text:
    KRONBERG BROTHERS, INC. v. JOHN STEELE ET AL.
    (AC 21475)
    Foti, Dranginis and BVeedman, Js.

      Argued March 25
    officially released September 3, 2002

      Jon D. Biller, for the appellant (plaintiff).

      Bradley K. Cooney, for the appellees (defendants).
   Opinion

DRANGINIS, J.

The plaintiff, Kronberg Brothers, Inc., appeals from the judgment of the trial court rendered in favor of the defendants, John Steele and Eileen Steele. On appeal, the plaintiff claims that the court improperly (1) concluded that the contract in this case violated the Home Improvement Act (act), General Statutes § 20-418 et seq., (2) awarded damages under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (3) rejected its claim that the defendants had acted in bad faith. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. The defendants contacted the plaintiff, a licensed contractor, to perform necessary repairs and renovations to their house after it sustained extensive water damage. On September 29,1997, a representative of the plaintiff met with the defendants at their home to execute the contract. At that meeting, the terms of the contract were discussed, but the defendants did not sign the contract. The contract, a payment authorization form, a notice of cancellation form and an itemized list of the work to be done, were left with the defendants for their review. On October 1, 1997, the plaintiff faxed a notice of cancellation form and the signature and cover page of the contract to the defendants. The contract was dated October 1, 1997, and indicated a start date of October 6, 1997. The notice of cancellation form also was dated October 1, 1997, but did not reflect the date of the transaction or the date by which the defendants could cancel the contract. On October 6, 1997, Eileen Steele signed the contract, and on October 7,1997, John Steele signed the contract and the plaintiff began work on the house.

At some point during the performance of the work by the plaintiff and its subcontractors, a dispute arose between the defendants and the plaintiff as to the scope, cost and quality of the work. After the parties failed to resolve the issues, the plaintiff commenced this action to foreclose on the mechanic’s lien that it had filed against the defendants’ property. The defendants denied the plaintiff’s claims and, by special defense, claimed that the contract was in violation of the act and that the plaintiff had breached its obligations in other material respects. The defendants also filed a counterclaim sounding in CUTPA, seeking costs and attorney’s fees plus punitive damages.

In its memorandum of decision dated November 8, 2000, the court determined that the plaintiff could not recover on either count of its complaint, and ordered the release and discharge of the lis pendens and mechanic’s hen that the plaintiff had filed against the defendants’ property. The court also found for the defendants on their counterclaim, and awarded punitive damages in the amount of $13,500 as weh as taxable costs and attorney’s fees as yet to be determined. This appeal followed. Additional facts will be provided as necessary.

I

First, the plaintiff claims that the court improperly determined that the contract violated the act. Specifically, the plaintiff claims that the contract complied with all of the essential requirements of the statute and any deficiencies merely were technical. We do not agree.

We must first set forth our standard of review. “The determination of the requirements of the [Home Improvement Act] is a matter of statutory construction and, therefore, a matter of law over which this court’s review is plenary. . . . [T]he process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 226-27, 720 A.2d 235 (1998).

In its memorandum of decision, the court found that the contract in this case violated the act in three specific respects. First, the court found that the contract did not contain proper notice of the homeowners’ cancellation rights as required by General Statutes § 20-429 (a) (6). That section incorporates by reference the notice provision of General Statutes § 42-135a (2) of the Home Solicitation Sales Act, General Statutes § 42-134a et seq. The court found that “the required cancellation notice does not appear in immediate proximity to the space reserved in the contract for the signature of the buyer. In fact, the notice in question appears entirely on a separate sheet.”

Second, the court found that the plaintiff had failed to enter the date of the transaction on any copy of the “Notice of Cancellation” as required by § 42-135a (3). The court stated: “No cancellation notice produced in evidence satisfies this requirement, so that contract must fail on this score as well.”

Last, the court found that a fully completed receipt or copy of all contracts and documents was not provided to the defendants at the time of the transaction in violation of § 20-429 (c). The court stated: “As related by the plaintiff, the contract documents were delivered or faxed piecemeal, some on September 29 [1997] and others on October 1 [1997]. The basic contract was signed by the buyers on October 7 [1997]. A ‘payment authorization’ was obtained from the buyers before they signed anything. Undated and incomplete cancellation notices were faxed on at least two occasions. The contract must fail also by virtue of this defect.” (Emphasis in original.)

In support of its position, the plaintiff claims that Wright Bros. Builders, Inc. v. Dowling, supra, 247 Conn. 218, is dispositive of its claim that the contract did not violate the act. Although we acknowledge that Dowling is instructive on the interpretation of § 20-429, we conclude that it is distinguishable from the facts of the present case.

In Dowling, our Supreme Court stated: “The [Home Improvement Act] is a remedial statute that was enacted for the purpose of providing the public with a form of consumer protection against unscrupulous home improvement contractors. . . . The aim of the statute is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services. . . . While the purposes of the statute are advanced by an interpretation that makes compliance with the requirements of § 20-429 (a) mandatory, it does not necessarily follow that advancement of the purposes also requires that the mandatory compliance with each subsection be technically perfect. ... In light of our prior interpretations of § 20-429 (a) and the legislative history of that subsection, we conclude that a construction that would require technically perfect compliance with each subdivision is inappropriate. Rather, an interpretation of that section that acknowledges and furthers the remedial purposes of the statute is in order.” (Citations omitted.) Id., 231.

The cancellation notice in Dowling failed to contain the date of the transaction and the date by which the defendants could cancel the contract. Our Supreme Court determined that “the plaintiffs failure to enter the required dates on the notice of cancellation did not, under the circumstances, constitute such a deviation from the precise specifications of the [act] as to compel the conclusion that the contract failed to comply with the [act].” Id., 233. The court further explained that “[t]he missing information, however, easily could have been gleaned from even the most cursory review of the contract” because in immediate proximity to the space reserved in the contract for the homeowner’s signature was language providing cancellation notice. Id. The court also determined that the transaction date was on the first page of the contract and from that information, the buyer could have easily determined what the cancellation period was.

In this case, however, not only did the cancellation notice fail to contain the date of the transaction and the date by which the defendants could cancel the contract, the contract itself lacked a transaction date. Furthermore, the contract did not contain the required cancellation notice in immediate proximity to the space reserved in the contract for the signature of the buyer. Near the top of the second page of the contract, there was language that notified the defendants of their right to cancel the contract, but the language failed to comply with § 42-135a in both verbiage and location. The contract indicated a start date of October 6, 1997, but the contract was not signed by John Steele until October 7, 1997.

We conclude that the plaintiffs failure to comply with the act in this case amounted to more than a mere technicality; it constitutes material noncompliance with the act’s requirements. As we previously stated, the primary purpose of the statute is “to promote understanding by the consumer, to ensure his ability to make an informed decision and to protect him from ... an unscrupulous contractor.” (Internal quotation marks omitted.) Northrop v. Allstate Ins. Co., 247 Conn. 242, 253, 720 A.2d 879 (1998). The requirement that a consumer is fully notified and understands his or her right to cancel a contract is central to the act. In this case, without a transaction date on the contract and cancellation form, the defendants were left to determine for themselves when the cancellation period began and ended. The end result was a transaction rife with confusion, one of the very situations that the act seeks to avoid. Accordingly, under the circumstances of this case, we conclude that the court properly determined that the contract violated the requirements of the act.

II

The plaintiff next claims that the court improperly awarded damages under CUTPA. We are not persuaded.

“A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered.” (Internal quotation marks omitted.) Jacques All Trades Corp. v. Brown, 42 Conn. App. 124, 130, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997). Under the first requirement, the failure to comply with the act “is a per se violation of CUTPA by virtue of . . . [General Statutes] § 20-427 [c], which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice.” (Internal quotation marks omitted.) Meadows v. Higgins, 49 Conn. App. 286, 296, 714 A.2d 51 (1998), rev’d on other grounds, 249 Conn. 155, 733 A.2d 172 (1999). “The second requirement for a valid CUTPA claim does not necessitate that the actual amount of ascertainable loss be proven.” Reader v. Cassarino, 51 Conn. App. 292, 299, 721 A.2d 911 (1998). “Whether a practice is unfair and thus violates CUTPA is an issue of fact. . . . On appellate review, we overturn factual determinations only when they are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Calandro v. Allstate Ins. Co., 63 Conn. App. 602, 615, 778 A.2d 212 (2001).

In its memorandum of decision, the court found that there was a per se violation of CUTPA because the contract violated the act. In addition, the court cited other bases for its finding that the plaintiff had violated CUTPA. For example, the court found that the plaintiff had failed to obtain building and electrical permits for the work it performed even though the cost of the permits was billed to the defendants. In addition, live wires were sealed behind closed walls in at least three locations. The court found that “[t]he sum total of all of the above dictates the conclusion that the plaintiff in various and numerous instances was guilty of business practices which the CUTPA seeks to discourage and punish,” and the defendants “lost time from work and had to spend over $6000 for corrective work, as well as the disruption of their lives . . . .”

The record amply supports the court’s finding of a CUTPA violation. Accordingly, we conclude that the court’s findings are not clearly erroneous.

Ill

Finally, the plaintiff claims that the court improperly applied the law with respect to the claim of bad faith and failed to apply properly the evidence that was offered at trial. Specifically, the plaintiff asserts that the court improperly rejected its claim of bad faith by the defendants on the basis of its finding that none of the acts alleged was committed prior to the execution of the contract. We do not agree.

“In Barrett Builders v. Miller, [215 Conn. 316, 576 A.2d 455 (1990), our Supreme Court] stated in dictum that, in the absence of bad faith, a homeowner is privileged to repudiate a home improvement contract that violates the act. In Habetz v. Condon, 224 Conn. 231, 618 A.2d 501 (1992) . . . [the court] more fully addressed the bad faith exception and held that proof of a homeowner’s bad faith will preclude that homeowner from repudiating with impunity a home improvement contract that violates the act. [Our Supreme Court] defined bad faith as involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. ... In other words, [b]ad faith means more than mere negligence; it involves a dishonest purpose.” (Citations omitted; internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 247-48, 618 A.2d 506 (1992). “The central element giving rise to this exception is the recognition that to allow the homeowner who acted in bad faith to repudiate the contract and hide behind the act would be to allow him to benefit from his own wrong, and indeed encourage him to act thusly. Proof of bad faith therefore serves to preclude the homeowner from hiding behind the protection of the act.” Habetz v. Condon, supra, 237. “It is the burden of the party asserting the lack of good faith to establish its existence and whether that burden has been satisfied in a particular case is a question of fact.” Id., 237 n.11.

In its memorandum of decision, the court stated: “[N]one of the acts alleged was committed prior to the execution of the disputed contract. There is no evidence that the defendants did anything to create the defects in the cancellation notice. . . . The balance of the acts complained of arose out of the deteriorating relationship between the parties and can hardly be held to be actions in bad faith when the defendants were confronted with what must have been an exasperating ordeal. The plaintiff overlooks the evidence in this trial, which hardly depicts a neat, orderly and efficient project proceeding on time and without delay. The bad faith claim must be rejected.”

Although the court specifically mentioned the time period before the execution of the contract, it is clear that the court did not rely solely on those acts as a basis for its decision. The court clearly considered the defendants’ acts before and after the execution of the contract when it rejected the plaintiffs bad faith claim. Accordingly, we conclude that the court properly concluded that the plaintiff failed to establish the existence of bad faith on the part of the defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 20-429 provides in relevant part: “(a) No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor.
      * ** *
      “(c) The contractor shall provide and deliver to the owner, without charge, a completed copy of the home improvement contract at the time such contract is executed.

        * * *
      “(e) Each home improvement contract entered into shall be considered a home solicitation sale pursuant to chapter 740 and shall be subject to the requirements of said chapter regardless of the location of the transaction or of the signing of the contract.
      “(f) Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery.”

       In its reply brief, the plaintiff raises for the first tune the issues of the award of punitive damages and attorney’s fees, and the application of the “cigarette rule” under CUTPA. “It is a well established principle that arguments cannot be raised for the first time in a reply brief. . . . Claims of error by an appellant must be raised in his original brief ... so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument.” (Citations omitted; internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 163-64, 783 A.2d 1226 (2001). Accordingly, we decline to address those arguments.

       We note that the plaintiff filed a motion for articulation with the trial court and a motion for review of the denial of that motion with this court. This court granted the motion for review, but denied the relief requested therein. In both motions, the plaintiff sought to have the trial court further articulate “the conduct of the defendants which occurred prior to the execution of the original contract documentation . . . .” Now, on appeal, the plaintiff claims that the court improperly relied on the defendants’ actions prior to the execution of the contract.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    KENNETH E. L'HOMME v. DEPARTMENT OF TRANSPORTATION
    (AC 21805)
    Lavery, C. J., and Schaller and Bishop, Js.
    Argued April 22
    officially released September 3, 2002

      Ralph J. Monaco, with whom, on the brief, were Thomas J. Londregan and Jeffrey C. Brohel, for the appellant (plaintiff).

      William J. Scully, with whom, on the brief, were Louis B. Blumenfeld and Jeffrey C. Pingpank, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Kenneth E. L’Homme, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant department of transportation (department) on his complaint brought pursuant to General Statutes § 13a-144, the highway defect statute. On appeal, the plaintiff claims that the court improperly (1) excluded evidence of prior, similar conditions and accidents, evidence contained in a department complaint letter and drawing, and evidence of erosion, (2) denied him the opportunity to cross-examine a witness and (3) instructed the jury on the notice requirement under § 13a-144. Despite the plaintiffs characterization of his claims, more precisely cast, his claims are that the court improperly denied his motion to set aside the verdict and for a new trial on the basis of improper evidentiary rulings, denied him the opportunity to cross-examine a witness and improperly instructed the jury. Because we conclude that the plaintiff could not prevail on his complaint under § 13a-144, the alleged improprieties, if any, were harmless, and we therefore affirm the judgment of the trial court.

The juiy reasonably could have found the following facts. On June 20, 1998, between 7:45 p.m. and 7:50 p.m., the plaintiff motorcyclist was traveling north on Route 49 near the border of North Stonington and Voluntown. Route 49 is a state highway and, as such, the department is responsible for its maintenance. The plaintiff, an experienced motorcyclist, was traveling at approximately forty miles per hour. The posted speed limit was forty-five miles per hour.

Shortly after crossing the town line in Voluntown and entering a gradual turn, the plaintiff noticed that the southbound traffic had left wet tire markings on the road’s surface. Moments later, the plaintiff encountered a flooded and mud slicked stretch of road. The plaintiff reduced his speed but was unable to maintain control of the motorcycle. The plaintiff was thrown from the motorcycle and suffered numerous injuries.

On June 24, 1998, the plaintiff served James F. Sulh-van, commissioner of transportation, with notice of intent to file an action pursuant to § 13a-144. Within that notice, the plaintiff described the defective condition existing on Route 49 on June 20, 1998, as “mud.” The plaintiff thereafter filed a complaint alleging that the defendant had breached its statutory duty to maintain the highway in a reasonably safe condition. At trial, the plaintiff claimed that the road was defective and that proper maintenance of the road would have prevented the accident.

Two hours prior to the plaintiffs accident, Beverly Costley had traveled the same stretch of Route 49 on her way to Westerly, Rhode Island. She testified that at that time, the weather was “nice” and that the roadway was dry and clear. After Costley arrived in Westerly, rain began to fall heavily for a brief period of time. Shortly thereafter, Costley began her return trip to Connecticut. Costley again traveled along Route 49. She noted that Route 49 was dry and that there was no rain. The only indication of mud and water on the roadway existed specifically at the accident site. The plaintiff did not offer evidence that there had been rain in Volun-town or North Stonington on the day in question.

The plaintiff also attempted to introduce evidence of similar prior occurrences, erosion and design defects at the site of the accident in an effort to prove that the defendant had constructive notice of the road defect. In reply, on December 4, 2000, the defendant filed three separate motions in limine to preclude the introduction of that evidence. The court granted each of the motions on December 12, 2000. In response, the plaintiff filed a motion for reconsideration with regard to the court’s ruling on the admissibility of the evidence of prior, similar problems with the subject roadway. The court granted reconsideration but did not change its decision.

After the jury returned a verdict in favor of the defendant, the plaintiff filed a motion to set aside the verdict and for a new trial. The court denied the motion. This appeal followed. Additional facts will be set forth where necessary to the resolution of the issues.

The plaintiff claims first that the court improperly denied his motion to set aside the verdict and for a new trial. Specifically, the plaintiff argues that the court improperly (1) excluded evidence of prior, similar conditions and accidents that was contained in a department complaint letter and drawing, and evidence of erosion, (2) denied him the opportunity to cross-examine a fact witness and (3) instructed the jury on the notice requirement under § 13a-144. The plaintiffs argument, essentially, is that had the court not excluded the proffered evidence and denied him the opportunity to cross-examine a witness, and had the court given a different jury instruction, the jury would have answered in the affirmative all of the special interrogatories that it had been given and returned a verdict in his favor. We disagree.

The following additional facts are relevant to our analysis of the plaintiff’s claims. At trial, the plaintiff offered evidence of prior, similar conditions and accidents solely to prove that the department had notice of recurring mud and water conditions at the subject location, and that the department did not take reasonable steps to remedy those defects. That evidence consisted of testimony from two witnesses, Barbara Ayrton and Costley, and the contents of a department complaint letter and attached drawing. The court ruled that this evidence was inadmissible to prove constructive notice.

The plaintiff also attempted to introduce evidence of erosion on the side of Route 49. Specifically, the plaintiff offered photographs as well as testimony from Ayrton, a resident of Route 49, who was prepared to testify that she had put the department on notice of the defective condition, and that the department repeatedly had visited the area and filled eroded areas of the roadway with millings. The plaintiff offered that evidence to support his position that the department had constructive notice of the defect and that a reasonable amount of time had existed for the department to remedy the defect. The court ruled that this evidence was inadmissible to prove constructive notice or that the department had sufficient time to remedy the defect because the evidence was irrelevant as to those two issues.

During direct examination of a defense witness, Frederick Atwell, a department employee, the defendant’s counsel asked about the procedure by which the department received notification of the existence of highway defects. With respect to the accident on June 20, 1998, the defendant’s counsel asked Atwell, “At my request, did you search or have [you] searched the records at [the department’s Newington headquarters] pertaining to any calls about problems at this location?” Atwell responded that he had searched the department’s call-log records and that a call came into the department’s call center at 8:05 p.m. on June 20, 1998. During cross-examination, the court did not permit the plaintiffs counsel to examine Atwell on the issue of the number of' times that the department had responded to calls regarding Route 49. The court ruled that this line of questioning by the plaintiffs counsel went “well beyond the scope of the direct” because the defendant’s counsel on direct examination had limited the question and answer to June 20,1998. Later, to prevent any prejudice to the plaintiff, the court instructed the jury to limit the question and answer solely to the incident on June 20, 1998.

In its jury instructions, the court gave the jury a specific charge as to the requirements for a finding of actual or constructive notice. The court’s charge required that for the jury to find that the plaintiff properly had given the defendant notice, the defendant had to have been given notice of the very defect existing on June 20, 1998, and not merely notice of similar prior defects.

Prior to beginning deliberations, the jury received special interrogatories to answer. After considering them, the jury returned a verdict in favor of the defendant. The jury found that the highway was defective as claimed. Although the jury found that a defect existed at the time of the accident, it also determined that the defendant did not have notice of the defect. The jury also found that even if the defendant had actual or constructive notice, the defendant did not have a reasonable amount of time to respond to the defect. Finally, the jury found that the plaintiff had not established that the defect was the sole proximate cause of his injuries.

At the outset, we note the standard of review that governs a challenge to a court’s denial of a motion to set aside a verdict and for a new trial. “[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Hackling v. Casbro Construction of Rhode Island, 67 Conn. App. 286, 289, 786 A.2d 1214 (2001), quoting Davis v. Fracasso, 59 Conn. App. 291, 295, 756 A.2d 325 (2000); see also Marchell v. Whelchel, 66 Conn. App. 574, 581, 785 A.2d 253 (2001).

Even if we assume, without deciding, that the court improperly ruled on the admissibility of evidence, denied the plaintiff the opportunity to cross-examine a witness and gave the jury improper instructions, we would conclude that any error was harmless. In a civil case, the harmless error standard requires a reviewing court to determine whether the allegedly improper ruling would likely affect the result of the trial. See Pagano v. Ippoliti, 245 Conn. 640, 652, 716 A.2d 848 (1998). The plaintiff has failed to show that any of the court’s rulings or instructions were harmful. The claimed improprieties, if they did exist, were not harmful because the plaintiff failed to establish a prima facie case of liability under § 13a-144, and the claimed improprieties would not, if corrected, establish liability. Therefore, the challenged rulings could not have affected the jury’s verdict.

To prove a breach of duty under § 13a-144, the plaintiff must prove by a preponderance of the evidence: “(1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed . . . .” Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981); see also Ormsby v. Frankel, 255 Conn. 670, 676, 768 A.2d 441 (2001). It is the plaintiffs burden to prove each of those elements, and failure to prove any element will preclude a finding of liability under the statute. See, e.g., Roy v. Michaud, 5 Conn. App. 695, 700-701, 501 A.2d 1231 (1985) (failure to prove highway defect was sole proximate cause of death precluded finding of liability pursuant to § 13a-144), cert. denied, 198 Conn. 806, 504 A.2d 1060 (1986).

The jury answered in the affirmative as to only one of the six special interrogatories that it was given. Importantly, the jury found that the plaintiff did not satisfy his burden of proving that the defect was the sole proximate cause of his injuries. Accordingly, for the plaintiff to prove that any alleged impropriety by the court was harmful, he was required to show that the court’s rulings or jury instructions affected the jury’s finding concerning sole proximate cause. We address each of the plaintiffs arguments in turn.

The plaintiff argues that the court improperly excluded evidence concerning prior, similar conditions of mud and water on Route 49. The plaintiff offered evidence of prior, similar conditions solely to prove that the department had constructive notice of the defective highway condition with a reasonable window of opportunity to remedy the defect. Although that evidence may have been relevant to the issue of constructive notice and time to remedy the defect, it is not relevant to the issue of sole proximate cause.

As for the evidence concerning prior, similar accidents, the plaintiff argues that the court should have admitted that evidence to prove notice of the defect. Although that evidence may have been relevant to prove constructive notice, it was not relevant to prove sole proximate cause. Any improper ruling or jury instruction, therefore, was harmless.

Next, the plaintiff argues that the court improperly excluded testimony and photographs indicating that erosion existed on the side of Route 49. In his brief, the plaintiff argues that he offered that evidence to support his position that the state had constructive notice of the defect and that a reasonable amount of time existed to remedy the defect. Again, whether erosion existed along Route 49 prior to June 20, 1998, or whether the department had time to cure the defect prior to the plaintiffs accident is irrelevant as to the issue of sole proximate cause.

The plaintiff also argues that the court improperly prohibited him from cross-examining a defense witness concerning department call-center logs. The plaintiff argues in his brief that despite the court’s curative jury instruction, the ruling resulted in an adverse inference that the call placed on June 20, 1998, was the only complaint that the department ever had received concerning the area of Route 49 at issue. Again, regardless of whether the jury drew such an inference, that evidence is not relevant to establish the element of sole proximate cause.

Finally, the plaintiff argues that the court improperly charged the jury. In support of his argument, the plaintiff states that the court’s instruction was improper because the jury was told that the notice requirement of § 13a-144 could be satisfied only where the department had notice of the exact defect existing on June 20, 1998. That argument focuses on the court’s use of the phrase “very defect” as applied to the notice of the defect in question. Even if the court had instructed the jury as the plaintiff contends that the court should have, i.e., that notice of prior, substantially similar defects is enough to satisfy the notice requirement of the statute, such an instruction would not have affected the jury’s determination on the issue of sole proximate cause. Again, as to that matter, the court’s instruction was irrelevant as to the issue of sole proximate cause, and any error was harmless.

Even if we were to determine that the court improperly excluded evidence or had given an improper jury instruction, the proffered evidence and instruction were relevant only to the issues of notice and time to remedy the defect. The jury found that the plaintiff had failed to establish that the defect was the sole proximate cause of his injuries. We conclude that any error arising from the court’s rulings or jury instructions was harmless and did not affect the verdict. Therefore, because any error was harmless, the court did not abuse its discretion in denying the plaintiffs motion to set aside the verdict and for a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-144 provides in relevant part: “Damages for injuries sustained on state highways or sidewalks. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. ...”

       The court instructed the jury in relevant part: “The second instruction that I have for you is as to a particular question that was asked of Mr. Atwell when he was testifying, and it relates to defendant’s exhibit A, which is the log which you will have in your deliberations. The question that was asked of Mr. Atwell was whether any complaint had been made as to this particular location, and I believe the intention had been and Mr. Atwell’s answer had been not any complaint, but a complaint as to this particular accident. So, the question should be limited to that. The answer was limited to that, and you have the exhibit in order to examine.”

       The court instructed the jury in relevant part: “The next requirement is actual or constructive notice. If you find that the specific location on Route 49 as alleged was not reasonably safe for public travel at the time of the subject accident because of mud and water, as claimed by the plaintiff, then you would move onto the second liability requirement and determine whether the defendant either actually knew of that particular defect, that is, the mud on the road on June 20, 1998, mud and water on the road, or, in the reasonable exercise of his supervision of the highways, should have known of that very defect at the time of the accident.”

       The special interrogatories were as follows:
      “1. Do you find that Route 49 at the location of the accident was defective due to an accumulation of mud and water at the time of the plaintiff’s accident?

        “Yes X No
      “2. Did the defendant have actual notice or knowledge of this defect (mud and/or water) in the road on the day that the accident occurred prior to the accident?
      “Yes No X
      “3. If the defendant had actual notice or knowledge of this defect on the road on the day that the accident occurred prior to the accident, did it have a reasonable time to respond before the accident?
      “Yes No X
      “4. Did the defendant have constructive notice or knowledge of this defect (mud and/or water) in the road on the day that the accident occurred prior to the accident?
      “Yes No X
      “5. If the defendant had constructive notice or knowledge of this defect on the road on the day that the accident occurred prior to the accident, did it have a reasonable time to respond before the accident?
      “Yes No X
      “6. Do you find that the defendant’s breach of their statutory duty was the sole proximate cause of this accident?
      “Yes No X”

       Although we note that the plaintiff could have framed the appeal as two separate claims; see footnote 2; one claim concerning the court’s ruling on the plaintiff’s motion to set aside the verdict and the other claim concerning the court’s ruling on the motion for a new trial, the plaintiff actually asserts only one claim, so we apply this particular standard of review.

       The issue in Pagano v. Ippoliti, supra, 245 Conn. 652, concerned the harmful error standard of review in civil cases in the context of a trial court’s rulings on evidentiary issues. By comparison, we are concerned in this case with the court’s ruling on the motion to set aside the verdict and for a new trial. The harmless error standard of review enunciated in Pagano is applicable in this case because the plaintiffs underlying arguments challenge the court’s evidentiary rulings and a jury charge concerning evidence that he sought to have admitted at trial.


author: DRANGINIS, J.

text:
    ALLISON CARUSILLO ET AL. v. ASSOCIATED WOMEN'S HEALTH SPECIALISTS, P.C.
    (AC 21604)
    Dranginis, Flynn and Daly, Js.

    Argued June 10
    officially released September 3, 2002

      William F. Gallagher, with whom, on the brief, were Roger B. Calistro and David McCarry, for the appellants (plaintiffs).

      Eugene A. Cooney, for the appellee (defendant).

       This appeal was argued before a panel comprised of Judges Dranginis, Flynn and Daly. Although Judge Daly agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that they would not reargue the appeal to this court with a panel consisting of the original two judges and an additional judge. Rather, the parties stipulated that they would permit the remaining two judges alone to render a written decision.

   Opinion

DRANGINIS, J.

In this medical malpractice action, the plaintiff Allison Carusillo appeals from the judgment of the trial court rendered in favor of the defendant, Associated Women’s Health Specialists, P.C., following the granting of the defendant’s motion to set aside the verdict in the plaintiff’s favor. The court granted the motion on the ground that the jury had returned a verdict in favor of the plaintiff on the basis of inadmissible hearsay. On appeal, the plaintiff raises several arguments in support of her central claim that the evidence presented at trial did not constitute hearsay and, thus, that the court improperly granted the defendant’s motion. The plaintiff, therefore, urges this court to reinstate the jury’s verdict and damages award. We agree with the plaintiff and reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. At around 4:30 a.m., on October 6, 1994, the plaintiff went into labor prior to the birth of her first child and was admitted to Waterbury Hospital for the baby’s delivery. The plaintiffs obstetrician-gynecologist, Janet Vodra, a physician employed by the defendant medical practice, examined the plaintiff at approximately 9 a.m. and observed that the plaintiff was 2.5 centimeters dilated and in the first stage of labor. Vodra returned at around 5:30 p.m. to deliver the plaintiffs baby. After reexamining the plaintiff, she found that the baby was located at a “plus two” station and that the baby was facing up in the womb, rather than the preferred position of downward. A “plus station” refers to the position of the baby’s skull to the level of the ischial spines in the mother’s birth canal. In this case, a plus two station meant that the baby’s head was two centimeters lower than the level of the plaintiffs ischial spines in her birth canal.

As the progress of the baby’s birth was atypically slow, Vodra decided to apply a vacuum extractor to assist in the baby’s delivery. That procedure is also known as an instrumental delivery. When several attempts with the vacuum failed, Vodra performed an episiotomy on the plaintiff and then resumed utilizing the vacuum. The baby still failed to emerge, and Vodra realized that an obstetrical emergency called “shoulder dystocia” was occurring. In response to the emergency, Vodra performed a larger, fourth degree episiotomy on the plaintiff. The baby was soon thereafter delivered. Once the baby was delivered, Vodra surgically repaired the fourth degree episiotomy.

After the birth of her baby, the plaintiff began to suffer from severe discomfort and pain. She noticed that fecal matter would seep out of her vagina during bowel movements. A few weeks after the baby’s birth, Vodra examined the plaintiff and discovered that her episiotomy wound had not healed and that she had developed a fistula, a small hole between her rectum and vagina. The problem persisted for a couple of months. On January 30,1995, Ian Cohen, another physician in the defendant medical practice, performed a surgical repair on the plaintiff. Despite the surgery, the plaintiff continued to experience pain and began to suffer from incontinence. The plaintiff then was diagnosed with having an anal fissure for which she underwent a second surgery on July 12, 1995, that was performed by David Cherry, a physician who was not associated with the defendant. The second surgery repaired the fissure, but the plaintiff continues to suffer from permanent hygiene problems.

On April 26, 1996, the plaintiff filed an action against the defendant, naming Vodra and Cohen as its agents and alleging, in pertinent part, that Vodra, under the circumstances, negligently had performed a high pelvic instrumental delivery, namely, the use of the vacuum, which caused the occurrence of shoulder dystocia, thereby resulting in the fourth degree episiotomy and all of her ensuing health problems. A jury trial ensued.

During the trial, the plaintiff called Harold Schulman, a physician, to testify as her expert witness in the field of obstetrics and gynecology. The plaintiff questioned Schulman regarding the correlation between high pelvic instrumental deliveries and the occurrence of shoulder dystocia. In response, Schulman stated in pertinent part: “We make — we make these opinions in obstetrics because we find statistical associations. In other words, if there’s an adverse outcome, then one likes to look back at the events that preceded it and see if there [are] any factors which play a role in the decision-making and the outcome. For a shoulder dystocia, there’s a clear association with instrument deliveries. That association exists for all the reasons we pointed — for the mechanism of labor problems we pointed out today. We know there’s an association with the use of oxytocin . . . .”

The defendant’s counsel objected to Schulman’s testimony on the ground that “when I hear the word ‘we,’ I hear that this is a witness talking about a hearsay subject. . . . Now, we have some articles that are in evidence in this case. If he wants to use those, I have no problem. If he wants to bring in other articles and establish that they’re authoritative, I have no problem with that. That’s what our rules say to do. But when he sits here and says, we know this and we know that, what he’s saying is that some doctor who said something in Chicago five years ago said something, that’s hearsay.” In response, the plaintiff argued: “But that’s not what he’s saying when he says we. He’s saying we, meaning the medical community, the we, the doctors who deliver babies and are board certified obstetricians-gynecologists. He’s not referring to any hearsay thing. I’m asking him for the basis, and he’s indicating that there’s a statistical correlation. We have in evidence the studies that show that there’s a statistical correlation, and those have been marked as exhibits.” The defendant’s counsel then stated: “I have no objection if he wants to refer to those. If he wants to start talking about we know this and we know that, this is hearsay.” The plaintiff replied, “I disagree, Your Honor. He’s basing it on his experience, his practice and on his knowledge of the standards in obstetrical-gynecological practice.”

The court then asked Schulman to whom he was referring by saying “we.” Schulman answered, “Well, I’ll just abandon the use of the word ‘we’ just to avoid the dilemma. But I must confess, my experience in court is that scientific evidence is not frequently debated.” After the defendant reiterated the objection on the ground of hearsay, the plaintiff referred the court to an excerpt from J. Williams, Obstetrics (19th Ed. 1993), an authoritative textbook that previously had been entered into evidence, to support Schulman’s testimony. The court responded: “And I’m allowing — I’m going to allow — I’ve heard enough. I’m going to allow the doctor to testify. Let’s continue on.”

Schulman proceeded to testify that a statistical association exists between the use of a vacuum and shoulder dystocia, and high pelvic deliveries and shoulder dys-tocia. The defendant then asked the court to strike the testimony because “[w]e do not know where these studies are coming from. We have no idea what he’s referring to, and we don’t know whether it’s reliable or not.” The court asked Schulman for the basis of his opinion, to which Schulman replied: “Published peer review articles.” The defendant argued: “[TJhat’s precisely the problem. We do not have them.” The plaintiff stated: “Your Honor, if [the defendant’s counsel] has published peer review articles that state to the contrary, he’s certainly entitled to cross-examine this witness with those. I mean, I think in view of the fact, as counsel is aware, that we’ve marked into evidence [J. Williams, Obstetrics, supra], and those studies that are cited by [J. Williams, Obstetrics, supra], this whole line of objection is spurious. I think that Doctor — even if there weren’t any published studies, I think he is, based on his clinical experience and his years of practice and his knowledge of the standard, is entitled to say what his— what his experience has been in terms of a statistical correlation between deliveries . . . .” The court ruled: “Sure. That wasn’t asked in that many words, but I certainly will allow that. With that understanding, I allowed the evidence. Let’s proceed.”

On August 4, 2000, the jury returned a general verdict in favor of the plaintiff and awarded damages in the amount of $270,000, $5000 of which constituted economic damages, and the remaining $265,000 in noneco-nomic damages. Five days later, the defendant filed a motion to set aside the verdict on the ground that the evidence presented at trial was insufficient to establish that Vodra had breached the appropriate standard of care and that if any breach had occurred, the evidence was inadequate to prove that such breach caused the plaintiffs injuries. Moreover, the defendant argued in its motion to set aside the verdict, in pertinent part, that the court improperly had admitted the hearsay testimony of Schulman.

The court granted the defendant’s motion to set aside the verdict on January 17, 2001, and, accordingly, rendered judgment in favor of the defendant. In its memorandum of decision, the court stated: “In order to establish the essential element of causation, Dr. Schul-man was asked, during direct examination, questions as to whether or not there was a causal relationship between high pelvic instrumental delivery and shoulder [dystocia], a hotly contested issue in this case. In several of his responses to questions regarding the relationship, he used the pronoun ‘we.’ . . . Dr. Schulman indicated that he was referring to peer review medical literature. The defendant’s counsel objected and moved to strike the answer, its objection was overruled and its motion denied. However, upon review, the court believes that the defendant’s objection should have been sustained and its motion to strike granted because Dr. Schulman’s statement indicated his reliance upon unidentified medical literature to base his opinion as to causation was a reference to unreliable hearsay. Further, and adding to the gravity of this problem is the fact that this was the only evidence supporting the plaintiffs theory of causation, a crucial element in her case. . . .

“Immediately following Dr. Schulman’s disclosure, the plaintiff, in argument seeking to have the court overrule the defendant’s objection, attempted to relate Dr. Schulman’s statement to certain medical literature that was in evidence; however, a review of his testimony clearly indicates to the contrary. While absent this error, the evidence viewed in the light most favorable to the plaintiff may have supported the jury’s general verdict for her, the admission of unreliable hearsay as [previously] discussed, compels the court to grant the defendant’s motion to set aside and to render judgment for the defendant.” This appeal followed.

The plaintiff raises several evidentiary claims in support of her argument that the court improperly granted the defendant’s motion to set aside the verdict. Specifically, the plaintiff contends that Schulman’s testimony did not constitute inadmissible hearsay because (1) it was based on an authoritative medical text that had been admitted into evidence and (2) it was properly admitted pursuant to § 7-2 of the Connecticut Code of Evidence. We agree and reverse the judgment of the trial court.

Before analyzing the issues before us, we first set forth the appropriate standard of review. “A court is empowered to set aside a jury verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence. ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. . . . Before determining whether the granting of a motion to set aside is proper, the trial court must look at the relevant law that it gave the jury to apply to the facts, and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court’s legal discretion. . . . This discretion vested in the trial court is not an arbitrary or capricious discretion, but, rather, it is legal discretion to be exercised within the boundaries of settled law. . . . This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury. . . . The trial court, upon a motion to set aside the verdict, is called on to question whether there is a legal reason for the verdict and, if there is not, the court must set aside the verdict. . . .

“In reviewing a trial court’s decision to set aside a jury verdict, we must consider the evidence in the light most favorable to the party who succeeded before the jury. . . . While an appellate court must give great weight to a trial court’s decision to set aside a verdict, an appellate court must carefully review the jury’s determinations and evidence, given the constitutional right of litigants to have the issues decided by a jury. Great weight should be given to the action of the trial court and the presumption is that a verdict is set aside only for good and sufficient reason. However, the record must support that presumption and indicate that the verdict demonstrates more than poor judgment on the part of the jury. . . . While we do not attempt to substitute our judgment for that of the trial judge, we must determine whether the jury award was such that the trial judge could have properly substituted his judgment for that of the jury. ... An appellate court, therefore, in reviewing whether a trial court abused its legal discretion, must review the entire record and [all] the evidence.” (Citation omitted; internal quotation marks omitted.) Downes-Patterson Corp. v. First National Supermarkets, Inc., 64 Conn. App. 417, 424-25, 780 A.2d 967, cert. granted on other grounds, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed June 25, 2002).

In the present situation, the causal relationship between a high pelvic instrumental, or vacuum assisted, delivery and shoulder dystocia constituted the critical issue on which the case turned. Without proving causation, namely, that the high pelvic instrumental delivery caused the shoulder dystocia, the plaintiff could not prevail on her medical malpractice claim. As previously set forth, the court granted the defendant’s motion to set aside the verdict on the ground that Schulman’s “statement indicating his reliance upon unidentified medical literature to base his opinion as to causation was a reference to unreliable hearsay. Further, and adding to the gravity of this problem, is the fact that this was the only evidence supporting the plaintiffs theory of causation, a crucial element in her case.” We conclude that the court improperly found that Schul-man’s testimony constituted inadmissible hearsay and, consequently, that the court improperly set aside the jury’s verdict.

“In order for a plaintiff to prevail in an action seeking damages arising out of a claim of medical malpractice, the plaintiff must produce evidence supporting (1) the requisite standard of care, (2) evidence supporting a deviation from that standard, and (3) evidence of a causal relationship between the deviation and the claimed injury.” (Emphasis added.) Rodriguez v. Petrilli, 34 Conn. App. 871, 877, 644 A.2d 381 (1994); see also Marchell v. Whelchel, 66 Conn. App. 574, 582, 785 A.2d 253 (2001). “All medical malpractice claims, whether involving acts or inactions of a defendant physician, require that a defendant physician’s conduct proximately cause the plaintiffs injuries. The question is whether the conduct of the defendant was a substantial factor in causing the plaintiffs injury. Expert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person.” (Internal quotation marks omitted.) Poulin v. Yasner, 64 Conn. App. 730, 738, 781 A.2d 422, cert.. denied, 258 Conn. 911, 782 A.2d 1245 (2001); see also Conn. Code Evid. § 7-2; 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) §§ 119d through 119f.

“[A]n expert’s opinion is not rendered inadmissible merely because the opinion is based on inadmissible hearsay, so long as the opinion is based on trustworthy information and the expert had sufficient experience to evaluate that information so as to come to a conclusion which the trial court might well hold worthy of consideration by the jury.” (Internal quotation marks omitted.) George v. Ericson, 250 Conn. 312, 321, 736 A.2d 889 (1999). “An expert may base his opinion on facts or data not in evidence, provided they are of a type reasonably relied on by experts in the particular field. . . . This is so because of the sanction given by the witness’s experience and expertise. . . . [WJhen the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise. . . . The better reasoned authorities favor the admissibility of expert opinion that is partly derived from written sources.” (Citations omitted; internal quotation marks omitted.) In re Barbara J., 215 Conn. 31, 43, 574 A.2d 203 (1990); see also Conn. Code Evid. § 7-4.

During the trial, in response to the defendant’s objections to Schulman’s testimony, the plaintiff argued, in part, that Schulman’s statements were based on J. Williams, Obstetrics, supra, a medical treatise that previously had been entered into evidence. A review of the relevant portions of that treatise indeed reveals information from which Schulman’s conclusions could have been derived. For example, the treatise states that “[a]t least three intrapartum factors have been reported to be associated with an increased incidence of shoulder dystocia: (1) prolonged second stage of labor, (2) oxytocin induction or augmentation of labor, and (3) use of midforceps or a vacuum extraction during delivery.” The treatise also states that a study conducted by “Benedetti and Gabbe (1978) reported that with a prolonged second stage of labor and a midpelvic delivery (vacuum extraction or midforceps delivery), the incidence of shoulder dystocia” increased. We accordingly conclude that Schulman’s testimony finds support in J. Williams, Obstetrics, supra, which properly had been admitted into evidence and was recognized by both parties as the authority in the field of obstetrics and gynecology.

Although Schulman did not necessarily name the peer review articles on which he relied, nor did the court ask him to provide those titles, sufficient textual support for his statements, namely, J. Williams, Obstetrics, supra, already had been entered into evidence. Accordingly, this was not a situation wherein the expert witness provided testimony or made assertions that lacked any foundation or support. See C. McCormick, Evidence (3d Ed. 1984) § 324.2, p. 910 (“expert must, of course, be allowed to disclose to the trier of fact the basis facts for his opinion, as otherwise the opinion is left unsupported in midair with little if any means for evaluating its correctness”). Rather, the foundation for the statements existed in, and could be found in, the record. To the extent that the defendant disagreed with Schul-man’s opinion, the defendant had the opportunity and the means to cross-examine Schulman and to expose any weaknesses or impropriety in his direct testimony on the basis of excerpts from J. Williams, Obstetrics, supra, or any other authoritative text. Significantly, the defendant does not contend that its right to confrontation was in any way infringed.

The defendant argues that the court properly concluded that Schulman relied on unidentified medical literature that resulted in a reference to unreliable hearsay evidence. Specifically, the defendant claims that “the plaintiff at a minimum should have identified the articles in question and asked the witness whether these were the types of articles upon which obstetricians customarily rely in forming opinions.” The defendant further urges that the plaintiff, without having provided such information, could not prove the “reliability and relevance of the articles upon which Dr. Schulman relied.” We are not persuaded.

As previously stated, Schulman’s testimony regarding the statistical associations finds support in J. Williams, Obstetrics, supra, a medical text that had been entered into evidence and that the defendant recognized as authoritative. Given that the defendant also relied on that treatise throughout the trial, we cannot agree with the defendant’s argument that the plaintiff failed to establish the threshold showing that Schulman derived his testimony from reliable and relevant sources.

As an expert witness, Schulman was entitled to base his opinion on J. Williams, Obstetrics, supra, and other peer review articles. See Pickel v. Automated Waste Disposal, Inc., 65 Conn. App. 176, 192-93, 782 A.2d 231 (2001). “[W]hen the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise.” (Internal quotation marks omitted.) In re Barbara J., supra, 215 Conn. 43. We conclude that Schulman’s testimony was not based on inadmissible hearsay and, therefore, that the court abused its discretion in setting aside the verdict on that ground.

The plaintiff further contends that Schulman’s testimony properly was admitted pursuant to § 7-2 of the Connecticut Code of Evidence. We agree. Expert testimony may be presented in numerous ways, including “by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based on a hypothetical question.” (Internal quotation marks omitted.) Aspiazu v. Orgera, 205 Conn. 623, 631, 535 A.2d 338 (1987).

Even if we assume arguendo that Schulman improperly relied on unreliable hearsay, a thorough review of the transcripts reveals that notwithstanding his statement that he based his statistical associations on published peer review articles and notwithstanding his use of the word “we,” Schulman expressed his professional opinion and diagnosis that the high pelvic instrumental delivery caused the occurrence of shoulder dystocia. Prior to discussing the statistical associations, the plaintiff asked Schulman on direct examination: “Do you have an opinion based upon a reasonable medical probability as to whether . . . this delivery was a high pelvic instrument delivery in breach of the duty of care owed . . . .” (Emphasis added.) Schulman responded: “Yes. . . . [Based on] the events which transpired. . . . The fact that there was a shoulder dystocia, the fact that this was preceded by a prolonged second stage.” Later in direct examination, Schulman testified that due to the absence of other factors that often lead to shoulder dystocia, such as diabetes and fetal mac-rosomia, he was constrained to conclude that the high pelvic instrumental delivery caused the shoulder dystocia.

During the trial, the defendant did not challenge Schulman’s qualifications as an expert and in fact stipulated to his qualifications. Given Schulman’s qualifications and experience, he was entitled to express his opinions with respect to the statistical relationship between high pelvic instrumental deliveries and shoulder dystocia. In fact, it is critical to note that the court overruled the defendant’s objections during trial, in part, because as an expert in the field of obstetrics and gynecology, Schulman was “entitled to say what his— what his experience has been in terms of a statistical correlation.” In rendering his opinion, Schulman was permitted to draw from his years of professional experience and observations and in fact did so. See Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 718, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991).

We therefore conclude that the court improperly found that Schulman’s testimony with respect to causation was based on hearsay. Accordingly, the court abused its discretion in setting aside the verdict. The evidence presented at trial properly was before the jury.

The judgment is reversed and the case is remanded with direction to reinstate the jury’s verdict and damages award and to render judgment in favor of the plaintiff.

In this opinion the other judges concurred.

       Although Stephen Carusillo, the husband of Allison Carusillo, also is a plaintiff, we refer in this opinion to Allison Carusillo as the plaintiff.

       Shoulder dystocia is a medical emergency in which the position of the baby's shoulders in the birth canal complicates, and may even prevent, a vaginal delivery.

         In that episiotomy, Vodra made an incision that extended from the base of the vagina through the rectal sphincter and into the rectum.

       The plaintiff also alleged that Vodra negligently had failed to summon a more experienced physician to assist with or to take over the delivery of the baby, failed to properly close and repair the fourth degree episiotomy, failed to procure a more experienced physician to repair the fourth degree episiotomy, and that Vodra and Cohen had failed to properly repair the fistula during the surgery performed on January 30, 1995.

       In raising that argument, the defendant referred to the passages in the transcript that we have set forth.

       The defendant argues that we should decline to address the plaintiffs claims because the record is inadequate for our review. See Practice Book § 61-10. Specifically, the defendant contends that an articulation was needed because the memorandum of decision fails sufficiently to provide the basis of the court’s determination. We disagree and find that the record is adequate for our review and that the court, in its memorandum of decision, more than sufficiently revealed the basis of its conclusion.
      The defendant further claims that the plaintiffs claim is improperly raised because “[a]t the trial level, she articulated no valid hearsay exception or nonhearsay basis for admission of Dr. Schulman’s statements.” We again disagree and conclude that the plaintiffs claims are properly before us on appeal. During the trial, the plaintiff invoked the same arguments in support of admitting Schulman’s testimony as she now raises before this court, namely, that Schulman’s testimony was based on J. Williams, Obstetrics, supra, and that Schulman’s experience and knowledge entitled him to render his opinion on the correlation between high pelvic instrumental deliveries and shoulder dystocia. We further note that given that the court overruled the defendant’s objections at trial, the plaintiff was not alerted to the necessity of preserving any claims. Accordingly, the defendant’s challenges to this appeal on procedural grounds lack merit.

       Connecticut Code of Evidence § 7-2 provides: “A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.”

       Connecticut Code of Evidence § 7-4 provides in relevant part: “(a) . . . An expert may testify in the form of an opinion and give reasons therefor, provided sufficient facts are shown as the foundation for the expert’s opinion.
      “(b) . . . The facts in the particular case upon which an expert bases an opinion may be those perceived by or made known to the expert at or before the proceeding. The facts need not be admissible in evidence if of a type customarily relied on by experts in the particular field in forming opinions on the subject. The facts relied on pursuant to this subsection are not substantive evidence, unless otherwise admissible as such evidence.

       In quoting that passage, we note that Schulman opined that midpelvic and high pelvic deliveries are synonymous terms.

       To the extent that the court in its memorandum of decision found that Schulman did not rely on J. Williams, Obstetrics, supra, or that his reliance on that treatise was misplaced, we disagree with both determinations. As we will discuss, it can be inferred that Schulman relied on J. Williams, Obstetrics, supra. Moreover, whether Schulman properly relied on that treatise in rendering his opinion went to the weight and not to the admissibility of the testimony. See Hayes v. Decker, 66 Conn. App. 293, 302-303, 784 A.2d 417 (2001) (“ ‘judge should admit [medical] testimony when there are good grounds for [the] expert’s conclusion, even if the judge thinks that there are better grounds for some alternative conclusion’ ”), cert. granted on other grounds, 259 Conn. 928, 793 A.2d 253 (2002).

       Complicating the situation is the fact that during the trial, the court overruled the defendant’s objections to Schulman’s testimony and accepted the plaintiffs argument that Schulman’s conclusion was derived from J. Williams, Obstetrics, supra. On the basis of the court’s rulings, the plaintiff had no reason to further question Schulman about the names or content of other peer review articles, nor was the plaintiff alerted to the necessity of doing so. Moreover, the court’s ruling demonstrates that it permitted Schulman’s testimony regarding the statistical relationship between high pelvic instrumental deliveries and shoulder dystocia because of Schulman’s experience and knowledge in the field of obstetrics and gynecology. Had the court sustained the defendant’s objections in the first place, then the plaintiff presumably would have had the opportunity to present further support for Schulman’s opinion or to introduce additional medical texts. In setting aside the verdict, however, the court essentially reversed its evidentiary ruling, thereby depriving the plaintiff of the opportunity during trial to correct any impropriety.

       We reiterate the difficulty that this situation presents. On the basis of the court’s rulings during trial, it was unnecessary for the plaintiff to make any such showing, nor was the plaintiff aware of the need to do so.

       The plaintiff also argues that Schulman’s testimony was admissible because he utilized the technique of “differential diagnosis” in arriving at the conclusion that the high pelvic instrumental delivery caused the shoulder dystocia.

       The defendant now argues in its brief that Schulman “was qualified in obstetrics, but the evidence does not show that he had ever performed a mid- or high-pelvic delivery that resulted in shoulder dystocia on one of his patients, that he had ever researched or written on the subject of statistical associations between instrumental deliveries and shoulder dystocia, that he had ever acquired any data upon which he could determine statistical associations for himself, or that he had any special knowledge or experience on the subject.”
      We first note the defendant had ample opportunity to challenge Schulman’s credentials during cross-examination. Given Schulman’s career of forty years in the field of obstetrics and gynecology, his roles as chairman of the department of obstetrics and gynecology at two hospitals, the fact that he has delivered thousands of babies, is a member of the American College of Obstetricians and Gynecologists and, moreover, has written almost 200 scientific articles, more than twenty of which are dedicated to the subject of labor, Schulman was more than qualified to testify as an expert. See Blanchard v. Bridgeport, 190 Conn. 798, 808, 463 A.2d 553 (1983).

       The plaintiff sought reinstatement of the jury’s verdict and damages award. We note the plaintiffs alternative argument that in the event that we decline to reinstate the jury’s verdict, she nonetheless is entitled to a new trial. The plaintiff further contends that if we grant her a new trial, then she should be permitted to amend her complaint. Because we agree with the plaintiffs primary claim that the jury’s verdict should be reinstated, we need not address her alternative claim of relief.