Kortner v. Martise, 91 A.3d 412

Kendall Kortner, a conservatee with severe cognitive and physical impairments, was under conservator Kortner since 1994.
Kendall suffered a 2001 stroke and subsequent health decline; conservator oversaw Kendall’s personal needs.
In 2003 Kendall began a sexual relationship with defendant Martise; conservator learned of bruising and Kendall’s behavioral changes in 2003.
In 2006, the conservator filed a three-count action for sexual battery, civil assault, and IIED; trial occurred in 2009 with a verdict for Martise.
After trial, plaintiff moved to set aside the verdict on grounds that plaintiff’s exhibit 7 was improperly given to the jury; the trial court denied.
Kendall died and plaintiff was substituted as administratrix in 2010; reviewing court reversed and remanded for a new trial due to evidentiary error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Conservator standing to sue	Kortner had standing under prior §§ 45a-650, 45a-656, or via substitution under § 52-109.	Standing was defective because conservator powers were limited and not granted to sue.	No standing defect; substitution cured it and related back to original suit.
Admissibility of plaintiff’s exhibit 7	Exhibit 7 was never admitted into evidence and should not have been given to the jury.	Exhibit 7 was premarked as a full exhibit and thus properly before the jury.	Exhibit 7 was not properly admitted and should not have been provided to the jury.
Effect of evidentiary impropriety	Jury was prejudiced by considering non-evidentiary material central to Kendall’s capacity to consent.	Any error was harmless or cumulative; not enough to overturn verdict.	Not harmless; reversible error requiring a new trial.
Consent defense against conservatee	Conservatee cannot consent; consent defense should be struck.	Consent is a factual question; conservatorship does not per se bar consent.	Consent is a jury question; not improper to admit defense.
Jury instruction re conservatorship	Jury should not be instructed to consider conservatorship in deciding capacity to consent.	Instruction properly included conservatorship as a factor among others.	Instruction proper when viewed in entirety and consistent with law; remand allows retrial with appropriate considerations.

DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105 (2010) (substitution of real party in interest relates back to original suit)
Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402 (2012) (standing and substitution concepts explained; practical adequacy)
Hayes v. Camel, 283 Conn. 475 (2007) (evidentiary impropriety harm standard in civil cases)
Swenson v. Sawoska, 215 Conn. 148 (1990) (relevance of evidentiary improprieties)
Prentice v. Dalco Electric, Inc., 280 Conn. 336 (2006) (test for harmless error in evidentiary issues)
Health Research Group v. Kennedy, 82 F.R.D. 21 (D.D.C. 1979) (relates to substitution of parties and relate-back concepts)