492 A.2d 164 (Conn. 1985), Dreier v. Upjohn Co.

Citation:492 A.2d 164, 196 Conn. 242
Opinion Judge:SHEA, J.
Party Name:Adeleine DREIER v. The UPJOHN COMPANY et al.
Attorney:Peter A. Kelly, New Haven, for appellant (plaintiff)., Arnold J. Bai, Bridgeport, with whom, was Garie J. Mulcahey, Bridgeport, for appellee (defendant Vincent Pepe). Peter A. Kelly, for the appellant (plaintiff). Arnold J. Bai, with whom was Garie J. Mulcahey, for the appellee (defendant Vincen...
Judge Panel:In this opinion the other judges concurred. Before PARSKEY, SHEA, DANNEHY, KLINE and BRENNAN
Case Date:May 14, 1985
Court:Supreme Court of Connecticut

Page 164

492 A.2d 164 (Conn. 1985)

196 Conn. 242

Adeleine DREIER



Supreme Court of Connecticut.

May 14, 1985

Page 165

Argued Feb. 15, 1985.

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

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


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because the [196 Conn. 243] trial court erred in allowing the defendant to introduce as admissions portions of a superceded pleading containing allegations against the named defendant, the Upjohn Company, and in failing to declare a mistrial based on the plaintiff's charge of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 [196 Conn. 244] 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.


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

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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 [196 Conn. 245] 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...

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