Appellate Notes: Week of April 1, 2013

by Pullman & Comley, LLC

Welcome to our Supreme and Appellate Court summaries webpage.  On this page, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted April 1, 2013

The defendant went through a stop sign and collided with the plaintiff, who claimed head and back injuries, but no property damage or lost wages.  The plaintiff’s diagnosis of soft tissue sprain was treated with therapy, and she was able to resume almost all normal activities, subject to occasional recurring symptoms of pain.  During the trial, the plaintiff’s testimony of the extent of her injuries conflicted with the medical reports and her responses to interrogatories, suggesting she was exaggerating.  The jury returned a verdict for the plaintiff, but awarded her no economic damages, and only $5,000 in non-economic damages.  The Trial Court then refused to set aside that verdict, and the plaintiff appealed.  The Appellate Court held that this case was distinguishable from cases where the jury returned a verdict but failed to award any damages, because the jury had received conflicting testimony regarding the nature and extent of the plaintiff’s injuries.  Therefore, the jury’s award of zero damages fell within the uncertain limits of a fair and reasonable compensation.  The plaintiff had her own various inconsistencies in her testimony to blame for this outcome.  Even when a defendant is liable under the doctrine of negligence, per se, a jury may award zero damages.  The verdict did not shock the consciousness of the Court which presumed the jury did exactly what it intended to do.

  • AC33557 - Filippelli v. Saint Mary’s Hospital

Plaintiff suffered a broken leg playing basketball, and was taken to the Emergency Room.  He was discharged and was told to see an orthopedic surgeon.  He returned in severe pain the next morning, where he was admitted for observation.  By the end of that day, they had diagnosed compartment syndrome, and initiated surgery which had complications and resulted in nerve and muscle damage.  The plaintiff sued for malpractice, claiming that they took too long to diagnose the problem.  The defendant’s expert testified that the defendant doctor properly waited for a full diagnosis of the condition, because the procedure to address it has a high risk of infection, and therefore the wait time was not inordinate.  The jury returned a defendant’s verdict.  On appeal, the plaintiff claimed the Trial Court should have allowed him to use a published article they only discovered just as the trial was about to begin to impeach the defense expert.  The defendant responded that the expert never identified that specific article, and there was no proof that it was accepted as the standard of care, and it would be prejudicial to admit it at this late date.  The Trial Court granted a motion in limine to preclude the use of the article.  The Appellate Court agreed and noted that the use of such articles, under the learned treatise exception to the hearsay rule per Connecticut Code of Evidence, Section 8-3, was confusing.  What people confuse is the distinction between a periodical and an article published in that periodical.  The contents of all issues published in a periodical do not wholesale qualify as learned treatises.  In these days of “pressure to publish”, not all articles reached the dignity of reliable authority just because it has been circulated.  Here, not only was the article offered late on the eve of trial, but there was no evidence that the article was considered standard of care authority.  There was no evidence that the expert relied on that particular article.  For the same reasons, the article could not be used to cross-examine the defendant’s expert during trial.  In any event, Section 8-3(8) does not require a Court to admit the claimed learned treatise into evidence for all purposes.  The Trial Court can limit its use to undermine or bolster credibility of witnesses.  Here, the Trial Court properly exercises its discretion to preclude it, and even if it were mistaken, the ruling would not be harmful, since there were other methods for the plaintiff to impeach the defendant’s expert.

The Trial Court also was acting within its discretion in prohibiting the plaintiff’s attorney from cross-examining the defendant’s expert regarding how many times he had previously testified in malpractice actions in favor of the defendant doctor.  Such evidence would have been more prejudicial than probative.  This topic, although relevant to the witness’s credibility when he claimed he could not remember such prior occasions, was not central to the main case.  Whether an expert witness remembers the names of the physicians he has been an expert for in the past, does not go to the standard of care.

Finally, the Trial Court’s refusal to let the plaintiff submit an offer of proof was incorrect, because a party always has the right to create an adequate record for review, but the error was harmless.  The same ruling applied to the refusal to let the plaintiff mark an impeachment document for identification.

  • AC34524 - Capel v. Plymouth Rock Assurance Corp.

Our own Rachel Ginsburg worked on this one.  But it looks like her efforts were for naught.  A little girl was hit by a driver who notified his insurance company.  The insurance company responded that he did not have a valid policy, and later refused to defend the driver, whereupon the plaintiff obtained a default judgment with double damages of $3 million.  The injured plaintiff then initiated a direct action against the driver’s insurer.  The parties then certified a question to the Connecticut Supreme Court pursuant to Practice Book § 73-1, asking whether or not in a direct action against the insurer, would the damages be capped at the claimed policy limits of $300,000, or the total amount of the underlying judgment.

The Supreme Court transferred the matter down to the Appellate Court under Practice Book § 65-1.  The Appellate Court, however, declined to enter an advisory-type opinion.  Just because a case presents an unusual factual or legal issue, does not mean it should jump to the head of the line to make the underlying case easier or faster to deal with.  The Appellate Court should not be asked to rule on principles of law in the abstract.  A reserved question must be reasonably certain to enter into the decision of the case, and the interests of simplicity, directness and judicial economy dictate their consideration.  Here, the insurer steadfastly denied it ever provided coverage.  Without knowing whether there was coverage, we do not know whether the issue of damages will ever arise.

  • AC34221 - Nichols v. The Milford Pediatric Group, P.C.

Plaintiff was required to file a certificate of good faith and opinion of a similar healthcare provider, pursuant to C.G.S. Section 52-198, when he sued a medical group when he fainted at the sight of blood and fell face first off the examining table, smack onto the hard floor (ouch).  The plaintiff claimed they should have laid him down in a supine position before taking a blood sample.  The Trial Court properly concluded that the allegations of the complaint amounted to an assertion of professional negligence, and a good faith certificate was required.  The methodology of blood being collected by medical assistants implicates a specialized medical procedure arising out of the medical professional/patient relationship.  Finally, the collection of blood was obviously related to a medical diagnosis or treatment.  (Geez, that one seemed pretty obvious to me.)

  • AC34652 - Godaire v. Freedom of Information Commission

The plaintiff’s appeal from a decision of FOIC was properly dismissed due to his failure to serve the Commission with a copy of the appeal within forty-five (45) days of the mailing of the final decision pursuant to C.G.S. § 4-183(c).  The alleged misinformation the plaintiff received from the Court Clerk as to the method of service would not toll the 45 day service timeframe, which is jurisdictional in nature and cannot be waived for any reason.

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  ©2013 Pullman & Comley, LLC. All Rights Reserved.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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