Cousins v. Nelson, No. 24489.

• Court: Appellate Court of Connecticut
• Writing for the Court: DUPONT, J.
• Citation: 87 Conn.App. 611,866 A.2d 620
• Parties: Arlene COUSINS et al. v. Alan NELSON et al.
• Decision Date: 22 February 2005
• Docket Number: No. 24489.

866 A.2d 620
87 Conn.App. 611

Arlene COUSINS et al.
v.
Alan NELSON et al

No. 24489.

Appellate Court of Connecticut.

Argued October 22, 2004.

Officially released February 22, 2005.

866 A.2d 622

James M. Connolly, with whom was Brigid A. Connolly, legal intern, for the appellant (named plaintiff)

Charles W. Fleischmann, Westport, for the appellees (defendants).

BISHOP, WEST and DUPONT, Js.

Opinion

DUPONT, J.

The plaintiff Arlene Cousins¹ appeals from the judgment of the trial court rendered in favor of the defendants, Alan Nelson and Bridgeport Internal Medicine and Gastroenterology Associates, in this medical malpractice action. The judgment followed the court's denial of the plaintiff's motions to set aside the verdict and for a new trial. We affirm the judgment of the trial court.

The plaintiff claims on appeal that the court improperly (1) denied her request to admit into evidence an article cited in a footnote of an article that had been admitted as a full exhibit, (2) prohibited her from cross-examining the defendants' expert witness regarding the article cited in the exhibit, (3) prohibited the plaintiff from cross-examining the defendants' expert

866 A.2d 623

witness regarding his role as a witness in a separate medical malpractice case involving the defendants and (4) denied the plaintiff's motion to set aside the verdict. The first three claims are evidentiary in nature and are discussed together

The plaintiff instituted this action seeking damages for injuries claimed to have been sustained as a result of the medical malpractice of the defendant physician, Nelson, a gastroenterologist, and the defendant medical group of which he is a member. Nelson performed a procedure on the plaintiff known as an endoscopic retrograde cholangiopancreatography (ERCP) to evaluate the plaintiff's bile duct system as well as an endoscopic sphincterectomy (ES), which utilizes an electric current to make an opening in the muscle that encircles the duct. Those procedures, both singularly and in combination, involve an inherent risk of pancreatitis. The plaintiff developed pancreatitis and associated conditions. She alleged that the medical procedures Nelson performed violated the applicable standard of care because they were not warranted or indicated by the plaintiff's history, by Nelson's findings or by test results. She also alleged that the medical procedures were the proximate cause of her injuries. Nelson claimed that the procedures were appropriate and warranted. A central issue at trial was what factors indicate that an ERCP should be performed and if the particular millimeter enlargement or dilation of the plaintiff's common bile duct warranted the performance of an ERCP.

I

EVIDENTIARY RULINGS

A

Standard of Review

The plaintiff's claims relating to the introduction of evidence through (1) expert witnesses, (2) an article cited in a footnote of a full exhibit and (3) testimony relating to another malpractice case to prove the violation by the defendants of the appropriate standard of care are challenges to evidentiary rulings of the court.

"It is well settled that the trial court's evidentiary rulings are entitled to great deference.... The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the rulings amounted to an abuse of discretion." (Citation omitted.) Pestey v. Cushman, 259 Conn. 345, 368-69, 788 A.2d 496 (2002). Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated without a showing of harm. See Rokus v. Bridgeport, 191 Conn. 62, 70-71, 463 A.2d 252 (1983). In other words, the party claiming error also must prove that the outcome of the case would have been different were it not for the claimed error. Meek v. Wal-Mart Stores, Inc., 72 Conn.App. 467, 496-97, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002). Further, if the same proffered evidence that was excluded could have been admitted at a later time in the trial, any inference that the error affected the verdict would be negated. Rokus v. Bridgeport, supra, at 71, 463 A.2d 252. We conclude that the court did not abuse its discretion in connection with any of its evidentiary rulings.

B

Admissibility of the Article Cited in the Defendants' Exhibit

We address first the plaintiff's claim that the court improperly denied the admission into evidence of an article cited in a footnote in an article previously admitted

866 A.2d 624

as defendants' exhibit H.² The plaintiff claims that the cited article should have been admitted pursuant to the rule of completeness, as codified in § 1-5(b) of the Connecticut Code of Evidence,³ or to counteract the defendant's alleged surprise tactics⁴ or to test the credibility of the defendants' expert witness on cross-examination.⁵

Testifying as to the relevant standard of care, and making repeated reference to "the literature," the plaintiff's expert witness, Jeffrey L. Ponsky of the Cleveland Clinic Foundation,⁶ stated that an ERCP was not indicated in this case, in part, because the plaintiff's common bile duct was at "the upper limits of normal" and that the "indications for the performance of an ERCP in the preoperative period would have included... perhaps a massively dilated bile duct on ultrasound, and I'm saying up to fifteen millimeters. Certainly, nothing of the size here." On cross-examination, Ponsky indicated that he was aware of nothing in the relevant medical literature stating that dilation of the common bile duct to eight millimeters is an indication that an ERCP should be performed. On cross-examination, the defendants

866 A.2d 625

showed Ponsky an article, published by the Cleveland Clinic Foundation in 2002 and written by a surgeon there, that clearly stated that dilation of the common bile duct of eight millimeters or greater is an indication for an ERCP. Ponsky testified that he disagreed with the conclusions stated in that article. The defendants sought to introduce into evidence the relevant portions of the article, at which point the plaintiff indicated that she did not have any objection to admitting the article in its entirety into evidence. The court admitted the article as defendants' exhibit H

Subsequently, after Ponsky returned to Ohio, the plaintiff sought to introduce the article cited in a footnote of the defendants' exhibit H, claiming that it was contrary to the opinion expressed in exhibit H. She offered the cited article when an expert witness for the defendants, Robert S. Rosson, was testifying, and again, by a separate offer of proof. The court denied both offers. The cited article was written in 1996 and published in the American Journal of Gastroenterology. It was not offered during redirect examination of Ponsky. The plaintiff argues that the cited article should have been placed into evidence in order to avoid misleading the jury. She argues that the jury should have been permitted to consider the expert testimony of Ponsky in light of the cited article, which, the plaintiff maintains, completely contradicts the defendants' exhibit H.

The plaintiff's chief argument is that § 1-5(b)⁷ of the Connecticut Code of Evidence permits the introduction of the article as a statement during the plaintiff's cross-examination of Rosson. Section 1-5(b) applies to statements, and its purpose is to "ensure that statements placed in evidence are not taken out of context.... This purpose also demarcates the rule's boundaries; a party seeking to introduce selected statements under the rule must show that those statements are, in fact, relevant to, and within the context of, an opponent's offer and, therefore, are part of a single conversation." (Citation omitted.) State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991). "Although the cases upon which subsection (b) is based deal only with the admissibility of oral conversations or statements, the rule logically extends to written and recorded statements. Thus, like subsection (a), subsection (b)'s use of the word `statement' includes oral, written and recorded statements. In addition, because the other part of the statement is introduced under subsection (b) for the purpose of putting the first part into context, the other part need not be independently admissible." Conn.Code Evid. § 1-5, commentary, subsection (b); see State v. Paulino, 223 Conn. 461, 468-69, 613 A.2d 720 (1992); State v. Castonguay, supra, at 496, 590 A.2d 901; cf. Starzec v. Kida, 183 Conn. 41, 47 n. 6, 438 A.2d 1157 (1981). The plaintiff asks us to extend the meaning of the word "statement" to include learned treatises claimed to be "a part of" another treatise that previously was admitted into evidence. We are aware of no appellate authority in Connecticut extending the scope of § 1-5(b) of the Connecticut Code Evidence to permit the admission of a learned treatise as a "part of" a different, independent learned treatise written by a different author.

In this case, the defendants sought to impeach Ponsky's credibility by challenging his knowledge of the relevant medical literature. Specifically, the defendants attempted to discredit Ponsky's testimony

866 A.2d 626

that an eight millimeter dilation, on ultrasound, of the common bile duct was not a factor predicting common bile duct stones and, thus, not an indication for the performance of an ERCP. The defendants achieved that result by confronting Ponsky with an article that stated that an eight millimeter dilation is an indication for the performance of an ERCP. Subsequently, during the cross-examination of Rosson, the plaintiff sought to introduce an article...