196 Conn. 242 | Conn. | 1985
In this medical malpractice action, a verdict was returned and judgment was rendered in favor of the defendant, Vincent Pepe, M.D. The plaintiff claims that the judgment should be vacated because the
From the evidence the jury could have reasonably found the following facts: On January 31, 1973, the defendant performed a hysterectomy on the plaintiff. As part of the post-operative care, the defendant prescribed the antibiotic cleocin to prevent vaginal infection. After the operation the plaintiff began to suffer gastrointestinal and urinary distress that continued after her release from the hospital on February 6,1973. The defendant recommended the further use of cleocin and other medication. When her condition did not improve, the plaintiff eventually consulted another physician, who took her off cleocin and prescribed different antibiotics. The plaintiff was readmitted to the hospital on March 4, 1973, and experienced substantially unpleasant symptoms and underwent treatment that need not be described. She was released from the hospital on March 18, 1973, but continued to suffer bladder and urinary problems for some time thereafter. The plaintiff was treated for such problems on several occasions between 1978 and 1979 by Frank Tróncale, a gastroenterologist.
The plaintiff initially brought suit against Pepe and the Upjohn Company, claiming that her injuries were caused by the drug cleocin, that Upjohn had marketed this defective drug and had failed to warn or inform prescribing physicians of the destructive side effects of the medication. She also alleged that Pepe had failed to make proper tests to determine whether cleocin was the correct antibiotic to prescribe under the circumstances and to heed the manufacturer’s warnings about
I
In her first claim of error, the plaintiff complains that the trial court erred in admitting the original complaint and instructing the jury that the allegations contained therein were “judicial admissions” that were “not in themselves conclusive,” but whose weight was “to be determined by you the jury the same as any other evidence offered at this trial.” The plaintiff claims that the allegations against Upjohn in the original complaint were not admissions and should have been excluded. We disagree.
There is an abundance of precedent contrary to the plaintiff’s assertions. “As we have recently reiterated, statements in complaints against parties subsequently withdrawn from a cause of action are admissible as evidence . . . .” Oberempt v. Egri, 176 Conn. 652, 655, 410 A.2d 482 (1979). This statement is but a corollary of the rule we have consistently followed under which statements in withdrawn or superseded pleadings, including complaints, may be considered as evidential admissions by the party making them, just as would any extrajudicial statements of the same import. See, e.g., DiFederico v. McNamara, 181 Conn. 54, 55, 434
The plaintiffs brief appears to recognize that the weight of authority is against her. The sources relied upon in the brief raise two questions with respect to that authority: first, whether the rule as broadly formulated under our law has any rational application under modern pleading practice; and second, whether the rule, if found to be of continuing vitality, applies to the type of allegations at issue here.
Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories, of liability against one or more defendants in a single complaint. Practice Book §§ 94,137; Veits v. Hartford, 134 Conn. 428, 434-35, 58 A.2d 389 (1948). The plaintiffs brief alludes to a line of cases which hold that this type of liberal pleading policy would be frustrated were the pleader subjected to the risk that anything he pleads will be held against him even if he withdraws or abandons it. These cases, therefore, conclude that a withdrawn or superseded statement in one of two alternative claims may not be used as an admission in the trial of the other. See Continental Ins. Co. of New York v. Sherman, 439 F.2d 1294, 1298-99 (5th Cir. 1971); Giannone v. United States Steel Corporation, 238 F.2d 544, 547-48 (3d Cir. 1956); Trans Western Leasing Corporation v. Corrao Construction Co., 98 Nev. 445, 448-49, 652 P.2d 1181 (1982); McCormick, Evidence (2d Ed. 1972) § 265, p. 634.
Even those cases which support the plaintiffs position recognize that the superseded allegations have some probative value, for those cases allow the use of superseded or abandoned pleadings as admissions with regard to the specific claim in which they were made. The pleadings are barred from collateral claims not because they are not probative, but because the courts believe they tend to frustrate the practice of alternative and inconsistent pleading. See Trans Western Leasing Corporation v. Corrao Construction Co., supra,
In sum, we continue to believe that “[t]he rule concerning the admissibility into evidence of admissions
Assuming the continued viability of the rule construing allegations in superseded or abandoned pleadings as admissions, the plaintiff argues further that the rule does not apply to allegations of the nature here involved. She argues that only factual allegations rather than legal conclusions fall within the rule of admissibility we have just articulated and that her withdrawn allegation of negligence against Upjohn was of the conclusory rather than factual variety.
It is apparent from the cases cited in her brief that the plaintiff has confused the evidentiary rules applicable to current as opposed to superseded or abandoned pleadings. Factual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence irrefutable as long as they remain in the case. Tait & LaPlante, Handbook of Conn. Evidence (1976) § 6.7 (a), p. 75. Admissions of a conclusory nature are not necessarily determinative, however, as a court may be justified in deviating from any such admission if unsupported by the underlying facts in evidence. Farley-Harvey Co. v. Madden, 105 Conn. 679, 684, 136 A. 586 (1927); see also Pyne v. New Haven, 177 Conn. 456, 464-65, 418 A.2d 899 (1979); Pei0ter v. Degenring, 136 Conn. 331, 337-40, 71 A.2d 87 (1949). The fact that some conclusory judicial admissions may not be binding has no impact on the admissibility of evidential admissions of a conclusory nature.
II
In her second claim of error, the plaintiff contends that the trial court erred in refusing to declare a mistrial because of alleged witness tampering by the defendant Pepe. Pepe gave testimony in the absence of the jury that his brother-in-law, Ulysses Golia, an anesthesiologist, offered to call Tróncale, the gastroenterologist who had treated the plaintiff and who was acquainted with Golia, to discuss Troncale’s upcoming court appearance in this case. Golia reported back to Pepe that Tróncale was an honest and credible individual and that Tróncale would not be averse to a telephone call from Pepe or his attorney. Pepe proceeded to call Tróncale, and they discussed the incidents leading to this suit. The defendant testified that Tróncale began to express a disinterest in testifying on this matter, to which the defendant responded by pleading with Tróncale to come and tell the truth.
Except where the integrity of the administration of justice demands, there are generally no restraints placed upon the parties to a suit with regard to the persons to whom they may speak. The plaintiff has failed to show that any of the exceptions to the general rule allowing communications by parties to a suit were implicated in this case. Cf. General Statutes § 53a-151; Code of Professional Responsibility, EC 7-18. The mere fact that after Pepe spoke with him over the telephone Tróncale, who was never subpoenaed, became reluctant to testify does not in itself require an inference of misconduct sufficient to necessitate granting the plaintiff’s motion for a mistrial. Pepe’s explanation of the events, that Tróncale was unaware of the contents of the hospital file before their conversation, resulting in his subsequent request to plaintiff’s counsel to see them, and that it was his perusal of these records rather than anything Pepe said that changed his mind, could reasonably have been accepted by the court as more probable than the claim of misconduct the plaintiff put forward. “ ‘The general principle is that a mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial and the whole proceedings are vitiated.’ Ferino v. Palmer, 133 Conn. 463, 466, 52 A.2d 433 [1947]. The granting of such a motion rests largely in the discretion of the trial court. State v. Williamson, 134 Conn. 203, 204, 56 A.2d 460 [1947].” Teitelman v. Bloomstein, 155 Conn. 653, 662, 236 A.2d 900 (1967); see also Allen v. Pathmark of Bridgeport, Inc., 176 Conn. 124, 129, 405 A.2d 59 (1978). The plaintiff does not claim that Tróncale was a witness of such impor
There is no error.
In this opinion the other judges concurred.
When an admission contained in a superseded pleading is used to impeach a party’s in-court testimony, the party will normally have the opportunity during either cross or redirect examination to explain the circumstances under which the admission was made and thereby assist the jury in placing the proper weight on the admission. See, e.g., Kucza v. Stone, 155 Conn. 194, 197-98, 230 A.2d 559 (1967). In this case, however, the defendant was permitted to introduce the superseded complaint at the close of his case, rather than in the context of the plaintiff’s testimony. While this procedure is less common than direct impeachment, it does not amount to error under our case law. Cf. DiFederico v. McNamara, 181 Conn. 54, 55, 434 A.2d 320 (1980). Even in such instances, however, the impeached party must be given an opportunity to explain the admissions in the superseded pleading. The plaintiff in this case never attempted to do so, though she did present rebuttal witnesses on other issues.
Both parties recognize that, while the trial court used the term “judicial admission” in the charge to the jury, its instruction can be fairly con
The plaintiffs reliance on the case of Baker v. Paradiso, 117 Conn. 539, 169 A. 172 (1933), is misplaced. In Baker, we found that a portion of an answer denying an allegation of negligence in the complaint should not have been admitted into evidence where a substituted answer later admitted that allegation. Our discussion in no way limited our practice of construing statements in pleadings as admissions. The facts admitted by the substituted answer were uncontestable under that pleading without modification. See footnote 2, supra. The previous denial, offered for unknown reasons by the plaintiff, simply was irrelevant to the triable issues under the current pleadings and was not of the character of an admission. The defendant’s trial position “admitted” the plaintiff’s allegation; it made no sense under the circumstances to bring before the jury the fact that he had previously denied that which he had judicially admitted at trial.
Pepe gave the following account of his conversation with Tróncale during the voir dire examination: “I read him the complete note, the findings, and what were (sic) their — the findings and also read him the path report, and informed him that there was no evidence of ulcers. As a matter of fact, the chart revealed that the many stools were negative for blood, and he was quite surprised to find that she had no bloody diarrhea, so he said, ‘Well, I am not really interested in coming or testifying. I owe [plaintiffs counsel] Skolnick nothing,’ but I said, ‘Look, you know, all I am asking you is come and tell the truth, and as a matter of fact, I — please come and tell the truth as you see it.’ I begged him to do it.”
In fact the plaintiff never indicated the nature of Tróncale’s anticipated testimony other than by describing Tróncale as the plaintiff’s treating physician five or six years after the incident in question. The absence of Tróncale did not fully deprive the plaintiff of the expert testimony that may have been essential to her case. The plaintiff was able to present the testimony of Howard Spiro, chief of gastroenterology at Yale New Haven Hospital and a professor at Yale Medical School, who testified that the plaintiff’s postoperative complications were caused by the antibiotic cleocin. Malcolm Brochin, a practicing obsterieal and gynecological surgeon and associate clinical professor at Yale Medical School, testified that cleocin should not have been prescribed by the defendant and cast doubt upon the necessity for the hysterectomy that initiated the plaintiff’s difficulties. The plaintiff also produced the testimony of Joseph Misuk, the physician who discontinued the use of cleocin during the postoperative period.