TEAGHAN MAHONEY ET AL. v. LORI

STORCH SMITH ET AL.

(AC 38220)

Sheldon, Keller and Prescott, Js.

Syllabus

The plaintiffs sought to recover damages, both individually and on behalf

of their minor child for medical malpractice from the defendants, S,

a pediatrician who performed a circumcision on the child, and the

professional corporation in which S practiced. The plaintiffs alleged

that S was negligent in performing the procedure, during which she

used a device called a Mogen clamp to perform the circumcision. The

procedure resulted in the amputation of a portion of the glans of C’s

penis. During the trial, the defendants’ counsel offered a video that

depicted a circumcision using the Mogen clamp in order to assist the

jury in understanding how a circumcision is performed using that device.

After excusing the jury,the court watched the video and heard arguments

as to its admissibility. The plaintiffs’ attorney argued that the video

should not be shown to the jury because it was not previously produced

for the plaintiffs, because it would confuse the jury, and because the

defendants’ expert, a pediatrician who testified that the video accurately

depicted a circumcision procedure and that the video would assist the

jury, did not rely on the video in forming his opinion. The court ruled

that the video was admissible as demonstrative evidence. When trial

resumed, the defendants’ expert testified that the video did not depict

the actual circumcision that S performed on C. The court then permitted

the video to be shown for demonstrative purposes only. The video,

which depicted the entirety of a Mogen circumcision procedure and

had no sound, was shown to the jury, and the defendants’ expert narrated

the events depicted in the video. After the trial ended, the jury returned

a verdict for the defendants, and the plaintiffs subsequently filed a

motion to set aside the verdict and for a new trial on the basis of the

court’s decision to permit the showing of the video. Thereafter, the trial

court denied the plaintiffs’ motion to set aside the verdict and for a new

trial, and the plaintiffs appealed to this court. Held:

1. This court declined to review the merits of the plaintiffs’ claims that the

defendants’ use of the video violated the relevantrules of practice (§§ 13-

4, 13-15) regarding disclosure of experts and the continuing duty to

disclose, because the video and related testimony from the defendants’

expert were not disclosed, and that the video and the related expert

testimony were irrelevant and unduly cumulative; the plaintiffs did not

distinctly raise those claims in connection with their motion to set aside

the verdict and for a new trial.

2. There was no merit to the plaintiffs’ claim that the video, and testimony

of the defendants’ expert concerning it, were prejudicial and confusing to

the jury because the portions of the video showing the patient receiving

anesthesia and the physician applying clamps used to control bleeding

were aspects of the procedure that were not at issue in the trial; it was

not apparent to this court how those parts of the video would confuse

the jury, and the court concluded that those parts of the video likely

clarified the earlier direct testimony of the plaintiffs’ expert witness

regarding the use of anesthesia and the clamps; furthermore, the plaintiffs’ claim that the video was prejudicial because they were precluded

from responding to it was unavailing, because, prior to trial, the defendants provided the plaintiffs with an exhibit list that identified the video,

and the plaintiffs did not request to watch the video prior to its introduction at trial, nor did they choose to file a motion in limine seeking to

preclude its admission into evidence, move for a continuance after it

was marked for identification, or recall their expert witness to serve as

a rebuttal witness concerning the video.

3. The trial court properly rejected the plaintiffs’ claim that it improperly

denied their motion to set aside the verdict and for a new trial because

the court did not instruct the jury that the video was for demonstrative

purposes only: the purpose of the video, which was to show to the jury
how a circumcision is performed utilizing a Mogen clamp, would have

been readily apparent to the jury; moreover, the plaintiffs having failed

to comply with the prerequisites to appellate review of their allegation

of instructional impropriety because they did not raise this claim at the

time the trial court instructed the jury, this court could not say that the

trial court abused its discretion in denying the plaintiffs’ motion.

4. This court declined to review the plaintiffs’ claim, raised for the first

time on appeal, that the trial court abused its discretion by allegedly

discouraging the jury from rehearing the expert medical testimony during deliberation: this claim was unpreserved because the plaintiffs, at

the time of trial, did not object to the manner in which the trial court

responded to the jury’s playback request.

Argued February 3—officially released July 18, 2017

(Appeal from Superior Court, judicial district of

Fairfield, Hon. William B. Rush, judge trial referee)

Procedural History

Action to recover damages for the named defendant’s

alleged medical negligence, brought to the Superior

Court in the judicial district of Fairfield and tried to the

jury before Hon. William B. Rush, judge trial referee;

verdict for the defendants; thereafter, the court denied

the plaintiffs’ motion to set aside the verdict and rendered judgment in accordance with the verdict, from

which the plaintiffs appealed to this court; subsequently, the court, Hon. William B. Rush, judge trial

referee, granted the plaintiffs’ motion for rectification. Affirmed.

Alan Scott Pickel, with whom, on the brief, was

Anthony Cenatiempo, for the appellants (plaintiffs).

Michael R. McPherson, for the appellees

(defendants).
Opinion

KELLER, J. This appeal arises from a medical malpractice action brought by the plaintiffs, Thomas and

Roxanne Mahoney, both individually and on behalf of

their minor child, Teaghan Mahoney (child), against the

defendants, Lori Storch Smith andBay Street Pediatrics,

the professional corporation in which Dr. Storch Smith

practiced. The plaintiffs alleged that Dr. Storch Smith

was negligent in performing a circumcision on the child,

who was a newborn at the time. The procedure resulted

in the amputation of a portion of the glans—or head—

of the child’s penis. Following a trial, the jury returned

a verdict for the defendants. On appeal, the plaintiffs

claim that the trial court abused its discretion by (1)

declining to set aside the verdict and order a new trial,

and (2) discouraging the jury from rehearing expert

medical testimony during deliberations. We disagree

with the plaintiffs and, accordingly, affirm the judgment

of the court. Additional facts will be provided within

the context of each of the plaintiffs’ claims.

I

The plaintiffs’ first claim is that the court abused its

discretion by declining to set aside the verdict and order

a new trial. We disagree.

The following facts, as could reasonably have been

found by the jury, are pertinent to this claim. Dr. Storch

Smith, a pediatrician, performed the circumcision at

Norwalk Hospital on December 29, 2010. She used a

device known as a Mogen clamp to perform the procedure. The Mogen clamp is one of several medical

devices commonly used to circumcise newborns. It is

designed to clamp, and therefore isolate, the patient’s

foreskin above the glans, after which the foreskin is

excised using a scalpel. In the present case, Dr. Storch

Smith applied the Mogen clamp and excised what she

thought was solely the child’s foreskin. After observing

that the procedure produced an unusually large amount

of blood, however, she opened the excised foreskin and

observed, in her words, a ‘‘small piece’’ of glans. The

child, along with the amputated portion of the glans,

was thereafter transported to Yale-New Haven Hospital

for treatment by a pediatric urologist. That same day,

the pediatric urologist successfully reattached the

amputated portion of the glans.

Trial commenced on April 15, 2015, and consisted

largely of expert medical testimony concerning the standard of care for performing circumcisions using the

Mogen clamp. During direct examination of the defendants’ expert, Scott Siege, a pediatrician, the following

exchange occurred:

‘‘[The Defendants’ Counsel]: . . . Did you also, doctor, at my request, review a video that depicts a circumcision procedure being performed with a Mogen clamp?
‘‘[Siege]: Yes. . . .

‘‘[The Defendants’ Counsel]: Doctor, what did the

video, that you reviewed at my request, depict?

‘‘[Siege]: It depicted a circumcision using the Mogen

clamp . . . that held to the standard of care for a

Mogen circumcision.

‘‘[The Defendants’ Counsel]: . . . In your experience, having read the depositions of all the witnesses

in the case, is it difficult to explain the details of the

procedure without any visual frame of reference? . . .

‘‘[Siege]: Yes, it is very difficult.

‘‘[The Defendants’ Counsel]: All right. And would the

video, in your opinion, assist the jury in understanding

how a circumcision is performed using a Mogen clamp?

‘‘[Siege]: Yes.

‘‘[The Defendants’ Counsel]: Your Honor, I offer

the video.’’

After excusing the jury, the court watched the video

and heard arguments as to its admissibility. The plaintiffs’ attorney argued that the video should not be shown

to the jury because it was not previously produced for

the plaintiffs, it would confuse the jury, and Dr. Siege

did not rely on it in forming his expert opinion. The

court ruled that the video was admissible as demonstrative evidence.1 When the jury returned and the defendants’ attorney resumed direct examination, Dr. Siege

confirmed that the video did not depict the actual circumcision that Dr. Storch Smith performed on the child.

The defendants then offered the video ‘‘for demonstrative purposes only,’’ which the court permitted.

The video, which the defendants’ attorney indicated

was found on the Internet, was approximately two and

one-half minutes in duration. It had no sound. Its title,

‘‘The Pollock Technique,’’ was displayed in a corner of

the video screen. The video depicted an unidentified

individual performing the entirety of a Mogen circumcision on a newborn, including the application of local

anesthesia to the patient’s penis, as well as the use of

hemostats (clamps typically used to control bleeding)

to assist in applying the Mogen clamp to the patient’s

foreskin. While the video played for the jury, Dr. Siege

narrated the events depicted therein.

Because the video was not admitted as a full exhibit,

the jury did not have access to it during its deliberations.

After the jury returned its verdict, the plaintiffs filed a

motion to set aside the verdict and for a new trial

(postverdict motion) on the basis of the court’s decision

to permit the showing of the video. See Practice Book

§ 16-35. By way of a memorandum of decision dated

July 10, 2015, the court denied that motion, precipitating

this claim on appeal.
We review the court’s denial of the postverdict

motion for abuse of discretion. See, e.g., Hall v. Bergman, 296 Conn. 169, 179, 994 A.2d 666 (2010); Hughes

v. Lamay, 89 Conn. App. 378, 383, 873 A.2d 1055, cert.

denied, 275 Conn. 922, 883 A.2d 1244 (2005). ‘‘In

determining whether there has been an abuse of discretion, every reasonable presumption should be given in

favor of the correctness of the court’s ruling. . . .

Reversal is required only [when] an abuse of discretion

is manifest or [when] injustice appears to have been

done.’’(Internal quotation marks omitted.) Hall v. Bergman, supra, 179.

‘‘[T]he role of the trial court on a motion to set aside

the jury’s verdict is . . . to decide whether, viewing

the evidence in the light most favorable to the prevailing

party, the jury could reasonably have reached the verdict that it did.’’ (Internal quotation marks omitted.) Id.

Additionally, ‘‘[a trial court may] set aside a verdict

where it finds it has made, in its instructions, rulings

on evidence, or otherwise in the course of the trial, a

palpable error which was harmful to the proper disposition of the case and probably brought about a different

result in the verdict.’’ (Internal quotation marks omitted.) Bovat v. Waterbury, 258 Conn. 574, 583, 783 A.2d

1001 (2001).

In claiming that the court abused its discretion by

denying the postverdict motion, the plaintiffs make

three distinct arguments. We address each in turn.

A

The plaintiffs first argue that the defendants’ use of

the video violated expert disclosure rules under Practice Book § 13-4, and the continuing duty to disclose

under Practice Book § 13-5, because the video and

related testimony from Dr. Siege were not disclosed

pursuant to those provisions. The plaintiffs, however,

did not distinctly raise this argument in connection with

their postverdict motion. Accordingly, we decline to

review the merits of this argument. See AvalonBay

Communities, Inc. v. Zoning Commission, 130 Conn.

App. 36, 62 n.24, 21 A.3d 926, cert. denied, 303 Conn.

909, 32 A.3d 962 (2011).

B

The plaintiffs next argue that the video, and Dr.

Siege’s testimony concerning it, were irrelevant, as well

as unduly cumulative, prejudicial, and confusing to the

jury. See Conn. Code Evid. §§ 4-2 and 4-3.

The plaintiffs’ attorney did not argue in connection

with the postverdict motion that the video was irrelevant or cumulative. We therefore decline to reach the

merits of these aspects of the present claim. See State

v. McCall, 187 Conn. 73, 84, 444 A.2d 896 (1982).

Although we conclude that the plaintiffs preserved

their arguments that the video and Dr. Siege’s attendant
testimony were unduly confusing and prejudicial by

asserting these grounds in their postverdict motion,

those arguments are without merit. The plaintiffs contend that the portions of the video showing the patient

receiving anesthesia and the physician applying hemostats to the patient’s foreskin were confusing to the

jury because those aspects of the procedure were not

at issue in the trial. It is not apparent to us how those

parts of the video would confuse the jury. If anything,

they likely clarified the earlier direct testimony of the

plaintiffs’ expert witness, David Weiss, a pediatrician,

who stated during an in-court demonstration of the

Mogen clamp: ‘‘[B]efore you do the circumcision you’ll

anesthetize the baby and you’ll take some hemostat[s]

. . . . And you can take a piece of the [foreskin] . . .

you will take the hemostats and pull [the foreskin]

through [the Mogen clamp] . . . .’’

The plaintiffs further argue thatthe video was prejudicial because ‘‘they were in essence precluded from

responding to it with their own video or expert.’’ This

argumentis unavailing. As with all ofthe other evidence,

the defendants marked the video foridentification prior

to trial. An exhibit list identifying the video as a ‘‘[v]ideo

demonstrating circumcision procedure’’ was provided

to the plaintiffs priorto trial as well. The plaintiffs could

have asked to watch the video prior to its introduction

at trial, but did not do so; nor did they file a motion in

limine seeking to preclude its admission into evidence,

move for a continuance after it was marked for identification, or recall Dr. Weiss to serve as a rebuttal witness

concerning the video.

C

Finally, the plaintiffs contend that the court improperly denied their postverdict motion in light of the fact

that it did not instruct the jury that the video was for

demonstrative purposes only. The plaintiffs made only

brief reference to this issue in their memorandum in

support of the postverdict motion, asserting that

‘‘[p]rior to the offering of the video, there was no

instruction given to the jury relative [to its] use and

consideration of the video . . . .’’ Although the court

did not address this ground in its memorandum of decision denying the motion, it determined that the video

‘‘was not an attempt to reenact the activities of [Dr.

Storch Smith] at the time of the circumcision and primarily portrayed to the jury how a circumcision is performed utilizing a Mogen clamp.’’ Because we agree

with the court’s observation and that the purpose of

the video would have been readily apparent to the jury,

we conclude that the court properly rejected the plaintiffs’ argument on this ground. We further observe that

the plaintiffs did not raise this issue when the court

instructed the jury; thus, ‘‘[i]n the face of the [plaintiffs’]

noncompliance with the prerequisites to appellate

review of [their] allegation of instructional impropriety,
we cannot say that the court abused its discretion in

denying the motion to set aside the verdict.’’ Lewis v.

Drew, 132 Conn. App. 306, 314, 31 A.3d 448 (2011).

For all of the foregoing reasons, we reject the plaintiffs’ claim.

II

Second, the plaintiffs claim that the court abused

its discretion by allegedly discouraging the jury from

rehearing the expert medical testimony during deliberation. Because this claim is unpreserved, we decline to

reach its merits.

The following facts are relevant to this claim. As

previously mentioned in part I of this opinion, at trial,

the plaintiffs and the defendants presented the expert

testimony, respectively, of Dr. Weiss and Dr. Siege. During its deliberations, the jury sent the court a note that

read in part as follows: ‘‘Can we please view the testimony of [Dr. Weiss] . . . . [and] can we please view

the testimony of [Dr. Siege]?’’ The court responded to

the jury in part: ‘‘We only have a transcript; it’s not a

videotape. So we’re talking about [a] transcript of it. As

to those two [physicians], I’ve conferred with counsel.

They believe that each of the [physician’s testimony]

will last about a half a day; it will take about an entire

day to read the entire testimony. If that’s what you

want, that’s what we’ll give you. If there’s something

more specific you’re interested in, we’ll be glad to consider whether we can do that in a shorter period of

time, but we don’t know. I’m not forcing you to do

anything. If that’s what you want, you’ll get the testimony . . . . So what I’m going to ask you to do is to

go back in, discuss what you want to do about Dr.

Weiss’ testimony and Dr. Siege’s testimony.’’

The jury returned to its deliberations, after which it

sent the court another note. The new note read: ‘‘If we

ask for testimony, is it read in court or is it transcribed

and made available to the jury in deliberations?’’ The

courtresponded: ‘‘[I]t will be played back via the [court]

monitor. So I’ll send you back in. We’re prepared to do

whatever you want.’’ Ultimately, the jury did notrequest

that the testimony be replayed.

The plaintiffs argue on appeal that ‘‘rather than comply with Practice Book § 16-27, which mandates that

the jury be provided with the [expert] testimony, the

court . . . took steps to discourage [it] from getting

[its] request met.’’ The plaintiffs, however, did not

object at the time to the manner in which the court

responded to the jury’s playback request at trial. ‘‘For

us [t]o review [a] claim, which has been articulated for

the first time on appeal and not before the trial court,

would result in a trial by ambuscade of the trial judge.’’

(Internal quotation marks omitted.) Ravetto v. Triton

Thalassic Technologies, Inc., 285 Conn. 716, 730, 941

A.2d 309 (2008). We therefore decline to review the
merits of this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1

‘‘[D]emonstrative evidence is not part of the incident and is offered to

illustrate other evidence, either real or testimonial. Demonstrative evidence

is a pictorial or representational communication incorporated into a witness’s testimony.’’ C. Tait & E. Prescott, Connecticut Evidence (4th Ed.

2008) § 11.1, p. 656.