Wright v. Hutt

• Decision Date: 22 September 1998
• Docket Number: No. 17063,17063
• Court: Connecticut Court of Appeals
• Parties: Jacqueline WRIGHT et al. v. Philip HUTT.

Page 969

718 A.2d 969

50 Conn.App. 439

Jacqueline WRIGHT et al. v. Philip HUTT.

No. 17063.

Appellate Court of Connecticut.

Argued March 31, 1998.

Decided Sept. 22, 1998.

Steven D. Jacobs, New Haven, for appellants (plaintiffs).

Paul T. Edwards, with whom, on the brief, was Craig A. Fontaine, Hartford, for appellee (defendant).

Before LANDAU, SPEAR and SULLIVAN, JJ.

SULLIVAN, Judge.

The plaintiffs in this medical malpractice action, Jacqueline Wright and William Wright, appeal from the judgment in favor of the defendant. The plaintiffs claim that the trial court improperly refused to permit them to exercise a peremptory challenge to excuse a juror after the jury was impaneled but prior to its swearing in, and improperly ruled on the admissibility of certain documentary and testimonial evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1986, the plaintiff Jacqueline Wright sought medical treatment from the defendant for jaw pain associated with injuries she suffered in an automobile accident in 1984. Jacqueline Wright had been referred to the defendant by her treating oral surgeon and employer, Stanton Wolfe. The defendant recommended that she undergo surgery to replace her temporomandibular joints with an implant device manufactured by Vitek, Inc. In August, 1986, the defendant performed the recommended surgery on Jacqueline Wright's right jaw and performed the same surgical procedure on her left jaw in February, 1987. Thereafter, in 1989, after receiving complaints from her of pain in her jaw, the defendant discovered that the Vitek implant device in her left jaw had fractured. The defendant removed both implant devices in 1990 and replaced them with grafts made from cartilage taken from her ears. By that time, she had lost confidence in the defendant's ability to treat her and she discontinued their relationship. After the surgeries, Jacqueline Wright experienced bone loss in her temporomandibular joints and underwent further surgeries and therapies to reconstruct the joints and to inhibit further bone loss. In 1992, the plaintiffs instituted this medical malpractice action against the defendant. The first count of the complaint alleged that the defendant was negligent in failing to obtain Jacqueline Wright's informed consent to the implant surgery and the second count asserted a claim of loss of consortium on behalf of William Wright.

I

The plaintiffs' first claim is that the trial court's refusal to permit them to exercise a peremptory challenge to excuse a juror violated their right under the constitution of Connecticut, article first, § 19, ¹ to challenge jurors peremptorily and, in the alternative, that it constituted an abuse of discretion.

On the day prior to the commencement of trial, after the conclusion of the jury selection process, one of the venirepersons selected as a juror informed the court that he and his wife had lost their jobs a few days after he was selected and that, as a result, it would be difficult for him to concentrate on the trial and to fulfill his obligations as a juror. The trial court explained it did not consider his loss of employment to be a sufficient reason for disqualification. The court then permitted the parties to ask the juror questions. Under questioning by counsel for the plaintiffs, the juror stated that he believed that his personal concerns would impair his ability to sit fairly as a juror. The trial court then stated: "Well, the last comment you made troubles me. Most of all that you don't think you could sit fairly because, I think if it's a matter of concentration, I'm almost willing to give it a try and start the process and see how it works for you. If there is a problem that develops during the trial you could always possibly be excused at a later time, although I'm not really keen on doing that. So if it's a concentration matter, that's one thing. But if you're saying that you don't think you can hear the matter fairly--" The juror interrupted, stating: "No, that's not what I meant. But if my full concentration is not in it, I don't think I'm being fair to either party nor the jury, nor yourself."

In response to questions by the defendant, the juror stated: "I--that's really something--as far as being fair, as I explained to [His] Honor before, I really don't see a problem being fair and impartial as much as just on the whole not being able to devote my complete attention to the situation and whether that be at the beginning, middle, or end [of the trial] I could not tell you." The court told the juror: "I get the sense from what you're saying that you will be fair. I don't think that's an issue here. I think you have a fear that your personal problems may get in your way of concentration and we don't know if that's going to happen or not.... If things develop where you really find that it's a problem as we go along, then I will hear further at that point and consider the matter at another time." At that point, counsel for the plaintiff requested permission to exercise a peremptory challenge, which the court denied.

The provision of the Connecticut constitution invoked by the plaintiffs to support their claim of a constitutional violation is not conclusive of the merits of that claim. The constitution does not address the time and manner in which the right may be exercised, although it is well settled that " '[o]nce a juror has been accepted by both parties, the absolute right to exercise a peremptory challenge is lost. Walczak v. Daniel, 148 Conn. 592, 596-97, 172 A.2d 915 (1961); DeCarlo v. Frame, 134 Conn. 530, 535, 58 A.2d 846 (1948); State v. Potter, 18 Conn. 166, 176 (1846). The trial court may, however, "in its discretion permit such a challenge to be made at any time before the jury is sworn." Walczak v. Daniel, supra, at 597, 172 A.2d 915, quoting DeCarlo v. Frame, supra.' " State v. Daniels, 42 Conn.App. 445, 452-53, 681 A.2d 337, cert. denied, 239 Conn. 928, 683 A.2d 397 (1996).

In Connecticut, after the parties accept a venireperson as a juror, the right to exercise a peremptory challenge is within the discretion of the trial court. Id., at 453-54. This conclusion is supported by DeCarlo v. Frame, supra, 134 Conn. at 535, 58 A.2d 846. In that case, the defense sought to exercise a peremptory challenge after the conclusion of the examination of all jurors, but prior to their being sworn in. Our Supreme Court concluded that the trial court acted improperly in granting the defendant's request because the trial court "did not permit the challenge in the exercise of its discretion but in effect ruled that the defendant was entitled to make it as a matter of right...." Id., at 535-36.

We find that the trial court appropriately exercised its discretion in this case. The record indicates that the trial court was satisfied that the juror's concern about his ability to concentrate on the trial would not affect his duty to be fair and impartial. Indeed, the juror informed the court that his personal problems would not prevent him from being fair and impartial. Although "a prospective juror's assessment of his or her own partiality must be carefully scrutinized on appeal and considered in the context in which it is uttered"; State v. Esposito, 223 Conn. 299, 311, 613 A.2d 242 (1992); the trial court reasonably credited the juror's assurance of fairness. Indeed, counsel for the plaintiff, when asked for his position on the matter by the trial court, stated: "I think that this gentleman is bending over backwards to be fair to everyone, to the court, to the attorneys, to the parties and to himself. And he strikes me as being a completely honest and fair-minded guy ...." (Emphasis added.)

In addition, the trial court properly observed that the juror exhibited merely a fear of losing concentration. For example, in response to a question by the plaintiff's counsel regarding whether the juror could devote his full attention to the case, the juror stated: "I feel at this point that I don't think I could, no." (Emphasis added.) The court concluded that this fear was unrealized and, therefore, it did not, as of that time, present a ground for removal. In addition, the juror informed the court that he had already started another job.

On this record, we cannot conclude that the trial court abused its discretion in denying the plaintiffs' request to exercise a peremptory challenge after the conclusion of the voir dire process.

II

The remaining issues raised by the plaintiffs on appeal are founded on claims of evidentiary error. "It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court's rulings will not be disturbed on appellate review absent abuse of that discretion.... Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law.... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter.... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court's ruling." (Citations omitted; internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn.App. 89, 92, 709 A.2d 14 (1998).

A

The plaintiffs first claim that the trial court improperly excluded from evidence a letter from the federal food and drug administration to Vitek, Inc., regarding that agency's approval of the Vitek implant device. The defendant objected to introduction of the letter on the ground that it was not relevant to any issue regarding the approval of the device at the time it was used to treat the plaintiff, that the letter was hearsay, and that its prejudicial effect outweighed its probative value. The plaintiffs argued that the document was admissible as an...