Filippelli v. Saint Mary's Hospital ( 2015 )

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FILIPPELLI V. SAINT MARY’S HOSPITAL—DISSENT
EVELEIGH, J., with whom McDONALD and VERTE-
FEUILLE, Js., join, dissenting. I respectfully dissent
from the majority opinion. First, unlike the majority’s
conclusion that the testimony at issue was ‘‘collateral,’’
I would adhere to our long-standing jurisprudence that
‘‘evidence tending to show a witness’ bias, prejudice or
interest is never collateral . . . .’’ (Citation omitted.)
Conn. Code Evid. § 6-5, commentary; see also State v.
Chance, 236 Conn. 31, 58, 671 A.2d 323 (1996). In my
view, the evidence did relate to a substantial issue in
the present case—namely, the credibility of Andrew
Bazos, the only expert witness presented by the defen-
dants Dennis M. Rodin and Waterbury Orthopaedic
Associates, P.C.1 Second, unlike the majority, I would
conclude that instead of weighing the ‘‘competing inter-
ests,’’ the trial court not only unnecessarily restricted
the ability of the plaintiff Philip Filippelli III2 to cross-
examine Bazos, but also provided a solution that was
without meaning and which was potentially confusing
to the jury. Thus, in my view, the plaintiff’s right to
cross-examine Bazos regarding motive, interest, bias
and prejudice was unduly restricted. See Vazquez v.
Rocco, 267 Conn. 59, 66, 836 A.2d 1158 (2003).
The present appeal arises from a medical malpractice
action. In my view, the dispositive issue in this appeal is
whether the trial court properly precluded the plaintiff
from cross-examining Bazos with allegedly misleading
and inconsistent deposition testimony.3 The trial court
precluded the plaintiff’s cross-examination on the
ground that the deposition testimony at issue was more
prejudicial than probative. The trial court reached this
conclusion because the proffered evidence revealed
that Rodin was a defendant in two other medical mal-
practice cases. After a jury trial, the trial court rendered
judgment in favor of the defendants. The plaintiff then
appealed to the Appellate Court, which affirmed the
trial court’s judgment. Filippelli v. Saint Mary’s Hospi-
tal, 141 Conn. App. 594, 597–600, 61 A.3d 1198 (2013).
This certified appeal followed. Filippelli v. Saint
Mary’s Hospital, 308 Conn. 947, 67 A.3d 289 (2013).
I recognize that a trial court has broad discretion in
ruling on the admissibility of evidence and that we will
not disturb such a decision in the absence of an abuse
of discretion. See, e.g., Statewide Grievance Committee
v. Burton, 299 Conn. 405, 415, 10 A.3d 507 (2011). ‘‘Nev-
ertheless, [t]he exercise of discretion to omit evidence
in a civil case should be viewed more critically than the
exercise of discretion to include evidence. It is usually
possible through instructions or admonitions to the jury
to cure any damage due to inclusion of evidence,
whereas it is impossible to cure any damage due to
the exclusion of evidence.’’ (Internal quotation marks
omitted.) Hayes v. Manchester Memorial Hospital, 38
Conn. App. 471, 474, 661 A.2d 123, cert. denied, 235
Conn. 922, 666 A.2d 1185 (1995). It is through the lens
of a more critical analysis that I would conclude that
the trial court’s decision improperly limited the cross-
examination of the defendants’ single expert witness
harmed the plaintiff. Accordingly, I would reverse the
judgment of the Appellate Court and remand the case
for a new trial.4
The Appellate Court opinion sets forth the following
procedural history regarding the plaintiff’s claim.5
‘‘Bazos was deposed by the plaintiff’s counsel on April
4, 2011, approximately one month prior to the start of
trial. He testified, in part, that he had been disclosed
as an expert witness in three or four unrelated medical
malpractice actions, but that he could recall the name
of only one of those cases, an action that did not involve
Rodin. Bazos also testified that he did not know Rodin.
When the plaintiff’s counsel asked Bazos if he had heard
of Rodin previously, Bazos testified that he may have
seen Rodin’s name on medical records that came across
his desk in the course of his medical practice, as Rodin
practices in a community near to the one in which
Bazos practices.
‘‘On May 6, 2011, the court held a hearing on numer-
ous motions in limine filed by the parties. One of the
defendants’ motions in limine sought to preclude the
plaintiff from presenting evidence of other medical mal-
practice actions in which Rodin was a defendant,
arguing that such evidence is irrelevant to the question
of whether Rodin had breached the standard of care
in his care and treatment of the plaintiff and was more
prejudicial than probative. The defendants’ motion in
limine cited the relevancy section of our [C]ode of [E]vi-
dence. See Conn. Code Evid. § 4-1 et seq.
‘‘In opposing the defendants’ motion in limine, the
plaintiff’s counsel stated that she did not intend to ques-
tion Rodin about prior or pending medical malpractice
actions against him, but that she planned to question
Bazos about the number of times he had given expert
testimony on Rodin’s behalf. She also stated that Bazos
had been deposed in another action involving Rodin
approximately one month prior to his being deposed
in [the present] case, but Bazos was unable to recall
that fact when the plaintiff deposed him. According to
the plaintiff’s counsel, Bazos’ deposition testimony in
this case was untruthful. . . . The plaintiff intended to
use the deposition transcript to impeach Bazos’ credibil-
ity and to demonstrate his bias.
‘‘Counsel for the defendants argued that, when testi-
fying at the subject deposition, Bazos had misunder-
stood the question from the plaintiff’s counsel, believing
that she was asking him about testimony given at trial,
not at a deposition. Counsel for the defendants stated
that Bazos was truthful in that he had never met Rodin
and that his relationship is with her and her firm, not
Rodin. Moreover, Bazos intended to use an errata sheet
to amend his deposition testimony in this case to indi-
cate the number of times he had given testimony on
behalf of Rodin. Counsel for the defendants argued that
evidence of the number of times Bazos served as an
expert witness for Rodin was a backdoor way of getting
the number of malpractice actions against Rodin before
the jury, regardless of the merits of those actions.
‘‘The court agreed that evidence regarding other med-
ical malpractice claims against Rodin was more prejudi-
cial than probative, but stated that the plaintiff was
entitled to inquire whether Bazos was ‘looking at . . .
Rodin for the first time.’ The court therefore granted
the defendants’ motion in limine in part, but denied it
in part to permit the plaintiff’s counsel to inquire of
Bazos as to any prior working relationship he had
with Rodin.
‘‘At trial, prior to cross-examining Bazos, the plain-
tiff’s counsel requested a sidebar conference. There-
after, the court excused the jury and asked Bazos to
step outside the courtroom. [The] [p]laintiff’s counsel
stated her desire to question Bazos about other deposi-
tion testimony he had given on behalf of Rodin. She
stated that, during his deposition in this case, Bazos
testified that he did not know Rodin but that he may
have seen his name in medical records. Moreover, Bazos
could recall the name of only one case in which he had
testified as an expert. [The] [p]laintiff’s counsel stated
that Bazos gave a deposition on Rodin’s behalf in the
case of George v. Rodin, Superior Court, judicial district
of Waterbury, Docket No. CV-09-5014966-S, approxi-
mately two months prior to the day he was deposed in
this action. Five days prior to the deposition in this
case, Bazos signed the deposition errata sheet in George
. . . but testified that he could not recall the names of
any other cases in which he had testified. [The] [p]lain-
tiff’s counsel argued that Bazos’ deposition testimony,
therefore, was not truthful.
‘‘The court pointed out that, if it were to permit the
plaintiff to question Bazos about George . . . in front
of the jury and Bazos admitted that he is an expert in
that case, evidence of another medical malpractice
claim against Rodin would be before the jury. [The]
[p]laintiff’s counsel argued that Bazos denied, under
oath, knowing the names of the cases in which he had
been disclosed as an expert witness and that such evi-
dence was necessary for the jury to determine Bazos’
credibility, which went to the heart of his veracity and
whether he was truthful.
‘‘The court denied the plaintiff’s request to make an
offer of proof, ruling that the plaintiff could ask Bazos
whether he had a working relationship with Rodin and
that he could challenge Bazos’ credibility, but not with
evidence of other medical malpractice claims against
Rodin, as its prejudicial value far outweighs its proba-
tive value.
‘‘At the end of the court day, after Bazos had com-
pleted his testimony and the jury had been excused,
the plaintiff sought to mark a document for identifica-
tion. The court declined the plaintiff’s request, but per-
mitted counsel to make an oral record.6 Plaintiff’s
counsel identified the document as ‘the witness certifi-
cation for [a] deposition that was taken on January 21,
2011. The certification was witnessed on March 29,
2011, by . . . Bazos in . . . George . . . .’ ’’ (Citation
omitted; footnotes altered.) Filippelli v. Saint Mary’s
Hospital, supra, 141 Conn. App. 614–19.
Although I agree generally with the standard of
review set forth in the majority opinion, I set forth
our well established standard of review to frame my
analysis of the plaintiff’s claim. ‘‘The standard under
which we review evidentiary claims depends on the
specific nature of the claim presented. . . . To the
extent a trial court’s admission of evidence is based on
an interpretation of [law], our standard of review is
plenary. . . . We review the trial court’s decision to
admit evidence, if premised on a correct view of the
law, however, for an abuse of discretion.’’ (Citations
omitted; internal quotation marks omitted.) Statewide
Grievance Committee v. Burton, supra, 299 Conn. 415;
see also State v. Saucier, 283 Conn. 207, 218, 926 A.2d
633 (2007).
‘‘Nevertheless, ‘[t]he exercise of discretion to omit
evidence in a civil case should be viewed more critically
than the exercise of discretion to include evidence. It
is usually possible through instructions or admonitions
to the jury to cure any damage due to inclusion of
evidence, whereas it is impossible to cure any damage
due to the exclusion of evidence.’ Larensen v. Karp, 1
Conn. App. 228, 237, 470 A.2d 715 (1984) (Dupont, J.,
dissenting); see also Batick v. Seymour, 186 Conn. 632,
637, 443 A.2d 471 (1982) (suggesting that standard for
admitting evidence that is challenged as prejudicial
should be lower in civil case than in criminal case); C.
Tait & J. LaPlante, [Connecticut Evidence (2d Ed. 1988)]
§ 8.1.3. ‘To be excluded the evidence must create preju-
dice that is undue and so great as to threaten an injustice
if the evidence were to be admitted.’ . . . Chouinard
v. Marjani, [21 Conn. App. 572, 576, 575 A.2d 238(1990)]; see also Richmond v. Longo, 27 Conn. App. 30,
39, 604 A.2d 374, cert. denied, 222 Conn. 902, 606 A.2d
1328 (1992).’’ (Emphasis omitted.) Martins v. Connecti-
cut Light & Power Co., 35 Conn. App. 212, 217–18, 645
A.2d 557 (1994); see also Hayes v. Manchester Memorial
Hospital, supra, 38 Conn. App. 474.
In the present case, Bazos testified at his deposition
that he had testified as an expert in three or four other
medical malpractice cases over a period of six years
prior to his deposition. When asked whether he knew
the names of any of the physicians for whom he had
been disclosed as a witness and given testimony, Bazos
testified ‘‘[t]he only one I remember, because it was
relatively recent, was [a physician named] Geiger
. . . .’’
When asked if he knew any of the physicians that
subsequently treated the plaintiff, Bazos testified that
he did not know them personally and had not worked
with any of them. When asked if he had ever heard of
Rodin before being involved in this case, Bazos testified
that ‘‘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.’’7 During his entire deposition,
Bazos never mentioned that he had been retained by
the defendants’ counsel as an expert witness in other
medical malpractice cases in which Rodin was named
as a defendant.
Contrary to his testimony at his deposition, a review
of the record indicates that of the four medical malprac-
tice cases for which Bazos had been retained and given
testimony, he testified on behalf of Rodin in three of
them. In each of those matters, Bazos had also been
retained by the defendants’ counsel. Bazos had given
a deposition approximately two months before his
deposition in this case in another case involving Rodin.
Indeed, while meeting with the defendants’ counsel to
prepare for his deposition in the present case, Bazos
signed an errata sheet for his deposition in that other
case involving Rodin.
On the basis of the foregoing, the plaintiff asserts
that Bazos lied under oath at his deposition and that the
trial court improperly precluded him from impeaching
Bazos at trial with the allegedly untruthful testimony
from his deposition. The defendants respond that
Bazos’ testimony was not misleading and that, even if
it was, it was proper for the trial court to exclude it
because it was more prejudicial than probative. I agree
with the plaintiff and would conclude that evidence
regarding Bazos’ misleading testimony at his deposition
was admissible as both evidence of bias and a specific
incident of misconduct relating to veracity.
The majority concludes that ‘‘whether Bazos pre-
viously 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.’’
I disagree. It is well established that ‘‘evidence tending
to show a witness’ bias, prejudice or interest is never
collateral . . . .’’ (Citation omitted.) Conn. Code Evid.
§ 6-5, commentary. ‘‘ ‘[C]ross-examination is the princi-
pal means by which the credibility of witnesses and the
truth of their testimony is tested.’ State v. Lee, 229 Conn.
60, 69, 640 A.2d 553 (1994). Although only relevant evi-
dence may be elicited through cross-examination; State
v. Kelley, 229 Conn. 557, 562, 643 A.2d 854 (1994); ‘[e]vi-
dence tending to show motive, bias or interest of an
important witness is never collateral or irrelevant.
[Indeed, it] may be . . . the very key to an intelligent
appraisal of the testimony of the [witness].’ . . . State
v. Colton, 227 Conn. 231, 248, 630 A.2d 577 (1993).’’
State v. Chance, supra, 236 Conn. 58. As this court
explained in Vasquez v. Rocco, supra, 267 Conn. 66–67,
‘‘the risk of undue prejudice to the defendant resulting
from the introduction of such evidence must be weighed
against the plaintiff’s right of cross-examination regard-
ing motive, interest, bias or prejudice, a right that may
not be unduly restricted. E.g., Pet v. Dept. of Health
Services, 228 Conn. 651, 663, 638 A.2d 6 (1994); see also
General Statutes § 52-145 (b) (‘[a] person’s interest in
the outcome of the action . . . may be shown for the
purpose of affecting his credibility’); Conn. Code Evid.
§ 6-5 (‘[t]he credibility of a witness may be impeached
by evidence showing bias for, prejudice against, or inter-
est in any person or matter that might cause the witness
to testify falsely’). Furthermore, ‘[a] basic and proper
purpose of cross-examination of an expert is to test
that expert’s credibility.’ . . . State v. Copas, [252
Conn. 318, 327, 746 A.2d 761 (2000)].’’
‘‘ ‘The bias of a witness, like prejudice and relation-
ship, is not a collateral matter. The bias of a witness
is always a relevant subject of inquiry when confined
to ascertaining [a] previous relationship, feeling and
conduct of the witness . . . . [O]n cross-examination
great latitude is allowed and . . . the general rule is
that anything tending to show the bias on the part of a
witness may be drawn out.’ [Henson v. Commonwealth,
165 Va. 821, 825–26, 183 S.E. 435 (1936); see also] Nor-
folk & Western Railway Co. v. Birchfield, 105 Va. 809,
812, [54 S.E. 879] (1906) (repeating the general rule but
concluding under the circumstances of that case that
it was harmless error not to permit a particular question
because the information sought by the questioner was
developed by other evidence).’’ (Emphasis omitted.)
Henning v. Thomas, 235 Va. 181, 188, 366 S.E.2d 109(1988).
In the present case, the fact that Bazos had been
retained by the defendants’ counsel in two other matters
on behalf of Rodin was relevant to the issue of his
potential bias or interest in the outcome of the case.
In Vasquez v. Rocco, supra, 267 Conn. 65, this court
addressed a similar issue. In Vasquez, the plaintiff
sought to cross-examine the defendant’s expert regard-
ing his connection to the defendant’s liability insurance
carrier. Id., 64. The trial court precluded the plaintiff
from cross-examining the defendant’s expert on the
ground that the probative value of the evidence would
be outweighed by its prejudicial effect. Id., 64–65. This
court concluded that the trial court improperly pre-
cluded the plaintiff from cross-examining the expert
because the expert’s connection to the insurance carrier
‘‘was substantial enough to warrant the admission of
evidence of that connection for the purpose of demon-
strating [the expert’s] potential interest in the outcome
of the case.’’ Id., 69. Indeed, this court has recognized
that ‘‘ ‘[i]t is usually held that it is permissible for plain-
tiff’s counsel, when acting in good faith, to show the
relationship between a witness and [the] 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.’ Annot., 4 A.L.R.2d 761,
[§ 7 (1949)].’’ Magnon v. Glickman, 185 Conn. 234, 242,
440 A.2d 909 (1981).
This view is consistent with the approach of other
jurisdictions that allow cross-examination of medical
experts as to specific prior referrals from attorneys
involved in the present case and testimony on behalf
of clients of the attorney. Indeed, the Supreme Court
of Illinois has explained the rationale for allowing such
cross-examination as follows: ‘‘The modern personal
injury trial often becomes a battle between expert wit-
nesses. This is particularly true in a case [in which the
cause of the] injury is beyond the knowledge of the
average person, and a jury must ordinarily rely on the
testimony of experts in reaching a verdict. . . . An
expert medical witness is an important part of the tech-
nique of personal injury litigation. He generally is a
persuasive, fluent, impressive witness, able to make
the jury understand that what he is telling them is the
product of years of educational preparation and medical
experience, with particular reference to and emphasis
on the specialty involved. He will name his colleges
and universities, his degrees, the medical societies to
which he belongs, the national specialty groups to
which he has been admitted, the hospitals in which he
has interned or externed, and the hospital staffs on
which he has held positions. . . . That he is being paid
by one side is always skillfully lost in casual answers
to cross-examining cynical questions, by a modest shrug
indicating that a charge is made per hour or day, which
seems wholly inconsequent to the large proportions
from which his great capacities emerge.’’ (Internal quo-
tation marks omitted.) Sears v. Rutishauser, 102 Ill.
2d 402, 406, 466 N.E.2d 210 (1984). Accordingly, the
Supreme Court of Illinois explained that ‘‘[i]t is compe-
tent to show that a witness . . . is in the employ of
one of the litigants regularly or frequently as an expert
witness, or to prove facts and circumstances which
would naturally create a bias in the mind of the witness
for or against the cause of either of the litigants.’’ (Inter-
nal quotation marks omitted.) Id., 407. ‘‘A medical
expert can be questioned about fee arrangements, prior
testimony for the same party, and financial interest in
the outcome of the case.’’ Id., 408.
In Sawyer v. Comerci, 264 Va. 68, 77–80, 563 S.E.2d
748 (2002), the Supreme Court of Virginia addressed a
very similar issue to the present case—whether a trial
court properly precluded the plaintiff in a medical mal-
practice action from cross-examining the defendant’s
expert to show that he had previously testified on behalf
of the defendant and had been compensated for his
testimony. The Supreme Court of Virginia concluded
that the trial court abused its discretion in refusing to
permit the plaintiff to elicit testimony from the defen-
dant’s expert related to his testimony in an unrelated
action. Id., 79–80. The Supreme Court of Virginia
explained as follows: ‘‘[I]n this case the plaintiff was
entitled to cross-examine the defendant’s expert wit-
ness . . . to show that he had previously testified as
an expert witness on behalf of [the defendant] and that
he had been compensated. The amount of money that
[the defendant] paid [the defendant’s expert] in a prior
case was a relevant area of inquiry because that testi-
mony may have indicated to the jury that he was biased
in her favor. The probative value concerning this poten-
tial bias outweighed any prejudice to [the defendant]
resulting from the jury’s knowledge that she had been
a defendant in an unrelated [action]. Therefore, the
circuit court abused its discretion in failing to permit
the plaintiff to elicit this testimony.’’ Id. Accordingly,
the Supreme Court of Virginia reversed the judgment
of the trial court and remanded the case for a new trial.
Id., 80.
Furthermore, the plaintiff in the present case should
have been allowed to cross-examine Bazos regarding
his inconsistent testimony at the deposition because
prior inconsistent testimony was relevant to his credi-
bility. It is axiomatic that ‘‘[a] witness may be impeached
by specific acts of misconduct that evidence a lack of
veracity.’’ C. Tait & E. Prescott, Connecticut Evidence
(5th Ed. 2014) § 6.32.2, p. 397. This court has repeatedly
concluded that ‘‘[t]o attack the credibility of a witness,
inquiry may be made, in the discretion of the trial court,
as to particular acts of misconduct tending to show a
lack of veracity even though such evidence may be
irrelevant to the issues in the case.’’ State v. Sharpe,
195 Conn. 651, 658, 491 A.2d 345 (1985). ‘‘In an attack
on his credit, inquiry may be made, in the discretion of
the court, as to particular acts of misconduct tending
to show a lack of veracity, even though such evidence
might be irrelevant to the issues in the case. Vogel v.
Sylvester, [148 Conn. 666, 675, 174 A.2d 122 (1961)];
Shailer v. Bullock, [78 Conn. 65, 69, 61 A. 65 (1905)];
[C. McCormick, Evidence (1954)] § 42.’’ Martyn v. Don-
lin, 151 Conn. 402, 408, 198 A.2d 700 (1964).
Lying under oath is a clear example of lack of verac-
ity. State v. Suarez, 23 Conn. App. 705, 709, 584 A.2d
1194 (1990). Indeed, this court recently concluded that
‘‘[a] claim that the witness gave false testimony in a
prior case is directly relevant to a witness’ credibility.
See, e.g., State v. Bova, 240 Conn. 210, 223, 690 A.2d
1370 (1997).’’ Weaver v. McKnight, 313 Conn. 393, 427,
97 A.3d 920 (2014). Nevertheless, ‘‘[b]efore a witness
may be asked about his or her prior acts of misconduct,
the questioner must have a good-faith basis for believing
that the witness has committed the act inquired about.’’
C. Tait & E. Prescott, supra, § 6.32.4, p. 400.
‘‘Cross-examination is an indispensable means of elic-
iting facts that may raise questions about the credibility
of witnesses and, as a substantial legal right, it may not
be abrogated or abridged at the discretion of the court
to the prejudice of the party conducting that cross-
examination. Richmond v. Longo, [supra, 27 Conn. App.
38]. It is well settled that the credibility of an expert
witness is a matter to be determined by the trier of
fact. In re Juvenile Appeal, 184 Conn. 157, 170, 439 A.2d
958 (1981).’’ Hayes v. Manchester Memorial Hospital,
supra, 38 Conn. App. 474.
In the present case, the parties do not dispute that,
at the time of his deposition in the present case, Bazos
had been retained by counsel for the defendants to be an
expert witness on behalf of Rodin in two other medical
malpractice cases. The parties also do not dispute that
Bazos had testified at a deposition in one of the other
medical malpractice cases involving Rodin approxi-
mately two months prior to his deposition in the present
case. Further, it is undisputed that on the day Bazos
met with counsel for the defendants to prepare for the
deposition in the present case, five days before the
deposition in the present case, he signed an errata sheet
for a deposition in another case in which Rodin was
named as the defendant.
At his deposition, Bazos testified that he had given
testimony in three or four other medical malpractice
cases. Bazos was asked the following question: ‘‘Do you
remember the names of any of the physicians for which
you have given deposition testimony as a disclosed
expert on their behalf?’’ Bazos replied, ‘‘[t]he only one
I remember, because it was relatively recent, was . . .
Geiger . . . .’’ Indeed, when explicitly asked if he had
ever heard of Rodin before, Bazos replied as follows:
‘‘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.’’ This testimony by Bazos implies
that his only knowledge of Rodin was through records
of patients that Bazos treated. Such testimony com-
pletely omits the fact that he had reviewed records in
other medical malpractice cases in which Rodin was
named as a defendant and that Bazos was hired as an
expert in those cases. Given the fact that it is undisputed
that Bazos gave deposition testimony in a case where
Rodin was the named defendant approximately two
months prior to his deposition in the present case, and
the fact that the deposition in the case involving Geiger
was approximately one year before, I conclude that the
plaintiff had a good faith belief that Bazos had lied
under oath.8
The majority states that the trial court ‘‘also recog-
nized . . . that the plaintiff had a legitimate interest in
impeaching Bazos’ credibility by questioning him about
his allegedly false or misleading deposition testimony.
The court sought to balance these concerns by allowing
the plaintiff to confront Bazos with the portion of his
deposition testimony in which he stated that he was
only familiar with Rodin’s name because he had seen
it in his patients’ medical records and ask whether
Bazos had a ‘working relationship’ with Rodin, but pre-
cluded the plaintiff from inquiring more specifically
about other malpractice cases against Rodin.’’ I dis-
agree. By limiting the plaintiff to being able to ask only
about a ‘‘prior working relationship’’ with Rodin, it did
not enable the plaintiff to elicit the fact that Bazos had
not been forthcoming about his relationship with Rodin.
The vague notion of ‘‘prior working relationship’’ did
not convey the extent to which the testimony Bazos
gave at his deposition may have been misleading and
not forthright. Specifically, the trial court precluded the
plaintiff from questioning Bazos regarding whether he
had falsely testified during his deposition. Specifically,
the trial court allowed the plaintiff to inquire into
whether Bazos had a ‘‘working relationship’’ with
Rodin, but precluded the plaintiff from introducing evi-
dence that Bazos had omitted from his deposition testi-
mony that he had been disclosed as an expert and
testified on behalf of Rodin in other cases. The trial
court precluded the plaintiff from introducing evidence
that Bazos may have lied at his deposition about being
disclosed as an expert in two other actions involving
Rodin on the ground that information regarding the
other medical malpractice actions involving Rodin
would have been more prejudicial than probative. The
exact nature of this ‘‘prior working relationship’’ was
never explained to the jury and was potentially a source
of confusion. What exactly does it mean? Were they
partners? Did one work for the other and refer patients?
Did they share one mutual patient at a given time?
Were they residents in the same hospital? The fact was
potentially very confusing to the jury and of limited
evidentiary value. It certainly cannot compare to the
potential of suggesting to the jury that Bazos may have
lied under oath and may have had a bias and interest
to testify in favor of Rodin.
At trial, the plaintiff was allowed to question Bazos
about whether he had an ongoing working relationship
with Rodin. Bazos testified that he had an indirect ongo-
ing relationship with Rodin, but that he met him for
the first time the previous day.9 By being limited to
questioning Bazos only about their ‘‘working relation-
ship,’’ the plaintiff was never able to introduce evidence
that, at his deposition, Bazos had omitted any reference
to testifying on behalf of Rodin at other depositions or
being named as an expert on Rodin’s behalf in other
matters.
Indeed, once Bazos testified at trial that he had ‘‘an
indirect working relationship with Rodin,’’ Bazos’ depo-
sition testimony became a potential inconsistent state-
ment under oath. It is well established that ‘‘[a] witness
can be impeached by proof that he or she has made
prior statements, either out-of-court or in a former pro-
ceeding, that are inconsistent with the [witness’] in-
court testimony.’’ C. Tait & E. Prescott, supra, § 6.35.2,
p. 417. ‘‘Inconsistencies may be shown not only by con-
tradictory statements but also by omissions, in other
words, failures to mention certain facts. Thus, if the
prior statement fails to mention a material fact presently
testified to that it should have been natural to mention
in the prior statement, the prior statement is sufficiently
inconsistent. State v. Reed, [174 Conn. 287, 302–303, 386
A.2d 243 (1978)].’’ (Internal quotation marks omitted.)
Falls v. Loew’s Theatres, Inc., 46 Conn. App. 610, 615,
700 A.2d 76 (1997); id. (concluding it was improper
for trial court to exclude witness’ prior inconsistent
statement for impeachment purposes).
In the present case, Bazos’ omission in his deposition
testimony that he had testified on behalf of Rodin when
that testimony occurred approximately two months
prior to his deposition and he signed an errata sheet
approximately five days before the deposition in a case
in which Rodin was the named defendant was relevant
to his veracity and possible inconsistency. I recognize
that, ‘‘even if the conduct does relate to veracity, the
court still has discretion to exclude it if the evidence
has slight relevance due to remoteness in time or other
considerations . . . or if it has a tendency to confuse
or impede the litigation by interjecting collateral issues
. . . .’’ (Citations omitted.) C. Tait & E. Prescott, supra,
§ 6.32.4, pp. 399–400. Nevertheless, in the present case,
Bazos’ conduct at his deposition was not remote in
time—it occurred one month before trial. Moreover,
although the trial court was worried about the prejudi-
cial effect of evidence regarding the other medical mal-
practice actions, I would conclude that any prejudicial
effect could have been resolved by a limiting instruction
to the jury as to its use of the evidence and a further
appropriate limitation that allowed the plaintiff to intro-
duce only evidence that Bazos had not revealed that
he testified on behalf of Rodin approximately one
month prior to his deposition and had been retained in
other actions without getting into the merits of those
other actions. ‘‘Evidence may be admitted for impeach-
ment purposes even though it is inadmissible as sub-
stantive evidence on the merits of the case. See [Conn.
Code Evid.] § 1-4 . . . . In admitting such evidence,
the jury should be instructed as to the proper and lim-
ited purpose for which it was received. . . . That the
evidence might be misused by the jury in violation of
the court’s instructions is not grounds for excluding
it.’’ (Citations omitted.) C. Tait & E. Prescott, supra,
§ 6.27.6, pp. 385–86.
As the Supreme Court of Illinois explained: ‘‘The prin-
cipal safeguard against errant expert testimony is cross-
examination. Generally, opposing counsel may probe
bias, partisanship or financial interest of an expert wit-
ness on cross-examination. . . . It is competent to
show that a witness . . . is in the employ of one of
the litigants regularly or frequently as an expert witness,
or to prove facts and circumstances which would natu-
rally create a bias in the mind of the witness for or
against the cause of either of the litigants.’’ (Citation
omitted; internal quotation marks omitted.) Sears v.
Rutishauser, supra, 102 Ill. 2d 407. In the present case,
the plaintiff was not given the opportunity to employ
this important safeguard.
Accordingly, I would conclude that the trial court
abused its discretion by precluding the plaintiff from
inquiring into, and introducing evidence relevant to,
whether Bazos had given misleading and inconsistent
testimony at his deposition about his relationship with
Rodin, and by limiting the plaintiff to only inquiring into
the ‘‘working relationship’’ between Bazos and Rodin.
Having concluded that the trial court abused its dis-
cretion, I must now determine whether the evidentiary
impropriety was harmless. ‘‘[A]n evidentiary ruling will
result in a new trial only if the ruling was both wrong and
harmful. . . . Moreover, an evidentiary impropriety in
a civil case is harmless only if we have a fair assurance
that it did not affect the jury’s verdict.’’ (Citations omit-
ted; footnote omitted; internal quotation marks omit-
ted.) Hayes v. Camel, 283 Conn. 475, 488–89, 927 A.2d
880 (2007).
‘‘ ‘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. Vasquez
v. Rocco, [supra, 267 Conn. 72]. Thus, [my] analysis
includes a review of: (1) the relationship of the improper
evidence to the central issues in the case, particularly
as highlighted by the parties’ summations; (2) whether
the trial court took any measures, such as corrective
instructions, that might mitigate the effect of the eviden-
tiary impropriety; and (3) whether the improperly
admitted evidence is merely cumulative of other validly
admitted testimony. . . . Prentice v. Dalco Electric,
Inc., [280 Conn. 336, 358, 907 A.2d 1204 (2006), cert.
denied, 549 U.S. 1266, 127 S. Ct. 1494, 167 L. Ed. 2d
230 (2007)]; see also id., 360–61 (noting that during
summation, plaintiff described issue encompassing
improperly admitted scientific evidence as critical and
emphasized that evidence); Hayes v. Caspers, Ltd., 90
Conn. App. 781, 800, 881 A.2d 428 (cautionary instruc-
tion addressed prejudicial impact of expert’s testimony
that included arguably improper discussion of pending
federal action), cert. denied, 276 Conn. 915, 888 A.2d
84 (2005); Raudat v. Leary, 88 Conn. App. 44, 52–53, 868
A.2d 120 (2005) (improperly admitted expert testimony
was harmful error when it related to central issue in
case, namely, condition of purchased horse); DeMarkey
v. Fratturo, [80 Conn. App. 650, 656–57, 836 A.2d 1257(2003)] (improperly admitted hearsay evidence about
cause of motor vehicle accident was harmless because
it was cumulative of properly admitted testimonial and
diagram evidence). The overriding question is whether
the trial court’s improper ruling affected the jury’s per-
ception of the remaining evidence. Swenson v.
Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990).’ . . .
Hayes v. Camel, supra, 283 Conn. 489–90.’’ Sullivan v.
Metro-North Commuter Railroad Co., 292 Conn. 150,
162–63, 971 A.2d 676 (2009); see also Kortner v. Martise,
312 Conn. 1, 28–29, 91 A.3d 412 (2014).
In the present case, an evaluation of these factors
demonstrates that the trial court’s improper exclusion
of evidence bearing on Bazos’ credibility was harmful.
First, Bazos’ credibility was essential to the case. Bazos
was the only expert who testified for the defendants.
His testimony was essential to the key issue in the
case—namely, whether the defendants had breached
the standard of care. Bazos’ testimony contradicted the
testimony of the plaintiff’s only expert, Ronald Kras-
nick. Therefore, the jury was left to determine which
of the two experts it believed—a battle of the experts.
It is well established that ‘‘[t]he success of much
litigation—both criminal and civil—is dependent upon
the effectiveness of a litigant’s expert witness. Gener-
ally, the cross-examination of an expert allows for wide-
ranging questioning which touches on all matters testi-
fied to in chief, or which tends to test the qualifications,
skill, or knowledge of the witness and the accuracy or
value of his or her opinion.’’ Annot., 11 A.L.R.5th 1(1993). Indeed, this court has repeatedly stated that
‘‘[w]hen experts’ opinions conflict, as often happens in
medical malpractice cases, ‘[i]t is the province of the
jury to weigh the evidence and determine the credibility
and the effect of testimony . . . . [T]he jury is free to
accept or reject each expert’s opinion in whole or in
part.’ ’’ Grondin v. Curi, 262 Conn. 637, 657 n.20, 817
A.2d 61 (2003). In the present case, the experts’ opinions
did conflict and the jury was left to determine which
expert it believed. In such a case, the credibility of the
defendants’ expert was essential to the jury’s ultimate
resolution of the case—it had to decide whether to
accept or reject his opinion. Therefore, Bazos’ credibil-
ity was central to this case.
Second, the trial court did not attempt to cure any
possible prejudice caused by the improper exclusion
of the testimony. To the contrary, as explained pre-
viously in this opinion, although the trial court allowed
the plaintiff to inquire into Bazos’ working relationship
with Rodin, such inquiry was not sufficient and did not
allow the plaintiff to impeach the credibility of Bazos.
Furthermore, the trial court could have cured any possi-
ble prejudice to the defendants created by the introduc-
tion of evidence that Bazos was involved in other
litigation on behalf of Rodin by instructing the jury
regarding the limited purpose of impeachment evidence
and not allowing any inquiry into the details of those
other cases.
Third, the particular evidence of the allegedly mis-
leading and inconsistent testimony by Bazos was not
cumulative of any other evidence at trial. Indeed, the
defendants were allowed to introduce Bazos as an
expert, discuss his qualifications and offer his testimony
as an expert. The plaintiff was not allowed to impeach
his credibility and show that Bazos may have offered
misleading and inconsistent testimony during the
course of the litigation.
My review of the entire record in the present case,
in light of these considerations, compels the conclusion
that there is no fair assurance that the evidentiary
impropriety did not affect the jury’s verdict because
the improperly excluded testimony was essential to
weighing the testimony of the defendants’ only expert
witness who was testifying regarding the central issue
in this case—whether the defendants breached the stan-
dard of care. Moreover, the exclusion of this evidence
was not wholly cumulative of other testimony or evi-
dence. Accordingly, I would conclude that the trial
court’s decision to preclude the plaintiff from cross-
examining Bazos with regard to his potentially mis-
leading and inconsistent testimony harmed the plaintiff
and that, therefore, the plaintiff is entitled to a new trial.
1
As noted by the majority, all claims against Saint Mary’s Hospital were
withdrawn before trial. See footnote 2 of the majority opinion. For the sake
of simplicity, I refer to Rodin and Waterbury Orthopaedic Associates, P.C.,
collectively as the defendants. Where necessary, I refer to these parties
individually by name.
2
I also note that, although Linda Filippelli was originally a plaintiff in the
underlying action, she withdrew her claims prior to trial. See footnote 1 of
the majority opinion. For the sake of simplicity, all references to the plaintiff
in this opinion are to Philip Filippelli III.
3
The plaintiff also claims that the trial court improperly refused to allow
him to make an offer of proof regarding Bazos’ misleading and inconsistent
testimony. I note that a trial court always should allow a party to make an
offer of proof in order to preserve a claim for appellate review. I do not
reach the plaintiff’s claim regarding the offer of proof, however, because I
would conclude that the trial court improperly precluded the plaintiff from
offering evidence regarding Bazos’ allegedly misleading and inconsistent
testimony and remand the matter for a new trial.
4
Because I would remand the case for a new trial, I do not address the
other evidentiary claims relating to the use of the academic journal article,
which the plaintiff raised on appeal.
5
I agree with the facts and procedural history as set forth in the majority
opinion and, therefore, include only those additional facts that are relevant
to my analysis.
6
I note that a trial judge should always allow counsel to mark a document
for identification purposes in order to preserve any appellate claims with
an appropriate record.
7
Specifically, the following colloquy between the plaintiff’s counsel and
Bazos occurred during Bazos’ deposition:
‘‘Q. . . . How many medical malpractice cases would you say you’ve
given testimony in?
‘‘A. Maybe three or four.
‘‘Q. Over what period of time?
‘‘A. Probably the past six years.
‘‘Q. Do you know the names of any of the parties that you have given
deposition testimony on behalf of? In other words, I take it you were dis-
closed as an expert on behalf of a physician, correct?
‘‘A. Yes.
‘‘Q. Do you remember the names of any of the physicians for which you
have given deposition testimony as a disclosed expert on their behalf?
‘‘A. The only one I remember, because it was relatively recent, was . . .
Geiger . . . .
***
‘‘Q. The other two, maybe three cases in which you have given deposition
testimony as an expert; who have you worked with on those cases? What
firm; do you know?
‘‘A. I believe with [counsel for the defendants] . . . .
***
‘‘Q. Do you know . . . Rodin?
‘‘A. No.
***
‘‘Q. Had you ever heard of . . . Rodin before being involved in this case?
You said you hadn’t worked with him before.
‘‘A. 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.’’
8
The defendants assert that the alleged false testimony was ‘‘clarified in
his errata sheet.’’ The errata sheet referred to by the defendants was com-
pleted on May 9, 2011, approximately three days after the trial court heard
argument on the motions in limine in this matter and determined that the
plaintiff would not be allowed to introduce any evidence of other medical
malpractice actions in which Rodin was named as a defendant. In his errata
sheet, Bazos testified: ‘‘I have never met . . . Rodin but [the defendants’
counsel] retained me as an expert witness in two other cases for . . .
Rodin.’’ The existence of the errata sheet, however, did not preclude the
plaintiff’s right to cross-examine Bazos. The defendants would have been
free to offer the errata sheet during his direct examination of Bazos and
explore it during his redirect testimony.
9
At trial, the following colloquy occurred:
‘‘[The Plaintiff’s Counsel]: And it’s true . . . isn’t it, that you’ve had an
ongoing working relationship with . . . Rodin since about 2008 . . . ?
‘‘[Bazos]: Yes.
‘‘[The Plaintiff’s Counsel]: And, in fact, you’ve been working with him on
several independent matters since that time, correct?
‘‘[Bazos]: No, I’ve not worked with him, I’ve worked . . . indirectly with
him through another person.
‘‘[The Plaintiff’s Counsel]: So you have not had a working relationship
with him—
‘‘[Bazos]: On—
‘‘[The Plaintiff’s Counsel]: —since 2008?
‘‘[Bazos]: I have. It depends how you define working relationship?
‘‘[The Plaintiff’s Counsel]: And that—one—actually, one of those relation-
ships continues, presently; isn’t that right?
‘‘[Bazos]: Yes.
‘‘[The Plaintiff’s Counsel]: So at least since 2008 you’ve had had a working
relationship with him, correct?
‘‘[Bazos]: Yes.
‘‘[The Plaintiff’s Counsel]: Now, do you remember being asked at your
deposition, which was taken just about a month ago on April 4, 2011, as to
whether you’ve ever heard of . . . Rodin?
‘‘[Bazos]: I’d have to see the—how you asked it. I think you asked me if
I knew him.
‘‘[The Plaintiff’s Counsel]: Okay. Did you recall testifying that you had
not worked with him?
‘‘[Bazos]: I’d have to see it. I don’t have an independent recall, no.
‘‘[The Plaintiff’s Counsel]: You don’t have an independent recall?
‘‘[The Plaintiff’s Counsel]: No. . . .
‘‘[The Plaintiff’s Counsel]: Can I have the . . . deposition transcript.
Exhibit 23 for [identification], Your Honor.
‘‘The Court: Thank you.
‘‘[Bazos]: Thank you.
‘‘[The Plaintiff’s Counsel]: I’m going to direct your attention to page 142,
line 20.
‘‘[Bazos]: I have it.
‘‘[The Plaintiff’s Counsel]: The question was, had you ever heard of . . .
Rodin before being involved in this case? You said, you hadn’t worked with
him before. And what was your answer?
‘‘[Bazos]: I’m reading from my deposition. I’ve seen his name, I’ve not
worked with him, but Waterbury is not that far away and will occasionally
see patients that live there and may have been treated out there in the past.
4, 2011, just a little over a month ago, correct . . .?
‘‘[Bazos]: That’s correct, yes.
‘‘[The Plaintiff’s Counsel]: And you had seen his name before that deposi-
tion, correct?
‘‘[Bazos]: That’s what I said. I said—I just read—I’ll read it again. I said,
I’ve seen his name.
‘‘[The Plaintiff’s Counsel]: Right. You had a working relationship that
dated back to 2008 and this deposition was given on April 4, 2011; isn’t
that right?
‘‘[Bazos]: I met . . . Rodin yesterday for the first time in my life.
‘‘[The Plaintiff’s Counsel]: So your testimony [is that] you did not have a
working relationship with him or that you did?
‘‘[Bazos]: I just said earlier that I did have a working relationship. I met
him yesterday for the first time.
‘‘[The Plaintiff’s Counsel]: And according to the answer that you gave at
your deposition you made it appear as though you may have come across
his name by—in one of your patient’s records; isn’t that the gist of your tes-
timony?
‘‘[Bazos]: No. Apparently, that’s your interpretation. Maybe I should just
read it again. I said, I’ve seen—
‘‘[The Plaintiff’s Counsel]: Yes, why don’t you read it again.
‘‘[Bazos]: I’ve seen his name, I’ve not worked with him, but Waterbury is
not that far away and will occasionally see patients that live there and may
have been treated out there in the past.
‘‘[The Plaintiff’s Counsel]: So you have a working relationship with him
that began in 2008, but you have not worked with him; is that your testimony?
‘‘[Bazos]: Yeah. I met him yesterday for the first time.
‘‘[The Plaintiff’s Counsel]: Okay. But you’ve had a working relationship
with him that dates back to 2008—
‘‘[The Defendants’ Counsel]: Objection, Your Honor. Asked and answered.
‘‘[The Plaintiff’s Counsel]: —isn’t that right . . . ?
‘‘[The Defendants’ Counsel]: —like, four or five times now. Can we have
a sidebar, please?
‘‘The Court: Yes.’’