Carrano v. Yale-New Haven Hospital

CARRANO, MARY ADMINISTRATRIX (ESTATE CARRANO, ET AL. v. OF PHILLIP J. JR.), HAVEN HOSPITAL ET AL. YALE-NEW 17286)

(SC Borden, Vertefeuille, Katz, Karazin, Zarella and Js. Argued officially August 22, November released whom were Brian Man- Weihing, with J.

Thomas and Thomas brief, T. Bochanis on the John gines et al.). appellants (named for the Mangines, E. brief, was Ken- whom, on the Babbin, R. with Jeffrey et defendant appellees (named for the Heath, neth D. al.). for the Connecticut filed a brief

William M. Bloss amicus curiae. Association as Lawyers Trial Opinion arises out appeal1 This certified VERTEFEUILLE, J. named by the malpractice brought action a medical individually and as Mary (plaintiff), Carrano plaintiff, husband, Phillip J. estate of her administratrix following petition the plaintiffs limited to granted for certification We the judgment Appellate properly reversed the (1) Court “Whether the issues: upon additional decision to award the trial court’s based harm?”; any (2) showing “Whether the and absence of in the [plaintiffs] Appellate properly ‘matter of law’ that the determined as a Court inadequate?” damages v. Yale-New was Carrano economic evidence of 933, (2004). Hospital, 861 A.2d 509 271 Conn. Haven following petition on the for certification the defendants’ cross We denied [improperly uphold] Appellate court’s (1) the trial Court “Did the issues: Porter, 241 ‘gatekeeper’ v. refusal, role under State in exercise of its the 1384, denied, 1058, (1997), 118 S. Ct. cert. 522 U.S. A.2d 739 Conn. 57 [698 testimony preclude (1998)] of [the] the causation L. Ed. 2d 645 expert, and direct it after the close of evidence or to strike sole scientifically opinion defendants, unsound judgment where his for [the] original case, his and where he recanted fit the facts of the and did not only scientifically implausible to substitute theory stand as on the witness Appellate theory?”; (2) Court equally and “Did the unreliable an invalid and adjudicate are entitled [improperly whether defendants [the] decline] properly verdict, had notwithstanding where defendants judgment the [the] issue, Appellate it had preserved Court ruled that but the and briefed that judgment trial court’s once it had reversed the to reach the issue no occasion v. Yale-New grounds a new trial?” See Carrano remanded for on other and (2004). Hospital, 934, 861 A.2d 509 271 Conn. Haven Carrano, Jr. the defendants Yale- (decedent),2 against Ballantyne, New Haven Garth Hospital, gastrointesti- Mary nal surgeon, Harris, registered nurse, for wrongful plaintiff death of the decedent.3 The claims Appellate improperly that the Court reversed the judg- ment of the trial court, judgment which had rendered plaintiff in favor in accordance with a verdict. Carrano Hospital, Yale-New Haven App. Specifically, 854 A.2d 771 (2004). plaintiff claims that the Appellate improperly Court concluded that: the defendants were entitled to a new trial (1) because the trial improperly court had awarded the plaintiff peremptory required by law; id., 659-63; (2) presented had insufficient evidence of damages. Id., economic 658 n.3. The defen- dants, addition to raising various alternate grounds Appellate affirmance of the Court’s judgment,4 request modification Appel- of the relief ordered malpractice brought Carrano, This medical action also was Sarah daughter summary judgment of the decedent. The trial court rendered against Carrano, however, ruling appeal. Sarah and that is not at issue Accordingly, Mary capacities we refer to Carrano in both of her as the plaintiff. during pendency litigation, We note that of this changed Mary Sholomicky. her name to explain pari, opinion, brought As we in I of this the also this malpractice against physicians, medical action two other Andrew Elliot and Cahow, Elton Cahow. The trial court directed a verdict in favor of Elliot and however, ruling appeal. Accordingly, and that at in not issue we refer Ballantyne Hospital, to Yale-New Haven and Harris as the defendants. (a), following § Pursuant to Practice Book 84-11 the defendants raise the grounds Appellate judgment: (1) alternate for affirmance of the Court’s the rejection legislative judgments governed by trial court’s on a matter orderly judicial process statute is inconsistent with an efficient and within meaning Giacchetto, 244, the (2004); of Kalams v. 842 A.2d 1100 (2) damages expert the evidence economic was insufficient because testimony necessary jury calculating was to assist the in the decedent’s taxes, personal living expenses present income and the net value of future income; (3) improperly the trial court denied the defendants’ motion adjust to set aside the verdict because the had failed to the award of damages taxes, personal economic to account for the decedent’s income living expenses present and the value of future income. Spe- to Practice Book 84-11 pursuant (b).5 §

late Court they entitled to defendants claim are cifically, the trial, law, matter of rather than a new judgment as a was We of causation insufficient. because the evidence the award of that: trial court’s (1) conclude the required by harmless; law was (2) disability earnings net from evidence of the decedent’s an of eco- support was insufficient to award income the evidence causation damages; (3) nomic support Accordingly, to the verdict. sufficient Appellate Court. judgment reverse the reasonably have found following could the February decedent was admitted 24,1992, facts. On the Hospital the treatment of an infected to for Bridgeport Bridgeport Hospital, began While at the decedent finger. from experience painful complications preexisting inflammatory an disease, Crohn’s which is condition of tract. On the the March gastrointestinal disease of Hospital Yale-New decedent was transferred to Haven Thereafter, 20, Ballantyne, March on (hospital). physician, performed a colonos- attending decedent’s what copy whether and to on the decedent determine step in appropriate extent would be an next surgery provides part: “(a) Upon granting in § Practice Book 84-11 relevant appellee may present grounds certification, for review alternative may provided upon judgment grounds were which the be affirmed those Any may appellate party appeal raised in the also and briefed court. present rulings which adverse or decisions should be considered for review trial, provided party appeal raised in the event of a new that such has on grounds appellate affirmation such in the court. If such alternative claims rulings decisions to in the event of a new or adverse be considered appellate court, party seeking in raise them were not raised supreme special permission prior must move for to do so court permission only exceptional filing party’s granted will of that brief. Such be justice require. cases the interests of so where any may present “(b) Any party also review claim that the relief modified, provided appellate judgment in should be afforded the court its appellate party’s in or such claim was raised in the court either such brief upon a . . .” motion for reconsideration. time, On around that disease. or his Crohn’s treating edema, swelling developed peripheral decedent the March fluid. On caused excess legs his arms and decedent was edema, the despite peripheral the early at home He died hospital. from the discharged excess edema, or pulmonary from morning the next lungs. fluid in his the medical mal present the filed

Thereafter, plaintiff jury found the defendants. The action practice against in the plaintiff damages awarded in favor of the rendered judg The trial court $3,386,177.85.,6 amount of the defendants verdict, with the ment accordance judgment the trial court appealed from Appellate judg Court reversed Appellate Court. The remanded the case ment of the trial court and Haven Hos for a new trial. Carrano Yale-New court Appel App. Specifically, 667. pital, supra, its that the trial court had abused late Court concluded peremptory chal awarding discretion in “new required by law, and that a lenges not [was] . . . only remedy .’’Id., 662. Because appropriate likely retrial, Appellate at the issue was recur defendants’ claim that the Court also addressed the presented evidence of eco plaintiff had insufficient Appellate The Court con damages. Id., nomic n.3. claim little discussion” cluded that “merit[ed] of economic dam because evidence “[t]he inadequate Appel as a of law.” Id. The matter ages defendants’ claim late Court declined to address the presented evidence of that the had insufficient already it had that new causation because determined required. appeal Id. followed. trial was This certified 6Specifically, plaintiff, capacity awarded the in her as administra estate, damages $738,029.85 trix of the decedent’s economic in the amount $2,200,000. damages in amount of also and noneconomic plaintiff, capacity, damages her in the amount of awarded the individual $448,148for loss of consortium.

628

I plaintiff Appellate first claims that the Court improperly that trial concluded the court had abused its discretion in the awarding plaintiff peremptory chal- lenges required by plaintiff law. Specifically, the that, pursuant claims to General Statutes to (Rev. 2001) 51-243 and Kalams v. (a)7 Giacchetto, § A.2d properly the trial (2004), court exercised its discretion it when awarded twelve chal- additional lenges plaintiff equalize to the the number chal- collectively lenges awarded the defendants. Alternatively, the that if claims we conclude the that trial court had its discretion, abused the improper respond award was harmless. The defendants that, pursuant and §to 51-243 the trial (a) Kalams, court has discretion award additional challenges to both sides of litigation only the if extraor- dinary during jury circumstances arise selection. the court Because had awarded chal- additional solely lenges prior to the to the commencement of jury selection, the defendants that maintain the improper. award was The defendants further claim that improper the award cannot be deemed harmless (Rev. 2001) provides: (a) any § General Statutes civil 51-243 “In action Superior Court, appears tried the to be if it to the court that likely protracted, may, discretion, the trial is to be the court in its direct that, selected, jurors after a has been two more or additional shall be jury panel, jurors’. jurors added to the to be known as ‘alternate Alternate qualifications subject shall have the same and be selected and to examination challenge jurors in the manner the same and to same extent the as constituting regular panel. any In case when court directs the selec jurors, party may peremptorily jurors. challenge tion of alternate each four unity exists, plaintiffs Where court determines of interest several or may single party purpose several defendants be considered as a for the making may challenges, or the court allow additional permit jointly. separately purposes them to be exercised For subsection, ‘unity of interest’ means interests of several substantially or of the several defendants are similar.” revision, All to § references hereinafter 51-243 to the 2001 are unless noted otherwise. composition fundamentally altered the it

because of the trial propriety need not address juiy. We the award because conclude award court’s harmless. our are relevant to additional facts following The April 18,1994, the claim. On plaintiffs the resolution of malpractice action present the medical plaintiff filed physicians, other and two the three defendants against selection, Prior to Elliot and Elton Cahow.8 Andrew peremptory challenges moved for four the defendants the Specifically, to each defendant. to be awarded “unity of interest” they lacked a claimed that defendants to a minimum of four were each entitled and, therefore, 51-243 The pursuant (a).9 to challenges § peremptory 8 during pendency opinion. the Cahow died the of of this See footnote 3 Kinder, estate, was substituted litigation, and his Barbara the executor of as a defendant. ” “9 ‘unity (a) § if of the under 51-243 “the interests A of interest’ exists substantially plaintiffs the defendants are similar.” or of several several 2001) (a); v. (Rev. see also Walsh §§ 51-241 and 51-243 General Statutes 443, 466, Authority, Stonington Conn. 736 A.2d Water Pollution Control concluding (trial that several (1999) did abuse its discretion court allegations unity plaintiffs entailed of of interest because “the case lacked persons span personal unique over a of and hann four distinct suffered Hospital, App. 738, 750, years”); of Conn. a number Marshall Hartford 1085, denied, (“The primary 938, 786 (2001) A.2d 425 783 A.2d cert. unity are a of interest is whether there to determine the existence of test liability persons. liability separate or If the as to the two entities issues of differ, unity interest.”). The trial determined that there is no of court bases liability against plaintiff alleged separate of five bases of each the the had therefore, and, concluded that the interests defendants defendants substantially propriety of the trial court’s conclusion were not similar. present appeal. not at issue in the statutory that, 2001, legislature the definition of We note the amended Specifically, “unity Acts No. of See Public 01-152. a interest.” (a), definition, §§ and which is included in both 51-241 51-243 amended unity among part: provides of be to exist in relevant “A interest shall found addition, attorney parties represented In or law firm. who are same among unity parties presumption be that a of interest exists there shall apportionment complaints against been filed no claims or have where cross actions, of another. In all civil the total number one plaintiff or shall not exceed twice the number of allowed to the defendants, challenges peremptory total allowed to the defendant agreed court with the defendants and awarded the

requested challenges, in an resulting aggregate number twenty peremptory challenges for the defense. The also, sponte objection trial court sua and over the defendants, of peremptory increased number awarded from eight twenty10 equalize the number of challenges allocated to both sides The court reasoned litigation. discretionary award of additional plaintiff was necessary to avoid “a gross miscarriage justice . . . .”11During jury selection, exercised fifteen challenges, the defen dants exercised seventeen. evidence,

At the close of the trial court directed a verdict in favor of and Cahow, Elliot and submitted the peremptory challenges number of allowed to the defendant or defendants peremptory challenges shall not twice the of exceed number allowed to the plaintiff plaintiffs.” 01-152,§§ or Public Act 2. and That amendment is not implicated appeal. in this appears court The trial to have concluded that the was entitled eight peremptory challenges represented to a minimum of because she two interests, namely, distinct her own individual and the interest interest of appears estate of decedent. The trial court also to have concluded plaintiffs “unity that the two distinct interests lacked a of interest” under opinion. (a). § 51-243 See footnote 9 of this know, [awarding court The trial ruled as “You follows: while additional discretionary challenges] court, is a function and while of the standard review the exercise of courts that discretion is where the— manifest, injustice appears where an abuse of it’s discretion that or where done; and, just miscarriage justice, to have I been think it is a of a gross miscarriage justice up having twenty to end the defendants exercise peremptory challenges [plaintiff] eight. and I exercise think that ais gross [miscarriage] justice. my So, going discretion, right I’m to exercise may wrong, Appellate right or find out from the whether I’m Court wrong, doing but I’m it on of the the basis standard set forth in Rivera [v. Hospital Center, App. St. Francis & Medical 55 Conn. 738 A.2d 1151 (1999)], especially page 464, imply at in which the court seems to that the may conformity spirit law, court its exercise discretion in with the impede and in a manner to subserve and not to or defeat the ends of justice. substantial my saying, judgment justice. really “I’m that in it defeats substantial It mockery justice disparate, wholly makes a of substantial to have such a defendants remaining the three against claim in plaintiff, The favor of the jury. found in with judgment accordance the trial court rendered from Thereafter, appealed the defendants the verdict. Court, the Appellate of the trial court to the judgment court had violated part in relevant that the trial claiming it awarded and abused its discretion when (a) 51-243 § not law. required peremptory challenges Hospital, supra, Haven 84 Conn. Carrano Yale-New v. Court with defen- App. Appellate agreed 659-63. court. Id., of the trial judgment dants and reversed the acknowledged that Kalams in Appellate 663. The Court 263-64, court had Giacchetto, supra, v. court has discretion to award concluded that trial by law, that, required court abused that whether has determining court consider whether the reviewing discretion a must or was party harmed either “granting pro- orderly judicial inconsistent with an efficient and Carrano quotation omitted.) cess.” marks (Internal Hospital, supra, Yale-New Haven Appellate 661. The “a concluded, however, reading Court careful each only Kalams reveals “grant a narrow discretion” side challenges”;12 in litigation (emphasis additional and, therefore, present in the id.; the trial court original) peremptory the number of case “was constrained to allowed Statutes challenges (Rev. 2001)] [General Appellate Court fur- 51-241 and 51-243 Id. The (a).” §§ improper the award had harmed ther concluded that receipt “the of twelve plaintiffs the defendants because more than that to which she was entitled challenges fundamentally altered seven) which she used (of and, grant disparate peremptory challenges; going so I am to set of peremptory challenges.” [plaintiff] the same number that, Appellate cases Court reasoned relevant cited “[a]ll Kalams, peremp itself, grant more and Kalams involve court’s decision tory Hospital, supra, challenges each Carrano v. side.” Yale-NewHaven App. 84 Conn. 661. composition of the jury that decided the case in her favor.” Id., Moreover, 662. a new trial was deemed to only be the appropriate remedy “because the use of the at challenges original can never be recon- structed. If each had the appropriate number [side of] challenges, wholly panel different might have been quotation selected.” (Internal marks Id. omitted.) Before addressing the substance of plaintiffs claim, briefly we jurisprudence review our concerning a trial court’s award peremptory challenges required by law. In Kalams v. Giacchetto, supra, 268 Conn. 261-62, the trial improperly court had determined 51-243 (a) § entitled each side of the litigation to eight challenges, rather than four.13We con- cluded, however, improper that the award of additional challenges subject to harmless error review.14 In arriving at this conclusion, rejected claim that harmless error review would “effectively . . . render all such [improper unreviewable,” awards] reasoning unreviewability that the of such only awards could be attributed to they the fact that “are highly unlikely to cause harm.” Id., 262. We further concluded improper that the award was harmless because there was no “plausible claim that the of four granting addi- tional to each party prejudiced plain- [the any case in way unduly protracted tiffs] selection proceedings.” Id., 261. respect With Giacchetto, supra, In Kalams the trial court had litigation eight peremptory concluded that each side of the was entitled to challenges because two distinct causes of action had been consolidated for disagreed trial. We with the trial court’s conclusion because there was no authority support proposition single party legal that “a . has . . multiple entitlement sets of when distinct causes of action (Emphasis original.) Id., have been consolidated.” 261. emphasized finding We required “that a of actual harm is not when the trial court parties has denied to which the are entitled by (Emphasis original.) Giacchetto, supra, law.” Kalams 264 n.14. hardly “it would we noted that consideration, latter a new trial because efficiency to order judicial promote n.12. long.” Id., too jury selection took to be an likely ongoing “Because the issue [was] clarify “to confusion,” proceeded we source authority to grant of the trial court’s scope After reviewing law.” 262. required Id., challenges not had Appellate Court this court and the case law which authority to additional grant court’s the trial recognized we that there concluded peremptory challenges, trial from . to bar the court categorically reason . . “no We that 262-63. reasoned challenges.” Id., such granting efficiency” we were judicial if “only would undermine it mistrial trial must declare a conclude that “the court to granting when the jury selection anew begin prevent any adequate would be challenges additional Moreover, 263. parties.” Id., potential harm to circum- law that “there are numerous case suggested may perceive a need which trial courts stances under Id. required by not law.” additional grant a trial court’s award Accordingly, we concluded that subject to review peremptoiy challenges of additional and, conducting for abuse of discretion “[i]n whether the of the chal- review, granting consider party or was inconsistent with an lenges harmed either orderly judicial Id., 263-64. We process.” efficient award in Kalams trial did not review the court’s “the court discretion, however, abuse of because eight peremptory were entitled to parties ruled ordinarily . . . court as of right [and] [t]his uphold not an determination on legal will erroneous trial court could have exercised its ground that the (Internal quotation discretion reach the same result.” Id., marks 263-64 n.13. omitted.) Kalams, Pursuant the method of a trial reviewing required court’s award of law will source of the trial depending differ on the authority court’s to award such challenges. If a trial premised court’s award is interpretation on its of the number peremptory challenges required by 51-243 § (a), propriety of the award is reviewed de novo. See, e.g., id.; Greco v. United Technologies Corp., Conn. 337, 348, 890 A.2d 1269 review (2006) (“we de novo the trial court’s construction of the relevant statu- tory If the provisions”). court reviewing determines that the award of additional challenges was improper, new trial required only is if the complaining party can If, demonstrate harm. however, the trial court’s award premised is on its exercise of discretion to award peremptory required not challenges by law, the propri- ety of the award is reviewed for an abuse of discretion. Kalams Giacchetto, supra, 268 Conn. 263-64; see also Walsh v. Stonington Water Pollution Control Author- ity, 250 Conn. 443, 465-66, 736 A.2d 811 (1999) (“trial court has discretion to determine the complete question whether several or several defendants will be considered a single party, is, whether there is a unity of them, interest if among is, there whether unity of interest will trigger a limit on the number of to be In granted”). determining whether the trial court has abused its discretion, a reviewing court must “consider whether the granting the challenges harmed party either or was inconsistent with an orderly judicial efficient and process.” Kalams v. Giacchetto, supra, 264. Under both paradigms, there- fore, a new trial required is not the parties unless suf- fered harm as a consequence of the trial court’s improper award. Because we conclude hereinafter that the trial court’s award harmless, we need not deter- mine whether the trial court improperly awarded required by not law in violation of 51-243 (a), § whether the trial overstepped court the bounds of its discretion awarding twelve addi- sponte.15 Regard- sua tional award, a the trial new court’s propriety less harm. party suffered required because neither that, a trial claim, however, although The defendants required not peremptory challenges of court’s award subject to harm- law both sides to of the is by litigation one side to of trial court’s award review, less error a the defen- Specifically, such review. litigation defies of additional chal- claim a one-sided award dants that new and necessitates a results in structural error lenges Kalams, we reject We claim. In concluded trial. this of not peremptory challenges a trial award that court’s harm; 263-64; required by id., must be reviewed for law this conclusion nothing suggests therein litigation. to to both of the More- limited awards sides over, why we can no reason an award of addi- perceive litigation tional to one side of the should challenges 15 question Although issue, we was a do not decide we whether it challenges proper exercise trial court’s to award additional discretion disagreed sponte simply because the trial court with the sua appropriate legislative challenges of determination of the allocation between unity single a of a and several defendants who lack interest. See opinion. footnotes 9 and 11 of The dissent criticizes our “failure to determine whether the award of peremptory challenges improper,” additional because trial court’s may first, 19,§ award have article of the Connecticut “trivialized constitution Const., (“In . . . .” See Conn. IV criminal amend. all civil and actions tried by jury, parlies jurors right challenge peremptorily, a shall have the to right question challenges the number of such to be law. The established to juror individually by inviolate.”). shall We note each counsel be that “[t]his judicial duty deciding court has a basic to avoid a constitutional issue if a dispose ground nonconstitutional exists that of the case.” v. will Moore McNamara, 16, 20, (1986); Cofield, 201 A.2d Conn. see also State v. 38, 49-50, (1991) (“[cjonstitutional 595 A.2d 1349 not issues are absolutely necessary considered unless to the decision of case” [internal quotation Further, omitted]). marks do not claim defendants that the light trial court’s “trivialized” the of In of award constitution Connecticut. harmless, perceive our conclusion that the trial court’s award was we can no reason to reach out and decide constitutional issue was not raised parties. differently

be treated than an award to both sides.16 may it be easier for Although party complaining only demonstrate harm if one side of litigation party one is awarded additional challenges; id., cf. 261-62 (award additional to both sides unlikely litigation “highly cause it is incon- harm”); sistent with Kalams dispense inquiry with the into harm altogether. Accordingly, conclude that awards required by not law are sub- ject to review, harmless error regardless whether one pointed any jurisdiction, defendants the dissent have not none, and we have found that conducts harmless error review in such a Rather, rely jurisdic discriminate manner. the defendants on case law from tions that have concluded that all awards of required by defy DaFoe, See, e.g., Blades law harmless error review. 317, (Colo. 1985) (“reversible grants 704 P.2d 321 error if the trial court peremptory challenges prescribed” by law); in excess of the number Ken tucky Cook, Farm Bureau Mutual Ins. Co. v. 875, 877 (Ky. 1979) 590 S.W.2d improper (trial “requires challenges court’s allocation of reversal Allen, properly preserved”); Randle v. as a matter of law if the issue is 862 1329, (Utah 1993) (award peremptory challenges required P.2d 1333 not per se, party complaining prejudice). law is reversible error need not show Giacchetto, supra, In Kalams v. 262-63, however, rejected 268 Conn. approach and, instead, joined jurisdictions concluded, those that have awards, inquiry in even the context of one-sided that an into harm is neces sary complaining party to determine whether the is entitled ato new trial. v. Hillmon, See, e.g., Connnecticut Mutual 208, 211-12, Ins. Co. 188 U.S. Life 294, (1903) (trial improperly 23 S. Ct. 47 L. Ed. 446 court awarded Hughes, Thorsness, Gantz, peremptory challenges); Bohna additional v. Brundin, & 745, 762-63 (Alaska 1992) (trial Powell improperly 828 P.2d court Wolfinger, peremptory challenges); awarded defendants additional Fick v. 483, 486-87, (1972) (per (trial curiam) 293 Minn. 198 N.W.2d 146 court improperly peremptory challenges); gen awarded defendants additional see erally annot., 963, (1964) (“[t]he weight authority § 95 A.L.R.2d numerical supports judgment in civil cases the rule that a will not be reversed for allowing peremptory challenges error in one or more in excess of that provided by statute, complaining party unless the shows that he has peremptory challenges injury exhausted his and has suffered material from court, objectionable the action of the and that as a result thereof one or more jurors case, equally cogent reasons”); sat on the or for some other but see Mack, Praus v. 239, (N.D. 2001) J., (Maring, dissenting) 626 N.W.2d 261 n.3 (noting peremp that “modem trend” is to conclude that award of additional tory challenges error). defies harmless parties, are one or more litigation, or both sides recipients.17 claim. The merits of the turn to the We now improperly Court Appellate that plaintiff contends harm because suffered the defendants concluded “fun- awarded challenges the additional composition of damentally altered favor.” Carrano v. plaintiffs] in case decided the [the App. 662. Hospital, supra, 84 Conn. Yale-New Haven awards a trial court every case in which We In agree. by law, and the required of those some or all the award exercises recipient of necessarily is composition of the challenges, For exam- would have been. different than it otherwise nine Kalams, party awarded each the trial court ple, party had exercised and each peremptory challenges,18 Giacchetto, Kalams v. challenges. at least six of those parties, however, legally 268 Conn. 257-58. The supra, 261. Id., four each. only challenges were entitled two more parties Because the both exercised they entitled, were legally than that to which necessarily court’s award of additional required however, finding emphasize, that “a of actual harm is not We parties peremptory challenges to which the when the trial court has denied Giacchetto, supra, original.) (Emphasis Kalams are entitled law.” Homes, Inc., n.14; 147 Conn. see also Krause v. Almor ordering 336, (1960) (reversing judgment of trial court and 160 A.2d 753 review, trial, conducting when trial court harmless error new without they plaintiffs’ peremptory challenges improperly to which were had denied Develop Leasing by law); v. Construction & entitled Glass Peter Mitchell required 539, 547, Corp., App. (defendant A.2d 79 not ment 50 Conn. 718 unity prejudice improperly of interest when trial court had found to show challenges), only peremptory among granted one set of several defendants and 938, (1998) (appeal granted, withdrawn 723 A.2d 317 t. Conn. cer July 6, 1999). 257, Giacchetto, supra, v. had The trial court in Kalams party legally eight peremp entitled to a minimum of concluded that each granted tory opinion. challenges. court also See footnote 13 of this The trial jurors challenge party three alternate were to be a ninth to each because Giacchetto, supra, v. 258. selected. Kalams jury. Specifically, four composition

altered the it reasonable prospective jurors who, were excluded is jury. have sat assume, to otherwise would on the jurors may composi- have altered the exclusion of these jury, but, Kalams, tion of the as we concluded consequence. harm as a parties did not suffer Appel- nevertheless maintain that the The defendants properly concluded that the defendants had late Court harm as a result of the trial court’s award. suffered appear jury defendants to claim that the Essentially, the impartial fair and because the had was not shape to to opportunity advantage.” “the [her] Allen, 1329, 1993) Randle v. 862 P.2d 1334 (Utah required award of (improper per- law defies harmless error We are not review). . . . not for the “Peremptory challenges suaded. are purpose a biased for one’s side or securing opponent’s contrary, primary side. On the against an purpose help secure impartial jury. They permit party reject each certain they prospective jurors believe, whom but cannot dem- onstrate, predisposition against harbor some latent position opponent’s position. their or for the “Peremptory are thus not an end in them- impartial jury. but rather a means to an end: an selves, party impartial jury, receives an the issue of Where question is moot. The is thus whether peremptories [the jury despite obtained a fair the imbalance of parties] Hughes, Thorsness, Gantz, peremptories.” Bohna P.2d 762-63 Brundin, (Alaska 1992); Powell & Colson, v. Marchant & 25 U.S. see also United States 480, 482, 6 L. Ed. 700 (12 Wheat.) (1827) (“The right select, is not of itself a peremptory challenge right reject jurors. panel but a It excludes from the right objects has [party] to, those whom the until he to be challenges, exhausted his leaves residue to the established order according drawn for his therefore, . . . The usage right, the [c]ourt. necessarily right does not draw after it the challenge, merely of exclusion. It enables the selection, but say not to who [party] say try him; to who shall not but A particular jurors try party who him.”). shall be required by not law peremptory challenges exercises jury but, rather, shape advantage, does not to her jurors suspects are prospective excludes whom she The partial opposing party. biased her or against jury, impartial result is not a biased but a fair and one.19 however, every We do not that award imply, intend law peremptory challenges required by is harm- party permitted less. If one to exclude additional jurors, party perceives but another who a need to jurors equal opportunity exclude additional is denied an so, may to do harm result. aAs threshold to demonstra- ting harm, however, party such must complaining exhaust all own peremptory of her challenges Connecticut request See, additional challenges.20 e.g., appears jury present The dissent to maintain that the in the case was impartial plaintiff shape not fair and because the was allowed to advantage. disagree. challenges to her We The award of additional plaintiff jurors per enabled the to exclude additional whom she against partial defendants, ceived be biased her or toward the but it did jurors partial Further, not enable her to choose toward her cause. if the prospective jurors against defendants believed that were biased them or partial plaintiff, they peremptory toward the were free to use their own jurors explanation. to exclude those without fact that the defendants failed to exhaust their own reflects their jury ultimately satisfaction with the selected. contends, however, “may accepted The dissent that the defendants have jurors they rej given that otherwise would have ected if the had been statutorily challenges.” the correct number of authorized This contention is purely speculative. they The defendants do not claim that would have exer- differently cised their if the had received challenges and, they the minimum number of even if had raised such claim, unsupported by it is the record before us. showing met, party complaining Once this threshold has been must jury ultimately impartial demonstrate that the constituted was not fair and by showing objectionable juror actually that an served on the case, and, case, decided the that under the facts and circumstances of the juror Ross, the service of harmful. Cf. State v.

640 Hillmon, Mutual Ins. Co. 208, 212, v. 188 U.S. 23 Life only effect 294, (1903) (“[t]he S. Ct. 47 L. Ed. 446 [peremptory challenges not allowing put three men on required was to additional law] whom jury, challenge, the defendant could not it peremptory challenges might if it had exhausted its prejudiced by claim to been the fact that perhaps have was put upon jury men had which it three been exhaust having entitled to but failed to its challenge; it stands to com peremptory position no challenges, was of the oth plain deprived right challenge that it Gantz, Powell & Hughes, Thorsness, Bohna v. ers”); Brundin, supra, party P.2d 762-63 828 (complaining to establish peremptory must exhaust Dept. & v. American Buildings Public Works harm); Co., Bank National & Trust 439, 36 Ill. App. 446-47, 3d Evangelical St. Luke N.E.2d 686 (same); 343 (1976) Church, Smith, Inc. v. Lutheran 337, 344, 318 Md. 568 party establish A.2d 35 could not (1990) (complaining did not reveal whether she had harm because record Wolfinger, Fick v. peremptory challenges); exhausted fair trial 487, 198 (“[a] 293 Minn. N.W.2d (1972) impartial jury, an but plaintiff requires for [the] not, demon more, the adverse verdict does without Stevens deprived trial”); that he was of such a strate Co., v. Union R. 90, 106, (“the 26 R.I. A. 492 (1904) 232-33, 849 (2004) (“[I]n determining [improper] denial A.2d whether the harmful, challenge potentially court considers whether of a for cause was objectionable actually identifiable, juror jury an served on the that decided case, composition not whether of the have been different would present case, exhausting of the In the after in the absence claimed error. his peremptory challenges, the defendant did not seek to exercise an additional specific juror. peremptory challenge against Accordingly, we conclude that, improperly even if it is that the trial court denied one or more assumed thereby challenges, forcing him to exercise of the defendant’s cause his jurors, peremptory challenges right to remove those his to exercise full complement way, peremptory abridged. was not Put another challenges necessarily any improper denial of the for cause harmless accept objection incompetent the defendant was not forced to an because juror exhausted.”). after his had able been of the trial rather with the fairness law is concerned particular jurors than with the impartiality and the and render the jurors compose verdict”); who Esposito, cf. State 299, 312-13, 613 A.2d improperly denied for cause (party challenge 242 (1992) denied, be additional request, must present in the case did not The defendants challenge). and did not peremptory challenges, exhaust their request Moreover, additional the defen challenges.21 any juror dants do not claim that individual who served jury they against them, on the was biased or that were prejudiced by protracted jury selection proceedings.22 that, necessarily The at dissent contends least two of the defendants peremptory defendants, challenges. disagree. exhausted their We The who represented by attorney trial, appear were all the same at to have exercised collectively, individually. such, their rather than As it cannot any be determined on the record before us whether individual defendant peremptory challenges. Moreover, exhausted his or her allotment of they challenge note that the defendants not do assertion that jury challenges during had failed to exhaust their selection. arguendo Even if we were to assume that some of the defendants had challenges, exhausted their we note that these defendants nonetheless failed request challenges. such, additional As it is reasonable conclude that they perceive challenges and, therefore, did need to exercise additional Esposito, were not harmed the trial court’s award. Cf. State 299, 310-11, (1992) (party improperly challenge 613 A.2d 242 denied for request, denied, peremptory challenge). cause must and be additional ground affirmance, however, The defendants claim as an alternate for orderly that the trial court’s award was inconsistent with an efficient and judicial process. Specifically, the defendants claim that the trial court’s rejection peremptory challenges specified (a) of the number of §in 51-243 orderly judicial process “must be corrected for there to be an efficient and requires (Citations omitted.) persuaded. as Kalams . . . .” We are not The orderly judicial process” not, term “efficient and does as the defendants suggest, interpretation of, to, legislation refer to the trial court's or deference governing peremptory challenges. Rather, the award of the term refers to length complexity jury proceedings. selection Cf. Kalams v. Giacchetto, supra, (no complaining 268 Conn. 261 reversible error when party plausibly improper “prejudiced could not claim that trial court’s award any way unduly protracted proceedings”). his case in or selection proceedings Because the defendants do not claim that the selection unduly lengthy complex, were the trial court’s award cannot be deemed orderly judicial process. inconsistent with an efficient and support the defendants’ does not

The record therefore result of the trial harm as a they suffered claim that and, accordingly, award of additional court’s award that the arguendo to assume if we were even required. is not a new improper, II Court Appellate next claims evidence that nontestimonial concluded improperly ato prove damages economic normally required respond that the The defendants certainty. reasonable disability ben- concluded that properly Appellate Court must be established stream, income as a defined efits, fur- evidence. The defendants nontestimonial through affirmance, ground an alternate claim, ther as was insuf- damages of economic plaintiffs evidence necessary to testimony was expert because ficient for the the award to account jury adjusting in assist the taxes and expenses, income living personal decedent’s conclude income.23 We value of future present the net eco- is sufficient to establish evidence that testimonial certainty. We further to a reasonable damages nomic of economic dam- the evidence conclude, however, that the insufficient because present case was in the ages oth- any evidence, expert or introduce failed to plaintiff income taxes decedent’s concerning the erwise, expenses.24 personal living relevant following as to the plaintiff The testified disability income. The the decedent’s concerning facts Sikorsky (Sikorsky) Aircraft was hired at decedent sufficiency challenge of the evidence concern defendants do not The reasonably jury costs, could have found amounted ing which the funeral $4976.85. claim that the Accordingly, the defendants’ alternate we do not reach improperly to set aside the verdict denied the defendants’ motion trial court acjjust jury trial court’s instructions had failed to follow the because the taxes, damages income to reflect the decedent’s award of economic present expenses personal living value of future income. and the he by 1989, had illustrator; design 1979 as a tool an receiving and was promoted to a toolmaker been In that $40,000. same salary approximately of annual disability on medical went year, however, decedent on medical disease. While of his Crohn’s leave because disability income both leave, the decedent received secuiity. Sikorsky Specifically, from and social security in, social kicked that “once testified what Sikorsky disability pay would less social then the they’d had a set amount and security you know, he — security According him.” gave what social subtract Sikorsky a net amount plaintiff, paid the decedent disability payments. $140 $146 The per week Sikorsky the decedent paid testified that plaintiff also salary, and that two thirds of his annual approximately after the decedent’s death. payments these terminated thirty-seven the decedent was undisputed It that time his death. years Additionally, old at the establish that testimony to presented expert sixty- expectancy had an life average the decedent jury reasonably could have year's. Accordingly, five disability have found that the decedent would received years. payments twenty-eight for an additional an jury The court instructed the award disability future based on the decedent’s lost damages adjusted to the decedent’s income must be reflect expenses. personal living income and estimated taxes the award The trial court further instructed present must be to a found reduced net value.25 jury you instructed as follows: “If were to court determine disability upon that an of income is a award based loss [the decedent’s] you proper damages, figure upon a element of will arrive at for that based just given you. the other I have rules you figure, you present “Once have arrived at that must discount it to the payment present will made in value to allow for the fact that a be lieu of lived, periodic which, would have received at sums had the decedent been just know, simple saying, you times in future. So it’s as as bird in the money get lump today, you hand is in the You worth two bush. sum you’re apply percentage waiting have to a discount of that because

in plaintiff favor of the $738,029.85 awarded in economic See damages. opinion. footnote 6 of this

Thereafter, the defendants moved to set aside the jury’s respect verdict with to Spe- economic damages.26 cifically, the defendants claimed that the evidence was support insufficient to plain- verdict because: (1) testimony tiffs conflicting the amount of concerning disability the decedent’s per- income was insufficient to mit the to ascertain economic to a reason- damages certainty; able and (2) expert testimony absent years. percentage it over the course of What that discount should be is entirely your you. give suggest within I discretion. cannot it to I cannot it you. support up you. There has been no evidence to it. So it’s part damages applied case, “This of our law of as ato death I would tell you, quirk. peculiar, yet is a It’s I’m because not finished with the other you you’ll go through. probably, mathematic —mathematics that have to And finish, say, really any when I all can do that? We don’t ‘[h]ow have knowledge knowledge don’t have sufficient to do that. Someone should —we apply.’ justifiable have told us what numbers to Those are comments and law, request I criticisms. As view the the law entitles the type compensation requires charge and the law the court to on very very, generalized guidelines gives it as best it can within the the court us. begin acjjustment, present “So we with the first which is the discount for any paid value. You must then deduct income tax that would have been on may these sums. You also take inflation into consideration as a in factor determining damages. figured $40,000 Income tax would be on the basis of annual income 1992. you “Finally, personal living will deduct from these sums the estimated expenses period for the . . . .” charge, personal living expenses Earlier in its the trial court had defined personal expenses which, living as “those under the standard of followed decedent], reasonably necessary it would have been [the for him to incur keep being order to himself in such a condition of health and well capacity enjoy They he would be able to maintain his life’s activities. are expenses food, shelter, clothing for the basic necessities of and health life— living. care—under the decedent’s standard of expenses ordinarily expenses, “Personal would not include recreational portion expenses living properly furnishing nor that allocable to the family food and shelter to members of his other than himself.” unsuccessfully partial The defendants had moved for a directed verdict plaintiff’s evidence, at the close of the case-in-chief and at the close of claiming part presented in relevant that the had insufficient evidence earnings. of the decedent’s income a net of future concerning the reduction the of taxation and decedent’s the rate present value, an adequate lacked expenses, the personal living adjustments appropriate make the factual basis to for a Alternatively, defendants moved award. the their the had remittitur, that claiming new trial or a regarding the trial court’s instructions failed follow The trial court damages. of economic the calculation and rendered judgment the defendants’ motions denied the verdict. in accordance with appeal Appellate Court, defendants On dam- that the evidence of economic renewed their claim which Appellate Court, The was insufficient. ages defendants were enti- already had determined Hospi- Carrano v. Yale-New Haven trial; tled to new I of this supra, App. 658; part opinion; see tal, 84 Conn. likely it claim because was addressed the defendants’ Hospital, v. Haven recur at retrial. Carrano Yale-New concluded that the supra, Appellate Court n.3. little discussion” because defendants’ claim “meritfed] normally require nontestimonial “[ejconomic damages App. 183, v. Conn. evidence; Giordano, 39 Giordano proven must be to a 207, (1995); 664 A.2d 1136 certainty. Kramer, Jones reasonable v. n.7, Carrano Yale-New (2004).” 838 A.2d supra, Accordingly, Appel- 658 n.3. Hospital,

Haven late Court evidence concluded “[t]he inadequate as a matter of economic damages law.” Id. we matter,

As an initial note that standards “[t]he sufficiency of claim our review of a evidence governing . . rigorous. are well established and . is not [I]t juror function of court to sit as the seventh when . . sufficiency rather, review evidence . we must in the determine, most favorable to sus- light totality evidence, whether taining verdict, therefrom, including supports reasonable inferences 646 jury’s verdict .... In making determination, evidence must be given most favorable con-

[t]he in support struction of the verdict of which it is reason- ably capable. ... In other words, could [i]f reasonably have reached its conclusion, the verdict stand, must even if this court with it. . . . disagrees apply “We this familiar scope and deferential review, however, equally of the light principle familiar that the produce must sufficient evidence to jury’s remove the function of examining inferences and facts from finding speculation. the realm of ... A motion to set aside the verdict should be if the granted jury reasonably and legally could not have reached the they determination that did in fact reach. ... If the jury, conjecture, without could not have found a required element of action, the cause of it cannot with stand a motion to set aside the (Citations verdict.” omit ted; quotation internal marks v. omitted.) Carrol Allstate Co., Ins. 262 Conn. 433, 442, 815A.2d 119 (2003). Further, are damages they claimed are an “[w]hen plaintiffs essential element of the proof and must be proved with certainty. reasonable . . . are Damages only recoverable to the extent that the evidence affords a sufficient basis for their estimating money amount in with certainty.” reasonable (Citations omitted; internal quotation marks omitted.) Gandio v. Health Griffin Corp., Services 249 Conn. 523, 554, 733 A.2d 197 (1999).

A We first address whether nontestimonial evidence is necessary to establish economic to a damages reason- certainty. “Ordinarily able in civil cases testimony of a witness single any is sufficient fact, establish including the amount of damages, proof unless more required by is statute, even though party the witness is a or interested in the action.” 32A C.J.S. 761, Evidence if a (1996). Thus, plaintiff presents § testimonial within solely it respect damages, with evidence credibility assess the province testimony. of his her weigh and to the value v. Products, Inc. Petroleum Waterbury See, e.g., 477 A.2d 208, 227, 193 Conn. Co., Oil & Fuel Canaan of trier of fact to credit province (within (1984) consequential testimony amount of regarding 411-12, Roraback, Delott damages); of fact to province trier (1980) A.2d 791 (within concerning capac- testimony earning plaintiffs credit 214, 218, Corp., v. United Conn. Cooke ity); Aircraft may though a witness 484 (1964) (“[e]ven 205 A.2d an award alone, making the trier is warranted stand believed”). if testimony, with the witness’ consistent we that testimonial evidence conclude Accordingly, support damages, of economic an award sufficient jury’s on this evidence is rea- the reliance provided sonable. however, disability pay- claim,

The defendants established ments, stream, as a defined income must be Specifically, the nontestimonial evidence. through solely rely could not claim that the defendants testimony the concerning her own unsubstantiated on disability the decedent’s income when she amount of easily presented documentaiy proof have could tax stub, in the form of a check return or state- income “ credibility reject of benefits. We this claim. ‘The ment jury and, except is a for the of a witness matter instances, requirement a witness’s rare there is no Tait & testimony be corroborated other evidence.’ C. Evidence LaPlante, (2d 1988)], J. Ed. [Connecticut corroboration, may course, 7.30.1. The absence of § sufficiency the affect the trier’s decision as to the [id.]; this factor proof; evidence and burden of but than weight of the claimant’s case rather goes ability the case the trier. bring to his or her before why credibility, reason We see no the traditional tests of testimony under oath and cross-examination, coupled with the proof, claimant’s burden of are insufficient” accuracy reliability measure the of testimonial evidence concerning economic damages. Keystone Ins. Co. Raffile, 223, 235-36, Conn. 622 A.2d 564 id., present need not (1993); (plaintiff corroborative evidence to recover uninsured motorist benefits). Accordingly, conclude that was not required present nontestimonial evidence to corrobo- testimony rate her concerning amount of the dece- disability dent’s income.

The defendants nevertheless claim that plaintiffs testimonial evidence was Specifically, insufficient. plaintiffs defendants claim that “wildly differing estimates” concerning decedent’s gross earnings27 disability from income were insufficient to enable the plaintiffs to determine the economic damages to a certainty. reasonable Although testimony was not a clarity, model of we conclude that it was legally sufficient.

The testified that the decedent had received disability payments Sikorsky both from and from social security, payments but that the Sikorsky from were reduced the amount of the decedent’s security social payments. The further testified that the dece- dent had received a “net amount” of approximately $140 $146 per to Sikorsky. week from As the defendants correctly point $146 out, a week would have resulted in annual gross $7592. in the amount earnings The plaintiff proceeded testify to that the “full” amount of disability payments Sikorsky equaled from had two thirds of the decedent’s annual $40,000. income of As “gross earnings” earnings We use term to refer to the decedent’s total disability prior adjustment personal from income for income taxes and expenses. living earnings” We use the term “net to refer to the decedent’s earnings disability adjustment total from income after for income taxes and personal living expenses. part opinion. See n B of this would out, figure correctly point the defendants the amount in earnings in annual gross resulted have “wildly estimates” differing is these $26,666.66. It $26,666.66, $7592 versus namely, earnings, annual of their claim. point support in the defendants which plain- from the have inferred reasonably could jury the “net amount” however, that testimony, tiffs the decedent’s disability income excluded decedent’s the “full” amount payments, while security social reasonably payments. Thus, included these these two between the difference could have attributed security payments of social the amount figures in the the evidence Viewing the decedent. received jury’s verdict, the sustaining most favorable light the decedent reasonably could have found amount of disability payments annual received expert evi- plaintiff presented Because the $26,666.66. lived the decedent would have dence to establish that we conclude that twenty-eight years, an additional permit was sufficient to plaintiffs testimonial evidence would jury reasonably to find that the decedent amount of gross earnings have received the course of disability from income over $738,029.85 expected lifetime. his

B claim, as an alternate ground The defendants next affirmance, plaintiff presented that the insufficient expert evidence of economic because testi- damages mony necessary jury in adjusting to assist the per- award of to account for the decedent’s damages expenses taxes, sonal and income and to reduce living award, income, which consisted of future largely present plaintiff responds to a net value. The that the adjustments method of these was within the calculating jury and, therefore, expert knowledge common testimony required. We conclude that the evi- of economic was insufficient because damages dence plaintiff present any evidence, expert failed to or otherwise, jury reasonably from which the could deter- personal mine the amount of the decedent’s living expenses or income taxes. recoveiy

“To authorize a . . . facts must exist and be shown the evidence which affords a reasonable [plaintiffs] basis for loss. The measuring [plaintiff the burden of the nature and extent of proving has] .... proof the loss Mathematical exactitude in the damages impossible, often but the must provide nevertheless sufficient evidence for the trier to make a fair and omitted; reasonable estimate.” (Citation Springs Willow Con- quotation internal marks omitted.) Assn., dominium Inc. v. BRT Development Seventh Corp., 1, 58-59, 245 Conn. 717 A.2d 77 (1998). “Proof should be established with damages reasonable cer- tainty speculatively problematically. and not . . . may not be calculated based on a Damages contingency conjecture.” omitted; quotation internal (Citations Technology, Leisure Resort Inc. v. omitted.) marks Trading Cove Associates, 21, 35, Conn. 889 A.2d 785 (2006).

In a wrongful action, death it is well established that are “on damages measured the basis of the loss to the Floyd Industries, Fruit decedent had he . . . .” lived Inc., 659, 671, 136 A.2d Thus, if (1957). seeks to recover damages for the loss of wages decedent’s or for the destruction of the dece- capacity, inquiry dent’s “the in earning the first instance probable ordinary is as to net earnings, sense of phrase as used in accounting practice, during the probable lifetime Id. Net earnings [of decedent].” are calculated deducting the decedent’s income personal expenses taxes and from living gross his earn- Floyd Industries, Inc., v. Fruit As we ings. reasoned supra, 672, would be difficult to conceive of a more “[i]t unjust, unrealistic or unfair than rule one which would reasonable com- their allowance of jury lead a to base capacity on earning destruction of pensation for the paid would be on no income taxes hypothesis the that only usable practical purposes, the net For all earnings. such taxes.” payment after of earnings are net earnings is to be that, compensation “if fair We further reasoned subject ... case of a decedent who made the must be himself there expense maintaining of compensa- fair from what would otherwise be deducted expense personal living during tion the reasonable 674. Personal Id., duration of his lifetime.” probable the personal expenses expenses include “those living followed which, living given under the standard of reasonably necessary for decedent, it would have been a condition keep him to incur in order to himself such he maintain his of health and that could well-being enjoy activities, capacity the capacity including life’s money.” Id., expenses to earn 675. Personal do living include, however, expenses, “recreational nor that proportion expenses properly allocable to the living dece- furnishing food shelter to members [the family than Id. other himself.” dent’s] present present any In case, failed to evidence, expert otherwise, probable concerning personal amount of the decedent’s income taxes and expenses. jury only speculate could as living paid amount of taxes the would have decedent on his money necessary and the amount of gross earnings support the decedent. Because the damages are measured earnings, decedent’s net permit because the evidence was insufficient to to determine the amount of the decedent’s net earnings, plaintiff presented we conclude insufficient evidence of economic damages.

It could be could calculate the argued expenses income taxes and of the decedent with living accuracy on their reasonable based own common and state experience with federal and knowledge self-mainte- as the costs of taxes, general income as well the First, claim. we note reject nance. We this solely disability pay- consisted of decedent’s income tips. Regardless salaries or wages, rather than ments, to claim insofar as it extends validity of this of the to perceive we can no reason income, sources of other disability income the rate of taxation of conclude that the experience and of knowledge the common is within concept of self- Second, although the juror. average may knowledge be within the common maintenance juror, personal living experience average and fol- living “the standard of expenses are measured . .” . . Id. Because by a decedent given lowed money necessary feed, clothe and shelter amount dramatically on the depending will differ an individual in the living individual and the cost lifestyle of the lives, individual we conclude in which the location for the decedent’s damages to recover plaintiff seeking present evidence capacity must wages earning lost expenses.28 probable personal living of the decedent’s present in the case that the evidence We underscore the amount to establish simply was not insufficient plaintiff. Rather, suffered damage economic reasonably jury permit insufficient to evidence was any damage economic plaintiff suffered to find that the disability income. the decedent’s due to her loss of concerning was no evidence Specifically, because there probable income taxes of the decedent’s the amount there was no evidence expenses, personal living and dece- reasonably could find that the jury from which the probable concerning income taxes Because there was no evidence decedent, personal living expenses we do not reach the defen necessary expert testimony assist was dants’ claim that Likewise, expenditures. calculating reach the assessing we do no these testimony necessary expert to assist the claim that defendants’ present damages adjusting value to account for the the award of economic of future income. expenses. exceeded these disability income

dent’s Suppose point. illustrates following hypothetical $8000 on his disabil- in income taxes paid decedent money necessary feed, the amount of ity income and annually amounted and shelter the decedent clothe and living income taxes The decedent’s $18,666.66. the same $26,666.66 year, expenses would total disability income. from earnings amount as his gross disability the decedent’s calculations, to these Pursuant and, such, as expenses would not exceed his income not have suffered an economic loss. plaintiff the would present case, concerning In the there was no evidence income taxes probable the amount of the decedent’s there personal expenses, and, therefore, was living reasonably permit evidence to the insufficient find that the suffered an economic loss. Accord- plaintiffs compelled we are conclude the ingly, was damages evidence of economic insufficient.

Ill Lastly, the defendants claim that the judgment Appellate pursuant Court should be modified Practice Book 84-11 because the defendants are (b) § Specifically, entitled to as a matter of law. judgment the defendants claim that the evidence of causation was support and, consequently, the judgment insufficient to Appellate improperly present Court remanded the plaintiff responds for a new trial. The that we case should decline to review the defendants’ claim because on petition we denied their cross for certification opinion. Alternatively, same issue. See footnote 1 of this claim, if we reach the merits the defendants’ was plaintiff maintains that the evidence of causation prop- sufficient. We conclude that the defendants’ claim erly presented for our review. We further conclude support that the evidence of causation was sufficient to judgment. A claim is whether the defendants’ We first address proce- The following for our review. presented properly this issue. to our resolution of history dural is relevant case-in- of evidence in the After the close for a directed verdict defendants moved chief, had failed to that the part in relevant claiming The trial court of causation. adduce sufficient evidence Thereafter, at the close defendants’ motion. denied the renewed their case, the defendants of evidence in the again The trial court a directed verdict. motion for and submitted the case motion, denied the defendants’ plaintiff, in favor of the jury. found notwithstanding judgment moved for the defendants the defendants’ The trial court denied the verdict. with in accordance judgment motion and rendered the verdict. Court, the defendants Appellate appeal

On of causation claim that the evidence renewed their already Court had Appellate insufficient. Because entitled to a new defendants were that the determined court’s misallocation of the trial grounds trial on the Court declined Appellate peremptory challenges, v. Yale-New claim. Carrano the defendants’ to review Hospital, supra, 84 Conn. App. 658 n.3. Haven petitioned for certi- cross Thereafter, defendants Appellate judgment from the appeal fication to the fol- defendants submitted Specifically, the Court. “Did question for our review: proposed certified lowing adjudicate to [improperly Court Appellate decline] to not- judgment are entitled whether the defendants defendants had verdict, where withstanding [the] issue, Appel- but the and briefed that properly preserved to reach the that it had no occasion late Court ruled on judgment the trial court’s once it had reversed issue a trial?” We denied and remanded for new other grounds

655 v. Yale-New petition. Carrano defendants’ cross A.2d 509 (2004). Hospital, 271 Conn. Haven decline to review that we should The claims evidence claim insufficiency of the the defendants’ petition for defendants’ cross we denied the because undisputed It is disagree. We certification. in the trial preserved properly claim was

defendants’ Appellate Court. properly presented court to review the defendants’ Appellate Court declined a already had determined that only claim because it Carrano v. Yale-New Haven required.29 new trial was we App. (“[b]ecause 658 n.3 Hospital, supra, we necessary, a new trial is need conclude that third claim the suffi- regarding consider the defendants’ We concluded ciency evidence”). opinion, however, I that a new trial is not part of this fairness required. interests of fundamental Accordingly, defendants’ appellate policy and sound dictate that the insufficiency of the evidence claim properly preserved Appellate required contend that the Court was to review The defendants insufficiency pursuant Padua, State v. their of the evidence claim 138, 178, Padua, (2005). Conn. 869 A.2d 192 In the defendant Miranda improperly Appellate had declined to review Cálvente claimed that the Court insufficiency prior remanding her of the evidence claim the case to the ground in violation trial court for a new trial on the of trial error jeopardy Id., double clause of the federal constitution. 177.We did not reach concluded, “pursuant jeopardy the defendant’s double claim because we supervisory authority appellate procedure, reviewing general over that a our insufficiency court must address a defendant’s of the evidence [criminal] id., 178; “properly adequate claim”; if the claim is briefed and the record is Id., Specifically, “[ijnterests for the court’s review.” 179. determined require reviewing . . . court to address a fundamental fairness [crimi insufficiency prior remanding a defendant’s of the evidence claim nal] id., may disposi retrial”; 178; be matter for because “resolution of the claim ” may Id., (“[p]ursu ‘wasted tive of the case and retrial be a endeavor.’ States, 1, 18, 2141, ant to v. 437 U.S. 98 S. Ct. 57 L. Ed. 2d 1 Burks United [1978], judgment acquittal a defendant is entitled to a and retrial is barred jeopardy appellate if an determines that the double court [under clause] support conviction”). the evidence is insufficient to Because a new trial required present case, whether rule is not in the we need not address articulated in actions. Padua extends to civil Padua, State See, review. appellate e.g.,

receive may n.37, (court 869 A.2d 192 (2005) Conn. in not certified for review interest address claims judicial efficiency).

B of defendants’ claim. The We now turn to the merits testimony that the defendants contend witness, Pieroni, Robert E. was insufficient expert “utterly failed to because Pieroni establish causation . jury how . . ‘massive fluid overload’ explain to the edema pulmonary led to the could have [decedent’s] disagree. . . . .” We malpractice action, in a medical prevail

“[T]o requisite standard of care prove (1) must that standard of treatment, a deviation from (2) for between the deviation care, and a causal connection (3) injury. Generally, . . . and the claimed testimony support in of a medical present expert must proper requirements claim because the malpractice are not within the com- medical and treatment diagnosis omitted; laypersons.” (Citations mon knowledge Boone v. William marks quotation omitted.) internal Hospital, W. Backus 551, 567, 864 A.2d injury cause in fact is “The test for (2005). [w]ould negligent were it not for have occurred [the defendant’s] . . . ? Proximate cause is defined as . . . conduct [a]n resulting that is a substantial factor actual cause test, truth, factor harm .... The substantial proximate fundamental to all cause inquiry reflects the whether the harm which occurred questions; is, nature as the foreseeable risk general was of the same quota- negligence.” (Internal created the defendant’s Id., 571. omitted.) tion marks explained, have standards previously As “[t]he sufficiency claim our review of a of evidence governing . . . is not the rigorous. are well established and [I]t juror when as the seventh court to sit function of this rather, . . . sufficiency of the evidence we review to sus- most favorable determine, light in the we must evidence, totality of the whether the verdict, taining therefrom, supports inferences reasonable including determination, making .... In jury’s verdict con- the most favorable must be given evidence [t]he of which it is reason- of the verdict support in struction could words, ... In other ably capable. [i]f the verdict conclusion, its reasonably have reached it.” (Cita- with disagrees if this court stand, must even Carrol omitted.) marks omitted; quotation internal tions 442. Co., supra, 262 Conn. v. Allstate Ins. relevant to our additional facts are following physician a Pieroni, claim.

resolution of the defendants’ family medicine at the of internal and professor and in Tusca- of Medicine University of Alabama School expert an witness on behalf loosa, testified as that the decedent’s death plaintiff. Pieroni testified edema, or excess fluid pulmonary caused massive following in caused a combination of lungs, fluids in edema or ‘anasarca’ (excess factors: “massive extremities, and buttocks upper and lower sacrum swelling); progres- noticeable and extreme that caused lost one third of his blood sive anemia ([the decedent] sepsis; Hospital; fever; while at Yale-New Haven volume diet; non- postassium-high a low sodium pneumonitis; anti-inflammatory hospital-admin- drugs; steroidal antibiotics, saline, intravenous including istered fluids of which drank gallon ‘Go-Lightly,’ [the decedent] Carrano v. colonoscopy.” colon for the to cleanse his supra, App. 663-64. Hospital, Yale-New Haven a “massive Pieroni, these factors caused According to 19, 1992, March during fluid overload” that on began and worsened hospitalization, gradually the decedent’s Specifically, until it eventuated the decedent’s death. happens you is when have Pieroni testified that “what build-up fluid, just your it’s built —it’s not legs, it, where we see it’s in his also in the thighs, butt, that’s very you there, back, which is unusual that find it the you your beyond and it a while heart —it’s go —after —so if capacity your pump untreated, the of heart to it out it’s you Lasix, example, if don’t a—a diuretic or give you anemia, don’t correct the and so the bottom line your is, you just pump reach a where heart cannot stage And coupled, out this massive overdose of fluid. that is why multi-factorial, just I this is it’s not that’s said anemia, it’s the fact that he had anemia —severe fluid, your and that means heart has to work at a higher efficiency. And he also was and we degree septic, of septic processes produce do know that what’s called myocardial depressant capac- factor that decreases the ity effectively. all pump of the heart to as So of these coupled patient just result in a able to things being essentially they rid of the fluid and drown.” get testimony Larry H. deposition Bernstein, The autopsy who had conducted the of the dece- pathologist dent, was read into the record at trial. Bernstein testified autopsy that the revealed that the decedent’s were lungs Specifically, and full of fluid. Bernstein testified “huge” that the “normal 350 on although lung weighs grams side”; right lung each the decedent’s weighed left grams, lung weighed grams. According his Bernstein, the cause of the decedent’s death was pulmonary edema, build-up” “massive fluid decedent’s lungs.30 clarify an matter, scope

As initial of the defen- dants’ claim. The defendants do not dispute that the evidence was sufficient to establish appropriate standard of care and the defendants’ breach that Moreover, dispute standard. the defendants do not that 30Contrary testimony, build-up to Pieroni’s Bernstein testified that the lungs and, moreover, completely fluid in the decedent’s was sudden unre peripheral lated to the decedent’s edema. pulmonary was sufficient establish the evidence Rather, of the decedent’s death. edema was the cause testimony was insuf- that Pieroni’s claim defendants breach establish that the defendants’ ficient to develop pulmo- of care caused the decedent standard testimony, Pieroni’s nary We conclude that edema.31 of causation was insufficient also claim that evidence defendants probability any degree of how “never [the] because Pieroni identified reject prevented death.” We could have [the decedent’s] defendants likely testimony Expert than not the death of the decedent more claim. only prevented required in a chance” or “lost “lost could have been See, Hospi opportunity” e.g., W.Backus for survival case. Boone William case, tortfeasor, through tal, supra, “In a loss of 272 Conn. 573. chance act], to avoid [negligent failure to causes an individual to lose a chance his (Internal physical preexisting medical harm” from condition. some form of Hospital, quotation omitted.) 77 v. W. Backus Conn. marks Drew William 909, (2003) App. 645, 652, 825 810, granted, Conn. A.2d 249 A.2d cert. 265 831 22,2003); (appeal v. W. also Boone William Backus withdrawn December see opportunity predicated Hospital, supra, (lost 12 or “is 573 n. chance lost claim alleged of omission rather than commission” [internal on the defendant’s acts case, plaintiffs quotation present omitted]). the medical mal In the marks First, practice alleged related the action rested on two theories. affirmatively provision improper medical that the defendants’ of treatment Second, alleged that had the death of decedent. the the caused the but the decedent’s death the decedent would not have occurred for of hospital. theory recovery improper discharge plaintiffs from the The first because, body in the does not a claim for loss of chance as discuss state plaintiff presented permit opinion, evidence to the of this the sufficient reasonably acts caused the to find that the defendants’ affirmative had death theory recovery, namely, second the decedent. improper decedent, discharge arguably states a claim for loss of the premised improper provide the failure to chance because it is on defendants’ Hospital, See, supra, e.g., v. W. medical Boone William Backus treatment. hospital (claim improperly to treat or admit 573 that defendant refused Hospital, chance); claim loss of Marshall decedent stated Hartford 738, 754, malpractice App. (“[t]he A.2d 1085 medical claim in complaint a ‘lost or ‘loss of chance’ claim because the case is chance’ alleges promptly or from a failure to treat to obtain consultations other thereby physicians, Tos[ing] minimizing] or the chances for successful treat ”), denied, (2001). ment’ cert. Conn. A.2d 425 Even if we were requires arguendo plaintiffs improper discharge to assume the claim likely prevented proof that the defendants more than not could have the decedent, testimony death of was sufficient. we conclude that Pieroni’s “unequivocally have Pieroni testified should never been [that decedent] discharged by any imagination discharged when he was with stretch of light when viewed in the most favorable sustaining verdict, was sufficient to establish that the defen- dants’ breach of the standard of care in a resulted “mas- fluid sive overload” that caused the death of the decedent.

Pieroni testified that the improper administration of excess fluids to the decedent, combined with low potassium, sodium diet on which high the defendants placed decedent, had caused the decedent develop peripheral edema, or fluid in excess his extrem- Pieroni Specifically, pointed ities. out that during hospitalization, prescribed decedent’s he was a gallon fluid, which “Go-Lightly” salt, contains or sodium, colon, to cleanse his continuously adminis- fifty tered cubic centimeters an hour of saline, normal salt, intravenously. or Further, according Pieroni, potassium, low sodium high diet results in an increase sodium, salt, may which cause fluid retention and “fluid overload.” Additionally, the decedent received drug fever, Trilisate to lower his and Pieroni testified that “Trilisate should have been . . . given because . . . . it causes edema . . .” Pieroni further testified the that decedent’s edema to in worsen, continued rele- part, vant due to the improper defendants’ failure to prescribe a body diuretic assist the decedent’s in Moreover, fluid filtration. the decedent was suffering an anemia, from infection and severe which, both of according Pieroni, persisted due to the defendants’ multiple problems ongoing all of these that were and were eminent —unfortu they eminently nately, anemia, sepsis [infection], were treatable. The the edema, any ordinary things well, physi the these that are the —well trained — contend, however, testimony cian can treat.” The defendants that Pieroni’s conclusory factually unsupported. was insufficient was because it and We disagree. Pieroni that the testified decedent’s anemia could treated have been sepsis, infection, transfusion, change with blood his with a in antibiotics worsening Accordingly, and his with the edema administration of diuretic. testimony factually supported reasonably conclude Pieroni’s and jury. on relied the compromised which treatment, and both of improper effectively heart of the decedent’s capability the body. The eventual fluid out of his pump the excess edema gradually the decedent’s result was the decedent’s excess fluid reached worsened until the Pieroni summarized effectively drowned him. lungs and process giving as follows: defendants the were] “[the cup, analogy of a he and, salt” the using decedent] [the salt, you on keep putting “the more stated that it’s overflow. diuretic], gonna with Lasix it removing [a your lungs into and overflows, goes] And it when [it pulmonary unfortunately, massive cause [s] massive — did have.” patient what the indeed and that’s edema, suffi- testimony was foregoing We that the conclude reasonably to find that the permit cient to of the decedent caused improper treatment defendants’ jury reasonably Specifically, death. decedent’s improper for defendants’ could found that but have decedent, of excess fluids administration low sodium provision potassium, high of a improper diet, prescribe failure to diuretics improper infection and treatment of decedents’ improper developed not have anemia, the decedent would severe pulmonary a fatal case of edema. Appellate Court is reversed judgment case that court with direc-

part and the is remanded to court with direction tion to remand the case the trial for the in the amount to vacate judgment judgment and to render in favor $3,386,177.85 $2,653,124.85.32 in the amount of KARAZIN, In concurred. opinion Js., KATZ death, $2,204,976.85 wrongful Judgment, shall enter in the amount of wrongful damages $448,148 death include and for loss of consortium. The costs; $2,200,000 damages $4976.85in in noneconomic and funeral see foot opinion; 23 of the economic note of this after deduction for the balance opinion. damages improperly part II of that were awarded. See this

ZARELLA, J., J., with whom BORDEN, joins, dis- majority’s analysis Because I with the senting. disagree respect and conclusions with to the issue regarding I peremptory challenges, respectfully dissent. majority correctly adequately The and sets forth the facts court’s surrounding supernumer trial award of ary I challenges. only will review briefly therefore them to aid in understanding this dissent. Pursuant to General 51-243,1 Statutes to (Rev. 2001) plaintiff2 was enti § tled to eight challenges and the defendants3 twenty were entitled because the trial court found unity that no of interest existed among them.4 Neverthe less, court, sponte, trial sua awarded the an additional twelve but left the defendants statutorily twenty. with the a result, authorized As required court statutorily did adhere to the ratio of (Rev. provides 2001) (a) part: § General Statutes 51-243 in relevant any jurors, “In when the case court directs selection of alternate each party may jurors. peremptorily challenge four court Where the determines unity exists, plaintiffs may a of interest several or several defendants be single party purpose making challenges, a considered as for the or the may permit court additional allow and them to be jointly. purposes separately subsection, ‘unity exercised For a this plaintiffs of interest’ means that the of the several or of the several interests substantially defendants are similar.” 2 Mary Carrano, individually Phillip as administratrix of the estate of Carrano, Jr., original J. and Sarah Carrano were the in this case. The court, Melville, J., granted partial summary the defendants’ motion for judgment, concluding judgment that the defendants were entitled as a against Carrano, thereby Mary leaving matter of law Sarah Carrano as the Mary remaining plaintiff. plaintiff throughout We refer Carrano as opinion. plaintiff originally brought against defendants, this action five namely, Hospital, Ballantyne, gastrointestinal Yale-NewHaven Garth a sur geon, Elliot, physician, physician, Cahow, Mary Harris, a Andrew Elton registered presentation evidence, however, nurse. After the the trial court a verdict in Elliot directed favor of and Cahow. majority notes; majority opinion; As the see footnote 10 of the the trial Mottolese,J., court, determined was entitled to a minimum of eight peremptory challenges represented interests, because she distinct two namely, husband, her own interest and estate of her deceased unity purposes (a). and that interests § those lacked a interest for of 51-243 but, and the defendants between challenges that the challenges number of so rather, equalized as five challenges the same number of plaintiff had explained collectively. The trial court defendants did peremptory chal supernumerary to award its decision necessary gross “a plaintiff as avoid lenges to the . .”5 exercised justice . . The miscarriage collec whereas the defendants challenges fifteen of her a of seventeen. tively total exercised

I pro- irrespective of majority that, concludes supernu- award of these twelve priety of the court’s merary plaintiff, to the subject review, and (2) is to harmless error award (1) . . . because “to was indeed harmless [demonstrate] must all party . . the exhaust complaining harm . request additional her own and I I with these conclusions. instead disagree challenges.” super- disproportionate a award of advocate subjecting numerary peremptory reversal, to automatic but only simple predictable a rule is not also subject prior is consistent with our decisions on this majority jurisdictions supported an emerging years. considered this issue in recent have prejudice “Harmless error is error which does not party. of a basis rights the substantial It affords no be disregarded.” a reversal of and must judgment Hagedorn v. Regional Center, Stormont-Vail Medical 701, Roger Traynor, 238 Kan. 715 P.2d J. (1986). justice Supreme

the former chief Court of Califor nia, however, posited carry has that certain “errors that process high prejudice judicial risk of itself” court, disagreed public policy Although the trial indicated that it with the statute, because, my underlying the relevant I do not address that issue view, only party analysis appropriate harmless error is not when one peremptory challenges. awarded extra

are neither amenable to, appropriate for, nor harmless error but analysis, instead are so judi- subversive of the process cial necessary. as make reversal R. Traynor, The 64; cf. State v. p. Riddle of Harmless Error (1970) Anderson, Conn. 425, 445, 255 A.2d 773 287 (2001) (when case involves error affecting framework within which trial proceeds, simply rather than error in trial process trial itself, resulting necessarily is rendered fun- damentally unfair, and structural error pre- doctrine cludes error harmless review).

The right challenge venirepersons to peremptorily is recognized as “one of the important most of the rights secured to the accused.” Pointer v. United States, 151 U.S. 396, 408, 410, 14 S. Ct. L. 38 Ed. 208 (1894). More- over, the right challenge venirepersons peremptorily by is guaranteed Connecticut’s constitution; Conn. Const., IV amend. (guaranteeing “right challenge jurors peremptorily, the number of such challenges to be established a fact law”); that “reflects the abiding citizenry belief impartial of our that an fairly chosen jury is justice the cornerstone of our . . . system.” Hancich, State v. 200 Conn. 615, 625, 513 A.2d 638 of (1986). is an error Abridgment right type of the Traynor. described former Chief R. Justice Traynor, supra, p. 66.

First, an abridgment of the right challenge venire- persons peremptorily is not amenable to harmful error analysis practically impossible it is because to demon- strate that See, it resulted actual harm.6 id. e.g., (“an 6 majority opinion that, The that to 367, 373, (1993) (noting Mont. 846 P.2d 1038 harm require party demonstrate actual objecting to of chal- resulting from additional grant party “places impossible to an almost lenges opposing would that suspect burden on the I objecting party”). case, present recognizing the defendants in the supernumerary peremptory award of court’s Id., 227, peremptory challenges 229. then to Defense counsel exercised that, venirepersons. Id. We even if exclude those concluded the trial court any improperly challenges cause, had denied the error would have been accept any particu- harmless inasmuch as defense counsel was not forced to venireperson id., deemed unfit. 230. lar that he See If, hand, venireperson on the other had been seated because the appeal remaining challenges, had no on defense more this court would have a on a had record which to base determination of whether “for cause” challenge improperly venireperson was denied and of an unfit had whether attorney’s objecting That been seated. record would have consisted of the making challenge the “for articulated reasons for cause” trial court’s comparable denying challenge. No is articulated reasons for record created, however, complaining party opts peremp- when a not to exercise a tory challenge extraordinary because of a concern about the award of Additionally, opponents. his or her because how, peremptory challenges, nature of it to see if an is difficult even seated, objectionable venireperson complaining party was could demon- venireperson majority’s seating harmful. strate that of that only why highlights on Ross an award additional reliance one side should be deemed structural error. potential to the had the to result in long adopted approach voir dire, a conservative

exercising peremptory challenges. Consequently, their jury beginning may at the selection, the defendants accepted jurors they have otherwise would have rejected given if the had been the correct num- statutorily challenges.7 ber of authorized At the same may time, the defendants have been satisfied with the venirepersons toward the end of selection and thus peremptory challenges. failed to exhaust all of their abridgment right challenge Moreover, an of the venirepersons peremptorily inappropriate is for harm- analysis abridgment less error because such results in litigant harm not to an individual but, rather, to the integrity process selection itself. See R. Traynor, supra, p. (“[w]hen right challenge [to venirepersons peremptorily] appeal, is vitiated anew on alley injury gravest in the side of harmless error, the judicial process”). statutory Connecticut’s providing litigant proportional scheme of quantity each with a peremptory challenges, comparable like statutory jurisdictions, schemes in other reflects a bal- litigants rely. ance and fairness on which Moore v. Jen- Any (1991). kins, 304 544, 547, S.C. 405 S.E.2d 833 disruption including of this balance and an fairness-— supernumerary challenges party— award of to one jury process, rendering taints the entire selection 7 majority premise speculative. The characterizes this as See footnote 19 majority opinion. premise speculative but, I believe that this is not instead, acknowledges practical process, namely, realities of the voir dire good practice that it is for counsel to factor into his decision whether accept reject prospective juror or to a on the basis of the number of challenges opponent remaining. that his has This would not be the first time practicalities that we have determining considered such in whether a court’s party’s peremptory challenges proper. actions vis-á-vis a exercise of See, e.g., Hancich, supra, State v. (“[t]he 200 Conn. 626 defendant in this case any case, ... rejected as in other venire[persons] selected or individual peremptory challenges reliance on the number of to which the trial court [emphasis had led her added]). to believe she was entitled” Presbyterian Thompson v. Cf. jury suspect. resulting 1982). P.2d Inc., (Okla. Hospital, by decree to these concerns majority responds The party “per a occur when possibly can that harm ing jurors is additional to exclude ceives a need [and] major . . . .” The to do so equal opportunity denied an unwarrantedly nar reflects an ity’s response, however, That challenges. right row view of the only quantity a it, guarantees Ias understand right, by but also established law peremptory challenges peremptory challenges allocation proportional a by law. This as established to other litigants, relation necessary component right attribute is a latter peremp number of [party] greater “the with the because created a tactical tory clearly advantage has challenges jurors unfavorable ability potentially to eliminate its Management, Resource King Special cause.” v. without DaFoe, v. 371; see also Blades Inc., supra, 256 Mont. number of greater 704 P.2d 322 side with supra, (“the clearly a tactical advantage has peremptory challenges jury presum a power will have the to select because it a num challenging greater in its favor ably balanced Hospital, Thompson Presbyterian jurors”); ber of the number of supra, greater 652 P.2d 267 Inc., (“[t]he party’s organiz chances for greater challenges, Allen, Randle v. verdict”); a favorable ing additional side that has 1329, 1334 1993) (“[a] P.2d (Utah shape opportunity has the peremptory challenges specified to a right its advantage”). indeed hollow if quantity among litigants are not distributed by law. proportion to some established according peremp- award of subject disproportionate I would This rule tory recog- to automatic reversal. allocation of disproportionate that a trial court’s nizes to its denial of a peremptory is tantamount quantity peremptory to exercise litigant’s right 668 Moreover, law. this rule obvi

challenges established impossible party demand that a practically ates the dispropor actual harm from a resulting demonstrate Finally, peremptory challenges. tionate allocation of simple, predictable supported by this rule is and is an majority jurisdictions that have considered emerging DaFoe, Blades years.8 v. See, e.g., this issue in recent Mutual 321-22; Kentucky Farm Bureau supra, 704 P.2d Wilt, Alholm v. Ins. Co. Cook, 877; v. S.W.2d supra, 590 King Special v. 488, 394 N.W.2d 493-94 (Minn. 1986); Management, Inc., supra, Resource 371-74; 256 Mont. Gestring Mary Lanning Hospital Assn., Memorial v. Thompson 905, 916-17, 259 Neb. 613 N.W.2d 440 (2000); Hospital, Inc., supra, Presbyterian 267-68; v. 652 P.2d Jenkins, supra, Allen, Randle v. Moore 547; v. 304 S.C. Jones, see also Moran v. 1334; P.2d 75 Ariz. supra, 862 P.2d 175, 180-81, (1953). 253 891 analysis Moreover, applied we have a structural error in situations in which prior our decisions In Krause party. have been denied to one Homes, Inc., Almor 333, v. 160 A.2d 334, injured an child and his mother an (1960), brought against allegedly responsible action two defendants injuries. The child sued on a the- negligence child’s ory expenses whereas the mother sued to recover injuries. incurred in her son’s Id. Instead of treating the child and his mother each to exercise permitting authority weight At least one has observed numerical “[t]he authority supports judgment in civil cases the rule that a will not be reversed allowing peremptory challenges for error in one or more in excess of that party provided statute, complaining has unless shows he injury exhausted his and has suffered material from Annot., Allowing . . .” the action of the court. Effect of Excessive Number Peremptory 957, observation, Challenges, (1964). 95 A.L.R.2d This however, appears Mack, to be outdated. See Praus 626 N.W.2d J., (N.D. 2001) (Maring, dissenting) (“the n.3 modem trend is reflected [not annotation, cases, persuasive in the in recent which have more but] rationales”).

669 court however, the trial challenges, peremptory four challenges; peremptory of four to a total restricted them to exercise defendants permitting 334-35; while id., eight. a total of each, peremptory four the trial court court determined appeal, On chal- plaintiffs’ peremptory had limited the improperly the trial however, examine not, We did Id., 336. lenges. harmfulness. Id. error for court’s v. Giac- on Kalams places majority great weight and its chetto, A.2d 1100 (2004), Conn. 842 268 Hancich, supra, Conn. 615. State v. predecessor, imprecise an anal- decisions, however, present Those in both Kalams because, present case ogy Hancich, supernumerary awarded the trial court sides. equal quantity to both peremptory challenges party each Hancich, eight trial court awarded In the four to which rather than peremptory challenges, When the trial court party Id., was entitled. 624. each parties’ both number mistake, discovered its it reduced notwithstanding the four, peremptory challenges already four, had exercised fact that defense counsel chal- thereby peremptory him no leaving remaining with Likewise, Kalams, awarded the trial court Id. lenges.9 rather than the party peremptory challenges, nine each party entitled, on the basis of four to which each the statute.10 Kalams misinterpretation the court’s Giacchetto, supra, observed case, v. 257-58. In each did award, although improper, the trial court’s Hancich, supra, State v. 261-62; party. Id., harm either allow to retract last The trial court “offered to [defense counsel] [the] therefore, accept peremptory challenge, and as a member of the recently [venireperson]. to allow excused The trial court also offered peremptory challenge. an additional [Defense counsel] [defense counsel] Hancich, supra, v. 200 Conn. 624. refused the State offer[s] party was The trial court in Kalams determined that each entitled to challenge right, granted eight a ninth as of and also party jurors alternate were to be selected. Kalams to each because three Giachetto, supra, 268 Conn. 257-58. and Kalams stand for the 626. I believe that Hancich equal quan- an proposition granting that a trial court’s both tity supernumerary wholly sides proposition is not itself harmful.11 This present the facts of the case. inapposite to Krause remains the only decision of this court in disrupted only one side’s right which a trial court peremptorily. This court’s fail- challenge venirepersons in Krause is instructive.12 ure consider harmfulness 11 proposition majority that “a construes Kalams to stand for the by required not law must be trial court’s award of nothing suggests . that this conclusion reviewed for harm . . and therein litigation.” (Citation omitted.) to awards to sides of the is limited both Certainly, glib interpretation nothing in Kalams This is a of Kalams. peremp- applies supernumerary suggests that conclusion to all awards of its supernumerary peremptory tory challenges, any chal- or even to awards of majority’s lenges notion that not consistent with the facts of Kalams. The only supernu- applies to the situation in which one side is awarded Kalams purported merary peremptory challenges gives a discovers and effect to that, fact, holding in does not exist. of Kalams subsequent numerous, concluding It also is consistent with decisions may presumed if that harm would that harm be the circumstances are such prove. See, Bronson, 42, 55, impossible e.g., State v. 258 Conn. be impossible (2001) (“It for the defendant to establish . . . A.2d 95 would be that, court-appointed expert’s M, examination of had the motion [for granted, expert . . . would have testified that M minor been victim] circumstance, presence. Thus, in have testified in the defendant’s could motion, pre denying in we must where the court abused its discretion require requisite prejudice sume the to the defendant to reversal of Burns, 158, 165, (1987) (“In judgment.”); v. 520 A.2d 190 Lamb case, questions of the . . . because the defendant’s on circumstances answered, impossible it is for the defendant to show that voir dire were not justified challenge have he could have discovered information would peremptory challenge. Thus, induced him to exercise a for cause or placed upon the trial court’s restrictions the defen cannot conclude that harmfully prejudicial.”); v. dant’s voir dire examination were not State arbitrary Anthony, 172, 177, 374 A.2d (1976) (“[B]ecause of the 172Conn. examination, [by it is time limitations set the trial for the voir dire court] impossible the defendant to show that he could have discovered facts [venirepersons] prejudices part would have on the of individual which arbitrary justified challenges for cause. We cannot conclude that the time questions cutting while still had limitations off voir dire examination counsel harmfully prejudicial.”). were unasked not with present appeal I would accordance decide of a reason- Krause and hold that a trial court’s award supernumerary proportionate able and number of harmful but to both sides is not peremptoiy challenges one side’s peremptory abridgment right that an constitutes an abuse of discretion that is subject to harmless error review. To hold otherwise authority the constitutional of the disregards delegation of the to determine statute the ratio legislature the trivial- “countenance[s] constitution first, ization of article of our § [as which . . . amended article four amendments] appropriate from failure to take action followfs] [a] Hancich, supra, this case.”13 State 200 Conn. 626.

II My majority disagreement other with the involves its failure to determine whether the award of additional improper. See footnote 15 In majority opinion. of the to make this determi- failing majority nation, the does not address whether the trial court’s action constituted an exercise of its discretion and whether that discretion had been abused alter- or, natively, whether it a disregard public constituted of the policy expressed in the statute. If the award constituted Hancich would statute, of the disregard suggest the trial court trivialized article first, 19, of the Con- § necticut constitution, as amended article four of the amendments, and that we should not countenance such v. Hancich, supra, State an act. 200 Conn. 626. opinion, majority suggests that, statement, In footnote 15 of its raising doing disagree. I am a constitutional issue when be I so could avoided. Merely recognizing process grounded that the selection in the state requires constitution and that such elevated status that we not trivialize protections raising enshrined therein does not mean that I am a constitu Rather, acknowledgment sanctity process tional issue. it is an of the of a delegates legislature authority to the to establish the number of peremptory challenges.

III how the facts majority explain does not Finally, test, namely, threshold pass its own present case chal- their defendants must exhaust that the the award they permitted challenge are before lenges present In the plaintiff. additional had four five defendants each of the case, of those collectively, they exercised seventeen and, two, pos- at least Consequently, twenty challenges. their exhausted sibly four, of the five defendants up to test thus the threshold meeting peremptory challenges, correctly majority majority. As the by the established unity interest among found no the trial court notes, thus plaintiff, leading or the any of the defendants of the defendants from two to four conclusion that peremptory challenges. their did in fact exhaust respectfully trial. I therefore I order a new would dissent.14 ET AL. v. ZONING BOARD B. VITALE

MICHELLE THE TOWN OF MONTVILLE APPEALS OF OF

(SC 17372) Zarella, Norcott, Katz, Palmer, Js. Vertefeuille plaintiff’s trial, a new I do not address Because I would order improperly Appellate had concluded that the Court claim that the damages. presented evidence of economic insufficient notes footnote 20 of its once its threshold “complaining party” test —that challenges its exhaust all of request satisfied, party additional been must show —has objectionable juror actually that “an served on that decided the case, and, case, that under the facts and circumstances the service juror of that was harmful.” respectfully majority, showing accomplished? I would ask the how is this majority provides Ross, guidance other than to cite to State v. no 269 Ross, 213, (2004). however, inapposite. case, Conn. 849 A.2d 648 In that the trial court denied certain of defense counsel’s “for cause.” the effect way evaluating no court has appellate Kentucky In Farm Bureau on judgment”). the error Cook, (Ky. 1999), v. 590 S.W.2d Ins. Co. Mutual apply declined to harmless Kentucky Court Supreme had case in which the court analysis in a error only one awarded additional [harm], show actual the com- that, side, observing “[t]o to discover required would be plaining litigant have been might reconstruct what unknowable and to running after properly constituted was, and never in accordance with performed gauntlet challenge Id., 877; accord prescribed game.” rule[s] see (Colo. 1985); v. 704 P.2d DaFoe, Blades Management, Inc., Resource King Special also

Case Details

Case Name: Carrano v. Yale-New Haven Hospital

Court Name: Supreme Court of Connecticut

Date Published: Aug 22, 2006

Citation: 904 A.2d 149

Docket Number: SC 17286

Court Abbreviation: Conn.