140 Conn. App. 444
Conn. App. Ct.2013Background
- Medical malpractice suit arising from acupuncture in Oct. 2007 for breast cancer-related neuropathy.
- Plaintiff Robin Mulcahy developed cellulitis near the glabella after the procedure, requiring hospitalization and IV antibiotics.
- Defense, Dr. Gary E. Hartell, appeared under a general denial and did not plead comparative negligence as a special defense.
- Defense sought to introduce posttreatment conduct evidence to show plaintiff’s own act caused the infection, not defendant’s conduct.
- Trial court admitted the evidence, instructing that sole-proximate-cause by plaintiff could absolve defendant of liability.
- Jury found a breach of standard of care but did not find causation; plaintiff moved on appeal to preclude the posttreatment conduct evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May a defendant prove sole proximate cause under a general denial? | Mulcahy argues such evidence is improper without a special defense. | Hartell contends an alternative-causation defense is admissible under a general denial. | Yes; sole-cause evidence is admissible under a general denial. |
| Is a comparative negligence or contributory negligence defense required to admit posttreatment conduct evidence? | Complaint requires a special defense under §52-114 and §10-53 to raise comparative/negligence. | Such evidence does not amount to comparative negligence; it negates defendant’s liability. | No special defense is required; evidence may be admitted to contest causation under a general denial. |
| Does allowing sole-proximate-cause evidence violate the general verdict rule? | Admitting this evidence risks ambushing plaintiff and undermines general verdict integrity. | Evidence is admissible under a general denial; the verdict remains valid. | General verdict rule not implicated; the defense is admissible under a general denial. |
Key Cases Cited
- Bernier v. National Fence Co., 176 Conn. 622 (Conn. 1979) (admissibility of evidence inconsistent with prima facie case under general denial)
- Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20 (Conn. 2008) (causation and substantial-factor test in proximate-cause analysis)
- Pawlinski v. Allstate Ins. Co., 165 Conn. 1 (Conn. 1973) (distinguishes between denials and special defenses; purpose of pleading)
- Forrestt v. Koch, 122 Conn. App. 99 (Conn. App. 2010) (withdrawn comparative-negligence defense and closing-argument implications)
- Tetreault v. Eslick, 271 Conn. 466 (Conn. 2004) (general verdict rule considerations in the presence of denial and defenses)