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KATHLEEN BLIGH v. TRAVELERS HOME AND
MARINE INSURANCE COMPANY
(AC 35953)
DiPentima, C. J., and Lavine and Harper, Js.
Argued October 27, 2014—officially released January 6, 2015
(Appeal from Superior Court, judicial district of
Hartford, Vacchelli, J.)
Timothy Brignole, with whom, on the brief, was Juri
E. Taalman, for the appellant (plaintiff).
Thomas P. Chapman, for the appellee (defendant).
Opinion
LAVINE, J. The plaintiff, Kathleen Bligh, appeals from
the judgment of the trial court, rendered after a trial
to the jury, in this underinsured motorist action against
the defendant, Travelers Home and Marine Insurance
Company. On appeal, the plaintiff claims that the court
abused its discretion (1) by denying her motion for
additur, (2) with respect to certain evidentiary rulings,1
and (3) by sustaining an objection by counsel for the
defendant to a statement made by the plaintiff’s counsel
during closing argument. We affirm the judgment of the
trial court.
The following procedural history underlies the plain-
tiff’s claims on appeal. The plaintiff was injured in a
motor vehicle collision in 2008 (2008 collision). As a
result of the collision, the plaintiff sustained injuries,
which she claimed limited her ability to enjoy life’s
activities. After she exhausted the $50,000 limit of the
tortfeasor’s insurance policy,2 the plaintiff commenced
the present action against the defendant for underin-
sured motorist benefits. The jury returned a verdict in
favor of the plaintiff in the amount of $77,000. The
plaintiff then filed motions to set aside the verdict, for
a new trial, and for additur. The defendant filed a motion
to reduce the jury’s verdict by the amount of the tortfea-
sor’s liability policy. In a thorough memorandum of
decision, the court denied the plaintiff’s postverdict
motions; granted the defendant’s motion to reduce the
verdict; and rendered judgment in favor of the plaintiff
in the amount of $27,000, plus costs.
The court set forth the facts that the jury reasonably
could have found. Shortly after 9 p.m. on February
28, 2008, the plaintiff, then a nineteen year old college
student, was returning home from her part-time job in
a 2005 Nissan Murano (Nissan). She was stopped at a
traffic signal on Elm Street in Enfield when a 2006 two-
door Honda sedan struck the rear of the Nissan. The
speed limit was thirty miles per hour, and the tortfeasor
left no skid marks. The plaintiff claimed that the impact
pushed the Nissan fifty feet. Joseph Fillmore, an Enfield
police officer, responded to the scene. He saw no seri-
ous injuries to either operator and neither of them
reported any injuries. The Honda sustained damage to
the front bumper, hood, and a headlight.
Donna Mattera, the plaintiff’s mother and owner of
the Nissan, went to the scene and noted that the Nissan
had a dislocated bumper. Although Mattera’s former
husband, Tom Bligh, reassembled the bumper, Mattera
filed a property damage claim with Progressive four
months after the collision. Nicole Souza, an agent for
Progressive, inspected the Nissan and took photo-
graphs of the damage. The photographs revealed only
minor scratches and dents to the bumper and a small
crack in the housing around the exhaust pipe. Souza
issued Mattera a check in the amount of $1115 for
the damage.
The plaintiff claimed that as a result of the 2008
collision, she suffered a debilitating injury to her back,
which causes her chronic, relentless, and painful mus-
cle spasms. She claims that she experiences only tempo-
rary relief after receiving what she described as
cripplingly painful, invasive, and expensive epidural
injections several times a year. Both the plaintiff and
Mattera denied that the plaintiff had any back problems
prior to the 2008 collision. The plaintiff had an active
life of school, sports, and part-time employment prior
to the 2008 collision. In particular, the plaintiff was an
avid, competitive figure skater, but she had stopped
skating prior to the 2008 collision.
The jury also could have found that on March 8, 2007,
the plaintiff was involved in a front end collision (2007
collision) when a vehicle coming from the opposite
direction made a left turn in front of her, causing her
right hand to hit the dashboard. She sustained injuries
to her wrist and neck, and underwent surgery to repair
her wrist. The plaintiff denied that she injured her back
in the 2007 collision, but the records of Tilak Gooner-
atne, the plaintiff’s pediatrician, contain a note that he
had prescribed pain medication for the plaintiff after
he received a telephone call on March 9, 2007, in which
it was reported that the plaintiff was experiencing back
and neck pain. The plaintiff denied calling Gooneratne’s
office to complain of back pain. Although Mattera testi-
fied extensively about the plaintiff’s injuries and treat-
ment, she did not confirm that she telephoned
Gooneratne’s office seeking medication for the plain-
tiff’s back pain.
The jury could have found that the plaintiff received
the following care for her alleged injuries after the 2008
collision. The day after the collision, the plaintiff experi-
enced headaches and neck and back pain. She saw
Gooneratne, who prescribed ice, heat, and Motrin, and
referred the plaintiff to an orthopedist. The orthopedist
doubted the plaintiff’s complaints, and the plaintiff was
not satisfied with the care and treatment she received.
The plaintiff also consulted a neurosurgeon and began
a course of physical therapy, which she likewise found
to be unsatisfactory.
The plaintiff then consulted with William Pesce, a
pain management physician. He gave the plaintiff injec-
tions that temporarily alleviated her pain. On June 17,
2010, Pesce found that as a result of the 2008 collision
the plaintiff had a ‘‘thoracolumbar strain and also lum-
bosacral disc protrusion. . . . While she does have
some radicular symptoms, much of the symptoms
appear to be primarily multiligamentous. She has been
very limited in terms of her function because of pain.
She has been tried on multiple modalities including
injections and pharmacologic treatment with only mini-
mal relief. While I feel injections can continue to be
helpful in providing some symptomatic relief and allow
her to function at a more normal level, I feel she is
plateaued with regards to any other formal treatment.’’
Pesce opined that the plaintiff had a 12 percent perma-
nent partial disability of the whole person as a result
of the collision.
Thereafter, the plaintiff treated with Eric Grahling,
a pain expert physician, who diagnosed the plaintiff
with a herniated disc in the lumbar spine, facet joint
syndrome, and thoracic spondylosis. Grahling con-
cluded that the plaintiff had chronic muscle spasms in
her back and that the condition was likely to ‘‘ ‘go on
indefinitely . . . at least a decade, probably longer.’ ’’
He diagnosed the plaintiff with chronic facetogenic mid-
back pain, intractable muscle spasm, and chronic low
back pain likely due to herniated disc. Grahling gave the
plaintiff thoracic and lumbar epidural steroid injections
and anticipated that she would need such injections
three to four times a year at the cost of $1200 to $1300
per thoracic injection and $1600 to $1700 per lumbar
injection. Grahling gave the plaintiff a 6 percent perma-
nent impairment of the thoracic spine. The plaintiff
claims that she cannot lift objects weighing more than
twenty-five pounds, cannot walk, sit or stand for long
periods of time, and suffers from sleeplessness due to
pain. She expressed concern about her ability to take
care of the children she someday hopes to have and is
fearful of her need for future medical treatment and its
long-term effects. The plaintiff claims she can no longer
ice skate nor engage in recreational activities as vigor-
ously as she once had.
The jury also could have found that after the 2008
collision, despite her pain, the plaintiff continued to
work part-time and completed her college education
with honors. At the time of trial, she was employed full-
time. She made no claim for lost wages nor loss of
earning capacity. She has traveled by car to Ocean City,
New Jersey, and by airplane to Disney World for vaca-
tions. She claimed that she was in intense pain during
the two week trial, experiencing pain at a level of 6 or
7 out of 10 in her low back and 6 in her midback. The
court stated that the plaintiff did not appear to be in
any discomfort by body language or voice and appeared
to be a healthy young woman. After setting forth the
evidence, the court addressed each of the postverdict
motions. We now address the plaintiff’s claims on
appeal.
I
The plaintiff first claims that the court abused its
discretion by denying her motion for additur. We
disagree.
The following facts are relevant to the plaintiff’s
claim. The jury awarded her $65,000 for past and future
medical expenses and $12,000 in noneconomic damages
for a total award of $77,000. On February 15, 2013, the
plaintiff filed a motion for additur in which she claimed
that she had presented evidence of $62,920.52 in medi-
cal bills for medical treatment she received as a result
of the 2008 collision and that the jury awarded her only
one half of that sum ‘‘for no reason at all.’’3 Moreover,
she claimed that she had established that she will incur
$112,000 for future medical treatment but that the jury
had awarded her only $65,000 ‘‘without any basis.’’ She
further claimed that she had established that her past
and future medical treatment was reasonably necessary
and that there was no reasonable evidence to the con-
trary. The plaintiff sought to have the court add
$109,920.52 to the economic portion of the jury’s
verdict.
With respect to the jury’s noneconomic damages
award of $12,000, the plaintiff claimed that the jury
failed to consider evidence of her past pain and suffer-
ing, her loss of the enjoyment of life’s activities, her
fear of future medical care, and difficulty bearing chil-
dren, and that she will live with daily pain for the
remainder of her life. Again, she claimed that there was
no evidence to the contrary. She asked the court to
increase the jury’s noneconomic damages award ‘‘by a
sum of $238,000.’’
We review the trial court’s decision to deny a motion
for additur under an abuse of discretion standard. Ng
v. Wal-Mart Stores, Inc., 122 Conn. App. 533, 536, 998
A.2d 1214 (2010). ‘‘[I]t is the court’s duty to set aside
the verdict when it finds that it does manifest injustice,
and is . . . palpably against the evidence. . . . The
only practical test to apply to a verdict is whether the
award of damages falls somewhere within the necessar-
ily uncertain limits of fair and reasonable compensation
in the particular case, or whether the verdict so shocks
the sense of justice as to compel the conclusion that
the jury [was] influenced by partiality, mistake or cor-
ruption. . . . [A] court’s decision to set aside a verdict
and to order an additur . . . is entitled to great weight
and every reasonable presumption should be given in
favor of its correctness. . . . In determining whether
the court abused its discretion, therefore, we decide
only whether, on the evidence presented, the court rea-
sonably could have decided that the jury did not fairly
reach the verdict it did. To do so, we must examine the
evidential basis of the verdict itself . . . .’’ (Internal
quotation marks omitted.) Silva v. Walgreen Co., 120
Conn. App. 544, 550–51, 992 A.2d 1190 (2010).
In its memorandum of decision, the court set forth
its full jury instructions on the subject of damages,
including economic and noneconomic damages. The
court then denied the plaintiff’s motion for additur stat-
ing: ‘‘In this case, the fact that the jury awarded less
than the full amount requested was not evidence of
error; rather, it shows that the jury carefully evaluated
the evidence. With regard to past and future medical
bills, [it] only awarded those expenses that [it] found
to be reasonably necessary and proximately caused by
the . . . underinsured motorist’s negligence. With
regard to noneconomic damages, there obviously is no
mathematical formula to precisely measure the value
of such losses. The jury adhered to the court’s instruc-
tion to use [its] own good judgment in awarding dam-
ages in that category. The variance between the
plaintiff’s request and [its] awards reflected [its] accep-
tance of the defendant’s litigation theme, that this plain-
tiff was certainly injured in this accident, and she has
pain as a result, but that she unnecessarily pursued the
most extensive and expensive treatment and exagger-
ated her claims on noneconomic damages for litigation
purposes and/or that her condition was partly preex-
isting due to the 2007 automobile accident.’’
The plaintiff’s argument on appeal rests on the faulty
premise that a plaintiff is entitled to recover, dollar for
dollar, expenses alleged to have been incurred due to
a collision when the defendant concedes liability. This
argument discounts the jury’s fundamental role of eval-
uating damages claimed with a discerning eye. We have
reviewed the evidentiary record and conclude that the
court did not abuse its discretion in denying the plain-
tiff’s motion for additur. The defendant presented evi-
dence that called into question a number of allegations
in the complaint: the seriousness of the 2008 collision;
whether the plaintiff’s complaints of back pain were
the result of the 2007 or 2008 collisions, or both; and
that the plaintiff had stopped skating prior to the 2008
collision; among other things. As the court found, the
jury abided by its instructions and awarded damages
that fell ‘‘within the necessarily uncertain limits of fair
and reasonable compensation’’ in this particular case
and do not shock our sense of justice. The plaintiff’s
claim as to additur, therefore, fails.
II
The plaintiff claims that the court abused its discre-
tion with respect to several of its evidentiary rulings.4
Specifically, the plaintiff claims that the court abused
its discretion by (1) permitting the defendant to place
her pediatric medical record into evidence, (2) failing
to grant her motion to preclude evidence of or reference
to the 2007 collision, (3) accommodating the schedule
of one of the defendant’s witnesses who testified prior
to the conclusion of the plaintiff’s case-in-chief, (4) per-
mitting certain portions of deposition testimony to be
read to the jury, and (5) admitting a report of the esti-
mated damage to the Nissan. We reject all of the plain-
tiff’s evidentiary claims.
We begin with the applicable standard of review. ‘‘The
trial court’s ruling on the admissibility of evidence is
entitled to great deference.’’ (Internal quotation marks
omitted.) Jacobs v. General Electric Co., 275 Conn. 395,
406, 880 A.2d 151 (2005). Evidentiary rulings will be
upset only for manifest abuse of discretion. Id.
A
The plaintiff claims that the court abused its discre-
tion by admitting into evidence her complete medical
file in Gooneratne’s possession. We disagree.
The following additional facts are relevant to the
plaintiff’s claim. In preparation for trial, counsel for the
defendant issued a subpoena duces tecum to the keeper
of Gooneratne’s records, which were delivered to the
Superior Court clerk’s office.5 During the plaintiff’s
case-in-chief, Mattera testified about the treatment the
plaintiff received from Gooneratne for skating injuries
and the injury she sustained to her wrist in the 2007
collision, among other things. The plaintiff’s counsel
asked Mattera whether she had ever taken the plaintiff
to Gooneratne for complaints related to her back. Mat-
tera could not recall, and the following inquiry occurred:
‘‘[The plaintiff’s counsel]: Were there possibly com-
plaints that she may have had with regards to injuries
that you don’t recall as you sit here today?
‘‘[Mattera]: Yeah, I can’t recall everything. Since she’s
been born?
‘‘[The plaintiff’s counsel]: If I show you Dr. Gooner-
atne’s entire file, would that refresh your recollection
with regard to all of the reasons why you ever brought
[the plaintiff] to see Dr. Gooneratne?
‘‘[Mattera]: Sure, yes.’’
After reviewing the entire file, Mattera testified that
she had never taken the plaintiff to Gooneratne’s office
for a back or low back injury at any time from the date
of her birth to the 2008 collision. She also testified that
the plaintiff never had a problem with her lower or mid
back prior to the 2008 collision. Thereafter, Goonera-
nte’s records were marked as a full exhibit, and counsel
for the plaintiff published them to the jury.
On cross-examination, counsel for the defendant
questioned Mattera about her testimony that prior to
February 28, 2008, the plaintiff never had any com-
plaints of back pain and drew Mattera’s attention to an
acute visit form dated March 8, 2007, in Gooneratne’s
records. The form stated in part ‘‘CO neck and back
pain.’’6 That portion of the plaintiff’s medical record
was marked as an exhibit and published to the jury.
The plaintiff filed a motion to set the verdict aside,
claiming in part that the court improperly allowed
Gooneratne’s records into evidence. The court denied
the motion, stating that Mattera had reviewed the file
during the plaintiff’s direct examination of her and that
the plaintiff had not objected to the file’s being marked
as a full exhibit. The court concluded that the plaintiff
had waived her claim of error.
On appeal, the plaintiff claims that the wholesale
admission of her medical records in Goonerante’s pos-
session was improper and prejudicial because those
records were not relevant or material to the issues at
trial and violated her statutory right to privacy in the
records. The defendant argues that the plaintiff waived
her right to appellate review.
We agree that the plaintiff waived her right to appel-
late review. By asking Mattera to review Goonerante’s
medical records and publishing them to the jury after
[it] were admitted into evidence, the plaintiff ‘‘opened
the door’’ to further inquiry. See, e.g., In re Jah’za G.,
141 Conn. App. 15, 27 n.9, 60 A.3d 392 (claim that com-
missioner opened door to rebuttal testimony by intro-
ducing certain exhibit), cert. denied, 308 Conn. 926, 64
A.3d 329 (2013). ‘‘[O]rdinarily appellate review is not
available to a party who follows one strategic path at
trial and another on appeal, when the original strategy
does not produce the desired result.’’ (Internal quota-
tion marks omitted.) Glenn v. Glenn, 133 Conn. App.
397, 403 n.6, 35 A.3d 376 (2012). The plaintiff’s claim,
therefore, fails.
B
The plaintiff claims that the court abused its discre-
tion by failing to grant her motion to preclude evidence
related to the 2007 collision, as such evidence was
unduly prejudicial to the issue of damages in the present
case. We disagree.
We review the trial court’s ruling on a motion to
preclude evidence pursuant to an abuse of discretion
standard. See Otwell v. Bulduc, 76 Conn. App. 775, 777,
821 A.2d 793 (2003). Evidence is relevant if it has ‘‘any
tendency to make the existence of any fact that is mate-
rial to the determination of the proceeding more or less
probable than it would be without the evidence.’’ Conn.
Code Evid. § 4-1.
On January 25, 2013, the plaintiff filed a motion to
preclude any argument, evidence, testimony or refer-
ence in medical reports to the 2007 collision, claiming
that reference to the 2007 collision was irrelevant,
immaterial, and highly prejudicial as the only injuries
she sustained in that collision were to her right hand
and wrist. She stated that she had disclosed all of her
medical records regarding the 2007 collision and that
they contain no reference to pain in her cervical, tho-
racic, or lumbar spine. More particularly, the plaintiff
sought to strike Grahling’s testimony that dealt with
the 2007 collision and a medical report from Aris D.
Yannopoulos, an orthopedic surgeon, that refers to a
prior collision that resulted in surgery. The court denied
the motion.
After the jury returned its verdict, the plaintiff filed
a motion to set aside the verdict, claiming, in part, that
the court improperly denied that motion to preclude.
In ruling on the motion to set aside the verdict, the
court stated, in part, that evidence regarding the plain-
tiff’s 2007 collision was relevant to the issue of whether
the 2008 collision was the cause of all of the injuries
the plaintiff alleged in the present action. The court
found that evidence of the injuries the plaintiff sus-
tained in 2007 was relevant and not unduly prejudicial
to her case.
On appeal, the plaintiff claims that the court abused
its discretion because there was a factual error in
Yannopoulos’ report7 and Grahling’s testimony con-
fused the jury, which caused the jury to reduce the
economic damages she claimed by 50 percent. The
defendant argues that the plaintiff placed the state of
her health in issue by seeking compensation for the
loss of the enjoyment of life’s activities. In addition, the
plaintiff’s original complaint dated November 10, 2010,
alleged that she suffered injuries that included a sprain/
strain of the muscles and ligaments of her lumbar spine,
cervical spine, thoracic spine, shoulder pain, and a L5-
S1 central disc bulge.8
On the basis of our review of the record, including
the plaintiff’s original complaint, we conclude that the
court did not abuse its discretion by denying the plain-
tiff’s motion to preclude testimony related to the injur-
ies she sustained in the 2007 collision. The plaintiff put
her physical injuries and her inability to enjoy life’s
activities directly into issue by making certain allega-
tions in her complaint. ‘‘Pleadings are intended to limit
the issues to be decided at the trial of a case and [are]
calculated to prevent surprise. . . . Harris v. Shea,
79 Conn. App. 840, 842–43, 832 A.2d 97 (2003); see also
71 C.J.S. 38, Pleading § 3 (2000) (purpose of pleadings
is to frame, present, define, and narrow the issues, and
to form the foundation of, and to limit, the proof to
be submitted on the trial).’’ (Internal quotation marks
omitted.) Birchard v. New Britain, 103 Conn. App. 79,
83, 927 A.2d 985, cert. denied, 284 Conn. 920, 933 A.2d
721 (2007).
Moreover, we conclude that the evidence regarding
the 2007 collision and the injuries the plaintiff sustained
as a result thereof did not unjustly prejudice her. The
plaintiff suffered injuries in two motor vehicle collisions
and the original complaint implicated injuries related
to both collisions. It was for the jury to decide the
proximate cause of her injuries. The trial court has
discretion to determine that ‘‘the probative value of
evidence is not outweighed by its prejudicial effect
. . . .’’ (Internal quotation marks omitted.) State v. Rey-
nolds, 152 Conn. App. 318, 325, 97 A.3d 989, cert. denied,
314 Conn. 934, A.3d (2014). ‘‘Evidence is prejudi-
cial when it tends to have some adverse effect upon a
[party] beyond tending to prove the fact or issue that
justified its admission into evidence.’’ (Internal quota-
tion marks omitted.) State v. Orr, 291 Conn. 642, 667–68,
969 A.2d 750 (2009). For the foregoing reasons, we
conclude that the court did not abuse its discretion
by denying the plaintiff’s motion to preclude evidence
related to the injuries she sustained in the 2007 collision.
C
The plaintiff claims that the court abused its discre-
tion by permitting the defendant to present testimony
regarding property damage to her vehicle from a person
who was not disclosed as a witness prior to trial and
by permitting that person to testify during the plaintiff’s
case-in-chief. We do not agree.
In ruling on the motion to set aside the verdict, the
court addressed the point raised by the plaintiff that
the court permitted Souza to testify about the damage
to the Nissan the plaintiff was driving at the time of
the 2008 collision. At trial, the plaintiff argued that the
defendant had not disclosed Souza as a witness in its
trial management memorandum and that Souza had
not been disclosed to the jurors during voir dire to
determine whether there were any conflicts. The plain-
tiff also argued ‘‘the allowance of this undisclosed wit-
ness on an undisclosed topic, at the time of trial when
the witness was not a rebuttal witness rather was a
witness for the defense, was highly prejudicial.’’
The court was not persuaded by the plaintiff’s argu-
ments because the plaintiff was late in disclosing infor-
mation to the defendant regarding damage to the
Nissan.9 The court permitted the defendant to present
Souza’s testimony during the plaintiff’s case due to
Souza’s bona fide scheduling conflict. The court also
stated that, prior to Souza’s testimony, the court asked
the jury whether anyone knew her. No concerns were
raised. Souza testified after Mattera finished her testi-
mony. The court concluded that the plaintiff was not
prejudiced by letting Souza testify prior to the conclu-
sion of the plaintiff’s case-in-chief.
In addition, the plaintiff claimed that the defendant
commented on Souza’s testimony during final argu-
ment. The court also found the plaintiff’s claim was
untimely because the plaintiff did not object to the
defendant’s closing argument.
On the basis of our review of the record, we conclude
that the court did not abuse its discretion by permitting
Souza to testify during the plaintiff’s case-in-chief. The
plaintiff failed to disclose information regarding the
property damage to the Nissan in a timely fashion and
objected to the evidence coming in as a business record.
The information was relevant to the issues at trial. Given
the defendant’s late discovery of the information, it is
not surprising that Souza’s business schedule had to be
accommodated for her to testify. The evidence was not
prejudicial to the plaintiff in the sense that it came as a
surprise. Mattera filed a claim for damages four months
after the 2008 collision. Souza inspected her vehicle
and issued her a check for damages. There is no evi-
dence that Mattera disputed the amount of the compen-
sation she received for damage to the vehicle.
As to the plaintiff’s claim that the jury was confused
by permitting Souza to testify during her case, the defen-
dant points out in its brief that the court not only permit-
ted it to present testimony out of order, but the court
also permitted the plaintiff to interrupt Mattera’s testi-
mony to present Pesce’s testimony and the videotaped
deposition of Grahling. It is within the discretion of the
trial court to control the order of testimony. See State
v. McCall, 187 Conn. 73, 84, 444 A.2d 896 (1982). The
court did not abuse its discretion by permitting the
defendant to present Souza’s testimony during the plain-
tiff’s case.
D
The plaintiff claims that the court abused its discre-
tion by permitting certain portions of Jeffrey Tompkins’
deposition testimony to be read to the jury. We decline
to review this claim.
In its memorandum of decision the court wrote: ‘‘The
first issue raised by the plaintiff in support of her claim
for a new trial is that ‘the introduction of . . . Tomp-
kins created a firestorm with regard to the defendant’s
defense.’ The deposition of . . . Tompkins was read
to the jury. He testified as to the extent of the damage
to the tortfeasor’s vehicle. He was called by the plaintiff.
The plaintiff’s claim on this point is unexplained and
indiscernible. Therefore, no merit is found in it.’’
On appeal, the plaintiff claims that the court granted
her motion to preclude certain portions of Tompkins’
deposition testimony, but that testimony was read to
the jury.10 She did not claim before the trial court that
the reading of Tompkins’ deposition violated the court’s
ruling on her motion to preclude. This court repeatedly
has held that it ‘‘will not consider claimed errors on
the part of the trial court unless it appears on the record
that the question was distinctly raised at trial and was
ruled upon and decided by the court adversely to the
appellant’s claim.’’ (Internal quotation marks omitted.)
McGuire v. McGuire, 102 Conn. App. 79, 87, 240 Conn.
924 A.2d 886 (2007). ‘‘To review a claim advanced for
the first time on appeal and not raised before the trial
court amounts to a trial by ambuscade of the trial
judge.’’ Jalbert v. Mulligan, 153 Conn. App. 124, 144,
101 A.3d 279, cert. denied, 315 Conn. 901, A.3d
(2014). The plaintiff’s claim is not reviewable.
E
The plaintiff’s last evidentiary claim is that the court
improperly permitted the defendant to place a copy of
the defendant’s report regarding an estimate of damage
to the Nissan into evidence. We disagree.
In her motion to set aside the verdict, the plaintiff
claimed that the court abused its discretion by permit-
ting the report of estimated damage prepared by Souza
into evidence. The plaintiff argued that the report was
only an estimate and that Souza admitted that she did
not bend down to inspect whether there was additional
damage to the vehicle or whether repairs had been
completed. The court denied the motion to set aside
on that basis, stating that the report documented visible
damage, estimated the cost to repair, and was made
promptly after Progressive was notified and called to
view the damage. The court found that the information
was relevant to the issues of liability as to the cause
of the particular damage the plaintiff claimed. More-
over, the court found that the plaintiff was able to dem-
onstrate on cross-examination that the inspection was
not thorough and that it took place four months after
the 2008 collision, and concluded that those factors go
to the weight of the evidence, not its admissibility.
We agree with the court’s analysis and reasoning.
The plaintiff put the extent of her injuries in question
and the defendant sought to determine whether she
had exaggerated the force of the 2008 collision. The
report was admissible as to the extent of damage Souza
observed. Evidence susceptible of different explana-
tions goes to its weight, not to its admissibility. State
v. Evans, 44 Conn. App. 307, 314, 689 A.2d 494, cert.
denied, 240 Conn. 924, 692 A.2d 819 (1997). The plaintiff
cross-examined Souza as to the limitations of her
inspection. As to the plaintiff’s complaint that the
inspection took place months after the 2008 collision,
that is due to the fact that Mattera did not file a claim
for damage until four months after the accident.
The plaintiff claims that the evidence was prejudicial
because she was unaware that Souza was going to tes-
tify or what her testimony would be. Although the plain-
tiff may not have known in advance of trial that Souza
would testify, she certainly was aware of Souza’s
inspection and that Tom Bligh had repaired some of
the damage prior to the inspection. If the plaintiff
thought the full extent of damage to the vehicle was
important, she could have called Tom Bligh during her
case-in-chief. She also could have called him in rebuttal.
For all of the foregoing reasons, the plaintiff’s eviden-
tiary claims fail.11
III
The plaintiff’s last claim is that the court improperly
sustained the defendant’s objection to a statement made
by the plaintiff’s counsel during final argument. We do
not agree.
Counsel for the parties presented their final argu-
ments on February 5, 2013. The transcript reveals the
following colloquy at the beginning of final argument
from the plaintiff’s counsel.
‘‘[The plaintiff’s counsel]: And we now turn to the
issues in this case. What is the plaintiff’s injuries
resulting from this accident? I’m going to start out with
the defendant’s opening statement, [counsel for the
defendant]. We get to occasionally have the court
reporter transcribe things. And I’ve asked for [counsel
for the defendant’s] opening statement. I’m going to
read to you one sentence that [he] said in the last open-
ing statement: ‘And you’ll have to ask yourselves
whether or not all of the plaintiff’s treatment is medi-
cally necessary in this case, that’s for you to decide,
and the issue becomes this, if you have a car accident,
you’re driving a Ford Taurus, you can’t then go ask
your insurance company and tell them you’re driving
a Rolls Royce.’ Now when I heard that, I was offended
because . . . .
‘‘[The defendant’s counsel]: Your Honor, I object to
plaintiff’s counsel talking about his offense to my open-
ing remarks. I think that’s commenting on—that’s
improper comment on the arguments of counsel.
‘‘The Court: Well, I suppose it’s not relevant, the per-
sonal feelings of counsel. Sustained.’’
In her motion to set aside the verdict, the plaintiff
claimed that the court improperly sustained the defen-
dant’s objection to the personal opinions of the plain-
tiff’s counsel, who was offended by the analogy
comparing the plaintiff’s personal injuries to property
damage. Moreover, she stated that ‘‘[t]his was an
admonishment in front of the jury that was highly preju-
dicial to [her], improperly and inappropriately sup-
ported by the court.’’ The court ruled on the claim
stating that it properly sustained the ‘‘defendant’s objec-
tion [without admonition] to the plaintiff’s counsel’s
remarks during closing argument that he was personally
offended by the defendant’s counsel’s opening state-
ment. . . . Counsel’s expression of his personal opin-
ions was improper.’’ Personal attacks on the parties
and opposing counsel are improper. See, e.g., Rizzo
Pool Co. v. Del Grosso, 232 Conn. 666, 687 n.33, 657
A.2d 1087 (1995).
On appeal, the plaintiff notes that our Rules of Profes-
sional Conduct proscribe counsel from expressing per-
sonal opinions with respect to the evidence, citing State
v. Singh, 259 Conn. 693, 702, 793 A.2d 226 (2002). She
argues that the court should set aside the verdict if
counsel makes a statement without an evidentiary
basis. See Fonck v. Stratford, 24 Conn. App. 1, 3, 584
A.2d 1198 (1991). The plaintiff is correct as to the appli-
cable Rule of Professional Conduct, but she has misap-
plied it in this circumstance. In his opening statement,
counsel for the defendant drew an analogy consistent
with the defendant’s theory of the case, as found by
the court. That is that the plaintiff was injured in the
2008 collision, but that she unnecessarily pursued the
most extensive and expensive treatment and exagger-
ated her claims for economic gain. See part I of this
opinion. We recognize that a person who has suffered
personal injuries in a motor vehicle accident most likely
would not like to be compared with damage to a car,12
but counsel for the defendant was attempting to provide
the jury with a concrete example of the theory of
defense; it was appropriate argument, not a statement
of personal opinion. The court, therefore, properly sus-
tained the objection of the defendant’s counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In several of her claims, the plaintiff states that the verdict should be
set aside or that she should be granted a new trial because the court abused
its discretion with regard to numerous specific evidentiary rulings. The
substance of the plaintiff’s claims is that the court’s evidentiary rulings were
improper. We therefore have reviewed all such claims pursuant to the abuse
of discretion standard. In each instance of claimed error, we conclude that
the court did not abuse its discretion. We, therefore, need not consider
whether the plaintiff was prejudiced by the court’s rulings; see Jacobs v.
General Electric Co., 275 Conn. 395, 406, 880 A.2d 151 (2005) (evidentiary
rulings overturned on appeal only by showing of substantial prejudice or
injustice); and whether the court improperly denied the plaintiff’s motion
to set aside the verdict. See Purzycki v. Fairfield, 44 Conn. App. 359, 362,
689 A.2d 504 (1997) (court may set aside verdict if against law and evidence),
reversed on other grounds, 244 Conn. 101, 708 A.2d 937 (1998).
2
Progressive Insurance Company (Progressive) insured the tortfeasor’s
vehicle.
3
Attached to the verdict form was a document containing four columns
with the headings: name of the medical provider, dates of service, amount
of charge, and amount awarded. The data in the first three columns were
typewritten. The amount awarded is handwritten and equal to one-half of
the amount of each charge.
4
See footnote 1 of this opinion.
5
The plaintiff’s counsel did not disclose Gooneratne’s records prior to trial.
6
At the bottom of the form is a hand-written note that states: ‘‘Tcall 3/9/
07 c/o severe back & neck pain. Tylenol w codeine #3 PRN for pain.’’
7
The record is inadequate for this court to consider the plaintiff’s claim
that there is an error in Yannopoulos’ report. The plaintiff has failed to
indicate where in the record she objected to the report on the basis of the
claimed error at the time it was admitted into evidence or that she brought
the claimed error to the attention of the jury.
8
During trial, on January 31, 2013, the plaintiff filed an amended complaint
in which she omitted some of the injuries she alleged in her original com-
plaint. The amended complaint alleged, in relevant part, that as a result of
the subject collision she suffered a sprain/strain of the muscles and ligaments
of her lumbar and thoracic spine and a central disc herniation at L5-S1.
9
The plaintiff took the deposition of Jeffrey Tompkins, an adjuster for
Progressive, on January 28, 2013. During the course of the deposition, coun-
sel for the defendant became aware of documents in Progressive’s file that
had not been disclosed.
10
In her brief, the plaintiff failed to identify what portion of Tompkins’
deposition testimony was read to the jury that violated the court’s order or
to identify where in the transcript the evidence could be found. In its brief,
the defendant claimed that the court restricted its cross-examination of
Tompkins to those matters the court found relevant and material. The deposi-
tion was redacted in accordance with the court’s order, according to the
defendant. The plaintiff did not object at the time of trial and therefore did
not preserve the claim for appellate review.
11
In her brief, the plaintiff claims prejudice because her counsel inter-
viewed some jurors who explained that Mattera testified that Tom Bligh
had fixed some of the damage to the Nissan and that was the reason the
vehicle showed little damage when Souza inspected it. The plaintiff’s counsel
represented that the jurors questioned why Tom Bligh was not called to
testify. The plaintiff speculates as to whether the jury considered evidence
that was not before it. The record is inadequate to review this claim.
12
The plaintiff’s counsel did not object to the ‘‘offensive analogy’’ at the
time it was made in the opening statement.