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

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
MICHELE L. MAYNARD v. THOMAS SENA

(AC 36345)

Sheldon, Prescott and West, Js.

Argued February 5—officially released July 14, 2015

(Appeal from Superior Court, judicial district of New

London, Devine, J.)

Jon L. Schoenhorn, with whom were Drzislav Coric,

and, on the brief, Cody A. Layton, for the appellant

(plaintiff).

Laura Pascale Zaino, for the appellee (defendant).
Opinion

SHELDON, J. The plaintiff, Michele L. Maynard,

brought this medical malpractice action against the

defendant, Thomas Sena, a plastic surgeon, alleging

negligence on the part of the defendant in his postoperative care and treatment of the plaintiff. The plaintiff

claimed, inter alia, that the defendant breached the

standard of care when, during a postoperative office

visit, he drained a seroma1

that had developed in the

plaintiff’s left breast without wearing surgical gloves.2

The plaintiff claimed that the defendant’s failure to wear

surgical gloves when he drained the seroma proximately caused her to contract an infection, which led

to a series of extensive and prolonged complications.

Following a trial, the jury returned a verdict in favor

of the defendant, and the court rendered judgment in

accordance with that verdict. On appeal, the plaintiff

claims that the trial court erred in admitting two types

of defense evidence against her, over her objection, and

that their prejudicial effect outweighed their probative

value, to wit: (1) the defendant’s testimony as to his

habit of wearing gloves when performing surgical procedures in his office; and (2) testimony by the defendant’s expert witness as to the training of medical

professionals to use ‘‘universal precautions’’ when treating their patients. We affirm the judgment of the trial

court.

The following facts, which the jury reasonably could

have found, and procedural history, are relevant to this

appeal. Prior to the procedure that gave rise to this

action, the plaintiff underwent three breast augmentation surgeries, in January, 1988, February, 1993 and

February, 2005.In July, 2005,the plaintiff was diagnosed

with cancer in her left breast, which she treated with

chemotherapy and radiation.In late 2006, she developed

capsular contracture in her left breast, which caused

the implant in that breast to become hard and painful.3

The plaintiff first met the defendant to obtain treatment for her painful left breast on November 21, 2006.

After discussing her options with the defendant, the

plaintiff chose to have the implants removed from both

of her breasts and replaced with new ones. The defendant performed that procedure at Lawrence & Memorial

Hospital in New London on January 11, 2007. On January 17, 2007, the plaintiff went to the defendant’s office

for postoperative care. At that time, the plaintiff had

developed a seroma in her left breast. Because seromas

sometimes resolve without treatment, the defendant

planned to see the plaintiff again in two to three weeks,

but he advised the plaintiff to call him if the amount

of fluid increased.

The plaintiff returned to the defendant’s office on

February 9, 2007, complaining of pressure and pain, in

addition to swelling, in her left breast. Although the
defendant observed the swelling, he did not see any

signs of infection. Nevertheless, in order to alleviate the

plaintiff’s symptoms of pressure and pain,the defendant

drained the fluid, which was uninfected, from the plaintiff’s left breast during her office visit that day. He did

so by removing the stitches from the January 11 surgery

and reopening the incision. When he finished draining

the seroma, he replaced the stitches and bandaged the

left breast.

The next morning, the plaintiff’s left breast was swollen and painful. She also was unable to lift her left arm

and had a fever. She was thus admitted to The William

W. Backus Hospital in Norwich, where she was administered antibiotics and pain medication. After spending

several days in the hospital, the plaintiff was diagnosed

with an infection, which required the removal of the

new implant from her left breast, and a series of additional medical procedures.

In her amended complaint dated November 20, 2013,4

the plaintiff claimed, inter alia, that she contracted the

infection during her visit to the defendant’s office on

February 9, 2007. She attributed her infection to the

defendant’s negligence, inter alia, in inserting his

ungloved and unwashed finger into her left breast to

drain the seroma. The jury rejected this claim, and all

of the plaintiff’s other claims, by returning a verdict in

favor of the defendant. The court accepted the verdict

and rendered judgment thereon. This appeal followed.

Because both of the plaintiff’s claims on appeal concern the court’s evidentiary rulings, we set forth, as a

threshold matter, the standard by which we review the

trial court’s determinations concerning the admissibility of evidence. Generally, ‘‘[t]he trial court’s ruling on

evidentiary matters will be overturned only upon a

showing of a clear abuse of the court’s discretion. . . .

We will make every reasonable presumption in favor

of upholding the trial court’s ruling, and only upset it

for a manifest abuse of discretion. . . . [Thus, our]

review of such rulings is limited to the questions of

whether the trial court correctly applied the law and

reasonably could have reached the conclusion that it

did.’’ (Internal quotation marks omitted.) Smith v.

Greenwich, 278 Conn. 428, 446–47, 899 A.2d 563 (2006).

As for claims that evidence should be excluded

because its prejudicial effect outweighs its probative

value, our standard of review, more particularly, is as

follows: ‘‘Relevant evidence is excluded . . . when its

probative value is outweighed by the danger of unfair

prejudice. . . . A determination regarding undue prejudice is a highly fact and context-specific inquiry. [T]he

determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound

discretion of the trial court . . . and is subject to reversal only [when] an abuse of discretion is manifest or

injustice appears to have been done. . . .
‘‘[T]here are [certain] situations [in which] the potential prejudicial effect of relevant evidence would suggest its exclusion. These are:(1) where the facts offered

may unduly arouse the jur[ors’] emotions, hostility or

sympathy, (2) where the proof and answering evidence

it provides may create a side issue that will unduly

distract the jury from the main issues, (3) where the

evidence offered and the counterproof will consume

an undue amount of time, and (4) where the [opposing

party], having no reasonable ground to anticipate the

evidence, is unfairly surprised and unprepared to meet

it.’’ (Citation omitted; internal quotation marks omitted.) Perez v. D & L Tractor Trailer School, 117 Conn.

App. 680, 696, 981 A.2d 497 (2009), cert. denied, 294

Conn. 923, 985 A.2d 1062 (2010). With these principles

in mind, we address the plaintiff’s claims in turn.

I

The plaintiff first claims that the trial court erred in

permitting the defendant to testify as to his habit of

wearing gloves when performing surgical procedures

in his office.5 She claims that the trial court improperly

determined that the probative value of that testimony

outweighed its prejudicial effect.6 We disagree.

The following additional facts are relevant to this

claim. During the defendant’s direct examination at

trial, he testified that he had performed surgical procedures every day that he had worked in his office over

the course of his entire thirty year career, and that he

employed the same ‘‘sterile technique’’ when performing every one of those procedures, regardless of

the nature of the procedure. Following that testimony,

the plaintiff objected to the defendant ‘‘testifying as to

what he standardly does because the question is what

did he do in this case. . . . Any evidence about what

he standardly does is more prejudicial than it is probative. . . . If he remembers what he did in this case,

let’s have him testify. If he doesn’t, then he shouldn’t

be able to testify to what he standardly does because

. . . while it may be relevant, it may have some relevance, it may have some materiality, it’s clearly more

prejudicial than it is probative as to what he did in

this case.’’

The court overruled the plaintiff’s objection,

explaining: ‘‘[E]vidence of a habit of a person or the

retained practice of an organization is admissible to

prove that the conduct of the person or organization

on a particular occasion was in conformity of the habit

or routine practice.

‘‘The court clearly has the discretion to determine

whether or not this evidence should be permitted in

this case and ha[s] to weigh the probative value versus

any prejudice. The court feels that there would not be

any prejudice to the plaintiff in this particular case

because you certainly have the ability to cross-examine
the doctor here today and apparently there was a deposition taken . . . of the doctor before where he didn’t

recall whether or not he had a glove on. So I think it’s

fair game in this particular case. There’s no prejudice—

excuse me. The probative value outweighs any prejudicial effect.’’

The defendant then described forthe jury the process

that he follows in performing surgical procedures in his

office. He testified as to the sterilization of the various

surgical instruments used and the use of a fenestrated

drape to create a sterile environment in the office. He

further testified that all of his sterile instruments would

be laid out on a sterile tray, brought into the room in

which he would perform the procedure, ‘‘and then I

would put on the gloves.’’ The defendant demonstrated

how he puts the gloves on his hands. The defendant

testified that, to drain a seroma, he generally would use

something otherthan a fingerto manipulate the incision

to facilitate drainage, perhaps something smaller, like a

clamp, because a finger might be obtrusive and actually

impede the drainage. He testified that when he takes

his gloves off following a surgical procedure there is

usually a powder residue on his hands, which he then

washes off. The defendant testified that he takes this

sterile approach with all of the patients in his office,

and has done so for thirty years. He testified that he

could not conceive of having performed the procedure

on the plaintiff without gloves, because doing so would

put him at risk for contracting an infection ‘‘if she had

something like hepatitis or even AIDS . . . .’’ The

defendant testified that he had worn gloves for all of

the surgical procedures that he had performed throughout his career, and that he would never have performed

the Feburary 9, 2007 procedure to drain the seroma in

the plaintiff’s left breast without wearing gloves.

On appeal, the plaintiff claims that the trial court

erred in permitting the defendant to testify that he has

worn gloves for every procedure that he has ever performed in his office over his thirty year career. She

renews her claim that the probative value of such habit

evidence was outweighed by its prejudicial effect

because it allegedly changed the focus of the jury’s

inquiry from whether the defendant wore gloves when

he drained her seroma on February 9, 2007, to whether

he generally wears gloves when performing similar procedures in his office. The plaintiff argues that the

‘‘defendant could have done this procedure a hundred

times and did it right ninety-nine of those times. This

case focuses on the one time he did it wrong.’’ She

contends that, ‘‘[a]s a result of allowing the defendant

to testify to his habit, the actual issue to be decided of

whether or not the defendant wore a glove on February

9 [was] pushed into obscurity, and the inquiry became

whether or not the defendant would ever under any

circumstances in his career not wear gloves when conducting an in-office procedure.’’ We disagree.
Section 4-6 of the Connecticut Code of Evidence provides: ‘‘Evidence of the habit of a person or the routine

practice of an organization is admissible to prove that

the conduct of the person or the organization on a

particular occasion was in conformity with the habit

or routine practice.’’ ‘‘[H]abit is a person’s regular practice of responding to a particular kind of situation with

a specific type of conduct. . . . [H]abit . . . refer[s]

to a course of conduct that is fixed, invariable, and

unthinking, and generally pertain[s] to a very specific

set of repetitive circumstances . . . .’’ (Citation omitted; internal quotation marks omitted.) Conn. Code

Evid. §4-6, commentary.

‘‘Testimony as to the habit or practice of doing a

certain thing in a certain way is evidence of what actually occurred under similar circumstances or conditions. . . . Evidence of a regular practice permits an

inference that the practice was followed on a given

occasion.’’ (Citations omitted; emphasis added; internal

quotation marks omitted.) State v. Hubbard, 32 Conn.

App. 178, 185, 628 A.2d 626, cert. denied, 228 Conn. 902,

634 A.2d 296 (1993).

The plaintiff does not disagree that the defendant’s

testimony that he wore gloves every time he performed

a surgical procedure in his office during his thirty year

career was proper habit evidence, as contemplated by

our rules of evidence. The plaintiff argues, however,

that that testimony obscured the issue to be determined

by the jury because it shifted the focus of the inquiry

from whether the defendant wore gloves when he

drained the plaintiff’s seroma on February 9, 2007, to

whether he had the habit of wearing gloves when performing surgical procedures in his office. The record

belies the plaintiff’s argument that the defendant’s testimony caused any such confusion. The plaintiff made it

clear through her inquiry of the defendant, as well as

in her closing argument to the jury, that the defendant’s

testimony that he always wore gloves when performing

surgical procedures was not conclusive evidence that

he, in fact, did so when draining her seroma on February

9, 2007. The defendant’s testimony as to his regular

practice of wearing gloves when performing office procedures supported an inference that he wore gloves

when he drained the plaintiff’s seroma on February

9, 2007. The jury could have believed that it was the

defendant’s habit always to wear gloves when performing surgical procedures, but that he failed to do

so on February 9, 2007. We are unpersuaded by the

plaintiff’s claim that the defendant’s habit testimony

confused the issues presented to the jury, or created

a collateral inquiry for the jury to consider. We thus

conclude that the trial court did not err in determining

that such testimony was not more prejudicial than probative.

II
The plaintiff also claims thatthe court erred in permitting the defendant’s expert witness, Richard Restifo, a

plastic surgeon, to testify on redirect examination as

to the concept of ‘‘universal precautions.’’ Restifo

explained that all medical professionals are taught to

use ‘‘universal precautions’’ when dealing with their

patients to avoid potentially dangerous contact with

the patients’ bodily fluids. They are trained, in short,

to ‘‘treat every patient as though they have a potentially

serious communicable disease.’’7 The plaintiff argues

that the court erred in admitting Restifo’s testimony

regarding ‘‘universal precautions’’ because:(1) such testimony was outside the scope of her cross-examination

of Restifo, and, thus, resulted in unfair surprise to her;

and (2) it shifted the focus of the jury’s inquiry from

whether the defendant wore gloves when treating the

plaintiff on February 9, 2007, to whether doctors are

trained to do so.8 We disagree.

Restifo testified that the defendant did not breach

the applicable standard of care in his care and treatment

of the plaintiff. Specifically, as it pertains to this claim,

Restifo testified, inter alia, that the defendant utilized

proper sterile technique in draining the plaintiff’s seroma. On cross-examination, the plaintiff inquired about

the differences between performing a surgical procedure in an operating room and performing itin an examination room in an office. Plaintiff’s counsel asked

Restifo, inter alia, if there is a requirement that a doctor

wash his or her hands and put on gloves prior to performing a surgical procedure in an operating room.

Restifo answered in the affirmative. Plaintiff’s counsel

then suggested that no such requirement exists when

performing such a procedure in an office examination

room, but Restifo disagreed as follows: ‘‘Well, sure,

there’s a requirement. . . . [I]t’s not written or stated,

but I find it hard to imagine that any doctor or plastic

surgeon would cut a patient with a knife without having

gloves on. It just doesn’t ring true to me that that could

ever happen.’’9

On redirect examination, defense counsel asked

Restifo to define the term ‘‘universal precautions.’’ The

plaintiff objected to that inquiry on the ground that it

was beyond the scope of his cross-examination of

Restifo. The plaintiff further explained his objection as

follows: ‘‘It’s not what [the defendant] was expected to

do; it’s what he did and what he did is in his notes and

in his testimony. It’s not what he’s expected to do

. . . .’’ After the jury was excused the plaintiff continued: ‘‘[I]n this case what’s important is what actually

occurred, not what may have occurred or what should

have occurred, otherthan what’s expressed in opinions,

and there was no opinion about what he’s getting into

now.’’ The court overruled the plaintiff’s objection, concluding that the defendant’s inquiry was not outside the

scope of cross-examination, and that the testimony was
relevant to whether, in Restifo’s opinion, based on all

of the information he had reviewed, his training, and

his experience, there had not been a breach of the

standard of care in the way the defendant performed

the procedure at his office on February 9, 2007.

We agree with the trial court that the defendant’s

inquiry regarding the concept of ‘‘universal precautions’’ was within the scope of the plaintiff’s inquiries

on cross-examination, and, thus, that it could not have

caused her any unfair surprise. Not only did that concept relate to the standard of care, as described by

Restifo in his expert testimony, but it explained the

basis for that standard of care. On cross-examination,

Restifo testified that wearing gloves when performing

surgery is so fundamental that he could not conceive

of a surgeon not doing so. On redirect examination,

defense counsel simply sought to explain the basis for

that opinion, which was that all doctors are taught to

treat every patient as if he has a communicable disease,

and to take the necessary protective measures to prevent its transmission. Restifo’s testimony did not confuse the issues or change the jury’s inquiry, as the

plaintiff argues, because he did not testify that the

defendant wore gloves when he drained the plaintiff’s

seroma on February 9, 2007. Indeed, Restifo acknowledged, on cross-examination, that the surgical note of

the February 9, 2007 procedure did not contain a notation indicating that the defendant had worn gloves when

performing that procedure. Restifo’s testimony regarding ‘‘universal precautions’’ was clearly offered to

explain what surgeons are taught and why they are

taught it, not necessarily what the defendant did on the

office visit in question when he drained the plaintiff’s

seroma. We disagree with the plaintiff that Restifo’s

testimony confused the jury or shifted its focus away

from what the defendant actually did on February 9,

2007. We thus conclude that the court did not abuse

its discretion in admitting the challenged testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

1 A seroma is a collection of fluid.

2 Although the plaintiff alleged additional breaches of the standard of care

by the defendant and a lack of informed consent, the evidentiary claims

raised in this appeal pertain only to the allegation that the defendant did

not wear gloves when draining the plaintiff’s seroma.

3 Capsular contracture is a painful condition whereby scar tissue that

naturally forms around a breast implant thickens and constricts the implant.

Radiation increases the chance of developing a contracture.

4 This operative complaint was filed by the plaintiff to conform to the

evidence adduced at trial.

5 The plaintiff claims for the first time on appeal that habit evidence should

not be admissible in medical malpractice actions. Because she did not raise

this issue before the trial court, she is precluded from doing so now. See

Scandariato v. Borrelli, 153 Conn. App. 819, 832–33, 105 A.3d 247 (2014).

6 The plaintiff also argues that the defendant failed to establish an adequate

foundation for the admission of habit evidence. She argues that an adequate

foundation requires two components. First, she contends that the witness

must establish that he has no recollection of the actual event at issue. In

support of this argument, which appears in a single paragraph of her brief,
the plaintiff cites a single case from the Georgia Court of Appeals. She cites

no Connecticut authority on the issue, nor are we aware of any. In any

event, because the record is replete with evidence that the defendant did

not remember the specifics of the February 9, 2007 procedure, any such

requirement was fully satisfied. Second, the plaintiff argues that the witness

must ‘‘be required to demonstrate some form of frequency and specificity

regarding the alleged habit if evidence of such is to be admitted.’’ The

plaintiff failed to make this claim before the trial court, and, thus, we have

no occasion to review it on appeal. See Scandariato v. Borrelli, 153 Conn.

App. 819, 832–33, 105 A.3d 247 (2014). We note, however, that any such

requirement is fully satisfied on this record, which contains ample evidence

that the defendant used the same ‘‘sterile technique,’’ including wearing

gloves, every day for thirty years.

7 Restifo testified that: ‘‘Universal precautions means to assume that every

patient—and for that matter, every healthcare provider—has a potentially

communicable blood borne disease, or sputum borne or fluid borne

[disease].

‘‘So universal precautions [are] designed to prevent the doctor and the

patient from intermingling their blood, their sputum, their sweat; you know,

any of their body fluids. You should take whatever precautions are necessary

[such as] gloving, so that you don’t come in contact with the patient’s blood

and your blood doesn’t come in contact with her.’’

8 The plaintiff also claims that Restifo’s testimony on ‘‘universal precautions’’ was more prejudicial than probative because he stated that the risk

of contracting communicable diseases was one reason that all doctors are

taught to always wear gloves when performing surgical procedures, and

that, when explaining that risk, he mentioned hepatitis and AIDS by way

of example, and the mention of those diseases ‘‘irreparably polluted’’ the

jury. Because the plaintiff did not raise this objection before the trial court,

she cannot do so here. See Scandariato v. Borrelli, 153 Conn. App. 819,

832–33, 105 A.3d 247 (2014).

9 The plaintiff did not ask that this statement be stricken from the record.