Jury Documents Are Key To Appellate Review

November 8, 2010 Published Work
Connecticut Law Tribune, Vol. 36, No. 45


In every medical malpractice case, the lawyers carefully present their evidence and craft suggested language for the jury charge. But if the lawyers stop there and overlook how the jury should express its verdict, they risk losing the ability to uncover errors committed by the jury and having the trial or appellate court overturn a verdict because of those errors.

How the jury is asked to articulate its decision can make a critical difference when a party seeks post-trial or appellate relief. Medical malpractice cases can pose particular challenges to ensuring that an appellant's good legal arguments are not lost due to poor crafting of the verdict forms. The wrong jury interrogatories can also prevent the appellee from holding onto its hard-fought victory.

General Verdict Rule
A lawyer proposing a verdict form to the trial court must consid­er the impact of the general verdict rule, defined by the Con­necticut Supreme Court in Curry v. Burns, 225 Conn. 782 (1993). If, for example, the jury returns a general verdict for the plaintiff ("We, the jury, find the issues for the plaintiff"), and the plaintiff asserted both a medical negligence and breach of contract theory of recovery, a claim of error affecting one of the causes of action but not the other will be disregarded by a reviewing court.

The defendant might have an excellent argument that the trial court misstated the law of medical causation in the charge on medical malpractice, or the court erred in allowing the plaintiff to claim the health care provider breached a contract (triggering the longer statute of limitations for contract claims). Yet, unless there is a separate verdict on each count, including the one affected by trial court error (or, if there is a general verdict, the appellant satisfies the burden of showing error in every cause of action), the appellate court will assume that an error af­fecting one cause of action had no effect on the verdict because the jury could have found for the plaintiff on another untainted cause of action.

The same problem arises if there is a gen­eral verdict for the defendant, the plaintiff appeals, and the jury could have found for the defendant either because there was no breach of duty or because of a statute of limi­tations special defense where the jury de­cided when the cause of action was discov­ered. Without separate jury findings on the medical malpractice claim and the special defense, an error affecting only one will be deemed harmless. If you find your­self in federal court, it is impor­tant to know that Maryland v. Baldwin, 112 U.S. 490 (1884), established the opposite rule: harmful error affecting any of the claims or defenses in the case will result in reversal of a general verdict because the court cannot be sure that the er­ror did not affect the verdict. Some federal appeals courts have devised their own vari­ants of the rule, however, out of concern over reversing verdicts for minor errors. The 2nd Circuit, for instance, will uphold a general verdict in a case involving multiple claims or theories where the court is confident that the verdict was "not substantially influenced by the alleged error." Bruneau v. South Kortright Central School District, 163 F.3d 749 (2d Cir. 1998).

Specifications of Negligence
It is easy to overlook a signifi­cant limitation on Connecticut's general verdict rule: it does not apply to error af­fecting one of multiple theories of liability within a single count. If the only cause of action is a tort claim for medical negligence, and the jury is charged to consider multiple specifica­tions of alleged negligence that were pleaded in the complaint but not itemized on the jury verdict forms, an error in submitting even one of those specifications to the jury is sufficient to obtain a new trial. See Curry, supra; Green v. H.N.S. Mgmt. Co., 91 Conn. App. 751 (2005). This rule of reversible error arises from the duty of a trial court not to submit any issue to the jury where the evi­dence would not reasonably support a find­ing for the plaintiff. Goodmaster v. Houser, 225 Conn. 637 (1993); Mack v. Perzanowski, 172 Conn. 310 (1977).

It would appear that this rule could be sidestepped simply by having all specifica­tions or theories of negligence itemized as jury interrogatories, but in practice, the trial court or the parties may prefer to submit a more general question whether the health care provider breached the applicable pro­fessional standard of care. Courts have rec­ognized that multiple specifications of neg­ligent conduct in support of a single cause of action are often so intertwined as to make it difficult for a jury to consider them indi­vidually rather than as a group. Curry, supra; Green, supra; Ziman v. Whitley, 110 Conn. 108 (1929).

Jury interrogatories can also sometimes backfire on a party. Consider what happens if a jury finds for the plaintiff and chooses in its interrogatory answers between two alterna­tive theories of tort liability for a single cause of action, but the evidence does not support the jury's chosen theory. The Supreme Court held in Suarez v. Dickmont Plastics Corp., 242 Conn. 255 (1997), that the defendant was en­titled to judgment on that cause of action. It made no difference that the evidence might have supported the alternative theory had it been selected by the jury. Before asking the jury to make a finding, it is best first to con­sider whether that finding has support in the record.

Inconsistent Verdicts
Jury interrogatories addressing multiple theories of recovery can help a reviewing court understand the jury's thought process in arriving at a verdict and isolate errors for appellate scrutiny. At the same time, how­ever, the interrogatories can highlight areas of jury confusion that might require a trial or appellate court to order a new trial. In civil cases, inconsistent answers to jury interroga­tories are a ground for a new trial. A verdict cannot rest on a finding that contradicts a separate finding by the jury on the same issue. Magnan v. Anaconda Indus Inc., 193 Conn. 558, 577 (1984). For example, a jury cannot find a breach of an alleged contrac­tual commitment at the same time it decides, when answering another interrogatory, that the parties did not enter into a binding con­tract. Marron & Sipe Bldg. & Contracting Corp. v. Flor, 22 Conn. App. 689, 710-12 & n.9 (1990).

It is clear that jury interrogatories can greatly assist the parties' efforts to guide the jury's thinking, avoid the effects of the gen­eral verdict rule, and highlight the harm that a trial court ruling may have had on the par­ties' case. But use of interrogatories requires careful thought and planning to avoid unin­tended results.

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