Carrano v. YALE-NEW HAVEN HOSP.

• Decision Date: 24 August 2004
• Docket Number: No. 22644.,22644.
• Citation: 854 A.2d 771,84 Conn.App. 656
• Court: Connecticut Court of Appeals
• Parties: Mary CARRANO, Administratrix (Estate of Phillip J. Carrano, Jr.), et al. v. YALE-NEW HAVEN HOSPITAL et al.

854 A.2d 771

84 Conn.App. 656

Mary CARRANO, Administratrix (Estate of Phillip J. Carrano, Jr.), et al. v. YALE-NEW HAVEN HOSPITAL et al.

No. 22644.

Appellate Court of Connecticut.

Argued May 25, 2004.

Decided August 24, 2004.

Jeffrey R. Babbin, with whom, on the brief, was Kenneth D. Heath, New Haven, for the appellants (named defendant et al.).

Thomas J. Weihing, with whom were Thomas E. Mangines and, on the brief, John T. Bochanis, Bridgeport, for the appellee (named plaintiff).

DRANGINIS, WEST and McLACHLAN, Js.

McLACHLAN, J.

In this medical malpractice action, the defendants¹ appeal from the judgment of the trial court, rendered following a jury verdict, in favor of the plaintiff, Mary Carrano,² individually and as administratrix of the estate of her husband, Phillip J. Carrano, Jr. On appeal, the defendants claim that the court improperly (1) increased, sua sponte, the number of peremptory challenges allowed to the plaintiff in order to equalize her number of challenges with that of the several defendants, (2) admitted the testimony of the plaintiff's medical expert on causation of death, (3) concluded there was sufficient evidence of causation of death and (4) allowed the question of economic damages to reach the jury without an adequate evidentiary basis. We conclude that the court acted improperly with respect to the granting of peremptory challenges and, therefore, reverse the judgment of the trial court and remand the case for a new trial.³

Carrano was admitted to Yale-New Haven Hospital on March 12, 1992. He required treatment for a necrotic finger and a colonoscopy to determine whether and to what extent surgery would be an appropriate next step in treating his Crohn's disease. Carrano underwent the colonoscopy and treatment for the necrotic finger. He was released from Yale-New Haven on March 21, 1992, and died at home early the next morning. Thereafter, the plaintiff initiated this action.

I

The defendants first claim that the court improperly granted the plaintiff additional peremptory challenges not authorized by General Statutes §§ 51-241 and 51-243(a). We agree.

Prior to jury selection, on April 24, 2001, the court increased, sua sponte, the number of the plaintiff's peremptory challenges from eight to twenty to equalize her number of challenges with that of the defendants. At that stage of the litigation, there were five defendants who claimed to lack a unity of interest⁴ and, in accordance with §§ 51-241 and 51-243(a),⁵ the court granted each defendant four peremptory challenges for a total of twenty. Given that there were at most two plaintiffs — the plaintiff acting in her individual and representative capacities — the maximum number of challenges to which the plaintiff was entitled by §§ 51-241 and 51-243(a) was eight.

The court concluded that this twenty to eight disparity in peremptory challenges was unfair and decided to "level the playing field" by increasing the plaintiff's allotment of peremptory challenges to twenty.⁶ The defendants took exception to the court's determination but were overruled. During jury selection, the plaintiff exercised fifteen⁷ of her twenty peremptory challenges. At trial, the court directed a verdict for two of the defendant physicians.⁸ The jury found the three remaining defendants liable and awarded approximately $3.4 million in total damages.

Our review of the court's decision to increase the plaintiff's number of peremptory challenges from eight to twenty is guided by our Supreme Court's recent decision in Kalams v. Giacchetto, 268 Conn. 244, 256-64, 842 A.2d 1100 (2004). "[T]he granting of more challenges than provided by law is subject to review for abuse of discretion. In conducting that review, we consider whether the granting of the challenges harmed either party or was inconsistent with an efficient and orderly judicial process." Id., at 263-64, 842 A.2d 1100.

The plaintiff argues that the court's discretion to grant additional peremptory challenges is broad enough to include the situation here, where the court awarded additional challenges to only one side in the litigation to equalize the two sides' control over jury selection. She also argues that her exercise of at least seven more peremptory challenges than prescribed by statute did not harm the defendants. We disagree with both arguments.

First, as to the issue of the breadth of a trial court's discretion, a careful reading of Kalams reveals a narrow discretion when applied to a case like the one now before us. Kalams refers only to the trial court's discretion to grant each side in litigation additional challenges. All of the relevant cases cited in Kalams, and Kalams itself, involve a court's decision to grant more peremptory challenges to each side. In fact, most of the cases discussed are criminal cases, which require an equal number of peremptory challenges for the state and the defendant. See, e.g., State v. Day, 233 Conn. 813, 845, 661 A.2d 539 (1995) (trial court may allow parties more peremptory challenges than provided by law); State v. Hancich, 200 Conn. 615, 624-626, 513 A.2d 638 (1986) (trial court, which had at outset of jury selection mistakenly granted each party eight peremptory challenges instead of four to which they were entitled, should have left mistake intact). Thus, the court was constrained by the number of peremptory challenges allowed by §§ 51-241 and 51-243(a). We accordingly conclude that the court improperly awarded the plaintiff additional peremptory challenges.

We next consider whether the defendants suffered harm. See Kalams v. Giacchetto, supra, 268 Conn. at 264, 842 A.2d at 1113. Here, the plaintiff's receipt of twelve more challenges than that to which she was entitled (of which she used seven) fundamentally altered the composition of the jury that decided the case in her favor. Prior to the adoption of the amendments to §§ 51-241 and 51-243(a) adopting a "two to one rule,"⁹ when only one side in litigation was granted additional peremptory challenges solely to lessen a disparity in challenges, the other side is harmed and a new trial is necessary. See Marshall v. Hartford Hospital, 65 Conn.App. 738, 744, 783 A.2d 1085, cert. denied, 258 Conn. 938, 786 A.2d 425 (2001).

A new trial is the only appropriate remedy "because the use of the challenges at the original trial can never be reconstructed. If each [side had the appropriate number of] challenges, a wholly different jury panel might have been selected." Rivera v. Saint Francis Hospital & Medical Center, 55 Conn.App. 460, 467, 738 A.2d 1151 (1999). We conclude that the court abused its discretion in granting additional peremptory challenges to the plaintiff, causing the defendants to suffer harm. Accordingly, a new trial is necessary.¹⁰

II

The defendants next claim that the court improperly admitted the testimony of the plaintiff's only medical expert over their objections under State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998). We conclude that the court properly admitted the testimony.

An autopsy determined that the cause of Carrano's death was pulmonary edema (fluid in the lungs). While it was not disputed that the pulmonary edema caused the death, the cause of the pulmonary edema itself was a main issue at trial.

The plaintiff's expert, Robert Pieroni, a physician board certified in internal medicine, theorized that the pulmonary edema was caused by a massive fluid overload, which Carrano's body could not sufficiently eliminate, essentially causing him to drown. Pieroni testified that the defendants negligently failed to address several treatable conditions that caused and exacerbated the fluid overload and that the defendants failed to alter or halt courses of treatment that were inadvisable for patients with signs of excess fluid.

Pieroni referred to his identification of a combination of causes leading to one result as a "multi-factorial" diagnostic method. The factors he identified as contributing to the pulmonary edema were massive edema or "anasarca" (excess fluids in the upper and lower extremities, sacrum and buttocks that caused noticeable and extreme swelling); progressive anemia (Carrano lost one-third of his blood volume while at Yale-New Haven Hospital); sepsis; fever; pneumonitis; a low potassium-high sodium diet; non-steroidal anti-inflammatory drugs; and hospital-administered fluids including saline, intravenous antibiotics, and "Go-Lightly," a gallon of which Carrano drank to cleanse his colon for the colonoscopy. In sum, Pieroni testified that no single factor caused the pulmonary edema, but that the combination of those many factors caused it.

The defendants' experts testified that the pulmonary edema could not possibly have been caused by massive fluid overload given Carrano's relatively healthy heart and healthy kidneys.¹¹ They also offered alternate theories of causation and disputed the relevance or existence of many of the above enumerated factors.

Prior to and at trial, the defendants attacked the scientific reliability of Pieroni's testimony by filing a motion in limine to exclude it and later moving to have it stricken and judgment entered for the defendants. Each time, the court recognized that some of the factual bases for Pieroni's opinion were questionable, but it nonetheless sent Pieroni's testimony to the jury. The court reasoned that the defendants' purported attacks on the scientific reliability of Pieroni's method (the "multi-factorial" diagnostic method) were not attacks on his method. Rather, the defendants' attacks were on the underlying factual bases for Pieroni's conclusions, the existence of which would be disputed fact questions for the jury. The court also concluded that even if the defendants attacked the "multi-factorial" diagnostic method, they would have failed because "analysis of multiple signs and symptoms to arrive at a cause is a well recognized...