PHILIP FILIPPELLI III ET AL. v. SAINT MARY’S HOSPITAL ET AL.
Supreme Court of Connecticut
Argued December 2, 2014—officially released October 13, 2015
Stephanie Z. Roberge, for the appellant (named plaintiff). Ellen M. Costello, for the appellees (defendant Waterbury Orthopaedic Associates, P.C., et al.).
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Opinion
PALMER, J. The plaintiff, Philip Filippelli III,1 brought this medical malpractice action against the defendants, Dennis M. Rodin and Waterbury Orthopaedic Associates, P.C.,2 claiming that Rodin negligently failed to timely diagnose and treat the plaintiff’s compartment syndrome,3 resulting in severe and permanent injuries to the plaintiff’s lower left leg. Following a trial, the jury found that the defendants had not breached the standard of care and returned a verdict in favor of the defendants. The trial court rendered judgment in accordance with the jury verdict, and the plaintiff appealed to the Appellate Court, which affirmed the trial court’s judgment. Filippelli v. Saint Mary’s Hospital, 141 Conn. App. 594, 597, 61 A.3d 1198 (2013). On appeal to this court following our grant of certification; Filippelli v. Saint Mary’s Hospital, 308 Conn. 947, 67 A.3d 289 (2013); the plaintiff claims that he is entitled to a new trial because the Appellate Court improperly concluded that the trial court did not abuse its discretion in (1) restricting his use of an article from a medical journal to impeach certain witnesses, and (2) precluding him from (a) questioning the defendants’ expert witness about his previous work as an expert on behalf of Rodin, and (b) making an offer of proof and marking a document for identification in connection with that proffered questioning. We disagree with the plaintiff’s claims and, accordingly, affirm the judgment of the Appellate Court.
The opinion of the Appellate Court sets forth the relevant facts and procedural history in detail. See Filippelli v. Saint Mary’s Hospital, supra, 141 Conn. App. 597–600. To briefly summarize, the plaintiff sustained a comminuted tibial plateau fracture4 while playing basketball on March 4, 2005. At approximately 10 p.m. that evening, he was taken to the emergency department of Saint Mary’s Hospital, where he was treated and released. The plaintiff returned at approximately 7:30 a.m. the following morning complaining of severe pain in his left leg, and Rodin admitted the plaintiff for observation. At approximately 6:45 p.m. that evening, Rodin diagnosed the plaintiff with compartment syndrome and treated it by performing a four compartment fasciectomy.5 Thereafter, the plaintiff commenced this action alleging that Rodin was
On appeal to the Appellate Court, the plaintiff claimed that the trial court abused its discretion in barring him from using an article from a medical journal for the purpose of impeaching Rodin’s credibility, and in limiting his use of the same article in his cross-examination of Andrew Bazos, the defendants’ expert witness. Id., 605–607. In addition, the plaintiff claimed that the trial court improperly precluded him from questioning Bazos about his previous work as an expert on behalf of Rodin in other malpractice actions. Id., 623. With respect to the plaintiff’s attempt to ask Bazos about his prior work on behalf of Rodin, the plaintiff also contended that the trial court precluded him from creating an adequate record of that claim for appellate review by denying him the opportunity to make an offer of proof and to mark a particular document for identification. The Appellate Court concluded that none of the challenged evidentiary rulings constituted an abuse of the trial court’s discretion. Id., 600–601. The Appellate Court further concluded that, although the trial court should not have barred the plaintiff from making a record as requested, that impropriety was harmless.6 Id., 623–26. Accordingly, the Appellate Court affirmed the judgment of the trial court. Id., 626. On appeal to this court, the plaintiff challenges the Appellate Court’s conclusions with respect to each of these issues. Additional facts and procedural history will be set forth as necessary.
Before turning to the merits of the plaintiff’s claims, we briefly set forth the standard of review applicable to those claims. It is well settled that ‘‘[w]e review the trial court’s decision to admit [or exclude] evidence, if premised on a correct view of the law . . . for an abuse of discretion.’’ State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007). Under the abuse of discretion standard, ‘‘[w]e [must] 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.’’ (Internal quotation marks omitted.) Hurley v. Heart Physicians, P.C., 298 Conn. 371, 402, 3 A.3d 892 (2010). Moreover, ‘‘[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. . . . [A]n evidentiary impropriety in a civil case is harmless only if we have a fair assurance that it did not affect the jury’s verdict. . . . A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial. . . . [Finally, our] review of the Appellate Court’s conclusions of law, including the determination that any evidential
I
The plaintiff first claims that the Appellate Court improperly determined that the trial court did not abuse its discretion in (1) prohibiting him from using the journal article to impeach Rodin, who had read the article prior to his deposition, and (2) limiting his use of the article during his cross-examination of Bazos. We reject both of these contentions.
A
We first address the plaintiff’s claim concerning the trial court’s ruling precluding him from using the article to impeach Rodin’s credibility. Specifically, the plaintiff maintains that, although Rodin suggested during his deposition that the article in question supported his testimony concerning the diagnosis and treatment of compartment syndrome, the article actually contradicts his deposition testimony in several respects. According to the plaintiff, he was entitled to use the article to establish that Rodin did not testify truthfully during his deposition.
The following facts and procedural history, some of which is set forth in the opinion of the Appellate Court, are relevant to this claim. ‘‘Counsel for the plaintiff deposed Rodin in March, 2009. At that time, Rodin testified that, in preparation for his deposition, he had reviewed an article in the Journal of the American Academy of Orthopaedic Surgeons, but that he had not brought the journal article to the deposition.7 Later, the plaintiff’s counsel undertook a literature search and found an article published in the subject journal that she believed to be the one Rodin reviewed. On March 6, 2011, as trial was about to begin, the plaintiff filed a supplemental list of exhibits that included, among other things, ‘[S. Olson & R. Glasgow, ‘‘Acute Compartment Syndrome in Lower Extremity Musculoskeletal Trauma,’’ 13 J. Am. Acad. Orthopaedic Surgeons, No. 7 (November, 2005)].’
‘‘The defendants filed an objection to the plaintiff’s supplemental list of exhibits, including the journal article. The defendants claimed prejudice due to the plaintiff’s late disclosure of the journal article and sought to preclude its use at trial. . . . On May 10, 2011, the court held a hearing regarding the defendants’ objection to putting the journal article into evidence at trial. The plaintiff’s counsel argued that Rodin had referred to the journal article during his deposition . . . . [The defendants] . . . contended that Rodin had referred in general to a journal article, not to a specific journal article, and that the plaintiff had failed to demonstrate that the article found by the plaintiff’s counsel was, in fact, the one Rodin had reviewed. Moreover, [the defendants argued that the article was not admissible pursuant to the learned treatise exception to the hearsay rule; see
had testified that the journal article was a standard authority in accordance with
At trial, the court instructed plaintiff’s counsel that, before questioning Rodin about the article in the presence of the jury, she would be required to make an offer of proof. Outside the presence of the jury,9 ‘‘Rodin testified that he did not recall reading a journal article before his deposition. . . . [He] acknowledged [however] that, during his deposition, he testified that he had reviewed a journal article. [The] [p]laintiff’s counsel presented Rodin with a copy of the journal article that she had located and asked him if it was the article he had reviewed. Rodin did not recognize the journal article nor did he remember reading it. [The] [p]laintiff’s counsel then presented Rodin with copies of what she represented were the tables of contents of the Journal of the American Academy of Orthopaedic Surgeons for [2004 through 2009]. The table[s] of contents disclosed only one article concerning compartment syndrome, which was published in November, 2005.
‘‘Following the plaintiff’s offer of proof with respect to the tables of contents, the court found that the journal article discovered by the plaintiff’s counsel published in the Journal of the American Academy of Orthopaedic Surgeons in November, 2005, entitled ‘Acute Compartment Syndrome in Lower Extremity Musculoskeletal Trauma,’ was the article reviewed by Rodin prior to his deposition. The court [initially indicated that it would admit] into evidence a copy of the journal article because Rodin testified that ‘he relied on this journal article in preparation for his deposition . . . .’ ’’ Id., 608–609. After additional argument on the issue, however, the court indicated that it would reconsider its ruling based on arguments provided by the parties prior to the next trial day.
‘‘Prior to the next trial day, the defendants submitted a memorandum of law in opposition to the admission of the journal article through a nonexpert witness to impeach the credibility of that witness. Rodin had not been disclosed as an expert witness. The defendants argued that the journal article was hearsay and the learned treatise exception to the hearsay rule did not apply because the article had not been identified as authoritative nor was it relied upon by an expert witness. The defendants further argued that the plaintiff intended to use the journal article for substantive purposes. Counsel for the plaintiff [argued] that Rodin’s deposition testimony was untruthful as it was at odds with the substance of the journal article, although Rodin had testified that his testimony was consistent with the journal article.’’ Id., 609. The plaintiff made clear that
he was not offering the
‘‘Q. Did you review any literature in preparation for your deposition today?
‘‘A. I did look at one . . . article.
‘‘Q. What did you look at?
‘‘A. Journal of American Academy of Orthopaedic Surgery.
‘‘Q. What article did you review?
‘‘A. An article on compartment syndrome.
‘‘Q. When was that article published?
‘‘A. I believe 2005; I’m not sure exactly.
‘‘Q. What did the article say?
‘‘A. Just a review about what compartment syndrome is, and diagnosis and treatment.
‘‘Q. What did it list in there about diagnosis and treatment?
‘‘A. Similar to things I’ve already mentioned in terms of specific things to look at on clinical examination.’’
The plaintiff claimed that this portion of Rodin’s deposition testimony suggested that the article was consistent with his opinion concerning the diagnosis and treatment of compartment syndrome when, in fact, the article was inconsistent with his testimony in several respects.10 To demonstrate that Rodin’s deposition testimony was false in that regard, the plaintiff’s counsel sought to question Rodin about his deposition testimony describing the diagnosis and treatment of compartment syndrome, to confront Rodin with portions of the article that contradicted his testimony on certain points, and to introduce those excerpts from the article into evidence.11 The trial court vacated its order from the previous day and ruled that the article was inadmissible. The court did allow the
On appeal to the Appellate Court, the plaintiff claimed that the trial court improperly precluded him from using the journal article to impeach Rodin’s credibility. The plaintiff maintained that Rodin had not been truthful in testifying that his deposition testimony was consistent with the journal article, and that he ‘‘was entitled to bring . . . Rodin’s lack of candor to the attention of the jury.’’ Filippelli v. Saint Mary’s Hospital, supra, 141 Conn. App. 607. The plaintiff further maintained that the learned treatise exception to the hearsay rule was inapplicable to his claim because he had not sought admission of the article as substantive evidence but, rather, merely to impeach Rodin’s credibility by demonstrating that he was untruthful when he suggested in his deposition testimony that the article supported his opinion. The Appellate Court rejected the plaintiff’s claim, concluding that the trial court did not abuse its discretion in precluding him from using the article to cross-examine Rodin because ‘‘[t]he trial court has discretion to limit the admissibility of a learned treatise when used to undermine or bolster credibility dependent on the facts of a particular case.’’ Id., 611. In support of its conclusion, the Appellate Court further observed that Rodin had not been disclosed as an expert witness and that ‘‘no expert in this case had identified the article as standard authority . . . .’’ Id. The Appellate Court, believing that the plaintiff had questioned Rodin in front of the jury about his failure to recall at trial that he had reviewed an article in preparation for his deposition; see footnote 9 of this opinion; also concluded that, even if the trial court had abused its discretion in precluding the plaintiff from introducing the article to impeach Rodin’s credibility, any such impropriety was harmless. Filippelli v. Saint Mary’s Hospital, supra, 611–12.
On appeal to this court, the plaintiff challenges the Appellate Court’s conclusion that the trial court properly exercised its discretion in refusing to admit the article pursuant to the learned treatise exception because that was not the theory on which he relied in seeking to introduce the article at trial. The plaintiff also contends that the Appellate Court’s conclusion was predicated on the mistaken belief that the plaintiff had questioned Rodin in the presence of the jury with respect to his failure to recall that he had reviewed the article in preparation for his deposition. We agree with the plaintiff both that the learned
Although our rules of evidence generally prohibit evidence of misconduct to prove the character of a wit- ness; see
In the present case, the plaintiff sought to introduce the article for the improper purpose of proving through extrinsic evidence that Rodin testified falsely in response to questioning at his deposition. A review of the transcript from the plaintiff’s offer of proof demonstrates that allowing the plaintiff to use the article for this purpose would have created a ‘‘trial within a trial’’ on the collateral issue of whether Rodin had, in fact, testified falsely at his deposition. See Weaver v. McKnight, supra, 313 Conn. 430. First, because the plaintiff did not request the article at the time of the deposition, and because Rodin testified in connection with the offer of proof that he could not recall reading the article, the plaintiff would have had to present extensive evidence merely to establish that the article in question was the article that Rodin had read prior to the deposition. In attempting to do so in his first offer of proof, the plaintiff confronted Rodin with his deposition testimony in which he indicated that he had read an article from the Journal of the American Academy of Orthopaedic Surgery about the diagnosis and treatment of compartment syndrome that he believed was published in 2005. The plaintiff then asked Rodin whether the article in question was the article that he had reviewed. Because Rodin could not recall reading the article prior to his deposition, the plaintiff then introduced the tables of contents from all of the issues of that journal that had been published between 2004 and 2009 for the purpose of establishing that the 2005 article was the only one dealing with compartment syndrome. All of this evidence was offered to establish that the article in question was the article that Rodin had reviewed prior to his deposition. In support of the plaintiff’s supplemental offer of proof, he adduced additional evidence to demonstrate that the information contained in the article was inconsistent with Rodin’s deposition testimony. To that end, the plaintiff’s counsel asked Rodin several questions about the contents of the article, and Rodin responded to each one that he could not answer without first reading the article. Finally, counsel confronted Rodin with several portions of his deposition testimony wherein he had provided information concerning the diagnosis and treatment of compartment syndrome that differed from the information contained in the article.
The plaintiff sought to introduce all of this evidence solely for the purpose of establishing that, despite Rodin’s alleged suggestion to the contrary, the article on
B
The plaintiff next claims that the Appellate Court incorrectly concluded that the trial court did not abuse its discretion in limiting his use of the same journal article in connection with his cross-examination of the defendants’ expert, Bazos. We reject this contention as well.
The following additional facts and procedural history are relevant to this claim. At trial, Ronald M. Krasnick, an orthopedic surgeon, testified as an expert witness on behalf of the plaintiff. Krasnick testified that the Journal of the American Academy of Orthopaedic Surgeons is ‘‘a standard authority in the field of orthopedic surgery.’’19 When Bazos later testified as an expert on behalf of the defendants, the plaintiff sought, during cross-examination, to introduce portions of the article that contradicted Bazos’ testimony regarding the standard of care for the diagnosis and treatment of compartment syndrome. The plaintiff argued that the article was admissible under the learned treatise exception to the hearsay rule because Krasnick had identified the Journal of the American Academy of Orthopaedic Surgeons, in which the article was published, as a standard authority in the field of orthopedic surgery. See
After the trial court’s ruling, the plaintiff initially attempted to read certain statements directly from the article during his questioning of Bazos. The defendants objected to the plaintiff reading from the article, however, and the trial court sustained the objection and directed the plaintiff to ask questions without reading from the article. Thereafter, without reading from the article, the plaintiff incorporated portions of the article into his questions by asking Bazos whether he agreed with certain statements. The plaintiff also twice approached Bazos and directed him to certain statements in the article on which the plaintiff’s questions were based. After questioning Bazos and directing him to the
On appeal to the Appellate Court, the plaintiff claimed that the trial court had improperly limited his use of the article in connection with his cross-examination of Bazos. The plaintiff argued that the trial court had admitted the entire article as a full exhibit, and that it was improper for the court to prohibit him from reading directly from the article and directing Bazos’ attention to certain portions of the article during his cross-examination. The plaintiff also claimed that the trial court improperly permitted only a redacted version of the article to be published to the jury after admitting the entire article as a full exhibit. The Appellate Court concluded that the trial court did not abuse its discretion in limiting the plaintiff’s cross-examination of Bazos because the plaintiff had failed to meet the requirements of
The plaintiff now claims that the Appellate Court improperly determined that the trial court did not abuse its discretion by limiting his use of the journal article during his cross-examination of Bazos because, contrary to the conclusion of the Appellate Court, the plaintiff had met the foundational requirements of the learned treatise exception. The plaintiff maintains that, because the trial court found that the article was admissible as a learned treatise under
Under
As stated previously, for a writing to be admissible under the learned treatise exception, it must be identified as a ‘‘standard authority in the field,’’ either by an expert witness or by judicial notice.
Although we have not had occasion to do so, the Appellate Court previously addressed this issue in Musorofiti v. Vlcek, 65 Conn. App. 365, 382–85, 783 A.2d 36, cert. denied, 258 Conn. 938, 786 A.2d 426 (2001). In that case, after the plaintiff’s treating physician identified the Journal of the American Dental Association as a standard authority in the dental profession, the trial court allowed the defendants to introduce an article from that journal pursuant to the learned treatise exception. Id., 382–83. On appeal, the plaintiffs claimed that ‘‘acceptance of the journal that contained the article [as a standard authority in the field] was insufficient to qualify the article contained therein as a learned treatise.’’ Id., 384. In support of this claim, the plaintiffs relied on Meschino v. North American Drager, Inc., 841 F.2d 429, 434 (1st Cir. 1988), in which the United States Court of Appeals for the First Circuit, addressing a similar claim, stated that it ‘‘would not accept [the] plaintiff’s argument that the contents of all issues of a periodical may be qualified wholesale under [r]ule 803 (18) [of the Federal Rules of Evidence] by testimony that the magazine was highly regarded. In these days of quantified research, and pressure to publish, an article does not reach the dignity of a ‘reliable authority’ merely because some editor, even a most reputable one, sees fit to circulate it. Physicians engaged in research may write dozens of papers during a lifetime. Mere publication cannot make them automatically reliable authority.’’
The Appellate Court generally agreed with the reasoning of the court in Meschino, stating that it ‘‘would not accept that all articles in a periodical may be qualified as learned through the mere demonstration that the periodical itself is highly regarded.’’ (Emphasis in original.) Musorofiti v. Vlcek, supra, 65 Conn. App. 384. The Appellate Court further observed, however, that Meschino should not be read as creating a per se rule, and that there may be circumstances in which a particular periodical is so highly regarded within a field that all articles published therein would be admissible as a learned treatise. Thus, the Appellate Court endorsed the approach taken by the United States Court of Appeals for the Second Circuit in Costantino v. Herzog, 203 F.3d 164, 172 (2d Cir. 2000), wherein the court stated that ‘‘[p]ublication practices vary widely, and an article’s publication by an esteemed periodical which subjects its contents to close scrutiny and peer review, obviously reflects well on the authority of the article itself. Indeed, because the authoritativeness inquiry is governed by a ‘liberal’ standard, good sense would seem to compel recognizing some periodicals—provided there is a basis for doing so—as sufficiently esteemed to justify a presumption in favor of admitting the articles accepted for publication therein.’’ The Appellate Court concluded in Musorofiti that, under the circumstances of that case, the trial court did not abuse its discretion in admitting the article based on testimony that the journal ‘‘was widely read, recognized and accepted in the dental profession as authoritative.’’ Musorofiti v. Vlcek, supra, 382–83; see id., 385. We agree generally with the approach adopted by the Appellate Court in Musorofiti.
In the present case, it is questionable whether Krasnick’s testimony provided an adequate foundation for establishing the admissibility of the article under
Even assuming that the plaintiff satisfied the requirements of
posed by the rule by use of ‘‘the judicious exercise of discretion . . . in deciding which items ought to be admitted as full exhibits.’’ Id., 396–97; see also id., 397–98 (trial court properly exercised discretion in excluding portions of medical texts recognized as standard authority in field that were likely to confuse or mislead jury).
In the present case, it was well within the trial court’s discretion to preclude the plaintiff from reading directly from the article during his cross-examination of Bazos, and to admit as a full exhibit only the portions of the article about which Bazos was questioned. The trial court did not, as the plaintiff argues, preclude him from ‘‘engaging in any cross-examination of [Bazos] with the article . . . .’’ Rather, the record reveals that the plaintiff’s counsel questioned Bazos extensively as to whether he agreed with the information contained in the article and, in many instances, counsel quoted the article verbatim in connection with his questioning.21 On at least two occasions, counsel approached Bazos, directed him to the portion of the
Additionally, it bears emphasis that, contrary to the plaintiff’s claim, the article was not a full exhibit until after he completed his cross-examination and the trial court was able to redact the portions of the article on which the plaintiff did not rely. It was not an abuse of discretion for the trial court to preclude the plaintiff from reading from a document that was not yet a full exhibit; see Kaplan v. Mashkin Freight Lines, Inc., 146 Conn. 327, 334–35, 150 A.2d 602 (1959); and to postpone admitting the article as a full exhibit until after the plaintiff had finished his cross-examination, when the court could determine which portions of the article were relevant to Bazos’ testimony. See State v. Wade, 96 Conn. 238, 251, 113 A. 458 (1921) (‘‘The question of the cross-examiner [confronting a witness with a learned treatise] must be confined to such parts of the authority as tend to contradict the opinion as expressed by the witness. It cannot be based upon some illustration or isolated case used by the authority to explain or illustrate his opinion.’’). Accordingly, the Appellate Court properly concluded that the trial court did not abuse its discretion in limiting the plaintiff’s use of the article while cross-examining Bazos.
II
The plaintiff also claims that the Appellate Court improperly concluded that the trial court did not abuse its discretion in precluding him from questioning Bazos about his previous experience as an expert on behalf of Rodin. The plaintiff maintains that this evidence was relevant because Bazos falsely testified at his deposition that he had never worked with Rodin and that the only other case in which he remembered giving deposition testimony was one in which Rodin was not a party. According to the plaintiff, he should have been allowed to ask Bazos about this prior experience with Rodin for the purpose of impeaching Bazos’ credibility. Finally, the plaintiff asserts that, contrary to the determination of the Appellate Court, the trial court’s failure to permit him to make an offer of proof and to mark an exhibit for identification prevented him from making an adequate record of this claim. We reject each of these contentions.
The following additional facts and procedural history are relevant to this claim. On April 4, 2011, approximately one month prior to the commencement of trial, counsel for the plaintiff deposed Bazos. During the deposition, the plaintiff’s counsel briefly questioned Bazos about his prior experience serving as an expert witness, and whether he had ever heard of or worked for Rodin. When asked whether he remembered the names of any physicians for whom he previously had provided expert deposition testimony, Bazos stated, ‘‘[t]he only one I remember, because it was relatively recent, was [a physician named] Geiger.’’ When asked whether he had ever heard of Rodin before his involvement in this case, Bazos testified, ‘‘I’ve seen his name; I’ve not worked with him, but Waterbury is not that far away, and we’ll occasionally see patients that live there and may have been treated out there in the past.’’
At trial, the plaintiff renewed his request to question Bazos about his prior work for Rodin. As an additional basis for the plaintiff’s belief that Bazos had testified falsely at his deposition when he claimed only to remember testifying as an expert on behalf of Geiger, the plaintiff indicated that Bazos gave deposition testimony on behalf of Rodin in another case just two months prior to his deposition in the present case, whereas his deposition testimony on behalf of Geiger was given approximately one year earlier. The plaintiff also claimed that, just five days before his deposition in this case, Bazos signed an errata sheet for a deposition he had given on behalf of Rodin in another case. The plaintiff then requested the opportunity to make an offer of proof outside
Following Bazos’ testimony, the plaintiff asked to mark for identification the certification page of a deposition Bazos had given on behalf of Rodin in another case. The trial court denied the plaintiff’s request, but allowed the plaintiff to read the certification page into the record.
On appeal to the Appellate Court, the plaintiff claimed that the trial court had abused its discretion both by precluding him from questioning Bazos about his work as an expert on behalf of Rodin and by denying his request to make an offer of proof and mark the certification page as an exhibit for identification. With respect to the first claim, the Appellate Court concluded that the trial court reasonably precluded the plaintiff from introducing evidence of other medical malpractice actions in which Bazos had testified on behalf of Rodin on the ground that such evidence was more prejudicial than probative. Filippelli v. Saint Mary’s Hospital, supra, 141 Conn. App. 622. With respect to the plaintiff’s second contention, the Appellate Court concluded that, although the trial court improperly denied the plaintiff’s request to make an offer of proof and mark an exhibit for identification, both errors were harmless. Id., 623–26.
As discussed in part I of this opinion, our evidentiary rules allow a party to impeach a witness by asking about specific acts of misconduct that are probative of the witness’ lack of veracity;
In the present case, it is apparent that the trial court properly exercised its discretion in precluding the plaintiff from questioning Bazos as to whether he previously had testified as an expert on behalf of Rodin. First, whether Bazos previously served as an expert on behalf of Rodin was a collateral matter because it was relevant only to Bazos’ credibility and not to any substantive issue in the case. See State v. Annulli, supra, 309 Conn. 494–95 (‘‘[a]n issue is collateral if it is not relevant to a material issue in the case apart from its tendency to contradict the witness’’ [emphasis in original; internal quotation marks omitted]). In other words, although Bazos’ alleged false deposition testimony bore on his veracity, his relationship with Rodin was not relevant to the plaintiff’s claim that Rodin was negligent
More importantly, the trial court did not bar the plaintiff from questioning Bazos whether he had testified falsely during his deposition, but simply precluded the plaintiff from asking Bazos about the nature of his relationship with Rodin, because allowing the plaintiff to do so would have revealed to the jury that other patients had filed malpractice actions against Rodin. As the trial court recognized, allowing the plaintiff to conduct this line of inquiry would have created a substantial risk that the jury might infer that Rodin was negligent in the present case because he had been a defendant in other medical malpractice actions. See Lai v. Sagle, 373 Md. 306, 323, 818 A.2d 237 (2003) (‘‘similar
Thus, on cross-examination, the plaintiff asked Bazos whether he had ‘‘an ongoing working relationship with [Rodin] since about 2008,’’ which was three years before his deposition testimony, and Bazos responded in the affirmative. The plaintiff then confronted Bazos with the portion of his deposition testimony in which, when counsel for the plaintiff asked whether he had ever ‘‘heard of [Rodin] before being involved in this case,’’ Bazos stated that he had ‘‘seen [Rodin’s] name’’ but had ‘‘not worked with him . . . .’’ Bazos testified that he did, in fact, have a working relationship with Rodin, but that he had met Rodin for the first time the day before the trial. At that time, the plaintiff expressly underscored the contradiction between Bazos’ deposition testimony and his admission that he had an ongoing relationship with Rodin for about three years, and suggested that Bazos’ deposition testimony ‘‘made it appear as though [Bazos] may have come across [Rodin’s] name . . . in one of [his] patient’s records.’’
Although this cross-examination likely would have been more damaging to Bazos’ credibility had the plaintiff been permitted to ask about his prior work as an expert on behalf of Rodin, the trial court properly weighed the plaintiff’s interest in impeaching Bazos against the substantial likelihood of prejudice to the defendants had such questioning been permitted. The record reveals that the trial court carefully considered the arguments of the parties24 in the interest of fashioning a solution that gave the plaintiff an opportunity to bring the alleged false testimony to the jury’s attention without the high risk of unfairness to the defendants that have would resulted from evidence revealing other
Finally, we also agree with the Appellate Court that, although the trial court should have allowed the plaintiff both to make an offer of proof regarding Bazos’ previous work as an expert on behalf of Rodin and to mark for identification the certification page from Bazos’ deposition in one of those previous cases, neither such impropriety was harmful to the plaintiff. See Filippelli v. Saint Mary’s Hospital, supra, 141 Conn. App. 623–26. As a general matter, a trial court should always allow a party to make an offer of proof and mark an item as an exhibit for identification, for both practices generally are necessary to preserving the trial record for appellate review. See State v. Silva, 201 Conn. 244, 253, 513 A.2d 1202 (1986) (‘‘the general rule has evolved that the trial court must mark as an exhibit for identification anything offered by counsel’’ [emphasis in original]); State v. Zoravali, 34 Conn. App. 428, 433, 641 A.2d 796 (‘‘The appellant bears the burden of providing an adequate appellate record through the offer of proof, among other vehicles. . . . A trial court cannot prevent a defendant from doing so.’’ [Citation omitted.]), cert. denied, 230 Conn. 906, 644 A.2d 921 (1994); C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (4th Ed. 2014) § 8-2:1.1, p. 437 (‘‘[i]f necessary [to properly preserve a claim for appellate review], the appellant also must make an offer of proof or offer an exhibit for identification’’). In the present case, however, the record is adequate for review of the plaintiff’s claims despite the trial court’s denial of his request to make an offer of proof and to mark the document for identification. As the Appellate Court observed, ‘‘although the court improperly failed to permit the plaintiff’s counsel to make an offer of proof, the court permitted the plaintiff’s counsel to argue extensively, on more than one occasion, the legal basis on which she wanted to present evidence of other medical malpractice actions in which Bazos testified as an expert witness . . . .’’ Filippelli v. Saint Mary’s Hospital, supra, 624. In addition, ‘‘[the trial] court permitted the plaintiff’s counsel to read the document [she had sought to mark for identification] into the record, which is available for our review.’’ Id., 626. Accordingly, neither of the improper rulings prejudiced the plaintiff in any way.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and ZARELLA and ROBINSON, Js., concurred.