O'Shea v. Mignone

• Decision Date: 29 September 1998
• Docket Number: (AC 17348)
• Citation: 719 A.2d 1176,50 Conn. App. 577
• Court: Connecticut Court of Appeals
• Parties: BERNARD O'SHEA v. JEFFREY M. MIGNONE ET AL.

50 Conn. App. 577

719 A.2d 1176

BERNARD O'SHEA v. JEFFREY M. MIGNONE ET AL.

(AC 17348)

Appellate Court of Connecticut.

Argued March 24, 1998.

Officially released September 29, 1998.

Schaller, Spear and Hennessy, JS. Wesley W. Horton, with whom were Karen L. Murdoch and, on the brief, Susan Cormier and John A. Reed, and Bageshree Ranade and Michele C. Camerota, certified legal interns, for the appellant (named defendant).

Mario DiNatale, with whom was Jonathan M. Levine, for the appellee (plaintiff).

Opinion

HENNESSY, J.

The defendant Jeffrey M. Mignone¹ appeals from the judgment, rendered after a jury trial, in favor of the plaintiff, Bernard O'Shea, on his claims related to a negligence action. The defendant claims that the trial court improperly (1) bifurcated the trial as to liability and damages, (2) excluded testimony by Barbara Farrington and Tracey Mignone and (3) excluded the testimony regarding an unidentified witness. We affirm the judgment of the trial court.

On January 17, 1997, the jury returned a verdict as to liability only, finding that the defendant, Jeffrey M. Mignone, was the hit-and-run driver who had struck the plaintiff as he walked across West Putnam Avenue in Greenwich on May 10, 1986. On January 28, 1997, the jury returned a plaintiffs verdict as to damages in the amount of $2,050,000. On February 3, 1997, the defendant filed a motion to set aside the verdict and for remittitur. On June 10, 1997, after hearing fully from both parties, the trial court denied the defendant's motions. This appeal followed.

I

The defendant first claims that the trial court improperly granted the plaintiffs motion to bifurcate the trial as to liability and damages. The defendant argues that the bifurcation substantially prejudiced his ability to present a defense, including the cross-examination of the plaintiff, and thereby denied him a fair and impartial trial. In response, the plaintiff argues that the trial court's decision to bifurcate was supported by the record, did not prejudice the defendant and, accordingly, that court did not abuse its discretion. We agree with the plaintiff.

Prior to trial, the plaintiff requested that the trial be bifurcated as to liability and damages in an effort to avoid unnecessary costs. The costs that the plaintiff sought to avoid were associated with the plaintiffs treating physician and expert witness; the attendant costs of bringing him to Stamford from Kentucky would be approximately $10,000. The plaintiff argued that if the jury failed to find liability, testimony related to damages would be unnecessary. The plaintiff argued that because liability was a "hotly" contested issue and the expense of the key witness related to damages was great, it would be in the plaintiffs economic interest for the case to be bifurcated as to liability and damages. The trial court denied that motion on December 17, 1996. Trial began on January 2, 1997, when both parties presented opening statements to the jury. On January 3, 1997, in the liability phase, the plaintiff called two witnesses, Michael J. Kegan and Robert Salzman, who testified as to liability only. Thereafter, defense counsel became ill and the trial was not resumed until January 13, 1997, at which time the plaintiff renewed his motion for bifurcation. Arguing in support of that motion, the plaintiff informed the court that several witness problems had arisen due to the delay.² The plaintiff estimated that under the current timetable, the jury would not get the case until January 24, 1997, which could be a problem as some jurors had expressed concern about being able to continue after January 17, 1997. If the trial court bifurcated the trial, however, the plaintiff anticipated the conclusion of its case as to liability within two trial days.

The defendant responded, stating that he felt the circumstances had not changed so substantially³ that the motion to bifurcate should be granted after the trial had begun and that if it were it would be an unfair penalty to the defense. The defendant was concerned that he would be unable to impeach the plaintiff effectively if the case were bifurcated. The trial court found this argument unpersuasive because it was clear that the plaintiff did not recall the details of the accident and his testimony would be limited to the fact that he was struck by a car.

The trial court requested that the defendant cite specific facts that he would be precluded from introducing as impeachment evidence if the motion for bifurcation were granted. The defendant stated that he wanted to bring in evidence that tended to show that the plaintiff had made five other unrelated claims of similar injuries, which information would affect his overall credibility. The defendant argued that this information clearly related to damages and not liability; however, the jury was entitled to a complete picture of the plaintiffs veracity.

On Tuesday, January 14, 1997, the trial court granted the plaintiffs renewed motion to bifurcate pursuant to General Statutes § 52-205⁴ and Practice Book § 283, now § 15-1.⁵ In granting the motion, the trial court stated that the defendant failed to articulate "what testimony will affect the liability issue. It would affect the damage issue, of course, and that is testimony that certain injuries came from this accident or another accident, but it's also not clear what testimony of the plaintiff on liability would be affected. The crucial issue in this case is whether the defendant did in fact hit the plaintiff pedestrian, and the plaintiff cannot testify, and will not be testifying, to any of the facts surrounding whether or not he was hit by the defendant. Cross-examination on the damage issue is not crucial to the defendant. It certainly does not limit his right to cross-examine, as we understand that concept, and he's not deprived of due process of law. On the defendant's theory, a judge could never bifurcate a trial. Defendant could always argue that there might be some testimony on which he could discredit a witness."

The trial court ultimately ruled that bifurcation was appropriate at that stage of the proceedings because it was (1) in the interest of conserving the time and energy of the court and the jury, (2) the plaintiff had been prejudiced financially due to the delay and bifurcation would be economical, and (3) the defendant did not present a cognizable argument to persuade the court that the proper cross-examination of the plaintiff on liability would be prejudiced by bifurcation. The trial court and the parties agreed that, due to the change in course, the jury should be informed of the bifurcation. Accordingly, the trial court instructed the jury, without objection, that it had "decided to separate the issue of liability in this case from the issue of damages."

"Bifurcation of trial proceedings lies solely within the discretion of the trial court; see Day v. General Electric Credit Corp., 15 Conn. App. 677, 689, 546 A.2d 315, cert. denied, 209 Conn. 819 , 551 A.2d 755 (1988); In re Jose C., 11 Conn. App. 507, 508, 527 A.2d 1239 (1987); and appellate review is limited to a determination of whether that discretion has been abused. See Swenson v. Sawoska, 18 Conn. App. 597, 601, 559 A.2d 1153 (1989), affd, 215 Conn. 148, 575 A.2d 206 (1990).

"The interests served by bifurcated trials are convenience, negation of prejudice and judicial efficiency. Vichare v. Ambac, Inc., 106 F.3d 457, 466 (2d Cir. 1996). Bifurcation may be appropriate in cases in which litigation of one issue may obviate the need to litigate another issue. See Morse/Diesel, Inc. v. Fidelity & Deposit Co. of Maryland, 763 F. Sup. 28, 35 (S.D.N.Y.), modified in part on other grounds, 768 F. Sup. 115 (S.D.N.Y. 1991)." Reichhold Chemicals, Inc. v. Hartford Accident & Indemnity Co., 243 Conn. 401, 423-24, 703 A.2d 1132 (1997). "Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.... It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds.... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.... Whalen v. Ives, 37 Conn. App. 7, 21, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995)." (Internal quotation marks omitted.) Turk v. Silberstein, 48 Conn. App. 223, 225-26, 709 A.2d 578 (1998).

We conclude that the trial court acted within its discretion when it determined that under the changed circumstances, judicial efficiency would be best served by bifurcating the trial. A review of the record and arguments of the parties does not lead us to conclude that the ruling of the trial court was made on untenable grounds. To the contrary, the record amply supports the trial court's granting of the motion to bifurcate, and the defendant failed to demonstrate resulting prejudice either at trial or on appeal. Therefore, the trial court did not abuse its discretion in granting the motion to bifurcate the trial.

II

The defendant next claims that the trial court improperly excluded the testimony of Barbara Farrington and Tracey Mignone. Tracey Mignone, the defendant's fiancee at the time of the accident, and Farrington, her mother, were going to testify that the defendant came to their home on the night of the accident. Upon his arrival, the defendant allegedly told Farrington and Mignone that he had seen an accident in which a woman driving a red car had hit a pedestrian, stopped her car and ran back toward the accident.⁶ The defendant offered this testimony to bolster his defense that a woman in a red car was the hit-and-run driver who struck the plaintiff.

On January 16, 1997, the trial court heard argument from counsel regarding...