Richmond v. Longo

• Decision Date: 22 April 1992
• Docket Number: No. 10396,10396
• Court: Connecticut Court of Appeals
• Parties: Rodney RICHMOND v. Frank LONGO, Sr.

Page 374

604 A.2d 374

27 Conn.App. 30

Rodney RICHMOND v. Frank LONGO, Sr.

No. 10396.

Appellate Court of Connecticut.

Argued Jan. 22, 1992.

Decided March 10, 1992.

Certification Denied April 22, 1992.

John D. Palermo, Hartford, for appellant (defendant).

Wesley W. Horton, Hartford, with whom were Mona E. Herman, West Simsbury, and, on the brief, Herbert Watstein, Bristol, for appellee (plaintiff).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The defendant appeals from the judgment of the trial court, rendered after a jury trial, awarding the named plaintiff $80,000 in damages for injuries and losses caused by the defendant's negligence. On appeal, the defendant first argues that the trial court improperly precluded the defendant from cross-examining the plaintiff's expert witness about (1) the alleged suspension of his surgical privileges at area hospitals, (2) the alleged restrictions on the witness' medical license, and (3) the results of an alleged investigation, conducted by an area hospital, calling into question the witness' medical practices, surgical procedures and medical judgments. The defendant next argues that the trial court prohibited him from eliciting, on cross-examination, evidence of the plaintiff's witness' bias and prejudice against the defendant's expert witness. We reverse the judgment of the trial court, and remand the case to the trial court for a new trial. ¹

The jury could reasonably have found the following pertinent facts. On July 24, 1986, the plaintiff and the defendant were involved in an automobile accident that occurred after the defendant failed to stop at a stop sign. The plaintiff, who at the time of the accident was employed by a telephone company as a line repairman, suffered injuries to his back and neck. The plaintiff was examined and treated by a neurosurgeon, Guy Owens. Owens diagnosed the plaintiff as having a 10 percent permanent partial disability due to neck injuries caused by the accident.

Prior to trial, the plaintiff filed a motion in limine requesting that "in any examination of Dr. Guy Owens any questions, reference, testimony or evidence of any kind concerning Dr. Owens' controversies with the State of Connecticut concerning his medical licensure and issues concerning his privileges at and relationship with hospitals in the State of Connecticut not be permitted at trial." The plaintiff suggested that such testimony or evidence is irrelevant and would be highly prejudicial to the plaintiff's case. The trial court neither requested nor received any evidence, testimonial or otherwise, concerning Owens' "controversies." Rather, the trial court listened to brief arguments of counsel. Then, ruling from the bench, the trial court granted the plaintiff's motion "within the narrow confines under which it is made, and that is that any examination of Doctor Owens, any questions, reference, testimony or evidence of any kind concerning his controversies with the State of Connecticut, concerning his medical licensure and issues concerning his privileges at and relationship with area hospitals in the State of Connecticut not be permitted at trial." The defendant excepted to the trial court's ruling.

At trial, the central issue was the extent and permanence of the plaintiff's injuries. The outcome of the trial, therefore, hinged in large part on the testimony and credibility of the parties' expert witnesses. The defendant's expert witness, William Druckemiller, a neurosurgeon, testified prior to Owens, the plaintiff's expert. Druckemiller testified that he graduated from Yale Medical School and performed his internship in general surgery as well as his residency in neurosurgery at the University of Minnesota. He testified that in his examination of the plaintiff he found no objective signs of injury to, or disability in, the plaintiff's neck, and stated that he would not place the plaintiff under any physical restrictions or limitations. On cross- Druckemiller testified that any injury that lasts more than six months is chronic and is likely to continue. The doctor did not, however, identify any degree of permanent disability of the plaintiff caused by his alleged injury. Druckemiller acknowledged that it is possible for two doctors to have differing opinions about the same injury. The doctor also acknowledged that there are subjective signs of injury, such as complaints of pain, without any objective signs of any injury.

The plaintiff then called Owens to testify regarding his treatment and diagnosis of the plaintiff. The plaintiff first elicited from Owens testimony concerning Owens' medical education, training and general background. Owens testified that he graduated from Tufts University and Harvard Medical School. He served as an intern, and then as a resident, at Vanderbilt University Hospital in Nashville, Tennessee. He described himself as a "specialist" in neurology. ² He also testified that he was "board certified in neurosurgery," and that to receive such certification one must spend two years in surgical education and an additional four years in neurosurgical training, practice an additional two years, and then take and pass an examination.

Owens testified on the basis of his examination, evaluation and treatment of the plaintiff, as well as his experience in neurosurgery, that the plaintiff suffered from a 10 percent permanent partial disability due to the injury to his neck, which was caused by the collision with the defendant. He testified on the basis of his experience as a neurosurgeon that the plaintiff will experience pain in the future, and that he will not be able to enjoy some activities of life that the average healthy person is able to enjoy. Finally, he testified that the plaintiff "does not have evidence, however, of a surgically correctable problem...."

On cross-examination, Owens again stated that "as of this juncture [the plaintiff is] not a surgical candidate. It may well be that two years from now he may require it."

While the jury was out of the courtroom, the defendant renewed his objection to the trial court's granting of the plaintiff's motion in limine regarding the examination of Owens. The defendant requested an opportunity to voir dire Owens outside the presence of the jury. The trial court denied the request. Instead, the trial court instructed the defendant to state for the record "what you claim an examination of those issues would produce." The defendant objected and argued for permission to question Owens, but the trial court overruled the objection and asked the defendant to go forward with his offer of proof.

The defendant indicated that he would like to ask Owens, at a minimum, certain questions. First, the defendant informed the court that he would like to ask Owens whether "he has any surgical privileges in the state of Connecticut." The defendant indicated that he believed the answer to that question would be relevant. The defendant then proposed to ask "the circumstances under which those privileges were terminated...." The defendant also proposed to ask whether the termination of his surgical privileges was based, at least in part, on evidence of any improper surgical procedures performed by Owens. The defendant further stated to the court that "without asking the specific questions, without eliciting an answer, I don't think an appellate court, a reviewing court, has any idea whether or not these matters are relevant." The trial court then stated that its ruling was the same as it was with respect to the motion in limine and an exception was noted.

The defendant then submitted two exhibits to the court, for identification purposes only. ³ One was a photocopy of a newspaper article which indicated that Owens had been reprimanded by the state of Connecticut, and that he had admitted mishandling cases involving two of his patients. The article also indicated that, in 1986, Owens had lost his privileges to practice at New Britain General Hospital, and, further, that he does not have surgical privileges at any hospital in the state. The other exhibit introduced by the defendant was a photocopy of a portion of a transcript of a deposition of Owens taken in relation to another proceeding. The transcript of the deposition indicated that he had been under investigation by the staff executive committee of New Britain General Hospital, and that the investigation included an inquiry into approximately 150 cases of surgical procedures performed by Owens between 1982 and 1985. Owens also stated in the deposition that a report prepared for the staff executive committee, which summarized the findings of the investigation, indicated that the hospital would require Owens to get second opinions from other doctors before performing surgical procedures at the hospital. ⁴ The trial court again repeated its previous ruling and an exception was again noted.

The trial then proceeded to conclusion and the jury returned its $80,000 verdict for the plaintiff, which was accepted by the court over the defendant's objection.

The defendant claims that the trial court impermissibly limited his cross-examination of Owens. The cross-examination was originally limited pretrial by the court's granting of the plaintiff's motion in limine. ⁵ The motion in limine is not formally recognized by our statutes or rules of practice, and has generally been used in Connecticut courts to invoke a trial judge's inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial. C. Tait & J. LaPlante, Connecticut Evidence (1988) § 2.6.1, p. 30. When the determination of the admissibility of evidence hinges on other necessary facts that can properly be determined only during the trial after the necessary prerequisite testimony has been presented, such determination is more...