Dreier v. Upjohn Co.

Decision Date14 May 1985
Citation492 A.2d 164,196 Conn. 242
PartiesAdeleine DREIER v. The UPJOHN COMPANY et al.
CourtConnecticut Supreme Court

Peter A. Kelly, New Haven, for appellant (plaintiff).

Arnold J. Bai, Bridgeport, with whom, was Garie J. Mulcahey, Bridgeport, for appellee (defendant Vincent Pepe).

Before PARSKEY, SHEA, DANNEHY, KLINE and BRENNAN, JJ.

SHEA, Associate Justice.

In this medical malpractice action, a verdict was returned and judgment was rendered in favor of the defendant, Vincent Pepe, M.D. The plaintiff claims that the judgment should be vacated because the trial court erred in allowing the defendant to introduce as admissions portions of a superceded pleading containing allegations against the named defendant, the Upjohn Company, and in failing to declare a mistrial based on the plaintiff's charge of witness tampering by the defendant. We find no error and affirm the judgment.

From the evidence the jury could have reasonably found the following facts: On January 31, 1973, the defendant performed a hysterectomy on the plaintiff. As part of the post-operative care, the defendant prescribed the antibiotic cleocin to prevent vaginal infection. After the operation the plaintiff began to suffer gastrointestinal and urinary distress that continued after her release from the hospital on February 6, 1973. The defendant recommended the further use of cleocin and other medication. When her condition did not improve, the plaintiff eventually consulted another physician, who took her off cleocin and prescribed different antibiotics. The plaintiff was readmitted to the hospital on March 4, 1973, and experienced substantially unpleasant symptoms and underwent treatment that need not be described. She was released from the hospital on March 18, 1973, but continued to suffer bladder and urinary problems for some time thereafter. The plaintiff was treated for such problems on several occasions between 1978 and 1979 by Frank Troncale, a gastroenterologist.

The plaintiff initially brought suit against Pepe and the Upjohn Company, claiming that her injuries were caused by the drug cleocin, that Upjohn had marketed this defective drug and had failed to warn or inform prescribing physicians of the destructive side effects of the medication. She also alleged that Pepe had failed to make proper tests to determine whether cleocin was the correct antibiotic to prescribe under the circumstances and to heed the manufacturer's warnings about the antibiotic. The plaintiff filed an amended complaint on May 13, 1982, in which she withdrew her claim against the Upjohn Company. The defendant Pepe denied the allegations of negligence, and the case went to trial. At trial Pepe was permitted to introduce the original complaint containing, inter alia, the allegations that Upjohn had failed to warn or inform prescribing physicians of the destructive side effects of cleocin. In addition, Pepe contacted Troncale sometime during trial, and Troncale, who had been named as an expert witness for the plaintiff, declined to testify in this matter. The trial court accepted the jury's verdict for the defendant.

I

In her first claim of error, the plaintiff complains that the trial court erred in admitting the original complaint and instructing the jury that the allegations contained therein were "judicial admissions" that were "not in themselves conclusive," but whose weight was "to be determined by you the jury the same as any other evidence offered at this trial." The plaintiff claims that the allegations against Upjohn in the original complaint were not admissions and should have been excluded. We disagree.

There is an abundance of precedent contrary to the plaintiff's assertions. "As we have recently reiterated, statements in complaints against parties subsequently withdrawn from a cause of action are admissible as evidence...." Oberempt v. Egri, 176 Conn. 652, 655, 410 A.2d 482 (1979). This statement is but a corollary of the rule we have consistently followed under which statements in withdrawn or superceded pleadings, including complaints, may be considered as evidential admissions by the party making them, just as would any extrajudicial statements of the same import. See, e.g., DiFederico v. McNamara, 181 Conn. 54, 55, 434 A.2d 320 (1980); Oberempt v. Egri, supra, 176 Conn. at 655, 410 A.2d 482; Schenck v. Pelkey, 176 Conn. 245, 248, 405 A.2d 665 (1978); Brockett v. Jensen, 154 Conn. 328, 336, 225 A.2d 190 (1966); Connecticut Bank & Trust Co. v. Rivkin, 150 Conn. 618, 622, 192 A.2d 539 (1963); Cramer v. Kolodney & Meyers, Inc., 129 Conn. 468, 472, 29 A.2d 579 (1942); Nichols v. Nichols, 126 Conn. 614, 620, 13 A.2d 591 (1940); Theron Ford Co. v. Dudley, 104 Conn. 519, 525, 133 A. 746 (1926); Loomis v. Norman Printers Supply Co., 81 Conn. 343, 350, 71 A. 358 (1908).

The plaintiff's brief appears to recognize that the weight of authority is against her. The sources relied upon in the brief raise two questions with respect to that authority: first, whether the rule as broadly formulated under our law has any rational application under modern pleading practice; and second, whether the rule, if found to be of continuing vitality, applies to the type of allegations at issue here.

Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint. Practice Book §§ 94, 137; Veits v. Hartford, 134 Conn. 428, 434-35, 58 A.2d 389 (1948). The plaintiff's brief alludes to a line of cases which hold that this type of liberal pleading policy would be frustrated were the pleader subjected to the risk that anything he pleads will be held against him even if he withdraws or abandons it. These cases, therefore, conclude that a withdrawn or superceded statement in one of two alternative claims may not be used as an admission in the trial of the other. See Continental Ins. Co. of New York v. Sherman, 439 F.2d 1294, 1298-99 (5th Cir.1971); Giannone v. United States Steel Corporation, 238 F.2d 544, 547-48 (3d Cir.1956); Trans Western Leasing Corporation v. Corrao Construction Co., 98 Nev. 445, 448-49, 652 P.2d 1181 (1982); McCormick, Evidence (2d Ed.1972) § 265, p. 634.

We do not believe that the policy supporting the liberal pleading rules controlling in this jurisdiction requires any such limitation on the use of superceded or abandoned pleadings as evidence of admissions contained therein. While alternative and inconsistent pleading is permitted, it would be an abuse of such permission for a plaintiff to make an assertion in a complaint that he does not reasonably believe to be the truth. See Practice Book § 111. Our pleading rules were designed to avoid the pitfalls of unnecessary formality, not to allow a plaintiff to engage in fantasy. "Our laws formerly cast on the plaintiff the duty of construing his rights with respect to the form in which they ought to be brought before the court, and the relief to which he might be entitled, at the risk of losing everything if he mistook his remedy. The Practice Act enables him, in a case like the present, to throw this duty of construction upon the court. It is enough for him to tell his story as plainly and concisely as may be, and to state the different kinds of relief, one of which he thinks he may fairly claim." Craft Refrigerating Machine Co v. Quinnipiac Brewing Co., 63 Conn. 551, 564, 29 A. 76 (1893). Cf. Federal Rule of Civil Procedure 11 (requiring that a pleading be filed only if "it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law....").

Even those cases which support the plaintiff's position recognize that the superceded allegations have some probative value, for those cases allow the use of superceded or abandoned pleadings as admissions with regard to the specific claim in which they were made. The pleadings are barred from collateral claims not because they are not probative, but because the courts believe they tend to frustrate the practice of alternative and inconsistent pleading. See Trans Western Leasing Corporation v. Corrao Construction Co., supra, 448. Given that the statements have some probative value, we believe that the circumstances under which they are made, as with any other "admission," go to the weight to be accorded the statements rather than their admissibility. Stitham v. LeWare, 134 Conn. 681, 684, 60 A.2d 658 (1948); see also Toffolon v. Avon, 173 Conn. 525, 537, 378 A.2d 580 (1977); Bogart v. Tucker, 164 Conn. 277, 281, 320 A.2d 803 (1973); Perrelli v. Savas, 115 Conn. 42, 43-44, 160 A. 311 (1932). The fact that statements in a pleading may be made before discovery at a time when the plaintiff is uncertain as to the truth is a circumstance that may be explained to the trier when the superceded pleading is admitted. 1 Kucza v. Stone, 155 Conn. 194, 197-98, 230 A.2d 559 (1967); Berger v. Guilford, 136 Conn. 71, 83, 68 A.2d 371 (1949). To exclude admissions contained in earlier pleadings would make the filing of a complaint in our procedure serve merely as notice of an intent to investigate the cause of an injury rather than as "a plain and concise statement of the material facts on which the pleader relies" to invoke the court's jurisdiction. Practice Book §§ 108, 131. Such a result would extend the effect of our liberal pleading rules far beyond the policy supporting them.

In sum, we continue to believe that "[t]he rule concerning the admissibility into evidence of admissions in pleadings is too well established in law and sound in reason to be modified as the plaintiff urges. The time has passed when allegations in a pleading will be treated as mere fictions, rather than 'as statements of the real issues in the cause and hence as admissions of the parties.' 2 Jones, Evidence (5th Ed.), p. 693; see also 4 Wigmore, Evidence (3d...

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