Kalams v. Giacchetto

• Decision Date: 23 March 2004
• Docket Number: (SC 17025).
• Citation: 268 Conn. 244,842 A.2d 1100
• Court: Connecticut Supreme Court
• Parties: ZANNIS KALAMS v. JOHN J. GIACCHETTO. ZANNIS KALAMS ET AL. v. JOHN J. GIACCHETTO.

268 Conn. 244

842 A.2d 1100

ZANNIS KALAMS v. JOHN J. GIACCHETTO.

ZANNIS KALAMS ET AL. v. JOHN J. GIACCHETTO.

(SC 17025).

Supreme Court of Connecticut.

Argued December 8, 2003.

Officially released March 23, 2004.

Sullivan, C. J., and Katz, Palmer, Vertefeuille and Zarella, Js.

Wesley W. Horton, with whom were Kimberly A. Knox and, on the brief, Barbara Ellis, Andrea E. Merkle and Jennifer Milici, legal interns, for the appellants (plaintiffs).

Louis B. Blumenfeld, with whom, on the brief, was Lorinda S. Coon, for the appellee (defendant).

Opinion

SULLIVAN, C. J.

This appeal arises from two actions brought by the plaintiff, Zannis Kalams, a physician, against the defendant, John J. Giacchetto, who is also a physician. One of the cases involves a claim of medical malpractice and the other involves a claim of libel.¹ The cases were consolidated for trial. The jury returned verdicts for the defendant in both cases, and the trial court rendered judgments in accordance with the verdicts. The plaintiff then brought this appeal² claiming that the trial court improperly: (1) precluded his expert witness from testifying on the issue of causation in the medical malpractice action; (2) instructed the jury that the plaintiff must prove causation in the action for libel per se; and (3) granted eight peremptory challenges to each party. We affirm the judgment of the trial court.

I

We first address the plaintiff's claim that the trial court improperly granted the defendant's motion in limine precluding testimony by his expert witness, Thomas J. Gill, a physician specializing in orthopedic surgery, that the defendant's alleged deviation from the standard of care caused the plaintiff's injuries. We conclude that, even if we assume that the ruling was improper, it was harmless.

The record reveals the following facts and procedural history relevant to this claim. On October 24, 2000, the plaintiff filed a complaint alleging that the defendant had failed to meet the applicable standard of care for health care providers when he performed two surgeries to repair an injury to the plaintiff's right shoulder. The plaintiff disclosed on October 31, 2001, that Gill would testify on the issue of whether the defendant deviated from the proper standard of care. On September 30, 2002, the day before jury selection was scheduled to begin, the plaintiff filed an "Emergency Request for Continuance or Such Other Relief as May be Appropriate" in which he requested permission to amend his expert disclosure to indicate that Gill would be testifying on the issue of causation.³ The trial court, Martin, J., denied the request on the ground that the case already had been continued several times and the defendant would be prejudiced by the late disclosure.

During the trial, the defendant filed a motion in limine seeking to preclude Gill from testifying on the issue of causation. The trial court, Corradino, J., heard arguments on the motion. Counsel for the plaintiff argued that the motion should be denied because the October 31, 2001 disclosure had been sufficient to put the defendant on notice that Gill would be testifying on the entire liability aspect of the case, including causation. The court ruled that Judge Martin's earlier ruling on the plaintiff's motion for a continuance was binding on the question of whether Gill should be allowed to testify on the issue of causation and granted the motion in limine.

Gill testified that he treated the plaintiff after the defendant had performed the two shoulder surgeries on him. When the plaintiff first came to Gill's office, he was unable to move his right arm. Gill performed exploratory surgery on the plaintiff's shoulder and determined that his deltoid muscle had detached from the bone as a complication of the surgeries performed by the defendant. Gill testified that the defendant had deviated from the standard of care by failing to diagnose the detachment of the muscle and by failing to treat that condition. The plaintiff attempted to question Gill on whether the defendant's alleged deviation from the standard of care had caused the plaintiff's injuries. The trial court sustained the defendant's objections to the questions.

The plaintiff also called the defendant as a witness. The defendant testified that if a detached deltoid muscle is not surgically reattached to the bone, it will retract from the bone and atrophy. Eventually, the detachment will become irreparable.

After the plaintiff had rested his case, the defendant made a motion for a directed verdict on the ground that the plaintiff had presented no evidence on the issue of causation. The plaintiff argued that expert testimony on causation is not always required.⁴ He also argued, in the alternative, that the defendant himself had testified as an expert on that issue. The court reserved its ruling on the motion pending the jury verdict pursuant to Practice Book § 16-37.⁵

After the conclusion of evidence and the instructions to the jury, the trial court provided the jury with a verdict form containing two interrogatories. The first interrogatory asked: "In the medical malpractice claim, did [the] plaintiff prove by a preponderance of the evidence that [the defendant] was negligent in failing to comply with the standard of care applicable to him?" The second interrogatory asked: "In the medical malpractice claim, did [the] plaintiff prove by a preponderance of the evidence that [the defendant's] negligence was a proximate cause of [the plaintiff's] damages?" The jury answered "no" to both interrogatories. Accordingly, the jury returned a verdict for the defendant in the medical malpractice action.

At the outset of our analysis, we set forth the applicable standard of review. It is well settled that "we will set aside an evidentiary ruling only when there has been a clear abuse of discretion." (Internal quotation marks omitted.) State v. Lugo, 266 Conn. 674, 700, 835 A.2d 451 (2003). "[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. . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result. . . . When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it. . . . In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless." (Citations omitted; internal quotation marks omitted.) Vasquez v. Rocco, 267 Conn. 59, 71, 836 A.2d 1158 (2003); see also State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991) (burden is on party claiming nonconstitutional evidentiary error to show that "it is more probable than not that the erroneous action of the court affected the result").

The plaintiff argues that Judge Corradino improperly determined that Judge Martin's ruling on the plaintiff's motion for a continuance to amend his expert disclosure was binding on the court in ruling on the defendant's motion in limine. The plaintiff argues that the ruling was not binding because Judge Martin had never addressed the dispositive issue in the motion in limine, that is, whether the plaintiff's initial expert disclosure had given fair notice to the defendant that Gill would testify on the issue of causation.

We conclude that we need not consider the merits of the trial court's ruling on the motion in limine because, even if we assume that the ruling was improper, it was harmless. The jury was not required to reach the issue of causation because, as evidenced by its answers to the jury interrogatories, it first determined that the defendant had not breached the standard of care. Accordingly, we conclude that it is not reasonably probable that testimony on causation would have affected the result.

The plaintiff argues that the exclusion of testimony on causation was harmful because Gill was the plaintiff's only expert witness and his failure to testify on an essential element of the medical malpractice claim was bound to have undermined his credibility in the eyes of the jurors. Counsel for the plaintiff was not permitted to ask Gill about causation, however. We find it unlikely that the jurors discounted otherwise credible testimony by Gill as to the alleged deviation from the standard of care simply because he did not provide an opinion on an issue about which he was not asked. Moreover, we will not assume that the jury engaged in improper speculation as to the reason that the questions were not permitted.

The plaintiff further argues that, in light of the gap in Gill's testimony, "the plaintiff's case must have been viewed [by the jury] as a travesty of justice." We are not convinced that the purported gap in Gill's testimony necessarily would have been perceived by the jury as an inexplicable and glaring defect in the plaintiff's case. Indeed, in contrast to the plaintiff's claim in his brief to this court that his "case went to the jury with no evidence on causation"; (emphasis added); he argued to the trial court in opposition to the defendant's motion for directed verdict that the evidence he had presented through the defendant's testimony was sufficient to establish causation. Moreover, although expert testimony on causation generally is required in medical malpractice cases, there are, as we have noted, exceptions to that rule. See footnote 4 of this opinion. We express no view on whether expert testimony on the issue of causation was required in this case, but the fact that it is not always required tends to undermine the plaintiff's argument that Gill's failure to give an opinion as to causation necessarily destroyed his credibility. Accordingly, we affirm the trial court's granting of the defendant's motion in limine.

II

We next address the plaintiff's claim that the trial court improperly instructed the jury that...