Opotzner v. Bass

• Decision Date: 29 May 2001
• Docket Number: (AC 19563)
• Citation: 777 A.2d 718,63 Conn. App. 555
• Court: Connecticut Court of Appeals
• Parties: RICHARD OPOTZNER ET AL. v. WAYNE BASS ET AL.

63 Conn. App. 555

777 A.2d 718

RICHARD OPOTZNER ET AL. v. WAYNE BASS ET AL.

(AC 19563)

Appellate Court of Connecticut.

Argued January 11, 2001.

Officially released May 29, 2001.

Landau, Spear and Daly, Js. Howard A. Jacobs, with whom were Alinor C. Sterling and, on the brief, William F. Dow III, for the appellants (plaintiffs).

Paul D. Williams, with whom were Lawrence A. Ouellette, Jr., and, on the brief, Rene Gerard Martineau, for the appellees (defendants).

Opinion

LANDAU, J.

The plaintiffs, Richard Opotzner and Florence Opotzner,¹ appeal from the judgment of the trial court rendered following the denial of their motion to set aside the verdict. On appeal, the plaintiffs claim that the trial court improperly (1) instructed the jury, (2) excluded evidence and (3) failed to grant their motion to set aside the verdict. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 7, 1996, Richard Opotzner and the defendant Wayne Bass² were each operating motor vehicles in a southerly direction on Pershing Drive in Ansonia. Opotzner stopped his vehicle and waited for an opportunity to turn left. At that moment, Bass' vehicle struck Opotzner's vehicle from behind. The accident was relatively minor. Opotzner reported the accident and told a police officer that he was not injured. More than two weeks later, Opotzner sought medical treatment for neck, leg and arm pain that he claimed was caused by the accident. Opotzner worked and received treatment for pain for several months following the accident. In September, 1996, one of Opotzner's physicians performed surgery in an attempt to relieve Opotzner's pain. Opotzner claimed that the surgery was relatively unsuccessful and he did not return to work. Opotzner eventually claimed that, as a result of the accident, he suffered from a variety of ailments, including traumatic brain injury, chronic pain and depression. The defendants claimed that Opotzner had preexisting medical conditions that could have caused his chronic pain and depression.

The primary issue of contention during the trial was whether the alleged injuries were caused by the accident. The jury found that they were and awarded the plaintiffs $5400 in damages. Other facts will be discussed where relevant.

I

The plaintiffs claim that the court improperly instructed the jury regarding (1) whether adverse inferences could be drawn from the plaintiffs' introduction of medical reports as evidence of causation rather than medical testimony, (2) the burden of proof for future pain and physical impairment, (3) the credibility of the witnesses and (4) comparative negligence.

"Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and ... are not to be judged in artificial isolation from the overall charge.... The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict... and not critically dissected in a microscopic search for possible error.... The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict.... We must review the charge as a whole to determine whether it was correct in law and sufficiently guided the jury on the issues presented at trial....

"Our standard of review on this claim is whether it is reasonably [possible] that the jury was misled.... The test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict." (Internal quotation marks omitted.) Marshall v. O'Keefe, 55 Conn. App. 801, 804-805, 740 A.2d 909 (1999), cert. denied, 252 Conn. 918, 744 A.2d 438 (2000).

A

The plaintiffs first claim that the court improperly failed to instruct the jury that, pursuant to General Statutes § 52-174 (b),³ it could not draw adverse inferences from the plaintiffs' introduction of medical reports as evidence of causation in lieu of medical testimony. We disagree.

The following additional facts are necessary for our resolution of this claim. In support of their position that the accident caused Opotzner's injuries, the plaintiffs introduced medical reports. The physicians who authored the reports did not testify. After the trial, the plaintiffs submitted a request to charge the jury that (1) the use of the medical reports as opposed to live testimony was allowed by statute and (2) adverse inferences could not be drawn against the plaintiffs because the physicians that authored the reports did not testify.⁴ In its charge to the jury, the court addressed whether inferences could be drawn because a party introduced reports in lieu of live testimony: "A number of reports and records, and written and documentary kinds of exhibits will be presented, they've been entered into evidence and you will have them with you in deliberations. Now, those should be evaluated by you with the same principles in mind. An exhibit or a report or a record should neither be especially believed, nor especially disbelieved merely because it is a report or an exhibit as opposed to oral testimony. There should be no inferences made for or against a party merely because reports are offered. And I'd add in that context that it is perfectly permissible to read from exhibits as has been done during the trial."

Applying our standard of review, we conclude that when read as a whole, the court's charge was correct in law and it was sufficient to guide the jury regarding the issue of the plaintiffs' use of medical reports in lieu of live testimony. More specifically, the charge complied with the provisions of § 52-174 (b) in that it instructed the jury that "no inferences [could be] made for or against a party merely because reports are offered."

The plaintiffs, however, argue that their proposed charge should have been given because the court's charge did not instruct the jury that (1) the use of medical reports in lieu of medical testimony is permitted pursuant to § 52-174 (b) and (2) no adverse inferences could be drawn from the plaintiffs introduction of medical reports concerning causation rather than live medical testimony. "[A] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance." (Internal quotation marks omitted.) Rossi v. Stanback, 36 Conn. App. 328, 332, 650 A.2d 920 (1994). Here, the substance of the requested charge was given because the court instructed the jury that no inferences could be drawn against a party "merely because reports [were] offered."

B

The plaintiffs next claim that the court improperly instructed the jury on the burden of proof for future noneconomic damages and that the jury was misled by the instruction. Specifically, the plaintiffs argue that the court improperly instructed the jury that future noneconomic damages needed to be proven by a reasonable certainty rather than by a reasonable probability. We disagree.

The following additional facts are necessary for our resolution of this claim. The plaintiffs submitted a request to charge the jury for noneconomic damages.⁵ During its charge, the court instructed the jury that for it to give an award for future damages it "must be satisfied with a reasonable degree of certainty that the results for which [it was] attempting to compensate [Opotzner] are reasonably probable."⁶ In a number of other parts of the charge, however, the court instructed the jury that the burden of proof for future noneconomic damages was a reasonable probability.

We agree with the plaintiffs' assertion that the court's use of the phrase reasonable degree of certainty in its instruction for future noneconomic damages was improper. See Cross v. Huttenlocher, 185 Conn. 390, 395, 440 A.2d 952 (1981) (burden of proof for future noneconomic damages is reasonable probability). We conclude, however, that the court's use of the phrase did not mislead the jury. "[J]ury instructions must be read as a whole and ... are not to be judged in artificial isolation from the overall charge." (Internal quotation marks omitted.) Marshall v. O'Keefe, supra, 55 Conn. App. 804. When giving a lengthy jury instruction, the court may have a slip of the tongue. Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 787, 720 A.2d 242 (1998), citing State v. Delosantos, 13 Conn. App. 386, 391, 536 A.2d 609 (1988). The improper instruction is, however, "harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury was misled." (Internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, supra, 787 (improper instruction harmless where court once incorrectly stated law of negligence and unfair trade practices but twice stated law correctly); see also State v. Delosantos, supra, 391. Here, the court cited an improper standard in one part of its charge. The court also repeatedly cited the proper standard during the rest of its charge. Examining the charge as a whole, we conclude that it is not reasonably possible that the jury was misled. The court's improper charge was, therefore, harmless.

C

The plaintiffs also claim that the court improperly charged the jury regarding the credibility of witnesses. Specifically, the plaintiffs argue that the court improperly instructed the jury that if it found that a witness intentionally or wilfully lied about a fact, it could choose to disregard all of that witness' testimony. We disagree.

In its charge, the court instructed the...