Wilhelm v. Czuczka

561 A.2d 146, 19 Conn. App. 36, 1989 Conn. App. LEXIS 219
CourtConnecticut Appellate Court
DecidedJuly 4, 1989
Docket7096
StatusPublished
Cited by7 cases

This text of 561 A.2d 146 (Wilhelm v. Czuczka) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilhelm v. Czuczka, 561 A.2d 146, 19 Conn. App. 36, 1989 Conn. App. LEXIS 219 (Colo. Ct. App. 1989).

Opinion

O’Connell, J.

The minor plaintiff brought this medical malpractice action, through her parents as next friends, alleging permanent ear damage. In the first count of a two count complaint, the minor plaintiff claimed damages for injuries she sustained while under the defendant’s professional care. In the second count, the child’s parents sought recovery for expenses incurred as a result of the defendant’s alleged malpractice. The jury returned a verdict in favor of the defendant and the trial court denied the plaintiffs’ motion to set aside that verdict.

The plaintiffs claim that the trial court erred (1) in instructing the jury to the effect that the testimony of the minor plaintiff could be disregarded because she is a child, (2) in failing to grant the plaintiffs’ motions for mistrial following colloquys with the court, (3) in permitting the defendant to interrupt the plaintiffs’ case-in-chief by reading a portion of a deposition transcript, (4) in permitting defense counsel to read a portion of the deposition testimony of a medical expert as to the standard of care in the medical profession without laying a proper foundation, (5) in overruling the plaintiffs’ objection to the introduction of opinion testimony of a medical expert who was not disclosed by the defendant as a medical expert expected to be called as a witness, (6) in inaccurately stating facts to the jury in response to its question concerning inferences and proximate cause, (7) in instructing the jury that a failure to refer to an expert could not cause the minor [38]*38plaintiff’s ultimate condition and, (8) in recharging the jury on the standard of care. We find no error.

• The jury could reasonably have found the following facts. The defendant is a board certified pediatrician licensed to practice medicine in this state. The minor plaintiff was a patient of the defendant from her birth on February 21, 1978, until September, 1980. During this period, the defendant treated her on several occasions for infections of the right ear. On October 4,1980, the minor plaintiff was seen by Edward Gaynor, an ear, nose and throat specialist, for a second opinion. She was taken to him by her parents; the defendant had not referred her to him.

Expert medical witnesses in the field of pediatrics and pediatric otolaryngology testified that, at the time in question, the standard of care for pediatricians did not require a pediatrician to refer a child with problems like those of the minor plaintiff to an ear, nose and throat specialist. Moreover, the defendant’s treatment of the minor plaintiff’s ear condition was in accordance with the standard of care and practice for pediatricians.

I

At the time of trial, the minor plaintiff was ten years old. Prior to administering the oath, the court inquired of her and determined that she possessed sufficient testimonial competency to be accepted as a witness. Such a determination is discretionary and will not be disturbed, absent a showing of manifest abuse of discretion. State v. Maldonado, 13 Conn. App. 368, 376, 536 A.2d 600, cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988).

The plaintiffs do not quarrel with this competency determination; rather, they claim that it was error for the court to instruct the jury that as a young child the [39]*39minor plaintiff would be “more amenable to any influence or suggestion which may be made to [her] by older persons and particularly by persons closely related to her. A child’s imagination often misleads [her] and may, to [her], take on all semblances of actual fact and [she] will relate them as such. The sanctity of oath and the solemnity of legal proceedings may appeal to [her] less than to an adult.”1

The plaintiffs argue that once the trial court accepted the child as a competent witness, it should not have instructed the jury to weigh her testimony by any standard different from that used for other witnesses. We disagree. General Statutes § 54-86h2 makes it clear that the weight to be given to the testimony of a child witness and the credibility of the child witness is within the province of the jury.

Where a witness’ testimony may implicate considerations not true of witnesses in general it has long been the practice of our trial judges to point out these special considerations to the jury to assist in its deliberations. For example, it is common to point out special matters that they may take into consideration in weighing the testimony of police officers, expert witnesses, parties to the action, or coconspirators. See, e.g., 1 and 2 D. Wright, Connecticut Jury Instructions (3d Ed.).

Here, the trial court expressly instructed the jury that it was the sole judge of the credibility of all witnesses and that any comments that the court made as to the weight, significance of the evidence, or inferences to be drawn therefrom, were merely suggestive for the jury to approve or disapprove in the exercise of its [40]*40sound judgment. See State v. Smith, 201 Conn. 659, 666-67, 519 A.2d 26 (1986). Thus, it did not err in charging the jury on the credibility of the minor plaintiffs testimony.

II

During the course of the trial, the plaintiffs made two motions for mistrial arising out of oral exchanges in front of the jury between the plaintiffs’ counsel and the court. Both motions were denied.

The trial court is vested with great discretion in matters occurring during the trial. We will interfere only when it has been demonstrated that the trial court abused that discretion to the manifest injury to the litigant. Pisel v. Stamford Hospital, 180 Conn. 314, 322, 430 A.2d 1 (1980); State v. Messier, 16 Conn. App. 455, 471, 549 A.2d 270 (1988).

If we had the benefit of a film containing the sights and sounds of the trial we could more effectively evaluate the flavor of the conduct of which the plaintiffs complain. We are limited, however, to the cold words of the printed record. Of necessity, therefore, we must weigh the words in the record against the opinion of the trial judge who was in a position to sense the atmosphere of the trial and appreciate the effect that the offending remarks had upon the jury. Pisel v. Stamford Hospital, supra. Having examined the record before us, we cannot say that the trial court abused its discretion in denying the two motions for mistrial.

III

As part of pretrial discovery, the plaintiffs deposed Gaynor, the ear, nose and throat specialist who had treated and performed surgery on the minor plaintiff. As part of their case-in-chief, the plaintiffs read portions of Gaynor’s deposition into'the record. They intentionally omitted reading about ten pages of the [41]*41deposition. The defendant objected to that omission. The trial court ruled that the plaintiffs could omit these pages but that the defendant could read the omitted portions as if they were part of his cross-examination. At the conclusion of the plaintiffs’ reading, the defendant read the omitted pages to the jury. The plaintiffs claim that the court’s ruling interrupted its case-in-chief and permitted the defendant to present evidence out of turn.

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Cite This Page — Counsel Stack

Bluebook (online)
561 A.2d 146, 19 Conn. App. 36, 1989 Conn. App. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilhelm-v-czuczka-connappct-1989.