’s
counsel concerning the standard of care and whether the defendants
had breached that standard, the trial transcripts reflected that G testified
to those matters later in the proceedings.
2. This court declined to review the plaintiff’s claim that the trial court
abused its discretion by placing a time limit on the presentation of L’s
testimony, the plaintiff having failed to preserve her claim; the plaintiff
raised no objection to the court over the time limit imposed and did
not identify any evidence that she was unable to elicit from L due to
the time limit.
3. This court declined to review the plaintiff’s claim that the time limit
constituted a denial of her right of access to the courts and violated
article first, § 10, of the Connecticut constitution, the plaintiff having
failed to adequately brief her unpreserved claim; the plaintiff’s brief
contained no analysis as to why her unpreserved claim should be
reviewed pursuant to State v. Golding (213 Conn. 233) or any substantive
analysis as to why the time limit constituted a constitutional violation.
Argued April 14—officially released August 10, 2021
Procedural History
Action to recover damages for alleged medical mal-
practice, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
plaintiff withdrew the claims against the defendant Julie
S. Gershon et al.; thereafter, the matter was tried to the
jury before Cobb, J.; verdict and judgment for the named
defendant et al., from which the plaintiff appealed to
this court. Affirmed.
John R. Williams, for the appellant (plaintiff).
Kristin Connors, with whom was Rebecca N. Brin-
dley, for the appellees (named defendant et al.).
Opinion
BRIGHT, C. J. The plaintiff, Ronna-Marie Guiliano,
appeals from the judgment of the trial court, rendered
after a jury trial, in favor of the defendants William
S. Poole, a physician, and Jefferson Radiology, P.C.
(Jefferson Radiology).1 On appeal, the plaintiff claims
that the trial court abused its discretion by sustaining
the objections of the defendants’ counsel to the form
of certain questions her counsel had posed to one of
her expert witnesses. Additionally, the plaintiff claims
that the trial court abused its discretion and violated her
constitutional right of access to the courts by placing
a time limit on her direct examination of a second expert
witness. We disagree and affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to our resolution of the plaintiff’s appeal. The plain-
tiff commenced the present action on April 21, 2014.
In her operative complaint, the plaintiff alleged that she
had a mammogram conducted by Jefferson Radiology
in August, 2010. In December, 2010, the plaintiff com-
plained to a physician of a lump in her left breast. In
January, 2011, the plaintiff attended an appointment
with her primary care physician, who ordered an ultra-
sound on her left breast. A few days after the appoint-
ment, Jefferson Radiology performed an ultrasound on
the plaintiff’s left breast. The reviewing physician noted
that a ‘‘small, benign appearing intramammary lymph
node is seen,’’ and a routine mammographic follow-up
was recommended for the plaintiff. In August, 2011, the
plaintiff again complained of a lump in her left breast
to a health-care provider. A bilateral mammogram was
conducted and a routine follow-up was recommended.
In September, 2012, the plaintiff again reported to
her primary care physician that she had a lump in her
left breast. Jefferson Radiology performed a bilateral
mammogram and an ultrasound on her right breast.2
Poole reviewed the mammograms and ultrasound.
Poole noted that the ‘‘[n]odular density in the left breast
is benign,’’ the ‘‘palpable abnormality felt by the pro-
vider in the right breast at 12 o’clock is not seen on
ultrasound,’’ and ‘‘there is no sonographic evidence of
malignancy.’’ Poole recommended that the plaintiff
return in one year for a screening.
In March, 2013, the plaintiff again complained of a
lump or thickening of her left breast, and Jefferson
Radiology conducted a mammogram and ultrasound on
the plaintiff’s left breast. Jefferson Radiology identified
calcification, a mass, and an abnormal lymph node in
the plaintiff’s left breast. On March 8, 2013, the plaintiff
underwent a biopsy of the lump and the abnormal lymph
node. The tissue from the biopsy demonstrated that
the plaintiff was suffering from infiltrating mammary
carcinoma, and the left axillary lymph node biopsy
showed a metastatic mammary carcinoma. In July,
2013, the plaintiff underwent bilateral mastectomies as
well as removal of multiple lymph nodes.
In her operative complaint, the plaintiff set forth
claims of negligence and vicarious liability. The plaintiff
alleged, inter alia, that the defendants’ negligence in
failing to timely diagnose a malignancy in her left breast
resulted in a delay in the diagnosis and treatment of
her cancer. A jury trial commenced on March 19, 2019.
During the trial, the plaintiff presented the testimony
of two expert witnesses, Linda Griska and Kenneth
Leopold. The testimony of both of these witnesses is
at issue in this appeal. Griska, a diagnostic radiologist
specializing in breast imaging, testified that Poole vio-
lated the relevant standard of care for a radiologist in
2012 when he reviewed the results of the plaintiff’s
September, 2012 mammogram and ultrasound. In par-
ticular, she testified that Poole failed to take additional
views of the left breast based on the results of the
mammogram. She also testified that Poole should have
conducted an ultrasound on the left breast at that time.
Leopold, the plaintiff’s treating radiology oncologist,
testified to the radiation treatment the plaintiff received
and the effects that the defendants’ delayed diagnosis
of the plaintiff’s breast cancer had on her treatment.
Despite the testimony of Griska and Leopold, on April
4, 2019, the jury returned a verdict in favor of the defen-
dants. The court accepted the jury’s verdict and ren-
dered judgment for the defendants. This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
The plaintiff first claims that the trial court abused
its discretion by sustaining the objections of the defen-
dants’ counsel to the form of certain questions that her
counsel had posed to Griska. The plaintiff argues that
the defendants’ counsel engaged in a deliberate strategy
to confuse the plaintiff’s counsel and that the court
‘‘consciously participated in that strategy by prohibiting
[the] plaintiff’s attorney from consulting with anyone
other than cocounsel in her attempt to comprehend the
reasons why the court was excluding her proposed
evidence and explicitly refusing to explain in what
respects the court considered the questions to be objec-
tionable.’’ The plaintiff argues that it was clear to the
court that the plaintiff’s counsel did not comprehend
the basis of the court’s rulings sustaining the objections
to her questions to Griska. The plaintiff further argues
that she was precluded from presenting ‘‘critical expert
evidence’’ in support of her claim as a consequence of
the court’s rulings and that she can only speculate as
to the court’s grounds for sustaining the repeated objec-
tions to the plaintiff’s questions.
The defendants argue that the plaintiff failed to pre-
serve her claims concerning the court’s evidentiary rul-
ings as to Griska, the court’s rulings were proper, and
any errors in the court’s rulings were harmless. We
agree with the defendants that the court’s rulings were
harmless because they did not prevent the plaintiff from
eliciting relevant expert testimony from Griska. Conse-
quently, we do not address whether the plaintiff prop-
erly preserved her claim or the propriety of the
court’s rulings.
The following additional facts and procedural history
inform our conclusion. In the section of the plaintiff’s
appellate brief titled ‘‘statement of the case,’’ the plain-
tiff states that the trial court imposed unexplained limits
on the presentation of her case and references the fol-
lowing colloquy that occurred during the direct exami-
nation of Griska on the afternoon of March 19, 2019:
‘‘[The Plaintiff’s Counsel]: Okay. And in a patient that
presents with—with a nodular density, is taking one
spot view the standard of care to explore that?
‘‘[The Defendants’ Counsel]: Objection to the form.
‘‘The Court: Sustained.
‘‘[The Plaintiff’s Counsel]: Do you have an opinion as
to whether Dr. Poole’s imaging breached the standard
of care?
‘‘[The Defendants’ Counsel]: Objection as to the form.
‘‘The Court: Sustained.
‘‘[The Plaintiff’s Counsel]: When a radiologist
observes a nodular density, how should they explore
that?
‘‘[The Defendants’ Counsel]: Objection to the form.
‘‘The Court: Okay. I’m going to allow that question.
Go ahead.
‘‘[The Witness]: Could you repeat the question?
‘‘[The Plaintiff’s Counsel]: Yes. If a—if a radiologist
observes a nodular density, how—what steps should
they take to explore that?
‘‘[The Defendants’ Counsel]: Objection to the form,
Your Honor.
‘‘The Court: All right.
‘‘[The Defendants’ Counsel]: May we approach?
‘‘The Court: Yes.
(Sidebar)
‘‘The Court: All right. The court’s going to sustain the
objection. All right. Counsel.
‘‘[The Plaintiff’s Counsel]: One moment, Your Honor.
‘‘[The Plaintiff’s Counsel]: Dr. Griska, do you have
an opinion based on medical certainty as to whether
Dr. Poole breached the standard of care?
‘‘[The Defendants’ Counsel]: Objection to the form.
If we could be heard, Your Honor.
‘‘The Court: Yeah. You want to be heard outside—
can we hear this outside the presence of the jury?
‘‘[The Defendants’ Counsel]: Yes, please.
‘‘The Court: All right. I’m going to ask the jury to step
into the jury room for a moment.
(Jury exits the courtroom)
‘‘The Court: Okay.
‘‘[The Defendants’ Counsel]: Your Honor, if Dr. Griska
could be excused while we have this argument outside
the presence of her.
‘‘The Court: Okay. Where is she? All right. Oh, there
you are. If you just step in the hallway for me, please.
(Witness exits the courtroom)
‘‘The Court: Okay. So, the objection has to do with
now because you’re getting into the critical part of your
examination, asking questions related to the expert
opinions—the expert’s opinion on the very topic. And
there’s a series of questions that have to be asked in
the proper way, in the proper format for you to get that
in. So, do you need a break to figure that—I mean, I’m
not going to tell you what to do.
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.
‘‘[The Defendants’ Counsel]: Well, I would object to
a break, Your Honor. This is the essence of the case.
‘‘The Court: Okay.
‘‘[The Defendants’ Counsel]: I—that—I think that—
‘‘The Court: Well.
‘‘[The Defendants’ Counsel]: This is a serious matter
to both of the parties.
‘‘The Court: I know it is. I know it is.
‘‘[The Defendants’ Counsel]: And so, there should not
be a break for [the plaintiff’s counsel] to figure out what
should have been known before the lawsuit was filed.
‘‘The Court: Well, and also before the case was
brought, you know, what questions you’re going to ask
in what precise order at the key time in the examination.
So, are you ready to go forward?
‘‘[The Plaintiff’s Counsel]: Your Honor, if I could have
a ten minute break, I would appreciate it.
‘‘The Court: But the problem is that with I think coun-
sel is going to say is that—and I don’t have any problem
if you consult with [cocounsel], but I do have a problem
if you consult with the witness. So, if I give you a few
minutes to talk to Mr.—to have your conversation with
[cocounsel], that’s fine, but I really think it would be
best if the conversation occurs in the courtroom with-
out the expert present. Would that be okay?
‘‘[The Defendants’ Counsel]: No, I would object to
that, Your Honor, in that she did consult with
[cocounsel] before asking that question. The witness is
on. It’s twenty of three.
‘‘The Court: Hm-hm.
‘‘[The Defendants’ Counsel]: The witness should—
also needs to be cross-examined today.
‘‘The Court: Yes, I know.
‘‘[The Defendants’ Counsel]: So, the witness should
be brought back out. The questioning should be contin-
ued. We should not take a break. We should not assist
any party. We should not assist any party in doing what
is an essential part of the case.
‘‘The Court: Yes. I understand that’s your position.
We’ll take a five minute break. [The plaintiff’s counsel
and cocounsel], please stay in the courtroom. Christie,
I mean, Chelsea, is going to stay here to make sure that
the expert stays in the hallway.
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.
‘‘The Court: Okay? Thank you. All right.
‘‘The Clerk: All rise. Court is now in recess.
(Recess/Resume)
***
‘‘[The Plaintiff’s Counsel]: Dr. Griska, when we refer
to the term of standard of care, what does that refer to?
‘‘[The Witness]: Standard of care is that care that a
similar radiologist who is competent would provide in
a similar circumstance as the one we’re having under
discussion.
‘‘[The Plaintiff’s Counsel]: Okay. And when a radiolo-
gist observes a nodular density upon mammography
what is the steps that a reasonable radiologist would
take?
‘‘[The Defendants’ Counsel]: Objection to the form.
‘‘The Court: Okay. Is your—are you asking for an
expert opinion right now, or are you asking for general-
ized factual—
‘‘[The Plaintiff’s Counsel]: I was, at this point, I was
asking generalized factual information.
‘‘The Court: And is—is that because you are trying
to have her explain what the standard of care is?
‘‘[The Plaintiff’s Counsel]: It’s on the road to
explaining that. Yes, Your Honor.
‘‘The Court: Okay. So, I guess my concern here is
that, you know, you had previously been asking ques-
tions that were foundational. Is that what you’re doing?
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.
‘‘The Court: I’m going to let you ask a few founda-
tional questions, but you need to be very, very careful
about whether this turns to the specific opinions in this
case. Do you understand?
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.
‘‘The Court: So, I’ll give you a little bit of leeway.
‘‘[The Plaintiff’s Counsel]: Thank you, Your Honor.
‘‘The Court: And I would ask the witness to please
try very carefully to just answer the question that is
asked and not to expound on your answer because
counsel will ask you the next question.
‘‘[The Witness]: Yes, Your Honor.
‘‘The Court: Do you understand? Okay.
‘‘[The Witness]: Please repeat.
‘‘[The Plaintiff’s Counsel]: Yes.
‘‘Court Monitor: Would you like me to repeat it?
‘‘[The Plaintiff’s Counsel]: Yes, please.
(Question read by court monitor)
‘‘[The Court Monitor]: And when a radiologist
observes a nodular density upon mammography what
is the steps that a reasonable radiologist would take?
‘‘[The Witness]: When we see a nodular density, we
need to—a radiologist needs to determine if there is
something underlying that is potentially malignant
. . . . So, additional views would need to be done to—
to further evaluate that area.
‘‘[The Plaintiff’s Counsel]: Okay. And when you say
additional views, can you explain that?
‘‘[The Defendants’ Counsel]: Objection to the form,
Your Honor.
‘‘The Court: Overruled. Go ahead.
‘‘[The Witness]: The additional views are some of
those that we discussed this morning and they could
be compression spot views or views from a different
direction or angle.
‘‘[The Plaintiff’s Counsel]: And in this case, what did
Dr. Poole do?
‘‘[The Witness]: He did one additional view.
‘‘[The Plaintiff’s Counsel]: Okay. And in your expert
opinion was that one additional view sufficient to diag-
nose the nodular density?
‘‘[The Defendants’ Counsel]: Objection to the form,
Your Honor.
‘‘The Court: Sustained.
***
‘‘[The Plaintiff’s Counsel]: So, from this view can you
determine where in the breast the calcifications are?
‘‘[The Witness]: I can just say that they’re in the top
of the breast.
‘‘[The Plaintiff’s Counsel]: And how would—how
would a radiologist determine a better location in the
breast?
‘‘[The Witness]: They need to—
‘‘[The Defendants’ Counsel]: Objection to the form,
Your Honor.
‘‘[The Plaintiff’s Counsel]: I’ll—I’ll rephrase that.
‘‘The Court: Okay. Thank you.
‘‘[The Plaintiff’s Counsel]: What would a radiologist
have to do to better identify where in the breast the
calcification was?
‘‘[The Defendants’ Counsel]: Objection to the form,
Your Honor.
‘‘The Court: Okay. Sustained.
‘‘[The Plaintiff’s Counsel]: If a patient presented to
you with these calcifications, what steps would you
take to determine where the calcifications were?
‘‘[The Defendants’ Counsel]: Objection to the form.
‘‘The Court: Sustained.’’
The plaintiff’s argument ignores the following addi-
tional direct testimony of Griska that took place after
the portions of the examination on which the plaintiff
relies. First, later in the afternoon of March 19, 2019,
the following colloquy took place:
‘‘[The Plaintiff’s Counsel]: What is the standard of
care in—in diagnosing micro calcifications?
‘‘[The Defendant’s Counsel]: Objection to the form.
‘‘The Court: All right. I’ll allow that one.
***
‘‘[The Plaintiff’s Counsel]: How is it that you are famil-
iar with the prevailing standard of care?
‘‘[The Witness]: Through my training and experience.
***
‘‘[The Plaintiff’s Counsel]: What is a standard of care
for the physician confronting—confronted with—a sim-
ilar area of concern?
‘‘[The Defendant’s Counsel]: Objection to the form.
‘‘The Court: I’ll allow it.
***
‘‘[The Witness]: The standard of care would be first
to identify the finding, and secondly, to locate the find-
ing in two planes so that precise location could be
identified. So, additional views would need to be per-
formed, magnification views, and potentially other
views with the breast and the machine, in a different
location.
‘‘[The Plaintiff’s Counsel]: And when you say the
machine at a different location you mean the mammog-
raphy machine?
‘‘[The Witness]: Yes.
‘‘[The Plaintiff’s Counsel]: Okay. And in this case, did
Dr. Poole take additional films?
‘‘[The Witness]: No.
***
‘‘[The Plaintiff’s Counsel]: Okay. And do you have an
opinion within a reasonable medical certainty whether
his fail—Dr. Poole’s failure to take additional views fell
below the standard of care?
‘‘[The Defendant’s Counsel]: Objection to the form.
‘‘The Court: All right. Overruled.
‘‘[The Witness]: Yes.
‘‘[The Plaintiff’s Counsel]: In what way?
‘‘[The Witness]: The failure to take additional views,
well first, he didn’t identify the micro calcifications,
and secondly, the failure to take additional views pre-
cluded the ability to establish the diagnosis and the
location of the micro calcifications.’’
Similarly, on the following day, March 20, 2019, during
the continued direct examination of Griska,3 the follow-
ing colloquy occurred:
‘‘[The Plaintiff’s Counsel]: Okay. Now, in September
of [2012, was] there a generally accepted—accepted
procedure for radiologists to follow when a patient
presents with micro calcifications?
***
‘‘[The Witness]: The principles and documentation
of the how to evaluate and—and the basics of micro
calcification analysis are in—were standard in 2012.
‘‘[The Plaintiff’s Counsel]: Okay. And when you say
that they’re standard in 2012, what do you mean by that?
‘‘[The Witness]: I mean that the—the principles of
how to evaluate the calcifications have not changed or
what the possibility of [the calcifications are] represent-
ing has not changed.
‘‘[The Plaintiff’s Counsel]: Okay. And what is the
accepted procedure for radiologists to follow when a
patient presents with micro calcifications?
‘‘[The Witness]: To do the magnification views and
to view the calcifications in more than one direction.
‘‘[The Plaintiff’s Counsel]: And in 2012, did Dr. Poole
follow that accepted procedure?
***
‘‘[The Witness]: No he did not.
***
‘‘[The Plaintiff’s Counsel]: Okay. And did he meet the
standard of care on September 21st, 2012, when he read
the mammogram?
***
‘‘[The Witness]: No.
‘‘[The Plaintiff’s Counsel]: In what way?
‘‘[The Witness]: The findings needed additional
imaging evaluation, which were not performed. He did
not do the magnification spot views, and he did not
evaluate the calcifications to locate them in more than
one projection.’’
With this record in mind, we turn to the applicable
standard of review. ‘‘[B]efore a party is entitled to a
new trial because of an erroneous evidentiary ruling,
he or she has the burden of demonstrating that the
error was harmful. . . . In other words, an evidentiary
ruling will result in a new trial only if the ruling was
both wrong and harmful. . . . Moreover, an eviden-
tiary impropriety in a civil case is harmless only if we
have a fair assurance that it did not affect the jury’s
verdict. . . . A determination of harm requires us to
evaluate the effect of the evidentiary impropriety in the
context of the totality of the evidence adduced at trial.’’
(Citation omitted; internal quotation marks omitted.)
Klein v. Norwalk Hospital, 299 Conn. 241, 254–55, 9
A.3d 364 (2010).
As noted previously in this opinion, we need not
address whether the evidentiary rulings of which the
plaintiff complains were improper, because the plaintiff
has failed to demonstrate that those rulings were harm-
ful to the presentation of her case at trial. Significantly,
the plaintiff has not identified any relevant evidence
that the court precluded the plaintiff from presenting
during Griska’s testimony. During Griska’s testimony,
the court did sustain the objections of the defendants’
counsel to the form of certain questions asked by the
plaintiff’s counsel concerning the applicable standard
of care and whether the defendants breached that stan-
dard of care. As the trial transcripts reflect, however,
Griska did testify on two occasions later in the proceed-
ings, over the objections of the defendants’ counsel,
which objections the court overruled, to the applicable
standard of care and that Poole breached the relevant
standard of care. Simply put, the plaintiff’s unsubstanti-
ated claim that she ‘‘was precluded from presenting
critical expert evidence in support of her claim’’ is con-
tradicted by the record. Because the plaintiff has not
shown any harm from the court’s evidentiary rulings
that are the subject of this appeal, her claim necessar-
ily fails.
II
The plaintiff’s second claim arises from the trial
court’s order limiting the time for direct examination
and cross-examination of the plaintiff’s expert witness,
Leopold. The plaintiff’s claim on appeal is twofold. First,
the plaintiff claims that the trial court abused its discre-
tion by placing a time limit on the presentation of Leo-
pold’s testimony. Second, the plaintiff claims that the
court’s action constituted a denial of the right of access
to the courts and, thus, violated article first, § 10, of
the Connecticut constitution.4 For the reasons that fol-
low, we decline to review the plaintiff’s claims.
The following additional facts and procedural history
are relevant. During the trial proceedings on March 27,
2019, the following colloquy occurred:
‘‘[The Defendants’ Counsel]: So, it’s [the plaintiff’s]
intention that he’s a—a treating physician witness only?
‘‘The Court: That’s what I hear.
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.
‘‘The Court: Okay. All right. So, with respect to Dr.
Leopold, he was disclosed by the plaintiff on June 12th,
2017 as a ‘subpoena-only expert’ to testify as to the
facts and opinions set forth in his reports and records.
The disclosure also states that Dr. Leopold will discuss
the radiation treatment the plaintiff received, and I
quote, ‘as well as the result of the delayed diagnosis of
the breast cancer on treatment for [the plaintiff].’ This
testimony is I quote, ‘expected to be based on review
of [the plaintiff’s] records and his treatment of [the
plaintiff].’ Because Dr. Leopold was disclosed as a treat-
ing fact witness expert only, he will only be allowed to
testify as to an opinion or facts to which fair notice is
given to the—in the disclosed medical records, pursu-
ant to Practice Book § 13-4 (b) (2). To the extent [that
the plaintiff] seeks to ask Dr. Leopold opinion questions
concerning opinions that are not in the medical records,
the defendants are not on fair notice, and, therefore,
such questions should not be asked or elicited by coun-
sel. Do you understand?
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.
‘‘The Court: Okay. So, anything on Dr. Leopold? Okay.
All right. So, now, with respect to the remainder of the
day, what is going to happen this morning, [the plain-
tiff’s counsel]?
‘‘[The Plaintiff’s Counsel]: Your Honor, I plan on call-
ing Alisa Houldcroft, who is I believe in the hallway.
She was parking when we started this argument.
‘‘The Court: Okay. So, you have one family witness
today?
‘‘[The Plaintiff’s Counsel]: Yes.
‘‘The Court: Only one?
‘‘[The Plaintiff’s Counsel]: Yes. And then—
‘‘The Court: And that’s it, and then Dr. Leopold?
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.
‘‘The Court: And Dr. Leopold isn’t coming until two,
correct?
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.
‘‘The Court: All right. So, here’s what I want to say
about Dr. Leopold. So, we only have Dr. Leopold for
three hours today with a fifteen minute break, so it’s
really two hours and forty-five minutes.
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.
‘‘The Court: That time will be split evenly between
the plaintiff and the defendants because Dr. Leopold
isn’t coming back because you have to rest so we can
turn to the defendants’ case, as has been our plan all
along, and as I have repeatedly told you. So, I would
recommend that both parties think carefully about their
direct and their cross-examination, and make sure that
they don’t waste any time on unnecessary questions.
Like, do we have to spend a half an hour on his curricu-
lum vitae, for example?
‘‘[The Plaintiff’s Counsel]: No, Your Honor.
‘‘The Court: Okay. But if you do that, that will be on
you because I will give you a deadline, and when that
deadline comes, you will be done. We will take a break
and I will turn to [the defendants’ counsel], and I will
say you get the rest of the time. And if she doesn’t use
the rest of the time, and there’s time for rebuttal, then
you’ll have rebuttal. If not, we’re done.
‘‘[The Defendants’ Counsel]: I—if I could, Your
Honor. I think we need to shorten the amount of time
that we’re each given. Are you still having the show
cause hearing at two?
‘‘The Court: Oh, yeah, that’s right.
‘‘[The Defendants’ Counsel]: And also we have a
motion for directed verdict. So, I filed just a preliminary
yesterday, because I don’t want to give a roadmap to
the plaintiff’s counsel as to what they could possibly
have done on their last day. So, we also need time for—
‘‘The Court: Oh, I forgot about that.
‘‘[The Defendants’ Counsel]: —me to provide to you
the motion for a directed verdict.
‘‘The Court: Okay.’’
We now address each of the plaintiff’s claims in turn.
A
The plaintiff first claims that the trial court abused
its discretion by placing a time limit on the presentation
of Leopold’s testimony. The plaintiff makes this claim
despite never raising to the trial court any objection to
the time limit it imposed or identifying to the court any
evidence she was unable to elicit from Leopold due to
the time limit.
‘‘As this court repeatedly has stated, we will not
review an issue on appeal that was never properly raised
in or decided by the trial court.’’ Billboards Divinity,
LLC v. Commissioner of Transportation, 133 Conn.
App. 405, 411, 35 A.3d 395, cert. denied, 304 Conn. 916,
40 A.3d 783 (2012). ‘‘Practice Book § 60-5 provides in
relevant part that [t]he court shall not be bound to
consider a claim unless it was distinctly raised at the
trial or arose subsequent to the trial. . . . Indeed, it is
the appellant’s responsibility to present such a claim
clearly to the trial court so that the trial court may
consider it and, if it is meritorious, take appropriate
action. That is the basis for the requirement that ordi-
narily [the appellant] must raise in the trial court the
issues that he intends to raise on appeal. . . . For us
[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.
. . . We have repeatedly indicated our disfavor with
the failure, whether because of a mistake of law, inatten-
tion 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 unsatis-
factory, with the assignment of such errors as grounds
of appeal.’’ (Internal quotation marks omitted.) Stur-
geon v. Sturgeon, 114 Conn. App. 682, 693, 971 A.2d
691, cert. denied, 293 Conn. 903, 975 A.2d 1278 (2009).
As previously noted, in the present case, the record
shows that the plaintiff did not object to the court’s
imposition of a time limit before she started her exami-
nation of Leopold. Furthermore, at no time during or
after Leopold’s testimony did the plaintiff claim that
the court’s time limit prevented her from eliciting any
evidence from Leopold. In fact, after Leopold concluded
his testimony, the court inquired as to whether the
plaintiff had any other evidence or testimony to present.
In response, the plaintiff’s counsel answered in the neg-
ative and did not claim that the court’s imposition of
a time limit on Leopold’s testimony in any way impacted
the presentation of her case. Thus, because we conclude
that the plaintiff failed to preserve her claim that the
court abused its discretion by placing a time limit on
the presentation of Leopold’s testimony, we decline to
review the plaintiff’s claim.5
B
The plaintiff next claims that the court’s imposition
of the time limit constituted a denial of her right of
access to the courts and, thus, violated article first,
§ 10, of the Connecticut constitution. We decline to
review the plaintiff’s claim because it has been inade-
quately briefed.
We begin by setting forth the plaintiff’s entire argu-
ment in her appellate brief regarding the constitutional-
ity of the time limit imposed by the court: ‘‘But the
court’s draconian limitation of the time allowed for
presentation of the plaintiff’s case went beyond a mere
abuse of discretion. It amounted to denying the plaintiff
the right to present her case in any meaningful way.
As such it constituted a denial of the right of access
to the courts guaranteed by [article first, § 10], of the
Connecticut constitution. This is so because lawsuits
seeking damages for personal injuries caused by negli-
gence were recognized at the time the constitution was
adopted in 1818 and have been recognized ever since
that time, and neither the legislature nor the court has
provided an alternative to the judicial remedy in such
cases. See Gentile v. Altermatt, 169 Conn. 267, 284–86,
363 A.2d 1 (1975); Daily v. New Britain Machine Co.,
200 Conn. 562, 585, 512 A.2d 893 (1986); Zapata v.
Burns, 207 Conn. 496, 514–16, 542 A.2d 700 (1988);
Ruben & Williams, The Constitutionality of Basic Pro-
tection, 1 Conn. L. Rev. 44, 46 n. 13 (1986). See generally,
Limiting the Length of Civil Trials?, 2 No. 3 ABA J.
E-Report 2 (2003).’’ (Footnote omitted.)
Initially, we note that the plaintiff raises this constitu-
tional claim for the first time on appeal. It therefore was
not properly preserved in the trial court. ‘‘We consider
unpreserved claims of constitutional magnitude
according to the requirements of [State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by
In re Yasiel R., 317 Conn. 773, 780–81, 120 A.3d 1188(2015)] . . . .’’6 Stacy B. v. Robert S., 165 Conn. App.
374, 381, 140 A.3d 1004 (2016). Nevertheless, the plain-
tiff’s brief neither includes a Golding analysis nor
requests extraordinary review of her claim under any
other exception to the preservation rule. For this reason
alone, the plaintiff has failed to adequately brief her
constitutional claim and the claim is deemed aban-
doned. See, e.g., State v. Tierinni, 144 Conn. App. 232,
238, 71 A.3d 675 (‘‘[A party’s] failure to address the four
prongs of Golding amounts to an inadequate briefing
of the issue and results in the unpreserved claim being
abandoned. . . . We will not engage in Golding . . .
review on the basis of . . . an inadequate brief.’’ (Inter-
nal quotation marks omitted.)), cert. denied, 310 Conn.
911, 76 A.3d 627 (2013).7
In addition, the plaintiff’s appellate brief also does
not provide any substantive analysis of why the court’s
action constituted a constitutional violation. Certainly,
none of the cases on which she relies discusses time
limits imposed by a trial court, let alone considers
whether such limits violate our state constitution. In
the end, the plaintiff’s argument consists of little more
than a bare assertion that the court’s time limit deprived
her of her ‘‘right to present her case in any meaning-
ful way.’’
‘‘Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly. . . . Where a claim receives
only cursory attention in the brief without substantive
discussion, it is deemed to be abandoned.’’ (Internal
quotation marks omitted.) Billboards Divinity, LLC
v. Commissioner of Transportation, supra, 133 Conn.
App. 412. Applying this principle, we conclude that the
plaintiff has abandoned her unpreserved constitu-
tional claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The complaint was withdrawn as to the defendants Jinnah A. Philips,
Julie S. Gershon, Mandell & Blau, P.C., and Physicians for Women’s Health,
LLC, and they are not parties to this appeal. Stephen Reich, who was a fact
witness before the trial court, filed an appearance for purposes of seeking
a protective order regarding a notice of deposition. He is a named defendant,
but is not involved in this appeal. Accordingly, for purposes of this opinion,
we refer to Jefferson Radiology, P.C., and William S. Poole, collectively, as
the defendants.
2
The record contains conflicting evidence as to why an ultrasound was
performed on the right breast and not the left breast.
3
As previously noted in this opinion, the plaintiff argues that during her
March 19, 2019 direct examination of Griska the court improperly precluded
the plaintiff’s counsel from discussing the court’s rulings on the objections
of the defendants’ counsel to her questions with anyone other than her
cocounsel. In making this argument, the plaintiff ignores the fact that Griska
was still on direct examination when court adjourned for the day on March
19, 2019. Thus, her counsel had the opportunity before Griska resumed her
direct testimony on March 20, 2019, to discuss the court’s prior evidentiary
rulings and Griska’s continued testimony with anyone she liked, includ-
ing Griska.
4
The constitution of Connecticut, article first, § 10, provides: ‘‘All courts
shall be open, and every person, for an injury done to him in his person,
property or reputation, shall have remedy by due course of law, and right
and justice administered without sale, denial or delay.’’
5
Even if we were to assume that the court abused its discretion in imposing
a time limit on the presentation of Leopold’s testimony, we note that the
plaintiff has failed to demonstrate any harm by failing to identify on appeal
the relevant evidence that she would have sought to elicit during Leopold’s
testimony if additional time had been provided.
6
‘‘Under Golding, a [party] can prevail on a claim of constitutional error
not preserved at trial only if the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived the [party] of a fair
trial; and (4) if subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional violation beyond a
reasonable doubt. In the absence of any one of these conditions, the [party’s]
claim will fail. The appellate tribunal is free, therefore, to respond to the
[party’s] claim by focusing on whichever condition is most relevant in the
particular circumstances.’’ (Internal quotation marks omitted.) In re Riley
B., 203 Conn. App. 627, 636, 248 A.3d 756, cert. denied, 336 Conn. 943, 250
A.3d 40 (2021).
7
We further note that the plaintiff did not affirmatively request in her
brief that her claim concerning the court’s imposition of a time limit be
reviewed under the plain error doctrine. ‘‘[I]t is well established that this
court [is not obligated to] apply the plain error doctrine when it has not
been requested affirmatively by a party . . . .’’ (Internal quotation marks
omitted.) Gartrell v. Hartford, 182 Conn. App. 526, 540 n.12, 190 A.3d 904(2018).