Kervick v. Silver Hill Hosp.

• Decision Date: 13 August 2013
• Docket Number: 18806.,Nos. 18805,s. 18805
• Citation: Kervick v. Silver Hill Hosp., 309 Conn. 688, 72 A.3d 1044 (Conn. 2013)
• Parties: David KERVICK, Executor (Estate of Ruth Farrell) v. SILVER HILL HOSPITAL et al.
• Court: Connecticut Supreme Court

309 Conn. 688

72 A.3d 1044

David KERVICK, Executor (Estate of Ruth Farrell)

v.SILVER HILL HOSPITAL et al.

Nos. 18805, 18806.

Supreme Court of Connecticut.

Argued Dec. 3, 2012.

Decided Aug. 13, 2013.

Robert C.E. Laney, with whom, on the brief, was Lauren E. Abbate, Stamford, for the appellant in Docket No. SC 18805 (named defendant).

David J. Robertson, with whom, on the brief, were Madonna A. Sacco, Bridgeport, and Rachel E. Katz, for the appellant in Docket No. SC 18806 (defendant Ellyn Shander).

Sandra J. Akoury, for the appellee in both cases (plaintiff).

NORCOTT, PALMER, ZARELLA, EVELEIGH and SHELDON, Js.

EVELEIGH, J.

The primary issue in this certified appeal is whether, in a civil case, the trial court was required to grant a party's request to poll the jury to determine if the jurors had read or otherwise been exposed to a newspaper article concerning the subject matter of the case that was published prior to trial. The defendants, Silver Hill Hospital (hospital) and Ellyn Shander, appeal, following our grant of their petitions for certification, ¹ from the judgment of the Appellate Court reversing the judgment of the trial court that was rendered in their favor after a jury trial. On appeal,² the defendants claim that the Appellate Court improperly concluded that the trial court abused its discretion in declining the request by the plaintiff, David Kervick, the executor of the estate of Ruth Farrell (decedent),³ to poll the jury in order to determine whether any of the jurors had read an article concerning the subject matter of the case that was published in The New York Times (article) prior to trial. In response, the plaintiff claims that the Appellate Court properly concluded that the trial court abused its discretion when it declined to poll the jury. We agree with the defendants and, accordingly, reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts and procedural history. “On January 21, 2002, the decedent admitted herself to the hospital for treatment for numerous illnesses, including major depression and personality disorder. At the time of her admission, the decedent was diagnosed with extremely high suicide ideation and had previously attempted suicide by hanging herself over the bathroom door of her hospital room. As such, the admitting [physician] ordered that the decedent's bathroom door remain locked. Nonetheless, the day after the decedent's admission, Shander, the decedent's treating psychiatrist, ordered that the bathroom door be unlocked and reduced supervision of the decedent from full time to fifteen minute intervals. On January 28, 2002, the decedent committed suicide by hanging herself over the unlocked bathroom door in the same hospital room in which she had previously attempted to do so.

“On February 6, 2004, [the plaintiff] filed this medical malpractice action, claiming that the defendants had failed to meet the standard of care owed to the decedent as a patient of the hospital and that this failure resulted in the decedent's death. In June, 2004, the defendants filed apportionment complaints against Kervick, alleging that his negligence, ‘abuse and hostile behavior’ toward the decedent were the proximate causes of her suicide. Subsequently, Kervick moved to preclude the defendants from presenting expert testimony as to the possible causal connection between his alleged behavior and the decedent's suicide. On November 14, 2007, the court granted Kervick's motion to preclude, finding that the defendants had failed to disclose their proffered experts in a timely manner. Then, on November 19, 2007, [the plaintiff] moved for summary judgment on the apportionment complaints arguing that, without expert testimony as to the possible causal link between [Kervick's] alleged behavior and the decedent's suicide, the defendants would be unable to prevail in their apportionment claims against him. Thereafter, the court denied [the plaintiff's] motion for summary judgment as untimely without considering further the merits thereof.” (Footnotes altered.) Kervick v. Silver Hill Hospital, 128 Conn.App. 341, 343–45, 18 A.3d 622 (2011).

Evidence was scheduled to begin in the present case on November 27, 2007. On November 14, 2007, counsel for the plaintiff notified the trial court that his associate had received a telephone call from The New York Times, notifying her that an article regarding the case was going to be published shortly and, most likely, prior to trial. After bringing the imminent publication of the article to the court's attention, the following colloquy ensued:

“[The Plaintiff's Counsel]: ... We are all concerned I think because the jury, unless it was instructed in the opening remarks by whomever greeted them down there on the first day when they show up about not reading things—

“[The Hospital's Counsel]: She did.... [F]irst of all, we voir dired everyone. And it is part of [the court clerk's] introduction not to expose yourself—remember—to any media.

“[The Plaintiff's Counsel]: Yeah. I just bring it to the court's attention. I don't know what we can do about it but it is out there.

“The Court: Well, let's see. We could think about citing The New York Times and putting a gag order on them. Now that might violate the constitution. I'm not sure what we really can or should do. If counsel agreed that there ought to be some communication made to the jurors then I would be happy to consider that. If it is coming out this weekend, then since today is Wednesday, that means we've got time.

* * *

“The Court: ... If counsel feel[s] that something ought to be done vis-á-vis the jurors, even to the point of calling them in for some sort of an instruction, but sometimes I wonder whether that is more harmful than it is worth. Please do not read your New York Times and go looking for articles about this upcoming case.

“[The Plaintiff's Counsel]: Go out and buy it.

“The Court: You know. It is almost an invitation to—or a temptation to ignore the court's order. So I think everyone has got the same stake in this. Since nobody knows what the article is going to say, it could be helpful, it could be harmful to anybody. In any event they will be told not to do it and to ignore it when I give my opening statement. But if there is a sense that that is too late I will be happy to consider some sort of a prophylactic measure in advance if counsel can agree upon what that is or can make an appropriate application to the court.” (Emphasis added.)

On November 23, 2007, the Friday immediately following Thanksgiving, the article appeared in The New York Times. A. Cowan, “Lawsuit Over a Suicide At a Hospital For the Elite,” N.Y. Times, November 23, 2007, p. B1. The article was extensive, and contained facts concerning the decedent's suicide and the upcoming trial.⁴ Id., pp. B1, B5. At the time the article was published,the jury had been impaneled, but evidence had not yet begun. Despite the trial court's offer to deliver a more specific instruction regarding the article or to take some other type of remedial action prior to trial, the plaintiff's counsel never requested that the court do so before trial.

On November 27, 2007, on the date that evidence was scheduled to begin, counsel for the plaintiff requested that the trial court poll the jury to determine whether any of the jurors had read the article and, if so, whether they had been unduly influenced thereby. The following colloquy ensued:

“[The Plaintiff's Counsel]: Your Honor, I would appreciate it if you would ask the jury when they come in if they read the article in The New York Times.

“The Court: Well, why would I do that?

“[The Plaintiff's Counsel]: To find if anyone has been influenced by it.

“The Court: I saw the article that appeared in The New York Times on Friday, the Friday after Thanksgiving, which I would expect for a lot of working people who get The [New York] Times at their office or read it on the train or whatever, would have been a day when they maybe failed to pick it up, because while it's not a holiday, nevertheless, it's a ... day when a lot of business activities closed. The stock market was only opened for half a day. I read the article. It seemed to be, it didn't seem to be pro plaintiff or pro defendant. There were some factual matters in there. Rather than asking the jury and calling their attention to the [ article ] ... wouldn't it be more prudent simply to instruct them to ignore anything in the press or on the media?

“[The Plaintiff's Counsel]: I think that would be prudent, but I think I would like to have the court find out if anyone has read it. Because I don't know how people interpret what they read. I don't know if it was influential or not. And if it is, we all want a fair trial. So if somebody violated—

“The Court: What is your authority for my interrogating the jury on this one particular reference in the media?

“[The Plaintiff's Counsel]: They were instructed not to read it.

“The Court: They were. Okay. Well, I expect that if it comes to their attention that somebody has read it, then we'll be hearing about it.

“[The Plaintiff's Counsel]: Well, how are we going to hear about it, unless we ask?

“The Court: I would expect that any jurors might report misconduct. That's usually the way we hear about it.

“[The Plaintiff's Counsel]: So the court is not going to ask them if they've—

“The Court: I'm not inclined to do so, but you're standing up here as the plaintiff's attorney and you're not representing to me that everybody has suggested that this is the proper thing to do.... Now, look, if you have an agreement and you came to me and you said: ‘We've agreed upon this procedure. This is what we want to do with respect to the article.’ Then I might be willing to listen. But the jurors are here. We're ready to hear evidence. If you don't have a plan, we're not [putting] one together at the last moment....

“[The Plaintiff's Counsel]: Judge, [wi...