# Petition for Writ of Certiorari — Menon v. Dux > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1389%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 543 U.S. 1003 ## Text ( FILED O4 44) SEP2 7 208 QFFICE OF THE CLERK /) Supreme Court, U.S. In The SUPREME COURT OF THE UNITED STATES HEMA MENON, Petitioner, ANN DUX, Respondent. On Petition For Writ Of Certiorari To The Supreme Court Of Connecticut PETITION FOR WRIT OF CERTIORARI HEMA MENON Petitioner 2 Spitzer Court Norwalk, CT 06854 (203) 852-8168 1. QUESTIONS PRESENTED Does the exclusion of minorities and persons of color from the jury based upon race, though it gives an appearance the exclusion was based upon facially neutral grounds and upon factors apart from race, deprives a racial minority of equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution when it exerts to discriminate against the minority? Could a police officer be considered a reliable witness to the accident and his testimony be given greater weight over the testimony of a witness to the accident when he had improperly exercised his authority depriving one of one’s due process rights and equal rights protection? . Did the Trial Court, the Appellate Court, and the Connecticut Supreme Court violate the petitioner’s guaranteed nights of due process and equal protection by deviating from the accepted standard of proof, by disregarding the rules of evidence, by basing the facts upon no probative value, and by accepting testimony deficient in any relevant evidence as to the essential element of the case in the light of the evidence proffered by the petitioner? TABLE OF CONTENTS Page Questions Prosentel.......::..30:s A verdict should set aside if a harmful error was made in admitting or excluding evidence -- Ardoline v. Keegan, 140 Conn. 522 (1954); In re Japanese Electronic Products Antitrust Litigation, 631 F.2d 1069 (1980). 25 excluding this claim as it was an essential element to prove her stand of the speed the respondent was traveling. (App. 59, question II).”’ The Petition raised the issue, her claim of the repair cost for the damage was relevant to the liability phase because the evidence was not presented on the issue of damages as it is a personal injury case and not a property damage case and she was not attempting tu bring up the extent of her injuries and cost related to her injuries, but only that relating to her vehicle. Therefore, the Court’s ruling was erroneous as the claim would have provided circumstantial evidence to show the respondent was speeding — the extent of the physical damage on the vehicle and the repair cost for it would provide circumstantial evidence of the speed the respondent was traveling.”* The Petition raised the issue, 6 In Cahill v. Board of Education, 187 Conn. 94, 99, 444 A.2d 907 (1982), the Court considered a claim, not raised in the Trial Court. 27 In Nielsen v. Kezer, 232 Conn. 65, 73, note 15, 652 A.2d 1013, 1012, note 15 (1995), the Court reversed the issue, not properly preserved with a plain error review. The Court noticed the plain error in instruction, not brought to the Court’s attention at the Trial in United States v. Ward, 168 F.2d 226, 228 (2d Cir. 1948); Robertson v. United States, 171 F.2d 345 (D.C. Cir. 1948). In Jones v. United States, 175 F.2d 544 (9th Cir. 1949), the Court of Appeals held, it was the duty of the Court to notice a plain error “though not assigned as error.” /d. at 544. “Err” is “To make an error; to be incorrect or mistaken.” Black's Law Dictionary, p. 562 (7th ed. 1999). “Plain error” is “An error that is so obvious and prejudicial that an appellate court should address it despite the parties’ failure to raise a proper objection. A plain error is often said to be so obvious and substantial that failure to correct it would infringe a party’s due-process rights and damage the integrity of the judicial process.” Jd. at 563. 8 In Daigle v. United States, 181 F.2d 311, 313 (1st Cir. 1950), the Appellate Court considered the instruction not objected to below. In United States v. Cumberland, 200 F.2d 609 (3rd Cir. 1952), the Court reversed the judgment for errors not objected to at the Trial. In Lazarov v. United States, 225 F.2d 319, 329 (6th Cir. 1955), the Court held, “No exception was taken to the instruction but, of course, an appellate court will consider an error in the charge which is seriously prejudicial or amounts to a grave miscarriage of justice even though no objection was made in the trial court.” In Remmer v. United States, 205 F.2d 277, 290, 26 during the Trial, she was asked by her counsel, “Do you recall what the damage estimate was to repair these areas?” to which she responded, “Yes.”. Menon v. Dux, 81 Conn. App. 167, 175 (2004). The Appellate Court held, the petitioner did not articulate any evidentiary rule on which such testimony was admissible (Id. at 171) when her counsel’s question did not require an articulation which would have an evidentiary rule. If she was expected to articulate any evidentiary rule on which such testimony was admissible, the petitioner’s counsel should have asked a question like, “What was the damage estimate to repair these areas?” or “What do you recall of the damage estimate to repair these areas?” and to which she would have articulated more than a “yes”. It should be noted, the respondent’s counsel raised an objection only after she had responded to the question asked and not after her counsel asked the question. The fact that he had raised his objection after she responded in the affirmative suggests, he might have improper motive or intent. The Petition raised the issue, the Appellate Court used the accident report and the narrative supplement and the diagram as a guide as to how the accident occurred when the credibility of those materials should have been questioned though the police reports are admissible under the business records exception to hearsay. Rule 803(6) of the Uniform Rules of Evidence Act, Cf. Federal Rules of Evidence § 803(6), states such reports are hearsay exceptions “unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” In the reports, the petitioner’s mother’s presence was not noted (9/18/02 Tr. p. 147) and she was not interviewed (9/18/02 Tr. p. 84), and the respondent admitted, she was alone with the officer in the parking lot (Dep. Tr. p. 24). Hence, he reconstructed the note 16 (9th Cir.1953), the Court held, “Plain error in instructions should of course be noticed regardless of whether the matter was properly brought to the attention of the trial court.” rte 27 accident considering only the respondent’s version.”” The Petition raised the issue, the Appellate Court overlooked and did not rule that the shoulder could not be traversed by a vehicle as there was a cement curb which blocked the driveway and prevents a driver from entering the driveway. “In sum, relevant evidence is evidence that in some degree advances the inquiry. It is material and probative.” McCormick on Evidence, § 185, p. 544 (3d ed. 1984). It is axiomatic that “[e]vidence is admissible only to prove material facts, that is to say, those facts directly in issue or those probative of matters in issue; evidence offered to prove other facts is ‘immaterial.’” C. Tait, Connecticut Evidence, § 4.1.3, p. 200 (3d ed. 2001), citing Adams v. Way, 32 Conn. 160, 167-69 (1864). Salmon v. Dept. of Public Health & Addiction Services, 788 A.2d 1199, 1216, 259 Conn. 288 (2002). For the Petition, some of the cases that she brought out was the Hutchinson v. Plante, 175 Conn. 1, 392 A.2d 488 (1978) which is it is an automobile negligence issue like her case in which both drivers offered conflicting versions of the accident. The Court found error in the case and set aside the judgment and ordered a new trial. The Court held, the officer’s testimony was inadmissible in its entirety as the “trooper accepted and reported the defendant’s operator’s version of the event.” Jd. at 6-7, 392 A.2d at 491. The Court also held, the narrative and diagram contained in the report were inadmissible as business entries as they were self- serving hearsay as to respondent’s version. (App. 102). For the Motion for Reconsideration, the petitioner brought out cases, such as the Adams v. Way, 32 Conn 160 (1864), where the evidence was excluded and the plaintiff was entitled to a new trial. The Motion raised the issue, her claim 29 Business records may not be admitted for truth of matters stated. Such records bear no presumption of accuracy even when properly admitted and their credibility is a question for the trier of fact. State v. Ward, 172 Conn. 163, 170, 374 A.2d 168 (1976). 28 of the repair cost was excluded when it is a personal injury case and not solely a property damage case and therefore, her claim for the repair cost was relevant to the liability phase as it was related to her vehicle and would have provided circumstantial evidence to show the speed at which the respondent’s vehicle was traveling. The Motion raised the issue, just like the Liimatta v. Vest case and Adams v. Way case, her claim of the repair costs was critical in proving her version that the respondent came from the opposite direction when she made a sudden and unexpected left turn directly in front of her as the respondent’s version did not explain the extent of physical damage to the petitioner’s vehicle and by excluding this claim from the liability phase, she would not be able to prove her version or to substantiate her position that the respondent came from the opposite side of the street. The Motion raised the issue, in this case where both drivers had conflicting versions, her claim of the repair cost was a critical element of her version and she would almost never be able to prove her case by excluding this claim *° -- the extent of the property damage would shed light on the question of the respondent’s speed. In State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), the Court held, the “amount obtained by the defendant was essential element of crime of general assistance” and the “failure to inform jury that it had to find proven, beyond a reasonable doubt, amount defendant obtained by fraud was constitutional error.” The Motion raised the issue, the Supreme Court reviewed State v. Golding, 567 A.2d 823 (1989) under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). It raised the issue that like the State v. Golding case where the “amount obtained by © In Anderson v. Atchison, T. & S. F. Ry. Co., 333 U.S. 821 (1948), the judgment was reversed and the case, remanded for further proceedings. The Supreme Court found, “had petitioner been permitted to introduce all evidence relevant under her allegations, the facts would have revealed a situation as to which a jury under appropriate instructions” would have rendered a decision in favor of the petitioner. /d. at 823. 29 defendant was essential element of crime of general assistance,” her claim of the extent of the physical damage and the repair cost for it was an essential element in order to support her version, the other driver was speeding. The Trial Court Judge conveyed to the jury, there was an opportunity for an Appellate Court review and a review by the Supreme Court of Connecticut and, finally, “everybody in certain instances” (9/17/02 Tr. p. 10), could be reviewed by the Supreme Court in Washington or the Congress can make changes to the laws. (App. 67-69).*' Though the Trial Judge, then, stated that the jury’s verdict was final and an error could not be made, and the fact pattern could not be reviewed, and if the decision was accepted by the Court, it was the correct verdict and the verdict would never be changed, the Judge’s comments about the reviews of the various Courts had given the jurors the impression, they did not have to be correct in their decision or sure of their decision as their decision and their responsibility for determining the case correctly and impartially was not important as it would be subjected to review by another to ensure its correctness and at the same time, the jurors might not be aware that the nature of review is a difficult and review is limited in nature as the determination is accepted with the presumption it is correct. (App. 99-101). For the Trial on September 17 and 18, 2002, the Judge stated several times about the Appellate Court and Hartford. (App. 67-69). The Judge also stated about mistrial and the Trial had to be started all over. (9/17/02 Tr. p. 16). (App. 67). It is should pointed out, though the respondent and petitioner presented 3! In Caldwell v. Mississippi, 472 U.S. 320 (1985), “the prosecutor urged the jury not to view itself as finally determining whether petitioner would die, because a death sentence would be reviewed for correctness by the Mississippi Supreme Court.” Jd. at 320. The petitioner failed to raise about the prosecutor’s comments on appeal, but the Supreme Court reviewed it. The prosecutor’s comments minimize the jurors’ sense of duty as the “responsibility for determining the appropriateness of the defendant's death rests elsewhere.” Jd. at 320. 30 conflicting versions, the jurors reached a verdict in a short time when they should have given more thought to the case.” The Trial Court stated in its the charge, “[t]he defendant need not offer any evidence on the issue for the plaintiff’ (9/18/02 Tr. p. 165) -- she need not have to offer evidence, so there should not have been two competing versions for the jury to determine which one was accurate as it is a violation of the due process of law and equal protection to the other. The Trial Court should submit no issue to the jury where no evidence was offered, or issue which was foreign to the facts in evidence, or issue where there was no support of the evidence. Wolfe v. Rehbein, 123 Conn. 110, 115 (1937). “It is established law that it is error for a court to submit to the jury an issue which is wholly unsupported by the evidence....” Novak v. Anderson, 178 Conn. 506, 423 A.2d 147 (1979). CONCLUSION For these reasons, the petitioner respectfully requests this Court to grant the Petition for Writ of Certiorari. Respectfully submitted, HEMA MENON Petitioner 2 Spitzer Court Norwalk, CT 06854 (203) 852-8168 32 The jurors were an unusual group of people who were unable to handle the case seriously, and they found the case and the situation amusing. Toward the end of the trial, some of the jurors had amusing expression on their faces and some of them were laughing as they were walking in and out of jury booth to the chamber and the foreperson who handed over the paper with the verdict had an amusing expression on his face like he was trying to control himself from laughing. Overall, the demeanor showed that the jurors did not have any respect for the Court. App. 1 APPENDIX A SUPREME COURT STATE OF CONNECTICUT NO. AC 23563 HEMA MENON _ VY. ANN DUX : JUNE 9, 2004 ORDER THE MOTION OF THE PLAINTIFF, FILED MAY 11, 2004, TO FILE LATE CERTIFICATION FOR PETITION BY SUPREME COURT, HAVING BEEN PRESENTED TO THE COURT, IT 1S HEREBY ORDERED GRANTED. BY THE COURT, /s/ Michele T. Angers CHIEF CLERK NOTICE SENT: JUNE 10, 2004 HEMA MENON, PRO SE CASSIDY, MAZZA & LEBLANC CLERK, STAMFORD J.D. (CV98-0163276) REPORTER OF JUDICIAL DECISIONS 439/031445 App. 2 SUPREME COURT STATE OF CONNECTICUT NO. PSC-03-0389 Hema Menon Vv Ann Dux ORDER ON PETITION FOR CERTIFICATION TO APPEAL On consideration of the petition by the plaintiff for certification to appeal from the Appellate Court (81 Conn. App. 167 [AC 23563}), it is hereby ordered that said petition be, and the same is hereby denied. BY THE COURT, /s/ Alan M. Gannuscio ASSISTANT CLERK-APPELLATE Dated:6/9/04 Notice sent: June 10, 2004 Clerk, Superior Court, Stamford/Norwalk, CV98 163276 Clerk, Appellate Court Reporter of Judicial Decisions SAO Hema Menon, pro se Cassidy, Mazza & Leblanc Hema Menon, pro se, in support of petition. mkm App. 3 SUPREME COURT STATE OF CONNECTICUT NO. AC 23563 HEMA MENON v. ANN DUX : JUNE 30, 2004 ORDER THE MOTION OF THE PLAINTIFF, FILED JUNE 21, 2004, FOR RECONSIDERATION OF THE DENIAL OF PETITION FOR CERTIFICATION, HAVING BEEN PRESENTED TO THE COURT, IT IS HEREBY ORDERED DENIED. BY THE COURT, /s/ Michele T. Angers CHIEF CLERK NOTICE SENT: JUNE 30, 2004 HEMA MENON, PRO SE CASSIDY, MAZZA & LEBLANC HON. JOHN P. RYAN CLERK, STAMFORD SUPERIOR COURT, (CV98-0163276S) REPORTER OF JUDICIAL DECISIONS 484/031491 App. 4 APPENDIX B Connecticut Appellate Decisions Menon v. Dux, 81 Conn. App. 167 (2004) 838 A.2d 1038 HEMA MENON v. ANN DUX (AC 23563) Appellate Court of Connecticut Schaller, McLachlan and Berdon, Js. Syllabus The plaintiff sought to recover damages for personal injuries she sustained as a result of the defendant’s alleged negligence in connection with an automobile accident. The jury returned a verdict in favor of the defendant and the trial court rendered judgment rendered thereon, from which the plaintiff appealed to this court. Held: This court declined to review the plaintiff's claim, raised for the first time on appeal, that the trial court, which had concluded that certain evidence concerning the cost of repairing the damage to the plaintiffs vehicle caused by the accident was relevant only to the damages phase of the trial, improperly excluded the evidence in the liability phase although it constituted circumstantial evidence of the speed at which the defendant’s vehicle was traveling at the time of the accident; at trial, the plaintiff's counsel did not articulate any basis for permitting the evidence to be introduced in the liability phase, and he expressly acquiesced in that court’s ruling excluding it. 2. The plaintiff's unpreserved challenge to the trial court’s jury instructions concerning the jury’s discretion in App. 5 reaching a verdict was unavailing and did not warrant plain error review, the plaintiff having failed to demonstrate that the alleged error in the instruction was so obvious that it affected the fairness and integrity of and public confidence in the judicial proceedings or that the failure to grant the requested relief would result in manifest injustice. 3. The trial court did not abuse its discretion in denying the plaintiff's motion to set aside the jury’s verdict, which was supported by the evidence presented; the jury reasonably could have believed the defendant’s version of the circumstances that led to the accident, which was consistent with the damage sustained by both vehicles and was supported by the testimony of the police officer who had responded to the scene. Argued October 22, 2003 Officially released January 20, 2004 Procedural History Action to recover damages for personal injuries sustained by the plaintiff as a result of the defendant’s alleged negligence, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the jury before Ryan, J.; verdict for the defendant; thereafter, the court denied the plaintiff's motion to Page 168 set aside the verdict, for a new trial and in arrest of judgment, and rendered judgment in accordance with the verdict, from which the plaintiff appealed to this court. Affirmed. John R. Williams, for the appellant (plaintiff). Kieran S. Cassidy, for the appellee (defendant). App. 6 Opinion McLACHLAN, J. This appeal rises out of a negligence action brought by the plaintiff, Hema Menon, for the alleged liability of the defendant, Ann Dux, in causing an automobile collision. The plaintiff challenges both the trial court’s judgment in favor of the defendant, rendered after a jury verdict, and the court’s subsequent denial of her motion to set aside the verdict. On appeal, the plaintiff claims that the court improperly (1) excluded certain testimony relating to the cost of repairing the damage to her vehicle as a result of the collision, (2) instructed the jury concerning its discretion in determining the verdict and (3) denied her motion to set aside the verdict. We affirm the judgment of the trial court. Following the jury selection, the court bifurcated the trial into two phases, liability and damages. During their testimony in the liability phase, the plaintiff and defendant provided conflicting versions of the events leading to the accident, essentially offering competing accounts of the directions in which the vehicles were traveling and the manner in which the collision occurred. Officer Lawrence Frinton of the Danbury police department, who investigated the accident scene, also testified. In his original accident report, Frinton provided a diagram of the accident based on his conversations with the plaintiff and the defendant immediately following the accident, and on his observations of the scene. This diagram was consistent with the version of events ; Page 169 advanced by the defendant. Frinton’s report also contained a narrative, however, which contained certain statements that contradicted the diagram and, in fact, supported the plaintiff's version of events. Frinton later filed a narrative supplement to the accident report in which he indicated that in his App. 7 original report, he mistakenly described the position and directional movement of the defendant’s vehicle. He clarified that this description was in error and that in his opinion, the collision had occurred in the manner described by the defendant. [fn1] Following the conclusion of evidence in the liability phase, the jury returned a verdict in favor of the defendant. The plaintiff subsequently filed a motion to set aside the verdict, pursuant to Practice Book § 16-35, on the ground, inter alia, that verdict was contrary to the evidence. The motion was denied, and judgment was rendered in favor of the defendant. The plaintiff now appeals. I The plaintiff first claims that the court improperly excluded evidence concerning the cost of repairing the damage to her vehicle as a result of the collision. The court excluded that evidence on the ground that although it would be appropriate in the damages phase of the trial, it was irrelevant to the liability phase. The plaintiff asserts for the first time on appeal that this testimony should have been permitted as circumstantial evidence showing that at the time of the collision, the defendant’s vehicle was traveling at a high rate of speed. We decline to review the claim. The record reveals that on redirect examination, the plaintiff's counsel questioned the plaintiff about the Page 170 damage to her vehicle. After the plaintiff explained the nature of the damage, counsel inquired as to the cost of repairing such damage. The defendant’s counsel objected to that question on relevancy grounds and, in sustaining the objection, the court reasoned that because the testimony was relevant only to the issue of damages, it should be postponed until the damages phase of the trial. In response to the App. 8 court’s determination, the plaintiff's counsel articulated no rationale for permitting the testimony or any objection to the court’s ruling and, quite to the contrary, expressly acquiesced to the ruling.[fn2] The plaintiff now asserts that the testimony should have been permitted because the extent of damage to her vehicle comprised circumstantial evidence of the speed at which the defendant’s vehicle was traveling at the time of the collision. The plaintiff now maintains that because such testimony would have supported her argument that the defendant was speeding prior to the collision, the testimony was relevant to the issue of liability and, therefore, should have been permitted. Page 171 It is well established that “[t]his court will not review issues of law that are raised for the first time on appeal....We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Strouth v. Pools By Murphy & Sons, Inc., 79 Conn. App. 55, 62, 829 A.2d 102 (2003). Although the plaintiff attempted to introduce testimony of the extent of the damage to her vehicle, she did not articulate any evidentiary rule on which such testimony was admissible. For this court now to consider her claim on the basis of a specific legal ground not raised during trial would “amount to trial by ambuscade, unfair both to the trial court and to the opposing party.” (Internal quotation marks omitted.) State v. Westberry, 68 Conn. App. 622, 628 n. 3, 792 A.2d 154, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002). Accordingly, we will not afford review to that unpreserved claim.[fn3] II The plaintiff next claims that the court improperly instructed the jury concerning its discretion in determining a verdict. Specifically, the plaintiff claims that the court’s charge conveyed to the jury that it had unbridled discretion to disregard the law in reaching a verdict. The plaintiff concedes that she did rot take exception to the jury charge at trial, and our review of the record reveals that she did not submit a written recuest to charge. Accordingly, the plaintiff's claim was Page 172 not preserved for appellate review. See Practice Book § 16- 20; Pestey v. Cushman, 259 Conn. 345, 372-73, 788 A.2d 496 (2002). [fn4] Nevertheless, a party may prevail on an unpreserved claim under the plain error doctrine if such review is affirmatively requested. See Practice Book § 60-5; State v. Ramos, 261 Conn. 156, 171, 801 A.2d 788 (2002). [fn5] As the plaintiff has requested plain error review, we must consider whether such review is warranted. As we often have stated, “[p]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly.... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.... Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial.” (Citation omitted; internal quotation marks omitted.) State v. Thompson, 71 Conn. App. 8, 12 n. 4, 799 A.2d 1126 (2002). The plaintiff has failed to demonstrate that the court’s App.10 instruction was so obviously erroneous that it affected the fairness and integrity of and public confidence in the judicial proceedings or that failure to grant the Page 173 requested relief will result in manifest injustice. [fn6] See id. We accordingly conclude that plain error review is unwarranted. Il The plaintiff last claims that the court improperly denied her motion to set aside the jury’s verdict. Specifically, the plaintiff claims that the evidence adduced at tnal demonstrated that the collision could not have occurred in the manner alleged by the defendant and subsequently accepted by the jury. We disagree. “(T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial... [is] the abuse of discretion standard.... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling.... Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.... “A court is empowered to set aside a jury verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence.... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.... In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did.... On appellate review, ; App.11 : Page 174 . ‘ therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.” (Internal quotation marks omitted.) Carusillo v. Associated Women’s Health Specialists, P.C., 79 Conn. App. 649, 653, 831 A.2d 255 (2003). “We do not... determine whether a conclusion different from the one reached could have been reached.... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Internal quotation marks omitted.) Arnone v. Enfield, 79 Conn. App. 501, 506, 831 A.2d 260, cert. denied, 266 Conn. 932, A.2d (2003). The pivotal issue in the plaintiff's claim is the conflicting testimony offered by the plaintiff and the defendant as to the circumstances leading to the collision. Although the plaintiff's testimony roundly contradicted that of the defendant, and the jury reasonably could have elected to believe the plaintiff and not the defendant, our task is not to determine whether a conclusion different from the one arrived at could have been reached, but rather to determine if there was some evidence on which the jury might reasonably have reached its conclusion. See Carusillo v. Associated Women’s Health Specialists, P.C., supra 79 Conn. App. 653. Although it was not supported by the entire record, the version of events advanced by the defendant and accepted by the jury was adequately supported by the record. Not only was the defendant’s version consistent with the damage sustained by both vehicles, it also was bolstered by Frinton’s testimony that in his opinion, the accident occurred in the manner described by the defendant. We accordingly conclude that the jury’s verdict was not contrary to the evidence and the court did not abuse its discretion in denying the plaintiff's motion to set aside the verdict. Page 175 App.12 The judgment is affirmed. In this opinion the other judges concurred. {fnl] Also testifying at trial was the plaintiff's mother, a passenger in the plaintiff's vehicle. With respect to the circumstances surrounding the collisiion, her testimony essentially mirrored that of the plaintiff. [fn2] The following colloquy occurred during redirect examination of the plaintiff: “(Plaintiff's Counsel]: Do your recalll what the damage estimate was to repair these areas? “{ Witness]: Yes. “[Defendant’s Counsel]: Objection. That’s irrelevant, Your Honor. “The Court: At the present time in the sttatus of the record, I have to sustain the objection. “[Plaintiff's Counsel]: I’m merely offerimg it — “The Court: It would be relevant to the question of the force of the collision — “(Plaintiff's Counsel]: Yes. “The Court: -- which, that may become a question relevant as to the nature and extent of the damages. But seeing that we’re in a bifurcated trial, I don’t think it’s really relevant now as to the extent of the damage. It’s conceded that both vehicles came into contact, and, of course, there was a picture that showed damage to the front of the car. App.13 “(Plaintiffs Counsel]: Okay. “The Court: So, for right now, why don’t we just postpone that? “(Plaintiff's Counsel]: All right.” [fn3] We note that the plaintiff did not seek review of the unpreserved ground under the rubric of plain error. As we have consistently stated, “it is not appropriate to engage in a level of review that is not requested.” State v. Hermann, 38 Conn. App. 56, 65, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). We therefore do not consider whether review of the claim is warranted under the plain error doctrine. {fn4] Practice Book § 42-16 provides in relevant part: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered....” [fn5] Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court....” [fn6] The specific portion of the jury instruction to which the plaintiff objects states: “As I said to you when you were first sworn in, you always do the right thing. You don’t have to worry about whether you did the wrong thing, so don’t worry about that.” That one sentence, considered in the context of the court’s thirty-one pages of instruction, does mot rise to the level of the truly extraordinary situation for wicn we reserve plain error review. -_ App. 14 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED U.S. Const. Amend. 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. Const. Amend. 14: Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. App.15 STATE OF CONNECTICUT OFFICE OF THE CLERK SUPERIOR COURT GA 03 COURTHOUSE June 19, 1996 146 WHITE STREET DANBURY, CT 06810 6853 HEMA MENON 29 JUDITH DR DANBURY, CT Docket Number: | D03D-MI96-3742861-S Summons Number: 374286 Date of Summons: 02/20/1996 STATE OF CONNECTICUT V. . HEMA MENON YOU ARE HEREBY NOTIFIED THAT: On 06/17/1996, A NOLLE PROSEQUI WAS ENTERED BY THE PROSECUTING AUTHORITY (Pr. Bk. 724) This notice means that the case shown above pending against you has been disposed. You are NOT REQUIRED to appear in court or pay any fines, fees, costs, or surcharges which may have been applicable if you had been found guilty of this offense. The Department of Motor Vehicles or the appropriate Arresting Agency will be notified of this disposition by the court. Office of the Clerk App. 16 Ret. Date: February 3, 1998 : Superior Court Hema Menon : J.D. of Stamford/Norwalk Vv. : at Stamford Ann Dux : January 5, 1998 COMPLAINT 1. On or about February 20, 1996, the plaintiff, Hema Menon was the owner and operator of a 1991 Ford Escort which was proceeding in an easterly direction on Lake Avenue Extension, a public highway in Danbury, Connecticut. 2. The defendant, Ann Dux was the owner and operator of a 1989 Ford, traveling in a westerly direction on Lake Avenue Extension, a public highway in Danbury, Connecticut. 3. On said date the defendant, Ann Dux drove her vehicle so as to collide with the vehicle of the plaintiff thereby greatly damaging the vehicle of the plaintiff and causing her painful and permanent injuries. 4. Said collision was caused by the carelessness and negligence of the defendant, Ann Dux, in that she: a) operated said vehicle at too fast and excessive a rate of speed for the time and place and the circumstances then and there existing. b) failed to maintain a proper lookout c) failed to yield right of way in violation of CGS §14-247 d) failed to keep said vehicle under reasonable and proper control e) made an improper turn in violation of CGS §14-242 App. 17 f) operated said vehicle as to endanger the life, limb and property of persons lawfully on the highway. Wherefore, the plaintiff claims damages. The Plaintiff By /s/ Christine B. O’Sullivan Christine B. O’Sullivan Her Attorney Amount in Demand The amount in demand is greater than $15,000.00. By /s/ Christine B. O’ Sullivan Christine B. O’Sullivan Plaintiff's Attorney App. 18 D.N. CV-98-0163276-S : SUPERIOR COURT HEMA MENON $ ae STAMFORD/NORWALK VS. : AT STAMFORD ANN DUX : MARCH 11, 1998 AMENDED COMPLAINT The Plaintiff, Hema Menon, amends Paragraph 3 of her Complaint as follows: 3. On said date the defendant, Ann Dux drove her vehicle so as to collide with the vehicle of the plaintiff thereby greatly damaging the vehicle of the plaintiff and causing her painful and permanent injuries, including the injuries to her neck, spine, shoulder, arms and back, as well as internal injuries and nerve damage. THE PLAINTIFF By /s/ Christine B. O’ Sullivan Christine B. O’Sullivan Her Attorney CERTIFICATION This is to certify that a copy of the foregoing was mailed on March 11, 1998, to: Brendan P. Donahue, Esquire, Schwartz & Cassidy, 1375 Kings Highway East, Suite 475, Fairfield, CT 06430 /s/ Christine B. O’Sullivan Christine B. O’Sullivan Commissioner of the Superior Court ae oe App. 19 D.N: CV-98-0163276-S : SUPERIOR COURT HEMA MENON : J.D. STAMFORD/NORWALK VS. : AT STAMFORD ANN DUX : MARCH 31, 1998 SECOND AMENDED COMPLAINT The Plaintiff, Hema Menon, amends Paragraph 3 of her Complaint as follows: 3. On said date the defendant, Ann Dux drove her vehicle so as to collide with the vehicle of the plaintiff thereby greatly damaging the vehicle of the plaintiff and causing her painful and permanent injuries, including the injuries to her neck, spine, shoulder, arms, back and legs, as well as internal injuries and nerve damage. THE PLAINTIFF By /s/ Christine B. O’ Sullivan Christine B. O’ Sullivan Her Attorney CERTIFICATION This is to certify that a copy of the foregoing was mailed on March 31, 1998, to: Brendan P. Donahue, Esquire, Schwartz & Cassidy, 1375 Kings Highway East, Suite 475, Fairfield, CT 06430 /s/ Christine B. O’Sullivan Christine B. O’ Sullivan Commissioner of the Superior Court App. 20 D.N. CV 98 0163276S : SUPERIOR COURT HEMA MENON : J.D. OF STAMFORD/NORWALK VS. : AT STAMFORD ANN DUX : MARCH 20, 1998 ANSWER AND SPECIAL DEFENSES 1-2. With respect to the ‘allegations referred to in Paragraphs 1 and 2, the Defendant has_ insufficient knowledge to form a belief as to the truth and, therefore, leaves the Plaintiff to her proof. _3-4. Paragraphs 3 and 4 are denied. BY WAY OF SPECIAL DEFENSE: Any damages to the plaintiff in this action were actually and proximately caused by her own negligence in one or more of the following ways: a. in that the plaintiff failed to keep a proper and reasonable lookout for other motor vehicles upon the highway; b. in that the plaintiff failed to keep proper and reasonable control of her vehicle; c. in that the plaintiff failed to act as a reasonable and prudent person under all circumstances and conditions then and there existing; App. 21 d. in that the plaintiff failed to apply her brakes in a timely manner so as to avoid the accident from occurring although by a proper and reasonable exercise of her faculties, she could and should have done so; e. in that the plaintiff failed to turn her motor vehicle to the left or right so as to avoid a collision, although by a proper and reasonable exercise of her faculties she could and should have done so; f. in that the plaintiff operated her vehicle at an unreasonable rate of speed in violation of Connecticut General Statutes § 14-218a; g. in that the plaintiff failed to comply with Connecticut General Statutes § 14-236 by failing to remain in her designated lane of travel; h. in that the plaintiff failed to yield the right of way as required by Connecticut General Statutes § 14-242 (e), § 14- 245 and § 14-246a; i. in that the plaintiff was operating her vehicle at an excessive rate of speed with regard to the weather conditions that existed on the highway; j. in that the plaintiff operated her vehicle at an unreasonable and excessive rate of speed having due regard for the traffic, weather, width and use of the highway and intersection of streets. THE DEFENDANT ANN DUX By /s/ Brendan P. Donahue Brendan P. Donahue SCHWARTZ & CASSIDY 1375 Kings Highway East Suite 475 Fairfield, CT 06430 Juris No. 408555 (203) 331-1505 CERTIFICATION This is to certify that a copy of the foregoing was mailed on March 20, 1998 to: Christine B. O’Sullivan, Esq., 13 Hermit Lane, Westport, CT /s/ Brendan P. Donahue Brendan P. Donahue App. 23 D.N. CV-98-0163276-S |: SUPERIOR COURT HEMA MENON : J.D. STAMFORD/NORWALK VS. : AT STAMFORD ANN DUX : APRIL 20, 1999 REPLY TO SPECIAL DEFENSES The allegations contained in the Defendant’s Special Defense a. thru j. are denied. THE PLAINTIFF By /s/ Christine B. O’ Sullivan Christine B. O’Sullivan Her Attorney CERTIFICATION This is to certify that a copy of the foregoing was mailed, postage prepaid on April 10, 1999, to: Brendan P. Donahue, Esquire Schwartz & Cassidy 1375 Kings Highway East — Suite 475 Fairfield, CT 064306 /s/ Christine B. O’ Sullivan Christine B. O’Sullivan App. 24 NO. CV-98-0163276-S =: SUPERIOR COURT HEMA MENON : J.D. DIST. OF STAMFORD VS. : AT STAMFORD ANN DUX : SEPTEMBER 28, 2002 The plaintiff respectfully moves, pursuant to Section 16- 35 of the Practice Book, to set aside the verdict in this case for the following reasons: 1. The verdict was contrary to the evidence. 2. The jury was selected in a manner which improperly excluded minorities and persons of color. 3. Evidentiary rulings during the trial were erroneous. THE PLAINTIFF BY: /s/ John R. Williams John R. Williams (#67962) 51 Elm Street New Haven, CT 06510 203.562.9931 Fax: 203.776.9494 E-Mail: jrw@johnrwilliams.com Plaintiff's Attorney ORAL ARGUMENT NOT REQUESTED TESTIMONY NOT REQUIRED App. 25 NO. CV-98-0163276-S : SUPERIOR COURT HEMA MENON : J.D. DIST. OF STAMFORD VS. : AT STAMFORD ANN DUX : SEPTEMBER 28, 2002 MOTION FOR NEW TRIAL The plaintiff respectfully moves, pursuant to Section16-35 of the Practice Book, to set aside the verdict in this case for the following reasons: 1. The verdict was contrary to the evidence. 2. The jury was selected in a manner which improperly excluded minorities and persons of color. 3. Evidentiary rulings during the trial were erroneous. THE PLAINTIFF BY: /s/ John R. Williams John R. Williams (#67962) 51 Elm Street New Haven, CT 06510 203.562.9931 Fax: 203.776.9494 E-Mail: jrw@johnrwilliams.com Plaintiff's Attorney ORAL ARGUMENT NOT REQUESTED TESTIMONY NOT REQUIRED App. 26 NO. CV-98-0163276-S : SUPERIOR COURT HEMA MENON : J.D. DIST. OF STAMFORD VS. : AT STAMFORD ANN DUX : SEPTEMBER 28, 2002 MOTION IN ARREST OF JUDGMENT The plaintiff respectfully moves, pursuant to Section 16- 35 of the Practice Book, to set aside the verdict in this case for the following reasons: 1. The verdict was contrary to the evidence. 2. The jury was selected in a manner which improperly excluded minorities and persons of color. 3. Evidentiary rulings during the trial were erroneous. THE PLAINTIFF BY: /s/ John R. Williams John R. Williams (#67962) 51 Elm Street New Haven, CT 06510 203.562.9931 Fax: 203.776.9494 E-Mail: jrw@johnrwilliams.com Plaintiff's Attorney ORAL ARGUMENT NOT REQUESTED TESTIMONY NOT REQUIRED App. 27 NO. CV-98-0163276-S : SUPERIOR COURT HEMA MENON : J.D. DIST. OF STAMFORD VS. : AT STAMFORD ANN DUX : OCTOBER 12, 2002 DOCKETING STATEMENT I. NAMES AND ADDRESSES OF ALL PARTIES, COUNSEL AND PERSONS HAVING A LEGAL INTEREST IN THE CAUSE SUFFICIENT TO RAISE A SUBSTANTIAL QUESTION WHETHER A JUDGE SHOULD BE DISQUALIFIED The plaintiff is Hema Menon of 2 Spitzer Court, Norwalk, CT 06854. The attorney for the plaintiff is John R. William, 51 Elm Street, New Haven, CT 06510. The defendant is Ann Dux of 62 Bridge Street, New Milford, CT 06776. The attorneys for the defendant are Cassidy, Mazza & LeBlanc, 1375 Kings Highway East, Fairfield, CT 06430. II. CASE NAMES AND DOCKET NUMBERS OF ALL PENDING APPEALS WHICH ARISE FROM SUBSTANTIALLY THE SAME CONTROVERSY AS THIS OR INVOLVE CLOSELY RELATED ISSUES None. App. 28 EXHIBITS IN TRIAL COURT Yes. INCARCERATION STATUS OF APPELLANT This is a civil case and the appellant is not incarcerated. THE PLAINTIFF BY: /s/ John R. Williams John R. Williams (#67962) 51 Elm Street New Haven, CT 06510 203.562.9931 Fax: 203.776.9494 E-Mail: jrw@johnrwilliams.com Her Attorney CERTIFICATION OF SERVICE A copy hereof was mailed on the date above stated to Cassidy, Mazza & LeBlanc, 1375 Kings Highway East, Suite 475, Fairfield, CT 06430 (Fax: 203.331.1505). /s/ John R. Williams John R. Williams State of Connecticut Judicial Branch Case Detail Plaintiff Name VS Defendant Name MENON,HEMA - v. DUX,ANN : CV-98-0163276-S Court Location: Stamford File Date: Jan 15 1998 Return Date: Feb 03 1998 * Last Action Date: Jun 16 2004 ADR Status: Not Applicable Case Type: VEHICLE - MOTOR VEH* DVR AND/OR PSG V DVR List Type: JURY Disposition Date: Oct 03 2002 Judge/Magistrate: J. RYAN Trial List Claim: Apr 22 1999 Disposition: JUDGMENT ON VERDICT-DFDT *'Last Action Date’ is a data entry date, not actual date Parties / Attorneys Pty Pitf / No. Def HEMA MENON 01 P 2 PITZER COURT NORWALK, CT 06854 Attorney: ALLAN FRIEDMAN (Juris No. 407029) 700 CANAL STREET STAMFORD , CT 06902 Attorney: JOHN WILLIAMS (Juris No. 067962) LLC 51 ELM ST STE 409 NEW HAVEN , CT 06510 ANN DUX 50 Party Name & Address Attorney: MAZZA & LEBLANC (Juris No. 408555) SUITE 475 1375 KINGS HIGHWAY EAST FAIRFIELD , CT 06430 Motions / Pleadings / Objections Entry No Entry Date |Description Initiated By Argu able Result Result {Ordered Date By 101.00 Feb 23 1998 REQUEST TO REVISE D No 102.00} Mar 13 1998 AMENDED COMPLAINT P No 103.00 1998 |Mar 23 JANS AND SPECIAL DEFENSE D No 104.00 Mar 23 1998 CLAIM FOR JURY OF 6 No 105.00 Apr 02 1998 [AMENDED COMPLAINT No 106.00 May 12 1998 NOTICE OF INTERROGATORIE No 107.00 May 14 1998 REQ EXTND DISCOVERY TIME No 108.00 May 29 1998 OBJ TO INTERROGATORIES No 109.00 Jun 08 1998 MOT FILE ADDED QUESTIONS No 110.00 Jun 11 1998 REQ EXTND DISCOVERY TIME No 111.00 Jun 17 1998 OBJECTION TO MOTION No 112.00 Jun 17 1998 OBJ TO EXTENSION OF TIME No 113.09 Jun 22 1998 AFFIDAVIT RE OBJECTION No 114.00} Jun 29 1998 MOT FILE ADDED DISCOVERY No Granted Hon. EDWARD KARAZIN 115.00 Oct 01 1998 ORDER 116.00 Nov 09 1998 AFFIDAVIT 117.00 Jan 28 1999 IMOT FOR ORDER-PB 13- 14 117.70 Feb 19 1999 DOCKET MANAGEMT- PLEADING 118,00/4PF 22 1999 REPLY TO SPECIAL DEFENSE 118.55 Apr 22 1999 TRIAL LIST 119.00 Jun 09 1999 NOT OF FILING REQ DMISS 120.00 Jul 14 DISCLOSE EXPERT 1999 jWITNESS NOTICE MOT WITHDRAW APPEARANCE MOTION FOR ORDER OBJECTION TO MOTION WITHDRAW MOTION MOTION FOR ORDER Dec 04 fHon. FRANK D 2000 IANDREA OBJECTION TO MOTION OBJECTION TO MOTION Hon. DOUGLAS MINTZ ORDER JUDGMENT OF DISMISSAL Dec 21 jHon. EXDWARD 2000 KARAZIN MOT OPEN DISMISSAL JOGMT Granted Feb 11 jHon. DOUGLAS 2002 MINTZ CASE Af TRL LIST STATUS MOT WITHDRAW APPEARANCE May 06 fHon. DOUGLAS 2002 MINTZ ORDER MOT WITHDRAW APPEARANCE SUPPLEMENTAL RETURN RETURN OF SERVICE COMPLIANCE REQ EXTND DISCOVERY TIME DISCLOSE EXPERT WITNESS OBJECTION Overruled Hon. EDWARD KARAZIN DISCLOSE EXPERT WITNESS ORDER MOT PROTECTIVE ORDER BRIEF 145.00}500,'* ICONSENT TO FILE Court {no oe a 147.00}5°°,'* ICOMPLIANCE D INo 148.00}5°°,'® JexHiBITS FILED D No So” foes” Yes See” [JOHN RYAN “1” foo p No |Denied [Om 9° [JOHN RYAN a. aa Ue INo JDenied [Om 9° [JOHN RYAN 151.00]50°.9° [MOTION FOR ORDER |P No |Denied [2™ 5 NOHN RYAN 20.” Romeo aes Yes Soca. PON RYAN 153,00[0% 16 JAPPEAL-APPELLATE | mi 154.00}50," [BILL OF COSTS D [no 155.10}.47 [COPIES OF COURT FILE [Court INo ean? Bearer” | fm | fer 157.0004. ICERTIFICATION re No |Denied ooo, Copyright © 2004, State of Connecticut Judicial Branch ze ‘ddy CONNECTICUT UNIFORM POLICE ACCIDENT REPORT FORMPR-1 AE 90 a | GPS TZADINGS: Lantuce: $f. . \ y eames ws a oes + , OATE OF aCci pe ACCIDENT SEVERITY i sine niaine PAGE®s : O ZOPAN ana a a = ane eh rae eg Oy wee ey cE (Sweet Name or Route 8) Time: PRINS ARS ; iF NOT AT INTERSECTION ree 2 OIRECTION 2 Me f! TG UNE OR MILE MARKER 1 MEASURE DISTANCE CO Terms of Mie =) Norm §() Soun idee (/ Creck Appropnsie Boxes) Cj Meters D Eas est . C Kilometers Acowent Occures: £) one Trvale Property (1) Panung Lot =~ liver ov erase C Pecesinan CD Non-Contact Vercie ent Hence CO Pecesinan (CD Non-Contact Vermcie e | lOPERATOR 61 o PEDESTRIAN NAME (Last First, Aicose invoal) OPBRATOR #2 or BROESTRIAN NAME (Last Ful Aeache inutia/) —— | Henan, Heme Ux, Han — Pay PROPER SEGLASS| [ADORESS (Steer r) PROPER LICENSE CLASS Ss Soe Dr Fe es ON T Brak ES Bes One : tA ce) SEX CITY OR TOWN STA zi sex | a ee PET ata Hes Hifosd Cf &7blo« ® Oey Sek ~ _|VEMICLE IDENTIFICATION NUMBER VEHICLE ! ‘BD /; 2 2 ERB PY oS 271413919| EPPO LK Go Vi 3 Ay ~~ h NAME CARRIER “| w fn} = N\. ee ADORESS (8, Street. City or Town. Siaie. Zip Coce) CARRIER ADOAESS (#. Sireet City or Town. Susie. Zio Coce) ' 1 URCE OF CARRIER NAME = Tv SOURCE OF CARRIER NAME _— ’ _, eee FS} age gie [ce] = ' | e e Bee e of Venice 5 —_—— a 3 MT | MAZAROOUS MATERIAL PLACARD x 5 == —— VEMICLE WEIG REQUIRED? a Yes Tine 4 Ogee stoss VEHICLE as eR — ae No 4 Dione [7 |RATING # DISPLAYED? ves Pino 101s '|_~=«SXIRATING ISAAvED? = ves No 1 Oars a ——— | nazancous CARGO ENFORCEMENT ACTION TAKEN hemes pp) |MAZARDOUS CARGO | ENFORCEMENT ACTION TAKEN ““erfone —= j *] |RELEASED? Cl Yes [oN0]™ ames: — women Wamung (1) Vercai Wamng RELEASED? — ves 7 No! Ares: — Ween Warrung “j Verbal Warmng | i3 ee OR ORO aps «s SUBJECT: Coors: i Camer STATUTE OF ORDINANCE ©'S jSyee-r= Cowra: = Came | ; ACTION Ci Owne: =) Pecesmnan — |ACTION — Owner = Decesman | Si jAUSMOBILE IRISU oy = “2 Tee . 5 598 ASOMOBILE INSURANCE POLICX 8 fg compere | aie L709 Ceccy oo d- -£C j= | 2) 'PARTS ty wer pe Tete Le TOWED OUE TO DAMAGE! = [VEHICLE TEWED TO = TOWED QUE TO DAMAGE, S— - La 2ow NOS — NAME AND ADDRESS OF EACH INVOLVED PERSON TRAFFIC UNIT «1 OPERATOR OR PEDESTRIAN #1 2A] QO [! TRAFFIC UNIT 82 OPERATOR OR PEDESTRIAN #2 ALL INVOLVED PERSONS on alt wivOl VED PENSONS 220m 68.-* md. 2 FOR ACCIDENT DIAGRAM ES ROvral INDICATE NORTH che shosider Irae . Lake Ave Ext phste shscicer Ine aE — ra 3) drivewe/ TAAFPFIC UNIT © { TAAVEUNG cee “AAFC UNIT es 2° LING | - — ea cE GW ON Les ke Ae ae ee on 4 Fp : ke Ase ET - = en | . , l a oe P | C= A steved Skates she heacn & han lelbtes/e 0 CoS struck by yedccle : ae App. 35 INCIDENT REPORT NARRATIVE SUPPLEMENT a » 6; 7S PRR Mob ackele gdeal ton 2 WOTISE” pe te ve Ext a Atvec, being CO PE PP hy ~ 7 Guctig ra, ec cain Vira, Occ idlexy bY Tfeconlac ted Ad | eraryrs’ Optra ZT, Pend Herod stated. $ ue ea tag FOE Yew Yor f. VYehrele HX Came broom Ykr el 7 d Avy Ker, cat/Thes Cor did sor gs¥od Aur Conav¥jnved vurpiag We KF ray mF Oe were ske parked" and woleed ack Wk A Hie Rar fmoacre OpH#t says, hee CaF Ar Qs Pirs Ke pare Skovider ot' poad. i A oT POPE ISR TY RPS BS hy vie Goll’ stavien aad frm AL. fia 'T ipa 36 waar oe Ethan Buea’ Znn. Hs she Got $6 “> Ware ¢ besan Yorn tak? sat _oare iDEWOy Ar Klay , S ruc vy A UDCA Piucag 7a figGhms kooidet. As her car Wash ac Ling Vic lene'sle epscrege > a LP SLATAY [oy mee _tomeac 7m APY eg ts. vel#T kas dhaee a) Pedy Side, eh Jak Homes tO ares srde thay, YArs Yas confined — wrk Dok OD¢re TORS TA ache laal Fepony ts uae miyisda Ky eure Vac. ¥ deh Tata. TAA Acs / SCO Yt AO A fi py OM ats rcdAtcl?, Gnd DOSr> - o £ A i § ot CREF oninltsh, eel “veficls pot ur G3 Bite hy 0G ae Ty YorA. TELE | glues YO Op era Yor H/ (as correc ¥ Ad Should stand - 2 Ma OFS TRIBUTION (F OR USE BY SHAFT COMM ONLY) FOLLOW-UP ACTIONS BY ly 47796 Lb Fobnih te WWRIEK GUIER FAME 4 10.06 1) ANIC | PEFIN REFINISH PR QUARTER PANCL OUTSIDE 7 4 C 2.5 12 #54200 COG) RENIVESREM ADE R QUARTER ROHESIVE NOULDIKS E82 6129076 & 3.42 6.2 15 AUTO REF IW WED'L LABOR OFR CLEAR’ COAT eee Fe 14 933005 6601 ADD'L LABOR GPR RESTORE CORFGSINN FROICCI ION! — =. Oan 1S $2302 REIN ALLL LALOR OPA STRIFE 0.068 O.5¢ * 1b P4aviz aol. CUS! HAZARDOUS WASTE DISPUSA ge = ee 17 - Mule AcE" COS! PRIMI MATERIALS fg 114.008 + Judcrecat [les : — are C Iucluded ie Clear Coat Cale Renarts CHICK § 4507257 ISSEL (0 (Std FUR DAGAGLS LESS be UILITiTt a *Coe;HiS 1S A GUPLLE. Joe FOIA LOSS. AAY SUPPLEMENT aed HESU oot : TOT LOSS Sinltts.enes Pall frior Gaseoe — WIMOSHICOY Chealife. AIC GAY OCKICe. Ul CAR Lett _ x ESTIMNGIL blind MUMe RP: 2/25/44 Pd:41:00 OGIIZIGHOUIGIU27-01 ; L. ¢ Wrchelt Out. Veriton: ((f 4 A 1 Copy sgt (C) 177u, Keleheld tetecnational v ( a i. . ‘ ; C1) Cr@htle Mager ved App. 38 DEPOSITION TRANSCRIPT OF THE PETITIONER The following are some portions selected from the petitioner’s deposition transcript and asked by the respondent’s counsel at the tnal. The responses which the petitioner gave at the time of the deposition were not transcribed as articulated verbatim by the petitioner at her deposition. As transcribed in the transcript of the deposition of the petitioner. Page 34, line 12-20. As soon as my vehicle was struck, I stopped my car. Okay. And where was your car? It was on the shoulder, you know. the white line? It was -- yeah. Okay. Q A Q Okay. And that would have been to the right of A Q A Within the white line. Should Read. (What the petitioner actually said at the deposition.) A As soon as my car was struck, I stopped my car. Okay. And where was your car? It was on the shoulder. Okay. And that would have been to the nght of the white line? Yes. App. 39 Please note, the petitioner did not say, “Within the white line.” at the time of the deposition because it is incorrect and completely contradicts the petitioner's version of the accident. The petitioner would not say, “Within the white line” because her car was not “within the white line”. The petitioner’s car was not within the shoulder, but it was partly within the shoulder and partly outside the shoulder. As transcribed in the transcript of the deposition of the petitioner. Page 37, line 12-13. A When the police arrive, I was sitting in my car. And, uhm, she ran up to the police officer. Should Read. (What the petitioner actually said at the deposition.) A_ I was sitting in my car waiting for the police to arrive. When the police arrived, she ran up to the police officer. Please note, how the actual response of the petitioner was altered deliberately to contradict the petitioner’s version of the accident and her situation. As transcribed in the transcript of the deposition of the petitioner. Page 51, line 22-25 to Page 52, line 1. Q Allright. Were you hurt at all immediately after the accident? A Uh, I was -- I was -- I had -- I was following -- immediately after the accident, | guess, I had a Page 52, line 1. blackout during the accident. Should Read. (What the petitioner actually said at the deposition.) Q_ Iwas foggy immediately after the accident. I had a blackout. Please note, how the actual response of the petitioner was altered deliberately to make it incoherent and to discredit her version in favor of the respondent. Many redundant words were put in to ridicule and humiliate the petitioner and to show she has limited skills in speaking and understanding English and has problems organizing her thoughts. Page 52, line 2-5. Q When you say had a blackout, did you actually lose consciousness? A You know, you see, uhm, I was not rea!ly conscious at the time. That’s what I can say. Should Read. (What the petitioner actually said at the deposition.) Q When you say had a blackout, did you actually lose consciousness? A What do you mean by lose consciousness? I do not understand. Please note, how different the petitioner’s actual response is from the fabricated response. The petitioner’s response was altered completely to undermine her credibility and to disparage her injuries and sufferings. App. 41 TRIAL TRANSCRIPT OF THE PETITIONER Trial Transcript of September 17, 2002 In the following dialogue, the respondent’s counsel questioned the petitioner about the facts relating to the accident and pointed out to the petitioner, the discrepancies in what the petitioner had stated below at the trial to that of the transcript of the petitioner’s deposition. Page 90, line 10-27. Q Now, as soon as the accident happened, you stopped your car; is that nght? A Yes. Q_ And when you came to a stop, when your car stopped, it was in the shoulder to the nght of the white line; isn’t that nght? A_ No, that’s not really nght. Because part of -- like I mentioned before, part of my car was in shoulder, part of my car was outside the shoulder. Q Do you remember a couple of years back you gave deposition testimony in my office? A Y¥¢.- Q_ At your deposition, didn’t you tell us that the vehicle came to a stop to the right of the white line? A Yes. It depends on which way you look which is the night. Q_ Okay. So, you did say that, you did tell me that in your deposition -- Page 91, line 1-27. A Yes. I did say that it was nght. Q And didn’t you also tell us that it was within the white line when your vehicle came to a stop? Isn’t that night? A No, I didn’t say that. I did not say that. But App. 42 it was in my transcript of deposition, that’s all I can Say. Q_ Do you recall a deposition back on April -. 1999? Is that right? A Yes. Q And at this deposition, you were asked to swear to tell the truth, the whole truth and nothing but the truth; is that nght? A Yes. Q_ I will ask if you remember this question and giving these answers. A THE COURT: Who was there? Was your lawyer there with you? THE WITNESS: Yes. THE COURT: Okay. MS. ENGSTROM: Excuse me -- MR CASSIDY: And at the time, I believe that was Christine O’ Sullivan. MS. ENGSTROM: Could you please specify what page you’re on? MR. CASSIDY: Sure. This is page 34 -- MS. ENGSTROM: Okay. Page 92, line 1-27 MR. CASSIDY: -- line 16. Actually, I'll move up to line 12. Okay? BY MR. CASSIDY: Q “Immediately after the two vehicles made contact, what did you do?” Answer: “As soon as my vehicle was struck, I stopped my car.” That’s what you said earlier; right? A Yes. Q Okay. Then question: “Okay. And where was your car?” Answer: “It was on the shoulder, you know.” App. 43 And that’s what you told us earlier; Is that right? A Yes. Q Okay. Question: “And would that have been to the right of the white line?” Answer: “It was -- yeah.” Question: “Okay.” Answer: “Within the white line.” So, do you remember telling Attorney Donahue from my office at the time that your car was within the white line when it came to a stop? A No. Q You don’t remember saying that? A I never said that, because the car was not within the shoulder of the road. Page 93, line 1-27. Q Okay. Did you understand the question -- A I understand the question -- Q_ -- that Attorney Donahue was asking you? A_ -- but at the time of the deposition, that question was not asked. Q Are you saying -- THE COURT: Wait a minute, now. I’m getting a little confused. Why don’t you show her the page? MR. CASSIDY: Sure. THE COURT: The question, madame, is if you were in the room at that time and they were questioning you, do you recall that? And they claim that this is a transcript of what was said, that the questions were asked to you and these were your answers. Do you want to read it and see whether or not you agree or disagree with that -- THE WITNESS: I disagree with that, because App. 44 I didn’t say that. THE COURT: So, you’re saying what is printed there is not what you said -- THE WITNESS: Yes. THE COURT: not whether it’s right or wrong. It might have been your opinion at this time. It might be that you were wrong, and then you’re right now. You might be night then and Page 94, line 1-27. wrong now. We’re not asking you that. I’m just asking you basically: You’re saying that which you have in front of you was not actually said and answered? THE WITNESS: Yes. I never said that at the deposition, between the white line, because it’s absolutely incorrect. I would never say that. THE COURT: But, I mean, you might have said it and you might have been incorrect at that time, and you can correct the mistake and tell the jury now. I just want to make sure, because we -- is this signed by her? I don’t know where the signatures are. MS. ENGSTROM: May we approach, Your Honor? THE COURT: Yes. Excuse me a minute. (Side bar discussion off the record.) (End of discussion at the side bar.) THE COURT: Ladies and gentlemen, we think there are other papers in this file that may help to straighten out what the inconsistencies or what the problems developing are. ! thought we might be able to get it straightened out right now. What I'd suggest is that we either stop the cross examination and we work it out; or, counsel, if you want to release that issue and proceed App. 45 further and we'll straighten that out tomorrow. Page 95, line 1-27. Because we’re now running out of time. So, I don’t know whether you want to go on further. MR. CASSIDY: Why don’t we release the issue for now and then -- THE COURT: All nght. We’ll get back to that later -- MR CASSIDY: -- we’ll work it out tomorrow? THE COURT: -- and straighten it out. Because what we’re doing now seems to be indicating that she is saying that there might be an error in the transcript itself, and that’s incorrect. And there are remedies or other situations and paperwork that might straighten that out or it might not straighten it out. So, we'll just leave that open for a little while and straighten it out, what’s going on. But you can get into situations where they made the statement, but now they realize that they -- at least their testimony now would be that that statement is incorrect and the testimony they’re giving you now is correct. And, of course, you’ve got to figure out what weight and credibility you give to it. So, that could be the situation. But at the present time, she seems to be denying to the effect that the question was actually asked and answered by her. So, we’ve got to straighten that Page 96, line 1-27. point out and see what’s going on. You may proceed, counsel. MR. CASSIDY: Thank-you, Your Honor. App. 46 BY MR. CASSIDY: Q_ The police arrived; is that right? A Yes. Q__ And you spoke with the police officer who arrived; is that nght? A Yes. Q_ When the police officer arrived, your vehicle was in the same position that it was immediately after the accident; isn’t that right? A Yes. Q And when the police officer arrived, you had the opportunity to speak to the police officer; is that right? A Yes. But I wasn’t able to explain to him fully my version of the accident. Q Okay. You were upset at the time when the police officer arrived because of the fact that you were involved in an accident; is that fair to say? A Yes. Q_ Okay. And did you tell the police officer -- well, isn’t it true that you told the police officer that you were driving in the shoulder of the roadway and you thought that was a moving lane for traffic? A No. I never told the police officer such a thing like that. Page 97, line 1-27. Q _Isn’t it true that you told Ms. Dux that you thought that that was your lane for traffic in the shoulder area, and that’s the lane you were proceeding in at the time of the accident? A No, I never made such a comment to Ms. Dux at all. Q_ So, when the police officer arrived, you were in your car? A When the police arrived, I was not in my car. I was getting out of my car and walking towards him. THE COURT: Let me come on the record, Mr. App. 47 Cassidy. If I understand correctly -- and you correct me if I’m wrong -- but right after the collision, you brought your car to a stop, and it wasn’t moved? THE WITNESS: Yes. THE COURT: And you were driving westerly, so when you got out of the door of the car, where was the white line in relationship when you stepped out of the door? Did you observe where the white line was? When you stepped out, did you step on the nght or the left of that white line, if you can recall? THE WITNESS: On the left-hand side. THE COURT: You're saying you were on the left-hand side when you -- THE WITNESS: Well, I had to step on the Page 98, line 1-27. left-hand side -- THE COURT: Well, you’re getting out of your car, so your car -- if I have it nght now, I don’t want to get on the wrong side of the road -- but I think I’m going westerly, on the westerly shoulder or in the westerly lane here, whatever I’m in, I stop. My car is there, some portion. You'll pick up the diagram. When I open the door, I think I’m either going to be over the white line to my nght, or on the white line, or to the left, somewhere in there. I think if counsel can develop that, it might give you a better idea of where that margin line is. THE WITNESS: Well, when I got out of my car, I was on the left-hand side. THE COURT: Okay. App. 48 BY MR. CASSDY: Q_ So, your car was to the right of the shoulder, is that fair to say, as you indicated earlier? A_ I don’t recall seeing the right-hand side part of the car outside on the left-hand side. Q. Okay. THE COURT: Okay. That’s what I was looking for. BY MR. CASSIDY: Q_ Now, when the police arrived, you were in your car Page 99, line 1-27. or you weren’t in your car? A_ I was walking towards the police officer. Q_ Well, do you recall, again in that deposition, that you had told Attorney Donahue that when the police officer arrived, you were sitting in your car? A No, I did not say that I was sitting in the car. Q_ Let me just show you page 37, line 11. If you could just read it. THE COURT: You can read it to yourself, ma’am. BY CASSIDY: Q. That’s fine. Read it to yourself. Let me just show you where the lines are. It’s those lines. Read it to yourself first. A (Witness examined document.) Q Now, does that refresh your memory -- are you finished reading it? A Yes. Q. Does that refresh your memory that you told Attorney Donahue that you were in your car at the time that the police arrived? A_ Let me mention the deposition is incorrect. What exactly I told Attorney Donahue at that time was that when the police arrived, I was walking -- let me think a minute. App. 49 I was sitting in the car waiting for the police to arrive. And when the police arrived, she ran out to the police officer. Page 100, line 1-27. Q_ Are you telling me that the transcript is incorrect, that you did not tell Attorney Donahue that you were in the car at the time the police arrived? A That transcript is incorrectly done. Q_ That’s what you’re telling me? Okay. Now, you told the police officer there at the scene that you were hit by a car that was coming from the left; is that nght? Is that correct? A Yes. Q_ And he asked you which car was behind, and you told him that your car was behind the Dux’s vehicle; is that night? A Yes. Q_ And when your car was hit, the Dux vehicle was in front of your vehicle; is that right? A Yes. Q_ And when the impact occurred, your car stopped immediately; is that right? A Yes. It was stopped immediately and was pushed to the shoulder of the road. Q Well, when the impact occurred, did you stop your car immediately? A Everything happened in such a flash, so I don’t know what exactly happened. So, I stopped my car, but my car was pushed to the shoulder because of the impact. Q. Again referring to the deposition transcript with Attorney Donahue, page 34, line 10, question: “Immediately Page 101, line 1-27. after the two vehicles made contact, what did you do?” App. 50 Answer: “As soon as my vehicle was struck, I stopped my car.” Do you recall -- A Yes. I said that, yes. Q_ -- answering that question? A Yes, that’s what I said. And that’s what happened. I stopped my car. Q Okay. So, immediately after the vehicle made contact, you stopped your car? A Yes, that’s right. That part of the deposition is right. Q_ And when your car stopped, it was in the shoulder lane; isn’t that right? A_ Not exactly in the shoulder. Partly in the shoulder -- THE COURT: She said a portion was in the shoulder lane, counsel. BY MR. CASSIDY: Q_ Now, let me take you back away from the accident scene a moment. Before the place where the accident happened, there is a traffic light you have to pass on Lake Avenue Extension; is that right? A Yes. Q Okay. How many lanes for moving traffic are there at the place where the traffic light is? A There are two lanes at first, and then they merged Page 102, line 1-27. into one. Q Okay. So, there are two lanes at the intersection before the place where the accident happened; is that right? A Yes. Q_ Then after that intersection, it turns into one lane, is that right? A Yes. App. 51 Q_ And then there’s a shoulder on the nght? - A Yes. Q So, there’s one lane for moving traffic, and there's a shoulder on the nght; is that nght? A Yes. Q Okay. Now, when the impact occurred, isn’t it your claim that you blacked out to some degree? A Yes. I had a blackout at the time of the accident. Q Okay. And isn’t it your claim that you lost consciousness for a period of time? Isn’t that true? A No. I did not lose consciousness at all. Q_ Referring to the deposition transcript, page 52, line 2, “When you say you had a blackout, did you actually lose consciousness?” Answer: “You know -- you see -- um -- I was not really conscious at the time, that’s all I can say.” Do you remember giving that answer to that question? Page 103, line 1-27. A No, I didn’t give that answer. What I was saying was that -- I mentioned at the time of the deposition, ‘What do you mean by ‘lose consciousness’? I do not understand what you mean by that.” Something else was put in there. And I’m not going to admit something that was put there, someone put in there for me. Q So, you’re saying the transcript is not correct when it states, “I was not really conscious at the time”? A Yes. Because I was conscious at the time. I just had a blackout. A blackout doesn’t mean that I lost consciousness. Q Okay. Well, I’m just asking about the transcript. You’re saying the transcript is not accurate? A Yes. App. 52 Q_ And you also claim that you were foggy when the accident occurred as well; isn’t that right? A Yes, I was little foggy. Q_ Okay. So, you saw the Dux vehicle on impact for the first time. You say you blacked out and were foggy? A Yes. Q And you -- A That was immediately after the accident, not at the time of the accident. It was after the collision occurred that I was a little foggy, and I had a blackout -- Q Okay. But you said you blacked out immediately after -- when the -- immediately after the accident Page 104, line 1-27. occurred, you blacked out. That’s what you said; right? A Yes. Q__ So, even though you saw the other car on impact for the first time and you said you blacked out immediately after the accident -- A Excuse me. Can I say one thing? It was not at the time of the collision, it was after the collision as I have testified. THE COURT: But you were still sitting in the car, right? THE WITNESS: Yes. THE COURT: And that was a few minutes or a few seconds after the accident that this started developing, you blacked out and you felt a little fuzzy or foggy? THE WITNESS: After the collision. THE COURT: You had no problem before the accident? THE WITNESS: Yes. I did not have any problem before the accident. BY MR. CASSIDY: Q_ But immediately after the collision, you have this App. 53 blackout ; is that mght? A I would like to explain the word “immediately.” When I say immediately after the collision, it’s when everything has occurred, all of the collision and everything has all occurred. Like my car was pushed to the Page 105, line 1-27. shoulder, and her car was parked in the parking lot. That's the time that it happened, not at the time when I was driving. I did not have a blackout, I was conscious at the time when I was driving. MR. CASSIDY: I would just move to strike the unresponsive portions, Your Honor. THE COURT: I’m going to overrule that. BY MR. CASSIDY: ; Q Well, do you remember this question at the deposition and giving this answer? Page 51, line 22. “All mght. You were hurt? Were you hurt at all immediately after the accident?” “T was, I was. I had -- I was following -- immediately after the accident, I guess I had a blackout during the accident.” Do you remember giving that answer to that question back in the deposition? A Yes, I do. Q Okay. So, you had a blackout during the accident, that’s when you said during the deposition; is that right? A Yes. Q Okay. So, you saw the other vehicle on impact for the first time, and you had a blackout during the accident. But you are still able to tell us the speed of the Dux vehicle at the time of the accident; is that night? A Yes. Q. Okay. And you’re still able to tell us that it App. 54 Page 106, line 1-10 was proceeding in a westerly -- oh, I’m sorry -- in an easterly direction on Lake Avenue Extension? A Yes. Q_ Even though you saw it on impact; is that right? A Yes. Q_ And you’re saying that the Dux vehicle was going 55 miles an hour at the time of the accident -- A Yes, she was. Q_ -- is that what your estimate was? A Yes. She was traveling at a very high speed. App. 55 The transcript of the petitioner’s deposition is false and inaccurate and was tampered with and falsified as it did not reflect the actual proceedings that took place at the deposition, and the transcript was used against the petitioner. At the tnal, the respondent’s counsel, especially brought out those statements which the petitioner did not make at her deposition, but they were put in the transcript just to discredit the petitioner’s version of the accident in favor of the respondent and to discredit her injuries and sufferings. The responses of the petitioner were rearranged, altered, rephrased, rehashed, and contorted and words were added to the petitioner’s statements to make the petitioner sound like an unreliable and unintelligible witness to the accident and to give a poor impression of the petitioner. The dialogue or parts of the dialogue that were put in the transcript of the deposition include incorrect facts which completely contradict the petitioner’s version of the accident and her situation. Many redundant words were put in the deposition transcript in the responses of the petitioner to make the petitioner seem like a person who has limited skills in speaking and understanding English and who has problems organizing her thoughts while she speaks to explain away the incorrect police accident report. The deposition transcript shows words, intentionally and deliberately, used to ridicule and humiliate the petitioner. Some of the responses of the petitioner were altered or rephrased, so they completely contradict the petitioner’s version of the accident and her situation in favor of the respondent’s version. Significant details of the accident which were brought out by the petitioner were omitted from the deposition transcript to undermine the credibility of the petitioner and to discredit her version of the accident in favor of the respondent. Expressions which she did not use at the deposition have been added in the deposition transcript and made to seem like she actually said them. In many of the altered responses of the petitioner for the deposition transcript, her expression of App. 56 stating her responses or using certain words were selected to make it seem like she actually gave the responses, herself. This was done to ridicule her and to create a poor impression of her. Statements, not mentioned by her during the deposition were included in the deposition transcript along with the statements that she made during the deposition. Fabricated words were added to the deposition transcript to make it seem like she was trying to make her version of the accident seem reliable. Overall, the deposition transcript was craftily done, it was very difficult to detect the inaccuracies and defects as it required numerous readings to detect them. All the errors, omissions, additions, and alterations in the petitioner’s deposition transcript were done intentionally and deliberately in an effort to assist the respondent and to create a poor impression of the petitioner and that she does not have the ability to speak and understand English, well, and to ridicule and humiliate her with the sole purpose to discredit her version of the accident and to undermine and disparage her injuries and sufferings in favor of the respondent. The respondent’s counsel as well as the Stamford Superior Court and Trial Court of Connecticut were aware that the petitioner did not agree with the manner the deposition transcript was transcribed as the petitioner’s counsel informed the respondent’s counsel and the Court about the inconsistencies in the petitioner’s deposition transcript well in advance even before the trial was scheduled to take place. The respondent’s counsel mentioned at the tral, the petitioner stated her car was within the shoulder at the deposition and read that portion. (9/17/02 Tr. p. 92-94; Dep. Tr. p. 34, line 12-20). The petitioner mentioned at the tnal, her car was not within the shoulder and she would never say her car was within the shoulder, and that the statement was App. 57 put in the transcript. The respondent’s counsel had the words “within the white line” (Dep. Tr. p. 34, line 12-20) put in her deposition transcnpt to discredit her version. This was done to show she had indeed been traveling in the shoulder and the respondent was in the intended lane next to her. The respondent’s counsel read a portion from the deposition which states, the petitioner had a blackout. In the petitioner’s deposition, it shows the petitioner stating that she had a blackout after the accident in terms of what she said at the deposition. (Dep. Tr. p. 51, line 22-25 to page 52, line 1). However, the respondent’s counsel wanted the petitioner to admit, she actually had a blackout at the time of the accident by harassing her over and over again to confuse the petitioner, so she would give the incorrect response, claiming she said at the deposition she had a blackout at the time of the accident to show it is not possible for her to determine the respondent came from_the left, across the other side of the street as she was not in the proper frame of mind or physical condition to witness the respondent coming from the opposite side of the street. (9/17/02 Tr. p. 102-106) The respondent’s counsel read a portion from the deposition transcript which states the petitioner lost consciousness. (Dr. Tr. p 52, line 2-5). The petitioner mentioned at the trial, she did not lose consciousness and that was not what the petitioner stated at her deposition. (9/17/02 Tr. p. 102-106). At her deposition, the petitioner only asked a question seeking for clarification of the term “lose consciousness”. However, the respondent’s counsel had the transcript altered to read as the petitioner stating that she “was not really conscious at the time”. (Dep. Tr. line 2-5). This was done to show since the petitioner said at the deposition that she lost consciousness, she could not have witnessed the respondent coming from the left across the other side of the street, and it was only her imagination that the respondent came from the opposite side of the street and App. 58 that the petitioner was not in control of her car and herself because she lost consciousness thereby causing the collision. The respondent’s counsel tried to show the petitioner was not interested in speaking to the police officer about the accident by reading a portion of the transcript which states when the officer arrived, the petitioner was sitting in her car. The petitioner said at the trial, she did not say that and she actually said at the deposition, she was sitting in the car, waiting for the police to arrive. The respondent’s counsel had the petitioner’s response altered to discredit the petitioner’s version of the accident in favor of the respondent. The respondent’s counsel may be trying to show the reason why the police officer did not take any interest in the petitioner’s version was because she was not keen in meeting the officer, quickly, unlike the respondent who ran to meet the officer. The respondent’s counsel did not have to bring out the inconsistencies in the deposition transcript to show that it was contrary to what the petitioner said at the trial as he was fully aware of the complaints that she made about that transcript. However, since the respondent’s counsel being fully aware that the deposition transcript is false and inaccurate and yet, he set out with the intent to ridicule, and humiliate, and intimidate the petitioner and he set out with malice to discredit her version in favor of the respondent, the petitioner is left with no choice but to highlight the inconsistencies in her deposition transcript and to explain her version. In short, the respondent’s counsel was trying to show the petitioner as a very inconsistent person — she said something at the deposition and another thing at the trial and to add to that she denied what she had said at the deposition and accused others. Hence, the respondent’s attorney was showing at the trial, the petitioner could not be believed and she is an unreliable witness to the accident and to discredit her version of the accident in favor of the respondent. App. 59 ISSUES PRESENTED ARGUMENT The Court erred in denying the plaintiff's motion to set aside the verdict, since the evidence proved the accident could not have occurred in the manner alleged by the defendant, it being at the time impossible for an automobile to travel in the right shoulder of the roadway. The Court erred in prohibiting the plaintiff from presenting evidence relevant to the speed at which the defendant’s vehicle was traveling. III. The Court committed plain error in charging the jury that they had unbridled discretion in determining their verdict. II. III. App. 60 QUESTIONS PRESENTED FOR REVIEW DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING THE PLAINTIFF’S MOTION TO SET ASIDE THE JURY VERDICT WHEN EVIDENCE PRESENTED BY HER SHOWED THE ACCIDENT COULD NOT HAVE OCCURRED IN THE MANNER ALLEGED BY THE DEFENDANT AND THAT A REASONABLE AND AN IMPARTIAL JURY COULD NOT HAVE BELIEVED THE DEFENDANT’S VERSION SINCE HER VERSION DID NOT EXPLAIN THE DAMAGE CAUSED TO THE PLAINTIFF’S VEHICLE AND THE DAMAGE SUSTAINED BY BOTH VEHICLES IS INCONSISTENT WITH THE VERSION ADVANCED BY THE DEFENDANT? THE APPELLATE COURT OVERLOOKED AND DID NOT RULE ON THE ISSUE RAISED IN THE OPENING BRIEF THAT THE MERE EVIDENCE THAT THE SHOULDER OF THE ROAD IN THE AREA CANNOT BE TRAVERSED BY A VEHICLE SHOWS THAT THE DEFENDANT’S VERSION OF THE ACCIDENT WAS NOT SUPPORTED BY FACTS. “NOT ONLY WAS THE DEFENDANT’S VERSION CONSISTENT WITH THE DAMAGE SUSTAINED BY BOTH VEHICLES, IT ALSO WAS BOLSTERED BY FRINTON’S TESTIMONY THAT IN HIS OPINION, THE ACCIDENT OCCURRED IN THE MANNER DESCRIBED BY THE DEFENDANT.” MENON V. DUX, 81 CONN. IV. V. App. 61 APP. 174 (2004). IS IT FAIR, THE TESTIMONY OF A POLICE OFFICER WAS GIVEN A GREATER WEIGHT THAN A TESTIMONY OF THE PLAINTIFF’S MOTHER WHEN THE OFFICER WAS NOT PRESENT WHEN THE COLLISION OCCURRED IN CONTRAST TO THE MOTHER WHO OBSERVED HOW THE ACCIDENT OCCURRED AND HER VERSION “ESSENTIALLY MIRRORED THAT OF THE PLAINTIFF”? ID. P. 175. WHEN THE POLICE OFFICER’S TESTIMONY SHOWED HE HAD NOT BEEN AN IMPARTIAL PARTY TO THE ACCIDENT, AS HE WAS SUPPOSED TO BE AS A POLICE OFFICER, AND AND HE HAD TAKEN THE SIDE OF THE DEFENDANT AS HIS TESTIMONY SHOWED THAT HE MADE STATEMENTS CONTRARY TO WHAT THE PLAINTIFF CONVEYED TO HIM AT THE ACCIDENT SCENE AND FROM THE THE ISSUES THE PLAINTIFF RAISED AT THE TRIAL AND ALSO IN HIS POLICE ACCIDENT REPORT, HE OMITTED DETAILS THE PLAINTIFF SAID AND EXCUPLATORY EVIDENCE AND HE ADMITTED HE MADE ERRORS IN HIS REPORT AND HE ADMITTED HE RELIED UPON THE DEFEDANT’S WORDS, IS IT FAIR TO CONSIDER THE OFFICER A RELIABLE WITNESS TO THE ACCIDENT? “(T]HE PLAINTIFF’S TESTIMONY ROUNDLY CONTRADICTED THAT OF THE DEFENDANT, AND THE JURY REASONABLY COULD HAVE ELECTED TO BELIEVE THE PLAINTIFF AND NOT THE DEFENDANT.” MENON V. DUX, 81 VI. VIL. VII. App. 62 CONN. APP. 174 (2004). IS IT FAIR, IN THIS CASE, WHEN ONE OF THE PARTIES, THE PLAINTIFF, IS A MINORITY TO HAVE NOT A SINGLE MINORITY JUROR FOR THE TRIAL THOUGH HAVING MINORITY JURORS MAY NOT GUARANTEE A VERDICT IN FAVOR OF THE PLAINTIFF AS BOTH PARTIES SHOULD BE SIMILARILY SITUATED TO ENSURE A VERDICT COULD BE REACHED IN A FAIR MANNER? IN REFERENCE TO THE CHARGING CONFERENCE CONDUCTED BY THE TRIAL COURT, DID THE TRIAL COURT ERR IN HOLDING THAT IT WOULD NOT CHARGE THE JURY ON SOME OF THE STATUTORY PROVISIONS INVOLVED IN THE COMPLAINT? THE OPENING BRIEF RAISED TWO CHARGES GIVEN BY THE TRIAL COURT JUDGE, WHICH ARE PLAIN AND PREJUDICAL ERRORS. HOWEVER, THE APPELLATE COURT OVERLOOKED AND DID NOT RULE ON ONE OF THE CHARGES THAT WAS RAISED IN THE BRIEF. DID THE PLAINTIFF’S UNPRESERVED CHALLENGE REGARDING’ THE TRIAL COURT’S JURY INSTRUCTIONS WARRANT A PLAIN ERROR REVIEW WHEN ~~ THE INSTRUCTIONS GAVE THE JURY UNBRIDLED DISCRETION TO DO WHATEVER’ THEY WANTED IN THE CASE WITH’ THE ASSURANCE THAT THEY NEED NOT HAVE TO WORRY ABOUT THE VERDICT? XI. App. 63 SHOULD THE PLAINTIFF BE PENALIZED FOR HER COUNSEL’S ACTION WHEN THE PLAINTIFF’S COUNSEL ACQUIESCED TO THE TRIAL COURT’S RULING ABOUT THE COST TO REPAIR THE DAMAGE OF THE PLAINTIFF’S VEHICLE AS THE PLAINTIFF RESPONDED, “YES” IN RESPONSE TO HER COUNSEL’S QUESTION AND NOT “NO”, OR “I CAN’T RECALL,” OR “I’M NOT SURE” ....? DID THE APPELLATE COURT ERR IN DECLINING TO REVIEW THE PLAINTIFF’S CLAIM ABOUT THE COST TO REPAIR HER VEHICLE, STATING THAT THE CLAIM WAS RAISED FOR THE FIRST TIME ON APPEAL WHEN THE ISSUE WAS ADEQUATELY RAISED ON THE RECORD TO WARRANT REVIEW ON APPEAL? IS IT FAIR TO STATE, “ALTHOUGH THE PLAINTIFF ATTEMPTED TO INTRODUCE TESTIMONY OF THE EXTENT OF THE DAMAGE TO HER VEHICLE, SHE DID NOT ARTICULATE ANY EVIDENTIARY RULE ON WHICH SUCH TESTIMONY WAS ADMISSIBLE” (MENON _V. DUX, 81 CONN. APP. 171 (2004)) AND “THE PLAINTIFF DID NOT SEEK REVIEW OF THE UNPRESERVED GROUND UNDER THE RUBRIC OF PLAIN ERROR’”’ (ID. P. 175) AND “(WJE THEREFORE DO NOT CONSIDER WHETHER REVIEW OF THE CLAIM IS WARRANTED UNDER THE PLAIN ERROR DOCTRINE”? (ID. P.175). XII. App. 64 IS IT FAIR TO STATE, “THE VERSION OF EVENTS ADVANCED BY THE DEFENDANT AND ACCEPTED BY THE JURY WAS ADEQUATELY SUPPORTED BY THE RECORD,” (MENON _ V. DUX, 81 CONN. APP. 174 (2004)) WHEN THE DEFENDANT HAD PROFESSED AN INABILITY TO RECALL A NUMBER OF DETAILS PERTAINING TO THE ACCIDENT AND AN EVASIVENESS ABOUT THEM? App. 65 Portion of the Trial Transcript of the Charge given by the Court on 9/18/02. Page 161, line 19-27; p. 162, line 1-27; p. 163, line 1-2. Page 161, line 19-27. Ladies and gentlemen, if there’s false testimony, now you may also bear in mind that if you find that any witness has deliberately testified falsely on any material point, you may take that in consideration in determining whether he or she has testified falsely on other points. If you find a witness has not testified accurately with respect to one fact, that does not necessarily mean that he or she is wrong on every Page 162, line 1-27. other point. A witness may be honestly mistaken on one point in his or her testimony, and be accurate on others. But if you find that a witness has deliberately lied on any material point, you may be suspicious of his or her testimony on all points. Under those circumstances, you may disbelieve his or her entire testimony according to your own sound judgment. Assessing the credibility and testimony of witnesses might be described simply as the plausibility of it. That is, does it ring true? Are there inconsistencies in it? How did it fit with other evidence that you heard in this particular case? It is your duty as jurors to harmonize the evidence insofar as it reasonably can be done. You are to test the evidence of the several witnesses by your own knowledge of human nature and the motives which influence and control human nature, using the same good judgment which you apply to facts which are daily presenting App. 66 themselves for your consideration and decision. Ladies and gentlemen, if there is a party who made a prior statement in a pleading or in an answer to an interrogatory or deposition which is inconsistent with the court testimony, you may Page 163, line 1-2. consider this as affecting the party’s credibility adversely. App. 67 TRIAL TRANSCRIPT (9/17/2002) Page 9, line 26-27. And, of course, if the attorneys during the trial think I made a prejudicial error, they have Page 10, line 1-18. a right to have a transcript made, go up to the appellate court, and the appellate court can say I’m wrong, but then the appellate court can be reviewed by our supreme court in Connecticut, who can say the appellate court is wrong. And then everybody in certain instances can go down to Washington, and then the Supreme Court can say we're all wrong or we’re all nght, but then Congress can change the laws, so everything balances out in the end, except when it comes to a jury. A jury’s verdict is absolutely final. You cannot make a mistake if I accept your verdict, because the fact pattern is not reviewed. So, you folks never have to worry about doing the right thing. If your verdict is accepted by the Court, it is the correct verdict and it can never be over put -- changed. The verdict is never changed. Page 16, Line 7-10 There are other things by their very nature that are said or done to declare a mistrial just like that. If that happens, of course, we’ve got to start all over. Page 25, Line 18-26. I said, well, look, as long as you’re not holding it on appellate review -- I don’t want you to go up to a higher court and say I let anyone sleep during the testimony, because it would be an App. 68 automatic reverse. And the judicial counsel who sits in judgment of me as a general person wouldn’t be too happy for my performance to be letting any jurors sleep. So I said, okay, we’ll see. TRIAL TRANSCRIPT (9/18/2002) Page 47, Line 19-27 and Page 48, Line 1-6. Page 47, Line 19-27. THE COURT: Well, not now. Then they tell me that they are automatic dialing over the internet, so it can flash up to Hartford. So, I guess the Chief Justice or whatever he is, he can watch what’s going on in the courtroom. They say, however, Hartford can’t turn it on, nor the marshals can’t turn it on. But we’d better be careful. Of course, if we had our modern units, but we are using a tape here as Page 48, Line 1-6. opposed to the new equipment, the new equipment goes to Hartford and everything we say is recorded and it’s kept for eternity. So, when we’re on the record, I always praise Hartford. When we’re off the record, I don’t say anything. Page 101, Line 17-22. ases EOY say the actual image goes to Hartford immediately digitally, the same as what we would be doing if we had our machine on. It’s kept for 90 days; and - then I guess if there’s no problem, it will be released. So, I’ve got 90 days to see myself. App. 69 Page 157, Line 10-17. THE CHARGE THE COURT: All nght, ladies and gentlemen, that brings us up to the point that I have to charge you on the principles of law. And as I said to you, it’s a rather long, complicated statement. It’s usually for the best interest of the appellate court to see whether we made a mistake at law. Page 159, Line I-11. Principles of law, of course, are binding for you, and you must bring them in your jury room and apply them. And, of course, the reason for that is we cannot go into your room. Once you start to deliberate and ask to see whether you’re obeying the law the judge gave you. So, the appellate court and I assume that the principles of law as it relates to the rules of the law, you will bring that and you will apply that to the evidence, and that will reach your verdict. > Persons Killed or Injured and Fatality and Injury Rates per Population, Licensed Drivers, Registered Vehicles, and Vehicle Miles Traveled, 1966-2002 Killed Fatality Rate| Registered | Fatality Rate : ’ Resident | Fatality Rate; Licensed | per 100,000 Motor _| per 100,000 | Vehicle Miles| Fatality Rate Population | per 100,000 Drivers Licensed Vehicles Registered Traveled ~ per 100 Year Fatalities | (Thousands)| Population | (Thousands) Drivers (Thousands); Vehicles | (Billions) | Million VMT 1966 50,894 196,560 25.89 100,998 50.39 95,703 53.18 926 5.50 1967 50,724 198,712 25.53 103,172 49.16 98,859 $1.31 964 5.26 1968 52,725 200,706 26.27 105,410 50.02 102,987 51.20 1,016 5.19 1969 53,543 202,677 26.42 108,306 49.44 107,412 49.85 1,062 5.04 1970 52,627 205,052 25.67 111,543 47.18 111,242 47.31 1,110 4.74 1971 52,542 207,661 25.30 114,426 45.92 116,330 45.17 1,179 4.46 1972 54,589 209,896 26.01 118,414 46.10 122,557 44.54 1,260 4.33 1973 54,052 211,909 25.51 121,546 44.47 130,025 41.57 1,313 4.12 1974 45,196 213,854 21.13 125,427 36.03 134,900 33.50 1,281 3.53 1975 44,525 215,973 20.62 129,791 34.31 126,153 35.29 1,328 3.35 1976 45,523 218,035 20 88 134,036 33.96 130,793 34.81 1,402 3.25 1977 47,878 220,239 21.74 138,121 34.66 134,514 35.59 1,467 3.26 1978 50,331 222,585 22.61 140,844 35.74 140,374 35.85 1,545 3.26 197 51,093 225,055 22.70 143,284 35.66 144,317 35.40 1,529 3.34 1980 51,091 227,225 22.48 145,295 35.16 146,845 34.79 1,527 3.35 1981 49,301 229,466 21.49 147,075 33.52 149,330 33.01 1,555 3.17 1982 43,945 231,664 18.97 150,234 29.25 151,148 29.07 1,595 2.76 1983 42,589 233,792 18.22 154,389 27.59 153,830 27.69 1,653 2.58 1984 44,257 235,825 18.77 185,424 28.48 158,900 27.85 1,720 2.57 1985 43,825 237,924 18.42 156,868 27.94 166,047 26.39 1ife 2.47 1986 46,087 240,133 19.19 159,486 28.90 168,545 27.34 1,835 2.51 1987 46,390 242,289 19.15 161,816 28.67 172,750 26.85 1,921 2.41 1988 47,087 244,499 19.26 162,854 28.91 177,455 26.53 2,026 2.32 1989 45,582 246,819 18.47 165,554 27.53 181,165 25.16 2,096 2.17 1990 44,599 249,464 17.88 167,015 26.70 184,275 24.20 2,144 2.08 1991 41,508 252,153 16.46 158,995 24.56 186,370 22.27 2,172 1.91 1992 39,250 255,030 15.39 173,125 22.67 184,938 21.22 2,247 1.75 1993 40.150 257,783 15.58 173,149 23.19 188,350 21.32 2,296 1.75 1994 40.716 260,327 15.64 175,403 23.21 192,497 21.15 2,358 1.73 1995 41,817 262,803 15.91 176,628 23.68 197,065 21.22 2,423 1.73 1996 42,065 265,229 15.86 179,539 23.43 201,631 20.86 2,486 1.69 1997 42,013 267,784 15.69 182,709 22.99 203.568 20.64 2,562 1.64 1998 41,501 270,248 15.36 184,861 22.45 208,076 19.95 2,632 1.58 1999 41.717 272.691 15.30 187,170 22.29 212,685 19.61 2,691 1.55 2000 41.945 282,224 14.86 190,625 22.00 217,028 19.33 2,747 1.53 2001 42,196 285,318 14.79 191,276 22.06 221,230 19.07 2,797 1.51 2002 42.815 288.369 14.85 194,296 22.04 225,685 18.97 2,856 1.50 Injured | | | } Injury Rate | Registered | Injury Rate | | | Resident Injury Rate | Licensed | per 100,000 Motor per 100,000 | Vehicle Miles| Injury Rate | Population | per 100,000 | Drivers Licensed Vehicles | Registered | Traveled per 100 } Year | Injured | (Thousands)} Population | (Thousands) Drivers (Thousands); Vehicles (Billions) | Million VMT 1988 3,416,006 244,499 1,397 162,854 2,098 177,455 1,925 2,026 169 1989 3,284,000 246,819 1,330 165,554 1,984 181,165 1,813 2,096 157 1990 3,231,000 249,464 1,295 167,015 1,934 184,275 1,753 2,144 151 1991 3,097,000 252,153 1,228 168,995 1,833 186,370 1,662 2,172 143 1992 3,070,000 255,030 1,204 173,125 1,773 184,938 1,660 2,247 137 1993 3,149,000 257,783 1,222 173,149 1,819 188,350 1,672 2,296 137 1994 3,266,000 260,327 1,255 175,403 1,862 192,497 1,697 2,358 139 1995 3,465,000 262,803 1,319 176,628 1,962 197,065 1,758 2,423 143 1996 3,483,000 265,229 1,313 179,539 1,940 201,631 1,728 2,486 140 1997 3,348,000 267,784 1,250 182,709 1,832 203,568 1,644 2,562 131 1998 3,192,000 270,248 1,181 184,861 1,727 208,076 1,534 2,632 121 1999 3,236,000 272,691 1,187 187,170 1,729 212,685 1,522 2,691 120 2000 3,189,000 282,224 1,130 190,625 1,673 217,028 1,469 2,747 116 2001 3,033,000 285,318 1,063 191,276 1,585 221,230 1,371 2,797 108 2002 2,926,000 288,369 1,015 194,296 1,506 225,685 1,296 2,856 102 Sources: Vehicle Miles of Travel and Licensed Drivers—Federal Highway Administration; Registered Vehicles, 1966-1974—Federal Highway Administration; Registered Vehicles, 1975-2002—R..L. Polk & Co. and Federal Highway Administration; Population—U.S. Bureau of the Census; Traffic Deaths, 1966-1974—National Center for Health Statistics, D.H.H.S., State Accident Summaries (adjusted to 30-day traffic deaths by NHTSA); Traffic Deaths, 1975-2002—Fatality Analysis Reporting System (FARS), NHTSA, 30-day traffic deaths; Injured, 1988-2002—General Estimates System (GES), NHTSA. Injury data not available for years before 1988. Source: U.S. Department of Transportation, National Highway Traffic Safety Administration, National Center for Statistics and Analysis, Traffic Safety Facts 2002: A Compilation of Motor Vehicle Crash Data from the Fatality Analysis Reporting System and the General Estimates System, chapter 1, Trends (Washington, D. C.: Government Printing Office, 2004), page 15, table 2. Reprinted from Traffic Safety Facts 2002: A Compilation of Motor Vehicle C the Fatality Anal rtin m and the General Esti Ss U.S. Department of Transportation, National Highway Traffic Safety Administration Publication DOT HS 809 620 (Washington, D. C. 2004). OL ‘ddy Persons Killed or Injured by Person Type and Vehicle Type, 1975-2002 LIBS ETE LT Sy eas iad Sk ee Dee a, capes Ba Se ztereen J Type Ss ea as epee i. cas J + shee . WY pay re Co a4 3 eg Other! , 4 Pedalcyclist |Unknown| ~~ Killed 1975 25,929 4,856 961 3,189 53 937 35,925 7,516 1,003 81 8,600 44,525 1976 26,166 5,438 1,132 3,312 73 981 37,102 7,427 914 80 8,421 45,523 1977 26,782 5,976 1,287 4,104 42 959 39,150 7,732 922 74 8,728 47,878 1978 28,153 6,745 1,395 4,577 41 622 41,533 7,795 892 111 8,798 50,331 1979 27,808 7,178 1,432 4,894 39 579 41,930 8,096 932 135 9,163 51,093 1980 27,449 7,486 1,262 5,144 46 540 41,927 8,070 965 129 9,164 51,091 1981 26,645 7,081 1,133 4,906 56 603 40,424 7,837 936 104 8,877 49,301 1982 23,330 6,359 944 4,453 . 35 525 35,646 7,331 883 85 8,299 43,945 1983 22,979 6,202 982 4,265 §3 362 34,843 6,826 839 81 7,746 42,589 1984 23,620 6,496 1,074 4,608 46 440 36,284 7,025 849 99 7,973 44,257 1985 23,212 6,689 977 4,564 57 544 36,043 6,808 890 84 7,782 43,825 1986 24,944 7,317 926 4,566 39 442 38,234 6,779 941 133 7,853 46,087 1987 25,132 8,058 852 4,036 51 436 38,565 6,745 948 132 7,825 46,390 1988 25,808 8,306 911 3,662 54 429 39,170 6,870 911 136 7,917 47,087 1989 25,063 8,551 858 3,141 50 424 38,087 6,556 832 107 7,495 45,582 1990 24,092 6,601 705 3,244 32 460 37,134 6,482 859 124 7,465 44,599 1991 22,385 8,391 661 2,806 31 466 34,740 5,801 843 124 6,768 41,508 1992 21,387 8,098 585 2,395 28 387 32,880 5,549 723 98 6,370 39,250 1993 21,566 8,511 605 2,449 18 425 33,574 5,649 816 111 6,576 40,150 1994 21,997 8,904 670 2,320 18 409 34,318 5,489 802 107 6,398 40,716 1995 22,423 9,568 648 2,227 33 392 35,291 5,584 833 109 6,526 41,617 1996° 22,505 9,932 621 2,161 21 455 35,695 5,449 765 154 6,368 42,065 1997 22,199 10,249 723 2,116 18 420 35,725 5,321 814 153 6,288 42,013 1998 21,194 10,705 742 2,294 38 409 35,382 5,228 760 131 6,119 41,501 > 1999 20,862 11,265 759 2,483 59 447 35,875 4,939 754 149 5,842 41,717 S 2000 20,699 11,526 754 2,897 22 450 36,348 4,763 693 141 5,597 41,945 - 2001 20,320 11,723 708 3,197 34 458 36,440 4,901 732 123 5,756 42,196 sat 2002 20,416 12,182 684 3,244 45 661 37,232 4,808 , 662 113 5,583 42,815 Injured 1988 2,585,000 478,000 37,000 105,000 15,000 4,000 3,224,000 -110,000 75,000 8,000 192,000 3,416,000 1989 2,431,000 511,000 43,000 83,000 15,000 5,000 3,088,000 112,000 73,000 11,000 196,000 3,284,000 1990 2,376,000 505,000 42,000 84,000 33,000 4,000 3,044,000 105,000 75,000 7,000 187,000 3,231,000 1991 2,235,000 563,000 28,000 80,000 21,000 4,000 2,931,000 88,000 67,000 11,000 166,000 3,097,000 1992 2,232,000 545,000 34,000 65,000 20,000 12,000 2,908,000 89,000 63,000 10,000 162,000 3,070,000 1993 2,265,000 601,000 32,000 59,000 17,000 4,000 2,978,000 94,000 68,000 * 9,000 171,000 3,149,000 1994 2,364,000 631,000 30,000 57,000 16,000 4,000 3,102,000 92,000 62,000 9,000 164,000 3,266,000 1995 2,469,000 722,000 30,000 57,000 19,000 4,000 3,303,000 86,000 67,000 10,000 162,000 3,465,000 1996 2,458,000 761,000 33,000 55,000 20,000 4,000 3,332,000 82,000 58,000 11,000 151,000 3,483,000 1997 2,341,000 755,000 31,000 53,000 17,000 6,000 3,201,000 77,009 58,000 11,000 146,000 3,348,000 1998 2,201,000 763,000 29,000 49,000 16,000 4,000 3,061,000 69,000 53,000 8,000 131,000 3,192,000 1999 2,138,000 847,000 33,000 50,000 22,000 7,000 3,097,000 85,000 51,000 3,000 140,000 3,236,000 2000 2,052,000 887,000 31,000 58,000 18,000 10,000 3,055,000 78,000 $1,000 5,000 134,000 3,189,000 2001 1,927,000 861,000 29,000 60,000 15,000 9,000 2,901,000 78,000 45,000 8,000 131,000 3,033,000 2002 1,805,000 879,000 26,000 65,000 19,000 6,000 2,800,000 71,000 48,000 7,000 126,000 2,926,000 *Total for 1996 includes 2 fatalities of unknown person type. Source: U.S. a of Transportation, National Highway Traffic Safety Administration, National Center for Statistics and Analysis, T Safety Facts 2002: A ilation of Motor Vehicle Data from i Analysis Reporting System and the General Estimates System, chapter 1, Trends (Washington, D. C.: Government Printing Office, 2004), page 18, table 4. Reprinted from Traffic Safety Facts 2002: A Compilation of Motor Vehicle Crash Data from the Fatality Analysis Reporting System and the General Estimates System, U.S. Department of Transportation, National Highway Traffic Safety Administration Publication DOT HS 809 620 (Washington, D. C. 2004). Drivers Involved in Crashes and Involvement Rates per Licensed Driver by Sex and Crash Severity, 1975-2002 Sex Male (>15 Years Old) Female (>15 Years Old) Total (>15 Years olgy* involvement . Involvement : a Involvement Rate per Rate per . yt Rate per Number Licensed 100,000 Number Licensed 100,000 Number Licensed 100,000 Involved in Drivers Licensed | Involved in Drivers Licensed | Involved in Drivers Licensed Year Crashes |(Thousands)} Drivers Crashes |(Thousands)} Drivers Crashes |(Thousands)| © Drivers Drivers in Fatal Crashes 1975 45,087 70,435 64.01 9,356 59,233 15.80 54,445 129,668 41.99 1976 45,091 72,452 62.24 9,953 61,458 16.19 55,045 133,910 41.11 197 48,548 74,385 65.27 10,775 63,591 16.94 59,324 137,976 43.00 197 51,665 75,504 68.43 11,221 65,177 17.22 62,887 140,681 44.70 197 52,208 76,458 68.28 11,308 66,695 16.95 63,518 143,152 44.37 1980 50,921 77,135 66.02 11,353 68,067 16.68 62,277 145,202 42.89 1981 49,838 77,831 64.03 11,396 69,142 16.48 61,238 146,972 41.67 1982 43,877 78,484 55.91 10,579 71,627 14.77 54,462 150,111 36.28 1983 42,329 80,823 52.37 10,854 73,440 14.78 53,184 154,263 34.48 1984 44,213 80,916 54.64 11,806 74,398 15.87 56,022 155,315 36.07 1985 44,290 81,537 54.32 12,031 75,231 15.99 56,322 156,769 35.93 1986 46,083 82,740 55.70 12,603 76,651 16.44 58,688 159,390 36.82 1987 46 337 83,939 55.20 13,492 77,789 17.34 59,829 161,728 36.99 1988 46,840 84,099 55.70 13,814 78,661 17.56 60,658 162,760 37.27 1989 44,941 85,356 52.65 13,927 80,160 17.37 58,870 165,516 35.57 1990 43,802 85,769 51.07 13,586 81,203 16.73 57,393 166,972 34.37 1991 40,288 86,630 46.51 12,716 82,300 15.45 53,007 168,930 31.38 1992 38,186 88,363 43.21 12,492 84,716 14.75 50,682 173,079 29.28 1993 39,118 87,974 44.47 12,960 85,138 15.22 52,080 173,112 30.08 1994 39,784 89,165 44 62 13,449 86,183 15.61 ~ 53,238 175,347 30.36 1995 40,799 89,184 45.75 14,043 87,386 16.07 54,847 176,570 31.06 1996 40,699 90,503 45.19 14,723 89,007 16.54 55,624 179,510 30.99 1997 40,594 91,888 44.18 14,816 90,789 16.32 55,412 182,677 30.33 1998 40,433 93,023 43.47 14,967 91,805 15.30 55,404 184,828 29.98 1999 40,639 94,149 43.16 14,717 92,988 15.83 55,359 187,137 29.58 ma 2000 41,443 95,782 43.27 14,682 94,816 15.48 56,126 190,598 29.45 2001 41,548 95,779 43.38 14,829 95,471 15.53 56,380 191,250 29.48 2002 41,740 97.467 4263 14788 96820 1527 56,530 _194,267 29.10 Drivers in injury Crashes 1988 2,423,000 84,099 2,881 1,485,000 78,661 1,887 3,907,000 162,760 2,401 = 1989 2,347,000 85,356 2,749 1,446,000 80,160 1,804 3,793,000 165,516 2,291 oS 1990 2,285,000 65,769 2.664 1,458,000 81,203 1,795 3,743,000 166,972 2.242 - 1991 2,171,000 86,630 2,506 1,380,000 82,300 1,677 3,551,000 168,930 2,102 7) 1992 2,114,000 68,363 2,392 1,439,000 84,716 1,699 3,553,000 173,079 2,053 1993 2,144,000 87,974 2.437 1,468,000 85,138 1,724 3,612,000 173,112 2,086 1994 2.264.000 89,165 2,539 1,574,000 86,183 1,826 3,838,000 175,347 2,189 1995 2,378,000 89,184 2,667 1,687,000 87,386 1,931 4,066,000 176,570 2,303 1996 2,378,000 90,503 2.627 1,711,000 89,007 1,922 4,089,000 179,510 2,278 1997 2.296.000 91,688 2,499 1,643,000 90,789 1,809 3,939,000 182,677 2,156 1998 2.158.000 93,023 2,319 1,576,000 91,805 1,717 3,734,000 184,828 2,020 1999 2,134,000 94,149 2,267 1,609,000 92,988 1,730 3,743,000 187,137 2,000 2000 2,192,000 95,782 2,289 1,573,000 94,816 1,659 3,765,000 190,598 1,975 2001 2,090,000 95,779 2,182 1,547,000 95,471 1,620 3,637,000 191,250 1,902 2002 2,000,000 97,447 2,052 1,481,000 96,820 1,530 3,482,000 _—- 194,267 1,792 Drivers in Property-Damage-Only Crashes 1968 5,013,000 84,099 5,961 2,816,000 78,661 3,580 7,829,000 162,760 4,810 1989 4,915,000 85,356 5,758 2,687,000 80,160 3,352 7,602,000 165,516 4,593 1990 4,733,000 85,769 §,519 2,677,000 81,203 3,296 7,410,000 166,972 4,438 1991 4,419,000 86,630 5,101 2,600,000 82,300 3,159 7,019,000 168,930 4,155 1992 4,316,000 88,363 4,885 2,530,000 84,716 2,987 6,847,000 173,079 3,956 1993 4,402,000 87,974 5,003 2,561,000 85,138 3,008 6,963,000 173,112 4,022 1994 4,695,000 89,165 5,265 2,828,000 86,183 3,262 7,523,000 175,347 4,290 1995 4,847,000 89,164 5,434 2,905,000 87,386 3,325 7,752,000 176,570 4,390 1996 4,888,000 90,503 5,400 2,968,000 89,007 3,335 7,856,000 179,510 4,376 1997 4,808,000 91,888 5,232 2,967,000 90,789 3,268 7,775,000 182,677 4,256 1998 4,634,000 93,023 4,982 2,902,000 91,605 3,162 7,536,000 184,828 4,078 1999 4,509,000 94,149 4,789 2,800,000 92,988 3,011 7,309,000 187,137 3,906 2000 4,559,000 95,782 4,760 2,904,000 94,816 3,062 7,463,000 190,598 3,915 2001 4,518,000 95,779 4,717 2,903,000 95,471 3,041 7,421,000 191,250 3,880 __ 2002 — 4,436,000 97,447 4,552 _ 2,999,000 96,820 3,098 7,435,000 194,267 3,827 “Total includes drivers (>15 years old) of unknown sex. Source: Licensed Drivers—Federal Highway Administration Source: U.S. Department of Transportation, National Highway Traffic Safety Administration, National Center for Statistics and Analysis, Traffic Safety Facts 2002: A Compilation of Motor Vehicle Crash Data from the Fatality Analysis Reporting System and the General Estimates System, chapter 1, Trends (Washington, D. C.: Printing Office, 2004), page 19, table 5 - ( gton, Government Reprinted from Traffic Safety Facts 2002: A Compilation of Motor Vehicle Crash Data from the Fatality Analysis Reporting System and the General Estimates System, m m, U.S. Department of Transportation, National Highway Traffi Safety Administration Publication DOT HS 809 620 (Washington. D. C. 2004) nisin : Persons Killed or Injured, by Person Type and Injury ssobine. Persons Injured by Injury Severity ed Se Total Killed Persons : “Total - Person Type Killed Incapacitating | Nonincapacitating | . Other Injured or Injured Vehicle Occupants Driver 26,549 228,000 526,000 1,165,000 1,920,000 1,946,000 Passenger 10,571 104,000 237,000 540,000 880,000 891,000 Unknown Occupant 112 . ‘ 7 : “3 Subtotal 37,232 333,000 763,000 1,705,000 2,800,000 2,837,000 Nonmotorists Pedestrian 4,808 15,000 26,000 30,000 71,000 75,000 Pedalicyclist 662 7,000 22,000 19,000 48,000 49,000 Other/Unknown 113 1,000 2,000 4,000 7,000 7,000 Subtotal 5,583 23,000 50,000 53,000 126,000 131,000 Total 42,815 356,000 813,000 1,757,000 2,926,000 2,969,000 *Less than 500. / Persons Killed or Injured, by Age and Injury Severity | Age Persons nh ns bai Bo Total | Total Killed (Years) Killed incapacitating | Nonincapacitating Other Injured or Injured 74 3,813 16,000 30,000 52,000 98,000 101,000 Total *42,815 356,000 813,000 1,757,000 2,926,000 2,969,000 "Includes 158 fatalities of unknown age. Persons Killed or Injured, by Sex and Injury Severity Persons Injured by Injury Severity Persons -— : - Total Total Killed = Sex Killed incapacitating | Nonincapacitating | Other Injured or Injured Male 29,327 186,000 438,000 775,000 1,398,000 1,428,000 Female 13,474 170,000 375,000 983,000 1,527,000 1,541,000 Total *42,815 356,000 813,000 1,757,000 2,926,000 2,969,000 “includes 14 fatalities of unknown sex. Source: U.S. Department of Transportation, National Highway Traffic Safety Administration, National Center for Statistics and Analysis, Traffic Safety Facts 2002: A Compilation of Motor Vehicle Crash Data from the Fatality Analysis Reporting System and the General Estimates System, chapter 4, People (Washington, D. C.: Government Printing Office, 2004), page 86, table 53, table 54, table 55. Esti | ’ < Ss. Seseteans a ae National Highway Traffic Safety Administration Publication DOT HS 809 620 (Washington, D. C. 2004). €. ddy 2002 National Statistics Police-Reported Motor Vehicle Traffic Crashes NN Se oe ied ee a ee S ERT Rib wee AA Oe a RO A OAR OOS 38,309 | SPT TeTererereceriecerrerir eee Lire Lee eee eee ee 1,929,000 PROGR CUPRA CII. 5 os cies ec c cece carci eeesesnacsewensannreacecees 4,348,000 Pere rr Tre TT TET errr Ter CT TTELTTE TT TTL LereeT TT erererrerTe 6,316,000 Traffic Crash Victims Killed Injured Occupants SR as ok bi/s.k 0k Oa RRAMUAVARN DG DANAENRC44EOSEADES EA ONEARDAURU ONO KOS 26,549 1,920,000 Passengers ...... WEUTECT EITC TUE TERT OT Eee eee Pee 10,571 880,000 EE nhs Kc ae kN ae ea Re RAR A A SERRA RC RAIS GM KOLO 112 — Nonmotorists PE a. eo Wik Wg RA AWS KK TRIES AERA RUAN KAU RINT O ACOTE a Te Ran I 4,808 71,000 go. . .. PEEELTTCEET COT TL TET ECL ECT TET EEL ee 662 48,000 SEIN crt on Ge KIA NS NiSiacsce Bk MUNA EA RIA TEACO INS SOU ORS Ne RUC 113 7,000 DE ha 544 FaRS5A DEES ARS SASK DAES AARAASA NAS EAD ARARACAA ALA CARED RAS EA 42,815 2,926,000 Other National Statistics WTI BANOS TIGNOIOE ccc cca ce eve caacses ee re ee eee ee ee ee 2,855,756,000,000 Resident Population............ Nie eee SK ese ea ek ae hin i A 288,368,698 Registered Vehicles an eee See ea ee er ee eR ee ree ee ee 225,684,815 Licensed Drivers .. Se are Oe Ce eer ere Ce ee eT ae erg” 194,295,633 Economic Cost of Traffic Crashes (2000) (estimate for reported and unreported Crashes)... 0... ccc cece eee eee eee ees National Rates: Fatalities Fatalities per 100 Million Vehicle Miles Traveled. ......... cc eee eee eee eee eee PRURIOS OF TOG) POMNIIION, os cine cei eed seat cee cc eewr ees tnnene res Fatalities Get 100,000 FOGISISOOd VOTHCIOR . 0. ccc cena sce cecreeeeeneeceses FRtROS OC 100,000 LIRBNEOT CONVENE. cca ce carer ees eereeeeusccrenna aeons National Rates: Injured Persons Injured Persons per 100 Million Vehicle Miles Traveled ....... 0... 6. eee e eee eee Injured Persons per 100,000 Population ..............-00 00: Teer e Tr Tee Injured Persons per 100,000 Registered Vehicles... ... 6... cece cece ee eee ees Injured Persons per 100,000 Licensed Drivers ........... ccc eee eee eee eee eens $230.6 billion Sources: Crashes, Fatalities, Injuries, and Costs—National Highway Traffic Safety Administration. Population—U.S. Bureau of the Census. Vehicle Miles Traveled—Federal Highway Administration. Registered Vehicles—R.L. Polk & Co. and Federal Highway Administration. Source: U.S. Department of Transportation, National Highway Traffic Safety Administration, National Center for Statistics and Analysis, Traffic Safety Facts 2002: A Compilation of Motor Vehicle Crash Data from the Fatality Analysis Reporting System and the General Estimates System (Washington, D. C.: Government Printing Office, 2004), page i Reprinted from Traffic Safety Facts 2002: A Compilation of Motor Vehicle Crash Data from the Fatality Analysis Reporting System and the General Estimates System, U.S. Department of Transportation, National Highway Traffic Safety Administration Publication DOT HS 809 620 (Washington, D. C. 2004). pL ‘ddy App. 75 In 2002, the Nation’s crash fatality rate per 100 million vehicle miles of travel reached an historic low of 1.50. Although this significant event is the result of much progress in reducing the number of deaths and injunes on our Nation’s highways, total fatalities increased just slightly in 2002, reaching the highest level since 1990. Over 6.3 million police-reported motor vehicle crashes still occurred on our highways in 2002 -- one every 5 seconds. On average, a person was injured in these crashes every 11 seconds, and someone was killed every 12 minutes. Source: U.S. Department of Transportation, National Highway Traffic Safety Administration, National Center for Statistics and Analysis, Traffic Safety Facts 2002: A Compilation of Motor Vehicle Crash Data from the Fatality Analysis Reporting System and the General Estimates System, Administrator’s Message (Washington, D. C.: Government Pnnting Office, 2004), page iii. ‘ Reprinted from Traffic Safety Facts 2002: A Compilation of Motor Vehicle Crash Data from the Fatality Analysis Reporting System and the General Estimates System, U.S. Department of Transportation, National Highway Traffic Safety Administration Publication DOT HS 809 620 (Washington, D. C. 2004). Speeding is one of the most prevalent factors contributing to traffic crashes. The economic cost to society of speeding- related crashes is estimated by NHTSA to be $40.4 billion per year. In 2002, speeding was a contributing factor in 31 percent of all fatal crashes, and 13,713 lives were lost in speeding-related crashes. Motor vehicle crashes cost society as estimated $7,300 per second. The total economic cost of crashes was estimated at $230.6 billion in 2000. The 2000 costs of speeding-related crashes were estimated to be $40.4 billion - - $76,865 per minute or $1,281 per second. App. 76 Speeding reduces a driver’s ability to steer safely around curves or objects in the roadway, extends the distance necessary to stop a vehicle, and increases the distance a vehicle travels while the driver reacts to a dangerous situation. Source: U.S. Department of Transportation, National Highway Traffic Safety Administration, National Center for Statistics and Analysis, Traffic Safety Facts 2002: A Public Information Fact Sheet_on Motor Vehicle and Traffic Safety, Speeding (Washington, D. C.: Government Printing Office, 2004), page 1. Reprinted from Traffic Safety Facts 2002: A Public Information Fact Sheet_on Motor Vehicle and Traffic Safety, U.S. Department of Transportation, National Highway Traffic Safety Administration Publication DOT HS 809 616 (Washington, D. C. 2004). Motor vehicle travel is the primary means of transportation in the United States, providing an unprecedented degree of mobility. Yet for all its advantages, deaths and injuries resulting from motor vehicle crashes are the leading cause of death for persons of every age from 2 through 33 years old (based on 2000 data). Traffic fatalities account for more than 90 percent of transportation-related fatalities. In 2002, 42,815 people were killed in the estimated 6,316,000 police-reported motor vehicle traffic crashes, 2,926,000 people were injured, and 4,348,00 crashes involved property damage only. Source: U.S. Department of Transportation, National Highway Traffic Safety Administration, National Center for Statistics and Analysis, Traffic Safety Facts 2002: A Public Information Fact Sheet on Motor Vehicle and Traffic Safety, Overview, Introduction (Washington, D. C.: Government Printing Office, 2004), page 1. App. 77 Reprinted from Traffic Safety Facts 2002: A Public Information Fact Sheet_on Motor Vehicle and Traffic Safety, U.S. Department of Transportation, National Highway Traffic Safety Administration Publication DOT HS 809 612 (Washington, D. C. 2004). The fatality rate per 100 million vehicle miles of travel in 2002 was 1.51. The injury rate per 100 million vehicle miles of travel in 2002 was 103. The fatality rate per 100,000 population was 14.85 in 2002, slightly higher than the 2001 rate of 14.79. An average of 117 persons died each day in motor vehicle crashes in 2002 — one every 12 minutes. Motor vehicle crashes are the leading cause of death for every age from 2 through 33 years old. Vehicle occupants accounted for 87 percent of traffic fatalities in 2002. The remaining 13 percent were pedestrians, pedalcyclists, and other nonoccupants. Source: U.S. Department of Transportation, National Highway Traffic Safety Administration, National Center for Statistics and Analysis, Traffic Safety Facts 2002: A Public Information Fact Sheet on Motor Vehicle and Traffic Safety, Overview, Summary (Washington, D. C.: Government Printing Office, 2004), page 1. Reprinted from Traffic Safety Facts 2002: A Public Information Fact Sheet_on Motor Vehicle and Traffic Safety, U.S. Department of Transportation, National Highway Traffic Safety Administration Publication DOT HS 809 612 (Washington, D. C. 2004). ‘App. 78 PREJUDICIAL COMMENTS BY OPPOSING COUNSEL The opposing counsel made prejudicial comments about the petitioner throughout the trial. Trial Transcript, September 17, 2002 The Court instructed the jury as follows: Page 14, Line 20-27 and Page 15, Line 1-8. Page 14, Line 20-27. Now, the attorneys, they’re going to have a right to talk to you. It may be, basically, three times or four times. But just remember, attorneys do not give evidence. Unless the attorney takes the stand to take the oath, they cannot give evidence. If they had to do that, they’d be disqualified usually trying the case, because you Page 15, Line 1-8. can’t be a lawyer and offer evidence at the same time. Sometimes on a very technical matter an attorney might take the stand; but, usually, unless an attorney’s taken the stand, of course, they’re not giving evidence. So, what you have to do is carefully listen to the attorneys when they speak. Trial Transcript, September 17, 2002 Page 33, Line 17-19. The plaintiff thought that that was -- the shoulder was a lane of traffic for cars. But you’re going to hear evidence that that was indeed a shoulder. App. 79 Page 34, Line 8-9. .... She never noticed the car coming from another direction when that impact occurred. Page 38, Line 13-22. They talked about what the plaintiff was doing in the shoulder. And you will hear testimony that the plaintiff was confused as to that being a moving lane of traffic, and she indeed believe it was a moving lane of traffic when this incident occurred. So, at the end of this case, I will be asking you to return a verdict in favor of the defendant, Ms. Dux, because she did not cause this accident. Page 96, Line 22-27. Q Okay. And did you tell the police officer -- well, isn’t it true that you told the police officer that you were driving in the shoulder of the roadway and you thought that was a moving lane for traffic? A No. I never told the police officer such a thing like that. Page 97, Line 1-5. Q Isn’t it true that you told Ms. Dux that you thought that that was your lane for traffic in the shoulder area, and that’s the lane you were proceeding in at the time of the acc [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1389%3A1. Public record. Not legal advice.