Zhuleku v. Naugatuck Valley Radiology Associates

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Zhuleku v. Naugatuck Valley Radiology Associates

NEXHMIJE ZHULEKU ET AL. v. NAUGATUCK
VALLEY RADIOLOGY ASSOCIATES ET AL.
(AC 47394)
Elgo, Moll and Seeley, Js.

Syllabus

The plaintiffs, following a jury trial, appealed from the trial court’s judgment
for the defendants in their medical malpractice action. The plaintiffs claimed,
inter alia, that the court abused its discretion in sustaining the defendants’
objection to their amended revised complaint. Held:

The trial court did not abuse its discretion in sustaining the defendants’
objection to the plaintiffs’ amended revised complaint, which had been filed
during jury selection and on the eve of the presentation of evidence, as
the court reasonably determined that the new allegations in the proposed
complaint would have worked an injustice to the defendants, who had no
prior notice regarding the proposed new claims.

The trial court did not abuse its discretion by refusing the plaintiffs’ request
to charge the jury that the plaintiff in a medical negligence case may prove
the standard of care and its breach through the testimony of the defendant,
as, even if this court were to agree with the plaintiffs that the court’s charge
was improper, the plaintiffs failed to brief the issue of harm adequately and,
thus, demonstrate that the alleged instructional error affected the verdict.

The trial court did not abuse its discretion by denying the plaintiffs’ request
to give a consciousness of liability instruction to the jury, as the record was
devoid of any evidence that supported the giving of such an instruction.
Argued January 15—officially released April 22, 2025

Procedural History

Action to recover damages for the defendants’ alleged
medical malpractice, and for other relief, brought to
the Superior Court in the judicial district of Waterbury,
where the court, Pierson, J., granted the plaintiffs’
motion to substitute Lauren Perugini, executrix of the
estate of the defendant Josephine Perugini, as a defen-
dant; thereafter, the court, Massicotte, J., sustained the
defendants’ objection to the plaintiffs’ filing of an
amended revised complaint; subsequently, the case was
tried to the jury before Massicotte, J., who granted
the defendants’ motion for a directed verdict as to the
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Zhuleku v. Naugatuck Valley Radiology Associates

substitute plaintiff; thereafter, verdict for the named
defendant et al., and the court, Massicotte, J., rendered
judgment for the defendants, from which the plaintiffs
appealed to this court. Affirmed.

Eddi Z. Zyko, for the appellants (plaintiffs).
Thomas J. Plumridge, with whom were Joseph M.
Walsh and, on the brief, Sally O. Hagerty, for the appel-
lees (named defendant et al.).

Opinion

SEELEY, J. In this medical malpractice action, the
plaintiffs, Nexhmije Zhuleku (Zhuleku) and her hus-
band, Fuat Zhuleku (husband), appeal from the judg-
ment of the trial court rendered after the court directed
the verdict in favor of the defendant Lauren Perugini
(substitute defendant), in her capacity as executrix of
the estate of the defendant Josephine Perugini (Peru-
gini), and, after a jury trial, in favor of the defendants
Naugatuck Valley Radiology Associates (NVRA)1 and
Gregory D. Gersten.2 The plaintiffs claim that the court
improperly (1) sustained the defendants’ objection to
their amended revised complaint and (2) instructed the
jury after denying their requests to charge. We disagree
and, accordingly, affirm the judgment of the court.
At trial, the jury was presented with evidence of the
following relevant facts. On May 18, 2016, Zhuleku
underwent a surgical procedure on her right leg, known
1
NVRA is also known as Naugatuck Valley Radiology.
2
On June 27, 2022, the court granted a motion to substitute Lauren Peru-
gini, in her capacity as executrix of Perugini’s estate, as a defendant in this
matter following Perugini’s death on November 5, 2021, during the pendency
of this action. We note that the estate of Josephine Perugini is mislabeled
as the ‘‘estate of Joseph Perugini’’ in the trial court file. For clarity in this
opinion, we refer to Lauren Perugini as the substitute defendant, to Josephine
Perugini as Perugini, and to NVRA, Gersten, and the substitute defendant
collectively as the defendants.
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as a laser vein ablation, at NVRA’s office in Prospect.
The procedure was performed by Gersten, a radiologist
employed by NVRA. Following this procedure, on May
24, 2016, Zhuleku called NVRA and, later that day,
received a call back from Perugini, a radiology techni-
cian employed by NVRA. Zhuleku claims that, during
this phone call, she reported that she was experiencing
pain and redness in relation to the procedure but that
Perugini told her to ‘‘be patient.’’ Several days later, on
May 29, 2016, Zhuleku was admitted to Saint Mary’s
Hospital in Waterbury, where she spent six days receiv-
ing treatment for an infection that was caused by the
ablation procedure before being discharged on June 4,
2016. She subsequently spent thirty days recovering at
a rehabilitation facility.
On July 17, 2018, the plaintiffs commenced this
action. On June 3, 2019, they filed a revised complaint
(operative complaint), which sets forth four counts: the
first three allege negligence against NVRA, Gersten, and
Perugini, respectively, for their conduct concerning
Zhuleku, and the fourth alleges negligence against those
defendants for their conduct pertaining to Zhuleku’s
husband. The allegations of negligence in the operative
complaint are premised on the failure of NVRA, Gersten,
and Perugini to provide appropriate postoperative care,
namely, their failure to respond in an appropriate man-
ner to Zhuleku’s phone call reporting her symptoms
by scheduling a postoperative visit and/or prescribing
antibiotics.
On January 22, 2024, without having filed a request for
leave to amend, the plaintiffs filed an amended revised
complaint pursuant to Practice Book § 10-62.3 The plain-
Practice Book § 10-62 provides: ‘‘In all cases of any material variance
3

between allegation and proof, an amendment may be permitted at any stage
of the trial. If such allegation was made without reasonable excuse, or if
the adverse party was actually misled thereby to his or her prejudice in
maintaining the action or defense upon the merits, or if such amendment
requires postponement of the trial or additional expense to the adverse
party and this is shown to the satisfaction of the judicial authority, such
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tiffs’ proposed amended revised complaint sought to
add three new counts of negligence per se against
NVRA, Gersten, and Perugini for their alleged violations
of certain state statutes and regulations, as well as
industry rules pertaining to radiologist technicians.4 At
the time that the plaintiffs sought to amend their com-
plaint, three days of jury selection already had taken
place and the parties had selected four jurors. On Janu-
ary 30, 2024, the court sustained the defendants’ objec-
tion to the amended revised complaint. Thereafter, the
case proceeded to a jury trial, which was held before
the court, Massicotte, J., on various days between Janu-
ary 31 and February 15, 2024. At trial, the plaintiffs
testified and presented testimony from their son; Gers-
ten; two medical doctors, Aaron Mark Fischman and
Peter Connolly; and several current and former employ-
ees of NVRA. The defendants presented testimony from
Harold Brem, a general surgeon. On February 8, 2024,
the defendants filed a motion for a directed verdict, in
which they asserted that the plaintiffs had failed to
establish a prima facie case with respect to the standard
of care. That same day, the court granted the motion,
in part, as to the substitute defendant and reserved
decision on the motion with respect to Gersten and
NVRA. On February 15, 2024, the jury returned a verdict
in favor of Gersten and NVRA, and, thereafter, the court
rendered judgment in favor of the defendants. This
amendment shall be made only upon payment of costs or upon such terms
as the judicial authority may deem proper; but in any other case, without
costs. Immaterial variances shall be wholly disregarded.’’
4
Specifically, the plaintiffs alleged, inter alia, that NVRA, Gersten, and
Perugini were negligent per se for violating (1) §§ 19a-14-40 through 19a-
14-43 of the Regulations of Connecticut State Agencies, which pertain to
medical records of patients and the obligations of licensed physicians with
respect to such records; (2) various statutes governing radiologist assistants;
(3) industry safety standards, as well as The American Registry of Radiologic
Technologists (ARRT) Standards of Ethics (2023), Code of Ethics § (6), p. 1;
and (4) NVRA’s written safety policies and written post ablation instruction.
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appeal followed.5 Additional facts and procedural his-
tory will be set forth as necessary.

I

The plaintiffs first claim that the court abused its
discretion by sustaining the defendants’ objection to
their amended revised complaint. Specifically, they
argue that they should have been permitted to file an
amended revised complaint pursuant to Practice Book
§ 10-62.6 Although the plaintiffs’ appellate brief is not
a model of clarity, we distill the plaintiffs’ claim to be
one asserting that the court erred because any variances
between the proposed amended revised complaint and
the operative complaint were immaterial. They also
contend that the defendants were not misled, that dis-
covery was complete, and that ‘‘[a]ll that would be
required [was] for the defendants to file their answer
to the three counts sounding in negligence per se if
they so [chose].’’ The plaintiffs further assert that ‘‘Con-
necticut courts have long recognized that a health care
provider may commit ordinary negligence, as opposed
to medical malpractice, in the course of treating a
patient or providing medical services,’’ suggesting that
expert testimony would not be needed to determine
5
Following oral argument before this court, the plaintiffs filed two notices
of supplemental authority pursuant to Practice Book § 67-10. The first notice,
dated January 27, 2025, cites Suprynowicz v. Tohan, 351 Conn. 75, 328 A.3d
646 (2025), which was decided the day prior to oral argument in this appeal,
for the proposition that a health care provider may commit ordinary negli-
gence, as opposed to medical malpractice, in the course of treating a patient.
The second notice, dated March 20, 2025, cites State v. Jones, 351 Conn.
324, 344, 330 A.3d 118 (2025), in which our Supreme Court determined that
the trial court did not abuse its discretion in admitting consciousness of
guilt evidence. The plaintiffs cite Jones in support of their assertion that
the trial court in the present case erred in failing to give an instruction on
consciousness of liability in a civil trial. In light of our resolution of the
claims raised on appeal, we are not persuaded that either case is apposite
to the present case.
6
See footnote 3 of this opinion.
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whether the defendants were negligent in their postop-
erative care of Zhuleku. (Internal quotation marks omit-
ted.) Thus, they argue that their proposed amendment
should have been permitted and that ‘‘there was no
‘sound reason’ ’’ for the court’s ruling.
The defendants counter that the court did not abuse
its discretion in precluding the plaintiffs from amending
their complaint to add new counts of negligence per
se while the parties were engaged in jury selection, as
the proposed new claims were ‘‘entirely distinct from
the medical negligence claims that actually had been
pleaded in the case to that time and would have caused
undue prejudice to the [defendants].’’7 The defendants
7
The defendants also point out that the plaintiff’s reliance on Practice
Book § 10-62 is misplaced, as that rule of practice allows for pleadings to
be amended at any stage of the trial to conform the pleading with the proof
presented at trial, so long as there is no material variance between the
amended pleading and the proof. According to the defendants, because jury
selection was ongoing at the time of the plaintiffs’ filing, there had been no
evidence presented and, hence, no ‘‘proof.’’ The defendants contend that
the plaintiffs, instead, should have filed a request for leave to amend their
complaint pursuant to Practice Book § 10-60. We agree. The issue before
us in this appeal is not whether the plaintiffs’ proposed amendment consti-
tuted a material variance from the operative complaint. Practice Book § 10-
62 permits a party to amend its pleadings in ‘‘all cases of any material
variance between allegation and proof,’’ which is a ‘‘departure of the proof
from the facts as alleged’’; (internal quotation marks omitted) Marchetti v.
Ramirez, 40 Conn. App. 740, 747, 673 A.2d 567 (1996), aff’d, 240 Conn. 49,
688 A.2d 1325 (1997); that causes the opposing party to be ‘‘prejudiced in
maintaining its defense, surprised by the proof or misled by the allegations
in the complaint . . . .’’ Id., 748. The purpose of such an amendment is for
a party, when certain conditions have been met, to avoid a potential reversal
of a verdict in its favor due to the existence of a material variance; see
Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814 (1969) (‘‘Whenever a
disparity between the allegations and the evidence develops, counsel should
move to amend the pleadings so that they conform with the evidence. Such
an amendment would obviate the possibility of a judgment being reversed
owing to the existence of a material variance.’’); and not, as the plaintiffs
seem to suggest, for a party simply to amend its complaint at any stage of
the proceedings so long as any variances between the operative complaint
and the proposed amendment are immaterial. The plaintiffs filed the pro-
posed amended revised complaint more than five years after initiating the
underlying action and before any evidence was presented. Their proposed
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note that, at the time of the proposed amendment, the
pleadings in the case had been closed for more than
four years, that the plaintiffs never had made an effort
to amend the complaint despite ongoing discovery in
the case, that permitting a change in ‘‘the theory of
the case . . . would have required new expert reviews,
additional depositions, including of experts already
deposed in the case, and other discovery,’’ and that
allowing the amendment on the eve of trial ‘‘would have
been fundamentally unfair’’ to the defendants, who had
no notice of the new claims and had prepared their
case for trial in reliance on the pleadings. We agree
with the defendants.
The following additional procedural history is rele-
vant to our resolution of this claim. The plaintiffs’ pro-
posed amended revised complaint sought to add three
new counts of negligence per se against NVRA, Gersten,
and Perugini based on violations of certain state stat-
utes and regulations, as well as industry rules pertaining
to radiologist technicians. The plaintiffs asserted that,
through extensive discovery, they became aware that
NVRA, Gersten, and Perugini had engaged in such viola-
tions and that these new allegations properly expanded
and amplified the allegations already pleaded.
On January 24, 2024, the defendants filed an objection
to the plaintiffs’ amended revised complaint, and the
plaintiffs subsequently filed a memorandum of law in
opposition to the defendants’ objection. On January
30, 2024, after hearing argument on the defendants’
amendment was therefore governed by Practice Book § 10-60 (a), not Prac-
tice Book § 10-62. See GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165,
180–81, 73 A.3d 742 (2013) (recognizing that leave to amend ‘‘ordinarily
[can] be obtained only in accordance with the provisions of Practice Book
§ 10-60’’). Nevertheless, regardless of whether Practice Book § 10-62 or Prac-
tice Book § 10-60 (a) applies, we conclude that the court undertook the
proper analysis when declining to allow the amended pleading, as we explain
in this opinion.
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objection, the court, Massicotte, J., sustained the objec-
tion, stating in relevant part: ‘‘So, in this case, what’s
changed is not just the facts. The amendments inject
new causes of action based on violation[s] of certain
regulations never previously mentioned in the original
complaint and allege that the defendants’ violations of
those statutes caused the harm to the plaintiff[s].

‘‘The plaintiffs’ original case is a medical malpractice
case in which there are competing experts on whether
the defendants violated the standard of care in such
case and whether . . . the violation caused the injur-
ies. The plaintiffs’ new allegations require the defen-
dants to defend the case on a different standard of care,
namely, their duty to keep records in accordance with
regulations and their duty to conform to radiology assis-
tant regulations. Defending against the additional
[causes of action] that the newly named statutes and
regulations create, [the] duties which were violated,
and which violations caused harm to the plaintiff[s],
are material changes that would lead [to] the defendants
[being] unprepared to defend.

‘‘The allegations would require substantial review and
consideration, and the defendants here deserve a fair
opportunity to decide if an additional expert is required
or to depose experts provided by . . . the plaintiff[s]
in this case. While it may be the case that the plaintiff[s]
asked questions of witnesses [at their depositions] as
to whether or not they kept records, those questions
aren’t necessarily related to the dut[ies] established by
the regulations. Although clearly, they are . . . they
could also support a violation of the standard of care
for medical doctors. And so, in defending against those
questions, there wasn’t notice that they would be used
for a different purpose.
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‘‘So . . . Practice Book § 10-3 (a)8 requires that when
any claim in a complaint is grounded on a statute, the
statute must be specifically identified by its number.
The plaintiffs’ [operative] complaint did not identify the
statutes and regulations at issue. Although our courts,
and this is a quote, ‘have repeatedly recognized that
the rule embodied in Practice Book § 10-3 [(a)] is direc-
tory and not mandatory, notice is the critical consider-
ation in such instances . . . .

‘‘ ‘As long as the defendant is sufficiently apprised of
the nature of the action, the failure to comply with
the directive of Practice Book § 10-3 [(a)] will not bar
recovery.’ Here, the court can find no notice that compli-
ance with the recordkeeping requirements and regula-
tions related to radiology assistants would be an issue.
The court finds that if the amendments were permitted,
the defendants would be misled as to the charge that
they are required to meet and would be prejudiced in
maintaining their defense on the merits of this case.9
. . . The amendment is therefore disallowed, and the
objection is sustained.’’ (Footnotes added.)

We next set forth the standard of review that governs
the plaintiffs’ claim. ‘‘This court has stated that [General
8
Practice Book § 10-3 (a) provides: ‘‘When any claim made in a complaint,
cross complaint, special defense, or other pleading is grounded on a statute,
the statute shall be specifically identified by its number.’’
9
In its decision, the court provided two grounds for disallowing the amend-
ment. Because we agree with the first ground, we need not address the
court’s second ground for sustaining the objection to the amendment, which
was ‘‘that negligence per se, as related to the statutes and regulations cited
in this case, cannot substitute for the standard of care in this medical
malpractice action.’’ Nevertheless, we note that the court’s second ground
for disallowing the amendment was based on its reasoning that ‘‘the negli-
gence per se claims [in the amended revised complaint] are really medical
malpractice claims’’ and that ‘‘a negligence per se action is not available
where a statute provides a remedy to the plaintiff . . . [and] the remedy
provided to the plaintiff[s] is a medical malpractice case under [General
Statutes §] 52-184c.’’
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Statutes §] 52-128 and Practice Book § 10-59 allow the
curing of any defect [or] mistake in a complaint as of
right within thirty days of the return date. If an amend-
ment is as of right, the amendment takes effect ab initio.
. . . Practice Book § 10-60 allows a plaintiff to amend
his or her complaint more than thirty days after the
return day [only] by [order of the] judicial authority,
written consent of the adverse party, or filing a request
for leave to amend with the amendment attached.’’
(Internal quotation marks omitted.) 25 Grant Street,
LLC v. Bridgeport, 199 Conn. App. 600, 622, 237 A.3d
767, cert. denied, 335 Conn. 966, 240 A.3d 283 (2020).
‘‘A trial court’s ruling on a motion of a party to amend
its complaint will be disturbed only on the showing of
a clear abuse of discretion. . . . Whether to allow an
amendment is a matter left to the sound discretion of
the trial court. [An appellate] court will not disturb a
trial court’s ruling on a proposed amendment unless
there has been a clear abuse of that discretion. . . . It
is the [plaintiffs’] burden in this case to demonstrate
that the trial court clearly abused its discretion. . . .
‘‘A trial court may allow, in its discretion, an amend-
ment to pleadings before, during, or after trial to con-
form to the proof. . . . Factors to be considered in
passing on a motion to amend are the length of the
delay, fairness to the opposing parties and the negli-
gence, if any, of the party offering the amendment. . . .
The essential tests are whether the ruling of the court
will work an injustice to either the plaintiff or the defen-
dant and whether the granting of the motion will unduly
delay a trial.’’ (Internal quotation marks omitted.)
Rodriguez v. Hartford, 224 Conn. App. 314, 325, 312
A.3d 85, cert. denied, 349 Conn. 907, 313 A.3d 512 (2024),
and cert. denied, 349 Conn. 907, 313 A.3d 512 (2024).
‘‘The trial court is in the best position to assess the
burden which an amendment would impose on the
opposing party in light of the facts of the particular
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Zhuleku v. Naugatuck Valley Radiology Associates

case.’’ (Internal quotation marks omitted.) Booth v. Park
Terrace II Mutual Housing Ltd. Partnership, 217 Conn.
App. 398, 432, 289 A.3d 252 (2023).
In the present case, our review of the court’s thorough
and well reasoned decision convinces us that the court
did not abuse its discretion when it refused to allow the
plaintiffs to amend their complaint to add new counts
alleging negligence per se during jury selection and
on the eve of the presentation of evidence. The court
concluded that to allow the amendment would violate
Practice Book § 10-3 (a) and prejudice the defendants,
who had no prior notice regarding the proposed new
claims. See id., 433 (trial court’s ruling denying request
to amend complaint did not constitute abuse of discre-
tion when amendment sought to add new theories of
liability that would require additional discovery and
occasion further delay, and likely would have preju-
diced defendants). The plaintiffs, in their proposed
amendment, sought to raise negligence per se claims
based on statutory violations more than five years after
originally pleading claims sounding in medical malprac-
tice, and while jury selection already was underway.
The court found that the new allegations of negligence
per se involved ‘‘material changes’’ that the defendants
were ‘‘unprepared to defend’’ and that might have
required an additional expert and more discovery.
There is nothing in the record demonstrating that the
defendants were put on notice that they would have
to defend against claims grounded in the statutes and
regulations referred to in the proposed amended revised
complaint. Thus, contrary to the plaintiffs’ assertion,
the court provided a sound basis for its decision to
preclude the plaintiffs from filing the amended pleading
alleging new counts of negligence per se.
The court, which based its decision, in part, on its
determination that, ‘‘if the amendments were permitted,
the defendants would be misled as to the charge that
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they are required to meet and would be prejudiced in
maintaining their defense on the merits of this case,’’
properly considered whether permitting the amend-
ment would have ‘‘work[ed] an injustice to either [of
the parties] . . . .’’ (Internal quotation marks omitted.)
Rodriguez v. Hartford, supra, 224 Conn. App. 325; see
also Booth v. Park Terrace II Mutual Housing Ltd.
Partnership, supra, 217 Conn. App. 433 (‘‘[i]n light of
the delay and likelihood that the amendment would
prejudice the defendants, we conclude that the court’s
ruling did not reflect an abuse of its discretion’’); Beck-
enstein v. Reid & Riege, P.C., 113 Conn. App. 428,
439–40, 967 A.2d 513 (2009) (trial court did not abuse
its discretion in denying request to amend complaint
when proposed amendment would have required addi-
tional discovery and caused undue delay). Accordingly,
in light of the court’s reasonable determination that
the new allegations in the proposed amended revised
complaint would have worked an injustice to the defen-
dants, we conclude that the court did not abuse its
discretion by sustaining the defendants’ objection to
the plaintiffs’ amended revised complaint.
II
In their remaining claims on appeal, the plaintiffs
assert that the court abused its discretion by improperly
instructing the jury on two occasions. Specifically, they
contend that the court improperly denied (1) their
request to include specific language in the jury charge
indicating that ‘‘a plaintiff in a medical malpractice
action may prove the proper standard of care and its
breach through the testimony of the defendant,’’ and
(2) their request to give a consciousness of liability
instruction to the jury.
Before examining each claim in turn, we set forth
the standard of review and legal principles applicable
to claims of instructional error. ‘‘A challenge to the
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validity of jury instructions presents a question of law.
Our review of this claim, therefore, is plenary. . . .
When reviewing [a] challenged jury instruction . . .
we must adhere to the well settled rule that a charge
to the jury is to be considered in its entirety, read as
a whole, and judged by its total effect rather than by its
individual component parts.’’ (Citation omitted; internal
quotation marks omitted.) Walencewicz v. Jealous
Monk, LLC, 228 Conn. App. 349, 379, 325 A.3d 271, cert.
denied, 350 Conn. 927, 326 A.3d 249 (2024). ‘‘[T]he test
of a court’s charge is not whether it is as accurate upon
legal principles as the opinions of a court of last resort
but whether it fairly presents the case to the jury in
such a way that injustice is not done to either party
under the established rules of law. . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper. . . . Therefore,
[o]ur standard of review on this claim is whether it is
reasonably probable that the jury was misled.’’ (Internal
quotation marks omitted.) Martin v. Olson, 226 Conn.
App. 392, 402, 318 A.3d 1067, cert. denied, 350 Conn.
902, 322 A.3d 1059 (2024).

‘‘It is well established that not every improper jury
instruction requires a new trial because not every
improper instruction is harmful. [W]e have often stated
that before a party is entitled to a new trial . . . he or
she has the burden of demonstrating that the error was
harmful. . . . An instructional impropriety is harmful
if it is likely that it affected the verdict.’’ (Internal quota-
tion marks omitted.) Walencewicz v. Jealous Monk, LLC,
supra, 228 Conn. App. 380. ‘‘[T]o determine whether
the court’s instructional impropriety was harmless, we
consider not only the nature of the error, including its
natural and probable effect on a party’s ability to place
his full case before the jury, but the likelihood of actual
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prejudice as reflected in the individual trial record, tak-
ing into account (1) the state of the evidence, (2) the
effect of other instructions, (3) the effect of counsel’s
arguments, and (4) any indications by the jury itself
that it was misled.’’ (Internal quotation marks omitted.)
Id., 384–85.
A
In their first claim of instructional error, the plaintiffs
assert that ‘‘the trial court erred and committed harmful
error in refusing to charge the jury that the plaintiff in
a medical negligence case may prove the standard of
care and its breach through the testimony of the defen-
dant.’’ The plaintiffs argue that, as a result of the court’s
failure to include their requested language in the charge,
the court’s jury charge ‘‘did not provide the jury with
sufficient guidance in reaching a correct verdict.’’10
On the issue of harm, the plaintiffs’ principal appel-
late brief contains one sentence, without citation to
authority, stating that, because ‘‘[t]he omission of the
instruction did not provide the jury with sufficient guid-
ance in reaching a correct verdict . . . the error is not
harmless . . . .’’ Aside from that one sentence, their
brief is devoid of any analysis concerning the harm-
fulness of the court’s alleged instructional error. Such
a conclusory statement without any citation to case
law or further analysis is insufficient to surmount the
plaintiffs’ burden of demonstrating that the omission
‘‘likely . . . affected the verdict’’; (internal quotation
10
The court’s instructions to the jury provided in relevant part: ‘‘The
plaintiff[s] ha[ve] a burden of proving by a fair preponderance of the evidence
that the defendants’ conduct represented a breach of the prevailing profes-
sional standard of care. Under our law, the plaintiff[s] must prove this by
expert testimony. More specifically, the plaintiff[s] must establish through
expert testimony both the applicable standard of care and that the defen-
dants’ conduct represented a breach of that standard. You may or may not
decide that [Gersten] is an expert, and you may or may not decide that he
established the applicable standard of care.’’
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marks omitted) Walencewicz v. Jealous Monk, LLC,
supra, 228 Conn. App. 380; or to avoid abandoning the
claim due to inadequate briefing.11 See, e.g., MacDer-
mid, Inc. v. Leonetti, 328 Conn. 726, 749, 183 A.3d
611 (2018) (rejecting claims of instructional error as
inadequately briefed because ‘‘the defendant’s harm
analyses consist of only cursory statements’’); Farmer-
Lanctot v. Shand, 184 Conn. App. 249, 258 n.2, 194
A.3d 839 (2018) (plaintiff could not succeed on claim
of instructional error due to her failure to brief issue
adequately and to demonstrate that alleged error affected
verdict when ‘‘the plaintiff merely assert[ed] that the
alleged [instructional] error was harmful and failed to
analyze the issue of harm’’); Bicio v. Brewer, 92 Conn.
App. 158, 172 and n.12, 884 A.2d 12 (2005) (determining
that plaintiff, whose appellate brief contained only sin-
gle sentence and citation in discussion of harm, ‘‘failed
both to demonstrate the harm of the court’s instruction
and to brief the issue adequately’’). Consequently, even
if this court were to agree with the plaintiffs that the
court’s charge was improper, the plaintiffs, nonetheless,
cannot succeed on their claim due to their failure to
brief the issue of harm adequately and, thus, to demon-
strate that the alleged instructional error affected the
verdict. See Farmer-Lanctot v. Shand, supra, 258 n.2.
B
The plaintiffs’ second claim of instructional error per-
tains to the court’s denial of the plaintiffs’ request to
11
‘‘We repeatedly have stated that [w]e are not required to review issues
that have been improperly presented to this court through an inadequate
brief. . . . Analysis, rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the issue properly. . . .
[F]or this court judiciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set forth their arguments
in their briefs. . . . The parties may not merely cite a legal principle without
analyzing the relationship between the facts of the case and the law cited.’’
(Internal quotation marks omitted.) Spinnato v. Boyd, 231 Conn. App. 460,
480–81, A.3d (2025).
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give a consciousness of liability instruction to the jury.
The plaintiffs argue that the defendants’ failure to pres-
ent Perugini for a deposition amounted to the ‘‘conceal-
ment of evidence’’ by the defendants, warranting a con-
sciousness of liability instruction. We are not persuaded.
The following additional factual and procedural his-
tory is relevant to our resolution of this claim. On May
26, 2021, the plaintiffs filed a motion to compel,
attaching a notice of deposition of Perugini, which was
scheduled to take place at the office of the plaintiffs’
counsel on June 7, 2021. Two days prior to the filing
of the motion to compel, the defendants’ counsel had
sent an email to the plaintiffs’ counsel advising him that
Perugini was ‘‘ill and undergoing treatment and unable
to sit for a deposition’’ and that ‘‘[Perugini’s] best esti-
mate as to her availability [was] the [f]all.’’ She con-
cluded the email by asking the plaintiffs’ counsel to
‘‘[p]lease call . . . so that [they could] work out a
plan.’’12 The defendants’ counsel subsequently informed
the plaintiffs’ counsel that Perugini was suffering from
cancer. The deposition ultimately was scheduled for
October 29, 2021; however, it was cancelled because
Perugini was hospitalized with an infection. Perugini
12
In response, the plaintiffs’ counsel sent the defendants’ counsel an email
stating: ‘‘[W]hat you describe about [Perugini] sounds very serious. My
clients and my thoughts and prayers go out to her and her family. I trust,
but I must verify. Accordingly, before we talk . . . I need a detailed [n]ote
from her respective treating physician(s) explaining her malady, why she
[cannot] sit for her noticed deposition until the fall, will her capability to
sit for her deposition decline further or get better by the end of the fall that
is some six months away and her prognosis, including—and in light of the
situation I must be direct—the likelihood of her passing before the end of
said six months or indeed the trial.’’
The defendants’ counsel responded with the following email: ‘‘With due
respect, you are not entitled to [Perugini’s] protected health information
nor are you entitled to private information about her prognosis. [Attorney
Ilyssa Kelson] is an officer of the court and has conveyed to you that our
client is currently having treatment which prevents her from appearing for
a deposition. Thus, that is all the verification you need and we will not
provide other details absent a court order.’’
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died approximately one week later, on November 5,
2021. See footnote 2 of this opinion.

On December 1, 2023, the plaintiffs filed a proposed
preliminary request to charge the jury, which included
a charge labeled ‘‘evidence of consciousness of liabil-
ity.’’13 On January 30, 2024, after hearing argument from
the parties on the issue, the court denied the plaintiffs’
request for a consciousness of liability14 jury charge,
stating in relevant part: ‘‘[T]here’s no reason to believe
that . . . when [Perugini] was asked to be deposed in
the late spring and summer that she [knew she] was
going to die in the fall, thereby intentionally avoiding
a deposition. And so, from an evidentiary standpoint
. . . the [plaintiffs’ counsel] has provided no basis to
claim that the inability to get [Perugini] to sit for a
13
The plaintiffs’ proposed jury charge stated in relevant part: ‘‘Conduct
of a defendant after an event may be admitted as consciousness of liability.
Flight from the scene of an accident, concealment of evidence, intimidation
of a witness or giving a false statement are admitted to show consciousness
of responsibility. . . . The plaintiffs allege that [the emails sent and the
suggestion of death filed by the defendants’ counsel] was concealment of
material evidence—what were [Perugini’s] action/statement in this matter
and, particularly, in view of [Zhuleku’s] telephone calls o[n] May 20 and
24, 2016, to the defendant seeking immediate treatment pursuant to the
defendants’ post ablation instruction—and/or was the defendants’ said email
statement of May 24, 2021, at 1:50 p.m. false—and show consciousness of
responsibility, which the defendants deny. Determination as to such is up
to you, ladies and gentlemen of the jury, using all my previous guidance
concerning the evidence and analysis thereof.’’ (Citations omitted.) This
proposed jury charge also included a transcription of the emails between
the parties’ counsel regarding the deposition of Perugini and the suggestion
of death filed by the defendants.
14
In criminal cases, ‘‘[e]vidence that an accused has taken some kind of
evasive action to avoid detection for a crime, such as flight, concealment
of evidence, or a false statement, is ordinarily the basis for a [jury] charge on
the inference of consciousness of guilt.’’ (Internal quotation marks omitted.)
State v. Pugh, 190 Conn. App. 794, 812 n.6, 212 A.3d 787, cert. denied, 333
Conn. 914, 217 A.3d 635 (2019). In civil cases in which such evidence has
been presented, a similar jury charge may be given on the inference of
‘‘consciousness of liability.’’ See, e.g., Young v. Falk, 34 Conn. App. 852,
856–57, 643 A.2d 1314 (1994).
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deposition for this time period is probative of a con-
sciousness of guilt or of civil liability. The conscious-
ness of guilt theory that the [plaintiffs’ counsel] relies
on is applied primarily in criminal cases [in which a]
defendant lies about his actions, flees from the scene
of the crime, intimidates a witness, or uses a false name,
and that’s from Spearman v. Commissioner of Correc-
tion, [164 Conn. App. 530, 138 A.3d 378, cert. denied,
321 Conn. 923, 138 A.3d 284 (2016)].
‘‘So, while [our] courts have permitted in some civil
cases the tortfeasor’s postincident actions to be admit-
ted as a consciousness of liability, the plaintiff[s] ha[ve]
pointed to no case that permits the failure to sit for a
deposition within a discrete period of time followed by
death to be admitted for the purpose of consciousness
of guilt, and the court declines to do so here for the
reasons previously stated and for the following reasons.
The reason why this is even an issue is because [Peru-
gini] died months after the plaintiff[s] began the process
of attempting to depose her. Her death is the ultimate
reason why she could not be deposed. It’s nonsensical
to ask a jury to conclude that by getting sick and dying,
[Perugini] ha[d] a consciousness of guilt. And the case
was pending years before the plaintiff[s] attempted to
take the . . . deposition and continued on for years
after the attempt. There’s no reason to believe that
[Perugini] would not have sat for a deposition before
she became ill or after she became better.
‘‘It’s clear that the [plaintiffs] [were] told that [Peru-
gini] was very ill and would not be able to sit for a
deposition. There’s no reason to believe the contrary.
I recognize that counsel wanted to know for sure, but
that’s not a basis for saying that this evidence is neces-
sary as a consciousness of guilt. It’s quite common in
civil litigation for the parties to take months to find a
convenient date to depose a party and in some cases,
where the defendant wilfully avoids a deposition prior
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to trial, preventing the plaintiff from deposing him. After
a reasonable amount of time to make convenient
arrangements, it may be appropriate to give this instruc-
tion. . . .
‘‘Under the circumstances of this case, to include [in
the jury charge] that [Perugini] died three years before
trial to prevent her deposition because of a conscious-
ness of guilt . . . is not something that the court is
willing to allow the jury to even think about. It’s clearly
speculation, and this line of questioning is not probative,
and its value is nearly nonexistent. It relies completely
on speculation unsupported by any evidence, and the
evidence to the contrary is that she was prepared to
sit for a deposition in the fall, and unfortunately, she
died before she could sit for the deposition. So, the
court is not . . . going to permit a jury instruction,
along the lines requested by the plaintiff[s], that her
failure to sit [for a deposition] is a consciousness of
guilt.’’
On the basis of our review of the record, we conclude
that the plaintiffs have failed to meet their burden of
showing that it was reasonably probable that the jury
was misled by the court’s omission of their requested
consciousness of liability jury instruction, as the court
correctly determined that the instruction was unsup-
ported by any evidence in the record that would give
rise to a reasonable inference that Perugini and/or the
defendants’ counsel were putting off Perugini’s deposi-
tion to limit the defendants’ liability exposure. The evi-
dence at trial demonstrated that Perugini died six
months after notice was given that the plaintiffs wanted
to depose her and one week after the cancellation of
her deposition that was scheduled for October 29, 2021.
See Martin v. Olson, 226 Conn. App. 392, 402, 318 A.3d
1067, cert. denied, 350 Conn. 902 (2024). Given this
timeline and the lack of any affirmative evidence in the
record showing that Perugini or the defendants’ counsel
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sought to avoid the deposition, the court was correct
that consciousness of liability was not a proper consid-
eration for the jury in the present case. ‘‘[T]he test of
a court’s charge is . . . whether it fairly presents the
case to the jury in such a way that injustice is not done
to either party under the established rules of law. . . .
It is established law that it is error for a court to submit
to the jury an issue [that] is wholly unsupported by the
evidence.’’ (Internal quotation marks omitted.) Perdikis
v. Klarsfeld, 219 Conn. App. 343, 361, 295 A.3d 1017,
cert. denied, 348 Conn. 903, 301 A.3d 528 (2023); see
also Fajardo v. Boston Scientific Corp., 341 Conn. 535,
577, 267 A.3d 691 (2021) (rejecting instructional chal-
lenge because court could not ‘‘conclude that the plain-
tiffs produced sufficient evidence to warrant [the]
instruction’’ in product liability case where plaintiffs
claimed they were entitled to ‘‘reasonable alternative
design’’ instruction); Wager v. Moore, 193 Conn. App.
608, 624, 220 A.3d 48 (2019) (‘‘Issues that are not sup-
ported by the evidence should not be submitted to the
jury. . . . The trial court should not submit to the jury
any issue that is foreign to the facts in evidence or
for which no evidence was offered.’’ (Citation omitted;
internal quotation marks omitted.)); State v. Pagano,
23 Conn. App. 447, 449–50, 581 A.2d 1058 (recognizing
that defendant’s requested jury charge ‘‘would be war-
ranted . . . if sufficient evidence was introduced to
justify it’’ (internal quotation marks omitted)), cert.
denied, 217 Conn. 802, 583 A.2d 132 (1990). In the pres-
ent case, there is simply nothing in the record to support
the notion that the defendants demonstrated a con-
sciousness of liability by failing to have Perugini
deposed before she died, and the plaintiffs’ claim is
based on pure speculation. Thus, the plaintiffs have
failed to demonstrate that it was reasonably probable
that the jury was misled by the court’s omission of the
requested consciousness of liability instruction, as the
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record is devoid of any evidence that supports the giving
of such an instruction.15 Accordingly, we reject the
plaintiffs’ second claim of instructional error.
The judgment is affirmed.
In this opinion the other judges concurred.

15
Even if the omission of the requested instruction were improper, the
plaintiffs also have not met their burden of establishing that the omission
of the requested instruction was harmful error. See Walencewicz v. Jealous
Monk, LLC, supra, 228 Conn. App. 380. The only argument the plaintiffs
made in this respect is contained in a lone sentence in their appellate reply
brief, which states: ‘‘The omission was unquestionably damaging because
it cannot be stated that consciousness of liability was uncontested and
the verdict was backed by overwhelming evidence, implying that the jury
decision would have been the same without the error.’’ This statement alone
is insufficient to establish that the omission of this requested jury charge
likely affected the verdict. See Walencewicz v. Jealous Monk, LLC, supra,
380; see also Bicio v. Brewer, supra, 92 Conn. App. 172.