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DAVID KERVICK, EXECUTOR (ESTATE OF RUTH FARRELL) v. SILVER HILL HOSPITAL ET AL. (AC 29783)
Gruendel, Harper and Pellegrino, Js. Argued December 9, 2010--officially released May 3, 2011

(Appeal from Superior Court, judicial district of Stamford-Norwalk, Nadeau, J. [motion for summary judgment]; Tobin, J. [motion to strike, judgment, motion to set aside verdict].) Sandra J. Akoury, for the appellant (plaintiff). Catherine S. Nietzel, for the appellee (defendant Silver Hill Hospital). David J. Robertson, with whom, on the brief, were Madonna A. Sacco and Rachel E. Katz, for the appellee (defendant Ellyn Shander).

Opinion

GRUENDEL, J. The plaintiff, David Kervick, executor of the estate of Ruth Farrell (decedent), appeals from the judgment of the trial court rendered in favor of the defendants, Silver Hill Hospital (hospital) and Ellyn Shander, following a jury trial. The dispositive issues in this appeal are whether the court improperly (1) refused to poll the jury regarding possible exposure to pretrial publicity and (2) denied Kervick's motion for summary judgment as to the apportionment defendant,1 David Kervick, in his individual capacity.2 We reverse the judgment of the trial court. The following facts and procedural history are relevant to the disposition of this appeal. On January 21, 2002, the decedent admitted herself to the hospital for treatment for numerous illnesses, including major depression and personality disorder. At the time of her admission, the decedent was diagnosed with extremely high suicide ideation and had previously attempted suicide by hanging herself over the bathroom door of her hospital room. As such, the admitting doctor ordered that the decedent's bathroom door remain locked. Nonetheless, the day after the decedent's admission, Shander, the decedent's treating psychiatrist, ordered that the bathroom door be unlocked and reduced supervision of the decedent from full time to fifteen minute intervals. On January 28, 2002, the decedent committed suicide by hanging herself over the unlocked bathroom door in the same hospital room in which she had previously attempted to do so. On February 6, 2004, Kervick filed this medical malpractice action, claiming that the defendants had failed to meet the standard of care owed to the decedent as a patient of the hospital and that this failure resulted in the decedent's death.3 In June, 2004, the defendants filed apportionment complaints against Kervick, alleging that his negligence, ``abuse and hostile behavior'' toward the decedent were the proximate causes of her suicide.4 Subsequently, Kervick moved to preclude the defendants from presenting expert testimony as to the possible causal connection between his alleged behavior and the decedent's suicide. On November 14, 2007, the court granted Kervick's motion to preclude, finding that the defendants had failed to disclose their proffered experts in a timely manner. Then, on November 19, 2007, Kervick moved for summary judgment on the apportionment complaints arguing that, without expert testimony as to the possible causal link between his alleged behavior and the decedent's suicide, the defendants would be unable to prevail in their apportionment claims against him. Thereafter, the court denied Kervick's motion for summary judgment as untimely without considering further the merits thereof. On November 23, 2007, the Friday immediately fol-

lowing Thanksgiving, an extensive article (article) regarding the decedent's suicide was published in the New York Times. A. Cowan, ``Lawsuit Over a Suicide at a Hospital for the Elite,'' N.Y. Times, November 23, 2007, p. B1. At the time the article was published, the jury had been impaneled, although evidence was not scheduled to begin until November 27, 2007. Given the inflammatory nature of the article, Kervick believed that any juror exposed to the article's contents would be unfairly prejudiced. Thus, immediately upon appearing in court on November 27, 2007, counsel for Kervick requested that the court poll the jury as to its exposure to the article to determine whether any of the jurors had been unduly influenced thereby. The court denied the request to poll the jury, concluding that it would ``be more prudent simply to instruct them to ignore anything in the press or on the media.'' The jury then returned a verdict in favor of the defendants without considering the merits of the defendants' apportionment complaints. On February 25, 2008, the court denied Kervick's motions to set aside and to impeach the verdict, rendering judgment in favor of the defendants on November 5, 2008. This appeal followed. Kervick now claims that the court improperly declined to poll the jury regarding its exposure to the article and the possible influence the article may have had on the jury's impartial decision making. Additionally, Kervick claims that the court improperly denied his motion for summary judgment as untimely. We address each of these claims in turn. I Kervick first claims that the court improperly denied his request to poll the jury as to its exposure to the article. Specifically, he maintains that the court's refusal to poll the jury constituted an abuse of discretion, especially in light of the inflammatory nature of the article and the potential prejudice and undue influence that exposure would have on the jury.5 We agree. The following additional facts are relevant to the resolution of this claim. Counsel for Kervick first notified the court of the article on November 27, 2007, the day that evidence was scheduled to begin before the jury. It bears repeating that the jury had been impaneled at the time the article was published, although it is undisputed that a judge had not previously instructed the jury to avoid media coverage of the case.6 After Kervick's counsel requested that the jury be polled, the following colloquy ensued: ``The Court: I saw the article that appeared in the New York Times on Friday, the Friday after Thanksgiving, which I would expect for a lot of working people who get the Times at their office or read it on the train or whatever, would have been a day when they maybe failed to pick it up, because while it's not a holiday,

nevertheless, it's a, was a day when a lot of business activities closed. The stock market was only opened for half a day. . . . [The article] seemed to be, it didn't seem to be pro plaintiff or pro defendant. . . . There were some factual matters in there. Rather than asking the jury and calling their attention to the [article] . . . wouldn't it be more prudent simply to instruct them to ignore anything in the press or on the media? . . . ``[Kervick's Counsel]: I would like to have the court find out if anyone has read it. Because I don't know how people interpret what they read. I don't know if it was influential or not. . . . ``The Court: Well, I expect that if it comes to their attention that somebody has read it, then we'll be hearing about it. ``[Kervick's Counsel]: Well, how are we going to hear about it, unless we ask? *** ``The Court: Now, look, if you have an agreement and you came to me and you said: `We've agreed upon this procedure. This is what we want to do with respect to the article.' Then I might be wiling to listen. But the jurors are here. We're ready to hear evidence. If you don't have a plan, we're not [putting] one together at the last moment. . . . ``[Kervick's Counsel]: Judge . . . I don't think we need agreement of counsel on-- ``The Court: Well, you haven't convinced me that in light of the nature of the article, there's any need to make an inquiry.'' The court then declined to inquire further into whether the jury had read or otherwise been exposed to the article. Kervick now claims that the court's reasoning in denying the request to poll the jury demonstrates an abuse of discretion given the possible prejudice the article may have exacted on the jury. In support of his claim, Kervick argues that, without inquiring into whether any jurors read the article, there was no way of determining whether the jury had been unduly influenced before the start of trial. Before addressing the merits of Kervick's claim, we begin by setting forth the applicable standard of review and legal principles governing our analysis. Article first,

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