MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT (#157)
JANE S. SCHOLL, JUDGE.
In this medical malpractice case, a verdict in favor of the Defendants was rendered on May 17, 2005. By Motion dated May 27, 2005, the Plaintiff has moved to set aside the verdict on the grounds that it was reached due to errors of law in the course of the trial. The Defendants filed an objection to the motion on June 6, 2005. Oral argument on the motion was heard by the court on September 12, 2005.
The following evidence was presented at trial. On March 15, 2000, the Plaintiff's decedent, Norman Chaput, was involved in a motor vehicle accident with a car operated by William Meikle. He was transported by ambulance from the scene to Windham Hospital. Windham Hospital is not designated as a trauma center. Mr. Chaput's condition when he arrived at the hospital was that he had suffered a broken ankle, he had bruising and hematoma in his groin area, and he was morbidly obese and diabetic. He was admitted to Windham Hospital. His condition deteriorated over the next few days, and on March 18, 2000 he was transferred to Hartford Hospital. Hartford Hospital is designated as a level one trauma center by the American College of Surgeons. Mr. Chaput died shortly after his arrival at Hartford Hospital. The exact cause of his death is unknown because no autopsy was performed. However, the Plaintiff's expert, Dr. Joseph Dineen, opined that Mr. Chaput died of shock and trauma.
The Plaintiff claimed at trial that the Defendant doctor breached the standard of care in that he failed to properly diagnose the Plaintiff's decedent's condition and he failed to promptly transfer him to a hospital where he could have received appropriate care.
In his Motion to Set Aside Verdict, the Plaintiff claims that the court made two errors in ruling on evidentiary issues during the course of the trial. First, the Plaintiff claims that the court erred in admitting evidence that the Plaintiff had instituted an action alleging wrongful death against William Meilke. Second, the Plaintiff claims that the court erred in limiting the testimony of the Plaintiff's expert, Joseph Dineen, M.D.
"A court may `set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict.' (Internal quotation marks omitted.) Bovat v. Waterbury, 258 Conn. 574, 583, 783 A.2d 1001 (2001), quoting Munson v. Atwood,108 Conn. 285, 288, 142 A. 737 (1928); see also Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 276-77, 828 A.2d 64 (2003); Yeske v. Avon Old Farms School, Inc.,1 Conn.App. 195, 206, 470 A.2d 705 (1984). The power to set aside a verdict is inherent and is `indispensable to the proper administration of justice, otherwise the court would be powerless to undo the wrong it had unintentionally done in the course of the trial although it had become aware of the error it had made in time to right the wrong.' Munson v. Atwood, supra, 108 Conn. 288." Message Center Management v. Shell Oil Prod., 85 Conn.App. 401, 414-15 (2004).
As to the first claim, the court allowed the Defendants, on cross-examination of the Plaintiff, to introduce evidence regarding the claims made by the Plaintiff against Meikle, since they went to his credibility. The Supreme Court has stated: "`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 superseded 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, 655; 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) . . . 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) . . . We do not believe that the policy supporting the liberal pleading rules controlling in this jurisdiction requires any such limitation on the use of superseded 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 . . . 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) . . . 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 Ed.) 1066, pp. 52-54.' Tough v. Ives, 162 Conn. 274, 283, 294 A.2d 67 (1972)." Dreier v. Upjohn Co., 196 Conn. 242, 244-8 (1985). Thus the pleading here was properly admitted by the court. In addition, the Plaintiff was permitted to explain why this case was filed in light of the complaint against Meikle and indicated that there was minimal insurance in that case and it was settled. Lastly, the court instructed the jury in its charge that: "You have also heard that the Plaintiff at one time made certain statements in a complaint in a lawsuit against Mr. Meikle. In...
