This is a medical malpractice action by Sandra Quirion, spouse of decedent Peter Quirion and administratrix of his estate, against Dr. R. Jackson Forcier and the Hitchcock Clinic, a part of Dartmouth Hitchcock Medical Center. After trial in the Orleans Superior Court, the jury brought in a defendants’ verdict. On appeal, plaintiff claims that the trial court erred in allowing in evidence that (1) plaintiff settled with threе *17 other doctors prior to trial; (2) these other doctors were negligent in their treatment of decedent; and (3) decedent regularly used marijuana. We affirm.
Decedent complained of chest pains from 1978 until his death in 1985, at thirty-three. During the period between 1982 and October 3,1985, he was treated for this condition by Dr. James Holcomb, his primary physician; Dr. Richard Beloin, partner of Dr. Holcomb; and Dr. Alan Feltmarch, аn emergency room physician at North Country Hospital. Each of these doctors practices in the area of decedent’s residence in Newport, Vermont.
Decedent became dissatisfied with the lack of relief from the Newport-area doctors and, on the advice of a neighbor, consulted defendant Forcier in his office in Hanover, New Hampshire. Following a one-hour examination on October 3, 1985, defendant sent letters to decedent and Dr. Holcomb outlining his conclusions. The letter to Dr. Holcomb outlined the medical history, as conveyed by decedent, and the examination findings, and concluded, “I do not believe that Mr. Quirion’s chest pain is related to coronary artery disease.” The letter suggested that the pain might be related to “reflux esophagitis” and recommended certain tests. It also suggested that the symptoms might be brought on by anxiety. There was no follow-up to this letter by Dr. Holcomb. A little over a month later, decedent died of a heart attack, and an autopsy showed blockage of the coronary arteries.
Plaintiff sued the three Newport-area doctors, as well as defendants, and retained Dr. Alan Markowitz of Cleveland, Ohio as her expert witness. Dr. Mаrkowitz was deposed by counsel for each of the defendants in 1990. Thereafter, plaintiff settled with the Newport-area doctors, leaving only defendants Forcier and the Hitchcock Clinic in the case. Because Dr. Markowitz would not be available for trial, plaintiff conducted a second deposition of him by video, with cross-examination by counsel for defendants. This video deposition, with certain parts excised, became Dr. Markowitz’s testimony at trial. Similarly, an expert witness for defendants, Dr. Thomas Ryan, testified at a videotaped deposition, and this deposition became his testimony at trial.
After two days of testimony, the jury found that defendants had not been negligent in their treatment of decedent. Plain *18 tiff’s appeal relates to certain evidentiary issues that were raised before trial by motions in limine and during trial by appropriate objections. The issues involve the admissibility of the evidence of the settlement with the Newport-area doctors, evidence of their negligence, and evidence of decedent’s marijuana usage. We take them in this order.
During the video deposition of Dr. Markowitz, defendants’ counsel asked questions related to plaintiff’s settlement with the Newport-area doctors, attempting to show that Dr. Markowitz changed his testimony between the two depositions. According to defendants, in the first deposition Dr. Markowitz testified that the negligence of Doctors Holcomb, Beloin and Feltmarch was primarily responsible for decedent’s death and that Dr. Forcier was largely blameless. In defendants’ view, Dr. Markowitz changed his analysis with respect to Dr. Forcier after learning оf the settlement and targeted him with responsibility. Defendants argue that the evidence of the settlements was necessary to show the reason for Dr. Markowitz’s change of testimony.
Plaintiff moved in limine to exclude “any references to culpability on the part of former defendants Holcomb, Beloin and Feltmarch” as irrelevant to Dr. Forcier’s negligence and specifically to exclude from the Mаrkowitz testimony references to plaintiff’s settlement with these doctors. The trial court denied these motions, and admitted the evidence at trial. As to the involvement of the other doctors, the court ruled that this would inevitably be part of the background and would go to the ability to diagnose decedent’s condition from the symptoms. The court ruled that the fact of the settlement could be used in cross-examining Dr. Markowitz and was related to his credibility. It left to trial any further reasons to develop the settlement information. At trial, the court stated in its instructions to the jury that the fact of the settlements could be considered only as bearing on Dr. Markowitz’s credibility and not on defendants’ negligence. The court also stated that the jury was not to consider whether the former defendants were negligent or how that negligence would compare with that of Dr. Forcier.
On the first point, plaintiff relies primarily on
Slayton v. Ford Motor
Co.,
If the jury is informed of either the fact or the amount of a settlement, there is a danger that it will draw improper inferences. A jury might conclude that the settling defendant was the party primarily responsible for the injury, and that the remaining defendants should therefore be exonerated. ... It might take the amount of the settlement as a measure of the plaintiff’s damages. ... It might consider one defendant’s settlement to be an admission of negligence, and then impute this negligence to a nonsettling defendant. . . .
Id.
at 29-30,
Following the adoption of the Vermont Rules of Evidence, the holding of
Slayton
was explained in
Sampson v. Karpinski,
Defendants introduced the evidence of thе settlements through plaintiff’s expert in order to impeach his opinion because, they argued, he changed his testimony from virtually exonerating defendants, and blaming the Newport-area doctors, to blaming defendants. They offered the settlements as the motive for the changes of opinion. Thus, the settlement was used to show bias or prejudice of the expert witness, exactly one of the uses cоntemplated by Rule 408.
Other courts have recognized the admissibility of settlement evidence to attack credibility in similar circumstances. In a similar case, the Wisconsin Supreme Court authorized a medical malpractice defendant to show that the plaintiff had settled with other doctors in order to impeach the plaintiff’s liability testimony:
It is argued by defendants that the evidence of a prior settlemеnt between Dr. Bowden and [plaintiffs] was admissible to show prejudice on the part of [plaintiff] as a witness because she had a financial interest in playing down the negligence of Dr. Bowden and emphasizing that of [defendants]. We agree, and we conclude that evidence of a settlement can be used, as in this case, to show possible bias of a witness, although it cannot be used to prove liability оr invalidity of a claim at issue.
Hareng v. Blanke,
*21 Plaintiff argues that the exclusion from the prohibition of Rule 408 does not apply because the expert never changed his testimony so that there was no legitimate credibility issue. We are unable to evaluate fully this argument from the record before us. After defendants cross-examined Dr. Markowitz with excerpts from his earlier deposition, plaintiff failed to show the parts that wеre consistent with his testimony, and the earlier deposition is not in the record. Certainly, the parts of the deposition highlighted by defendants suggest a change of testimony. Prom what we have before us, defendants have a tenable claim that Dr. Markowitz changed his testimony from his earlier deposition when all doctors were still defendants to his testimony given after the plaintiff settled with the three Newport-area doctors.
We recognize that the fact that defendants had a legitimate reason for offering the settlement evidence does not end the inquiry. Because there is a substantial risk that the jury will use the evidence for an impermissible purpose, the evidence must pass the balancing test of Rule 403, weighing probative value against the “danger of unfair prejudice, confusion of the issues, or misleading the jury.” V.R.E. 403; seе also 23 C. Wright & K. Graham, Federal Practice & Procedure § 5311, at 264 (1980) (exclusion of settlement evidence may be called for under Rule 403 unless evidence is quite probative on issue of bias). In many of the reported opinions in which settlement evidence was excluded, the decision was grounded on Rule 403 considerations. See
Myers v. Pennzoil Co.,
The trial court has broad discretion in ruling on 403 questions, and review here is only for abuse of discretion. See
State v. Percy,
First, the risk of improper usage of the evidence by the jury is reduced somewhat by the requirement of
Sampson
that “the court must clearly instruct the jury to disregard the settlement when determining liability and damages,”
Second, the court gave thorough and thoughtful consideration to the merits of the issue in response to the motion in limine. The issues were revisited and reconsidered by the different judge who presided at trial. Thus, it is clear that the two judges carefully exercisеd the discretion accorded them.
Third, the evidence had substantial probative value in the context of this case. Cf.
State v. Bruyette,
Finally, it would be apparent to the jury that if plaintiff had a claim against defendants, she also had claims against the Newport-area doctors, whose involvement with decedent was much more extensive and who failed to diagnose his heаrt condition. The court could conclude in these circumstances that the risk of prejudice to both parties would be reduced by making the jury aware of the settlement rather than having it speculate on what happened to the other claims.
Plaintiff’s second argument is similar to the first. Here, plaintiff faults the trial court for allowing defendants to offer evidence of the negligence of the Newрort-area doctors. In plaintiff’s view, defendants were allowed to change the focus to the negligence of these doctors in the hope that the jury would overlook defendants’ negligence.
Plaintiff’s allegations of misuse are overstated. Defendants raised the negligence of the other doctors solely in the cross-examination of Dr. Markowitz, primarily to impeach him by showirig the changе in his testimony between the depositions. *23 2 They did not claim that the negligence of the other doctors in any way exonerated them. In fact, none of the direct evidence pointed in this direction. In closing, defense counsel stated that the jury should focus on the responsibility of others only in determining the credibility of Dr. Markowitz. The court charged that the jury was not to consider the negligence of the other doctors in determining the negligence of defendants.
The actions of the Newport-area doctors were inextricably intertwined in this case. See
Sheldon v. Wright,
As with the settlement information, the real question is whether the court abused its discretion in allowing the impeachment evidence. Considering the context in which the evidence was offered, the court’s careful consideration of the issues in ruling on the motion in limine and at trial, the limited purpose of the evidence and the charge to the jury, we find no abuse of discretion.
Plaintiff’s third argument faults the trial court for allowing defendants to show that decedent was а regular user of marijuana. *24 3 The evidence of decedent’s use was that it was found in his blood during the autopsy, and plaintiff testified he was a regular user. Although defendants have not been entirely consistent on the relevance of this information, two related theories emerge from the various arguments over the evidence. Both relate to the fact that decedent failed to disclose the marijuana use in stating his medical history to Dr. Forcier.
The first theory is based on the testimony of plaintiff’s expert that marijuana smoking is linked to heart disease just as cigarette smoking is linked to heart disease. In fact, plaintiff’s expert testified that marijuana smoking is a greater cause of heart disease than cigarette smoking. Defendants argue that decedent’s failure to disclose the marijuana usage was a fаctor in Dr. Forcier’s failure to diagnose heart disease and was contributory negligence. Dr. Forcier was not asked, however, whether his opinion would have been different for this reason.
The second theory is based on the fact that marijuana usage can make a person appear anxious. As a result, according to Dr. Forcier’s testimony, decedent’s failure to disclose his marijuana usage threw Dr. Forcier off and led him to believe that decedent’s symptoms might be psychosomatic, at least in part, as he stated in the letter to Dr. Holcomb. Again, defendants argue that the failure to disclose the usage directed Dr. Forcier away from the correct diagnosis and was contributory negligence.
Our rules provide a broad definition of relevance. See V.B.E. 401 (evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”). The evidence of decedent’s marijuana usage is relevant under this standard.
Plaintiff’s claim is that the jury is less likely to be responsive to her case if they know decedent is an illegal drug user. Normally, the issue of “crimes, wrongs or acts” arises when there is a risk that the jury will infer from a past bad act of a party the propensity to do it again, and the repetition of the act is related *25 to the conduct in issue before the court. Such propensity evidence is inadmissible “to prove the character of a person in order to show that he acted in conformity therewith” but may be admissible for othеr purposes. V.R.E. 404(b). There is no propensity concern here. No relevant character trait was in issue in the medical malpractice proceeding.
Thus, the issue, like the others in this case, turns on whether the probative value of the drug-usage evidence is substantially outweighed “by the danger of unfair prejudice,” V.R.E. 403, and review here is for abuse of the broad discretion of the trial court. Again, we do nоt believe the discretion was abused.
The failure of decedent to provide an adequate and accurate medical history to Dr. Forcier was a central point of the defense. The marijuana usage, decedent’s failure to disclose it and its importance to a proper diagnosis had substantial probative value in support of the defense. Defendants did not overemphаsize the marijuana usage; the evidence about it was relatively brief, and it was not mentioned in closing argument.
On the other hand, decedent’s credibility was not in issue, and there is a lesser risk that the jury would translate their reaction to decedent’s illegal drug use to plaintiff. Plaintiff was allowed to explain that decedent used marijuana because it gave him relief from the pain. As with the other issues raised by the motiоn in limine, the court carefully considered plaintiff’s claim of prejudice and balanced it against probative value. Other courts have upheld the admission of drug use evidence in analogous circumstances as within the discretion of the trial court. See
O’Dell v. Hercules, Inc.,
Affirmed.
Notes
The reference to the “claim” in the rule is to the claim for which there has been a settlement or offers or negotiation. In this case, it is the claim between plaintiff аnd the Newport-area doctors. The rule is broad enough to preclude information related to the settlement of that claim from being introduced to show the validity or invalidity of “any other claim.” Therefore, if a claim against one party is settled, the “fact of settlement is not admissible as to remaining claims.” Reporter’s Notes, V.R.E. 408.
Defendants did argue that the failure of Doctor Holcomb to aсt on the letter from Doctor Forcier was negligence and constituted an intervening cause that broke any chain of causation between defendants’ actions and decedent’s death. On this theory, defendants’ negligence, if any, would not be a proximate cause of death. Although there was some limited factual development of this theory, the court decided, after the evidence wаs concluded, not to charge the jury on this theory. In any event, the jury found defendants were not negligent and never reached the question of proximate cause. In view of the limited development of the theory and the action of the court and jury, it is fair to say that the negligence of the Newport-area doctors was raised only to impeach Dr. Markowitz.
Plaintiff also moved in limine to exclude evidence that decedent used hard drugs while in the service in Viet Nam. The motion was initially denied but was granted by a different judge at trial and resulted in editing of the video depositions.