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`DOCKET NO.: NNH-CV-14-6045902-S
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`SHERI FERGUSON, ET AL
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`V.
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`MICHELLE PEREZ, M.D., ET AL
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`SUPERIOR COURT
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`JUDICIAL DISTRICT OF
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`NEW HAVEN AT NEW HAVEN
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`OCTOBER 12, 2018
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`PRELIMINARY REQUEST TO CHARGE
`
`
`The Defendants, Edward Toffolon, M.D. and Connecticut GI, PC, hereby submit the
`below preliminary requests to charge. The defendants reserve the right to add, amend
`or remove the requested jury instructions up until the final determination is made by
`the Court at a charge conference and/or hearing.
`
`INTRODUCTION
`
`Ladies and gentlemen, it now becomes my duty to instruct you on the law which you
`are to apply to the facts in this case. In doing so, it is necessary that I state all the
`general principles applicable.
`
`In doing so, it is necessary that you will also observe that I am reading from my
`prepared notes. During your deliberations you will have a copy of my charge so you
`should not take any notes while I read the charge to you. Instead, I ask that you,
`please, listen carefully.
`
`FUNCTION OF THE COURT AND JURY
`
`You, as the jury, and I, as the Court, have separate functions. You are the sole judges
`of the facts. It is your duty to find the facts. You are to consider the testimony you
`heard and the exhibits that were submitted and draw your own conclusions as to what
`the ultimate facts are.
`
`You are allowed to draw natural, logical and reasonable inferences from facts which you
`find proved, but you may not go outside the evidence to find facts nor resort to
`guesswork, speculation or conjecture.
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`Sympathy for or prejudice against either party has no place in this case and should not
`influence your deliberations in any way.
`
`It is my function and duty to instruct you on the law applicable to the case. You must
`apply the law as I give it to you to the facts you find proved.
`
`DUTY TO FOLLOW THE LAW
`
`It is your duty to follow my instructions and conscientiously apply the law as I give it to
`you to the facts as you find them in order to arrive at your ultimate verdict. If you
`should have a different idea of what the law is or even what you feel is ought to be,
`you must disregard your own notions and apply the law as I give it to you.
`
`The parties are counting on having their claims decided according to particular legal
`principles and legal standards that are the same for everyone, and those are the
`standards I will give you and that you must follow.
`
`If what counsel said about the law differs from what I tell you, you will dismiss that
`from your minds. You must decide this case based only on the law that I furnish to you
`and on the basis of all of the law as I give it to you regardless of the order of my
`instruction.
`
`You must not single out any particular instruction or give one more or less emphasis
`that any other, but rather must apply all of my instructions on the law to the facts as
`you find them. You are to consider all the instructions as a whole and regard each in
`the light of all the others.
`
`The order in which the instructions are given has no significance to their relative
`importance.
`
`DUTY TO DECIDE ON THE EVIDENCE
`
`You are to determine what the facts are by careful consideration of all the evidence
`submitted and based solely upon that evidence giving to each part of the evidence the
`weight you consider it deserves in reaching your ultimate conclusion.
`
`When I say evidence, I include the following: testimony by witnesses in court, either by
`live testimony or by videotape. The testimonial evidence includes both what was said
`on direct examination and what was said on cross-examination, without regard to which
`party called the witness; exhibits that have been received into evidence as full exhibits
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`including any pictures or documents that are full exhibits; facts that the parties have
`stipulated to.
`
`There are a number of things that may have been seen or heard during the trial which
`are not evidence and which you cannot rely on as evidence in determining the facts in
`this case.
`
`For example, the statements made by the lawyers including statements made both in
`their opening statements and in their closing arguments are not evidence. A question is
`not evidence. It is the answer not the question or any assumptions made in the
`question that is evidence. Testimony that was offered but refused by me must not be
`relied upon as evidence in resolving the case.
`
`Also, some evidence may have come before you in error, and at the time that occurred
`I ordered that evidence stricken and told you that you must disregard it. That evidence
`is not part of this case, and you may not consider that evidence in reaching your
`verdict.
`
`Questions and objections by lawyers are not evidence and may not be considered in
`deciding what the facts are. Attorneys have a duty to their clients to object when they
`believe the rules of evidence so warrant. You should not be influenced by the objection
`or the Court’s ruling on it.
`
`Your duty is to decide the case based on what has been admitted into evidence in this
`courtroom only and not on any information about the issues that was not presented
`into evidence here.
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`It is my right to make comments to you on the evidence, but where I do that such
`comments are merely to suggest to you what point of law or what controversy I am
`speaking about. If I refer to certain fact or certain evidence in the case do not assume
`that I mean to emphasize those facts or that evidence and do not limit your
`consideration to the things that I may have mentioned.
`
`Likewise, you should attach no importance to it if I should mention one party more than
`the other. If I should overlook any evidence in the case you’ll supply it from your own
`recollection. If I incorrectly state anything about the evidence in relation to what you
`remember you should apply your own recollection and correct my error.
`
`In the same way what any of the lawyers may have said in their respective summaries
`to you as to the facts or evidence in the case should have weight with you only if their
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`recollection agrees with your own otherwise it’s your own recollection of the facts and
`evidence which should have weight in your deliberations.
`
`DIRECT AND CIRCUMSTANTIAL EVIDENCE
`
`There are, generally speaking two types of evidence from which a jury can properly find
`the truth as to the facts of the case. One is direct evidence such as the testimony of an
`eye witness. The other is indirect or circumstantial evidence, that is, the inferences
`which may be drawn reasonably and logically from the proven facts.
`
`Let me give you an example of what I mean by direct evidence and circumstantial
`evidence. If you’re looking out a third floor window and you see smoke rising outside
`the window that’s direct evidence that there is smoke outside. It is also circumstantial
`evidence that there is a fire of some sort below the window.
`
`As a general rule the law makes no distinction between direct and circumstantial
`evidence but simply requires that the jury find the facts in accordance with a
`preponderance of all the evidence in the case, both direct and circumstantial. Thus,
`both direct and circumstantial evidence are permissible evidence, and each type should
`be treated equally.
`
`In your consideration of the evidence you are not limited to the bald statements of the
`witnesses, that is, the exact words that they use.
`
`On the contrary, you are permitted to draw from facts which you find to have been
`proven such reasonable inferences as seem justified in the light of your experience.
`
`While you may make inferences and rely on circumstantial evidence you should be
`careful not to resort to guesswork or speculation or conjecture to determine the facts in
`the case.
`
`Now, I will discuss some guidelines as to how you should consider the evidence
`presented in this case.
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`CREDIBILITY OF WITNESSES
`
`The credibility of witnesses and the weight to be given to their testimony are matters
`for you as jurors to determine; however, there are some principles that you should keep
`in mind.
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`No fact is, of course, to be determined merely by the number of witnesses who testify
`for or against it; it is the quality and not the quantity of testimony that controls.
`
`In weighing the testimony of each witness you should consider the witness’s
`appearance on the stand and whether the witness has an interest of whatever sort in
`the outcome of the trial.
`
`You should consider a witness’s opportunity and ability to observe facts correctly and to
`remember them truly and accurately, and you should test the evidence each witness
`gives you by your own knowledge of human nature and the motives that influence and
`control human actions.
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`You may consider the reasonableness of what the witness says and the consistency or
`inconsistency of his or her testimony. You may consider his or her testimony in relation
`to facts that you find to have been otherwise proven.
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`You may believe all of what a witness tells you, some of what a witness tells you or
`none of what a particular witness tells you. You need not believe any particular number
`of witnesses, and you may reject uncontradicted testimony if you find it reasonable to
`do so.
`
`In short, you are to apply the same considerations and use the same sound judgment
`and common sense that you use for questions of truth and veracity in your daily life.
`
`Authority
`Connecticut Judicial Branch Civil Jury Instructions § 2.5-1.
`
`EXPERT WITNESSES
`
`We have had in this case the testimony of a number of expert witnesses. Expert
`witnesses such as doctors are people who, because of their training, education, and
`experience have knowledge beyond that of the ordinary person.
`
`Because of that expertise in whatever field they happen to be in experts are allowed to
`give their opinions. Ordinarily a witness cannot give an opinion about anything but
`rather is limited to testimony as to the facts in that witness’s personal knowledge.
`
`The experts in this case have given opinions; however, the fact that these witnesses
`may qualify as experts does not mean that you have to accept their opinions. You can
`accept their opinions or reject them.
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`In making your decision whether to believe an expert’s opinion you should consider the
`expert’s education, training and experience in the particular field.
`
`The information available to the expert including the facts the expert had and the
`documents or other physical evidence available to the expert, the expert’s opportunity
`and ability to examine those things, the experts ability to recollect the activity and facts
`that form the basis for the opinion and the expert’s ability to tell you accurately about
`the fact, activity and the basis for the opinion.
`
`You should ask yourselves about the methods employed by the expert and the reliability
`of that result. You should further consider whether the opinions stated by the expert
`have a rational and reasonable basis in the evidence.
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`Expert opinion must be more than mere speculation or conjecture. Opinions based on
`speculation or conjecture cannot support the plaintiff’s burden of proof.
`
`Based on all of those things together with your general observation and assessment of
`the witness it is then up to you to decide whether or not to accept the opinion. You may
`believe all, some or none of the testimony of an expert witness. In other words, an
`expert’s testimony is subject to your review like that of any other witness.
`
`An expert witness may state an opinion in response to a hypothetical question, and the
`experts have done so in this case. A hypothetical question is one in which the witness is
`asked to assume that certain facts are true and to give an opinion based on those
`assumptions. The value of the opinion given by an expert in response to a hypothetical
`question depends upon the relevance, validity and completeness of the facts he was
`asked to assume.
`
`The weight that you give to the opinion of an expert will depend on whether you find
`that the facts assumed were proven and whether the facts relied on in reaching the
`opinion were complete or whether material facts were omitted or not considered. Like all
`other evidence an expert’s answer to a hypothetical question may be accepted or
`rejected in whole or in part according to your best judgment.
`
`Authority
`Connecticut Judicial Branch Civil Jury Instructions § 2.5-3.
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`FALSE TESTIMONY
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`If you believe that a witness testified falsely as to a part of his or her testimony you
`may choose to disbelieve other parts of his or her testimony or the whole of it, but you
`are not required to do so.
`
`You should bear in mind that inconsistencies and contradictions with a witness’s
`testimony or between that testimony and other evidence do not necessarily mean
`that the witness is lying.
`
`Failures of memory may be the reason for some inconsistencies and contradictions.
`Also, it is not uncommon for two honest people to witness the same event yet perceive
`or recall things differently.
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`Yet, if you find that a witness has testified falsely as to an issue you may, of course,
`take that into account in assessing the credibility of the remainder of his or her
`testimony.
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`Authority
`Connecticut Judicial Branch Civil Jury Instructions § 2.5-1.
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`MEDICAL RECORDS
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`Also, in this case some of the medical evidence has been presented in the form of
`written reports by doctors who treated Mr. Porcaro. There is a statute that provides
`that such written reports may be used in court. That statute was enacted so that
`persons claiming injury would not have to take doctors away from their medical duties
`in order to testify in court.
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`Since the use of reports rather than testimony in court is permitted by this statute you
`should not draw any unfavorable inferences from the use of such reports rather than
`the live testimony of certain medical practitioners.
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`DEPOSITION
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`While most of the witnesses whose testimony has been presented to you were here to
`testify in person, the testimony of Dr. Prezioso was presented to you by the showing of
`a videotape of questions asked and answers given by that witness under oath at an
`earlier time.
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`Testimony that is presented in this manner may be accepted or rejected by you in the
`same way as the testimony of witnesses who have been physically present in court.
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`OBJECTIONS/SIDEBAR
`
`
`At various times throughout the trial counsel for the parties made various objections to
`questions asked of witnesses. You should have no resentment toward any of the
`attorneys who raised such objections. In the interest of justice and in their duty to
`represent their respective clients they were fully entitled to raise these objections when
`they believed they were
`warranted.
`
`Also, throughout the trial, ladies and gentlemen, there were discussions at sidebar or I
`may have excused you from the courtroom while the attorneys conferred with me
`outside of your hearing or presence on a point of law or an objection to the evidence.
`This is perfectly appropriate occurrence during a trial and necessary to the proceedings.
`You are not to speculate about what was discussed or bear ill will toward any attorney
`who requested a sidebar conference or that the jury be excused.
`
`
`PARTIES
`
`The defendants in this case are: Michelle Perez, M.D., Midstate Medical Center,
`Emergency Medicine Physicians of New Haven County, LLC, The Hospital of Central
`Connecticut, Edward Toffolon, M.D., and Connecticut GI, P.C.
`
`For the remainder of my charge to you I am not going to refer to the institutional
`defendants - Midstate Medical Center, Emergency Medicine Physicians of New Haven
`County, LLC, The Hospital of Central Connecticut, and Connecticut GI, P.C. - rather I will
`refer to the individual physicians who’s care is at issue in this case – Dr. Perez, Dr. Karp
`and Dr. Toffolon. This is because, under our law, the liability of the institutional
`defendants will depend upon your finding as to the individual doctor associated with the
`group. Midstate Medical Center and Emergency Medicine Physicians of New Haven
`County, LLC’ liability is related to Dr. Perez’s care. Connecticut GI, P.C.’s liability is
`related to Dr. Toffolon’s case. In Dr. Karp’s case, he is not a defendant, but his care is
`the controlling issue for the liability of The Hospital of Central Connecticut.
`
`In other words, if you find Dr. Perez or Dr. Toffolon individually liable then I instruct you
`to also find their corresponding corporate entities liable as well. The Hospital of Central
`Connecticut is responsible for Dr. Karp’s care and treatment of the plaintiff.
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`If on the other hand you do no find the individual physician responsible then his or her
`related corporate entities will also be found not to be liable for the individual doctor’s
`acts or omissions.
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`You are to treat all the parties equally in your determination of the issues. You may not
`view the plaintiff as any different than the defendant, The Hospital of Central
`Connecticut, for example, simply because the defendant is not a person. A corporation
`is to be treated as a person. You are to determine the issues in this case only upon the
`evidence presented and not the legal status of the parties.
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`BURDEN OF PROOF - CLAIMS
`
`The party making a claim has the burden of proof with respect to that claim. Thus, the
`plaintiff has the burden of proving each essential element of the cause of action upon
`which the plaintiff relies. I will review those elements with you in a moment. The
`defendant does not have to present evidence to disprove the plaintiff’s claim.
`
`In order to meet his burden of proof a party must satisfy you that his claims on an issue
`are more probable than not. You may have heard in criminal cases that proof must be
`beyond a reasonable doubt, but I must emphasize to you that this is not a criminal
`case, and you are not deciding criminal guilt or innocence.
`
`In civil cases, such as this one, a different standard of proof applies. The party who
`asserts a claim has the burden of proving it by a fair preponderance of the evidence,
`that is, the better or weightier evidence must establish that more probably than not the
`assertion is true.
`
`In weighing the evidence keep in mind that it is the quality and not the quantity of
`evidence that is important. One piece of believable evidence may weigh so heavily in
`your mind as to overcome a multitude of less credible evidence. The weight to be
`accorded each piece of evidence is for you to decide.
`
`As an example of what I mean imagine in your mind the scales of justice. Put all the
`credible evidence on the scales regardless of which party offered it, separating the
`evidence favoring each side. If the scales remain even or if they tip against the party
`making the claim then that party has failed to establish that assertion. Only if the scales
`incline even slightly in favor of the assertion may you find the assertion has been
`proved by a fair preponderance of the evidence.
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`Authority
`Connecticut Judicial Branch Civil Jury Instructions § 2.6-1.
`Mankert v. Elmatco Products, Inc., 84 Conn. App. 456, 463-64, cert. denied, 271 Conn.
`925 (2004); Gulycz v. Stop & Shop Cos., 29 Conn. App. 519, 523, cert. denied, 224
`Conn. 923 (1992).
`
`Connecticut Judicial Branch Civil Jury Instructions § 3.2-1.
`Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 702 (1995); Holmes v.
`Holmes, 32 Conn. App. 317, 318, cert. denied, 228 Conn. 902 (1993).
`
`MEDICAL MALPRACTICE
`
`The plaintiffs in this case, Sheri and Robert Ferguson, claim that they have been injured
`through the negligence of the defendants, Michelle Perez, M.D., Midstate Medical
`Center, Emergency Medicine Physicians of New Haven County, LLC, The Hospital of
`Central Connecticut, Edward Toffolon, M.D. and Connecticut GI, P.C. Negligence is the
`violation of a legal duty which one person owes to another.
`
`The legal duty that a health care provider owes to a patient has been established by
`our legislature.
`
`We have a statute which provides that "[i]n any civil action to recover damages
`resulting from personal injury . . . in which it is alleged that such injury resulted from
`the negligence of a health care provider . . . the claimant shall have the burden of
`proving by a preponderance of the evidence that the alleged actions of the health care
`provider represented a breach of the prevailing professional standard of care for that
`health care provider. The prevailing professional standard of care for a given health
`care provider shall be that level of care, skill and treatment which, in light of all relevant
`surrounding circumstances, is recognized as acceptable and appropriate by reasonably
`prudent similar health care providers."
`
`Because the health care providers in this case have all been certified by the appropriate
`American boards as specialists, a "similar health care provider" in this case is, according
`to our statute, "one who: 1) is trained and experienced in the same specialty; and 2) is
`certified by the appropriate American board in the same specialty."
`
`In this case, the claims of negligence are made against individual health care providers:
`Dr. Perez, Dr. Karp, and Dr. Toffolon. The institutional defendants have been sued in
`their capacity as the employers of the individual health care providers. There are no
`independent claims of negligence against the institutional defendants.
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`The prevailing professional standard of care that applies to each individual defendant is
`the level of care, skill and treatment which, in light of all relevant surrounding
`circumstances, is recognized as acceptable and appropriate by reasonably prudent
`board certified similar healthcare provider.
`
`In this case, the prevailing professional standard of care that applies to Dr. Perez and
`Dr. Karp is that level of care, skill and treatment which, in light of all relevant
`surrounding circumstances, is recognized as acceptable and appropriate by reasonably
`prudent board certified Emergency Medicine Specialist.
`
`Regarding Dr. Toffolon, the prevailing professional standard of care that applies is that
`level of care, skill and treatment which, in light of all relevant surrounding
`circumstances, is recognized as acceptable and appropriate by reasonably prudent
`board certified gastroenterologist.
`
`This standard applies to both diagnosis and treatment. In order to establish liability, the
`plaintiff must prove by a fair preponderance of the evidence that the defendants'
`conduct represented a breach of the applicable prevailing professional standard of care
`that I have just described.
`
`The standard of care is the standard prevailing at the time of the treatment in question.
`The treatment in question occurred in July 2012.
`
`Physicians are held to the same prevailing professional standard of care applicable to
`their respective specialty across the nation. For this reason, the particular state in which
`an expert witness has practiced is unimportant. You should consider the testimony of all
`the experts who have testified in light of their familiarity or lack of familiarity with the
`standard of care to which I have referred.
`
` A
`
` health care provider does not guarantee a good medical result. A poor medical result
`is not, in itself, evidence of any wrongdoing by the health care provider. The question
`on which you must focus is whether the defendant has breached the prevailing
`professional standard of care.
`
`As I have already mentioned, the plaintiff has the burden of proving by a fair
`preponderance of the evidence that the defendants’ conduct represented a breach of
`the prevailing professional standard of care. Under our law, the plaintiff must prove this
`by expert testimony. More specifically, he must establish through expert testimony both
`what the standard of care is and his allegation that the defendants’ conduct
`represented a breach of that standard.
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`Finally, he must establish, through expert testimony, that the breach of that standard of
`care was the proximate cause of the injuries that he claims.
`
`<Review the specifications of negligence in the complaint.>
`
`Authority
`Connecticut Judicial Branch Civil Jury Instructions § 3.8-3.
`
`SPECIFIC ALLEGATIONS OF NEGLIGENCE
`
`The complaint filed by the plaintiff alleges a number of specific ways in which the
`defendants were negligent. To prove negligence against any one defendant it is not
`necessary for the plaintiff to prove that that defendant was negligent in all of the ways
`claimed. Proof that the defendant was negligent in just one of the ways claimed is
`sufficient to prove negligence.
`
`At the same time the plaintiff’s proof is limited to the allegations of the complaint. Thus,
`the plaintiff cannot recover in this case for something that was not specifically set out in
`his complaint as a claim of negligence.
`
`In other words, if you find that a defendant deviated from the standard of care in some
`way which is not alleged by the plaintiff in his complain you may not find in favor of the
`plaintiff as to that issue.
`
`COMPARATIVE NEGLIGENCE
`
`In this case, the defendants have filed special defenses alleging that the plaintiff's
`injuries were legally caused by the plaintiff's own negligence. The defendant must
`prove the elements of this special defense by a preponderance of the evidence.
`Specifically, the defendant must prove that the plaintiff was negligent in one or more of
`the ways specified in the special defense and that such negligence was a legal cause of
`any of the plaintiff's injuries.
`
`Authority
`Connecticut Judicial Branch Civil Jury Instructions §3.5-1.
`
`DEFENDANT’S SPECIFICATION OF NEGLIGENCE
`
`The special defenses filed by the defendants allege a number of specific ways in which
`the plaintiff was negligent. I will read these specific allegations to you shortly. To
`establish that the plaintiff was negligent, it is not necessary for the defendant to prove
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`all of these specific allegations. The proof of any one of these specific allegations is
`sufficient to prove negligence.
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`
`Authority
`Connecticut Judicial Branch Civil Jury Instructions §3.5-2.
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`PLAINTIFF’S DUTY OF CARE
`
` have previously instructed you that the defendant is under the obligation to exercise
`the care which a reasonably prudent similarly situated health care provider would use
`under the circumstances. The plaintiff is also under the same obligation. A plaintiff is
`negligent if the plaintiff does something which a reasonably prudent person would not
`have done under similar circumstances or fails to do that which a reasonably prudent
`person would have done under similar circumstances.
`
`<Read specific allegations of negligence as to Dr. Perez, Dr. Karp and Dr. Toffolon
`separately>
`
`Authority
`Connecticut Judicial Branch Civil Jury Instructions §3.5-3.
`
`PROXIMATE CAUSE
`
`The plaintiff must prove that any injury for which he seeks compensation from the
`defendant was caused by any or all of the defendants.
`
`The first issue for your consideration is, "Was the plaintiff injured?" If the answer is no,
`you will render a verdict for the defendant. If the answer is yes, you will proceed to the
`second issue, which is "Were such injuries caused by the negligence of the defendant?"
`
`This is called "proximate cause."
`
`Negligence is a proximate cause of an injury if it was a substantial factor in bringing the
`injury about. In other words, if a defendant’s negligence contributed materially and not
`just in a trivial or inconsequential manner to the production of the injury then his
`negligence was a substantial factor.
`
`If you find that the defendant’s negligence was not a substantial factor in bringing
`about the injury suffered by the plaintiff you will render a verdict in favor of the
`defendant; however, if you find that a defendant’s negligence was a substantial factor
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`in causing injury to the plaintiff you will consider the allocation of liability, assessment of
`damages, etcetera.
`
`The existence of a proximate cause of an injury is determined by looking from the injury
`to the negligent act complained of for the necessary causal connection. This causal
`connection must be based upon more than conjecture or surmise.
`
`Authority
`Connecticut Judicial Branch Civil Jury Instructions § 3.1-1.
`Winn v. Posades, 281 Conn. 50, 56 (2007); Shaughnessy v. Morrison, 116 Conn.
`661, 666 (1933)
`
`PROXIMATE CAUSE - MULTIPLE CAUSES
`
`Under the definitions I have given you, negligent conduct can be a proximate cause of
`an injury if it is not the only cause, or even the most significant cause of the injury,
`provided it contributes materially to the production of the injury, and thus is a
`substantial factor in bringing it about.
`
`Therefore, when a defendant's negligence combines together with one or more other
`causes to produce an injury, such negligence is a proximate cause of the injury if its
`contribution to the production of the injury, in comparison to all other causes, is
`material or substantial.
`
`When, however, some other causes contribute[s] so powerfully to the production of an
`injury as to make the defendant's negligent contribution to the injury merely trivial or
`inconsequential, the defendant's negligence must be rejected as a proximate cause of
`the injury, for it has not been a substantial factor in bringing the injury about.
`
`Authority
`Connecticut Judicial Branch Civil Jury Instructions § 3.1-2.
`
`PROXIMATE CAUSE - INTERVENING CAUSES
`
`In this case, the defendants assert that they did not legally cause the plaintiff’s injury
`because another cause, proceeding entirely from an independent source, intervened to
`produce that injury after the defendants own alleged acts of negligence had already
`occurred. In particular, the defendants claim that the plaintiff’s injury was legally
`caused by the subsequent surgery performed on July 22, 2012. Negligent conduct can
`be a proximate cause of an injury, even if it is not the nearest or the most immediate
`cause of the injury. Thus, when the act of a third person or some other intervening
`{W3051287} 
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`cause operates actively to produce the injury after the defendant’s negligent act or
`omission has been committed, the defendant’s negligence is a proximate cause of the
`injury if the following two part test is satisfied: First, the defendants negligence must
`have been a substantial factor in bringing about the plaintiff’s injury. Second, the
`plaintiff’s injury must have been harm of the same general nature as that which a
`reasonably prudent person in the defendant’s position should have anticipated.
`
`Authority
`Connecticut Judicial Branch Civil Jury Instructions § 3.1-3.
`Fleming v. Garnett, 231 Conn. 77, 86 (1994), citing Doe v. Manheimer, 212 Conn. 748,
`758 (1989).
`
`STRICKEN EVIDENCE
`
`Some evidence may have come before you in error, and at the time that occurred, I
`ordered that evidence stricken and told you that you must disregard it. That evidence is
`not a part of this case and you may not consider that evidence in reaching your verdict.
`
`Authority
`Connecticut Judicial Branch Civil Jury Instructions § 2.3-3.
`
`HYPOTHETICAL QUESTIONS
`
`An expert witness may state an opinion in response to a hypothetical question, and the
`experts have done so in this case. A hypothetical question is one in which the witness is
`asked to assume that certain facts are true and to give an opinion based on those
`assumptions. The value of the opinion given by an expert in response to a hypothetical
`question depends upon the relevance, validity and completeness of the facts (he/she)
`was asked to assume. The weight that you give to the opinion of an expert will depend
`on whether you find that the facts assumed were proven and whether the facts relied
`on in reaching the opinion were complete or whether material facts were omitted or not
`considered. Like all other evidence, an expert's answer to a hypothetical question may
`be accepted or rejected, in whole or in part, according to your best judgment.
`
`Authority
`Connecticut Judicial B