*********************************************** 

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*********************************************** 
RONNA-MARIE GUILIANO v. JEFFERSON

RADIOLOGY, P.C., ET AL.

(AC 42835)

Bright, C. J., and Alvord and Devlin, Js.

Syllabus

The plaintiff sought to recover damages for the alleged medical malpractice

of the defendants, a radiology practice and a physician, claiming that

they were negligent in failing to timely diagnose a malignancy in her

left breast, resulting in a delay in the diagnosis and treatment of her

cancer. At trial, the plaintiff sought to offer the testimony of G, a radiologist, regarding the proper standard of care, and the testimony of L, a

radiology oncologist who treated the plaintiff. The defendants’ counsel

objected to the form of certain questions posed to G by the plaintiff’s

counsel, many of which the trial court sustained, and the trial court

imposed a time limitation on the length of the plaintiff’s direct examination of L. The jury returned a verdict in favor of the defendants and the

court rendered judgment for the defendants, from which the plaintiff

appealed to this court. Held:

1. The plaintiff could not prevail on her claim that the trial court abused

its discretion by sustaining the objections of the defendants’ counsel to

the form of certain questions that were posed by her counsel to G

because the court’s evidentiary rulings were harmless; although the

court did sustain objections to certain questions asked by the plaintiff’s

counsel concerning the standard of care and whether the defendants

had breached that standard, the trial transcripts reflected that G testified

to those matters later in the proceedings.

2. This court declined to review the plaintiff’s claim that the trial court

abused its discretion by placing a time limit on the presentation of L’s

testimony, the plaintiff having failed to preserve her claim; the plaintiff

raised no objection to the court over the time limit imposed and did

not identify any evidence that she was unable to elicit from L due to

the time limit.

3. This court declined to review the plaintiff’s claim that the time limit

constituted a denial of her right of access to the courts and violated

article first, § 10, of the Connecticut constitution, the plaintiff having

failed to adequately brief her unpreserved claim; the plaintiff’s brief

contained no analysis as to why her unpreserved claim should be

reviewed pursuant to State v. Golding (213 Conn. 233) or any substantive

analysis as to why the time limit constituted a constitutional violation.

Argued April 14—officially released August 10, 2021

Procedural History

Action to recover damages for alleged medical malpractice, and for other relief, brought to the Superior

Court in the judicial district of Hartford, where the

plaintiff withdrew the claims against the defendant Julie

S. Gershon et al.; thereafter, the matter was tried to the

jury before Cobb, J.; verdict and judgment for the named

defendant et al., from which the plaintiff appealed to

this court. Affirmed.

John R. Williams, for the appellant (plaintiff).

Kristin Connors, with whom was Rebecca N. Brindley, for the appellees (named defendant et al.).
Opinion

BRIGHT, C. J. The plaintiff, Ronna-Marie Guiliano,

appeals from the judgment of the trial court, rendered

after a jury trial, in favor of the defendants William

S. Poole, a physician, and Jefferson Radiology, P.C.

(Jefferson Radiology).1 On appeal, the plaintiff claims

that the trial court abused its discretion by sustaining

the objections of the defendants’ counsel to the form

of certain questions her counsel had posed to one of

her expert witnesses. Additionally, the plaintiff claims

that the trial court abused its discretion and violated her

constitutional right of access to the courts by placing

a time limit on her direct examination of a second expert

witness. We disagree and affirm the judgment of the

trial court.

The following facts and procedural history are relevant to our resolution of the plaintiff’s appeal. The plaintiff commenced the present action on April 21, 2014.

In her operative complaint, the plaintiff alleged that she

had a mammogram conducted by Jefferson Radiology

in August, 2010. In December, 2010, the plaintiff complained to a physician of a lump in her left breast. In

January, 2011, the plaintiff attended an appointment

with her primary care physician, who ordered an ultrasound on her left breast. A few days after the appointment, Jefferson Radiology performed an ultrasound on

the plaintiff’s left breast. The reviewing physician noted

that a ‘‘small, benign appearing intramammary lymph

node is seen,’’ and a routine mammographic follow-up

was recommended for the plaintiff. In August, 2011, the

plaintiff again complained of a lump in her left breast

to a health-care provider. A bilateral mammogram was

conducted and a routine follow-up was recommended.

In September, 2012, the plaintiff again reported to

her primary care physician that she had a lump in her

left breast. Jefferson Radiology performed a bilateral

mammogram and an ultrasound on her right breast.2

Poole reviewed the mammograms and ultrasound.

Poole noted that the ‘‘[n]odular density in the left breast

is benign,’’ the ‘‘palpable abnormality felt by the provider in the right breast at 12 o’clock is not seen on

ultrasound,’’ and ‘‘there is no sonographic evidence of

malignancy.’’ Poole recommended that the plaintiff

return in one year for a screening.

In March, 2013, the plaintiff again complained of a

lump or thickening of her left breast, and Jefferson

Radiology conducted a mammogram and ultrasound on

the plaintiff’s left breast. Jefferson Radiology identified

calcification, a mass, and an abnormal lymph node in

the plaintiff’s left breast. On March 8, 2013, the plaintiff

underwent a biopsy of the lump and the abnormal lymph

node. The tissue from the biopsy demonstrated that

the plaintiff was suffering from infiltrating mammary

carcinoma, and the left axillary lymph node biopsy
showed a metastatic mammary carcinoma. In July,

2013, the plaintiff underwent bilateral mastectomies as

well as removal of multiple lymph nodes.

In her operative complaint, the plaintiff set forth

claims of negligence and vicarious liability. The plaintiff

alleged, inter alia, that the defendants’ negligence in

failing to timely diagnose a malignancy in her left breast

resulted in a delay in the diagnosis and treatment of

her cancer. A jury trial commenced on March 19, 2019.

During the trial, the plaintiff presented the testimony

of two expert witnesses, Linda Griska and Kenneth

Leopold. The testimony of both of these witnesses is

at issue in this appeal. Griska, a diagnostic radiologist

specializing in breast imaging, testified that Poole violated the relevant standard of care for a radiologist in

2012 when he reviewed the results of the plaintiff’s

September, 2012 mammogram and ultrasound. In particular, she testified that Poole failed to take additional

views of the left breast based on the results of the

mammogram. She also testified that Poole should have

conducted an ultrasound on the left breast at that time.

Leopold, the plaintiff’s treating radiology oncologist,

testified to the radiation treatment the plaintiff received

and the effects that the defendants’ delayed diagnosis

of the plaintiff’s breast cancer had on her treatment.

Despite the testimony of Griska and Leopold, on April

4, 2019, the jury returned a verdict in favor of the defendants. The court accepted the jury’s verdict and rendered judgment for the defendants. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the trial court abused

its discretion by sustaining the objections of the defendants’ counsel to the form of certain questions that her

counsel had posed to Griska. The plaintiff argues that

the defendants’ counsel engaged in a deliberate strategy

to confuse the plaintiff’s counsel and that the court

‘‘consciously participated in that strategy by prohibiting

[the] plaintiff’s attorney from consulting with anyone

other than cocounsel in her attempt to comprehend the

reasons why the court was excluding her proposed

evidence and explicitly refusing to explain in what

respects the court considered the questions to be objectionable.’’ The plaintiff argues that it was clear to the

court that the plaintiff’s counsel did not comprehend

the basis of the court’s rulings sustaining the objections

to her questions to Griska. The plaintiff further argues

that she was precluded from presenting ‘‘critical expert

evidence’’ in support of her claim as a consequence of

the court’s rulings and that she can only speculate as

to the court’s grounds for sustaining the repeated objections to the plaintiff’s questions.

The defendants argue that the plaintiff failed to preserve her claims concerning the court’s evidentiary rul-
ings as to Griska, the court’s rulings were proper, and

any errors in the court’s rulings were harmless. We

agree with the defendants that the court’s rulings were

harmless because they did not prevent the plaintiff from

eliciting relevant expert testimony from Griska. Consequently, we do not address whether the plaintiff properly preserved her claim or the propriety of the

court’s rulings.

The following additional facts and procedural history

inform our conclusion. In the section of the plaintiff’s

appellate brief titled ‘‘statement of the case,’’ the plaintiff states that the trial court imposed unexplained limits

on the presentation of her case and references the following colloquy that occurred during the direct examination of Griska on the afternoon of March 19, 2019:

‘‘[The Plaintiff’s Counsel]: Okay. And in a patient that

presents with—with a nodular density, is taking one

spot view the standard of care to explore that?

‘‘[The Defendants’ Counsel]: Objection to the form.

‘‘The Court: Sustained.

‘‘[The Plaintiff’s Counsel]: Do you have an opinion as

to whether Dr. Poole’s imaging breached the standard

of care?

‘‘[The Defendants’ Counsel]: Objection as to the form.

‘‘The Court: Sustained.

‘‘[The Plaintiff’s Counsel]: When a radiologist

observes a nodular density, how should they explore

that?

‘‘[The Defendants’ Counsel]: Objection to the form.

‘‘The Court: Okay. I’m going to allow that question.

Go ahead.

‘‘[The Witness]: Could you repeat the question?

‘‘[The Plaintiff’s Counsel]: Yes. If a—if a radiologist

observes a nodular density, how—what steps should

they take to explore that?

‘‘[The Defendants’ Counsel]: Objection to the form,

Your Honor.

‘‘The Court: All right.

‘‘[The Defendants’ Counsel]: May we approach?

‘‘The Court: Yes.

(Sidebar)

‘‘The Court: All right. The court’s going to sustain the

objection. All right. Counsel.

‘‘[The Plaintiff’s Counsel]: One moment, Your Honor.

‘‘[The Plaintiff’s Counsel]: Dr. Griska, do you have

an opinion based on medical certainty as to whether

Dr. Poole breached the standard of care?
‘‘[The Defendants’ Counsel]: Objection to the form.

If we could be heard, Your Honor.

‘‘The Court: Yeah. You want to be heard outside—

can we hear this outside the presence of the jury?

‘‘[The Defendants’ Counsel]: Yes, please.

‘‘The Court: All right. I’m going to ask the jury to step

into the jury room for a moment.

(Jury exits the courtroom)

‘‘The Court: Okay.

‘‘[The Defendants’ Counsel]: Your Honor, if Dr. Griska

could be excused while we have this argument outside

the presence of her.

‘‘The Court: Okay. Where is she? All right. Oh, there

you are. If you just step in the hallway for me, please.

(Witness exits the courtroom)

‘‘The Court: Okay. So, the objection has to do with

now because you’re getting into the critical part of your

examination, asking questions related to the expert

opinions—the expert’s opinion on the very topic. And

there’s a series of questions that have to be asked in

the proper way, in the proper format for you to get that

in. So, do you need a break to figure that—I mean, I’m

not going to tell you what to do.

‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.

‘‘[The Defendants’ Counsel]: Well, I would object to

a break, Your Honor. This is the essence of the case.

‘‘The Court: Okay.

‘‘[The Defendants’ Counsel]: I—that—I think that—

‘‘The Court: Well.

‘‘[The Defendants’ Counsel]: This is a serious matter

to both of the parties.

‘‘The Court: I know it is. I know it is.

‘‘[The Defendants’ Counsel]: And so, there should not

be a break for [the plaintiff’s counsel] to figure out what

should have been known before the lawsuit was filed.

‘‘The Court: Well, and also before the case was

brought, you know, what questions you’re going to ask

in what precise order at the key time in the examination.

So, are you ready to go forward?

‘‘[The Plaintiff’s Counsel]: Your Honor, if I could have

a ten minute break, I would appreciate it.

‘‘The Court: But the problem is that with I think counsel is going to say is that—and I don’t have any problem

if you consult with [cocounsel], but I do have a problem

if you consult with the witness. So, if I give you a few

minutes to talk to Mr.—to have your conversation with

[cocounsel], that’s fine, but I really think it would be
best if the conversation occurs in the courtroom without the expert present. Would that be okay?

‘‘[The Defendants’ Counsel]: No, I would object to

that, Your Honor, in that she did consult with

[cocounsel] before asking that question. The witness is

on. It’s twenty of three.

‘‘The Court: Hm-hm.

‘‘[The Defendants’ Counsel]: The witness should—

also needs to be cross-examined today.

‘‘The Court: Yes, I know.

‘‘[The Defendants’ Counsel]: So, the witness should

be brought back out. The questioning should be continued. We should not take a break. We should not assist

any party. We should not assist any party in doing what

is an essential part of the case.

‘‘The Court: Yes. I understand that’s your position.

We’ll take a five minute break. [The plaintiff’s counsel

and cocounsel], please stay in the courtroom. Christie,

I mean, Chelsea, is going to stay here to make sure that

the expert stays in the hallway.

‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.

‘‘The Court: Okay? Thank you. All right.

‘‘The Clerk: All rise. Court is now in recess.

(Recess/Resume)

* * *

‘‘[The Plaintiff’s Counsel]: Dr. Griska, when we refer

to the term of standard of care, what does that refer to?

‘‘[The Witness]: Standard of care is that care that a

similar radiologist who is competent would provide in

a similar circumstance as the one we’re having under

discussion.

‘‘[The Plaintiff’s Counsel]: Okay. And when a radiologist observes a nodular density upon mammography

what is the steps that a reasonable radiologist would

take?

‘‘[The Defendants’ Counsel]: Objection to the form.

‘‘The Court: Okay. Is your—are you asking for an

expert opinion right now, or are you asking for generalized factual—

‘‘[The Plaintiff’s Counsel]: I was, at this point, I was

asking generalized factual information.

‘‘The Court: And is—is that because you are trying

to have her explain what the standard of care is?

‘‘[The Plaintiff’s Counsel]: It’s on the road to

explaining that. Yes, Your Honor.

‘‘The Court: Okay. So, I guess my concern here is

that, you know, you had previously been asking questions that were foundational. Is that what you’re doing?
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.

‘‘The Court: I’m going to let you ask a few foundational questions, but you need to be very, very careful

about whether this turns to the specific opinions in this

case. Do you understand?

‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.

‘‘The Court: So, I’ll give you a little bit of leeway.

‘‘[The Plaintiff’s Counsel]: Thank you, Your Honor.

‘‘The Court: And I would ask the witness to please

try very carefully to just answer the question that is

asked and not to expound on your answer because

counsel will ask you the next question.

‘‘[The Witness]: Yes, Your Honor.

‘‘The Court: Do you understand? Okay.

‘‘[The Witness]: Please repeat.

‘‘[The Plaintiff’s Counsel]: Yes.

‘‘Court Monitor: Would you like me to repeat it?

‘‘[The Plaintiff’s Counsel]: Yes, please.

(Question read by court monitor)

‘‘[The Court Monitor]: And when a radiologist

observes a nodular density upon mammography what

is the steps that a reasonable radiologist would take?

‘‘[The Witness]: When we see a nodular density, we

need to—a radiologist needs to determine if there is

something underlying that is potentially malignant

. . . . So, additional views would need to be done to—

to further evaluate that area.

‘‘[The Plaintiff’s Counsel]: Okay. And when you say

additional views, can you explain that?

‘‘[The Defendants’ Counsel]: Objection to the form,

Your Honor.

‘‘The Court: Overruled. Go ahead.

‘‘[The Witness]: The additional views are some of

those that we discussed this morning and they could

be compression spot views or views from a different

direction or angle.

‘‘[The Plaintiff’s Counsel]: And in this case, what did

Dr. Poole do?

‘‘[The Witness]: He did one additional view.

‘‘[The Plaintiff’s Counsel]: Okay. And in your expert

opinion was that one additional view sufficient to diagnose the nodular density?

‘‘[The Defendants’ Counsel]: Objection to the form,

Your Honor.

‘‘The Court: Sustained.
* * *

‘‘[The Plaintiff’s Counsel]: So, from this view can you

determine where in the breast the calcifications are?

‘‘[The Witness]: I can just say that they’re in the top

of the breast.

‘‘[The Plaintiff’s Counsel]: And how would—how

would a radiologist determine a better location in the

breast?

‘‘[The Witness]: They need to—

‘‘[The Defendants’ Counsel]: Objection to the form,

Your Honor.

‘‘[The Plaintiff’s Counsel]: I’ll—I’ll rephrase that.

‘‘The Court: Okay. Thank you.

‘‘[The Plaintiff’s Counsel]: What would a radiologist

have to do to better identify where in the breast the

calcification was?

‘‘[The Defendants’ Counsel]: Objection to the form,

Your Honor.

‘‘The Court: Okay. Sustained.

‘‘[The Plaintiff’s Counsel]: If a patient presented to

you with these calcifications, what steps would you

take to determine where the calcifications were?

‘‘[The Defendants’ Counsel]: Objection to the form.

‘‘The Court: Sustained.’’

The plaintiff’s argument ignores the following additional direct testimony of Griska that took place after

the portions of the examination on which the plaintiff

relies. First, later in the afternoon of March 19, 2019,

the following colloquy took place:

‘‘[The Plaintiff’s Counsel]: What is the standard of

care in—in diagnosing micro calcifications?

‘‘[The Defendant’s Counsel]: Objection to the form.

‘‘The Court: All right. I’ll allow that one.

* * *

‘‘[The Plaintiff’s Counsel]: How is it that you are familiar with the prevailing standard of care?

‘‘[The Witness]: Through my training and experience.

* * *

‘‘[The Plaintiff’s Counsel]: What is a standard of care

for the physician confronting—confronted with—a similar area of concern?

‘‘[The Defendant’s Counsel]: Objection to the form.

‘‘The Court: I’ll allow it.

* * *
‘‘[The Witness]: The standard of care would be first

to identify the finding, and secondly, to locate the finding in two planes so that precise location could be

identified. So, additional views would need to be performed, magnification views, and potentially other

views with the breast and the machine, in a different

location.

‘‘[The Plaintiff’s Counsel]: And when you say the

machine at a different location you mean the mammography machine?

‘‘[The Witness]: Yes.

‘‘[The Plaintiff’s Counsel]: Okay. And in this case, did

Dr. Poole take additional films?

‘‘[The Witness]: No.

* * *

‘‘[The Plaintiff’s Counsel]: Okay. And do you have an

opinion within a reasonable medical certainty whether

his fail—Dr. Poole’s failure to take additional views fell

below the standard of care?

‘‘[The Defendant’s Counsel]: Objection to the form.

‘‘The Court: All right. Overruled.

‘‘[The Witness]: Yes.

‘‘[The Plaintiff’s Counsel]: In what way?

‘‘[The Witness]: The failure to take additional views,

well first, he didn’t identify the micro calcifications,

and secondly, the failure to take additional views precluded the ability to establish the diagnosis and the

location of the micro calcifications.’’

Similarly, on the following day, March 20, 2019, during

the continued direct examination of Griska,3

the following colloquy occurred:

‘‘[The Plaintiff’s Counsel]: Okay. Now, in September

of [2012, was] there a generally accepted—accepted

procedure for radiologists to follow when a patient

presents with micro calcifications?

* * *

‘‘[The Witness]: The principles and documentation

of the how to evaluate and—and the basics of micro

calcification analysis are in—were standard in 2012.

‘‘[The Plaintiff’s Counsel]: Okay. And when you say

that they’re standard in 2012, what do you mean by that?

‘‘[The Witness]: I mean that the—the principles of

how to evaluate the calcifications have not changed or

what the possibility of [the calcifications are] representing has not changed.

‘‘[The Plaintiff’s Counsel]: Okay. And what is the

accepted procedure for radiologists to follow when a

patient presents with micro calcifications?
‘‘[The Witness]: To do the magnification views and

to view the calcifications in more than one direction.

‘‘[The Plaintiff’s Counsel]: And in 2012, did Dr. Poole

follow that accepted procedure?

* * *

‘‘[The Witness]: No he did not.

* * *

‘‘[The Plaintiff’s Counsel]: Okay. And did he meet the

standard of care on September 21st, 2012, when he read

the mammogram?

* * *

‘‘[The Witness]: No.

‘‘[The Plaintiff’s Counsel]: In what way?

‘‘[The Witness]: The findings needed additional

imaging evaluation, which were not performed. He did

not do the magnification spot views, and he did not

evaluate the calcifications to locate them in more than

one projection.’’

With this record in mind, we turn to the applicable

standard of review. ‘‘[B]efore a party is entitled to a

new trial because of an erroneous evidentiary ruling,

he or she has the burden of demonstrating that the

error was harmful. . . . In other words, an evidentiary

ruling will result in a new trial only if the ruling was

both wrong and harmful. . . . Moreover, an evidentiary impropriety in a civil case is harmless only if we

have a fair assurance that it did not affect the jury’s

verdict. . . . A determination of harm requires us to

evaluate the effect of the evidentiary impropriety in the

context of the totality of the evidence adduced at trial.’’

(Citation omitted; internal quotation marks omitted.)

Klein v. Norwalk Hospital, 299 Conn. 241, 254–55, 9

A.3d 364 (2010).

As noted previously in this opinion, we need not

address whether the evidentiary rulings of which the

plaintiff complains were improper, because the plaintiff

has failed to demonstrate that those rulings were harmful to the presentation of her case at trial. Significantly,

the plaintiff has not identified any relevant evidence

that the court precluded the plaintiff from presenting

during Griska’s testimony. During Griska’s testimony,

the court did sustain the objections of the defendants’

counsel to the form of certain questions asked by the

plaintiff’s counsel concerning the applicable standard

of care and whether the defendants breached that standard of care. As the trial transcripts reflect, however,

Griska did testify on two occasions later in the proceedings, over the objections of the defendants’ counsel,

which objections the court overruled, to the applicable

standard of care and that Poole breached the relevant

standard of care. Simply put, the plaintiff’s unsubstanti-
ated claim that she ‘‘was precluded from presenting

critical expert evidence in support of her claim’’ is contradicted by the record. Because the plaintiff has not

shown any harm from the court’s evidentiary rulings

that are the subject of this appeal, her claim necessarily fails.

II

The plaintiff’s second claim arises from the trial

court’s order limiting the time for direct examination

and cross-examination of the plaintiff’s expert witness,

Leopold. The plaintiff’s claim on appeal is twofold. First,

the plaintiff claims that the trial court abused its discretion by placing a time limit on the presentation of Leopold’s testimony. Second, the plaintiff claims that the

court’s action constituted a denial of the right of access

to the courts and, thus, violated article first, § 10, of

the Connecticut constitution.4 For the reasons that follow, we decline to review the plaintiff’s claims.

The following additional facts and procedural history

are relevant. During the trial proceedings on March 27,

2019, the following colloquy occurred:

‘‘[The Defendants’ Counsel]: So, it’s [the plaintiff’s]

intention that he’s a—a treating physician witness only?

‘‘The Court: That’s what I hear.

‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.

‘‘The Court: Okay. All right. So, with respect to Dr.

Leopold, he was disclosed by the plaintiff on June 12th,

2017 as a ‘subpoena-only expert’ to testify as to the

facts and opinions set forth in his reports and records.

The disclosure also states that Dr. Leopold will discuss

the radiation treatment the plaintiff received, and I

quote, ‘as well as the result of the delayed diagnosis of

the breast cancer on treatment for [the plaintiff].’ This

testimony is I quote, ‘expected to be based on review

of [the plaintiff’s] records and his treatment of [the

plaintiff].’ Because Dr. Leopold was disclosed as a treating fact witness expert only, he will only be allowed to

testify as to an opinion or facts to which fair notice is

given to the—in the disclosed medical records, pursuant to Practice Book § 13-4 (b) (2). To the extent [that

the plaintiff] seeks to ask Dr. Leopold opinion questions

concerning opinions that are not in the medical records,

the defendants are not on fair notice, and, therefore,

such questions should not be asked or elicited by counsel. Do you understand?

‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.

‘‘The Court: Okay. So, anything on Dr. Leopold? Okay.

All right. So, now, with respect to the remainder of the

day, what is going to happen this morning, [the plaintiff’s counsel]?

‘‘[The Plaintiff’s Counsel]: Your Honor, I plan on calling Alisa Houldcroft, who is I believe in the hallway.
She was parking when we started this argument.

‘‘The Court: Okay. So, you have one family witness

today?

‘‘[The Plaintiff’s Counsel]: Yes.

‘‘The Court: Only one?

‘‘[The Plaintiff’s Counsel]: Yes. And then—

‘‘The Court: And that’s it, and then Dr. Leopold?

‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.

‘‘The Court: And Dr. Leopold isn’t coming until two,

correct?

‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.

‘‘The Court: All right. So, here’s what I want to say

about Dr. Leopold. So, we only have Dr. Leopold for

three hours today with a fifteen minute break, so it’s

really two hours and forty-five minutes.

‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.

‘‘The Court: That time will be split evenly between

the plaintiff and the defendants because Dr. Leopold

isn’t coming back because you have to rest so we can

turn to the defendants’ case, as has been our plan all

along, and as I have repeatedly told you. So, I would

recommend that both parties think carefully about their

direct and their cross-examination, and make sure that

they don’t waste any time on unnecessary questions.

Like, do we have to spend a half an hour on his curriculum vitae, for example?

‘‘[The Plaintiff’s Counsel]: No, Your Honor.

‘‘The Court: Okay. But if you do that, that will be on

you because I will give you a deadline, and when that

deadline comes, you will be done. We will take a break

and I will turn to [the defendants’ counsel], and I will

say you get the rest of the time. And if she doesn’t use

the rest of the time, and there’s time for rebuttal, then

you’ll have rebuttal. If not, we’re done.

‘‘[The Defendants’ Counsel]: I—if I could, Your

Honor. I think we need to shorten the amount of time

that we’re each given. Are you still having the show

cause hearing at two?

‘‘The Court: Oh, yeah, that’s right.

‘‘[The Defendants’ Counsel]: And also we have a

motion for directed verdict. So, I filed just a preliminary

yesterday, because I don’t want to give a roadmap to

the plaintiff’s counsel as to what they could possibly

have done on their last day. So, we also need time for—

‘‘The Court: Oh, I forgot about that.

‘‘[The Defendants’ Counsel]: —me to provide to you

the motion for a directed verdict.

‘‘The Court: Okay.’’
We now address each of the plaintiff’s claims in turn.

A

The plaintiff first claims that the trial court abused

its discretion by placing a time limit on the presentation

of Leopold’s testimony. The plaintiff makes this claim

despite never raising to the trial court any objection to

the time limit it imposed or identifying to the court any

evidence she was unable to elicit from Leopold due to

the time limit.

‘‘As this court repeatedly has stated, we will not

review an issue on appeal that was never properly raised

in or decided by the trial court.’’ Billboards Divinity,

LLC v. Commissioner of Transportation, 133 Conn.

App. 405, 411, 35 A.3d 395, cert. denied, 304 Conn. 916,

40 A.3d 783 (2012). ‘‘Practice Book § 60-5 provides in

relevant part that [t]he court shall not be bound to

consider a claim unless it was distinctly raised at the

trial or arose subsequent to the trial. . . . Indeed, it is

the appellant’s responsibility to present such a claim

clearly to the trial court so that the trial court may

consider it and, if it is meritorious, take appropriate

action. That is the basis for the requirement that ordinarily [the appellant] must raise in the trial court the

issues that he intends to raise on appeal. . . . 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.

. . . We have repeatedly indicated our disfavor with

the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course

of a trial until it is too late for them to be corrected,

and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds

of appeal.’’ (Internal quotation marks omitted.) Sturgeon v. Sturgeon, 114 Conn. App. 682, 693, 971 A.2d

691, cert. denied, 293 Conn. 903, 975 A.2d 1278 (2009).

As previously noted, in the present case, the record

shows that the plaintiff did not object to the court’s

imposition of a time limit before she started her examination of Leopold. Furthermore, at no time during or

after Leopold’s testimony did the plaintiff claim that

the court’s time limit prevented her from eliciting any

evidence from Leopold. In fact, after Leopold concluded

his testimony, the court inquired as to whether the

plaintiff had any other evidence or testimony to present.

In response, the plaintiff’s counsel answered in the negative and did not claim that the court’s imposition of

a time limit on Leopold’s testimony in any way impacted

the presentation of her case. Thus, because we conclude

that the plaintiff failed to preserve her claim that the

court abused its discretion by placing a time limit on

the presentation of Leopold’s testimony, we decline to

review the plaintiff’s claim.5

B
The plaintiff next claims that the court’s imposition

of the time limit constituted a denial of her right of

access to the courts and, thus, violated article first,

§ 10, of the Connecticut constitution. We decline to

review the plaintiff’s claim because it has been inadequately briefed.

We begin by setting forth the plaintiff’s entire argument in her appellate brief regarding the constitutionality of the time limit imposed by the court: ‘‘But the

court’s draconian limitation of the time allowed for

presentation of the plaintiff’s case went beyond a mere

abuse of discretion. It amounted to denying the plaintiff

the right to present her case in any meaningful way.

As such it constituted a denial of the right of access

to the courts guaranteed by [article first, § 10], of the

Connecticut constitution. This is so because lawsuits

seeking damages for personal injuries caused by negligence were recognized at the time the constitution was

adopted in 1818 and have been recognized ever since

that time, and neither the legislature nor the court has

provided an alternative to the judicial remedy in such

cases. See Gentile v. Altermatt, 169 Conn. 267, 284–86,

363 A.2d 1 (1975); Daily v. New Britain Machine Co.,

200 Conn. 562, 585, 512 A.2d 893 (1986); Zapata v.

Burns, 207 Conn. 496, 514–16, 542 A.2d 700 (1988);

Ruben & Williams, The Constitutionality of Basic Protection, 1 Conn. L. Rev. 44, 46 n. 13 (1986). See generally,

Limiting the Length of Civil Trials?, 2 No. 3 ABA J.

E-Report 2 (2003).’’ (Footnote omitted.)

Initially, we note that the plaintiff raises this constitutional claim for the first time on appeal. It therefore was

not properly preserved in the trial court. ‘‘We consider

unpreserved claims of constitutional magnitude

according to the requirements of [State v. Golding, 213

Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by

In re Yasiel R., 317 Conn. 773, 780–81, 120 A.3d 1188

(2015)] . . . .’’6 Stacy B. v. Robert S., 165 Conn. App.

374, 381, 140 A.3d 1004 (2016). Nevertheless, the plaintiff’s brief neither includes a Golding analysis nor

requests extraordinary review of her claim under any

other exception to the preservation rule. For this reason

alone, the plaintiff has failed to adequately brief her

constitutional claim and the claim is deemed abandoned. See, e.g., State v. Tierinni, 144 Conn. App. 232,

238, 71 A.3d 675 (‘‘[A party’s] failure to address the four

prongs of Golding amounts to an inadequate briefing

of the issue and results in the unpreserved claim being

abandoned. . . . We will not engage in Golding . . .

review on the basis of . . . an inadequate brief.’’ (Internal quotation marks omitted.)), cert. denied, 310 Conn.

911, 76 A.3d 627 (2013).7

In addition, the plaintiff’s appellate brief also does

not provide any substantive analysis of why the court’s

action constituted a constitutional violation. Certainly,

none of the cases on which she relies discusses time
limits imposed by a trial court, let alone considers

whether such limits violate our state constitution. In

the end, the plaintiff’s argument consists of little more

than a bare assertion that the court’s time limit deprived

her of her ‘‘right to present her case in any meaningful way.’’

‘‘Analysis, rather than mere abstract assertion, is

required in order to avoid abandoning an issue by failure

to brief the issue properly. . . . Where a claim receives

only cursory attention in the brief without substantive

discussion, it is deemed to be abandoned.’’ (Internal

quotation marks omitted.) Billboards Divinity, LLC

v. Commissioner of Transportation, supra, 133 Conn.

App. 412. Applying this principle, we conclude that the

plaintiff has abandoned her unpreserved constitutional claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The complaint was withdrawn as to the defendants Jinnah A. Philips,

Julie S. Gershon, Mandell & Blau, P.C., and Physicians for Women’s Health,

LLC, and they are not parties to this appeal. Stephen Reich, who was a fact

witness before the trial court, filed an appearance for purposes of seeking

a protective order regarding a notice of deposition. He is a named defendant,

but is not involved in this appeal. Accordingly, for purposes of this opinion,

we refer to Jefferson Radiology, P.C., and William S. Poole, collectively, as

the defendants.

2 The record contains conflicting evidence as to why an ultrasound was

performed on the right breast and not the left breast.

3 As previously noted in this opinion, the plaintiff argues that during her

March 19, 2019 direct examination of Griska the court improperly precluded

the plaintiff’s counsel from discussing the court’s rulings on the objections

of the defendants’ counsel to her questions with anyone other than her

cocounsel. In making this argument, the plaintiff ignores the fact that Griska

was still on direct examination when court adjourned for the day on March

19, 2019. Thus, her counsel had the opportunity before Griska resumed her

direct testimony on March 20, 2019, to discuss the court’s prior evidentiary

rulings and Griska’s continued testimony with anyone she liked, including Griska.

4 The constitution of Connecticut, article first, § 10, provides: ‘‘All courts

shall be open, and every person, for an injury done to him in his person,

property or reputation, shall have remedy by due course of law, and right

and justice administered without sale, denial or delay.’’

5 Even if we were to assume that the court abused its discretion in imposing

a time limit on the presentation of Leopold’s testimony, we note that the

plaintiff has failed to demonstrate any harm by failing to identify on appeal

the relevant evidence that she would have sought to elicit during Leopold’s

testimony if additional time had been provided.

6

‘‘Under Golding, a [party] can prevail on a claim of constitutional error

not preserved at trial only if the following conditions are met: (1) the record is

adequate to review the alleged claim of error; (2) the claim is of constitutional

magnitude alleging the violation of a fundamental right; (3) the alleged

constitutional violation . . . exists and . . . deprived the [party] of a fair

trial; and (4) if subject to harmless error analysis, the state has failed to

demonstrate harmlessness of the alleged constitutional violation beyond a

reasonable doubt. In the absence of any one of these conditions, the [party’s]

claim will fail. The appellate tribunal is free, therefore, to respond to the

[party’s] claim by focusing on whichever condition is most relevant in the

particular circumstances.’’ (Internal quotation marks omitted.) In re Riley

B., 203 Conn. App. 627, 636, 248 A.3d 756, cert. denied, 336 Conn. 943, 250

A.3d 40 (2021).

7 We further note that the plaintiff did not affirmatively request in her

brief that her claim concerning the court’s imposition of a time limit be

reviewed under the plain error doctrine. ‘‘[I]t is well established that this

court [is not obligated to] apply the plain error doctrine when it has not
been requested affirmatively by a party . . . .’’ (Internal quotation marks

omitted.) Gartrell v. Hartford, 182 Conn. App. 526, 540 n.12, 190 A.3d 904

(2018).