Filippelli v. Saint Mary's Hosp., No. 19148.

• Court: Supreme Court of Connecticut
• Writing for the Court: PALMER, J.
• Citation: 319 Conn. 113,124 A.3d 501
• Parties: Philip FILIPPELLI III et al. v. SAINT MARY'S HOSPITAL et al.
• Decision Date: 13 October 2015
• Docket Number: No. 19148.

319 Conn. 113
124 A.3d 501

Philip FILIPPELLI III et al.
v.
SAINT MARY'S HOSPITAL et al.

No. 19148.

Supreme Court of Connecticut.

Argued Dec. 2, 2014.
Decided Oct. 13, 2015.

124 A.3d 503

Stephanie Z. Roberge, New Haven, for the appellant (named plaintiff).

Ellen M. Costello, New Haven, for the appellees (defendant Waterbury Orthopaedic Associates, P.C., et al.).

Opinion

PALMER, J.

319 Conn. 116

The plaintiff, Philip Filippelli III,¹brought this medical malpractice action against the defendants, Dennis M. Rodin and Waterbury Orthopaedic Associates, P.C.,²claiming that Rodin negligently failed to timely diagnose and treat the plaintiff's compartment syndrome,³resulting in severe and permanent injuries to the plaintiff's lower left leg. Following a trial, the jury found that the defendants had not breached the standard of care and returned a verdict in favor of the defendants. The trial court rendered judgment in accordance with the jury verdict, and the plaintiff appealed to the Appellate Court, which affirmed the trial court's judgment. Filippelli v. Saint Mary's Hospital,141 Conn.App. 594, 597, 61 A.3d 1198 (2013). On appeal to this court following our grant of certification; Filippelli v. Saint Mary's Hospital,308 Conn. 947, 67 A.3d 289 (2013); the plaintiff claims that he is entitled to a new trial because the Appellate Court improperly concluded that the trial court did not abuse its discretion in (1) restricting his use of an article from a medical

319 Conn. 117

journal to impeach certain witnesses, and (2) precluding him from (a) questioning the defendants' expert witness about his previous work as an expert on behalf of Rodin, and (b) making an offer of proof and marking a document for identification in connection with that proffered questioning. We disagree with the plaintiff's claims and, accordingly, affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the relevant facts and procedural history in detail. See Filippelli v. Saint Mary's Hospital,supra, 141 Conn.App. at 597–600, 61 A.3d 1198. To briefly summarize, the plaintiff sustained a comminuted tibial plateau fracture⁴while playing basketball on March 4, 2005. At approximately 10 p.m. that evening, he was taken to the emergency department of Saint Mary's Hospital, where he was treated and released. The plaintiff returned at approximately 7:30 a.m. the following morning complaining of severe pain in his left leg, and Rodin admitted the plaintiff for observation. At approximately 6:45 p.m. that evening, Rodin diagnosed the plaintiff with compartment syndromeand treated it by performing a four compartment fasciectomy.⁵Thereafter, the plaintiff commenced this action alleging that Rodin was

124 A.3d 505

negligent in failing to diagnose and treat his compartment syndromeon the morning of March 5, 2005, and that the delay in treatment caused, among other things, severe and permanent injuries. Following a trial, in response to an

319 Conn. 118

interrogatory, the jury found that the defendants had not breached the standard of care. The jury returned a verdict for the defendants and the trial court rendered judgment in accordance with that verdict.

On appeal to the Appellate Court, the plaintiff claimed that the trial court abused its discretion in barring him from using an article from a medical journal for the purpose of impeaching Rodin's credibility, and in limiting his use of the same article in his cross-examination of Andrew Bazos, the defendants' expert witness. Id., at 605–607, 61 A.3d 1198. In addition, the plaintiff claimed that the trial court improperly precluded him from questioning Bazos about his previous work as an expert on behalf of Rodin in other malpractice actions. Id., at 623, 61 A.3d 1198. With respect to the plaintiff's attempt to ask Bazos about his prior work on behalf of Rodin, the plaintiff also contended that the trial court precluded him from creating an adequate record of that claim for appellate review by denying him the opportunity to make an offer of proof and to mark a particular document for identification. The Appellate Court concluded that none of the challenged evidentiary rulings constituted an abuse of the trial court's discretion. Id., at 600–601, 61 A.3d 1198. The Appellate Court further concluded that, although the trial court should not have barred the plaintiff from making a record as requested, that impropriety was harmless.⁶Id., at 623–26, 61 A.3d 1198. Accordingly, the Appellate Court affirmed the judgment of the trial court. Id., at 626, 61 A.3d 1198. On appeal to this court, the plaintiff challenges the Appellate Court's conclusions with respect to each of these issues. Additional facts and procedural history will be set forth as necessary.

Before turning to the merits of the plaintiff's claims, we briefly set forth the standard of review applicable

319 Conn. 119

to those claims. It is well settled that “[w]e review the trial court's decision to admit [or exclude] evidence, if premised on a correct view of the law ... for an abuse of discretion.” State v. Saucier,283 Conn. 207, 218, 926 A.2d 633 (2007). Under the abuse of discretion standard, “[w]e [must] make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Hurley v. Heart Physicians, P.C.,298 Conn. 371, 402, 3 A.3d 892 (2010). Moreover, “[b]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful.... [A]n evidentiary impropriety in a civil case is harmless only if we have a fair assurance that it did not affect the jury's verdict.... A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial.... [Finally, our] review of the Appellate Court's conclusions of law, including the determination that any evidential

124 A.3d 506

improprieties were harmless, is plenary.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Klein v. Norwalk Hospital,299 Conn. 241, 254–55, 9 A.3d 364 (2010).

I

The plaintiff first claims that the Appellate Court improperly determined that the trial court did not abuse its discretion in (1) prohibiting him from using the journal article to impeach Rodin, who had read the article prior to his deposition, and (2) limiting his use of the article during his cross-examination of Bazos. We reject both of these contentions.

319 Conn. 120

A

We first address the plaintiff's claim concerning the trial court's ruling precluding him from using the article to impeach Rodin's credibility. Specifically, the plaintiff maintains that, although Rodin suggested during his deposition that the article in question supported his testimony concerning the diagnosis and treatment of compartment syndrome, the article actually contradicts his deposition testimony in several respects. According to the plaintiff, he was entitled to use the article to establish that Rodin did not testify truthfully during his deposition.

The following facts and procedural history, some of which is set forth in the opinion of the Appellate Court, are relevant to this claim. “Counsel for the plaintiff deposed Rodin in March, 2009. At that time, Rodin testified that, in preparation for his deposition, he had reviewed an article in the Journal of the American Academy of Orthopaedic Surgeons, but that he had not brought the journal article to the deposition.⁷Later, the plaintiff's counsel undertook a literature search and found an article published in the subject journal that she believed to be the one Rodin reviewed. On March 6, 2011, as trial was about to begin, the plaintiff filed a supplemental list of exhibits that included, among other things, ‘[S. Olson & R. Glasgow, “Acute Compartment Syndromein Lower Extremity Musculoskeletal Trauma,” 13 J. Am. Acad. Orthopaedic Surgeons, No. 7 (November, 2005) ].’

“The defendants filed an objection to the plaintiff's supplemental list of exhibits, including the journal article. The defendants claimed prejudice due to the plaintiff's late disclosure of the journal article and sought to preclude its use at trial.... On May 10, 2011, the

319 Conn. 121

court held a hearing regarding the defendants' objection to putting the journal article into evidence at trial. The plaintiff's counsel argued that Rodin had referred to the journal article during his deposition.... [The defendants] ... contended that Rodin had referred in general to a journal article, not to a specific journal article, and that the plaintiff had failed to demonstrate that the article found by the plaintiff's counsel was, in fact, the one Rodin had reviewed. Moreover, [the defendants argued that the article was not admissible pursuant to the learned treatise exception to the hearsay rule; see Conn.Code Evid. § 8–3(8);⁸because] Rodin was

124 A.3d 507

a fact witness, not an expert witness, and no expert had testified that the journal article was a standard authority in accordance with § 8–3[8] of the Connecticut Code of Evidence.... The court ... conditionally overruled the defendants' objection with respect to Rodin.” (Footnotes added.) Filippelli v. Saint Mary's Hospital,supra, 141 Conn.App. at 602–603, 61 A.3d 1198.

At trial, the court instructed plaintiff's counsel that, before questioning Rodin about the article in the presence of the jury, she would be required to make an offer of proof. Outside the presence of the jury,⁹“Rodin

319 Conn. 122

testified that he did not recall reading a journal article before his deposition.... [He] acknowledged [however] that, during his deposition, he testified that he had reviewed a journal article. [The] [p]laintiff's...