Vasquez v. Rocco

• Decision Date: 23 December 2003
• Docket Number: (SC 16981).
• Court: Connecticut Supreme Court
• Parties: GLADYS VASQUEZ v. PATRICK M. ROCCO ET AL.

267 Conn. 59

836 A.2d 1158

GLADYS VASQUEZ v. PATRICK M. ROCCO ET AL.

(SC 16981).

Supreme Court of Connecticut.

Argued September 8, 2003.

Officially released December 23, 2003.

Sullivan, C.J., and Norcott, Katz, Palmer and Vertefeuille, Js. Gary J. Strickland, with whom, on the brief, was Vincent M. DeAngelo, for the appellant (plaintiff).

Herbert J. Shepardson, with whom, on the brief, was Lorinda S. Coon, for the appellees (defendants).

Opinion

PALMER, J.

The plaintiff, Gladys Vasquez, commenced this medical malpractice action against the named defendant, Patrick M. Rocco,¹ a surgeon, alleging that he negligently had severed her bile duct while performing laparoscopic surgery to remove her gallbladder. The jury returned a verdict for the defendant, and the trial court rendered judgment thereon. The plaintiff appealed,² claiming that the trial court improperly had precluded her from cross-examining one of the defendant's expert witnesses about his relationship to the defendant's malpractice insurance carrier. Although we agree with the plaintiff that she was entitled to question the defendant's expert witness about his relationship to the defendant's malpractice insurer, we conclude that the plaintiff has failed to provide this court with a record adequate to determine whether the trial court's contrary ruling was harmful. Accordingly, we affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. In June, 1997, the defendant surgically removed the plaintiff's gallbladder, a procedure known as a cholecystectomy. Stedman's Medical Dictionary (27th Ed. 2000) p. 337. The defendant performed the cholecystectomy laparoscopically by inserting a special camera and certain surgical instruments into small incisions in the plaintiff's abdomen. Several days after the surgery, the plaintiff was jaundiced and suffering from considerable pain. After being readmitted to the hospital, it was discovered that the plaintiff's common bile duct had been severed during the cholecystectomy. The plaintiff subsequently underwent another surgery to repair the severed bile duct.

The plaintiff thereafter brought this action, claiming that the defendant negligently severed her bile duct in performing the cholecystectomy. The defendant admitted that he inadvertently severed the plaintiff's bile duct while performing the surgery but claimed that he had not been negligent in doing so. Consequently, on the question of negligence, the sole issue for the jury was whether the defendant had adhered to the standard of care when, in the course of performing the cholecystectomy, he had severed the plaintiff's bile duct. The plaintiff adduced expert testimony from two physicians, Irvin Modlin and Richard Cohen, that the defendant's negligence was the cause of the severed bile duct. The defendant likewise adduced expert testimony from two physicians, Robert Lincer and Michael Tortora, each of whom testified that the defendant's surgical performance had been within the standard of care required of surgeons who remove gallbladders laparoscopically and that the severing of the bile duct is a risk inherent in such a procedure.

With respect to Lincer's testimony, the plaintiff sought to cross-examine him about his relationship with the defendant's malpractice insurance carrier, Connecticut Medical Insurance Company (Connecticut Medical), a mutual insurance company that is owned by its policyholders. Specifically, the plaintiff sought to elicit that: Lincer, himself, was insured by Connecticut Medical;³ he had been insured by Connecticut Medical for twelve years; he had served on Connecticut Medical's business development committee for two years; and he recently had been appointed to serve on Connecticut Medical's board of directors.⁴ The plaintiff maintained that she was entitled to have the jury apprised of Lincer's relationship with Connecticut Medical to demonstrate Lincer's alleged interest in the outcome of the case.

The trial court rejected the plaintiff's claim and barred her from adducing evidence regarding Lincer's relationship with Connecticut Medical. The court concluded that such evidence would create a "collateral or . . . side issue not germane to the central issues of [the] case," and that it "would take considerable time to hear" that collateral or side issue. The court further concluded that the prejudice to the defendant arising from the fact that he carried liability insurance outweighed any probative value that the evidence might have had regarding Lincer's potential interest in the outcome of the case. At the conclusion of the trial, the jury returned a verdict for the defendant.

On appeal, the plaintiff maintains that the trial court improperly declined to permit her to cross-examine Lincer about his relationship with Connecticut Medical. In particular, she claims that she was entitled to elicit testimony from Lincer regarding that relationship because the defendant and Lincer both are insured by Connecticut Medical. Alternatively, the plaintiff contends that she should have been allowed to question Lincer about his ties to Connecticut Medical because Lincer had a substantial connection to Connecticut Medical by virtue of his membership in Connecticut Medical's business development committee and his recent appointment to Connecticut Medical's board of directors. The defendant maintains that the trial court properly excluded the evidence regarding Lincer's relationship with Connecticut Medical. Alternatively, the defendant contends that, even if the court incorrectly prohibited the plaintiff from questioning Lincer about his relationship with Connecticut Medical, the plaintiff has failed to furnish an adequate record on appeal for a determination of whether any such impropriety was harmful. Although we agree with the plaintiff that the trial court improperly prohibited her from adducing testimony about the nature of Lincer's relationship with Connecticut Medical, we nevertheless affirm the judgment of the trial court because we also conclude that the record on appeal is inadequate for our determination of the extent to which the plaintiff may have been harmed by the court's improper ruling. We address each of these issues in turn.⁵

The trial court excluded evidence of Lincer's relationship to Connecticut Medical pursuant to § 4-3 of the Connecticut Code of Evidence, which provides: "Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." For purposes of § 4-3, "unfair prejudice is that which unduly arouse[s] the jury's emotions of prejudice, hostility or sympathy . . . or tends to have some adverse effect upon [the party against whom the evidence is offered] beyond tending to prove the fact or issue that justified its admission into evidence." (Citation omitted; internal quotation marks omitted.) Ancheff v. Hartford Hospital, 260 Conn. 785, 804, 799 A.2d 1067 (2002). "Of course, [a]ll adverse evidence is damaging to one's case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted." (Internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 329-30, 746 A.2d 761 (2000).

In evaluating the propriety of the trial court's ruling, our role on appeal is "limited to determining whether the court clearly abused its discretion. . . . We will 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." (Citation omitted; internal quotation marks omitted.) Ancheff v. Hartford Hospital, supra, 260 Conn. 805. Applying these principles, we conclude that the trial court abused its discretion in excluding evidence of Lincer's relationship to Connecticut Medical.

We begin our review of the trial court's ruling by noting that evidence that a defendant carries liability insurance is inadmissible on the issue of the defendant's negligence. Conn. Code Evid. § 4-10 (a). There are two primary reasons for this principle of exclusion. First, evidence of liability insurance generally is not probative of whether the insured acted negligently. E.g., Walker v. New Haven Hotel Co., 95 Conn. 231, 235, 111 A. 59 (1920) (evidence that defendant is insured has no "force or weight as evidence of negligence"). Second, the exclusion of evidence of a defendant's insurance coverage "prevents the jury from improperly rendering a decision or award based upon the existence or nonexistence of liability coverage rather than upon the merits of the case." Conn. Code Evid. § 4-10 (a), commentary.

Our rules of evidence do not mandate the exclusion of evidence of liability insurance coverage, however, when it is offered for another purpose, such as to prove the bias or prejudice of a witness. Conn. Code. Evid. § 4-10 (b); see also Magnon v. Glickman, 185 Conn. 234, 242, 440 A.2d 909 (1981) ("[i]t is usually held that it is permissible for plaintiff's counsel . . . to show the relationship between a witness and defendant's insurance company where such evidence tends to show the interest or bias of the witness and affects the weight to be accorded his testimony" [internal quotation marks omitted]). A concern remains, however, that jurors might be influenced by such evidence because they may believe that an insurance company is better able than the parties to bear any loss resulting from the defendant's alleged negligence. Although today's jurors probably assume that all physicians carry malpractice insurance,⁶ "the introduction of evidence on the subject tends to emphasize...