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When Adam Wozniak was three months old and in a baby stroller, the Connecticut infant and his family were intentionally run down by crazed motorist Joseph E. Claffey on Sept. 25, 1993 in a bloody 20-minute spree. A New Britain, Conn., police officer quoted Claffey saying afterwards, “I have only one regret: that nobody died.” Tried for five counts of attempted murder, Claffey was ultimately ruled not guilty due to insanity. Now Adam Wozniak is seven years old, but due to brain damage he has the development of an infant. He is suing New Britain General Hospital and Claffey’s neurologist for malpractice in a trial now underway before New Britain Superior Court Judge Julia Aurigemma, claiming Claffey’s rampage should have been prevented. In a move without recorded precedent in Connecticut, counsel for neurologist Andre Lerer persuaded the judge to exclude the child from court on grounds his severe injuries would unfairly prejudice the jury. “He cannot sit or stand, and cannot speak,” wrote Aurigemma in her June 1 ruling. “He cannot swallow, eat, toilet, dress or walk independently. His vision is severely impaired.” With no guidance from Connecticut case law, she applied a rule from the 1986 case of Helminski v. Ayerst Laboratories, from the 6th U.S. Circuit Court of Appeals. It applies when a plaintiff has no ability to understand the proceedings or aid his lawyers, and when the trial is bifurcated into liability and damage phases. To determine whether Adam’s mere presence in the courtroom would “prevent or substantially impair the jury from performing its duties,” Aurigemma watched a day-in-the-life videotape the plaintiffs had prepared. What she saw was sad and disturbing: “He cannot speak, routinely flails his head from side to side and wears a diaper. His mouth is always open and he often grunts.” Indeed, she said, “Adam’s physical state is made more pitiable by the fact that his face and body are those of a very appealing child, who, but for the accident, would be riding a bike and playing tee-ball rather than existing in an infantile stage of development.” INAPT PRECEDENT Wozniak’s lawyer, Paul Perakos, of Hartford, Conn.’s Perakos, Zitser & Aponte, cited two cases to support his argument that for the past 80 years the Connecticut Supreme Court has entitled plaintiffs to attend their own civil trials. The 1917 case of Anderson v. Snyder and the 1991 case of Rozbicki v. Huybrechts, however, involve plaintiffs who could participate in their cases. In fact, Rozbicki was a lawyer representing himself. The attorney for neurologist Andre Lerer is veteran Connecticut malpractice defender Augustus Southworth, of Waterbury’s Carmody & Torrance. In an interview, Southworth said a plaintiff like Adam Wozniak would have a right to be at the trial if liability and damages were being tried together, because his injuries are clearly relevant to any damages. But since the trial is first going forward on the issue of liability alone, excluding the child for now is entirely appropriate, Southworth said. Perakos declined comment. New Haven’s William F. Gallagher, of Gallagher & Calistro, and the former president of the Connecticut Trial Lawyers Association commented: “If the plaintiff is excluded from the courtroom and they lose the case, they’ll never think that they were afforded justice.” For strategic reasons, Gallagher noted, experienced plaintiffs’ lawyers often limit the amount of time a badly injured plaintiff spends in court, because too much exposure can undermine the impact. “Particularly in a long trial, if the jury has to look at the plaintiff for a long time, gradually they get used to it,” he said. Managing prejudicial effects on a jury often conflicts with the inescapable facts of a case, he noted. “Can you make the clergyman take off his collar? The army colonel take off his uniform when he’s sitting there as a party to the litigation?” “It’s a discretionary call, but my instincts tell me that this isn’t right; I think the child is entitled to be there,” said Gallagher.

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